Petition — Akron v. Akron Center for Reproductive Health, Inc.

Office «Supreme Court, U.S.

FILED

S1-700 |. oe

ALEXANDER L. STEVAS,

CLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1981

No.

CITY OF AKRON, Ae

Petitioner,

-US-

AKRON CENTER FOR

REPRODUCTIVE

HEALTH, INC., et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT D. PRITT

Director of Law

City of Akron

166 South High Street

Akron, OH 44308

216-375-2031

Attorney For Petitioner

-QUESTIONS PRESENTED

1. Whether the state's interest in maternal

health and wellbeing is such that it may regulate

abortion in a reasonable manner which is not unduly

burdensome, even during the first trimester of

pregnancy.

2. Whether a child under the age of fifteen

years can be required to obtain the consent of one

parent or her legal guardian or a court order

authorizing the minor to consent to an abortion.

3. Whether the state can require the physician

personally to inform the woman of facts relating to

her pregnancy, the abortion procedure, fetal

development, and agencies available to assist her.

4, Whether the state can require the physician

personally to counsel the patient with respect to the

risks and technique of the abortion prior to

performing the abortion.

5. Whether the state can require a waiting

period of twenty-four hours between the signing of an

informed-consent form and the performance of an

abortion.

6. Whether the term "humane" as it relates to

the disposal of fetuses in Section 1870.16 is void for

vagueness, and if so, whether the term is severable

from the balance of the section in accordance with

City Council's express intent that the provision be

severable.

-ji-

PARTIES

Petitioner, the City of Akron, was Defendant

below along with John Ballard, Mayor; Dr. C. William

Keck, Director of Public Health; and Peter Oldham,

Prosecutor. Co-Defendants in the trial court were

Dr. Francois Seguin and Mrs. Kathleen Black who

were permitted to intervene "in their individual

capacity as parents of unmarried daughters of child-

bearing age" and who were permitted to appear as

amici. curiae on all issues in the case. The

Respondents in this litigation are Akron Center for

Reproductive Health, Inc.; Akron Women's Clinic,

Inc.; Womencare, Inc.; and Dr. Bliss, a physician who

had worked in one of the abortion clinics and who

claimed to represent the rights of clinic patients who

desired abortions.

=~

Questions Presented

Parties

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Statutory Provisions

Statement of the Case

Reasons for Granting the Writ

I,

THE RULING BELOW CONFLICTS

WITH THE DUE PROCESS STANDARD

APPLIED BY THIS COURT IN

DETERMINING THE CONSTI-

TUTIONALITY OF ABORTION

REGULATIONS IN THAT THE

APPELLATE COURT (A) FAILED TO

DETERMINE WHETHER THE

REGULATION WAS "UNDULY

BURDENSOME," AND (B) PROHIBITED

ALL DIRECT FIRST-TRIMESTER

REGULATION.

The Appellate Court failed’ to

determine whether the regulation was

"unduly burdensome."

The Court of Appeals erred _ in

prohibiting all direct regulation of

first-trimester abortions.

THE RULING BELOW CONFLICTS

WITH PRINCIPLES ENUNCIATED IN

IV.

TABLE OF CONTENTS (CONTINUED)

PRIOR DECISIONS OF THIS COURT

AS TO THE FACIAL

CONSTITUTIONALITY OF REQUIRING

PARENTAL OR JUDICIAL CONSENT

TO AN IMMATURE,

UNEMANCIPATED MINOR'S

ABORTION.

THE COURTS BELOW ERRED IN

RULING THAT SECTION 1870.06(B),

WHICH ENSURES THAT THE

CONSENT FOR AN ABORTION IS

TRULY INFORMED CONSENT, WAS

UNCONSTITUTIONAL.

The information required to be provided

by the attending physician in

accordance with Section 1870.06(B) is

accurate and is not unduly burdensome

on a pregnant woman's right to an

abortion.

Even if parts of Section 1279.06(b) were

unconstitutional, the courts below

failed to sever such subsections in

accordance with clear legislative

intent.

THE COURT OF APPEALS FAILED TO

RECOGNIZE THE STATE'S

LEGITIMATE INTEREST IN

PROTECTING THE WOMAN'S HEALTH

BY REQUIRING PHYSICIAN-PATIENT

COUNSELING PRIOR TO THE

PERFORMANCE OF AN ABORTION.

THE COURT OF APPEALS FAILED TO

RECOGNIZE THE STATE'S

LEGITIMATE INTEREST IN

Page

15

15

17

22

TABLE OF CONTENTS (CONTINUED)

PROTECTING THE WOMAN'S HEALTH

BY REQUIRING A TWENTY-FOUR-

HOUR WAITING PERIOD BETWEEN

THE SIGNING OF AN INFORMED-

CONSENT FORM AND THE

PERFORMANCE OF AN ABORTION.

THE TERM "HUMANE" AS USED IN

SECTION 1870.16 Is NOT

UNCONSTITUTIONALLY VAGUE, AND

EVEN IF IT WERE, IT SHOULD HAVE

BEEN SEVERED FROM THE BALANCE

OF THE SECTION IN ACCORDANCE

WITH THE LEGISLATIVE INTENT.

Conclusion

26

28

31

TABLE OF AUTHORITIES

Page

Akron vy, Scalera, 135 Ohio St. 65,

19 N.E. 2d 279 (1939) 14

ird, 428 U.S. 132

(1976) 7, 8, 14, 15, 19, 27, 28

Bellotti v, Baird, 443 U.S.

622 (1979) 10, 13, 24

Buckley v, Valeo, 424 U.S, 1 (1976) 21

Champlin Refining Co. v. Corporation

Commission, 286 U.S. 210 (1932) 21, 30

Colautti v. Franklin, 439 U.S. 379 (1979) ll, 24

Connecticut v. Menillo, 423 U.S. 9 (1975) 8, 9, 23

, 428 U.S.

901 (1976) 8, 9, 19, 29

Griswold v. Connecticut, 381 U.S. 479 (1965) 23

Harris v. McRae, 448 U.S. 297 (1980) 8, 10

450 U.S,___,

67 L. Ed. 2d 388 (1981) 8, 9, 14, 15, 18, 25, 27, 28

Lies v. Cleveland Ry. Co., 101 Ohio St. 162,

128 N.E. 73 (1920) 14

Maher vy. Roe, 432 U.S, 464 (1977) 7, 8, 16, 18, 19

Margaret S. v. Edwards, 488 F. Supp. 181

(E.D. La. 1980) 19

- vi -

TABLE OF AUTHORITIES (CONTINUED)

Page

Planned Parenthood v, Ashcroft, 483 F. Supp. 679,

(W.D. Mo. 1980) r'

Nos, 80-1130 and 80-1530 (8th Cir. July 8, 1981) 24

P

yv. Danforth, 428 U.S. 52 (1976)

6, 7, 8, 9, ll, 12, 19, 24, 27, 28

Planned Parenthood Assn. v. Fitzpatrick

401 F. Supp. 554 (1975), aff'd Franklin

v. Fitzpatrick, 428 U.S. 901 (1976) 19, 29, 30

Roe v. Wade, 410 U.S. 113 (1973) 5, 6, 7, ll, 23, 24

Thone v. Womans Services, P.C,, ___U.S.

___, 69 L. Ed. 2d 414 (1981) 8, 9, 14, 15, 19, 25, 27

Whalen v. Roe, 429 U.S. 589 (1977) 7

Women's Community Health Center v. Cohen,

477 F. Supp. 542 (D. Me. 1979) 20

a v. Scott, 449 F. Supp. 1302

N.D. Il. 1978) 21

- vii -

OPINIONS BELOW

The opinion of the Court of Appeals for the

Sixth Circuit, rendered on June 12, 1981, has been

reported as Akron Center for Reproductive Health,

Inc. v. City of Akron, 651 F. 2d 1198 (1981). The

opinion of the United States District Court for the

Northern District of Ohio, Eastern Division, rendered

on August 22, 1979, has been reported as Akron

Cente. for Reproductive Health, Inc. v. City of

Akron, 479 F. Supp. 1172 (N.D. Ohio 1979).

JURISDICTION

The judgment of the Court of Appeals for

the Sixth Circuit was entered on June 12, 1981. A

petition for rehearing was filed with the Court of

Appeals by the Petitioners, the Respondents, and the

Defendant-Intervenors. The Court of Appeals denied

all parties' petitions for rehearing. The Defendant-

Intervenors' petition for rehearing was denied on July

22, 1981. This petition for certiorari was filed within

ninety (90) days of that date. This Court's

jurisdiction is invoked under 28 U.S.C. Section

1254(1).

- viii -

_STATUTORY PROVISIONS INVOLVED

United S ’

Section i

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States, nor shall any state

deprive any person of life, liberty or property without

due process of law; nor deny to any person within its

_jurisdietion the equal protection of the laws.

Ohio Constitution Art. XVIll, Section 3

Municipalities shall have authority to exercise

all powers of local self-government and to adopt and

enforce within their limits such local police, sanitary

and other similar regulations, as are not in conflict

with general laws.

Ohio Revised Code Chapter 215]

Ohio Rules of Juvenile Procedure

3 Ohio Admini my 370 -

(A) The fetus shall be disposed of in a humane

manner.

(B) No person shall experiment upon or sell

the product of human conception which is aborted.

Experiment does not include autopsies pursuant to

sections 313.13 and 2108.50 of the Revised Code.

Akron Ordinance No, 160-1978

- ix -

STATEMENT OF THE CASE

Ordinance No, 160-1978 was enacted by the

Akron, Ohio, City Council on February 28, 1978, in

order to provide its citizens with the highest standard

of health care. The ordinance, which is set forth in

the Appendix, amended and supplemented Chapter

1870, entitled "Regulation of Abortions," of the

Codified Ordinances of The City of Akron.

In order to promote the health and safety of

women seeking abortions, the City Council enacted

the ordinance which sets forth a number of require-

ments relating to the performance of abortions. One

of the requirements, here in controversy, is that a

woinan prior to performance of the abortion give an

informed consent after consultation with her

physician, Section 1870.06(B) provides that "[i]n

order to insure that the consent for an abortion is

truly informed consent ... ," the attending physician

must inform every abortion patient of several

enumerated factors relating to a woman's condition

of pregnancy and to the unborn child.

Section 1870.06(C) requires that the attending

physician provide certain information to the woman

regarding the risks associated with her pregnancy and

the abortion technique to be employed as well as a

general description of tire medical instructions to be

followed subsequent to the abortion. In addition, any

other information which in the physician's judgment

is relevant to her decision to have an abortion or

she

} carry the pregnancy to term may be given. The

testimony at trial by physicians working for local

abortion clinics established that the physicians

themselves neither personally consult nor counsel

patients prior to an abortion. (Joint App. p. 544)!,

Rather, non-physician counselors provide such

services to a woman prior to her abortion. Several

physicians testified at trial that proper medical

practice required that a physician counsel the

woman, (Joint App. pp. 184, 661, 723-724).

Section 1870.07 of the ordinance requires that

there be a twenty-four-hour delay between the time

a woman signs the consent form required by Section

1870.06 and the abortion procedure. This section is

modified by a section which waives the twenty-four-

hour delay in the case of a medical emergency which

poses an immediate threat and grave risk to the life

or physical health of the pregnant woman. The

District Court found that this regulation did not

unduly burden the woman's decision and that it

furthered the important state interest of insuring

"that a woman's abortion decision is made after

careful consideration of all the facts applicable to

her particular situation." 479 F. Supp. at 1204,

Section 1870.05(B) provides that the consent of

1All citations to the record below are to the

Joint Appendix filed by counsel for the clinics, Dr.

Bliss, the parents, and the City of Akron with the

Court of Appeals for the Sixth Circuit.

-2-

one of her parents or her legal guardian must be

obtained prior to an abortion upon a pregnant girl

under the age of fifteen years, or, in the alternative,

a court may provide consent where the parent or

guardian is unavailable or refuses consent. State law

provides the procedure to be followed in such a

judicial proceeding.

Plaintiffs alleged jurisdiction in the District

Court under the First and Fourteenth Amendments to

the United States Constitution, 28 U.S.C. Section

1331, 28 U.S.C. Sections 1343(3) and 1343(4), 42 U.S.C.

Section 1983, and 28 U.S.C. Sections 2201 and 2202.

On April 19, 1978, an action challenging the

facial validity of Ordinance No. 160-1978 was

instituted. The ordinance was to have become effec-

tive May 1, 1978, but a preliminary injunction

restraining its enforcement was entered on April 27,

1978, by the United States District Court for the

Northern District of Ohio, the Honorable Leroy J.

Contie, Jr., presiding. A trial on the merits was held

September 5-21, 1978. A final decision on the merits

was rendered on August 22, 1979, holding Sections

1870.05, 1870.06(B), 1870.09, and 1870.16 of the

ordinance unconstitutional and permanently enjoining

the enforcement of those provisions.

On appeal, the United States Court of Appeals

for the Sixth Circuit affirmed in part and reversed in

part the judgment of the District Court. The Court

-3-

of Appeals opinion, issued June 12, 1981, held Sections

1870.05(B), 1870.06(B), 1870.06(C), 1870.07, and 1870.16

unconstitutional (the District Court's finding that

Section 1870.09 was _ unconstitutional was _ not

appealed).

The Court of Appeals denied motions for

rehearing timeiy filed by the parties, and this

petition for writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

THE RULING BELOW CONFLICTS WITH THE

DUE PROCESS STANDARD APPLIED BY THIS

COURT IN DETERMINING THE CONSTI-

TUTIONALITY OF ABORTION REGULATIONS

IN THAT THE APPELLATE COURT (A)

FAILED TO DETERMINE WHETHER THE

REGULATION WAS "UNDULY

BURDENSOME," AND (B) PROHIBITED ALL

DIRECT FIRST-TRIMESTER REGULATION.

A. The Appellate Court failed to determine

whether the regulation was "unduly

burdensome."

Following this Court's decision of Roe v. Wade,

410 U.S, 113, 163 (1973), in which it was stated that the

"state's important and legitimate interest in the

health of the mother" became compelling at the end

of the first trimester of pregnancy, both State and

District Courts have periodically held any regulation

of first-trimester abortions to be impermissible.2

2s shown by the Court of Appeals holding that

"if a regulation resulted in a legally significant

impact or consequence on a first-trimester abortion

decision, it is invalid." 651 F, 2d at 1204,

«$=

Subsequent to Roe vy. Wade, however, this Court has

made clear that the states have the right to regulate

abortions performed during the first three months of

pregnancy so long as such regulation does not "unduly

burden" a woman's constitutionally-protected right to

have an abortion.

This permitted regulation of first-irimester

abortions first unfolded in Planned Parenthood of

Central Missouri v. Danforth, 428 U.S. 52 (1976),

wherein this Court upheld a state statute requiring

the informed written consent of a woman, in the first

trimester of pregnancy, and requiring certain

recordkeeping and reporting by those providing the

abortion. In its discussion, this Court noted that:

[T] he state may not restrict the decision of the

patient and her physician regarding abortion during

the first stage of pregnancy . .. [However] the

imposition by §3(2) of such a requirement (prior

written consent) for termination of pregnancy even

during the first stage, in our view, is not in itself an

unconstitutional requirement. (Emphasis added) 428

U.S. at 66-7.

Thus not all regulation of first-trimester

abortions impermissibly interferes with a woman's

protected decision to have an abortion, and the

questioned regulation need not always serve a

compelling state interest in order to be

constitutional. This is shown by this Court's

statement in Danforth that the record-keeping

requirement:

. . » if not abused or overdone, can be useful to

the state's interest in protecting the health of its

female citizens, and may be a resource that is

relevant to decisions involving medical experience

and judgment. (Emphasis added) 428 U.S. at 81.

It is apparent that a lesser standard of review was

utilized by this Court in evaluating’ the

constitutionality of the regulation.

Interpreting the standard to be applied in deter-

mining whether or not a regulation was valid, this

Court, in Bellotti v, Baird, (Bellotti D, 428 U.S, 132,

147 (1976), noted that in Danforth, it had been:

. » » held that a requirement of written consent

on the part of a pregnant adult is not unconstitutional

unless it unduly burdens the right to seek an

«ortion." (Emphasis added.)

The unduly burdensome standard of review

enunciated by this Court in Danforth and Bellotti I

was said, in Maher v, Roe, 432 U.S. 464, 473 (1977), to

balance the woman's interest against the nature of

the state's interference in exercising that right. In

Maher, the Court noted that:

Whalen [v., Roe, 429 U.S. 589 (1977)], makes

clear, the right in Roe vy. Wade can be understood

only by considering both the woman's interest and the

nature of the State's interference with it. 432 U.S.

at 473.

Granted, an abortion regulation must not unduly

burden a woman's constitutionally-protected right to

have an abortion. However, the Court of Appeals

refused to even make such an inquiry of the Akron

2

Ordinance. Connecticut v. Menillo, 423 U.S, 9 (1975);

Danforth, supra; Bellotti_I, supra; Franklin _v.

Fitzpatrick, 428 U.S. 901 (1976); Maher, supra; Harris

v. McRae, 448 U.S, 297 (1980); and H, L. vy,

Matheson, 450 U.S. ___., 67 L. Ed. 2d 388 (1981).

B. The Court of Appeals erred in prohibiting

all direct regulation of first-trimester

abortions,

In applying a two-tier analysis to the Akron

abortion ordinance, the Court of Appeals incorrectly

interpreted prior decisions of this Court, especially in

light of the recent decisions of Matheson, supra, and

Thone_v. Womens Services, P.C,,__U. S,_., 69 L,

Ed, 2d 414 (1981), and in effect held all first-trimester

regulation to be impermissible.

Initially, the Appellate Court looked to "the

nature of the particular regulatory provision,"

inquiring as to whether or not the regulation had a

"legally significant impact or consequence’ on

the right of a pregnant woman, in consultation with a

physician, to choose to terminate her pregnancy."

Accordingly, if there was no legally significant

impact or consequence, no constitutional issue was

raised. Where the regulation resulted in a legally

significant impact or consequence, the Court further

required that the "regulatory provision serve a

legitimate and compelling state interest." But, only

if a compelling state interest were found would it

further inquire as to whether the regulation imposed

a

an "undue burden" on the abortion decision. 651 F, 2d

at 1204,

This "two-step analysis" required by the Court

of Appeals also provided that first trimester regula-

tions are per se invalid if they result in a legally

significant impact or consequence, holding as a

matter of law that the state has no compelling

interest during the first trimester. 651 F. 2d at 1204.

Such a _ standard of review goes far beyond the prior

decisions of this Court allowing the direct regulation

of first-trimester abortions. Menillo, supra;

Danforth, supra; Franklin, supra; Matheson, supra;

Thone, supra.

Recently, in Matheson, this Court upheld a

requirement of prior parental notice where a minor

seeks an abortion. The Court recognized that:

As applied to immature and dependent minors,

the statute plainly serves the important considera-

tions of family integrity and protecting adolescents

which we identified in Bellotti 1... The Utah

statute is reasonably calculated to protect minors in

appellant's class a enhancing the potential for

parental consultation concerning a decision that has

potentially traumatic and permanent consequences,

(Emphasis added), 450 U.S, __, 67 L. Ed. 2d at 399.

In so holding, this Court apparently did not apply a

compelling state interest test. But even if such a

test must be met, it is implied that the state has such

an interest in this and all other first-trimester

abortion regulations which have been held

constitutional by this Court.

er

Of key importance is the fact that the

regulation was one imposed on first-trimester

abortion decisions and one which resulted in a legally

significant impact, and, yet, the regulation was

constitutionally permissible. Unquestionably, a

statute requiring parental notification of a minor's

decision to have an abortion results in a legally

significant impact on the minor's constitutionally

protected decision. In recognizing the impact such a

regulation has, this Court stated:

That the requirement of notice to parents may

inhibit some minors from seeking abortions is not a

valid basis to void the statute as applied to appellant

and the class properly before us. The Constitution

does not compel a state to fine-tune its statutes so as

to encourage or facilitate abortions. To the

contrary, state action "encouraging childbirth except

in the most urgent circumstances" is "rationally

related to the legitimate governmental objective of

protecting potential life." Harris v. McRae, supra.

The regulation, however, is not unconstitutional

merely because it has a legally significant impact on

the first-trimester abortion decision.

In determining the constitutionality of an

abortion regulation, this Court has_ consistently

required only that the regulation not be unduly

burdensome. Bellotti v. Baird, (Bellotti II), 443 U.S.

622, 640 (1979), the mere fact that thc regulation

pertained to the first trimester of pregnancy did not

automatically invalidate the provision.

When viewed in this light, the sections of the

Akron ordinance here under review are clearly

mn

constitutional as they do not unduly burden the

woman's right to seek an abortion. The Court of

Appeals' two-tier analysis conflicts with the standard

of review thus far enunciated by this Court in that it

prohibits all direct regulation of first-trimester

abortions on the basis of there being no compelling

interest per se during the first trimester. Regulctory

provisions applicable to first-trimester abortion

decisions are not unconstitutional simply because

they have a legally significant impact on a first-

trimester abortion decision. Such a test is merely

conclusory and no test at all. In effect, the legal

significance of a regulation would hinge on whether

its impact is "legally significant." As stated by Judge

Kennedy in her dissenting opinion:

. - » the Supreme Court has never suggested the

analysis put forth by the majority. It has sometimes

suggested that a compelling state interest is

necessary to justify any state regulation of abortion

during the first trimester, but that language has

always been far broader than required by the facts

before it. With the exception of the passage in

Colautti, supra, and a part of Planned Parenthood, all

of the cases since Roe have suggested that the proper

standard is simply whether a regulation that does not

effectively prohibit abortions is "unduly burdensome"

to the decision whether or not to abort. The Court's

decisions are all consistent with that standard. 651 F.

2d at 1215.

Il. THE RULING BELOW CONFLICTS WITH

PRINCIPLES ENUNCIATED IN~ PRIOR

DECISIONS OF THIS COURT AS TO THE

FACIAL ’ CONSTITUTIONALITY OF

REQUIRING PARENTAL OR JUDICIAL

CONSENT TO AN IMMATURE,

UNEMANCIPATED MINOR'S ABORTION,

The Supreme Court first addressed the issue of

requiring a parent's consent to a minor's abortion in

Danforth, supra, 428 U.S. at 72-75, in which it was

held that a blanket requirement that an unmarried

girl obtain parental consent to an abortion was

unconstitutional as it imposed an absolute veto power

over a minor's decision to have an abortion. As the

District Court recognized:

. . » the court (in Danforth) specifically noted,

however, that its holding should not be read as a

suggestion that all minors have the capability of

giving effective consent to the performance of an

abortion. 479 F. Supp. at 1201,

The Akron ordinance under consideration,

Section 1870.05(B), is directed at minors unable to

give an effective consent and in so regulating it does

not provide anyone with an "absolute veto." Section

1870.05(B) provides that the consent of one parent or

the legal guardian must be obtained prior to an

abortion upon a pregnant minor under the age of

fifteen years or, in the alternative, a court may

provide consent where the parents or guardian are

either unavailable or refuse consent. The applicable

procedure to be followed in a _ juvenile judicial

proceeding where a minor is seeking court approval

of an abortion is provided by state law under Chapter

2151 of the Ohio Revised Code and the Ohio Rules of

Juvenile Procedure. As such provisions were not

-12-

constitutionally challenged "as applied" to judicial

proceedings in which a minor seeks an abortion, and

since the District Court made no finding as to their

operation and effect, these provisions cannot form

the basis for holding that Section 1870.05(B) is

unconstitutional.

When faced with a similar regulation requiring

parental consent to a minor's abortion, this Court in

Bellotti I] expounded upon the constitutionality of

such provisions, stating that:

. . . if the state decides to require a pregnant

minor to obtain one or both parents' consent to an

abortion, it also must provide an alternative

procedure 22 whereby authorization for the abortion

can be obtained ... mn. 22 ... we discuss the

alternative procedure described in the text in terms

of judicial proceedings. We do not suggest, however,

that a state choosing to require parental consent

could not delegate the alternative procedure to a

juvenile court or an administrative agency or officer.

Indeed, much can be said for employing procedures

and a forum less formal than those associated with a

court of general jurisdiction. 443 U.S. at 643,

The Akron ordinance provides such an "alterna-

tive procedure" whereby authorization for the

abortion can be obtained in accordance with the

constitutional requirements enunciated by this Court

in Bellotti Il, Section 1870.05 does not purport to

determine either the nature of the judicial

alternative or the procedure to be followed in such

cases, as state law provides a mandatory procedure

to be followed in juvenile proceedings. The City of

-13-

Akron is prohibited under the Ohio Constitution from

legislating in areas in which the state has enacted

general laws. Ohio Const. Art. XVIII, Section 3,

Any attempt by the City to so legislate would be a

nullity under Ohio law. Lies v. Cleveland Ry, Co.,

101 Ohio St. 162, 128 N.E. 73 (1920). Akron v.

Seslerg, 135 Ohio St. 65, 19 N.E. 2d 279 (1939). As

the statutory provisions governing juvenile judicial

proceedings were not constitutionally challenged in

these proceedings, the Akron ordinances should

properly be reviewed in light of a constitutional

judicial alternative.

It is not to be assumed that during the course of

the juvenile proceedings the Court will not construe

the ordinance in a manner consistent with the

constitutional requirement of a determination of the

minor's ability to make an informed consent. So

construed, the regulation is constitutionally

permissible. Unless and until the section is

challenged by a minor who claims to be mature or

emancipated, a holding that Section 1870.05(B) is

unconstitutional is improper and premature, In

Bellotti I, supra, and in Matheson, supra, this Court

refused to strike down legislation on its face without

a state court's determination as to construction and

application of the laws in question.

Recently, this Court vacated the decision of

the Court of Appeals, in Thone, supra, wherein it had

held a parental consultation requirement to be

-14-

constitutional. In vacating the Court of Appeal's

decision in Thone, this Court remanded for

reconsideration in light of the recent decision in

Matheson, .supra,

The Court recognized that:

As in Bellotti l, supra, "we are concerned with a

statute directed toward minors, as to whom there are

unquestionably greater risks of inability to give an

informed consent." Id,, at 147. 450 U.S, _, 67 L.

Ed, 2d 399.

Finally, it must be stressed that the parental

consent provision here under consideration applies

only to minor girls fourteen years of age and under.

Ill. THE COURTS BELOW ERRED IN RULING

THAT SECTION 1870.06(B), WHICH ENSURES

THAT THE CONSENT FOR AN ABORTION IS

TRULY INFORMED CONSENT, WAS

UNCONSTITUTIONAL.

A. The information required to be provided

by the attending physician in accordance

with Section 1870.06(B) is accurate and is

not unduly burdensome on a pregnant

woman's right to an abortion.

Section 1870.06(B) provides that an attending

physician must inform a woman prior to an abortion

of several enumerated factors, including that she is

pregnant, the number of weeks elapsed, information

regarding fetal development, possible complications,

that abortion is a major surgical procedure, and the

availability of agencies to assist her. This require-

ment is designed to protect the woman and ensure

that her consent will be truly informed. Such a

-15-

provision strikes a reasonable balance between the

woman's right of privacy and the state's interest in

maternal health and ensuring the informed consent of

the patient. Maher, supra, 432 U.S, at 473, It is

important that “he woman have this information

prior to the abortion.

_ Contrary to the Respondents' allegations in the

courts below, nothing in this section denies the

physician flexibility, as Section 1870.06(C) expressly

permits the physician to:

- » « provide her with such other information

which in his own medical judgment is relevant to her

decision as to whether to have an abortion or carry

her pregnancy to term.

Only with such knowledge as that required by Section

1870.06(B) can the pregnant woman make a truly

informed decision.

The District Court made no findings of fact

regarding the subsections involved. Its decision was

simply based upon its ruling that the state cannot

"specify what each patient must be told." 479 F.

Supp. 1203. The Court improperly stated that

"defendants were unable to prove that some of the

matters required to be told a patient as facts by

Subsection (B) were true." 479 F. Supp. 1203.

However, the burden of proof was the Respondents'

as to the untruthfulness of any such facts, which

they failed to show. The courts below erred in not

upholding Section 1870.06(B) in its entirety.

-16-

B. Even if parts of Section 1870,06(b) were

unconstitutional, the courts below failed to

sever such subsections in accordance with clear

legislative intent.

Section 1870.06(B) was struck down in its

entirety by the District Court notwithstanding that

several subsections were found constitutional.

Subsections (1), (2), (6), and (7) are doubtless

rationally related to a woman's maternal health and

do not unduly burden her decision to have an

abortion. Such subsections should have been severed

from the subsections found to be unconstitutional.

Subsections (1), (2), (6), and (7) provide

respective'y that prior to the giving of an informed

consent, a woman is to be told by her attending

physician (1) that she is pregnant, (2) the number of

weeks that have elapsed from the probable time of

conception, (3) that there are numerous public and

private agencies available to her with birth control

information and that, upon request, the physician will

give her a list of such agencies and the services

available, and (4) that there are numerous public and

private agencies which are available to assist her

during pregnancy and after the birth of her child if

she chooses not to have an abortion and that, upon

request, the physician will provide her with a list.

Not only are these requirements not unconstitu-

tional, but they contain information necessary for a

patient to make an informed decision. Indeed, it is

-l7-

hard to dispute a regulation which requires a

physician to tell a woman prior to an abortion that

she is pregnant and the number of weeks that have

elapsed since she conceived. It can, likewise, not be

doubted that birth control is relevant information to

the woman and that such information bears an

important relation to the maternal health of the

woman. The final regulation is designed not only to

encourage childbirth, but also to insure that the

woman makes a truly informed decision, and as such,

is valid. Matheson supra, In upholding a state's

preference for childbirth, in Maher, supra, this Court

stated:

We think it abundantly clear that a state is not

required to show a compelling interest for its policy

choice to favor normal childbirth. ...

An informational requirement, such as that

contained in the Akron ordinance, was recently

approved in a footnote by this Court in Matheson.

The statute under review in that case provided that

no abortion could be performed

. » » Unless a "voluntary and written consent" is

first obtained by the attending physician from the

patient. In order for such a consent to be ‘voluntary

and informed' the patient must be advised at a

minimum about available adoption services, about

fetal development, and _ about foreseeable

complications and risks of an abortion." 450 U.S,

—___., 67 L. Ed. 2d at 393.

Following the decision in Matheson, this Court

-18 -

vacated an order, in Thone, supra, which had

invalidated a detailed informed consent provision in

the Nebraska statute.

Regarding a woman's informed consent, this

Court has frequently recognized that:

The decision to abort, indeed, is an important,

and often a stressful one, and it is desirable and

imperative that it be made with full knowledge of its

nature and consequences. Danforth, supra, 428 U.S.

at 67; see also, Franklin v. Fitzpatrick, 428 U.S. 901

(1976); Bellotti J, supra; and Maher, supra.

This Court approved an informed consent

provision in Franklin v. Fitzpatrick, supra, which

affirmed the three-judge District Court's decision in

Planned Parenthood Association v. Fitzpatrick, 401

F, Supp. 554 (1975). The District Court, in upholding

the provision, noted that:

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, 401 F.

Supp. at 588.

In keeping with the concern expressed for the

patient's informed consent in Danforth, the District

Court, in Margaret S, v. Edwards, 488 F. Supp. 181

(E.D. La., 1980), severed unconstitutional sections

from constitutional sections of an informed consent

requirement. The District Court upheld a regulation

requiring that a woman be informed that she is

-19-

pregnant; the number of weeks elapsed; the

particular risks associated with her pregnancy and

the abortion technique to be employed; medical

instructions to be followed subsequent to the abortion

to insure safe recovery; information as to public and

private agencies available and the location of public

mental health agencies for post-partum psychological

damage.

Similarly, in the case of Women's Community

Health Center vy. Cohen, 477 F. Supp. 542 (D. Me.

1979), the District Court refused to preliminarily

enjoin a statute similar to the Akron ordinance,

except for a fetal information requirement, holding

that the plaintiffs had failed to show a sufficient

likelihood that the consent requirement unduly

burdens a woman's abortion decision.

Out of the seven subsections of Section

1870.06(B), four are clearly constitutional and should

have been severed from those held unconstitutional.

The district court quite liberally applied the sever-

ability clause, Section 1879.19, to numerous sections,

even severing words and phrases out of sentences,

and yet refused to apply severability to Section

1870.06(B) which could have been severed quite easily

in accordance with the intent of the framers of

Chapter 1870. In failing to sever the subsections, the

courts below ignored the clear legislative intent as

expressed in Section 1870.19.

The test to determine severability as stated by

- 20 -

the District Court in Wynn v. Scott, 449 F. Supp.

1302, (N.D. Ill. 1978), is: (1) are the sections so

intertwined that structurally and logically a constitu-

tional defect in one will taint the remainder; (2) what

is the will of the legislature; (3) is the statute a

product of impermissible state purpose; that is, does

every section, in fact, discourage and frustrate the

abortion decision; and (4) is it possible to predict

what the legislature would do if part of the act were

held unconstitutional?

The subsections are not so intertwined that any

defects in subsections 3, 4, and 5 taint the remainder.

If severed, 1870.06(B) will be completely comprehen-

sible and will clearly inform a physician of what must

be told a woman prior to obtaining her informed

consent. The informational requirement aids the

patient in making a truly informed decision.

The severability of a section, as enunciated by

this Court in Buckley v. Valea, 424 U.S, 1, 108 (1976)

was stated as follows:

Unless it is evident that the legislature would

not have enacted those provisions which are within

its power, independently of that which is not, the

invalid part may be dropped if what is left is fully

operative as a law. Champlin _Refini

Corporation Commission, 286 U.S. 210 (1932).

The lower courts found that the

unconstitutional sections did not require that the

entire ordinance be struck down. 651] F. 2d at 1200.

This finding should be applied to the severability of

- 2) -

Section 1870.06(B) and its subsections which, if

severed, would require the attending physician to

communicate the information in subsections 1, 2, 6,

and 7 to the patient. Such a requirement is not

unconstitutional. The courts below have failed to

effectuate the express legislative intent of the City

Council by severing the unconstitutional sections of

1870.06(B).

IV. THE COURT OF APPEALS FAILED TO

RECOGNIZE THE STATE'S’ LEGITIMATE

INTEREST IN PROTECTING THE WOMAN'S

HEALTH BY REQUIRING PHYSICIAN-

PATIENT COUNSELING PRIOR TO THE

PERFORMANCE OF AN ABORTION.

In order to protect the health and safety of

women seeking abortions, the City Council, in

Section 1870.06(C), requires that the attending

physician inform the pregnant woman:

. . . Of the particular risks associated with her

own pregnancy and the abortion technique to be

employed, including providing her with at least a

general description of the medical instructions to be

followed subsequent to the abortion in order to insure

her safe recovery; and shall in addition provide her

with such other information which in his own medical

judgment is relevant to her decision as to whether to

have an abortion or carry her pregnancy to term.

In reversing the District Court's finding that

this section was ccrstitutional, the Court of Appeals

stated that "Section 1870.06(C) impinges on the

medical judgment of the attending physician..." 651

F, 2d at 1207. No finding, however, was made that

the section interfered with the woman's right to

- 22 -

decide to have an abortion. The core of the

constitutional protection recognized in Roe v, Wade,

supra, is the woman's right to have an abortion in

consultation with her physician. This constitutional

protection does not guarantee "a physician freedom

to practice medicine free of state regulation." 479

F, Supp. at 1198. The privacy of Roe v, Wade is not

simply a right of personal privacy or a "right to your

own body," but the privacy of the relationship

between the woman and her physician, just like the

privacy of the marital relationship in Griswoid vy.

Connecticut, 381 U.S. 479 (1965).

Section 1870.06(C) was enacted to ensure that

the consultation protected in Roe v. Wade actually

takes place. As stated previously, it is the current

practice of Akron abortion clinics not to provide such

consultation between physician and patient. 479 F.

Supp. at 1204. The necessity for consultation prior to

the abortion, however, was undisputed. This section

does not interfere with the woman's fundamental

right to decide whether to terminate her pregnancy.

Rather, it ensures the participation of the attending

physician in a vital decision.

The physician-patient relationship is an

essential component of the woman's constitutional

right to decide to have an abortion, as made clear by

the decisions of this Court. Most notably, in

Connecticut v. Menillo, 423 U.S, 9 (1975), this Court

upheld criminal sanctions imposed against violators

- 23-

of a state statute which prohibited anyone other than

a physician from performing an abortion.

In upholding a provision similar to that

contained in the Akron ordinance, the District Court,

in Planned Parenthood v, Ashcroft, 483 F., Supp. 679

(W.D. Mo. 1980), r'vsd on other grounds, Nos. 80-1130

and 80-1530 (8th Cir. July 8, 1981), stated that:

The Supreme Court has emphasized _ the

participation and responsibility of the woman's

physician regarding the decision to have an abortion

and has noted the legitimacy of the state's interest

that she make the decision with full knowledge of its

nature and consequences. Planned Parenthood vy,

supra. A requirement that the attending

physician personally provide information regarding

the abortion decision furthers that interest and is not

unconstitutional. Planned Parenthood v. Ashcroft,

supra at 28.

The giving of the information contained in

Section 1870.06(C) "enhances, rather than restricts,

the woman's freedom of choice." (Dissenting

opinion), 651 F. 2d 1217. Such information does not

confine the physician's discretion, but simply

reiterates his common law and ethical duty. This

court has repeatedly recognized the importance of

the physician-patient relationship to the abortion

decision. Roe vy, Wade, supra, 410 U.S, at 163, 164;

Danforth, supra, 428 U.S, at 61; Bellotti II, supra,

443 U.S. at 641 n. 21, 643. In Colautti v. Franklin,

439 U.S. 379, 387 (1979), this court observed that:

Roe stressed repeatedly the central role of the

physician, both in consulting with the woman about

- 24-

whether or not to have an abortion, and in

determining how any abortion was to be carried out.

Most recently, this Court, in Thone, supra, vacated

the Court of Appeals order invalidating a detailed

informed consent provision in the Nebraska statute

applicable to first-trimester pregnancies and

remanded for further consideration in light of

Matheson, supra.

In holding Section 1870.06(C) to be constitu-

tional the District Court recognized that by requiring

the attending physician to provide such information,

the effectuation of the abortion decision was thereby

made more expensive. Such an impact, however, did

not invalidate the provision. A reasonable balance

was struck between the state's interest in the health

of its female citizens and the woman's rights. The

District Court stated:

That impact is not so great as to require a

compelling state interest to support the requirement

that the "counseling" be done by the physician rather

than by another individual. Akron's City Council

could well have rationally concluded that because of

the special relationship between a patient and her

physician, such "counseling" should be done by the

physician. In so doing, it would be furthering a valid

state interest in the health of its female citizens.

479 F. Supp. at 1204.

Section 1870.06(C) of the Akron ordinance does

not impermissibly interfere with the physician-

patient relationship which is so fundamental to the

constitutionally protected right to decide to have an

abortion. Rather, it furthers a valid state interes. in

-25-

the health of its female citizens and assures that the

woman's consent will be truly informed.

V. THE COURT OF APPEALS FAILED TO

RECOGNIZE THE STATE'S’ LEGITIMATE

INTEREST IN PROTECTING THE WOMAN'S

HEALTH BY REQUIRING A TWENTY-FOUR-

HOUR WAITING PERIOD BETWEEN THE

SIGNING OF AN INFORMED-CONSENT FORM

AND THE PERFORMANCE OF AN ABORTION,

The imposition of a twenty-four-hour delay

between _ the time a woman — signs the

informed-consent form and the abortion procedure

was found by the District Court not to be unduly

burdensome on the woman's decision to have an

abortion. 479 F. Supp. at 1204, In reaching this

decision, the District Court held that Section 1870.07

furthered the important state interest of insuring

"that a woman's abortion decision is made after

careful consideration of all the facts applicable to

her particular situation." 479 F. Supp. 1204,

On appeal, the District Court's holding was

reversed. The Court of Appeals stated that "since

Section 1870.07 causes a legally significant impact or

consequence on the abortion decision, it cannot be

applied to first-trimester abortions." 651 F.2d at

1208. The Court of Appeals, thus, invalidated this

section only because it impacted on decisions to have

- 26 -

an abortion during the first three months of

pregnancy. The proper standard of review, as

discussed earlier, requires that in considering the

regulation the focus be placed on the burden imposed

on the woman's decision to have an abortion.

Danforth, supra; Bellotti l, end Matheson, supra.

A parental notification requirement was upheld

by this Court in Matheson, even though it resulted in

a legaliy significant impact on the minor's constitu-

tionally protected decision to have an abortion during

the first trimester of pregnancy. In so holding, this

Court recognized "that the requirement of notice to

parents may inhibit some minors from seeking

abortions." The Court, however, stated that this was

not "a valid basis to void the statute," 450 U.S.

——, 67 L. Ed. 2d at 400.

Following the decision in Matheson, this Court

vacated the judgment of the Eighth Circuit Court of

Appeals in Thone, supra, wherein a forty-eight-hour

waiting period had been held unconstitutional. In

vacating the judgment, this Court remanded the case

to the Court of Appeals for reconsideration in light

of its decision in Matheson. It is apparent that a

first-trimester regulation is not automatically

invalid.

It is important to note that the twenty-four-

hour waiting period requirement is inapplicable in the

case of a medical emergency which poses an

-27 -

immediate and grave risk to the life and physical

health of the pregnant woman under Section 1870.12.

The medical expert testifying for the clinics testified

that the waiting period would not create a significant

risk to the patient's physical health. (Joint App. p.

82, 94, and 118). The section is thus drawn so as not

to impose an undue burden on the patient.

By delaying the effectuation of the abortion

decision, a reasonable balance is struck between the

State's important interest of ensuring careful

consideration of that decision by the woman and the

woman's right to decide to have an abortion. The

District Court, in accordance with the standard of

review enunciated by this Court, found that the

regulation did not unduly burden the woman's consti-

tutional rights. In reversing the District Court, the

Court of Appeals applied an overly stringent standard

of review to the regulation which conflicts with the

standard enunciated by this Court. Danforth, supra;

Bellotti I, supra; and Matheson, supra.

VI. THE TERM "HUMANE" AS USED IN SECTION

1870.16 IS NOT UNCONSTITUTIONALLY

VAGUE, AND EVEN IF IT WERE, IT SHOULD

HAVE BEEN SEVERED FROM THE BALANCE

OF THE SECTION IN ACCORDANCE WITH

THE LEGISLATIVE INTENT.

The courts below found Section 1870.16 tobe

- 28 -

unconstitutionally void for vagueness. This was due

to the fact that the section which deals with the

disposal of the remains required that it be done in a

humane and sanitary manner. The District Court

found that the word "humane" was void for

vagueness. The overall intent of the section is, as

was noted in _Planned Parenthood Assn, _v,

Fitzpatrick, 401 F. Supp. 554, 573 (i975), aff'd

Franklin v. Fitzpatrick, 428 U.S. 901 (1976), "to

preclude the mindless dumping of aborted fetuses on

garbage piles." In Fitzpatrick, the three-judge

District Court upheld a regulation which provided

that the Department of Health make regulations for

the humane disposal of remains.

The language used in this section was largely

taken from a state regulation which provides that

"the fetus shall be disposed of in a humane manner."

3 Ohio Administrative Code 3701-47-05 1979. In light

of the intent of Section 1870.16, it is clearly not void

for vagueness.

Even if the term "humane" were found to be

void for vagueness, the entire section should not have

been struck down. By severing the term "humane"

and allowing the balance to remain, the District

Court would have insured two goals: (1) that

potential criminal liability could not be founded on an

ordinance which local abortion clinics might have

difficulty construing and (2) that the health and

safety of the Akron community would be furthered by

- 29 -

providing for the sanitary disposal of the fetus. It

can hardly be doubted that the health of the

Community would be furthered by such a requirement

and that such a regulation is reasonably within

Akron's power. Planned Parenthood Assn, v. Fitz-

Patrick, 401 F. Supp. 554 (1975).

In addition, by so severing the section the

courts below would have been following the manifest

intent of the City Council which had provided in

Section 1870.19 that a finding of unconstitutionality

of one provision was not to result in the striking of

the entire ordinance. Champlin, Supra,

- 30 -

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the Sixth

Circuit.

Dated October_!G _, 1981.

Re pectfully submitted,

Ret [) Pah

ROBERT D. PRITT

Director of Law

The City of Akron

304 Municipal Building

Akron, OH 44308-1655

(216) 375-2031

Attorney for Petitioner

xe