Meadowbrook Women's Clinic v. State of Minn.

• Decision Date: 23 February 1983
• Docket Number: Civ. No. 4-82-1422.
• Citation: 557 F. Supp. 1172
• Parties: MEADOWBROOK WOMEN'S CLINIC, P.A., Plaintiff, v. STATE OF MINNESOTA, Defendant.
• Court: U.S. District Court — District of Minnesota

557 F. Supp. 1172

MEADOWBROOK WOMEN'S CLINIC, P.A., Plaintiff, v. STATE OF MINNESOTA, Defendant.

Civ. No. 4-82-1422.

United States District Court, D. Minnesota, Fourth Division.

February 23, 1983.

Larry D. Espel, Popham, Haik, Schnobrich, Kaufman & Doty, Minneapolis, Minn., for plaintiff.

Hubert H. Humphrey, III, Atty. Gen., State of Minn., and Audrey Kaiser Manka, Sp. Asst. Atty. Gen., Minneapolis, Minn., for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on the plaintiff's motion for summary judgment. For the reasons stated below, the Court will grant the plaintiff's motion.

FACTS

Plaintiff Meadowbrook Women's Clinic, P.A. (Meadowbrook) is a Minnesota corporation that provides pregnancy tests, abortion services, and other reproductive health services. Meadowbrook, which is one of the largest abortion providers in the Upper Midwest, performs approximately one-half of all abortions performed in Minnesota.

Since 1973, Meadowbrook has unsuccessfully attempted to place advertisements concerning its abortion services in Northwestern Bell Telephone Company's (Northwestern Bell) yellow pages. Northwestern Bell has refused to accept these advertisements because such advertisements are illegal under Minnesota Statute § 617.28.¹ Northwestern Bell's policy concerning the acceptance of such advertisements varies from state to state. In Nebraska, Iowa, and South Dakota — none of which has a statute similar to Minn.Stat. § 617.28 — Northwestern Bell accepts advertisements for abortion services that Northwestern Bell finds meets its standards of good taste.

Meadowbrook seeks a declaration that Minn.Stat. § 617.28 is unconstitutional. Specifically, Meadowbrook claims that the statute prevents it from exercising its right of free speech in violation of the first and fourteenth amendments to the United States Constitution. Plaintiff Meadowbrook has moved for summary judgment on the grounds that Minn.Stat. § 617.28 as it applies to the advertisement and publication of information concerning the inducement of miscarriages or abortions is unconstitutional on its face.

Defendant State of Minnesota (State) argues that the statute is entitled to a presumption of constitutionality. In addition, the State contends that the commercial speech at issue may be suppressed.

DISCUSSION

The issues presented in this case are legal issues. Therefore, summary judgment is appropriate. Fed.R.Civ.P. 56(c). Two types of legal issues confront the Court: procedural and substantive.

1. Procedural Issues

The United States Supreme Court recently reiterated, in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the requirements for and policies behind the standing requirement. The standing requirement is an outgrowth of Article III of the Constitution which limits federal judicial power to the resolution of cases and controversies. The Supreme Court stated that the standing requirement "subsumes a blend of constitutional and prudential considerations ... which require the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant' ... and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" 102 S.Ct. at 758 (citations omitted).

The policies served by the standing requirement include the following: 1) assures that legal questions are presented in a concrete factual context; 2) limits the likelihood of only superficially related suits; 3) restricts the use of the courts as merely publicly funded forums for public grievances; 4) limits access to those who have a stake in the outcome and thus will be highly motivated to provide a thorough airing of the issues; and 5) reinforces comity between federal and state governments by limiting review of the constitutionality of a state statute to specified circumstances. 102 S.Ct. at 759. Even if a claimant establishes a redressable injury sufficient to meet Article III's requirements, the Supreme Court has refused to adjudicate cases in which the injury is generalized and better redressed by legislative bodies or cases in which the claimant's allegations fall outside "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1969).

Two standing issues must be resolved before the Court can reach the merits of this case. The first issue is whether the harm alleged by the plaintiff can fairly be traced to the State's actions. A related issue is whether a favorable ruling by the Court would be likely to redress the claimed harm. The plaintiff claims that it is prevented from purchasing advertisements in Northwestern Bell's yellow pages because of the statute. The plaintiff does not claim that either it or Northwestern Bell is threatened with prosecution under the statute.

The plaintiff argues that although it has not suffered an injury because of the threat of prosecution under the statute, it has suffered injury in fact because of the effect the statute has had on Northwestern Bell.² It is clear that economic injury or the prospect of economic injury can satisfy the injury in fact requirement. If the plaintiff has suffered economic injury because of the State's actions, it may have standing to challenge the statute. See, e.g., Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915) (employee allowed to challenge state law which he claimed would result in his loss of employment even though the law's criminal sanctions directly affected only the employer). In the present case, the plaintiff alleges it has suffered economic injury as a result of being denied its first amendment right of free speech. The Court concludes that the plaintiff has satisfied the injury in fact requirement and possesses the type of stake in the outcome required by Article III.

The policies underlying the standing requirement are satisfied in this case. The case presents a concrete dispute arising out of particular incidents. The Court is not merely providing a public debating forum on the advisability of such actions in general, but is limiting its ruling to the facts involved in Northwestern Bell's refusal to publish the particular advertisements. The plaintiff has a stake in the outcome since it is likely to gain additional patients if Northwestern Bell publishes the plaintiff's advertisements.

The Court must also determine whether granting the requested remedy would actually redress the alleged harm. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), the Supreme Court held that indigents lacked standing to challenge the validity of Internal Revenue Service (IRS) regulations reducing the amount of free medical care hospitals must provide in order to obtain tax benefits as a charity. The Supreme Court stated that it was purely speculative whether a change in the IRS regulations would increase free medical services since the hospitals' actions might have been governed by other factors than the IRS regulations. 426 U.S. at 42-43, 96 S.Ct. at 1926.

In the present case, the State argues that a change in the statute is unlikely to change Northwestern Bell's policy of refusing to accept abortion advertisements. The evidence does not support the State's argument. Lloyd Otto (Otto), directory staff supervisor for Northwestern Bell, states in an affidavit that the company's refusal to accept such advertising is motivated by Northwestern Bell's "interpretation of State law and internal guidelines on acceptable advertising." In a letter to the plaintiff, Karen Edlund (Edlund), a Northwestern Bell directory representative, states that the plaintiff's request for advertising space has been denied because section 617.28 prohibits advertisements "dealing with `abortions.'" Edlund does not mention any internal guidelines.

In another affidavit Otto states that Northwestern Bell's acceptance of such advertisements varies from state to state depending upon whether the state has a law similar to the one at issue in the present case. According to Otto, Northwestern Bell does not preclude advertisements for abortion services in Nebraska, Iowa, and South Dakota because those states do not have statutes that restrict such advertisements. Northwestern Bell has published an advertisement for abortion services in the yellow pages distributed in Des Moines, Iowa. Thus, it is clear that not only has the plaintiff been injured by the statute in question but also that the remedy sought would almost certainly redress the alleged harm.

Another standing issue is closely linked to the substantive issues presented in the case: whether the plaintiff's allegations fall within "the zone of interests" protected by the first amendment. See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1969). This issue will be discussed in conjunction with the discussion of the substantive issues in the case.

2. Substantive Issues

If a court determines that a state statute is aimed at regulating the content of communication, as in the present case, it must then determine whether the content is protected or unprotected speech. The United States Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), listed several kinds of speech that are not protected by the first amendment:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and

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