Women's Community Health Ctr., Inc. v. Cohen

Decision Date13 September 1979
Docket Number79-165 P.,Civ. No. 79-162 P
Citation477 F. Supp. 542
PartiesWOMEN'S COMMUNITY HEALTH CENTER, INC., et al., Plaintiffs, v. Richard S. COHEN, Attorney General of the State of Maine, Defendant. Nancy H. STEWART, Plaintiff, v. Michael PETIT et al., Defendants.
CourtU.S. District Court — District of Maine

Roy Lucas, Lynn I. Miller, Louis R. Stern, Lucas & Miller, Washington, D. C., Cushman D. Anthony, William H. Howison, Anthony, Howison & Hayden, Portland, Me., for plaintiffs in No. 79-162 P.

Ralph I. Lancaster, Jr., Portland, Me., James Bopp, Jr., Francis & Brames, Terre Haute, Ind., for potential intervenors.

Gerald F. Petruccelli, Robert E. Mittel, Portland, Me., for plaintiffs in No. 79-165 P.

Richard S. Cohen, Atty. Gen., James E. Smith, Asst. Atty. Gen., Augusta, Me., for defendants.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, Chief Judge.

Plaintiffs in these consolidated actions under the Civil Rights Act of 1871, 42 U.S.C. § 1983, seek declaratory and injunctive relief against the enforcement of two statutes regulating the performance of abortions, recently enacted by the Maine Legislature and approved by the Governor, to take effect on September 14, 1979. The first of these statutes, 22 Me.Rev.Stat.Ann. § 1597, enacted by Chapter 413 of the Public Laws of Maine, 1979, requires parental notification of an unemancipated minor's decision to undergo an abortion. The second statute, 22 Me.Rev.Stat.Ann. § 1598, enacted by Chapter 360 of the Public Laws of Maine, 1979, requires the attending physician to counsel a woman in order to ensure that her consent to an abortion is truly informed, and further requires a 48-hour waiting period between the informed consent counseling and the performance of the abortion. Both statutes are challenged as impermissibly interfering with the constitutional right of a woman, in consultation with her physician, to terminate her pregnancy, as that right was established by Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.E.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1978). The matter is now before the Court on plaintiff's motions for a preliminary injunction. A hearing on the motions was held on September 6, 1979. A preliminary record has been made, and the issues have been comprehensively briefed and argued.

I The Parties

Plaintiffs are Women's Community Health Center, Inc. (WCHC), a Florida corporation providing nonmedical aspects of abortion care in South Portland, Maine; Paul G. Savidge, M.D., a duly licensed Maine physician who regularly performs abortions at WCHC, who appears on his own behalf and as representative of a class, certified by the Court, consisting of all physicians in the State of Maine who, on a regular basis, treat adult and minor women seeking abortion services; and Nancy H. Stewart, M.D., a duly licensed Maine physician practicing medicine in Bar Harbor, Hancock County, Maine, who appears on her own behalf and as representative of a class, certified by the Court, consisting of all physicians in the State of Maine who perform abortions whose patients are affected by the passage of Laws of Maine, 1979, c. 360 and c. 413.

Defendants are Richard S. Cohen, Attorney General of the State of Maine; Michael Petit, Commissioner of the Department of Human Services of the State of Maine; and Michael Povich, District Attorney for Prosecutorial District 7, which includes Hancock County. Intervening defendants are Dr. Ronald and Mary Lou Carroll who have been permitted to intervene on behalf of themselves as parents of an unmarried minor daughter of childbearing age.

II The Preliminary Injunction Standard

In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction. Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978); Grimard v. Carlston, 567 F.2d 1171, 1173 (1st Cir. 1978); Morgan v. Kerrigan, 509 F.2d 618, 619 (1st Cir. 1975); Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969); Automatic Radio Manufacturing Co. v. Ford Motor Co., 390 F.2d 113 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). In order to prevail, plaintiff must satisfy each of the four criteria. Id.

The parties agree that to the extent the challenged statutory provisions impermissibly burden a woman's abortion decision, plaintiffs have clearly shown that they will suffer irreparable injury if the injunction is not issued, that such injury outweighs any harm which granting injunctive relief would inflict on defendants, and that the public interest will not be adversely affected, indeed will be served, by the granting of the injunction. The only issue to be decided, therefore, is whether plaintiffs have demonstrated a sufficient likelihood of success on the merits. To sustain their burden, plaintiffs must show at most a probability, Keefe v. Geanakos, supra at 360; Automatic Radio Manufacturing Co. v. Ford Motor Co., supra at 115, and at least a substantial possibility, Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971), of prevailing on the merits.1

III The Constitutional Standard

In Roe v. Wade, supra, the Supreme Court held that the constitutional "right of privacy . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Id., 410 U.S. at 153, 93 S.Ct. at 727. The Court explained that this right, although fundamental, "is not unqualified and must be considered against important state interests in regulation." Id. at 154, 93 S.Ct. at 727. The Court recognized that "regulation limiting . . . fundamental 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." Id. at 155, 93 S.Ct. at 728 (citations omitted). The Court went on to say that the State has a valid interest in the mother's health, which becomes compelling after the first trimester of pregnancy, and also a valid interest in the protection of a potential human life, which becomes compelling when the fetus becomes viable, usually during the third trimester of pregnancy. Id. at 163-64, 93 S.Ct. 705. But the Court concluded that during the first trimester "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," id. at 164, 93 S.Ct. at 732, "free of interference by the State." Id. at 163, 93 S.Ct. at 732.

Decisions subsequent to Roe make clear that not all regulation of first trimester abortions is impermissible. If the challenged state action does not impinge upon a woman's decision to have an abortion and does not place obstacles in the path of effectuating that decision, the regulation need only be justified by a rational relationship to a legitimate state purpose. Maher v. Roe, 432 U.S. 464, 478-80, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (state funding for childbirth but not abortion permissible). See Menillo v. Connecticut, 423 U.S. 9, 11, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam) (state criminal statute proscribing unlicensed physician from performing abortions does not impinge on abortion decision); Baird v. Department of Public Health, 599 F.2d 1098 at 1102 (1st Cir. 1979). If the regulation does impinge upon a woman's abortion decision or the means of effectuating it, the regulation still "is not unconstitutional unless it unduly burdens the right to seek an abortion." Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (Belotti I) (emphasis supplied). See also Maher v. Roe, supra, 432 U.S. at 473-74, 97 S.Ct. 2376. If the regulation unduly burdens the abortion decision, it must be justified by a compelling state interest. Carey v. Population Services International, 431 U.S. 678, 686, 688, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. 705.2 If, on the other hand, the regulation impinges upon the abortion decision without unduly burdening it, it will be sustained if it reasonably furthers a proper state purpose. See Planned Parenthood v. Danforth, supra note 2, at 65-67, 96 S.Ct. 2831 (State can require prior written consent of abortion patient), 80-81, 96 S.Ct. 2831 (physician reporting and recordkeeping requirement related to patients' health upheld). Thus, "as Whalenv. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) makes clear, the right in Roe v. Wade can be understood only by considering both the woman's interest and the nature of the State's interference with it." Maher v. Roe, supra, 432 U.S. at 473, 97 S.Ct. at 2382.

With these principles in mind, the Court will separately consider the constitutionality of each of the challenged Maine statutes.

IV The Constitutionality of the Challenged Maine Statutes

Defendants concede that the challenged statutory provisions impinge upon a woman's abortion decision or her ability to effectuate that decision. Defendants also agree that the statutes apply to first trimester abortions, as well as second and third trimester abortions. Defendants offer no compelling state interest to sustain the statutes. Accordingly, the Court must determine with respect to each statutory provision whether it imposes an undue burden on a woman's constitutional right, in consultation with her physician, to choose to terminate her pregnancy.

A. 22 Me.Rev.Stat.Ann. § 1597: Parental Notification

Section 1597 of 22 Me.Rev.Stat.Ann., which is set forth in the Appendix, requires a physician, prior to performing an abortion on an unemancipated minor who is less than 17 years of age, to give...

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