PLANNED PARENTHOOD LEAGUE, ETC. v. Bellotti, Civ. A. No. 80-1166-MA.

Citation499 F. Supp. 215
Decision Date02 September 1980
Docket NumberCiv. A. No. 80-1166-MA.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
PartiesPLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, Crittenton Hastings House & Clinic, Phillip G. Stubble-field, M.D., Jane Doe, and all others similarly situated, Plaintiffs, v. Francis X. BELLOTTI, Attorney General of the Commonwealth of Massachusetts; Alfred L. Frechette, M.D., Commissioner of Public Health of the Commonwealth of Massachusetts; and Newman Flanagan, District Attorney of the County of Suffolk, in that capacity and as a representative of a class of the District Attorneys for all other Counties, their agents, successors, those acting in concert with them, and all others similarly situated, Defendants.

John H. Henn, Sandra L. Lynch, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.

Stephen S. Ostrach, Asst. Atty. Gen., Government Bureau, Boston, Mass., for State defendants.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

In this class action for declaratory and injunctive relief, plaintiffs challenge the constitutionality of several elements of the 1980 Massachusetts act regulating abortions ("the Act").

The plaintiffs are Planned Parenthood League of Massachusetts, a counseling organization; Crittenton Hastings House and Clinic (Crittenton), a clinic providing abortion and abortion counseling services; Phillip G. Stubblefield, M.D., a physician who performs pregnancy terminations; and Jane Doe, an unmarried pregnant minor. They bring this action in their own behalf and as representatives of the separate classes of which they are members. The defendants are various state officials charged with the responsibility for the civil and criminal enforcement of the challenged statute. Relief is authorized by 42 U.S.C. § 1983 and 28 U.S.C. § 2201. This Court has jurisdiction under 28 U.S.C. §§ 1343(3) and 1331.

The record consists of affidavits, a partial stipulation of facts, and testimony including exhibits presented at hearing. Also submitted were portions of the transcript and depositions contained in the Appendix filed in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). Finally, the Court was asked to take judicial notice of certain population figures, geographic locations and specific Massachusetts statutes pertaining to the administration of the state courts.

Plaintiffs here challenge only section 12S of the Massachusetts statutory scheme regulating abortions. M.G.L. c. 112, §§ 12K-12U. In its two paragraphs, § 12S imposed three sets of regulations: (1) a physician must obtain every woman's written consent 24 hours before the abortion on a form provided by the Department of Public Health and conveying certain information; (2) the physician must retain signed forms for seven years, then destroy them. The forms are confidential with certain exceptions; and (3) an unmarried minor, except in emergencies, must obtain either the consent of both parents (unless they are divorced or unavailable) or judicial authorization. Judicial authorization is to be granted after motion and hearing if the minor is found to be mature or if abortion is in her best interest.

We rule here on the plaintiffs' application for a preliminary injunction. In order to obtain temporary injunctive relief, plaintiffs must meet four criteria. The Court must find: (1) the plaintiffs have demonstrated a probability of success; (2) the plaintiff will suffer irreparable injury if the injunction is not granted; (3) the plaintiff's injury outweighs any injury to the defendant if the injunction is granted; and (4) the public interest will not be adversely affected by granting the injunction. Morgan v. Kerrigan, 509 F.2d 618 (1st Cir. 1975); Automatic Radio Manufacturing Co. v. Ford Motor Co., 390 F.2d 113 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968).

I. THE BACKGROUND OF THIS STATUTE

The § 12S under attack here emerges from the series of federal district court, U.S. Supreme Court and Supreme Judicial Court cases which culminated in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II). That case re-affirmed the principles enunciated in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and refined in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (Danforth). Bellotti II contained language that the former § 12S "satisfied constitutional standards in large part," id. at 651, 99 S.Ct. at 3052. Section 12S was deemed to have satisfied constitutional requirements in providing for an (1) alternative procedure for authorization of minors' abortions, (2) disregard for parental objections not based on the minor's best interests, and (3) anonymity and expedition of proceedings under rule-making power of the state court which would not amount to a judicial veto. However, Bellotti II struck down § 12S on two grounds. The two areas which were found to be constitutionally impermissible intrusions upon the abortion decision were (1) parental notification or consultation in every instance, and (2) judicial withholding of authorization even though the minor was found to be mature and fully competent. In summary, the statute was struck down because in every instance, it subjected the minor's decision to an absolute third-party veto, either parental or judicial.

The present § 12S was drafted to address specifically these two objections, while retaining those provisions of the prior § 12S which were considered to have passed constitutional muster. In addition, the prior § 12S did not impose a waiting period and did not require written consent for women over eighteen years old. The present statute imposes those two additional requirements.

With this background in mind, we turn to the present § 12S.

II. THE PRESENT STATUTE

Viewed against the further developments since Roe v. Wade, supra, and the direction furnished by Danforth and Bellotti II, we conclude that the plaintiffs have not submitted sufficient evidence to show a likelihood of success on the merits and, therefore, their motion for preliminary injunction must be denied. While ambiguities in the statute1 could conceivably be resolved so as to impose additional burdens on a patient's rights to consult freely with her physician and to choose an abortion, the ways in which the Department of Public Health (DPH) in its consent form2 and the Chief Justice of the Superior Court, in his Standing Order No. 12-80, effective September 3, 1980 (which will be supplanted by formal rules), have implemented the statute, persuade us that the statute can be construed so as to protect the state's interest in the abortion decision without imposing an unconstitutional impingement. That interest is in assuring the integrity of the woman's decision, and, therefore, the state may require a written, informed consent. On the record presented here, this statute has been drawn and implemented narrowly to further that interest. The plaintiffs have failed to show that the statute imposes such burdens so as to outweigh the interest of the state even in the first trimester when the scrutiny is the strictest.

We now turn to an examination of each of the six specific provisions of the statute upon which plaintiffs focused their objections. We do not explicitly address the plaintiffs' equal protection argument at this time because sufficient evidence or argument has not been presented concerning state regulation of abortion as compared to other medical procedures. However, similar issues are raised in a substantive due process approach because of the compelling interest test applicable to first trimester abortion regulation. See discussion, Womens Services, P. C. v. Thone, 483 F.Supp. 1022, 1040-1044 (D.Neb.1979).

1. Development of the Embryo

The state clearly has a legitimate interest in assuring that a woman's decision to have an abortion is made of her own volition upon thoughtful consideration of relevant factors. Requiring her prior written consent is not per se unconstitutional, even when required only for abortions and not other medical procedures. Danforth, 428 U.S. at 65-67, 96 S.Ct. at 2839-40. However, the state may not mandate that such information be given as will "straight-jacket" the physician in the practice of his or her profession. Id. at note 8; Planned Parenthood of Kansas City v. Ashcroft, 483 F.Supp. 679 (W.D.Mo.1980).

The form prescribed by the Commissioner of Public Health contains the following information for first trimester abortions:

DEVELOPMENT OF THE EMBRYO
The first trimester is defined as approximately the first twelve weeks of pregnancy.
In the first few days after conception, the fertilized egg divides into a mass of cells as it travels from the Fallopian tubes into the uterus (womb). It then implants in the lining of the uterus. The inner cell mass becomes the embryo while the outer cell mass ultimately develops into the placenta (afterbirth).
Four weeks after conception, the embryo is a little less than approximately half an inch in length and the cells are continuing to multiply and develop differently.
At eight weeks of development, the embryo is about one inch in length. Main organ systems are formed and some external human-like physical characteristics are recognizable. This differentiation continues through the twelfth week by which time the embryo is approximately 2½ inches in length crown to rump.

The information pertaining to second and third trimester abortions follows the same pattern, describing the embryo in terms of size and mass at certain times, and relating times at which heart beat, movement and full development is reached.

The plaintiffs object to the information because, in the opinion of their witnesses, the patients do not desire it and they fear it will have an adverse emotional effect on the patient. Dr. Stubblefield cannot say that his patients are informed about the stage of development because he does not feel it is...

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