Amicus Curiae Brief — Thornburgh v. American College of Obstetricians and Gynecologists

Supreme Court, U.S. 1

FILED

a

No. 84-495 6 30 1985

. VOL, JR.

—

IN THE

Supreme Court of the Auited States

OCTOBER TERM, 1985

RICHARD THORN BURGH, et al.,

. Appellants,

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, PENNSYLVANIA SECTION, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Third Circuit

BRIEF FOR THE

NATIONAL ABORTION FEDERATION

AS AMICUS CURIAE IN SUPPORT OF APPELLEES

DAVID |. SHAPIRO *

SIDNEY DICKSTEIN

KENNETH M. SIMON

AMY G. APPLEGATE

ELAINE METLIN

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

Counsel for

National Abortion Federation

* Counsei of Record

WILSON - Eres Printing Co.. Inc. - 789-0096 - WasSHINGTON. D.C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

THE QUESTION ADDRESSED BY THIS BRIEF...

.

A. The Public Disclosure of Information Concern-

ing Abortions Required by the 1982 Pennsyl-

vania Abortion Control Act 0000000.

B. Pennsylvania Previously Protected the Confi-

dentiality of Records About Abortion Providers

e 2

C. Pennsylvania's Reversal of Previous Policy in

Bmacting the 1962 Ae

INTRODUCTION AND SUMMARY OF ARGU-

11111——————————

-

I. THE PENNSYLVANIA DISCLOSURE RE.

QUIREMENTS UNCONSTITUTIONALLY IN-

TERFERE WITH THE ABORTION DECI-

SION AND VIOLATE PATIENTS’ PRIVACY.

A. Public Disclosure of Sensitive Abortion

Information Facilitates Antiabortionist Vio-

1. The concerted program of violence and

providers and their patients

2. The Pennsylvania disclosure require-

ments facilitate identification of targets

for antiabortionist violence and harass-

ii

TABLE OF CONTENTS—Continued

B. The Pennsylvania Disclosure Requirements

Interfere with the Availability of Safe Abor-

1.» m— ae

C. The Pennsylvania Disclosure Requirements

Unconstitutionally Violate Patients’ Privacy

Rights and Impair the Abortion Decision

II. THE PENNSYLVANIA DISCLOSURE RE-

QUIREMENTS ARE NOT JUSTIFIED BY

ANY COMPELLING STATE INTEREST AND

ARE INCONSISTENT WITH ACCEPTED

PRACTICES IN THE COMPILATION OF

Oe

I..... A

B. The Pennsylvania Disclosure Requirements

Are Inconsistent with the Practices of Other

States, the Federal Government and Pro-

— ͥͤ H ů R

Statistics

CONCLUSION

. 2 ....

1. Report of Induced Termination of Pregnancy...

2. Abortions: Report of Complications

Per 8 2

iii

TABLE OF AUTHORITIES

Cases: Page

American College of Obstetricians and Gynecolo-

gists v. Thornburgh, 737 F.2d 283 (3d Cir.

e ecrwssensseunecene 7, 24

American College of Obstetricians and Gynecolo-

gists v. Thornburgh, Civil Action No. 82-4336

(E.D. Pa. June 17, 1985) passim

Avins v. White, 627 F.2d 637 (3d Cir.), cert. de-

nied, 449 U.S. 982 (1980) ee. 23

Bering v. SHARE, Civ. No. 85200796 (Wash.

Super. Ct. Mar. 22, 1985), appeal docketed,

No. 51533-6 (Wash. Mar. 28, 198955 14, 19

Brown v. Socialist Workers 7 Campaign Com-

mittee, 459 U.S. 87 (198 2))))))))) :œ: 24

Central Intelligence Agency v. Sims, 105 S. Ct.

SS 23

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983)))) passim

Cleveland v. Anchorage, 631 P.2d 1073 (Alaska

r /,, 15

Colautti v. Franklin, 439 U.S. 379 (19799 7

Dion v. Kiev, 566 F. Supp. 1387 (E. D. a. 1983) 23

Doe v. Bolton, 410 U.S. 179 (1973 23

Doe v. Rampton, 366 F. Supp. 189 (D. Utah

e èʃâr·L᷑ 22 22

Fetler v. Houghton Mifflin Co., 364 F.2d 650 (2d

e cseuueuecmeensene 22-23

Gaetano v. United States, 406 A.2d 1291 (D.C.

F 7 ½ã ”»Dmß ...... 14

Grayned v. City of Rockford, 408 U.S. 104 (1972) 15

Harris v. McRae, 448 U.S. 297 (1980) 24

Hoffart v. Teras, 686 S.W.2d 259 (Tex. Crim.

r èêÄʃ?˙“˙ 121i 14

Maher v. Roe, 432 U.S. 464 (19777 24

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

e è˙;̃. ˙ uVX, 24

Miller v. Lear Siegler, Inc., 525 F. Supp. 46 (D.

D ᷑ͥͤũͤũͤůͤ⸗Ä⸗ : 23

NAACP v. Alabama ex rel. Patterson, 357 U.S.

ELS ——: 24-25

iv

TABLE OF AUTHORITIES—Continued

Page

People v. Krizka, 92 Ill. App. 3d 288, 416 N.E.2d

OD SE OS een 15

People v. Stiso, 93 III. App. 3d 101, 416 N.E.2d

1209 (Ill. App. Ct. 198sß—E(ͥͥ—— 15

Planned Parenthood v. Ashcroft, 462 U.S. 476

Seo eon ee ee 8, 9, 20

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

/// V/ / (( passim

Planned Parenthood Association v. Fitzpatrick,

401 F. Supp. 554 (E.D. Pa. 1975), aff'd mem.

in part sub nom. Franklin v. Fitzpatrick and

vacated aud remanded mem. in part sub nom.

Beal v. Franklin, 428 U.S. 901 (19763 25 4

Roe v. Wade, 410 U.S. 113 (1978) ............................. passim

Sigma Reproductive Fealth Center v. Maryland,

297 Md. 660, 467 A.2d 483 (Md. 19833 14

Slevin v. New York, 551 F. Supp. 917 (S. D. N. v.

St. Louis v. Klocker, 637 S.W.2d 174 (Mo. App.

ES VES 8 2 14-15

Whalen v. Roe, 429 U.S. 589 (197777777 21, 22

Wynn v. Scott, 449 F. Supp. 1302 (N.D. III.

— 22

Constitution and statutes:

. seae 14, 15

I aa 21, 22, 24, 25

35 Pa. Cons. Stat. Ann. §§ 6601-6608 (Purdon

%%%%di: ß ̃— esl 4

35 Pa. Cons. Stat. Ann. § 6606 ( dp)))))))))))))))))) 4, 5, 30

35 Pa. Cons. Stat. Ann. § 6606 (e))))jh)) 5

18 Pa. Cons. Stat. Ann. §§ 3201-3220 (Purdon

— SL EE A OP TO 2

18 Pa. Cons. Stat. Ann. § 3207 (ohr 7

18 Pa. Cons. Stat. Ann. § 32114 1 28

18 Pa. Cons. Stat. Ann. § 32140( a 1, 3, 7, 16

18 Pa. Cons. Stat. Ann. § 3214 b) 6 3, 7

18 Pa. Cons. Stat. Ann. § 32140 e)) 7

18 Pa. Cons. Stat. Ann. § 3214 (e) (a)) 3

V

TABLE OF AUTHORITIES—Continued

18 Pa. Cons. Stat. Ann. § 3214f))))7)7)7)7·

18 Pa. Cons. Stat. Ann. § 3214 (h) 1, 3, 4, 7, 16

62 Pa. Cons. Stat. Ann. § 1404(c) (Purdon Supp.

11% — —ñ ⁵⁵ñ—

Legislative Materials:

Abortion Clinic Violence: Hearings Before the

Subcommittee on Civil and Constitutional Rights

of the House Comm. on the Judiciary, 99th

I, Te I CI citicctnteccticetinnssintitnieneieenetenenn

77 Pa. Legis. J. House 2269-70 (Dec. 8, 1981)

Other Authorities:

Abortion Forced on Invalid After Guardianship

Granted to Mom, ALL News, June 28, 1985, at

Abortionist Quits Amid Protest, The Life Advo-

e, iiiiceriniinitiiertininisiinninineciin

Alan Guttmacher Institute, Abortion Services in

the United States, Each State & Metropolitan

Area, 1979-1980 (1968) .........................................

American Medical Association, Current Opinions

of the Judicial Council of the American Medical

e initia ccs

American Medical Association, Model State Legis-

lation on Confidentiality of Health Care Infor-

OO

American Medical Record Association, Confiden-

tiality and Security of Secondary Health Re-

ERE bn . ee

American Medical Record Association, Confiden-

tiality of Patient Health Information (1981)....

Centers for Disease Control, U.S. Dep’t. Health &

Human Serv., Abortion Surveillance 1979-1980

% —ͤ — — —

Dallas Abortionist Quits After Picket of Resi-

dence; Activists Close Pa. Abortuary; Prevent

Its Relocation, ALL News, June 7, 1985, at 1....

30

12, 13

11-12

30

30

vi

TABLE OF AUTHORITIES—Continued

Page

Donovan, The Holy War, 17 Fam. Plan. Persp. 5

cc 11,17

Henshaw, Forrest & Blaine, Abortion Services in

the United States, 1981 and 1982, 16 Fam. Plan.

Persp. 119 (May/June 1981) 18, 28

It’s Not Terrorism to Stop the Slaughter, USA

I Se serene 10

National Abortion Federation, Standards for

Quality Care (reprinted April 198) 1, 29

National Abortion Federation, Summary of Clinic

Violence as Reported to the National Abortion

e Te a ae a 1,13

N.Y. Times, Aug. 11, 1985 (Magazine), at 18. 12

Note, Necessity as a Defense to a Charge of Crim-

inal Trespass in an Abortion Clinic, 48 U. Cinn.

I . 15

Pa. Doctor Resigns from N.Y. Abortuary After

Private Practice Is Picketed, ALL News, May 3,

. ˙ ˙e[fͤ9Lb eee Oe 18

Pensacola Abortionist Quits; Faced Insurance

Problems, Eviction, ALL News, June 28, 1985,

T 18

Picketers Target Doctors’ Offices; Two Doctors

Stop Doing Abortions, ALL News, Mar. 29,

ccc 18

Restatement (Second) of Torts § 564 comment b

ere 23

San Diego Abortuary Burned Again—$25,000 in

Damages Sustained, ALL News, Apr. 19, 1985,

. 18

J. Scheidler, Closed: 99 Ways to Stop Abortion

Fr passim

Sobran, Sudden Impact, Nat. Rev. 41 (June 28,

. 10

Third Abortion Clinic Bomber Sentenced to 15

Years, Wash. Post, July 27, 1985, at bi 1

Willke, Opposing Clinic Violence, Nat. Right to

Life News, Jan. 10, 1985, at 3

BRIEF FOR THE

NATIONAL ABORTION FEDERATION

AS AMICUS CURIAE IN SUPPORT OF APPELLEES

INTEREST OF THE AMICUS CURIAE

The National Abortion Federation (“NAF”) submits

this brief in support of appellees.' NAF, a not-for-profit

professional organization, was founded in 1977 and is

composed primarily of clinics and physicians providing

abortion services. Currently, NAF members include 306

providers in 46 states, the District of Columbia, Puerto

Rico and Canada, including three of the five original

plaintiffs, now appellees, in this case.“ NAF’s primary

objective is to unite providers of abortion services into

a professional community dedicated to quality care. NAF

provides professional standards,* guidelines, training and

education and serves as a clearinghouse for information

and advice to abortion-service professionals and the gen-

eral public.

NAF’s headquarters in Washington, D.C. were fire-

bombed by self-professed antiabortionists on July 4, 1984.“

THE QUESTION ADDRESSED BY THIS BRIEF

This brief addresses the unconstitutionality of Penn-

sylvania’s public disclosure requirements for reports filed

by providers of abortions under § 3214(a! and (h) of

the 1982 Pennsylvania Abortion Control Act. NAF sub-

mits that the disclosure requirements are unconstitu-

tional under the standards set forth in Roe v. Wade,

1 The parties have consented to the filing of this brief. Their

letters of consent are being filed with the Clerk of the Court.

2 The NAF members are the Elizabeth Blackwell Health Center

for Women; Reproductive Health and Counseling Center; and

Women’s Health Services, Inc.

% Copies of NAF Standards for Quality Care, reprinted as of

April 1984, are being lodged with the Clerk of the Court.

+See Summary of Clinic Violence as Reported to the National

Abortion Federation, discussed infra p. 13. Two antiabortionists

pled guilty and a third was convicted for ten bombings, including

that of NAF’s headquarters. See Third Abortion Clinic Bomber

Sentenced to 15 Years, Wash. Post, July 27, 1985, at D1.

2

410 U.S. 113 (1973), and its progeny in this Court, for

reasons in addition to those relied upon by the court of

appeals below.

In this brief, NAF demonstrates that Pennsylvania’s

disclosure requirements would expose physicians, women

who choose abortion and abortion clinics to antiabortion-

ist violence and harassment. The materials discussed be-

low, of which thi: Court may take notice, establish that

bombings, arsons, death threats, assaults and clinic in-

vasions are escalating dramatically. This brief explains

how Penrsylvania’s public disclosure requirements will

help antiabortion activists to target physicians, other

abortion providers and women who choose abortion for

even more violence and harassment. It also shows still

other adverse effects of public disclosure, the lack of any

need for it, and Pennsyivania’s departure from accepted

practices relating to medical records.

STATEMENT

A. The Public Disclosure of Information Concerning

Abortions Required by the 1982 Pennsylvania Abor-

tion Control Act

The 1982 Pennsylvania Abortion Control Act, i8 Pa.

Cons. Stat. Ann. §§ 3201-3229 (Purdon 1983) (herein-

after cited as “1982 Act“), requires providers of abor-

tion services to submit to the Pennsylvania Department

of Health four types of reports that are to be available

for public inspection and copying. These publicly avail-

able reports contain detailed information about each abor-

tion performed in Pennsylvania, the patient and the pro-

vider of the abortion. Penalties for failure to file the

required reports include fines, suspension or revocation

of licenses, and criminal liability. The reporting and

public disclosure provisions of the 1982 Act apply equally

to abortions performed in the first, second and third tri-

mesters.

The provisions requiring two of these four types of

reports were held unconstitutional by the court of appeals

and are therefore before this Court:

(1) Section 3214(a) of the 1982 Act requires that a

“report of each abortion performed shall be made to the

Department of Health] on forms prescribed by it.“

Section 3214(b) requires the physician who performs the

abortion to sign this report, and § 3214(e)(2) requires

the Department of Health to make it available for public

inspection and copying, subject only to the limitation that

“a unique identifying number” be substituted for “the

name of any physician which appears on the report.”

This report includes statutorily required information

about the identity of the physician who performed the

abortion, the facility where the abortion was performed

and any referring physician, agency or service; the polit-

ical subdivision in which the woman resides; her age,

race and marital status; the number of her prior preg-

nancies; the date of her last menstrual period and the

probable gestational age of the “unborn child”; the date

and type of procedure; a description of any complica-

tions; information relating to viability; length and

weight of the “unborn child”; the basis for determination

of “medical emergency” (if applicable); the date of the

statutorily required medical consultation; the date of

determination of pregnancy; and the method of payment

for the abortion. The form promulgated by the Depart-

ment of Health additionally requires information about

the woman’s education, the number of her living and dead

children, and previous spontaneous and induced termina-

tions of pregnancy.

(2) Section 3214(h) further requires physicians to

file reports of any complications “resulting, in the good

5 Copies of the report forms promulgated by Pennsylvania's De-

partment of Health pursuant to these subsections, entitled “Report

of Induced Termination of Pregnancy,” are reproduced in the

Appendix to this brief.

The public report may often identify private physicians per-

forming abortions despite the substitution of a number because

private physicians’ offices where abortions are performed must be

identified.

4

faith judgment of the physician, from . . . an abortion or

attempted abortion.” These- reports, which § 3214(h)

makes available for public inspection and copying, must

state the age of the patient; the number of previous

pregnancies; the number and type of previous abortions ;

the name and address of the facility where the abortion

was performed; the gestational age of the “unborn

child”; the type of abortion performed; the nature of the

complications; the medical treatment given; and the

nature and extent, if known, of any permanent condition

caused by the complications.’ This form, which must be

signed by the physician, additionally requires informa-

tion about the number of the woman’s living and dead

children, the date of the abortion, the date of the physi-

cian’s first examination of the patient, and the physi-

cian’s license number.

B. Pennsylvania Previously Protected the Confidentiality

of Records About Abortion Froviders and Their

Patients

The 1982 Act replaced Pennsylvania’s 1974 Abortion

Control Act, 35 Pa. Cons. Stat. Ann. §§ 6601-6608 Pur-

don 1977) ‘hereinafter cited as “1974 Act”). Section

6606(d) of the 1974 Act required abortion facilities to

keep in their own files records of each abortion per-

formed.“ Section 6606(d) specifically provided that

The form promulgated by the Department of Health, entitled

“Abortions: Report of Complications,” is reproduced in the Ap-

pendix to this brief.

Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554

(E.D. Pa. 1975), aff'd mem. in part sub nom. Franklin v. Fitzpatrick

and vacated and remanded mem. in part sub nom. Beal v. Franklin,

428 U.S. 901 (1976), invalidated as unconstitutional the reporting

provisions of § 6606(d) requiring the name and address of the

patient’s spouse; the name and address of the patient's parent or

person in loco parentis; and a “full statement of those facts upon

which the person performing the abortion relied as establishing that

the abortion was necessary to preserve the life or health of the

mother.

5

all information and documents required by this sub-

section shall be treated with confidentiality customarily

accorded to medical records.”

Section 6606(e) of the 1974 Act further required each

facility performing abortions to file quarterly reports

with the Department of Health showing the total number

of abortions performed during that quarter year and

the total number of abortions performed in each tri-

mester of pregnancy. In 1978, the Department of Health

implemented a policy to delete the names of private

practitioners providing abortion services from its pub-

liely available lists, in order “to prevent those providers

from possible harassment and abuse as has occurred in

the recent past.

Beginning in 1980, the Department of Health imple-

mented a further policy to separate the abortion records

submitted by all facilities from the cover sheets identi-

fying the facilities.“ This policy was implemented “to

avoid the possibility that certain facilities and physicians

could be pressured and possibly harassed by members of

the public objecting to the medical abortion practice” and

because the department recognized that it had “no need

*See Department of Health Position on the Dissemination of

Abortion Statistics, marked as Exhibit A, and letters dated

March 22, 1979 and April 24, 1979 between the Pennsylvania

Secretary of Health and the Executive Director of the Office of the

Democratic Policy Committee Chairman, marked as Exhibits B

and C, copies of which are being lodged with the Clerk of the Court.

These exhibits and others marked with letters have been reproduced

from attachments to Plaintiffs’ Memorandum of Law in Support

of an Injunction Against Enforcement of the Public Disclosure

Requirements of Sections 3207(b) and 3214(f) of the Pennsylvania

Abortion Control Act, filed in the district court in a subsequent

phase of the present case.

1 See the subsequent district court decision in this case, American

College of Obstetricians and Gynecologists v. Thornburgh, Civil

Action No. 82-4336, slip op. at 4 (E.D. Pa. June 17, 1985). Copies

of this decision are being lodged with the Clerk of the Court.

6

to match the identity of the facility with its statistical

report.” ©

C. Pennsylvania’s Reversal of Previous Policy in Enact-

ing the 1982 Act

The Pennsylvania Department of Health’s 1980 policy

frustrated a number of Pennsylvania legislators who

sought to obtain information about abortion providers on

behalf of their constitutents.* The disclosure require-

ments of the 1982 Act were designed to reverse this

policy. The legislative history of the 1982 Act reflects

the view that:

Pleople should have the right to know, for scientific

reasons, the abortions that are being performed, at

what stage, at what term, any complications, and in

addition, they should have the right to know the or-

ganizations and individuals who are performing

abortions so thai they ean decide whether or not to

patronize these orxauzations and individuals.

77 Pa. Legis. J. House 2269-70 (Dec. 8, 1981). The legis-

lative history specifically decries the problems encountered

by one Pennsylvania legislator who previously had chal-

lenged the Department of Health’s policy of separating

the page of the report identifying the facility from the

sheets containing the statistical information. As intended,

the 1982 Act now requires the identity of abortion facili-

ties and detailed information about those facilities to be

publicly disclosed, along with the medical and personal

1! See id. at 4, 43. Copies of the June 23, 1980 policy, identified as

Exhibit D, are being lodged with the Clerk of the Court. The

district court also cited a May 4, 1981 letter from the Chief

Counsel of the Department of Health, Plaintiffs’ Exhibit 7, copies

of which are being lodged with the Clerk of the Court as Exhibit G.

12 See, e.g., Exhibit E (memorandum dated February 13, 1981

from the Chief Counsel of the Pennsylvania Department of Health

reflecting a telephone call with a Pennsylvania legislator who chal-

lenged the department's policy) and Exhibit F (May 1, 1981 letter

from the department’s Chief Counsel to a Pennsylvania legislator

explaining the department's policy). Copies of Exhibits E and 2

are being lodged with the Clerk of the Court.

7

histories of women choosing abortions, which were for-

merly protected as confidential medical records.

D. Proceedings Below

The proceedings below resulted in the court of appeals’

holding many provisions of the 1982 Act unconstitutional,

including the reporting requirements of § 3214(a), (b),

(e and (h) discussed in this brief. The court of ap-

peals found that these reporting requirements would have

a significant impact on the woman’s abortion decision

because they would increase the cost of abortions. Fur-

ther, the court observed that the state had “proffered no

compelling state interest to justify much of the detail re-

quired.” American College of Obstetricians and Gyne-

cologists v. Thornburgh, 737 F.2d 283, 302 (3d Cir. 1984).

The court noted “additional objections to some of the

specific information required.” Jd. For example, “the

compulsion that a physician report the basis for his or

her medical judgment at various stages appears incon-

sistent with the [Supreme] Court's directive that a physi-

cian be accorded broad discretion, and could have a pro-

found chilling effect on tie willingness of physicians to

perform abortions.” J. (citing Colautti v. Franklin, 439

US. 379, 396 (1979) ). The court did not reach the ques-

tions whether these provisions also unconstitutionally in-

vaded the privacy of the mother or impaired the exercise

of abortion rights through public disclosure.

After remand, the United States District Court for the

Eastern District of Pennsylvania held proceedings on the

validity of §§ 3207(b) and 3214(f) of the 1982 Act,

which require that abortion facilities be identified and

that information about those facilities be made public.

After hearing evidence on the effects of such disclosure,

the district court entered an injunction requiring Penn-

sylvania to maintain in confidence, and not make avail-

able for public disclosure, reports filed pursuant to those

sections. The district court’s June 17, 1985 decision

(hereinafter cited as “1985 district court decision”) made

extensive findings of fact concerning harassment and

acts of violence directed at abortion facilities and their

patients. The court concluded that “there is a reasonable

probability that the disclosure requirements will result in

increased threats, harassment, or reprisals and will there-

fore impose a legally significant burden on the cor titu-

tional right to choose to have an abortion.” Sli op. at

31."

INTRODUCTION AND

SUMMARY OF ARGUMENT

Roe v. Wade, 410 U.S. 113 (1973), and subsequent de-

cisions of this Court establish and confirm the principle

that during the first trimester of pregnancy, a woman

“must be permitted, in consultation with her physician,

to decide to have an abortion and to effectuate that de-

cision ‘free of interference by the State.“ City of Akron

v. Akron Center for Reproductive Health, Inc., 462 US.

416, 429-30 (1983) (quoting Roe v. Wade, 410 U.S. at

163). Consequently, state regulations covering the first

trimester, such as the disclosure requirements of the 1982

Act, are permitted only if they “have no significant im-

pact on the woman’s exercise of her right” and if “the

State [meets] its burden of demonstrating that [the]

regulations further] important health-related State con-

cerns.” Akron, 462 U.S. at 429-30. Even after the first

trimester, a state’s regulation of abortion procedures

must “reasonably relate] to the preservation and pro-

tection of maternal health” and must not “depart from

accepted medical practice.” Id. at 430.

This Court has upheld certain recordkeeping and re-

porting requirements in Planned Parenthood v. Danforth,

428 U.S. 52 (1976), and in Planned Parenthood v. Ash-

croft, 462 US. 476 (1983). The requi. ents in Dan-

forth and Ashcroft, however, were “reasonably directed

to the preservation of maternal health and . . properly

respect led] a patient’s confidentiality and privacy,” did

% The 1985 district court decision is not before this Court

for review.

not “significantly differ from those imposed with respect

to other, and comparable, medical or surgical procedures,”

and were not unduly burdensome. Danforth, 428 U.S. at

80-81; see also Ashcroft, 462 U.S. at 490 n. 14.

The court of appeals correctly held that the reporting

requirements discussed in this brief, which concern in-

dividual abortions and complications, violated these con-

stitutional standards. This brief additionally demon-

strates that the provisions for public disclosure of such

reports are unconstitutional because they improperly in-

terfere with the abortion decision, violate patients’ rights

of privacy, and serve no valid state interest.

Pennsylvania’s public disclosure requirements are es-

pecially distressing in light of the extensive evidence of

antiabortionist harassment of and violence directed at

abortion providers and their patients. The information

to be disclosed permits targeting of abortion facilities for

violence and harassment, thereby restricting access to

safe abortions. In addition, the amount of detailed per-

sonal information required to be disclosed makes the

woman who has chosen to terminate her pregnancy

through abortion easily identifiable, thereby facilitating

harassment of patients as well as violating their privacy

rights. Moreover, the public disclosure requirements di-

rectly interfere with the abortion decision because a

woman who does not wish to sacrifice her privacy right

in maintaining the confidentiality of such information

must sacrifice her independence in making the abortion

decision.

Pennsylvania has not offered, nor could it offer, any

compelling state interest to justify this interference with

the abortion decision. Further, the disclosure require-

ments are inconsistent with the practices of other states,

the federal government and professional organizations,

which disclose only aggregate statistical information and

strictly protect the confidentiality of information about

specific facilities, physicians and patients.

10

DISCUSSION

I. THE PENNSYLVANIA DISCLOSURE REQUIRE-

MENTS UNCONSTITUTIONALLY INTERFERE

WITH THE ABORTION DECISION AND VIOLATE

PATIENTS’ PRIVACY

A. Public Disclosure of Sensitive Abortion Informa-

tion Facilitates Antiabortienist Violence and

Harassment

I. The concerted program of violence and harass-

ment directed against abortion providers and

their patients

In recent years, both women who seek abortions and

physicians who provide abortions have been targets of a

rising tide of antlat .tionist violence and harassment.

Many leaders of the antiabortion movement have shifted

their emphasis away from advocating changes in the law

to applying “direct action” against abortion providers

and their patients. “{P]ro-life activists cannot wait for

the legislative and judicial process that will make abor-

tion illegal... . [T)he activities and methods proposed

in this book are intended to interfere with and even stop

the business of abortion. . . .” J. Scheidler, Closed: 99

Ways to Stop Abortion 17-18 (1985) ‘hereinafter cited

as “99 Ways ‘emphasis in original

As head of the Pro-Life Action League, Scheidler

lawsuits, “inflammatory rhetoric,” horror stories,

ghastly pictures, pressure of all sorts.

Sobran, Sudden Impact, Nat. Rev. 41, 42 (June 28, 1985).

Abortion providers and their patients are subjected to

harassment that includes:

™ See also It's Not Terrorism to Stop the Sloughter, USA Today

Nov. 23, 1984, quoting Curtis Beseda, convicted of four counts of

— 2 eee Direct

action simply recognizes what in fact is taking place. that innocent

human lives are being destroyed, and that the only appropriate re-

sponse is one that stops this killing.”

11

blocking the entrances to elinies or elinie parking

lots; threatening, harassing, intimidating, insulting,

molesting, pushing, elbowing or shouldering patients

or staff; peering into or shouting through clinic win-

dows; trespassing on private property; invading

clinics; shouting abusive epithets or obscenities at

patients; photographing or videotaping patients; en-

gaging in face-to-face harassment; using . . . voice

amplification; interfering with or harassing patients

or clinic staff at their homes; making phone calls in-

tended to disrupt clinic operations; and making false

appointments.

Donovan, The Holy War, 17 Fam. Plan. Persp. 5, 7

(1985) (hereinafter cited as “The Holy War’).

Numerous antiabortion groups espouse “direct action”

to restrict and deny access to abortion services. In May

1984, more than 600 abortion foes held a three-day con-

ference on how to close abortion clinics and discourage

women from choosing abortion. The Holy War at 8. At-

tendees were urged to use direct action to “shut down the

abortion industry.” Jd. (quoting W. Cumbie, National

Conference on Pro-Life Activism, Fort Lauderdale, Fla.,

May 12, 1984). A second activist conference was held

in Wisconsin in April 1985. 99 Ways at 240."

% Many of these tactics are openly advocated by Scheidler in

99 Ways. See, e.g., chapter 1 (Sidewalk Counseling); chapter 2

(Truth Teams) (couples who pose as clients for abortion to gain

access te the waiting room in order to change patients’ minds) ;

chapter 3 (Picket and Demonstration); chapter 33 (Sit-Ins) ;

chapter 37 (Picket the Abortionists’ Homes); chapter 47 (Use

“Inflammatory Rhetoric”); chapter 53 (Use Private Detectives) ;

chapter 57 (Conduct a Blitz (clinic invasion)); chapter 58 (The

Bullhorn); chapter 60 (Get Information from License Plates);

chapter 86 (Special Clinic Closing Programs: Project Jericho,

Three Month Blitz, and Others) ; chapter 90 (Make Appointments) ;

chapter 91 (Telephone Calling).

1% Many antiabortion groups pay no heed to the stage of the

pregnancy, the cause of the pregnancy or the effect of the preg-

nancy on the life or health of the woman. For example, the ALL

News, published by the American Life Lobby, Inc., recently carried

12

Antiabortionist harassment of physicians who provide

abortion services is widespread. A recent article in the

New York Times Magazine vividly describes the in-

timidating tactics aimed at one doctor who performs

abortions in a small Oregon town. In addition to picket-

ing the physician, antiabortionists have likened his clinic

to Auschwitz, attempted to firebomb his clinic on two oc-

casions, and mailed him threatening letters, one of which

threatened to decapitate him."

Antiabortionist violence was the subject of congressional

hearings in March 1985. Directors of a number of abor-

tion facilities testified about numerous instances of “ma-

licious harassment and intimidation of clinic staff and pa-

tients and unlawful activities. Abortion Clinic Vio-

lence: Hearings Before the Subcommittee on Civil and

Constitutional Rights of the House Comm. on the Judi-

ciary, 99th Cong., Ist Sess. 1985 (hereinafter cited as

Hearings“ (statement of Beverly Whipple, Executive

Director, Feminist Women’s Health Center .“ The Fem-

inist Women’s Health Center in Everett, Washington was

forced to close after three arson fires. Jd. Planned Par-

enthood of Connecticut experienced three bomb threats,

forcing evacuation of its building during surgical proce-

dures. Hearings (statement of Joan Babbott, Executive

Director of Planned Parenthood of Connecticut). The

offices of Hillcrest Clinic, a first-trimester outpatient

a story entitled, “Abortion Forced on Invalid After Guardianship

Granted to Mom.” (Emphasis added.) The invalid in question

was a 35-year-old victim of Huntington’s chorea, weighing 75

pounds, who had been raped at a nursing home. ALL News,

June 28, 1985, at 1. American Life Lobby takes the position that

“(rjape and incest are not legitimate exceptions and will be used

as loopholes to justify public funding of many abortions.” Letter

dated April 16, 1984 concerning H.R. 1510, copies of which have

been lodged with the Clerk of the Court.

17 N.Y. Times, Aug. 11, 1985 (Magazine), at 18, 28.

18 Copies of statements submitted in these hearings, which have

not been concluded and are not published, are being lodged with the

Clerk of the Court.

13

abortion facility in Norfolk, Virginia, were set on fire in

1983 and a bomb was exploded outside the building in

1984. Hearings (statement of Heather C. Green, Direc-

tor of Community Education, Hillcrest Clinic).

Between January 1, 1981 and July 19, 1985, 416 acts

of antiabortionist violence were reported to NAF, 135 of

which took place between January 1, 1985 and July 19,

1985. Only nine such incidents were reported in 1981.

These acts include bomb threats; clinic invasions; vandal-

ism; death threats; assaults or batteries; burglaries; at-

tempted arson or bombings; arsons; and bombings.“

These figures do not include incidents of picketing and

harassment or hate mail or harassing phone calls.“

The 1985 district court decision enjoining enforcement

of two additional disclosure provisions of the 1982 Act

found that:

[Pro-life protests have increased in frequency and

intensity and at times have exploded into violent

confrontations . . . . Several of plaintiffs’ witnesses

testified about takeovers of clinics by pro-life demon-

strators which have resulted in arrests of up to

thirty people at a time. Women entering and leav-

ing clinics have been verbally harassed. . . . The pat-

Information concerning these reports is set forth in NAF's

Summary of Clinic Violence as Reported to the National Abortion

Federation, copies of which are being lodged with the Clerk of

the Court.

Even some moderate elements of the antiabortion move-

ment have failed to condemn violence against abortion clinics. For

example, John Willke, President of the National Right to Life

Committee, suggests that the only way to stop the antiabortion

violence is “to stop the violence inside the doors [of the abortion

clinics] that is causing it.” Willke, Opposing Clinic Violence, Nat.

Right to Life News, Jan. 10, 1985, at 3. The Pro-Life Action

League, one of the more militant antiabortion groups, refuses to

condemn the destruction of abortion facilities “because we refuse

to cast the abortionists in the role of victim when they are in fact

victimizers. .. .” Hearings (statement of Joseph Scheidler, Direc-

tor, Pro-Life Action League).

14

tern of hostile behavior which has developed in the

past two years has also included picketing and ver-

bal harassment of clinic physicians and staff mem-

bers by name both at their facilities and at their

homes and attempts to block ingress and egress at

facilities. .

Slip op. at 25-26. Similarly, a recent Washington State

Superior Court decision found that antiabortionist pick-

eting of a Medical Building occupied by over two dozen

medical offices had created a “clear and present danger“

to patients and physicians.”

Proponents of “direct action” purport to justify these

tactics by invoking the First Amendment and the “de-

fense of necessity.” Although these justifications are

without basis and have been widely rejected, the per-

sistence of their assertion confirms the growing scope and

militancy of antiabortionist violence and harassment.”

21 Evidence was presented that one woman, who was miscarrying

and bleeding heavily, was delayed in entering the building for

emergency care. Another woman's already high blood pressure

was exacerbated to dangerous levels because the picketers upset

her. The court further found that ingress and egress of persons

visiting or working at the Medical Building had been obstructed;

that picketing had been disorderly, coercive and aggressive; and

that “ ‘counseling’ had been forced upon those attempting to enter

or leave the building.” Bering v. SHARE, Civ. No. 85200796, Find-

ings of Fact and Conclusions of Law at 4, 5 (Wash. Super. Ct.

Mar. 22, 1985), appeal docketed, No. 51533-6 (Wash. Mar. 28,

1985). Copies of this unreported decision are being lodged with

the Clerk of the Court.

22 The necessity cited by appellants [that their actions were

necessary to save human life] cannot shield them from criminal

liability for their acts. The rights to free speech, to

assembly and to petition the government for grievances are

a cornerstone of the American system. So, too, is the right

to be free from criminal interference. These appellants tres-

passed on the rights of others and did so without excuse.

Gaetano v. United States, 406 A.2d 1291, 1295 (D.C. 1979); see

also Hoffart v. Texas, 686 S.W.2d 259 (Tex. Crim. App. 1985) ;

Sigma Reproductive Health Center v. Maryland, 297 Md. 660, 467

A.2d 483 (Md. 1983); St. Louis v. Klocker, 637 S.W.2d 174 (Mo.

15

2. The Pennsylvania disclosure requirements facili-

tate identification of targets for antiabortionist

violence and harassment

Although antiabortionist literature contains advice

about how to identify individual abortion patients, clinics,

physicians and staff members, it recognizes the difficulty

of obtaining desired information. Current techniques in-

clude photographing patients and recording license plate

numbers of physicians, staff members and patients. Nev-

ertheless, it can be difficult to identify the holder of a

particular license plate and some abortion facilities and

physicians do not advertise their services.“

These obstacles to identification largely would be elimi-

nated by the disclosure requirements of the 1982 Act.

App. 1982) ; Cleveland v. Anchorage, 631 P.2d 1073 (Alaska 1981) ;

People v. Stiso, 93 III. App. 3d 101, 416 N.E.2d 1209 (III. App. Ct.

1981); People v. Krizka, 92 III. App. 3d 288, 416 N.E.2d 36 (III.

App. Ct. 1980). See Note, Necessity as a Defense to a Charge of

Criminal Trespass in an Abortion Clinic, 48 U. Cinn. L. Rev. 501,

502-03 (1979).

A discussion of whether the First Amendment does or should

protect conduct engaged in by antiabortion activists is beyond the

scope of this brief. This Court has held that time, place and

manner restrictions are reasonable if “the manner of expression is

basically incompatible with the normal activity of a particular

place at a particular time.” Grayned v. City of Rockford, 408 U.S.

104, 116 (1972).

2 It is currently difficult to identify a physician from a license

plate number without “hav[ing) a friend in the traffic division or

in the Secretary of State’s Office. Ordinarily, if you call up the

license bureau with a license number and ask for the name and

address of the owner, you will get a runaround and may have a

hard time getting it.” 99 Ways at 221.

See Defendants’ Supplemental Memorandum of Law in Opposi-

tion to a Preliminary Injunction Against Enforcement of the Pub-

lic Disclosure Provisions of Sections 3207(b) and 3214(f) of the

Pennsylvania Abortion Control Act at 7, filed in the subsequent

district court proceeding in this case. See also 99 Ways at 325:

“Finding out which hospitals perform abortions is more difficult

than discovering the abortion clinics, because hospitals rarely adver-

tise their abortion program.”

16

The publicly available reports of individual abortions and

complications required by § 3214(a) and h) would pro-

vide a great deal of personal information about individual

patients, excluding only their actual names and addresses.

It would not be difficult to identify from a report required

by § 3214(a), for example, a college-educated 28-year-old

Asian woman with three living children in a small Penn-

sylvania town who underwent an abortion at a particular

clinic on a particular date. In many cases, antiabortion

activists would not have to depend upon surreptitious

help from friends in motor vehicle bureaus to identify

particular physicians, because the identity of every abor-

tion facility, including private physicians’ offices, would

be publicly available. The names of physicians preparing

reports of complications required by § 3214(h) would be

evident on the reports themselves. A physician who both

performs an abortion on a patient and who subsequently

treats that patient for a complication thus would be iden-

tifiable from the face of the complications report.

Further, the number and type of abortions performed

at each facility could readily be determined by an analysis

of these reports. Pennsylvania has admitted in the sub-

sequent district court proceeding that “the disclosure pro-

visions make available information which enables oppo-

nents of abortion to direct their protests against those

facilities which perform many abortions or inordinate

numbers of late-term abortions.” **

25 The disclosure of this type of information in reports required

by other public disclosure provisions of the 1982 Act has been

preliminarily enjoined because “there is a reasonable probability

that the disclosure requirements will result in increased threats,

harassment, or reprisals and will therefore impose a legally

significant burden on the constitutional right to choose to have an

abortion.” 1985 district court decision, supra p. 7, at 31.

2° Defendants’ Memorandum of Law in Opposition to a Prelimi-

nary Injunction Against Enforcement of the Public Disclosure

Requirements of § 3207(b) and 3214(f) of the Pennsylvania Abor-

tion Control Act at 8 n.4 (hereinafter cited as “Defendants’

Opposition Memorandum”), filed in the subsequent district court

proceeding.

17

Post-abortion identification of patients can serve two

objectives of those who wish to deter women from choos-

ing abortion. First, the possibility of public identification

could act as a general deterrent upon women who are

considering abortion. “In Charleston, West Virginia,

right-to-life protesters photograph patients as they enter

the Women’s Health Center, causing them to worry that

their picture may appear in the local newspaper.” The

Holy War at 6. Second, antiabortion groups such as

Women Exploited By Abortion (hereinafter “WEBA”),

are interested in persuading women who have undergone

abortions to become converts “committed to ministering tu

women who need to be set free from the bondage of abor-

tions. The intrusive nature of such recruiting efforts

is apparent.

The 1982 Act’s disclosure requirements will enable anti-

abortionists to identify more easily those seeking or pro-

viding abortion services. Armed with this information,

the activists can more easily target facilities and individ-

uals for harassment and attack. The methods currently

employed by antiabortion activists are tailored to the in-

formation currently available.“ The increased availability

of confidential infermation will result in placing more ob-

stacles in the paths of women who may choose abortion to

terminate their pregnancies. The dangers of making such

* See the WEBA Brochure, copies of which are being lodged

with the Clerk of the Court.

One way to make up for the loss of one’s child is to help

prevent another woman from destroying hers. * * * We must

be bold in asking people with special knowledge and experience

to use it in the abortion battle. It is sometimes difficult to

talk them into exposing their dark secrets

99 Ways at 228-29.

There is a lot of imagination and creativity still untapped in

the pro-life ranks. There are effective means of carrying on

the guerilla warfare necessary for victories in the battle against

abortion. There are many ideas not mentioned here because

we haven't thought of them yet.

99 Ways at 341 (emphasis added).

18

information availeble are, moreover, recognized by the

practices of other states and professional organizations.”

B. The Pennsylvania Disclosure Requirements Inter-

fere with the Availability of Safe Abortion Services

Access to abortion services in the United States cur-

rently is limited geographically.

Seventy-eight percent of all U.S. counties—con-

taining 28 percent of women aged 15-44—had no

identified provider of abortion services in 1982.

-Only two percent of abortions were performed in

nonmetropolitan counties in that year, although 26

percent of women of reproductive age live in such

Despite the concentration of abortion services in

urban areas, 47 percent of metropolitan counties also

had no abortion service providers in 1982.

Henshaw, Forrest & Blaine, Abortion Services in the

United States, 1981 and 1982, 16 Fam. Plan. Persp. 119

(May/June 1984). The disclosure requirements of the

1982 Act would further limit the availability of abortion

services by exposing all abortion providers to harassment

and violence.

Antiabortionist literature is replete not only with sug-

gestions of bow to apply pressure to physicians and abor-

tion clinics, but also with success stories about providers

who have been put out of business.” The disclosure re-

See infra pp. 27-30.

See, e.g., Pensacola Abortionist Quits; Faced Insurance Prob-

lems, Eviction, ALL (American Life Lobby, Inc.) News, June 28,

1985, at 1 (doctor's office had been destroyed by a bomb); Dallas

Abortionist Quits After Picket of Residence; Activists Close Pa.

Abortuary; Prevent Its Relocation, ALL News, June 7, 1985, at 1;

Pa. Doctor Resigns from N.Y. Abortuary After Private Practice Is

Picketed, ALL News, May 3, 1985, at 3; Sua "ego Abortuary

Burned Again—$25,000 in Damages Sustained, ALL News, Apr. 19,

1985, at 3; Picketers Target Doctors’ Offices; Two Doctors Stop

Doing Abortions, ALL News, Mar. 29, 1985, at 2; Abortionist Quits

Amid Protest, The Life Advocate, July 1985, at 3; see also 99

19

quirements of the 1982 Act would enable antiabortion ac-

tivists to target additional facilities and physicians, as

well as specific facilities and physicians, for maximum im-

pact. If the pressure tactics advocated by antiabortion

groups are successful in closing down abortion facilities,

women who choose abortion will be forced “to travel to

find available facilities, resulting in both financial expense

and additional health risks.” Akron, 462 U.S. at 435.

Thus, the disclosure :equirements of the 1982 Act would

unconstitutionally restrict the availability of abortion

services.

The disclosure requirements of the 1982 Act also may

enable antiabortionists to interfere with the provision of

safe abortion services. Antiabortionists boast that their

[When pro-life pickets are outside a clinic, compli-

cations and confusion inside the clinic increase by as

much as 400 percent. * Consider that if our

presence at clinics causes four times more confusion

and complications than there would be if we were

not there, then it is obvious that we should be there

every time they operate The only way to

avoid complications is to avoid abortions.

99 Ways at 74-76.

In Bering v. SHARE, the Washington State Superior

Court found that “the picketing and ‘counseling’ . . . has

caused Plaintiffs and patients or visitors to the Medical

Building severe emotional distress, and has created a sub-

stantial risk of physical and mental harm to patients and

visitors. Findings of Fact and Conclusions of Law

at 4.

By enabling antiabortion activists to target additional

facilities and doctors and to target specific facilities and

Ways at 151-53 (Picket the Abortionists’ Homes): 171-75 (Gather

Evidence Against the Abortionists) ; 176-77 (File Suit Against the

Abortionists) ; 197-99 (Use Pressure; 211-13 (Keep the Abortion-

ists Out of Your Community).

doctors for maximum impact, the public disclosure re-

quirements may jeopardize the health of women who

choose abortion. The findings in the 1985 district court

decision include the example of a young woman who had

just undergone an abortion and wl ose car locked bumpers

with another car as she was attempting to leave the park-

ing lot. A crowd of antiabortion protesters taunted the

woman and not only refused to help, but also commented,

“It looks pretty bad, but it’s not as bad as what you just

did in there.” The woman, who was crying and becoming

increasingly upset, got out of her car and tried manually

to disengage the bumpers, “threatening physical injury to

herself.” Slip op. at 8. The court’s findings also discuss

a patient under general anesthesia who awoke in the open

air during winter weather because a bomb threat forced

the clinic to evacuate. Slip op. at 13.

C. The Pennsylvania Disclosure Requirements Uncon-

stitutionally Violate Patients’ Privacy Rights and

Impair the Abortion Decision

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

this Court upheld recordkeeping requirements of the Mis-

souri statute because they properly respect ed] a pa-

tient’s confidentiality and privacy.” Unlike the Pennsyl-

vania statute, the Missouri statute in Danforth required

that the records “shall be confidential and shall be used

only for statistical purposes.” Id. at 79. The records

were permitted to be inspected only by government “pub-

lie health officers” and were to be kept only “for seven

years in the permanent files of the health facility where

the abortion was performed.” Id. These safeguards as-

sisted in persuading this Court that the requirements were

within constitutional limits. Id.“

Under Pennsylvania’s 1982 Act, however, a woman

choosing to terminate her pregnancy through abortion

In Planned Parenthood v. Ashcroft, 462 U.S. at 489-90, this

Court upheld a statutory provision requiring a pathology report

for each abortion performed and noted that “Missouri extends the

identical safeguards found reassuring in Danforth to the pathology

reports at issue here.” Id. at 490 n.14.

must publicly disclose personal and medical details. The

unconstitutional deterrent impact of such disclosure on

“the woman’s exercise of her right,” Akron, 462 U.S. at

430, is apparent.” In addition, the 1982 Act unconstitu-

tionally forces a woman to choose between two privacy

rights, both of which are protected by the Fourteenth

Amendment. These rights were identified in Whalen v.

Roe, 429 U.S. 589 (1977): “One is the individual inter-

est in avoiding disclosure of personal matters and an-

other is the interest in independence in making certain

kinds of important decisions.” Id. at 599-600. As applied

in the abortion context, these privacy rights are the

woman's right to maintain confidentiality about her abor-

tion and her freedom to decide whether or not to termi-

nate her pregnancy through abortion.

Whalen upheld New Vork's filing requirements for

certain drug prescription records that aided in the en-

forcement of laws aimed at minimizing the misuse of

dangerous drugs. 429 U.S. at 597-98. This Court relied

heavily on the fact that “{p]ublic disclosure of the iden-

tity of patients [was] expressly prohibited by the statute

and by a Department of Health regulation,” and the fact

that elaborate security measures prevented disclosure to

anyone except a small number of Department of Health

employees and investigators. Id. at 594-95.

Disclosure of records about individual abortions and

complications as required by the 1982 Act would impair

both of the privacy interests identified in Whalen, with-

out the safeguards of the New York statute. “|T)he

right to collect and use personal] data for public pur-

™ See Slevin v. New York, 551 F. Supp. 917, 934-35 S. DN. v.

1982) :

The degree of intrusion stemming from public exposure of the

details of a person's life is exponentially greater than dis-

closure to government officials... . The mere fact that pri-

vate information is available on demand to individuals who

know what is sensitive and how to exploit it adds greatly to

the inhibition, anxiety and embarrassment that the same

disclosure might cause if restricted to the government.

poses is typically accompanied by a concomitant statutory

or regulatory duty to avoid unwarranted disclosures.”

Whalen, 429 U.S. at 605; see infra p. 27. In contrast,

Pennsylvania’s 1982 Act expressly mandates disclosure

of sensitive patient information to any interested mem-

ber of the public. The Pennsylvania disclosure provisions

unconstitutionally infringe on both privacy rights guar-

anteed by the Fourteenth Amendment, by forcing a

woman to reveal confidential information about her abor-

tion and by depriving her of her independence in the

abortion decision.“

The mere nondisclosure of the woman’s name in the

Pennsylvania reports does not protect her privacy. Courts

have recognized in other areas of the law that individuals

can be identified without being named. In libel cases, for

example, a plaintiff need not be named for a statement

to be held libelous, so long as “the libel designates the

plaintiff in such a way as to let those who knew him

understand that he was the person meant.” Fetler v.

Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir.

Another district court has applied the Whalen analysis to

analogous disclosure requirements:

This possibility of disclosure is far from innocuous and could

damage the woman's right to privecy in at least two ways.

First, highly personal information about the woman may be

publicly revealed. To the extent that abortions past midterm

are stigmatizing, disclosure could damage a woman's reputa-

tion. Second, the chance of disclosure could indirectly affect a

woman's independence in deciding whether to have the abor-

tion. A woman might choose not to have an otherwise neces-

sary abortion if she knew that her decision could become

virtually a matter of public record.

sion to public scrutiny by making the details of every abortion a

of public record and thus chills exercise of the right of

in 8

19660.“ This Court recently recognized that a person's

identity could be discovered by piecing together bits of

superficially innocuous data. Central Intelligence Agency

v. Sims, 105 S. Ct. 1881, 1892-93 (1985), upheld the

power of the director of the Central Intelligence Agency

to withhold institutional affiliations of “intelligence

sources” because what may seem trivial to the un-

informed, may appear of great moment to one who has a

broad view of the scene and may place the questioned

item of information in its proper context. (Citations

omitted.

The disclosure provisions may also inhibit the candor

essential to a meaningful doctor-patient relationship. This

Court has established that the “physician, in consultation

with his patient, must be] free to determine, without

regulation by the state, that, in his medical judgment,

the patient's | first-trimester] pregnancy should be termi-

nated.” Roe v. Wade, 410 U.S. at 163 emphasis added

“The medical judgment may be exercised in the light

closure, the meaningful exercise of her doctor’s medical

judgment would inevitably be impaired.”

™ Accord Avins v. White, 627 F.2d 637, 643 (3d Cir.), cert.

denied, 449 U.. 982 (1980); Dion v. Kiev, 566 F. Supp. 1387, 1389

(E. D. Pa. 1983); Miller v. Lear Siegler, Inc. 595 F. Supp. 46,

57-58 (D. Kan. 1981). See generally Restatement (Second) of

Torts § 564 comment b (1977) (“It is not necessary that the plain-

7

|

3

f

ef

:

i

physician, to decide to have an abortion and to effectuate

that decision ‘free of interference by the State. Akron,

462 U.S. at 429-30 (quoting Roe v. Wade, 410 US. at

163). The court below found that the increased cost

of recordkeeping resulting from these requirements would

have a significant impact on the abortion decision. 737

F.2d at 302. In addition, as demonstrated above, Penn-

sylvania’s disclosure requirements further interfere sig-

nificantly with the abortion decision and the physician-

patient relationship by invading privacy rights guaran-

teed by the Fourteenth Amendment and by subjecting

abortion providers and their patients to increased harass-

ment. This Court has held that public disclosure of infor-

mation could not constitutionally be required where there

was a “reasonable probability” that disclosure would

subject the persons identified to “threats, harassment or

Brown v. Socialist Workers ‘74 Campaign

Committee, 459 U.S. 87, 100-02 (1982) .*

and advice. This is a clear constraint on the development of a

candid doctor-patient relationship.

Margaret S.. Edwards, 488 F. Supp. 181, 214 KD. La. 1980).

“In Harris «. McRee, 448 US. 297, 315 (1980), this Court

upheld the Hyde Amendment, which generally precludes the use of

federal funds to reimburse the costs of abortions under Medicaid,

because it placed no governmental obstacle in the path of a woman

to choose abortion. See alse Maher v. Roe, 482 U.S. 46), 475-76

(1977) (distinguishing direct state interference with a protected

activity from state encouragement of an alternative activity).

* The court referred to this Courts warning in Denfert’ that

“recordkeeping and record-maintaining provisions must not ve

‘utilized in such a way as to accomplish, through the sheer burden

of recordkeeping detail, what we have ne. today to be an otherwise

unconstitutional restriction 737 F.2d at 302 ‘quoting Plenned

Parenthood v. Danforth, 428 U.S. at 81).

ln Brown, this Court concluded that, “In light of the substantial

evidence of past and present hostility from private persons and

government officials against the SWP. Ohio's campaign disclosure

requirements cannot be constitutionally applied to the Ohio SWP.”

Id. at 102. See alse NAACP vo. Alabama ez rel. Patterson, 357 US.

II. THE PENNSYLVANIA DISCLOSURE REQUIRE-

MENTS ARE NOT JUSTIFIED BY ANY COMPEL-

LING STATE INTEREST AND ARE INCONSIST-

ENT WITH ACCEPTED PRACTICES IN THE

COMPILATION OF HEALTH STATISTICS

A. Pennsylvania Has Not Demonstrated Any Com-

pelling Interests

“Where certain ‘fundamental rights’ are involved, the

Court has held that regulations limiting these rights may

be justified only by a ‘compelling state interest,.) . . and

that legislative enactments must be narrowly drawn to

express only the legitimate state interests at stake.”

Roe v. Wade, 410 U.S. at 155. Pennsylvania has not met,

nor can it meet, this burden.

Pennsylvania’s brief in this Court has not identified

any compelling interests to justify the extraordinary dis-

closure requirements of the 1982 Act.“ In the district

court proceedings subsequent to the court of appeals

decision, Pennsylvania identified four interests allegedly

supporting disclosure of abortion information:

ensuring that shoddy practitioners do not hide be-

hind the corporate veil, aiding citizens in the exer-

cise of their first amendment rights to oppose abor-

tion, providing a pool of statistical and medical

knowledge, and protecting the public's freedom to

449, 462, 466 (1958) (“immunity from state scrutiny of [NAACP]

membership lists” was “so related to the right of the members to

persue their lawful private interests privately and to associate

freely with others in so doing as to come within the protection of

the Fourteenth Amendment,” in light of the showing that disclosure

of the identity of the NAACP’s members had “exposed these mem-

bers to economic reprisal, loss of employment, threat of physical

cvercion, and other manifestations of public hostility.”)

™ Appellants’ discussion of the disclosure requirements is limited

te a footnote: “Of course, our argument that the reporting require-

ments are valid subsumes the related contention that the informa-

tien gathered from these reports must be made available if it is to

be useful.” Brief for Appellants at 63 n.21. Appellants have not,

however, offered any explanation why detailed personal and other

abortion information must be made public to be useful.

26

choose medical providers in accordance with their

beliefs.

1985 district court decision, slip op. at 20.

This Court, however, has recognized only two compel-

ling state interests that justify regulation of abortion:

protection of maternal health and protection of the po-

tential life of the fetus. Roe v. Wade, 410 U.S. at 159.

The state’s interest in the health of the mother arises

after the end of the first trimester and “from and after

this point, a state may regulate the abortion procedure

to the extent that the regulation reasonably relates to

the preservation and protection of maternal health.” Id.

at 163; see also Akron, 462 U.S. at 430. The state’s

interest in potential life arises at viability, when “the

fetus . . . presumably has the capability of meaningful

life outside the mother’s womb.” 410 U.S. at 163. The

state may regulate to protect fetal life after viability,

except that the state may not proscribe abortion when it

is necessary to preserve the life or health of the mother.

Id. at 163-64.

Pennsylvania’s interests in exposing shoddy practition-

ers and collecting statistical information, while periph-

erally related to protection of maternal health and poten-

tial life, do not rise to the level of compelling state in-

terests. See, e.g., 1985 district court decision, slip op. at

42. Moreover, it is difficult to discern why detailed in-

formation about specific abortion providers and their

patients need ever be disclosed to the public to serve

these interests. Information about complications can

more than adequately be monitored by designated health

officials, as is done in other states.

To the extent that the Pennsylvania disclosure provi-

sions are designed to advance the agenda of antiabor-

tionists, they do not serve “compelling state interests.”

% Appellants argued in the subsequent district court proceeding

that if the state may influence women throughout their pregnancies

to forego abortions in favor of childbirth, [it may] .. take the

substantially less intrusive step of providing its citizens with the

27

Insofar as Pennsylvania relies on the interests of third

parties in opposing abortion and boycotting providers of

abortion services, it seeks to accomplish indirectly that

which it cannot do directly: interfere with the woman’s

abortion decision. Danforth held that the state may not

delegate to a spouse the power to veto an abortion which

the state itself is prohibited from exercising. 428 U.S.

at 69. Pennsylvania’s disclosure provisions similarly del-

egate to antiabortionists the power to interfere with the

woman’s right to choose abortion. Akron held that a

state may not adopt regulations designed to influence a

woman’s informed choice between abortion and child-

birth. 462 U.S. at 444. By adopting regulations designed

to permit third parties to influence a woman’s informed

choice, Pennsylvania violates both the letter and spirit

of this Court’s decisions concerning the right to choose

abortion.

B. The Pennsylvania Disclosure Requirements Are In-

consistent with the Practices of Other States, the

Federal Government and Professional Organiza-

tions that Compile Health Statistics

While 26 other states statutorily require reports about

abortions, no other state requires public disclosure of

such reports. Moreover, 23 of those states explicitly man-

date that these reports be treated confidentially.“ The

1982 Act also is inconsistent with procedures of the Cen-

ters for Disease Control of the United States Department

of Health and Human Services (“CDC”) and professional

organizations such as the Alan Guttmacher Institute and

NAF. The procedures of these organizations for collect-

ing and reporting abortion information reflect the ac-

cepted practice of disclosing only aggregate data con-

cerning abortions and abortion practices while maintain-

information essentiai for them to exercise freedom of association.”

Defendants’ Opposition Memorandum at 12. See also the discussion

of the legislative history, supra p. 6.

41 See App. C and D. of the Brief Amici Curiae of the American

Civil Liberties Union, et al.

28

ing confidentiality about specific abortion providers and

their patients.

The objectives of the CDC’s surveillance are to docu-

ment the number and characteristics of women obtaining

abortions and to eliminate preventable mortality and mor-

bidity related to abortion. Centers for Disease Control,

U.S. Dep’t. Health & Human Serv., Abortion Surveil-

lance 1979-1980 at Preface (1983). The CDC achieves

these objectives without sacrificing the confidentiality of

information about abortion providers and their patients.

The CDC collects abortion statistics by state of occur-

rence from health departments, hospitais and/or other

medical facilities and the National Center for Health

Statistics and publishes the collected statistical informa-

tion only in the aggregate.”

The Alan Guttmacher Institute, a private institution

for research, policy analysis and public education, also

protects from disclosure information about specific abor-

tion facilities in its reporting of statistical data about

abortions. The Guttmacher Institute published a survey

in 1983 that analyzed information collected about abor-

tior in the United States in 1979 and 1980 and presented

data in aggregate form only. Even the number of facili-

ties in certain locations was suppressed. The results of

the Guttmacher Institute’s eighth abortion survey cover-

ing the years 1981 and 1982 again were reported in ag-

gregate form only in Abortion Services in the United

States, 1981 and 1982, supra p. 18, at 119.

The Brief Amici Curiae of Watson D. Bowes, Jr., M.D. and

Richard T.S. Schmidt, M.D. in Support of Appellants (“Bowes-

Schmidt Brief”) relies on information collected by the CDC for the

argument that the reporting requirements of § 3214 merely set!“

forth standard bookkeeping requirements” in the area of vita! statis-

tics. Bowes-Schmidt Brief at 3. Appellants also attempt to analogize

the 1982 Act’s disclosure requirements to the CDC’s collection of

data. Brief for Appellants at 61. In addition to some significant

differences between the data collected by the CDC and Pennsylvania,

these arguments fail to point out that the CDC does not make public

the information it collects from specific facilities and physicians.

In the course of its data collection efforts in 1981, the

Guttmacher Institute was unable to collect abortion in-

formation from the state health departments in six rela-

tively large states. Although these states previously had

shared abortion information with the Institute, “due to

local harassment by abortion opponents, many health de-

partments have instituted a policy of confidentiality in

order to encourage provider cooperation with data collec-

tion efforts.” Alan Guttmacher Institute, Abortion Serv-

ices in the United States, Each State & Metropolitan

Area, 1979-1980 at 99 (1983).

NAF also collects and reports aggregate health-related

data about abortions performed by its membership.“

Lire the Guttmacher Institute, NAF treats with confi-

dentiality the data it receives about individual institu-

tions. Further, NAF does not collect or report any in-

formation that would identify or facilitate the identifica-

tion of patients.

The maintenance of complete and accurate records

is important for quality patient care and meaningful

review of services. Reporting of legally induced

abortions to public agencies where required and to

non-public agencies is essential for providing and

improving maternal health and family planning serv-

ices. Confidentiality of individual patient identity is

essential and must be safeguarded in abortion re-

porting.

Reporting Standards, NAF Standards for Quality Care

at 21 (emphasis added).

* NAF requires that its members provide on a quarterly basis the

following health-related data: number of abortions performed;

length of gestation; percentage of patient follow-up contact within

six weeks of the abortion; number of deaths; number of patients

receiving one or more blood transfusions; occurrence of perfora-

tions; occurrence of pelvic infection requiring hospitalization for

at least 72 hours within two weeks of the abortion; and the number

of repeat abortion procedures because of retention of tissue within

one month of the original procedure. Copies of NAF's reporting

forms entitled “Quarterly Abortion Report” and “Individual Com-

plication Report” are being lodged with the Clerk of the Court.

The public disclosure of individualized reports about

- specific abortion providers and patients required by the

1982 Act differs sharply from the accepted practice of

guarding the confidentiality of medical records in gen-

eral.“ Although Pennsylvania no longer treats informa-

tion and documents about abortions with the “confiden-

tiality customarily accorded to medical rvcords,” as it did

under § 6606/d) of the 1974 Abortion Control Act, Penn-

sylvania still requires that the Department of Public Wel-

fare maintain the confidentiality of medical records of

persons applying for medical assistance benefits. 62 Pa.

Cons. Stat. Ann. § 1404‘c) (Purdon Supp. 1985). As

Pennsylvania recognizes the privacy interests of persons

seeking medical assistance benefits, it is difficult to dis-

cern any legitimate rationale for the 1982 Act’s public

disclosure requirements of medical records relating to

abortions.

The public disclosure requirements of the 1982 Act are

not “reasonably directed to the preservation of maternal

health” nor do they “properly respect a patient’s confiden-

tiality and privacy.” Danforth, 428 U.S. at 81. Accord-

ingly, these sections of the 1982 Act must be struck down

as unconstitutional.

CONCLUSION

For all of the foregoing reasons, this Court should af-

firm the decision below of the United States Court of Ap-

peals for the Third Circuit.

Information disclosed to a physician in the physician-patient

relationship is treated confidentially. See, e.g., Principle 5.05 of the

Principles of Medical Ethics, Current Opinions of the Judicial

Council of the American Medical Association (1984): American

Medical Association (“AMA”), Model State Legislation on Con-

fidentiality of Health Care Information (1981); American Medical

Record Association (“AMRA”), Confidentiality of Patient Health

Information (1981); and AMRA, Confidentiality and Security of

Secondary Health Records (1984). In § 3(c) of its model state leg-

‘slation, the AMA defined “confidential health care information” as

“information relating to a person's health care history, diagnosis,

condition, treatment or evaluation.”

Dated :

August 30, 1985

31

Respectfully submitted,

Davin |. SHAPIRO *

SIDNEY DICKSTEIN

KENNETH M. SIMON

Amy G. APPLEGATE

ELAINE METLIN

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

Counsel for

National Abortion Federation

* Counsel of Record

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