Reproductive Health Service v. Webster, s. 87-1641

• Decision Date: 13 July 1988
• Docket Number: Nos. 87-1641,87-2157,s. 87-1641
• Citation: 851 F.2d 1071
• Parties: REPRODUCTIVE HEALTH SERVICE; Planned Parenthood of Greater Kansas City; Howard I. Schwartz, M.D.; Robert L. Blake, M.D.; Carl C. Pearman, M.D.; Carroll Metzger, R.N.C.; Mary L. Pemberton, B.S.W.; Appellees, v. William L. WEBSTER; State of Missouri, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1071

851 F.2d 1071

REPRODUCTIVE HEALTH SERVICE; Planned Parenthood of Greater Kansas City; Howard I. Schwartz, M.D.; Robert L. Blake M.D.; Carl C. Pearman, M.D.; Carroll Metzger, R.N.C. Mary L. Pemberton, B.S.W.; Appellees, v. William L. WEBSTER; State of Missouri, Appellants.

Nos. 87-1641, 87-2157.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 12, 1988.

Decided July 13, 1988.

Jerry Short, Asst. Atty. Gen., Jefferson City, Mo., for appellants.

Roger K. Evans, New York City, for appellees.

Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.

LAY, Chief Judge.

Five publicly-employed health care providers and two nonprofit corporations brought this class action against the State of Missouri and its Attorney General (the state), challenging the constitutionality of several sections of Missouri's 1986 abortion-regulation statute. ¹ Mo.Ann.Stat. Secs. 1.205, 188.010-.220 (Vernon 1983 & 1988 Supp.) (unless otherwise noted, all subsequent section references shall be to Missouri's statutes). The district court declared several portions of the act unconstitutional and permanently enjoined their enforcement. Reproductive Health Servs. v. Webster, 662 F.Supp. 407 (W.D.Mo.1987). The state appeals. ² With one exception, we affirm.

A. Hospitalization Requirement

Section 188.025 of Missouri's abortion statute states: "Every abortion performed at sixteen weeks gestational age ³ or later shall be performed in a hospital." Applying the test laid out in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the district court held this requirement unconstitutional because (1) it significantly impacts on the exercise of the right to abortion by causing delay, increasing costs and health risks, and decreasing accessibility; and (2) the state failed to satisfy its burden of proving that the hospitalization requirement is reasonably related to the state's interest in maternal health.

Although the state asserts that the district court improperly applied Akron's legal standard, its challenge to this ruling is nothing more than an attack on the factual finding that was critical to the court's decision: non-hospitalized abortions at sixteen to eighteen weeks gestational age cannot reasonably be considered more dangerous for pregnant women than hospitalized abortions. ⁴ Because this finding is not clearly erroneous and because the district court committed no error of law, we affirm on the basis of the district court's opinion. See also Akron, 462 U.S. at 430-31, 103 S.Ct. at 2492-93 (regulations that significantly impact access to abortion pre-viability are constitutional only to the extent they reasonably relate to protection of maternal health; state has burden of proving the reasonable relationship); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 482, 103 S.Ct. 2517, 2520, 76 L.Ed.2d 733 (1983) (invalidating, as in Akron, statute requiring hospitalization for all second trimester abortions).

B. Tests to Determine Viability

The next challenged portion of Missouri's statute requires doctors to determine whether a fetus is viable before performing an abortion on any woman whom the doctor has reason to believe is twenty or more weeks pregnant. In making the viability assessment, the doctor must determine and record the fetus's gestational age, weight, and lung maturity. Sec. 188.029.

The district court held unconstitutional the requirements that doctors determine gestational age and fetal weight and lung maturity. 662 F.Supp. at 423. The court held that the testing requirements constituted "an impermissible legislative intrusion upon a matter of medical skill and judgment [because] * * * [t]he State may not dictate either the tests or the findings which enter into a decision whether or not a fetus is viable." Id. (emphasis in original).

As indicated by the district court, the Supreme Court has squarely addressed this point and declared that "neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability--be it weeks of gestation or fetal weight or any other single factor." Colautti v. Franklin, 439 U.S. 379, 388-89, 99 S.Ct. 675, 682, 58 L.Ed.2d 596 (1979). Nevertheless, this is precisely what the Missouri legislature has attempted to proclaim by requiring doctors to determine the fetus's gestational age, weight, and lung maturity. We therefore affirm the lower court's judgment that this portion of section 188.029 is unconstitutional. ⁵

C. When Human Life Begins

The first section of the bill that revised Missouri's abortion statute provides, in relevant part:

1. The general assembly of this state finds that:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being;

(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.

3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

Sec. 1.205.

The district court held that the declarations that human life begins at conception and that unborn children have protectable interests in life, health, and well-being are unconstitutional because, as the Supreme Court has stated, "a State may not adopt one theory of when life begins to justify its regulation of abortions." Akron, 462 U.S. at 444, 103 S.Ct. at 2500 (citing Roe v. Wade, 410 U.S. 113, 159-62, 93 S.Ct. 705, 729-31, 35 L.Ed.2d 147 (1973)).

1. Standing

The state challenges the plaintiffs' standing to attack sections 1.205.1(1) and (2) on two grounds. The state first maintains that section 1.205 merely expands state tort, property, and criminal law protections for unborn children, while specifically excluding abortion from its coverage by providing in section 1.205.2 that section 1.205.1 should be interpreted consistently with the U.S. Constitution and Supreme Court decisions. Thus, the state argues, because section 1.205 does not involve abortion, no one in the plaintiff class has standing to challenge it. The state's second argument is that 1.205.1(1) and (2) have no substantive effect--they are merely statements of existing fact that cannot give rise to a cause of action in anyone. We disagree.

We first note that "the Supreme Court has visibly relaxed its traditional standing principles in deciding abortion cases." Margaret v. Edwards, 794 F.2d 994, 997 (5th Cir.1986) (citing Roe, 410 U.S. at 123-29, 93 S.Ct. at 711-15; Doe v. Bolton, 410 U.S. 179, 187-89, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973)); see also Singleton v. Wulff, 428 U.S. 106, 113, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). Moreover, we are unpersuaded by the state's arguments against standing. Its first argument--that the statute at issue has nothing to do with abortion--is somewhat circuitous, requiring us fully to decide the merits before we can pass upon standing. Its second argument--that the statute at issue has no substantive effect--is belied by the state's vehement assertions to the contrary that the statute substantively affects tort, criminal, and property law.

The plaintiff class alleged that

Section 1.205.1(1) of the Act impermissibly attempts to establish that "[t]he life of each human being begins at conception," and Sec. 1.205.1(2) of the Act impermissibly attempts to establish that ["u]nborn children have protectable interests in life, health, and well-being" as the underpinnings of the entire Act, contrary to [City of Akron ] and contrary to the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution.

Complaint at p 20. The plaintiffs thus alleged that Missouri was attempting to do exactly what the Supreme Court has declared it may not do: espouse a theory of when life begins as the foundation of the state's regulation of abortion. No persons are better situated to attack the constitutionality of this endeavor than those parties who are directly affected by the state's abortion laws--laws that allegedly are based on and reflective of an impermissible theory of life. The plaintiffs are such parties. ⁶ We therefore reject the state's standing challenge.

2. Validity of Declaration

The state's arguments on the merits of sections 1.205.1(1) and (2) are similar to its standing arguments: (1) because the statute is "abortion-neutral," it is not inconsistent with Roe; and (2) the statute merely determines when life begins in a nonabortion context, a traditional state prerogative. ⁷

We reject the assertion that Missouri's emphatic declaration of a state-sanctioned theory of life is "abortion-neutral." Sections 1.205.1(1) and (2) were contained in a bill that relates almost exclusively to abortion. As a "prefatory" statement, as so insistently urged by the state, the declaration of when life begins can only have been intended as an introductory and foundational comment. To adopt the state's contention that the statute is "abortion-neutral" is to overlook that every remaining section of the bill save one regulates the performance of abortions. The only plausible inference is that the state intended its abortion regulations to be understood against the backdrop of its theory of life. Rather than being abortion-neutral, the statute is simply an impermissible state...