# Planned Parenthood League of Massachusetts v. Francis X. Bellotti > Court of Appeals for the First Circuit · April 15, 1981 · 641 F.2d 1006 URL: https://www.frixlaw.com/law-library/cases/9467618 ## Case - **Full name:** PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS Et Al., Appellants, v. Francis X. BELLOTTI Et Al., Appellees - **Court:** Court of Appeals for the First Circuit - **Decided:** April 15, 1981 - **Citations:** 641 F.2d 1006 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Coffin, Campbell, Bownes - **Cited by:** 317 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/9467618 ## How later opinions describe it (automated extraction) - noting that "'misapplication of the law to particular facts is an abuse of discretion.'" (quoting Charles v. Carey, 627 F.2d 772, 776 (7th _____ Cir. 1980) - noting that the district court denied appellants’ motion for a preliminary injunction and a stay of enforcement of the relevant statute pending appeal, but granted a ten day stay of enforcement to allow relief to be sought in the First Circuit ## Opinion text LEVIN H. CAMPBELL, Circuit Judge (dissenting in part). I agree in all respects, except I am unable to agree that the statutorily required information incorporated in the form concerning the stage of fetal development 1 unconstitutionally burdens the abortion decision. In contrast to the waiting period, which places a specific limitation upon a woman’s right to put her choice of abortion into effect, the placing of this information in the form involves no functional obstacle. So much, indeed, is conceded by my brothers. Each woman is free to implement her choice without delay and' without the need of anyone’s consent; she need only certify that she has received a sheet of paper distributed by the state which she is free to discard and her physician is free to supplement, or even dispute. What causes my brothers concern is that the paper contains information — conceded to be “relatively brief and dispassionate” — which is thought to be medically immaterial and intrusive. I can, however, find no acceptable theory of constitutional analysis which makes the requirement of providing this factual information a violation of the Constitution. If we assume, as the court does, and as I do, that the state is free to require the doctor to deliver objective information relative to the nature and risks of the abortion procedure which a patient might like to have, I do not see how we can exclude this purely factual information about the fetus. My brethren view it as medically irrelevant, and I suppose they are right if one thinks wholly in terms of the risks to the mother; but to say the fetus is irrelevant to an abortion is like saying the tonsils are irrelevant to a tonsillectomy. Certainly to some patients the stage of fetal development will be of perfectly rational interest; it tells the potential mother something about the embryo being aborted. Whether the information will be disheartening or encouraging to the patient is speculative: the description provided may encourage abortion, in that it demonstrates how little developed the fetus is at this stage; or perhaps it will produce a different reaction. But I do not understand by what canon of logic we can say that this information — all of it undisputed and factual, without a single emotional “buzz word” —is so irrelevant as to be constitutionally prohibited. I realize that the physician is required by law to deliver the form; the physician becomes to that degree a coerced messenger. I realize also that the patient is, in some sense, a captive audience. 2 If the form contained partisan statements of opinion, *1029 where the state was compelling the delivery and receipt of the particular point of view, a first amendment or due process clause violation might be indicated. The unwilling physician-messenger’s own first amendment rights might be implicated. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943). But I do not see how this particular information can be placed in such a category. I realize my brothers wish to draw a line excluding information which tends to get the state embroiled in the ethical and religious abortion controversy. I can understand their reason for wishing to do so. However, I think this better done by drawing the line further along the road, where the distinction between propaganda and medical fact is more apparent. While any reference to the fetus may seem to be getting uncomfortably close to the ethical and religious phases of the matter, I simply do not see how one can fairly say that providing the patient with a dispassionate description of the stage of the fetus to be aborted is so unrelated to the state’s interests in the general health and welfare as to warrant mandatory exclusion on constitutional grounds. I would add that my brothers’ tight line-drawing could have the peculiar effect of forbidding the state from including any factual information going to the broader social and public health aspects of an abortion. Thus it would seemingly be barred from including statistical information, assuming there were such, showing that infants born to mothers under fifteen had a much higher incidence of emotional disturbance and neglect. I do not think the Constitution forbids the transmission of information of that sort (assuming it were factual) any more than it would the present information. . The information in question on the form to be used is as follows: “DEVELOPMENT OF THE EMBRYO The first trimester is defined as approximately the first twelve weeks of pregnancy. In the first few days after conception, the fertilized egg divides into a mass of cells as it travels from the Fallopian tubes into the uterus (womb). It then implants in the lining of the uterus. The inner cell mass becomes the embryo while the outer cell mass ultimately develops into the placenta (afterbirth). Four weeks after conception, the embryo is a little less than approximately half an inch in length and the cells are continuing to multiply and develop differently. At eight weeks of development, the embryo is about 1 inch in length. Main organ systems are formed and some external human-like physical characteristics are recognizable. This differentation continues through the twelfth week by which time the embryo is approximately 2‘/2 inches in length crown to rump.” . See Public Utilities Commission v. Pollak, 343 U.S. 451 , 72 S.Ct. 813 , 96 L.Ed. 1068 (1952) (regulated transit company not prohibited by first amendment from playing radio programs on street cars, despite captive audience status *1029 of passengers, where programs not used for objectionable propaganda and where the utilities commission found, on the basis of substantial evidence, that programs were compatible with convenience, comfort, and safety of majority of passengers); Lehman v. City of Shaker Heights, 418 U.S. 298, 302 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (1973) (city transit service may refuse to accept political advertising because transit passengers are captive audience); CBS v. DNC, 412 U.S. 94, 127 , 93 S.Ct. 2080, 2098 , 36 L.Ed.2d 772 (1972) (FCC entitled to take into account the “captive audience” nature of television viewers in upholding broadcaster’s policy of refusing political advertising). Compare Consolidated Edison v. Public Service Commission, 447 U.S. 530, 543 , 100 S.Ct. 2326, 2336-2337 , 65 L.Ed.2d 319 (1980) (restriction on utility company’s bill inserts discussing controversial issues not justified as protecting captive audience); Givhan v. Western Line Cons. Sch. Dist., 439 U.S. 410, 415 , 99 S.Ct. 693, 696 , 58 L.Ed.2d 619 (1979) (principal was not “unwilling recipient” of teacher’s views, so that “captive audience” rationale did not prevent first amendment protection for her speech). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467618. Public record. Not legal advice.