Women's Medical Center of Providence, Inc. v. Roberts

• Decision Date: 15 January 1982
• Docket Number: 80-334.,Civ. A. No. 80-292
• Citation: 530 F. Supp. 1136
• Parties: WOMEN'S MEDICAL CENTER OF PROVIDENCE, INC. v. Dennis J. ROBERTS, II, et al. PLANNED PARENTHOOD OF RHODE ISLAND v. Dennis J. ROBERTS II, et al.
• Court: U.S. District Court — District of Rhode Island

530 F. Supp. 1136

WOMEN'S MEDICAL CENTER OF PROVIDENCE, INC. v. Dennis J. ROBERTS, II, et al.

PLANNED PARENTHOOD OF RHODE ISLAND v. Dennis J. ROBERTS II, et al.

Civ. A. Nos. 80-292, 80-334.

United States District Court, D. Rhode Island.

January 15, 1982.

COPYRIGHT MATERIAL OMITTED

Lynette Labinger, of Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Deming E. Sherman, of Edwards & Angell, Providence, R.I., for plaintiff.

Joseph R. Palumbo, Jr., of Moore, Virgadamo & Lynch, Ltd., Newport, R.I., Mary Ellen McCabe, Chief Counsel, R.I. Department of Health, Providence, R.I., for defendants.

OPINION

PETTINE, Chief Judge.

This is a consolidated action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 challenging the constitutional validity of Rhode Island General Laws Title 23, Chapter 4.7 entitled "Informed Consent for Abortion."¹ Plaintiffs allege violations of rights secured by the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution. This Court's jurisdiction stems from 28 U.S.C. §§ 1331(a), 1343(3), 2201, and 2203.

The plaintiffs are Women's Medical Center of Providence, Inc., (WMC), a medical clinic which provides gynecological services, including abortions during the first trimester, Planned Parenthood of Rhode Island (PPRI), a non-profit organization which also provides gynecological services, including abortions during the first trimester, and a class of physicians who perform abortions at clinics, in their offices, and in hospitals in Rhode Island.

Standing

In a preliminary ruling on April 21, 1981, I held that all of the plaintiffs have standing to challenge the Act in question. Women's Medical Center of Providence, Inc. v. Roberts, 512 F.Supp. 316, 320-21 (D.R.I. 1981). I have also ruled that all plaintiffs may assert not only their own rights but also the constitutional rights of their patients — women who seek legal abortions — in challenging the Rhode Island enactment. Id. at 321-25. The hearing on the merits has not caused me to change my previous opinion and I see no need to reiterate what I said when I first denied defendants' motions to dismiss for lack of standing. Accordingly, I incorporate the reasoning of the prior opinion into this one and hold that plaintiffs have standing to challenge the Act.

The Rhode Island enactment in question governs the manner and time frame within which informed consent for an abortion must be given in Rhode Island.² The various sections of the Act may be summarized as follows. The statute requires that a physician convey certain information to the patient. This information includes verification that the woman is pregnant and that a copy of her pregnancy test is available to her; a description of the nature of an abortion, including the probable gestational age of the fetus; an explanation of the procedure involved and of "all medical risks" associated with that procedure; an explanation of "all medical risks" to both the mother and the fetus associated with carrying the fetus to term; and a statement that information concerning abortions printed by the State Department of Health is available to the patient.

I. Factual Background

Women's Medical Center, Inc. provides complete reproductive health care for women. As its primary activity, the clinic provides first trimester abortions using the dilatation and suction-curettage method.³ The cost for such abortions is at most $175.00 and may be less, depending on the circumstances of the patient. The clinic employs a rotating staff of four part-time physicians. The clinic also utilizes a full-time support staff including an administrator, a counsellor, nurses, medical assistants and technicians. About 50 abortions are performed every week on Tuesdays, Fridays, and Saturdays. Based on their rotating schedules, each physician spends about five days per month, one to two days per week, at the clinic. The remainder of the physicians' time is spent in private practice or fulfilling other professional commitments.

In general, a woman desiring a first trimester abortion first contacts Women's Medical Center by phone. At this point, the receptionist questions the caller to determine whether the woman has had time to think about her decision and to find out when the woman's last normal menstrual period (LMP) began.⁴ Having elicited this information, the receptionist gives the caller an overall perspective on the functioning of the clinic. In short, the receptionist informs the patient of what to expect when she arrives at the clinic and of the procedure followed by the clinic. All other questions are deferred to the time of an appointment which is made if the caller states that she still desires to go through with her decision. The appointment generally is not scheduled for the same day on which the call was received but is scheduled as soon as possible after the call is received. If seven and one-half weeks have not elapsed since the patient's LMP, the appointment is made for the first available abortion day after seven and one-half weeks have passed.

When a woman arrives at the clinic on the appointed day, she first fills out a portion of a medical chart, providing various personal information and a medical history. Upon her completion of this chart, the patient's vital signs are taken and her chart is reviewed for completeness. At this point the clinic also conducts a lab test to confirm the patient's pregnancy. This lab test includes blood typing and venereal disease tests.

Following the lab tests and confirmation of pregnancy, the patient participates in a group counselling session with four or five other women, which is led by the clinic's counsellor. The counsellor goes through the entire abortion process from the time the patient enters the clinic to the time of their follow-up visit about two weeks after completion of the abortion procedure. The counsellor also explains exactly what the doctor will do and how the dilatation and curettage (D&C) method of pregnancy termination works. Included in the discussion is an examination of the risks associated with the surgical procedure. The patients are free to ask questions about anything or share their fears and concerns with the other women in the group. If a patient asks a question that the counsellor cannot answer, one of the doctors is consulted, and an answer is always given before an abortion is performed. The group session lasts from forty-five minutes to one hour.

Once the group counselling session is completed, each woman meets individually with the clinic counsellor or administrator during which the woman may raise any concerns that she did not feel comfortable raising in a group setting. If the woman expresses a desire to go through with the procedure, a consent form is discussed and signed in the presence of either the counsellor or the administrator. If the patient expresses ambivalence or wants more time to consider her decision, she is free to depart at any time. In fact, the clinic staff will not allow a woman to proceed until she has satisfied them that she knows exactly what she is doing and has consented fully. One physician testified that he has refused to perform abortions even after a woman has reached the operating table because he has perceived indecision.

When the consent form has been signed, the patient proceeds to the procedure room where, usually for the first time, she will meet the physician who will perform the abortion. In general, the physician conducts a pelvic examination, describes what he or she will be doing, and asks the woman if she has any questions or concerns regarding the abortion. If so, the physician will discuss them in whatever detail he or she deems necessary. The actual abortion procedure takes roughly five to seven minutes to complete. When the physician is finished, the patient is accompanied to the recovery room where she stays for about another forty-five minutes. During this time, she is instructed about post-procedure care and birth control. Finally, the patient schedules a two-week check-up before she leaves the clinic.

The Planned Parenthood process is similar to that used by Women's Medical Center. Its one big difference is that it requires two visits to the clinic; a pre-abortion clinic visit and the abortion visit. For the purposes of this opinion there is no need to detail them. Suffice it to say that they include examination, counselling by non-doctors, explanation by one not necessarily a doctor of the procedures, possible complications, financial arrangements, and affirmation of consent to have the abortion, and follow-up examination and counselling. There is no contest in this case as to the adequacy of the methodology used by the clinics or the competency of their doctors.

A woman might also choose to have an abortion performed by a doctor in private practice. Such doctors follow a more or less typical procedure. A woman usually phones her doctor and schedules an appointment. The woman then is instructed to appear at the office on a given date with a urine specimen. Upon arrival, she completes the necessary paper work, if she has not done so before, and is then interviewed by an administrator/nurse. During this interview, the nurse goes over the consent form and discusses the risks of the abortion procedure. The woman may ask questions and express concerns during this session. Following the interview, the administrator/nurse witnesses the patient sign the consent form. The patient then meets the physician, who performs a complete physical examination. After this, the doctor follows up with a meeting in his office during which he discusses any questions the patient has and recommends birth control measures for the future. The doctor then typically schedules an appointment for the abortion. Because the abortion must be performed in a hospital, however, the patient may have to wait seven to ten days before the pregnancy can be terminated....