542 F.2d 1350
Jane E. HODGSON, M.D., et al., Appellees,
v.
Warren LAWSON, Commissioner of Health of the State
Department of Health and Executive Secretary of the State
Board of Health; and Warren Spannaus, Attorney General of
the State of Minnesota, Appellants.
No. 74-1569.
United States Court of Appeals,
Eighth Circuit.
Submitted May 12, 1975.
Decided Oct. 6, 1976.
Peter W. Sipkins, St. Paul, Minn., for appellants; Warren R. Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen. and Thomas H. Jensen, Sp. Asst. Atty. Gen., St. Paul, Minn., on brief.
Roy Lucas, Washington, D.C., for appellees; Maynard E. Pirsig and Gary B. Crawford, Minneapolis, Minn., on brief.
Randall D. B. Tigue, Legal Counsel, Minn. Civil Liberties Union, Minneapolis, Minn., for amicus curiae, Minn. Civil Liberties Union.
Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.
PER CURIAM.
This appeal concerns the constitutionality of certain provisions of the Minnesota abortion law, Minn.Stat. §§ 145.411-145.416 (1974), and the regulations promulgated thereunder by the Minnesota State Board of Health. On March 21, 1974, the Minnesota abortion law, passed in response to the decisions of the Supreme Court in 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), was signed into law. Four days later, this action seeking declaratory and injunctive relief was brought in federal District Court by five physicians and a woman allegedly seeking an abortion.
All the challenged provisions and regulations were held unconstitutional by a three-judge court convened pursuant to 28 U.S.C. §§ 2281 and 2284. Hodgson v. Anderson, 378 F.Supp. 1008 (1974), appeal dismissed for want of juris. sub nom., Spannaus v. Hodgson, 420 U.S. 903, 95 S.Ct. 819, 42 L.Ed.2d 832 (1975). The appellants then filed a notice of appeal with the Supreme Court and a precautionary appeal with this Court. The Supreme Court held it was without jurisdiction to hear the direct appeal so proceedings resumed in this Court. Because of the similarity of many of the issues raised here with those raised in Planned Parenthood of Central Missouri v. Danforth, we have awaited the decision of the Supreme Court in that case. --- U.S. ----, 96 S.Ct. 2831, 49 L.Ed.2d --- (1976). With that decision now before us, we affirm in part and reverse in part.
In Roe, the Supreme Court concluded that the fundamental right of privacy, whether rooted in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action or the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. Roe v. Wade, supra, 410 U.S. at 153, 93 S.Ct. 705. The woman's right is not absolute; rather at some point in pregnancy, a state's interest in safeguarding health, maintaining medical standards and protecting potential life "become sufficiently compelling to sustain regulation of the factors that govern the abortion decision." Id. at 154, 93 S.Ct. at 727. In Planned Parenthood of Central Missouri v. Danforth,supra, --- U.S. at ---- - ----, 96 S.Ct. at 2837, the Court restated the conclusion of Roe :
(T)he permissibility of state regulation was to be viewed in three stages: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician," without interference from the State. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. (Citations and footnote omitted.)
In light of the mandate of the Supreme Court, we will now consider the challenged provisions of the abortion statutes and regulations.
A. The definition of viability. After reviewing the medical, legal and philosophical historical attitudes towards abortions, the Court in Roe stated:
Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.
Roe v. Wade, supra, 410 U.S. at 160, 93 S.Ct. at 730.
However, a statutory definition need not place viability at a specific point in the gestation period. A definition of viability in terms of potential ability to survive outside the womb, albeit with artificial aid, was found to be sufficient in Planned Parenthood of Central Missouri v. Danforth, supra, --- U.S. at ----, 96 S.Ct. 2831.
The Minnesota abortion law, however, goes a step further and incorporates the concept of "potential viability" into the definition of viability:
'Viable' means able to live outside the womb even though artificial aid may be required. During the second half of its gestation period a fetus shall be considered potentially 'viable'.
Minn.Stat. § 145.411, subd. 2.
The District Court reasoned that including the term "potentially viable" in the definition of "viable" had the effect of establishing a presumption that viability occurred at the end of the twentieth week. It held that this was inconsistent with the Supreme Court decisions in Roe v. Wade, supra, and Doe v. Bolton, supra, which place the earliest point of viability at the twenty-fourth week. In support of its position, it cited an absence of evidence to support the state's determination that viability occurs at twenty weeks, and the fact that the decision as to whether or not a particular fetus is viable must be left to the medical judgment of the physician because the point of viability will vary from case to case. Hodgson v. Anderson, supra at 1016. This holding was cited with approval by the Supreme Court in Planned Parenthood of Central Missouri v. Danforth, supra, --- U.S. at ---- n.5, 96 S.Ct. 2831, and cannot be disturbed by us. Had "viable" been defined simply as "ability to live outside the womb even though artificial aid may be required" and had the word "viable" instead of the term "potentially viable" been used in the operative sections of the Minnesota abortion law, then the offending sections of the statute, Minn.Stat. §§ 145.411, subd. 2, 145.412, subd. 3(2) and (3), and 145.415, could have been sustained under Planned Parenthood of Central Missouri v. Danforth, supra, --- U.S. at ----, 96 S.Ct. 2831.
B. Regulation of abortion procedure. Several of the challenged provisions of the Minnesota abortion law were found by the District Court to incorporate by reference the impermissible definition of viability and, therefore, unconstitutionally restrict the availability of abortions during the second trimester. Under Roe, the state may only regulate the abortion procedure to the extent it preserves and protects maternal health during the second trimester of pregnancy. Roe v. Wade, supra, 410 U.S. at 163, 93 S.Ct. 705.
Minn.Stat. § 145.412, subd. 3, provides that:
It shall be unlawful to perform an abortion when the fetus is potentially viable unless:
(1) the abortion is performed in a hospital;
(2) the attending physician certifies in writing that in his best medical judgment the abortion is necessary to preserve the life or health of the pregnant woman; and
(3) to the extent consistent with sound medical practice the abortion is performed under circumstances which will reasonably assure the live birth and survival of the fetus.
The requirement of § 145.412, subd. 3(1), that an abortion be performed in a hospital, which is not challenged here, is an example of permissible state regulation subsequent to the first trimester. Id. However, § 145.412, subd. 3(2), proscribing the abortion of a potentially viable fetus unless necessary to preserve the life or health of the mother, and § 145.412, subd. 3(3), requiring, in the abortion of a potentially viable fetus, the use of methods which will reasonably assure the fetus's survival, impose restrictions which are not necessarily related to maternal health. As the District Court held, such restrictions are impermissible under Roe during the second trimester of pregnancy and, thus, Minn.Stat. § 145.412, subd. 3(2) & 3(3), is unconstitutional.
The phrase "potentially viable," impermissibly defined in terms of the twentieth week of gestation, also plays an integral role in Minn.Stat. § 145.415, which provides:
Subd. 1. A potentially viable fetus which is live born following an attempted abortion shall be fully recognized as a human person under the law.
Subd. 2. If an abortion of a potentially viable fetus results in a live birth, the responsible medical personnel shall take all reasonable measures, in keeping with good medical practice, to preserve the life and health of the live born person.
Subd. 3. (1) Unless the abortion is performed to save the life of the woman or child, or (2) unless one or both of the parents of the unborn child agrees within 30 days of the birth to accept the parental rights and responsibilities for the child if it survives the abortion, whenever an abortion of a potentially viable fetus results in a live birth, the child shall be an abandoned ward of the state and the parents shall have no parental rights or obligations * * *.
By incorporating the term "potentially viable" in subdivisions 1 and 2, the statute has the practical effect of requiring a physician performing an abortion after the twentieth week to exercise the prescribed standard of care and use only those procedures and techniques calculated to preserve the life and health of the fetus.
Under Roe, the state may protect fetal life subsequent to viability. Id. It may, consistent with Danforth, require a professional preoperative determination of viability in each case upon which the physician must proceed accordingly. Planned Parenthood of Central Missouri v. Danforth,supra, --- U.S. at ---- - ----, 96 S.Ct. 2831. The state cannot, however, enact legislation which has the effect of establishing a presumption of viability prior to the twenty-fourth week as the point of viability before that time is to be "purposefully left flexible for professional determination." Id. at ----, 96 S.Ct. at 2837. We, thus, have no alternative but to find Minn.Stat. § 145.415, subd. 1 & 2, unconstitutional in light of Roe and Danforth. Because of its use of "potentially viable," we also hold that Minn.Stat. § 145.415, subd. 3, is unconstitutional.
C. The woman's consent. The Minnesota abortion law contains two consent requirements: § 145.412, subd. 1(4), provides it will be unlawful to perform an abortion without first obtaining the consent of the woman after a full explanation of the abortion procedure and its effect; and § 145.412, subd. 2, provides that:
It shall be unlawful to perform an abortion upon a woman who is unconscious except if the woman has been rendered unconscious for the purpose of having an abortion or if the abortion is necessary to save (her) life * * *.
The District Court found the consent provisions to be
objectionable in that they single out the abortion procedure and are simply unnecessary to protect either the woman's health or the health of the unborn.
Hodgson v. Anderson, supra at 1017.
In Danforth, the Court upheld an informed consent requirement similar to Minn.Stat. § 145.412, subd. 1(4), and its attendant criminal penalty, saying:
Despite the fact that apparently no other Missouri statute * * * requires a patient's prior written consent to a surgical procedure, the imposition * * * of such a requirement for termination of pregnancy even during the first stage, in our view, is not in itself an unconstitutional requirement. The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and its consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.
Planned Parenthood of Central Missouri v. Danforth, supra --- U.S. at ----, 96 S.Ct. at 2840 (footnote omitted).
We believe that the particularly stressful nature of the decision to abort distinguishes it sufficiently from other medical decisions to justify additional state regulation insuring that the woman's consent has been freely and intelligently given. Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974), is not to the contrary. There, in striking down a city ordinance regulating the operation of abortion clinics, we held only that where no need for additional regulation is shown, the abortion procedure may not be regulated more restrictively than other medical operations of similar danger and complexity. Id. at 1351. Accordingly, we reverse the District Court and uphold the constitutionality of § 145.412, subd. 1(4).
We are unable, however, to extend the Danforth rationale to uphold Minn.Stat. § 145.412, subd. 2. This provision would subject a physician to felony charges if he aborted a woman, even during the first trimester, who was anesthetized for a different procedure but who had instructed the physician to perform an abortion should a specified contingency arise. As stated before, the abortion decision and its implementation is to be left to the woman and her physician during the first trimester. Roe v. Wade, supra, 410 U.S. at 163-164, 93 S.Ct. 705. Thus, we affirm the District Court and find Minn.Stat. § 145.412, subd. 2, unconstitutional as it impermissibly prohibits contingent consent during the first trimester.
D. Institutional conscience clause. Minn.Stat. § 145.414 provides:
No person and no hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion for any reason.
The appellees contend that the words "and no hospital or institution" cannot, as applied to public facilities, constitutionally remain in this section. The District Court agreed, holding this provision invalid insofar as it related to public hospitals or institutions. Hodgson v. Anderson, supra at 1018. In Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.), appeal dismissed, 419 U.S. 891, 95 S.Ct. 169, 42 L.Ed.2d 136 (1974), this Court clearly held that a public hospital must make its existing facilities available for the performance of abortions. We adhere to that decision and affirm the judgment of the District Court.
E. Recordkeeping. Minn.Stat. § 145.413, subd. 1, requires the reporting, in accordance with regulations to be promulgated by the state board of health, of all abortions performed after the fetus is potentially viable. The appellees object to the use of the term "potentially viable," citing its derivation from Minn.Stat. § 145.411, subd. 2, where viability is determined to occur at the twentieth week of gestation. The District Court held that the use of the term "potentially viable" in Minn.Stat. § 145.413, subd. 1, rendered that subdivision unconstitutional, in that it authorized previability abortion regulation unrelated to maternal health. Hodgson v. Anderson, supra at 1016.
We reverse on the basis of the recent Supreme Court decision in Planned Parenthood of Missouri v. Danforth, supra. The Court stated:
(r)ecordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment.
Id., --- U.S. at ---- - ----, 96 S.Ct. at 2846 (footnote omitted).
Recordkeeping and reporting requirements that are so directed to the preservation of maternal health and which respect a patient's confidence and privacy, as these do here, are permissible regardless of the stage of pregnancy. Id. at ----, 96 S.Ct. 2831.
F. Regulations. The appellees challenge Minn.Stat. §§ 145.411, subd. 4, 145.412, subd. 1(3), and 145.416 which read together subject the abortion decision, even during the first trimester, to regulations promulgated by the state board of health. The District Court found these provisions to be unconstitutional to the extent they are applied to the first trimester abortions. Hodgson v. Anderson, supra at 1017. We disagree.
In Connecticut v. Menillo, 423 U.S. 9, 10-11, 96 S.Ct. 170, 171, 46 L.Ed.2d 152 (1975), the Court stated:
Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman.
Thus, the state has the power to insure that the first trimester abortions, like other medical procedures, are performed under conditions providing for the maximum safety of the patient. Statutory provisions which merely authorize the adoption of regulations, albeit during the first trimester, are not unconstitutional. See Planned Parenthood Association v. Fitzpatrick, 401 F.Supp. 554, 576 (E.D.Pa.1975). Accordingly, we reverse the finding of the District Court as to the unconstitutionality of the following enabling provisions: Minn.Stat. §§ 145.411, subd. 4; 145.412, subd. 1(3); and 145.416.
Any regulations promulgated under such enabling statutes must, of course, comply with the requirements of the Supreme Court. A state can impose the same regulations on a clinic, specifically built to perform abortions during the first trimester, that are imposed on other clinics that perform surgical procedures requiring approximately the same degree of skill and care as the performance of first trimester abortions. As long as the regulations applying to abortion clinics are the same as those applied to other clinics performing similar surgical procedures, it would not be impermissible to make them specifically applicable to abortion clinics. Where the state regulates abortions beyond its regulation of similar surgical procedures, that difference in treatment must be shown to be necessitated by the particular characteristics of the abortion procedure. See Word v. Poelker, supra at 1351-1352. Here, the District Court found that the "Regulations for the Termination of Pregnancy," promulgated by the state board of health, are an "extra layer of protection placed upon abortions" which serve no purpose "beyond the already existing professional standards, state health and building statutes." Hodgson v. Anderson, supra at 1018.
We think, however, because of the decision of the Supreme Court in Danforth and because the state has subsequently promulgated regulations governing "Freestanding Outpatient Surgical Centers," that the parties ought to be given the opportunity to present evidence with respect to the extent to which the abortion regulations are consistent with those governing the performance of surgical procedures requiring the same degree of skill and care. Accordingly, we remand the question of the constitutionality of the "Regulations for the Termination of Pregnancy" to the District Court.
In summary, we hereby:
Affirm the finding of the District Court that Minn.Stat. § 145.411, subd. 2, is unconstitutional;
Affirm the finding of the District Court that Minn.Stat. § 145.412, subd. 3(2) & (3), is unconstitutional;
Affirm the finding of the District Court that Minn.Stat. § 145.415 is unconstitutional;Reverse the finding of the District Court that Minn.Stat. § 145.412, subd. 1(4), is unconstitutional;
Affirm the finding of the District Court that Minn.Stat. § 145.412, subd. 2, is unconstitutional;
Affirm the finding of the District Court that Minn.Stat. § 145.414 is unconstitutional insofar as it applies to public hospitals or institutions properly defined;
Reverse the finding of the District Court that Minn.Stat. § 145.413 is unconstitutional;
Reverse the finding of the District Court that Minn.Stat. §§ 145.411, subd. 4; 145.412, subd. 1(3); and 145.416 are unconstitutional; and
Remand the question of the constitutionality of the "Regulations for the Termination of Pregnancy" to the District Court.
HEANEY, Circuit Judge (dissenting).
The Supreme Court's decisions in 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), were premised on the concept that a decision to abort would be made in the traditional doctor-patient setting. There was not to be abortion on demand; rather, the abortion decision was to be made only after the doctor and the patient had carefully reviewed the physical, emotional, psychological and familial factors relevant to this extremely important and stressful decision.
The realities are altogether different. It is estimated that more than half of the nearly one million abortions performed in 1975 took place in non-hospital clinics, under circumstances where the doctor performing the operation often sees the patient once and then only for a brief period. The result is that we do have abortion on demand, and the decisions of the doctor and patient to abort are not being made with the same degree of care and thoughtfulness that accompanies other surgical procedures.
In light of these circumstances, I cannot concur in the decision of this Court to declare unconstitutional § 145.415, subds. 1 and 2, nor can I concur in the decision insofar as it denies the state the power to enact and enforce reasonable rules and regulations with respect to first trimester abortions.
In my judgment, we can, consistent with the decisions of the Supreme Court, and in keeping with our duty to interpret legislation, if possible, in a manner which favors its survival, declare unconstitutional only that portion of Minn.Stat. § 145.411, subd. 2, which states:During the second half of its gestation period a fetus shall be considered potentially 'viable'.
By treating the statute in this manner, the first provision in the same subdivision, defining viability as the ability "to live outside the womb even though artificial aid may be required," will remain in effect. Such a definition of viability is clearly permissible. A statutory definition need not place viability, which is essentially a medical concept, at a specific point in the gestation period, Planned Parenthood of Central Missouri v. Danforth, supra, --- U.S. at ----, 96 S.Ct. 2831; a definition in terms of potential ability to survive outside the womb, albeit with artificial aid, is sufficient. Id. at ---- - ----, 96 S.Ct. 2831.
We can also sustain the validity of § 145.415, subds. 1 and 2. In my judgment, these subdivisions only require a physician to exercise reasonable care to sustain the life of a fetus that is liveborn. This leaves the decision, as to the measures to be taken, to the judgment of the attending physician and that is where the Supreme Court has indicated the decision belongs. I am cognizant of the fact that sustaining the statute might result in a few physicians using procedures to effect an abortion that would insure a stillborn fetus. I cannot believe, however, that the number would be significant. On the other hand, the statute would serve to alert physicians to a special responsibility in those cases where there is doubt as to the length of the pregnancy and the viability of the fetus.
I also continue to adhere to my dissent in Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir.) (Gibson & Heaney, JJ., dissenting from denial of petition for rehearing en banc), 419 U.S. 891 (1974). Therefore, I dissent from the affirmance of the District Court's finding that Minn.Stat. § 145.414 is unconstitutional as it applies to public hospitals and institutions. In my view, public hospitals and institutions should not be compelled to perform abortions until it has been determined that the right of a pregnant woman to have an abortion cannot otherwise be reasonably protected.
I concur in the decision of the majority to remand the question of the constitutionality of the regulations to the District Court. I would go a step further, however, and hold that the need for counseling services is so immediate and so great, and the constitutionality so apparent, that the following regulation with respect to counseling should be sustained without further action by the District Court:
MHD 275: Program Requirements
(a) Admission Procedures
(1) Counseling Services
Counseling shall be offered and made available on the premises. Social services and psychological consultation shall be offered and made available either on the premises or through referral.
Minn.Reg. MHD-275.
The regulation follows the "Guidelines for the Performance of Abortions" adopted by the Minnesota State Medical Association in May, 1973. The guidelines, which were received as an exhibit at the District Court hearing, provided:
COUNSELING SERVICES
Physicians should make counseling services an integral component of their abortion programs. Counseling services should be readily available to all women seeking abortion services. Each abortion service shall provide abortion counseling if desired by the woman, as well as a referral to clergy, social services or other appropriate mental health services when needed. Three basic principles of abortion counseling are that:
1. Specialized professional consultation, such as psychiatric, social service, psychological, religious, etc., should be available, not mandatory.
2. Be supportive and non-judgmental regardless of the circumstances of the pregnancy.
3. That it be an educational experience.
The aims of abortion counseling are:
1. To aid the woman in making a decision about her pregnancy.
2. To help her implement the decision.
3. To assist her in controlling her future fertility.
The manner in which counseling is carried out plays a major role in determining whether the woman is protected against exploitation and is treated in a safe, humane, and dignified manner. The following standards are recommended to accomplish this:
1. Non-judgmental and supportive explanation of all alternatives available including social, medical, and financial assistance where available.
2. Counseling should serve, when appropriate, to simplify and expedite the provision of abortion services. It should not impose unnecessary medical risk by delaying the obtaining of these services.
3. Specialized professional consultation, such as psychiatric, social service, psychological, religious, etc., should be available, but not mandatory.
4. Preventive measures including contraception and/or sterilization, with specific plans for followup should be discussed with each woman.
Factors to consider in counseling:
1. Pregnancy termination may be part of the problem, not just the solution. The fact that a woman has become pregnant may be a symptom of underlying psychological conflicts. Opportunities should be available for further counseling.
2. Physicians are encouraged to acquire counseling techniques. (Emphasis included.)