Eubanks v. Brown

• Decision Date: 11 September 1984
• Docket Number: Civ. A. No. C 82-0360 L(A).
• Citation: 604 F. Supp. 141
• Parties: Samuel G. EUBANKS, MD; Ernest W. Marshall, MD; Walter M. Wolfe, MD; Philip S. Crossen, MD; Robert C. Long, MD; Ron Banchongmanie, MD; Ronald L. Levine, MD; Walter H. Zukof, MD. v. Governor John Y. BROWN; Steven L. Beshear, Atty. Gen.; David Armstrong, Comm. Atty, Jefferson Co.; Larry Roberts, Comm. Atty, Fayette County; J. Bruce Miller, Jefferson Co. Atty.; E. Lawson King, Fayette Co. Atty.; Grady Stumbo, Sec. for Dept. Human Relations.
• Court: U.S. District Court — Western District of Kentucky

604 F. Supp. 141

Samuel G. EUBANKS, MD; Ernest W. Marshall, MD; Walter M. Wolfe, MD; Philip S. Crossen, MD; Robert C. Long, MD; Ron Banchongmanie, MD; Ronald L. Levine, MD; Walter H. Zukof, MD. v. Governor John Y. BROWN; Steven L. Beshear, Atty. Gen.; David Armstrong, Comm. Atty, Jefferson Co.; Larry Roberts, Comm. Atty, Fayette County; J. Bruce Miller, Jefferson Co. Atty.; E. Lawson King, Fayette Co. Atty.; Grady Stumbo, Sec. for Dept. Human Relations.

Civ. A. No. C 82-0360 L(A).

United States District Court, W.D. Kentucky, Louisville Division.

September 11, 1984.

COPYRIGHT MATERIAL OMITTED

Nan D. Hunter, Janet Benshoof, Suzanne M. Lynn, ACLU Foundation, New York City, for plaintiffs.

James Dickinson, Frankfort, Ky., N. Scott Lilly, Louisville, Ky., Stanley Stratford, John Gray, Asst. Atty. Gen., Frankfort, Ky., William Hoge, David Lewis, James Ellis, Louisville, Ky., David Enlow, Lexington, Ky., for defendants.

MEMORANDUM OPINION

ALLEN, Chief Judge.

This action is submitted to the Court on the motion of the plaintiffs for summary judgment. The complaint filed by the plaintiffs requests the Court to declare unconstitutional the major sections of House Bill 339, which is an omnibus anti-abortion law enacted by the Legislature of Kentucky, which was scheduled to take effect on July 15, 1982. On July 9, 1982, this Court issued a continuing temporary restraining order against its implementation. Since the entry of that order, the United States Supreme Court has decided the cases of City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); and Simopoulos v. Virginia, 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983). This action, therefore, is ripe for decision.

Before analyzing the challenged sections of the abortion statute, the pertinent sections of which the Court will set out in an appendix, it is appropriate to discuss generally the principles that have been established in the field of abortion and constitutional law by the Supreme Court of the United States.

Mr. Justice Powell, in the City of Akron v. Akron Center supra, makes several general observations. The first is to the effect that "the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy." Id., 103 S.Ct. at 2487. Mr. Justice Powell also made it clear that "the full vindication of the woman's fundamental right necessarily requires that her physician be given `the room he needs to make his best medical judgment'." Id., at 2491. See also, Colautti v. Franklin, 439 U.S. 379, 387, 99 S.Ct. 675, 681, 58 L.Ed.2d 596 (1979). Mr. Justice Powell observes that the woman's fundamental right is not unqualified, but that any restrictive state regulation of the right to choose abortion must be supported by a compelling state interest. Id., 103 S.Ct. at 2491.

He then recognizes two compelling interests that may justify state regulation of abortions. The first is the interest in protecting the life of the unborn child which "becomes compelling only at viability, the point at which the fetus `has the capability of meaningful life outside the mother's womb'." Secondly, a State has a legitimate concern with the health of women who undergo abortions, but "this health interest does not become compelling until `approximately the end of the first trimester' of pregnancy." See Roe v. Wade, 410 U.S. 113, 154, 163, 93 S.Ct. 705, 727, 731, 35 L.Ed.2d 147 (1973) and City of Akron v. Akron Center, supra. "Until that time, a pregnant woman must be permitted, in consultation with her physician, to decide to have an abortion and to effectuate that decision `free of interference by the State'." Id., 103 S.Ct. at 2492.

While Mr. Justice Powell points out that the State may enact regulations touching on the woman's abortion right during the first weeks of pregnancy, these regulations "may not interfere with physician's-patient's consultation or with the woman's choice between abortion and childbirth." Id., at 2492-93. Mr. Justice Powell also points out that from approximately the end of the first trimester of pregnancy "the State `may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health'." Id., at 2493, citing Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973).

Coming now from the general to the specific, Section 2 of H.B. 339 (KRS 311.720) defines various terms used throughout the statute. Subsection 5 of Section 2 defines "fetus" as "a human being from fertilization until birth," and Section 6 defines "human being" as "any member of the species homo sapiens from fertilization until death." These two subsections are unconstitutional because they incorporate into the law a definition of life as beginning at fertilization, a theory which the Supreme Court has not adopted, and which the Supreme Court has held may not be used by a state in a statute to justify its regulation of abortion. See City of Akron v. Akron Center, supra, 103 S.Ct. at 2500.

Subsection 8 of Section 2 defines "viability" as "that stage of human development when the life of the unborn child may be continued by natural or life-supportive systems outside the womb of the mother." A similar definition was stricken in Colautti v. Franklin, 439 U.S. 379, 388, 99 S.Ct. 675, 682, 58 L.Ed.2d 596 (1979) as void for vagueness. In that case, the Supreme Court held that the usage of this definition of viability would subject physicians to possible prosecution for failing to perform to a standard based on what "may be" without reference to the conclusiveness of the physician's own judgment as a defense. The Attorney General of Kentucky has conceded that these statutes are vague.

The next attack is launched against Subsection 1 of Section 3, which requires that a physician must determine that an abortion is necessary before one can be performed. This statute on its face is constitutional as it is identical to the statute in Georgia which was approved by the Supreme Court in Doe v. Bolton, 410 U.S. 179, 191, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 et seq. (1973). See also, Charles v. Carey, 627 F.2d 772, 786-87 (7th Cir.1980).

However, the Kentucky statute is rendered unconstitutional, not by reason of its language pertaining to necessity, but by reason of the fact that the Legislature also has enacted Section 9, which is in conflict with Section 3(1). Section 3(1) states that no abortion shall be performed except by a physician, whereas Section 9 allows abortions during the first trimester by the woman upon the advice of a physician. By drafting these two sections in this manner, the Legislature has subjected both the physician and the woman to confusion and uncertainty regarding their rights, since the woman's apparent right under Section 9 to perform the abortion herself upon the advice of a physician during the first trimester is contrary to and completely superseded by Section 3(1), which placed the only right to perform an abortion in the hands of a physician. This bit of faulty draftsmanship could easily be corrected in future legislation.

The next attack is made upon Subsection 2 of Section 3, which requires that a private medical consultation between the patient and the physician shall be sufficiently long to enable a physician to determine whether, based upon his best clinical judgment, the abortion is necessary. In addition, the section requires that the physician who is to perform the abortion or the referring physician shall describe the basis for his or her judgment that the abortion is necessary on a form prescribed by the Department as required by KRS 213.055. This section is unconstitutional. In City of Akron v. Akron Center, supra, the Supreme Court held that requiring personal counseling to the pregnant woman by "the physician performing the abortion, or for that matter any physician," was not a justifiable vital state interest. Id., 103 S.Ct. at 2502. According to Mr. Justice Powell, "the critical factor is whether the woman obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it." Id. Clearly, the State cannot require such counseling to be performed only by physicians.

As to the requirement that the doctor describe the basis for his judgment, a similar requirement was struck down by the Northern District of Illinois in the case of Charles v. Carey, 579 F.Supp. 464, 466-67 (E.D.Ill.1983). The Court held that it is unconstitutional to require the doctor to describe the basis for his clinical judgment during the first trimester because such a requirement may unnecessarily interfere with both the confidentiality of the woman's abortion decision and the physician-patient consultation.

The next section under attack is Section 4 requiring a two hour waiting period after the signing of the consent form. The Supreme Court in the City of Akron v. Akron Center, supra, held unconstitutional a 24-hour waiting period. The Court stated that there was no evidence suggesting that the abortion procedure would be performed more safely because of the delay, nor was there any evidence that the State's legitimate concern that a woman's decision be informed was reasonably served by requiring a waiting period. The Court stated as follows:

We find that Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence suggesting that the abortion procedure will be performed more safely. Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. The decision

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