Smith v. Bentley

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: PER CURIAM
• Citation: Smith v. Bentley, 493 F.Supp. 916 (E.D. Ark. 1980)
• Decision Date: 03 July 1980
• Docket Number: No. LR-76-C-57.,LR-76-C-57.
• Parties: Mose SMITH et al., Plaintiffs, v. Wilbur C. BENTLEY et al., Defendants.

493 F. Supp. 916

Mose SMITH et al., Plaintiffs, v. Wilbur C. BENTLEY et al., Defendants.

No. LR-76-C-57.

United States District Court, E. D. Arkansas, W. D.

July 3, 1980.

COPYRIGHT MATERIAL OMITTED

Kent J. Rubens, West Memphis, Ark., for plaintiffs.

Wilbur C. "Dub" Bentley, Pros. Atty., Sixth Judicial Dist., Steve Clark, Atty. Gen., State of Ark., Little Rock, Ark., for defendants.

HENLEY, Circuit Judge, and HARRIS and ROY, District Judges.

PER CURIAM.

The jurisdiction of the district court has been invoked in this case pursuant to the provisions of 28 U.S.C. §§ 1343(3), 2201, 2202, 2281 and 2284. The plaintiffs' claim for injunctive relief is premised on the substantive provisions of 42 U.S.C. § 1983. The plaintiffs in this action, desiring to provide clinical abortion services upon request, challenge the constitutionality of Ark.Stat.Ann. §§ 41-2551 — 41-2560 (Crim. Code 1976), Arkansas' criminal abortion statutes.¹ Following the commencement of this suit the defendants were enjoined from enforcing, or attempting to enforce, the challenged statutes with respect to the plaintiffs, their agents, servants and employees² and a three-judge district court was empaneled for the purpose of resolving the merits of the plaintiffs' constitutional claims.³ The factual and legal positions of the parties have been clarified by the submission of a stipulated set of facts and briefs in support of their respective positions. The plaintiffs' position, succinctly stated, is that Arkansas' criminal abortion statutes are unconstitutional by virtue of United States Supreme Court decisions which have dealt with state abortion laws similar to those of Arkansas. The plaintiffs, stressing alleged similarities between the challenged statutory provisions and the Texas statutes invalidated en masse by the Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), contend that Arkansas' statutes must likewise fall as a unit. The defendant State officials, while acknowledging probable constitutional deficiencies with respect to parts of the statutes which have been challenged by the plaintiffs, contend those sections of Arkansas' statutory scheme are severable. The defendants urge this court to so hold and to sustain those portions of Arkansas' criminal abortion statutes which are capable of being applied in a constitutional manner. We have considered whether this case has been rendered moot and, having concluded that a viable case or controversy exists,⁴ we proceed with our consideration of the issues presented by the papers in this case.

I. STANDING

We cannot address the plaintiffs' contentions without first determining whether the plaintiffs have standing to challenge the constitutionality of each of the statutory provisions questioned by this suit. Analysis of the plaintiffs' standing entails a twofold inquiry. First, we must consider whether the plaintiffs have alleged "injury in fact". The plaintiffs can satisfy the "injury in fact" standard only if they have a sufficiently concrete interest in the outcome of their suit to make it a case or controversy within the jurisdictional limitations of Art. III. Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). Secondly, we must decide whether the plaintiffs "are the proper proponents of the particular legal rights on which they base their suit". Id. at p. 112, 96 S.Ct. at p. 2873.

The parties have stipulated the following facts: Plaintiff Mose Smith, III, is a duly licensed physician in the State of Arkansas. He is also a diplomate of the American Board of Obstetrics and Gynecology. Little Rock Pregnancy Counseling Service, Inc., is a professional corporation licensed under the laws of the State of Arkansas. All of the members of Little Rock Pregnancy Counseling Service, Inc., are physicians who are licensed to practice medicine in Arkansas. The plaintiffs, with the assistance of their agents and employees, perform abortions on demand pursuant to the provisions of this court's order of February 17, 1976, restraining enforcement of Ark.Stat.Ann. §§ 41-2551 — 2560 (Crim. Code 1976). The performance of abortions by the plaintiffs would, in the absence of this court's order of January 17, 1976, be violative of the penal provisions of Ark.Stat.Ann. §§ 41-2551 — 2560 (Crim. Code 1976). The plaintiffs perform abortions on demand during the first trimester of pregnancy. The plaintiffs perform abortions during the first trimester of pregnancy without regard to the criteria for "legal abortions" established in Ark.Stat.Ann. § 41-2554 (Crim. Code 1976). First trimester abortions are performed by the plaintiffs on an out-patient basis at an out-patient clinic operated by Little Rock Pregnancy Counseling Service, Inc. Contrary to the requirements of Ark. Stat.Ann. § 41-2557, the plaintiffs do not perform first trimester abortions in a hospital licensed by the Arkansas State Board of Health and accredited by the Joint Commission of Accreditation of Hospitals. Despite the plaintiffs' failure to observe the requirements of Ark.Stat.Ann. § 41-2557 with respect to abortions performed during the first trimester of pregnancy, the medical procedures utilized by the plaintiffs in the termination of pregnancies comply with the nationally accepted medical principles and the American Medical Association, the Arkansas Medical Society and the American College of Obstretricians and Gynecologists. The plaintiffs induce abortions during the first trimester of pregnancy by means of "uterine asporation". Since uterine asporation does not involve the use of a general anesthetic the procedure is medically safer than a procedure which requires the use of a general anesthetic. Abortions performed during the first trimester of pregnancy by means of uterine asporation present less medical risk to the mother's life than that presented by actual childbirth. Utilization of the uterine asporation procedure enables the plaintiffs to provide women with a safer and less costly means of abortion during the first trimester of pregnancy. The plaintiffs perform abortions during the second and third trimesters of pregnancy consistent with good medical practice. The plaintiffs use their best medical judgment to determine whether an abortion during the second and third trimesters of pregnancy should be performed in a hospital and under what medical conditions. The plaintiffs employ medically trained personnel such as nurses and assistants to assist in the performance of abortive operations. The participation of the plaintiffs' personnel is limited, however, to the performance of those duties which are within the scope of their medical training. The performance of the actual medical procedures necessary to effectuate an abortion are carried out by a licensed physician. The plaintiffs have also employed various people to counsel women who seek abortions. These counselors advise women of their rights relative to the procurement of an abortion, the procedures involved and the alternatives to abortion. The plaintiffs, in order to provide information about their services, have prepared a brochure which has been distributed to nonprofit agencies involved with family planning. The plaintiffs intend to openly advertise their services to the public in a manner not otherwise prohibited by the laws and regulations of the United States and the State of Arkansas. The plaintiffs' advertisements of their abortion services would constitute a violation of the provisions of Ark.Stat.Ann. § 41-2552 in the absence of this court's order of February 17, 1976. The plaintiffs also intend to render, and in fact are now rendering, abortion services in a manner which violates other provisions of Arkansas' abortion statutes. As an example, the plaintiffs deliver, and intend to continue delivering, abortion services in a manner which is inconsistent with the consent requirements set out in Ark. Stat.Ann. § 41-2555. When a minor seeks or requests an abortion the plaintiffs will not terminate the pregnancy unless the minor involved knowingly and understandingly consents to the performance of the abortion. The plaintiffs also intend to perform abortions without observing the residency requirements set out in Ark.Stat.Ann. § 41-2556 and without filing the certificates required by Ark.Stat.Ann. §§ 41-2558 and 2559. It is against this undisputed and stipulated factual background that we must determine the plaintiffs' standing to litigate the constitutionality of each of the statutory provisions challenged by the plaintiffs' complaint.

As the United States Supreme Court recently stated in the case of County Court of Ulster County, New York v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979), "A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (and cases cited)." Like most general rules, exceptions to these general standards have been recognized when the underlying justifications for the rules are not present. Singleton v. Wulff, 428 U.S. 106, 114-116, 96 S.Ct. 2868, 2874-2875, 49 L.Ed.2d 826 (1976). In cases attacking state abortion laws on constitutional grounds physicians have been permitted to assert the rights of their female patients where some obstacle precluded the patients from asserting their own rights. The standing of physicians to assert the rights of their patients in such cases is premised on judicial recognition that the physician is intimately involved in the constitutionally protected abortion decision. Since the physician is inextricably bound up in the patient's decision to terminate a...