Planned Parenthood Association v. Fitzpatrick

CLIFFORD SCOTT GREEN, District Judge

(dissenting as to the decision on Informed Consent).

I dissent from the decision of the Court holding the informed consent provisions of the Abortion Control Act constitutional. I believe subsections (i) and (ii) of Section 2 and the informed consent criminal sanction provisions in Section 3 are unconstitutional because the provisions invade the privacy of the physician-patient relationship and violate the Fourteenth Amendment by regulating abortions more stringently than other medically indistinguishable procedures. The Act provides in relevant part :

Section 2. Definitions. As used in this act:

“Informed consent” means a written statement, voluntarily entered into by the person upon whom an abortion is to be performed, whereby she specifically consents thereto. Such consent shall be deemed to be an informed consent only if it affirmatively appears in the written statement signed by the person upon whom the abortion is to be performed that she has been advised (i) that there may be detrimental physical and psychological effects which are not forseeable, (ii) of possible alternatives to abortion, including childbirth and adoption, and (iii) of the medical procedures to be used. Such statement shall be signed by the physician or by a counselor authorized by him and shall also be made orally in readily understandable terms in so far as practicable.

Section 3. Consent to Abortion; Limitations on Public Officials.

(a) No abortion shall be performed upon any person in the absence of informed consent thereto by such per *584 son. Notwithstanding the foregoing provisions of this subsection, an abortion may be performed on any person if, in the medical judgment of a licensed physician, an abortion is immediately necessary to preserve the life of the woman and the woman is unable to give consent.

(e) Whoever performs an abortion without consent as required in subsections (a) and (b) of this section shall be guilty of a misdemeanor of the first degree.

The opinion of Judge Adams states that the informed consent requirements of the Act merely codify Pennsylvania informed consent requirements, citing as authority Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970). It is, of course, essential that the abortion procedure not be singled out for harsher regulation than other medical procedures. Doe v. Bolton, 410 U.S. 179, at 195-200 , 93 S.Ct. 739, at 749-51 , 35 L.Ed.2d 201 (1973).

I agree with Judge Adams that Dun-ham correctly sets forth the law of Pennsylvania in regard to informed consent; however, the requirements of subsections (i) and (ii) of Section 2 far exceed the informed consent requirements of Pennsylvania law as set forth in Dunham . The fact that the requirements of the Abortion Control Act are not merely a codification of Pennsylvania law is readily apparent when one contrasts the Pennsylvania law as set forth in Dun-ham with the requirements of the Act. Significantly, if the absolute disclosure requirement of the Act had been applied to the facts of Dunham an opposite holding would have been compelled.

The Third Circuit decided in Dunham , in an opinion by Judge Adams, that liability, as a matter of law, did not result from a failure of the surgeon to advise the patient that there was a percentage risk of death associated with the operation. In this regard, Judge Adams stated at 423 F.2d 946 :

Although this omission can be a serious one, in the setting of this case it does not require us to hold as a matter of law that the defendants failed to discharge their burden of disclosure. In Grunnagle [Gray v. Grunnagle, 423 Pa. 144 , 223 A.2d 663 ], the Court did not direct a verdict for the plaintiff although the record indicates that the defendant physician may have failed to inform the patient of a 10 to 15% risk that he would be worse after the operation; instead the Court said whether there was an informed consent was a question for the jury.

A reading of the Abortion Control Act clearly reveals that absolute liability civil and criminal, is imposed for the failure to give to the patient the statutorily required information. When this section is compared with the holding in Dunham , I believe it is erroneous to say that the Act merely codifies the Pennsylvania law on informed consent; clearly, it adds new, absolute liability requirements applicable only to the performance of an abortion.

Contrast, also, the holding in Dunham that consent is informed if it may be inferred from the evidence that the patient was aware of an alternative treatment even though the physician did not advise the patient of the alternative medical treatment to surgery. It is clear that under Pennsylvania law the awareness of the patient is the crucial issue. However, under the Abortion Control Act, the failure to give the required information results in liability even though the patient is clearly aware of the information and of all the alternatives. Obviously, a patient who consults a physician knows that the alternative to abortion is childbirth; indeed, it is her knowledge of this alternative which impels her to seek an abortion in the first place. Nevertheless, under the Abortion Control Act a doctor commits a crime if he fails to advise her in accordance with the Act of the alterna *585 tive of childbirth. Thus, patient awareness of the alternatives is a defense to all informed consent litigation except when it arises out of the performance of an abortion.

Furthermore, in Dunham the Court decided the law of Pennsylvania to be that “disclosure of alternative treatment means disclosure of alternatives for the particular patient and not a recital of medical casebook theory.” However, the Abortion Control Act requires the physician to recite legislative directives to his patient even if^fie does not believe them to be applicable to the particular patient. Such a requirement is not applicable to any other medical procedure.

In addition, the Act requires the doctor to advise all abortion patients of an alternative unconnected with medicine, i. e. adoption. I am aware of no other medical procedure where a physician is required, as a matter of informed consent, to advise a patient of a subject not included within his medical knowledge.

Finally, but most importantly, the physician is subject to criminal prosecution for failure to follow the provisions of the Act concerning informed consent. It is undisputed that only as to the performance of an abortion is failure to obtain an informed consent a crime in Pennsylvania.

Because of the aforesaid distinctions, applicable only when informed consent involves abortion, I believe the statutory provisions relating to informed consent, insofar as they require the information mandated in subsections (i) and (ii) are unconstitutional in that they single out for restriction the abortion procedure from all other similar surgical procedures and are unnecessary to protect the state’s important and legitimate interest in the health of the mother. The consent provisions of subsections (i) and (ii) are invalid because they legislatively mandate the elements that are to constitute an informed consent in the abortion field; yet the state has referred the Court to no other similar medical proeedure with comparable consent requirements. Moreover, the state has referred the Court to no other medical procedure which has a criminal penalty for failure to obtain an informed consent. No rational or legally cognizable basis for these distinctions has been offered. The extra layer of regulation which these provisions impose in the abortion area is unreasonably burdensome of the patients’ and physicians’ rights under the Fourteenth Amendment of the Constitution. Cf., Doe v. Bolton, supra, 410 U.S. at 195-200 , 93 S.Ct. at 749-51 ; Word v. Poelker, 495 F.2d 1349, at 1351-52 (8th Cir. 1974); Hodgson v. Anderson, 378 F.Supp. 1008, at 1018 (D.Minn.1974); and Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141, at 1152-53 (7th Cir. 1974).

Also, it is clear under Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), that it is only at the end of the first trimester that the state’s interest in maternal health becomes compelling and that the state may only regulate abortions after the first trimester if it can demonstrate that the regulation reasonably relates to the preservation and protection of maternal health. However, since the Act’s informed consent requirements of subsections (i) and (ii) of Section 2 apply to the first trimester, the Act is for this reason alone inconsistent with the Supreme Court’s decisions of Roe and Doe. Doe, supra, 410 U.S. at 195, 93 S.Ct. at 749.

Finally, the suggestion is made that a physician may legally satisfy subsections (i) and (ii) of Section 2, by first ritualistically following the requirements of the subsections and then negating the instructions by advising the patient he does not believe the required information is applicable to her condition. However, this process requires the physician to warn a patient of risks which he may not believe to exist and to inform the patient of alternatives, including adoption (clearly a non-medical alternative) which he may not believe to be available. Such a process is demeaning to the physician; confusing to the patient; and to some ex *586 tent, deprives the patient of the honest opinion of her physician, which is essential for a meaningful consultation. No other medical procedure is so burdened.

I do not agree that the Act may be interpreted as merely requiring the giving of the requisite information and then permitting the recall of the instruction as inappropriate to the pai'ticular patient. The text of the Act does not support such an interpretation. To the extent that a physician, faced with criminal sanctions, is required to rely on such a speculative interpretation, the criminal provisions would appear to be unconstitutionally vague.

For the reasons set forth above, I would hold subsections (i) and (ii) of Section 2’s definition of “informed consent”, Section 3(a) of the Act to the extent that it incorporates the requirements of subsections (i) and (ii), and Section 3(e) of the Act to the extent that it applies to the requirements of Section 3(a) and subsections (i) and (ii), to be inconsistent with the Supreme Court’s decisions in Roe and Doe , and therefore unconstitutional.