Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft
| Decision Date | 30 November 1981 |
| Docket Number | Nos. 80-1130,80-1530,s. 80-1130 |
| Citation | 664 F.2d 687 |
| Parties | PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O., Appellees, v. John ASHCROFT, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, Appellants. PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC., Naim S. Kassar, M.D., Reproductive Health Services, Allen S. Palmer, D.O., Appellants, v. John ASHCROFT, Attorney General of State of Missouri, Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before LAY, Chief Judge, HENLEY, Circuit Judge, and HARRIS, * Senior District Judge.
This supplemental opinion is necessitated by reason of our previous certification to the district court relating to two issues. In our original opinion, we vacated the district court's finding that the hospitalization requirement for second trimester abortions, under section 188.025 of the Missouri statutes, is unconstitutional. We remanded that issue to the district court for further proceedings and findings as to whether the hospitalization requirement is a substantial burden on a woman's decision to have an abortion and, if so, whether the state has shown a compelling state interest which justifies the requirement. We also vacated the district court's finding that the state may require a physician to file postabortion complication reports under section 188.052.2 and remanded this provision for reconsideration in view of the argument made by the parties.
In accord with our certification the district court took additional evidence 1 and made further findings regarding the statute's hospitalization requirements for all second trimester abortions. 2
The district court, the Honorable Elmo B. Hunter presiding, found: (1) only one hospital in Missouri currently performs second trimester dilation and evacuation (D&E) procedures; (2) second trimester D&E procedures performed in a hospital are generally significantly more expensive than the same procedures performed in an outpatient facility; and (3) requiring all second trimester abortions to be performed in a hospital results in fewer second trimester procedures being performed than if hospitalization was not required. As a result, the district court found the second trimester D&E procedure, the safest post-12 week abortion technique currently available, is an alternative which is not available to many pregnant women in Missouri. On this basis Judge Hunter found that section 188.025 creates a substantial interference with and imposes a direct burden on a woman's decision to have an abortion.
Section 188.025 requires that second and third trimester abortions be performed in a hospital. Mo.Ann.Stat. § 188.025 (Vernon). If state legislation creates substantial interference with and imposes a direct burden on a woman's decision to have an abortion, then the state requirement is to be evaluated to determine if it reasonably relates to the state's interest in maternal health. Roe v. Wade, 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973); Planned Parenthood Ass'n v. Ashcroft, 655 F.2d 848, 854 (8th Cir. 1981).
This court concluded previously, and additional evidence presented to the district court reinforces the conclusion, that D&E is the most used and safest procedure for second trimester abortion. Ashcroft, 655 F.2d at 855.
At the original trial of this action, the district court concluded that second trimester D&E was available only in one hospital in Missouri. That conclusion rested solely on the personal knowledge of two physicians, neither of whom testified that he was familiar with the policies of the hospitals throughout the state. However, evidence presented at the evidentiary hearing persuasively corroborates the district court finding. 3 The state did not dispute that any hospital other than Truman Medical Hospital has performed or is willing to perform second trimester abortions using the D&E procedures.
The record demonstrates that hospitalized D&E's are more expensive than nonhospitalized D&E's. There exists evidence that some hospitalized second trimester D&E procedures are twice as expensive as nonhospitalized D&E procedures. 4 The district court concluded from the evidence that requiring hospitalized second trimester abortions places a financial burden on many women seeking such abortions. 5 On the basis of the record presented, this finding is not clearly erroneous.
Since section 188.025 creates a substantial interference with and imposes a direct burden on a woman's decision to have an abortion, the state has the burden of showing that Missouri's requirement reasonably relates to the protection of the woman's health. As we stated in our previous decision, the state must show that nonhospitalized D&E procedures can reasonably be considered more dangerous than hospital procedures, including hospitalized D& E. Ashcroft, 655 F.2d at 856.
The central issue is the relative safety of nonhospitalized D&E and hospitalized methods. No quantitative studies are cited which directly compare the relative safety of the two procedures. However, the district court has found explicitly that a nonhospitalized second trimester D&E procedure is just as safe as those second trimester D&E procedures conducted in hospitals. 6 Since the district court's finding is not clearly erroneous, we find that nonhospitalized second trimester D&E procedures are no more dangerous to maternal health than hospitalized procedures. Consequently, we hold that section 188.025 is not reasonably related to maternal health and, therefore, the requirement that all second trimester abortions be performed in hospitals is unconstitutional. See Planned Parenthood v. Danforth, 428 U.S. 52, 76, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788 (1976).
Subsection 188.052.2 of the Missouri statutes requires physicians to complete individual complication reports concerning post-abortion care that they provide. 7 Plaintiffs argue that a physician may be faced in completing these reports with the situation where the patient will not or cannot provide the necessary information. Plaintiffs argue that the physician is then faced with the dilemma of filing a report with incomplete data, thereby subjecting himself to criminal liability, or refusing to treat the patient.
The district court was not convinced that a reasonable interpretation of subsection 188.052.2 would place physicians in the dilemma envisioned by plaintiffs. The court interprets the statute to require physicians to complete the reports using data that is reasonably available to them. That interpretation is shared by the Missouri attorney general. Since physicians are required only to report information that is reasonably available to them, section 188.052.2 does not place physicians in the dilemma of refusing treatment to patients or subjecting themselves to criminal liability by filing an incomplete report when the patient refuses to or cannot provide data to be included in the post-abortion complication report.
The reporting requirement is not subject to strict scrutiny analysis, as there are no suspect classifications or fundamental rights at stake. The reporting requirement need only be rationally related to a constitutionally permissible purpose. The district court, finding that the reporting requirements are consistent with the holding of Planned Parenthood v. Danforth, supra, ruled that it is rationally related. The requirements of subsection 188.052.2 provide the state with information that is helpful to medical assistance, judgments, and medical standards. Thus, it is also reasonably related to the state's interest in protecting maternal health. Connecticut v. Menillo, 423 U.S. 9, 10-11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975); Roe v. Wade, 410 U.S. at 164, 93 S.Ct. at 732. 8
We affirm the district court's finding that the requirement of hospitalization for second trimester abortions under section 188.025 is unconstitutional. We affirm the district court's finding that a state may require a physician to file postabortion complication reports under subsection 188.052.2. These rulings shall be incorporated into our prior judgment, Planned Parenthood Ass'n v. Ashcroft, 655 F.2d 848 (8th Cir. 1981), and the integrated judgment as now amended shall issue.
It is so ordered.
* Oren Harris, Senior District Judge, Eastern and Western Districts of Arkansas, sitting by designation.
1 Further evidence was taken on these issues in a hearing conducted on August 6-7, 1981. At that hearing, plaintiffs elicited testimony from Judith A. Widdicombe, President and Executive Director of Reproductive Health Services; Wayne Schramm, Director of the Bureau of Health Data Analysis of the Missouri Division of Health; Dr. Stanley Henshaw, Senior Research Associate at the Alan Guttmacher Institute; and Dr. Samuel G. Eubanks, Jr., a board certified specialist in the fields of obstetrics and gynecology. Defendants presented no...
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...strict scrutiny." Planned Parenthood Association of Kansas City, Missouri v. Ashcroft, 655 F.2d 848, 864 (8th Cir.1981), op. supp. 664 F.2d 687 (8th Cir.1981), cert. granted 456 U.S. 988, 102 S.Ct. 2267, 76 L.Ed.2d 733 (1982). In Ashcroft, the Court held that a Missouri law which raised the......
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