Margaret S. v. Edwards

794 F.2d 994, 1986 U.S. App. LEXIS 27365

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 1986
• Docket: Nos. 81-3750, 84-3520
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We are asked to decide the constitutionality of two statutory provisions through which Louisiana has sought to regulate the practice of abortion. One provision requires that the attending physician inform his patient, within twenty-four hours after she undergoes an abortion, that she may exercise one of several options for the disposition of the fetal remains. The other forbids “experimentation” on the fetal remains of an abortion. We are persuaded that the first provision must be declared unconstitutional under City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 2502, 76 L.Ed.2d 687 (1983), and that the second is unconstitutionally vague.

I

It is no secret that the Supreme Court’s abortion jurisprudence has been subjected to exceptionally severe and sustained criticism. Quite apart from the highly visible political controversies revolving around the morality of abortion, the major judicial decisions in this area have been vigorously attacked — from within the Court¹ as well as by a broad range of distinguished constitutional scholars² — for the manner in which they interpret the Constitution. Because our duty is to apply the law as it has been stated by the Supreme Court and because the wisdom and coherence of the Court’s doctrines have already been the subject of such thorough debate, we see no reason to offer our own evaluation of the Court’s work. And because we think that this case is easily decided under current law, we have no occasion to address the difficulties that are often encountered when the answer to a close question has to be drawn from a problematic jurisprudence.³

II

This appeal is the latest episode in a long effort by Louisiana to exercise its police power over a practice to which the courts have given considerable protection. Indeed, the state seeks “to regulate abortion to the extent permitted by the decisions of the United States Supreme Court.” La. Rev.Stat.Ann. § 40:1299.35.0 (West Supp.1986).⁴ Although one would not think that there is anything inherently suspect about a state’s undertaking to regulate in the abortion area,⁵ Louisiana has repeatedly encountered constitutional objections to portions of its regulatory schemes. In 1978, a regulatory statute was enacted, but several of its provisions were struck down by the district court. Margaret S. v. Edwards, 488 F.Supp. 181 (E.D.La.1980). The Louisiana legislature promptly passed another statute, La.Rev.Stat.Ann. §§ 40:1299.35.0-40:1299.35.18 (West Supp.1986), and the district court just as promptly enjoined the enforcement of certain of its provisions. After granting motions for partial summary judgment and holding a bench trial on most of the remaining provisions in 1981, the district court declared most of the statute’s major provisions unconstitutional in 1984. Margaret S. v. Treen, 597 F.Supp. 636 (E.D.La.1984). Because of United States Supreme Court decisions handed down between the time of trial and the 1984 decision, the state has elected to defend only the two statutory provisions now before us.

This case has been prosecuted by certified classes of women and physicians. The state has not urged any serious standing issues, perhaps because the Supreme Court has visibly relaxed its traditional standing principles in deciding abortion cases. Compare Roe v. Wade, 410 U.S. 113, 123-29, 93 S.Ct. 705, 711-15, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 187-89, 93 5. Ct. 739, 745-46, 35 L.Ed.2d 201 (1973), with Roe v. Wade, 410 U.S. at 171-72, 93 S.Ct. at 736 (Rehnquist, J., dissenting), and Doe v. Bolton, 410 U.S. at 222-23, 93 S.Ct. at 763 (White, J., dissenting). Because we see no reason to suppose that the Supreme Court would find a standing problem with these plaintiff classes, we turn immediately to the merits of the case.

Ill

La.Rev.Stat.Ann. § 40:1299.35.14, together with its implementing regulations, requires the attending physician, within twenty-four hours after performing an abortion, to inform' the woman that she can choose to have the fetus cremated, buried, or disposed of as waste tissue.⁶ The state contends that because this information is to be provided to the woman only after the abortion, any burden on her constitutional rights is de minimis.

The district court decided that “[t]he woman’s privacy right encompasses the entire process surrounding the abortion,” 597 F.Supp. at 671; that the law in question “suggests to the woman that [the state] equates abortion with the taking of a human life ... [and] thus penalizes those women who do exercise their constitutional right in choosing abortion,” id. at 670 (citations omitted); and that the law “intrudes into the doctor-patient relationship ... [and

thus] unreasonably places ‘obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision,’ ” id. at 671 (quoting City of Akron, 103 S.Ct. at 2501 (quoting Whalen v. Roe, 429 U.S. 589, 604 n. 33, 97 S.Ct. 869, 879 n. 33, 51 L.Ed.2d 64 (1977))).

Because there are clearer and narrower grounds on which this statutory provision must be declared unconstitutional, we need not approve or disapprove the rationales relied on by the district court. Instead, we note that the City of Akron Court invalidated a law requiring that physicians personally disclose certain important information to women before performing an abortion: the Court held that “it is unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent.” 103 S.Ct. at 2503.⁷ Because there is no question about the state’s strong interest in ensuring that physicians obtain the patient’s informed consent before performing abortions,⁸ it follows a for-tiori that Louisiana’s statute — which insists that physicians personally disclose the less important information about disposition of fetal remains — is unconstitutional. In so holding, we do not decide whether a statute similar to Louisiana’s, which allowed someone other than the attending physician to inform the patient about her options for the disposition of the fetal remains, would be constitutional.⁹

IV

La.Rev.Stat.Ann. § 40:1299.35.13 provides: “No person shall experiment on an unborn child or a child born as the result of an abortion, whether the unborn child or child is alive or dead, unless the experimentation is therapeutic to the unborn child or child.”¹⁰ La.Rev.Stat.Ann. § 40:1299.35.18 imposes criminal penalties for violating this or any other section of the abortion statute.¹¹ The district court offered several alternative rationales for invalidating this provision. 597 F.Supp. at 673-76. Although we agree that this statutory provision is unconstitutional, we neither approve nor disapprove any of the rationales put forth by the district court. Our holding is based solely on our conclusion that the use of the terms “experiment” and “experimentation” makes the statute impermissibly vague.

A state’s legislative enactment is void for vagueness under the due process clause of the fourteenth amendment if it “is inherently standardless, enforceable only on the exercise of an unlimited, and hence arbitrary, discretion vested in the state.” Ferguson v. Estelle, 718 F.2d 730, 735 (5th Cir.1983). This test requires that the law be vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). The vagueness doctrine has been applied with considerable stringency to a law that required physicians to use professional diligence in caring for the life and health of a viable aborted fetus. Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979).

The plaintiffs’ expert witness offered unrebutted testimony, which we find quite plausible, that physicians do not and cannot distinguish clearly between medical experiments and medical tests. As the expert witness pointed out, every medical test that is now “standard” began as an “experiment” that became standard through a gradual process of observing the results, confirming the benefits, and often modifying the technique. Thus, as the witness concluded, “we have at one end things that are obviously standard tests and [at] the other end things that are complete experimentation. But in the center there is a very broad area where diagnostic procedures of testing types overlap with experimentation procedures____” Indeed, as the challenged statute itself seems to acknowledge, even medical treatment can be reasonably described as both a test and an experiment. This must be true whenever the results of the treatment are observed, recorded, and introduced into the data base that one or more physicians use in seeking better therapeutic methods. The whole distinction between experimentation and testing, or between research and practice, is therefore almost meaningless in the medical context. When one adds to this the fact that some innovative tests or treatments are done on fetal tissue in order to monitor the health of the mother,¹² one can see that physicians who treat pregnant women are being threatened with an inherently standardless prohibition. We therefore think that this statute “simply has no core” that unquestionably applies to certain activities, Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974) (emphasis in original), and we hold that it is unconstitutionally vague.¹³

AFFIRMED.

1 . See, e.g., Roe v. Wade, 410 U.S. 113, 171-77, 93 S.Ct. 705, 736-39, 35 L.Ed.2d 147 (1973)(Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221-23, 93 S.Ct. 739, 762-63, 35 L.Ed.2d 201 (1973)(White, J., dissenting); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 92-101, 96 S.Ct. 2831, 2851-2856, 49 L.Ed.2d 788 (1976)(White, J., dissenting); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 2504-17, 76 L.Ed.2d 687 (1983)(O’Connor, J., dissenting); Thornburgh v. American College of Obstetricians & Gynecologists, — U.S. —, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (Burger, C.J., dissenting); id. (White, J., dissenting); id. (O'Connor, J., dissenting).

2 . See, e.g., Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973); Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221, 297-311 (1973); Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 Sup.Ct. Rev. 159; Gunther, Some Reflections on the Judicial Role: Distinctions, Roots, and Prospects, 1979 Wash.U.L.Q. 817, 819; A. Bickel, The Morality of Consent 27-29 (1975); J.H. Ely, Democracy and Distrust 2-3, 248 n. 52 (1980).

3 . Judge Williams’ disapproval of our allusions to the debate over the Supreme Court’s abortion decisions is misplaced. Although we have not undertaken to criticize the Supreme Court, we do not believe it would be improper to do so. Cf. United States v. Dennis, 183 F.2d 201, 207-12 (2d Cir.1950)(Hand, C.J.), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); United States v. Roth, 237 F.2d 796, 801 (2d Cir.1956)(Frank, J.); Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir.1970) (Friendly, J.); Dronenburg v. Zech, 746 F.2d 1579, 1583-84 (D.C.Cir.1984) (on petition for rehearing en banc) (statement of Bork, J., joined by Scalia, J.). Indeed, the Supreme Court itself has implicitly encouraged the lower courts to offer it responsible criticisms of its decisions. See, e.g., Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 867, 95 L.Ed. 1137 (1951) (plurality opinion). In any case, our references to the debate over the abortion decisions are not gratuitous, but ture meant to help explain why we think it proper to decide this case as we have. While we are unquestionably bound to obey the Supreme Court, we are not obliged to give expansive readings to a jurisprudence that the whole judicial world knows is swirling in uncertainty. We think that Judge Williams’ analysis would unnecessarily put new restrictions on the states, restrictions that the Supreme Court has not yet, and may not ever, require. Because we think that this expansion of substantive due process would be ill-advised, we decline to anticipate commands from the high court that may never come.

4 . This subsection goes on to state quite emphatically that the Louisiana legislature disagreés with the premises of the Supreme Court’s abortion jurisprudence and expresses an intent to enforce the state’s pre-Roe v. Wade policy as soon as that becomes legally possible. Although the district court found this expression of legislative intent relevant to its determination of the constitutionality of the statute, 597 F.Supp. at 644-45 & n. 1, we do not believe that the Supreme Court has gone as far as to command the states to adopt a policy of unquestioning agnosticism about the morality of abortion. Cf., e.g., Thornburgh v. American College of Obstetricians & Gynecologists, — U.S. —, —, 106 S.Ct. 2169, 2184, 90 L.Ed.2d 779 (1986) (“[Ajbortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly.”); id. (Stevens, J., concurring) at —, 106 S.Ct. at 2188 (Supreme Court is not "imposing value preferences on anyone else”). But cf. id. (majority opinion), at —, 106 S.Ct. at 2180 (state’s treating abortion differently than it treats necessary surgery or simple vaccination "reveals the anti-abortion character of the statute and its real purpose”).

5 . See, e.g. H.L. v. Matheson, 450 U.S. 398, 411-13, 101 S.Ct. 1164, 1172-73, 67 L.Ed.2d 388 (1981) (acknowledging the peculiar nature of abortion and the state’s legitimate interest in discouraging its occurrence); Harris v. McRae, 448 U.S. 297, 325-26, 100 S.Ct. 2671, 2692-93, 65 L.Ed.2d 784 (1980) (criticizing a lower court for taking away from a legislature (in this case Congress) the prerogative of balancing the fetus’ interests against those of the mother); Maher v. Roe, 432 U.S. 464, 473-74, 97 S.Ct. 2376, 2382-83, 53 L.Ed.2d 484 (1977) (the states are free "to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds____[and are free to make] childbirth a more attractive alternative, thereby influencing the woman’s decision....”); id. at 479-80, 97 S.Ct. at 2385-86 (emphasizing the importance of leaving the legislatures free to make legislative choices); Beal v. Doe, 432 U.S. 438, 447-48 n. 15, 97 S.Ct. 2366, 2372-73 n. 15, 53 L.Ed.2d 464 (1977) ("[A]nguish over the perceived impact of [the Court’s allowing government to refuse to subsidize abortions] ... misconceive^] ... the role of the judi-ciary____ The issues present policy decisions of the widest concern. They should be resolved by the representatives of the people, not by this Court.”); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 66-67, 96 S.Ct. 2831, 2839-2840, 49 L.Ed.2d 788 (1976) (emphasizing the importance of informed consent to abortion); Roe v. Wade, 410 U.S. 113, 162-64, 93 S.Ct. 705, 731-32, 35 L.Ed.2d 147 (1973) (recognizing the importance of allowing state regulation of abortions). Cf. Thornburgh v. American College of Obstetricians & Gynecologists, — U.S. —, —, 106 S.Ct. 2169, 2178, 90 L.Ed.2d 779 (1986) ("The States tire not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies____[or to] wholly subordinate constitutional privacy interests and concerns with maternal health in an effort to deter a woman from making a decision that, with her physician, is hers to make.’’) (emphasis added). But cf. id. (White, J., dissenting), at-, 106 S.Ct. at 2198 ("[T]he majority makes it clear from the outset that it simply disapproves of any attempt by Pennsylvania to legislate in [the abortion] area.").

6 . The language of the statute is somewhat awkward and indirect, but the parties, the district court, and the state administrative agency charged with promulgating the implementing regulations have all construed it as we do. La. Rev.Stat.Ann. § 40:1299.35.14 provides:

A. Each physician who performs or induces an abortion which does not result in a live birth shall insure that the remains of the child are disposed of in accordance with rules and regulations which shall be adopted by the Department of Health and Human Resources.

B. The provisions of this Section shall not apply to, and shall not preclude, instances in which the remains of the child are provided for in accordance with the provisions of R.S. 8:651 et seq.

C. The attending physician shall inform each woman upon whom he performs or induces an abortion of the provisions of this Section within twenty-four hours after the abortion is performed or induced.

R.S. 8:651 provides that most human remains "shall be decently interred or cremated within a reasonable time after death." The state’s Department of Health and Human Resources has issued regulations providing that unless the mother chooses cremation or burial, the physician or hospital shall arrange for the fetal remains to be disposed of either by incineration or through the municipal sanitary disposal system.

7 . The City of Akron Court objected to this "unreasonable" insistence because it might “in some cases add to the cost of providing abor-tions____” 103 S.Ct. at 2502. This objection applies equally to disclosures that are required before and after abortions.

8 . See, e.g., City of Akron, 103 S.Ct. at 2502-03; Thornburgh v. American College of Obstetricians & Gynecologists, — U.S. —, —, 106 S.Ct. 2169, 2178, 90 L.Ed.2d 779 (1986) ("A requirement that the woman give what is truly a voluntary and informed consent, as a general proposition, is, of course, proper and is surely not unconstitutional.”).

9 . In Thornburgh v. American College of Obstetricians & Gynecologists, — U.S. —, — & n. 10, 106 S.Ct. 2169, 2179-2180 & n. 10, 90 L.Ed.2d 779 & n. 10 (1986), a bare majority of the Court indicated its discomfort with statutes requiring that women be provided with what the majority considered inflammatory information. The Court, however, was considering an "informed consent" statute that operated prior to a woman’s undergoing an abortion. In any case, the Thornburgh Court did not clearly hold that the potentially unwelcome nature of information is by itself sufficient to prevent the states from requiring that the information be provided.

10 . “Abortion” is defined to mean "the deliberate termination of a human pregnancy after fertilization of a female ovum, by any person, including the pregnant woman herself, with an intention other than to produce a live birth or to remove a dead unborn child caused by a spontaneous abortion.” La.Rev.Stat.Ann. § 40:1299.-35.1(1). Experimentation on the remains of a spontaneous abortion is therefore apparently not prohibited. "Unborn child” is defined to mean "the unborn offspring of human beings from the moment of conception through pregnancy and until termination of the pregnancy.” La.Rev.Stat.Ann. § 40:1299.35.1(2).

11 . The state's brief does not offer any explanation of the purpose of the prohibition of experiments on the fetus or child that emerges as a result of an abortion. We can hypothesize that Louisiana wanted to remove some of the incentives for research-minded physicians either to promote abortions or to manipulate the timing of abortions in an effort to acquire fetal remains of a desired maturity. The statute is therefore rationally related to an important state interest. Cf. Maher v. Roe, 432 U.S. 464, 473-74, 97 S.Ct. 2376, 2382-83, 53 L.Ed.2d 484 (1977).

12 . The plaintiffs’ expert gave as one example a pathological examination in which the physician tests for "correal carcenomia [sic], which is [a] highly malignant tumor, cancer, that is of fetal origin and it is capable of invading and killing the mother.”

13 . This of course does not imply that the states are powerless to regulate medical experimentation. Because of the nature of the vagueness doctrine, any holding that a statute is unconstitutionally vague must necessarily be highly case-specific. A statute using more precise language than that used in R.S. 40:1299.35.13, whether it applied to fetal experimentation or other forms of medical research, would present a different case than the one we decided today.