Planned Parenthood of Southeastern Pennsylvania v. Casey
| Decision Date | 25 September 1992 |
| Docket Number | No. 90-1662,90-1662 |
| Citation | 978 F.2d 74 |
| Parties | PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counseling Center, Women's Health Services, Inc., Women's Suburban Clinic, Allentown Women's Center, Allen, Thomas, M.D., on Behalf of himself and all others similarly situated v. CASEY, Robert P., Richards, N. Mark, Preate, Ernest, personally and in their official capacities, and Marino, Michael D., personally and in his official capacity, together with all others similarly situated. Robert P. Casey, N. Mark Richards and Ernest D. Preate, Jr., Appellants. . Submitted under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Ernest D. Preate, Jr., Atty. Gen., Kate L. Mershimer, Senior Deputy Atty. Gen., Calvin R. Koons, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of the Atty. Gen., Harrisburg, Pa., for appellants.
Thomas E. Zemaitis, Stephen J. Cipolla, Jody Kathleen Marcus, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Linda Wharton, Women's Law Project, Philadelphia, Pa., Kathryn Kolbert, American Civil Liberties Union, Reproductive Freedom Project, Roger K. Evans, Dara Klassel, Planned Parenthood Federation of America, Inc., New York City, Seth Kreimer, University of Pennsylvania Law School, Philadelphia, Pa., for appellees.
Susan Oliver Renfer, Ann-Louise Lohr, Kevin J. Todd, Americans United for Life, Chicago, Ill., John E. McKeever, Philadelphia, Pa., for amicus curiae American Academy of Medical Ethics.
Phyllis Gelman, Nancy A. Breslow, New York City, Barbara J. Hart, Pennsylvania Coalition Against Domestic Violence, Reading, Pa., for amicus curiae Pennsylvania Coalition Against Domestic Violence, Pennsylvania Coalition Against Rape, New Jersey Coalition for Battered Women, Women's Coalition of St. Croix, Virgin Islands, Families in Transition Center of Milford, Del., National Clearinghouse for the Defense of Battered Women, Nat. Coalition Against Domestic Violence, Nat. Woman Abuse Prevention Project, Domestic Violence Research and Resources, Connecticut Coalition Against Domestic Violence, Clinton County Women's Center, Hospitality House Services for Women, Inc., Laurel House, Pennsylvania Campaign for Choice Survivors, Inc., Tioga County Women's Coalition, Women Against Abuse, Inc. and Women Against Abuse Legal Center, Inc. and Women's Center & Shelter of Greater Pittsburgh.
James Eiseman, Jr., Drinker, Biddle & Reath, Philadelphia, Pa., for amicus curiae Pennsylvania Chapter of the American College of Emergency Physicians.
Before: STAPLETON, ALITO and SEITZ, Circuit Judges.
The Supreme Court of the United States upheld, with two exceptions, the constitutionality of certain provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa.Cons.Stat. §§ 3203-3220 (1990) (the "Act"). Planned Parenthood v. Casey, --- U.S. ----, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). It, in substance, affirmed our earlier judgment in this matter. Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir.1991).
In its implementing mandate the Court first stated that the judgment in No. 91-902 "is affirmed." The petition for certiorari in that case had been filed by defendants-appellants, Casey, et al. (No. 91-902) (the "Commonwealth") attacking the judgment of this court to the extent that it had affirmed the district court's judgment that § 3209 of the Act (spousal notice) was unconstitutional. Since the judgment of our court was affirmed unconditionally on that claim, it is not of further relevance at this point.
In the second part of its mandate the Court stated:
The judgment in No. 91-744 is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion, including consideration of the question of severability.
Thus, the judgment in No. 91-744 affirmed this court's rejection of the constitutional attacks mounted by the plaintiffs ("Clinics") on several portions of the Act. However, the Court reversed our judgment in part. We interpret that portion of the mandate to be based on the fact that we did not go on to declare the related subsection 14(a)(12) of § 3214 () unconstitutional. Pursuant to the Court's mandate, we will therefore amend our judgment to include a provision also invalidating subsection 14(a)(12) of § 3214 of the Act.
We turn now to the portion of the mandate directing us to consider the question of the severability of the balance of the Act from the two provisions declared unconstitutional.
The first provision declared unconstitutional by the Court is § 3209, entitled "Spousal Notice." It reads in pertinent part as follows:
(a) Spousal notice required.--In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion....
The second, and related, provision declared unconstitutional is subsection 14(a)(12) of § 3214. It required a report of all abortions to the Department of Health containing, inter alia, the following information:
(12) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.
We are met at the threshold with the Commonwealth's contention that the Clinics waived their rights to attack the severability of § 3209 because they did not ask the Supreme Court to review this court's ruling in footnote 27, holding that § 3209 was severable. Planned Parenthood v. Casey, 947 F.2d at 715. In the present circumstances we do not decide whether the waiver argument has merit. We so conclude because, very simply, our relative position in the federal judicial hierarchy does not permit us to ignore the Supreme Court's mandate directing us to consider the severability question and we construe that mandate to mean that we should consider that question on its merits. We turn to that task.
The resolution of the severability of the two provisions from the balance of the Act is controlled by state law, in this case, Pennsylvania law. Davis v. Michigan Dep't of the Treasury, 489 U.S. 803, 818, 109 S.Ct. 1500, 1509, 103 L.Ed.2d 891 (1989). Thus, we must predict whether the Supreme Court of Pennsylvania would sever the unconstitutional provisions and uphold the continuing legal validity of the balance of the Act.
The Abortion Act itself contains the following severability provision:
The provisions of this act are severable. If any word, phrase or provision of this act or its application to any person or circumstances is held invalid, the invalidity shall not affect any other word, phrase or provision or application of this act which can be given effect without the invalid word, phrase, provisions or application. Act of November 17, 1989, 1989 Pa.Laws 592, No. 64, § 6.
In addition, Pennsylvania has a general severability statute that reads:
The provisions of every statute shall be severable. If any provision of any...
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