# Planned Parenthood v. Casey

> District Court, E.D. Pennsylvania · August 24, 1990 · 744 F. Supp. 1323

URL: https://www.frixlaw.com/law-library/cases/1797783

## Case

- **Full name:** PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counselling Center, Women’s Health Services, Inc., Women’s Suburban Clinic, Allentown Women’s Center, and Thomas Allen, M.D., on Behalf of Himself and All Others Similarly Situated, Plaintiffs, v. Robert P. CASEY, N. Mark Richards, Ernest Preate, Personally and in Their Official Capacities, and Michael D. Marino, Personally and in His Official Capacity, Together With All Others Similarly Situated, Defendants
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 24, 1990
- **Citations:** 744 F. Supp. 1323; 1990 U.S. Dist. LEXIS 15775; 1990 WL 124835
- **Precedential status:** Published
- **Opinion:** Opinion by Huyett
- **Judges:** Huyett
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1797783

## How later opinions describe it (automated extraction)

- finding that in "some" of the forty-six percent of cases where a minor can neither obtain parental consent nor obtain a judicial bypass, the law "may act in such a way as to deprive [the minor] of her right to have an abortion"
- noting that pamphlets described stages of development for unborn life

## Opinion text

OPINION
HUYETT, District Judge.
INTRODUCTION
This court is required to address again the difficult and controversial issue of the permissible degree of governmental regulation of a woman’s abortion decision. In this action for declaratory and injunctive relief, plaintiffs challenge the 1988 and
*1325
1989 amendments to Pennsylvania’s Abortion Control Act of 1982 (“the Act”), Act of March 25, 1988, 1988 Pa.Laws 262, No. 31, §§ 3-10 (“Act 31”) and Act of November 17, 1989, 1989 Pa.Laws 592, No. 64, §§ 1-9 (“Act 64”), amending 18 Pa.Cons.Stat.Ann. §§ 3201-20 (Purdon 1983 and 1990 Supp.).
1
Plaintiffs assert that Act 31 and Act 64 violate the United States Constitution and 42 U.S.C. § 1983 (1981). I have subject matter jurisdiction over this controversy pursuant to 28 U.S.C. § 1331 (1966 and 1990 Supp.), 28 U.S.C. § 1343 (a)(3), (4) (1976 and 1990 Supp.), and the fourteenth amendment to the United States Constitution.
Just three days prior to the scheduled effective date of Act 31, following a hearing, I granted plaintiffs’ motion for a temporary restraining order and enjoined defendants from: (1) enforcing the provisions of section 3206
2
and (2) publicly disclosing or otherwise making available for public inspection and copying any report filed pursuant to sections 3207(b) or 3214(f).
3
An evidentiary hearing and oral argument on plaintiffs’ motion for a preliminary injunction was held on May 9, 1988. With the consent of the parties, I ordered that the earlier temporary restraining order would remain in effect until such time as I ruled on the motion for a preliminary injunction following the hearing.
See
Order (May 9, 1988). Two weeks later, on May 23, 1988,1 preliminarily enjoined various portions of the Act.
4
Planned Parenthood of Southeastern Pennsylvania v. Casey,
686 F.Supp. 1089 (E.D.Pa.1988)
{“Casey
7”). Defendants did not appeal this decision.
Thereafter, I stayed all proceedings pending issuance of the decision of the United States Supreme Court in
Webster v. Reproductive Health
Services.
5
At about the time of the Supreme Court’s decision in
Webster,
the Pennsylvania legislature began debating various amendments to the Act. Several months later, on November 17, 1989, Act 64 was adopted to become effective in sixty days. With the consent of the defendants and leave of the court, plaintiffs filed an amended complaint to extend the scope of their challenge against the Act to include the 1989 amendments. After a conference held in chambers, I extended, over the objection of defendants, the preliminary injunction order to encompass the 1989 amendments to the Act.
See Planned Parenthood of Southeastern Pennsylvania v. Casey,
736 F.Supp. 633 (E.D.Pa.1990)
(“Casey
77”).
The trial of this action on the merits was held during the week of July 30,1990. The parties have entered into a comprehensive stipulation of uncontested facts and a supplemental stipulation of uncontested facts
*1326
for the purposes of trial.
6
Based upon the stipulation of uncontested facts and the supplemental stipulation of uncontested facts, the evidence presented at trial, and the evidence presented at the hearing on plaintiffs’ motion for a preliminary injunction which the parties have agreed would be admissible at the trial on the merits,
7
I make the following findings of fact and conclusions of law. However, because in many ways the Pennsylvania legislature has come full circle by re-enacting many provisions of the Act which were deemed unconstitutional at various stages during the 1982 action involving the 1982 Act, I shall first summarize the lengthy history of abortion legislation in Pennsylvania.
I.
HISTORY OF ABORTION REGULATION IN PENNSYLVANIA
8
In its landmark decision in
Roe v. Wade,
410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), the Supreme Court invalidated statutes, like Pennsylvania’s,
9
containing general prohibitions against abortions, because such statutes unconstitutionally violated a woman’s fundamental right to privacy.
See also Doe v. Bolton,
410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973). In the year following
Roe v. Wade,
over the Governor’s veto, the state legislature enacted Pennsylvania’s first comprehensive “Abortion Control Act.”
See
Abortion Control Act of 1974, 1974 Pa.Laws 639, No. 209 (amended 1978, repealed 1982). After extensive and substantial litigation, various provisions of the 1974 Act, including sections relating to spousal and parental consent to abortion procedures, to the proscription of advertising for abortion procedures, to the choice of post-viability abortion procedures, and to the criminal standard governing the performance of abortions at viability, were struck down.
See Planned Parenthood Ass’n v. Fitzpatrick,
401 F.Supp. 554 (E.D.Pa.1975) (three judge panel),
affd mem. in part sub nom., Franklin v. Fitzpatrick,
428 U.S. 901 , 96 S.Ct. 3202 , 49 L.Ed.2d 1205 and
vacated and remanded mem. in part sub nom., Beal v. Franklin,
428 U.S. 901 , 96 S.Ct. 3201 , 49 L.Ed.2d 1204 (1976),
modified on remand,
Civil Action No. 74-2440 (E.D.Pa. Sept. 16, 1977) (unreported),
aff'd sub nom., Colautti v. Franklin,
439 U.S. 379 , 99 S.Ct. 675 , 58 L.Ed.2d 596 (1979).
10
See also Doe v. Zimmerman,
405 F.Supp. 534 (M.D.Pa.1975) (three judge panel).
In 1978, the legislature attempted to restrict a woman’s access to abortions by limiting medical assistance funding for the
*1327
procedure.
See
Act of September 26, 1978, 1978 Pa.Laws 773, No. 148, §§ 1-2. A successful challenge was mounted against this effort.
Roe v.
Casey, 464 F.Supp. 487 (E.D.Pa.1978),
aff’d,
623 F.2d 829 (3d Cir.1980).
Thereafter, a bill based on a model developed by Americans United For Life, a nonprofit organization, was introduced by the House as an amendment to a Senate bill regulating “tough guy” competitions.
See
Note,
Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach,
87 Dick.L.Rev. 373, 382 n. 84 (1983). Despite being rejected by the relevant legislative committee, the bill was passed overwhelmingly. The Senate, after brief discussion, concurred with the House amendment. While acknowledging his personal opposition to abortion, Dick Thorn-burgh, then Governor of Pennsylvania, vetoed the bill and explained his action as follows:
I am concerned that [some] provisions, and to some extent, the overall tone and tenor of the bill, would have the effect of imposing an undue, and, in some cases, unconstitutional burden upon even informed, mature adults intent upon obtaining an abortion under circumstances in which the U.S. Supreme Court has determined they are entitled to do so....
Likewise, I am concerned that some of the detailed, complex and burdensome requirements of the bill, accompanied as they are by severe criminal penalties, could well foster an atmosphere in which many physicians would be deterred from providing the kind of abortion-related medical services to which the U.S. Supreme Court has held their patients are constitutionally entitled. This could well disrupt the traditional doctor-patient relationship and impinge upon the right of physicians to practice. Of even greater concern is the potential for more experienced and conscientious physicians to refrain from involvement in even medically necessary abortions, and to abandon the field to marginal practitioners. It could even lead to a resurgence of “back alley” abortions, which no thoughtful person would wish to happen....
I am also concerned that in its entirety the bill in its current form goes further than is necessary in protecting the state interests in this area.... In so doing, it threatens to create additional regulation and bureaucracy and to unduly involve government in the private lives of its citizens.
See
Veto Message to the Senate at 7 (December 23, 1981) [Plaintiffs’ Exhibit 60], After revision and introduction on the floor of the House as an amendment to a bill relating to paramilitary training, the Abortion Control Act of 1982 was passed by both the House and Senate. Signed by Governor Thornburgh on June 11,1982, the Act was to take effect within 180 days, on December 8, 1982, from its enactment.
The Abortion Control Act of 1982 imposed detailed regulations on abortions which required that: (1) a pregnant woman wait a mandatory 24 hours prior to undergoing an abortion procedure after giving her consent to the procedure; (2) a physician personally provide certain specified information to a woman seeking an abortion as a part of the informed consent process; (3) unemancipated minors obtain parental or judicial consent for an abortion procedure; and (4) all second trimester abortions be performed in a hospital. The 1982 Act also strictly limited post-viability abortions; dictated the use of specific procedures and, in some cases, the presence of a second physician to save the aborted fetus; imposed detailed reporting regulations; required fetal pathology reports; restricted the availability of public funds for the performance of abortions; and regulated private insurance coverage for the performance of abortions. Further, the 1982 Act subjected physicians and clinics violating the Act to criminal prosecution, as well as civil tort liability and revocation or suspension of licensure.
Before the Act took effect, the American College of Obstetricians and Gynecologists (“ACOG”), Pennsylvania Section, various abortion clinics and physicians, among others, filed suit in this court alleging that the 1982 Act was unconstitutional in its entirety and immediately filed a motion for a
*1328
preliminary injunction.
See American College of Obstetricians and Gynecologists, Pennsylvania Section, et al. v. Thornburgh, et al.,
Civil Action No. 82-4336. Based upon what the Third Circuit later described as “an unusually complete factual and legal presentation from which to address the important constitutional issues at stake,”
see American College II,
737 F.2d at 290, J concluded that the 1982 Act as a whole was constitutional with the exception of the 24-hour waiting period contained in section 3205.
American College of Obstetricians and Gynecologists, Pennsylvania Section v. Thornburgh,
552 F.Supp. 791 (E.D.Pa.1982)
(“American College I”).
Plaintiffs immediately filed a notice of appeal, and the Commonwealth filed a cross-appeal challenging my ruling on the 24-hour waiting period provision. The Third Circuit, on December 9, 1982, granted the plaintiffs’ motion for stay of enforcement of the entire Act pending appeal. After expedited briefing and argument, the Third Circuit withheld opinion pending three decisions of the Supreme Court which were under submission.
11
After consideration of supplemental briefs and reargument, the Third Circuit ruled that various sections of the 1982 Act were unconstitutional, including the detailed reporting provisions imposed upon physicians, the requirement of discriminatory insurance, the compulsory “informed consent” information which must be given to a pregnant woman seeking an abortion, and the sections attempting to control the method of abortion and mandate the attendance of a second physician under certain circumstances.
American College II,
737 F.2d at 283. Further, in light of the decisions in
Akron
and
Ashcroft,
the Commonwealth conceded, and the Third Circuit agreed, that the 24-hour waiting period, the physician-only disclosure requirements, and the proscription against second trimester abortions unless performed in a hospital were unconstitutional.
Id.
at 293. The Supreme Court subsequently affirmed by a five to four vote.
Thornburgh,
476 U.S. at 747, 106 S.Ct. at 2169.
12
Thereafter, Pennsylvania’s legislature adopted the 1988 and 1989 amendments to the Act. These amendments include many provisions similar, if not identical, to the provisions of the 1982 version of the Act struck down by this court, the Third Circuit, and the United States Supreme Court, as well as other provisions to which plaintiffs object. These include a mandatory 24-hour waiting period for all women seeking to have an abortion; a parental informed consent/judicial by-pass procedure for minor women seeking to terminate their pregnancy; spousal notification provisions; physician-only disclosure requirements; and various reporting and disclosure requirements.
13
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II.
FINDINGS OF FACT
A.
The Parties and Witnesses.
1. Plaintiff Thomas Allen testified as an expert at trial in the field of obstetrics and gynecology. He is qualified to testify as an expert in this field, and I found his testimony to be credible in all respects. Dr. Allen is a physician licensed to practice medicine in Pennsylvania and is an Associate Clinical Professor in the Department of Obstetrics and Gynecology at the University of Pittsburgh. He graduated from the University of Pittsburgh School of Medicine in 1943. He is an emeritus staff member of Magee Women’s Hospital, and is Medical Director of Women’s Health Services, Inc. He has been a Diplómate of the American College of Obstetrics and Gynecology since 1954, has been a Fellow of the American College of Obstetrics and Gynecology since 1955, and a Fellow of the Pittsburgh Obstetrical and Gynecological Society since 1974. From 1972 to the present, Dr. Allen has been active in planning, establishing and administering Women’s Health Services, Pittsburgh’s first free standing abortion clinic. From 1970 to 1979, he was active in establishing and contributing services to the Pittsburgh Free Clinic. Dr. Allen has a private obstetrical and gynecological practice with one other specialist. [Court’s Exhibit 1 at ¶ 1; Plaintiffs’ Exhibit 81; Trial Testimony of Dr. Allen, Vol. I at 35-39].
2. Plaintiff Planned Parenthood of Southeastern Pennsylvania (“PPSP”) is a non-profit corporation providing comprehensive family planning, medical and counseling services (including birth control education), pregnancy testing and counseling, gynecological care, first trimester abortions, and vasectomies at medical clinics in Philadelphia, Montgomery and Delaware Counties. The Center City Philadelphia clinic offers these services Monday through Friday. Abortions are performed on Wednesdays, Thursdays, Fridays and Saturdays at PPSP’s Center City Philadelphia Clinic. [Court’s Exhibit 1 at 11 2].
3. Plaintiff Reproductive Health and Counseling Center (“RHCC”) is a for-profit corporation in Chester, Pennsylvania, which operates a clinic that performs first and early second trimester abortions. [Court's Exhibit 1 at II 12].
4. Plaintiff Women’s Health Services, Inc. (“WHS”) in Pittsburgh, Pennsylvania, is a non-profit health center providing fertility control education, pregnancy counseling, general counseling for individuals and couples, PMS counseling and treatment, contraceptive and gynecological care, public education, and first and early second trimester abortions. [Court’s Exhibit I at 1125],
5. Plaintiff Women’s Suburban Clinic (“WSC”) is a non-profit corporation in Pao-li, Pennsylvania which operates a health care facility providing abortions, ongoing gynecological services, mini-laparoscopies, pregnancy testing, community education, and other counseling services. [Court’s Exhibit 1 at 1142],
6. Plaintiff Allentown Women’s Center (“AWC”) is a for-profit corporation in Allentown, Pennsylvania which operates a clinic providing pregnancy testing and counseling, contraceptive and gynecological care, and first trimester abortions. [Court’s Exhibit 1 at 1155].
7. Defendant Robert P. Casey is the Governor of the Commonwealth of Pennsylvania. [Plaintiffs’ Amended Complaint and Defendants’ Answer to Amended Complaint at ¶ 13].
8. Defendant N. Mark Richards, M.D., is the Secretary of Health of the Commonwealth of Pennsylvania. [Plaintiffs’ Amended Complaint and Defendants’ Answer to Amended Complaint at ¶ 14].
9. Defendant Ernest Preate, Jr., is the Attorney General of the Commonwealth of Pennsylvania. [Plaintiffs’ Amended Com
*1330
plaint and Defendants’ Answer to Amended Complaint at 1115].
10. Defendant Michael D. Marino is the District Attorney for Montgomery County, Pennsylvania.
14
[Plaintiffs’ Amended Complaint and Defendants’ Answer to Amended Complaint at 1116].
11. Sue Roselle testified at the hearing on plaintiffs’ motion for a preliminary injunction and at trial. I found her testimony on both occasions to be credible in all respects. Ms. Roselle is the Executive Director of WHS. As Executive Director, she is responsible for the ongoing operation of the clinic and for staff selection, and she reports to the Board of Directors of WHS. She holds a master’s degree in social work from the University of Illinois at Urbana, and a M.S.B.A. in management from Robert Morris College. She is Treasurer of the Pennsylvania Chapter of the National Association of Social Workers, a member of the Academy of Certified Social Workers, President of Pennsylvanians for a Right to a Private Life, and serves on the Health Services Committee of the American Red Cross, Pittsburgh-Allegheny Chapter. She has over ten years’ experience in health care administration, including medical services and home health care. She is a former director for emergency medical service systems for the 12 counties of southwestern Pennsylvania.
[See Casey I,
686 F.Supp. at 1093 (1111) ].
12. Sylvia Stengle testified at the. hearing on plaintiffs’ motion for a preliminary injunction. I found her testimony to be credible in all respects. Ms. Stengle is the founder and Director of AWC. She is responsible for the ongoing operation of the clinic and hiring. She holds a bachelor’s degree from the University of Wisconsin, and has taken graduate courses in sociology and psychology. Prior to founding AWC in 1978, she was the Education Director for Planned Parenthood of Northampton County, Pennsylvania. She has been personally involved in counseling since 1973, and now supervises the AWC counseling staff. She serves on the Board of Directors of the National Abortion Rights Action League.
[See Casey I,
686 F.Supp. at 1093-94 (1112) ].
13. Dr. Cathy Dratman testified at the hearing on plaintiffs’ motion for a preliminary injunction. I found her testimony to be credible in all respects. Dr. Dratman is licensed to practice medicine in Pennsylvania and New Jersey. She is a graduate of Hahnemann Medical College, and completed her internship and residency at Pennsylvania Hospital in Philadelphia. She is board certified by the American Board of Obstetrics and Gynecology. She has been Medical Director of PPSP since 1986, and has a private obstetrical and gynecological practice in New Jersey. She does not presently perform abortions, but in the past has performed and referred patients for first and second trimester abortions up to 20 weeks gestation. As Medical Director of PPSP, she maintains close contact with, and generally oversees, all abortion procedures performed at the clinic.
[Casey I,
868 F.Supp. at 1094 (H 13) ].
14. Dr. Steven J. Davidson testified at trial as an expert in the field of emergency medicine. He is qualified to testify as an expert in emergency medicine, and I found his testimony credible in all respects. Dr. Davidson is a physician licensed to practice medicine in Pennsylvania and California. He is a Division Head of Pre-Hospital Care and Professor of Emergency Medicine at the Medical College of Pennsylvania where he teaches, both clinically and didactically, medical students, interns, residents and house staff. He received his bachelor’s degree in chemistry with honors from Temple University in 1971 and graduated from Temple University Medical School in 1975. Dr. Davidson’s internship and residency, in emergency medicine, took place in the Medical College of Pennsylvania. Subsequently, he was awarded a master’s degree in business administration from the Wharton School of the University of Pennsylvania in 1989.
Dr. Davidson’s hospital appointments include attending physician at the hospital at
*1331
the Medical College of Pennsylvania, associate in the Department of Emergency Medicine at the Mercy Catholic Medical Center, and he serves on the intensive care unit, attending staff and affiliate staff, at Jefferson Hospital. He presently sees patients in emergency rooms approximately 600 hours annually.
15
He has been a Fellow of the American College of Emergency Physicians since 1982, and has been a Dip-lómate of the American Board of Emergency Medicine since 1980. Finally, he is the author or co-author of numerous publications and has given numerous presentations on topics in the field of emergency medicine. [Trial Testimony of Dr. Davidson, Vol. I at 10-14; Plaintiffs’ Exhibit 77].
15. Dr. Michael Alan Grodin testified at trial as an expert in the field of medical ethics. He is qualified to testify as an expert in medical ethics, and I found his testimony credible in all respects. Dr. Gro-din is a physician licensed to practice medicine in Massachusetts and New York. He received his bachelor’s degree from Massachusetts Institute of Technology in 1973 and graduated from Albert Einstein College of Medicine in 1976. Dr. Grodin was an intern and junior resident in pediatrics at Harbor General Hospital in Torrance, California (UCLA), and completed his residency in pediatrics at Massachusetts General Hospital and Boston City Hospital (Harvard University). While at Boston City Hospital, he was Chief Resident in Pediatrics. Subsequently, he completed a clinical fellowship in pediatric cardiology at Children’s Hospital Medical Center in Boston.
Dr. Grodin is a pediatrician and a professor with over eleven years of experience in the field of medical ethics. He has taught courses and lectured within the Boston University Schools of Liberal Arts, Medicine, Law, Public Health, Social Work, and Theology over the past eleven years. He is presently Associate Director of the Law, Medicine and Ethics Program and Director of Medical Ethics at Boston University Schools of Medicine and Public Health, where he is also Associate Professor of Health Law, Pediatrics, and Socio-Medical Sciences and Community Medicine. In addition, he is Adjunct Associate Professor of Philosophy in the College of Liberal Arts at Boston University.
Dr. Grodin is a Medical Ethicist and Human Studies Chairman for the Department of Health and Hospitals of the City of Boston, and serves on the Institutional Review Board and Ethics Advisory Group-Institutional Ethics Committee of Boston City Hospital. He is a staff pediatrician at Associated Pediatricians of Boston, an associate visiting pediatrician at Boston City Hospital, and a senior associate in pediatrics at Beth Israel Hospital in Boston. In addition, he serves on the boards of directors of the American Society of Law and Medicine, and Public Responsibility in Medicine and Research. He is a member of the National Committee on Bioethics of ACOG. Finally, he served as medical ethics reviewer for The New England Journal of Medicine and Oxford University Press, authored or coauthored numerous publications in the areas of moral dilemmas in medicine and problematic decision-making in clinical medicine, and has delivered numerous presentations on various topics in the field of medical ethics. [Trial Testimony of Dr. Grodin at 91-96; Plaintiffs’ Exhibit 78].
16. Dr. Ronald J. Bolognese testified at trial as an expert in the fields of obstetrics, gynecology and perinatal medicine. He is qualified to testify as an expert in these areas, and I found his testimony credible in all respects. Dr. Bolognese is a physician licensed to practice medicine in Pennsylvania and New Jersey. He received his bachelor’s degree from Princeton University in 1959 and graduated from the University of Pennsylvania School of Medicine in 1967. Dr. Bolognese completed his internship at Bryn Mawr Hospital and his residency in obstetrics and gynecology at Pennsylvania Hospital in Philadelphia.
Dr. Bolognese was the Chief of Obstetrics and Gynecology at Williams Air Force Base Hospital in Arizona from 1967 to
*1332
1969. He has specialty certifications from ACOG and the Maternal-Fetal Medicine Board, a division of ACOG.
16
He is the Director of the Section on Perinatology of the Department of Obstetrics and Gynecology at Pennsylvania Hospital. Since 1985, he has been the Chairman of the Department of Obstetrics and Gynecology at Pennsylvania Hospital. He has been a Professor of Obstetrics and Gynecology at the University of Pennsylvania School of Medicine since 1982, after serving as a clinical assistant professor and associate professor of obstetrics and gynecology. Finally, he is the author or co-author of numerous publications and has delivered several presentations on topics in his fields of expertise. [Trial Testimony of Dr. Bolognese, Vol. I at 137-141; Plaintiffs’ Exhibit 79].
17. Dr. Lenore E.A. Walker testified at trial as an expert in the field of family violence. She is qualified to testify as an expert in the area of family violence and the effects of battering on women, children and other members of their families, and I found her testimony credible in all respects. Dr. Walker is licensed to practice psychology in Colorado and New Jersey. She received her bachelor’s degree in psychology from Hunter College of the City University of New York in 1962, her master’s degree in clinical school psychology from City College of the City University of New York in 1967, and her doctorate degree from Rutgers University’s School of Psychology in 1972.
Dr. Walker has more than twenty years of experience as a licensed clinical, forensic, and school psychologist. She is currently the president of Walker and Associates in Denver and the founder and Executive Director of the Domestic Violence Institute, a non-profit organization which conducts research in the area of family violence. Dr. Walker is a Fellow of and has served on the Council of Representatives of the American Psychological Association and as chair of its Women’s Caucus. In 1987, she was the recipient of the Board of Professional Affairs Distinguished Professional Contributions to Psychology in the Public Interest Award, one of the American Psychological Associations highest honors. Dr. Walker is also an adjunct professor of psychology at the University of Denver. During her career she has been Chairperson of the Department of Psychology and Associate Professor of Psychology at Colorado’s Women’s College, an Assistant Professor of Psychiatry at Rutgers University's Medical School, and an Assistant Professor at Rutgers University’s Graduate School of Applied and Professional Psychology-
Dr. Walker was one of the first scientists in the country to conduct clinical research on intra-family violence and is one of the foremost experts on the psychology of battered women and families. From 1978 to 1981, she acted as the principal investigator for a National Institute for Mental Health funded study on the "battered women syndrome.” She is the author or co-author of numerous publications, including
The Battered Woman,
her first book published in 1979 for which she received a Distinguished Media Award from the Association for Women in Psychology. She serves as an assistant editor for a number of major “referee” journals
17
in her field, has delivered several presentations on topics in her field, and consulted with governmental agencies and testified, in criminal and civil cases in thirty states and federal courts, as an expert on domestic violence and the battered women syndrome. [Trial Testimony of Dr. Walker, Vol. II at 3-9; Plaintiffs’ Exhibit 80].
18. Jean A. Dillon
18
testified at trial, and I found her testimony credible in all
*1333
respects. She is a counselor for Women’s Resource Center of Monroe County, Inc., a non-profit organization that provides counseling services to battered women, victims of sexual abuse, and children in domestic violence situations. Women’s Resource Center of Monroe County is a member organization of the Pennsylvania Coalition Against Domestic Violence which provides similar services to battered women and children. Ms. Dillon provides protection from abuse accompaniment for battered women and children to courthouses, shelters women in need of a safe house, and spends many hours working on a crisis intervention hotline annually. Also, she is a former victim of spousal abuse. [Trial Testimony of Ms. Dillon, Vol. Ill at 143-165].
19. Dr. Vincent M. Rue testified at trial as an expert in the areas of problem pregnancy decision-making, marital family relationships, and psychological effects following an abortion. Dr. Rue received a bachelor’s degree in sociology from St. John’s University, a master’s degree in clinical social work from St. Louis University, and doctorate degree in family relations from the University of North Carolina, School of Home Economics at Greensboro. He is co-founder and co-director of the Institute for Abortion Recovery and Research in New Hampshire, and Executive Director of Sir Thomas Moore Clinic in California. In addition, from 1975 to 1980, he was an Associate Professor of Family Relations at the School of Fine and Applied Arts of California State University at Los Angeles, and was an Adjunct Associate Professor at the School of Professional Psychology at United States International University in San Diego.
Dr. Rue is a licensed marriage and family counselor in California, and a trained psychotherapist. He is not a psychologist and has never conducted a controlled research study. While Dr. Rue has produced various published works in his field, he has never had any of his work published in a referee journal. Because he is not a physician, Dr. Rue has never provided informed consent for an abortion or any other medical procedure. In addition, he has not conducted any research on the informed consent procedures utilized in abortion clinics in Pennsylvania. [Trial Testimony of Dr. Rue, Vol. II at 143-155; Defendants’ Exhibit 62].
Dr. Rue submitted a study he co-authored with others,
The Psychological Aftermath of Abortion,
to Surgeon General C. Everett Koop and the House of Representatives Committee on Government Operations as a part of a federal investigation of the medical and psychological effects of abortion which purports to establish the existence of a psychological disorder denominated “post abortion syndrome.” After submission for peer review by scientists with the Center for Disease Control, the National Center for Health Statistics and other scientific institutions, his study was found to have “no value” and to be “based upon a priori beliefs rather than an objective review of the evidence.”
See The Federal Role in Determining the Medical and Psychological Impact of Abortion on Women,
Committee on Government Operations, H.R. 101-392, 101st Cong. 1st Sess. (Dec. 11, 1989) at 12 [Plaintiffs’ Exhibit 67 at 12]. The Board of Directors of the American Psychological Association, after review of all of the scientific literature, has determined that there are no scientific studies which support the existence of a “post abortion syndrome” as suggested by Dr. Rue. [Trial Testimony of Dr. Rue, Vol. II at 51].
Because Dr. Rue lacks the academic qualifications and scientific credentials possessed by plaintiffs’ witnesses, I conclude that his testimony, which is based primarily, if not solely, upon his limited clinical experience, is not credible. His testimony is devoid of the analytical force and scien-
*1334
tifie rigor which typified the testimony of plaintiffs’ expert psychologist, Dr. Walker. Moreover, his admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias. Finally, his testimony concerning informed consent is suspect in light of his lack of direct involvement in obtaining informed consent for any medical treatment or procedure.
20.Dr. Watson Allen Bowes, Jr., testified at trial as an expert in the fields of high risk obstetrics and maternal fetal medicine. He is qualified to testify as an expert in these fields, and I found his testimony credible in certain respects but subject to certain limitations caused by his admitted philosophical opposition to abortion.
19
In addition, because Dr. Bowes is not a certified specialist in emergency medicine, like Dr. Davidson, his testimony on issues pertaining to this area is not entitled to the same weight as the testimony of Dr. Davidson.
Dr. Bowes is a physician licensed to practice medicine in North Carolina and Colorado. He received his bachelor’s degree from Washington and Lee University in 1955 and graduated from the University of Colorado School of Medicine in 1959. Dr. Bowes completed his internship at Mary Hitchcock Memorial Hospital, his residency (general practice) at the University of Colorado, and his residency (obstetrics and gynecology) at the University of Colorado School of Medicine. In addition, he was a Fellow in Obstetrics and Gynecology, Reproductive Physiology Laboratory at the University of Colorado School of Medicine.
Dr. Bowes is certified by ACOG, as well as ACOG’s Division of Maternal-Fetal Medicine. He is presently a Professor in the Department of Obstetrics and Gynecology at the University of North Carolina School of Medicine at Chapel Hill. Previously, he taught obstetrics and gynecology at the University of Colorado as an assistant professor, associate professor and full professor. Finally, he is the author of various publications in his field. [Trial Testimony of Dr. Bowes, Vol. Ill at 25-32; Defendants’ Exhibit 61].
21. Patricia Potrzebowski, Ph.D., testified at trial, and I found her testimony credible in all respects. She is the Director of the Division of Health Statistics and Research, State Health Data Center, Department of Health. She has a bachelor’s degree in biology from Schimer College, Mount Carroll, Illinois. In 1974, she obtained a doctorate degree in human genetics from the Graduate School of Public Health from the University of Pittsburgh. She has been the Director of the Division of Health Statistics since late 1976 or early 1977. [Trial Testimony of Dr. Potrzebow-ski, Vol. Ill at 88-90;
see also Casey I,
686 F.Supp. at 1094 (¶14)].
B.
Procedures and Practices of Plaintiffs.
(1) Planned Parenthood of Southeastern Pennsylvania
22. PPSP performs approximately 2,800 first trimester abortions a year. The abortion procedure presently costs full payment patients $240, if the woman is 12 weeks or less from her last menstrual period. All fees cover only the direct costs of the procedure, including personal counseling, medical testing and examination, the abortion procedure, medical supervision during the post-surgical recovery, and a post-abortion examination. [Court’s Exhibit 1 at 113].
23. PPSP charges $180 for abortions for women who are on medical assistance but whose abortions are not reimbursable by the state. [Court’s Exhibit 1 at 114].
24. PPSP accepts state medical assistance reimbursement in lieu of direct payment for abortions for victims of rape and incest, and for women with life-threatening conditions. In 1987, approximately 53 of
*1335
the abortions performed at PPSP were reimbursed by the Commonwealth. [Court’s Exhibit 1 at II 5].
25. When a woman believing she is pregnant presents herself at a PPSP clinic, she is given a pregnancy test and examined by a nurse practitioner or physician. Women who believe they have just recently become pregnant are offered early detection by means of a blood test or special urine test. Once it is determined that she is pregnant, the woman is encouraged to participate in an individual options counseling session with a PPSP counselor. [Court’s Exhibit 1 at ¶ 7].
26. Options counselors are volunteers or staff counselors who have completed a special training program under the supervision of PPSP counselors and other senior staff members. This training program consists of 43 hours of group sessions that focus on factual information regarding adoption, abortion, contraception and referral resources. The course also gives participants the opportunity to evaluate, explore and share their attitudes and feelings. The course is certified by Temple University, and participants receive four CEU credits for completion of the training. [Court’s Exhibit 1 at II8].
27. Abortion counselors are members of PPSP’s counseling staff or college student interns working under the supervision of a staff counselor. These counselors have college backgrounds and experience in a health or social services related field. All abortion counselors have had on-site training in pregnancy counseling and abortion care and are required to participate in ongoing in-service training. [Court’s Exhibit 1 at II 9].
28. Each PPSP client participates in an individual abortion counseling session on the day her procedure is scheduled. In this session, the counselor and the woman discuss the woman’s medical history, personal situation and feelings about abortion. The counselor explains the abortion procedure and its risks. Post-abortion care and contraceptive plans are also explored. If the client has been accompanied to the clinic by a person she wishes to involve in the counseling, that person will be included in part of this session. In some cases the abortion counselor will serve as the support person and accompany the woman through the procedure. [Court’s Exhibit 1 at 1110].
29. To assure that minors are informed of all options and are making a free and informed choice, PPSP counseling sessions for minors are more extensive. In the course of the counseling session, minors are given detailed information on the procedure and its risks. Minor women are also counseled on future contraceptive care. When a minor does elect to involve a parent or other supportive adult such as an aunt, guardian or older sibling, the counsel- or will first meet privately with the minor. Then, at the counselor's discretion and with the minor’s consent, the parent or adult will be brought in for joint counseling. [Court’s Exhibit 1 at ¶ 11].
30. Many of PPSP’s abortion patients come from referrals from other clinics where they previously have received options counseling. [Court’s Exhibit 1-A at 11115].
31. During options counseling at PPSP, the counselors discuss with the woman the option of keeping her baby or giving it up for adoption. [Court’s Exhibit 1-A at 11116].
32. It is typical for a woman to receive counseling about her options once she has her pregnancy diagnosed at one of PPSP’s centers, and to receive counseling again at the surgical center in Center City. [Court’s Exhibit 1-A at H 123].
33. In 1987, PPSP performed 359 abortions for women under the age of 18. [Court’s Exhibit 1 at ¶ 6].
34. PPSP encourages minors to bring a parent with them. [Court’s Exhibit 1-A at 11114].
35. Approximately 65% of the minors bring a parent with them to the counseling session in PPSP’s experience. [Court's Exhibit 1-A at ¶ 117].
36. PPSP refers women with medical problems that make them high-risk patients to hospitals. [Court’s Exhibit 1-A at II113].
*1336
37. PPSP advises minors (and others) that if anything unusual or any sort of complications occur to let PPSP know and come back for treatment or to go to an emergency room for treatment. [Court’s Exhibit 1-A at If 124].
38. PPSP collects information for its internal use concerning medical complications following an abortion. [Court’s Exhibit 1-A at 11122].
(2) Reproductive Health and Counselling Center
39. RHCC performs approximately 2,900 first and early second trimester abortions annually. [Court’s Exhibit 1 at 1112].
40. RHCC employs a staff of approximately four physicians, one nurse practitioner, and two full-time and two part-time counselors. Abortions are performed on Tuesday, Wednesday and Friday afternoons. Additional counseling sessions are available by appointment. [Court’s Exhibit 1 at ¶ 13].
41. At RHCC, one physician works at a time during those hours of operation when abortions are performed. [Court’s Exhibit 1-A at ¶ 141].
42. First trimester abortions (up to 12 weeks from the last menstrual period) with local anesthesia cost RHCC clients $220. For abortions from 12 to 16 weeks from the last menstrual period the cost is $375, plus an additional $70 for a required ultrasound. [Court’s Exhibit 1 at H 14].
43. If RHCC’s clients are eligible for medical assistance reimbursement, RHCC seeks reimbursement from the Commonwealth. In 1987, RHCC was reimbursed for no more than 20 such abortions. The reimbursement rate was $59.50 to the clinic and $81.50 to the physician. [Court’s Exhibit 1 at ¶ 15].
44. Where a client receives medical assistance from the state but is not eligible for medical assistance for an abortion, RHCC provides a $50 cost reduction for first trimester abortions with local anesthesia. [Court’s Exhibit 1 at II16].
45. While RHCC’s clients come primarily from Delaware, Philadelphia, Chester and Bucks Counties, approximately 3-4% of its clients come from areas in excess of three hours travelling time. [Court’s Exhibit 1 at II17].
46. A woman’s first contact with RHCC is usually by telephone. Women who call RHCC may or may not have had a pregnancy test prior to calling. Telephone counselors refer the women to RHCC or to the agency closest to her home or place of work for the test. [Court's Exhibit 1 at H 19].
47. If a woman has a positive pregnancy test and wants to terminate the pregnancy, RHCC will schedule an abortion appointment, usually within one week’s time. If the woman indicates uncertainty about her decision, the telephone counselor will recommend her making an appointment to talk further with an options counselor about her decision. [Court’s Exhibit 1 at 1120].
48. At an options counseling session, an RHCC counselor talks with the woman about her feelings about her pregnancy. The purpose of the session is to let the woman know about each of the three options available to her: carrying to term and keeping the child, carrying to term and giving the child up for adoption, and abortion. Where appropriate, the woman is urged to talk about these options with supporting family members and friends. The role of the counselor in these sessions is to support the decision of the woman and to provide information that would be necessary as she acts on her decision. [Court’s Exhibit 1 at U 22],
49. Pre-abortion counseling at RHCC, which each woman must participate in on the day of her abortion and which is different from options counseling, involves a discussion of the woman’s decision, a review of her medical history and a description of the risks and complications of the abortion procedure. The informed consent part of the session is done with groups of four women. The counselor describes the medical procedure, reviews the risks and complications, and answers questions or addresses concerns. RHCC also provides counseling to the person or persons who accompa
*1337
ny women for abortions. [Court’s Exhibit 1 at 11 23].
50. Pre-abortion and options counselors are trained and supervised by RHCC’s head counselor who has nine years counseling experience. [Court’s Exhibit 1 at II24].
51. Telephone counselors’ salaries at RHCC are between $6 and $6.30 an hour. For options counselors, salaries begin at $6.30 an hour. [Court’s Exhibit 1-A at 11134].
52. RHCC counselors are not required to have a bachelor’s degree. [Court’s Exhibit 1-A at 11135].
53. If a woman receives options counseling and pre-abortion counseling at RHCC, such counseling occurs on different days, with options counseling being available on Tuesdays and Thursdays. [Court’s Exhibit 1-A at ¶ 136].
54. In 1987, RHCC performed abortions on 349 minors. Approximately 60% of these minors were accompanied by a parent. That percentage has decreased to approximately 50%. All minors who choose not to be accompanied by a parent are required to bring a responsible adult with them to RHCC who will stay in the building as long as the minor is there and will accompany the minor home. [Court’s Exhibit 1 at II18; Court’s Exhibit 1-A at 145].
55. RHCC strongly urges options counseling for all minors who have not involved their parents in the decision. [Court’s Exhibit 1 at ¶ 21].
56. In general, RHCC supports and encourages parental involvement in the abortion decision where possible. [Court’s Exhibit 1-A at 11137].
57. If a parent accompanies a minor to RHCC for the abortion procedure, the minor reviews the risks and informed consent provision in the group session while the waiting room counselor goes over that information, including possible complications, with the parent. [Court’s Exhibit 1-A at ¶ 138].
58. RHCC keeps statistics on complications. [Court’s Exhibit 1-A at ¶ 139].
59. The Medical History Form used by RHCC was being used prior to the 1988 amendments to the Act. [Court’s Exhibit 1-A at 11142],
60. RHCC submits quarterly reports of complications to the National Abortion Federation. [Court’s Exhibit 1-A at ¶ 143].
61. Doctors at RHCC sign the individual reporting forms (Report of Induced Termination of Pregnancy) submitted to the Pennsylvania Department of Health (“Pa-DOH”) immediately following the abortion procedure. [Court’s Exhibit 1-A at 11144].
62. No physician at RHCC has ceased performing abortions because their identity is listed on PaDOH pregnancy termination forms. [Court’s Exhibit 1-A at 11140],
(3) Women’s Health Services and Dr. Allen
63. WHS has a staff of approximately 75 people (including 8 physicians, 14 nurses and 33 counselors) and offers ongoing programs which are inclusive of approximately 2,700 client contacts a month. [Court’s Exhibit 1 at 11 25].
64. Free pregnancy testing and counseling are available at WHS daily, Monday through Saturday. Abortions are performed Tuesdays, Fridays and Saturdays. Gynecology clinics are held on Wednesdays, Thursdays, and any other day a patient’s condition dictates. Once their pregnancy is diagnosed, clients usually schedule their abortions by telephone. [Court’s Exhibit 1 at 1126].
65. WHS provides approximately 12,900 free pregnancy tests and 7,000 first trimester and early second trimester abortions each year. The abortion procedure at WHS costs as follows: $330 if twelve weeks or less from the last menstrual period; and $430 if thirteen to fourteen weeks from the last menstrual period; and $650 if fifteen to sixteen weeks from the last menstrual period. The fee includes the abortion procedure, laboratory testing, personal counseling, contraceptive care, pathological examination and medical supervision during the post-surgical recovery period. [Court Exhibit 1 at 11 27].
*1338
66. WHS does not perform abortions after 17 weeks gestation. [Court’s Exhibit 1-A at II 85],
67. If clients are eligible for medical assistance, WHS takes the necessary information and seeks reimbursement from the Commonwealth. Medical assistance is available only where the abortion is necessary because of the life-threatening condition, or because the patient was a victim of rape or incest. In 1989, WHS was reimbursed for 46 such abortions. [Court’s Exhibit 1 at ¶ 28].
68. Where a client receives medical assistance from the state, but is not eligible for medical assistance for an abortion, WHS nevertheless will discount the cost of the abortion. Last year, WHS accommodated 1,170 clients who were unable to pay the full amount. WHS has never turned away any client seeking an abortion merely because of inability to pay. [Court’s Exhibit 1 at II 29].
69. WHS’s clients come primarily from Allegheny County. In 1989, however, 909 of their abortion patients came from areas in excess of two hours travelling time (100 miles) from the clinic. [Court’s Exhibit 1 at 1130],
70. When a patient presents herself at the WHS clinic, she receives a pregnancy test and blood tests. [Court’s Exhibit 1 at 1132].
71. As to WHS, free pregnancy tests and counseling are available Monday through Saturday, but 95% of counseling services are provided on the same day of the abortion. [Court’s Exhibit 1-A at 11110].
72. Both Magee and WHS take a patient’s history prior to performing the abortion. [Court’s Exhibit 1-A at 1190],
73. In Dr. Allen’s private practice, a patient completes a history form, which is a sort of health questionnaire, which is then amplified by a nurse’s questions and further amplified by the physician when he sees her. [Court’s Exhibit 1-A at 11 91].
74. At WHS, the patient completes the history form, which is gone over by a counselor, and then the physician reviews it prior to performing the abortion. [Court’s Exhibit 1-A at 1192],
75. All women are required to have an individual interview with a counselor on the day of their abortion. During this interview, a woman is counseled with respect to her options and her decision to have an abortion. Information regarding the risks and benefits of the abortion procedure and the patient’s medical history is provided to her. In that connection, the counselor seeks to ensure that the woman is not unduly ambivalent about her decision and that she is not being coerced. In addition, the counselor discusses future contraceptive use with the patient. [Court’s Exhibit 1 at II 33].
76. If the client appears ambivalent about her decision, the counselor will refer her to one of the.staff therapists and the abortion will be rescheduled to give the patient more time to consider her options. On rare occasions, the clinic will refuse to perform the abortion, if convinced of the patient’s continued ambivalence. [Court’s Exhibit 1 at 11 34].
77. Options counseling is provided on the day of the procedure by WHS professional counselors who are selected on the basis of personal qualifications and maturity. [Court’s Exhibit 1 at 1136].
78. Extensive and intensive problem pregnancy counseling is available at WHS at no charge to clients either before or after a decision with respect to an abortion has been made, regardless of what that decision may be. Personal counseling is also available after the abortion procedure and clients are encouraged to take advantage of that service. [Court’s Exhibit 1 at II37],
79. At WHS, the average counseling takes 20 minutes. [Court’s Exhibit 1-A at 11102],
80. In 1989, 703 of WHS’s abortion patients were under the age of 18. WHS presently encourages minors to bring a parent or other adult with them. Because WHS believes that parental involvement should be encouraged, clinic counselors are instructed to offer to speak with the mi
*1339
nor’s parents, if the minor would prefer that to making direct contact herself. When minors refuse to inform their parents under any circumstances, their wishes are currently respected. [Court’s Exhibit 1 at 1131].
81. Fifty percent of the minors who go to WHS are accompanied by a parent. When a parent accompanies a minor seeking an abortion, WHS first counsels the minor with respect to her options and her decision to have an abortion, and also provides her with information on future contraceptive use. The parent is then asked to join the minor, at which time the abortion procedure and possible complications are described. The counselor also answers any questions they might have. An informed consent form is then read out loud to the parent and minor while they follow along with their own copies. Each then signs the form in the medical record. [Court’s Exhibit 1 at 1135; Court’s Exhibit 1-A at HU 97, 101],
82. No abortion can be performed on a minor at Magee without a parent’s written consent. [Court’s Exhibit 1-A at If 94].
83. Approximately 30% of Dr. Allen’s patients seeking abortions are minors. [Court’s Exhibit 1-A at †[ 95].
84. If a parent comes with a minor for an abortion procedure at Magee, Dr. Allen will speak to the parent too. If a parent comes with a minor for an abortion procedure at WHS, a counselor speaks to the parent. [Court’s Exhibit 1-A at H 96],
85. At present, WHS’s director of personal counseling holds a Ph.D. [Court’s Exhibit 1 at If 38].
86. Personal counselors at WHS are professional therapists who have at least five years of clinically supervised experience at the master’s degree level or above. [Court’s Exhibit 1 at If 39].
87. Both paraprofessional and professional counselors at WHS are required to begin their employment with a week of classroom preparation, consisting of approximately 35 hours of medical and counseling orientation*to the abortion clinic. This instruction is provided by the associate medical director, director of counseling, and director of clinical services. [Court’s Exhibit 1 at 1140].
88. The medical information to be presented by counselors at WHS is .developed under the supervision of a physician, the WHS associate medical director. The counseling protocols are developed and presented under the supervision of the director of counseling who holds a Ph.D. from the University of Pittsburgh. WHS also has an ongoing training module comprised of monthly inservices and quarterly individual supervision. [Court's Exhibit 1 at 1141],
89. Dr. Allen always does some counseling with his patient prior to the procedure and goes over the informed consent form with them. [Court's Exhibit 1-A at 1f 89].
90. Dr. Allen signs PaDOH reporting forms for Magee but WHS uses his signature stamp for such forms. [Court’s Exhibit 1-A at ¶ 93].
91. WHS has a hot-line for women to call if they have any unusual symptoms or problems after an abortion to make sure there is immediate treatment. [Court’s Exhibit 1-A at ¶ 103].
92. WHS provides information to the National Abortion Federation and the Alan Guttmacher Institute, including information concerning complications and the frequency that WHS’s patients report to them or WHS observes them. [Court’s Exhibit 1-A at If 105].
93. If a medical emergency resulting from an abortion performed at WHS occurs, an ambulance is called to take the person to the hospital. [Court’s Exhibit 1-A at 11 111],
(4) Women’s Suburban Clinic
94. WSC performs approximately 3,350 first trimester abortions a year. Abortions are performed Tuesdays, Wednesdays and Thursdays. [Court’s Exhibit 1 at 1143].
95. The fee for an abortion at WSC is $275. At present, WSC accepts state medical assistance reimbursement for abortions for cases of rape, incest and life endangerment. Approximately 40 such claims are
*1340
reimbursed by the Commonwealth annually. [Court's Exhibit 1 at 1145].
96. Appointments for counseling and abortions are made through WSC telephone counselors. A positive pregnancy test is required before an abortion is scheduled. [Court’s Exhibit 1 at ¶ 46].
97. The telephone counselors at WSC make appointments and receive clients but they do not counsel about pregnancy options. [Court’s Exhibit 1-A at ¶ 125].
98. Depending on the patient interest and availability, appointments are made at WSC in one of the following ways:
a. If a woman requests counseling and the abortion on the same day, the first available appointment is given. There is often a one to two week wait in obtaining an appointment. Approximately 70% of the abortion appointments are scheduled this way.
b. If a woman wants to see a counselor prior to the day of her abortion, a pre-abortion session is scheduled. Approximately 30% of the abortion appointments are scheduled this way. [Court’s Exhibit 1 at 1147],
99. A woman who calls WSC and expresses concern and confusion over an unwanted pregnancy is offered an opportunity to see a counselor to discuss her options. Resource information is available for options including keeping the child, foster care and adoption. Information concerning maternity homes is also available for those women who wish to carry their pregnancy to term. [Court’s Exhibit 1 at ¶ 49].
100. All counseling at WSC is provided on an individual basis by a trained counsel- or. All but one member of WSC’s counseling staff have master’s degrees. The other has a bachelor’s degree with several years experience in counseling and family planning. All have backgrounds in various fields of human services. [Court’s Exhibit 1 at II 50].
101. It is WSC’s policy that in order to counsel effectively, without becoming overstressed by the emotional demands of the job, counselors are not permitted to provide counseling for more than 20 hours a week. [Court’s Exhibit 1 at II 51].
102. WSC encourages that partners and/or parents be seen by the counselor during or after the counseling session. However, all clients are first seen alone by a WSC counselor. [Court’s Exhibit 1 at ¶ 52],
103. Counseling at WSC is provided in an objective, nonjudgmental manner. The client’s decision is reviewed and explored. The counselor also reviews the client’s medical history, describes the abortion procedure, reviews birth control methods and goes over the informed consent form. Disclosure of medical risks and benefits is made as well. Also, post-abortion information, including what to do in the event of an emergency, is reviewed. [Court’s Exhibit 1 at ¶ 53].
104. For women who express ambivalence over their abortion decision, the WSC counselor will further explore the issues. If the counselor feels that the woman is not sure of her decision, it is suggested that she take some time to reevaluate her choice. Additional counseling is available to assist the woman to come to a decision with which she feels comfortable. [Court’s Exhibit 1 at H 54],
105. Counselors at WSC start at $8.50 per hour and are all part-time employees. [Court’s Exhibit 1-A at ¶ 126].
106. Of the approximately 3,350 abortions WSC performed in 1987, 410 (12.25%) were performed on minors. [Court's Exhibit 1 at 1144],
107. WSC encourages minors to attend with a parent. [Court’s Exhibit 1-A at ¶ 127].
108. All minors who have not informed a parent about their decision to have an abortion are asked to come to WSC for precounseling before the abortion appointment. This is done to give adolescents the opportunity to explore with a counselor their reasons for not involving their par
*1341
ents and affords them the time and opportunity to reevaluate that decision prior to the abortion. [Court’s Exhibit 1 at ¶ 48].
109. If a parent comes in with a minor to WSC, the minor is first seen alone by the counselor and then the parent joins the counseling session. [Court’s Exhibit 1-A at 11130].
110. WSC does not perform abortions due to medical emergencies defined by the Act or otherwise. [Court’s Exhibit 1-A at n 128].
111. If an emergency occurs when performing an abortion at WSC, a crash cart is used to stabilize the woman and then, in all probability, the woman would be transferred to a hospital based upon the physician’s or medical director’s decision. [Court’s Exhibit 1-A at 11129],
112. WSC maintains or collects internal data regarding complications that occur during the performance of abortions. [Court’s Exhibit 1-A at 11133].
(5) Allentown Women’s Center
113. AWC provides approximately 5,300 pregnancy tests and 4,000 first trimester abortions each year. [Court’s Exhibit 1 at 1156].
114. Abortions are performed at AWC three to five days a week, depending on patient need. [Court’s Exhibit 1 at ¶ 57].
115. The abortion procedure at AWC costs $280, with additional charges for services such as RhoGam shots for women more than twelve weeks pregnant, and general anesthesia. The fee includes personal counseling both before and after the abortion, the abortion procedure, laboratory testing, and medical supervision during the post-surgical period. [Court’s Exhibit 1 at ¶ 58].
116. For patients who receive medical assistance from the Commonwealth, AWC’s fee for abortion is $225. [Court’s Exhibit 1 at 11 59],
117. In the case of those medical assistance patients who require an abortion because of a life-threatening disease or because they were victims of rape or incest, AWC has received reimbursement from the state, so that no fee was charged directly to the patient. In 1987, AWC received less than $4,000 in medical assistance funds. [Court’s Exhibit 1 at ¶[ 60].
118. AWC’s patients come primarily from an 18-county area in northern Pennsylvania encompassing the counties of Le-high, Northampton, Carbon, Schuylkill, Lu-zerne, Lackawanna, Lebanon, Berks, Bucks, Pike, Chester, Lancaster, Susquehanna, Wayne, Monroe, Montgomery, Columbia and Wyoming. Many of these counties have no clinics or hospitals at which abortions are performed, AWC being the closest facility to which women can come. [Court’s Exhibit 1 at ¶ 61].
119. In most cases, appointments for counseling and abortions at AWC are made through AWC’s telephone counselors. A positive pregnancy test is required before an abortion will be scheduled. When a woman calls requesting an abortion, the telephone counselor collects personal data, menstrual history and medical history. If the caller is a minor, the telephone interview is more extended to assure that the minor fully understands what she must do and what the procedure will involve. [Court’s Exhibit 1 at ¶ 64].
120. When a telephone counselor makes an appointment, pre-abortion instructions are given to the woman. These instructions include what the woman must do and what she must bring with her on the day of the appointment. [Court’s Exhibit 1 at ¶ 65].
121. Any woman who calls AWC and expresses concern and confusion over an unwanted pregnancy is offered an opportunity to see a counselor to discuss her options. Resource information is available for options, including keeping the child, foster care and adoption. Information concerning prenatal care, welfare and support services is also available for those women who wish to carry their pregnancy to term. [Court’s Exhibit 1 at 11 66].
122. A nurse practitioner or physician’s assistant is available to examine all women
*1342
and, where necessary, provide a pregnancy test and blood work-up. In addition, all women are required to have an individual interview with a counselor on the day their abortion is scheduled. In this interview, the abortion procedure and other alternatives are explained to the woman. [Court’s Exhibit 1 at 11 67].
123. If the patient appears ambivalent about her decision to have an abortion, the AWC counselor will review options and suggest that the patient take more time to consider her decision before terminating the pregnancy. On occasion, the clinic has refused to permit an abortion if, after consultation, the counselor and the clinic supervisor are convinced of the woman’s extreme ambivalence, coercion, or that she is otherwise overly distraught. Sometimes, but infrequently, they will refer these women to outside counselors. [Court’s Exhibit 1 at 1168],
124. In 1987, 563 of AWC’s abortion patients were 17 or under. Of these, 3 were age 13; 32 were age 14; 64 were age 15; 178 were age 16; and 286 were age 17. [Court’s Exhibit 1 at H 62].
125. AWC encourages its minor patients to involve their parents in the abortion decision and to bring a parent or other supporting adult with them at the time of counseling and the procedure. Clinic counselors are routinely available to speak with a minor’s parents. When a minor refuses to inform her parents under any circumstances, AWC respects those wishes. [Court’s Exhibit 1 at 11 63].
126. When a parent does accompany a minor to the AWC clinic, a counselor will first meet privately with the minor. After assuring that the minor has reached her decision to have an abortion freely and without coercion, the counselor will give the minor the option to continue the counseling sessions jointly with her parent, or to be counselled separately. In either case, the counselor will describe the procedure and possible complications as well as answer any questions she or her parent may have. The minor is then asked to sign an informed consent form. [Court’s Exhibit 1 at U 69].
127. When a minor chooses not to have a parent involved, AWC counselors explore and encourage the involvement of a supporting adult. Counseling of a minor who has not informed her parents is more extensive and includes a discussion of why she has chosen not to involve her parents. [Court’s Exhibit 1 at U 70].
128. The options counseling provided on the day of the procedure at AWC is conducted by paraprofessional staff counselors who are selected on the basis of personal qualifications. Most of the counseling staff have bachelor’s degrees. Two are presently working on master’s degrees. All have backgrounds in various fields of human service. [Court’s Exhibit 1 at II71].
129. All of AWC’s counselors are required to begin their employment with at least a week of orientation. Instruction is provided by the Director, a nurse practitioner, the Patient Services Coordinator and other counseling staff. During the first several months of work, the new staff has frequent meetings either on an individual basis or as a group with administrative staff to reinforce correct integration of medical information and continued development of interviewing skills. [Court’s Exhibit 1 at ¶ 72],
130. All medical information is developed and presented under the supervision of a physician who is AWC’s medical director. The counseling protocols are developed under the supervision of the Patient Services Coordinator. [Court’s Exhibit 1 at 1173].
131. There is no minimum education requirement for AWC’s counselors. [Court’s Exhibit 1-A at 11146].
132. AWC does not accept state appropriated funds. [Court’s Exhibit 1-A at 11148],
133. AWC provides information to the National Abortion Federation regarding AWC’s complication rate. [Court’s Exhibit 1-A at H 149],
134. AWC, prior to 1988, advertised in the newspapers although it does not pres
*1343
ently advertise there. AWC does advertise in telephone directories. [Court’s Exhibit 1-A at H 150].
C.
Other Relevant Statistical Evidence.
135. The following table represents the number of abortions performed in Pennsylvania and reported to PaDOH over the past ten years:
NUMBER OF ABORTIONS YEAR PERFORMED
1989
20
51,341
1988 50,786
1987 51,360
1986 51,666
1985 53,465
1984 59,258
1983 59,288
1982 60,772
1981 62,701
1980 65,777
[Court’s Exhibit 1 at ¶ 76; Trial Testimony of Dr. Potrzebowski, Vol. Ill at 118;
see also Casey I,
686 F.Supp. at 1101 (¶ 95) ].
136. Of the 50,786 abortions performed in Pennsylvania in 1988, 47,548 (93.6%) were performed within the first three months of pregnancy. [Court’s Exhibit 1 at 1177]. Conversely, 3,238 (6.4%) were performed after the first three months of pregnancy.
137. Plaintiffs are unaware of any free standing abortion clinics in Pennsylvania that perform pregnancy termination procedures after the 18th week of gestation. [Court’s Exhibit 1-A at 11109].
138. Patients under the age of 18 accounted for 11.6%, or 5,888 of the abortions reported in Pennsylvania in 1988. [Court’s Exhibit 1 at 1178].
139. Of the 50,786 abortions performed in Pennsylvania and reported to PaDOH, 47,802 were performed on Pennsylvania residents. Residents of other states and territories accounted for 2,975 abortions, and residents of other countries accounted for 9. Of the 1988 abortion patients residing in Pennsylvania, 15,269 (30%) resided in Philadelphia; 7,337 (14%) resided in Allegheny County; 2,863 (6%) resided in Montgomery County; 2,270 (4%) resided in Delaware County; and 2,141 (4%) resided in Bucks County. [Court’s Exhibit 1 at 1179].
140.The following table represents the numbers of induced terminations of pregnancies performed on minors, as reported to PaDOH, in Pennsylvania in 1988 by age of woman:-
AGE (YEARS)NUMBER
11 or less 1
12 20
13 113
14 377
15 855
16 1,702
17 2,820
[Court’s Exhibit 1 at H 80].
141. During 1989, minor women received abortions at plaintiff-clinics as follows:
CLINIC AGE GROUP NUMBER
RHCC 14 years and under— 15-17 years— M 0 04
AWC 13 years old—
14 years old— 04
15 years old'— fc—
16 years old— H
17 years old— LO N
WSC 12 years old-
13 years old—
14 years old— H
15 years old— N
16 years old— ÍD
17 years old— H r-H
PPSP 12 years old—
13 years old— r-I
14 years old— 03
15 years old— OO
16 years old— ©Q H
17 years old— CO H
WHS 12 years old-
13 years old-H
14 years old-CO
15 years old— ' — I t — I
16 years old— N 04
17 years old— H CO
[Court’s Exhibit 1-A at 1182],
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142. Of all abortions performed in Pennsylvania in 1988 and reported to Pa-DOH, 50,256 involved a dilation, evacuation, and curettage procedure. Intrauterine prostaglandin instillation was the procedure for 41. One abortion procedure was performed by a hysterotomy procedure, and none was performed by a hysterectomy. [Court’s Exhibit 1 at 11 81].
143. According to the provisional statistical compilations of PaDOH, 391 pregnancy complications were reported in 1989. Of the 391 complications reported in 1989, 5 were caused by malignancy, 7 by endocer-vical polyps, 3 by rubella, 2 by hydatid moles, and 374 by other causes for which no further statistical breakdown presently exists. [Trial Testimony of Dr. Potrzebow-ski, Yol. Ill at 120].
144. The risk of death from an abortion is dependent upon numerous factors, which factors include length of gestation, the type of procedure used to perform the abortion, the medical condition of the patient, and the skill of the physician performing the abortion. [Court’s Exhibit 1-A at 1183],
145. From the standpoint of risks of complications and mortality, eight weeks gestation is the safest time, statistically, for the performance of an abortion. [Trial Testimony of Dr. Allen, Vol. I at 46, 71-72]. Beyond eight weeks gestation, the risk of complications (by approximately 30%) and mortality increase (by approximately 50%) with each additional week of gestation. [Trial Testimony of Dr. Allen, Yol. I at 45; Trial Testimony of Dr. Bowes, Vol. Ill at 54-56].
146. An abortion is twice as safe as a tonsillectomy and 100 times safer than an appendectomy. [Trial Testimony of Dr. Allen, Vol. I at 47]. The following table represents the risk of mortality from an abortion procedure, according to data complied by the Center for Disease Control:
GESTATIONAL AGE NUMBER OF DEATHS
(in weeks) (per 100,000)
8 or less .5
9 to 10 .8
11 to 12 1.1
13 to 15 1.5
16 to 20 7.8
over 20 3.6
[Trial Testimony of Dr. Bowes, Vol. Ill at 55-56].
D.
The Act.
147. On March 25, 1988, Act No. 31, amending the Pennsylvania Abortion Control Act of 1982, 18 Pa.C.S.A. §§ 3201-20, was enacted. Act 31 was scheduled to take effect thirty (30) days after enactment, on April 24, 1988. [Court’s Exhibit 1 at 11 74],
148. On November 17,1989, Act No. 64, further amending the Pennsylvania Abortion Control Act of 1982 was enacted. Act 64 was scheduled to take effect sixty (60) days after enactment, on January 16, 1990. [Court’s Exhibit 1 at H 75].
(1) Definition of Medical Emergency (Section 3203)
149. Section 3203 of the Act defines the term “medical emergency” as “[t]hat condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.” 18 Pa.Con.Stat. Ann. § 3203. The Act does not further define the terms “serious risk,” “substantial and irreversible impairment,” or “major bodily function.”
150. This definition applies to the following provisions of the Act containing medical emergency exceptions: section 3205 (informed consent); section 3206 (parental consent or judicial by-pass); section 3209 (spousal notification); section 3210 (determination of gestational age); and 3211 (performance of abortions after 24 weeks gestation). Penalties for violation of these provisions include suspension or revocation of the physician’s license or criminal conviction for a third degree felony or third degree misdemeanor.
151. The 1989 amendments to the Act did not change the definition of medical
*1345
emergency despite my ruling on plaintiffs’ motion for a preliminary injunction which invalidated this definition and enjoined all those sections of the Act which contained the term.
See Casey I,
686 F.Supp. at 1136-37 . Prior to the 1988 amendments, “medical emergency” was defined as “[tjhat condition which, on the basis of the physician’s best clinical judgment, so complicates a pregnancy as to necessitate the immediate abortion of same to avert the death of the mother or for which a 24-hour delay will create grave peril of immediate and irreversible loss of major bodily function.”
See
1982 Pa.Laws 476, 478, § 1.
152. According to the generally accepted definition of a medical emergency in emergency medicine, an emergency is any medical condition that requires intervention, both diagnostic and treatment, quickly. [Trial Testimony of Dr. Davidson, Vol. I at 14-15]. In emergency medicine, it is essential that doctors be flexible in their response to their patients. Every patient is different and each emergency condition presents the physician with a dynamic situation in which judgments must be made quickly and, if necessary, quickly altered or adjusted. [Trial Testimony of Dr. Davidson, Vol. I at 14, 21-22],
153. Pennsylvania’s Emergency Medical Services Act defines a medical emergency as “a combination of circumstances resulting in a need for immediate medical intervention.”
See
35 Pa.Stat.Ann. § 6923 (Pur-don 1990 Supp.).
154. The definition of medical emergency in the Act departs from the normal medical definition of an emergency and is inconsistent with that contained in Pennsylvania’s Emergency Medical Services Act. [Trial Testimony of Dr. Davidson, Vol. I at 15-17; Trial Testimony of Dr. Bolognese, Vol. I at 142; Preliminary Injunction Hearing Testimony of Dr. Dratman at 61]. Defendants’ expert, Dr. Bowes, agrees that the definition of medical emergency in the Act differs from other definitions commonly used in the medical profession. [Trial Testimony of Dr. Bowes, Vol. Ill at 81-82],
155. No other law infringes so heavily on a physician’s discretion to decide when he or she is faced with a medical emergency as the provisions of the Act. [Trial Testimony of Dr. Davidson, Vol. I at 15-16; Trial Testimony of Dr. Bowes, Vol. Ill at 81-82].
156. Under typical emergency conditions, the definition of “medical emergency” of the Act would cause the physician confusion regarding the proper treatment of the patient and hinder his or her ability to make a rapid response to the detriment of the health of their patient, or it would cause physicians to unknowingly violate the Act by acting in accordance with their medical training and professional judgment rather than conforming to the requirements of the Act. [Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
157. The Act’s narrow definition of medical emergency may require a physician to act in ways that do not protect or restore the health of his or her patient in instances where a delay in the abortion procedure will pose a risk to the patient’s health, but an immediate abortion may not be necessary to avert her death or to prevent a serious risk of the substantial and irreversible loss of a major bodily function. [Trial Testimony of Dr. Davidson, Vol I at 20-21].
158. The restrictive definition of medical emergency in the Act could exacerbate existing emergency situations. Or the definition could create emergencies because physicians fearful of civil or criminal sanctions under the Act may delay treatment of an emergency or hesitate to act in the best interests of his or her patient. [Trial Testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
159. The definition of medical emergency in the Act permits the physician to exercise his or her “good faith clinical judgment” in determining whether a medical emergency exists. However, this does not alter the fact that a “serious risk of substantial and irreversible impairment of major bodily function” must exist for a situation to constitute a medical emergency under the Act. Nor does it alter the fact that
*1346
the definition of medical emergency in the Act is inconsistent with the generally accepted definition of medical emergency in the medical profession. Further, the risk of loss of license or criminal liability hinders the physician’s ability to rely upon his or her good faith clinical judgment.
21
[Trial Testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I. at 143-44; Preliminary Injunction Hearing Testimony of Dr. Dratman at 63].
160. Under no other circumstances would a physician be required to delay treatment when presented with a patient with a risk, as opposed to a “serious risk,” of an impairment, as opposed to a “substantial and irreversible impairment,” of any bodily function, as opposed to a “major bodily function.” Such a requirement is contrary to generally accepted standards of emergency medical care, and interferes with a physician’s ability to act in accordance with his best medical judgment.
161. A patient’s entitlement to immediate medical care, under the Act, would depend upon the individual physician’s assessment of the severity of the condition and whether that physician considered the impairment to be: (1) substantial and irreversible and (2) to a major bodily function. Different interpretations of the Act could result in different patients, with similar or identical symptoms, in need of emergency medical cáre receiving different treatment. This difference of opinion is amply illustrated by the testimony of Dr. Bowes and Dr. Bolognese. Dr. Bowes, an obstetrician and gynecologist, did not include the uterus or other female reproductive organs within his definition of major bodily function. Dr. Bolognese, also an obstetrician and gynecologist, on the other hand, testified that he would include such organs within this definition. [Trial Testimony of Dr. Bolognese, Vol. I at 142; Trial Testimony of Dr. Bowes, Vol. Ill at 34-35].
162. Plaintiffs have presented three examples of how the definition of medical emergency contained in the Act may depart from standard medical practice in emergency situations.
163. Frequently pregnant women present themselves to hospital emergency rooms complaining of vaginal bleeding, lower abdominal pain, and progressive cervical dilation, which are the symptoms of an inevitable abortion. In a 40,060 visit a year emergency room, women arrive experiencing inevitable abortions once a week. Dr. Davidson personally treats women suffering from inevitable abortions two or three times a year. Further, this occurrence is sufficiently common to permit medical trainees at the Hospital of the Medical College of Pennsylvania to see an inevitable abortion in the emergency room anywhere between five and fifty times over the course of a three-year program. [Trial Testimony of Dr. Davidson, Vol. I at 22, 26-27],
164. It is common practice for an emergency room physician, when treating a woman with an inevitable abortion, to use an instrument to remove products of conception, including parts of the placenta or fetal parts, to alleviate the bleeding. This would constitute a partial abortion. [Trial Testimony of Dr. Davidson, Vol. I at 23, 26-27],
165. The appropriate and safest treatment for a patient experiencing an inevitable abortion is to empty the uterus immediately by dilating the cervix and evacuating the uterus. Failure to terminate the pregnancy immediately via dilation and curettage, or some other method, could expose the patient to increased risks to her health, including shock and the need for a blood transfusion, as well as continued pain and discomfort. However, with proper treatment, an inevitable abortion is generally not life threatening or likely to cause any permanent physical impairment. [Trial
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Testimony of Dr. Davidson, Yol. I at 23-25].
166. An inevitable abortion is a condition for which immediate medical treatment is required in the exercise of good medical judgment but does not fall within the Act’s definition of medical emergency. There is no medical reason to delay the performance of an abortion, when a woman is suffering from an inevitable abortion. Therefore, compliance with the Act would require a departure from standard of care presently existing in medical practice, and could jeopardize the health of pregnant women. [Trial Testimony of Dr. Davidson, Vol. I at 26-28, 34-35].
167. A premature ruptured membrane is another common medical condition which could be suffered by a pregnant woman both before and after the fetus reaches the stage of viability. Between six and ten percent of the births in the United States are premature. Of those premature births, twenty-five to thirty percent of them are preceded by a premature ruptured membrane. Ruptured membranes commonly occur in women of poorer personal health or women with poorer obstetrical care, as well as with drug users or women with poor personal hygiene. [Trial Testimony of Dr. Bolognese, Yol. I. at 148].
168. When an infection occurs after a rupture, the accepted course of treatment is to terminate the pregnancy immediately. Failure to terminate the pregnancy could expose the patient to increased risks to her health, including spread of the infection throughout her body, overwhelming septic infection, shock and disseminated intravas-cular coagulopathy. [Trial Testimony of Dr. Bolognese, Vol. I at 151-52].
169. For pregnancy of 24 gestational weeks or less, the likelihood of a successful outcome of the pregnancy ranges from extremely poor to impossible because of the absence of amniotic fluid which permits the development of the lungs. Under these circumstances, immediate termination of the pregnancy is usually recommended. [Trial Testimony of Dr. Bolognese, Vol. I at 149-50],
170. The standard method to terminate the pregnancy when infection occurs is a vaginal delivery which is induced by the administration of Pitocin. However, delay could cause the uterus to become infected. An infection in the uterus may hinder the physician’s ability to induce labor through the use of Pitocin. In these cases, a vaginal delivery must be utilized, which places the woman at greater risk. In some cases, the physician may have to remove the uterus. [Trial Testimony of Dr. Bolognese, Vol. I at 152-53],
171. Among the patients treated in an obstetrical practice, particularly high risk obstetrics, are pregnant women, including minors, who are experiencing complications known as preeclampsia (toxemia of pregnancy). Preeclampsia is a combination of symptoms related to an immunological disorder which tends to occur more frequently in first time pregnancies and younger patients. The recommended course of treatment is the induction of labor for a vaginal delivery. Delay could worsen maternal health and cause a loss of oxygen to the fetus. Eclampsia, a seizure disorder caused by edema or excess fluid, and HELLP Syndrome, an adult respiratory distress syndrome caused by fluid retention in the lungs, are possible further developments of preeclampsia. While a patient with preeclampsia is at risk, there is no immediate “serious risk of substantial and irreversible impairment of [a] major bodily function.” However, once the symptoms manifest themselves, there is no medical reason for delay. [Trial Testimony of Dr. Bolognese, Vol. I at 154-56; Preliminary Injunction Hearing Testimony of Dr. Drat-man at 59-61].
172. An example of how the definition of medical emergency in the Act may depart from medical practices is illustrated by the following hypothetical. A 16 year-old woman is 18 weeks pregnant. She is swollen; her blood pressure is elevated; her urine contains a considerable amount of protein; her reflexes are very brisk. She is diagnosed as having a clinical syndrome known as preeclampsia. The only treatment for this condition is to terminate the pregnancy. Under normal obstetrical prac
*1348
tice, her condition would be considered to pose a medical emergency. However, while eclampsia could cause seizures which could, in turn, lead to a concussion or other serious medical conditions, there is no clear risk of “substantial and irreversible impairment of major bodily function.” [Preliminary Injunction Hearing Testimony of Dr. Dratman at 59-61]. Therefore, this case would not fall within the definition of medical emergency contained in the Act.
173. If required to adhere to the definition of medical emergency contained in the Act, as opposed to the less restrictive definition used by physicians in other circumstances, a physician could delay in his or her treatment, namely the performance of an abortion, of a patient with a ruptured membrane or preeclampsia. Under these circumstances, preeclampsia and a ruptured membrane would not fall within the definition of medical emergency contained in section 3203, but would be considered an emergency warranting immediate treatment by the physician. Therefore, compliance with the Act would require a departure from standard of care presently existing in medical practice, and could ultimately jeopardize the health of the pregnant woman. [Trial Testimony of Dr. Davidson, Yol. I at 26-28, 34-35].
174. While Dr. Bowes testified that he was unaware of any condition where a patient would require an immediate abortion that would not fall within the Act’s definition of medical emergency, his testimony on the subject actually supports the opinions of Dr. Davidson and Dr. Bolognese. For example, he testified that a medical emergency within the meaning of the Act would exist when a woman is experiencing an inevitable abortion but only when “serious” hemorrhaging is occurring in the patient. In respect to preeclampsia, he stated that a medical emergency within the meaning of the Act would exist “in the cases in which [preeclampsia] becomes severe” and “the patient’s blood pressure is very high and other complications are occurring.” When discussing a ruptured membrane, he stated that this condition only becomes a medical emergency within the meaning of the Act when the patient develops a fever and the infection reaches the fetus. [Trial Testimony of Dr. Bowes, Vol. Ill at 37-42], The credible testimony of Dr. Davidson, Dr. Bolognese and Dr. Dratman establishes that, viewing the term with the ordinary meaning given to it in the profession, the Act would not consider any of the three aforementioned conditions an emergency until much later in the progression of the seriousness of the condition.
(2) Informed Consent and Twenty-Four Hour Waiting Period (Section 3205)
175.Section 3205(a) of the Act, as amended, reads, in pertinent part, as follows:
Except in cases of a medical emergency, consent to an abortion is voluntary and informed if and only if:
(1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
(1) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(ii) The probable gestational age of the unborn child at the time the abortion is to be performed.
(iii) The medical risks associated with carrying her child to term.
(2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician, social worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:
(i) The department
22
publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a
*1349
right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.
(ii) Medical Assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
(3) A copy of the printed materials has been provided to the pregnant woman if she chooses to view these materials.
(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.
18 Pa.Con.Stat.Ann. § 3205(a).
176. The 1989 amendments substantially alter the earlier 1988 amendments to subsections (a) and (c) of section 3205.
See
1988 Pa.Laws 262, 263-65, § 4. In Act 64, the legislature essentially reenacted most aspects of the 1982 version of the Act found unconstitutional in prior litigation. For example, the 1982 version of section 3205 required a 24-hour waiting period, required a doctor only to advise the woman of (1) the nature and risks of the proposed procedure, (2) the gestational age of the unborn child, and (3) the medical risks associated with carrying the child to term, and required someone to advise the woman of the availability of (1) medical assistance benefits, (2) a list of agencies which offer alternatives to abortion, (3) printed materials describing the fetus at various different stages, and (4) paternal liability to assist in the support of her child.
See
1982 Pa.Laws 476, 479-81, § 1.
177. Section 3208(a) of the Act, as amended, requires PaDOH to prepare, publish and update on an annual basis easily comprehensible printed materials which would comply with the informed consent requirements of section 3205(a). The printed information must be prepared in English, Spanish and Vietnamese.
See
18 Pa. Con.Stat.Ann. § 3208(a). All materials must be printed in typeface large enough to be clearly legible, 18 Pa.Con.Stat.Ann. § 3208(b), and available at no cost from PaDOH to any person, facility or hospital. 18 Pa.Con.Stat.Ann. § 3208(c).
178. The 1989 version of section 3208 is virtually identical to the version of this section as it existed in 1988. However, Act 64 eliminated the requirement that the materials concerning the availability of social service agencies contain the following statement:
There are many public and private .agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion.
See
1988 Pa.Laws 262, 268-69, § 4. The earlier version of section 3208 is similar to the existing version to the extent that it requires the preparation of “[geographically indexed materials designed to inform the woman” of agencies available that provide alternatives to abortion and “[m]ateri-als designed to inform the woman of the probable anatomical and physiological characteristics of the child at two-week gestational increments.”
See
1982 Pa.Laws 476, 483-84, § 1.
179. If all provisions of section 3205 were to go into effect, defendants intend to require the use of a notice form prepared by PaDOH by all abortion providers during the informed consent process. The notice reads as follows:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF HEALTH
NOTICES REQUIRED BY ABORTION CONTROL ACT
JULY, 1990
1. It is generally unlawful for any individual to coerce a woman to undergo [an] abortion.
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2. Any physician who performs an abortion upon a woman without according her a private medical consultation may be liable to her for damages in a civil action at law.
3. The father of a child is liable to assist in the support of that child, even in instances where the father has offered to pay for an abortion. The availability of support payments will depend, in part, on the father’s income. You may wish to consult a lawyer regarding the availability of support payments.
4. The law permits adoptive parents to pay costs of prenatal care, childbirth and neonatal care.
[Trial Testimony of Dr. Potrzebowski, Vol. Ill at 112-13, 136-37; Defendants’ Exhibit 61].
180.If all provisions of section 3205 were to go into effect, defendants intend to require the use of a form which reads as follows:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF HEALTH
MEDICAL ASSISTANCE BENEFITS FOR PRENATAL CARE, CHILDBIRTH AND NEONATAL CARE
JULY, 1990
You may or may not qualify for medical assistance benefits, depending on your income. For persons who qualify, the Medical Assistance Program will pay for doctor, clinic, hospital, and other related medical expenses so you can receive prenatal care, delivery services, and care for your newborn baby. You can apply for Medical Assistance benefits at your local County Assistance Office.
Under the Healthy New Beginnings Program you may be eligible for Medical Assistance because you are pregnant. A pregnant woman is allowed to have more income to qualify for this benefit and may receive prenatal care from certain providers while the formal application for assistance is being processed.
Your County Assistance Office can tell you which providers participate in the Medical Assistance Program and can answer your questions about other available benefits. County Assistance Offices are listed [on the following pages] for your information. The attached pamphlets on Medical Assistance and Healthy Beginnings also may be of assistance to you.
[Trial Testimony of Dr. Potrzebowski, Vol. Ill at 112,136-37; Defendants’ Exhibit 50].
181. In anticipation of the possibility that section 3205 will be permitted to go into effect, a “Directory of Social Service Organizations” to be provided to women seeking an abortion was prepared by Pa-DOH. For each county in Pennsylvania, the Directory provides a list of agencies that “provide a variety of services which may assist a woman through pregnancy, upon childbirth, and while the child is dependent.” Examples of services provided by these agencies are “counseling, pregnancy testing, medical care, legal and financial assistance, transportation, childbirth instruction, housing, job placement, continuing education and adoption information.” [Trial Testimony of Dr. Potrzebow-ski, Vol. Ill at 111; Defendants’ Exhibit 49 at 1].
182. The PaDOH-created-list of social service organizations does not include, particularly for Monroe County and Allegheny County, some agencies that provide services to pregnant women. The list also includes crisis pregnancy centers and other organizations which provide women with misinformation and inflammatory literature which increases pre-abortion anxiety. [Trial Testimony of Ms. Roselle, Vol. II at 87-89, 91-92, 112; Trial Testimony of Ms. Dillon, Vol. Ill at 159-60],
183. Nothing in the Act prohibits abortion providers that would be required to supply this list to abortion patients from recommending a patient avoid a particular agency on the list. Nor does anything in
*1351
the Act prohibit abortion providers from recommending a particular agency, whether on the list or not, to a patient in light of that patient’s individual needs.
184. Nothing in the record suggests that the Directory could not be supplemented by PaDOH to include those agencies omitted from the list.
185. The informed consent requirements of the Act represent a substantial departure from the ordinary medical requirements of informed consent. [Trial Testimony of Dr. Bowes, Vol. Ill at 71].
186. “Informed consent” as used in section 3205 has a medically and legally distinct meaning which is different than simple “consent.” [Trial Testimony of Dr. Grodin, Vol. I at 96-97].
187. As a general rule, informed consent requires communications between the doctor or counselor and patient to assure that the patient has made a treatment choice based upon knowledge of his or her condition, the benefits and risks of a particular treatment and its alternatives. In order to be informed, consent must be made voluntarily and competently. [Trial Testimony of Dr. Grodin, Vol. I at 96-97; Trial Testimony of Dr. Allen, Vol. I at 40-41].
188. Although the informed consent dialogue may be brief (the length of the dialogue will depend in a great part upon the complexity of the procedure contemplated), personal contact between the patient and the person rendering the informed consent is essential. The physician’s or counselor’s observation of the person’s demeanor and reactions to medical information provided is essential to permit the physician or counsel- or to determine whether the patient is competent to give informed consent and whether the patient fully understood the information imparted during the dialogue. Further, personal contact is necessary to determine whether the patient is under duress from extrinsic sources while providing informed consent. [Trial Testimony of Dr. Allen, Vol. I at 41; Trial Testimony of Dr. Grodin, Vol. I at 99-105], Even defendants’ expert witness testified that telephone informed consent could only be justified, if subsequent face-to-face contact occurs. [Trial Testimony of Dr. Bowes, Vol. Ill at 69].
189. A patient’s informed consent cannot be obtained through the use of a tape recorded message or printed materials. [Trial Testimony of Dr. Allen, Vol. I at 42; Trial Testimony of Dr. Grodin, Vol. I at 104],
a.
The Twenty-Four Hour Waiting Period.
190. ACOG has taken an official position in opposition to a mandatory 24-hour waiting period. [Trial Testimony of Dr. Allen, Vol. I at 47].
191. A very small percentage of women are ambivalent concerning whether to have an abortion when they come to a clinic. Arrangements for special counseling sessions are made for women demonstrating any ambivalence about her decision. [Trial Testimony of Dr. Allen, Vol. at 44-45; Trial Testimony of Ms. Roselle, Vol. II at 77].
192. If a patient is ambivalent about having an abortion and decides to postpone the procedure to have additional counseling, that will cause a delay in the performance of the abortion. [Court’s Exhibit 1-A at ¶ 98].
193. If it were to go into effect, the 24-hour waiting period of the Act will force every women seeking an abortion in Pennsylvania to make a minimum of two visits to an abortion provider. [Trial Testimony of Ms. Roselle, Vol. II at 80-81].
194. Two trips to the abortion provider would subject many women to the harassment and hostility of anti-abortion protestors demonstrating outside a clinic, such as WHS, on two separate occasions. [Trial Testimony of Dr. Allen, Vol. I at 43].
195. Because most of plaintiff-clinics and plaintiff-physicians do not perform abortions on a daily basis, the mandatory 24-hour waiting period will result in delays far in excess of 24 hours. For the majority of women in Pennsylvania, delays will range from 48 hours to two weeks. [Trial Testimony of Ms. Roselle, Vol. II at 81-82, 106],
*1352
196. In 1988, 58% of the women obtaining abortions in Pennsylvania resided in only five of the Commonwealth’s counties. Women who live in any of the other 62 counties must travel for at least one hour, and sometimes longer than three hours, to obtain an abortion from the
nearest
provider. [Trial Testimony of Ms. Roselle, Vol. II at 80; Verification of Ms. Roselle at ¶ 9; Verification of Ms. Stengle at H 10].
197. The mandatory 24-hour waiting period would force women to double their travel time or stay overnight at a location near the abortion facility. This will necessarily add either the costs of transportation or overnight lodging or both to the overall cost of her abortion. Additionally, many women may lose additional wages or other compensation as a result of the mandatory 24-hour delay, if forced to miss work on two separate occasions. Two trips to the abortion provider may cause the women to incur additional expenses for food and child care.
198. The costs incident to obtaining an abortion, excluding the actual cost of the procedure itself, will be greater if the 24-hour waiting period were to go into effect.
199. The mandatory 24-hour waiting period will be particularly burdensome to those women who have the least financial resources, such as the poor and the young, those women that travel long distances, such as women living in rural areas, and those women that have difficulty explaining their whereabouts, such as battered women, school age women, and working women without, sick leave.
200. In some cases, the delays caused by the 24-hour waiting period will push patients into the second trimester of their pregnancy substantially increasing the cost of the procedure itself and making the procedure more dangerous medically.
201. A delay of 24 hours will have a negative impact on both the physical and psychological health of some patients, as well as increase the risk of complications. [Trial Testimony of Dr. Allen, Vol. I at 88; Trial Testimony of Dr. Walker, Vol. II at 42-43],
202. While an abortion is still substantially safer than carrying a pregnancy to term, after the eighth week of the pregnancy, delay in the performance of the abortion increases the risk of death to the woman. [Trial Testimony of Dr. Allen, Vol. I at 45; Trial Testimony of Dr. Bowes, Vol. Ill at 54-56]. A substantial increase in the risk of death from an abortion procedure occurs when the pregnancy moves from the earlier stages of the second trimester to the middle portion of the second trimester (16 to 20 weeks of gestation). [Trial Testimony of Dr. Bowes, Vol. Ill at 56].
203. A mandatory 24-hour waiting period between the receipt of informed consent information and the performance of the abortion serves no legitimate medical interest. If a physician has concluded that any other type of obstetrical or gynecological procedure is medically necessary and has obtained the informed consent of the patient, there is simply no medical reason to delay performance of the procedure any longer. [Trial Testimony of Dr. Allen, Vol. I at 43; Trial Testimony of Dr. Grodin, Vol. I at 118-19; Trial Testimony of Dr. Bolog-nese, Vol. I at 145-46].
b.
Physician-Only Disclosure Requirements.
204. Prior to performing an abortion, trained counselors at plaintiff-clinics or plaintiff-physicians provide a patient with options counseling and obtain her informed consent to the procedure. [Trial Testimony of Dr. Allen, Vol. I at 44, 51; Trial Testimony of Ms. Roselle, Vol. II at 77-80, 113-15; Preliminary Injunction Hearing Testimony of Ms. Stengle at 26-27;
see also
Findings of Fact at W 26-27, 50, 86-88, 100-01, 128-30].
205. ACOG and the American Public Health Association have taken an official position in favor of the use of trained, qualified counselors to provide informed consent information concerning abortions. [Trial Testimony of Dr. Allen, Vol. I at 52].
206. In the last twenty years, the field of medicine has broadened and increased in complexity causing an increase in medical
*1353
specialization. Accordingly, the importance of mid-level professionals to the provision of excellent, low-cost and personalized health care has grown correspondingly. [Trial Testimony of Dr. Allen, Vol. I at 52],
207. In the field of obstetrics and gynecology, a significant portion of patient care is routine, non-emergent and can be provided as effectively by trained counselors as by licensed physicians. [Trial Testimony of Dr. Allen, Vol. I at 52-53], This is particularly true with respect to the performance of abortions.
208. Trained counselors, such as those employed or utilized on a volunteer basis by plaintiff-clinics and plaintiff-physicians, are fully capable, by virtue of their training and experience, to provide information to patients, to discuss the alternatives to abortion with the patient, and to secure the patient's informed consent to the abortion procedure. [Trial Testimony of Dr. Allen, Vol. I at 51; Trial Testimony of Ms. Ro-selle, Vol. II at 78-79; Preliminary Injunction Hearing Testimony of Ms. Stengle at 27],
209. None of the plaintiffs have physicians who perform abortions without the physician talking to the patient before the abortion procedure. [Court’s Exhibit 1-A at 11 88].
210. Requiring physicians to give information personally will leave the physician less time to provide the medical services which he or she, as a licensed physician, can provide. [Trial Testimony of Dr. Allen, Vol. I at 51].
211. In many instances, trained counselors, who are women, are more understanding than physicians and have more time to spend with patients. Further, it is more economical for the plaintiff-clinics to utilize trained counselors to provide options counseling and informed consent information to patients seeking an abortion. If the physician-only disclosure requirements become law, the added costs incurred by abortion providers will be imposed upon the women seeking abortions. [Trial Testimony of Dr. Allen, Vol. II at 51].
212. The requirement of section 3205 that physicians personally provide information necessary for informed consent will require extensive changes in the operating schedules of plaintiff-clinics and plaintiff-physicians. Physicians’ schedules will need to be expanded to include additional medical consultation and counseling sessions which would be required by the Act
23
or additional physicians will have to be hired to provide these additional services. It will be difficult to find available physicians to provide these additional services, because of the doctors’ already busy schedules. [Trial Testimony of Dr. Allen, Vol. I at 50-51]. WHS has found it more difficult to maintain an adequate supply of physicians since the amendments to the Act. [Trial Testimony of Dr. Allen, Vol. I at 87],
213. The state’s interest in ensuring that a woman’s consent to an abortion procedure is informed and unpressured is in no way furthered by mandating the identity of the person that must obtain the informed consent. The state’s interest is satisfied when a woman gives her informed consent to the procedure and receives any necessary counseling from a trained, qualified person, such as the counselors utilized by plaintiff-clinics.
c.
Content-Based Informed Consent.
214. Content-based informed consent is the supply of specific information to all patients regardless of the specific circumstances and needs of each individual patient. Content-based informed consent is contrary to the standard medical practice that informed consent be specifically tailored to the needs of the specific patient. [Trial Testimony of Dr. Grodin, Vol. I at 101-02, 107].
215. Medical practice requires that the informed consent dialogue between physician or counselor and patient be specifically tailored to the needs of the patient — rather than a “reasonable patient.” [Trial Testimony of Dr. Grodin, Vol. I at 107].
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216. The role of the physician or counselor during the informed consent dialogue is
not
to attempt to sway the patient’s decision in one way or another. [Trial Testimony of Dr. Allen; Trial Testimony of Dr. Grodin; Trial Testimony of Dr. Bolognese; Trial Testimony of Dr. Rue; Trial Testimony of Dr. Bowes]. Options counseling is separate and distinct from informed consent. [Trial Testimony of Dr. Grodin, Vol. I at 102],
217. Section 3205(d) may actively discourage the free flow of information during the informed consent dialogue by relieving any physician “who complies with the provisions” of section 3205 from civil liability for failure to obtain informed consent. This may provide some physicians with an incentive to limit their informed consent dialogue to the four corners of section 3205 in an effort to avoid civil liability. [Trial Testimony of Dr. Allen, Vol. I at 59-60; Trial Testimony of Dr. Grodin, Vol. I at 117-18],
218. For many women, the medical information required by section 3205 is over inclusive. For example, the Act requires a disclosure of medical risks of carrying a pregnancy to term. If a woman has decided that abortion is in her best interests, no legitimate purpose is served by informing her of maternal mortality statistics or that many women require caesarian sections at the time of delivery. [Trial Testimony of Dr. Allen, Vol. I at 55; Trial Testimony of Dr. Grodin, Vol. I at 105-06, 108-09], Similarly, a physician would not advise a woman who has decided to carry her pregnancy to term of the risks associated with an abortion procedure. [Trial Testimony of Dr. Allen, Vol. I at 54],
219. Prior to the scheduling of an appointment with an abortion provider, most women have already decided that an abortion is in their best interest. [Trial Testimony of Ms. Roselle, Vol. II at 109; Trial Testimony of Dr. Allen, Vol. I at 43-44]. For many women, the decision to have an abortion is a decision which they reach only after a good deal of careful thought, consultation with a family member or other trusted individual, or a medical provider. [Trial Testimony of Ms. Roselle].
220. In some cases, merely offering a woman the opportunity to read materials and examine pictures designed to inform her of the probable anatomical and physiological characteristics of the fetus at two week gestational increments and of the possibility of the unborn child’s survival, as well as a state created list of agencies that will assist her in carrying her pregnancy to term, will create undesirable and unnecessary anxiety, anguish and fear. [Trial Testimony of Dr. Grodin, Vol. I at 109-10; Trial Testimony of Ms. Roselle, Vol. II at 91-92, 112].
221. The mandated information required by sections 3205 and 3208 will create the impression in women that the Commonwealth disapproves of the woman’s decision. The information and material required by these sections is an attempt by the Commonwealth to alter a woman’s decision after she has determined that an abortion is in her best interest.
222. Once the decision to terminate the pregnancy is made by a woman, requiring physicians or counselors to provide the information required by section 3205 and to offer exposure of the literature required by section 3208 will undermine the physician’s or counselor’s ability to counsel a patient according to her individual needs and will force the physician or counselor to act in a manner inconsistent with their professional judgment and training. [Trial Testimony of Dr. Grodin, Vol. I at 109-10; Trial Testimony of Ms. Roselle, Vol. II at 84].
223. Informing women of the availability of medical assistance benefits or paternal support for the child has no legitimate medical justification. Such information may mislead or confuse the patient, and, in the vast majority of the cases, is plainly inappropriate given the circumstances of the individual patient. [Trial Testimony of Dr. Allen, Vol. I at 56; Trial Testimony of Dr. Grodin, Vol. I at 110-11; Trial Testimony of Ms. Roselle, Vol. II at 83-85, 90],
224. The circumstances under which medical assistance benefits or child support
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payments may, in reality, be available to a patient are well beyond the ordinary expertise of physicians or counselors. Advising a patient of the general availability of such benefits or payments may cause a woman to rely upon those statements and elect against an abortion only to later discover that the benefits or payments were unavailable or insufficient. [Trial Testimony of Dr. Allen, Vol. I at 56; Trial Testimony of Dr. Grodin, Vol. I at 110-11; Trial Testimony of Ms. Roselle, Vol. II at 90; Trial Testimony of Ms. Dillon, Vol. Ill at 154-55].
225. The requirements that a woman be advised that medical assistance benefits or child support payments may be available, as well as some of the other information required to be offered by section 3205, are poorly veiled attempts by the Commonwealth to disguise elements of discouragement of the abortion decision.
226. The requirement that a specific body of information be given in all cases, regardless of the individual needs of the patient, intrudes upon the discretion of the physician and the woman’s decision-making process. [Trial testimony of Dr. Grodin, Vol. I at 99-102],
227. Section 3205’s imposition of criminal penalties
24
upon doctors or counselors is a significant departure from existing informed consent law. In no other instance does an informed consent regulation provide for criminal penalties. [Trial Testimony of Dr. Allen, Vol. I at 61].
228. Fear of criminal sanctions by counselors or doctors will cause abortion providers to apply section 3205 with extreme caution. Some doctors may discontinue performing abortion procedures. [Trial testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I at 143-44],
(3) Parental Consent (Section 3206)
229. Section 3206 of the Act, as amended by Act 31, provides, in pertinent part, as follows:
Except in a medical emergency, or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been adjudged an incompetent ..., a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the
informed consent
both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the
informed consent
of her guardian.
See
18 Pa.Con.Stat.Ann. § 3206(a) (emphasis added).
230. This section of the Act was not altered by the 1989 amendments to the Act. However, this section is distinct from the version that existed in 1982 inasmuch as the earlier version only required the “consent” of the pregnant woman and one of her parents — as opposed to the “informed consent” of both individuals.
See
1982 Pa. Laws 476 , 481-83, § 1.
231. Inasmuch as this section of the Act requires the “informed consent” of the parent and the pregnant woman, my earlier findings pertaining to informed consent apply with equal force to this section. Therefore, they shall be incorporated by reference herein.
232. The Act does not separately define “informed” parental consent. The Act does not explicitly state that the parent must visit the clinic personally in order to give his or her informed parental consent.
233. ACOG has taken a position against forced parental notification by minors. [Trial Testimony of Dr. Allen, Vol. I at 65].
234. Clinics in Pennsylvania that offer abortion counseling services and abortion services encourage parental involvement in the minor’s decision to have an abortion whenever possible. [Verification of Ms. Roselle at 111110, 20; Preliminary Injunction Hearing Testimony of Ms. Stengle at 28; Verification of Ms. Stengle at ¶¶ 12, 19;
see
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also
Findings of Fact at HIT 29, 54-57, 80-81, 102, 106-09, 124-27].
235. There can be delays in performing an abortion on a minor who chooses to wait for her parent to be able to come to the clinic, which delay can exceed two weeks. [Court’s Exhibit 1-A at ¶ 100],
236. Most minors come to a clinic in the company of an adult, even if not a parent. [Trial Testimony of Dr. Allen, Vol. I at 64].
237. Approximately 54% of AWC’s minor patients have parental consent for abortions. In all cases, AWC requires that some adult is available to care for the minor patient. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 28-29],
238. Under Act 31, and in accordance with standard medical principles of informed consent, the plaintiff-clinics intend to require in-person consultation with the parent to assure the parent’s consent is informed. Plaintiff-clinics consider it necessary to require in-person parental informed consent to avoid the heightened risk of criminal and civil liabilities. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 11; Preliminary Injunction Hearing Testimony of Ms. Stengle at 30-31; Verification of Ms. Roselle at ¶ 21; Verification of Ms. Stengle at ¶ 25].
239. The plaintiff-clinics are unwilling to secure parental informed consent over the telephone, or by any means other than an in-person visit to the clinic. [Trial Testimony of Ms. Roselle, Vol. II at 81; Preliminary Injunction Hearing Testimony of Ms. Roselle at 10; Preliminary Injunction Hearing Testimony of Ms. Stengle; Verification of Ms. Roselle at 11 21].
240. An in-person visit by a parent for informed consent counseling may cause delays of several days or possibly weeks, even in cases where the parent is prepared to consent. [Verification of Ms. Stengle at ¶1¶ 24, 26, 28; Verification of Ms. Roselle at II24],
241. Delays in obtaining parental consent could be both dangerous and prohibitive since a substantial number of minors decide to have an abortion much later in their pregnancy. [Trial Testimony of Dr. Allen, Vol. I at 63; Preliminary Injunction Hearing Testimony of Ms. Roselle at 14; Verification of Ms. Roselle at ¶ 24; Verification of Ms. Stengle at II28].
242. Adolescents as a group are generally more reluctant to initiate contact with an unfamiliar group or organization. For this reason, a pregnant minor may delay the initial step of contacting the clinic until further into their pregnancies. [Verification of Ms. Roselle at ¶ 27; Verification of Ms. Stengle at 1133].
243. Adolescents as a group tend to deny their pregnancies out of guilt and postpone making any decisions as to what course of action is in their best interests. [Trial Testimony of Dr. Allen, Vol. I at 63; Verification of Ms. Stengle at 11 33].
244. Many adolescents are unaware of their pregnancy for weeks or months because of ignorance about their menstrual cycles, pregnancy and their own irregular menstrual cycles. [Trial Testimony of Dr. Allen at 63].
245. Further delays can arise from a minor’s fear and hesitation in divulging to her parents: first, she has been sexually active; second, that she is pregnant, and third, that she wishes to have an abortion. Because of the disruption and trauma associated with these disclosures, a minor will delay telling her parents that she is pregnant for days or even weeks. [Preliminary Injunction Hearing Testimony of Ms. Ro-selle at 14; Preliminary Injunction Hearing Testimony of Ms. Stengle at 29; Verification of Ms. Stengle at II30].
246. The clinics often find themselves having to expedite a minor’s testing, counseling and procedure because the minor has delayed going to the clinic until she is near or into the second trimester of her pregnancy. [Trial Testimony of Dr. Allen, Vol. I at 63; Trial Testimony of Ms. Roselle; Preliminary Injunction Hearing Testimony of Ms. Roselle at 15].
247. The additional costs, burdens and delays incurred by minors and her parents, if the parent is required to make an in-per
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son visit to the facility, could be extremely costly and burdensome.
248. More second trimester abortions are performed on minors in the United States than any other age group. [Verification of Ms. Stengle at 1133], Late abortions, particularly second trimester abortions, pose a greater risk to the woman’s health. [Trial Testimony of Dr. Allen, Vol. I at 46-47; Trial Testimony of Dr. Bowes, Vol. Ill at 55-58; Preliminary Injunction Hearing Testimony of Ms. Stengle at 37; Verification of Ms. Stengle at if 34]. Because teenagers have never experienced a prior dilation of the cervix, later abortions can be an especially dangerous procedure for them. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 37].
249. Many minors have great difficulty tolerating scheduling difficulties and delay. They tend to postpone the abortion decision because of fear and anxiety. Thus, once the decision has been made, they are likely to react negatively to scheduling delay and obstacles in obtaining an abortion. Some may lie about their age to attempt to avoid the requirements of section 3206; others may decide to carry their pregnancy to term; and some may resort to self-abortion. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 37-38].
250. In some cases, where parents are prepared to consent, he or she will be unable to come to the clinic for several days

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1797783. Public record. Not legal advice.