Casey v. Planned Parenthood of Southeastern Pennsylvania

• Decision Date: 14 January 1994
• Docket Number: 93-1504,Nos. 93-1503,s. 93-1503
• Citation: 14 F.3d 848
• Parties: Robert P. CASEY; Allan S. Noonan; Ernest D. Preate, Jr., Petitioners, v. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA; Reproductive Health and Counseling Center; Women's Health Services, Inc.; Women's Suburban Clinic; Allentown Women's Center; and Thomas Allen, M.D., Respondents, and The Honorable Daniel H. Huyett, 3rd, Judge, United States District Court, Nominal Respondent. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA; Reproductive Health and Counseling Center; Women's Health Services, Inc.; Women's Suburban Clinic; Allentown Women's Center; Thomas Allen, M.D., on behalf of himself and all others similarly situated v. Robert P. CASEY; N. Mark Richards; Ernest D. Preate, Jr., personally and in their official capacities; Michael D. Marino, personally and in his official capacity, together with all others similarly situated Robert P. Casey, N. Mark Richards and Ernest D. Preate, Jr., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 848

14 F.3d 848

Robert P. CASEY; Allan S. Noonan; Ernest D. Preate, Jr., Petitioners, v. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA;

Reproductive Health and Counseling Center; Women's Health

Services, Inc.; Women's Suburban Clinic; Allentown Women's

Center; and Thomas Allen, M.D., Respondents,

and

The Honorable Daniel H. Huyett, 3rd, Judge, United States

District Court, Nominal Respondent.

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA;

Reproductive Health and Counseling Center; Women's Health

Services, Inc.; Women's Suburban Clinic; Allentown Women's

Center; Thomas Allen, M.D., on behalf of himself and all

others similarly situated v. Robert P. CASEY; N. Mark Richards; Ernest D. Preate, Jr.,

personally and in their official capacities; Michael D.

Marino, personally and in his official capacity, together

with all others similarly situated

Robert P. Casey, N. Mark Richards and Ernest D. Preate, Jr.,

Appellants.

Nos. 93-1503, 93-1504.

United States Court of Appeals,

Third Circuit.

Argued Sept. 8, 1993.

Decided Jan. 14, 1994.

John G. Knorr, III (argued), Office of Atty. Gen. of Pennsylvania, Dept. of Justice, Harrisburg, PA, for petitioners/appellants.

Kathryn Kolbert (argued), New York City, Linda J. Wharton, Women's Law Project, Philadelphia, PA, for respondents/appellees.

Roger K. Evans, Planned Parenthood Federation of America, Inc., New York City, for respondent/appellee Planned Parenthood of Southeastern Pennsylvania.

Before: SCIRICA, COWEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Supreme Court, in deciding this case on appeal, laid down a specific mandate: "The judgment in No. 91-902 is affirmed. The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability." Planned Parenthood of Southeastern Pa. v. Casey, --- U.S. ----, ----, 112 S.Ct. 2791, 2833, 120 L.Ed.2d 674 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.) ("Casey III"). ¹ We understood that opinion to resolve all questions in this case, except for severability. Instead, it has led to the present appeal of a district court order that not only reopens the case, but places in doubt the authority of the Supreme Court's decision. In its present guise, the case comes to us on a procedural matter, but one that calls into question the integrity of the three-tiered federal court system.

After the Supreme Court's decision, the abortion clinics challenging the Pennsylvania Abortion Control Act of 1982 as amended in 1988 and 1989, 18 Pa.Cons.Stat. Secs. 3203-20 (1990) ("the Pennsylvania Act"), ² moved to reopen the record in the district court and to continue the court's injunction against enforcement of the Pennsylvania Act, including those provisions the Supreme Court had declared constitutional, pending further proceedings. Planned Parenthood of Southeastern Pennsylvania v. Casey, 822 F.Supp. 227, 239 (E.D.Pa.1993) ("Casey V"). The clinics contended they should be allowed to introduce evidence to meet the new "undue burden" standard under which the Supreme Court upheld most of the Pennsylvania Act. The district court granted the motions, believing it would be unfair to deny the clinics the opportunity to present evidence under the new standard and finding nothing in the Supreme Court's decision foreclosing further factual development. Id. at 235-36 (1993). The Commonwealth of Pennsylvania has appealed.

We must first decide whether we have jurisdiction over the Commonwealth's appeal. Assuming we have jurisdiction, we must then decide whether the Supreme Court's mandate in this case upholding contested provisions of the Pennsylvania Abortion Control Act permits another pre-implementation constitutional challenge to those same provisions in this case. While we acknowledge the careful effort the able trial judge brought to consideration of this question, we conclude the district court's action did not follow the mandates of the Supreme Court and of this court.

In one critical respect, this case is like Aaron v. Cooper, 163 F.Supp. 13 (E.D.Ark.), rev'd, 257 F.2d 33 (8th Cir.), aff'd, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), where a district court concluded that the mandate of a Supreme Court opinion, Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), did not require the law of the case to be applied immediately. The United States Court of Appeals for the Eighth Circuit concluded, as we have, that the district court had "most carefully and conscientiously considered the problem presented," Aaron v. Cooper, 257 F.2d 33, 38 (8th Cir.1958), but held, as we now hold, that the district court erroneously interpreted the Supreme Court's mandate.

I.

This action concerns five provisions of the Pennsylvania Abortion Control Act of 1982. One provision, designed to ensure that a woman seeking an abortion has given her informed consent, requires the referring physician or the physician who will perform the abortion to speak with the patient at least 24 hours prior to the abortion, informing her of the nature and risks of abortion, the probable gestational age of the fetus, and the risks of carrying the child to term. One of those physicians, or a qualified medical practitioner, must also inform her of printed materials available from the Commonwealth concerning alternatives to abortion, medical assistance benefits for childbirth, and the liability of the father for support. 18 Pa.Cons.Stat. Sec. 3205. The second provision requires a minor seeking an abortion to obtain the informed consent of one parent, but contains a judicial bypass option for a minor who cannot or does not want to obtain a parent's consent. Id. Sec. 3206. The third provision requires a married woman seeking an abortion to notify her husband in advance of the abortion. Id. Sec. 3209. The fourth exempts a woman from each of these three requirements in the event of a "medical emergency," defined as a situation in which the physician believes an immediate abortion is necessary to avoid death or believes a delay "will create serious risk of substantial and irreversible impairment of major bodily function." Id. Sec. 3203. The fifth provision imposes recordkeeping and reporting requirements on physicians and abortion clinics. Id. Secs. 3207(b) & 3214(a).

In 1988, five abortion clinics and one physician challenged these statutory provisions as violating the right of privacy embodied in the Due Process Clause. After a bench trial, the district court struck down each provision for failing to meet the strict scrutiny test established by Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973), under which a law regulating abortion must be "narrowly drawn" to serve a "compelling state interest." Planned Parenthood of Southeastern Pennsylvania v. Casey, 744 F.Supp. 1323, 1372-95 (E.D.Pa.1990) ("Casey I" ).

We reversed on appeal. Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir.1991) ("Casey II" ). Our decision turned largely on our use of a different standard of review. Applying the rules governing plurality opinions of the Supreme Court set forth in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), ³ we concluded that intervening Supreme Court decisions had narrowed Roe so that strict scrutiny review applied only to those laws which imposed an "undue burden" on the woman seeking an abortion. Casey II, 947 F.2d at 697. We adopted the definition of "undue burden" set forth in Justice O'Connor's dissenting opinion in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983)--an "absolute obstacle[ ] or severe limitation[ ] on the abortion decision." Id. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). We held that only the spousal notification provision imposed such a burden and upheld the remaining provisions of the Pennsylvania Act.

The Supreme Court affirmed in part and reversed in part. Casey III, --- U.S. at ----, 112 S.Ct. at 2833 (1992). In considering the constitutionality of the Pennsylvania Act, the Court modified the "undue burden" standard that we had applied in two respects. ⁴ It defined an "undue burden" more broadly than we had done, as a provision whose "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id. at ----, 112 S.Ct. at 2821. In addition, the Court established the "undue burden" test as the sole standard for assessing the constitutionality of an abortion regulation, rather than as a threshold inquiry for triggering strict scrutiny review, as we had held. Id. at ----, 112 S.Ct. at 2817, 2820-21. The Court then applied its new test to uphold all but the spousal notification provision and its corresponding recordkeeping provision, id. at ---- - ----, 112 S.Ct. at 2821-33, and "remanded for proceedings consistent with this opinion, including consideration of the question of severability." Id. at ----, 112 S.Ct. at 2833.

On remand, we concluded the unconstitutional spousal notification provision and the corresponding recordkeeping provision were severable from the remainder of the Pennsylvania Act and we amended our judgment to reflect the Supreme Court's reversal of our judgment on the recordkeeping provision. We "remanded for such further proceedings as may be appropriate." Planned Parenthood of Southeastern Pennsylvania v. Casey, 978 F.2d 74, 78 (1992) ("Casey IV" ).

The clinics subsequently moved in the district court to reopen the record and to continue the injunction pending further development. In granting the motion, the district court held it had discretion under our remand order and that of the Supreme Court to reopen the record and receive further evidence, and chose to exercise that discretion. The court explained that...