Mahoning Women's Ctr. v. Hunter
| Decision Date | 25 May 1977 |
| Docket Number | No. C 76-203 Y.,C 76-203 Y. |
| Citation | 444 F. Supp. 12 |
| Parties | MAHONING WOMEN'S CENTER, Plaintiff, v. Jack C. HUNTER et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Dennis Haines, Youngstown, Ohio, for plaintiff.
Edward C. Czopur, Asst. Law Director, City of Youngstown, Youngstown, Ohio, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action challenging the constitutionality of Chapter 98.00, "Abortions", of the Revised Code of Ordinances of the City of Youngstown.1 Plaintiff seeks declaratory, injunctive and monetary relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983. The case has been submitted to the Court for resolution of the constitutional issues2 upon the pleadings, briefs of counsel, and certain stipulated evidence.3
The gravamen of this case concerns defendants' right to regulate plaintiff's performance of first trimester abortions. This case is not one of first impression, and the Court is mindful of the national controversy which has resulted from the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It is a controversy of intense moral and legal convictions which has transcended all segments of our society. However, within the context of this litigation it is neither the function nor the intention of the Court to embroil itself with this controversy or to expound upon these convictions. Rather, the Court must determine upon the evidence presented and the applicable legal precedent whether Chapter 98.00 unconstitutionally abridges plaintiff's right to perform first trimester abortions. In accordance with the findings of fact and conclusions of law set forth below, the Court is compelled to resolve this issue in favor of the plaintiff.
1. Plaintiff is an Ohio corporation established to provide women with first trimester abortions and counseling services regarding reproductive health care. Defendants are various officials of the City of Youngstown.4
2. In early October, 1976, plaintiff rented facilities in Youngstown, Ohio in anticipation of commencing clinical services.
3. On October 27, 1976, subsequent to plaintiff's obtaining facilities, the Youngstown city council enacted Chapter 98.00, "ABORTIONS", of the Revised Code of Ordinances.
4. Chapter 98.00 purports to regulate all abortions not performed in a hospital licensed or regulated by the Department of Health of the State of Ohio. Chapter 98.00 further provides that no person shall operate or maintain an abortion service without a license issued by the Board of Health of the City of Youngstown. Evaluation of the abortion service seeking licensure is made by the Board of Health, with the assistance of a panel of qualified obstetricians or gynecologists appointed by the Board. The Board may revoke such license for failure to comply with Chapter 98.00. Violation of the provisions of Chapter 98.00 is punishable by fine and imprisonment.
5. Pursuant to the applicable provisions of Chapter 98.00 plaintiff applied for and was denied a license for its facilities.
6. The regulations of Chapter 98.00 are plenary and encompass virtually every facet of operation of any facility providing abortion services. The evidence establishes 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.
7. In order to comply with the requirements of Chapter 98.00, plaintiff must absorb the expense of additional equipment and increased staff salaries. Plaintiff's estimated equipment costs approach $50,000.00.
Plaintiff's present service fee is $175.00. Hospital fees for the same services range between $300.00 to $500.00.
8. Chapter 98.00 exclusively regulates facilities providing abortion services. The provisions of said Chapter are inapplicable to facilities which render medical services other than abortions. Nor does the City of Youngstown have any other ordinance which regulates the equipment or procedures to be used by doctors in performing other surgical operations which are comparable in degree of medical complexity to abortion operations.
9. There are no hospitals within the Youngstown area which perform abortions for other than therapeutic purposes. Prior to the enactment of Chapter 98.00 at least one physician in Youngstown did perform first trimester abortions in his office at the request of his patients.
10. The expert testimony presented to the Court regarding the nature of the first trimester abortion operation and the potential complications which may result from such surgery is in essence diametrically opposed. Doctors Buckley and Fogarty have testified that abortion procedures constitute major surgery of a unique nature which is susceptible to serious complications. Doctors Kelly and Ellison, however, have testified that abortion procedures constitute minor surgery which is basically uncomplicated and comparable to such other surgery as vasectomy and diagnostic dilatation and curettage. The physicians are in similar disagreement as to the necessity of the requirements imposed by Chapter 98.00 in regard to plaintiff's facilities.5
11. The Court has extensively reviewed the evidence in this case and finds that the surgical procedures to be utilized by plaintiff, vacuum aspiration and dilatation and curettage,6 are of a minor nature, involve a low percentage of complications,7 and do not require regulation of the sort imposed by Chapter 98.00. The abortion operation, and any subjective factors necessarily considered therewith, are well within the exercise of a qualified physician's medical judgment.
1. The Court initially finds that plaintiff has standing to bring this action. See eg., Friendship Medical Cen., Ltd. v. Chicago Bd. of Health, 505 F.2d 1141 (7th Cir. 1974); Mobile Women's Med. Clinic v. Bd. of Com'rs, 426 F.Supp. 331 (S.D.Ala. 1977); Planned Parenthood Ass'n v. Fitzpatrick, 401 F.Supp. 554 (E.D.Pa.1975). Further as the plaintiff is directly exposed to criminal prosecution this case presents a justiciable controversy. See Friendship Medical Cen., Ltd. v. Chicago Bd. of Health, supra; cf. Planned Parenthood Ass'n v. Fitzpatrick, supra.
2. Defendants assert that the Supreme Court in Roe v. Wade:
Did not consider any evidence, nor did it address itself to the question of whether or not medical complications that do not result in death are yet serious enough and occur frequently enough to warrant state intervention. * * * Indeed, no other reported case appears to struggle with factual questions of how frequently abortion complications occur and how serious a problem they present."8
This premise appears to be erroneous as among the factors considered by the Supreme Court in Roe v. Wade was the position of the American Public Health Association:
It was said that `a well-equipped hospital' offers more protection Thus, it was recommended that abortions in the second trimester and early abortions in the presence of existing medical complications be performed in hospitals as inpatient procedures.
Further, Roe v. Wade must be read in conjunction with its companion case of Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973),9 in which the Supreme Court stated:
This is not to say that Georgia may not or should not, from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish. The appellants contend that such a relationship would be lacking even in a lesser requirement that an abortion be performed in a licensed hospital, as opposed to a facility, such as a clinic, that may be required by the State to possess all the staffing and services necessary to perform an abortion safely (including those adequate to handle serious complications or other emergency, or arrangements with a nearby hospital to provide such services). Appellants and various amici have presented us with a mass of data purporting to demonstrate that some facilities other than hospitals are entirely adequate to perform abortions if they possess these qualifications. The State, on the other hand, has not presented persuasive data to show that only hospitals meet its acknowledged interest in insuring the quality of the operation and the full protection of the patient. We feel compelled to agree with appellants that the State must show more than it has in order to prove that only the full resources of a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests.
Finally, cases subsequent to Roe v. Wade and Doe v. Bolton have addressed the question of "how frequently abortion complications occur and how serious a problem they present." Eg. Mobile Women's Med. Clinic v. Bd. of Com'rs, supra.
3. Defendants having failed to distinguish Roe v. Wade and its progeny, the Court must adjudge the issues in this case in accordance with such precedents.
4. In Roe v. Wade the Supreme Court held that the fundamental right of privacy founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.10 As a fundamental right, regulation of this decision is permissible only if warranted by a compelling state interest.11
5. The Supreme Court determined that the State's interest becomes compelling at the end of the first trimester. Prior to this point:12
The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be...
To continue reading
Request your trial
-
Bossier City Medical Suite v. City of Bossier City
...See, e. g., Fox Valley Reproductive Health Care Center, Inc. v. Arft, 446 F.Supp. 1072 (E.D.Wis.1978); Mahoning Women's Center v. Hunter, 444 F.Supp. 12 (N.D.Ohio 1977); Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977). The present suit wa......
-
Margaret S. v. Edwards, Civ. A. No. 78-2765.
...aff'd sub nom. Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979) (Wynn). 6 See cases cited at n.5 supra; see also Mahoning Women's Center v. Hunter, 444 F.Supp. 12, 15 (N.D.Ohio 1977). 7 See Mobile Women's Medical Clinic, Inc. v. Board of Commissioners, 426 F.Supp. 331, 334 8 Doe v. Bolton, 410 U......
-
AKRON CTR. FOR REPRODUCTIVE HEALTH v. City of Akron
...Medical Center v. Chicago Board of Health, supra; Word v. Poelker, 495 F.2d 1349 (8 Cir. 1974); and Mahoning Women's Center v. Hunter, 444 F.Supp. 12, 17 (N.D.Ohio 1977). Plaintiffs' post-trial brief at 69 (emphasis in original). Although there is language in the opinions of the Supreme Cou......
-
Women's Medical Center of N.W. Houston v. Archer
...between two classes which do not differ on grounds related to the purpose of the challenged ordinance." Mahoning Women's Center v. Hunter, 444 F.Supp. 12, 17 (N.D.Ohio 1977), aff'd, 610 F.2d 456, 460-61 (6th Cir.1979), vacated on other grounds, 447 U.S. 918, 100 S.Ct. 3006, 65 L.Ed.2d 1110 ......