American College of Obstetricians and Gynecologists, Pennsylvania Section v. Thornburgh

Decision Date28 June 1984
Docket NumberNo. 82-1846,Nos. 82-1785,No. 82-1785 and C,82-1846,82-1785 and C,s. 82-1785
Citation737 F.2d 283
PartiesAMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION; Henry H. Fetterman, M.D., Thomas Allen, M.D., and Francis L. Hutchins, Jr., M.D. on behalf of themselves and all others similarly situated; Allen J. Kline, D.O., on behalf of himself and all others similarly situated; Brooks R. Susman; Paul Washington; Morgan P. Plant, on behalf of herself and all others similarly situated; Elizabeth Blackwell Health Center For Women; Planned Parenthood of Southeastern Pennsylvania; Reproductive Health and Counseling Center; and Women's Health Services, Inc., Appellants inross-Appellees inv. Richard THORNBURGH, H. Arnold Muller, Hellen B. O'Bannon, Michael J. Browne, William R. Davis, Leroy S. Zimmerman, personally and in their official capacities, and Joseph A. Smyth, Jr., personally and in his official capacity, together with all others similarly situated, Appellees inross-Appellants in
CourtU.S. Court of Appeals — Third Circuit

Kathryn Kolbert (argued), Women's Law Project, John G. Harkins, Jr., Laurence Z. Shiekman, Thomas E. Zemaitis (argued), Brenda Y. Moss, Nancy H. Fullam, Pepper, Hamilton & Scheetz, Philadelphia, Pa., LeRoy S. Zimmerman, Atty. Gen., Andrew S. Gordon, Deputy Atty. Gen. (argued), Daniel R. Schuckers, Asst. Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Harrisburg, Pa., Ronald T. Williamson, Asst. Dist. Atty., Norristown, Pa., for appellees.

Seth Kreimer, American Civil Liberties Union, University of Pennsylvania Law School, Philadelphia, Pa., Marsha Levick, NOW Legal Defense and Educ. Fund, New York City, for appellants.

John E. McKeever, Edward R. Grant, Gerry J. Woods, Joseph Cascarelli, Iovine & Woods, Philadelphia, Pa., for amici curiae, John D. Lane, M.D., et al.

Lori K. Serratelli, Serratelli & Schiffman, Andrea C. Jacobsen, Rains & Jacobsen, Harrisburg, Pa., for amici curiae, Pennsylvania NOW, The Greater Pittsburgh YWCA and The Philadelphia Reproductive Rights Organization.

Before SEITZ, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges.


SLOVITER, Circuit Judge.

The Supreme Court has firmly established that the fundamental constitutional protection of privacy encompasses a woman's right to obtain an abortion. At issue before us is the appellants' contention that Pennsylvania's 1982 Abortion Control Act, 18 Pa.Cons.Stat.Ann. Secs. 3201-3220 (Purdon 1983), impermissibly circumscribes that right. We examine that contention by considering the legislative background of the 1982 Act, the procedural posture of this case, the applicable Supreme Court decisions, and a section-by-section analysis of the Pennsylvania Act. We conclude that most of the provisions attacked by appellants are unconstitutional as a matter of law.


Until Pennsylvania enacted its first comprehensive statute dealing with abortion, the relevant law provided that any person who took steps aimed at "unlawfully" causing a woman's miscarriage committed a felony punishable by fine and imprisonment. See Penal Code of 1939, No. 375, Sec. 718, 1939 Pa.Laws 872, 958, saved from repeal, Crimes Code of 1972, No. 334, Sec. 5, 1972 Pa.Laws 1482, 1611 (repealed 1974). 1 Because the statute did not define "unlawfully" and did not specify whether therapeutic abortions were excepted, it was unclear whether a physician in Pennsylvania could legally terminate a pregnancy that involved substantial risk to the physical or mental health of the mother, although other jurisdictions permitted such abortions. See Trout, Therapeutic Abortion Laws Need Therapy, 37 Temp.L.Q. 172, 184-86 (1964); Note, The Antiquated Abortion Laws, 34 Temp.L.Q. 146, 150-51 (1961).

The landmark decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), invalidated statutes such as Pennsylvania's because a general prohibition of abortions violated a woman's fundamental constitutional right to privacy. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). The following year, Pennsylvania enacted the state's first comprehensive "Abortion Control Act" over the governor's veto. Abortion Control Act of 1974, No. 209, 1974 Pa.Laws 639 (amended 1978, repealed 1982). Many of the provisions of that Act, such as those requiring spousal or parental consent to an abortion, banning advertising of abortion procedures, and enacting a vague criminal standard governing abortions at "viability," were held unconstitutional. See Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554 (E.D.Pa.1975) (three-judge court), aff'd mem. in part sub nom. Franklin v. Fitzpatrick and vacated and remanded mem. in part sub nom. Beal v. Franklin, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976), modified on remand, No. 74-2440 (E.D.Pa. Sept. 16, 1977) (unreported), aff'd sub nom. Colautti v. Franklin, 439 U.S. 379, 384-86, 99 S.Ct. 675, 679-80, 58 L.Ed.2d 596 (1979) (explaining case history). See also Doe v. Zimmerman, 405 F.Supp. 534 (M.D.Pa.1975) (three-judge court).

Thereafter, members of the Pennsylvania legislature made a renewed effort to enact a comprehensive scheme that contained stringent limitations on abortions. 2 That bill was rejected by the relevant legislative committee; however, when presented on the floor of the House as an amendment to an unrelated Senate bill, 3 it passed overwhelmingly. Representative Stephen Freind, leader of floor debate and co-sponsor of the bill, reportedly explained its import at a news conference as follows:

Look, we can't stop abortions. The message we're sending to doctors is this: "We can't stop you from performing abortions. We wish we could, and we hope to God that someday we'll get the Human Life Amendment so we can. But until that time there are going to be regulations you'll have to follow if you're going to perform abortions."

Ecenbarger, The Life and Death of Senate Bill 742, Philadelphia Inquirer, Jan. 31, 1982, Today Magazine at 23.

The Senate, after scant debate, concurred in the House amendment. Pennsylvania's Governor, Dick Thornburgh, vetoed the bill stating,

I am concerned that [some] provisions, and to some extent the entire tone and tenor of the bill, would have the effect of imposing an undue, and, in some cases, unconstitutional burden upon even informed mature adults intent on obtaining an abortion under circumstances in which the U.S. Supreme Court has determined they are entitled to do so.

Veto Message to the Senate (Dec. 23, 1981), History of Senate Bills V-2, V-4 (1981-82). 4 The abortion control bill was then revised to some extent and, after being introduced on the floor of the House as an amendment to a bill regulating paramilitary training, passed both the House and Senate. It was signed by the Governor on June 11, 1982, to become effective December 8, 1982.

In brief, the 1982 Abortion Control Act imposes detailed regulation of abortions, requiring that a physician give specified information for informed consent; that a pregnant woman wait 24 hours to give her consent; that unemancipated minors obtain parental or judicial consent; and that all second trimester abortions be performed in hospitals. The Act also strictly limits abortions after a fetus may be "viable"; requires use of techniques and, in some instances, the presence of a second physician, to save the aborted fetus; imposes detailed reporting rules; requires pathology reports; restricts the use of public resources for abortions; 5 and regulates private insurance coverage. Physicians and clinics violating the Act's provisions are subject to criminal prosecution for felonies and misdemeanors, as well as to revocation or suspension of licenses and to civil tort liability.


Before the Act took effect, plaintiffs, the American College of Obstetricians and Gynecologists, Pennsylvania Section (ACOG), individual physicians who perform abortions, abortion clinics, clergy, and one woman who has health insurance including comprehensive coverage for abortion, filed suit in the United States District Court for the Eastern District of Pennsylvania alleging that the Act was unconstitutional in its entirety. They filed a motion for preliminary injunction, accompanied by 41 affidavits from physicians, minors, counselors, experts, clinic directors and religious leaders and a comprehensive memorandum of law. Defendants, the governor and six other state and local officials (referred to collectively as Pennsylvania), submitted an equally comprehensive opposing memorandum. The parties submitted the issues to the district court on a detailed stipulation of uncontested facts ("Stipulation") in lieu of testimony.

The district court issued an order on December 7, 1982 enjoining the mandatory 24-hour waiting period of section 3205. The court concluded, however, that plaintiffs had failed to establish a likelihood of success as to the remaining provisions and as to the Act in its entirety. American College of Obstetricians and Gynecologists v. Thornburgh, 552 F.Supp. 791 (E.D. Pa.1982). 6 In its opinion, the district court relied in significant part on two decisions from other circuits which were then pending before the Supreme Court, Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198 (6th Cir.1981), aff'd in part and rev'd in part, --- U.S. ----, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron ), and Planned Parenthood Association v. Ashcroft, 655 F.2d 848 (8th Cir.1981), aff'd in part and rev'd in part, --- U.S. ----, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (Ashcroft ).

Plaintiffs immediately filed a notice of appeal, and the Commonwealth cross-appealed as to the 24-hour waiting period. On December 9, 1982, this court granted plaintiffs' request for a stay...

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