Appendix — John Ashcroft v. Planned Parenthood Association of Kansas City, Missouri, Inc.

8

relies solely on the conclusion that a second physician would

not be needed during an dilatation and evacuation pro-

cedure performed after viability because there was no

chance of fetal survival. The improper medical practice of

one isolated doctor should not used as an excuse for in-

validating a section of state law which attempts to promote

and protect human life. A viable fetus is a child which,

given a fair chance by the presence of a doctor whose sole

purpose it is to protect that child, may live.

The Court of Appeals invalidated Section 188.047, re-

quiring pathology reports with respect to tissue samples

taken at the time of all abortions. The Court of Appeals

framed the issue thusly:

‘*The issue here is not whether pathology reports

are useful and even necessary in some cases. They clear-

ly are. Testimony indicated that abormalities in the

tissue may warn of serious, possibly fatal disorders.

Instead, the question here is whether Missouri has

shown any reason why the physicians and medical

facilities performing abortions cannot make medical

judgments about the desirability of a pathology report

in an individual case, while physicians and medical

facilities perforniing all other types of surgery are free

to exercise their professional judgment.’’ (Appendix

at 95)

As testimony at trial established, only through a patho-

logical examination is there any assurance, independent of

the attending physician’s own unschooled judgment, that

the women upon whom the procedure was performed was

in fact pregnant, and if so, that the pregnancy was in fact

terminated completely. The additional benefits to the woman

are the opportunity for a trained pathologist to discover

the presence of a molar pregnancy, a hydatitaforme mole

or other precancerous growths, and a variety of other prob-

9

lems which can only be discovered through a pathological

examination. That the State of Missouri’s interest in the

maintenance of good medical standards and in maternal

health are served by this requirement is clear. The singling

out of abortions for pathological reports is rational. Other

surgical procedures are almost always performed in hos-

pitals where pathological studies are taken as a matter of

course. On the other hand, the vast majority of abortions

are performed in clinics which will not, absent a clear statu-

tory reouirement that they do so, routinely increase their

costs or complicate their normal assembly line procedures

by taking the time necessary to protect the health of their

surgical patients. The Court of Appeals accepted as true

the State’s testimony that examinations of fetal tissue by

pathologists was good medical practice.

The Court of Appeals affirmed the award, by the Dis-

trict Court, of $22,037.73 in attorneys’ fees and costs, in-

cluding specifically $19,279.00 in attorneys’ fees (Appendix

at 98-99). Plaintiffs originally identified nine sections of

the Missouri statutory scheme for challenge in their com-

plaint. They subsequently did not pursue their challenge

to Section 188.075. Of the remaining eight sections which

were actively challenged at trial, the District Court de-

clared Sections 188.025, 188.028, 188.030 and 188.063 to be

unconstitutional in their entirety. The District Court also

found that portions of Section 188.039 were unconstitutional

upholding the remainder. Sections 188.020, 188.047 and

188.052 were upheld as written. Subsequently, the Eighth

Cireuit on appeal reversed the District Court with respect

to Section 188.028 and two out of the three sections of Sec-

tion 188.030, effectively finding for the defendants in those

instances. The Court of Appeals did give the plaintiffs an

additional minor victory by reversing the Court of Appeals

with respect to the constitutionality of Section 188.047.

Nevertheless, the Eighth Circuit did not reduce the award

10

of attorneys’ fees to reflect plaintiffs’ partial success even

though it was aware, on the record, that the Distriet Court

had allowed every hour claimed by the attorneys for plain-

tiffs.

The basis for federal jurisdiction in the District Court

was Title 28 U.S.C. § 1343(3) and Title 42 U.S.C. § 1982.

11

REASONS FOR GRANTING THE WRIT

I,

The decision of the court below invalidating the Mis-

souri requirement that abortions performed after twelve

weeks of gestation be performed in a hospital is in conflict

both with the applicable decision of this Court in Roe v.

Wade and with decisions of other federal courts of appeal.

The United States Court of Appeals for the Eighth

Circuit, affirming the United States District Court for the

Western District of Missouri, invalidated Missouri statute

Section 188.025 requiring that every abortion performed

subsequent to the first twelve weeks of pregnancy shall be

performed in a hospital. In so doing, the Eighth Circuit

acted in direct contradition to the clear and controlling

mandate of this Court as stated in Roe v. Wade, 410 U.S.

115, at 163-164, reh. den., 410 U.S. 959 (1973).

‘*With respect to the State’s important and legiti-

mate interest in the health of the mother, the ‘compel-

ling’ point, in the light of present medical knowledge,

is at approximately the end of the first trimester. This

is so because of the now-established medical fact, . . .

that until the end of the first trimesir mortality in

abortion may be less than mortality in normal child-

birth. It follows that, from and after this point, a

State may regulate the abortion procedure to the ex-

tent that the regulation reasonably relates to the pres-

ervation and protection of maternal health. Examples

of permissible state regulation in this area are require-

ments as to the qualifications of the person who is to

perform the abortion; as to the licensure of that per-

son; as to the facility in which the procedure is to be

performed, that is, whether it must be a hospital or

may be a clinic or some other place of less-than-hospital

status; as to the licensing of the facility; and the like.

12

To summarize and to repeat:

. .. For the stage subsequent to approximately

the end of the first trimester, the State, in promoting

its interests in the health of the mother, may, if it

chooses, regulate the abortion procedure in ways that

are reasonably related to maternal health.’’ (Emphasis

added)

Clearly, in the face of such clearly stated and applicabie

precedent, the court below erred by invalidating the Mis-

souri statutory requirement that abortions performed after

the first trimester of pregnaucy be performed in hospitals.

The decision of the Eighth Circuit also conflicts with

the decision of at least one other federal court of appeal

on this precise issue. In Akron Center for Reproductive

Health, Inc. v. City of Akron, 651 F.2d 1198 (6th Cir. 1981),

the same general categories of evidence were offered by

the plaintiffs in support of their attempt to invalidate a

second trimester hospitalization requirement in the City

of Akron. The plaintiffs, as in the present case, presented

proof purporting to show (1) that dilatation and evacua-

tion abortion procedures, performed early in the second

trimester, were safer than birth and could be safely per-

formed outside of hospitals, and (2) that the requirement

that such procedures be performed in hospitals burdened

the decision of the woman to abort because hospitalization

was more expensive than clinic procedures, and because

dilatation and evacuation procedures were not readily

available in the hospitals operating within the City of

Akron. The evidence proffered by plaintiffs in the present

instance was almost identical. Nevertheless, the Sixth Cir-

cuit affirmed a district court holding that the Akron city

ordinance requiring hospitalization after the first trimester

was constitutional. 651 F.2d at 1210.

13

In reaching its decision directly in conflict with that

reached by the Eighth Circuit, the United States Court of

Appeals for the Sixth Circuit relied strongly on Gary-

Northwest Indiana Women’s Services, Inc. v. Bowen, 496

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

west Indiana Women’s Services, Inc. v. Orr, US.

___, 101 S.Ct. 2012, 68 L.Ed.2d 321 (1981). In Gary-North-

west, a three-judge district court was confronted with proof

similar to that offered by plaintiffs in the present case con-

cerning the safety of dilatation and evacuation procedures

(luring the early stages of the second trimester and the extra

cost of hospitalization. With respect to the extra cost of

hospitalization and the burden that cost would place upon

pregnant women, the United States District Court for the

Northern District of Indiana stated that:

**The combination of the hospitalization requirement

and the pregnant women’s indigency does not render

unconstitutional this pursuit of Indiana’s legitimate,

compelling, interest in protecting maternal health. The

obstacle which the women face is not the hospitalization

requirement, but the women’s indigency. . . .’’ 496

F.Supp. at 901.

With respect to the safety of performing dilatation and

evacuation procedures in the early stages of the second

trimester, that district court stated as follows:

‘*It would be impractical for the constitutionality

of a second trimester regulation to depend on a factual

question, such as whether the regulation in fact reduced

maternal morbidity and mortality. Interpreting Roe

to require that second trimester regulations except

specific types of abortions which may be safer than

childbirth would require relitigation of the regula-

tion’s constitutionality with each change in the avail-

ability of abortions, with each improvement in abor-

tions, with each improvement in abortion technique,

14

and with each publication of statistics showing that

abortion skills had improved. Such as interpretation

of Roe would result in repeated relitigation of the con-

stitutionality of the same statute. It is the policy of

the Supreme Court to avoid, if possible, the creation

of rules of law which increase litigation. Roe should

not be given an interpretation which results in re-

peated relitigation of a statute’s constitutionality. Rue

does not render the constitutionality of second trimester

regulations subject to either the availability o1 abor-

tions or the improvements in medical techniques and

skills.

The test for determining the constitutionality of

statutes regulating second trimester abortions is not

whether the statute has the statistically demonstrable

result of decreasing maternal morbidity or mortality

for specific groups of abortions. Whether, as a matter

of fact, it is statistically demonstrable that the regula-

tion results in decreased maternal morbidity and mor-

tality is a matter to be considered, but it is not the

ultimate test. The ultimate test is a broader test: wheth-

er the legislature acted reasonably in determining that

the regulation would promote maternal health. Further-

more, the statistics used to determine the reasonableness

of a regulation would have to be the statisties not for

a specific group of abortions, but for all the abortions

to which the regulation ap;-ilies. A statutory regulation

of second trimester abortions is constitutional if it was

reasonable for the state to conclude that the regulation

would promote maternal health.

It was reasonable for Indiana to conclude that the

second trimester hospitalization requirement would pro-

mote maternal health.’’ 496 F.Supp. at 901.902.

This Honorable Court affirmed without opinion the

judgment of the three-judge district court in the Gary-

15

Northwest Indiana case. As the Sixth Cirenit held in up-

holding a second trimester hospitalization requirement:

‘*Many of the same arguments for holding the require-

ment that all second trimester abortions be performed

in a hospital unconstitutional which were made in

the present case were made by the plaintiffs in Gary-

Northwest. Though the evidence on this issue in the

present case was more detailed than that produced

in Gary-Northwest, the thrust of the plaintiffs’ proof

and arguments was the same. The Supreme Court has

now had an opportunity to retreat from the ‘bright

line’ drawn in Roe v. Wade and has declined to do

so... .’’? Akron Center for Reproductive Health, Inc.

v. City of Akron, supra at 1210.

I.

The decision of the Eighth Circuit invalidating the

Missouri requirement that pathology reports be prepared

for all abortions conflicts with a decision out of the United

States Court of Appeals for the Seve:.:h Circuit.

The Eighth Cireuit, in reversing the District Court,

invalidated Section 188.047 of the Revised Statutes of Mis-

souri, requiring a representative sample of tissue removed

at the time of each abortion to be submitted to a pathologist

for a report, on the basis that the requirement increased

the cost of the abortion, thereby burdening the women’s

decision to abort, and because Missouri has not required

by statute pathology reports following other medical pro-

cedures (Appendix at 92-97).

The court in Wynn v. Scott, 449 F.Supp. 302, 1322

(N.D.IIl. 1978), appeal dismissed, 439 U.S. 8 (1.78), aff’d,

559 F.2d 193 (7th Cir. 1979), was confronted with a sub-

stantially identical Illinois statute. That court reached

the opposite result from the Eighth Circuit and upheld the

16

statutory section. The cross-petitioners submit (1) that

there is a conflict among the federal courts, and (2) that

this specific Missouri statute, as acknowledged by the lower

court (Appendix at 94), is rationally related to the State’s

legitimate interest in preserving maternal health.

Il.

The decision of the Eighth Circuit, by invalidating the

Missouri statutory requirement that a second physician be

in attendance at the abortion of a viable fetus, has decided

a federal question in a way so as to conflict with the appli-

cable decision of this Court in Roe v. Wade.

Section 188.030, Revised Statutes of Missouri, requires

that a second physician be in attendance, for the purpose

of preserving the life and health of the aborted infant, when

an abortion is performed on a viable fetus. The Eighth Cir-

cuit found that requirement unconstitutional. (Appendix

at 84). The lower court found the section overbroad as the

result of its factual conclusion that no child could survive

a dilatation and evacuation abortion procedure making the

attendance of a second physician to protect the health of

such child unnecessary. This factual finding was made de-

spite an overwhelming factual record developed in the Dis-

trict Court, supported by experts who testified for both

plaintiffs and defendants, that dilatation and evacuation

should never be the procedure of choice at a sufficiently

late date in the pregnancy that the fetus would be viable.

In effect, the lower court was condoning not only bad medi-

cal practice but murder by some physicians.

We quote from Roe v. Wade, 410 U.S. 113, 163-164

(1973) :

‘*With respect to the State’s important and legiti-

mate interest in potential life, the ‘compelling’ point

is at viability. This is so because the fetus then pre-

sumably has the capability of meaninful life outside

17

the mother’s womb. State regulation protective of fetal

life after viability thus has both logical and biological

justifications. If the State is interested in protecting

fetal life after viability, it may go so far as to proscribe

abortion during that period, except when it is necessary

to preserve the life or health of the mother.’’

Obviously, if the State’s interest in potential human

life after viability is so compelling as to allow it to proscribe

abortion, then that interest is sufficiently compelling, un-

der controlling Supreme Court precedent, to allow the state

to require the attendance of a second physician to preserve

and care for that potential human life.

IV.

The decision of the Eighth Circuit awarding attorneys’

fees to plaintiffs without reference to the partial nature

of their success conflicts with decisions of other federal

courts of appeal.

In addressing the contention of the cross-petitioners

that plaintiffs did not prevail on every issue and that at-

torneys’ fees should be proportioned to reflect the extent

to which they did prevail, the Eighth Cireuit reached the

following conclusion:

‘*The result obtained is only one factor to be considered,

and it is not necessarily an abuse of discretion for the

district court to award attorneys’ fees based on all the

work performed and not just on the claims on

which the plaintiffs were successful. ‘[A]ttorney’s fees

awarded under Section 1988 should not be limited to

hours expended on those issues to which the plaintiff

was successful.’ Crain v. City of Mountain Home, 611

F.2d at 729 n.7. See also Johnson v. Nordstrom-Larpen-

teur Agency, 623 F.2d 1279, 1282 (8th Cir.), cert.

denied, U.S. __., 101 S.Ct. 622, 66 L.Ed.2d 504

18

(1980); Brown v. Bathke, 588 F.2d 634, 637 (Sth Cir.

1978).’’ Appendix at 98-99.

Of the eight sections challenged by plaintiffs at the

trial of this case, four were found by the District Court to

be unconstitutional and one other was partially invalidated.

Three of the sections were upheld by the District Court as

written. Nevertheless, the appellate court appreved the

award of attorneys’ fees by the District Court of all hours

claimed by the attorneys for the plaintiffs before the Dis-

trict Court. The Eighth Cireuit dic this even though their

opinion on appeal further restricted the extent to which

the plaintiffs sueceeded in their lawsuit. For example, the

District Court was reversed on the constitutionality of See-

tion 188.028, relating to consent for minors, holding in effect

for the defendants on perhaps the most important of all

the statutory sections challenged in the lawsuit, and the

only failure which has prompted plaintiffs to seek review

by certiorari. The appellate court also reversed the District

Court on two-thirds of Section 188.030, relating to abortion

of viable fetus, again one of the more important of the statu-

tory sections attacked on the case. On the other hand, the

plaintiffs were successful before the Eighth Cirenit in hav-

ing the District Court’s approval of the pathology report

section reversed. The cross-petitioners submit that this sec-

tion, although importart, does not represent @s great an im-

pact in the area of abortion as did those sections won by

defendants on appeal.

The cross-petitioners reiterate that the Eighth Cireuit

affirmed the award by the District Court of attorneys’ fees

for every single hour claimed by the attorneys for the plain-

tiffs during the trial of this lawsuit before the District Court.

The opinion of the Eighth Cireuit regarding attorneys’

fees is in direct conflict with the positions of the First

Cireuit, Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.

19

1978), the Third Cireuit, Hughes v. Repko, 578 F.2d 483

(3rd Cir. 1978), the Fourth Cireuit, Morton v. Charles

County Board of Education, 373 F.Supp. 394, 411 (D.Md.

1974), aff’d, 520 F.2d 871 (4th Cir. 1974), the Seventh Cir-

cuit, Batiste v. Furnco Construction Corporation, 503 F.2d

447, 451 (7th Cir. 1974), cert. denied, 420 U.S. 928 (1975),

the Ninth Cireuit, Schaeffer v. San Diego Yellow Cabs,

Inc., 462 F.2d 1002, 1008 (9th Cir. 1972), and Sethy v.

Alameda County Water District, 602 F.2d 894 (9th Cir.

1979), and the Tenth Cireuit, Pearson v. Western Electric

Installation Organization District Office, 542 F.2d 1150

(10th Cir. 1976) and Gurule v. Wils m, 635 F.2d 782, 794

(10th Cir. 1980) (A complete review of Tenth Circuit pre-

cedent in this issne, and especially the confusing statements

made in Gurule, does make the position of that Court of

Appeals somewhat ambiguous.’

These conflicts between the actions taken by the Eighth

Cireuit and the District Court in this case and the positions

maintained by the majority of the Cireuit Courts of Appeals

justify the grant of certiorari to review this judgment.

1 Apparently in accord with the position taken by the Eighth Circuit

are the Fifth Circuit, Jones v. Diamond, 636 F.2d 1364 (8th Cir. 1981)

and the Sixth Circuit, Northcross v. Board of Education of Memphis

City Schools, 611 F.2d 625, 635 (6th Cir. 1979). The cross-petitioners

found no relevant precedent from the District of Columbia and Second

Circuits.

20

CONCLUSION

For the foregoing reasons, cross-petitioners request this

Court to issue its writ of certiorari to the United States

Court of Appeals for the Eighth Circuit.

Respectfully submitted,

JoHN ASHCROFT

Attorney General

MicuHaeu L. Borcourt

Assistant Attorney General

Broadway State Office Building

P.O. Box 899

Jefferson City, Missouri 65102-0899

314-751-3321

Attorneys for Cross-Petitioners.

February, 1982

APPENDICES

A-1

APPENDIX A

PLANNED PARENTHOOD ASSOCIATION OF

KANSAS CITY, MISSOURI, INC., et al.,

Plaintiffs,

Tv.

John ASHCROFT et al., Defendants.

No. 79 4142 CV C,

United States District Court,

W. D. Missouri, C. D.

Jan. 23, 1980,

OPINION AND ORDER

ELMO M. HUNTER, District Judge:

This is an action for declaratory and injunctive relief

in which plaintiffs challenge the constitutionality of several

sections of the 1979 Missouri act relating to the regulation

of abortions (*‘the Act’’).' This Court has jurisdiction

under 42 U.S.C. 6 1983 and 28 U.S.C. § 1343(3).

Plaintiffs are Planned Parenthood Association of Kan-

sas City, Missouri, Inc., an Reproductive Health Services,

not-for-proft Missouri corporations. Plaintiffs maintain

and operate out-patient clinies in Kansas City and St.

Louis, Missouri, respectively, at which meclical services

are offered to the public, including first trimester abor-

tions performed by staff physicians and pregnaney-related

counseling.

' House Committee Substitute for House Bill Nos. 523, 626 and

902, 80th Gen. Ass’y, Ist Reg.Sess. (1979). The full text of the Act is

set out in the Appendix.

A-2

Plaintiff physicians are Allen S. Palmer, D. O., and

Naim S. Kassar, M. D. Dr. Palmer is licensed to practice

medicine in the State of Missouri and performs first tri-

mester abortions on an out-patient basis, both at the Re-

productive Health Services clinic and as part of his private

medical practice. Dr. Palmer does not perform abortions

after the first trimester of pregnancy, but would do so ab-

sent the statutory requirement that post-twelve week abor-

tions be performed only in a hospital. Dr. Kassar is also

licensed to practice medicine in the State of Missouri. As

a part of his medical practice, Dr. Kassar performs first

trimester abortions on an out-patient basis in the Planned

Parenthood clinic and in a hospital setting. Dr. Kassar

performs post-first trimester abortions in a_ hospital

setting, but under certain conditions, would perform

such abortions in an out-patient clinic, absent the statutory

requirement that post-twelve week abortions be performed

only in a hospital.

Defendants are the Honorable John Ashcroft, Attor-

ney General of the State of Missouri, and Ralph L. Martin,

Prosecuting Attorney of Jackson County, Missouri, who

is sued both in that capacity and ‘‘as representative of

the class of all similar Prosecuting Attorneys of the vari-

ous counties of the State of Missouri.’’

The Act was passed by the General Assembly of the

State of Missouri on June 15, 1979, and signed into law

by the Governor on June 29, 1979. An emergency clause

caused the Act to be effective immediately upon the Gov-

ernor’s approval.’ This action was filed on June 30, 1979,

and after a hearing, the Court temporarily restrained en-

forcement of §§ 188.020, .025, .030, .039, .040, .052, .063,

and .075, RSMo, as signed into law on June 29, 1979. De-

fendants consented to renewal and extension of that order

2 Ibid., § A.

A-3

pending a determination on the merits. Upon defendants’

motion and to maintain the status quo, the temporary

restraining order was modified on September 27, 1979,

to delete §§ 188.020, .025, and .075, RSMo, from its effect.

Full trial on the merits was had on October 15-20, 1979.

I.

Standing

[1] Plaintiff physicians have standing to challenge the

constitutionality of the sections at issue in this case. Single-

ton v. Wulff, 428 U.S. 106, 98 S.Ct. 2868, 49 L.Ed.2d 826

(1976). Defendants concede that the corporate plaintiffs

have standing to challenge & 188.025, the requirement that

post-twelve week abortions be performed only in a hos-

pital, and § 188.063, which regulates abortion counseling

in ‘‘abortion facilities,’’ but assert that the organizations

lack standing to litigate the constitutionality of any other

of the Act’s provisions. In light of the standing of plain-

tiff physicians, the Court need not reach the issue of the

corporate plaintiffs’ standing.*

8 Defendants contend that, excepting §§ 188.025 and 188.063, the

Act imposes no obligation or regulation on clinics which offer abor-

tion services but rather is directed at the regulation of physicians who

perform abortions. But see Womens Services, P.C. v. Thone, 483

F.Supp. 1022 (D.Neb.1979) (abortion clinic has standing based on

theory of accessory liability under abortion regulation’s criminal sanc-

tions); Akron Center of Reproductive Health, Inc. v. City of Akron,

479 F.Supp. 1172 (N.D.Ohio 1979); Baird v. Bellotti, 393 F.Supp. 847

(D.Mass. 1975), vacated and remanded on other grounds, 428 US.

132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). See also § 188.075 RSMo

(“Any person who contrary to the provisions of [the Act] knowingly . . .

aids in the performance of any abortion . . . shall be guilty of a class A

misdemeanor. . . .”); § 562.041, RSMo (general criminal accessory

liability statute); § 562.056, RSMo (corporate liability statute).

A-4

I.

Abortions to be Performed Only by

a Physician

Section 188.020 provides: ‘*No person shall perform

or induce an abortion except a pliysician.’’ Plaintiffs’

challenge to this restriction is that it prevents a pregnant

woman from inducing or performing an abortion on her-

self. The constitutional infirmity, argue plaintiffs, is

two-fold: (1) the statute violates the pregnant woman’s

constitutional right to ‘‘self-treatment,’’ and (2) the Act’s

penalty provision‘ mandates accessory criminal liability

for the physician who, by prescribing an abortion-inducing

medication or other abortifacient for a pregnant woman,

would aid or abet a non-physician (the pregnant woman

herself) to perform or induce an abortion in violation of

§ 188.020.°

4 § 188.075, RSMo.

5 Plaintiffs’ medical experts testified of their use of the so-called

“morning-after pill,” high dosage estrogen prescibed within 48-72 hours

following intercourse. The effect of the morning-after pill is to pre-

vent nidation (implantation of the fertilized ovum in the uterine wall).

Because the morning-after pill works after conception, it is an aborti-

facient. Plaintiff physicians testified that although the doctor prescribes

and provides the abortifacient medication, it is the pregnant woman

who decides whether to take the drug and who administers the medi-

cation to herself. In such a situation, say plaintiffs, the doctor assists

the pregnant woman to abort herself. Plaintiffs suggest that the same

reasoning also applies to use of the intrauterine device (IUD); that

the doctor's insertion of an IUD aids the woman in aborting herself

should conception occur. There was also testimony regarding the develop-

ment of a new abortifacient in the form of a tampon impregnated with

prostaglandins, which could be inserted by the woman and have the

effect of self-induced abortion. There was no evidence, however, that

this abortifacient is presently available.

Defendauts argue that because the morning-after pill and, “in nearly

all cases,” the IUD work prior to development of the embryo, neither

constitutes an abortion within the meaning of the Act. However, the

(Continued on next page)

A-5

Plaintiffs do not argue that the legislature intended

to include the pregnant woman herself within the limita-

tion imposed by the statute but submit that that ‘*plain

wording’’ of the section does so. Accordingly, the prayed-

for relief is ‘‘merely . . . a declaration that this Section

may not constitutionally apply to women secking to self-

abort or to physicians who assist them in doing so.’’

The context of the present case makes a determina-

tion of the constitutional questions posed by plaintiffs

unnecessary. The regulation against abortions performed

by nonphysicians has been in effect in the State of Mis-

souri, with substantially similar language, since June 14,

1974.° This Court is unaware of any case in which the

prohibition on abortion by nonphysicians was ever ap-

plied to the pregnant woman herself. The Court has been

directed to no decision of the couris of the State of Mis-

souri which interprets the provision in that way. There is

nothing in the extensive record in this case which would

indicate that the legislature intended to criminalize an

act of self-abortion by the pregnant woman herself.’

Footnote continued

Act defines “abortion” as “the intentional destruction of the life of

an ambryo or fetus in his or her mother’s womb or the intentional ter-

mination of the pregnancy of a mother with an intention other than to

increase the probability of a live birth or to remove a dead or dying

unborn child.” § 188.015.1, RSMo (emphasis added).

® Section 188.020(1), RSMo (Supp. 1979) repealed June 29, 1979;

§ 188.020 of the 1979 Act was enacted in lieu thereof) provided: “No

abortion shall be performed . . . except: (1) By a duly licensed, consent-

ing physician. . . .”

7 Section 188.080, RSMo, provides:

Any person who is not a licensed physician as defined in section

188.015 who performs or attempts to perform an abortion on

another as defined in subdivision (1) of section 188.015, is guilty

of a felony. . . . (emphasis added)

This section was enacted as a part of the 1974 act relating to abortion

and remained in effect at the time of enactment of the 1979 Act.

A-6

(2, 3] This Court is obliged to give the regulation that

reasonable interpretation which avoids a danger of con-

stitutional invalidity. United States v. Harriss, 347 US.

612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Metropoli-

tan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225

(En bane 1955). That reading of the section’s prohibition

of abortions performed by nonphysicians which would in-

clude the pregnant woman herself within its ban raises

such a serious constitutional question. Accordingly, it is

not adopted by the Court. s applied to a non-physician

performing an abortion on another person, the statute

is not challenged here and is clearly valid. Connecticut vy.

Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975).

IIL.

Post-Twelve Week Abortions to be

Performed Only in a Hospital

[4] Section 188.025 provides that every abortion per-

formed subsequent to the first twelve weeks of pregnancy

shall be performed in a hospital. Both physician plaintiffs

testified that, absent statutory prohibition, they would

perform post-twelve weeks abortions in an out-patient

clinic. Plaintiff’s argue that the in-hospital requirement

places an undue burden on the abortion decision and on

the means of effectuating that decision. Plaintiffs also

contend that the requirement does not constitute a reason-

able regulation in the interests of maternal health.

In Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35

L.Ed.2d 147 (1973), the Supreme Court held that ‘‘from

and after [approximately the end of the first tri nester],

a State may regulate the abortion procedure to the extent

that the regulation reasonably relates to the preservation

and protection of maternal health.’* An example of a per-

missible subject of regulation was ‘‘the facility in which

the procedure is to be performed, that is, whether it must

A-7

be a hospital or may be a clinic or some other place of

less-than-hospital status.’’ In Doe v. Bolton, 410 U.S.

179, 195, 93 S.Ct. 739, 749, 35 L.Ed.2d 201 (1973), the Court

struck down a requirement that all abortions be performed

in an accredited hospital but reserved the authority of a

state to adopt such a regulation after the first trimester

‘*so long as those standards legitimately related to the

objective the State seeks to accomplish.’’

In Wynn vy. Scott, 449 F.Supp. 1302 (N.D.IIL.), appeal

dismissed sub nom. Carey v. Wynn, 439 U.S. 8, 99 S.Ct.

49, 58 L.Ed.2d 7 (1978), aff’d, 599 F.2d 193 (7th Cir. 1979),

the district court noted that the Supreme Court ‘‘specifi-

cally stated’’ that the state may require post-first tri-

mester abortions be performed only in hospitals. The

court upheld as rationally related to maternal health a

regulation which required post-first trimester abortions

Le performed on an in-patient basis in a hospital equipped

with life-support equipment for the fetus if there is any

‘‘clearly visible evidence’’ of viability. In that case, the

court noted, 449 F.Supp. at 1318:

The methods of performing abortions after the first

trimester are relatively complicated. Injection of sa-

line or prostaglandins into the amniotic sac, and hys-

terotomies take time and require controlled conditions.

Plaintiffs urge that the record before this Court is sig-

nificantly different from that before the district court

in Wynn; that the advancement of medical knowledge

renders the reasoning of Wynn inapplicable.

The controversy over Missouri’s in-hospital require-

ment ceuiers on the abortion technique known as dilatation

and evacuation (D & E).* This post-first trimester abor-

§ Plaintiffs concede that post-first trimester abortion techniques other

than D & E, including saline instillation, prostaglandins, hysterotomy

and hysterectomy, should be performed only in a hospital.

A-8

tion technique was relatively unknown at the time of the

1973 Supreme Court decisions in Roe and Poe but has

come to be a common procedure for the termination of

pregnancies of longer than twelve weeks gestation.” Plain-

tiff physicians state that D & E is currently the safest

post-first trimester abortion technique up to eighteen

weeks gestation and that absent the statutory prohibi-

tion they would perform post-first trimester abortions

using the D & E method in clinics on an out-patient basis.

Plaintiffs’ medical experts testified that, consistent with

good medical practice, post-first trimester abortions can

be done safely in an out-patient clinic, at least up to eigh-

teen weeks gestation. Defendants’ experts testified that

all post-first trimester abortions, regardless of technique

employed, should be performed in a hospital because of

the increasing risk accompanying later abortions and the

ability of a hospital to better deal with potential compli-

eations.’°

In Planned Parenthood v. Danforth, 428 U.S. 52, 96

S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court held

that a Missouri statutory prohibition on the use of saline

*In 1977, 73.3% of reported abortions at 13-15 weeks gestation

were done by D & E. Of all reported post-12 week abortions, 38.6%

were done by D & E. Utilization of other methods for post-12 week

abortions in 1977 was as follows: saline instillation, 38.3%; prosta-

glandins, 16.5%; hysterotomy, 0.4%; hysterectormy, 0.5%; other and

unknown, 5.6%. Center for Disease Control, U.S. Dep’t of H.E.W. Abor-

tion Surveillance 1977, Table 18.

1° Defendants’ experts testified that a hospital would be equipped

with life support systems, an intensive care unit, and a blood bank,

and would have the services of an expert anesthesiologist, all of which

would be unavailable at a free-standing out-patient clinic. Plaintiffs

argue that the emergency room resources of nearby hospitals would be

available in case of complications resulting from abortions performed

at out-patient clinics.

A-9

instillation as a post-twelve abortion technique failed as a

reasonable regulation for the protection of maternal health.

The State, .. . would prohibit the use of a method which

the record shows is the one most commonly used na-

tionally by physicians after the first trimester and

which is safer, with respect to maternal mortality,

than even continuation of the pregnancy until normal!

childbirth. Moreover, as a practical matter, it forees

a woman and her physivian to terminate her preg-

nancy by methods more dangerous to her health than

the method outlawed.

Id., at 78-79, 96 S.Ct. at 2845. The court found that the

existence of prostaglandins instillation, an alternative

technique actually safer than saline, did not justify the

ban on saline. The prostaglandins alternative was at that

time limited to experimental use and, as a practical mat-

ter, was unavailable in the State of Missouri.'' The pro-

hibition of the saline technique was therefore ‘‘an un-

reasonable or arbitrary regulation designed to inhibit,

and having the effect of inhibiting, the vest majority of

abortions after the first twelve weeks.’’ Jd., at 79, 96 S.Ct.

at 2845.

On the record before it, this Court is convinced that

aside from the question whether it is performed in a hos-

pital or in an out-patient clinic,'* dilatation and evacuation

is the safest of the presently available post-twelve week

11 “Such an experimental and limited use of prostaglandin through-

out the country does not make it available or accessible to concerned

persons in Missouri.” Planned Parenthood v. Danforth, supra, at 77 n.12,

96 S.Ct. at 2845.

12. Dr. Bernard Nathanson, one of defendants’ experts, testified

that the morality and morbidity rates for D & E procedures performed

outside a hospital were probably no different than those performed in

a hospital.

A-10

abortion techniques.'* However, the record also indicates

that post-twelve week D & E procedures are performed

at only one hospital in the State of Missouri.** Thus, the

requirement that all post-twelve week abortions be per-

formed in a hospital has the practical effect of making a

D & E procedure, the safest post-twelve week technique,

an alternative which is simply unavailable to many preg-

nant women in Missouri. Under the reasoning of the Su-

preme Court in Danforth, the state’s limitation of post-

twelve week abortions to hospitals cannot stand as a

reasonable regulation for the protection of maternal health.

The effect of the regulation is to make unavailable the

most commonly utilized and the safest post-twelve week

abortion technique. As a practical matter, it may force

a woman and her doctor to terminate her pregnancy by a

method made unavailable. The limited availability of the

D & E procedure in a single hospital on the western

boundary of the state does not convince the Court that

D & E is an accessible or meaningful alternative to large

numbers of pregnant women in Missouri, particularly

those in rural areas or in the metropolitan St. Louis area

on Missouri’s eastern border. See Planned Parenthood v.

Danforth, supra, 428 U.S. at 77 n. 12, 96 S.Ct. 2831.

13 Mortality res (per 100,000 cases) for post-12 week abortion

techniques for the years 1972-1977 are as follows:

D&E 8.3

Prostaglandins and other agents 10.8

Saline instillation 15.5

Hysterotomy and hysterectomy 45.3

Center for Disease Control, U.S. Dep’t of H.E.W., Abortion Surveillance

1977, Table 23.

14 The uncontroverted testimony of Dr. Naim Kassar was that the

Truman Medical Center in Kansas City is the only hospital in the State

of Missouri which permits pest-12 week abortions by D & E. cf. Poelker

v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977) (a state

or city may constitutionally close public hospitals to all non-therapeutic

abortions) .

A-11

Missouri’s in-hospital requirement for all post-twelve

week abortions fails for another reason. In Planned Par-

enthood v. Danforth, the Supreme Court held that the

state may not grant a third party, in that case the parents

of an unmarried woman under the age of eighteen, an

absolute veto over the decision of the physician and his

patient to terminate the patient’s pregnancy. 428 U.S. at

74-75, 96 S.Ct. 2831. See also Bellotti v. Baird (Bellotti IT),

443 U.S. 622, 639, 99 S.Ct. 3035, 3046, 61 L.Ed.2d 797,

818 (1979). The record before this Court indicates that

there is no hospital in the State of Missouri which will

admit a woman under the age of eighteen without parental

consent.'® The statute’s effect is to impose an absolute

parental consent requirement for women under the age of

eighteen who desire to terminate pregnancies of longer

than twelve weeks gestation. The in-hospital requirement

gives the parents of a woman under eighteen who desires

a post-twelve week abortion the ‘‘absolute, and possibly

arbitrary, veto’’ outlawed by the Supreme Court in Dan-

forth and therefore cannot stand."*

15 Uncontroverted testimony of Drs. Allen Palmer, Naim Kassar,

and Robert Crist. There was evidence that a high proportion of women

desiring post-12 week abortions are in the younger age group. Rea-

sons for delay in seeking an abortion by women under 18 include a

lack of sophistication, psychological denial by the younger woman of

knowledge and the means to seek an earlier abortion.

16 It may be argued that this infirmity is avoided by the provision in

§ 188.028 for judicial consent or judicially-granted self-consent to an

abortion for a woman under 18. Even if that procedure was constitu-

tionally valid, see Part IV, infra, it does mot provide for judicial con-

sent to hospitalization of a woman under 8 or that Missouri hospitals

must alter their admissions policies to accept either judicial consent or

judicially-granted self-consent anc) admit women under 18 without par-

ental consent.

Plaintiffs additionally argued: (1) that the increased cost, longer

time required, and ‘oss of anonymity associated with an in-hospital

post-12 week abortion constitutes an undue burden on the effectua-

(Continued on next page)

A-12

IV.

Consent jor Minors

[5] Section 188.028 provides a special procedure to ob-

tain or provide consent for an abortion in the case of a

pregnant woman as under the age of eighteen. Unless a

minor is ‘‘emancipated,’’ in order for her to obtain an

abortion she must secure the consent of one parent or

guardian, she must have been granted by court order

the right to self-consent, or she must have been granted

judicial consent to the abortion. The statute sets out a

procedure whereby the minor may seek either the right

to self-consent or judicial consent. It provides for the

filing of an application in the juvenile court by the minor

or her next friend and specifies necessary allegations, in-

cluding the initials of the minor and the names and ad-

dresses of her parents, guardian, or person standing in

loco parentis. The minor’s parents, guardian or person

standing in loco parentis are then to be served with copies

of the petition and notice of the time and place of the

hearing on the minor’s application. There is provision for

constructive notice by certified mail if service is not had

within two days. The Court may appoint a guardian ad

litem for the minor if a conflict of interests appears be-

tween the child and her parents or guardian. There is

provision for the appointment of counsel, in appropriate

circumstances, for ‘‘any party.”’

A hearing is to be held within five days of the filing

of the petition, at which the court is to hear evidence re-

Footnote continued

tion of a pregnant woman’s abortion decision; and (2) that the in-

hospital requirement is actually contrary to the promotion of maternal

health due to an increased risk of infection and the prevalent use of

general anesthetics in most hospitals. In light of the above, it is not

necessary to reach these arguments.

A-13

lating to whether the minor should be granted the right to

self-consent to an abortion or whether the abortion is in

her best interest. The court is then to issue a decree in

which it shall, for good cause, take one of the following

actions: (1) grant the minor the right to :elf-consent;

(2) find the abortion to be in the best interests of the

minor and grant judicial consent, setting forth grounds for

so finding; or (3) deny the minor’s petition, setting forth

grounds on which it was denied. Either the minor or her

parents or guardian may appeal from such an order to

the Missoui Court of Appeals by giving notice of intent

to appeal within twenty-four hours from issuance of the

order. The appeal must be perfected within five days of

the filing of such notice. The section provides that the

Missouri Supreme Court shall, by court rule, provide for

expedited appellate review of such cases. Plaintiffs chal-

lenge the validity of the consent procedure fer minors

on the ground that it permits the juvenile court to deny

a minor access to an abortion even though she may be

sufficiently mature and competent to make the abortion

decision on her own."*

17 P aintiffs’ attack on this section was not limited to a single issue.

They also argued that the section is unconstitutional because (1) it

mandates parental involvement in all cases, contrary to Bellotti II,

supra (plurality opinion of Powell, J.), see Charles v. Carey, No. 79 C

454 (N.D.IIll. preliminary injunction filed Nov. 16, 1979); Women’s

Community Health Center, Inc. v. Cohen, 477 F.Supp. 542 (D.Me.

1979); Woman's Services, P.C. v. Thone, — F. Supp. — (D.Neb. partial

summary judgment filed Aug. 1, 1979); Leigh v. Olson, No. A3-79-78

(D.N.D. preliminary injunction filed July 9, 1979); (2) it creates an

unjustified distinction between two classes of minovs, those who consent

to carry a pregnancy to term and undergo normal delivery or Caesarian

section and those who consent to have an abortion, contrary to the hold-

ing in +ynn v. Carey, 582 F.2d 1375 (7th Cir. 1978); (3) the alterna-

tive judicial proceeding constitutes an undue burden on the abortion

decision, see Wynn v. Carey, supra; (4) the statute is unconstitutionally

vague because the term “emancipated” is not defined; and (5) that

(Continued on next page)

A-14

In Planned Parenthood vy. Danforth, supra, the Su-

preme Court struck down a requirement that unmarried

minors obtain the consent of a parent or person in loco

parentis.

[T]he State does not have the constitutional authority

to give a third pariy an absolute, and possibly arbi-

teary, veto over the decision of the physician and his

patient to terminate the patient’s pregnancy regarid-

less of the reason for withholding the consent.

428 U.S. at 74, 96 S.Ct. at 2845. The Court further defined

the constitutional limitations in this area in Bellotti v.

Baird (Bellotti 11), 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d

797 (1979), in which it concluded:

[L]f the State decides to require a pregnant minor to

obtain one or both parent’s consent to an abortion,

it also must provide an alternative procedure whereby

authorization for the abortion can be obtained.

443 U.S. at 643, 99 S.Ct. at 3048, 61 L.Ed.2d at 813 (plurality

opinion of Powell, J.). In Bellotti 1] the Court considered

u Massachusetts consent for minors statute which pro-

vided:

If the mother is less than eighteen years of age and

has not married, the consent of both the mother and

her parents [to an abortion to be performed on the

mother] is required. If one or both of the mother’s par-

ents refuse such consent, consent may be obtained by

order of a judge of the superior court for good cause

shown, after such hearing as he deems necessary.

Footnote continued

the judicial proceeding outlined in the section does not assure the “an-

onymity and sufficient expedition” required in Bellotti 11, supra, (plural-

ity opinion of Powell, J.), because it simply authorizes the future promul-

gation of rules to expedite appellate review in such cases. It is unnecessary

to reach these arguments.

A-15

443 U.S. at 625, 99 S.Ct. at 3039, 61 L.Ed.2d at 802. Because

the statute was susceptible of a construction which might

sustain its validity, the Supreme Court initially abstained

so that the courts of Massachusetts might provide a con-

clusive interpretation. Bellotti v. Baird (Bellotti 1), 428

U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). The Su-

preme Judicial Court of Massachusetts interpreted the

statute to authorize the court to refuse its consent if it

determined that an abortion would not be in the best

interests of the minor, even though the minor might be

capable of making an informed and reasonable decision

herself. 443 U.S. at 650, 99 S.Ct. at 3051-52, 61 L.Ed.2d at

817-18. The Supreme Court found the Massachusetts stat-

ute, as interpreted, constitutionally invalid.

[I]f the minor satisfies a court that she has attained

sufficient maturity to make a fully informed decision,

she then is entitled to make her abortion decision

independently. We therefore agree with the District

Court that [the statute] cannot constitutionally permit

judicial disregard of the abortion decision of a minor

who has been determined to be mature and fully com-

petent to assess the implications of the choice she has

made.

443 U.S. at 650, 99 S.Ct. at 3052, 61 L.Ed.2d at 818 (plurality

opinion of Powell, J.).’*

443 U.S. at 654, 99 S.Ct. at 3053, 61 L.Ed.2d at 820 (con-

curring opinion of Stevens, J.).

Section 188.028.2(4) of the Missouri Act requires the

'8 [The Massachusetts statute] does, of course, provide an alter-

native in the form of a suit initiated by the woman in Superior

Court. But in that proceeding, the judge is afforded an absolute

veto over the minor's decisions, based on his judgment of her best

interests.

A-16

juvenile court determine the issue of consent in one of

three ways.

(4) In the decree, the court shall for good cause:

(a) Grant the petition for majority rights for

the purpose of consenting to the abortion; or

(b) Find the abortion to be in the best interests

of the minor and give judicial consent to the

abortion, setting forth the grounds for so find-

ing; or

(c) Deny the petition, setting forth the grounds

on which the petition is denied;

Defendants content that the court may deny the petition

‘*provided that it finds that the minor is not mature, and

that an abortion would not be in her best interest.’’ De-

fendants’ Post-trial Brief at 26. This procedure cures the

defect in Bellotti 11, say defendants, ** because there is no

opportunity for judicial authorization for an abortion to

be withheld where a minor is found to be mature and com-

petent to make the decision independently ... .’’ /d., at 27.

This Court is unable to subscribe to defendants’ read-

ing of the statute. Although the juvenile court is authorized

to select one of three alternatives, each of the three is

clearly independent of the others, connected in the statute

with the disjunctive ‘‘or.’’ Alternative (c) permits the

court to ‘‘deny the petition,’’ guided only by the general

standard that such action be ‘‘for good cause.’’ Defendants

suggest that the legislative intent is clear that the ju-

venile court may deny the minor’s petition onm’y if it finds

that abortion is not in the best interests of the minor and

that the minor is not competent to decide for herself.

Such an intent is not evident in the statute nor was any

such showing made at trial. It is clear to this Court that

A-17

alternative (c) authorizes the juvenile court to deny the

minor’s petition for good cause, but does not require a

prior finding that the minor is not sufficiently mature and

not competent to make a decision regarding abortion in-

dependently.

Defendants alternatively request that the Court ab-

stain from ruling, citing Bellotti J. In that case the Su-

preme Court said that abstention is appropriate if an un-

construed state statute is susceptible to a construction

which might avoid the need for federal constitutional ad-

judication,’® 428 U.S. at 146-47, 96 S.Ct, 2857, and found

that particular statute susceptible to such a construction.

It is clear to this Court that section 188.028 is not suscep-

tible to a reasonable construction which would avoid the

federal constitutional question controlling in Bellotti 11.

The statute permits the juvenile court to deny the minor’s

application but does not require that the court first find

the minor not competent to make a decision independently.

Accordingly, the Court declines to abstain.

The consent procedure in section 188.028 permits ju-

dicial authorization for an abortion to be withheld from

a minor who is sufficiently mature and competent to make

a decision regarding abortion independently, contrary to

the ruling in Bellotti 11. It creates the absolute veto pro-

seribed in Danforth and, under that case and Bellotti 77,

is unconstitutional. Scheinberg vy. Smith, 482 F.Supp. 529

(S.D.Fla.1979) (see memorandum opinion accompanying

preliminary injunction filed July 13, 1979, sub nom. Jones

v. Smith); Akron Center for Reproductive Health, Ine.

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

1® The Court noted that the rule of the Supreme Judicial Court of

Massachusetts which permits certification of questions directly to that

court for prompt resolution “greatly simplifie{d)]” the Court's analysis.

There is no such procedure in Missouri.

A-18

V.

Abortion After Viability

[6] Section 188.030 regulates abortion in cases in which

the fetus has reached viability. In three subsections, the

statute prescribes when post-viability abortions may be

performed, regulates the abortion technique to be employed,

and requires the attendance of a second physician and a

specified standard of care. Kach subsection will be dis-

cussed in turn.

Defendants initially contend that no plaintiff has

standing to challenge any part of section 188.030 because

no plaintiff presently performs or desires to perform

abortions past the stage at which the fetus is viable. Plain-

tiff Dr. Naim Kassar testified that, in the interests of

maternal health, he has performed an abortion as late as

approximately twenty-eight weeks gestation. Although the

Supreme Court stated that it is not the function of either

the legislature or the courts to place viability at a specific

point in the gestation period, Danforth, supra, 428 U.S. at

64, 96 S.Ct. 2831, the Court noticed in Roe that viability

usually had been placed at about twenty-eight weeks, but

could occur as early as twenty-four weeks. Roe, supra, 410

U.S. at 160 93 S.Ct. 705. Enforcement of section 188.030

would have an immediate and direct effect on the medical

practice of Dr. Kassar; he therefore has standing to con-

test its constitutional validity.

Subsection 1 provides that ‘‘{njo abortion of a viable

unborn child shall be performed unless necessary to pre-

serve the life or health of the woman’’ and requires the

physician certify in writing that such an abortion is

necessary to preserve the life or health of the woman, the

medical indications for the abortion, and the probable

health consequences. The Act’s penalty section mandates

criminal liability for ‘‘[a]ny person who contrary to the

A-19

provisions of [the Act] knowingly performs . . any abor-

tion. ...’’ Plaintiffs argue that subsection 1, in conjunc-

tion with imposition of criminal liability, is unconstitution-

ally vague because it sets no standards regarding the

determination of viability by the physician. Plaintiffs fur-

ther argue that the subsection is unconstitutional because

it would impose strict criminal liability on a physician

for an erroneous, but good faith, determination of fetal

nonviability.

In Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58

L.Ed.2d 596 (1979) the Supreme Court ruled on a Penn-

sylvania statute which provided that ‘‘[e]very person who

performs or induces an abortion shall prior thereto have

made a determination based on his experience, judgment or

professional competence that the fetus is not viable, and

if the determination is that the fetus is viable or if there

is sufficient reason to believe that the fetus may be

viable,’’ that the physician exercise a specified standard

of care. Plaintiffs in that case argued that the viability

determination requirement was unconstitutionally vague

because ii failed to inform the physician when his duty

to the fetus arose and because it did not make the phy-

sician’s good faith determination of viability conclusive.

The Court held the Pennsylvania viability determina-

tion requirement void for vagueness because of a ‘‘double

ambiguity.’’ The statute set no clear standard regarding

the doctor’s determination of fetal viability; whether it

was to be a purely subjective determination or whether

the physician was subject to a mixed subjective and ob-

jective standard.

In other words, it is ambiguous whether there must

be ‘‘sufficient reason’’ from the perspective of the

judgment, skill, and training of the attending phy-

sician, or ‘‘sufficient reason’? from the perspective of

A-20

a cross-section of the medical community or a panel of

experts The latter, obviously portends not an inecon-

sequential hazard for the typical private practitioner

who may not have the skills and technology that are

readily available at a teaching hospital or large medi-

cal center.

Id., 439 U.S. at 391, 99 S.Ct. at 683, 58 L.Bd.2d at 606-07.

Inclusion of the phrase ‘‘may he viable’’ injected a see-

ond ambiguity: whether the statute delineated some new

time period in a pregnancy during which there might be a

remote possibility of viability somewhere short of ‘‘via-

hility’’ itself.

Compounding the vagueness of the statute, said the

Court, was the fact that it ‘‘subjects the physician to po-

tential criminal liability, without regard to fault.’’ Al-

though the criminal penalty provision did require scienter

with respect to the act of abortion, there was no require-

ment of a culpable mental state regarding the doctor's de-

termination that the fetus is or **may be’’ viable®°

Because of the absence of a scienter requirement in

the provision directing the physician to determine

whether the fetus is or may be viable, the statute is

little more than ‘‘a trap for those who aet in good

faith.’’ [citation omitted]

20 The Court noted that the statute did provide a subjective standard

for the determination of viability, and that it was ambiguous whether

that standard also applied to the determination that the fetus “may

be viable.” However, the application of a subjective standard did not

avoid the strict criminal liability issue. “A subjective standard keyed

to the physician's individual skill and abilities, however, is different

from a requirement that the physician be culpable or blameworthy for

his performance under such a standard.” Collautti v. Franklin, 439 U.S.

at 095, 99 S.Ct. at 685, 58 L.Ed.2d at 609 n. 12.

A-21

The perils of strict criminal liability are particularly

acute here because of the uncertainty of the viability de-

termination itself. As the record in this case indicates, a

physician determines whether or not a fetus is viable after

considering a number of variables: the gestational age of

the fetus, derived from the reported menstrual history of

the woman; fetal weight, based on an inexact estimate of

the size and condition of the uterus; the woman’s general

health and nutrition; the quality of the available medical

facilities; and other factors. Because of the number and

the imprecision of these variables, the probability of any

particular fetus’ obtaining meaningful life outside the

womb can be determined only with difficulty. Moreover,

the record indicates that even if agreement may be reached

on the probability of survival, different physicians equate

viability with different probabilities of survival, and some

physicians refuse to equate viability with any numerical

probability at all. In the face of these uncertainties, it is

not unlikely that experts will disagree over whether a

particular fetus in the second trimester has advanced to

the stage of viability. The prospect of such disagreement,

in conjunction with a statute imposing strict civil and

criminal liability for an erroneous determination of via-

bility, could have a profound chilling effect on the willing-

ness of physicians to perform abortions near the point of

viability in the manner indicated ‘w their best medical

judgment.

1d., 439 U.S. at 395, 99 S.Ct. at 685, 58 L.Ed.2d at 609-10.

However, because the viability determination requirement

was ‘‘void on its face,’’ the Court in Colautti declined to

decide in that case ‘‘whether, under a properly drafted

statute, a finding of bad faith or some other type of scienter

would be required before a physician could be held crim-

inally responsible for an erroneous determination of via-

bility.’’

A-22

The Missouri regulation prohibits the abortion of a

viable fetus, with the exception of necessity to preserve the

life or health of the woman, and subjects the physician to

criminal liability for its violation. Although the penalty

provision requires a culpable mental state, ‘‘knowingly,’’

regarding the act of abortion, neither the penalty section

nor the substantive prohibition contains a culpable men-

tal state requirement regarding the atiending physician’s

necessary determination of fetal viability or nonviability.

By its own terms, the statuie is absolute. The physician

who performs an abortion based on his good faith deter-

mination, in the exercise of his best medical judgment, that

the fetus is not viable is subject to strict criminal lia-

bility if his determination is erroneous, regardless of his

state of mind. Thus, the question deferred by the Sn-

preme Court in Colautti is presented to this Court.

The record in this case relating to the determination

of viability parallels that described by the Court in Co-

lautti, The determination by the attending physician wheth-

er any particular pregnancy has passed the point of

fetal viability is based on a number of variables, none

of which is susceptible of precise determination, and is

uncertain at best. Further, there is a difference of medical

opinion regarding the probability of survival necessary

before a fetus may be considered *‘viable.’’

The Supreme Court affirmed in Danforth that via-

bility is a medical concept involving the judgment of the

attending physician and his skill and technieal ability, and

by its nature is flexible and imprecise, varying with each

pregnancy. It is clear to this Court that strict criminal

liability attending upon an erroneous determination by

a physician that a particular pregnancy had not yet

reached the point of viability not only offends due proc-

A-23

ess** but denies the attending physician presented with

a woman whose pregnancy is close to the point of viability

‘*the room he needs to make his best medical judgment.”’

Doe v. Bolton, 410 U.S. at 192, 983 S.Ct. at 747; Colautti

v. Franklin, supra.** Accordingly, the regulation in sub-

section 1, which incorporates strict criminal liability for

an erroneous determination of viability, cannot stand.

[7] Subsection 2 of § 188.030 requires that a physician

performing an abortion past the point of viability utilize

the abortion technique ‘‘most likely to preserve the life

and health of the unborn child.’’ The subsection further

provides that the physician ‘‘may’’ employ some other

abortion technique in cases.

where the method of technique of abortion which would

most likely preserve the life and health of an unborn

21 See Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240,

243, 96 L.Ed.2d. 288 (1952):

The contention that an injury can amount to a crime only when

inflicted by intention is no provincial or transient notion. It is as

universal and persistent in mature systems of law as belief in free-

dom of human will and a consequent ability and duty of the normal

individual to choose between good and evil.

In Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960), then

Judge, now Justice, Blackmun described the type of offense in which

the absence of a culpable mental state would not offend due process:

[Where it seems to involve what is basically a matter of policy,

where the standard imposed is, under the circumstances, reason-

able and adherence thereto properly expected of a person, where

the penalty is relatively small, where conviction does not gravely

besmirch. .

Tae ese Gunde of Os Met en Oe § 188.075, RSMo,

provides that a violator is guilty of a class A misdemeanor which is

punishable by a term of imprisonment not to exceed one year, § 558.-

011.1(5), RSMo, and a fine not exceeding $5,000, § 560.021.1(2).

22 The Supreme Court also noted in Colautti that strict criminal

liability could have “a profound chilling effect on the willingness of

physicians to perform abortions near the point of viability in the man-

ner indicated by their best medical judgment.”

A-24

child would present a greater risk to the life and

health of the woman than another available method

or technique. (emphasis added)

The subsection goes on to require in such cases that the

performing physician certify in writing the techniques

considered and the reasons for choosing the technique

actually employed. Plaintiffs argue that subsection 2 is

defective for the same reasens as is subsection 1; that

it is unconstitutionally vague and that it subjects the

physician to criminal liability without a culpable mental

state.

The requirements of the subsection are triggered

initially by the physician’s determination of fetal via-

bility. The physician is then called upon to determine

which abortion technique is ‘‘most likely to preserve the

life and health’’ of the fetus. The physician also must de-

cide whether that technique mandated by the statute pre

sents a ‘‘greater risk to the life and health of the woman’’

than some other abortion technique. These medical de-

cisions and others of the same nature are a fundamental

part of the daily practice of medical doctors; they have

been and will be made every day, completely aside from

this statutory requirement. Because of the nature of the

science and art of medical practice, these determinations

are often uncertain and difficult to make. Experts may,

and often do, disagree on their resolution, both in specific

cases and as general propositions.** Through the penalty

provision, subsection 2 imposes strict liability for an

23 This record contains conflicting testimony from medical experts

regarding the relative safety to the woman and to the fetus of various

post-first trimester abortion techniques.

Testimony of Drs. Allen Palmer, Naim Kassar, Robert Crist, and

Bernard Nathanson. See Colautti v. Franklin, 439 U.S. at 401, 99

S.Ct. at 688, 58 L.Ed.2d at 612: “The choice of an appropriate abor-

tion technique, as the record in this case so amply demonstrates, is a

complex medical judgment about which experts can—and do—disagree.”

A-25

error in any of the above medical decisions, regardless

of the physician’s state of mind. For the reasons discussed

in relation to subsection 1, the Court also finds subsection

2 to be contitutionally deficient. See Colautti v. Franklin,

supra.

(8, 9] Subsection 2 also suffers from the vagueness

fatal to the Pennsylvania statute considered by the Sr-

preme Court in Colautti. Although the first sentence of

subsection 2 mandates utilization of the abortion technique

most favorable to the life and health of the fetus, the

second sentence informs the doctor that he ‘‘may’’ use

another technique, if that prescribed in the first sentence

presents ‘‘a greater risk to the life and health of the

woman”’ than some other technique. In this case, and as

noted by the Supreme Court in Colautli, 439 U.S. at 400,

99 S.Ct. at 688, 58 L.Ed.2d at 612:

it is uncertain whether the statute permits the phy-

sician to consider his duty to the patient to be para-

mount to his duty to the fetus, or whether it requires

the physician to make a ‘‘trade-off’’ between the

woman’s health and additional percentage points of

fetal survival. Serious ethical and constitutional dif-

ficulties, that we do not address, lurk behind this am-

bignity. We hold only that where conflicting duties

of this magnitude are involved, the State, at the

least, must proceed with greater precision before it

may subject a physician to possible criminal sanctions.

The difficulties noted by the Supreme Court are present in

subsection 2. The lack of a culpable mental state require-

ment compounds the uncertainty. Colautti v. Franklin,

supra.**

24 Defendants contend that the intent of the subsection is clearly

not to require that the life of the fetus be favored over the life of the

mother, end alternatively urge abstention in favor of a construction of

(Continued on next page)

A-26

[10] Subsection 3 requires the attendance of a second

physician at any abortion performed past the point of

viability, ‘‘who shall take control of and provide imme-

diate medical care for a child bern as a result of the abor-

tion.’’ It also prescribes a standard of care to be exercised

by both physicians:

[They] shall take all reasonable steps in keeping with

good medical practice, consistent with the procedure

used, to preserve the life and health of the viable un-

born child; provided that it does not pose an increased

risk to the life or health of the woman.

As with the two previous subsections, the Act’s pen-

alty provision imposes criminal liability on the physician

who performs an abortion in violation of the regulation due

to an erroneous determination of nonviability, without

regard to the doctor's mental state. For the reasons dis-

Footnote continued

the provision by the courts of Missouri should this Court find other-

wise, citing Bellotti I. The judge-made doctrine of abstention, see Rail-

road Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85

L.Ed.2d 971 (1941), is appropriate in a case in which a challenged state

statute is susceptible to a construction by the state judiciary that would

avoid or modify the necessity of reaching a federal constitutional ques-

tion. Zwickler v. Kovta, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444

(1967). On the other hand, if it cannot be fairly concluded that the

statute can be reasonably construed so as to avoid the necessity for

federal constitutional adjudication, abstention is inappropriate and would

amount to a shirking of the responsibilities of the federal courts. Kusper

v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973). Be-

cause subsection 2 of § 188.030 is defective due to the absence of a

culpable mental state requirement, the Court is not convinced that

resolution of the vagueness issue, i. ¢., whether the duty of the physi-

cian to his female patient is paramount to the physician’s duty to

preserve the life and health of the fetus, by a definitive interpre-

tation of the subsection by the Missouri courts would avoid eventual

federal constitutional adjudication. The court again notes that there is

no procedure to certify questions for prompt resolution to the Missouri

Supreme Court, See Bellotti I, 428 U.S. at 150-51, 96 S.Ct. 2857.

A-27

cussed above, the Court finds this imposition of strict

criminal liability with regard to a medical judgment un-

constitutional.

(11, 12] The requirement of a second physician is also

overbroad. The record shows that dilatation and evacua-

tion may be the procedure of choice, even after viability,

in cases in which there are positive contraindications to

use of saline or prostaglandins instillation.** The experts

agreed that D & E carries no chance of fetal survival.

The Supreme Court has held that legislative enactments

in this area involving fundamental rights ‘‘must be nar-

rowly drawn to express only the legitimate state interests

at stake.’’ Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 728;

Carey v. Population Services International, 431 U.S. 678,

97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The state has an im-

portant and legitimate interest in potential life and may

regulate abortion after viability to preserve the life and

health of the fetus. Roe v. Wade, supra. Although the pres-

ence of a second physician to care for the child born as

a result of a post-viability abortion certainly may further

the state’s interest in the protection of potential life,

“ae attendance of a second physician during an abortion

procedure which holds no possibility of fetal survival

does not further that interest. The two-physician regulation

is therefore overboard and invalid on that basis.

VI.

Informed Consent

[13] Section 188.039 prescribes a procedure to be fol-

lowed by the woman’s physician to secure and document

her informed consent to the abortion. The physician must

certify: (1) that he informed the woman of the informa-

25 Testimony of Drs. Robert Crist (for plaintiffs) and Richard

Schmidt (for defendants).

A-28

tion specified in the statute not less than forty-eight

hours prior to her giving her consent to the abortion; (2)

if the woman is a minor, that he also provided her parent,

legal guardian, or person standing in loco parentis the

same information; and (3) the woman’s age, based on

‘*proof of age’’ provided by her. The woman must sign

a consent form to acknowledge that she has been in-

formed by the attending physician of the following:

(1) That according to the best medical judgment of

her attending physician she is pregnant;

(2) The number of weeks elapsed from the probabie

time of conception of her unborn child, based upon

the information provided by her as to the time of

her last menstrual period and after a history and

physical examination and appropriate laboratory

tests ;

(3) The probable anatomical and physiological char-

acteristics of the unborn child at the time the abortion

is to be performed;

(4) The immediate and long-term pliysical dangers

of abortion and psychological trauma resulting from

abortion and any increased incidence of premature

births, tubal pregnancies and still births following

abortion ;

(5) The particular risks associated with the abortion

technique to be used;

(6) Alternatives to abortion shall be given by the

attenting physician, including a lisi of publie and

private agencies and services that will assist her dur-

ing her pregnancy and after the birth of her child.

The section further provides that the physician may in-

form the woman of ‘‘other material facts or opinions’’

A-29

which may be necessary to allow the woman to be fully

informed of the nature and consequences of an abortion.

Plaintiffs contend that the section’s requirement that

the information be given by the attending physician, rather

than some other person, is unduly burdensome. At the

clinic of plaintiff Reproductive Health Services, informa-

tion relating to the woman’s informed consent to an abor-

tion, including much of the information required by the

statute, is presented through an ‘‘informed consent’’ video-

tape of a doctor discussing the abortion proceedure and

through sessions with lay counselors, and does not come

directly from the physician who actually performs the

abortion procedure. Plaintiffs claim that this system was

devised as the most efficient and economical method of

delivery of this particular medical service and that it

would be disrupted if the attending physician had to spend

more time with each patient than is presently the prac-

tice, thereby increasing the cost of each procedure.** An

26 Testimony of Judith Widdicombe, R. N., Executive Director of

Reproductive Health Services. Ms. Widdicombe estimated that the cost

per procedure would increase by $70 if the attending physician were

required to spend an additional 30 minutes with each patient.

Plaintiffs also argue that this requirement, in conjunction with the

48 hour waiting period, could result in delays of substantially more

than 48 hours. Physicians perform abortions at Reproductive Health

Services’ clinic on a part-time basis, perhaps one afternoon per week.

If the physician must give information to each patient on whom he

performs an abortion 48 hours prior to the procedure, say plaintiffs,

delays of one week or more would result, simply because the doctor

would not be present at the clinic for at least a week after the initial

session with the patient. Plaintiffs argue that the patient's personal

schedule might delay the procedure even longer if she could not ar-

range to come to the clinic on the day on which the physician who

presented the information to her was in attendance. The Court notes

that plaintiffs have made a showing that the combination of a man-

datory waiting period with the requirement that certain information

be conveyed by the physician who actually performs the abortion

on next page)

A-30

effect of the requirement will be that the doctor who per-

forms the abortion may have to spend more time with

each patient than is currently the practice in plaintiffs’

clinics. This may result in increased costs, although the

additional expense to the patient wili certainly depend on

the amount of information required to be present directly

by the physician and the actual time required by a par-

ticular physician to convey it. On this record, the Court

is not convinced that the requirement that information

important to the woman’s decision to have an abortion

come directly from the attending physician is an undue

burden on her decision to abort or her obtaining an abor-

tion.27 The Supreme Court has emphasized the participa-

tion and responsibility of the woman’s physician regarding

the decision to have an abortion and has noted the legiti-

macy of the state’s interest that she make the decision with

full knowledge of its nature and consequences. Planned

Parenthood v. Danforth, supra. A requirement that the

attending physician personally provide information re-

garding the abortion decision furthers that interest and

is not unconstitutional.**

[14] Plaintiffs challenge the forty-eight hour waiting

Footnote continued

would present a practical problem to plaintiff's clinics, one result of

which could be significant delay between the woman's initial visit and

the abcrtion itself. The 48 hour waiting period has been stricken as an

unconstitutional burden or obtaining an abortion.

27 Testimony regarding the time necessary for a physician to present

all of the information specified in the statute ranged from 15 minutes

to an hour and a half. Some items specified in the section have been

stricken as unconstitutional.

It is conceivable that a regulation might require a presentation by

the attending physician so lengthy as to become unduly burdensome,

although such a finding is not supported by this record.

28 See Akron Center for Reproductive Health, Inc. v. City of

Akron, 479 F.Supp. 1172 (N.D. Ohio 1979); Women’s Community

Health Center, Inc. vy. Cohen, 477 F.Supp. 542 (D.Me. 1979).

A-31

period as an undue burden on the abortion decision which

actually increases the risk to the woman’s health. The ex-

perts seem to be in accord that the length of gestation at

the time of abortion is directly related to the risk pre-

sented by the procedure to the woman’s life and health,

the risk increasing the later an abortion is performed.*®

The Court is convinced that the forty-eight hour delay

imposed by the statute would have, in the words of plain-

tiffs’ expert, a ‘‘significant health impact’? on a woman

seeking an abortion.** There was additional testimony

that a mandatory forty-eight hour waiting period could

have the effect of a much longer delay due to the nature

of physicians’ working schedules.*' The record shows that

such delay has a disproportionate impact on minors, who

generally seek abortions at a later stage of pregnancy.

Defendants argue that the waiting period is designed

to ensure that the abortion decision is made with ‘‘adequate

reflection and consideration,’’ and as such furthers the

state’s interest in maternal health. However, there was ex-

pert testimony at trial which indicated that, as a general

proposition, women seeking abortions have completely

2° Within the first 12 weeks, the main risk to a woman who wants

an abortion results from delay.

Our findings clearly demonstrate that any delay increases the risk

of complications to a pregnant woman who wishes an abortion.

(emphasis in origina!)

Willard Cates, Jr., et al., The Effect of Delay and Method Choice on

the Risk of Abortion Morbidity, 9 Family Planning Perspectives 266,

267-68 (1977) (reprinted by Public Health Service, U.S. Dep't of

H.E.W.)

8° Testimony of Dr. Robert Crist.

3! Testimony of Drs. Allen Palmer and Robert Kretzschmar. See

note 26, supra.

82 Testimony of Drs. Enrique Vera, Robert Kretzschmar, Grace

Ketterman, and Dr. Elizabeth Smith. See note 15, supra.

A-32

thought out the abortion decision prior to approaching a

clinic or personal doctor.’

The forty-eight hour waiting period requires that a

woman make a minimum of two visits to her physician or

to a clinic. This requirement involves additional time and

expense and, for women living outside the metropolitan

areas, May require additional travel or subsistence expense

during the delay.

This Court concludes that the mandatory forty-eight

hour waiting period has, in fact, a detrimental effect on

the health interests of women seeking abortions and there-

fore lacks a rational relation with any legitimate state

interest. Moreover, the mandatory waiting period is un-

duly burdensome to women seeking abortions. Bellotti 1.

supra. For both reasons, the mandatory forty-eight hour

waiting period is unconstitutional.”

[15] Plaintiffs claim that the requirement that the

physician certify the woman’s age based upon ‘‘proof of

age offered by her’’ is void for vagueness. The Court can-

not agree. A physician’s good faith certification of a

woman’s age based on as little proof as the woman’s own

declaration or written statement of her age would satisfy

the statute. There is no constitutional infirmity.

[16] In the case of a minor, subsection 2 requires that

not only she but also ‘‘her parent or legal guardian or

person standing in loco parentis’* be informed of specified

33 Testimony of Dr. Enrique Vera.

34 Accord, Womens Services, P.C. v. Thone, 483 F.Supp. 1022

(D.Neb. 1979) (48 hours); Women’s Community Health Center, Inc.

v. Cohen, 477 F.Supp. 542 (D.Me. 1979) (48 hours); Leigh v. Olson,

No. A3-79-78 (D.N.D. preliminary injunction filed July 9, 1979) (48

hours); But see Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976) (24

hours). (no argument that delay “significantly burdens the abortion

process”); Akron Center for Reproductive Health, Inc. v. City of Akron,

479 F.Supp. 1172 (N.D.Ohio 1979) (24 hours).

A-33

information by the attending physician before she may

obtain an abortion. The Court agrees with plaintiffs’ con-

tention that this regulation constitutes an undue burden

on a minor seeking an abortion. The subsection makes no

distinction between a minor still living in her parents’

home and an emancipated minor who might be living

independently and at some distance from her parents or

guardian. The requirement contains no exception, for in-

stance, for parents who may be difficult to contact or who

may live thousands of miles from the location of the attend-

ing physician. It does not provide that absent parents or

parents impossible to contact may be informed construc-

tively. As written in this subsection, the requirement that

parents or guardian be informed prior to a minor obtaining

an abortion could inject substantial delay into the process

and, in some cases, could constitute an insurmountable

obstacle. It is unconstitutional as an undue burden on a

minor seeking an abortion.

[17] Plaintiffs’ remaining objections to section 188.039

concern the specific information required to be presented

by the attending physician to every woman seeking an

abortion. This regulation to ensure ‘‘truly informed con-

sent’? must be considered in light of Planned Parenthood

v. Danforth, in which the Supreme Court upheld a prior

Missouri requirement that the woman give ‘‘informed”’

consent in writing. Answering a vagueness challenge to

the term ‘‘informed,’’ the Court stated, 428 U.S. at 67

n.8, 96 S.Ct. at 2840:

[w]e are inclined to accept, as the meaning [of ‘‘in-

formed’’ consent], the giving of information to the

patient as to just what would be done and as to its

consequences. To ascribe more meaning than this

might well confine the attending physician in an un-

desired and uncomfortable straitjacket in the practice

of his profession.

A-34

The Eighth Circuit interpreted that statement in Freiman

v. Ashcroft, 584 F.2d 247, 251 (Sth Cir. 1978), summarily

aff’d, 440 U.S. 941, 99 S.Ct. 1416, 59 L.Ed.2d 630 (1979).

‘*(T]he Supreme Court did not hold that a state may re-

quire physicians to provide to each patient any and all

information required by the state, regardless of its legality,

truth, constitutionality or medical advisability.’’ The state

has a legitimate interest in protecting women by ensur-

ing that the decision to have an abortion is made with

knowledge of the nature and consequences of the abortion

procedure. Planned Parenthood v. Danforth, supra. How-

ever, specific regulations in this area may not, consistent

with the reasoning in Danforth, have a ‘‘straitjacket’’ ef-

fect on the attending physician. There is a danger that

specific information requirements may force the physician

to do something other than what he considers to be best

for his patient.

The first two items require the physician to inform

the woman ‘‘[t]hat according to the best medical judgment

of her attending physician she is pregnant,’’ and ** [t]he

number of weeks elapsed from the probable time of con-

ception ... .’’ Both plaintiffs’ and defendants’ experts

testified that, apart from the statute, presenting such in-

formation to the patient seeking an abortion is good medi-

eal practice and would be done as a matter of course in

almost all abortion cases. It is the exception which under-

lies plaintiffs’ constitutional objection to these items.

[18] The procedure known as menstrual extraction is

the removal of uterine contents prior to a positive preg-

nancy test. The purpose of the procedure is to correct a

menstrual disorder and/or to abort a very early preg-

35 Testimony of Dr. Enrique Vera.

A-35

naney.** At the stage at which the procedure is done it is

not presently possible to determine whether the woman

is in fact pregnant;** in practice the procedure is done with

disregard to that question.** A menstrual extraction is

intended to and in many cases does result in an abortion.

Because the statute requires the physician to tell his pa-

tient that she is pregnant®* and the length of her pregnancy

prior to performing an abortion, a menstrual extraction per-

formed prior to a positive pregnancy test and resulting in

an abortion is unlawful. This could cause a woman seeking

an early abortion to wait until such time as current tech-

nology enabled her physician to determine that she is in

fact pregnant. A regulation which has the effect of outlaw-

ing a safe abortion technique utilized in the very early

stages of pregnancy does not survive even rational basis

inquiry.*®

[19] The physician also is required to relate to every

woman who seeks an abortion the ‘‘ probable anatomical and

physiological characteristics of the unborn child at the

time the abortion is to be performed’’ and the ‘‘immediate

and long-term physical dangers of abortion and psycho-

logical trauma resulting from abortion and any increased

36 Dr. Robert Crist estimated that, within a reasonable medical cer-

tainty, 85% of those women with a menstrual period 10 days late are,

in fact, pregnant.

®t Testimony of Drs. Allen Palmer, Robert Crist, Robert Kretz-

schmar, and Richard Schmidt. There is nothing in this record to in-

dicate the existence of a reliable pregnancy test at this early stage of

3 Testimony of Dr. Allen Palmer.

3® The statute does not require the physician to tell his patient

whether she is pregnant; it requires the affirmative statement that she

is pregnant.

*° Contra, Planned Parenthood vy. Fitzpatrick, 401 F.Supp. 554

(E.D.Pa. 1975), summarily aff'd sub nom. Franklin v. Fitzpatrick, 428

US. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976) (this issue was not

part of that appeal).

A-36

incidence of premature births, tubal pregnancies and still

births following abortion.’’ From the testimony and other

evidence presented at trial, the Court concludes that these

two items constitute an impermissible intrusion into the

privacy of the doctor-patient relationship and interfere

with the right of a woman to consult with her physician

regarding abortion free from state interference.”

It is clear that many physicians believe that a man-

datory presentation on fetal anatomy and physiology is

not in the best healtl: interests of many, if not all, of their

patients seeking abortions. There was evidence that most

women seeking an abortion do not desire such anatomical

information* and that the giving of such information may

have adverse effects in the form of emotional tension, in-

creased anxiety and fright.** It is also clear that many

physicians believe that there are no longterm physical or

psychological effects of abortion or are unaware of such

effects.** It is certainly not for this Court to say whether

such long-term dangers actually exist. It is sufficient to

note that the evidence demonstrates that many physicians

believe that such information is highly debatable or is

simply not factual, based on present medical knowledge.

It is evident that such physicians, in the exercise of

41 Plaintiffs also make a strong argument that the requirement that

the physician relate the “probable anatomical and physiological charac-

teristics” of the fetus, enforced by criminal sanctions, is void for vague-

ness.

42 Testimony of Dr. Robert Kretzschmar and Dr. Elizabeth Smith.

43 Testimony of Drs. Allen Palmer, Robert Crist, Naim Kassar, and

Enrique Vera. These experts also testified that such adverse emotional

effects may require use of anesthetics in greater amounts, thereby in-

creasing risk to the woman's health.

44 Testimony of Drs. Allen Palmer, Naim Kassar, Robert Crist, and

Robert Kretzschmar. Dr. Richard Dickey testified to the contrary, that

induced abortion may carry a risk to the woman's future fertility and

may cause a greater likelihood of spontaneous abortion (miscarriage) in

subsequent pregnancies.

A-37

their best medical judgment, would choose not to provide

their patients seeking abortions with a detailed anatomi-

cal description of the fetus. [t is also evident that such

physicians would choose not to provide information re-

garding long-term dangers they believe not to exist. These

two requirements impose the *‘straitjacket’’ foreseen in

Planned Parenthood v. Danforth. They mandate what must

be presented by the physician to each and every patient,

regardless of the doctor’s view on the subject or his pro-

fessional opinion of the medical advisability of presenting

such information in any particular case. These require-

ments deprive the woman seeking an abortion of the right

to consult with her physician and rely on his diseretion

and professional judgment. Roe v. Wade, supra.”

[20-22] The final two items required to be presented

to the woman seeking an abortion are ‘‘[t]he particular

risks associated with the abortion technique to be used’’

and the ‘‘alternatives to abortion,’’ including ‘‘a list of

public and private agencies and services that will assist

her during her pregnancy and after the birth of her child.’’

Information regarding the risks associated with the tech-

nique to be employed and the alternatives available to the

woman may be required by the state to ensure informed

consent consistent with Planned Parenthood vy. Danforth.

See Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976);

Women’s Services, P.C. vy. Thone, —. F.Supp. —_—

(D.Neb. 1979). However, the requirement that the attend-

ing physician provide each of his patients with ‘‘a list of

agencies’’ is void for vagueness. It is revealing to consid,

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

marily aff'd, 440 U.S. 941, 99 S.Ct. 1416, 59 L.Ed.2d 630 (1979);

Women’s Services, P.C. v. Thone, 483 F.Supp. 1022 (D.Neb. 1979);

Akron Center for Reproductive Health, Inc. v. City of Akron, 479

F.Supp. 1172 (N.D.Ohio 1979); Leigh v. Olson, No. A3-79-78 (D.N.D.

preliminary injunction filed July 9, 1979).

A-38

the range of testimony of both sides’ experts describing

the list which is required to be furnished, at the risk of

criminal liability for non-compliance: ‘‘a list of a/l such

agencies (there may be several hundred)’’; ‘‘it is impos-

sible to compile a complete list’’; ‘‘it would include every

agency in the metropolitan area’; ‘‘it would include only

one public and one private agency’’; ‘‘it would include

only those agencies of which the physician was personally

aware.’’ A criminal statute which fails to give a person of

ordinary intelligence fair notice of what is required or

proscribed is unconstitutionally vague. United States v.

Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).

The Court finds that the ‘‘list of agencies’’ requirement

fails to provide physicians with the fair notice that is con-

stitutionally required.

[23] The Court finds that the Missouri General Assem-

bly would have enacted those parts of section 188.039 not

declared unconstitutional independently from the stricken

portions, and further finds that the valid provisions are

not so connected and so dependent upon the stricken pro-

visions as to preclude that finding. Accordingly, the pro-

visions declared to be unconstitutional will be servered and

stricken, allowing the remainder of the section to stand.”

See § 1.140, RSMo; United States v. Jackson, 390 U.S. 570,

585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

VIL.

Pathology Report

[24] Section 188.047 requires that a sample of the tissue

removed at the time of abortion be submitted to a path-

4€ Of course, the reference in § 188.039.1 to “the information con-

tained in subsection 2 of this section” may refer constitutionally only

to those portions of subsection 2 not declared invalid.

A-39

ologist, who must file copies of the tissue report with the

facility at which the abortion is performed and with the

state division of health. Plaintiffs contend that the addi-

tional cost of a tissue examination is unduly burdensome

and that the requirement of an exaxmination by a path-

ologist in every abortion case cannot be justified under

traditional medical cost/benefit analysis; that such an

examination in every case is simply unnecessary and

serves no rational purpose.** The Court has not been shown

that the increase in cost per abortion procedure resulting

from the required tissue examination will constitute an

undue burden on a woman seeking an abortion.** Defend-

ants argue that the required tissue examination furthers

the state’s legitimate interest in the maintenance of good

medical standards. In spite of plaintiffs’ contentions that

the tissue examination required by the statute is duplica-

tive and not justifiable as a procedure to be done in every

ease, this Court cannot say that such a required examina-

tion is not rationally related to a legitimate state interest

in the standard of medical care provided its citizens who

undergo abortions.*® The section is not unconstitutional.

See Wynn vy. Scott, 449 F.Supp. 1302, 1322 (N.D.TH. 1978),

aff'd, 599 F.2d 193 (7th Cir. 1979).

‘7 Plaintiff physicians testified that a gross or macroscopic exami-

nation of the tissue removed during abortion is done in any event by

the performing physician, who then decides whether examination by

a pathologist is indicated. Ms. Widdicombe testified that a tissue ex-

amination by a pathologist is ordered in only 12% of abortion cases at

Reproductive Health Services’ clinic.

48 The expert's testimony regarding the cost per patient of a re-

quired tissue examination by a pathologist ranged from $i0 to $40.

Ms. Widdicombe’s estimate of the cost of compliance for plaintiff Re-

productive Health Services was $19.40 per abortion procedure.

*® Several of defendants’ medical experts testified that pathology

should be done in every case of abortion. Testimony of Drs. Bernard

Nathanson, Pierre Keitges, Richard Schmidt, and Daniel Martin.

A-46

VIL.

Reporting Requirements

[25] Section 188.052 imposes recordkeeping and report-

ing obligations regarding the abortion procedure itself

and the treatment of any resulting complications.*° The

Court finds the requirements contained in this section to

be consistent with the holding in Planned Parenthood v.

Danforth and therefore constitutional. See Hodgson v.

Lawson, 542 F.2d 1350 (8th Cir. 1976). As did the Su-

preme Court in Danforth, this Court relies on the assump-

tion that such regulations will not be utilized and enforced

in such a way as to constitute ar undue burden through

the sheer volume of recordkeeping.

IX.

Regulation of Abortion-Related Counseling

[26] Section 188.063 regulates counseling services re-

lating to abortion. It sets minimum standards of education

and training for counselors and regulates the content of

counseling offered to pregnant women by requiring dis-

cussion of specified topics. The Court need not look be-

vond plaintiffs’ equal protection argument.*' By its own

terms, the section applies only to an ‘‘abortion facility.’’

The Act defines ‘‘abortion facility’’ as *‘a clinic, phy-

sician’s office, or any other place or facility in

which abortions are performed other than a hospital."’

5° Section 188.055 provides that all recordkeeping and reporting re-

quired under the Act shall be confidential and used only for statistical

purposes.

5! Plaintiffs make a compelling argument that the section is also

void for vagueness because it involves the imposition of criminal liability

for behavior to be measured by vague statutory standards, e. g., “appro-

priate field,” “factual information,” “not to be misleading,” “explicit

discussion,” and “thorough discussion.”

A-41

§ 188.015(2), RSMo (the Court’s emphasis). Thus, the

section regulates counseling services relating to abortion

offered in clinics, such as those operated by the corporate

plaintiffs, but leaves the same services unregulated if of-

fered in a hospital. Defendants offer no justification, either

related to the purpose of the regulation or otherwise, for

such differences in treatment. With respect to abortion-

related counseling services, the Court finds no rational

reason for the distinction between hospitals and abortion

facilities other than hospitals. The section is unconstitu-

tional as violative of the equal protection clause of the

fourteenth amendment of the Constitution.

X.

Conclusion

For the reasons above-stated, the following portions

of the 1979 Missouri act relating to the regulation of abor-

tions are hereby declared to be unconstitutional:

1. § 188.025;

2. § 188.028;

3. § 188.030;

4. The following portions of § 188.039:

A. From § 188.039.1, the phrase ‘‘not less than

forty-eight hours prior to her consent to the abor-

tion,’’;

B. From § 188.039.2, the phrase ‘‘and, if she is a

minor, her parent or legal guardian or person

standing in loco parentis”’ ;

U. § 188.039.2(1)-(4) ;

D. From § 188.039.2(6), the phrase ‘‘including a

list of public and private agencies and services

A-42

that will assist her during her pregnancy and

after the birth of her child.”’

5. § 188.063.

[27] At the conclusion of trial, defendants stated on

the record that they will abide by this Court’s declaration

regarding the validity of any part of the Act. The Court

assumes that all prosecutorial authorities of the State of

Missouri will likewise abide by this Court’s judgment. Ac-

cordingly, no injunctive order will issue at this time.

IT IS SO ORDERED.

A-43

APPENDIX

AN ACT to repeal sections 188.015, 188.020, 188.025,

188.030, 188.035, 188.050, 188.055, 188.060, and 188.075,

RSMo 1978, relating to regulation of abortions, and to

enact in lieu thereof fifteen new sections relating to the

same subject, with penalty provisions and an emergency

clause.

"Be it enacted by the General Assembly of the State

of Missouri, as follows:

Section 1. Sections 188.915, 188.020, 188.025, 188.030,

188.035, 188.050, 188.055, 188.060 and 188.075, RSMo 1978

are repealed and fifteen new sections enacted in lieu

thereof, to be known as sections 188.015, 188.020, 188.025,

188.027, 188.028, 188.030, 188.035, 188.037, 188.039, 188.047,

188.052, 188.055, 188.060, 188.063 and 188.075 to read as

follows:

188.015. Unless the language or context clearly indi-

cates a different meaning is intended, the following words

or phrases for the purposes of sections 188.010 to 188,085

shall be given the meaning ascribed to them:

(1) ‘‘Abortion’’, the intentional destruction of the

life of an embryo or fetus in his or her mother’s womb or

the intentional termination of the pregnancy of a mother

with an intention other than to increase the probability

of a live birth or to remove a dead or dying unborn child;

(2) ‘*Abortion facility’’, a clinic, physician’s office,

or any other place of facility in which abortions are per-

formed other than a hospital;

(3) ‘*Conception’’, the fertilization of the ovum of a

female by the sperm of a male;

(4) ‘*Physician’’, any person licensed to practice

A-44

medicine in this state by the state board of registration of

the healing arts;

(5) ‘*Unborn child’’, the offspring of human beings

from the moment of conception until birth and at every

stage of its biological development, including the human

conceptus, zygote, morula, blastocyst, embryo, and fetus;

(6) ‘*Viability’’, that stage of fetal development when

the life of the unborn child may be continued indefinitely

outside the womb by natural or artificial life-supportive

systems.

188.020. No person shall perform or induce an abor-

tion except a physician.

188.025. Every abortion performed subsequent to the

first twelve weeks of pregnancy shall be performed in a

hospital.

188.027. No abortion shall be performed except with

the prior, informed and written consent freely given of the

pregnant woman.

188.028. 1. No person shall knowingly perform an abor-

tion upon a pregnant woman under the age of eighteen

years unless:

(1) The attending physician has secured the informed

written consent of the minor and one parent or guardian;

or

(2) The minor is emancipated and the attending phy-

sician has received the informed written consent of the

minor; or

(3) The minor has been granted the right to self-

consent to the abortion by court order pursuant to sub-

section 2 of this sec+ion, and the attending physician has

received the informed written consent of the minor; or

A-45

(4) The minor has been granted consent to the abor-

tion by court order, and the court has given its informed

written consent in accordance with subsection 2 of this

section, and the minor is having the abortion willingly,

in compliance with subsection 3 of this section.

2. The right of a minor to seif-consent to an abortion

under subdivision (3) of subsection 1 of this section or

court consent under subdivision (4) of subsection 1 of this

section may be granted by a court pursuant to the follow-

ing procedures:

(1) The minor or next friend shall make an applica-

tion to the juvenile court which shall assist the minor or

next friend in preparing the petition and notices required

pursuant to this section. The minor or the next friend of

the minor shall thereafter file a petition setting forth the

initials of the minor; the age of the minor; the names and

addresses of each parent, guardian, or, if the minor’s

parents are deceased and no guardian has been appointed,

any other person standing in loco parentis of the minor;

that the minor has been fully informed of the risks and

consequences of the abortion; that the minor is of sound

mind and has sufficient intellectual capacity to consent

to the abortion; that, if the court does not grant the minor

majority rights for the purpose of consent to the abor-

tion, the court should find that the abortion is in the best

interest of the minor and give judicial consent to the abor-

tion; that the court should appoint a guardian ad litem

of the child; and if the minor does not have private coun-

sel, that the court should appoint counsel. The petition

shall be signed by the minor or the next friend;

(2) Copies of the petition and a notice of the date,

time, and place of the hearing shall be personally served

upon each parent, guardian or, if the minor’s parents are

deceased and no guardian has been appointed, any other

A-46

person standing in loco parentis of the minor listed in the

petition by the sheriff or his deputy. If a parent or guar-

dian or, if the minor’s parents are deceased and no guar-

dian has been appointed, any other person standing in

loco parentis cannot be personally served within two days

after reasonable effort, the sheriff or his deputy shall

give constructive notice to them by certified mail to their

last known address and the hearing shall not be held for at

least forty-eight hours from the time of the mailing. In

any case where there exists the potential or appearance of

conflict of interests between the parents or guardian or

next friend of the child andthe child, the court shall ap-

point a guardian ad titem to defend the minor’s interests

The court shall set forth, for the record, the grounds for

such appointment;

(3) A hearing on the merits of the petition, to be

held on the record, shall be held as soon as possible within

five days of the filing of the petition. If any party is un-

able to afford counsel, the court shall appoint counsel! at

least twenty-four hours before the time of the hearing.

At the hearing, the court shall hear evidence relating to

the emotional development, maturity, intellect and under-

standing of the minor; the nature, possible consequences,

and alternatives to the abortion; and any other evidence

that the court may find useful in determining whether

the minor should be granted majority rights for the pur-

pose of consenting to the abortion or whether the abortion

is in the best interests of the minor;

(4) In the decree, the court shall for good cause:

(a) Grant the petition for majority rights for the

purpose of consenting to the abortion; or

(b) Find the abortion to be in the best interests of

the minor and give judicial consent to the abortion, setting

forth the grounds for so finding; or

A-47

(c) Deny the petition, setting forth the grounds on

which the petition is denied;

(5) If the petition is allowed, the informed consent of

the minor, pursuant to the court grant of majority rights,

or the judicial consent, shall bar an action by the parents

or guardian of the minor on the grounds of battery of the

minor by those performing the abortion. The immunity

granted shall only extend to the performance of the abor-

tion in accordance herewith and any necessary acecompany-

ing services which are performed in a competent manner.

The costs of the action shall be borne by the parties.

(6) An appeal from an order issued under the pro-

visions of this section may be taken to the court of appeals

of this state by the minor or by a parent or guardian of

the minor. The notice of intent to appeal shall be given

within twenty-four hours from the date of issuance of

the order. The record on appeal shall be completed and

the appeal shall be perfected within five days from the

filing of notice to appeal. Because time may be of the

essence regarding the performance of the abortion, the

supreme court of this state shall, by court rule, provide

for expedited appellate review of cases appealed under

this section.

3. If a minor desires an abortion, then she shall be

orally informed of and, if pessible, sign the written con-

sent required by section 188.039 in the same manner as an

adult person. No abortion shall be performed on any

minor against her will, except that an abortion may be

performed against the will of the minor pursuant to the

court order described in subdivision (4) of subsection 1

of this section that the abortion is necessary to preserve

the life of the minor.

128.030.1. No abortion of a viable unborn child shall

he performed unless necessary to preserve the life or

A-48

health of the woman. Before a physician may perform an

abortion upon a pregnant woman after such time as her

unborn child has become viable, such physician shall first

certify in writing that the abortion is necessary to preserve

the life or health of the woman and shal! further ceriify in

writing the medical indications for such abortion and the

probable health consequences.

2. Any physician who performs an abortion upon a

woman carrying a viable unborn child shall utilize the

available method or technique of abortion most likely to

preserve the life and health of the unborn child. In cases

where the method or technique of abortion which would

most likely preserve the life and health of the unborn child

would present a greater risk to the life and health of the

woman than another available method or technique, the

physician may utilize such other method or technique. In

all eases where the physician performs an abortion upon

a viable unborn child, the physician shall certify in writ-

ing the available method or techniques considered and the

reasons for choosing the method or technique employed,

3. An abortion of a viable unborn child shall be per-

formed or induced only when there is in attendance a

physician other than the physician performing or induc-

ing the abortion who shall take control of and provide

immediate medical care for a child born as a result of the

abortion. During the performance of the abortion, the

physician performing it, and subsequent to the abortion,

the physician required by this section to be in attendance,

shall take all reasonable steps in keeping with good medical

practice, consistent with the procedure used, to preserve

the life and health of the viable unborn child; provided

that it does not pose an increased risk to the life or health

of the woman .

188.035. Whoever, with intent to do so, shall take the

A-49

life of a child aborted alive, shall be guilty of murder of

the second degree.

188.037. No person shall use any fetus or child aborted

alive for any type of scientific, research, laboratory or

other kind of experimentation either prior to or subsequent

to any abortion procedure except as necessary to protect

or preserve the life and health of such fetus or child

aborted alive.

188.039. 1. No physician shall perform an abortion un-

less prior to such abortion, the physician certifies in writ-

ing that the woman gave her informed consent, freely and

without coercion, after the attending physician had in-

formed her of the information contained in subsection 2

of this section not less than forty-eight hours prior to her

consent to the abortion, and shall further certify in writing

the pregnant woman’s age, based upon proof of age of-

fered by her.

2. In order to insure that the consent for an abortion

is truly informed consent, no abortion shall be performed

or induced upon a pregnant woman unless she has signed

a consent form that shall be supplied by the state division

of health, acknowledging that she and, if she is a minor,

her parent or legal guardian or person standing in loco

parentis have been informed by the attending physician

of the following facts:

(1) That according to the best medical judgment of

her attending physician she is pregnant;

(2) The number of weeks elapsed form the probable

time of conception of her unborn child, based upon the

information provided by her as to the time of her last

menstrual period and after a history and physical ex-

amination and appropriate laboratory tests;

A-50

(3) The probable anatomical and physiological char-

acteristics of the unborn chil at the time the abortion is

to be performed;

(4) The immediate and long-term physical dangers

of abortion and psychological trauma resulting from abor-

tion and any increased incidence of premature births,

tubal pregnancies and still births following abortion;

(5) The particular risks associated with the abortion

technique to be used;

(6) Alternatives to abortion shall be given by the at-

tending physician, including a list of public and private

agencies and services that will assist her during her preg-

naney and after the birth of her child.

3. The physician may inform the woman of any other

material facts or opinions, or provide any explanation of

the above information which, in the exercise of his best

medical judgment, is reasonable necessary to allow the

woman to give her informed consent to the proposed abor-

tion, with full knowledge of its nature and consequences.

188.047. A representative sample of tissue removed

at the time of abortion shall be submitted to board eligible

or certified pathologist, who shall file a copy of the tissue

report with the state division of health, and who shall

provide a copy of the report to the abortion facility or

hospital in which the abortion was performed or induced

and the pathologist’s report shall be made a part of the

patient’s permanent record.

188.052. 1. An individual abortion report for each

abortion performed or induced upon a woman shall be

completed by her attending physician.

2. An individual complication report for any post-

abortion care performed upon a woman shall be completed

A-51

by the physician providing such post-abortion care. This

report shall include:

(1) The date of the abortion;

(2) The name and address of the abortion facility or

hospital where the abortion was performed;

(3) The nature of the abortion complication diagnosed

or treated.

3. AH abortion reports shall be signed by the attend-

ing physician, and submitted to the state division of health

within forty-five days from the date of the abortion. All

complication reports shall be signed by the physician pro-

viding the post-abortion care and submitted to the di-

vision of health within forty-five days from the date of

the post-abortion care.

4. A copy of the abortion report shall be made a

part of the medical record of the patient of the facility or

hospital in which the abortion was performed.

5. The state division of health shall be responsible

for collecting all abortion reports and complication re-

ports and collating and evaluating all data gathered there-

from and shall annually publish a statistical report based

on such data from abortions performed in the previous

calendar year.

188.055. 1. Every abortion facility, hospital, and phy-

sician shall be supplied with forms by the division of

health for use in regards to the consents and reports re-

quired by sections 188.010 to 188.085. A purpose and fune-

tion of such consents and reports shal! be the preservation

of maternal health and life by adding to the sum of medi-

cal knowledge through the compilation of relevant ma-

ternal health and life data and to monitor all abortions per-

formed to assure that they are done only under and in

accordance with the provisions of the law.

A-52

2. All information obtained by physician, hospital, or

abortion facility from a patient for the purpose of pre-

paring reports to the division of health under sections

188.010 to 188.085 or reports icceived by the division of

health shall be confidential and shall be used only for

statistical purposes. Such records, however, may be in-

spected and health data acquired by local, state, or na-

tional public health officers.

188.060. All medical records, reports, and other doeu-

ments required to be kept under sections 188.010 to 188.085

shall be maintained in the permanent files of the abortion

facility or hospital in which the abortion was performed

for a period of seven years.

188.063. No abortion facility shall advertise or hold

itself out as also providing counseling to pregnant women

unless :

(1) The counseling is done by a licensed physician,

registered nurse or other person holding at least a bache-

lor’s degree from an accredited college or university in

psychology or appropriate field or having completed spe-

cial training in counseling;

(2) The counseling includes factual information given

in such a manner as te not be misleading, including ex-

plicit discussion of the development of the unborn child;

and

(3) The counseling includes a thorough diseussion of

alternatives to abortion and availability of agencies and

services to assist her if she chooses to carry her child

to term.

2. The prescribed course of study which shall con-

stitute special training in counseling shall be promulgated

by the division of health. Any rule or portion of a rule

promulgated pursuant to this chapter may be suspended

A-53

by the joint committee on administrative rules if after

hearing thereon the committee finds that such rule or por-

tion of the rule is beyond or contrary to the statutory au-

thority of the agency which promulgated the rule, or is

inconsistent with the legislative intent of the authorizing

statute. The general assembly may reinstate such rule by

concurrent resolution signed by the governor.

188.075. Any person who contrary to the provisions

of sections 188.010 to 188.085 knowingly performs or aids

in the performance of any abortion or knowingly fails to

perform any action required by sections 188.010 to 188,085

shall be guilty of a class A misdemeanor and, upon con-

viction, shall be punished as provided by law.

Section A. Because of the necessity for immediate

state action to regulate abortions to protect the lives and

health of citizens of this state, this act is deemed necessary

for the immediate preservation of the public health, wel-

fare, peace and safety, and is hereby declared to be an

emergency act within the meaning of the constitution,

and this act shall be in full foree and effect upon its

passage and approval.

A-54

PLANNED PARENTHOOD ASSOCIATION OF KAN-

SAS CITY, MISSOURI, INC., Naim 8S. Kassar, M.D.,

Reproductive Health Services, Allen S. Palmer, D.O.,

Appellees,

Vv

John ASHCROFT, Attorney General of State of Missouri,

Ralph L. Martin, Prosecuting Attorney of Jackson

County, Missouri, Appellants.

PLANNED PARENTHOOD ASSOCIATION OF KAN-

SAS CITY, MISSOURI, INC., Naim 8S. Kassar, M.D.,

Reproductive Health Services, Allen S. Palmer, D.O.,

Appellants,

v.

John ASHCROFT, Attorney General of State of Missouri,

Ralph L. Martin, Prosecuting Attorney of Jackson

County, Missouri, Appellees.

Nos. 80-1130, 80-1530.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 17, 1980.

Decided July 8, 1981.

Before LAY, Chief Judge, HENLEY, Cireuit Judge,

and HARRIS,* Senior Judge.

LAY, Chief Judge.

This is an appeal and cross-appeal relating to the

constitutionality of the Missouri statutes regulating abor-

* Oren Harris, Senior District Judge, Eastern and Western Districts

of Arkansas, sitting by designation.

A-55

tion.’ The trial court denied injunctive relief, but issued

a declaratory judgment holding all or part of five sections

of the Missouri statutes unconstitutional.

Allen S. Palmer, D.O., and Naim S. Kansar, M.D.,

licensed physicians, and Planned Parenthood and Repro-

ductive Health Services, corporations that operate abor-

tion clinies in Kansas City and St. Louis,’ brought suit

against John Ashcroft, Attorney General of Missouri, and

Ralph Martin, prosecuting attorney of Jackson County,

Missouri (in his capacity as Jackson County prosecutor

and as representative of the class of Missouri prose-

cutors).®

On appeal the Missouri defendants challenge the

district court holding on the unconstitutionality of a pro-

vision requiring second trimester abortions to be per-

formed in a hospital, parental or judicial consent require-

ments for minors, restrictions on abortion of viable fetuses,

and ‘‘informed consent’’ requirements. They also chal-

lenge the award of attorneys’ fees. Planned Parenthood

cross-appeals from the district court’s refusal to declare

unconstitutional provisions requiring: (1) that the ‘‘in-

formed consent”’’ information must be given by the attend-

ing physician; (2) submission of tissue samples from all

abortions to a pathologist; and (3) completion of indi-

vidual reports on women seeking post-abortion care.‘

' The district courts opinion is published at 483 F.Supp. 679.

2 In order to simplify discussion plaintiffs are hereinafter referred

to collectively as “Planned Parenthood”.

5 In order to simplify discussion defendants are hereinafter referred

to as “Missouri”.

* On June 30, 1979, the district court issued a temporary restraining

order to prevent enforcement of the challenged statutes. This order

was modified on September 27, 1979. At the conclusion of the trial,

the defendants gave assurances that portions of the Act declared un-

constitutional would not be enforced. 483 F.Supp. at 701.

The district court also dealt with other provisions of the Missouri

statutes, but its conclusions on those questions are not challenged on

appeal.

A-56

We affirm in part, reverse in part and remand for

further proceedings.

In summary, we first find that the district court

erred in concluding on the present record that the State’s

requirement that all second trimester abortions be per-

formed in a hospital is unconstitutional. We find that the

fact that hospitals allegedly require parental consent for

the admission of minors is not an unconstitutional burden

imposed by the State. We nonetheless remand this issue

to the district court for further findings as to whether

the hospitalization requirement is a substantial burden

on women patients seeking abortions in the second tri-

mester (at least up to 18 weeks) and if so whether the

State has shown a compelling state interest which justi-

fies the requirement.

We reverse the district court’s finding that section

188.030 of the Missouri statutes imposed strict criminal

liability on doctors who may abort viable fetuses. We

find the Missouri law requires scienter (knowledge) by

the physician such that it comports with constitutional re-

quirements. We also reverse the district court’s holding

that subsection 188.030.2 is unconstitutionally vague.

We likewise find the district court erred in holding

the provisions relating to parental or judicial consent for

a minor’s abortion unconstitutional. We think proper in-

terpretation of the judicial consent provision requires a

court to grant judicial consent to a mature minor or a

minor for whom an abortion is in her best interests. We

find, however, that the provision requiring notice to the

parents of all minors is unconstitutional because it re-

quires notice to the parents of minors who are mature or

minors for whom it is not in their best interest to give

notice. We find the remaining portion of section 188.028

constitutional.

A-57

We affirm the district court’s finding that the re-

quirement of a second doctor during a second trimester

abortion is unconstitutional. We likewise affirm its find-

ing that the 48 hour waiting period is unconstitutional.

We also agree with the district court that the informed con-

sent provision requiring notice to parents and the pro-

visions for informed consent under subsections 188.039.2

(1), (2), (3), and (4) are unconstitutional. We uphold the

district court’s findings that the State may require the

attending physician to inform the woman as to the par-

ticular medical risks associated with the abortion tech-

nique to be used and the available alternatives.

Finally, we agree with the district court there is

nothing impermissible in the abortion complication reports

required by the State. We find section 188.047, requiring

pathology reports following all abortions to be an im-

permissible requirement. We vacate and remand to the

district court for reconsideration the constitutionality of

the abortion complication reports required under section

188.052.2.

We affirm the district court’s award of attorney fees.

I. Second Trimester Hospitalization Requirement.

Section 188.025° requires that second and third tri-

mester abortions be performed in a hospital. The district

court held that this requirement did not reasonably relate

to protection of maternal health, because the dilatation and

evacuation method (D&E) could be performed safely out-

side of a hospital up until the 18th week. The court ob-

served that the effect of the hospitalization requirement

was to make a second trimester D&E unavailable in Mis-

5 Section 188.025 states:

Every abortion performed subsequent to the first twelve weeks of

pregnancy shall be performed in a hospital.

Mo.Ann.Stat. § 188.025 (Vernon).

A-58

souri because only one hospital in the state allows D&E

in the second trimester. Alternatively, the court held that

this requirement granted parents the power to veto

minor women’s decision to have an abortion contrary to

Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct.

2831, 49 L.Ed.2d 788 (1976), because no hospital in Mis-

souri would admit a woman under 18 without parental

consent. 483 F.Supp. at 685—87."

A. Parental Consent for Hospitalization.

We first address the finding made by the district

court that since all hospitals in Missouri require parental

consent for abortion to minors the effect of a statute re-

quiring hospitalization is to grant parents the absolute

veto forbidden by Planned Parenthood v. Danforth, 428

U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). We must

respectfully disagree.

The district court’s holding goes a step beyond Dan-

forth. In Danforth, the state required parental consent

as a prerequisite for » minor to have an abortion, thus

directly interfering with the woman’s decision. The pres-

ent Missouri hospitalization requirement says nothing

about parental consent and the State itself has not given

® Several district courts have recently considered similar challenges

to second trimester hospitalization requirements. See Wolfe v. Stum-

bo, No. C 80—0285 L(A) (W.D).Ky. Dec. 3, 1980) (unconstittuional) ;

Gary-Northwest Indiana Wemen’s Services v. Bowen, 496 F.Supp.

894 (N.E.Ind. 1980), aff'd sub nom. Gary-Northwest Indiana Women’s

Services v. Orr, _..— U.S. — , 101 S.Ct. 2012, 68 L.Ed.2d 321

(1981) (constitutional); Margaret S. v. Edwards, 488 F.Supp. 181

(E.D.La. 1980) (unconstitutional). See also Wynn v. Scott, 449 F.Supp.

1302, 1318 (N.D.II. 1978), affd sub nom, Wynn v. Carey, 599 F.2d

193 (7th Cir. 1979) (hospitalization requirement constitutional; no

discussion of D&E method; Hodgson v. Lawson, 542 F.2d 1350, 1354

(8th Cir. 1976) (“The requirement . . . that an abortion be performed

in a hospital, which is not challenged here, is an example of permissible

state regulation subsequent to the first trimester.”).

A-59

parents a veto power.’ Instead, the State has imposed

second trimester regulations that it claims are within the

State’s regulatory power in the second trimester because

they are reasonably related to the woman’s health. Roe v.

Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147

(1973). The district court’s holding would mean that the

State could not impose such regulations if they created a

situation in which the acts of private entities could inter-

fere with the woman’s decision. The problem with this

approach to the Roe rule is that it would force reevalua-

tion of every health-based second trimester regulation to

determine its practical effect, without concern for its

health-based justification. For example, Missouri requires

that all abortions be performed by a pbkysician. Private

physicians may choose not to perform abortions. If sta-

tistics showed that no physicians in the state or in some

geographic area of the state were willing to perform sec-

ond trimester abortions on minors without parental con-

sent, the district court’s logic would declare the physician

requirement unconstitutional.

(1, 2] The point is that when dealing with second tri-

mester regulations, Roe declares that the sole question is

whether the regulation reasonably relates to the woman’s

health.* If the regulation bears a reasonable relation to

health, the regulation may and probably will restrict the

7 Missouri also argues that the testimony at trial failed to show that

no hospitals in the state will admit minors for abortion without parental

consent. There was no testimony from any person claiming knowledge

of the policies of hospitals throughout the state that no hospital would

admit a minor without parental consent. Missouri likewise urges that

the record demonstrates that many abortions are performed by physicians

on an outpatient basis without direct admission to the hospital.

* As Danforth indicates, the practical availability of safe alter-

natives is a consideration in determining the rationality of a prohibi-

tion on particular methods. Where the state has forbidden relatively

safe method on the rationale that equally safe or safer methods are

(Continued on next page)

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woman’s options. It may also put some private parties

in a position where they may impose regulations or costs

that restrict the options of some women. But if the statute

is reasonably related to health, the fact that private en-

tities (i. e., the hospitals) impose additional requirements

without the State’s sanction or insistence cannot affect

the statute’s constitutionality.. We reject the district

court’s alternative ground for finding section 188.025 un-

constitutional.

Footnote continued

available, the court must consider the actual availability of these alter-

natives. Practical obstacles, such as a consent requirement, may enter

into this evaluation. However, the inquiry remains whether the regula-

tion is one reasonably related to the women’s health.

* “Our cases state ‘that a State is responsible for the . . . act of a

private party when the State, by its law, has compelled the act.” Adickes

[v. S.H. Kress & Co.,] 398 U.S. [144,] 170, [90 S.Ct. 1598, 1615, 26

L.Ed.2d 142] [(1970)]. This Court, however, has never held that a

State’s mere acquiescence in a private action converts that action into

that of the State.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164, 98

S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978).

If it is true that no hospitals in Missouri will admit minor women

without parental consent, and we agree the evidence is not convincing

in this respect, the plaintiffs may wish to direct their attention to the

actions of the hospitals. We express no view on the merits of this argu-

ment, but insofar as particular hospitals have characteristics which

render their actions “state action”, parental consent requirements argu-

ably violate Danforths prohibition against an absolute parental veto.

Cf. Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.), appeal dis-

missed, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974) (un-

constitutional for public hospital to refuse facilities to perform elec-

tive abortions); Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976);

Wolfe v. Schroering, 541 F.2d 523, 527 (6th Cir. 1976); Doe v.

Charleston Area Medical Center, Inc., 529 F.2d 638 (4th Cir. 1975);

Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974); cert. denied, 420

U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 837 (1975). Poelker v. Doe, 432

U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977), held that a city

operating a municipal hospital need not provide publicly financed

hospital services for abortions for indigent women. It does not hold

that a state hospital may refuse to allow physicians to perform paid

abortions in the hospital, which was the issue in Nyberg.

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B. Effect on Availability of Second Trimester Abor-

tions.

The district court held that the hospitalization require-

ment unconstitutionally restricted the availability of sec-

ond tsimester abortions. We conclude that it is not clear

that the district court applied the proper legal standard or

that the factual findings underlying this holding are ade-

quate. A remand for further proceedings is necessary to

provide us with an adequate basis for review of the con-

stitutionality of the hospitalization requirement.

(3, 4] In 1973 Roe v. Wade addressed whether a sec-

ond trimester hospitalization requirement is a permissible

regulation :

Examples of permissible state regulation in this area

are requirements as to the qualifications of the person

who is to perform the abortion; as to the licensure of

that person; as to the facility in which the procedure

is to be performed, that is, whether it must be a hos-

pital or may be a clinic or some other place of less-

than-hospital status; as to the licensing of the facility ;

and the like.

410 U.S. at 163, 93 S.Ct. at 732 (emphasis added).

See also Gary-Northwest Indiana Woman’s Services v.

Bowen, 496 F.Supp. 894 (N.D. Ind. 1980), aff'd sub nom.

Gary-Northwest Indiana Women’s Services v. Orr, ——.

U.S. —_, 101 S.Ct. 2012, 68 L.Ed.2d 321 (1981).

Missouri argues [oe is dispositive here. Oa the basis

of the record and contentions of the parties we deem the

issue not so easily resolved. In 1973, when Roe was written

D&E was not a well-known and common means of perform-

ing second trimester abortions. The record demonstrates

that today D&E is the most often utilized and safest

procedure for second trimester abortion up to 15 weeks.

A-62

483 F.Supp. at 685 n.9, & 686 n.13. Yet the district court

found that D&E is not generally available to women seek-

ing abortions in Missouri hospitals."® It was on this basis

the district court found the hospitalization requirement

invalid. We perceive the settled standard in reviewing

state regulation of abortion rights of the mother to be

(1) whether the state requirement imposes a substantial

interference and burden on the woman’s decision to have

an abortion and if so (2) whether the state has shown a

compelling basis for the law, that is, that the burden is

not undue or unjustifiable. See Charles v. Carey, 627 F.2d

772 (7th Cir. 1980). In applying the strict serutiny test,

it, of course, must be acknowledged that the state has a

compelling interest in the health of the mother and may

regulate abortion ‘‘in ways that are reasonably related

to maternal health.’’ 410 U.S. at 164, 93 S.Ct. at 732.

We view the findings of the distriet court on this basis.

The conclusion of the district court that second tri-

mester D&E is available in only one hospital in Missouri

rests on a thin reed. The conclusion is hased solely on the

personal knowledge of two physicians, neither one of whom

testified that he was familiar with the policies of the hos-

pitals throughout the state’. Second, although the record

suggests that hospitalized D&Es, when available, are more

expensive than nonhospitalized D&Es and that the overall

effect of the hospitalization requirement has been to sub-

stantially reduce the number of second trimester abortions

10 The record does not make clear why D&E is not readily available

for hospitalized second trimester abortions.

11 Dr. Palmer was asked “Are you familiar with any hospital within

the St. Louis metropolitan area that performs D&E second trimester

procedures?” A. “No.” (T. 135). Dr. Kassar was asked “Do you know

of any other hospital in the State of Missouri which allows the use of

dilation and evacuation in the second trimester?” A. “Not to my knowl-

edge.” (T. 257).

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in Missouri, the district court made no findings. We think

it essential the district court evaluate this overall testimony

and make findings in this regard. We think it likewise

essential that the record should be factually supplemented

as to the availability or nonavailability of D&E procedures

in hospitals throughout the state.

[5] From these factual conclusions the district court

must then determine whether or not the hospitalization

requirement imposes a substantial interference and bur-

den on the woman’s decision to have an abortion. Per-

haps one can assume that it is implicit in the district

court’s opinion that mandated second trimester hospitali-

zation limits the accessibility of abortion in Missouri, but

based on the court’s analysis it is not clear whether the

correct legal standard was applied. We think it funda-

mental that the district court explicitly address the thres-

hold question: Whether the hospital regulation directly

interferes with the woman’s decision to terminate her

pregnancy. Assuming the district court, based on the evi-

dence, answers this question in the affirmative, then the

regulation comes under the strict scrutiny standard and

the State has the burden to justify the regulation by

demonstrating a compelling state interest.

In this regard, the district court properly considered

the Supreme Court’s previous evaluation of second tri-

mester abortion reguiations in Planned Parenthood v.

Danforth, 428 U.S. 52, 75-79, 96 S.Ct. 2831, 2843—2846, 49

L.Ed.2d 788 (1976). The Court found that the saline am-

niocentesis method, prohibited by a Missouri statute, was

the most prevalent second trimester method and that sup-

posedly safe alternatives (i. e., prostaglandins) were not

readily available. Under these circumstances, the Court

concluded that the prohibition against saline was not rea-

sonably related to the woman’s health since it prevented

A-64

use of a method that was safer for the woman than the

available alternatives.

If the district court finds the hospital requirement

constitutes a direct interference with the woman’s de-

cision to have an abortion the court musi then determine

whether Missouri’s requirement reasonably relates te the

protection of the woman’s health. The State, in meeting

this burden, must show that nonhospitalized D&E can

reasonably be considered more dangerous than hospital

procedures, including hospitalized D&E. It must also show

that the methods that it argues are as safe or safer than

nonhospitalized D&E are actually available to Missouri

women. Cf. Planned Parenthood v. Danforth, 428 U.S. at

77 & n.12, 96 S.Ct. at 2845 & n.12 (burden on state to

show availability). Missouri cannot ‘‘foree a woman and

her physician to terminate her pregnancy by methods more

dangerous to her health than the method outlawed.”’ id.

at 79, 96, S.Ct. at 2845.

From this discussion it is clear that the central issue

is the relative safety of nonhospitalized D&E and hos-

pitalized methods. The record contains conflicting testi-

mony about safety. Experts called by Planned Parenthood

claim nonhospitalized D&E is safer than all hospitalized

procedures, because hospitals create greater risks of in-

fection, cause greater anxiety, and use general anesthesia.

They also point to recent standards issued by the American

Public Health Association and the American College of

Obstetricians and Gynecologists, retracting their previous

recommendation for hospitalization for second trimester

abortions. On the other hand, the State’s witnesses claim

that hospitalization is essential because of the increased

risks in the second trimester. The district court made no

finding as to the relative safety of nonhospitalized and

A-65

hospitalized methods.'? On remand, if the district court

determines that the hospital requirement imposes a sub-

stantial interference and burden on the woman’s decision

to have an abortion then the court should make explicit

findings as to the safety of nonhospitalized D&E compared

to hospitalized methods.

12 The district court stated:

On the record before it, this Court is convinced that aside from the

question whether it is performed in a hospital or in an out-patient

12 Dr. Bernard Nathanson, one of defendants’ experts, testified that

the mortality (sic) and morbidity rates for D&E procedures performed

outside a hospital were probably no different than those performed in

hospital.

13 Mortality rates (per 100,000 cases) for post-12 week abortion

techniques for the years 1972—1977 are as follows:

D&E 8.3

Prostaglandins and other agents 10.8

Saline instillation 15.5

Hysterotomy and hysterectomy 45.3

veillance 1977, Table 23.

A-66

In sum, we find that the district court failed to properly

analyze the hospitalization requirement. On remand, it

should first determine if the regulation creates substantial

interference with and imposes a direct burden on the wom-

an’s decision to have an abortion. If it does, the district

court should evaluate whether the hospitalization require-

ment is justified by a compelling state interest; i. e., whether

it is reasonably related to the woman’s health. Missouri

bears the burden of justifying the restriction. We there-

fore vacate the district court’s finding that Missouri’s hos-

pitalization requirement is unconstitutional. We remand

this question back to the district court to take additional

evidence, if deemed necessary by the parties or by the court,

and to make additional findings in accord with this opinion.

We respectfully request the district court to certify the

record and its findings back to this court within 90 days.

Il. Parental or Court Consent For Minors.

Section 188.028 prohibits abortions for women under 18

unless parental or court consent is obtained. The district

court declared this section unconstitutional. In Planned

Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49

L.Ed.2d 788 (1976), the Court declared that a state require-

ment that all minors obtain parental consent prior to

Footnote continued

D&E is lower than the mortality rate for other methods. These statistics

do not distinguish between hospitalized D&E and nonhospitalized D&E,

, So there is no way to determine from them whether a nonhospitalized

D&E is significantly safer than the other available methods.

Planned Parenthood argues that the record supports a finding that

nonhospitalized D&E is as safe or safer than hospitalized D&E. It is

true that several physicians testified to that eff «t. However there were

to be given the testimony of the experts. We decline to make a finding

it depends on the credibility of the experts,

A-67

obtaining an abortion was unconstitutional. In Bellotti v.

Beird (Bellotti IT), 433 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d

797 (1979), four justices coneluded that the Massachusetts

statute requiring judicial approval in lieu of parental con-

sent was unconstitutional in part because it allowed a court

to deny permission based on its perception of the woman’s

‘*best interests’’, even when a minor was mature enough

to make her own decision. These four justices (Powell,

Burger, Rehnquist and Stewart) described a procedure

that would satisfy constitutional requirements:

A pregnant minor is entitled in such a proceeding

to show either: (1) that she is mature enough and

well enough informed to make her abortion decision,

in consultation with her physician, independently of

her parents’ wishes; or (2) that even if she is not able

to make this decision independently, the desired abor-

tion would be in her best interests. The proceeding

in which this showing is made must assure that a

resolution of the issue, and any appeals that may

follow, will be completed with anonymity and suffi-

cient expedition to provide an effective opportunity for

an abortion to be obtained. In sum, the procedure

must ensure that the provision requiring parental con-

sent does not in fact amount to the ‘‘absolute, and

possibly arbitrary, veto’’ that was found impermissible

in Danforth. Ibid.

443 U.S. at 643—44, 99 S.Ct. at 3048—49 (footnote omitted).

The Missouri procedure found in subsection 188.028.2

(4) provides:

(4) In the decree, the court shall for good cause:

(a) Grant the petition for majority rights for the

purpose of consenting to the abortion; or

(b) Find the abortion to be in the best interests

A-68

of the minor and give judicial consent to the abortion,

setting forth the grounds for so finding; or

(c) Deny the petition, setting forth the grounds

on which the petition is denied.

The district court concluded that the statute was invalid

because in (c) it allows the state court unbridled discre-

tion to ‘‘deny the petition, setting forth the grounds on

which the petition is denied,’’ limited only by the require-

ment that the court has ‘‘good cause.’’ 483 F.Supp. at

687—90.

[6] We would agree if the statute provides discretion

to deny permission to a minor for any good cause it would

violate the principles set forth in Danforth and Bellotti 11.

We believe, however, that in the context of the statutory

language, a denial of the petition would initially require

the court to find that the minor was not emancipated and

was not mature enough to make her own decision and that

an abortion was not in her best interests. These findings

and the ultimate denial of the petition must be supported

by a showing of ‘“‘good cause’’. When the statute is so

interpreted and applied it obviates Planned Parenthood’s

objections. Under these circumstances we find the judiciai

consent provision of the Missouri statute constitutional.

In view of the district court’s finding that the judicial

approval procedure was invalid the district court did not

address Planned Parenthood’s other objections to section

188.028. In the interest of judicial economy we do so now.

First, Planned Parenthood points ont that subsection

188.028.2(2) requires notice to all parents. It is argued that

this is unconstitutional, relying on a statement in Justice

Powell’s opinion in Bellotti IT:

[E]very minor must have the opportunity—if she so —

desires—to go directly to court without first consult-

ing or notifying her parents. If she satisfies the court

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that she is mature and well enough informed to make

intelligently the abortion decision on her own, the

court must authorize her to act without parental con-

sultation or consent.

443 U.S. at 647, 99 S.Ct. at 3050.

The Supreme Court recently addressed this issue further

in H. L. v. Matheson, U.S. __., 101 S.Ct. 1164, 67

L.Ed.2d 388 (1-981). The Utah statute challenged in Mathe-

son required the physician to ‘‘notify, if possible, the par-

ents or guardian of the woman upon whom the abortion

is to be performed, if she is a minor or the husband of

the woman, if she is married.’’ Utah Code Ann. § 76—7—

304(2). Matheson holds that the state may require that

notice be given to the parents of a minor who is living

with and dependent upon her parents, is not emancipated

by marriage or otherwise, and has made no claim or show-

ing as to her maturity or her relations with her parents.

See 101 S.Ct. at 1170. The Court narrowed its decision to

these facts because the plaintiff ‘‘did not allege or proffer

any evidence that either she or any member of her class

is mature and emancipated.’ Jd. at 1169.

Matheson establishes that the parental notice require-

ment in sectien 188.028 would be constitutional for minors

like the plaintiff in that case. Our inquiry does not stop

there, however. The standing of plaintiffs in this case is

quite different from that of H. L. Here, plaintiffs are

corporations and physicians who seek to provide abortion

services. The complaint says that Planned Parenthood and

Reprodnetive Health serve a patient population comprised

of 36.5% and 16% of persons under 18, respectively. Plain-

tiffs have established that some of their patients include

minors who are mature enough to make an abortion de-

cision (‘‘mature minors’’) or minors for whom an abor-

tion without parental consultation is in their best interest

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(‘‘best interests)) minors). Although the complaint makes

no specific claim in this respect, testimony of several plain-

tiffs indicates a desire to perform abortions for such in-

dividuals.** In general, these physicians agreed that notice

requirements are a burden on availability of services, in-

terfere with the doctor-patient relationship, and do not

serve the best interests of the patients. In sum, the record

makes it clear that these physicians deal with minors who

they consider mature enough to make a decision without

parental involvement, or for whom parental involvement

is not in their best interests.

[7] We are thus faced with the question left open in

Matheson: whether it is constitutionally permissible to

require mature or ‘‘best interests’’ minors to notify their

parents prior to a court hearing in which they seek judicial

consent for an abortion. We have no need to analyze this

problem at length, as the justices of the Supreme Court

have already explored it. As noted, in Bellotti Il, Justice

Powell’s opinion advances persuasive reasons for conclud-

ing that parental notice is unduly burdensome in cases in-

volving mature or ‘‘best interests’’ minors. 443 U.S. at

642-48, 99 S.Ct. at 3047-51. In H. L. v. Matheson, Justices

Powell and Stewart concurred in the decision, but insisted

that ‘‘a State may not validly require notice to parents

18 See Widdicombe (Reproductive Health’s Director) (T. 30-36,

74-78) (Reproductive Health identifies mature minors through screen-

ing process; some minors show greater maturity than persons of higher

age); Palmer (T. 133-37) (some minor patients in his practice capable

of giving informed consent without parental consent); Kassar (T. 216-

19) (ability to give informed consent depends on factors other than

age); Crist (T. 350-52) (presently provides abortions to women under

18 without parental involvement; believes many such women are capable

of consent; cites example of “best interests” exception based on statistics

showing 50% of those 12 years old and under who seek abortions are

incest victims); Vera (T. 444-47) (psychiatrist who counsels women

with unwanted pregnancies; personal experience includes instances where

parental involvement has adverse effects).

A-71

in all cases, without providing an independent decision-

maker to whom a pregnant minor can have recourse if she

believes that she is mature enough to make the abortion

decision independently or that notification otherwise would

not be in her best interests.’’ 101 S.Ct. at 1176—77. Justices

Marshall, Brennan and Blackmun concluded that the Utah

statute, which is very similar to the Missouri statute, is

unconstitutional on its fact because the burdens it imposes

exceed any identifiable state interests. 7d. at 1184-94. The

analysis in these opinions strongly suggests that subsec-

tion 188.028.2(2) is unconstitutional because it requires

mature or ‘‘best interests’’ minors to give notice to their

parents prior to the court hearing.’* We so hold. See also

Wynn v. Carey, 582 F.2d 1375, 1388 (7th Cir. 1978).

[8] Planned Parenthood also argues that several other

features of section 188.028 are unconstitutional. They claim

that the statute’s supposed purpose of facilitating par-

ental consultation is undermined by its overinclusiveness

and underinclusiveness. They argue it is overinclusive be-

cause it requires the involvement of the parents of un-

emancipated minors who have been widowed or divorced

and they argue that the statute is underinclusive because

it does not require involvement of the parents of emanci-

pated minors ‘‘regardless of their age, maturity, intelli-

gence, education or experience. .. .’’ While we acknowledge

that the classification may not be perfect, we conclude

emancipation is a sufficiently accurate indicia of depend-

ence on parental advice to serve as the basis for a legisla-

tive judgment by the Missouri legislature.

Nonetheless, Planned Parenthood claims that ‘‘eman-

cipated’’ is excessively vague. They refer to confusion

among various witnesses about the meaning of the term.

14 Subsection 188.028.2(2) is severable from the remainder of the

statute, so our holding does not affect the remainder of section 188.028.

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As will be more fully developed later in this opinion, we

conclude that to conduct a criminal prosecution under this

statute there must be proof of scienter as to the elements

of the crime. A successful prosecution would require proof

that the physician performing the abortion knew that a

minor who received an abortion under subsection 188.028.1

(2) was not ‘‘emancipated.’’ Although the presence of a

scienter requirement will not entirely eliminate problems

caused by vagueness, we are satisfied it is sufficient here.’®

See Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675,

685-86, 58 L.Ed.2d 596 (1979).

[9] Planned Parenthood also claims that the statute

does not assure that the procedure will be anonymous and

expeditious."* We are satisfied that anonymity is suffi-

ciently protected by these procedures, which do not require

the minor to disclose her name. Furthermore, the statute

sets forth reasonable time requirements for court action

on the petition. Although the statute does no more than

direct the Missouri Supreme Court to promulgate rules

for expedited appellate review, we are confident the Mis-

souri Supreme Court will exercise its jurisdiction in a

manner that recognizes the serious damages caused by

delay.

We find the judicial consent provision under section

188.028 to be constitutional. We agree with Planned Par-

enthood, however, that the notice provisions found in sub-

section 188.028.2(2) are impermissible and must be set

aside.

15 We note that the Missouri Supreme Court has considered the

proof necessary to show emancipation in the context of parental tort

liability. See Wurth v. Wurth, 322 S.W.2d 745, 746 (1959).

16 The delay argument is based in part on the 48 hours of additional

delay required by section 188.039. Since we conclude that it is un-

to require a 48-hour delay, the potential for delay is re-

duced. See Part IV A, infra.

A-73

lI. Restrictions on Abortion after Viability.

[10] The district court held that subsection 188.030.1

is unconstitutional because it allegedly imposes criminal

liability for an erroneous but good faith determination

that a fetus is nonviable. The district court also found

subsections 188.030.2 and 188.030.3 unconstitutional on

similar grounds. Further, subsection 188.030.2 was held

unconstitutionally vague, and subsection 188.030.3’s re-

quirement of a second physician was held to be overbroad

because it requires a second physician even when there is

no reasonable chance of fetal survival.’*

A. Subsection 188.030.1: Mental Culpability Require-

ment**

17 Missouri argues that none of the plaintiffs had standing to chal-

lenge section 188.030. The state relies on interrogatories submitted

by the plaintiffs in which they said their abortion practices were limited

to nonviable fetuses. However, at trial Dr. Kassar testified that he had

once conducted an abortion at approximately 28 weeks, which is within

the period of viability identified in Roe v. Wade. The district court

found that this testimony established that “[e]nforcement of section

188.030 would have an immediate and direct effect on the medical

practice of Dr. Kassar.” In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739,

35 L.Ed.2d 201 (1973), and Planned Parenthood v. Danforth, 428

U.S. 52, 62, 96 S.Ct. 2831, 2837, 49 L.Ed.2d 788 (1976), the Court

recognized the standing of plaintiff physicians, since “[t)he physician

is the one against whom these criminal statutes directly operate in the

event he procures an abortion that does not meet the statutory excep-

tions and conditions.” Doe v. Bolton, 410 U.S. at 188, 93 S.Ct. at 745.

Since Dr. Kassar’s credibility was a matter for the district court to

resolve, and the district court accepted his testimony, he has standing.

It is therefore unnecessary to determine whether other plaintiffs may

also have standing.

18 Subsection 188.030.1 reads:

No abortion of a viable unborn child shall be performed unless

necessary to preserve the life or health of the woman. Before a

physician may perform an abortion upon a pregnant woman after

such time as her unborn child has become viable, such physician

shall first certify in writing that the abortion is necessary to pre-

(Continued on next page)

A-74

The district court based its holding that the State un-

constitutionally imposed criminal liability without fault

on Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58

L.Ed.2d 596 (1979).

In Colautti the Supreme Court said the Pennsylvania

statute was unduly vague and that the vagueness was

‘‘eompounded’’ by the fact the statute subjected a physi-

cian to liability without fault. The Court agreed that

the Pennsylvania criminal code*® required scienter as to

‘‘whether the physician’s actions will result in the death of

the fetus.’’ 7d. at 394, 99 S.Ct. at 685. However, it did not

contain a requirement ‘‘that the physician be culpable in

failing to find sufficient reason to believe that the fetus

may be viable.’’ Id. at 394-95, 99 S.Ct. at 685-86.

The district court acknowledge that subsection 188.030.1

does not have the vagueness problems encountered with the

Pennsylvania law. However, it found that the Missouri law

lacks a culpability requirement, and found that this alone

rendered the statute unconstitutional. 483 F.Supp. at 692.

Without a culpability requirement, the Missouri statute

would create a ‘‘profound chilling effect on the willingness

of physicians to perform abortions near the point of viability

in the manner indicated by their best medical judgment.’’

439 U.S. at 396, 99 S.Ct. at 686.

Footnote continued

serve the life or health of tiie woman and shall further certify

in writing the medical indications for such abortion and the probable

health consequences.

Mo.Ann.Stat. § 188.030.1 (Vernon).

19 The Pennsylvania Act provided that a person who failed to make

a viability determination or to exercise the prescribed stand

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