Mahoning Women's Center v. Hunter

Decision Date18 December 1979
Docket NumberNos. 77-3406,77-3524,s. 77-3406
Citation610 F.2d 456
PartiesMAHONING WOMEN'S CENTER, Plaintiff-Appellee, Cross-Appellant, v. Jack C. HUNTER, Mayor and President of the Board of Health; Donald Baker, Chief of Police; Richard Hughey, Herman "Pete" Starks, Patrick J. Ungaro, Robert G. Spencer, Leonard J. Yurcho, Michael J. Crogan, and John T. Murphy, City Council Members; Dr. Samuel Goldberg, Douglas K. Everett, Warren Harrell, Jr., Mrs. Doris Rinkov, and Mrs. Joyce Kester, Board of Health Members, Defendants- Appellants, Cross-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Leonard D. Schiavone, Law Dept., William J. Higgins, Youngstown, Ohio, for defendants-appellants.

Robert Destro, Thomas Keenan, Joseph Meissner, Lawyers for Life, Cleveland, Ohio, for amicus "Lawyers for Life".

Dennis Haines, Green, Schiavoni, Murphy & Haines, Patricia S. Roberts, Youngstown, Ohio, for plaintiff-appellee.

Robert P. App, ACLU of Ohio Foundation, Inc., Columbus, Ohio, Robert Destro, Cleveland, Ohio, for amicus ACLU.

Before ENGEL and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

MERRITT, Circuit Judge.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held under the due process clause that a woman's right to choose an abortion is a protected liberty sufficiently important that a legislative majority may not prohibit it entirely or burden it significantly during the first trimester. The Youngstown city ordinance in question here, as District Judge Lambros concluded, 1 so undermines the effective enjoyment of the rights guaranteed in Wade as to render the ordinance invalid. The ordinance imposes a series of costly medical and building code regulations on abortion clinics performing first trimester abortions.

I.

Shortly after Mahoning Women's Center, Inc. leased space in Youngstown, Ohio, for use as a first-trimester abortion clinic, the city council enacted Chapter 98.00 of its Revised Code of Ordinances, entitled "ABORTIONS." Among the multitude of medical and surgical techniques and operations in existence, Youngstown has singled out for extensive regulation only medical clinics performing abortions. It requires abortions after the first trimester to be performed in a hospital licensed as a maternity unit by the Department of Health of the State of Ohio. Its other provisions apply to All abortions (i. e., first-trimester abortions) not performed in a hospital regulated by the Department of Health of the State of Ohio, including individual physicians' offices. They prohibit operation of a non-hospital abortion service without a license issued by the Board of Health of the City of Youngstown.

The ordinance recites that its single purpose is to require "the highest standards of health care . . . for the protection of the pregnant woman." To that end, the ordinance regulates the location and physical conditions of abortion clinics, qualifications of its staff, the types of services and equipment required, and the procedures to be followed. Some of the requirements do little more than ensure sanitation, orderliness, and the privacy and comfort of patients. Others, taken together, effectively require that all first-trimester abortions be performed in facilities that are the functional equivalent of a hospital. Abortion operations must be supervised by a "diplomate of the American Board of Obstetrics and Gynecology," a "professor of medicine" or other highly qualified "obstetrician," and only obstetricians or surgeons may perform the abortions. Anesthesia may only be administered by an anesthesiologist. Nursing personnel must be supervised and directed by a registered nurse with post-graduate education or experience in obstetric or gynecological nursing. The clinic must have expensive and elaborate equipment: a cardiac defibrillator; an X-ray machine; knee or foot controlled sinks; a clinical laboratory equipped to perform a broad spectrum of required tests; a standard operating room or a written agreement with a hospital located within a total transport time of fifteen minutes for use of a standard operating room.

Other provisions require the pregnant woman's written, informed consent before an abortion can be performed, and establish extensive recordkeeping requirements without insuring confidentiality, including "admission and discharge notes, histories, results of tests and other progress notes of patients," as well as "written verification by one or more physicians of the diagnosis and duration of pregnancy." Finally, the ordinance requires that each abortion service be licensed and provides for evaluation of the facility seeking licensure by the Board of Health with the assistance of a panel of qualified obstetricians or gynecologists appointed by the Board. Violation of any of its provisions is punishable by fine and imprisonment.

Mahoning Women's Center, Inc. applied for and was denied a license for its facilities. The Center then filed this suit for alleged violations of 42 U.S.C. § 1983 against various city officials and members of the city council, individually and in their official capacities, seeking declaratory and injunctive relief and damages. Plaintiff alleged Chapter 98.00 was violative of constitutional rights of due process and equal protection, and of the fundamental right of women to decide whether to bear a child. 2

At the trial, the parties presented conflicting testimony of medical experts. The focus of the disagreement among the medical experts was the need for equipment necessary for dealing with major surgical complications. The doctors were in accord, however, as to the need for direct surgical supervision by an obstetrician. The District Court found that Chapter 98.00 "effectively requires any abortion service to be equipped and staffed in such a fashion as to provide facilities equivalent to those of hospital surgical wards." The Court further found that, in order for the Center to comply with the ordinance, it must pay for additional equipment and increased salaries. The Center's present fee for services was $175.00, but hospital fees for the same services ranged between $300.00 and $500.00. One medical expert testified that, in his opinion, compliance with the requirements of the ordinance would require the Center to double or triple its fee. The Court found that the surgical procedures utilized by the Center in performing first-trimester abortions were of a minor nature and involved a low percentage of complications. Finally, the District Court found that no hospital in the Youngstown area performed abortions for other than therapeutic purposes.

The District Court concluded that the ordinance disregarded a woman's fundamental right to seek an abortion and the constitutional standards set forth in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Court also concluded that it denied equal protection of the law to those physicians who would perform abortions in that the ordinance regulated only those physicians while leaving other comparable medical procedures to the discretion of the attending physician. The District Court declined to sever the constitutional from the unconstitutional provisions of the ordinance and declared it unconstitutional in its entirety.

II.

We recognize and affirm the value our society accords the life of the unborn child. But for two reasons it is not open to us in this case involving first-trimester abortions to weigh the state's interest in preserving the unborn embryo against the mother's right to decide not to bear a child. First, the Supreme Court, after weighing these interests, has spoken on this issue, holding that the mother's choice during the first trimester is the determining factor. Second, the interest of the unborn embryo is not before us here because the ordinance in question, according to its express terms, is concerned solely with insuring the "highest standards of health care" for the mother. The conflict in question then is solely between the city's interest in the health of the mother and the mother's right to control her reproductive system during the first trimester of pregnancy.

The subject of abortion is now heavily entangled in a public controversy about the right to life of the unborn fetus. This controversy arises from differing views about religion, woman's liberation, social morality, and appropriate lifestyles. In reviewing the ordinance in question here, we put those controversies entirely to one side and look to the holdings and purposes stated in Supreme Court opinions concerning a woman's control over her own reproductive system during the first trimester.

III.

In addition to formulating specific limitations on government in the first eight amendments of the Constitution, the founding fathers in a more general way carved out a slice of human affairs of a private nature which should be "retained by the people" without legislative interference. The ninth amendment provides that "(t)he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Under the fourteenth amendment, the federal courts are required to identify and enforce those personal rights which may not be abridged by local legislative majorities. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), identified one of those rights. It is a "part of a series of decisions allocating to the woman the essentially unfettered choice of whether to bear a...

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22 cases
  • Bossier City Medical Suite v. City of Bossier City
    • United States
    • U.S. District Court — Western District of Louisiana
    • January 21, 1980
    ...439 U.S. 8, 99 S.Ct. 49, 58 L.Ed.2d 7 (1979); Mahoning Women's Center v. Hunter, 444 F.Supp. 12 (W.D.Ohio 1977), affirmed, 610 F.2d 456 (6th Cir., 1979); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977); Mobile Women's Medical Clinic v. Bo......
  • Davis v. Hubbard
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 16, 1980
    ...Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). See also, Mahoning Women's Center v. Hunter, 610 F.2d 456 (6th Cir. 1979); 3 J. Story, Commentaries on the Constitution of the United States 715-16 (1833); L. Tribe, American Constitutional......
  • Greenville Women's Clinic v. Bryant
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • January 27, 2000
    ...Circuit has also been called upon to address comprehensive health regulations on several occasions. First, in Mahoning Women's Center v. Hunter, 610 F.2d 456 (6th Cir. 1979), vacated on other grounds, 447 U.S. 918 (1980), the court affirmed the district court's decision to invalidate, under......
  • Planned Parenthood Ass'n of Atlanta Area v. Harris
    • United States
    • U.S. District Court — Northern District of Georgia
    • September 8, 1987
    ...B); American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 n. 6 (3d Cir.1984); Mahoning Women's Center v. Hunter, 610 F.2d 456, 458 n. 2 (6th Cir.1979); Planned Parenthood of Minnesota v. Citizens for Community Act., 558 F.2d 861, 865 n. 3 (8th Cir.1977); Frien......
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1 books & journal articles
  • Gillian E. Metzger, Abortion, Equality, and Administrative Regulation
    • United States
    • Emory University School of Law Emory Law Journal No. 56-4, 2007
    • Invalid date
    ...462 U.S. 416, 431-39 (1983) (second-trimester hospitalization requirement imposed by city ordinance); Mahoning Women's Ctr. v. Huner, 610 F.2d 456 (6th Cir. 1979), vacated and remanded on other grounds, 447 U.S. 918 (1980) (city ordinance requiring detailed information on abortion providers......

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