Amicus Brief — Akron v. Akron Center for Reproductive Health, Inc.

Supreme Court brief1983

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FILED

AUG 2 i962

Nos. 81-746 and 81-1172

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

CITY OF AKRON,

Vv.

AKRON CENTER FOR REPRODUCTIVE HEALTH, INC., et al.,

Respondents.

AKRON CENTER FOR REPRODUCTIVE HEALTH, INC., et al.,

Petitioners,

Petitioner,

Vv.

CITY OF AKRON, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE OF THE AMERICAN COLLEGE

OF OBSTETRICIANS AND GYNECOLOGISTS,

THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN ACADEMY OF PEDIATRICS, AND

THE NURSES ASSOCIATION OF THE

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS IN SUPPORT OF AKRON CENTER

FOR REPRODUCTIVE HEALTH, INC., ET AL.

M. CAROLYN Cox

LYNN BREGMAN *

ANNE H. EGERTON

TILLMAN L. LAY

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

* Counsel of Record (202) 872-6000

August 27, 1982 Counsel for Amici Curiae

WILSON - EPES PRINTING Co., Inc. - 769-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...W.W...........2:--:ceccssseseseseeeeses

INTEREST OF AMICI CURIAE ............2.2.-----000-00-0-00-0+

SUMMARY OF ARGUMENT. ......0.0.......:ccccscesseseseseseesseees

I. DETAILED SPECIFICATION OF THE IN-

II.

ITI.

FORMATION THAT A PHYSICIAN MUST

PROVIDE EACH ABORTION PATIENT UN-

CONSTITUTIONALLY BURDENS THE PA-

TIENT’S RIGHT, IN CONSULTATION WITH

HER PHYSICIAN, TO DECIDE WHETHER

TO TERMINATE HER PREGNANCY ............

A. The Decision To Terminate Pregnancy Is a

Decision To Be Made by the Patient in Con-

sultation with Her Physician ..........................

B. The Requirement That a Physician Recite a

Standard Checklist of Information in All

Cases, Regardless of the Circumstances, Sig-

nificantly Interferes with the Physician-

Patient Relationship and May Disserve the

Patient’s Best Interests ...............---.......-0000----

C. The Requirement That a Physician Provide

Information He Believes To Be Untrue,

Without Medical Foundation, or Not in His

Patient’s Best Interests Serves No anal

mate State Interest ..................0.........

THE REQUIREMENT THAT ALL MINORS

OBTAIN PARENTAL CONSENT OR COURT

AUTHORIZATION FOR AN ABORTION IS

UNCONSTITUTIONAL 2000.00. ..eeceeeeeseeeeeeeeeees

THE REQUIREMENT THAT ALL SECOND

TRIMESTER ABORTIONS BE PERFORMED

IN HOSPITALS IS UNCONSTITUTIONALLY

OVERBROAD 3

TABLE OF CONTENTS—Continued

A. Abortion Today, When Performed Prior to

the Late Second Trimester, May Be Per-

formed as Safely in a Properly Licensed

Nonhospital Facility as in a Hospital.............

B. Akron Has No Cognizable Interest in Requir-

ing That All Second Trimester Abortions Be

Performed in Hospitals

C. Even If Akron Has a Cognizable Interest in

Protecting Maternal Health Throughout the

Second Trimester of Pregnancy, the Require-

ment That All Second Trimester Abortions

Be Performed in Hospitals Is Not Reasonably

Related to That Interest ................................-.

CONCLUSION .............-.-----.--+- ssahsintebiesialteds

Page

iii

TABLE OF AUTHORITIES

CASES: Page

Akron Center for Reproductive Health, Inc. v.

City of Akron, 479 F. Supp. 1172 (N.D. Ohio

1979), aff'd in part and rev’d in part, 651 F.2d

1198 (6th Cir. 1981), cert. granted, 50 U.S.L.W.

8984 (May 24, 1982) (Nos. 81-746 & 81-1172).. 5,11,

12, 25, 28

Bellotti v. Baird, 443 U.S. 622 (1979) ........... 14, 15, 16, 17

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) .........00. 8,9

Carey v. Population Services International, 431

Tht GR COED aaeeincct een escent senececenacintesviae 5

Charles v. Carey, 627 F.2d 772 (7th Cir. 1989)...... 14

Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal.

Bambee. ECR Ge veka iih tecnica ntpictectenicnensnsaesoanl 9

Colautti v. Franklin, 489 U.S. 379 (1979) ......... 6, 7, 18, 29

Connecticut v. Menillo, 423 U.S. 9 (1975) -.............. 7

Doe v. Bolton, 410 U.S. 179 (1978) ........-........---...-.. passim

Freiman v. Ashcroft, 584 F.2d 247 (8th Cir. 1978),

aff’d mem., 440 U.S. 941 (1979) -..2.02..22--ceeeeeeee ee 13

Gary-Northwest Indiana Women’s Services v.

Bowen, 496 F. Supp. 894 (N.D. Ind. 1980),

aff'd mem. sub nom. Gary-Northwest Indiana

Women’s Services v. Orr, 451 U.S. 934 (1981) .. 18

H.L. v. Matheson, 450 U.S. 398 (1981) —................ 13, 15

Harris v. McRae, 448 U.S. 297 (1980) ..................... 5

Illinois State Board of Elections v. Socialist Work-

ers Party, 440 U.S. 178 (1979) ...............-....--000---- 19

Leigh v. Olson, 497 F. Supp. 13840 (D.N.D. 1980).. 14

Maher v. Roe, 482 U.S. 464 (1977) ........................ 5

Margaret S. v. Edwards, 488 F. Supp. 181 (E.D.

BR IIIs icoeninisntisbt asi sussaacpelba Wamenabebitiahd cond appdiinasoiiboain 14

Mobile v. Bolden, 446 U.S. 55 (1980).............00........ 5

Planned Parenthood v. Danforth, 428 U.S. 52

CE) ihaiidcepteneedepieseecenisesianablamatatetoonnsicitastonnatnd passim

Planned Parenthood Association of Kansas City v.

Ashcroft, 488 F. Supp. 679 (W.D. Mo. 1980),

aff'd in part and rev’d in part, 655 F.2d 848,

supplemented, 664 F.2d 687 (8th Cir. 1981),

cert. granted, 50 U.S.L.W. 3934 (May 24, 1982)

(Nos. 81-1255 & 81-1623) ................ 8, 12, 14, 16, 19, 25

TABLE OF AUTHORITIES—Continued

Page

Planned Parenthood League of Massachusetts v.

Bellotti, 641 F.2d 1006 (1st Cir. 1981) ................ 18, 14

Roberts v. Wood, 206 F. Supp. 579 (S.D. Ala.

1962) 9

Roe v. Wade, 410 U.S, 118 (1973) passim

Salgo v. Leland Stanford Jr. University Board of

Trustees, 154 Cal. App. 2d 560, 317 P.2d 170

(1957) 8,11

Sard v. Hardy, 281 Md. 482, 879 A.2d 1014

(1977) 9,12

Scheinberg v. Smith, 659 F.2d 476 (5th Cir.

1981) 15

Sloan v. Lemon, 418 U.S. 825 (1978) -.................... 5

United States v. Vuitch, 402 U.S. 62 (1971).......... 29

West Virginia State Board of Education v. Bar-

nette, 319 U.S. 624 (1943) 10

Whalen v. Roe, 429 U.S. 589 (1977) 8, 29

Wooley v. Maynard, 480 U.S. 705 (1977) ............... 10

Woolley v. Henderson, 418 A.2d 1123 (Me. 1980).. 9

Word v. Poelker, 495 F.2d 1849 (8th Cir. 1974)... 9

Youngberg v. Romeo, 50 U.S.L.W. 4681 (June 18,

1982) 6

STATUTES:

Mo. Ann. Stat. § 188.025 (Vernon Supp. 1982)...... 19

Mo. Ann. Stat. § 188.028 (Vernon Supp. 1982) .... 16

Ohio Admin. Code 3701-47-06(B) (1975) ............. 9

Ohio Rev. Code Ann. § 2151.28 (Page 1976) ......... 15

40 Pa. Stat. Ann. §1301.103 (Purdon 1982-83

Supp.) 9

MEDICAL AUTHORITIES:

American Academy of Pediatrics, Committee on

Adolescence, Pediatrics (1979) 17

American College of Obstetricians and Gynecolo-

gists, Important Medical Facts About Abortion

(Patient Information Booklet 1978) ................... 11

American College of Obstetricians & Gynecolo-

gists, Standards for Obstetric-Gynecologic Serv-

ices (5th ed. 1982) 23, 24, 26, 28

TABLE OF AUTHORITIES—Continued

American College of Obstetricians & Gynecolo-

gists, Statement of Policy: Adolescent Repro-

ductive Health Care (1979) .................-.sssssseseeees

American College of Obstetricians & Gynecolo-

gists, Methods of Midtrimester Abortion, Tech-

nical Bulletin No. 56 (Dec. 1979) .........................

American Public Health Association, APHA Rec-

ommended Program Guide for Abortion Serv-

ices (Revised 1979), 70 Am. J. Pub. Health 652

REO ITO RG WED tae Hes one de © IEG hee el een ee

Benditt, Second-Trimester Abortion in the United

States, 11 Fam. Plan. Persp. 358 (1979) -...........

Burnett, King, Burkman & Atienza, An Evaluation

of Abortion: Techniques and Protocols, 10

BN, TEIN GU. CPOE soins eect datas sen cseesccavimins

Cadesky, Ravinsky & Lyons, Dilation and Evac-

uation: A Preferred Method of Midtrimester

Abortion, 189 Am. J. Obstet. & Gynecol. 329

NTT Soi esshinisinctataubdapccedabenaneammbernaen Neabigebaescdctalgh eaices

Cates, D&E After 12 Weeks: Safe or Hazardous?,

18 Contemp. Ob/Gyn 28 (1979) ......0...00-000000....

Cates & Grimes, Deaths From Second Trimester

Abortion by Dilatation and Evacuation: Causes,

Prevention, Facilities, 58 Obstet. & Gynecol. 401

i) ARRSROREEE SSS eb DUDE pr = ORM tO 21

Cates, Grimes, Smith & Tyler, Legal Abortion

Mortality in the United States: Epidemiologic

Surveillance, 1972-1974, 237 J. A.M.A. 452

Oy 5 gO RISE Head OEE SEAL: i Tet SR Oa

Cates, Rochat, Grimes & Tyler, Legalized Abor-

tion: Effect on National Trends of Maternal

and Abortion-Related Mortality (1940 through

1976), 182 Am. J. Obstet. & Gynecol. 211

PU Se hiciiccnccilacseceninde tee oadaceias Mhaealietieaiitesicanchisobls

Cates, Schulz, Grimes & Tyler, The Effect of Delay

and Method Choice on the Risk of Abortion

Morbidity, 9 Fam. Plan. Persp. 266 (1977)........

Page

, 22, 28

TABLE OF AUTHORITIES—Continued

Page

Cates, Schulz, Grimes, Horowitz, Lyon, Kravitz &

Frisch, Dilatation and Evacuation Procedures

and Second-Trimester Abortions, 248 J. A.M.A.

I ID ecccicecuicvecsttihinnnitieisipindltintatabeitedipiciions tgdesnitiiied 23

Cates, Smith, Rochat & Grimes, Mortality From

Abortion and Childbirth: Are the Statistics

Biased?, 248 J. A.M.A. 192 (1982) ....................... 20, 21

Cates & Tietze, Standardized Mortality Rates As-

sociated With Legal Abortion: United States

1972-1975, 10 Fam. Plan. Persp. 109 (1978)....... 20

Department of Medical & Public Affairs, George

Washington University Medical Center, Preg-

nancy Termination in Midtrimester—Review of

Major Methods, Population Rep., Series F, No. 5

IRR NR a ON) Te 21

Foster, Ambulatory Gynecologic Surgery, in Am-

bulatory Care in Obstetrics and Gynecology 399

OT: SN i I So ccniclinnteicinnsdaletiuisenmnntnipetncian 26

Grimes, Abortion and Health: Past, Present and

Future (Mar. 7, 1981) (Paper prepared for

Health Care Commission, American Ccllege of

Obstetricians and Gynecologists) .......................... 19

Grimes & Cates, Complications from Legally-

Induced Abortion: A Review, 34 Obstet. & Gy-

necol. Survey 177 (1979) ..........-.-------------+- 11, 19, 20, 22

Grimes & Cates, Dilatation and Evacuation, in Sec-

ond Trimester Abortion 119 (G. Berger, W.

Brenner & L. Keith ed. 1981) .........-.................. 22, 23

Grimes, Cates & Selik, Abortion Facilities and the

Risk of Death, 138 Fam. Plan. Persp. 30 (1981).. 23

Grimes, Cates & Tyler, Comparative Risk of Death

from Legally Induced Abortion in Hospitals and

Nonhospital Facilities, 51 Obstet. & Gynecol.

Ir MII cscs ican schitginntg taints scaeinesiotenhicgibeadilabnie 23

Grimes, Hulka & McCutchen, Midtrimester Abor-

tion by Dilatation and Evacuation Versus Intra-

amniotic Instillation of Prostaglandin F2X: A

Randomized Clinical Trial, 187 Am. J. Obstet. &

RRS en Ae ee” aes 22, 23

vii

TABLE OF AUTHORITIES—Continued

Page

Grimes, Schulz, Cates & Tyler, Methods of Mid-

trimester Abortion: Which is Safest?, i5 Int'l

J. Gynaecol. Obstet. 184 (1977) ..............2-.-.00-.-.. 21, 22

Grimes, Schulz, Cates & Tyler, Mid-Trimester

Abortion by Dilatation and Evacuation, 296

New Eng. J. Med. 1141 (1977) ........0.....0000000000..... 22

Henshaw, Forrest, Sullivan & Tietze, Abortion

in the United States, 1978-1979, 18 Fam. Plan.

Pm CN aaah cc snenscccecicicn 22, 25

Henshaw, Forrest, Sullivan & Tietze, Abortion

Services in the United States, 1979 and 1980, 14

Fam. Plan. Persp. 5 (1982) .....................0000..0000.. 25

H. Holtrop & R. Waife, Uterine Aspiration Tech-

niques in Family Planning (1976) ....................... 22

Hubacker, Dilatation and Extraction for Late Sec-

ond-Trimester Abortion, 15 Advances in Planned

UE I CRIED aise ccekictieeeaksicscncccsccreiioninnice 22

Laufman, Surgical Judgment, in Christopher’s

Textbook of Surgery 1459 (L. Davis 9th ed.

ERASERS SESS RU 2 9

LeBolt, Grimes & Cates, Mortality from Abortion

and Childbirth: Are the Populations Compar-

able?, 248 J. A.M.A. 188 (1982) 000.000. 20

Nathanson & Becker, Obstetricians’ Attitudes and

Hospital Abortion Services, 12 Fam. Plan.

I I a sccessandensen 25

National Commission for the Protection of Human

Subjects of Biomedical and Behavioral Research,

Research on the Fetus (U.S. Dep’t of HEW

i a 11

Nemiah, Psychological Aspects of Surgical Prac-

tice, . Surgery: A Concise Guide to Clinical

Practice 9 (G. Nardi & G. Zuidema 3d ed. 1972) .. 9

J. Pritchard & P. MacDonald, Williams Obstetrics

bMS SRA A ag cy SE RE eR 21, 23

Rooks & Cates, Emotional Impact of D&E vs. In-

stillation, 9 Fam. Plan. Persp. 276 (1977).......... 23

viii

TABLE OF AUTHORITIES—Continued

Page

Rubin, McCarthy, Shelton, Rochat & Terry, The

Risk of Childbearing Re-Evaluated, 71 Am. J.

BU RU TREE CHI catia ncecc ste thcomncpeeess 20

Tyler, Cates, Schulz, Selik & Smith, Second-

Trimester Induced Abortion in the United

States, in Second Trimester Abortion 13 (G.

Berger, W. Brenner & L. Keith ed. 1981) -........... 21, 22

United States Department of Health & Human

Services, Center for Disease Control, Abortion

Surveillance—Annual Summary 1978 (1980) .... 22

Waltz & Scheuneman, Informed Consent to Ther-

apy, 64 Nw. U.L. Rev. 628 (1970) ....................... 8

Wennberg, The Need for Assessing the Outcome of

Common Medical Practices, 1 Ann. Rev. Pub.

SINE TE TD biotech ninteescsschbenenetesiemnanainatien 19

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1982

Nos. 81-746 and 81-1172

CITY OF AKRON,

" Petitioner,

AKRON CENTER FOR REPRODUCTIVE HEALTH, INC., et al.,

Respondents.

AKRON CENTER FOR REPRODUCTIVE HEALTH, INC., et al.,

. Petitioners,

CITY OF AKRON, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE OF THE AMERICAN COLLEGE

OF OBSTETRICIANS AND GYNECOLOGISTS,

THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN ACADEMY OF PEDIATRICS, AND

THE NURSES ASSOCIATION OF THE

AMERICAN COLLEGE OF ORSTETRICIANS AND

GYNECOLOGISTS IN SUPPORT OF AKRON CENTER

FOR REPRODUCTIVE HEALTH, INC., ET AL.

INTEREST OF AMICI CURIAE

Amici curiae are four major organizations of health

care professionals. Each amicus is dedicated to promot-

ing the public welfare through the maintenance of high

professional standards and the provision of quality health

care,

Amicus American College of Obstetricians and Gyne-

cologists (“ACOG”) is a private, voluntary, nonprofit

organization of physicians specializing in obstetric-

gynecologic care. ACOG is the leading group of profes-

sionals providing health care to women; its 23,000 mem-

bers represent approximately 90% of all obstetricians and

gynecologists practicing in the United States.

Amicus American Medical Association (“AMA”) is a

private, voluntary, nonprofit organization of physicians.

AMA was founded in 1846 to promote the science and art

of medicine and the betterment of public health. Today,

its membership exceeds 234,700.

Amicus American Academy of Pediatrics (“AAP”) is

a nonprofit Pan-American Association of approximately

24,000 physicians certified in the care of infants, children

and adolescents. AAP’s principal purpose is to ensure the

attainment by all children of their full potential for phy-

sical, emotional and social health. Because of its commit-

ment to the physical and mental wellbeing of our na-

tion’s youth, AAP has a particular interest in the par-

ental consent issues discussed in Section II of this brief.

Amicus Nurses Association of The American College of

Obstetricians and Gynecologists (“NAACOG”) is a pri-

vate, voluntary, nonprofit organization of 17,000 regis-

tered nurses and allied health workers specializing in

obstetric-gynecologic nursing care. NAACOG’s primary

goal is to promote excellence in health care by further-

ing continuing education and setting standards for nurs-

ing practice.

Amici’s interest arises from their devotion to the provi-

sion of the highest possible quality health care, their dedi-

cation to good medical practice, and their commitment to

ensuring that patients can freely seek and obtain medical

care and that physicians are in a position to discharge

their responsibility to provide care and treatment accord-

ing to their best clinical judgment and professional and

ethical standards. Amici’s interest is not in debating :the

philosophical, ethical, moral or religious issues surround-

ing abortion; indeed, their members ascribe to widely

divergent views on these issues. The organizations’ mem-

bers, however, share an interest in making certain that,

once a patient has made a decision to seek medical care

or treatment, such as an abortion, state laws do not un-

duly interfere with the physician’s ability to exercise his

best judgment in carrying out the patient’s decision in

the manner most suited to her particular health needs.'

The provisions of the Akron ordinance at issue in this

case, like the statutory restrictions under review in other

cases pending before the Court,’ interfere with the free

exercise of a woman’s right to seek and obtain wanted

medical care, prevent her physician from exercising his

best professional judgment and providing patients with

the best possible medical care, and present a serious ob-

stacle to sound medical practice. Because the outcome of

these cases will directly affect the professional services

amici members provide and the patients whom they serve,

amici wish to present their views as to the important

medical issues raised by the statutory restrictions.*

SUMMARY OF ARGUMENT

Akron Ordinance Section 1870.06(B), which requires

a physician to recite to his patient, before obtaining her

consent to an abortion, seven paragraphs of supposed

“facts” unrelated to the medical services being rendered—

despite what may be his belief that many of the required

statements are untrue, without scientific foundation or

contraindicated by his patient’s particular needs—uncon-

stitutionally burdens the woman’s right, in consultation

with her physician and based on his professional opinion,

1 Such interest prompted ACOG to file briefs amicus curiae in

Roe v. Wade, 410 U.S. 118 (1973), and Doe v. Bolton, 410 U.S. 179

(1973).

2 See, e.g., Planned Parenthood Ass'n of Kansas City v. Ashcroft

(No. 81-1255); Ashcroft v. Planned Parenthood Ass’n of Kansas

City (No. 81-1623).

8 The parties’ written consents to the filing of this brief are being

filed with the Clerk pursuant to Rule 36 of the Rules of this Court.

to decide whether to terminate her pregnancy and serves

no legitimate state interest.

Akron Ordinance Section 1870.05(B), which makes

punishable as a crime the performance of an abortion on

a minor under fifteen years of age who has not produced

the written consent of a parent or a court order, uncon-

stitutionally inhibits the right to seek an abortion by vest-

ing in a third party an absolute veto over the minor’s

decision even where she is mature enough fully to under-

stand and intelligently to consent to an abortion and by

denying a minor whose best interests militate against

parental notice access to an independent judicial deter-

mination that she is sufficiently mature to consent or that

an abortion would be in her best interests.

Akron Ordinance Section 1870.03, which requires that

all abortions after the first trimester be performed in

hospitals, unconstitutionally interferes with a woman’s

ability to obtain an abortion and her physician’s ability

to implement her decision in a manner best suited to her

health needs, without providing any discernible safety

benefit or serving any compelling health interest to which

it is sufficiently narrowly tailored.

ARGUMENT

I. DETAILED SPECIFICATION OF THE INFORMA-

TION THAT A PHYSICIAN MUST PROVIDE EACH

ABORTION PATIENT UNCONSTITUTIONALLY

BURDENS THE PATIENT’S RIGHT, IN CONSUL-

TATION WITH HER PHYSICIAN, TO DECIDE

WHETHER TO TERMINATE HER PREGNANCY.

Akron Ordinance Section 1870.06(B) requires an at-

tending physician to recite to a patient seeking an abor-

tion seven paragraphs of supposed “facts” before obtain-

ing her “informed consent” to the procedure. No discre-

tion or flexibility is permitted: on pain of criminal lia-

bility,t the physician must “make [the same specified]

4Akron, Ohio, Codified Ordinances ch. 1870, § 1870.18(A)

(“Akron Ordinance”). The imposition of criminal sanctions for

violation of the provisions of Akron Ordinance Chapter 1870 consti-

disclosures in all cases regardless of his own professional

judgment as to the desirability of doing so”* and even

though he may believe—as most physicians do—that

many of the specified “facts” are untrue, unsupported

by medical or scientific evidence, contrary to sound medi-

cal practice, irrelevant to any conceivable medical pur-

pose, or contraindicated for certain patients. This re-

quirement unduly restricts the exercise of medical judg-

ment by the attending physician and unconstitutionally

burdens the woman’s right to decide, in consultation with

her physician and in accordance with his best medical

judgment, to terminate her pregnancy.®

tutes “direct state interference with a protected activity” (Maher

v. Roe, 482 U.S. 464, 475 (1977)), rather than the sort of “state

encouragement of an alternative activity consonant with legislative

policy” at issue in Maher and Harris v. McRae, 448 U.S. 297

(1980). Since “[c]Jonstitutional concerns are greatest” when, as

here, “the State attempts to impose its will by force of law”

(Maher v. Roe, 432 U.S. at 476) and since Akron’s requirements

directly “impinge[] upon a fundamental right . . . implicitly secured

by the Constitution,” they are “presumptively unconstitutional”

(Harris v. McRae, 448 U.S. at 312, quoting Mobile v. Bolden, 446

U.S. 55, 76 (1980)), “may be justified only by compelling State

interests, and must be narrowly drawn to express only those inter-

ests.” Carey v. Population Serv. Int'l, 431 U.S. 678, 686 (1977).

5 Akron Center for Reproductive Health, Inc. v. City of Akron,

651 F.2d 1198, 1207 (6th Cir. 1981), aff’g in part and rev’g in part

479 F. Supp. 1172 (N.D. Ohio 1979) (“Akron Center’).

6 Amici believe that three of the seven paragraphs of Section

1870.06(B)—subsections (3), (4) and (5)—are not properly before

the Court because the City essentially conceded their unconstitu-

tionality before the court of appeals. See Brief for City of Akron at

9, 35-36 (Feb. 28, 1980). We address Section 1870.06(B) as a whole,

however, because the City has suggested to this Court that the

section is constitutional in its entirety and because the individual

subparts of Section 1870.06(B) are not severable. See Akron Cen-

ter, 651 F.2d at 1207; 479 F. Supp. at 1202-03; see also Sloan v.

Lemon, 413 U.S. 825, 834 (1973).

A. The Decision To Terminate Pregnancy Is a Decision

To Be Made by the Patient in Consultation with Her

Physician.

This Court held in Roe v. Wade, 410 U.S. 118 (1973),

and Doe v. Bolton, 410 U.S. 179 (1973), that a woman

has a constitutional right, in consultation with her physi-

cian and based on his professional opinion, to decide to

terminate her pregnancy free from undue state inter-

ference. Those cases emphasized the central role of the

physician-patient relationship in the abortion decision:

The [Roe] decision vindicates the right of the physi-

cian to administer medical treatment according to

his professional judgment up to the points where

important state interests provide compelling justifi-

cations for intervention. Up to those points, the

abortion decision in all its aspects is inherently, and

primarily, a medical decision, and basic responsibility

for it must rest with the physician."

Recognizing that the physician-patient relationship is

the preferred forum for abortion decisionmaking, the

Court has invalidated a number of state-imposed restric-

tions on access to abortion that impermissibly intrude on

that relationship.’ In Doe, for example, the Court struck

down requirements that all abortions be performed in

7 Roe v. Wade, 410 U.S. at 165-66 (emphasis added). See also

Planned Parenthood v. Danforth, 428 U.S. 52, 61 (1976) (“The

participation by the attending physician in the abortion decision,

and his responsibility in that decision, thus, were emphasized [in

Roe]"”); Colautti v. Franklin, 489 U.S. 379, 387 (1979) (“Roe

stressed repeatedly the central role of the physician, both in consult-

ing with the woman about whether or not to have an abortion, and

in determining how any abortion was to be carried out. . . . Roe’s

companion case, [Doe], underscored the importance of affording

the physician adequate discretion in the exercise of his medical

judgment”).

8 The Court has recognized the importance of “deference to the

[presumptively valid”] judgment exercised by a qualified profes-

sional” in other contexts as well. See, e.g.. Youngberg v. Romeo,

50 U.S.L.W. 4681, 4684-85 (June 18, 1982).

accredited hospitals, that two other doctors concur in the

attending physician’s decision that an abortion would be

in his patient’s best interests, and that a “hospital com-

mittee” approve each abortion. In Planned Parenthood

v. Danforth, 428 U.S. 52, 82-83 (1976), the Court invali-

dated a provision requiring the attending physician to

“preserve the life and health of the fetus” regardless of

the stage of his patient’s pregnancy. And in Colautti v.

Franklin, 489 U.S. 379, 382 (1979), the Court found

unconstitutionally vague a similar provision that imposed

criminal liability on any physician who failed to deter-

mine whether there was “sufficient reason to believe that

the fetus may be viable” and to employ the technique that

“would provide the best opportunity for the fetus to be

aborted alive... .”%

In contrast, the Court has upheld state regulations that

recognize the importance of physician-patient consulta-

tion," as well as regulations that neither “encumber[]

the woman’s exercise of [her] constitutionally protected

right” because they place no “obstacles in the path of the

doctor upon whom she [is] entitled to rely for advice in

9410 U.S. at 193-95, 198-200, 195-98. The committee require-

ment, the Court noted, “substantially limit[s]” the “woman’s right

to receive medical care in accordance with her licensed physician’s

best judgment and the physician’s right te administer it.” Id. at

197.

10The Court held that, by “condition[ing] potential criminal

liability on confusing and ambiguous criteria,’ the statute had a

“profound chilling effect” on physicians’ wiliingness to perform

certain abortions “in the manner indicated by their best medical

judgment.” 439 U.S. at 394, 396.

11 See, e.g., Connecticut v. Menillo, 423 U.S. 9, 11 (1975) ; ef. Doe

v. Bolton, 410 U.S. at 191-92 (statute requiring that physician’s

performance of abortion be “based upon his best clinical judgment

that an abortion is necessary” read to permit physician to consider

“all factors—physical, emotional, psycholcgical, familial, and the

woman’s age—relevant to the well-being of the patient” so as to

“allow[] the attending physician the room he needs to make his

best medical judgment”).

connection with her decision” ” nor “confine the attend-

ing physician in an undesired and uncomfortable strait-

jacket in the practice of his profession.” * Since Roe,

the decisions of this Court have repeatedly emphasized

that a woman has the right to choose her response to

pregnancy upon consultation with a physician who is in a

position properly to advise her and to determine, in light

of medical ethics and professional standards of care, how

best to effectuate her informed decision.

B. The Requirement That a Physician Recite a Stand-

ard Checklist of Information in All Cases, Regard-

less of the Circumstances, Significantly Interferes

with the Physician-Patient Relationship and May

Disserve the Patient’s Best Interests.

The purpose of providing information to a patient

about a contemplated medical procedure is to enable the

patient to evaluate knowledgeably its risks and benefits

and to decide intelligently whether or not to undergo the

procedure.’* Each patient, however, is unique and, con-

sistent with the disclosure of facts necessary to obtain

informed consent, a physician must be able to exercise

discretion in determining the amount, nature and mode

of presentation of the information that should be con-

veyed to a particular patient under the circumstances

presented.* “In determining whether and how much he

should disclose, the physician must consider the probable

12 Whalen v. Roe, 429 U.S. 589, 605 n.33 (1977).

13 Planned Parenthood v. Danforth, 428 U.S. at 67 n.8 (upholding

a statute that, rather than straitjacketing the physician, required

only that the patient “certify in writing her consent to the [abor-

tion] and ‘that her consent is informed and freely given and is not

the result of coercion’ ” ; id. at 65).

14 See, e.g., Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) ; Waltz & Scheuneman, Informed

Consent to Therapy, 64 Nw. U. L. Rev. 628, 630 (1970).

15 See, e.g., Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees,

154 Cal. App. 2d 560, 578, 317 P.2d 170, 181 (1957).

impact of disclosure on the patient, taking into account

his peculiar knowledge of the patient’s psychological, emo-

tional and physical] condition, and must evaluate the mag-

nitude of the risk, the frequency of its occurrence and the

viability of alternative therapeutic measures.” Woolley

v. Henderson, 418 A.2d 1123, 1180 (Me. 1980) .?*

In discharging his responsibility adequately to inform

his patient about a contemplated abortion, as with his

other professional responsibilities, the physician must be

permitted “the room he needs to make his best medical

judgment.” Doe v. Bolton, 410 U.S. at 192.7 Akron

16 Just as some patients wish to be informed about every con-

ceivable complication, no matter how remote, that may result

from a surgical procedure, others find such information frighten-

ing and prefer to be spared the details. See, e.g., Laufman, Surgical

Judgment, in Christopher’s Textbook of Surgery 1459 (L. Davis

9th ed. 1968) ; Nemiah, Psychological Aspects of Surgical Practice,

in Surgery: A Concise Guide to Clinical Practice 9 (G. Nardi &

G. Zuidema 3d ed. 1972). Indeed, in certain cases there may be valid

medical reasons for nondisclosure. See, e.g., Canterbury v. Spence,

464 F.2d at 789; Sard v. Hardy, 281 Md. 432, 443, 379 A.2d 1014,

1022 (1977) ; 40 Pa. Stat. Ann. § 1301.103 (Purdon 1982-83 Supp.).

For example, when excessive disclosure would result in anxiety,

fear, emotional distress or even increased physical pain, a doctor

may decide in the exercise of his best professional judgment to

tell his patient no more than she wishes to hear. See, e.g., Roberts

v. Wood, 206 F. Supp. 579, 583 (S.D. Ala. 1962) (disclosure of

risks of “a technical nature beyond the patient’s understanding”

may cause “anxiety, apprehension, and fear... [with] a very detri-

mental effect on some patients”); Woolley v. Henderson, 418 A.2d

at 1130 (the doctor must decide “whether disclosure of possible

risks may have such an adverse effect on the patient as to jeopardize

success of the proposed therapy”; “full disclosure under some cir-

cumstances could constitute bad medical practice”) ; Cobbs v. Grant,

8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972) (en banc) (a

patient has a right to decline to be informed about the risks of

a proposed medical procedure). Cf. Ohio Admin. Code § 3701-47-06

(B) (1975) (pre-abortion counseling “shall not be forced upon the

woman”’).

17 Indeed, it is the patient’s right to obtain her doctor’s inde-

pendent judgment about such matters. See, e.g., Word v. Poelker,

495 F.2d 1349, 138652 (8th Cir. 1974).

Ordinance Section 1870.06(B) allows a physician none

of this room. By spelling out the information that each

patient must receive, regardless of her unique needs and

the physician’s professional judgment as to what is in

that patient’s best interests, it imposes on the physician

exactly the sort of “undesired and uncomfortable strait-

jacket” the Court cautioned against in Danforth."

C. The Requirement That a Physician Provide Infor-

mation He Believes To Be Untrue, Without Medical

Foundation, or Not in His Patient’s Best Interests

Serves No Legitimate State Interest.

By denying a patient the independent judgment of her

physician and depriving the physician, on pain of crim-

inal prosecution, of the opportunity to administer to the

individual needs of his patients, Section 1870.06(B)

would be constitutionally objectionable even if the infor-

mation required to be conveyed were accurate and perti-

nent. But the required information is not all accurate

and pertinent; Section 1870.06(B) thus suffers from in-

firmities far more serious than merely confining the

physician to a prepared speech.

First, Section 1870.06(B) requires the attending physi-

cian to convey to his patients information that he—like

most physicians—may believe to be demonstrably false.'*

For example, the doctor is required to inform his patient

that the fetus may be viable at a gestational age of only

22 weeks,”® even though there is no scientific or medical

18 428 U.S. at 67 n.8. Compare Akron Ordinance § 1870.06(C),

which requires only that the physician inform his patient “of the

particular risks associated with her own pregnancy and the abortion

technique to be employed,” including instructions for post-operative

care, and provide her “with such other information [as] in his own

medical judgment is relevant to her decision.”

19 This raises serious ~estions under the first amendment. See

Wooley v. Maynard, 430 U.S. 705 (1977); West Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624 (1943).

20 Akron Ordinance § 1870.06(B) (4).

evidence to support this statement and the experience of

the profession confirms its inaccuracy.”*

The doctor also is required to tell his patient that abor-

tion is a “major surgical procedure,” ** despite the fact

that most physicians regard abortion, particularly if per-

formed during the first 18 weeks of pregnancy, as a

relatively minor surgical procedure.” In addition, the

doctor is required to tell his patient that abortion can

result in “serious complications, including hemorrhage,

. . . Sterility and miscarriage and prematurity in sub-

sequent pregnancies” and that it may leave unaffected or

worsen existing psychological problems or result in “se-

vere emotional disturbances,”™ notwithstanding that

there is little or no evidence that a properly performed

abortion increases the risk of any such complications,”

And, in any event, the required recitation of possible

complications is grossly misleading in the absence of

information as to the frequency with which these com-

plications occur.”

21“TO]n an empirical basis the current limits of viability are

clear: there is no unambiguous documentation that an infant born

weighing less than 601 grams at a gestational age of 24 weeks or

less has ever survived.” Nat’l Comm’n for the Protection of Human

Subjects of Biomedical and Behavioral Research, Research on the

Fetus 55 (U.S. Dep’t of HEW 1975). See also Grimes & Cates,

Complications from Legally-Induced Abortion: A Review, 34 Obstet.

& Gynecol. Survey 177, 182 (1979) (“Grimes & Cates”).

22 Akron Ordinance § 1870.06(B) (5).

28 The district court so found based on the evidence presented at

trial. Akron Center, 479 F. Supp. at 1208. See also nn. 47-55 &

nn. 63-65 and accompanying text infra.

24 Akron Ordinance § 1870.06(B) (5).

25 See ACOG, Important Medical Facts About Abortion 10 (Pa-

tient Information Booklet 1978).

26 An explanation of remote risks, absent information as to the

unlikelihood of their occurrence, “may well result in alarming a

patient who is already unduly apprehensive and who may as a re-

sult refuse” treatment or may increase “the risks by reason of the

physiological results of the apprehension itself.” Salgo v. Leland

Second, Section 1870.06(B) requires the attending

physician to convey, as if it were an established fact,

information for which there is no medical foundation.

For example, it requires the physician to inform his

patient of the “unborn child’s” sensitivity to pain, not-

withstanding the medical profession’s complete ignorance

on that subject.”

Third, Section 1870.06(B) requires the attending physi-

cian prior to performing an abortion to supply informa-

tion that bears no relevance to the contemplated procedure

or to related medical concerns. For example, the section

requires the physician to inform his patient that the

embryo or fetus is “a human life from the moment of

conception” and to describe “in detail the anatomical and

physiological characteristics of the particular unborn

child at the gestational point of development at which

time the abortion is to be performed,” including “appear-

ance, mobility, tactile sensitivity, including pain, percep-

Stanford Jr. Univ. Bd. of Trustees, 154 Cal. App. 2d at 578, 317

P.2d at 181; see also n.16, supra. Accordingly, courts have tradi-

tionally recognized that “(t]he physician need not deliver a

‘lengthy polysyllabic discourse on all possible complications’ ” and

that the physician is under no duty “to discuss the relatively re-

mote risks inherent in common procedures.” Sard v. Hardy, 281

Md. at 444, 445, 379 A.2d at 1022.

Indeed, by its omission, Akron Ordinance Section 1870.06 (B) (5)

leaves the erroneous impression that the patient can avoid “serious

complications” by forgoing abortion and electing childbirth, an

option that actually may pose a greater risk to her health. See

nn. 49-55 and accompanying text infra.

27479 F. Supp. at 1203. The section also requires the physician

to inform the patient that she “is” pregnant and of the number of

weeks that have elapsed since conception. The effect of these re-

quirements is to prohibit the performance of menstrual extractions

to terminate a pregnancy, a procedure performed soon after the

first missed menstrual period, since at that time the physician

cannot determine conclusively—as Section 1870.06(B) requires him

to do—that the patient “is” pregnant. See Planned Parenthood

Ass’n of Kansas City v. Ashcroft, 483 F. Supp. 679, 697-98 (W.D.

Mo. 1980), aff'd in part and rev’d in part, 655 F.2d 848, 868-69,

supplemented, 664 F.2d 687 (8th Cir. 1981), cert. granted, 50

U.S.L.W. 3984 (May 24, 1982).

tion and response, brain and heart function, the presence

of internal organs and the presence of external mem-

bers.” ** Both Akron’s “theory of life” ** and the anatom-

ical and physiological description of the embryo or fetus

are plainly “irrelevant and extraneous to the medical

services being rendered” and contribute in no way to the

patient’s understanding of the nature of the proposed

procedure or to her weighing of the risks and benefits

thereof.”

There can be no doubt that the intended purpose, and

presumably the effect, of Section 1870.06(B) is to dis-

courage patients from obtaining abortions. But the City

of Akron has no legitimate interest, compelling or other-

wise, in requiring a physician to provide his patient with

inaccurate, baseless or irrelevant information that might

intimidate and deter her from effectuating her decision

to terminate her pregnancy. Section 1870.06(B) thus

impermissibly burdens the patient’s exercise of her con-

stitutional right, in consultation with her physician, to

decide whether and how to terminate her pregnancy and

gratuitously encroaches on the physician’s exercise of his

professional judgment as to the nature and extent of the

information his patient needs or desires to make an

informed decision. While a narrowly drawn requirement

that the patient certify that her decision to have an abor-

tion has been made without coercion may be permissible,™

28 Akron Ordinance § 1870.06(B) (3).

29 Roe v. Wade, 410 U.S. at 162.

30 Freiman v. Ashcroft, 584 F.2d 247, 251 (8th Cir. 1978), aff'd

mem., 440 U.S. 941 (1979). See Planned Parenthood League of

Mass. v. Bellotti, 641 F.2d 1006, 1021 (1st Cir. 1981) (striking

down a statute requiring the disclosure of information “not directly

material to any medically relevant fact, and [that] does not serve

the concern for providing adequate medical information that lies

at the heart of the informed consent requirement”). Similarly

irrelevant and thus equally objectionable are Sections 1870.06(B) (6)

and (7) of the Akron ordinance.

81 See Planned Parenthood v. Danforth, 428 U.S. at 65-67. In a

footnote in H.L. v. Matheson, 450 U.S. 398, 400 n.1 (1981), the Court

Section 1870.06(B) goes too far in requiring the physi-

cian to read a lengthy statement, major portions of which

are untrue, without foundation or irrelevant, and even

when to do so might be “unwelcome, and medically contra-

indicated.” *

II. THE REQUIREMENT THAT ALL MINORS OBTAIN

PARENTAL CONSENT OR COURT AUTHORIZA-

TION FOR AN ABORTION IS UNCONSTITU-

TIONAL.

Akron Ordinance Section 1870.05(B) makes punish-

able as a crime the performance of an abortion on a

minor under fifteen years of age who has not produced

the written consent of a parent or a court order. Au-

thorization may be withheld even from a minor who has

demonstrated that she “has attained sufficient maturity

to make a fully informed decision” regarding termination

of her pregnancy. Bellotti v. Baird, 443 U.S. 622, 650

in dictum referred to a Utah informed consent statute. The consti-

tutionality of that statute, however, was not before the Court.

Moreover, the Utah statute, which referred in genera! terms to

fetal development and “abortion procedures” and provided for the

disclosure of additional information that the physician considered

relevant, was substantially less intrusive than Akron Ordinance

Section 1870.06(B).

82 Planned Parenthood League v. Bellotti, 641 F.2d at 1022. Sig-

nificantly, every federal court that has considered similar, detailed

recitations that leave the physician no discretion to tailor the

information to the particular needs of his patients has held such

requirements to be an unwarranted intrusion into the physician-

patient relationship and an unconstitutional burden on the exercise

of a patient’s constitutionally protected right to obtain an abortion

on consultation with a physician who is free to exercise his best

judgment. See, e.g., Planned Parenthood Ass’n of Kansas City v.

Ashcroft, 655 F.2d at 866-68 (no review sought); Planned Parent-

hood League v. Bellotti, 641 F.2d at 1018-22; Charles v. Carey, 627

F.2d 772 (7th Cir. 1980) ; Leigh v. Olson, 497 F. Supp. 1840 (D.N.D.

1980); Margaret S. v. Edwards, 488 F. Supp. 181 (E.D. La. 1980).

(1979) .** The decisions of this Court in Planned Parent-

hood v. Danforth and Bellotti v. Baird leave no doubt that

such a regulation, which permits an absolute third party

veto, parental or judicial, of a minor’s decision to termi-

nate her pregnancy, even where she is mature enough

fully to understand and intelligently to make such a

decision and to consent to an abortion, is unconstitu-

tional.™

Section 1870.05(B) is also constitutionally infirm be-

cause, as a practical matter, it requires parental notice of

every abortion sought by a minor.” Such compulsory

38 See Scheinberg v. Smith, 659 F.2d 476, 480-81 (5th Cir. 1981)

(statute that “does not provide an exception to [best interests]

inquiry when the court determines that the minor in question is

adequately mature to make the abortion decision herself” vests a

court “with constitutionally impermissible discretion to ignore a

minor’s maturity in determining whether to authorize her abor-

tion’’).

%4In Danforth, 428 U.S. at 74, the Court held that “the State

does not have the constitutional authority to give a third party an

absolute, and possibly arbitrary, veto over the decision of the

physician and his patient to terminate the patient’s pregnancy” ;

in Bellotti, 443 U.S. at 647, a plurality of the Court held that

“every minor must have the opportunity—if she so desires—to go

directly to a court without first consulting or notifying her par-

ents.” In H.L. v. Matheson, 450 U.S. at 413, the Court upheld a

parental notice provision challenged by an unemancipated minor

who lived at home and depended on her parents for support, but

left open the question whether a parental notice requirement would

be constitutional as applied to mature or “best interests” minors.

See id. at 420 (Powell, J., concurring) (“a State may not validly

require notice to parents in all cases, without providing an inde-

pendent decisionmaker to whom a pregnant minor can have re-

course if she believes that she is mature enough to make the abor-

tion decision independently or that notification otherwise would

not be in her best interests”).

85 Ohio law, which governs proceedings under the ordinance

(Brief for Petitioner City of Akron at 4 n.2, 26), requires that all

complaints filed in juvenile court be served on the minor’s parents.

Ohio Rev. Code Ann. § 2151.28 (Page 1976).

parental notice in all cases denies maturé and best inter-

ests minors access to judicial proceedings that “will be

completed with anonymity and sufficient expedition,” **

and cannot be reconciled with Beliotti’s pronouncement

that “the constitutional right to seek an abortion may

not be unduly burdened by state-imposed conditions upon

initial access to court.” **7 A mature minor or a minor

whose best interests militate against parental notification

must be permitted, without parental notification or con-

sultation, to seek an independent judicial determination

that she is mature enough to consent or that an abortion

would be in her best interests.**

Amici recognize the interest in fostering parental

consultation and advice “in important decisions by

minors.” Bellotti v. Baird, 448 U.S. at 637. But the

physician’s primary duty is to his patients, and many

minors are sufficiently mature to make reasonable and

responsible decisions about their medical needs. Where

the reasonably expected parental reaction to such a

minor’s interest in terminating her pregnancy would be

verbal or physical abuse, expulsion from the home or a

similar extreme reaction, the minor is entitled to receive

medical care without attempting to surmount the ob-

stacle of parental consultation. Indeed, the specter of

parental notice in such circumstances may deny the minor

medical care and consultation altogether, cause extreme

anxiety and mental distress, or result in a delay in seek-

36 Bellotti v. Baird, 443 U.S. at 644.

37 Td. at 648.

88 Missouri requires written parental consent or court authoriza-

tion of an abortion for all minors under eighteen who are not

“emancipated.” Mo. Ann. Stat. § 188.028 (Vernon Supp. 1982), at

issue in Planned Par:nthood Ass’n of Kanixs City v. Ashcroft (No.

81-1255). The Missouri requirement is unconstitutional for the

same reasons that Akron Ordinance Section 1870.05(B) is unconsti-

tutional.

ing an abortion that itself may lead to increased health

risks or the birth of an unwanted child.** For these

reasons, amicus ACOG has taken the position that pro-

fessionals working with adolescents should “encourage

family involvement whenever feasible,” but that “the

adolescent should not be denied care and services by

reason of such considerations.” *° ACOG’s view, based

upon the experience of its members, is that regulations

and “[plolicies which prevent confidentiality deter ado-

lescents from seeking care, and should be avoided in the

interest of health.” *

Ii. THE REQUIREMENT THAT ALL SECOND TRI-

MESTER ABORTIONS BE PERFORMED IN HOS-

PITALS IS UNCONSTITUTIONALLY OVERBROAD.

In Roe v. Wade, the Court held that, notwithstanding

a woman’s constitutional right to decide, in consultation

with her physician, “whether or not to terminate her

pregnancy,” abortion implicates certain state interests,

including the protection of maternal health, which grow

“as a woman approaches term.” 410 U.S. at 153, 162-63.

Once those interests become “ ‘compelling,’ ” the state may

regulate the abortion decision in ways reasonably related

to its interest. Zd. at 163.

On the basis of “present medical knowledge” at that

time—specifically, the “established medical fact” that

“until the end of the first trimester mortality in abor-

39 “(T]he abortion decision is one that simply cannot be post-

poned, or it will be made by default with far-reaching conse-

quences.” Bellotti v. Baird, 443 U.S. at 643.

40 ACOG, Statement of Policy: Adolescent Reproductive Health

Care (1979) (emphasis added).

41 Jd. As explained to the United States Department of Health

and Human Services on April 15, 1982, the position of amicus

AMA regarding the provision of health care to adolescents and con-

fidentiality policies is virtually identical to ACOG’s position. See

also AAP, Committee on Adolescence, Pediatrics 71-73 (1979).

tion may be less than mortality in normal childbirth”’—

the Court in Roe held that the state could regulate

the abortion decision to promote its interest in ma-

ternal health “[fJor the stage subsequent to approxi-

mately the end of the first trimester... .”* As the

Court stated, except when in light of “present medical

knowledge,” it would be “equally dangerous” for a woman

to forgo abortion, “any interest of the State in protecting

the woman from an inherently hazardous procedure .. .

has largely disappeared.” 410 U.S. at 149.

The Court has recognized that “present medical knowl-

edge” changes, and that flexibility in defining the critical

points at which state interests become compelling in order

to accommodate advances in medical science is essential.

With respect to the state’s interest in the potential life of

the fetus, for instance, the Court has declined to permit

the states to establish a specific point of presumptive via-

bility and has instead deliberately “left the [compelling]

point flexible for anticipated advancements in medical

skill.” *

42 Jd. at 163-64. See also Doe v. Bolton, 410 U.S. 179.

43 Colautti v. Franklin, 439 U.S. at 387. See also Roe v. Wade,

410 U.S. at 159-61; Planned Parenthood v. Danforth, 428 U.S. at

61, 64.

Despite its conclusions that decisions of other courts finding that

the state’s maternal health interest does not automatically become

compelling at the end of the first trimester are “persuasive” and

that the evidence “in the present case was more detailed than that

produced” in Gary-Northwest Indiana Women’s Serv. v. Bowen, 496

F. Supp. 894 (N.D. Ind. 1980), aff’d mem. sub nom. Gary-Northwest

Indiana Women’s Serv. v. Orr, 451 U.S. 934 (1981), the court of ap-

peals in this case held, on the basis of the summary affirmance of

Gary-Northwest, that no such flexibility exists and that the begin-

ning of the second trimester is a “bright line” point at which the

state’s interest in maternal health automatically becomes compelling.

651 F.2d at 1210. The court erronedusly overlooked the fact that,

as one of its bases for affirmance, the state in Gary-Northwest

relied upon the district court’s finding that “Plaintiff’s [legal]

theory, even if accurate, lacked sufficient evidence to support it”

(Appellee’s Motion to Affirm at 4), so that the issue of whether

In the nine years since Roe was decided, medical knowl-

edge has progressed dramatically and, now, “more is

known about the morbidity and mortality of induced

abortion than any other surgical procedure.” “ Measured

as it must be “in the light of present medical knowl-

edge,” ** Akron Ordinance Section 1870.03, requiring that

all abortions after the first trimester be performed in

hospitals, cannot stand.“

A. Abortion Today, When Performed Prior to the Late

Second Trimester, May Be Performed as Safely in

a Properly Licensed Nonhospital Facility as in a

Hospital.

Abortion today, while perhaps politically controversial,

is a remarkably safe medical procedure. A patient under-

going an abortion faces about the same risk of death as

does a patient receiving an intra-muscular injection of

penicillin for gonorrhea.** A tonsillectomy is twice as

risky, and an appendectomy is nearly a hundred times as

risky, as a legal abortion.*®

the beginning of the second trimester forms a “bright line” was

“by no means adequately presented to and necessarily decided by

this Court.” Jllinois State Bd. of Elections v. Socialist Workers

Party, 440 U.S. 173, 183 (1979).

44 Grimes & Cates at 177.

45 Roe v. Wade, 410 U.S. at 163; Planned Parenthood v. Danforth,

428 U.S. at 61.

46 The same is true of Missouri staty 188.025 under considera-

tion in Ashcroft v. Planned Parenthow “Ass'n of Kansas City (No.

81-1623). Mo. Ann. Stat. § 188.025 (Vernon Supp. 1982).

47 Grimes, Abortion and Health: Past, Present and Future 5

(Mar. 7, 1981) (Paper prepared for Health Care Commission,

American College of Obstetricians and Gynecologists). From 1972

through 1978, the death-to-case rate for legal abortions was 2.2

deaths per 100,000 procedures; the rate for penicillin injections

administered to gonorrhea patients was 2 deaths per 100,000 in-

jections. Id.

48 Jd. See also Wennberg, The Need for Assessing the Outcome

of Common Medical Practices, 1 Ann. Rev. Pub. Health 277 (1980).

Legal abortion is also safer than childbirth. While the

mortality rates for both childbirth and abortion are quite

low and on the decline, the mortality rate for abortion is

declining at a faster pace. As a result, the risk of death

from childbearing, which was five times the risk of

death from legal abortion between 1972 and 1975,” grew

to ten times the risk of death from legal abortion be-

tween 1976 and 1978.°' And while childbirth was the

more frequent response to pregnancy, it is still significant

that, on average, approximately three times as many

women died from childbearing each year between 1972

and 1978 than the total number of women who died from

legal abortions in all those years combined.”

The mortality rate for second trimester abortions has

also fallen dramatically since Roe v. Wade was decided.™

49 LeBolt, Grimes & Cates, Mortality From Abortion and Child-

birth: Are the Populations Comparable?, 248 J. A.M.A. 188, 189-90

(1982) (“LeBolt, Grimes & Cates’). See also Cates, Rochat, Grimes

& Tyler, Legalized Abortion: Effect on National Trends of Mater-

nal and Abortion-Related Mortality (1940 through 1976), 182 Am.

J. Obstet. & Gynecol. 211 (1978).

5° Cates, Smith, Rochat & Grimes, Mortality From Abortion and

Childbirth: Are the Statistics Biased?, 248 J. A.M.A. 192 (1982)

(“Cates, Smith”); Cates & Tietze, Standardized Mortality Rates

Associated with Legal Abortion: United States, 1972-1975, 10 Fam.

Plan. Persp. 109 (1978); Cates, Grimes, Smith & Tyler, Legal

Abortion Mortality in the United States: Epidemiologic Surveil-

lance, 1972-1974, 237 J. A.M.A. 452 (1977).

51 LeBolt, Grimes & Cates at 190.

52 Jd. at 189. In 1972 alone, for instance, nearly 500 women died

from childbearing whereas only 138 women died from legal abor-

tions in the seven-year period between 1972 and 1978. Id.

Moreover, recent studies show that the mortality rate for child-

birth, unlike that for legal abortions, may be underestimated by

25-50%. Cates, Smith at 193-95; Rubin, McCarthy, Shelton, Rochat

& Terry, The Risk of Childbearing Re-Evaluated, 71 Am. J. Pub.

Health 712 (1981).

581t is important to note that current medical knowledge and

practice regarding abortion demonstrate that the risk of abortion

increases only linearly, and not exponentially, as gestational age

increases. See Grimes & Cates at 177.

Between 1972 and 1975, the death-to-case rate for second

trimester abortions ranged between 17.6 and 11.4 per

100,000 procedures; by 1977, it had fallen to 6.5.™

In contrast, the death-to-case rate for childbirth, which

hovered between 15.2 and 10.4 per 100,000 live births

between 1972 and 1975, had fallen to 9.8 by 1977.™

A principal reason for the increased safety of abortions

after the first trimester has been the widespread adop-

tion of dilatation and evacuation (“D&E”) as an ac-

cepted technique for second trimester abortion. In es-

sence, D&E is a modified application of first trimester

curettage techniques (dilatation and curettage and suc-

tion curettage) to second trimester abortions,” and dif-

fers significantly from instillation methods ** which, until

1978, were the most common technique for performing

second trimester abortions.”

D&E offers two distinct advantages over instillation as

a procedure for second trimester abortions. First, it is

54 Benditt, Second-Trimester Abortion in the United States, 11

Fam. Plan. Persp. 358 (1979) (“Benditt’”).

55 Cates, Smith at 195.

56 See Benditt at 358; Tyler, Cates, Schulz, Selik & Smith, Second-

Trimester Induced Abortion in the United States, in Second Tri-

mester Abortion 13, 18-20 (1981) (“Tyler, Cates’’).

57 See generally J. Pritchard & P. MacDonald, Williams Obstetrics

603-07 (16th ed. 1980) (“Pritchard & MacDonald”) ; Benditt at 359.

58 Instillation methods, also known as amniotic infusion, involve

the artificial induction of labor through transabdominal, intraam-

niotic injection of an abortifacient solution, such as saline or pros-

taglandin, and delivery of the aborted fetus, usually within 12 to 36

hours of the injection. See Dep’t of Med. & Pub. Affairs, Geo.

Washington Univ. Med. Center, Pregnancy Termination in Midtri-

mester—Review of Major Methods, Population Rep., Series F, No. 5

pp. F-65, F-66-67 (Sept. 1976); Pritchard & MacDonald at 608-11;

Grimes, Schulz, Cates & Tyler, Methods of Midtrimester Abortion:

Which Is Safest?, 15 Int’l J. Gynaecol. Obstet. 184, 186 (1977)

(“Grimes, Schulz”).

59 Cates & Grimes, Deaths from Second Trimester Abortion by

Dilatation and Evacuation: Causes, Prevention, Facilities, 58

Obstet. & Gynecol. 401 (1981) (“Cates & Grimes”).

safer,” in large part due to its unique efficacy for early

second trimester abortions performed between 13 and 16

gestational weeks.“ Second, D&E is more acceptable to

60 D&E carries a significantly lower risk of mortality and com-

plications than instillation procedures. See, e.g., Cates & Grimes at

404; Cadesky, Ravinsky & Lyons, Dilation and Evacuation: A

Preferred Method of Midtrimester Abortion, 1389 Am. J. Obstet. &

Gynecol. 329 (1981); Hubacker, Dilatation and Extraction for Late

Second-Trimester Abortion, 15 Advances in Planned Parenthood

119, 122 (1981) ; Grimes, Hulka & McCutchen, Midtrimester Abor-

tion by Dilatation and Evacuation Versus Intra-amniotic Instilla-

tion of Prostaglandin F,,: A Randomized Clinical Trial, 137 Am.

J. Obstet. & Gynecol. 785 (1980) (“Grimes, Hulka & McCutchen”) ;

Grimes & Cates at 188; Cates, D&E After 12 Weeks: Safe or

Hazardous?, 13 Contemp. Ob/Gyn 23 (1979) (“Cates”); Grimes,

Schulz at 187; Grimes, Schulz, Cates & Tyler, Mid-Trimester Abor-

tion by Dilatation and Evacuation, 296 New Eng. J. Med. 1141

(1977).

61 Cates, Schulz, Grimes & Tyler, The Effect of Delay and

Method Choice on the Risk of Abortion Morbidity, 9 Fam. Plan.

Persp. 266, 268 (1977) (“Cates, Schulz”).

Because of the small size of the amniotic sac, instillation proce-

dures generally cannot be performed until the sixteenth or seven-

teenth week. Cates, Schulz at 268; H. Holtrop & R. Waife, Uterine

Aspiration Techniques in Family Planning 18 (1976); Burnett,

King, Burkman & Atienza, An Evaluation of Abortion: Techniques

and Protocols, 10 Hosp. Prac. 97, 101 (1975). By enabling physi-

cians to perform earlier abortions that, using instillation methods,

would have had to have been postponed until the sixteenth week,

D&E has provided the means to reduce the risk of abortion.

Experience during the 1970s reflects this advance. Between 1973

and 1978, the percentage of second trimester abortions performed

between weeks 13 and 15 increased significantly while the percent-

age performed after week 15 fell. See U.S. Dep’t of Health &

Human Services, Center for Disease Control, Abortion Surveil-

lance—Annual Summary 1978 iv (1980) ; Henshaw, Forrest, Sulli-

van & Tietze, Abortion in the United States, 1978-1979, 13 Fam.

Plan. Persp. 6, 17 (1981) (“Henshaw, Forrest 1978-79”); Tyler,

Cates at 18. During this same period, the percentage of second

trimester abortions performed by D&E increased while the percent-

age performed by instillation declined and, by 1977, D&E sur-

passed saline instillation as the most frequently used second tri-

mester procedure. Grimes & Cates, Dilatation and Evacuation, in

Second Trimester Abortion 119, 120 (“Dilatation and Evacuation”).

second trimester abortion patients than instillation proce-

dures because it is quicker, less expensive, less painful

and less emotionally traumatic.“ And because D&E

eliminates the prolonged labor associated with instillation

procedures, it typically can be performed safely on an

outpatient basis at either a hospital or a clinic.™

Recognition of the fact that most second trimester

abortions are as safe as or safer than childbirth has led

to a change in the views of many physicians regarding

the advisability of hospitalization for all second trimester

abortions. There is now sufficient evidence and experience

with the D&E technique in particular to demonstrate

that, up to at least 16 weeks, abortions performed by

physicians in nonhospital facilities are at least as safe as

those performed in hospitals.“ Moreover, based on the

experience of its members, amicus ACOG recommends in

its Standards for Obstetric-Gynecologic Services that

“[{i]n a hospital-based or in a free-standing ambulatory

surgical facility, or in an outpatient clinic meeting the

criteria required for a free-standing surgical facility,

62 ACOG, Methods of Midtrimester Abortion, Tech. Bull. No. 56

(Dec. 1979) ; Rooks & Cates, Emotional Impact of D&E vs. Instilla-

tion, 9 Fam. Plan. Persp. 276-77 (1977); Grimes, Hulka &

McCutchen at 789.

8 See, e.g., Cates at 28; Pritchard & MacDonald at 603; Dilata-

tion & Evacuation at 121.

64 Grimes, Cates & Selik, Abortion Facilities and the Risk of

Death, 13 Fam. Pian. Persp. 30-32 (1981); Cates & Grimes at

406-07; Grimes, Cates & Tyler, Comparative Risk of Death from

Legally Induced Abortion in Hospitals and Nonhospital Facilities,

51 Obstet. & Gynecol. 323 (1978). See also Cates, Schulz, Grimes,

Horowitz, Lyon, Kravitz & Frisch, Dilatation and Evacuation Proce-

dures and Second-Trimester Abortions, 248 J. A.M.A. 559 (1982).

- Indeed, nonhospital facilities actually enjoy a lower death-to-

case rate than hospitals. Cates & Grimes at 404, 406. When ad-

justed for confounding factors such as the greater tendency of hos-

pital abortion patients to have preexisting conditions and to under-

go concurrent sterilization, however, the death-to-case rate for hos-

pital abortions is equivalent to that for nonhospital. abortions. Jd.

abortions should be limited generally to 18 weeks from the

The decision where an abortion is to be performed—

like the decision as to the procedure to be used—shouid

be made in accordance with the patient’s desires and the

physician’s medical judgment.** There are a number of

reasons why a patient might choose, and a physician

might recommend, that an abortion be performed in a

nonhospital facility. Hospitalization, for instance, often

entails “emotional and financial stresses.” In addition,

nonhospital facilities frequently provide more extensive

counselling services for the abortion patient and more

specialized staff. Because most second trimester abortions

can be performed as safely in a properly equipped and

staffed nonhospital facility as in a hospital, a nonhospital

abortion thus will often be in the patient’s best interest.

Requiring all second trimester abortions to be performed

in hospitals therefore interferes with the physician’s ex-

ercise of his best medical judgment in carrying out his

patient’s abortion decision in a manner best suited to

her individual health and personal needs without offering

any discernible safety benefit.

Moreover, a woman in the second trimester of preg-

nancy who wishes to have an abortion may also have

6 ACOG, Standards for Obstetric-Gynecologic Services 54 (5th

ed. 1982) (“ACOG Standards”). ACOG’s standards for “free-

standing surgical facilities’ recommend that they “be licensed to

conform to requirements of state or federal legislation” and “main-

tain the same surgical, anesthetic, and personnel standards as rec-

ommended for hospitals.” Jd. at 52. “Surgical procedures may be

performed in those facilities under general or regional block anes-

thesia when it is expected that the postoperative recovery will

permit discharge on the same day. There should be a written policy

requiring the medical staff to provide for prompt emergency treat-

ment or hospitalization in the event of an unanticipated complica-

tion.” Id.

66 See n. 77, infra.

87 ACOG Standards at vii.

difficulty implementing her decision in the face of a

hospitalization requirement. Akron Ordinance Section

1870.03, for example, has the practical effect of severely

limiting a woman’s ability to obtain a second trimester

abortion in that city.” As a result, a woman seeking a

second trimester abortion in Akron is likely to face the

choice of carrying to term, traveling elsewhere for her

abortion, or undergoing an illegal abortion. Each such

option poses a greater risk to a woman’s health than

undergoing an abortion at a properly equipped and staffed

nonhospital abortion facility in Akron.”

68 Less than 30% of all short-term general non-Catholic hospitals

in the United States provide abortion services, and the percentage

continues to decline. Henshaw, Forrest 1978-79 at 14; Henshaw,

Forrest, Sullivan & Tietze, Abortion Services in the United States,

1979 and 1980, 14 Fam. Plan. Persp. 5, 12 (1982) (“Henshaw,

Forrest 1979-80”). See also Nathanson & Becker, Obstetricians’

Attitudes and Hospital Abortion Services, 12 Fam. Plan. Persp. 26

(1980). Moreover, nearly two-thirds of those hospitals providing

abortion services do not provide second trimester abortions. Hen-

shaw, Forrest 1979-80 at 14.

69 As the court of appeals found, the “unrebutted testimony”

showed that “there were only two hospitals in Akron in which

second trimester abortions were being performed.” Akron Center,

651 F.2d at 1209. “During the year preceding trial, only nine such

abortions were performed in these two hospitals” while “approxi-

mately 10% of the 6000 women who sought abortions at the Akron

clinics during the same period were in their second trimester of

pregnancy.” Id.

7 The ability of freestanding clinics to provide “safe abortions

in a supportive setting” has been clearly established. Am. Pub.

Health Ass’n, APHA Recommended Program Guide for Abortion

Services (Revised 1979), 70 Am. J. Pub. Health 652, 654 (1980).

See also n. 64, supra. Moreover, such facilities have become the

major abortion provider, performing nearly 80% of all abortions.

Henshaw, Forrest 1979-80 at 5. While freestanding abortion facili-

ties also perform 33% of second trimester abortions (Henshaw,

Forrest 1978-79 at 7), a considerably higher percentage of such

abortions could be performed safely in those facilities but for the

existence of hospitalization requirements such as Section 1870.03.

See Planned Parenthood Ass’n of Kansas City v. Ashercft, 664 F.2d

B. Akron Has No Cognizable Interest in Requiring

That All Second Trimester Abortions Be Performed

in Hospitals.

Medical science has made many advances since the late

1960s and early 1970s, and it is no longer an “established

medical fact” that mortality in abortion is less than mor-

tality in normal childbirth only “until the end of the first

trimester.” Roe v. Wade, 410 U.S. at 163. Because it

would be “equally dangerous” for a woman to forgo an

abortion even well into the second trimester of her preg-

nancy, any interest the state might have in protecting the

woman from an inherently dangerous procedure “has

largely disappeared.” Jd. at 149. As the Court has

made clear, up until that point, “the abortion decision in

all its aspects is inherently, and primarily, a medical

decision, and basic responsibility for it must rest with

the physician.” Id. at 166.

' In light of the safety of legal abortions, as demon-

strated over the past decade, a state’s interest in protect-

ing maternal health is adequately served by physician

licensing requirements such as are used by states to

regulate other medical procedures far more complex and

hazardous than abortion.” Regulations like Akron’s hos-

pitalization requirement that limit access to second tri-

mester abortions, even though such abortions, if per-

formed prior to the sixteenth gestational week, are safer

than childbirth, pose a substantial risk of hampering

at 689 (during the period in which Missouri’s statutory hospitaliza-

tion requirement was “removed” by district court order, nearly half

of second trimester abortions in Missouri were performed in non-

hospital facilities) .

The high percentage of abortions performed in freestanding

clinics is part of a larger, general trend in obstetrics and gyne-

cology toward ambulatory health care and out-patient minor sur-

gery. See, e.g., ACOG Standards at 51-53; Foster, Ambulatory

Gynecologic Surgery, in Ambulatory Care in Obstetrics and Gyne-

cology 399 (G. Ryan ed. 1980).

71 See nn. 47-49, supra, & n. 77; infra.

patients’ chances of obtaining abortions at precisely the

point in their pregnancies at which it may be in their

health interests to do so and deprive patients of the

independent judgment of their physicians as to the best

choice between equally safe facilities for the performance

of abortions best suited to their individual needs.

C. Even If Akron Has a Cognizable Interest in Pro-

tecting Maternal Health Throughout the Second

Trimester of Pregnancy, the Requirement That All

Second Trimester Abortions Be Performed in Hos-

pitals Is Not Reasonably Related to That Interest.

Even if the Court should conclude that, present medical

knowledge notwithstanding, a state’s interest in maternal

health automatically becomes compelling at the beginning

of the second trimester, Akron’s hospitalization require-

ment is not reasonably related to that interest or suffi-

ciently “narrowly drawn to express only the legitimate

state interests at stake.” Instead, it is an overbroad

restriction of a woman’s right to decide, in consultation

with her physician, whether to terminate her pregnancy.

In Roe, the Court suggested in dictum that a state may

regulate the facilities in which second trimester abortions

are performed.” In Doe, however, the Court made clear

that, even with respect to hospitalization requirements, it

is the state’s burden to prove “that only the full resources

of a licensed hospita!, rather than those of some other

appropriately licensed institution, satisfy [its] health in-

terests.” * Indeed, the Court in Doe held that a statutory

72 Roe v. Wade, 410 U.S. at 155.

78 Jd. at 163.

74410 U.S. at 195. In Doe, the Court struck down a hospital re-

quirement tha. “failfed] to exclude the first trimester.” Jd. This

determination stemmed not from any finding that second trimester

hospitalization requirements were, as a matter of law, reasonably

related to maternal health, but rather from the dearth of evidence

concerning the relative safety of post-first trimester abortions that

existed at that time.

The Court has found other second trimester regulations similarly

not reasonably related to maternai health. In Planned Parenthood

requirement that all abortions be performed in JCAH-

accredited hospitals was unconstitutional even as applied

to post-first trimester abortions because it was not reason-

ably related to maternal health.”

Akron’s blanket hospitalization requirement likewise

must fall. The City has not demonstrated that “only the

full resources of a licensed hospital” would satisfy its

health interests. ACOG’s 1974 recommendation that sec-

ond trimester abortions be performed in hospitals—a

standard on which the City relied at trial—has been re-

vised to reflect the current view of the medical profession

that many second trimester abortions can be performed

as safely in appropriate nonhospital facilities as in hos-

pitals.** The Akron ordinance is not reasonably related

to maternal health because it lacks foundation in light

of current medical practice and knowledge, because it

locks physicians into outmoded standards of care, and be-

cause no evidence exists that it provides any incremental

safety benefit beyond that already provided by state phy-

sician licensing requirements.”

v. Danforth, 428 U.S. at 77-79, it held that a statute proscribing

second trimester abortion by saline amniocentesis was unconstitu-

tional because the state failed to show that other, safer second

trimester abortion procedures were available.

7 410 U.S. at 193-94. On this basis alone, Akron’s hospitalization

requirement is constitutionally infirm since Section 1870.01(B)

defines “hospital” to include only those hospitals accredited by JCAH

or by the American Osteopathic Association. Akron Center, 479 F.

Supp. at 1208.

18 See pp. 23-24, supra. The revision was occasioned by “[n]ew in-

formation on the expanded role of ambulatory health care in obstet-

rics and gynecology, in addition to ongoing changes necessitated

by numerous societal and scientific advances since publication of the

last edition in 1974 ....” ACOG Standards at vii.

77 It also should be noted that hospitalization requirements for

abortion lack rationality when considered in light of the manner

in which states and municipalities generally treat other medical

procedures, including those of comparable risk and those of far

greater risk than abortion. Akron, for instance, does not require

by law that any other procedure—whether childbirth, setting a

The Akron ordinance interferes significantly with a

woman’s ability to exercise her constitutional right to

decide whether or not to terminate her pregnancy. First,

as the record in this case demonstrates, it has the prac-

tical effect of severely limiting a woman’s ability to ob-

tain a second trimester abortion in Akron. Since abortion

at that point is as safe as or safer than childbirth, the

ordinance thus forces a woman to choose between alterna-

tives—either childbirth, an illegal abortion, or traveling

to a place where a legal abortion may be obtained—that

are in many cases “more dangerous to her health than

the method outlawed.” * And, second, it interferes with

a woman’s right to consult with her physician by denying

the physician “the room he needs to make his best medi-

cal judgment,” including making the determination

that a properly equipped nonhospital facility is preferable

for a particular patient’s overall health and wellbeing.”

fractured limb, or delicate brain surgery—be performed in a hos-

pital.

Whether hospitalization is required in any given case is a judg-

ment that a physician “is called upon to make routinely whenever

surgery is considered.” United States v. Vuitch, 402 U.S. 62, 72

(1971). Any suggestion that physicians will exercise poor judg-

ment in deciding when an abortion patient should be hospitalized

is “degrading to the conscientious physician, particularly the obste-

trician, whose professional activity is concerned with the physical

and mental welfare, the woes, the emotions, and the concern of his

female patients.” Doe v. Bolton, 410 U.S. at 196-97. “He, perhaps

more than anyone else, is knowledgeable in this area of patient

care, and he is aware of human frailty, so-called ‘error,’ and needs.”

Id. Absent evidence that physicians are peculiarly likely to exercise

poor judgment in deciding whether to hospitalize abortion patients,

there is no “constitutionally justifiable pertinence” in hospitalization

requirements. Jd. at 197.

78 Planned Parenthood v. Danforth, 428 U.S. at 79.

7 Doe v. Bolton, 410 U.S. at 192. See also Colautti v. Franklin

439 U.S. at 397.

80 It thereby places an “obstacle[] in the path of the doctor upon

whom she [is] entitled to rely for advice in connection with her

[abortion] decision.” Whalen v. Roe, 429 U.S. at 605 n. 33.

Rather than serving as “a reasonable regulation for the

protection of maternal health,” ** Akron’s blanket hos-

pitalization requirement is “an unreasonable or arbitrary

regulation designed to inhibit, and having the effect of

inhibiting, the vast majority of abortions after the first

12 weeks.” *

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals striking down the required informed consent

recitation (Section 1870.06(B)) and the parental or judi-

cial consent requirement (Section 1870.05(B)) should be

affirmed and the judgment upholding the second trimester

hospitalization requirement (Section 1870.03) should be

reversed.

Respectfully submitted,

M. CAROLYN Cox

LYNN BREGMAN *

ANNE H. EGERTON

TILLMAN L. Lay

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

* Counsel of Record (202) 872-6000

August 27, 1982 Counsel for Amici Curiae

81 Planned Parenthood v. Danforth, 428 U.S. at 79.

82 Id.

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