Planned Parenthood of Central Mo. v. Danforth

• Decision Date: 31 January 1975
• Docket Number: No. 74-416C (A).,74-416C (A).
• Citation: 392 F. Supp. 1362
• Court: U.S. District Court — Eastern District of Missouri
• Parties: PLANNED PARENTHOOD OF CENTRAL MISSOURI, a Missouri Corporation, et al., Plaintiffs, v. John C. DANFORTH, Attorney General of the State of Missouri, and J. Brendan Ryan, Circuit Attorney of the City of St. Louis, Missouri, Defendants.

392 F. Supp. 1362

PLANNED PARENTHOOD OF CENTRAL MISSOURI, a Missouri Corporation, et al., Plaintiffs, v. John C. DANFORTH, Attorney General of the State of Missouri, and J. Brendan Ryan, Circuit Attorney of the City of St. Louis, Missouri, Defendants.

No. 74-416C (A).

United States District Court, E. D. Missouri, E. D.

January 31, 1975.

COPYRIGHT MATERIAL OMITTED

Frank Susman, Clayton, Mo., for plaintiffs.

John C. Danforth, Atty. Gen., Jefferson City, Mo., John F. White, Asst. Circuit Atty., St. Louis, Mo., for defendants.

Before WEBSTER, Circuit Judge, WANGELIN, District Judge, and HARPER, Senior District Judge.

MEMORANDUM OPINION

HARPER, Senior District Judge.

This is an action by plaintiffs seeking to have declared as unconstitutional certain provisions of House Bill No. 1211 (hereinafter referred to as House Bill 1211), passed by the Missouri General Assembly on April 30, 1974, and signed into law on June 14, 1974, and for an injunction against the enforcement of the challenged provisions of the Bill.

Plaintiffs are Planned Parenthood of Central Missouri (hereinafter referred to as Planned Parenthood), a not-for-profit Missouri corporation which maintains facilities for the performance of abortions in Columbia, Missouri; David Hall, a resident of the State of Missouri who supervises abortions at the Columbia Planned Parenthood facility as a duly licensed physician; and Michael Freiman, a resident of Missouri who performs abortions as a duly licensed physician at the Barnes and Jewish Hospitals in St. Louis, Missouri, and at a St. Louis abortion clinic operated by Reproductive Health Services, Inc. Plaintiffs bring this action on their own behalf and on behalf of the class of physicians desiring to perform pregnancy termination services, and on behalf of the class of their patients who seek abortions. The complaint charges that certain provisions of House Bill 1211 are invalid in that they deprive plaintiffs and their patients of various alleged constitutional rights, including the privacy of the doctor-patient relationship, the physician's right to the free exercise of medical practice, the right of a woman to determine whether to bear children, the right to life of their patients and the right to receive adequate medical treatment, all in violation of the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. The petition further alleges that the legislation is violative of the rights of due process and equal protection guaranteed plaintiffs and their patients under the Constitution, and that it imposes a cruel and unusual punishment upon women by forcing them to bear pregnancies which they conceive.

Jurisdiction of the Court is invoked under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281 and 2284, and under 42 U.S. C. § 1983. Because of the claim for injunctive relief, a three-judge court was convened pursuant to 28 U.S.C. § 2281.

In their initial application for a temporary restraining order plaintiffs challenged only Sections 2(2), 6(1), 7 and 9. At the hearing for a preliminary injunction plaintiffs expanded their challenge to include Sections 3(3) and 3(4). During discovery plaintiffs additionally attacked Sections 3(2), 10 and 11. On the day defendants submitted their trial brief, plaintiffs advised defendants of their intention to challenge Sections 5, 6(3) and 8, and the next day Section 4 was included. On the day of trial defendants' motion for continuance as to Sections 4, 5, 6(3) and 8 was granted, and the Court proceeded to trial on the other provisions and set a later date to complete the trial on the late challenged provisions. At the close of the hearing plaintiffs withdrew their challenge to those provisions.

The challenged portions of House Bill 1211 provide as follows:

"Section 2. Unless the language or context clearly indicates a different meaning is intended, the following words or phrases for the purpose of this act shall be given the meaning ascribed to them:

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"(2) `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;

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"Section 3. No abortion shall be performed prior to the end of the first twelve weeks of pregnancy except:

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"(2) After the woman, prior to submitting to the abortion, certifies in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion.

"(3) With the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother.

"(4) With the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother.

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"Section 6. (1) No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter and upon conviction shall be punished as provided in Section 559.140, RSMo. Further, such physician or other person shall be liable in an action for damages as provided in Section 537.080, RSMo.

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"Section 7. In every case where a live born infant results from an attempted abortion which was not performed to save the life or health of the mother, such infant shall be an abandoned ward of the state under the jurisdiction of the juvenile court wherein the abortion occurred, and the mother and father, if he consented to the abortion, of such infant shall have no parental rights or obligations whatsoever relating to such infant, as if the parental rights had been terminated pursuant to section 211.411 (sic), RSMo. The attending physician shall forthwith notify said juvenile court of the existence of such live born infant.

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"Section 9. The general assembly finds that the method or technique of abortion known as saline amniocentesis whereby the amniotic fluid is withdrawn and a saline or other fluid is inserted into the amniotic sac for the purpose of killing the fetus and artificially inducing labor is deleterious to maternal health and is hereby prohibited after the first twelve weeks of pregnancy.

"Section 10. 1. Every health facility and physician shall be supplied with forms promulgated by the division of health, the purpose and function of which shall be the preservation of maternal health and life by adding to the sum of medical knowledge through the compliation of relevant maternal health and life data and to monitor all abortions performed to assure that they are done only under and in accordance with the provisions of the law.

"2. The forms shall be provided by the state division of health.

"3. All information obtained by physician, hospital, clinic or other health facility from a patient for the purpose of preparing reports to the division of health under this section or reports received by the division of health shall be confidential and shall be used only for statistical purposes. Such records, however, may be inspected and health data acquired by local, state, or national public health officers.

"Section 11. All medical records and other documents required to be kept shall be maintained in the permanent files of the health facility in which the abortion was performed for a period of seven years."

House Bill 1211 concludes with a clause declaring that the provisions of the Act are severable, so that judicial invalidation of any provision shall not affect such remaining provisions as can be given effect in the absence of the invalid provision.

The threshold question for consideration is the justiciability of this litigation. The individual plaintiff-physicians have standing as to each of the challenged provisions of House Bill 1211 by reason of the criminal sanctions imposed under that Act. In holding that the Georgia physicians who attacked that state's abortion legislation in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), presented a justiciable controversy, the Supreme Court stated at page 188, 93 S.Ct. at page 745 of their opinion:

"The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (D.C.Kan.1972)."

Section 6(1) of House Bill 1211 provides that an attending physician who fails to exercise the prescribed standard of care to protect an aborted fetus shall be deemed guilty of manslaughter. In addition, Section 14 provides that any person who performs an abortion in violation of the requirements set forth elsewhere in the Act will be guilty of a misdemeanor. This statute is "recent and not moribund", Doe v. Bolton, supra, and we may assume that violations thereof will be actively prosecuted.

Due to the obvious standing of the physician-plaintiffs in this case, the Court deems it unnecessary to pass upon the question of Planned Parenthood's standing to challenge House Bill 1211. See Doe v. Bolton, supra, page 189, 93 S.Ct. 739.

In January of 1973, the United States Supreme Court in the case of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, ...