Scheinberg v. Smith

• Decision Date: 13 December 1979
• Docket Number: No. 79-6403-Civ-SMA.,79-6403-Civ-SMA.
• Citation: 482 F. Supp. 529
• Parties: Mark SCHEINBERG, M.D. (formerly named herein as John Jones, M.D.), on his own behalf and on behalf of all others similarly situated, Plaintiff, v. James C. SMITH, Attorney General of Florida and Michael J. Satz, State Attorney Seventeenth Judicial Circuit, Florida, Defendants.
• Court: U.S. District Court — Southern District of Florida

482 F. Supp. 529

Mark SCHEINBERG, M.D. (formerly named herein as John Jones, M.D.), on his own behalf and on behalf of all others similarly situated, Plaintiff, v. James C. SMITH, Attorney General of Florida and Michael J. Satz, State Attorney Seventeenth Judicial Circuit, Florida, Defendants.

No. 79-6403-Civ-SMA.

United States District Court, S. D. Florida.

December 13, 1979.

COPYRIGHT MATERIAL OMITTED

Bruce S. Rogow, Mary Ellen Shoemaker, ACLU Foundation of Florida, Ft. Lauderdale, Fla., Joel Lumer, ACLU Foundation of Florida, Miami, Fla., for plaintiff.

Martin S. Friedman, Asst. Atty. Gen., Tallahassee, Fla., for defendants.

MEMORANDUM OPINION

ARONOVITZ, District Judge.

"If the right of privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972).¹ This case requires that the Court inquire as to the scope of this freedom in the context of abortions and, more specifically, as to the degree to which a state can mandate judicial or spousal involvement in a woman's decision whether to terminate her pregnancy.

Nature of the Case

In June, 1979, the Florida Legislature enacted and the Governor signed into law the "Medical Practice Act" (hereinafter "the Act").² This Act contains a section regulating the termination of pregnancies in Florida³ and makes it a criminal offense to perform or to participate in a pregnancy termination in violation of the requirements set forth in the Act.⁴ On July 5, 1979, Dr. Mark Scheinberg, a licensed physician who performs abortions, filed this class action complaint, naming as Defendants JAMES C. SMITH and MICHAEL J. SATZ, the Attorney General of Florida and the State Attorney for the Seventeenth Judicial Circuit of Florida, respectively.⁵ Claiming that certain sections of the Act regulating abortions impermissibly abridged the free speech provisions of the First Amendment, the Equal Protection and Due Process clauses of the Fourteenth Amendment to the Federal Constitution, and a woman's fundamental right of privacy in the abortion decision, Plaintiff sought declaratory and injunctive relief.⁶

The particular provisions of the Act Plaintiff challenged were sub-sections 4(a) and 4(b) of Fla.Stat.Ann. § 458.505 (1979) which, in their entirety, provide as follows:

(4) Prior to terminating a pregnancy the physician shall obtain the written informed consent of the pregnant woman or, in the case of a mental incompetent, the written consent of the court-appointed guardian.

(a) If the pregnant woman is under 18 years of age and unmarried, in addition to her written request, the physician shall obtain the written informed consent of a parent, custodian, or legal guardian of such unmarried minor, or the physician may rely on an order of the Circuit Court, on petition of the pregnant unmarried minor or another person on her behalf, authorizing, for good cause shown, such termination of pregnancy without the written consent of her parent, custodian, or legal guardian. The cause may be based on a showing that the minor is sufficiently mature to give an informed consent to the procedure, or based on the fact that a parent unreasonably withheld consent by her parent, custodian, or legal guardian, or based on the minor's fear of physical or emotional abuse if her parent, custodian, or legal guardian were requested to consent, or based upon any other good cause shown. At its discretion the court may enter its order ex parte. The court shall determine the best interest of the minor and enter its order in accordance with such determination.

(b) If the woman is married, the husband shall be given notice of the proposed termination of pregnancy and an opportunity to consult with the wife concerning the procedure. The physician may rely on a written statement of the wife that such notice and opportunity has been given, or he may rely on the written consent of the husband to the proposed termination of pregnancy. If the husband and wife are separated or estranged, the provisions of this paragraph for notice or consent shall not be required. The physician may rely upon a written statement from the wife that the husband is voluntarily living apart or estranged from her.

Sub-section 4(a) governs abortions sought by unmarried women under eighteen (18) years of age (hereinafter unmarried minors), requiring that, as a pre-condition to securing an abortion, an unmarried minor provide her physician with either the written informed consent of a parent, custodian, or legal guardian or an order from the Circuit Court. Sub-section 4(b) governs abortions of married women, requiring that a wife who is neither "separated or estranged" furnish her husband with notice of the proposed abortion and allow him the opportunity to consult with her concerning the procedure.

A hearing was held on July 10, 1979, to consider Plaintiff's motion for class action certification and to consider Plaintiff's request for preliminary injunctive relief as to the challenged statutory provisions. In a memorandum opinion dated July 13, 1979, the Court ruled that Plaintiff's cause of action was properly maintainable as a class action and that Plaintiff had the requisite standing to represent the two certified sub-classes.⁷

Further, relying on the Supreme Court's decision in Bellotti v. Baird, ___ U.S. ___, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), the Court preliminarily enjoined Defendants from prosecuting Plaintiff, or any member of the classes he represented, under that portion of the Act governing the performance of abortions on unmarried minors.⁸ The Court's rationale was that § 458.505(4)(a) empowered a Florida circuit court judge to do precisely what the Bellotti decision prohibited, that is, to deny an abortion to an unmarried minor, even if adjudged sufficiently mature to give informed consent, where the abortion would not be in her "best interests" as the judge perceived them.

Based upon the record then before it, however, the Court concluded that Plaintiff had not demonstrated that there was a substantial likelihood the spousal notice and consultation provision of the Act would be found unconstitutional.⁹ Accordingly, preliminary injunctive relief was denied with regard to that portion of the Act.¹⁰

On September 14, 1979, a final hearing was held on Plaintiff's request for declaratory and permanent injunctive relief as to the two challenged provisions of the Act. The issues before the Court were comprehensively briefed and argued. In addition, the Court heard testimony of numerous witnesses for the Plaintiff, a large number of whom the Court designated as experts. Defendants, in turn, presented the testimony of a single witness, an acknowledged expert in the disciplines of obstetrics and gynecology.

The Court has carefully reviewed and considered the record of the September 14th hearing, as well as the record from the July 10th preliminary injunction proceedings, and herein makes its findings of fact and conclusions of law as required by Fed. R.Civ.P. 52. Based upon this review and for the reasons discussed below, the Court concludes that the challenged provisions of the Act, sub-sections 4(a) and 4(b) of § 458.505, are constitutionally defective in that they impermissibly invade a woman's fundamental right to privacy in the abortion decision.¹¹

Abstention Unwarranted

The Court must address the preliminary question of whether it should abstain in accordance with the dictates of Railroad Comm'n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). For the reasons noted below, the Court finds that Pullman-type abstention is inappropriate.

The judicially created doctrine of abstention is "an extraordinary and narrow exception to the duty of a federal Court to adjudicate a controversy properly before it."¹² It cannot be invoked "to dismiss a suit merely because a State court could entertain the action,"¹³ nor does the "opportunity to avoid decision of a constitutional question . . . alone justify abstention by a federal court."¹⁴ Rather, "abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest."¹⁵

Defendants contend that Pullman-type abstention on the unmarried minor portion of this litigation is appropriate¹⁶ because the Florida state courts have not construed § 458.505(4)(a) and because it "is susceptible of a construction . . . `which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.'"¹⁷ By abstaining, Defendants argue, the Court would further the rationale underlying Pullman, that is, to avoid unnecessary federal constitutional challenges to state laws, thus obviating needless friction between the state and federal governments and promoting federal-state court relations (i.e. comity).¹⁸ Although the Court is in agreement with the general principles of abstention enunciated by the Defendants, it finds itself unable to agree with Defendants' conclusion that abstention is warranted here.

Plaintiff has correctly argued that the hallmark of Pullman-type abstention cases is ambiguity in the challenged statute.¹⁹ As the Court elaborated in its July 13, 1979 opinion, § 458.505(4)(a), on its face, admits of only one reasonable interpretation: it places an impermissible right to veto the informed abortion decision of an unmarried minor in the circuit court.²⁰ Even if the Court were to accept the alternative construction suggested by Defendants,²¹ some of the arguable constitutional infirmities in § 458.505(4)(a) would remain. Subsection 4(a) does not, for instance, provide procedural safeguards to...