Planned Parenthood Association v. Fitzpatrick

• Decision Date: 04 September 1975
• Docket Number: Civ. A. No. 74-2440.
• Citation: 401 F. Supp. 554
• Parties: PLANNED PARENTHOOD ASSOCIATION et al., Plaintiffs, Obstetrical Society of Philadelphia, Intervenor-Plaintiff, v. F. Emmett FITZPATRICK, Jr., and Frank S. Beal, Defendants, and Robert P. Kane and the Commonwealth of Pennsylvania, Intervenor-Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

401 F. Supp. 554

PLANNED PARENTHOOD ASSOCIATION et al., Plaintiffs Obstetrical Society of Philadelphia, Intervenor-Plaintiff, v. F. Emmett FITZPATRICK, Jr., and Frank S. Beal, Defendants and Robert P. Kane and the Commonwealth of Pennsylvania, Intervenor-Defendants.

Civ. A. No. 74-2440.

United States District Court, E. D. Pennsylvania.

September 4, 1975.

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Sharon K. Wallis, Roland Morris, Philadelphia, Pa., for plaintiffs.

Bonnie Brigance Leadbetter, Asst. Dist. Atty., Philadelphia, Pa., Mansmann & Mansmann, Pittsburgh, Pa., for defendants.

Before ADAMS, Circuit Judge and NEWCOMER and GREEN, District Judges.

OPINION

CLIFFORD SCOTT GREEN, District Judge.

This action comes before this Court upon a complaint challenging the constitutionality of the recently enacted Pennsylvania abortion statute, titled the "Abortion Control Act,"¹ Act No. 209 (P.L. ___)². Plaintiffs contend that the overriding purpose and dominant effect of the statute under attack is to discourage and interfere with certain clearly defined, constitutionally protected rights of the plaintiffs. Thus, they claim the statute should be invalidated in its entirety, despite the presence of a severability clause. Plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and jurisdiction is invoked under 28 U.S.C. § 1343.

On September 26, 1974, a three-judge court was designated on plaintiffs' application and pursuant to 28 U.S.C. § 2281. Oral argument on the plaintiffs' application for a preliminary injunction was heard on October 9, 1974, and a preliminary injunction was entered on October 10, 1974, which enjoined the enforcement of Sections 3(b)(i), 3(b)(ii), 3(e), 5(a), 5(d), 6(b), 6(c) except as it requires a licensed physician to perform an abortion within the Commonwealth of Pennsylvania, 6(d), 6(i) except as it relates to 6(f), 7, and the definitions of "viable" and "informed consent" in Section 2. Also on October 10, 1974, this Court granted leave to the Obstetrical Society of Philadelphia to intervene as a party plaintiff.

On December 4, 1974, the plaintiffs filed a motion seeking a class action determination. Physician plaintiffs contended that the members of the proposed class "included, not only physicians who regularly perform abortions, but also those who may, in the course of their practice, be called upon to counsel their patients with regard to the option of abortion, which necessarily includes virtually all physicians who practice in the Commonwealth of Pennsylvania." Plaintiffs also contended that the members of the proposed sub-class included board-certified obstetrician-gynecologists, who were members of the Obstetrical Society of Philadelphia, and who maintained their medical practice in Pennsylvania. The physician class plaintiffs allege that enforcement of the Abortion Control Act would "abridge their constitutionally protected rights: (1) to practice medicine in a manner consistent with the highest standards of their profession, (2) to be protected from unconstitutional intrusion of the physician-patient relationship in the decision making and treatment of pregnancy, and (3) the rights of their patients to terminate pregnancies under the conditions set forth in the Supreme Court opinions in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)." On December 10, 1974 this Court certified the instant action to be a class action.

This matter came before the Court for final hearings on the merits from January 13, 1975 through January 17, 1975 and on March 10, 1975. Thereafter, we granted the motions of the Attorney General of Pennsylvania and of the Commonwealth of Pennsylvania to intervene as parties defendant.

Plaintiff Planned Parenthood Association of Southeastern Pennsylvania, Inc. is a voluntary, non-profit health and social service agency, incorporated by the state of Pennsylvania. Planned Parenthood, which has 200 affiliates in the United States and is a member of Planned Parenthood/World Population, is dedicated to providing contraceptive information and family planning service. Planned Parenthood through its various departments, including its medical staff, provides and desires to continue providing services and/or referral guidance with respect to contraception, sterilization or abortion; maintaining in each of these efforts the goal of freedom of choice concerning family size and birth control methods. Planned Parenthood is completing plans to build and operate an abortion clinic, but at the present time it does not perform abortions at any of its facilities.

Plaintiff Dr. John Franklin is a licensed medical doctor practicing in the state of Pennsylvania, board-certified in obstetrics and gynecology. Dr. Franklin is a member of the staff at Thomas Jefferson University Hospital, the medical director of plaintiff Planned Parenthood Association of Southeastern Pennsylvania, Inc., the medical director of Booth Memorial Hospital of the Salvation Army, and a member of the intervening plaintiff Obstetrical Society of Philadelphia. In his capacity as medical director of Planned Parenthood, he supervises the operation of its clinic which provides family planning services, including birth control, pregnancy testing, pregnancy counselling and referral. In the calendar year 1974, Dr. Franklin performed 21 abortions through November 20th; and in the calendar year 1973, he performed 24 abortions. In 1971 and 1972, Dr. Franklin was the medical director of Philadelphia Family Planning, Inc., where he did approximately 10 to 12 abortion procedures a week for one year.

Plaintiff Concern for Health Options: Information, Care and Education, Inc. (CHOICE) is a non-profit corporation organized under the laws of the Commonwealth of Pennsylvania in 1974. CHOICE provides counselling and referral for pregnant women; and over 1,000 women have been seen at eight centers in and around Philadelphia. In addition to its counselling and referral program, CHOICE performs ongoing evaluation of the services available to pregnant women, especially medical services. CHOICE publishes a "Resource and News Bulletin" which is distributed to its counsellors, all social service agencies which assist women with problem pregnancies, and other interested persons.

Plaintiff Clergy Consultation Service of Northeast Pennsylvania is a voluntary organization of clergy and women, who provide free counselling and referral for pregnant women. Clergy Consultation Service counsellors assist approximately 50 women per month, at three sites located in Scranton, Wilkes-Barre and Hazelton. Most of these counselled women are medically indigent, most are under 21 years of age, and most of them are single.

Intervening plaintiff Obstetrical Society of Philadelphia is a voluntary professional association of board-certified obstetricians and gynecologists; formed more than one hundred years ago to represent and protect the professional interests of members of these medical specialties in the Philadelphia area. The Society has over four hundred members who practice obstetrics and gynecology in the Greater Delaware Valley, including Philadelphia, eastern Pennsylvania, Delaware and southern New Jersey.

Defendant F. Emmett Fitzpatrick, Jr., is the District Attorney of Philadelphia County, and he is sued in his official capacity. In his official capacity defendant Fitzpatrick is responsible for the enforcement in Philadelphia of the laws of the Commonwealth of Pennsylvania, including the Abortion Control Act.

Defendant Frank S. Beal is the Secretary of Welfare of the Commonwealth of Pennsylvania, and he is sued in his official capacity. In his official capacity defendant Beal is responsible for the conduct of the Commonwealth's Medical Assistance program, including implementing the restrictions imposed upon that program by the Abortion Control Act.

Intervening defendant Robert P. Kane is the Attorney General of the Commonwealth of Pennsylvania, and he is sued in his official capacity. In his official capacity intervening defendant Kane is the legal advisor of the Governor and the chief law officer of the Commonwealth.

For the reasons hereinafter stated, this Court holds that the following challenged sections of the Abortion Control Act and the related criminal sanctions are unconstitutional: the definition of "viable" found in Section 2; the spousal consent requirement found in Section 3(b)(i); the parental consent requirement found in Section 3(b)(ii); the determination of viability requirement found in Section 5(a); the performance of an abortion requirements found in Section 6(b); part of the reporting requirements found in Section 6(d); the prohibition of advertising requirement found in Section 6(f); and finally, the subsidizing of an abortion requirement found in Section 7. And for the reasons hereinafter stated, we hold that the following challenged sections of the Act and the related criminal sanctions are constitutional: the definition of "informed consent" found in Section 2; the informed consent requirement found in Section 3(a); the disposition of dead fetuses requirement found in Section 5(c); the determination of pregnancy requirement found in Section 6(a); the facility approval requirement found in Section 6(c); part of the reporting requirements found in Section 6(d); and finally, the Health Department regulation requirements found in Section 8.

I. Justiciability

The threshold question for consideration is the justiciability of the instant litigation. The state challenges plaintiffs' standing to contest the validity of the challenged statute in this case which lacks, as a party, a pregnant woman who has been denied an abortion. Initially the state contends that the plaintiff-physicians have no standing to bring this action. Standing, of course, entails

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