Planned Parenthood Association of Cincinnati, Inc. Norman E. Matthews, M.D. v. The City of Cincinnati & Stanley Broadnax, M.D.

*1401 DAVID A. NELSON, Circuit Judge,

dissenting.

I agree that the plaintiffs have standing, in a sense, to bring this lawsuit, but I do not believe they have shown the requisite likelihood of winning it. Assuming there is nothing about the case that precludes application of the normal standards for evaluating “a pre-enforcement facial challenge to a [municipal] ordinance on the ground that it is unconstitutionally vague” (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 491 , 102 S.Ct. 1186, 1189 , 25 L.Ed.2d 697 (1982)), the record, as I read it, does not establish a substantial probability that Cincinnati’s rather narrowly drawn ordinance will ultimately be held void for vagueness.

Just as the plaintiffs failed to sustain their burden of proving a strong likelihood of ultimate success on the merits, in my view, so also did they fail to show that any “injury” threatened by the mere existence of the ordinance is “irreparable,” or that the public interest would somehow be served by the issuance of a preliminary injunction before the Cincinnati Health Commissioner has determined whether aborted fetuses from the plaintiffs’ clinic are being disposed of in a manner that is sanitary and safe. Unless Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), requires that the plaintiffs’ application for a preliminary injunction be decided under rules far more lenient than those that govern the granting of preliminary injunctive relief under less controversial circumstances, it seems quite clear to me that the district court erred in granting the injunction.

The plaintiffs advanced several claims of unconstitutionality — including a claim that the ordinance violates the right to engage in interstate commerce — but the only one as to which the court finds a substantial likelihood of success is the claim that the ordinance is unconstitutional on its face because its “prohibitions are not clearly defined.” Cf. Grayned v. City of Rockford, 408 U.S. 104, 108 , 92 S.Ct. 2294, 2298 , 33 L.Ed.2d 222 (1972). In the words of the classic formulation of the “void for vagueness” principle, the terms of the ordinance are supposed to be “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application____” Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126,127 , 70 L.Ed. 322 (1926). Were it not for the fact that my colleagues have found the plaintiffs’ void for vagueness argument persuasive, I must say that I should not have thought the argument deserving of any very extensive discussion.

Section 749-1 of the Cincinnati Municipal Code, as enacted by § 1 of the ordinance, starts out by saying that abortion clinics “shall provide that the fetuses be interred, deposited in a vault or tomb, [or] cremated.” If it had stopped there, I take it that no one could seriously contend the ordinance was impermissibly vague. 1 The terms quoted do not become any less certain merely because the ordinance goes on to offer an additional option — allowing the fetuses to be “otherwise disposed of in a manner approved by the Commissioner of Health” — and I am at a loss to understand why inclusion of the additional option should make the ordinance void for vagueness if the ordinance would not be void for vagueness without it.

If an abortion clinic fails to provide that its fetuses be interred, entombed or incinerated, and fails to obtain the approval of the Commissioner of Health for disposal of the fetuses in some other manner, it takes no guesswork at all to know whether the clinic is violating the ordinance: it is. Obviously such a clinic might wish to utilize, or have its laboratory utilize, some sanitary method of disposal less costly than interment, entombment, or incineration, and obviously it is conceivable — if unlikely — that the clinic might find itself unable to resort to the *1402 alternate method because of an arbitrary-refusal by the Commissioner of Health to approve it. In that event, however, the fault would be in the Commissioner, not in the ordinance. In the absence of any showing that the plaintiffs have ever sought approval for an alternate method of disposal, I am certainly not prepared to assume that a proper application for approval would be denied other than “for sanitary reasons” or “to protect the public health and safety,” those being the standards set forth in both the preamble and the first of the code sections enacted by the ordinance. (The ordinance does not require, of course, that a disposal method approved by the Commission be “humane;” that is not one of the standards prescribed here.)

The plaintiffs have not disclosed what method of disposal is being used now by the pathology laboratory to which their fetuses are delivered, but I find it hard to believe that the Planned Parenthood Association of Cincinnati — whose national parent organization, as we know from the motion papers, has a “medical protocol” establishing standards for all laboratories used by its affiliates — would permit fetuses to be disposed of other than in “a sanitary manner consistent with public health and safety,” as contemplated by the ordinance. Surely Planned Parenthood would not suffer any human tissue to be disposed of in a manner that might contaminate water supplies, food supplies, or blood supplies. And if the fetuses are in fact being disposed of in a sanitary manner consistent with public health and safety, I do not see what legitimate objection there could be to asking the Health Commissioner to approve the method in question, whatever it may be. If by some chance the fetuses are not being disposed of in a sanitary manner, on the other hand, I know of no provision in the United States Constitution that could fairly be interpreted as prohibiting the city from requiring the plaintiffs to mend their ways.

It is true that the ordinance does not specifically name every method of disposal that the Commissioner of Health might be persuaded to approve, and perhaps, at bottom, the plaintiffs’ “void for vagueness” argument is really an argument that the ordinance represents an impermissible delegation of legislative authority. If so, it seems obvious that the argument must fail. The ordinance is not without standards to guide the exercise of the Health Commissioner’s discretion — the unnamed disposal methods must be “sanitary” and “consistent with public health and safety” — and even if we were dealing here with a federal statute, I do not see how we could strike it down as an unconstitutional delegation of authority without repudiating a large body of Supreme Court precedent 2 and, in the process, jeopardizing the statutory foundations of the whole modern welfare state.

The fact that the ordinance was adopted by the City Council of Cincinnati and not by the Congress of the United States makes the constitutionality of the ordinance even more readily apparent. According to the Court of Appeals for the Second Circuit, at least, “[t]he check on the authority of the executive branch of the federal government, flowing from the ‘delegation’ doctrine, derives from the separation of powers and is not enforceable against the states.” Friedman v. Beame, 558 F.2d 1107 , 1111 n. 8 (2d Cir.1977). The federal constitution provides that every state shall be guaranteed “a Republican Form of Government,” U.S. Const., Art. IV, Sec. 4, but this guarantee, the Supreme Court has said, does not make it mandatory that state governments observe the separation of powers doctrine. Sweezy v. New Hampshire, 354 U.S. 234 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957).

As far as Ohio law is concerned, a legislative enactment that confers discretion on *1403 an administrative officer “without establishing any standards for guidance” may be upheld when the discretion is to be exercised under “a police regulation for the protection of the public morals, health, safety or general welfare, and it is impossible or impracticable to provide such standards ____” Office of Consumers’ Counsel v. Public Utilities Commission, 58 Ohio St.2d 108 , 388 N.E.2d 1370, 1374 (1979) (quoting the syllabus of Matz v. J.L. Curtis Cartage Co., 132 Ohio St. 271 , 7 N.E.2d 220 (1937)) (emphasis supplied). The ordinance here under consideration is, by its terms, an ordinance for the protection of the public health and safety, and even if it did not expressly permit disposal of aborted fetuses by interment, entombment or cremation, it would still contain acceptable standards for the guidance of the Health Commissioner, because it would still require him to grant or withhold approval of any proposed disposal method on the basis of its “sanitary” character and its consistency with “public health and safety.” The notion that those standards are unconstitutionally vague makes no more sense to me than the notion that the plaintiffs cannot be expected to know whether they are in compliance with the ordinance when they allow their aborted fetuses to be disposed of in a manner that they know has not been approved by the Commissioner of Health and that does not consist of interment, entombment or incineration.

If for some reason the plaintiffs in the case at bar cannot tell whether the particular disposal method used by their laboratory, whatever that method happens to be, is a method explicitly approved by the ordinance, and if they cannot tell whether it is one of the methods that has otherwise been approved by the Commissioner of Health, a simple remedy is at hand; all they have to do is ask the Commissioner of Health. 3 If they know their disposal method has not yet been approved but they think it can be shown to be sanitary and free of hazard to the public health or safety, similarly, all they have to do is ask for approval.

In view of “the highly visible political controversies revolving around the morality of abortion,” see Margaret S. v. Edwards, 794 F.2d 994, 995 (5th Cir.1986), I can readily understand why, from the plaintiffs’ standpoint, a published federal court decision holding Cincinnati’s ordinance unconstitutional on its face might seem preferable to a letter from the Commissioner of Health approving the manner in which the plaintiffs’ fetuses are disposed of. It is harder for me to understand, however, why such a judicial decision should seem preferable from the standpoint of the courts. We do not normally allow ourselves to be used thus by people who might reasonably be thought to have a greater interest in scoring political points than in securing redress of any actual grievance; suitors who claim to be threatened with injury but who hold in their own hands the means of repairing or preventing the threatened injury are not usually accorded equitable relief in the courts of the United States.

I hasten to add that in saying this I do not intend to cast any aspersions on the sincerity and good will of the plaintiffs or their counsel; it is our responsibility, not theirs, to decide whether injunctive relief is appropriate, and they obviously have every right to request such relief. Neither do I wish to take issue with the assertion that one of the motives — possibly the principal motive — for the city council’s enactment of the ordinance was to make a political “statement,” veiled and indirect though it may have been, about the issue of abortion itself. The possibility that the ordinance may have been intended to make that kind of political point, however, does not suggest to me that we ought to relax the usual standards for the granting of a preliminary injunction. On the contrary, I think a proper respect for the values embodied in the First Amendment counsels that those standards be applied at least as rigorously in a *1404 case involving political expression as in any other case.

If, as the plaintiffs’ briefs seem to suggest, this is really a political expression case, the basic question it presents is, to my mind, more interesting — if not more difficult of resolution — than the question of whether the Cincinnati ordinance is void for vagueness. That question is whether an ordinance enacted for the primary purpose of making a political statement on the issue of abortion would impermissibly interfere with the right every newly-pregnant woman has had since 1973 — the right to obtain a first trimester abortion without having to risk going to jail for it.

It would be shutting our eyes to the obvious to ignore the fact that abortion is an issue on which many thoughtful people hold views that are as widely divergent as they are passionately held. The very Supreme Court decision that decriminalized first trimester abortions begins with an acknowledgment of the Court’s “awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that this subject inspires.” Roe v. Wade, 410 U.S. 113, 116 , 93 S.Ct. 705, 708 , 35 L.Ed.2d 147 (1973). Roe v. Wade neither ended the controversy nor foreclosed discussion of the merits of the decision itself. And such discussion can be healthy, I believe; without widespread public discussion of Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), for example, who can say that the public would have come to believe as firmly as it has that the Supreme Court reached the right result in Brown and the wrong result in Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896)?

I do not know whether, fifty years hence, the public will view Roe v. Wade in the light in which it now sees Brown or the light in which it now sees Plessy . I do know, however, that public discussion of the issue of abortion is not to be stilled by any court. The plaintiffs argue that “there is simply no governmental interest supporting the [Cincinnati ordinance] other than the prohibited one of trying to declare the fetus to be a separate human being,” but that dog will not hunt, in my opinion. Even if there were not an obvious public health interest in seeing that fetal remains are disposed of in a safe and sanitary manner, the City Council of Cincinnati would not be “prohibited” from endorsing the view that a human fetus is a separate human being, any more than the press could «be prohibited from reporting, as it did, that a Cincinnati councilman had expressed the hope that in adopting the fetal disposal ordinance the “council will acknowledge that the abortion procedure takes a human life.”

On its face, of course, the ordinance does not say what the councilman said he wanted the council to acknowledge, and neither does it require that its terms be brought to the attention of any woman who has had, or who might wish to obtain, an abortion. We are not called upon in this case to decide whether the Cincinnati City Council could require physicians who perform abortions to inform their clients of the options for disposing of the fetal remains (see Margaret S. v. Treen, 597 F.Supp. 636 (E.D.La.1984), aff 'd sub nom. Margaret S. v. Edwards, (5th Cir.1986), and Leigh v. Olson, 497 F.Supp. 1340 (D.N.D.1980)), for the Cincinnati ordinance requires no such thing. The clients are not required to exercise any choice with respect to the method by which their aborted fetuses are disposed of, they are not required to be told that they have a choice, and they are not required to be informed of anything else.

I would not suggest, of course, that none of plaintiffs’ clients knew that Cincinnati had adopted an ordinance regulating the disposal of fetal remains by abortion clinics and laboratories. The plaintiffs have shown that “[t]here was a great deal of press surrounding the passage of the fetus disposal ordinance,” and a pregnancy termination counselor at the plaintiffs’ clinic says in her affidavit that she has had “numerous counseling sessions in which the ordinance was discussed.” Many of the women counseled are said to have “expressed confusion and anger with respect to the ordinance,” and the plaintiffs rely on *1405 this testimony to support their contention that the city has somehow “interfered” with the rights secured by Roe v. Wade and its progeny. I do not doubt that such discussions have occurred, but unless we are to hold that Roe v. Wade repealed the First Amendment, I do not think they can make the ordinance unconstitutional.

If plaintiffs’ clients have learned of the ordinance, through the press or otherwise, and if plaintiffs’ clients have inferred that its enactment represents an oblique comment on a political issue as to which, as almost every literate American knows, public opinion is sharply divided, and if plaintiffs’ clients feel “confusion and anger” as a result, it seems to me that their confusion and anger are an unavoidable consequence of their living in a pluralistic society where the right to criticize the current orthodoxies — whether constitutionalized or not — is explicitly protected by the same Constitution that has been held implicitly to prohibit state and local governments from making it a crime to procure a first trimester abortion. For the Cincinnati City Council to adopt a resolution expressing open disapproval of Roe v. Wade and petitioning for a return of the Constitution to the status quo ante 1973 would probably anger many of the plaintiff’s clients even more than they were angered by adoption of the fetal disposal ordinance actually passed — but that would hardly make such a resolution unconstitutional. 4

The First Amendment says that Congress shall make no law “abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The federal courts, as I understand it, sit to protect these hard-won rights, and not to accomplish by judicial fiat that which Congress is expressly prohibited from doing. The question presented in Roe v. Wade was whether the states could make it a crime to procure an abortion. In holding that under certain circumstances they could not, the Supreme Court recognized a right of privacy which, while it is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” is undeniably a right that “[t]he Constitution does not explicitly mention — ” Roe, 410 U.S. at 153 and 152, 93 S.Ct. at 726 . What the outer limits of this unmentioned right may be I do not know; but where the right begins to conflict with rights that, are explicitly mentioned in the Constitution, surely the courts ought to be more solicitous of the latter than of the former. What the framers actually said must be given controlling weight in the event of a conflict with what we think they implied.

The point seems academic, however, because there is no such conflict here. The Cincinnati ordinance does not “interfere” in any meaningful sense with a woman’s decision on whether or not to terminate her pregnancy by abortion. Insofar as the ordinance may serve as an indirect reminder that there is a school of thought that equates such termination of a pregnancy with termination of a life, the ordinance may conceivably make for slightly more thoughtful decisions on whether to terminate or not to terminate. That ought not to trouble us unduly, I think, even in the probably unlikely event that the mere existence of the ordinance might be enough to move someone to choose birth over abortion. I cannot believe that a woman’s right to decide for herself whether or not to terminate her pregnancy by abortion means that a state may offer strong encouragement to choose abortion (e.g. by providing public funding for abortions), but may not do or say anything that might conceivably have any tendency to encourage the opposite choice. 5

*1406 To recapitulate, I do not believe that the Cincinnati ordinance improperly burdens the exercise of any constitutional right, I do not believe that the ordinance is the least bit vague, I do not believe that it represents an unconstitutional delegation, I do not believe that the plaintiffs have t shown any irreparable injury as a result of its enactment, I do not believe that the public interest was served by issuing a preliminary injunction before the Cincinnati Commissioner of Health was given an opportunity to say whether the method of fetal disposal used by the plaintiffs’ laboratory is safe and sanitary, and I do not believe that the plaintiffs could sustain their burden of proving the preliminary injunction harmless when they made no attempt to prove that their method of fetal disposal is safe. I think, in short, that the district court abused its discretion in granting the injunction, and I would have reversed the order.

. Judge Merritt seems to agree; his concurring opinion suggests that if the ordinance had stopped with the language quoted above, the ordinance would be void not for vagueness but for making abortions unnecessarily expensive. (Whether enforcement of the ordinance as passed would add appreciably to the cost of abortions performed by the plaintiffs in this case is something we have no way of knowing.)

. See, e.g., McKinley v. United States, 249 U.S. 397 , 39 S.Ct. 324 , 63 L.Ed. 668 (1919); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 , 48 S.Ct. 348 , 72 L.Ed. 624 (1928); Sunshine Anthracite Coal Co. v. Adkins 310 U.S. 381 , 60 S.Ct. 907 , 84 L.Ed. 1263 (1940); Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 , 64 S.Ct. 281 , 88 L.Ed. 333 (1944); Federal Communications Commission v. R.C.A. Communications, Inc., 346 U.S. 86 , 73 S.Ct. 998 , 97 L.Ed. 1470 (1953); Atlas Roofing Co. v. Occupational Safety & Health Review Commission, 430 U.S. 442 , 97 S.Ct. 1261 , 51 L.Ed.2d 464 (1977).

. See Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 49 , 86 S.Ct. 1254, 1263 , 16 L.Ed.2d 336 (1966), where Justice Potter Stewart, speaking for the Supreme Court, noted that those who professed to find a statutory definition unclear had been given "access to [an administrative authority] for a ruling to clarify the issue.”

. The concurring opinion suggests — and I certainly agree — that if the ordinance is void for vagueness, the First Amendment cannot save it. If the ordinance is not void for vagueness, however, the First Amendment suggests that we ought not accept the plaintiffs’ invitation to hold it void for explicitness.

. The district court evidently read Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 , 96 S.Ct. 2831 , 49 L.Ed.2d 788 (1976), as teaching that the state may not adopt any legislation that has the slightest tendency to encourage any choice other than abortion. 635 F.Supp. at 471. It will come as no surprise that I do not read either Danforth or City of Akron v. *1406 Akron Center for Reproductive Health, Inc., 462 U.S. 416 , 103 S.Ct. 2481 , 76 L.Ed,2d 687 (1983), as teaching anything of the sort.