Planned Parenthood of Southeastern Pennsylvania v. Casey

• Decision Date: 21 October 1991
• Docket Number: No. 90-1662,90-1662
• Parties: PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counseling Center Women's Health Services, Inc., Women's Suburban Clinic, Allentown Women's Center, Northeast 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.
• Court: U.S. Court of Appeals — Third Circuit

Page 682

947 F.2d 682

60 USLW 2276

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA,

Reproductive Health and Counseling Center Women's Health

Services, Inc., Women's Suburban Clinic, Allentown Women's

Center, Northeast 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.

No. 90-1662.

United States Court of Appeals, Third Circuit.

Argued Feb. 25, 1991.

Decided Oct. 21, 1991.

Ernest D. Preate, Jr., Atty. Gen., Kate L. Mershimer (argued), Calvin R. Koons, Sr. Deputy Attys. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, Pa., for appellants.

Thomas E. Zemaitis, Stephen J. Cipolla, Jody Kathleen Marcus, Pepper, Hamilton & Scheetz, Linda Wharton, Women's Law Project, Philadelphia, Pa., Kathryn Kolbert (argued), 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 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, National Coalition Against Domestic Violence, National 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., Women's Center & Shelter of Greater Pittsburgh.

Pa., for amicus curiae, American Academy of Medical Ethics.

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.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Five abortion clinics and one physician (the "clinics") raise a facial constitutional challenge to certain 1988 and 1989 amendments to the Pennsylvania Abortion Control Act of 1982 (the "Act"). See 18 Pa. Cons.Stat.Ann. §§ 3201-3220 (1983 & Supp.1991). The United States District Court for the Eastern District of Pennsylvania held that §§ 3205 (informed consent), 3206 (parental consent), 3209 (spousal notice), 3214(a) (reporting requirements), and 3207(b) and 3214(f) (public disclosure of clinics' reports) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Commonwealth defendants (the "Commonwealth") appeal. Because we find unconstitutional only § 3209, which requires notice to a spouse of a planned abortion, we will affirm in part and reverse in part.

I.

The clinics filed a complaint alleging that certain 1988 amendments to the Pennsylvania Abortion Control Act of 1982 were facially unconstitutional. The district court issued a preliminary injunction. Thereafter, the court stayed all proceedings pending the Supreme Court's decision in Webster v. Reproductive Health Services in the summer of 1989. After the Webster decision, the Pennsylvania legislature passed further amendments to the Act. The clinics filed an amended complaint to include the 1989 amendments within the scope of their challenge, and the district court extended the preliminary injunction to include the 1989 amendments. The district court then conducted a three-day trial and issued an opinion holding several sections of the Act unconstitutional. 744 F.Supp. 1323. The Commonwealth filed this timely appeal. The clinics have not cross-appealed on the provisions upheld by the district court. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

II.

In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), the Supreme Court declined to reconsider Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), because the Missouri abortion regulations at issue in Webster did not conflict with Roe, which held that a statute which "criminalized the performance of all abortions, except when the mother's life was at stake ... unconstitutionally infringed the right to an abortion." Webster, 492 U.S. at 521, 109 S.Ct. at 3058 (opinion of Rehnquist, C.J.). Like Webster, this appeal does not directly implicate Roe; this case involves the regulation of abortions rather than their outright prohibition. The threshold question is whether the standard of review of abortion regulations promulgated by the Court in Roe and in later cases such as Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), has survived Webster and the Court's subsequent decision in Hodgson v. Minnesota, --- U.S. ----, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).

As Justice O'Connor cogently observed in an equal protection case alleging racial discrimination, a "dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words, but it is not. The standard of review establishes when the Court and Constitution allow the Government to employ racial classifications. A lower standard signals that the Government may resort to racial distinctions more readily." Metro Broadcasting, Inc. v. FCC, --- U.S. ----, 110 S.Ct. 2997, 3033, 111 L.Ed.2d 445 (1990) (O'Connor, J., dissenting). Similarly, the standard of review used for abortion legislation establishes the degree to which the government may regulate abortion. Because of its importance to the resolution of the issues before us, we discuss at some length our reasons for selecting the standard we will subsequently use in analyzing the challenged provisions of the Pennsylvania Act. We will first examine the different standards of review that have been suggested by various Justices as appropriate for reviewing abortion regulations. Then we will consider the rules of stare decisis that must be employed in determining which of these standards we must apply in this case.

A.

The choice of a standard of review in a substantive due process case turns on whether a "fundamental right" is implicated. The Justices of the Supreme Court were divided in Roe v. Wade and have continued to be divided over whether the right to an abortion is a fundamental right under the Due Process Clause. ¹ Accordingly, they have disagreed over the proper standard to apply in reviewing abortion regulations. The majority in Roe concluded that abortion was a fundamental right and, therefore, applied strict scrutiny review, the standard of review generally applied in fundamental rights cases. See Roe, 410 U.S. at 155, 93 S.Ct. at 728. The dissenters in Roe contended that abortion was not a fundamental right and thus judicial review of abortion regulations under the Due Process Clause should be no different from review of any social or economic legislation implicating a liberty interest. Therefore, they urged that the Court apply the deferential rational basis test traditionally used to review social and economic legislation. See id. at 173, 93 S.Ct. at 737 (Rehnquist, J., dissenting). ² Justice O'Connor has referred to the right to abortion as a "limited" fundamental right and adopted a middle ground between these two positions. She uses the strict scrutiny standard if the regulation at issue causes an "undue burden" on a woman's abortion decision and the rational basis standard if it does not. See Akron, 462 U.S. at 453, 465 n. 10, 103 S.Ct. at 2504, 2511 n. 10 (O'Connor, J., dissenting).

1.

In Roe, the Court held that the fundamental right of privacy protected by the Due Process Clause of the Fourteenth Amendment was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153, 93 S.Ct. at 727. Thus, the Court stated that a regulation limiting that fundamental right must meet the strict scrutiny test; it must be justified by a "compelling state interest" and "must be narrowly drawn" to serve that interest. Id. at 155, 93 S.Ct. at 728. The Court held that the state's interests in maternal health and in the potential life of the fetus become compelling at different points in a woman's pregnancy. The state's interest in maternal health is compelling during the second and third trimesters; the state's interest in potential life is compelling when the fetus is viable, that is, during the third trimester. Id. at 162-64, 93 S.Ct. at 731-32.

In dissent in Hodgson, the most recent abortion case, Justice Marshall, joined by Justices Brennan and Blackmun, summarized the approach of cases such as Roe, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), Akron, and Thornburgh: "we have subjected state laws limiting [the abortion] right to the most exacting scrutiny, requiring a State to show that such a law is narrowly drawn to serve a compelling interest. Only such strict judicial scrutiny is sufficiently protective of a woman's right to make the intensely personal decision whether to terminate her pregnancy." Hodgson, 110...