Planned Parenthood Association v. Fitzpatrick

ADAMS, Circuit Judge

(concurring and dissenting).

The court is here obliged to card the tangled fibers of protected private rights and legitimate state interests in the troubling and unclear area of abortion regulation. Powerful responses are evoked by the subject of abortion and it is open to some doubt whether the courts are the institution best equipped to resolve the complex societal interests that exist in the abortion field. Nonetheless, the courts have been thrust into that role and it is incumbent on us to adjudicate the constitutional questions presented here.

The Supreme Court in Roe 1 and Doe 2 has decreed that the state may not prohibit the exercise of a woman’s fundamental right to obtain an abortion—at least in the first two trimesters. A new generation of problems was spawned in the wake of those two decisions, respecting the degree to which authority to regulate abortions, or to affect them, is retained by the state. In defending the Abortion Control Act of 1974, Pennsylvania takes the position that broad power continues to be vested in the state to monitor abortion practices. By contrast, plaintiffs maintain that Roe and Doe and their implications leave the state a more limited authority to legislate than Pennsylvania has sought to exercise.

Roe and Doe now form part of the backdrop of our law, and no purpose would be served here by discussing the arguments that have been laid to rest by those decisions. In turning to deal with the fresh problems that have arisen, we must be mindful that the acts of a popularly chosen legislature are not to be lightly invalidated—surely, not on the basis of what a court or a particular judge deems wise or desirable from the standpoint of public policy. Furthermore, we should be keenly aware that Roe and Doe were innovative decisions, and the subtlety of the ultimate fabric of law affecting abortions is perhaps not yet discernible. I am, therefore, reluctant to leap ahead too quickly to interdict states from legislating respecting abortions when, in the accumulative informed judgment of the legislators, such enactments are necessary to serve legitimate interests of the populace.

It is with such admonitions in mind that I am unable to join in the holding reached by Judge Green in the following respects: I would not conclude that the informed consent provision defined in Section 2 and required by Section 3 is unconstitutional; nor would I find unconstitutional the requirement that consent for a minor’s abortion must be obtained from a parent or person in loco parentis. And although in accord with the ultimate result reached by the majority on the question of viability, it *587 seems fitting to express my somewhat differing views on that issue.

1. Informed Consent

Indisputably, informed consent would be necessary under Pennsylvania law before any medical procedure—including an abortion—may legally be performed. 3 To a considerable extent, the legislature has codified the informed consent requirement in section 3 of the Act and mandates that in the abortion field it be in writing. 4

Plaintiffs assert that this requirement of written consent chills the right to choose to abort, and improperly interferes with the woman-physician relationship by interposing a state-ordained litany into the doctor’s professional judgment regarding the information he or she finds it appropriate to tell a patient. 5

No evidence has been adduced that persuades me that the information a doctor is requested to give under the statute would measurably chill the exercise of the abortion option. Therefore, the rational relationship test seems applicable, 6 and the burden lies with the plaintiffs to demonstrate the invalidity of this section.

Employing that test, several reasonable bases appear to justify the required informed-consent provision. There are certain practical circumstances pertaining to the delivery of abortion services that might well generate substantial concerns on the part of the legislature. Accordingly, contrary to the assertions of the plaintiffs, separate attention addressed to abortion care does not appear per se unconstitutional under the Equal Protection Clause. 7 Rather, the separate treatment is suggested not by the choice of abortion, but by the realities of the system that provides abortions.

Abortions are frequently obtained in a specialized clinic or hospital department where a woman is removed from familiar medical surroundings. Most frequently the abortion is not done by a woman’s regular doctor. The procedures, perhaps routine for those performing them, will probably be totally unlike any others theretofore undergone by the patient. In addition, as the record in this case indicates, the woman may well be experiencing considerable emotional anxiety.

Generally, the abortion decision is somewhat hurriedly arrived at and executed. It, in many cases, may be attended by a reticence that works to close off ordinary avenues of information to the patient either from friends or from family members.

The state under such circumstances might understandably wish to be certain that each woman be given the facts regarding her condition, her options, the abortion procedure to be performed, and the possible future consequences of the choice she makes. Like the licensing of facilities, the regulations, and the record-keeping provisions, the informed consent requirement may well be an attempt by the state to monitor the quality of medical care received by women procuring abortions.

To the extent the requisite information respecting the alternatives to abortion are inappropriate in any particular case, the physician is not prohibited *588 from so indicating to the patient en passant. A doctor may conclude that, in his or her professional judgment, it is unlikely that a patient will experience “detrimental physical and psychological effects which are not foreseeable.” 8 In that event, while telling a patient that the law requires such advice, the Act does not foreclose the physician from putting this statement in perspective for a given patient by reassurances, or by comparing the risks of other options. Proper counseling, it would appear, could incorporate the information demanded by the state and tailor the comprehensive advice to the individual case.

Whether such a provision is prudent or imprudent or whether it is wise or unwise to provide a penalty in the nature of a misdemeanor when the physician does not supply the advice in question, is not a matter for the court to decide. Rather, it is within our province to say only whether the requisite consent is in no way related to legitimate state interests. This I am unable to do.

2. Consent by Parent or Person In Loco Parentis for Abortion on a Minor

Plaintiffs contend that the state by requiring adult consent to the performance of an abortion on an unemancipated pregnant female under the age of 18 forges an unconstitutional veto power over a young woman’s fundamental right to abort. In many cases the effect of requiring consent, the argument continues, will be to deny the right totally, at the whim of a dissident parent.

The provision is defended on the twofold basis that it serves a substantial state interest in the welfare of the minor regarding the serious decision to abort, and that it assures a parental role in the abortion choice of a child. Although I harbor some reservations regarding the latter justification for the requirement, under the statutory reading that appears reasonable to me I find the rationale adequate to sustain the restriction.

No explicit demarcation between adult and child is written in the Constitution, and it is by now clear that minors in many circumstances are vested with constitutional rights, though frequently they are not coterminus with the rights of adults. For example, Tinker v. Des Moines School District 9 established that students enjoy First Amendment rights of expression. In re Gault 10 held that fundamental due process rights appropriate to criminal proceedings must be applied in the quasi-criminal setting of a minor’s delinquency hearing. And other Supreme Court decisions have clarified additional constitutional rights of minors. 11

There are at least two legitimate interests that a state may promote in enactments respecting minors. Legislation may be upheld either as an expression by the body politic for the protection of children or in order to secure claims of parental control over the care and upbringing of children. 12

Acting to further these ends, the state is empowered to legislate and, in some cases, to circumscribe the conduct of minors to a greater extent than it can legislate for adults. 13 Where the circumstances so require, the expression of protected rights asserted on behalf *589 of minors may be curtailed or even prohibited. 14

Beyond the freedom to determine whether and when to have a family, parents generally have broad power to make decisions affecting the schooling and religious upbringing of their offspring. 15 On occasion, the interests of the state in the minor and that of the individual parent have been at odds, and in such event the interests of both parties must then be weighed. 16

There is no clash in the present ease between the state and parent, or between the state and minor. Rather, the state seems to take a rather neutral attitude toward abortions for minors, neither prohibiting them altogether nor emancipating the minor to make the grave abortion decision without the concurrence of a responsible adult.

Plaintiffs here, on behalf of the minors, assert a right to abort as freely as an adult. While there is no Supreme Court precedent governing the result when a minor independently claims fundamental rights consented to by neither parents nor the state, it does appear from the eases that, between them, the state and parent may exercise considerable control over a minor’s activities. Faced with a challenge to a state statute prohibiting minors from selling publications on the streets, the Supreme Court in Prince v. Massachusetts 17 upheld the statute against claims bottomed on both the First Amendment freedom of religion and on parental due process. Under Prince, the state would appear to have the power to delimit the exercise by minors of protected freedoms if adequate foundation exists for the state regulation.

Similarly, Tinker upheld the notion that special circumstances pertaining to their situation might admit of a constricted exercise of First Amendment freedoms by minors in a school setting.

The Supreme Court in Ginsberg v. New York 18 endorsed the concept that the scope and content of a protected right could be variable depending on whether the person asserting the right was a minor. The state statute sustained in Ginsberg prohibited the sale to minors of sexually explicit publications that were not obscene as to adults. The Court was careful to observe 19 that, while a sale to a minor was prohibited, parents who so desired were not precluded from making such publications available to their children. Ginsberg seems somewhat parallel to the present situation, where the state provides that minors may not independently seek out access to sensitive matters (lascivious publications in Ginsberg, abortion in the case here), but with parental permission the state maintains no further independent interest in protecting the minor. There does appear to be some precedent therefore for enabling a state to condition a minor’s access to a right—protected with respect to adults—upon an adult’s consent.

The consent provision in the statute before us is open to a somewhat broader interpretation than that assumed by the plaintiffs and the majority. This is so since, in addition to consent by a parent or legal guardian, the statute provides for permission to be given by a person in loco parentis. The court has been directed to no evidence indicating that a restrictive interpretation of the phrase “person in loco parentis’’ was intended by the legislature. It would *590 thus appear that consent would be acceptable from a responsible and caring adult who has a close relationship with the young pregnant woman. 20

This more generous interpretation of the language “in loco parentis” would satisfy the interest of the legislature that the minor not be rushed into an abortion in which she was inadequately counseled, ignorant of the facts or unsupported psychologically. It would assure that some mature person with an interest in and relationship to the young pregnant - woman would participate in her decision. Requiring consent affords a reasonable means to be certain that an adult undertake a degree of responsibility for the minor’s resolution to abort.

The abortion decision should be made as intelligently as possible. Inevitably, the situation is accompanied by stress and urgency. The minor is, by the very fact of age, relatively inexperienced in making decisions of the type contemplated here. There is a legitimate interest on the part of the state in protecting the physical and emotional environments of the young woman. The state may permissibly conclude that it is in the best interest of the minor to assure that an adult has helped the young person arrive at an informed judgment. 21

Accordingly, at least as it is interpreted in this opinion, it appears to me that the requirement that a parent or person in loco parentis consent to a minor’s abortion is not unconstitutional.

3. Viability

I agree with the majority that the term viability is not sufficiently susceptible of objective and predictable definition for criminal penalties to turn on what is necessarily an after-the-fact extrapolation whether a fetus was viable at the time of an abortion.

Nevertheless, the dilemma suggested by the result we reach today warrants some attention. Indisputably, the state has a profound interest in preserving human life, including the life of a viable but unborn fetus. 22 It therefore would seem to lie within the legitimate exercise of the police power for the state to prohibit the destruction of such viable fetal life.

Difficulty arises in formulating a criminal sanction respecting late-term abortion because, based on the record in this case, the point at which the fetus matures to viability is not universally agreed upon as a matter of medical definition. The legal definition of the instant at which life occurs to a fetus, as a standard to guide professional conduct, appears vague because it derives from a medical interpretation that lacks the specificity required for criminal sanctions.

As observed by the majority, there is a consensus regarding the applicable guidelines for determining viability—in particular the length of time since the last menses and the size of the fetus as determined by abdominal measurement of the mother. However, three principal factors render the viability definition uncertain. First, the diagnosis is not foolproof but is an estimate of fetal age. Second, whether any given fetus would survive a premature delivery cannot be ascertained in advance. Third, the evidence revealed that medical practitioners accept different statistical survival rates as determinative of viability. In the view of some of the physicians who testified, if a fetus of a certain gestational age had survived in the annals of medical history, such period set a base age for viability. For other doctors, unless a *591 fetus reached a size where a 10% likelihood of survival could be expected, the point of viability in their judgment, had not been achieved.

In the situation covered by the statute, until the line demarcating criminality is crossed, the conduct involved is constitutionally protected. The statute is assailed because the conduct in very many situations when performed cannot readily be identified as criminal or non-criminal.

Grayned v. City of Rockford 23 addressed a statute regulating picketing, allegedly defective on vagueness grounds. There the Supreme Court described the vice of vagueness as follows:

. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” 24

Until viability, a woman has a fundamental right to abort but, once having traversed the viability line, the state has a compelling interest in restricting abortion. Normal caution to avert potentially criminal activity will produce the effect of chilling the exercise of the protected right. For this reason a proscriptive statute must be narrowly drawn or else it will, as a practical matter, invade the protected right. 25

The Pennsylvania Abortion Statute is unlike others whose broad language has been saved by repeated applications that have narrowed and supplied meaning by interpretation. 26 The problem here is not that the legal definition of the criminal behavior is broad, but that it applies a standard, viability, malleable at the time of the conduct and respecting which experts do not agree.

It is true that the Supreme Court has held that the critical mark in time for purposes of forbidding abortion is viability. Because the definition of the threshold of viability is riddled with the uncertainties cited above, however, that concept is not an adequate guide for physicians who would frequently be free to exercise their best professional judgment only at the risk of criminal penalties. To be valid, a statute should provide more objective standards, giving firmer indications of the limits of protected conduct.

If. Subsidization of Abortions

Before enacting the Pennsylvania Abortion Control Act, the Pennsylvania *592 Welfare Department promulgated a regulation to the effect that only medically indicated abortions were eligible for state reimbursement under the Medical Assistance Program. A suit challenging the constitutionality of the regulation was just recently decided by the Third Circuit, in banc. 27 To the extent that the issues are identical, 28 I consider myself bound here by the law of this Circuit. My own views, which differ from those of the majority, are noted separately in Doe v. Beale, and it would serve no purpose to elaborate them here.

. Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973).

. Doe v. Bolton, 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973).

. Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970).

. Parenthetically, it may be noted that the directive that the consent be in writing operates, inter alia, for the protection of the doctor against subsequent claims that informed consent was absent.

. In Doe v. Bolton, supra, 410 U.S. pp. 198200, 93 S.Ct. p. 751, Justice Blackmun criticized the practice of the State of Georgia in requiring two physicians to agree before there may be an abortion, and states that such practice “has no rational connection with a patient’s needs and unduly infringes on the physician’s right to practice.” However, no reference is made in the opinion to the question of informed consent as such.

. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973).

. Plaintiffs appear to acquiesce in this, for no attack is leveled on the requirement that the consent be written.

. Abortion Control Act, Act No. 209, 35 P.S. § 6602.

. 393 U.S. 503, 514-515 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) (nondisruptive political protest). See also West Virginia v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943) (salute to flag).

. 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967).

. See, e. g., Yoder v. Wisconsin, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972) (religion); Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968) (first amendment, obscenity); Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944) (religion); West Virginia v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943) (due process).

. See Ginsberg, 390 U.S. at 639-40 , 88 S.Ct. 1274 .

. Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944).

. Prince, supra note 3 ; Ginsberg, supra note 3 .

. Yoder, supra note 3 ; Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925) (state could not prohibit private schools) ; Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) (state could not prohibit the teaching of foreign languages in schools).

. Compare Yoder, supra note 3 with Prince, supra note 3 .

. 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944).

. 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1969).

. 390 U.S. at 639 , 88 S.Ct. 1274 .

. “The principle is old and deeply imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative.” United States v. Gambling Devices, 346 U.S. 441 , 74 S.Ct. 190, 194 , 98 L.Ed. 179 (1951), at p. 448. See also Driscoll v. Edison, 307 U.S. 104, 105 , 59 S.Ct. 715 , 83 L.Ed. 1134 (1939).

. 390 U.S. at 639 , 88 S.Ct. 1274 .

. Roe, supra note 1 ; Doe, supra note 2 .

. 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972).

. 408 U.S. at 108-09 , 92 S.Ct. at 2298 (footnotes omitted), quoting Baggett v. Bullitt, 377 U.S. 360, 372 , 84 S.Ct. 1316 , 12 L.Ed.2d 377 (1964); Cramp v. Board of Public Instruction, 368 U.S. 278, 287 , 82 S.Ct. 275 , 7 L.Ed.2d 285 (1961).

The seminal article on vagueness is Amsterdam, “The Void for Vagueness Doctrine in the Supreme Court,” 109 U.Pa.L.Rev. 67 (1960).

. See for example N. A. A. C. P. v. Button, 371 U.S. 415, 438 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963).

. See CSC v. National Ass’n. of Letter Carriers, 413 U.S. 548 , 93 S.Ct. 2880 , 37 L.Ed. 2d 796 (1973); Parker v. Levy, 417 U.S. 733 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974).

. Doe v. Beale, 3d Cir., 523 F.2d 611 , 1975.

. As to the section of the Act dealing with financing of abortions for medically indigent women by local communities, there is no mention of such possibility in the record here, and I am aware of no such action or contemplated action—at least in Pennsylvania. Accordingly, I do not consider this issue a justiciable one in the setting of this case, and certainly it is not one that is ripe for constitutional adjudication. See, for example, Justice Rutledge’s statement in Rescue Army v. Municipal Court, 331 U.S. 549 , 67 S.Ct. 1409 , 91 L.Ed. 1666 (1947), and Justice Frankfurter’s concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 156 , 71 S.Ct. 624 , 95 L.Ed. 817 (1951).