Wolfe v. Schroering

• Decision Date: 18 August 1976
• Docket Number: No. 75-1318,75-1318
• Citation: 541 F.2d 523
• Parties: Dr. Walter WOLFE and Dr. Phillip S. Crossen, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Edwin A. SCHROERING, Jr., Commonwealth Attorney for the 30th Judicial District of Kentucky, Individually and as representative of the Commonwealth Attorneys for the 53 Judicial Districts of Kentucky, and Ed W. Hancock, Attorney General of Kentucky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 523

541 F.2d 523

Dr. Walter WOLFE and Dr. Phillip S. Crossen, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Edwin A. SCHROERING, Jr., Commonwealth Attorney for the 30th

Judicial District of Kentucky, Individually and as

representative of the Commonwealth

Attorneys for the 53 Judicial

Districts of Kentucky,

and

Ed W. Hancock, Attorney General of Kentucky, Defendants-Appellants.

No. 75-1318.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 16, 1975.

Decided Aug. 18, 1976.

Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Edwin A. Schroering, Jr., Frankfort, Ky., for defendants-appellants.

James R. McCormick, Hubbell, Blakeslee, McCormick & Houlihan, Traverse City, Mich., for intervenor.

Robert Allen Sedler, Lexington, Ky., Judith Mears, Yale Legal Services Organization, Yale Law School, New Haven, Conn., Herbert L. Segal (Ky. Nurses Assn.), Louisville, Ky., for plaintiffs-appellees.

Before PECK, McCREE and MILLER, ^* Circuit Judges.

JOHN W. PECK, Circuit Judge.

Named plaintiffs-appellees, Kentucky board-certified obstetrician-gynecologists regularly performing abortions, filed on May 20, 1974, the instant purported class action against a named commonwealth attorney and the commonwealth attorney general, challenging the constitutionality of the March 29, 1974, Kentucky abortion statute, Ky.Rev.Stat. 311.710 et seq., 436.023 (1975). A three-judge court having been designated, depositions having been filed, and oral arguments having been heard, the three-judge court on November 19, 1974, sustained, in part, and invalidated, in part, the statute. The court sustained reporting and data-keeping requirements, the limiting of permissible abortions of "viable" fetuses to life- or health-saving abortions, and the ban on experimentation on aborted fetuses. The court, however, invalidated statutory requirements of the physician explaining "reasonably possible physical or mental consequences of the abortion" to a woman seeking a later than first trimester abortion, of written consent for abortion, of the husband's or parent's (if the woman is unmarried and less than eighteen years old) consent for a later than first trimester abortion, and of a 24-hour waiting period between such consent and the abortion; the district court also invalidated a statutory ban of the saline method for post-first trimester abortions and the "institutional conscience clause" (providing that no hospital shall be required to, or liable for refusal to, perform abortions). Wolfe v. Schroering, 388 F.Supp. 631 (W.D.Ky.1974).

Because defendants presumably would "give full credence to this decision," the district court refrained from granting injunctive relief. Consequently, defendants appealed to this court, rather than to the Supreme Court. See Gerstein v. Coe, 417 U.S. 279, 94 S.Ct. 2246, 41 L.Ed.2d 68 (1974). Plaintiffs, defendants, defendant-intervenor physicians, and two amici curiae nurses' associations submitting briefs, and having heard oral argument, this court stayed deciding the appeal on October 31, 1975, pending the Supreme Court decision in Planned Parenthood v. Danforth, 392 F.Supp. 1362 (E.D. Mo.1975). The Supreme Court having decided Danforth on July 1, 1976, --- U.S. ----, 96 S.Ct. 2831, 49 L.Ed.2d --- (1976), we proceed to decide the appeal in light of Danforth, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Written, Spousal, and Parental Consent

Preliminarily, defendants claim that the named plaintiffs, "board-certified obstetrician-gynecologists, . . . in their practice . . . perform(ing), on a regular and recurring basis, medical abortions," lack standing to challenge the written, spousal and parental consent requirements. But Ky.Rev.Stat. 311.990(13) "directly operates" on physicians failing to obtain statutorily-required consent by authorizing imprisonment "in the county jail not to exceed one (1) year or a fine not to exceed one thousand dollars ($1,000), or both." E.g., Danforth, supra, --- U.S. at ----, 96 S.Ct. at 2837-2838, 49 L.Ed.2d at ---, Doe, supra, 410 U.S. at 188-189, 93 S.Ct. at 745-746, 35 L.Ed.2d at 210; Planned Parenthood v. Fitzpatrick, 401 F.Supp. 554, 561-562 (E.D.Pa.1975) (three-judge court). See Roe v. Ferguson,515 F.2d 279, 281 (6th Cir. 1975).

The section 311.740(1) requirement for the woman's written consent for abortions ¹ including first trimester abortions is facially ² constitutional, whether or not Kentucky law requires prior written consent for any other surgical procedure. ³ Danforth, supra, --- U.S. at ----, 96 S.Ct. at 2839-2840, 49 L.Ed.2d at ---. See Fitzpatrick, supra, 401 F.Supp. at 582, 587-588.

Sections 311.740(2) and 311.740(3) require alternatively spousal and parental consent for abortions "(a)fter the first trimester." Danforth, supra, invalidated similar third party consent requirements for abortions "during the first 12 weeks." --- U.S. at ----, 96 S.Ct. at 2840-2844, 49 L.Ed.2d ---.

We hold that Ky.Rev.Stat. 311.740(2) and 311.740(3) unconstitutionally interfere with the woman's right to a second trimester abortion. Roe, supra, 410 U.S. at 163-165, 93 S.Ct. 731-733, 35 L.Ed.2d at 182-83, permits states to regulate second trimester abortions only "to preserve and protect maternal health." Danforth, --- U.S. at ----, 96 S.Ct. at 2837, 49 L.Ed.2d at ---. Thus, the state cannot constitutionally authorize spouses, parents, or guardians to "veto," for no reason or an impermissible reason, to wit, other than "protect(ing) maternal health," such as protecting an unrecognized interest in fetal life. Yet the statute attempts to confer such far-reaching "veto" powers on such third persons.

Nor could the state authorize such third persons to "veto" second trimester abortions to "protect maternal health," because the maternal health interest is sufficiently protected by the participation of the woman and physician, the husband has no overriding interest apart from the woman in maternal health, and there can be no assurance that the "veto" of the parents or guardian, purportedly to protect maternal health, is not designed to protect the unrecognizable interest in fetal life. See Doe v. Zimmerman, 405 F.Supp. 534, 537 (M.D.Pa.1975) (three-judge court); Coe v. Gerstein, 376 F.Supp. 695, 697-699 (S.D.Fla.1973) (three-judge court), aff'd sub nom., Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).

We refrain from deciding whether a more narrowly drafted requirement of spousal consent, permitting the husband-father to "veto" a post-viability abortion not necessary "for the preservation of the life or health of the mother," would pass constitutional muster in light of the recognizable post-viability interest in fetal life. ⁴ Danforth, --- U.S. at ----, 96 S.Ct. at 2837, 49 L.Ed.2d at ---. See Zimmerman, supra, 405 F.Supp. at 537; Gerstein, supra, 376 F.Supp. at 697-699, aff'd 517 F.2d at 794-797. See also Fitzpatrick, supra, 401 F.Supp. at 566; Note, Abortion: The Father's Rights, 42 U.Cin.L.Rev. 441 (1973).

Duty To Inform

The district court invalidated Ky.Rev.Stat. 311.730 which would require physicians "before the performance of (a post first-trimester) abortion (to) inform the expectant mother of the reasonably possible physical and mental consequences of the performance of the abortion or the nonperformance of the abortion." The district court reasoned that section 311.730 "clearly" violated Roe because during the second trimester "the state must confine its regulation to the protection of maternal health and apply it only to the abortion procedure." Plaintiffs' appellate brief contends that section 311.730 is invalid as an impermissible "extra layer of regulation . . . appl(ying) only to abortions and not to other indistinguishable medical procedures." Even were plaintiffs factually correct, ⁵ that in itself would not invalidate the information requirement. See Danforth, supra, --- U.S. at ----, 96 S.Ct. at 2839-2840, 49 L.Ed.2d at ---. Rather, section 311.730 insures that the "important" and "often stressful" abortion decision "be made with full knowledge of its nature and consequences;" the Supreme Court has recognized that such full knowledge is "desirable and imperative." Id. See Fitzpatrick, supra, 401 F.Supp. at 583, 587-588.

Waiting Period

Nor do we view the Ky.Rev.Stat. 436.023 24-hour waiting period requirement between the woman's consent and the abortion as being unconstitutional. The district court invalidated the waiting period requirement because "it attempts to regulate the abortion procedure during the first trimester, during which time the state has no compelling interest and thus can pass no regulation affecting this period." Danforth, supra,--- U.S. at ----, 96 S.Ct. at 2839-2840, 49 L.Ed.2d at ---, rejected similar reasoning. Given the imprecision of the trimesters and "viability," a delay of 24 hours could not result in a transition from the first into second trimester, or from the second trimester into "viability." See Rodos v. Michaelson, 396 F.Supp. 768, 771, 772 (D.R.I.), rev'd on other grounds, 527 F.2d 582 (1st Cir. 1975). Nor do plaintiffs claim that the 24-hour waiting period significantly burdens the abortion process. Moreover, section 436.023 contains an exemption for abortions where "an emergency situation presents imminent peril substantially endangering the life of the woman."

Saline Method

We sustain the district court's invalidation of the Ky.Rev.Stat. 311.770 prohibition of "saline method" abortions "(a)fter the first trimester," on the basis of Danforth, supra, --- U.S. at ----, 96 S.Ct. at 2844-2845, 49 L.Ed.2d at ---, which invalidated a virtually identical Missouri prohibition. As in Danforth, the instant record reflects that the saline method, at the enactment of the statutory prohibition, was the only available method in Kentucky, thus making its prohibition "almost tantamount" to a prohibition of...