AKRON CTR. FOR REPRODUCTIVE HEALTH v. City of Akron
| Decision Date | 04 October 1979 |
| Docket Number | Civ. A. No. C78-155A. |
| Citation | 479 F. Supp. 1172 |
| Parties | AKRON CENTER FOR REPRODUCTIVE HEALTH, INC. et al., Plaintiffs, v. CITY OF AKRON et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
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Stephan A. Landsman, Cleveland, Ohio, Dennis Haines, Patricia S. Roberts, Youngstown, Ohio, Wayne G. Hawley, Gordon J. Beggs, American Civil Liberties Union of Cleveland, Inc., Cleveland, Ohio, Janet L. Benshoof, American Civil Liberties Union, Reproductive Freedom Project, New York City, Robert P. App, American Civil Liberties Union of Ohio Foundation, Inc., Columbus, Ohio, Patricia A. Vance, Akron, Ohio, for plaintiffs.
Jane E. Bond, Akron, Ohio, for amici curiae.
James L. Bickett, Akron Law Dept., David G. Umbaugh, Akron, Ohio, Robert A. Destro, Milwaukee, Wis., James Bopp, Jr., Indianapolis, Ind., Alan G. Segedy, Akron, Ohio, for defendants.
On February 28, 1978, the city council of Akron, Ohio, by a seven to six vote, passed Ordinance Number 160-1978, "amending and supplementing the Codified Ordinances of the City of Akron, Ohio, 1975, by the amendment of Chapter 1870, entitled `Regulation of Abortions.'"1 The ordinance represents an attempt to regulate the provision of abortions within the city of Akron without violating the constitutional right of a woman, in consultation with her physician, to choose to terminate her pregnancy. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The problem presently before the Court is the determination of whether Akron has accomplished that goal.
This Court is, of course, aware of the national controversy which has resulted from the Supreme Court's decisions in Roe and Doe. Analytically, however, this case is no different than the numerous others that come before the Court. It is the duty of this Court to determine the controversy before it based upon the requirements of the Constitution as expounded by the Supreme Court and the Court of Appeals for the Sixth Circuit.2 In considering the present case, this Court has attempted to do just that, nothing more and nothing less.
Ordinance Number 160-1978 provides extensive regulations of the provision of abortions. It also provides criminal sanctions for violation of its requirements. Section 3 of the ordinance established an effective date of May 1, 1978.
On April 19, 1978, the present action challenging the ordinance was instituted. The Court granted plaintiffs' motion for a temporary restraining order "enjoining defendants and any of their employees, agents and servants from attempting to enforce Ordinance No. 160-1978. . . ." Subsequently, defendants consented to entry of a preliminary injunction pending the Court's decision on the merits.
The Court duly heard testimony and received exhibits. The following shall constitute findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure.
The defendants in this action are the City of Akron, its Mayor, its Director of Public Health, and its Police Prosecutor. Plaintiffs are three Ohio corporations that operate out-patient abortion clinics within Akron and a physician who has performed abortions at one of those clinics.
On April 26, 1978, Doctor Francois Seguin and Patricia K. Black petitioned the Court for leave to intervene as defendants in a number of different capacities. The Court granted such leave to the extent of permitting petitioners' participation "solely in their individual capacity as parents of unmarried minor daughters of childbearing age...."
At the present time, the clinics operated by the corporate plaintiffs provide abortions only during the first trimester of pregnancy. The clinic coordinator of Akron Women's Clinic, however, indicated that if it were possible, that clinic would provide abortions during the early part of the second trimester of pregnancy. The reason that it is not now possible to provide abortions during the second trimester in a clinic setting is that Akron has had an ordinance requiring the performance of second trimester abortions in a hospital since some time prior to 1978. That ordinance is not now under attack.
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.
The physician plaintiff is a resident of Cincinnati and primarily is engaged in the practice of medicine in that city. He has been licensed as a physician by the state of Ohio since 1957. He testified that his specialty is "Family Planning, which is really a subspecialty of Family Practice." As part of his practice, the physician plaintiff regularly performs abortions in Cincinnati.
Prior to the time the original complaint was filed in this action, the physician plaintiff had never performed abortions within Akron.3 At some time prior to July 11, 1978, however, he received a telephone call from the clinic coordinator of Akron Women's Clinic. The coordinator proposed an arrangement whereby the physician plaintiff would occasionally substitute for her clinic's physicians when they were away from Akron or assist them during particularly busy times and they would, in return, do the same for him at his clinic in Cincinnati. She offered to pay his expenses to and from Akron plus a per procedure fee. The coordinator also inquired whether he would be interested in being a party to this action.
The physician plaintiff had been interested in finding a doctor who desired to enter into such a reciprocal arrangement for some time. He was, therefore, receptive to the coordinator's proposal. The opportunity to earn some additional income was also a factor that entered into his consideration. Finally, he concluded that he did want to participate in this action and felt that to do so it would be necessary for him to perform abortions in Akron.
The physician plaintiff first performed abortions in Akron on July 11, 1978. Between that date and the commencement of trial in this action, he performed abortions in Akron on one other occasion. At the time of trial, he anticipated performing abortions in Akron again during February of 1979 and thereafter as requested by Akron Women's Clinic's coordinator.
The plaintiffs have challenged Ordinance Number 160-1978 on a number of different grounds. Some of their claims are addressed to the ordinance in its entirety and others are addressed to specific sections of the ordinance. Some of their claims are that the ordinance, or parts thereof, is invalid because it interferes with their constitutional rights as operators of clinics providing abortions within Akron and as a physician providing abortions within Akron; others are that the ordinance, or parts thereof, interferes with their provision of services to their patients in such a way as to infringe upon constitutional rights of those patients. Before proceeding to consideration of plaintiffs' numerous and varied claims, the Court deems it necessary to consider plaintiffs' standing. The discussion of plaintiffs standing consists of four areas: First, the Court will address an issue concerning the physician plaintiff's standing to raise any claims in this action; second, the Court will discuss general standards to be applied in determining plaintiffs' standing; third, the Court will determine if plaintiffs have standing to litigate the constitutionality of specific sections of the ordinance; finally, the Court will determine if plaintiffs have standing to litigate the constitutionality of the ordinance as a whole.
As found above, a consideration that entered into the physician plain...
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