AM. COLLEGE OF OBSTETRICIANS, ETC. v. Thornburgh

• Decision Date: 10 December 1982
• Docket Number: Civ. A. No. 82-4336.
• Citation: 552 F. Supp. 791
• Parties: AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION, et al. v. Richard THORNBURGH, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

552 F. Supp. 791

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION, et al. v. Richard THORNBURGH, et al.

Civ. A. No. 82-4336.

United States District Court, E.D. Pennsylvania.

December 10, 1982.

COPYRIGHT MATERIAL OMITTED

Laurence Z. Shiekman, Thomas E. Zemaitis, Pepper, Hamilton & Scheetz, Kathryn Kolbert, Women's Law Project, Philadelphia, Pa., for plaintiffs.

Andrew S. Gordon, Deputy Atty. Gen., Com. of Pa., Harrisburg, Pa., for defendants.

John E. McKeever, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., amicus.

MEMORANDUM

HUYETT, District Judge.

I. INTRODUCTION

This is an action for declaratory and injunctive relief pursuant to the United States Constitution and 42 U.S.C. § 1983 in which the plaintiffs challenge the constitutionality of the Pennsylvania Abortion Control Act (Act), 18 Pa.Con.Stat.Ann. §§ 3201-3220. I have subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), & 1343(a)(4). Before me is plaintiffs' motion for preliminary injunction. On December 7, 1982, because the Act was to take effect the next day, I issued my order and decree on the plaintiffs' motion. This opinion is the statement of my reasons for ruling as I did.

The plaintiffs are physicians, a physicians' professional organization, several clinic providers of first-trimester abortions, members of the clergy and an individual whose health care and disability insurance provides comprehensive abortion coverage. The named defendants are seven state and local officials sued personally and in their official capacities (hereafter sometimes referred to collectively as the Commonwealth). Several physicians and a pregnancy counseling service moved to intervene as defendants and for appointment as guardians ad litem. The motion was denied, however, the applicants for intervention (hereafter amici) were granted amici curiae status.

The Act became law on June 11, 1982. Almost four months later plaintiffs filed their complaint. Plaintiffs' motion for a preliminary injunction was filed on October 29, 1982, almost a month after the complaint was filed. Following a conference in chambers on November 17, 1982, it was determined that December 2, 1982 was the earliest date by which the parties could fully brief the complex constitutional issues and prepare the factual presentation required by the motion. The parties' stipulation of uncontested facts,¹ their proposed findings of fact and conclusions of law were submitted to me on November 30, 1982. A conference was held in chambers on December 1, 1982. On December 2, 1982, I held a hearing on plaintiffs' motion. Because of the parties' comprehensive stipulation of uncontested facts, no testimony or evidence was submitted at the hearing. Counsel for the plaintiffs, defendants, and amici presented oral argument. At the conclusion of the December 2, 1982 hearing, I took the matter under advisement. The effective date of the Pennsylvania Act is December 8, 1982.

The following constitutes my findings of fact and conclusions of law. Based upon my findings and for the reasons stated below, I conclude that the Act as a whole and the specific subsections challenged are constitutional with the exception of the 24-hour waiting period in § 3205.

I reach this conclusion after the most thoughtful consideration of these complex issues which time permitted. As the procedural history of this case outlined above reveals, despite the complexity and importance of the issues, this case has proceeded rapidly under pressure from the effective date of the Act. Within only 2 months of the filing of the complaint and just 6 days after the case was submitted to me, the Act which plaintiffs contend violates the Constitution became law.

Although the Pennsylvania Act and the challenge to it are recent developments in this circuit, some but not all of the subsections challenged here are similar to provisions the constitutionality of which has been litigated in the Sixth Circuit in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (6th Cir.1981) (Akron Center v. Akron) and in the Eighth Circuit in Planned Parenthood Association v. Ashcroft, 655 F.2d 848 (8th Cir.1981) (PPA v. Ashcroft). The decisions in Akron and Ashcroft are not consistent on a number of common issues. These decisions have tended as much to obfuscate as to enlighten my analysis of the present case. Both decisions are before the Supreme Court which heard argument in the cases on December 4, 1982. 51 U.S.L.W. 3433 (U.S. Dec. 7, 1982).

While the pressure of the effective date is real and the plaintiffs are entitled to an adjudication of their request for relief pendente lite, it is with a certain level of frustration that I observe that within six months to a year the Supreme Court may issue an opinion which will be likely to resolve many of the issues that I have held under advisement for just a few days. Further, I must agree with Judge Adams' observation in Planned Parenthood v. Fitzpatrick, 401 F.Supp. 554, 586 (E.D.Pa.1975) (Adams, J., concurring and dissenting), that "it is open to some doubt whether the courts are the institution best equipped to resolve the complex societal interests that exist in the abortion field." This is an area perhaps better left in the hands of popularly elected legislators. In approaching this decision, I was mindful of Judge Adams' admonition in Fitzpatrick that courts should be "reluctant to leap ahead too quickly to interdict states from legislating respecting abortions when, in the accumulative informed judgment of the legislators, such enactments are necessary to serve legitimate interests of the populance." Id.

II. STANDING

The plaintiffs in this action can be divided into five different groups. The defendants challenge the standing of only one of those groups, clergymen who sue in individual and representative capacities.

Plaintiff physicians have standing to assert both their own rights and those of their women patients to challenge the constitutionality of the sections at issue in this case. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Plaintiff American College of Obstetricians and Gynecologists, Pennsylvania Section, an organization of obstetricians and gynecologists, has standing to represent the interests of its members and of their patients. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Plaintiff medical providers similarly have standing to raise the constitutional rights of their customers. Women's Medical Center v. Roberts, 512 F.Supp. 316 (D.R.I.1981).

The defendants have not challenged the standing of plaintiff Morgan Plant. Plant is an individual who currently purchases and will continue to purchase health care and disability insurance, which comprehensively covers abortions, from an insurer in Pennsylvania. Plant sues on her own behalf and on behalf of all persons similarly situated. It appears that Plant does not have standing to challenge § 3215(e), because there is no evidence that comprehensive insurance premiums will be more costly after the Act goes into effect than before the enactment as a result of the challenged provision. Consequently, Plant has not shown the "injury in fact" required by Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) and its progeny. Nevertheless, in the absence of briefing or oral argument on this point by any of the parties, and in light of the time constraints involved, I will reach the merits of the insurance claim.

Finally, I conclude that plaintiff clergymen do not have standing either as individuals or on behalf of women whom they counsel. Plaintiff clergymen fail to meet the constitutional requirements for standing, in both individual and representative capacities, articulated in free exercise cases. I find that the challenged provisions have no direct impact on the plaintiff clergymen as individuals, because the Act has no provisions which directly or indirectly concern religious counseling. Consequently, I conclude that the clergymen have failed to meet the requirements of injury in fact required in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

Further, I conclude that the clergymen do not have standing in a representative capacity. A free exercise claim ordinarily requires individual participation. Harris v. McRae, 448 U.S. 297, 321, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980). "It is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion." Abington School District v. Schempp, 374 U.S. 203, 233, 83 S.Ct. 1560, 1577, 10 L.Ed.2d 844 (1963). In Harris v. McRae, the Supreme Court held that representatives of a division of the United Methodist Church did not have standing to sue on behalf of women who seek abortions for religious reasons. Consequently, a free exercise claim in this case can be pursued only by a woman who seeks "an abortion under compulsion of religious belief." 448 U.S. at 320, 100 S.Ct. at 2689.

I, therefore, conclude that the plaintiff members of the clergy lack standing. Thus, I need not address the merits of the plaintiffs' arguments concerning the Free Exercise Clause because no plaintiff has standing to raise it.

III. STANDARD OF REVIEW

The standard of review applicable to each of the plaintiffs' challenges must be determined. The parties stated at oral argument that they are in disagreement over the proper standard. The plaintiffs contend that if the state has imposed a legally significant burden on a fundamental right such as a woman's right of privacy, then the burden must be related to a compelling state interest and the statutory section imposing the burden must be narrowly drawn to...