# Planned Parenthood Association v. Fitzpatrick

> District Court, E.D. Pennsylvania · September 4, 1975 · 401 F. Supp. 554

URL: https://www.frixlaw.com/law-library/cases/9658316

## Case

- **Full name:** PLANNED PARENTHOOD ASSOCIATION Et Al., Plaintiffs, Obstetrical Society of Philadelphia, Intervenor-Plaintiff, v. F. Emmett FITZPATRICK, Jr., and Frank S. Beal, Defendants, and Robert P. Kane and the Commonwealth of Pennsylvania, IntervenorDefendants
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 4, 1975
- **Citations:** 401 F. Supp. 554; 1975 U.S. Dist. LEXIS 16336
- **Precedential status:** Published
- **Opinion:** Concurrence by Newcomer
- **Judges:** Newcomer, Adams, Newcomer', Green
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Beal v. Franklin, 428 U.S. 901 (1976).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9658316

## Opinion text

NEWCOMER, District Judge
(concurring).
While the majority opinion expresses my views on most of the issues involved in this ease, I feel compelled to set forth separately my views on the issues of parental and spousal consent.
The opinion of the majority, without affirming or denying the existence of any parental rights in the supervision and guidance of unemancipated minor children, finds that the act’s parental consent provisions are not narrowly enough drawn to withstand constitutional challenge. While I agree with this conclusion, I am of the view that parents indeed have such rights and that the state may, within certain limitations, legislate to protect these rights. The Supreme Court has not precluded the states from legislating for that purpose and it is generally recognized that the state may abridge the constitutional rights of minors in situations where it may not abridge those of adults. See, e. g., Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968). The Supreme Court has recognized the fundamental right of the parents to choose their children’s school, Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925), to choose what their children will learn, Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923), and even to decide whether their children will attend school, Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972). While I am not aware of any case involving a collision between the minor’s rights and the parent’s right to supervise the minor’s upbringing, I believe that the two lines of cases discussed above permit the state to intervene to enforce parental rights.
The state’s authority to preserve the right of parents to supervise their children’s upbringing rests upon a larger concern: the preservation of the family as the basic unit of our society. This larger interest has been held by the Supreme Court to justify legislation which gives zoning preference to families over non-kinship groups. Village of Belle Terre v. Boraas, 416 U.S. 1 , 94 S.Ct. 1536 , 39 L.Ed.2d 797 (1974). This broader concern includes the relationship between spouses as well as the relationship between parents and children. The participation of one spouse in the important decisions of the other is equally as important to the health of the family as is the participation of the parents in the important decisions of their children.
I believe that the state may take steps to insure such participation as part of its legitimate concern with protecting and preserving the family. Such a concern was undoubtedly in the minds of the Pennsylvania legislators when they enacted the parental and spousal consent provisions of the Abortion Control Act. *593 However, the means which they chose to insure parental and spousal participation—an unqualified veto, without the right of appeal—infringes the constitutional rights of privacy possessed by the family’s individual members and is therefore unconstitutional.
That we are today invalidating the means chosen by the legislature should not be interpreted as a refutation of the legitimacy of its goals. I believe that the state could reasonably and constitutionally require a doctor who plans to perform an abortion on a married woman, or an unmarried minor, to notify and inform the husband, or at least one parent, of his plans. In this way the affected family member would be given the opportunity to fulfill his or her role as a source of guidance for, or as the partner of, the pregnant woman. But a statute which gives a parent or a husband an unappealable veto over this one medical decision far exceeds what is necessary to achieve the state’s or the other family members’ interest, and transgresses upon that private area secured to the woman, whether married or unmarried, adult or minor, by Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973).
Moreover, the Act’s parental consent provision suffers from an additional constitutional defect. We note that another Pennsylvania statute, enacted prior to the Abortion Control Act, grants to pregnant minors the right to consent to medical, dental, and health services, and establishes that such consent is effective without the consent of anyone else. 35 Purdon’s Statutes § 10101. (February 13, 1970). While this law was repealed insofar as it relates to abortion procedures by the Abortion Control Act, this signaling out of abortion appears inconsistent with the Supreme Court’s opinions in Roe and Doe , cited supra. If the Pennsylvania legislature had not granted this general unqualified right to consent to pregnant minors, or if it repealed it en toto, the abortion decision would merely be one, rather than the only one, of many health areas in which the parents would have the right to supervise their children.
While I share the philosophy and rationale reflected by most of the views expressed in the separate concurring and dissenting opinion of my respected colleague Judge Adams, I am unable to agree that the parental consent provision can be saved by interpreting the provision’s “in loco parentis” language to embrace any “responsible and caring adult who has a close relationship with the young pregnant woman.” (Adams, C. J. dissent, at p. 590). While this interpretation is reasonable in the case of orphans or those minors whose parents are mentally incompetent, unknown, or unavailable, it would not appear to be faithful to the spirit of this Act to allow a third-party to consent where the parents are able but unwilling to do so. The Courts, which under the existing provision are not permitted to adjudicate a conflict between parents and minors over the abortion decision, would have to adjudicate conflicts arising from contradictory claims by the natural parents and the person acting “in loco parentis.” Moreover, this adjudication would take place not prior to the abortion, but in a criminal proceeding against the physician following the abortion. This procedure would inevitably result in restricting the consent provision to the natural parents, even if this was not the legislature’s intent.
ORDER
And now, this 4th day of September, 1975, for the reasons set forth in the Opinion accompanying this Order, it is ordered that:
(1) State defendants’ motions to dismiss Planned Parenthood Association of Southeastern Pennsylvania, Concern for Health Options: Information, Care and Education, Inc., and Clergy Consultation *594 Service of Northeastern Pennsylvania are granted for the reasons set forth in this Court’s Opinion.
State defendants’ motion to dismiss the Obstetrical Society of Philadelphia is denied;
(2) The sections of the Abortion Control Act are declared to be severable, and plaintiffs’ request to enjoin the Act in its entirety is denied;
(3) Section 2’s definition of “informed consent”, Section 3(a), Section 5(e), Section 6(a), Section 6(c), and Section 8 of the Abortion Control Act are constitutional ;
(4) Section 6(d) of the Act is constitutional to the extent that it requires information concerning: “the name, address and age of the woman upon whom the abortion was performed; the date on which the abortion was performed; the date upon which the determination of pregnancy as required by this section was made; . . . ; the approximate age, in months, of the fetus; Affixed to such statement shall be a copy of each of the documents showing consent to abortion as required by Section 3 of this act. All information and documents required by this subsection shall be treated with confidentiality customarily accorded to medical records.”;
(5) Section 6(d) of the Act is unconstitutional to the extent that it requires information concerning: “the name and address, if known, of the spouse of the woman; the name and address, if known, of the parent or person in loco parentis if the woman is under eighteen years of age and unmarried; . . . ; a full statement of those facts upon which the person performing the abortion relied as establishing that the abortion was necessary to preserve the life or health of the mother.”;
(6) Section 2’s definition of “viable”, Section 3(b)(i), Section 3(b) (ii), Section 5(a), Section 6(b), Section 6(f) are unconstitutional; and Section 7 of the Abortion Control Act is inconsistent with Title XIX of the Social Security Act and is unconstitutional; and,
(7) The defendants, their agents, their employees, successors in interest, and all others acting in concert with them, are enjoined from the enforcement of the sections of the Act that have been held by this Court to be unconstitutional.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9658316. Public record. Not legal advice.