Hodgson v. Flakne

463 F. Supp. 67, 1978 U.S. Dist. LEXIS 14094

• Court: District Court, D. Minnesota
• Decided: November 30, 1978
• Docket: Civ. 4-76-293
• Status: Published

Opinions

MEMORANDUM and ORDER

Before HEANEY, Circuit Judge, DEV-ITT, Chief District Judge, and LORD, District Judge.

DEVITT, Chief District Judge.

This declaratory judgment action is brought by two medical doctors, as class representatives, against the Minnesota Attorney General and two Minnesota County Attorneys to determine the constitutionality of a 1976 Minnesota law regulating abortions. This Memorandum and Order is in response to cross motions for summary judgment. The statute, Minn.Stat. § 145.-423(2), reads:

When an abortion is performed after the twentieth week of pregnancy, a physician, other than the physician performing the abortion, shall be immediately accessible to take all reasonable measures consistent with good medical practice, including the compilation of appropriate medical records, to preserve the life and health of any live birth that is the result of the abortion.

Because there are fact issues involved that require an evidentiary hearing, we find the summary judgment procedure inappropriate and deny the summary judgment motions. Moreover, the court abstains from proceeding further and leaves the parties to resort to the Minnesota state courts, since the state statute at issue has not been previously construed by the state courts and is subject to a construction that might well avoid the necessity for federal constitutional adjudication. See Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976).

The question whether summary judgment is proper depends in large measure upon the continuing vitality of the standards set forth in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In that landmark decision the Supreme Court held that abortions cannot be regulated prior to when the fetus becomes viable, if the purpose of the regulation is to protect the potential life of the fetus. The statute at issue in this case clearly regulates prior to viability; it requires a second doctor to be present for all abortions after the twentieth week, even though viability almost never occurs before the twenty-fourth week. In addition, the only apparent purpose of the statute is to protect the potential life of the fetus. Thus, under Roe v. Wade the statute would be unconstitutional on its face and summary judgment for the plaintiffs would be appropriate.

The standards set forth in Roe v. Wade, however, appear to have been altered by the Supreme Court in the recent case of Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). In Maher the Court ruled that only “unduly burdensome” or “substantial” regulations of abortions prior to viability are constitutionally infirm.¹ The fact that the statute in the present case regulates prior to viability therefore is not dispositive; the burdensomeness of the regulation also must be determined. This determination, in the court’s opinion, requires an evidentiary hearing. For example, the logic of the twenty week cutoff date must be explored. Defendants suggest it is logical because a margin of error as to the date of conception of four to six weeks is possible, meaning that a fetus believed to be twenty weeks old might in fact be twenty-four to twenty-six weeks old, bringing it within the age of potential viability. The factual soundness of this argument must be substantiated. Also, evidence is needed as to the benefit of having a second doctor present — can the attending physician and his or her medical assistants ádequately protect the health of any viable birth resulting from the abortion? Other necessary evidence relates to the burden placed upon the woman by the statute. What is the additional expense to the woman? Does the requirement of a second doctor, with the implicit suggestion that a live birth might result, increase the trauma of the abortion? Does the requirement make abortions less accessible for women in rural areas? Will the presence of a second doctor interfere with the abortion operation? To what extent does the statutory requirement conflict with existing medical practice? These questions and others must be answered before the burdensomeness of the statute can be determined.

The burdensomeness of the statute also is affected by the construction given it. Two major problems of statutory construction influence the determination of whether the statute creates unduly burdensome restrictions upon the woman’s right to abort prior to viability. The first concerns the meaning of the term “live birth.” The statute requires the second doctor to attempt to save the life of any “live birth.” Plaintiffs claim the term is not synonymous with “viability,” since viability implies the ability to survive. Defendants, on the other hand, argue that the two terms are synonymous. The interpretation given the term “live birth” is important because if it is interpreted as not being synonymous with viability, then the statute imposes an additional burden prior to viability; it requires the second doctor to attempt to save the life of any live fetus, even if not viable. Therefore, the burdensomeness of the statute pri- or to viability may be significantly influenced by the construction given the term “live birth.”

The second problem of statutory construction concerns the applicability of sanctions. Section 145.423(1) contains no explicit enforcement mechanism and the parties are in dispute as to which, if any, of the general statutory enforcement procedures apply. Plaintiffs, for example, claim that violation of the statute by a doctor results in criminal liability under Minn.Stat. § 645.-241, while defendants claim otherwise. Resolution of the enforcement issue is significant because the statute is more burdensome if it subjects the doctor to potential criminal liability. See Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 2384, 53 L.Ed.2d 484 (1977).

Because § 145.423 is subject to varying interpretations which could affect its burdensomeness, the question arises whether this court should abstain and allow the state courts to construe the statute. The resolution of this question, we think, is controlled by the Supreme Court decision of Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 35 L.Ed.2d 147 (1976). Bellotti, like the present case, involved a state law that regulated abortions. The parties were in dispute as to the meaning of the law, and the interpretation given the statute affected its burdensomeness on the woman’s right to abort. As a consequence, the Court held that abstention was required. The Court set forth the following standard for determining the propriety of abstaining: “abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary ‘which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.’ ” Id. at 146-47, 96 S.Ct. at 2866. (quoting Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959)). Applying this standard, we are convinced that abstention is proper. The two issues of statutory interpretation noted above, depending upon their resolution, obviously “materially change the nature of the problem.” Construed one way, the statute might well be unduly burdensome and therefore unconstitutional, while construed another way it might be valid. Abstention therefore is proper and we defer to the state courts to construe the pertinent state statutes and to hold any necessary evidentiary hearings concerning the burdensomeness of the statute.

The cross-motions for summary judgment are DENIED. The court stays its hand and leaves the parties to resort to the Minnesota state court system for interpretation of this state statute.

1 . Maher is factually dissimilar to the present case since it involved welfare funding of abortions. The Court ruled that the state regulation forbidding such funding was not unduly burdensome since it imposed only an indirect restraint upon the abortion decision. 97 S.Ct. at 2383. One therefore could argue that Maher only applies to indirect restrictions and that direct restrictions prior to viability to protect the fetus are always unconstitutional under Roe v. Wade. Because the present case involves a “direct” regulation of abortions, Maher thus could be read as requiring a finding that the statute is unconstitutional as a matter of law. A fair reading of Maher, however, leaves little doubt that the Court did not intend to imply that all direct restrictions are per se unconstitutional. For example, the Court emphasized that the statute in Roe v. Wade was invalid, not because it imposed a direct restriction upon abortions, but because the restriction was so “substantial” and “severe” as to be unduly burdensome. Id. at 2381-82. Thus, it appears that whether the regulation is direct or indirect is but one factor relevant to the determination of the statute’s burdensomeness. This conclusion is reinforced by Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976). In that case the state abortion statute at issue imposed a direct restriction but the Court refused to hold it unduly burdensome as a matter of law. Id. at 147 — 48, 96 S.Ct. 2857.