Karlin, Planned Parenthood Wisconsin v. Foust
| Decision Date | 09 August 1999 |
| Docket Number | 98-2262,Nos. 98-2043,s. 98-2043 |
| Citation | 188 F.3d 446 |
| Parties | (7th Cir. 1999) Elizabeth Karlin, M.D.; Planned Parenthood of Wisconsin, Inc.; Gary T. Prohaska, M.D.; Dennis D. Christensen, M.D.; and Summit Women's Health Organization, on behalf of themselves and their patients seeking abortions, Plaintiffs-Appellants, Cross-Appellees, v. C. William Foust, in his official capacity as District Attorney for Dane County and a representative of the class of all district attorneys in Wisconsin; James E. Doyle, in his official capacity as Attorney General of Wisconsin; James Chambers, Michael Mehr, B. Ann Nevaiser, James Esswein, Rudolfo Molina, W.R. Schwartz, Mikki Patterson, Sidney Johnson, Sandra Makhorn, Pablo Pedraza, Glenn Hoberg, Wanda Roever, Ronald Grossman, and Darold Treffert, in their official capacities as members of the Wisconsin Medical Examining Board; Elaine August, Timothy D. Burns, Bonnie M. Creighton, Ruth E. Lindgren, Pamela A. Maxon, Lorraine A. Norem, Roberta P. Overby, McArthur Weddle, and Ann Brewer, in their official capacities as members of the Wisconsin Board of Nursing; Muriel Harper, Virginia Heinemann, Cornelia Hempe, Douglas Knight, and Anita Kropf, in their official capacities as members of the social worker section of the Wisconsin Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors; Joseph Leean, in his official capacity as Secretary of the Wisconsin Department of Health and Family Services; and K.B. Piper, in his official capacity as Administrator of the Division of Health of the Wisconsin Department of Health and Family Services, Defendants-Appellees, and E. Michael McCann, in his official capacity as District Attorney for Milwaukee County, Defendant-Appellee, Cross-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Western District of Wisconsin. No. 96 C 374--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]
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Before Cudahy, Coffey, and Kanne, Circuit Judges.
This case involves a number of facial constitutional challenges to Assembly Bill 441 ("AB 441"), which repealed and recreated Wisconsin's abortion informed consent statute, Wis. Stat. sec. 253.10, to require physicians who perform abortions to meet with their patients at least twenty-four hours before the abortion procedure to provide the patients with specific oral and printed information. The district court found most of the provisions of AB 441 constitutional after severing certain provisions and construing others as not requiring physicians to provide certain information to women who are pregnant as a result of sexual assault or incest or to women whose fetuses have been diagnosed with a lethal anomaly. Plaintiffs now appeal this decision. Plaintiffs contend that a number of AB 441's provisions are unconstitutional because they either (1) are impermissibly vague or (2) place an "undue burden" on a woman's right to obtain an abortion. Defendant McCann also appeals, challenging the district court's ruling that certain information need not be provided to sexual assault or incest victims. For the following reasons, we affirm in part and reverse in part.
In 1996, Wisconsin enacted AB 441, which repealed and recreated Wisconsin's abortion informed consent statute, Wis. Stat. sec. 253.10. AB 441 contemplates a number of comprehensive changes to the informed consent structure maintained under the previous informed consent statute.1
Similar to the previous informed consent statute, under AB 441, an abortion may not be performed by a physician unless the patient has given her voluntary and informed written consent. See id. sec. 253.10(3)(a). Consent to an abortion is considered "voluntary" under AB 441 only if it "is given freely and without coercion by any person." Id. sec. 253.10(3)(b). For a woman's consent to be considered "informed," AB 441 requires that two tiers of information be provided to her at least twenty-four hours before the abortion is to be performed. Under the first tier, either the physician who will perform the abortion or any other "qualified physician"2 must meet with the woman in person and orally provide her the information set forth in sec. 253.10(3)(c)1.3 Under the second tier the information set forth in sec. 253.10(3)(c)24 must also be orally provided to the woman in person at least twenty-four hours prior to the scheduled abortion, although this information may be conveyed by qualified persons other than the physician performing the abortion or a qualified physician. The person providing the latter information must also give the woman specified state-provided printed materials. See id. sec.sec. 253.10(3)(c)2.d, (3)(d). Both tiers of information must be conveyed to the woman "in an individual setting that protects her privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances." Id. sec. 253.10(3)(c)3. In that setting, the provider(s) of the information must also afford the woman an adequate opportunity to ask questions. See id. sec. 253.10(3)(c)4. In addition, prior to the performance of the abortion, the woman must certify in writing that (1) she received the information required under AB 441; (2) the information was provided in the appropriate setting; and (3) all of her questions were answered in a satisfactory manner. See id. sec. 253.10(5)(c)5.
AB 441's twenty-four hour waiting period and informed consent requirements may be waived in the case of a "medical emergency." Id. sec. 253.10(3)(f). A "medical emergency" is defined as:
[A] condition, in a physician's reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.
Id. sec. 253.10(2)(d). If the physician determines that a medical emergency exists, the physician must inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's "reasonable medical judgment" that an immediate abortion is necessary and, if possible, obtain the woman's written consent prior to the abortion. See id. sec. 253.10(3)(f).
AB 441 makes certain accommodations for women seeking abortions who became pregnant as the result of sexual assault or incest. See id. sec. 253.10(3m). A woman who is the victim of sexual assault may bypass AB 441's twenty-hour waiting period and undergo an immediate abortion if she satisfies certain reporting requirements. See id. sec. 253.10(3m)(a). Similarly, if the woman is a victim of incest, the twenty-four hour period can be reduced to two hours if she satisfies comparable reporting requirements. See id. sec. 253.10(3m)(b).
AB 441 also provides that a physician must comply with the same informed consent and waiting period requirements if the woman seeking the abortion is a minor. See id. sec.sec. 253.10(3)(a), (3)(c)7. However, in addition to the minor's informed and voluntary consent, the physician must also obtain the voluntary and informed consent under sec. 253.10 of one of the minor's parents or a qualified parent substitute before the physician may perform the abortion. See id. sec. 253.10(3)(c)7; see also id. sec. 48.375(4) (a)(1). As with adult women, a minor's informed consent may be waived if the physician determines that a "medical emergency" exists as defined under AB 441.
AB 441 contains three enforcement mechanisms. Section 253.10(5) provides that any person who violates sec. 253.10(3), sec. 253.10(3m)(a)2, or sec. 253.10(3m)(b)2 "shall be required to forfeit not less than $1,000 nor more than $10,000." In addition, AB 441 provides that a person who violates those same provisions may be liable to the woman upon whom the abortion was performed for compensatory damages, punitive damages ranging from $1000 to $10,000, and attorneys' fees. See id. sec. 253.10(6). Finally, a physician who violates sec. 253.10(3) may also be subject to professional discipline, ranging from limitations on to revocation of his or her license. See id. sec. 441.07(1)(f); sec. 448.02(3)(a); sec. 457.26(2)(gm).
Plaintiffs are physicians who provide abortions and organizations that operate facilities where abortion services are provided.5 Defendants are a number of various state government officials who are charged with implementing and enforcing AB 441. On May 1, 1996, one day after AB 441 was signed into law, plaintiffs filed suit seeking declaratory and injunctive relief from all provisions of AB 441, both on their own behalf and on behalf of their patients seeking abortions. Plaintiffs alleged that AB 441 violated their rights and the rights of their patients as guaranteed by the First and Fourteenth Amendments and sought a temporary restraining order and a preliminary injunction barring defendants from enforcing AB 441. The district court granted the temporary restraining order on May 6, 1996, which the parties agreed to extend until the district court ruled on plaintiffs' preliminary injunction motion. Plaintiffs' preliminary injunction motion was subsequently converted to a motion for permanent injunction which the district court heard in June 1996.
Before the district court, plaintiffs facially challenged the constitutionality of AB 441 on three grounds. First, plaintiffs alleged that a number of AB 441's provisions were unconstitutionally vague. Second, plaintiffs contended that AB 441 was unconstitutional under Planned Parenthood of Southeastern...
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