Akron Center for Reproductive Health, Inc. v. City of Akron

Decision Date22 July 1981
Docket Number79-3701 and 79-3757,Nos. 79-3700,s. 79-3700
Citation651 F.2d 1198
PartiesAKRON CENTER FOR REPRODUCTIVE HEALTH, INC., et al., Plaintiffs-Appellants, Cross-Appellees, v. CITY OF AKRON, et al., Defendants-Appellees, Cross-Appellants, Francois Seguin, et al., Intervenors Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Stephan A. Landsman, Cleveland-Marshall College of Law, Cleveland State University, Cleveland, Ohio, Gordon J. Beggs, ACLU of Cleveland Foundation, Cleveland, Ohio, for plaintiffs-appellants, cross-appellees.

Dennis Haines, Youngstown, Ohio, Patricia A. Vance, Akron, Ohio, Janet Benshoof, American Civil Liberties Union, Reproductive Freedom Project, New York City, Robert P. App, Bruce A. Campbell, American Civil Liberties Union of Ohio Foundation, Inc., Columbus, Ohio, for plaintiffs-appellants, cross-appellees.

Alan G. Segedy, Segedy & Umbaugh, David G. Umbaugh, Akron, Ohio, for Sequin and Black.

James L. Bickett, Cuyahoga Falls, Ohio, Robert D. Pritt, Akron, Ohio, Robert A. Destro, Milwaukee, Wis., for City of Akron, et al.

Dara Klassel, Planned Parenthood-World Population, Harriet F. Pilpel, New York City, Nadine Taub for American Pub. Health Association, Rutgers University School of Law, Women's Rights Litigation Clinic, Newark, N. J., for amicus curiae Planned Parenthood Federation of America, et al.

Before LIVELY and KENNEDY, Circuit Judges, and GIBSON, * District Judge.

LIVELY, Circuit Judge.

These consolidated appeals seek review of various holdings of the district court in an action challenging the constitutionality of an ordinance of the City of Akron, Ohio which regulates abortions. By its terms the ordinance was to become effective May 1, 1978, and the present suit was filed in the district court on April 19, 1978. The plaintiffs are three Ohio corporations that operate out-patient abortion clinics in Akron and a physician who has performed abortions at one of the clinics. The defendants are the City of Akron, its mayor and director of public health and the police prosecutor of Akron. The district court permitted participation as defendants by a group of intervenors "solely in their independent capacity as parents of unmarried minor daughters of child-bearing age."

I. The District Court Opinion

The opinion of the district court is reported at 479 F.Supp. 1172 (1979), and the ordinance is reprinted as an appendix to the opinion. The district court concluded that the ordinance is severable and examined it on a section-by-section basis. We agree that the ordinance is severable and will follow a similar procedure in our analysis.

A.

The three clinics provide abortions only during the first trimester of pregnancy but are willing to perform early second trimester abortions if permitted to do so. The plaintiff physician has performed first trimester abortions at one of the clinics. The district court described the operation of the clinics as follows:

The patients for whom the clinics provide their services range in age from about twelve years to approximately forty-five years. Two of the clinics provide abortions on three days a week (Wednesday, Friday, and Saturday) and the third provides abortions two days a week (Wednesday and Saturday).

Patients usually make their first contact with one of the clinics over the telephone. If a woman telephones and indicates that she desires an abortion and that her pregnancy has not progressed beyond the end of the first trimester, she will be given an appointment for one of the "procedure days." When the patient arrives at the clinic on the day of her appointment she is asked certain questions about her medical history and her pregnancy. She also participates in a group counseling session with counselors employed by the respective clinics. These counselors have varying degrees of qualifications, none, however, is a physician. During the group counseling session, the patients are given information concerning the procedure to be performed upon them, information on birth control techniques, and after-care instructions. At some time near the close of her group counseling session, each patient is asked to sign a document acknowledging her informed consent to the performance of an abortion.

A patient's first contact with the physician who is to perform the abortion procedure usually occurs when she is taken into the operating room. At that time, the physician reviews the patient's medical chart and asks the patient if she has any questions. The doctor then performs a pelvic examination. If the pelvic examination does not reveal any medical problems and, further, indicates that the pregnancy has not progressed beyond the first trimester, the abortion usually will then be performed. There was some evidence that if the physician sensed that the patient was ambivalent concerning her decision, he would suggest that she return at another time after she had had some additional time to consider alternatives to abortion.

The abortion method used at the clinics is dilation and suction curettage (D& C). The procedure itself takes approximately five minutes.

479 F.Supp. at 11 81/82.

B.

We will limit our consideration of the constitutionality of the Akron ordinance to due process issues. The district court gave full and thoughtful consideration to claims of the plaintiffs that the ordinance violates the First Amendment requirement of separation of church and state and the Equal Protection Clause of the Fourteenth Amendment and rejected these claims. We agree with the treatment of these contentions by the district court and with its conclusion, and will not repeat them here. 1

The district court held that no plaintiff had standing to contest the validity of several provisions of the ordinance. Except where the parties have specifically appealed these rulings, standing will not be discussed in this opinion. The appealed holdings of the district court, described in general terms, were as follows:

(1) Section 1870.03, requiring all abortions after the first trimester to be performed in hospitals, was held valid.

(2) Section 1870.04, dealing with abortions after viability, was not considered by the court because no plaintiff was found to have standing.

(3) Section 1870.05, requiring notice to one of the parents or the legal guardian of a minor seeking an abortion and consent to such an abortion, was held invalid.

(4) Section 1870.06(A), requiring informed written consent of the woman seeking an abortion, was held valid. 2

(5) Section 1870.06(B), detailing the information required to be given by the attending physician in obtaining consent of the woman seeking an abortion, was held invalid.

(6) Section 1870.06(C), requiring the attending physician to detail the particular risks associated with the patient's pregnancy and the abortion technique to be employed, was held valid.

(7) Section 1870.07, requiring a 24-hour waiting period between the time the consent is signed and the abortion is performed, was held valid.

(8) Section 1870.16, requiring that the remains of an aborted fetus be disposed of in "a humane and sanitary manner," was held invalid for vagueness.

II. The Standard for Testing the Validity of the Ordinance

The plaintiffs contend on appeal that the district court applied an erroneous standard in testing the constitutionality of the various provisions of the ordinance. Rather than requiring the City to demonstrate the necessity of the various provisions to further a compelling interest of the City, the district court tested the ordinance by less stringent standards. In short, it is the position of the plaintiffs that the district court failed to subject the ordinance to the strict scrutiny required by controlling decisions of the Supreme Court.

A.

The district court acknowledged that the pioneering opinion in the field of abortion law, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), speaks in terms of the fundamental right of a pregnant woman to make an abortion decision in consultation with her physician and holds that regulations limiting fundamental rights may be justified only by some compelling state interest. Further, any legislative enactment which affects such rights must be narrowly drawn to express only the legitimate state interest at stake. The first point at which the Supreme Court identified a compelling state interest an interest in the health of the pregnant woman was "at approximately the end of the first trimester." Id. at 163, 93 S.Ct. at 732. However, after reviewing Supreme Court decisions subsequent to Roe v. Wade, the district court concluded that a state may impose certain limitations on the right to an abortion, even in the first trimester, so long as these regulations do not "unduly burden" the decision-making process and are rationally related to a legitimate purpose of the state. This conclusion was summarized in the following language of the district court:

It becomes clear, therefore, from an examination of the cases decided since Roe, that not all regulation of first trimester abortion providers is impermissible. An absolute prohibition of first trimester abortions could only be justified by a compelling state interest. Likewise, regulations that afford the power to veto a woman's decision to terminate her pregnancy must be supported by a compelling state interest. See (Planned Parenthood of Central Mo. v.) Danforth, 428 U.S. (52) at 67-72, 96 S.Ct. 2831 (at 2840-2842, 49 L.Ed.2d 788). Regulations that interfere with a woman's privacy to a lesser degree, however, require a lesser showing by the state to withstand constitutional attack: "As Whalen (v. 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...

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