noting that because “the plaintiff physicians, in their equal protection argument, were raising their own equal protection rights, not the due process rights of their patients,” rational basis review applied
How later courts described this case
- noting that because “the plaintiff physicians, in their equal protection argument, were raising their own equal protection rights, not the due process rights of their patients,” rational basis review applied
- also noting that the plaintiff physicians in that case were asserting only their own, not their patients’, equal protection rights
- invalidating detailed, specific regu- latory criteria governing the physical layout of abortion facilities, staffing requirements, and equipment requirements
- applying strict scrutiny notwithstanding general applicability of regulations
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring in part and dissenting in part.
The Michigan first trimester abortion regulations subject to review here were promulgated by the Michigan Department of Health. They are lengthy regulations. They consist of over 200 paragraphs. The following listing will give the reader a sense of the type of requirements they impose on first trimester abortion clinics:
The regulations govern who may apply for a license for a first trimester abortion clinic, Mich.Admin.Code R. 325.3811(3) (1976); the kind of forms necessary, id. R. 325.3811(2); the need for a written “disaster plan” in order to operate the clinic, id. R. 325.3822; the need for a “qualified physician” to be “present on the premises of a facility through the post operative period, id. R. 325.3825(2); the need for written rather than verbal orders from doctor to nurse in connection with operations and other medical matters, id. R. 325.3825(3); the need for pre-existing arrangements for emergency hospital services and the purchase of emergency transportation equipment or service, id. R. 325.3832; the need for comprehensive counseling services, id. R. 325.3833; “hot and cold beverages ... served in an appealing manner,” id. R. 325.3844; a “housekeeping manual” which includes procedures to be followed in connection with cleaning and maintenance, id. R. 325.3844; the need for X-ray and radiological services “with necessary staff within the facility,” id. R. 325.-3846; an elevator to the second floor, id. R. 325.3858; a locker room for employees, id. R. 325.3859(4); examination rooms with a minimum of 70 square feet together with “a hand wash lavatory within the room, equipped with a goose neck inlet and wrist, knee or foot controls,” id. R. 325.3866(1) & (9); operating rooms with a minimum of 120 square feet, id. R. 325.3866(4); “a supply of oxygen with oxygen masks,” id. R. 325.-3866(6); a system of electronic nurse call signals, id. R. 325.3866(8); “single use soap,” id. R. 325.3866(10); “a janitor’s closet with service sink,” id. R. 327.-3867(6); “comfortable furnished congregate rooms equipped with either reclining or lounge type chairs,” id. R. 325.-3868(6); six foot corridors, id. R. 325.-3868(8); rooms to be maintained at a temperature of at least 70 degrees fahr- *369 enheit with a maximum temperature of 78 degrees fahrenheit as measured three feet above floor level,” id. R. 325.3871(2); “minimum water pressure available to each plumbing fixture shall exceed 20 pounds per square inch,” id. R. 325.-3871(4); “hot water temperature” between the “range of 110 to 125 degrees fahrenheit,” id. R. 325.3872(6); “a central storage room,” id. R. 325.3877(2), etc.
In my view these regulations are oppressive as a whole. The regulations run up costs to the consumer of first trimester abortion services without any compelling state interest. They, therefore, undermine the effective enjoyment of a woman’s right to an abortion in clear violation of our decision in Mahoning Women’s Center v. Hunter, 610 F.2d 456 (6th Cir.1979), vacated on other grounds, 447 U.S. 918 , 100 S.Ct. 3006 , 65 L.Ed.2d 1110 (1980), and the Supreme Court’s recent holding in City of Akron v. Akron Center for Reproductive Health, Inc., — U.S.-, 103 S.Ct. 2481 , 76 L.Ed.2d 687 (1983). In Akron, the Court reaffirmed and added a gloss to Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), holding that the right of privacy encompassing a woman’s decision to terminate her pregnancy may be affected only by regulations which are “justified by important state health objectives” and “have no significant impact” on the exercise of this right. 103 S.Ct. at 2492-93 . Akron clearly prohibits state laws which significantly increase first trimester abortion costs without compelling justification. See also Planned Parenthood Association v. Ashcroft, 462 U.S. 476 , 103 S.Ct. 2517, 2524 , 76 L.Ed.2d 733 (1983) (quoting Akron and applying “no significant impact” test to requirement of pathology report). The Michigan regulations governing first trimester abortions are more numerous and oppressive and no more sensible than the similar regulations struck down by this Court in Mahoning. The legislative history of the Michigan regulations shows that they were pointed at and designed to govern first trimester abortion clinics, just as in Mahoning, where the regulations were “designed to leave in place in an abstract sense the woman’s autonomy and choice, her abstract ‘right’ to get an abortion during the first trimester, but ... remove[d] the effective enjoyment of that right by imposing heavy and unnecessary conditions on the performance of the operation.” Mahoning, 610 F.2d at 460.
In my judgment we should not temporize on this issue by remanding the case back for further proceedings in the District Court, proceedings that can lead to only one reasonable conclusion. The case has been in court for seven years. It has already been remanded to the District Court once. The regulations were adopted in Michigan as a comprehensive system governing first trimester abortions. They cannot reasonably be split up or severed. They have been drafted broadly to cover all “freestanding surgical outpatient facilities,” and thus have an impact on toe operations as well as abortions, nevertheless, the state cannot burden a woman’s constitutional right, or its effective enjoyment, under the guise of a broad regulation governing clinics generally any more than it can do so by a specific statute aimed solely at abortion clinics. Both have the same effect, and both are unconstitutional.
I would therefore hold the set of regulations as a whole unconstitutional as applied to clinics which perform first trimester abortions. Because the regulations are unconstitutional, as applied to places conducting first trimester abortions, whether they are applied only to “freestanding surgical out-patient facilities” or to physicians’ offices as well, I find it unnecessary to reach plaintiffs’ argument that the regulations violate the equal protection clause of the fourteenth amendment.