794 F.2d 994 (5th Cir. 1986), 81-3750, Margaret S. v. Edwards

Docket Nº:81-3750, 84-3520.
Citation:794 F.2d 994
Party Name:MARGARET S., et al., Plaintiffs-Appellants Cross-Appellees, v. Edwin W. EDWARDS, Governor of the State of Louisiana, et al., Defendants- Appellees Cross-Appellants. MARGARET S., on her own behalf and on behalf of all other similarly situated, et al., Plaintiffs-Appellees, v. Edwin W. EDWARDS, Governor of the State of Louisiana, et al., Defendants-
Case Date:July 18, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 994

794 F.2d 994 (5th Cir. 1986)

MARGARET S., et al., Plaintiffs-Appellants Cross-Appellees,


Edwin W. EDWARDS, Governor of the State of Louisiana, et

al., Defendants- Appellees Cross-Appellants.

MARGARET S., on her own behalf and on behalf of all other

similarly situated, et al., Plaintiffs-Appellees,


Edwin W. EDWARDS, Governor of the State of Louisiana, et

al., Defendants- Appellants.

Nos. 81-3750, 84-3520.

United States Court of Appeals, Fifth Circuit

July 18, 1986

Page 995

Patricia N. Bowers, Asst. Atty. Gen., New Orleans, La., for plaintiffs-appellants cross-appellees.

Suzanne M. Lynn, American Civil Liberties Union, Nan D. Hunter, Wendy E. Wells, Janet Benshoff, Diana Troub, New York City, Jane Johnson, New Orleans, La., for defendants-appellees cross-appellant.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, HIGGINBOTHAM, and DAVIS, Circuit Judges.


We are asked to decide the constitutionality of two statutory provisions through which Louisiana has sought to regulate the practice of abortion. One provision requires that the attending physician inform his patient, within twenty-four hours after she undergoes an abortion, that she may exercise one of several options for the disposition of the fetal remains. The other forbids "experimentation" on the fetal remains of an abortion. We are persuaded that the first provision must be declared unconstitutional under City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 2502, 76 L.Ed.2d 687 (1983), and that the second is unconstitutionally vague.


It is no secret that the Supreme Court's abortion jurisprudence has been subjected to exceptionally severe and sustained criticism. Quite apart from the highly visible political controversies revolving around the morality of abortion, the major judicial decisions in this area have been vigorously attacked--from within the Court 1 as well as by a broad range of distinguished constitutional scholars 2--for the manner in which they interpret the Constitution. Because our duty is to apply the law as it has been stated by the Supreme Court and because the wisdom and coherence of the Court's doctrines have already been the subject of such thorough debate, we see no

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reason to offer our own evaluation of the Court's work. And because we think that this case is easily decided under current law, we have no occasion to address the difficulties that are often encountered when the answer to a close question has to be drawn from a problematic jurisprudence. 3


This appeal is the latest episode in a long effort by Louisiana to exercise its police power over a practice to which the courts have given considerable protection. Indeed, the state seeks "to regulate abortion to the extent permitted by the decisions of the United States Supreme Court." La.Rev.Stat.Ann. Sec. 40:1299.35.0 (West Supp.1986). 4 Although one would not think that there is anything inherently suspect about a state's undertaking to regulate in the abortion area, 5 Louisiana has repeatedly encountered constitutional objections to portions of its regulatory schemes. In

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1978, a regulatory statute was enacted, but several of its provisions were struck down by the district court. Margaret S. v. Edwards, 488 F.Supp. 181 (E.D.La.1980). The Louisiana legislature promptly passed another statute, La.Rev.Stat.Ann. Secs. 40:1299.35.0-40:1299.35.18 (West Supp.1986), and the district court just as promptly enjoined the enforcement of certain of its provisions. After granting motions for partial summary judgment and holding a bench trial on most of the remaining provisions in 1981, the district court declared most of the statute's major provisions unconstitutional in 1984. Margaret S. v. Treen, 597 F.Supp. 636 (E.D.La.1984). Because of United States Supreme Court decisions handed down between the time of trial and the 1984 decision, the state has elected to defend only the two statutory provisions now before us.

This case has been prosecuted by certified classes of women and physicians. The state has not urged any serious standing issues, perhaps because the Supreme Court has visibly relaxed its traditional standing principles in deciding abortion cases. Compare Roe v. Wade, 410 U.S. 113, 123-29, 93 S.Ct. 705, 711-15, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 187-89, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973), with Roe v. Wade, 410 U.S. at 171-72, 93 S.Ct. at 736 (Rehnquist, J., dissenting), and Doe v. Bolton, 410 U.S. at 222-23, 93 S.Ct. at 763 (White, J., dissenting). Because we see no reason to suppose that the Supreme Court would find a standing problem with these plaintiff classes, we turn immediately to the merits of the case.


La.Rev.Stat.Ann. Sec. 40:1299.35.14, together with its implementing regulations, requires the attending physician, within twenty-four hours after performing an abortion, to inform the woman that she can choose to have the fetus cremated, buried, or disposed of as waste tissue. 6 The state contends that because this information is to be provided to the woman only after the abortion, any burden on her constitutional rights is de minimis.

The district court decided that "[t]he woman's privacy right encompasses the entire process surrounding the abortion," 597 F.Supp. at 671; that the law in question "suggests to the woman that [the state] equates abortion with the taking of a human life ... [and] thus penalizes those women who do exercise their constitutional right in choosing abortion," id. at 670 (citations omitted); and that the law "intrudes into the doctor-patient relationship ... [and

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thus] unreasonably places 'obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision,' "id. at 671 (quoting City of Akron, 103 S.Ct. at 2501 (quoting Whalen v. Roe, 429 U.S. 589, 604 n. 33, 97 S.Ct. 869, 879 n. 33, 51 L.Ed.2d 64 (1977))).

Because there are clearer and narrower grounds on which this statutory provision must be declared unconstitutional, we need not approve or disapprove the rationales relied on by the district court. Instead, we note that the City of Akron Court invalidated a law requiring that physicians personally disclose certain important information to women before performing an abortion: the Court held that "it is unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent." 103 S.Ct. at 2503. 7 Because there is no question about the state's strong interest in ensuring that physicians obtain the patient's informed consent before performing abortions, 8 it follows a fortiori that Louisiana's statute--which insists that physicians personally disclose the less important information about disposition of fetal remains--is unconstitutional. In so holding, we do not decide whether a statute similar to Louisiana's, which allowed someone other than the attending physician to inform the patient about her options for the disposition of the fetal remains, would be constitutional. 9


La.Rev.Stat.Ann. Sec. 40:1299.35.13 provides: "No person shall experiment on an unborn child or a child born as the result of an abortion, whether the unborn child or child is alive or dead, unless the experimentation is therapeutic to the unborn child or child." 10 La.Rev.Stat.Ann. Sec. 40:1299.35.18 imposes criminal penalties for violating this or any other section of the abortion statute. 11 The district court offered several alternative rationales for invalidating this provision. 597 F.Supp. at 673-76. Although we agree that this statutory provision is unconstitutional, we neither approve nor disapprove any of the rationales put forth by the district court.

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Our holding is based solely on our conclusion that the use of the terms "experiment" and "experimentation" makes the statute impermissibly vague.

A state's legislative enactment is void for vagueness under the due process clause of the fourteenth amendment if it "is inherently standardless, enforceable only on the exercise of an unlimited, and hence arbitrary, discretion vested in the state." Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir.1983). This test requires that the law be vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). The vagueness doctrine has been applied with considerable stringency to a law that required physicians to use professional diligence in caring for the life and health of a viable aborted fetus. Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).

The plaintiffs' expert witness offered unrebutted testimony, which we find quite plausible, that physicians do not and cannot distinguish clearly between medical experiments and medical tests. As the expert witness pointed out, every medical test that is now "standard" began as an "experiment" that became standard through a gradual process of observing the results, confirming the benefits, and often modifying the technique. Thus, as the witness concluded, "we have at one end things that are obviously standard tests and [at] the other end things that are complete experimentation. But in the center there is a very broad area where diagnostic procedures of testing types overlap with experimentation procedures...." Indeed, as the challenged statute itself seems to acknowledge, even medical treatment can be reasonably described...

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