Birth Control Centers, Inc. v. Reizen

• Decision Date: 02 March 1981
• Docket Number: Civ. A. No. 80-70508.
• Parties: BIRTH CONTROL CENTERS, INC., East Gyn Center, Inc., Northland Family Planning Clinic, Inc., Northland Family Planning Clinic West, Inc., Leon A. Hockman, M.D., Richard Goldfine, M.D., Julio B. Acosta, M.D., Enrique B. Gerby, M.D., Youl Choi, M.D., Plaintiffs, v. Maurice S. REIZEN, M.D., Director, Michigan Department of Public Health, Defendant.
• Court: U.S. District Court — Western District of Michigan

508 F. Supp. 1366

BIRTH CONTROL CENTERS, INC., East Gyn Center, Inc., Northland Family Planning Clinic, Inc., Northland Family Planning Clinic West, Inc., Leon A. Hockman, M.D., Richard Goldfine, M.D., Julio B. Acosta, M.D., Enrique B. Gerby, M.D., Youl Choi, M.D., Plaintiffs, v. Maurice S. REIZEN, M.D., Director, Michigan Department of Public Health, Defendant.

Civ. A. No. 80-70508.

United States District Court, E. D. Michigan, S. D.

March 2, 1981.

COPYRIGHT MATERIAL OMITTED

Bette Huster, Detroit, Mich., for plaintiffs.

Walter Kron, Asst. Atty. Gen., Public Health Division, Lansing, Mich., for defendant.

OPINION

FEIKENS, Chief Judge.

This is a civil action for declaratory and injunctive relief under 42 U.S.C. § 1983 challenging the constitutionality of certain provisions of the Michigan Public Health Code, Public Act 368 of 1978, M.C.L. §§ 333.1101 et seq. (M.S.A. §§ 14.15(1101) et seq.) ("the Act"), and the regulations promulgated thereunder, Michigan Administrative Code ("M.A.C.") R. 325.3801 et seq., which provide for the licensing and regulation of "freestanding surgical outpatient facilities" ("FSOFs").¹ An FSOF is defined in the statute as

a facility, other than the office of a physician, dentist, podiatrist, or other private practice office, offering a surgical procedure and related care that in the opinion of the attending physician can be safely performed without requiring overnight inpatient hospital care. It does not include a surgical outpatient facility owned by and operated as part of a hospital. M.C.L. § 333.20104(5) (M.S.A. § 14.15(20104(5)).

Plaintiffs in this case are four clinics in which first-trimester abortions are performed, and five physicians who perform abortions in those clinics. All of these plaintiffs have standing to assert not only their own rights, but also to sue on behalf of pregnant women who intend to terminate their pregnancies and whose rights may be affected by the regulatory scheme at issue.² Mahoning Women's Center v. Hunter, 610 F.2d 456 (6th Cir. 1979); Abortion Coalition of Michigan, Inc. v. Michigan Department of Public Health, et al., 426 F.Supp. 471, 473 (E.D.Mich.1977). The defendant is Maurice Reizen, Director of the Michigan Department of Public Health ("MDPH" or "the Department"), the agency authorized to promulgate and enforce regulations implementing the Act.

The events precipitating this suit were the notifications sent on January 23, 1980 by the Department to the plaintiff clinics asking them to immediately apply for licenses under Public Act 368. Failure to apply for a license as required by statute can result in criminal prosecution.³ The plaintiffs subsequently filed a motion for preliminary injunction, which was heard on February 2, 1980. Upon assurance from the State that it would not seek to prosecute plaintiffs for their failure to apply for licenses pending resolution of the case on the merits, I denied plaintiffs' motion for preliminary injunction since irreparable harm was no longer threatened.

In the evidentiary hearing which followed, plaintiffs presented evidence to challenge the Act and regulations on due process and equal protection grounds. Plaintiffs argue that the regulatory scheme as a whole is an impermissible regulation of first-trimester abortions in violation of the due process right of privacy recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Particular regulations are also attacked as unduly burdening that constitutional right, including Rules 26(2), 32, 33, 35(1), 35(3), 38, 47(5), 47(6), 51, 57(6), 66, 67 and 68, all of which will be described in greater detail later. Plaintiffs also claim that the State has irrationally chosen to regulate FSOFs while ignoring the private practice offices of doctors, dentists or podiatrists, where the same surgical procedures may be performed without regulation. Finally, plaintiffs contend that the State is selectively enforcing its regulations in singling out abortion clinics for licensure in violation of the equal protection clause.

I. Due Process

A. Constitutional Standard

Regulation which restricts the exercise of certain "fundamental rights" may be justified only by a "compelling state interest." Roe v. Wade, supra, 410 U.S. at 155, 93 S.Ct. at 728. Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). In the landmark cases of Roe v. Wade, supra, and Doe v. Bolton, supra, the Supreme Court established that a woman's decision whether or not to terminate her pregnancy is a fundamental right protected by the Constitution, and defined the State interests to be weighed against a woman's privacy right at each trimester of pregnancy. During the first trimester, the stage of pregnancy relevant to this case, the privacy right of a pregnant woman is paramount. The State's interest in the health of the mother only becomes compelling at the end of the first trimester.⁴ This means that

From and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. emphasis added. Roe, supra, 410 U.S. at 163, 93 S.Ct. at 732.

The Court went on to hold:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Id., 410 U.S. at 164, 93 S.Ct. at 732.

Although the above language lends support to plaintiffs' argument that a licensing and regulatory scheme is per se unconstitutional as applied to first-trimester abortion facilities, an examination of cases decided since Roe makes it clear that Roe is not to be interpreted as precluding all state regulation during the first trimester. In Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975), for example, a statute proscribing any abortion by a non-physician was sustained even though some language in Roe would seemingly prohibit regulations as to the qualifications of the person performing a first-trimester abortion.⁵ The Court upheld regulation in the first trimester with the following justification:

... The insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion's being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions assuring maximum safety for the woman. Id., 423 U.S. at 11, 96 S.Ct. at 171.

The Court subsequently approved reporting and recordkeeping requirements which applied to facilities and physicians performing first-trimester abortions in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), even though the regulations differed from those imposed on comparable medical procedures. The Court saw "no legally significant impact or consequence on the abortion decision or on the physician-patient relationship" caused by the reporting and record-keeping regulations. Id., 428 U.S. at 81, 96 S.Ct. at 2846.

More recently the Court has articulated the standard for evaluating abortion regulations in terms of whether the regulation "unduly burdens the right to seek an abortion." Maher v. Roe, 432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977), quoting Belotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). Not all distinction between abortion and other procedures is forbidden. Rather "(t)he constitutionality of such distinction will depend upon its degree and the justification for it." Belotti, supra, 428 U.S. at 149-150, 96 S.Ct. at 2867. Insofar as the right established in Roe v. Wade protects a woman from "unduly burdensome interference with her freedom to decide whether to terminate her pregnancy," Maher v. Roe, supra, 432 U.S. at 473-474, 97 S.Ct. at 2382, it requires a consideration of both "the woman's interest and the nature of the State's interference with it." Id., 432 U.S. at 473, 97 S.Ct. at 2382.⁶

Clearly, any regulation which interposes an absolute obstacle to a woman's freedom to choose to terminate her pregnancy during the first trimester would be constitutionally impermissible. Requirements of spousal, and for minors, parental, consent to an abortion were held unconstitutional in Planned Parenthood of Missouri v. Danforth, supra, because those provisions granted authority to a third person to unilaterally prevent the effectuation of an abortion decision made by a woman and her physician.

A number of courts have also invalidated regulations which single out the abortion procedure without compelling justification for doing so, or which single out abortion clinics, but not other comparable facilities, for regulation. See Arnold v. Sendak, 429 U.S. 968, 97 S.Ct. 476, 50 L.Ed.2d 579 (1976), in which the Court summarily affirmed invalidation of an Indiana statute requiring that all first-trimester abortions be performed in a hospital or licensed health facility; Mahoning Women's Center v. Hunter, 610 F.2d 456 (6th Cir. 1979); Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied sub nom Chicago Bd. of Health v....