Planned Parenthood v. Casey

• Decision Date: 24 August 1990
• Docket Number: Civ. A. No. 88-3228.
• Citation: 744 F. Supp. 1323
• Parties: PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counselling Center, Women's Health Services, Inc., Women's Suburban Clinic, Allentown Women's Center, and Thomas Allen, M.D., on behalf of himself and all others similarly situated, Plaintiffs, v. Robert P. CASEY, N. Mark Richards, Ernest Preate, personally and in their official capacities, and Michael D. Marino, personally and in his official capacity, together with all others similarly situated, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

744 F. Supp. 1323

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counselling Center, Women's Health Services, Inc., Women's Suburban Clinic, Allentown Women's Center, and Thomas Allen, M.D., on behalf of himself and all others similarly situated, Plaintiffs, v. Robert P. CASEY, N. Mark Richards, Ernest Preate, personally and in their official capacities, and Michael D. Marino, personally and in his official capacity, together with all others similarly situated, Defendants.

Civ. A. No. 88-3228.

United States District Court, E.D. Pennsylvania.

August 24, 1990.

Thomas E. Zemaitis, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Kathryn Kolbert, American Civil Liberties Union, New York City, Linda J. Wharton, Women's Law Project, Philadelphia, Pa., for plaintiffs.

Kate L. Mershimer, Sandra W. Stoner, Office of Atty. Gen., Com. of Pa., Harrisburg, Pa., for defendants.

OPINION

HUYETT, District Judge.

INTRODUCTION

This court is required to address again the difficult and controversial issue of the permissible degree of governmental regulation of a woman's abortion decision. In this action for declaratory and injunctive relief, plaintiffs challenge the 1988 and 1989 amendments to Pennsylvania's Abortion Control Act of 1982 ("the Act"), Act of March 25, 1988, 1988 Pa.Laws 262, No. 31, §§ 3-10 ("Act 31") and Act of November 17, 1989, 1989 Pa.Laws 592, No. 64, §§ 1-9 ("Act 64"), amending 18 Pa.Cons.Stat.Ann. §§ 3201-20 (Purdon 1983 and 1990 Supp.).¹ Plaintiffs assert that Act 31 and Act 64 violate the United States Constitution and 42 U.S.C. § 1983 (1981). I have subject matter jurisdiction over this controversy pursuant to 28 U.S.C. § 1331 (1966 and 1990 Supp.), 28 U.S.C. § 1343(a)(3), (4) (1976 and 1990 Supp.), and the fourteenth amendment to the United States Constitution.

Just three days prior to the scheduled effective date of Act 31, following a hearing, I granted plaintiffs' motion for a temporary restraining order and enjoined defendants from: (1) enforcing the provisions of section 3206² and (2) publicly disclosing or otherwise making available for public inspection and copying any report filed pursuant to sections 3207(b) or 3214(f).³ An evidentiary hearing and oral argument on plaintiffs' motion for a preliminary injunction was held on May 9, 1988. With the consent of the parties, I ordered that the earlier temporary restraining order would remain in effect until such time as I ruled on the motion for a preliminary injunction following the hearing. See Order (May 9, 1988). Two weeks later, on May 23, 1988, I preliminarily enjoined various portions of the Act.⁴ Planned Parenthood of Southeastern Pennsylvania v. Casey, 686 F.Supp. 1089 (E.D.Pa.1988) ("Casey I"). Defendants did not appeal this decision.

Thereafter, I stayed all proceedings pending issuance of the decision of the United States Supreme Court in Webster v. Reproductive Health Services.⁵ At about the time of the Supreme Court's decision in Webster, the Pennsylvania legislature began debating various amendments to the Act. Several months later, on November 17, 1989, Act 64 was adopted to become effective in sixty days. With the consent of the defendants and leave of the court, plaintiffs filed an amended complaint to extend the scope of their challenge against the Act to include the 1989 amendments. After a conference held in chambers, I extended, over the objection of defendants, the preliminary injunction order to encompass the 1989 amendments to the Act. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 736 F.Supp. 633 (E.D.Pa.1990) ("Casey II").

The trial of this action on the merits was held during the week of July 30, 1990. The parties have entered into a comprehensive stipulation of uncontested facts and a supplemental stipulation of uncontested facts for the purposes of trial.⁶ Based upon the stipulation of uncontested facts and the supplemental stipulation of uncontested facts, the evidence presented at trial, and the evidence presented at the hearing on plaintiffs' motion for a preliminary injunction which the parties have agreed would be admissible at the trial on the merits,⁷ I make the following findings of fact and conclusions of law. However, because in many ways the Pennsylvania legislature has come full circle by re-enacting many provisions of the Act which were deemed unconstitutional at various stages during the 1982 action involving the 1982 Act, I shall first summarize the lengthy history of abortion legislation in Pennsylvania.

I. HISTORY OF ABORTION REGULATION IN PENNSYLVANIA⁸

In its landmark decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court invalidated statutes, like Pennsylvania's,⁹ containing general prohibitions against abortions, because such statutes unconstitutionally violated a woman's fundamental right to privacy. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In the year following Roe v. Wade, over the Governor's veto, the state legislature enacted Pennsylvania's first comprehensive "Abortion Control Act." See Abortion Control Act of 1974, 1974 Pa.Laws 639, No. 209 (amended 1978, repealed 1982). After extensive and substantial litigation, various provisions of the 1974 Act, including sections relating to spousal and parental consent to abortion procedures, to the proscription of advertising for abortion procedures, to the choice of post-viability abortion procedures, and to the criminal standard governing the performance of abortions at viability, were struck down. See Planned Parenthood Ass'n v. Fitzpatrick, 401 F.Supp. 554 (E.D.Pa.1975) (three judge panel), aff'd mem. in part sub nom., Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 and vacated and remanded mem. in part sub nom., Beal v. Franklin, 428 U.S. 901, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976), modified on remand, Civil Action No. 74-2440 (E.D.Pa. Sept. 16, 1977) (unreported), aff'd sub nom., Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).¹⁰ See also Doe v. Zimmerman, 405 F.Supp. 534 (M.D.Pa.1975) (three judge panel).

In 1978, the legislature attempted to restrict a woman's access to abortions by limiting medical assistance funding for the procedure. See Act of September 26, 1978, 1978 Pa.Laws 773, No. 148, §§ 1-2. A successful challenge was mounted against this effort. Roe v. Casey, 464 F.Supp. 487 (E.D.Pa.1978), aff'd, 623 F.2d 829 (3d Cir. 1980).

Thereafter, a bill based on a model developed by Americans United For Life, a nonprofit organization, was introduced by the House as an amendment to a Senate bill regulating "tough guy" competitions. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick.L.Rev. 373, 382 n. 84 (1983). Despite being rejected by the relevant legislative committee, the bill was passed overwhelmingly. The Senate, after brief discussion, concurred with the House amendment. While acknowledging his personal opposition to abortion, Dick Thornburgh, then Governor of Pennsylvania, vetoed the bill and explained his action as follows:

I am concerned that some provisions, and to some extent, the overall tone and tenor of the bill, would have the effect of imposing an undue, and, in some cases, unconstitutional burden upon even informed, mature adults intent upon obtaining an abortion under circumstances in which the U.S. Supreme Court has determined they are entitled to do so....

Likewise, I am concerned that some of the detailed, complex and burdensome requirements of the bill, accompanied as they are by severe criminal penalties, could well foster an atmosphere in which many physicians would be deterred from providing the kind of abortion-related medical services to which the U.S. Supreme Court has held their patients are constitutionally entitled. This could well disrupt the traditional doctor-patient relationship and impinge upon the right of physicians to practice. Of even greater concern is the potential for more experienced and conscientious physicians to refrain from involvement in even medically necessary abortions, and to abandon the field to marginal practitioners. It could even lead to a resurgence of "back alley" abortions, which no thoughtful person would wish to happen....

I am also concerned that in its entirety the bill in its current form goes further than is necessary in protecting the state interests in this area.... In so doing, it threatens to create additional regulation and bureaucracy and to unduly involve government in the private lives of its citizens.

See Veto Message to the Senate at 7 (December 23, 1981) Plaintiffs' Exhibit 60. After revision and introduction on the floor of the House as an amendment to a bill relating to paramilitary training, the Abortion Control Act of 1982 was passed by both the House and Senate. Signed by Governor Thornburgh on June 11, 1982, the Act was to take effect within 180 days, on December 8, 1982, from its enactment.

The Abortion Control Act of 1982 imposed detailed regulations on abortions which required that: (1) a pregnant woman wait a mandatory 24 hours prior to undergoing an abortion procedure after giving her consent to the procedure; (2) a physician personally provide certain specified information to a woman seeking an abortion as a part of the informed consent process; (3) unemancipated minors obtain parental or judicial consent for an abortion procedure; and (4) all second trimester abortions be performed in a hospital. The 1982 Act also strictly limited post-viability abortions; dictated the use of specific procedures and, in some cases, the presence of a second physician to save the aborted fetus; imposed detailed reporting regulations; required fetal pathology reports; restricted the availability of public funds for the performance of abortions; and regulated private insurance coverage for the performance of abortions. Further, the 1982 Act subjected...