Coe v. Gerstein, 72-1842-Civ-JE.

• Decision Date: 17 April 1974
• Docket Number: No. 72-1842-Civ-JE.,72-1842-Civ-JE.
• Court: U.S. District Court — Southern District of Florida
• Parties: Nancy COE and Patricia Noe et al., Plaintiffs, v. Richard E. GERSTEIN, etc., et al., Defendants.

376 F. Supp. 695

Nancy COE and Patricia Noe et al., Plaintiffs, v. Richard E. GERSTEIN, etc., et al., Defendants.

No. 72-1842-Civ-JE.

United States District Court, S. D. Florida.

August 14, 1973.

As Amended August 22, 1973.

Rehearing Denied October 29, 1973.

Final Judgment April 17, 1974.

Robert Shevin, Atty. Gen., Tallahassee, Fla., and Robert Olian, Asst. Atty. Gen., Miami, Fla., for defendants-appellants.

Roy Lucas, Washington, D. C., and Joseph P. Farina, Miami Shores, Fla., for plaintiffs-appellants.

Before DYER, Circuit Judge, and MEHRTENS and EATON, District Judges.

OPINION

This class action for declaratory and injunctive relief, heard by a duly convened three-judge district court, is a constitutional challenge to Florida's regulation of therapeutic abortions. Three plaintiffs in this proceeding — Carmichael, Shore and Herman — are Florida-licensed physicians practicing in the field of Family Medicine. They attack the constitutionality of Fla.Stat.Ann. § 458.22(3) (1972) hereinafter the "spousal or parental consent" requirement,¹ and § 10D-0.05 of Rules on Termination of Pregnancy, Division of Health, Ch. 10D-65 (1972) hereinafter "Rules", Ch. 10D-65, prohibiting public advertisement of medical facilities available for the termination of pregnancies. The complaint was filed prior to January 22, 1973, the date on which the United States Supreme Court handed down its decisions 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). Subsequent to that date plaintiffs Coe² and Noe³, two females each pregnant for less than three months, were permitted to intervene. They join the physician-plaintiffs in attacking the constitutionality of the "spousal or parental consent" requirement, and in addition, challenge both Fla.Stat.Ann. § 458.22(2) (1972) hereinafter the "approved facility" requirement, and Ch. 10D-65 of the "Rules" in its entirety — on the grounds that they are constitutionally impermissible State interferences with a woman's right of privacy, as that right encompasses the decision to terminate a pregnancy. The defendants are officials of the State of Florida charged with the enforcement of the disputed sections of the statute and the rules promulgated under the statute.

The State of Florida has expressly abandoned any defenses relating to the "approved facility" requirement or to the "Rules", Ch. 10D-65 in its entirety, acknowledging that these issues are foreclosed by the decisions in Roe v. Wade, supra, and Doe v. Bolton, supra. We agree that these issues are foreclosed and hold that F.S.A. § 458.22(2), the "approved facility" requirement, and the Division of Health Rules, Ch. 10D-65, are constitutionally invalid because they make no distinction between the first trimester of pregnancy, a period in which the State may not interefere by regulating a woman's decision to terminate a pregnancy, and the latter trimesters where the State may impose regulations reasonably related to the preservation and protection of maternal health. Roe v. Wade, 93 S.Ct. at 731-732. In addition, neither the statute nor the "Rules" makes any distinction between the period prior to viability of the fetus, a period in which the State has no compelling interest in preserving and protecting potential life, and the period after viability where the State may regulate the termination of pregnancy to protect potential life. Id. Since the "approved facility" requirement and the "Rules" do not make these distinctions, they "sweep too broadly ... and, therefore, cannot survive the constitutional attack made upon them here." Id. at 732.

The only issue which the State of Florida has contested is plaintiffs' constitutional attack on F.S.A. § 458.22(3), the "spousal or parental consent" requirement. Roe v. Wade, supra, and Doe v. Bolton, supra, are not directly in point on this question. Those cases dealt specifically with the State's interest in the protection of potential life, which may be termed the interest of the fetus, and the State's interest in the protection of maternal health, which may be termed the interest of the mother. They did not address the interests of third parties, such as the husband or father, or the parents of an unmarried pregnant female minor. Neither issue was raised by the factual or statutory setting of the two cases, and the Supreme Court did not decide the constitutionality of these types of consent provisions.⁴

In Roe v. Wade, supra, the Supreme Court concluded that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." 93 S.Ct. at 727. State regulation limiting this right "may be justified only by a `compelling state interest'." Id. at 728. Compelling state interests were recognized in two areas: (1) the State may intervene and regulate abortions to protect maternal health after approximately the end of the first trimester of pregnancy, and (2) the State may intervene and regulate, or even proscribe, abortions after the fetus becomes viable. Id. at 731-732. The State is therefore forbidden from any regulation, at least in order to protect maternal health or potential life, until these "compelling points" are reached; as a result, the pregnant woman's right of privacy is "sole" during the first trimester. Id. at 730.

We are persuaded that if the State cannot interfere to protect the fetus' interest in its potential life until the compelling point of viability is reached, neither can it interfere on behalf of husbands or parents to protect their interests in that potential life until the fetus becomes viable. We are persuaded, also, that if the State cannot interfere to protect the pregnant woman's physical or mental health until approximately the end of the first trimester, neither can it interfere on behalf of husbands or parents to protect their interests in her health until that point is reached. If the State could demonstrate that the third-party interests sought to be protected by this provision attach at the moment of conception and are interests which fall completely outside the categories of protection of maternal health and potential life, Roe v. Wade, supra, would not be controlling and the provisions would withstand constitutional attack.

We recognize that the interest of the husband in the embryo or fetus carried by his wife, especially if he is the father⁵, is qualitatively different from the interest which the mother may have in her health and the interest of the viable fetus in its potential life. The interest which a husband has in seeing his procreation carried full term is, perhaps, at least equal to that of the mother. The biological bifurcation of the sexes, which dictates that the female alone carry the procreation of the two sexes, should not necessarily foreclose the active participation of the male in decisions relating to whether their mutual procreation should be aborted or allowed to prosper. It may be that the husband's interest in this mutual procreation attaches at the moment of conception.

We recognize further that the interest of parents within a family unit is qualitatively different, at least in part, from the interest which a pregnant minor daughter may have in her maternal health and the interest which the viable fetus may have in its potential life. The State of Florida has urged persuasively that the family unit is, except by positive provision of state law to the contrary, a self-governing entity and that the traditional and primary obligation for the custody, care, control, and nurture of minor children resides in their parents.

But while these paternal and parental interests may be compelling, and may in fact exist at the moment of conception, it is apparent that not all paternal or parental interests fall outside the categories of protection of maternal health and potential life. We cannot avoid the conclusion that at least a portion of the interests which husbands and parents have in their pregnant wives or minor daughters may be reasonably related to protection of maternal health and protection of potential life. The failure of the Florida "spousal or parental consent" requirement is that it gives to husbands and parents the authority to withhold consent for abortions for any reason or no reason at all. It allows a husband or parent to withhold consent out of concern for maternal health or the potential life of...