holding that Planned Parenthood and its Medical Director had standing to assert the third-party rights of their patients because the patients' rights are "inextricably bound up with the activity the ... clinic desires to pursue and seemingly would not be asserted as effectively by the third parties who actually possess those rights"
How later courts described this case
- holding that Planned Parenthood and its Medical Director had standing to assert the third-party rights of their patients because the patients' rights are "inextricably bound up with the activity the ... clinic desires to pursue and seemingly would not be asserted as effectively by the third parties who actually possess those rights"
- holding that Planned Parenthood and its Medical Director had standing to assert third-party rights (of women) as well as their own rights
- holding that there was no substantial harm in preventing city from enforcing ordinance that was likely to be found unconstitutional, as the state has no valid interest in enforcing an unconstitutional ordinance
- holding that clinics providing abortion services have standing to assert the rights of their patients, as those rights are “ ‘inextricably bound up' with the activity the ... clinic desires to pursue”
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
concurring.
The issue in this case concerns the constitutionality of a city ordinance requiring that fetal remains from first trimester abortions either be (a) “interred, deposited in a vault or tomb, [or] cremated” or (b) “otherwise disposed of in a manner approved by the Commissioner of Health.” I agree with Judge Contie that the portion of the ordinance — “or otherwise disposed of in a manner approved by the Commissioner” —would be unconstitutionally vague standing on its own. Therefore, to uphold the ordinance, we must examine the specific fetal disposal methods prescribed by the other portion of the ordinance.
In Mahoning Women’s Center v. Hunter, 610 F.2d 456 , 460 (6th Cir.1979), this Court held invalid a city ordinance on the grounds that it undermined “the effective enjoyment of that [abortion] right by imposing heavy and unnecessary conditions.” The Cincinnati ordinance’s requirement that first trimester fetal remains be “interred, deposited in a vault or tomb, [or] cremated” unnecessarily burdens and adds to the cost of a woman’s right to an abortion during the first trimester. Therefore, under the reasoning of Mahoning, the specific means of disposal prescribed by the ordinance constitute an impermissible burden on a woman’s effective enjoyment of her constitutional right to an abortion. Accordingly, the vagueness of the ordinance is not cured by its more specific language.
Like the dissent, I value free speech as well as open and robust discussion of issues. Nonetheless, in my view, the dissent incorrectly frames the issue in this case as one concerning the First Amendment rights of the Cincinnati City Council to propound its views on abortion. This is not a case where a city councilman simply gives a speech regarding the abortion issue. We are required here to consider the end-product of the City Council’s deliberations, i.e., its ordinance, to determine whether it is constitutional. We know of no authority — and the dissent cites none— for the proposition that the ordinance itself is constitutionally protected speech. There is a significant distinction between speech and governmental regulation. Legislation regulating conduct, such as the ordinance at issue in this case, serves to limit the freedom of the individuals within the authority of the governmental entity. For the courts to defer to this sort of legislative action on free speech grounds would frustrate the judicial review which is necessary to protect constitutional rights generally.
Accordingly, I concur in the judgment of the Court.