Leigh v. Olson

• Decision Date: 26 September 1980
• Docket Number: Civ. No. A3-79-78.
• Citation: 497 F. Supp. 1340
• Parties: Dr. Richard LEIGH, Individually and on behalf of his patients and on behalf of all other physicians and persons similarly situated; and Jane Bovard, Individually and on behalf of all others similarly situated, Plaintiffs, v. Allen I. OLSON, Individually and as Attorney General of the State of North Dakota; James T. Odegard, Individually and as Grand Forks County State's Attorney; Cynthia A. Rothe, Individually and as Cass County State's Attorney; Dr. Jonathan B. Weisbuch, Individually and as State Health Officer of the North Dakota Health Department, Defendants.
• Court: U.S. District Court — District of South Dakota

497 F. Supp. 1340

Dr. Richard LEIGH, Individually and on behalf of his patients and on behalf of all other physicians and persons similarly situated; and Jane Bovard, Individually and on behalf of all others similarly situated, Plaintiffs, v. Allen I. OLSON, Individually and as Attorney General of the State of North Dakota; James T. Odegard, Individually and as Grand Forks County State's Attorney; Cynthia A. Rothe, Individually and as Cass County State's Attorney; Dr. Jonathan B. Weisbuch, Individually and as State Health Officer of the North Dakota Health Department, Defendants.

Civ. No. A3-79-78.

United States District Court, D. North Dakota, Southeastern Division.

September 26, 1980.

COPYRIGHT MATERIAL OMITTED

C. Nicholas Vogel, Atty., Red River Valley Chapter of American Civil Liberties Union, Fargo, N. D., for plaintiffs.

Mervin Nordeng, Asst. State's Atty., Fargo, N. D., for Cynthia A. Rothe.

A. R. Hausauer, Jr., Asst. State's Atty., Grand Forks, N. D., for James T. Odegard.

Allen I. Olson, Atty. Gen. and Rick D. Johnson, Asst. Atty. Gen., Bismarck, N. D., for Allen I. Olson.

MEMORANDUM AND ORDER

BENSON, Chief Judge.

Plaintiffs in this action contend that certain provisions of the North Dakota Abortion Control Act, N.D.Cent.Code ch. 14-02.1, violate the constitutional right of women to obtain an abortion in the first trimester of pregnancy. In its order of July 9, 1979, the court preliminarily enjoined the enforcement of N.D.Cent.Code §§ 14-02.1-02(4), 14-02.1-03, and 14-02.1-06, relating to informed consent to abortion, a mandatory forty-eight hour waiting period, parental notification in cases involving unemancipated minors, and the solicitation of abortions. The parties have filed cross motions for summary judgment pursuant to F.R. Civ.P. 56, supported by affidavits, deposition testimony, and other exhibits. The affidavits do raise some genuine issues as to material facts but the parties have agreed that the court may treat the case as having been fully presented. Judgment is therefore appropriate. U. S. Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156 (8th Cir. 1978).

Defendants have moved to dismiss plaintiffs' challenge to N.D.Cent.Code § 14-02.1-08, relating to the protection of a viable fetus born alive. Plaintiffs concur in the motion to dismiss, conceding that they lack standing to attack the statute because plaintiff Leigh does not generally perform abortions after the first trimester of pregnancy, and plaintiff Bovard does not perform abortions.

The specific provisions of ch. 14-02.1 which are the subject of plaintiffs' motion for summary judgment are as follows: (1) § 14-02.1-02(4)(c), (d), and (f), which prescribes the information reasonably chargeable to the knowledge of the physician that must be disclosed to the woman seeking an abortion before an abortion may be performed; (2) § 14-02.1-03(1), which mandates a forty-eight hour waiting period after the woman is given the information required by § 14-02.1-02 before the abortion may be performed, and which requires that the parents of unemancipated minors be informed of their daughter's decision to obtain an abortion; (3) § 14-02.1-06, which prohibits the solicitation of abortions; (4) § 14-02.1-07(1)(a), which requires that certain records pertaining to abortions performed be maintained for seven years; and (5) § 14-02.1-09, which requires the humane disposal of nonviable fetuses. Section 14-02.1-11 imposes a criminal penalty for violation of any of the provisions of ch. 14-02.1.

Plaintiff Leigh is a board certified obstetrician-gynecologist in Grand Forks, North Dakota, who performs abortions. Plaintiff Bovard is a counselor who desires to give information and advice concerning abortion to women in North Dakota who seek such a service.¹ Plaintiff Leigh may assert the rights of those women who are seeking or will seek to obtain an abortion, for "it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision ...." Singleton v. Wulff, 428 U.S. 106, 118, 96 S.Ct. 2868, 2876, 49 L.Ed.2d 826 (1976).

I. PRINCIPLES OF LAW APPLICABLE TO ABORTION.

A. Substantive Due Process

The decision to obtain an abortion free from governmental interference is a fundamental right founded in the right of privacy implicit in the Constitution. Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The state may limit the exercise of that fundamental right only when a compelling state interest is furthered thereby. The state has important interests in maternal health and in the preservation of potential human life, but neither of these interests are "compelling" in the first trimester of pregnancy, although they are legitimate. Id. at 162-63, 93 S.Ct. at 731. Any statute or regulation that unduly burdens the abortion decision in the first trimester of pregnancy is therefore invalid. Maher v. Roe, 432 U.S. 464, 473, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977); Bellotti v. Baird, 428 U.S. 132, 147, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976). A regulation that does not unduly burden the abortion decision is constitutional if it is rationally related to a legitimate state purpose. Harris v. McRae, ___ U.S. ___, ___, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980); Maher v. Roe, supra.

B. Equal Protection

A statutory classification based on a "suspect" criterion, such as race, may be upheld only if it furthers a compelling state interest. Harris v. McRae, supra. Statutory classifications based on non-suspect criteria will be upheld if they rationally further a legitimate state interest. Id. The regulation of abortion is not a suspect criterion. It is "inherently different than other medical procedures," ___ U.S. at ___, 100 S.Ct. at 2692, and may therefore be subjected to different, more stringent standards than other medical procedures, if a legitimate state interest, such as the preservation of maternal health or the protection of potential life, is rationally furthered by the differential treatment. Id.; Maher v. Roe, supra. See also Women's Services, P. C. v. Thone, 483 F.Supp. 1022, 1041 (D.Neb.1979).

II. THE ABORTION CONTROL ACT.

Plaintiffs place primary emphasis on the alleged due process violations of N.D.Cent. Code ch. 14-02.1.

A. Informed Consent

N.D.Cent.Code § 14-02.1-03(1) provides that "no physician shall perform an abortion unless prior to such performance the physician certified in writing that the woman gave her informed consent fully and without coercion, after the attending physician had informed the woman of the information contained in section 14-02.1-02...." Section 14-02.1-02(4) defines "informed consent" as

voluntary consent to abortion by the woman upon whom the abortion is to be performed only after full disclosure to her by the physician who is to perform the abortion of as much of the following information as is reasonably chargeable to the knowledge of the physician in his professional capacity:

a. According to the best judgment of her attending physician, she is pregnant.

b. The number of weeks elapsed from the probable time of the conception of her unborn child, based upon the information provided by her as to the time of her last menstrual period or based upon a history and physical examination and appropriate laboratory tests.

c. The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

d. The immediate and long-term physical dangers of abortion, psychological trauma resulting from abortion, sterility and increases in the incidence of premature births, tubal pregnancies and stillbirths in subsequent pregnancies, as compared to the dangers in carrying the pregnancy to term.

e. The particular risks associated with her own pregnancy and the abortion technique to be performed.

f. Alternatives to abortion such as childbirth and adoption and information concerning public and private agencies that will provide the woman with economic and other assistance and encouragement to carry her child to term including, if the woman so requests, a list of the agencies and the services available from each.

g. In cases where the fetus may reasonably be expected to have reached viability and thus be capable of surviving outside of her womb, the attending physician shall inform the woman of the extent to which he is legally obligated to preserve the life and health of her viable unborn child during and after the abortion.

Plaintiffs attack only subsections (c), (d) and (f) of § 14-02.1-02(4), contending that they unduly burden the woman's fundamental right to decide, in consultation with her physician, to obtain an abortion.

In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court held that a state may require that the abortion decision be informed, and that there be documentation of the informed consent to abortion before the performance of abortion. Id. at 67, 96 S.Ct. at 2840. The informed consent provision in question in Danforth provided that "no abortion shall be performed prior to the end of the first twelve weeks of pregnancy except: . . . (2) After the woman, prior to submitting to the abortion, certifies in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion." Id. at 85, 96 S.Ct. at 2848. The Court appears to have concluded that the informed consent procedure imposed by the Missouri statute did not unduly burden the abortion decision, and that it furthered the state's legitimate interest in assuring that the decision to abort is made in a knowing, intelligent and voluntary fashion. Id. at 90, 96 S.Ct. at 2850 (Stewart, J., concurring). The Court indicated that a more detailed informed consent requirement may be overly intrusive into the private physician-patient relationship, thus...