American College of Obstetricians & Gynecologists v. Thornburgh

SEITZ, Chief Judge,

dissenting in part.

I concur in most of the majority’s opinion, but I write separately for two reasons. The first is because in several instances the majority has struck down provisions of the Abortion Control Act that I believe are constitutional. Second, I am especially concerned about the two instances, involving subsection (a) of section 3210 and section 3211, where the majority has addressed issues which I believe are not raised by the plaintiffs on appeal. It is my view that when deciding the constitutionality of a state statute it is particularly important that a federal court refrain from reaching out for issues not before it. In order to make my positions clear, I will address separately each section of the act addressed by the majority, using the same headings as in the majority opinion.

Section 3203: Definitions

Abortion. I join the majority in construing the definition of “abortion” as incorporating the intent requirement of 18 Pa. Cons. Stat.Ann. § 302(b), (c).

*313 Physician. I join the majority in striking the definition of “physician” in the Abortion Control Act and applying the definition in the Statutory Construction Act, 1 Pa. Cons. Stat.Ann. § 1991.

Section 3205: Informed Consent

The Supreme Court’s decisions in the Akron and Ashcroft cases make it clear that the 24-hour waiting period and the physician-only counseling requirements are unconstitutional. Pennsylvania conceded the unconstitutionality of these provisions. I therefore join the majority opinion to the extent that it strikes down these portions of section 3205.

The majority goes further, however, and strikes down subsection (a)(2) of section 3205 as well. I believe that this subsection is constitutional. A similar requirement at issue in Akron was struck down only because the information had to be provided by a physician. The information itself, however, was “not objectionable.” Akron, 103 S.Ct. at 2501 n. 37. In Pennsylvania the information may be given by a non-physician counselor, so the objection the Supreme Court had to the Akron statute does not apply here. The majority’s reliance on footnote 37 of the Akron opinion to support its refusal to sever and sustain subsection (a)(2) is misplaced. The same is true of the language from the Akron opinion quoted by the majority suggesting that subsection (a)(2) is an attempt to sway the woman against having an abortion or compels the physician to give information irrelevant to her personal circumstances. None of the language quoted in the majority opinion is addressed to those provisions of the Akron statute resembling subsection (a)(2).

In short, I believe that the Akron decision does not compel the conclusion that subsection (a)(2) is unconstitutional. I therefore dissent from that part of the majority opinion striking down this subsection.

Section 3206: Parental Consent

I concur in the majority’s disposition of the attacks on this section.

Section 3207(b): Abortion Facilities, Reports

I join that part of the majority opinion rejecting pi lintiffs’ attack on section 3207. Section 320 5: Printed Information

The majority strikes down this section because it is "inextricably intertwined” with section 3205, which the majority strikes down in its entirety. The sole link between sections 3208 and 3205 is a cross reference in subsection (a)(2) of section 3205. It appears to me that section 3208 could stand on its own, and so I do not believe that a mere cross reference in section 3205 so taints section 3208 that it must fall at well. The majority does not discuss severance other than to say that there “is no certainty of any legislative intent that section 3208 should stand alone.” This approach clashes with the severability clause included in the Act, which provides that “if any provision of this act ... is held invalid ... the remainder of this act or chapter ... shall not be affected thereby.”

• I also dissent from this part of the majority opinion because I believe that subsection (a)(2) of section 3205 is constitutional. Since the reference to section 3208 is in a part of section 3205 that I would sustain, in my view section 3208 is not “inextricably intertwined” with an unconstitutional pn> vision.

Finally, I believe that section 3208, standing alone, is constitutional. The only provision which could be open to any dispute is subsection (b), which requires that the printed information describe “the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments.” Statutes of other jurisdictions requiring physicians to read descriptions of the unborn child to the mother prior to her consenting to an abortion have been struck down on the grounds that they interfere with the physician’s exercise of his best medical judgment, that they require presentations in such lurid detail that they cause the woman mental anguish, that they represent impermissible attempts to sway the woman against abortion, or that they require the physician to state accu *314 rately that which cannot be known with certainty. See, e.g., Akron, 103 S.Ct. at 2500-01; Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1021 (1st Cir.1981); Charles v. Carey, 627 F.2d 772, 784 (7th Cir.1980); Leigh v. Olson, 497 F.Supp. 1340, 1346 (D.N.D.1980); Margaret S. v. Edwards, 488 F.Supp. 181, 208-09 (E.D.La.1980).

The Pennsylvania statute avoids these problems because it simply provides the woman the right to view the printed materials if she so desires. There is no requirement that she view the materials or that the physician state the precise characteristics of the unborn child. There is no requirement that the materials go into detail likely to shock the mother. The statute specifically limits the printed materials to “scientifically accurate” information, which presumably would exclude such offensive detail as the unborn child’s sensitivity to pain. Akron, 103 S.Ct. at 2500 n. 34. Finally, nothing in the statute prevents the physician from advising that the woman not view the materials, or disputing or supplementing them with his own information. I conclude that subsection (b) of -section 3208 does not share the infirmities of the statutes struck down in the cases cited in the previous paragraph, and therefore I would sustain it.

Section 3209: Hospital-Only Requirement

The Supreme Court in Akron struck down as “a significant obstacle in the path of a woman seeking an abortion” a requirement that all abortions after the first trimester be performed in a hospital. 103 S.Ct. at 2495. Pennsylvania has conceded the unconstitutionality of section 3209, which imposes a similar requirement. I join the majority in striking down this section.

Section 3210: Abortion After Viability

Prohibition. I join that part of the majority opinion holding that the Supreme Court’s decision in the Simopoulos case compels us to construe subsection (a) of section 3210 as placing the burden of proving lack of medical necessity on the prosecution.

I do not join that part of the majority opinion rejecting the challenge to the definition of “maternal health.” My reading of the briefs does not disclose that plaintiffs have raised this issue on appeal.

Finally, I dissent from that part of the majority opinion discussing the chilling effect of the statute. The purpose of a criminal statute is to chill certain conduct. I believe that the only chilling which can concern us is that caused by some unconstitutional feature of the statute, such as vagueness or overbreadth. By incorporating an intent requirement into the definition of “abortion” found in section 3203, and by construing subsection (a) of section 3210 to place the burden of disproving medical necessity on the prosecution, we have addressed the specific sources of chilling identified by the plaintiffs.

The Supreme Court has made it clear that there is a permissible scope of state regulation of abortion. We can give no remedy when the physician, through his own overreacting, is chilled by regulations within this permissible scope. To the extent that the majority is suggesting that the mere existence of the Abortion Control Act, although constitutional, chills physicians, I believe that the problem is one which we may not remedy. To the extent that the majority is suggesting that other constitutional problems not addressed here may, if proved in later litigation, lead to a finding of impermissible chilling, I believe that we should await that future case. In either event I cannot join that part of the majority opinion addressing this issue.

“Significantly greater” risk. I join that part of the majority opinion holding subsection (b) of section 3210 unconstitutional.

Second physician for viable fetus. The majority strikes down subsection (c) on the ground that it contains no exception to the second-physician requirement in the case of a medical emergency. I dissent from this part of the majority opinion. I agree with the majority that the Ashcroft decision requires that in order to be constitutional, a second-physician requirement must include *315 an exception for emergencies. I believe, however, that such an exception is clearly expressed in subsection (a), which provides that “[it] shall be a complete defense to any charge brought against a physician for violating the requirements of this section ... that the abortion was necessary to preserve maternal life or health.” (emphasis added). The plain meaning of the word “section” is to refer to section 3210 as a whole, including subsections (a), (b) and (c). This conclusion is bolstered by the legislature’s use of the term “subsection” in subsections (b) and (c) when referring to matters limited to each of those subsections.

Had the legislature meant to limit the applicability of the medical emergency defense to subsection (a), it stands to reason that the legislature would have referred to “this subsection” rather than “this section.” The majority ignores the use of the different terms and holds that to apply the medical emergency exception in subsection (a) to the second-physician requirement of subsection (c) would “rewrite the statute.” However, since it is evident to me that the legislature was aware of the distinction between section and subsection, I believe that we should give effect to the plain wording of the medical emergency exception. I would hold that it applies to the second-physician requirement in subsection (c), and therefore I would sustain subsection (c).

Section 3211: Viability

I dissent from that part of the majority opinion striking down section 3211 because I do not believe that a challenge to this section is before us. Section 3211 is not mentioned by the plaintiffs in the complaint in the district court, and I cannot find a challenge to it in the briefs filed in this court.

Section 3214: Reporting

The majority strikes down subsections (a), (b), and (h) of section 3214. I dissent from this part of the majority opinion because I do not regard these reports as having a legally significant impact on the abortion decision. The majority first compares the requirements of section 3214 to those permitted by the Supreme Court in the Danforth case and finds Pennsylvania’s requirements much more onerous. The Missouri statute sustained in Danforth provided for “the compilation of relevant maternal health and life data” without specifying what this means. 428 U.S. at 87, 96 S.Ct. at 2849. Based on this broad description, in the Missouri statute I am unable to determine, as the majority apparently has, that the Missouri reporting requirements are more or less onerous than Pennsylvania’s. In any event, in my view most of what Pennsylvania asks for in subsections (a) and (h) is “relevant maternal health and life data.” I also believe that it meets the Danforth standard that the reports be “reasonably directed to the preservation of maternal health.” 428 U.S. at 80, 96 S.Ct. at 2846.

The majority next suggests that the Pennsylvania requirement is so burdensome as to constitute an unconstitutional restriction on access to abortion. I disagree. In my view, to constitute an unconstitutional restriction a reporting statute would have to compel the physician to go out of his way to collect data that he would not otherwise need to make an informed medical judgment. However, subsections (a) and (h) require the physician to report information which I believe most physicians would obtain as a matter of course, or which is easily obtained through simple questions or observation. I am not persuaded that requiring the physician to report information of this' sort imposes a legally significant burden.

The majority then states that the reporting requirements are unconstitutional because they will increase the costs of an abortion. The majority relies on paragraph 194 of the stipulation of facts, which states that the reporting requirements of section 3214 will cause the price of an abortion to increase by an unspecified amount. To me, this is an insufficient basis on which to conclude that a legally significant burden is imposed. The stipulation refers to section 3214 as a whole, not to the three subsections which are struck down. We have no *316 way of knowing what cost increase is attributable to these three subsections. 1

It is significant that we do not know what cost increase would be caused by the subsections under attack, because not every cost increase caused by regulation imposes a legally significant burden on abortion. For example, five Justices concluded in the Ashcroft case that a required pathologists’s examination that would add $19 to the cost of ah abortion did not impose a legally significant burden. There is no evidence that we are dealing with a cost increase even approaching that magnitude. The majority, has relieved the plaintiffs of their burden of proof by presuming that we are dealing with a cost increase significant enough to be unconstitutional. In my view doing this does not accord with the presumption of constitutionality favoring section 3214.

My belief, based on this record, that these subsections of section 3214 are not unconstitutional for the reasons stated by the majority compels me to reach the other ground advanced by the plaintiffs, that the reporting requirements violate the physician’s and patient’s privacy. I reject this contention. Subsections (e)(1) and (2) ensure that the identity of both the physician and the patient will not be' available to the public. In addition, the pertinent statutory provisions prohibit including the name of the patient in the reports required by subsections (a) and (h). Finally, because I believe that the reporting requirement in subsection (a) is constitutional, I believe that subsection (b) requiring the transmittal of the reports should be sustained. I therefore dissent.

Section 3215(e): Insurance

I join the majority in holding that Morgan Plant has standing to challenge subsection (e) of section 3215 and in striking down that subsection.

SUR PETITION FOR REHEARING

Before ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLO-VITER and BECKER, Circuit Judges.

The petition for rehearing filed by appel-lees-cross-appellants in the above-entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

Chief Judge ALDISERT and Circuit Judge GIBBONS dissent from the denial of the petition for rehearing.

Statement by Circuit Judge ADAMS Sur Denial of Petition for Rehearing.

Eleven years ago, the Supreme Court, in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), struck down a statute imposing severe criminal sanctions on physicians who performed abortions. That statute, in the eyes of the Court, impermis-sibly interfered with a woman’s decision to terminate her pregnancy, thus abridging the fundamental right of privacy that guarantees freedom of choice in marriage and family life. Today, in the decision we are reviewing on a petition for rehearing, the majority declares a Pennsylvania statute constitutionally infirm because, among other reasons, it requires that physicians supply printed material that women seeking abortions need read only if they so desire.

I agree with the majority that certain portions of the statute cannot be reconciled with recent Supreme Court decisions, a judgment that the State concedes. However, to strike down the statute practically in its entirety is to forget how tightly constitutional adjudication is bound to the facts of those cases in which new constitutional principles are announced or devel *317 oped. Such sweeping rejections of legislative enactments often result from a tendency to generalize the holdings of cases and to drive those generalizations to an extreme which, while perhaps exhibiting conceptual purity, belies the emptiness of logical constructs devoid of empirical content. All rights by their nature tend to declare themselves absolute, yet, in fact, they are all limited by competing rights as well as policy considerations.

The Supreme Court has identified two compelling state interests which, when pursued with scrupulous care, may justify regulations governing the exercise of the fundamental right to an abortion: the health of the pregnant woman seeking an abortion and the protection of fetuses capable of meaningful life. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 , 103 S.Ct. 2481, 2491-92 , 76 L.Ed.2d 687 (1983). The Commonwealth of Pennsylvania has chosen to protect those interests by, for instance, specifying some of the information that must be made available before a woman’s consent to an abortion is legally informed and by providing that a second physician, absent an emergency, shall attend the operation if a child might survive the abortion. Not all might agree with these measures, but a law is not void simply because it “may seem to the judges who pass upon it, excessive, unsuited to its ostensible end, or based on conceptions of morality with which they disagree.” Otis v. Parker, 187 U.S. 606, 608 , 23 S.Ct. 168, 169 , 47 L.Ed. 323 (1903) (Holmes, J.). The Constitution does not embody a particular set of ethical principles, and judges are under a special duty in passing on the legitimacy of legislation not to constitutionalize that which legally speaking is in the end only a personal preference.

I vote for rehearing in this matter not only for the reasons set forth by Judge Weis, but also because, as I view it, the case involves questions of more than usual importance whose resolution requires that competing,, legitimate interests be delicately balanced.

STATEMENT OF JUDGE WEIS SUR PETITION FOR REHEARING

As an intermediate appellate court, we are bound to apply the Supreme Court’s standards to the provisions of the Pennsylvania statute. However, I have serious reservations about the fashion in which the panel majority applied those standards to the many issues presented by this case. In the present procedural posture, however, I will discuss only a few of the questions that I believe warrant in banc consideration.

One major concern is the matter of “informed consent.” I confess that I find some incongruity in the Supreme Court’s exclusion of certain information that has a definite and direct bearing on whether the consent of the woman is truly knowledgeable. See Akron v. Akron Center for Reproductive Health, 462 U.S. 416 , 103 S.Ct. 2481 , 76 L.Ed.2d 687 (1983). Suppression of objective information highly pertinent to important decisions is indeed a disturbing and unwelcome concept in American law. In expanding that notion beyond the bounds set by the Supreme Court, the panel majority contravenes the teachings of Akron and. other cases. See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 67 , 96 S.Ct. 2831, 2840 , 49 L.Ed.2d 788 (1976) (“The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.”)

Although Akron disapproved state requirements that were “designed not to inform the woman’s consent but rather to persuade her to withhold it altogether,” the Court did not prohibit all mandatory disclosures. Found “not objectionable” were some of the items that are listed in the Pennsylvania statute. Compare Akron, 462 U.S. at — n. 37, 103 S.Ct. at 2501 n. 37 with 18 PA.CONS.STAT.ANN. § 3205.

Moreover, the panel majority has ignored significant differences between the information specified in the Akron and Pennsylvania enactments. The Akron ordinance *318 was overturned because it exhibited specific objectionable characteristics, none of which are present in the Pennsylvania statute. Here, the legislature has limited the required disclosure of risks to instances “when medically accurate,” 18 PA.CONS. STAT.ANN. § 3205(a)(l)(iii), thereby preserving the professional judgment of the physician. Nor can the Pennsylvania provision fairly be characterized as an attempt to misleadingly overstate the nature of abortion as a medical procedure.

In referring to the anatomical and physiological characteristics of the unborn child, the Pennsylvania Act provides only that materials on this subject be made available to the woman, who is free to choose whether she will view them. The Act states that the materials “shall be objective, nonjudgmental and designed to convey only accurate scientific information.” 18 PA.CONS.STAT.ANN. § 3208(a)(2). Thus, the statute does not admit of the overreaching found objectionable in Akron .

To the extent Pennsylvania requires that information be given on the gestational age of the fetus, adoption, and the availability of assistance during pregnancy and after childbirth, the statute incorporates only matters that the Court in Akron found “not objectionable.” Given these circumstances, I am at a loss to understand why the Pennsylvania informed consent provisions are held to be beyond permissible limits.

Applying the Akron yardstick to the Pennsylvania statute requires a review of the various provisions of the Pennsylvania statute independently, and on their own merit. That has not been done here; nor has there been persuasive analysis of why the severability provision of the Pennsylvania statute should not be honored.

The statute here also differs from the Akron ordinance in establishing civil as well as criminal consequences. In a sever-able clause, Pennsylvania provides that compliance with the required disclosures is a defense for the physician in a civil malpractice suit. See 18 PA.CONS.STAT. ANN. § 3205(d). A state’s imposition of criminal sanctions that effectively deny the exercise of a constitutional right is quite a different jurisprudential consideration than setting standards for civil damage liability. No recognition of that distinction is apparent in the majority’s approach. Cf. Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 88 , 96 S.Ct. 2831, 2849 , 49 L.Ed.2d 788 (1976) (Missouri statute provided that “[njothing in this act shall be construed to exempt any person, firm, or corporation from civil liability for medical malpractice for negligent acts or certification under this act.”).

A second major concern is the treatment of the parental consent provisions. See 18 PA.CONS.STAT.ANN. § 3206. Although this section is not rejected as facially unconstitutional, implementation is enjoined pending promulgation of rules by the state Supreme Court. I perceive no necessity to await such rules.

The Pennsylvania act is not less detailed in any constitutionally significant way than the parental consent provisions upheld by the Supreme Court in Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476 , 103 S.Ct. 2517 , 76 L.Ed.2d 733 (1983). Compare 462 U.S.-n. 4, 103 S.Ct. 2519 n. 4 with 18 PA.CONS.STAT.ANN. § 3206. The Pennsylvania statute provides the minor with a judicial alternative to parental consent and gives her the opportunity to demonstrate sufficient maturity to make the abortion decision. Absent that demonstration, the judicial officer is required to determine whether an abortion is in the woman’s best interests. These are the essential requirements enunciated by the Supreme Court. See Akron, 462 U.S. at —, 103 S.Ct. at 2497.

The rules, which are to be issued by Pennsylvania’s highest court “as may be necessary,” are to address the confidentiality and promptness of the judicial procedures. 18 PA.CONS.STAT.ANN. § 3206(h). The Act, however, already unambiguously provides that the “[cjourt proceedings ... shall be confidential and shall be given ... precedence over other pending *319 matters.” Id. § 3206(f). In highly specific language, the statute states that “in no case shall the court fail to rule within three business days of the date of application.” Id. In addition, there is the requirement of a “sealed record” and the availability of an “expedited confidential appeal” for minors who are denied an abortion.

The statute as written satisfies the constitutional principles we are to apply to the issue of parental consent. That the Pennsylvania legislature has authorized “such rules as may be necessary” to supplement the statutory provisions does not permit this court to delay the effective date once federal constitutional requirements have been met. Although I have doubts that a construction to avoid constitutional infirmities is necessary here, one is easily accomplished by the reasonable assumption “that a state court presented with a state statute specifically governing abortion consent procedures for pregnant minors will attempt to construe the statute consistently with constitutional requirements.” Akron , 462 U.S. at-, 103 S.Ct. at 2498.

Along with Judge Seitz, I fail to understand why the majority strikes down reporting provisions in section 3214 of the Pennsylvania Act when any cost increase attributable to these requirements is not known. That the majority may also have ruled on questions not raised by the parties causes concern that it has gone beyond the proper bonds for testing the validity of a state statute.

Perhaps most significant, in my opinion, is the panel’s general failure to give proper weight to the legislative decision, as expressed in the statute, to protect the life and health of the woman and the child subject to abortion. The state is not disinterested in the abortion decision but has an important and legitimate interest in protecting “the potentiality of human life.” Akron , 462 U.S. at —, 103 S.Ct. at 2491; Roe v. Wade, 410 U.S. 113, 162 , 93 S.Ct. 705, 731 , 35 L.Ed.2d 147 (1973). Although the woman is protected from “unduly burdensome interference with her freedom to decide” whether to abort, that right “implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” Maher v. Roe, 432 U.S. 464, 474 , 97 S.Ct. 2376, 2382 , 53 L.Ed.2d 484 (1977). “The Constitution does not compel a state to finetune its statutes so as to encourage or facilitate abortions.” H.L. v. Matheson, 450 U.S. 398, 413 , 101 S.Ct. 1164, 1173 , 67 L.Ed.2d 388 (1981).

Some appreciation of the magnitude of the state’s interest may be gleaned from the fact that in Pennsylvania alone there were 59,288 abortions in 1983. In the United States, 1,574,000 abortions were performed in 1982. By way of contrast, the number of deaths from automobile accidents in the United States in that same year, a state concern often referred to as “slaughter on the highways,” was 43,945.

Our function as a federal court is to determine whether a state statute violates the federal constitution. If a statute may be construed to be constitutional, then we must adopt that interpretation. “Courts may not substitute for the judgments of legislators their own understanding of the public welfare, but must instead concern themselves with the validity under the Constitution of the methods which the legislature has selected.” In re Gault, 387 U.S. 1, 71 , 87 S.Ct. 1428, 1466 , 18 L.Ed.2d 527 (1967) (Harlan, J. concurring).

The issues in this case, only a few of which I have discussed, are important and significant. Because they have farreach-ing effects and implicate the proper role of the states and the federal courts, the full court should review this case. Accordingly, I dissent from the order denying in banc consideration.

. In fact, it is not unreasonable to infer that much of the cost increase complained of in the stipulation would be caused by the pathologist’s exam required by subsection (c) of section 3214. Plaintiffs have conceded that this requirement is constitutional.