Doe v. Deschamps, CV 74-120-M.

• Decision Date: 05 November 1976
• Docket Number: No. CV 74-120-M.,CV 74-120-M.
• Citation: 461 F. Supp. 682
• Parties: Jane DOE and James Armstrong, M.D., Plaintiffs, v. Robert L. DESCHAMPS, III, Missoula County Attorney, H. James Oleson, Flathead County Attorney, and Robert L. Woodahl, Attorney General for the State of Montana, Defendants.
• Court: U.S. District Court — District of Montana

461 F. Supp. 682

Jane DOE and James Armstrong, M.D., Plaintiffs, v. Robert L. DESCHAMPS, III, Missoula County Attorney, H. James Oleson, Flathead County Attorney, and Robert L. Woodahl, Attorney General for the State of Montana, Defendants.

No. CV 74-120-M.

United States District Court, D. Montana, Missoula Division.

November 5, 1976.

James B. Wheelis, Datsopoulos & McDonald, Missoula, Mont., American Civil Liberties Union by Judith M. Mears, Director, Reproductive Freedom Project, ACLU, New York City, for plaintiffs.

Robert L. Woodahl, pro se.

John F. North, Thomas J. Beers, Helena, Mont., for defendant Woodahl.

Dennis E. Lind, Deputy County Atty., Missoula, Mont., for defendant Deschamps.

H. James Oleson, pro se.

Patrick M. Springer, County Atty., Kalispell, Mont., for defendants.

Before BROWNING, Circuit Judge, and SMITH and JAMESON, District Judges.

ORDER and MEMORANDUM OPINION

PER CURIAM:

Following the decision of this court in Doe v. Woodahl, 360 F.Supp. 20 (D.Mont. 1973), holding invalid Montana statutes regulating abortion, the Montana legislature in 1974 enacted the Montana Abortion Control Act, R.C.M.1947, § 94-5-613, et seq., with the intent "to restrict abortion to the extent permissible under decisions of appropriate courts or paramount legislation". § 94-5-623. Plaintiff Jane Doe is a married woman who was pregnant when this action was filed. She arranged with plaintiff James Armstrong, M.D. for an abortion. The abortion was performed in the course of Dr. Armstrong's regular medical practice. Both plaintiffs complied with the Montana Abortion Control Act. They brought this action challenging the validity of various provisions of the Act and the regulations promulgated thereunder and sought to enjoin their enforcement.

This three-judge court was convened pursuant to 28 U.S.C. § 2281. Following submission of briefs it was learned that some of the issues raised in this action were before the Supreme Court. Accordingly an order was entered on December 31, 1975 deferring submission of this case until the decisions of the Supreme Court of the United States in Planned Parenthood of Central Missouri v. Danforth, No. 74-1151, and Danforth v. Planned Parenthood of Central Missouri, No. 74-1419 became final. These were appeals by the respective parties from a judgment entered in an action instituted by Planned Parenthood of Central Missouri challenging the constitutionality of Missouri statutes on abortion. The case was decided by the Supreme Court on July 1, 1976,¹ 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. Accordingly this court is now in a position to render its decision on the constitutionality of the questioned provisions of the Montana Act in the light of the Supreme Court guidelines on abortion regulation.

Challenged Provisions

The plaintiffs contend that the following provisions are unconstitutional on their face:

(1) Section 94-5-616(1) — making it a misdemeanor for a physician to perform an abortion in the absence of informed consent which, as defined by § 94-5-615(3), requires the physician to certify on state supplied forms that the patient has been advised of the nature of the surgical procedure, its consequences and alternatives, and that the patient has voluntarily consented to the procedure.

(2) Section 94-5-616(2) — prohibiting any abortion to be performed unless a written notice is provided to the woman's husband, unless she is separated, or to the woman's parents if she is under 18 years of age and unmarried.

(3) Section 94-5-617(1) — providing criminal liability for any person causing the death of a viable fetus delivered during an abortion. The term "viable" is defined in § 94-5-615(5) as meaning "the ability of a fetus to live outside the mother's womb, albeit with artificial aid".

(4) Section 94-5-617(2) — providing that a premature infant who was the subject of an abortion is a dependent and neglected child and thus a ward of the state unless (a) the abortion was required to preserve the life of the mother, or (b) the parents agree within 72 hours after the abortion to accept parental rights.

(5) Section 94-5-618(1)(c) — requiring that the attending physician obtain the consent of two additional physicians before performing an abortion not necessary to save the woman's life in cases where the woman is carrying a viable fetus.

(6) Section 94-5-618(3) — prohibiting the solicitation, advertising or other communication having the purpose of inviting, inducing, or attracting a person to have an abortion or purchase abortifacients.

(7) Section 94-5-619 — establishing reporting requirements for physicians and medical facilities performing abortions and requiring pathology studies and reports on aborted fetuses; and authorizing the State Department of Environmental Sciences to promulgate regulations with respect thereto.

Supreme Court Decisions

Guidelines for determining the constitutionality of state statutes and regulations on abortion were established 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). As the Court noted in Planned Parenthood v. Danforth, that case is a "logical and anticipated corollary" to Roe and Doe and presented questions forecast and reserved in Roe and Doe.

In Roe v. Wade, the Court held invalid a state law making abortions illegal except when necessary to preserve the life of the mother. The Court found an unconstitutional interference with the woman's right of privacy which encompassed her decision of whether to terminate her pregnancy. The Court stressed, however, that the woman's right was not absolute, but rather must be balanced against the state's right to protect potential life and safeguard maternal and infant health. In balancing these interests, the Court concluded at 410 U.S. 164-66, 93 S.Ct. 732-33:

"1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(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.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother . . .

This decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."

Doe v. Bolton involved the validity of a more modern abortion statute which allowed the physician to give abortions in accordance with "his best clinical judgment". The Court upheld that standard, but struck down provisions of the statute which required that (1) abortions be given only in certain accredited hospitals; (2) the hospital board of directors give approval to any abortion; and (3) two physicians in addition to the attending doctor acquiesce in the decision. The Court held that these requirements were constitutionally invalid because they failed to distinguish between the changing degree of state interests during the three trimesters of pregnancy and because they unduly infringed on the patient's and physician's rights.

In Planned Parenthood v. Danforth the Court resolved some of the questions left unanswered in Roe and Doe and refined further the standards set forth in those cases in ruling on the validity of a state law enacted for the express purpose of limiting abortions under the Roe and Doe guidelines.

The Court upheld the definition of fetal viability, which was framed in terms of Roe's language "potentially able to live outside the mother's womb, albeit with artificial aid". 410 U.S. at 160, 93 S.Ct. at 730. The Court found constitutionally permissible a provision requiring the physician to insure that the woman gave "informed consent" to the abortion before it was performed. Also upheld were record keeping and reporting requirements which the Court found to have medical value. The Court, however, held unconstitutional four provisions of the Missouri law:

First, a provision requiring spousal consent for married women was found to be an unconstitutional attempt to delegate a veto power to a spouse which the state itself "was prohibited from exercising during the first trimester of pregnancy".

Second, for substantially the same reasons the Court found invalid a blanket parental consent requirement with respect to an under-18-year-old pregnant minor.

Third, the Court held that the State could not prohibit a specific type of abortion procedure where the regulation was not a reasonable protection of maternal health.

Fourth, a provision requiring a physician to preserve a fetus' life and health was found invalid since it did not define the physician's duty in terms of the viability of the fetus.

Although in Planned Parenthood v. Danforth the Court addressed new issues not raised in Roe and Doe, it was stressed...