Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 86-3268

Citation822 F.2d 1390
Decision Date01 July 1987
Docket NumberNo. 86-3268,86-3268
PartiesPLANNED PARENTHOOD ASSOCIATION OF CINCINNATI, INC.; Norman E. Matthews, M.D., Plaintiffs-Appellees, v. The CITY OF CINCINNATI & Stanley Broadnax, M.D., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Richard A. Castellini, John P. Concannon, Cincinnati, Ohio, Timothy M. Ruttle, argued, for defendants-appellants.

Alphonse A. Gerhardstein and Robert F. Laufman, Cincinnati, Ohio, for plaintiffs-appellees.

Before MERRITT and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

The defendants, the City of Cincinnati and its Health Commissioner, Dr. Stanley Broadnax (hereinafter collectively referred to as Cincinnati or the City), appeal from the district court's order granting the plaintiffs a preliminary injunction against enforcement of Cincinnati's fetal disposal ordinance. The defendants attack the standing of the plaintiffs, as well as the merits of the lower court's decision. For the reasons which follow, we affirm.


On January 8, 1986, the City Council of Cincinnati adopted Ordinance No. 8-1986, which regulates the disposal of aborted fetal remains. The Ordinance modified the provisions of Title 7 of the Cincinnati Municipal Code by ordaining Chapter 749. Section 749-1 states Disposal of Aborted Fetuses.

Every hospital and clinic in which abortions are performed or occur spontaneously, and every laboratory to which the aborted human fetuses are delivered, shall provide that the fetuses be interred, deposited in a vault or tomb, cremated, or otherwise disposed of in a manner approved by the Commissioner of Health. The hospital, clinic, or laboratory may complete any tests necessary for the health of the woman who conceived or carried such aborted fetus or her future offspring prior to disposing of the aborted fetus.

No hospital or clinic where abortions are performed or spontaneously occur or laboratory which disposes of aborted fetuses shall dispose of any aborted fetuses without first receiving a permit to dispose of aborted fetuses from the Commissioner of Health. The Commissioner of Health shall not issue a permit unless he determines that the applicant has appropriate facilities, methods, and capabilities for disposal of aborted human fetuses in a sanitary manner consistent with public health and safety. Each such hospital, clinic and laboratory shall report on a form provided by the Commissioner of Health the total number of aborted fetuses disposed of and a summary stating every manner of disposal used and the corresponding number of aborted fetuses for each manner of disposal. Such report shall be made annually by January 31 for the prior calendar year. A report must also be made whenever the methods of disposal used change. The Commissioner of Health shall provide forms for reporting under this section.

(Emphasis added). Section 749-3 defines an "aborted human fetus" as "the aborted offspring of human parents at every stage of biological development up to twenty weeks gestation which is not the subject of disposal and reporting requirements of the state of Ohio." Section 749-99 establishes the penalty for violating Sec. 749-1 as a fine of not more than $1,000.

The City Council member who sponsored the Ordinance had issued a written statement concerning the Ordinance in the summer of 1985. That statement read in pertinent part:

An abortion produces human remains. An aborted fetus must be treated with the same dignity and legalities as a stillborn child or other dead person.... [I]t is my hope that this council will acknowledge that the abortion procedure takes a human life and that the human remains which are the by-products of this act are entitled to the dignity and respect afforded any other human being who has lost his or her life.

Among other comments concerning the Ordinance is a report issued by Health Commissioner Broadnax on September 10, 1985. Dr. Broadnax stated in the report his belief that the Ordinance added "nothing to safety or public health."

The Ordinance was to become effective on February 7, 1986, but on that day the plaintiffs, Planned Parenthood Association of Cincinnati, Inc. and its Medical Director, Dr. Norman E. Matthews, filed the instant complaint pursuant to 42 U.S.C. Sec. 1983 and moved for a temporary restraining order enjoining Cincinnati from enforcing the Ordinance. 1 The district court granted the requested TRO the same day, enjoining the defendants from enforcing the Ordinance until February 17, 1986.

On February 17, 1986, the district court held a hearing on the plaintiffs' motion for a preliminary injunction. As of that date, no regulation had been adopted by the City defining in more particularity the phrase "otherwise disposed of in a manner approved by the Commissioner of Health." The City had, however, drafted and submitted to the court a form by which an applicant could seek a permit to dispose fetal remains pursuant to the Ordinance. The permit application form requested the applicant to designate the method or methods of disposal to be used. The form also stated that for the purposes of the application, "disposal does not include transfer of aborted human fetuses to laboratories." At the district court hearing, the City confirmed that it did not contemplate adopting anything more than the permit; the permit was to constitute the entire regulation process. The City also did not contemplate that it would provide for an appeal from a decision denying a proposed disposal method. At the close of the hearing, the court extended the TRO until February 24, 1986.

On February 21, 1986, the district court filed its decision granting the plaintiffs' motion for a preliminary injunction. Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 635 F.Supp. 469 (S.D.Oh.1986). The court acknowledged that Cincinnati had the right under Ohio law to legislate regulations concerning sanitation, but it also observed that any ordinance dealing with abortion had to be consistent with the principles enunciated by the Supreme Court in cases such as Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). 635 F.Supp. at 470-71. The court noted that in the Akron case the ordinance at issue, which required disposal of fetal remains "in a humane and sanitary manner," was struck down as being "void for vagueness." Id. at 471. In light of that holding, the district court found Cincinnati's statute to also be overly vague. The court objected to the portion of the statute allowing fetal remains to be "otherwise disposed of in a manner approved by the Commissioner of Health, or the State of Ohio;" the district court found that the meaning of the phrase "otherwise disposed of" was not ascertainable "particularly in view of the intention of the City ... not to issue any regulations." Id.

The court also questioned the intent of the Ordinance. While the City claimed that the Ordinance was concerned solely with the sanitary disposal of fetal remains, the City was unable to produce any evidence either of a similar statute governing sanitary disposal of human tissue or any evidence that fetal tissue represents a greater health hazard. From this, the district court drew the conclusion that the apparent purpose of the Ordinance was to impermissibly interfere with or discourage abortions. Id.

Finally, the court observed that the Ordinance ran afoul of the statements in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), that persons affected by a statute should not bear the burden of defending against prosecutions aimed at developing the structure and meaning of a statute in a piecemeal fashion. Id. at 472.

In concluding its analysis, the district court found that the plaintiffs had established the four factors which this court has stated should be considered in determining whether a preliminary injunction should issue. The district court therefore enjoined the defendants from enforcing the Ordinance until a hearing on the merits could be held. Id. at 472.

The defendants then brought this timely appeal from the injunction order.


Since the decision whether or not to grant a preliminary injunction is a function of a trial court's discretion, our review of a district court's order granting a preliminary injunction is generally limited to an examination of whether the district court abused its discretion. Tate v. Frey, 735 F.2d 986, 990 (6th Cir.1984). However, before we can reach the question of abuse of discretion in the instant case, we must first address whether the plaintiffs have standing to bring their action. The City contends that they do not, taking the position that the language of the permit application form indicates that the activities of Planned Parenthood and its Medical Director will not give rise to prosecution under the Ordinance. Thus, according to the City, the plaintiffs have not shown any actual injury which has or will occur.

A. Standing

The issue of standing, and whether a federal court has the power to adjudicate a suit, is "the threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Examination of the standing issue involves two levels of inquiry. The first is of a constitutional dimension and involves determining whether the plaintiff has shown that a "case or controversy" exists between the parties as defined by Article III. Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); Warth, 422 U.S. at 498, 95 S.Ct. at 2205. This can be accomplished by proving an actual injury or injury in fact which is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The...

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