Jones v. Smith

Citation474 F. Supp. 1160
Decision Date13 July 1979
Docket NumberNo. 79-6403-CIV-SMA.,79-6403-CIV-SMA.
PartiesJohn JONES, M.D., on his own behalf and on behalf of all others similarly situated, Plaintiff, v. James C. SMITH, Attorney General of Florida and Michael J. Satz, State Attorney Seventeenth Judicial Circuit, Florida, Defendants.
CourtU.S. District Court — Southern District of Florida

Mary Ellen Shoemaker, Fort Lauderdale, Fla., Joel V. Lumer, Coral Gables, Fla., co-counsel, for plaintiff.

Martin S. Friedman, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendants.

MEMORANDUM OPINION and INJUNCTIVE ORDER

ARONOVITZ, District Judge.

In June, 1979, the Florida Legislature enacted a Medical Practices Act, ("the Act"), Chapter 458, Florida Statutes which contains a section regulating the termination of pregnancies in Florida (Section 458.505 Florida Statutes). The bill was signed by the Governor on June 29, 1979 and became law on July 1. Clause (9) of Section 458.505 makes it a criminal offense to perform or participate in pregnancy terminations in violation of the requirements set forth in the Act.

Plaintiff, a medical doctor, filed this class action complaint against James C. Smith, Attorney General of Florida and Michael J. Satz, State Attorney for the Seventeenth Judicial Circuit of Florida, on July 5, 1979 seeking a Declaratory Judgment that Section 458.505 of the Florida Statutes is unconstitutional on its face and preliminary and permanent injunctions enjoining the Defendants from prosecuting the Plaintiff or members of his class for any alleged violation of this section.

Specifically, Plaintiff challenges the constitutionality of (1) clause (4)(a) of Section 458.505,1 which regulates abortions of unmarried pregnant women under 18 years of age, and (2) clause (4)(b)2 which regulates abortions of married women. Under the Act, an unmarried minor who desires an abortion must provide her physician with either the written informed consent of a parent, custodian, or legal guardian or an order from the Circuit Court. A married woman who desires an abortion must give notice of the proposed abortion to her husband (the notice requirement does not apply if the husband and wife are "separated or estranged") and allow him the opportunity to consult with her concerning the procedure. The wife must provide the physician with either her written statement that such notice and opportunity have been given or with the written consent of the husband.

Plaintiff alleges that Section 458.505 of the Act violates the Fourteenth Amendment and is unconstitutional on its face because it places an undue burden upon the fundamental right of women to terminate their pregnancies during the first trimester. Plaintiff alleges further that the specific provisions that apply to minor unmarried women and all married women impose unconstitutional burdens on the fundamental right to privacy of Plaintiff and his class. Finally, Plaintiff alleges that the statute violates the Equal Protection Clause by creating two classifications of women under eighteen (unmarried and married) and two classifications of women over the age of eighteen (married and unmarried), classifications that result in dissimilar treatment of the classes unsupported by any compelling governmental interest.

On July 6, 1979, Plaintiff filed a Motion for Preliminary Injunction, requesting an expedited hearing. Accordingly, the matter came on for hearing before this Court on July 10, 1979, for the presentation of evidence and argument directed to Plaintiff's request for preliminary injunctive relief. At the hearing, the Court heard testimony of witnesses for the Plaintiff and heard argument by counsel for both sides. Defendants offered no testimony. Thereafter, upon the Court's request, the parties submitted post-hearing briefs directed toward the issues raised in Plaintiff's Complaint and Motion for Preliminary Injunction. The Court has carefully reviewed and considered the entire record, including the evidence and argument presented at the hearing and the post-hearing briefs and concludes that a preliminary injunction should issue for that portion of relief sought herein relating to unmarried pregnant minor females under eighteen (18) years of age, but should be denied as to relief sought for the pregnant married women.

STANDING AND CLASS ACTION CERTIFICATION

Plaintiff, John Jones, M.D., is an obstetrician and gynecologist who has been practicing medicine since 1973. As alleged in the Complaint and restated in Plaintiff's testimony at the Preliminary Injunction hearing, Dr. Jones has been practicing medicine in Broward County since August, 1978. As part of his practice, Plaintiff performs abortions at Plantation General Hospital and at the SIGMA Reproductive Health Center in Broward County on both unmarried women under eighteen (18) and married women during their first trimester of pregnancy. According to his testimony, he has appointments to perform such abortions in the near future.

Plaintiff brought this suit as a class action and has moved the Court for an Order certifying the following classes:

(1) All unmarried, minor pregnant women desiring to terminate their pregnancies, and their physicians, and

(2) All married pregnant women desiring to terminate their pregnancies, and their physicians.

Argument was not advanced specifically upon Plaintiff's Motion to Certify a Class and the Defendant has not been afforded an opportunity to file a written response to this Motion. Nevertheless, the issue of standing was addressed by the parties at the hearing on preliminary injunction, and the Court finds that this action should be certified as a class action for the purpose of the preliminary injunction without prejudice to Defendants' rights to present subsequent argument to decertify the class should the Defendants deem it appropriate to address class certification further.

An action may be maintained as a class action if the four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure are satisfied and, in addition, the action meets the requirements of one of the subsections of Rule 23(b). Although only the issue of standing was raised at the hearing, it is apparent to this Court that this case fits the requirements of Rule 23.

First, it is beyond dispute that the class is so numerous that joinder of all members is impracticable. Rule 23(a)(1). Second, these are common questions of fact and law, for the constitutionality vel non of the statute will have a common impact on the patients and doctors comprising each of the above described subclasses. Rule 23(a)(2).

Whether the named Plaintiff presents claims that are typical of the class (Rule 23(a)(3)) and whether the representative party will fairly and adequately protect the interests of the class appear to present more complex questions since the Plaintiff, a doctor, purports to represent the interests of pregnant women. However, these questions have been considered fully by the Supreme Court in determining the existence and scope of physicians' standing in abortion cases. In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) the Court concluded that the physician-appellants had standing to challenge the Georgia abortion statutes although none of them had been prosecuted or threatened with prosecution for violation of these laws. In Singelton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), the Court expanded the representative rights of doctors, concluding that it is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.3 428 U.S. at 118, 96 S.Ct. 2868. Therefore, this Court concludes that the named Plaintiff in this action, a doctor who performs abortions, has standing to represent both the class of unmarried pregnant women under 18 who desire abortions, together with their physicians, and the class of married, pregnant women who desire abortions, together with their physicians. The Court finds further that the claims raised by the named Plaintiff are typical of the class and that the doctor-patient relationship insures that the representative doctor will fairly and adequately protect the interests of the class. Whether or not the class representation would be expanded to include other representatives, upon petition, is a matter the Court would address if it arises.

Finally, it is clear that injunction relief with respect to the class is appropriate in that the Defendants have stipulated that they would enforce the challenged provisions of the abortion statute against members of the designated classes. Therefore, the case is properly maintainable as a Rule 23(b)(2) action.

SUPREME COURT RULINGS ON ABORTION

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) the Supreme Court concluded that the right of privacy encompasses a woman's decision whether or not to terminate her pregnancy. 410 U.S. at 153, 93 S.Ct. 705. It rejected Plaintiffs' argument that the woman's right is absolute, concluding that the permissible scope of state regulation increased as the pregnancy progressed. However, for the first twelve weeks of pregnancy, (the period generally referred to as the first trimester), "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician" without interference from the state. 410 U.S. at 164, 93 S.Ct. at 732.

In Roe, the Supreme Court did not find it necessary to decide the constitutionality of state statutory provisions requiring minors to obtain written consent from their parents or requiring married women to obtain written consent from their husbands. These issues were addressed squarely by the Court three years later in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). In Danforth, the Court held that a state may not constitutionally require the consent of the spouse of a married woman or parent...

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