910 F.2d 479 (8th Cir. 1990), 89-5400, Planned Parenthood of Minnesota v. State of Minn.

Docket Nº:89-5400.
Citation:910 F.2d 479
Party Name:PLANNED PARENTHOOD OF MINNESOTA, a non-profit Minnesota Corporation; and Mildred Hanson, MD, Appellees, v. The STATE OF MINNESOTA; Rudy Perpich, as Governor of the State of Minnesota; and Hubert H. Humphrey, III, as Attorney General of the State of Minnesota, Appellants.
Case Date:August 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 479

910 F.2d 479 (8th Cir. 1990)

PLANNED PARENTHOOD OF MINNESOTA, a non-profit Minnesota

Corporation; and Mildred Hanson, MD, Appellees,

v.

The STATE OF MINNESOTA; Rudy Perpich, as Governor of the

State of Minnesota; and Hubert H. Humphrey, III,

as Attorney General of the State of

Minnesota, Appellants.

No. 89-5400.

United States Court of Appeals, Eighth Circuit

August 2, 1990

        Submitted May 14, 1990.

Page 480

        Audrey Kaiser Manka, St. Paul, Minn., for appellants.

        Rebecca Palmer, Minneapolis, Minn., for appellees.

Page 481

        Before LAY, Chief Judge, BOWMAN, Circuit Judge, and STUART, [*] Senior District Judge.

        LAY, Chief Judge.

        The issue before this court is whether the Minnesota fetal disposition law, Minn.Stat. Sec. 145.1621 (1988), is constitutional. The district court 1 found the law unconstitutionally vague as well as infringing on a woman's right to abortion. Planned Parenthood v. State of Minnesota, No. 4-87-676 (D.Minn., June 30, 1989). The law regulates the disposal of fetal remains by hospitals, clinics and medical facilities in the state of Minnesota. Although we find the question close, we conclude, based in part on case law decided after the district court ruled, that the statute passes constitutional muster. We therefore reverse.

        In 1987, Minnesota enacted a statute regulating the disposition of fetal remains resulting from abortions and miscarriages. 2 Planned Parenthood, a family planning service that offers first trimester abortions, along with Dr. Mildred Hanson, filed suit prior to the effective date of the statute, challenging its constitutionality on several grounds. The district court entered a preliminary injunction against enforcement of the statute, and on Planned Parenthood's motion, found the statute unconstitutional and entered a permanent injunction against enforcement on June 30, 1989. The state's appeal followed.

        DISCUSSION

        The Supreme Court has recognized the legitimate interest of states and municipalities in regulating the disposal of fetal remains from abortions and miscarriages. See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 451-52 nn. 44, 45, 103 S.Ct. 2481, 2503-04 nn. 44, 45, 76 L.Ed.2d 687 (1983); Planned Parenthood Ass'n v. Fitzpatrick, 401 F.Supp. 554, 573 (E.D.Penn.1975), aff'd, without opin. sub nom., Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); see also Leigh v. Olson, 497 F.Supp. 1340, 1351 (D.N.D.1980); Margaret S. v. Edwards, 488 F.Supp. 181, 221-22 (E.D.La.1980). Fetal disposal statutes have been struck down, however, as either unconstitutionally vague or as infringing on a woman's right to an abortion. See Akron, 462 U.S. at 451, 103 S.Ct. at 2503 (uncertain meaning of "humane and

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sanitary" leaves statute too vague where criminal sanctions possible). 3 However, Akron makes clear that more carefully drawn regulations might suffice to "further [the government's] legitimate interest in proper disposal of fetal remains." Id. at 452 n. 45, 103 S.Ct. at 2504 n. 45.

       I. VAGUENESS

        The fundamental test applied to criminal laws challenged as unconstitutionally vague is whether "men of common intelligence must necessarily guess at its meaning and differ as to its application." Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964); see also Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). This test considers whether fair notice of the conduct prohibited is given, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), and whether the statute provides sufficient guidance to officials so that "arbitrary and discriminatory enforcement" is avoided. Id. at 357, 103 S.Ct. at 1858; see also Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972). Finally, the statute must be sufficiently clear so that the exercise of constitutionally protected rights is not restrained. See Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683-84, 58 L.Ed.2d 596 (1979); Grayned, 408 U.S. at 109, 92 S.Ct. at 2299.

        The challenger of a statute "must demonstrate that the law is impermissibly vague in all of its applications," Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982), and that the statute could never be applied in a valid manner. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Statutes should not be declared unconstitutionally vague by speculating about possible hypothetical applications. If a law is susceptible of a reasonable interpretation which supports its constitutionality, the court must accord the law that meaning. United States v. National Dairy Prod. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963). With these standards in mind, we now turn to an evaluation of those portions of Minnesota's fetal disposal statute that the district court found impermissibly vague.

  1. Use of the Term "Dignified"

            The district court found the Minnesota legislature's use of the term "dignified" in the introductory subsection colored all later references to the acceptable disposal methods in the statute. In Webster v. Reproductive Health Servs., --- U.S. ----, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), decided one week after the district court's opinion here, the Supreme Court found that a preamble to a Missouri abortion statute which stated "the life of each human being begins at conception" was not intended to be controlling or regulatory, but instead simply expressed "a value judgment." Webster, 109 S.Ct. at 3050. The Court added "it will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way." Id.

            Although the term "dignified," standing alone, is no more definitive than "humane," stricken in Akron, it nonetheless does not ultimately control Minnesota's fetal disposal law. Introductory provisions of a statute must give way to the specific language in the operative sections of the statute. See In re Atkinson, 291 N.W.2d 396, 400 (Minn.1980). Under governing principles of statutory construction it is generally accepted that "the preamble * * * contributes

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    to a general understanding of the statute, but it is not an operative part of the statute * * *. Where the enacting or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled by language in the preamble." Jurgensen v. Fairfax County, Va., 745 F.2d 868, 885 (4th Cir.1984) (quoting Association of Am. Railroads v. Costle, 562 F.2d 1310, 1316 (D.C.Cir.1977)); cf. United States Trustee v. Prines (In re Prines), 867 F.2d 478, 483-84 (8th Cir.1989) (declining to give dispositive weight to preamble language where doing so disregards language of operative section).

            The Minnesota legislature expressly articulated the disposal methods that are acceptable: "cremation," "interment by burial," or "in a manner directed by the commissioner of health." Any ambiguity created by the preamble is obviated by these common terms with accepted meanings. 4 The Minnesota statute differs significantly from fetal disposal statutes using "humane," "dignified," or "sanitary" without limitation. See, e.g., Akron, 462 U.S. at 451, 103 S.Ct. at 2503; Leigh, 497 F.Supp. at 1351. We therefore find that the Minnesota legislature's use of the term "dignified" in the preamble of the fetal disposal statute does not render the statute unconstitutionally vague.

            The district court found, however, that uncertainty remained as to the authorized methods of disposal. For example, the district court could not determine whether "group disposal" was dignified, and therefore found the statute vague. 5 We believe the district court's conclusion misapplies the standards for judging the facial vagueness of a statute. In this context, the court must determine whether the statute can ever be applied in a valid manner. Salerno, 481 U.S. at 745, 107 S.Ct. at 2100. Whether or not group disposal is authorized by the statute, the district court could have upheld the statute based on valid application in the case of individual cremation or interment. The terms used in the statute are, however, ambiguous in the sense that the permissibility of group disposal is not clear. Although we need not address the group disposal issue to resolve the constitutional issue, we do so in order to resolve this ambiguity.

            We note that the statute does not expressly prohibit group disposal. The intent of the statute was to preclude methods of disposal that were not associated with the notion of burial, such as disposal

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    through the sewer system or the indifferent dumping of remains in landfills; however, this intent does not rule out group disposal. See, e.g., Hearings Before the Senate Health & Human Services Committee on S.F. No. 389, 74th Minn.Leg., Apr. 1, 1989 (statement of Sen. Chiemelewski, App. at 124). The legislature acknowledged that several hospitals already disposed of fetal remains by group disposal. See Senate Floor Debate on S.F. No. 389, 74th Minn.Leg., May 13, 1987 (Statement of Sen. Chiemelewski) (hospitals store aborted or miscarried fetal remains for disposal on a monthly basis) (App. at 94-95). We therefore believe the statute should be construed to allow group disposal.

            This interpretation requires consideration of administrative rules that Planned Parenthood argues prohibit group disposal methods, and create additional vagueness problems. The pertinent rule states: "When cremation is selected as a method of disposition, cremation must be accomplished...

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