Akron Center for Reproductive Health v. Rosen, Civ. A. No. C 86-1099 A.

Decision Date22 April 1986
Docket NumberCiv. A. No. C 86-1099 A.
Citation633 F. Supp. 1123
PartiesAKRON CENTER FOR REPRODUCTIVE HEALTH, et al., Plaintiffs, v. Gary M. ROSEN, as Police Prosecutor for the City of Akron and as representing all other police prosecutors in Ohio, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

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Linda R. Sogg, Cleveland, Ohio, Bruce Campbell, A.C.L.U. of Ohio Foundation, Inc., Columbus, Ohio, Roger K. Evans, Planned Parenthood Federation of America, Inc., New York City, for plaintiffs.

David J. Kovach, Asst. Atty. Gen., Cleveland, Ohio, Lynn Slaby, Pros. Atty., Larry Poulos, Asst. Pros. Atty., Patricia C. Ambrose, Asst. Dir. of Law, Akron, Ohio, for defendants.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

This action was filed on March 21, 1986 by plaintiffs challenging the constitutionality of Amended Substitute House Bill Number 319 ("H.B. 319"), which requires that a physician who intends to induce an abortion on an unmarried, unemancipated woman under the age of eighteen must notify her parents, unless one of several exceptions, including a waiver by a juvenile court, is present. The complaint seeks a declaratory judgment that H.B. 319 is unconstitutional on its face, and prays for injunctive relief against its enforcement.

On March 31, 1986, this Court granted plaintiffs' motion for a ten-day temporary restraining order, which was extended for an additional ten days for good cause shown until April 20, 1986. Extensive briefs have been filed, and by agreement of all the parties, a consolidated hearing on the preliminary injunction and on the merits pursuant to Fed.R.Civ.P. 65(b)(2) was held on April 21, 1986, at which argument was heard.

For the reasons set forth below, the Court holds that H.B. 319 violates the due process clause of the fourteenth amendment to the Constitution and that defendants Rosen and Slaby are enjoined from enforcing it. No motions for class certifications having been pursued, no classes are certified. Defendants Celeste and Celebrezze are dismissed, as is plaintiff Poe. The following opinion contains findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4) (1982). Declaratory judgment relief is authorized by 28 U.S.C. §§ 2201 and 2202 (1982).

FINDINGS OF FACT
I.
A. H.B. 319

H.B. 319 was passed on November 20, 1985, and became law without the governor's signature. The act was to become effective on March 24, 1986. Ohio Rev. Code Ann. § 2919.12 (Page Supp.1985) ("§ 2919.12") provides that "no person shall knowingly perform or induce an abortion upon a woman who is pregnant, unmarried, under eighteen years of age, and unemancipated" unless one of five exceptions applies. Subsection (B)(1)(a) provides that an abortion can proceed after the physician has given twenty-four hours actual notice of the pending abortion to one of the minor woman's parents, guardian or custodian.1 In certain cases where the minor woman fears physical, sexual or severe emotional abuse if her parents are notified, a specified relative can be notified instead of her parents upon the filing with a juvenile court of affidavits by the minor and her relative. § 2919.12(B)(1)(b). Notification is not required if one of the woman's parents has consented in writing to the performance of the abortion. § 2919.12(B)(1)(a)(ii). If a parent cannot be reached for actual notification after reasonable effort, constructive notice by ordinary and certified mail forty-eight hours before a procedure is performed is adequate. § 2919.12(c)(2).

A minor who objects to notification may file an action in juvenile court for the waiver of notification. Ohio Rev.Code Ann. § 2151.85 (Page Supp.1985) ("§ 2151.85"). She begins the action by filing a complaint containing one or both of the following allegations: 1) that she is mature enough to decide to have an abortion without parental notification; 2) that one or both of her parents has engaged in a pattern of physical, sexual, or emotional abuse against her or that notification is otherwise not in her best interests. § 2151.85(A)(4). The court is then required to appoint counsel for the complainant, hear the case within five business days, and immediately decide the case at the end of the hearing. § 2151.85(B)(1), (B)(2), and (C). If the court finds against the minor and dismisses the complaint, it must immediately notify the woman of her right to appeal the decision under Ohio Rev.Code Ann. § 2505.073 (Page Supp.1985) ("§ 2505.073").

A physician is not required to notify a minor's parents before performing an abortion if a waiver is authorized by the court. § 2919.12(B)(1)(iii). The doctor may also proceed without notification after five days have elapsed from the docketing of the complaint before the juvenile or the appellate court, without a judgment entry by that court. § 2919.12(B)(1)(iv).

A physician who violates § 2919.12 is guilty of a misdemeanor of the first degree for his or her first offense, and of a felony of the fourth degree if he or she has previously been convicted or pleaded guilty to a violation of this section. § 2919.12(D). The physician may also be liable for civil compensatory and punitive damages to the minor and her parents. § 2919.12(E). Finally, a doctor violating § 2919.12 may have his or her certificate to practice medicine limited, revoked or suspended, or may be subject to reprimand and probation. Ohio Rev.Code Ann. § 4731.22 (Page Supp. 1985) ("§ 4731.22"). However, the physician can assert the affirmative defenses that he or she was misled regarding the age, marital status, or emancipation of the child, or that the notification was impossible because of an immediate threat of serious risk to the minor's life or physical health by an emergency requiring the immediate performance of an abortion. § 2919.12(C).

B. The Parties

Plaintiff The Akron Center for Reproductive Health ("Akron Center") operates a free-standing medical facility in Summit County, Ohio, offering birth control, pregnancy and abortion services to patients including unmarried, unemancipated women under the age of eighteen. The Akron Center alleges that it, its agents or its employees could be subjected to civil and criminal liability under H.B. 319.

Plaintiff Max Pierre Gaujean, M.D., is a physician who performs abortions at the Akron Center. He alleges that he will be subjected by H.B. 319 to criminal and civil penalties and possible impairment of his ability to practice medicine in the state of Ohio. Both Dr. Gaujean and the Akron Center sue on behalf of their minor patients as well as on their own behalf.

Plaintiff Patty Poe is an unmarried minor living with her parents in Summit County who is sexually active and believes that she may be pregnant. She alleges that she is mature and that notification to her parents of her pregnancy would cause her emotional harm and force her to continue her pregnancy.

Plaintiff Rachel Roe is an unmarried minor living in the home of one of her parents with her two-year old child. She alleges that she is mature and that she has been subjected to physical abuse in her home. Roe has been refused an abortion at the Akron Center because of the imminent operation of H.B. 319.

Defendant Gary M. Rosen is the City Prosecutor for the City of Akron, Ohio. Defendant Lynn Slaby is the Prosecuting Attorney of Summit County, Ohio. Plaintiffs

allege that Rosen is responsible for prosecuting misdemeanors and Slaby for prosecuting felonies arising under § 2919.12. Defendant Anthony Celebrezze is the Attorney General of the state of Ohio, and defendant Richard F. Celeste is the Ohio governor. All defendants are sued in their official capacities. Plaintiffs also sue Rosen and Slaby as representatives of all Ohio prosecutors charged with prosecuting violations of § 2919.12, and plaintiffs Poe and Roe also seek to represent the entire class of unmarried, unemancipated minor women in Ohio who are or may become pregnant. However, plaintiffs have not filed a motion to certify either plaintiff or defendant classes.

CONCLUSIONS OF LAW
II.
A. Standing of the Plaintiffs

Present case law indisputably supports the standing of the Akron Center and Dr. Gaujean to assert the due process rights of their patients. Birth Control Centers, Inc. v. Reizen, 743 F.2d 352, 358 (6th Cir. 1984); American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 n. 6, (3d Cir.1984), prob. juris. noted, ___ U.S. ___, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985) ("ACOG"), and cases cited therein. It is also indisputable that the Akron Center and Dr. Gaujean have standing to assert their own interests. E.g., Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). Rachel Roe's standing is obvious and has not been challenged by the defendants.

Defendants Celeste and Celebrezze, however, argue that Patty Poe is not a proper plaintiff in this case because she does not state a claim.2 Poe's affidavit states that she is currently sexually active and that she is "uncertain as to whether or not I am pregnant as of this date, but in the event that I am found to be pregnant, I would wish to terminate the pregnancy...." In Roe v. Wade, 410 U.S. 113, 127-128, 93 S.Ct. 705, 714-715, 35 L.Ed.2d 147 (1973), the Court held that a similar claim by a married couple in which the woman was not pregnant was too speculative to permit standing as plaintiffs to the litigation. Accordingly, Patty Poe is dismissed as a plaintiff from this action.3

B. Prosecutors' Motions to Dismiss

Defendants Rosen and Slaby both have filed motions to dismiss them as parties to this action, claiming that the duty to defend the constitutionality of state statutes falls upon the attorney general. While they are correct that ...

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