Planned Parenthood Ass'n of Kansas City v. Ashcroft, No. 79 4142 CV C.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: J. Michael Davis, Asst. Atty. Gen., Jefferson City, Mo., for defendants
• Citation: 483 F. Supp. 679
• Decision Date: 23 January 1980
• Docket Number: No. 79 4142 CV C.
• Parties: PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC. et al., Plaintiffs, v. John ASHCROFT et al., Defendants.

483 F. Supp. 679

PLANNED PARENTHOOD ASSOCIATION OF KANSAS CITY, MISSOURI, INC. et al., Plaintiffs,
v.
John ASHCROFT et al., Defendants.

No. 79 4142 CV C.

United States District Court, W. D. Missouri, C. D.

January 23, 1980.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Frank Susman, Susman, Schermer, Rimmel & Parker, St. Louis, Mo., for plaintiffs

J. Michael Davis, Asst. Atty. Gen., Jefferson City, Mo., for defendants.

OPINION AND ORDER

ELMO B. HUNTER, District Judge:

This is an action for declaratory and injunctive relief in which plaintiffs challenge the constitutionality of several sections of the 1979 Missouri act relating to the regulation of abortions ("the Act").¹ This Court has jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3).

Plaintiffs are Planned Parenthood Association of Kansas City, Missouri, Inc., and Reproductive Health Services, not-for-profit Missouri corporations. Plaintiffs maintain and operate out-patient clinics in Kansas City and St. Louis, Missouri, respectively, at which medical services are offered to

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the public, including first trimester abortions performed by staff physicians and pregnancy-related counseling

Plaintiff physicians are Allen S. Palmer, D. O., and Naim S. Kassar, M. D. Dr. Palmer is licensed to practice medicine in the State of Missouri and performs first trimester abortions on an out-patient basis, both at the Reproductive Health Services clinic and as part of his private medical practice. Dr. Palmer does not perform abortions after the first trimester of pregnancy, but would do so absent the statutory requirement that post-twelve week abortions be performed only in a hospital. Dr. Kassar is also licensed to practice medicine in the State of Missouri. As a part of his medical practice, Dr. Kassar performs first trimester abortions on an out-patient basis in the Planned Parenthood clinic and in a hospital setting. Dr. Kassar performs post-first trimester abortions in a hospital setting but, under certain conditions, would perform such abortions in an out-patient clinic, absent the statutory requirement that post-twelve week abortions be performed only in a hospital.

Defendants are the Honorable John Ashcroft, Attorney General of the State of Missouri, and Ralph L. Martin, Prosecuting Attorney of Jackson County, Missouri, who is sued both in that capacity and "as representative of the class of all similar Prosecuting Attorneys of the various counties of the State of Missouri."

The Act was passed by the General Assembly of the State of Missouri on June 15, 1979, and signed into law by the Governor on June 29, 1979. An emergency clause caused the Act to be effective immediately upon the Governor's approval.² This action was filed on June 30, 1979, and after a hearing, the Court temporarily restrained enforcement of §§ 188.020, .025, .030, .039, .040, .052, .063, and .075, RSMo, as signed into law on June 29, 1979. Defendants consented to renewal and extension of that order pending a determination on the merits. Upon defendants' motion and to maintain the status quo, the temporary restraining order was modified on September 27, 1979, to delete §§ 188.020, .025, and .075, RSMo, from its effect. Full trial on the merits was had on October 15-20, 1979.

I.

Standing

Plaintiff physicians have standing to challenge the constitutionality of the sections at issue in this case. Singleton v. Wulff, 428 U.S. 106, 98 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Defendants concede that the corporate plaintiffs have standing to challenge § 188.025, the requirement that post-twelve week abortions be performed only in a hospital, and § 188.063, which regulates abortion counseling in "abortion facilities," but assert that the organizations lack standing to litigate the constitutionality of any other of the Act's provisions. In light of the standing of plaintiff physicians, the Court need not reach the issue of the corporate plaintiffs' standing.³

II.

Abortions to be Performed Only by a Physician

Section 188.020 provides: "No person shall perform or induce an abortion except a physician." Plaintiffs' challenge to this

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restriction is that it prevents a pregnant woman from inducing or performing an abortion on herself. The constitutional infirmity, argue plaintiffs, is two-fold: (1) the statute violates the pregnant woman's constitutional right to "self-treatment," and (2) the Act's penalty provision⁴ mandates accessory criminal liability for the physician who, by prescribing an abortion-inducing medication or other abortifacient for a pregnant woman, would aid or abet a nonphysician (the pregnant woman herself) to perform or induce an abortion in violation of § 188.020.⁵

Plaintiffs do not argue that the legislature intended to include the pregnant woman herself within the limitation imposed by the statute but submit that that "plain wording" of the section does so. Accordingly, the prayed-for relief is "merely . . . a declaration that this Section may not constitutionally apply to women seeking to self-abort or to physicians who assist them in doing so."

The context of the present case makes a determination of the constitutional questions posed by plaintiffs unnecessary. The regulation against abortions performed by nonphysicians has been in effect in the State of Missouri, with substantially similar language, since June 14, 1974.⁶ This Court is unaware of any case in which the prohibition on abortion by nonphysicians was ever applied to the pregnant woman herself. The Court has been directed to no decision of the courts of the State of Missouri which interprets the provision in that way. There is nothing in the extensive record in this case which would indicate that the legislature intended to criminalize an act of self-abortion by the pregnant woman herself.⁷

This Court is obliged to give the regulation that reasonable interpretation which avoids a danger of constitutional invalidity. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225 (En banc 1955). That reading of the section's prohibition of abortions performed by nonphysicians which would include the pregnant woman herself within its ban raises such a serious constitutional question. Accordingly, it is not adopted by the Court. As applied to a nonphysician performing an abortion on another

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person, the statute is not challenged here and is clearly valid. Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975)

III.

Post-Twelve Week Abortions to be Performed Only in a Hospital

Section 188.025 provides that every abortion performed subsequent to the first twelve weeks of pregnancy shall be performed in a hospital. Both physician plaintiffs testified that, absent statutory prohibition, they would perform post-twelve weeks abortions in an out-patient clinic. Plaintiffs argue that the in-hospital requirement places an undue burden on the abortion decision and on the means of effectuating that decision. Plaintiffs also contend that the requirement does not constitute a reasonable regulation in the interests of maternal health.

In Roe v. Wade, 410 U.S. 113, 163, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973), the Supreme Court held that "from and after approximately the end of the first trimester, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." An example of a permissible subject of regulation was "the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status." In Doe v. Bolton, 410 U.S. 179, 195, 93 S.Ct. 739, 749, 35 L.Ed.2d 201 (1973), the Court struck down a requirement that all abortions be performed in an accredited hospital but reserved the authority of a state to adopt such a regulation after the first trimester "so long as those standards legitimately related to the objective the State seeks to accomplish."

In Wynn v. Scott, 449 F.Supp. 1302 (N.D. Ill.), appeal dismissed sub nom. Carey v. Wynn, 439 U.S. 8, 99 S.Ct. 49, 58 L.Ed.2d 7 (1978), aff'd, 599 F.2d 193 (7th Cir. 1979), the district court noted that the Supreme Court "specifically stated" that the state may require post-first trimester abortions be performed only in hospitals. The court upheld as rationally related to maternal health a regulation which required post-first trimester abortions be performed on an in-patient basis in a hospital equipped with life-support equipment for the fetus if there is any "clearly visible evidence" of viability. In that case, the court noted, 449 F.Supp. at 1318:

The methods of performing abortions after the first trimester are relatively complicated. Injection of saline or prostaglandins into the amniotic sac, and hysterotomies take time and require controlled conditions.

Plaintiffs urge that the record before this Court is significantly different from that before the district court in Wynn; that the advancement of medical knowledge renders the reasoning of Wynn inapplicable.

The controversy over Missouri's in-hospital requirement centers on the abortion technique known as dilatation and evacuation (D & E).⁸ This post-first trimester abortion technique was relatively unknown at the time of the 1973 Supreme Court decisions in Roe and Doe but has come to be a common procedure for the termination of pregnancies of longer than twelve weeks gestation.⁹ Plaintiff physicians state that D & E is currently the safest post-first trimester abortion technique up to eighteen weeks gestation and that absent the statutory prohibition they would perform post-first trimester abortions using the D & E method in clinics on an out-patient basis.

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Plaintiffs' medical experts testified that,...