PLANNED PARENTHOOD v. CASEY Civ. A. No. 88-3228.
744 F.Supp. 1323 (1990)
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, Reproductive Health and Counselling Center, Women's Health Services, Inc., Women's Suburban Clinic, Allentown Women's Center, and Thomas Allen, M.D., on behalf of himself and all others similarly situated, Plaintiffs, v. Robert P. CASEY, N. Mark Richards, Ernest Preate, personally and in their official capacities, and Michael D. Marino, personally and in his official capacity, together with all others similarly situated, Defendants.
United States District Court, E.D. Pennsylvania.
August 24, 1990.
Thomas E. Zemaitis, Pepper, Hamilton & Scheetz, Philadelphia, Pa., Kathryn Kolbert, American Civil Liberties Union, New York City, Linda J. Wharton, Women's Law Project, Philadelphia, Pa., for plaintiffs.
Kate L. Mershimer, Sandra W. Stoner, Office of Atty. Gen., Com. of Pa., Harrisburg, Pa., for defendants.
HUYETT, District Judge.
This court is required to address again the difficult and controversial issue of the permissible degree of governmental regulation of a woman's abortion decision. In this action for declaratory and injunctive relief, plaintiffs challenge the 1988 and
Just three days prior to the scheduled effective date of Act 31, following a hearing, I granted plaintiffs' motion for a temporary restraining order and enjoined defendants from: (1) enforcing the provisions of section 3206
Thereafter, I stayed all proceedings pending issuance of the decision of the United States Supreme Court in Webster v. Reproductive Health Services.
The trial of this action on the merits was held during the week of July 30, 1990. The parties have entered into a comprehensive stipulation of uncontested facts and a supplemental stipulation of uncontested facts
HISTORY OF ABORTION REGULATION IN PENNSYLVANIA
In its landmark decision in Roe v. Wade,
In 1978, the legislature attempted to restrict a woman's access to abortions by limiting medical assistance funding for the
Thereafter, a bill based on a model developed by Americans United For Life, a nonprofit organization, was introduced by the House as an amendment to a Senate bill regulating "tough guy" competitions. See Note, Toward Constitutional Abortion Control Legislation: The Pennsylvania Approach, 87 Dick.L.Rev. 373, 382 n. 84 (1983). Despite being rejected by the relevant legislative committee, the bill was passed overwhelmingly. The Senate, after brief discussion, concurred with the House amendment. While acknowledging his personal opposition to abortion, Dick Thornburgh, then Governor of Pennsylvania, vetoed the bill and explained his action as follows:
See Veto Message to the Senate at 7 (December 23, 1981) [Plaintiffs' Exhibit 60]. After revision and introduction on the floor of the House as an amendment to a bill relating to paramilitary training, the Abortion Control Act of 1982 was passed by both the House and Senate. Signed by Governor Thornburgh on June 11, 1982, the Act was to take effect within 180 days, on December 8, 1982, from its enactment.
The Abortion Control Act of 1982 imposed detailed regulations on abortions which required that: (1) a pregnant woman wait a mandatory 24 hours prior to undergoing an abortion procedure after giving her consent to the procedure; (2) a physician personally provide certain specified information to a woman seeking an abortion as a part of the informed consent process; (3) unemancipated minors obtain parental or judicial consent for an abortion procedure; and (4) all second trimester abortions be performed in a hospital. The 1982 Act also strictly limited post-viability abortions; dictated the use of specific procedures and, in some cases, the presence of a second physician to save the aborted fetus; imposed detailed reporting regulations; required fetal pathology reports; restricted the availability of public funds for the performance of abortions; and regulated private insurance coverage for the performance of abortions. Further, the 1982 Act subjected physicians and clinics violating the Act to criminal prosecution, as well as civil tort liability and revocation or suspension of licensure.
Before the Act took effect, the American College of Obstetricians and Gynecologists ("ACOG"), Pennsylvania Section, various abortion clinics and physicians, among others, filed suit in this court alleging that the 1982 Act was unconstitutional in its entirety and immediately filed a motion for a
Plaintiffs immediately filed a notice of appeal, and the Commonwealth filed a cross-appeal challenging my ruling on the 24-hour waiting period provision. The Third Circuit, on December 9, 1982, granted the plaintiffs' motion for stay of enforcement of the entire Act pending appeal. After expedited briefing and argument, the Third Circuit withheld opinion pending three decisions of the Supreme Court which were under submission.
Thereafter, Pennsylvania's legislature adopted the 1988 and 1989 amendments to the Act. These amendments include many provisions similar, if not identical, to the provisions of the 1982 version of the Act struck down by this court, the Third Circuit, and the United States Supreme Court, as well as other provisions to which plaintiffs object. These include a mandatory 24-hour waiting period for all women seeking to have an abortion; a parental informed consent/judicial by-pass procedure for minor women seeking to terminate their pregnancy; spousal notification provisions; physician-only disclosure requirements; and various reporting and disclosure requirements.
FINDINGS OF FACT
A. The Parties and Witnesses.
1. Plaintiff Thomas Allen testified as an expert at trial in the field of obstetrics and gynecology. He is qualified to testify as an expert in this field, and I found his testimony to be credible in all respects. Dr. Allen is a physician licensed to practice medicine in Pennsylvania and is an Associate Clinical Professor in the Department of Obstetrics and Gynecology at the University of Pittsburgh. He graduated from the University of Pittsburgh School of Medicine in 1943. He is an emeritus staff member of Magee Women's Hospital, and is Medical Director of Women's Health Services, Inc. He has been a Diplomate of the American College of Obstetrics and Gynecology since 1954, has been a Fellow of the American College of Obstetrics and Gynecology since 1955, and a Fellow of the Pittsburgh Obstetrical and Gynecological Society since 1974. From 1972 to the present, Dr. Allen has been active in planning, establishing and administering Women's Health Services, Pittsburgh's first free standing abortion clinic. From 1970 to 1979, he was active in establishing and contributing services to the Pittsburgh Free Clinic. Dr. Allen has a private obstetrical and gynecological practice with one other specialist. [Court's Exhibit 1 at ¶ 1; Plaintiffs' Exhibit 81; Trial Testimony of Dr. Allen, Vol. I at 35-39].
2. Plaintiff Planned Parenthood of Southeastern Pennsylvania ("PPSP") is a non-profit corporation providing comprehensive family planning, medical and counseling services (including birth control education), pregnancy testing and counseling, gynecological care, first trimester abortions, and vasectomies at medical clinics in Philadelphia, Montgomery and Delaware Counties. The Center City Philadelphia clinic offers these services Monday through Friday. Abortions are performed on Wednesdays, Thursdays, Fridays and Saturdays at PPSP's Center City Philadelphia Clinic. [Court's Exhibit 1 at ¶ 2].
3. Plaintiff Reproductive Health and Counseling Center ("RHCC") is a for-profit corporation in Chester, Pennsylvania, which operates a clinic that performs first and early second trimester abortions. [Court's Exhibit 1 at ¶ 12].
4. Plaintiff Women's Health Services, Inc. ("WHS") in Pittsburgh, Pennsylvania, is a non-profit health center providing fertility control education, pregnancy counseling, general counseling for individuals and couples, PMS counseling and treatment, contraceptive and gynecological care, public education, and first and early second trimester abortions. [Court's Exhibit I at ¶ 25].
5. Plaintiff Women's Suburban Clinic ("WSC") is a non-profit corporation in Paoli, Pennsylvania which operates a health care facility providing abortions, ongoing gynecological services, mini-laparoscopies, pregnancy testing, community education, and other counseling services. [Court's Exhibit 1 at ¶ 42].
6. Plaintiff Allentown Women's Center ("AWC") is a for-profit corporation in Allentown, Pennsylvania which operates a clinic providing pregnancy testing and counseling, contraceptive and gynecological care, and first trimester abortions. [Court's Exhibit 1 at ¶ 55].
7. Defendant Robert P. Casey is the Governor of the Commonwealth of Pennsylvania. [Plaintiffs' Amended Complaint and Defendants' Answer to Amended Complaint at ¶ 13].
8. Defendant N. Mark Richards, M.D., is the Secretary of Health of the Commonwealth of Pennsylvania. [Plaintiffs' Amended Complaint and Defendants' Answer to Amended Complaint at ¶ 14].
9. Defendant Ernest Preate, Jr., is the Attorney General of the Commonwealth of Pennsylvania. [Plaintiffs' Amended Complaint
10. Defendant Michael D. Marino is the District Attorney for Montgomery County, Pennsylvania.
11. Sue Roselle testified at the hearing on plaintiffs' motion for a preliminary injunction and at trial. I found her testimony on both occasions to be credible in all respects. Ms. Roselle is the Executive Director of WHS. As Executive Director, she is responsible for the ongoing operation of the clinic and for staff selection, and she reports to the Board of Directors of WHS. She holds a master's degree in social work from the University of Illinois at Urbana, and a M.S.B.A. in management from Robert Morris College. She is Treasurer of the Pennsylvania Chapter of the National Association of Social Workers, a member of the Academy of Certified Social Workers, President of Pennsylvanians for a Right to a Private Life, and serves on the Health Services Committee of the American Red Cross, Pittsburgh-Allegheny Chapter. She has over ten years' experience in health care administration, including medical services and home health care. She is a former director for emergency medical service systems for the 12 counties of southwestern Pennsylvania. [See Casey I, 686 F.Supp. at 1093 (¶ 11)].
12. Sylvia Stengle testified at the hearing on plaintiffs' motion for a preliminary injunction. I found her testimony to be credible in all respects. Ms. Stengle is the founder and Director of AWC. She is responsible for the ongoing operation of the clinic and hiring. She holds a bachelor's degree from the University of Wisconsin, and has taken graduate courses in sociology and psychology. Prior to founding AWC in 1978, she was the Education Director for Planned Parenthood of Northampton County, Pennsylvania. She has been personally involved in counseling since 1973, and now supervises the AWC counseling staff. She serves on the Board of Directors of the National Abortion Rights Action League. [See Casey I, 686 F.Supp. at 1093-94 (¶ 12)].
13. Dr. Cathy Dratman testified at the hearing on plaintiffs' motion for a preliminary injunction. I found her testimony to be credible in all respects. Dr. Dratman is licensed to practice medicine in Pennsylvania and New Jersey. She is a graduate of Hahnemann Medical College, and completed her internship and residency at Pennsylvania Hospital in Philadelphia. She is board certified by the American Board of Obstetrics and Gynecology. She has been Medical Director of PPSP since 1986, and has a private obstetrical and gynecological practice in New Jersey. She does not presently perform abortions, but in the past has performed and referred patients for first and second trimester abortions up to 20 weeks gestation. As Medical Director of PPSP, she maintains close contact with, and generally oversees, all abortion procedures performed at the clinic. [Casey I, 868 F.Supp. at 1094 (¶ 13)].
14. Dr. Steven J. Davidson testified at trial as an expert in the field of emergency medicine. He is qualified to testify as an expert in emergency medicine, and I found his testimony credible in all respects. Dr. Davidson is a physician licensed to practice medicine in Pennsylvania and California. He is a Division Head of Pre-Hospital Care and Professor of Emergency Medicine at the Medical College of Pennsylvania where he teaches, both clinically and didactically, medical students, interns, residents and house staff. He received his bachelor's degree in chemistry with honors from Temple University in 1971 and graduated from Temple University Medical School in 1975. Dr. Davidson's internship and residency, in emergency medicine, took place in the Medical College of Pennsylvania. Subsequently, he was awarded a master's degree in business administration from the Wharton School of the University of Pennsylvania in 1989.
Dr. Davidson's hospital appointments include attending physician at the hospital at
15. Dr. Michael Alan Grodin testified at trial as an expert in the field of medical ethics. He is qualified to testify as an expert in medical ethics, and I found his testimony credible in all respects. Dr. Grodin is a physician licensed to practice medicine in Massachusetts and New York. He received his bachelor's degree from Massachusetts Institute of Technology in 1973 and graduated from Albert Einstein College of Medicine in 1976. Dr. Grodin was an intern and junior resident in pediatrics at Harbor General Hospital in Torrance, California (UCLA), and completed his residency in pediatrics at Massachusetts General Hospital and Boston City Hospital (Harvard University). While at Boston City Hospital, he was Chief Resident in Pediatrics. Subsequently, he completed a clinical fellowship in pediatric cardiology at Children's Hospital Medical Center in Boston.
Dr. Grodin is a pediatrician and a professor with over eleven years of experience in the field of medical ethics. He has taught courses and lectured within the Boston University Schools of Liberal Arts, Medicine, Law, Public Health, Social Work, and Theology over the past eleven years. He is presently Associate Director of the Law, Medicine and Ethics Program and Director of Medical Ethics at Boston University Schools of Medicine and Public Health, where he is also Associate Professor of Health Law, Pediatrics, and Socio-Medical Sciences and Community Medicine. In addition, he is Adjunct Associate Professor of Philosophy in the College of Liberal Arts at Boston University.
Dr. Grodin is a Medical Ethicist and Human Studies Chairman for the Department of Health and Hospitals of the City of Boston, and serves on the Institutional Review Board and Ethics Advisory Group-Institutional Ethics Committee of Boston City Hospital. He is a staff pediatrician at Associated Pediatricians of Boston, an associate visiting pediatrician at Boston City Hospital, and a senior associate in pediatrics at Beth Israel Hospital in Boston. In addition, he serves on the boards of directors of the American Society of Law and Medicine, and Public Responsibility in Medicine and Research. He is a member of the National Committee on Bioethics of ACOG. Finally, he served as medical ethics reviewer for The New England Journal of Medicine and Oxford University Press, authored or co-authored numerous publications in the areas of moral dilemmas in medicine and problematic decision-making in clinical medicine, and has delivered numerous presentations on various topics in the field of medical ethics. [Trial Testimony of Dr. Grodin at 91-96; Plaintiffs' Exhibit 78].
16. Dr. Ronald J. Bolognese testified at trial as an expert in the fields of obstetrics, gynecology and perinatal medicine. He is qualified to testify as an expert in these areas, and I found his testimony credible in all respects. Dr. Bolognese is a physician licensed to practice medicine in Pennsylvania and New Jersey. He received his bachelor's degree from Princeton University in 1959 and graduated from the University of Pennsylvania School of Medicine in 1967. Dr. Bolognese completed his internship at Bryn Mawr Hospital and his residency in obstetrics and gynecology at Pennsylvania Hospital in Philadelphia.
Dr. Bolognese was the Chief of Obstetrics and Gynecology at Williams Air Force Base Hospital in Arizona from 1967 to
17. Dr. Lenore E.A. Walker testified at trial as an expert in the field of family violence. She is qualified to testify as an expert in the area of family violence and the effects of battering on women, children and other members of their families, and I found her testimony credible in all respects. Dr. Walker is licensed to practice psychology in Colorado and New Jersey. She received her bachelor's degree in psychology from Hunter College of the City University of New York in 1962, her master's degree in clinical school psychology from City College of the City University of New York in 1967, and her doctorate degree from Rutgers University's School of Psychology in 1972.
Dr. Walker has more than twenty years of experience as a licensed clinical, forensic, and school psychologist. She is currently the president of Walker and Associates in Denver and the founder and Executive Director of the Domestic Violence Institute, a non-profit organization which conducts research in the area of family violence. Dr. Walker is a Fellow of and has served on the Council of Representatives of the American Psychological Association and as chair of its Women's Caucus. In 1987, she was the recipient of the Board of Professional Affairs Distinguished Professional Contributions to Psychology in the Public Interest Award, one of the American Psychological Associations highest honors. Dr. Walker is also an adjunct professor of psychology at the University of Denver. During her career she has been Chairperson of the Department of Psychology and Associate Professor of Psychology at Colorado's Women's College, an Assistant Professor of Psychiatry at Rutgers University's Medical School, and an Assistant Professor at Rutgers University's Graduate School of Applied and Professional Psychology.
Dr. Walker was one of the first scientists in the country to conduct clinical research on intra-family violence and is one of the foremost experts on the psychology of battered women and families. From 1978 to 1981, she acted as the principal investigator for a National Institute for Mental Health funded study on the "battered women syndrome." She is the author or co-author of numerous publications, including The Battered Woman, her first book published in 1979 for which she received a Distinguished Media Award from the Association for Women in Psychology. She serves as an assistant editor for a number of major "referee" journals
18. Jean A. Dillon
19. Dr. Vincent M. Rue testified at trial as an expert in the areas of problem pregnancy decision-making, marital family relationships, and psychological effects following an abortion. Dr. Rue received a bachelor's degree in sociology from St. John's University, a master's degree in clinical social work from St. Louis University, and doctorate degree in family relations from the University of North Carolina, School of Home Economics at Greensboro. He is co-founder and co-director of the Institute for Abortion Recovery and Research in New Hampshire, and Executive Director of Sir Thomas Moore Clinic in California. In addition, from 1975 to 1980, he was an Associate Professor of Family Relations at the School of Fine and Applied Arts of California State University at Los Angeles, and was an Adjunct Associate Professor at the School of Professional Psychology at United States International University in San Diego.
Dr. Rue is a licensed marriage and family counselor in California, and a trained psychotherapist. He is not a psychologist and has never conducted a controlled research study. While Dr. Rue has produced various published works in his field, he has never had any of his work published in a referee journal. Because he is not a physician, Dr. Rue has never provided informed consent for an abortion or any other medical procedure. In addition, he has not conducted any research on the informed consent procedures utilized in abortion clinics in Pennsylvania. [Trial Testimony of Dr. Rue, Vol. II at 143-155; Defendants' Exhibit 62].
Dr. Rue submitted a study he co-authored with others, The Psychological Aftermath of Abortion, to Surgeon General C. Everett Koop and the House of Representatives Committee on Government Operations as a part of a federal investigation of the medical and psychological effects of abortion which purports to establish the existence of a psychological disorder denominated "post abortion syndrome." After submission for peer review by scientists with the Center for Disease Control, the National Center for Health Statistics and other scientific institutions, his study was found to have "no value" and to be "based upon a priori beliefs rather than an objective review of the evidence." See The Federal Role in Determining the Medical and Psychological Impact of Abortion on Women, Committee on Government Operations, H.R. 101-392, 101st Cong. 1st Sess. (Dec. 11, 1989) at 12 [Plaintiffs' Exhibit 67 at 12]. The Board of Directors of the American Psychological Association, after review of all of the scientific literature, has determined that there are no scientific studies which support the existence of a "post abortion syndrome" as suggested by Dr. Rue. [Trial Testimony of Dr. Rue, Vol. II at 51].
Because Dr. Rue lacks the academic qualifications and scientific credentials possessed by plaintiffs' witnesses, I conclude that his testimony, which is based primarily, if not solely, upon his limited clinical experience, is not credible. His testimony is devoid of the analytical force and scientific
20. Dr. Watson Allen Bowes, Jr., testified at trial as an expert in the fields of high risk obstetrics and maternal fetal medicine. He is qualified to testify as an expert in these fields, and I found his testimony credible in certain respects but subject to certain limitations caused by his admitted philosophical opposition to abortion.
Dr. Bowes is a physician licensed to practice medicine in North Carolina and Colorado. He received his bachelor's degree from Washington and Lee University in 1955 and graduated from the University of Colorado School of Medicine in 1959. Dr. Bowes completed his internship at Mary Hitchcock Memorial Hospital, his residency (general practice) at the University of Colorado, and his residency (obstetrics and gynecology) at the University of Colorado School of Medicine. In addition, he was a Fellow in Obstetrics and Gynecology, Reproductive Physiology Laboratory at the University of Colorado School of Medicine.
Dr. Bowes is certified by ACOG, as well as ACOG's Division of Maternal-Fetal Medicine. He is presently a Professor in the Department of Obstetrics and Gynecology at the University of North Carolina School of Medicine at Chapel Hill. Previously, he taught obstetrics and gynecology at the University of Colorado as an assistant professor, associate professor and full professor. Finally, he is the author of various publications in his field. [Trial Testimony of Dr. Bowes, Vol. III at 25-32; Defendants' Exhibit 61].
21. Patricia Potrzebowski, Ph.D., testified at trial, and I found her testimony credible in all respects. She is the Director of the Division of Health Statistics and Research, State Health Data Center, Department of Health. She has a bachelor's degree in biology from Schimer College, Mount Carroll, Illinois. In 1974, she obtained a doctorate degree in human genetics from the Graduate School of Public Health from the University of Pittsburgh. She has been the Director of the Division of Health Statistics since late 1976 or early 1977. [Trial Testimony of Dr. Potrzebowski, Vol. III at 88-90; see also Casey I, 686 F.Supp. at 1094 (¶ 14)].
B. Procedures and Practices of Plaintiffs.
(1) Planned Parenthood of Southeastern Pennsylvania
22. PPSP performs approximately 2,800 first trimester abortions a year. The abortion procedure presently costs full payment patients $240, if the woman is 12 weeks or less from her last menstrual period. All fees cover only the direct costs of the procedure, including personal counseling, medical testing and examination, the abortion procedure, medical supervision during the post-surgical recovery, and a post-abortion examination. [Court's Exhibit 1 at ¶ 3].
23. PPSP charges $180 for abortions for women who are on medical assistance but whose abortions are not reimbursable by the state. [Court's Exhibit 1 at ¶ 4].
24. PPSP accepts state medical assistance reimbursement in lieu of direct payment for abortions for victims of rape and incest, and for women with life-threatening conditions. In 1987, approximately 53 of
25. When a woman believing she is pregnant presents herself at a PPSP clinic, she is given a pregnancy test and examined by a nurse practitioner or physician. Women who believe they have just recently become pregnant are offered early detection by means of a blood test or special urine test. Once it is determined that she is pregnant, the woman is encouraged to participate in an individual options counseling session with a PPSP counselor. [Court's Exhibit 1 at ¶ 7].
26. Options counselors are volunteers or staff counselors who have completed a special training program under the supervision of PPSP counselors and other senior staff members. This training program consists of 43 hours of group sessions that focus on factual information regarding adoption, abortion, contraception and referral resources. The course also gives participants the opportunity to evaluate, explore and share their attitudes and feelings. The course is certified by Temple University, and participants receive four CEU credits for completion of the training. [Court's Exhibit 1 at ¶ 8].
27. Abortion counselors are members of PPSP's counseling staff or college student interns working under the supervision of a staff counselor. These counselors have college backgrounds and experience in a health or social services related field. All abortion counselors have had on-site training in pregnancy counseling and abortion care and are required to participate in on-going in-service training. [Court's Exhibit 1 at ¶ 9].
28. Each PPSP client participates in an individual abortion counseling session on the day her procedure is scheduled. In this session, the counselor and the woman discuss the woman's medical history, personal situation and feelings about abortion. The counselor explains the abortion procedure and its risks. Post-abortion care and contraceptive plans are also explored. If the client has been accompanied to the clinic by a person she wishes to involve in the counseling, that person will be included in part of this session. In some cases the abortion counselor will serve as the support person and accompany the woman through the procedure. [Court's Exhibit 1 at ¶ 10].
29. To assure that minors are informed of all options and are making a free and informed choice, PPSP counseling sessions for minors are more extensive. In the course of the counseling session, minors are given detailed information on the procedure and its risks. Minor women are also counseled on future contraceptive care. When a minor does elect to involve a parent or other supportive adult such as an aunt, guardian or older sibling, the counselor will first meet privately with the minor. Then, at the counselor's discretion and with the minor's consent, the parent or adult will be brought in for joint counseling. [Court's Exhibit 1 at ¶ 11].
30. Many of PPSP's abortion patients come from referrals from other clinics where they previously have received options counseling. [Court's Exhibit 1-A at ¶ 115].
31. During options counseling at PPSP, the counselors discuss with the woman the option of keeping her baby or giving it up for adoption. [Court's Exhibit 1-A at ¶ 116].
32. It is typical for a woman to receive counseling about her options once she has her pregnancy diagnosed at one of PPSP's centers, and to receive counseling again at the surgical center in Center City. [Court's Exhibit 1-A at ¶ 123].
33. In 1987, PPSP performed 359 abortions for women under the age of 18. [Court's Exhibit 1 at ¶ 6].
34. PPSP encourages minors to bring a parent with them. [Court's Exhibit 1-A at ¶ 114].
35. Approximately 65% of the minors bring a parent with them to the counseling session in PPSP's experience. [Court's Exhibit 1-A at ¶ 117].
36. PPSP refers women with medical problems that make them high-risk patients to hospitals. [Court's Exhibit 1-A at ¶ 113].
38. PPSP collects information for its internal use concerning medical complications following an abortion. [Court's Exhibit 1-A at ¶ 122].
(2) Reproductive Health and Counselling Center
39. RHCC performs approximately 2,900 first and early second trimester abortions annually. [Court's Exhibit 1 at ¶ 12].
40. RHCC employs a staff of approximately four physicians, one nurse practitioner, and two full-time and two part-time counselors. Abortions are performed on Tuesday, Wednesday and Friday afternoons. Additional counseling sessions are available by appointment. [Court's Exhibit 1 at ¶ 13].
41. At RHCC, one physician works at a time during those hours of operation when abortions are performed. [Court's Exhibit 1-A at ¶ 141].
42. First trimester abortions (up to 12 weeks from the last menstrual period) with local anesthesia cost RHCC clients $220. For abortions from 12 to 16 weeks from the last menstrual period the cost is $375, plus an additional $70 for a required ultrasound. [Court's Exhibit 1 at ¶ 14].
43. If RHCC's clients are eligible for medical assistance reimbursement, RHCC seeks reimbursement from the Commonwealth. In 1987, RHCC was reimbursed for no more than 20 such abortions. The reimbursement rate was $59.50 to the clinic and $81.50 to the physician. [Court's Exhibit 1 at ¶ 15].
44. Where a client receives medical assistance from the state but is not eligible for medical assistance for an abortion, RHCC provides a $50 cost reduction for first trimester abortions with local anesthesia. [Court's Exhibit 1 at ¶ 16].
45. While RHCC's clients come primarily from Delaware, Philadelphia, Chester and Bucks Counties, approximately 3-4% of its clients come from areas in excess of three hours travelling time. [Court's Exhibit 1 at ¶ 17].
46. A woman's first contact with RHCC is usually by telephone. Women who call RHCC may or may not have had a pregnancy test prior to calling. Telephone counselors refer the women to RHCC or to the agency closest to her home or place of work for the test. [Court's Exhibit 1 at ¶ 19].
47. If a woman has a positive pregnancy test and wants to terminate the pregnancy, RHCC will schedule an abortion appointment, usually within one week's time. If the woman indicates uncertainty about her decision, the telephone counselor will recommend her making an appointment to talk further with an options counselor about her decision. [Court's Exhibit 1 at ¶ 20].
48. At an options counseling session, an RHCC counselor talks with the woman about her feelings about her pregnancy. The purpose of the session is to let the woman know about each of the three options available to her: carrying to term and keeping the child, carrying to term and giving the child up for adoption, and abortion. Where appropriate, the woman is urged to talk about these options with supporting family members and friends. The role of the counselor in these sessions is to support the decision of the woman and to provide information that would be necessary as she acts on her decision. [Court's Exhibit 1 at ¶ 22].
49. Pre-abortion counseling at RHCC, which each woman must participate in on the day of her abortion and which is different from options counseling, involves a discussion of the woman's decision, a review of her medical history and a description of the risks and complications of the abortion procedure. The informed consent part of the session is done with groups of four women. The counselor describes the medical procedure, reviews the risks and complications, and answers questions or addresses concerns. RHCC also provides counseling to the person or persons who accompany
50. Pre-abortion and options counselors are trained and supervised by RHCC's head counselor who has nine years counseling experience. [Court's Exhibit 1 at ¶ 24].
51. Telephone counselors' salaries at RHCC are between $6 and $6.30 an hour. For options counselors, salaries begin at $6.30 an hour. [Court's Exhibit 1-A at ¶ 134].
52. RHCC counselors are not required to have a bachelor's degree. [Court's Exhibit 1-A at ¶ 135].
53. If a woman receives options counseling and pre-abortion counseling at RHCC, such counseling occurs on different days, with options counseling being available on Tuesdays and Thursdays. [Court's Exhibit 1-A at ¶ 136].
54. In 1987, RHCC performed abortions on 349 minors. Approximately 60% of these minors were accompanied by a parent. That percentage has decreased to approximately 50%. All minors who choose not to be accompanied by a parent are required to bring a responsible adult with them to RHCC who will stay in the building as long as the minor is there and will accompany the minor home. [Court's Exhibit 1 at ¶ 18; Court's Exhibit 1-A at 145].
55. RHCC strongly urges options counseling for all minors who have not involved their parents in the decision. [Court's Exhibit 1 at ¶ 21].
56. In general, RHCC supports and encourages parental involvement in the abortion decision where possible. [Court's Exhibit 1-A at ¶ 137].
57. If a parent accompanies a minor to RHCC for the abortion procedure, the minor reviews the risks and informed consent provision in the group session while the waiting room counselor goes over that information, including possible complications, with the parent. [Court's Exhibit 1-A at ¶ 138].
58. RHCC keeps statistics on complications. [Court's Exhibit 1-A at ¶ 139].
59. The Medical History Form used by RHCC was being used prior to the 1988 amendments to the Act. [Court's Exhibit 1-A at ¶ 142].
60. RHCC submits quarterly reports of complications to the National Abortion Federation. [Court's Exhibit 1-A at ¶ 143].
61. Doctors at RHCC sign the individual reporting forms (Report of Induced Termination of Pregnancy) submitted to the Pennsylvania Department of Health ("PaDOH") immediately following the abortion procedure. [Court's Exhibit 1-A at ¶ 144].
62. No physician at RHCC has ceased performing abortions because their identity is listed on PaDOH pregnancy termination forms. [Court's Exhibit 1-A at ¶ 140].
(3) Women's Health Services and Dr. Allen
63. WHS has a staff of approximately 75 people (including 8 physicians, 14 nurses and 33 counselors) and offers ongoing programs which are inclusive of approximately 2,700 client contacts a month. [Court's Exhibit 1 at ¶ 25].
64. Free pregnancy testing and counseling are available at WHS daily, Monday through Saturday. Abortions are performed Tuesdays, Fridays and Saturdays. Gynecology clinics are held on Wednesdays, Thursdays, and any other day a patient's condition dictates. Once their pregnancy is diagnosed, clients usually schedule their abortions by telephone. [Court's Exhibit 1 at ¶ 26].
65. WHS provides approximately 12,900 free pregnancy tests and 7,000 first trimester and early second trimester abortions each year. The abortion procedure at WHS costs as follows: $330 if twelve weeks or less from the last menstrual period; and $430 if thirteen to fourteen weeks from the last menstrual period; and $650 if fifteen to sixteen weeks from the last menstrual period. The fee includes the abortion procedure, laboratory testing, personal counseling, contraceptive care, pathological examination and medical supervision during the post-surgical recovery period. [Court Exhibit 1 at ¶ 27].
67. If clients are eligible for medical assistance, WHS takes the necessary information and seeks reimbursement from the Commonwealth. Medical assistance is available only where the abortion is necessary because of the life-threatening condition, or because the patient was a victim of rape or incest. In 1989, WHS was reimbursed for 46 such abortions. [Court's Exhibit 1 at ¶ 28].
68. Where a client receives medical assistance from the state, but is not eligible for medical assistance for an abortion, WHS nevertheless will discount the cost of the abortion. Last year, WHS accommodated 1,170 clients who were unable to pay the full amount. WHS has never turned away any client seeking an abortion merely because of inability to pay. [Court's Exhibit 1 at ¶ 29].
69. WHS's clients come primarily from Allegheny County. In 1989, however, 909 of their abortion patients came from areas in excess of two hours travelling time (100 miles) from the clinic. [Court's Exhibit 1 at ¶ 30].
70. When a patient presents herself at the WHS clinic, she receives a pregnancy test and blood tests. [Court's Exhibit 1 at ¶ 32].
71. As to WHS, free pregnancy tests and counseling are available Monday through Saturday, but 95% of counseling services are provided on the same day of the abortion. [Court's Exhibit 1-A at ¶ 110].
72. Both Magee and WHS take a patient's history prior to performing the abortion. [Court's Exhibit 1-A at ¶ 90].
73. In Dr. Allen's private practice, a patient completes a history form, which is a sort of health questionnaire, which is then amplified by a nurse's questions and further amplified by the physician when he sees her. [Court's Exhibit 1-A at ¶ 91].
74. At WHS, the patient completes the history form, which is gone over by a counselor, and then the physician reviews it prior to performing the abortion. [Court's Exhibit 1-A at ¶ 92].
75. All women are required to have an individual interview with a counselor on the day of their abortion. During this interview, a woman is counseled with respect to her options and her decision to have an abortion. Information regarding the risks and benefits of the abortion procedure and the patient's medical history is provided to her. In that connection, the counselor seeks to ensure that the woman is not unduly ambivalent about her decision and that she is not being coerced. In addition, the counselor discusses future contraceptive use with the patient. [Court's Exhibit 1 at ¶ 33].
76. If the client appears ambivalent about her decision, the counselor will refer her to one of the staff therapists and the abortion will be rescheduled to give the patient more time to consider her options. On rare occasions, the clinic will refuse to perform the abortion, if convinced of the patient's continued ambivalence. [Court's Exhibit 1 at ¶ 34].
77. Options counseling is provided on the day of the procedure by WHS professional counselors who are selected on the basis of personal qualifications and maturity. [Court's Exhibit 1 at ¶ 36].
78. Extensive and intensive problem pregnancy counseling is available at WHS at no charge to clients either before or after a decision with respect to an abortion has been made, regardless of what that decision may be. Personal counseling is also available after the abortion procedure and clients are encouraged to take advantage of that service. [Court's Exhibit 1 at ¶ 37].
79. At WHS, the average counseling takes 20 minutes. [Court's Exhibit 1-A at ¶ 102].
80. In 1989, 703 of WHS's abortion patients were under the age of 18. WHS presently encourages minors to bring a parent or other adult with them. Because WHS believes that parental involvement should be encouraged, clinic counselors are instructed to offer to speak with the minor's
81. Fifty percent of the minors who go to WHS are accompanied by a parent. When a parent accompanies a minor seeking an abortion, WHS first counsels the minor with respect to her options and her decision to have an abortion, and also provides her with information on future contraceptive use. The parent is then asked to join the minor, at which time the abortion procedure and possible complications are described. The counselor also answers any questions they might have. An informed consent form is then read out loud to the parent and minor while they follow along with their own copies. Each then signs the form in the medical record. [Court's Exhibit 1 at ¶ 35; Court's Exhibit 1-A at ¶¶ 97, 101].
82. No abortion can be performed on a minor at Magee without a parent's written consent. [Court's Exhibit 1-A at ¶ 94].
83. Approximately 30% of Dr. Allen's patients seeking abortions are minors. [Court's Exhibit 1-A at ¶ 95].
84. If a parent comes with a minor for an abortion procedure at Magee, Dr. Allen will speak to the parent too. If a parent comes with a minor for an abortion procedure at WHS, a counselor speaks to the parent. [Court's Exhibit 1-A at ¶ 96].
85. At present, WHS's director of personal counseling holds a Ph.D. [Court's Exhibit 1 at ¶ 38].
86. Personal counselors at WHS are professional therapists who have at least five years of clinically supervised experience at the master's degree level or above. [Court's Exhibit 1 at ¶ 39].
87. Both paraprofessional and professional counselors at WHS are required to begin their employment with a week of classroom preparation, consisting of approximately 35 hours of medical and counseling orientation to the abortion clinic. This instruction is provided by the associate medical director, director of counseling, and director of clinical services. [Court's Exhibit 1 at ¶ 40].
88. The medical information to be presented by counselors at WHS is developed under the supervision of a physician, the WHS associate medical director. The counseling protocols are developed and presented under the supervision of the director of counseling who holds a Ph.D. from the University of Pittsburgh. WHS also has an ongoing training module comprised of monthly inservices and quarterly individual supervision. [Court's Exhibit 1 at ¶ 41].
89. Dr. Allen always does some counseling with his patient prior to the procedure and goes over the informed consent form with them. [Court's Exhibit 1-A at ¶ 89].
90. Dr. Allen signs PaDOH reporting forms for Magee but WHS uses his signature stamp for such forms. [Court's Exhibit 1-A at ¶ 93].
91. WHS has a hot-line for women to call if they have any unusual symptoms or problems after an abortion to make sure there is immediate treatment. [Court's Exhibit 1-A at ¶ 103].
92. WHS provides information to the National Abortion Federation and the Alan Guttmacher Institute, including information concerning complications and the frequency that WHS's patients report to them or WHS observes them. [Court's Exhibit 1-A at ¶ 105].
93. If a medical emergency resulting from an abortion performed at WHS occurs, an ambulance is called to take the person to the hospital. [Court's Exhibit 1-A at ¶ 111].
(4) Women's Suburban Clinic
94. WSC performs approximately 3,350 first trimester abortions a year. Abortions are performed Tuesdays, Wednesdays and Thursdays. [Court's Exhibit 1 at ¶ 43].
95. The fee for an abortion at WSC is $275. At present, WSC accepts state medical assistance reimbursement for abortions for cases of rape, incest and life endangerment. Approximately 40 such claims are
96. Appointments for counseling and abortions are made through WSC telephone counselors. A positive pregnancy test is required before an abortion is scheduled. [Court's Exhibit 1 at ¶ 46].
97. The telephone counselors at WSC make appointments and receive clients but they do not counsel about pregnancy options. [Court's Exhibit 1-A at ¶ 125].
98. Depending on the patient interest and availability, appointments are made at WSC in one of the following ways:
a. If a woman requests counseling and the abortion on the same day, the first available appointment is given. There is often a one to two week wait in obtaining an appointment. Approximately 70% of the abortion appointments are scheduled this way.
b. If a woman wants to see a counselor prior to the day of her abortion, a pre-abortion session is scheduled. Approximately 30% of the abortion appointments are scheduled this way. [Court's Exhibit 1 at ¶ 47].
99. A woman who calls WSC and expresses concern and confusion over an unwanted pregnancy is offered an opportunity to see a counselor to discuss her options. Resource information is available for options including keeping the child, foster care and adoption. Information concerning maternity homes is also available for those women who wish to carry their pregnancy to term. [Court's Exhibit 1 at ¶ 49].
100. All counseling at WSC is provided on an individual basis by a trained counselor. All but one member of WSC's counseling staff have master's degrees. The other has a bachelor's degree with several years experience in counseling and family planning. All have backgrounds in various fields of human services. [Court's Exhibit 1 at ¶ 50].
101. It is WSC's policy that in order to counsel effectively, without becoming overstressed by the emotional demands of the job, counselors are not permitted to provide counseling for more than 20 hours a week. [Court's Exhibit 1 at ¶ 51].
102. WSC encourages that partners and/or parents be seen by the counselor during or after the counseling session. However, all clients are first seen alone by a WSC counselor. [Court's Exhibit 1 at ¶ 52].
103. Counseling at WSC is provided in an objective, nonjudgmental manner. The client's decision is reviewed and explored. The counselor also reviews the client's medical history, describes the abortion procedure, reviews birth control methods and goes over the informed consent form. Disclosure of medical risks and benefits is made as well. Also, post-abortion information, including what to do in the event of an emergency, is reviewed. [Court's Exhibit 1 at ¶ 53].
104. For women who express ambivalence over their abortion decision, the WSC counselor will further explore the issues. If the counselor feels that the woman is not sure of her decision, it is suggested that she take some time to reevaluate her choice. Additional counseling is available to assist the woman to come to a decision with which she feels comfortable. [Court's Exhibit 1 at ¶ 54].
105. Counselors at WSC start at $8.50 per hour and are all part-time employees. [Court's Exhibit 1-A at ¶ 126].
106. Of the approximately 3,350 abortions WSC performed in 1987, 410 (12.25%) were performed on minors. [Court's Exhibit 1 at ¶ 44].
107. WSC encourages minors to attend with a parent. [Court's Exhibit 1-A at ¶ 127].
108. All minors who have not informed a parent about their decision to have an abortion are asked to come to WSC for precounseling before the abortion appointment. This is done to give adolescents the opportunity to explore with a counselor their reasons for not involving their parents
109. If a parent comes in with a minor to WSC, the minor is first seen alone by the counselor and then the parent joins the counseling session. [Court's Exhibit 1-A at ¶ 130].
110. WSC does not perform abortions due to medical emergencies defined by the Act or otherwise. [Court's Exhibit 1-A at ¶ 128].
111. If an emergency occurs when performing an abortion at WSC, a crash cart is used to stabilize the woman and then, in all probability, the woman would be transferred to a hospital based upon the physician's or medical director's decision. [Court's Exhibit 1-A at ¶ 129].
112. WSC maintains or collects internal data regarding complications that occur during the performance of abortions. [Court's Exhibit 1-A at ¶ 133].
(5) Allentown Women's Center
113. AWC provides approximately 5,300 pregnancy tests and 4,000 first trimester abortions each year. [Court's Exhibit 1 at ¶ 56].
114. Abortions are performed at AWC three to five days a week, depending on patient need. [Court's Exhibit 1 at ¶ 57].
115. The abortion procedure at AWC costs $280, with additional charges for services such as RhoGam shots for women more than twelve weeks pregnant, and general anesthesia. The fee includes personal counseling both before and after the abortion, the abortion procedure, laboratory testing, and medical supervision during the post-surgical period. [Court's Exhibit 1 at ¶ 58].
116. For patients who receive medical assistance from the Commonwealth, AWC's fee for abortion is $225. [Court's Exhibit 1 at ¶ 59].
117. In the case of those medical assistance patients who require an abortion because of a life-threatening disease or because they were victims of rape or incest, AWC has received reimbursement from the state, so that no fee was charged directly to the patient. In 1987, AWC received less than $4,000 in medical assistance funds. [Court's Exhibit 1 at ¶ 60].
118. AWC's patients come primarily from an 18-county area in northern Pennsylvania encompassing the counties of Lehigh, Northampton, Carbon, Schuylkill, Luzerne, Lackawanna, Lebanon, Berks, Bucks, Pike, Chester, Lancaster, Susquehanna, Wayne, Monroe, Montgomery, Columbia and Wyoming. Many of these counties have no clinics or hospitals at which abortions are performed, AWC being the closest facility to which women can come. [Court's Exhibit 1 at ¶ 61].
119. In most cases, appointments for counseling and abortions at AWC are made through AWC's telephone counselors. A positive pregnancy test is required before an abortion will be scheduled. When a woman calls requesting an abortion, the telephone counselor collects personal data, menstrual history and medical history. If the caller is a minor, the telephone interview is more extended to assure that the minor fully understands what she must do and what the procedure will involve. [Court's Exhibit 1 at ¶ 64].
120. When a telephone counselor makes an appointment, pre-abortion instructions are given to the woman. These instructions include what the woman must do and what she must bring with her on the day of the appointment. [Court's Exhibit 1 at ¶ 65].
121. Any woman who calls AWC and expresses concern and confusion over an unwanted pregnancy is offered an opportunity to see a counselor to discuss her options. Resource information is available for options, including keeping the child, foster care and adoption. Information concerning prenatal care, welfare and support services is also available for those women who wish to carry their pregnancy to term. [Court's Exhibit 1 at ¶ 66].
122. A nurse practitioner or physician's assistant is available to examine all women
123. If the patient appears ambivalent about her decision to have an abortion, the AWC counselor will review options and suggest that the patient take more time to consider her decision before terminating the pregnancy. On occasion, the clinic has refused to permit an abortion if, after consultation, the counselor and the clinic supervisor are convinced of the woman's extreme ambivalence, coercion, or that she is otherwise overly distraught. Sometimes, but infrequently, they will refer these women to outside counselors. [Court's Exhibit 1 at ¶ 68].
124. In 1987, 563 of AWC's abortion patients were 17 or under. Of these, 3 were age 13; 32 were age 14; 64 were age 15; 178 were age 16; and 286 were age 17. [Court's Exhibit 1 at ¶ 62].
125. AWC encourages its minor patients to involve their parents in the abortion decision and to bring a parent or other supporting adult with them at the time of counseling and the procedure. Clinic counselors are routinely available to speak with a minor's parents. When a minor refuses to inform her parents under any circumstances, AWC respects those wishes. [Court's Exhibit 1 at ¶ 63].
126. When a parent does accompany a minor to the AWC clinic, a counselor will first meet privately with the minor. After assuring that the minor has reached her decision to have an abortion freely and without coercion, the counselor will give the minor the option to continue the counseling sessions jointly with her parent, or to be counselled separately. In either case, the counselor will describe the procedure and possible complications as well as answer any questions she or her parent may have. The minor is then asked to sign an informed consent form. [Court's Exhibit 1 at ¶ 69].
127. When a minor chooses not to have a parent involved, AWC counselors explore and encourage the involvement of a supporting adult. Counseling of a minor who has not informed her parents is more extensive and includes a discussion of why she has chosen not to involve her parents. [Court's Exhibit 1 at ¶ 70].
128. The options counseling provided on the day of the procedure at AWC is conducted by paraprofessional staff counselors who are selected on the basis of personal qualifications. Most of the counseling staff have bachelor's degrees. Two are presently working on master's degrees. All have backgrounds in various fields of human service. [Court's Exhibit 1 at ¶ 71].
129. All of AWC's counselors are required to begin their employment with at least a week of orientation. Instruction is provided by the Director, a nurse practitioner, the Patient Services Coordinator and other counseling staff. During the first several months of work, the new staff has frequent meetings either on an individual basis or as a group with administrative staff to reinforce correct integration of medical information and continued development of interviewing skills. [Court's Exhibit 1 at ¶ 72].
130. All medical information is developed and presented under the supervision of a physician who is AWC's medical director. The counseling protocols are developed under the supervision of the Patient Services Coordinator. [Court's Exhibit 1 at ¶ 73].
131. There is no minimum education requirement for AWC's counselors. [Court's Exhibit 1-A at ¶ 146].
132. AWC does not accept state appropriated funds. [Court's Exhibit 1-A at ¶ 148].
133. AWC provides information to the National Abortion Federation regarding AWC's complication rate. [Court's Exhibit 1-A at ¶ 149].
134. AWC, prior to 1988, advertised in the newspapers although it does not presently
C. Other Relevant Statistical Evidence.
135. The following table represents the number of abortions performed in Pennsylvania and reported to PaDOH over the past ten years:
NUMBER OF ABORTIONS
YEAR PERFORMED1989 2051,341 1988 50,786 1987 51,360 1986 51,666 1985 53,465 1984 59,258 1983 59,288 1982 60,772 1981 62,701 1980 65,777
[Court's Exhibit 1 at ¶ 76; Trial Testimony of Dr. Potrzebowski, Vol. III at 118; see also Casey I, 686 F.Supp. at 1101 (¶ 95)].
136. Of the 50,786 abortions performed in Pennsylvania in 1988, 47,548 (93.6%) were performed within the first three months of pregnancy. [Court's Exhibit 1 at ¶ 77]. Conversely, 3,238 (6.4%) were performed after the first three months of pregnancy.
137. Plaintiffs are unaware of any free standing abortion clinics in Pennsylvania that perform pregnancy termination procedures after the 18th week of gestation. [Court's Exhibit 1-A at ¶ 109].
138. Patients under the age of 18 accounted for 11.6%, or 5,888 of the abortions reported in Pennsylvania in 1988. [Court's Exhibit 1 at ¶ 78].
139. Of the 50,786 abortions performed in Pennsylvania and reported to PaDOH, 47,802 were performed on Pennsylvania residents. Residents of other states and territories accounted for 2,975 abortions, and residents of other countries accounted for 9. Of the 1988 abortion patients residing in Pennsylvania, 15,269 (30%) resided in Philadelphia; 7,337 (14%) resided in Allegheny County; 2,863 (6%) resided in Montgomery County; 2,270 (4%) resided in Delaware County; and 2,141 (4%) resided in Bucks County. [Court's Exhibit 1 at ¶ 79].
140. The following table represents the numbers of induced terminations of pregnancies performed on minors, as reported to PaDOH, in Pennsylvania in 1988 by age of woman:
AGE (YEARS)NUMBER11 or less 1 12 20 13 113 14 377 15 855 16 1,702 17 2,820
[Court's Exhibit 1 at ¶ 80].
141. During 1989, minor women received abortions at plaintiff-clinics as follows:
CLINIC AGE GROUP NUMBERRHCC 14 years and under — 27 15-17 years — 267 AWC 13 years old — 4 14 years old — 22 15 years old — 71 16 years old — 160 17 years old — 257 WSC 12 years old — 1 13 years old — 6 14 years old — 15 15 years old — 27 16 years old — 66 17 years old — 119 PPSP 12 years old — 2 13 years old — 14 14 years old — 27 15 years old — 80 16 years old — 122 17 years old — 189 WHS 12 years old — 2 13 years old — 11 14 years old — 33 15 years old — 117 16 years old — 226 17 years old — 314
[Court's Exhibit 1-A at ¶ 82].
143. According to the provisional statistical compilations of PaDOH, 391 pregnancy complications were reported in 1989. Of the 391 complications reported in 1989, 5 were caused by malignancy, 7 by endocervical polyps, 3 by rubella, 2 by hydatid moles, and 374 by other causes for which no further statistical breakdown presently exists. [Trial Testimony of Dr. Potrzebowski, Vol. III at 120].
144. The risk of death from an abortion is dependent upon numerous factors, which factors include length of gestation, the type of procedure used to perform the abortion, the medical condition of the patient, and the skill of the physician performing the abortion. [Court's Exhibit 1-A at ¶ 83].
145. From the standpoint of risks of complications and mortality, eight weeks gestation is the safest time, statistically, for the performance of an abortion. [Trial Testimony of Dr. Allen, Vol. I at 46, 71-72]. Beyond eight weeks gestation, the risk of complications (by approximately 30%) and mortality increase (by approximately 50%) with each additional week of gestation. [Trial Testimony of Dr. Allen, Vol. I at 45; Trial Testimony of Dr. Bowes, Vol. III at 54-56].
146. An abortion is twice as safe as a tonsillectomy and 100 times safer than an appendectomy. [Trial Testimony of Dr. Allen, Vol. I at 47]. The following table represents the risk of mortality from an abortion procedure, according to data complied by the Center for Disease Control:
GESTATIONAL NUMBER OF
AGE DEATHS(in weeks) (per 100,000) 8 or less .5 9 to 10 .8 11 to 12 1.1 13 to 15 1.5 16 to 20 7.8 over 20 3.6
[Trial Testimony of Dr. Bowes, Vol. III at 55-56].
D. The Act.
147. On March 25, 1988, Act No. 31, amending the Pennsylvania Abortion Control Act of 1982, 18 Pa.C.S.A. §§ 3201-20, was enacted. Act 31 was scheduled to take effect thirty (30) days after enactment, on April 24, 1988. [Court's Exhibit 1 at ¶ 74].
148. On November 17, 1989, Act No. 64, further amending the Pennsylvania Abortion Control Act of 1982 was enacted. Act 64 was scheduled to take effect sixty (60) days after enactment, on January 16, 1990. [Court's Exhibit 1 at ¶ 75].
(1) Definition of Medical Emergency (Section 3203)
149. Section 3203 of the Act defines the term "medical emergency" as "[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function." 18 Pa.Con.Stat. Ann. § 3203. The Act does not further define the terms "serious risk," "substantial and irreversible impairment," or "major bodily function."
150. This definition applies to the following provisions of the Act containing medical emergency exceptions: section 3205 (informed consent); section 3206 (parental consent or judicial by-pass); section 3209 (spousal notification); section 3210 (determination of gestational age); and 3211 (performance of abortions after 24 weeks gestation). Penalties for violation of these provisions include suspension or revocation of the physician's license or criminal conviction for a third degree felony or third degree misdemeanor.
151. The 1989 amendments to the Act did not change the definition of medical
152. According to the generally accepted definition of a medical emergency in emergency medicine, an emergency is any medical condition that requires intervention, both diagnostic and treatment, quickly. [Trial Testimony of Dr. Davidson, Vol. I at 14-15]. In emergency medicine, it is essential that doctors be flexible in their response to their patients. Every patient is different and each emergency condition presents the physician with a dynamic situation in which judgments must be made quickly and, if necessary, quickly altered or adjusted. [Trial Testimony of Dr. Davidson, Vol. I at 14, 21-22].
153. Pennsylvania's Emergency Medical Services Act defines a medical emergency as "a combination of circumstances resulting in a need for immediate medical intervention." See 35 Pa.Stat.Ann. § 6923 (Purdon 1990 Supp.).
154. The definition of medical emergency in the Act departs from the normal medical definition of an emergency and is inconsistent with that contained in Pennsylvania's Emergency Medical Services Act. [Trial Testimony of Dr. Davidson, Vol. I at 15-17; Trial Testimony of Dr. Bolognese, Vol. I at 142; Preliminary Injunction Hearing Testimony of Dr. Dratman at 61]. Defendants' expert, Dr. Bowes, agrees that the definition of medical emergency in the Act differs from other definitions commonly used in the medical profession. [Trial Testimony of Dr. Bowes, Vol. III at 81-82].
155. No other law infringes so heavily on a physician's discretion to decide when he or she is faced with a medical emergency as the provisions of the Act. [Trial Testimony of Dr. Davidson, Vol. I at 15-16; Trial Testimony of Dr. Bowes, Vol. III at 81-82].
156. Under typical emergency conditions, the definition of "medical emergency" of the Act would cause the physician confusion regarding the proper treatment of the patient and hinder his or her ability to make a rapid response to the detriment of the health of their patient, or it would cause physicians to unknowingly violate the Act by acting in accordance with their medical training and professional judgment rather than conforming to the requirements of the Act. [Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
157. The Act's narrow definition of medical emergency may require a physician to act in ways that do not protect or restore the health of his or her patient in instances where a delay in the abortion procedure will pose a risk to the patient's health, but an immediate abortion may not be necessary to avert her death or to prevent a serious risk of the substantial and irreversible loss of a major bodily function. [Trial Testimony of Dr. Davidson, Vol I at 20-21].
158. The restrictive definition of medical emergency in the Act could exacerbate existing emergency situations. Or the definition could create emergencies because physicians fearful of civil or criminal sanctions under the Act may delay treatment of an emergency or hesitate to act in the best interests of his or her patient. [Trial Testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
159. The definition of medical emergency in the Act permits the physician to exercise his or her "good faith clinical judgment" in determining whether a medical emergency exists. However, this does not alter the fact that a "serious risk of substantial and irreversible impairment of major bodily function" must exist for a situation to constitute a medical emergency under the Act. Nor does it alter the fact that
160. Under no other circumstances would a physician be required to delay treatment when presented with a patient with a risk, as opposed to a "serious risk," of an impairment, as opposed to a "substantial and irreversible impairment," of any bodily function, as opposed to a "major bodily function." Such a requirement is contrary to generally accepted standards of emergency medical care, and interferes with a physician's ability to act in accordance with his best medical judgment.
161. A patient's entitlement to immediate medical care, under the Act, would depend upon the individual physician's assessment of the severity of the condition and whether that physician considered the impairment to be: (1) substantial and irreversible and (2) to a major bodily function. Different interpretations of the Act could result in different patients, with similar or identical symptoms, in need of emergency medical care receiving different treatment. This difference of opinion is amply illustrated by the testimony of Dr. Bowes and Dr. Bolognese. Dr. Bowes, an obstetrician and gynecologist, did not include the uterus or other female reproductive organs within his definition of major bodily function. Dr. Bolognese, also an obstetrician and gynecologist, on the other hand, testified that he would include such organs within this definition. [Trial Testimony of Dr. Bolognese, Vol. I at 142; Trial Testimony of Dr. Bowes, Vol. III at 34-35].
162. Plaintiffs have presented three examples of how the definition of medical emergency contained in the Act may depart from standard medical practice in emergency situations.
163. Frequently pregnant women present themselves to hospital emergency rooms complaining of vaginal bleeding, lower abdominal pain, and progressive cervical dilation, which are the symptoms of an inevitable abortion. In a 40,000 visit a year emergency room, women arrive experiencing inevitable abortions once a week. Dr. Davidson personally treats women suffering from inevitable abortions two or three times a year. Further, this occurrence is sufficiently common to permit medical trainees at the Hospital of the Medical College of Pennsylvania to see an inevitable abortion in the emergency room anywhere between five and fifty times over the course of a three-year program. [Trial Testimony of Dr. Davidson, Vol. I at 22, 26-27].
164. It is common practice for an emergency room physician, when treating a woman with an inevitable abortion, to use an instrument to remove products of conception, including parts of the placenta or fetal parts, to alleviate the bleeding. This would constitute a partial abortion. [Trial Testimony of Dr. Davidson, Vol. I at 23, 26-27].
165. The appropriate and safest treatment for a patient experiencing an inevitable abortion is to empty the uterus immediately by dilating the cervix and evacuating the uterus. Failure to terminate the pregnancy immediately via dilation and curettage, or some other method, could expose the patient to increased risks to her health, including shock and the need for a blood transfusion, as well as continued pain and discomfort. However, with proper treatment, an inevitable abortion is generally not life threatening or likely to cause any permanent physical impairment. [Trial
166. An inevitable abortion is a condition for which immediate medical treatment is required in the exercise of good medical judgment but does not fall within the Act's definition of medical emergency. There is no medical reason to delay the performance of an abortion, when a woman is suffering from an inevitable abortion. Therefore, compliance with the Act would require a departure from standard of care presently existing in medical practice, and could jeopardize the health of pregnant women. [Trial Testimony of Dr. Davidson, Vol. I at 26-28, 34-35].
167. A premature ruptured membrane is another common medical condition which could be suffered by a pregnant woman both before and after the fetus reaches the stage of viability. Between six and ten percent of the births in the United States are premature. Of those premature births, twenty-five to thirty percent of them are preceded by a premature ruptured membrane. Ruptured membranes commonly occur in women of poorer personal health or women with poorer obstetrical care, as well as with drug users or women with poor personal hygiene. [Trial Testimony of Dr. Bolognese, Vol. I. at 148].
168. When an infection occurs after a rupture, the accepted course of treatment is to terminate the pregnancy immediately. Failure to terminate the pregnancy could expose the patient to increased risks to her health, including spread of the infection throughout her body, overwhelming septic infection, shock and disseminated intravascular coagulopathy. [Trial Testimony of Dr. Bolognese, Vol. I at 151-52].
169. For pregnancy of 24 gestational weeks or less, the likelihood of a successful outcome of the pregnancy ranges from extremely poor to impossible because of the absence of amniotic fluid which permits the development of the lungs. Under these circumstances, immediate termination of the pregnancy is usually recommended. [Trial Testimony of Dr. Bolognese, Vol. I at 149-50].
170. The standard method to terminate the pregnancy when infection occurs is a vaginal delivery which is induced by the administration of Pitocin. However, delay could cause the uterus to become infected. An infection in the uterus may hinder the physician's ability to induce labor through the use of Pitocin. In these cases, a vaginal delivery must be utilized, which places the woman at greater risk. In some cases, the physician may have to remove the uterus. [Trial Testimony of Dr. Bolognese, Vol. I at 152-53].
171. Among the patients treated in an obstetrical practice, particularly high risk obstetrics, are pregnant women, including minors, who are experiencing complications known as preeclampsia (toxemia of pregnancy). Preeclampsia is a combination of symptoms related to an immunological disorder which tends to occur more frequently in first time pregnancies and younger patients. The recommended course of treatment is the induction of labor for a vaginal delivery. Delay could worsen maternal health and cause a loss of oxygen to the fetus. Eclampsia, a seizure disorder caused by edema or excess fluid, and HELLP Syndrome, an adult respiratory distress syndrome caused by fluid retention in the lungs, are possible further developments of preeclampsia. While a patient with preeclampsia is at risk, there is no immediate "serious risk of substantial and irreversible impairment of [a] major bodily function." However, once the symptoms manifest themselves, there is no medical reason for delay. [Trial Testimony of Dr. Bolognese, Vol. I at 154-56; Preliminary Injunction Hearing Testimony of Dr. Dratman at 59-61].
172. An example of how the definition of medical emergency in the Act may depart from medical practices is illustrated by the following hypothetical. A 16 year-old woman is 18 weeks pregnant. She is swollen; her blood pressure is elevated; her urine contains a considerable amount of protein; her reflexes are very brisk. She is diagnosed as having a clinical syndrome known as preeclampsia. The only treatment for this condition is to terminate the pregnancy. Under normal obstetrical practice,
173. If required to adhere to the definition of medical emergency contained in the Act, as opposed to the less restrictive definition used by physicians in other circumstances, a physician could delay in his or her treatment, namely the performance of an abortion, of a patient with a ruptured membrane or preeclampsia. Under these circumstances, preeclampsia and a ruptured membrane would not fall within the definition of medical emergency contained in section 3203, but would be considered an emergency warranting immediate treatment by the physician. Therefore, compliance with the Act would require a departure from standard of care presently existing in medical practice, and could ultimately jeopardize the health of the pregnant woman. [Trial Testimony of Dr. Davidson, Vol. I at 26-28, 34-35].
174. While Dr. Bowes testified that he was unaware of any condition where a patient would require an immediate abortion that would not fall within the Act's definition of medical emergency, his testimony on the subject actually supports the opinions of Dr. Davidson and Dr. Bolognese. For example, he testified that a medical emergency within the meaning of the Act would exist when a woman is experiencing an inevitable abortion but only when "serious" hemorrhaging is occurring in the patient. In respect to preeclampsia, he stated that a medical emergency within the meaning of the Act would exist "in the cases in which [preeclampsia] becomes severe" and "the patient's blood pressure is very high and other complications are occurring." When discussing a ruptured membrane, he stated that this condition only becomes a medical emergency within the meaning of the Act when the patient develops a fever and the infection reaches the fetus. [Trial Testimony of Dr. Bowes, Vol. III at 37-42]. The credible testimony of Dr. Davidson, Dr. Bolognese and Dr. Dratman establishes that, viewing the term with the ordinary meaning given to it in the profession, the Act would not consider any of the three aforementioned conditions an emergency until much later in the progression of the seriousness of the condition.
(2) Informed Consent and Twenty-Four Hour Waiting Period (Section 3205)
175. Section 3205(a) of the Act, as amended, reads, in pertinent part, as follows:
18 Pa.Con.Stat.Ann. § 3205(a).
176. The 1989 amendments substantially alter the earlier 1988 amendments to subsections (a) and (c) of section 3205. See 1988 Pa.Laws 262, 263-65, § 4. In Act 64, the legislature essentially reenacted most aspects of the 1982 version of the Act found unconstitutional in prior litigation. For example, the 1982 version of section 3205 required a 24-hour waiting period, required a doctor only to advise the woman of (1) the nature and risks of the proposed procedure, (2) the gestational age of the unborn child, and (3) the medical risks associated with carrying the child to term, and required someone to advise the woman of the availability of (1) medical assistance benefits, (2) a list of agencies which offer alternatives to abortion, (3) printed materials describing the fetus at various different stages, and (4) paternal liability to assist in the support of her child. See 1982 Pa.Laws 476, 479-81, § 1.
177. Section 3208(a) of the Act, as amended, requires PaDOH to prepare, publish and update on an annual basis easily comprehensible printed materials which would comply with the informed consent requirements of section 3205(a). The printed information must be prepared in English, Spanish and Vietnamese. See 18 Pa. Con.Stat.Ann. § 3208(a). All materials must be printed in typeface large enough to be clearly legible, 18 Pa.Con.Stat.Ann. § 3208(b), and available at no cost from PaDOH to any person, facility or hospital. 18 Pa.Con.Stat.Ann. § 3208(c).
178. The 1989 version of section 3208 is virtually identical to the version of this section as it existed in 1988. However, Act 64 eliminated the requirement that the materials concerning the availability of social service agencies contain the following statement:
See 1988 Pa.Laws 262, 268-69, § 4. The earlier version of section 3208 is similar to the existing version to the extent that it requires the preparation of "[g]eographically indexed materials designed to inform the woman" of agencies available that provide alternatives to abortion and "[m]aterials designed to inform the woman of the probable anatomical and physiological characteristics of the child at two-week gestational increments." See 1982 Pa.Laws 476, 483-84, § 1.
179. If all provisions of section 3205 were to go into effect, defendants intend to require the use of a notice form prepared by PaDOH by all abortion providers during the informed consent process. The notice reads as follows:
[Trial Testimony of Dr. Potrzebowski, Vol. III at 112-13, 136-37; Defendants' Exhibit 51].
180. If all provisions of section 3205 were to go into effect, defendants intend to require the use of a form which reads as follows:
[Trial Testimony of Dr. Potrzebowski, Vol. III at 112, 136-37; Defendants' Exhibit 50].
181. In anticipation of the possibility that section 3205 will be permitted to go into effect, a "Directory of Social Service Organizations" to be provided to women seeking an abortion was prepared by PaDOH. For each county in Pennsylvania, the Directory provides a list of agencies that "provide a variety of services which may assist a woman through pregnancy, upon childbirth, and while the child is dependent." Examples of services provided by these agencies are "counseling, pregnancy testing, medical care, legal and financial assistance, transportation, childbirth instruction, housing, job placement, continuing education and adoption information." [Trial Testimony of Dr. Potrzebowski, Vol. III at 111; Defendants' Exhibit 49 at 1].
182. The PaDOH-created-list of social service organizations does not include, particularly for Monroe County and Allegheny County, some agencies that provide services to pregnant women. The list also includes crisis pregnancy centers and other organizations which provide women with misinformation and inflammatory literature which increases pre-abortion anxiety. [Trial Testimony of Ms. Roselle, Vol. II at 87-89, 91-92, 112; Trial Testimony of Ms. Dillon, Vol. III at 159-60].
183. Nothing in the Act prohibits abortion providers that would be required to supply this list to abortion patients from recommending a patient avoid a particular agency on the list. Nor does anything in
184. Nothing in the record suggests that the Directory could not be supplemented by PaDOH to include those agencies omitted from the list.
185. The informed consent requirements of the Act represent a substantial departure from the ordinary medical requirements of informed consent. [Trial Testimony of Dr. Bowes, Vol. III at 71].
186. "Informed consent" as used in section 3205 has a medically and legally distinct meaning which is different than simple "consent." [Trial Testimony of Dr. Grodin, Vol. I at 96-97].
187. As a general rule, informed consent requires communications between the doctor or counselor and patient to assure that the patient has made a treatment choice based upon knowledge of his or her condition, the benefits and risks of a particular treatment and its alternatives. In order to be informed, consent must be made voluntarily and competently. [Trial Testimony of Dr. Grodin, Vol. I at 96-97; Trial Testimony of Dr. Allen, Vol. I at 40-41].
188. Although the informed consent dialogue may be brief (the length of the dialogue will depend in a great part upon the complexity of the procedure contemplated), personal contact between the patient and the person rendering the informed consent is essential. The physician's or counselor's observation of the person's demeanor and reactions to medical information provided is essential to permit the physician or counselor to determine whether the patient is competent to give informed consent and whether the patient fully understood the information imparted during the dialogue. Further, personal contact is necessary to determine whether the patient is under duress from extrinsic sources while providing informed consent. [Trial Testimony of Dr. Allen, Vol. I at 41; Trial Testimony of Dr. Grodin, Vol. I at 99-105]. Even defendants' expert witness testified that telephone informed consent could only be justified, if subsequent face-to-face contact occurs. [Trial Testimony of Dr. Bowes, Vol. III at 69].
189. A patient's informed consent cannot be obtained through the use of a tape recorded message or printed materials. [Trial Testimony of Dr. Allen, Vol. I at 42; Trial Testimony of Dr. Grodin, Vol. I at 104].
a. The Twenty-Four Hour Waiting Period.
190. ACOG has taken an official position in opposition to a mandatory 24-hour waiting period. [Trial Testimony of Dr. Allen, Vol. I at 47].
191. A very small percentage of women are ambivalent concerning whether to have an abortion when they come to a clinic. Arrangements for special counseling sessions are made for women demonstrating any ambivalence about her decision. [Trial Testimony of Dr. Allen, Vol. at 44-45; Trial Testimony of Ms. Roselle, Vol. II at 77].
192. If a patient is ambivalent about having an abortion and decides to postpone the procedure to have additional counseling, that will cause a delay in the performance of the abortion. [Court's Exhibit 1-A at ¶ 98].
193. If it were to go into effect, the 24-hour waiting period of the Act will force every women seeking an abortion in Pennsylvania to make a minimum of two visits to an abortion provider. [Trial Testimony of Ms. Roselle, Vol. II at 80-81].
194. Two trips to the abortion provider would subject many women to the harassment and hostility of anti-abortion protestors demonstrating outside a clinic, such as WHS, on two separate occasions. [Trial Testimony of Dr. Allen, Vol. I at 43].
195. Because most of plaintiff-clinics and plaintiff-physicians do not perform abortions on a daily basis, the mandatory 24-hour waiting period will result in delays far in excess of 24 hours. For the majority of women in Pennsylvania, delays will range from 48 hours to two weeks. [Trial Testimony of Ms. Roselle, Vol. II at 81-82, 106].
197. The mandatory 24-hour waiting period would force women to double their travel time or stay overnight at a location near the abortion facility. This will necessarily add either the costs of transportation or overnight lodging or both to the overall cost of her abortion. Additionally, many women may lose additional wages or other compensation as a result of the mandatory 24-hour delay, if forced to miss work on two separate occasions. Two trips to the abortion provider may cause the women to incur additional expenses for food and child care.
198. The costs incident to obtaining an abortion, excluding the actual cost of the procedure itself, will be greater if the 24-hour waiting period were to go into effect.
199. The mandatory 24-hour waiting period will be particularly burdensome to those women who have the least financial resources, such as the poor and the young, those women that travel long distances, such as women living in rural areas, and those women that have difficulty explaining their whereabouts, such as battered women, school age women, and working women without sick leave.
200. In some cases, the delays caused by the 24-hour waiting period will push patients into the second trimester of their pregnancy substantially increasing the cost of the procedure itself and making the procedure more dangerous medically.
201. A delay of 24 hours will have a negative impact on both the physical and psychological health of some patients, as well as increase the risk of complications. [Trial Testimony of Dr. Allen, Vol. I at 88; Trial Testimony of Dr. Walker, Vol. II at 42-43].
202. While an abortion is still substantially safer than carrying a pregnancy to term, after the eighth week of the pregnancy, delay in the performance of the abortion increases the risk of death to the woman. [Trial Testimony of Dr. Allen, Vol. I at 45; Trial Testimony of Dr. Bowes, Vol. III at 54-56]. A substantial increase in the risk of death from an abortion procedure occurs when the pregnancy moves from the earlier stages of the second trimester to the middle portion of the second trimester (16 to 20 weeks of gestation). [Trial Testimony of Dr. Bowes, Vol. III at 56].
203. A mandatory 24-hour waiting period between the receipt of informed consent information and the performance of the abortion serves no legitimate medical interest. If a physician has concluded that any other type of obstetrical or gynecological procedure is medically necessary and has obtained the informed consent of the patient, there is simply no medical reason to delay performance of the procedure any longer. [Trial Testimony of Dr. Allen, Vol. I at 43; Trial Testimony of Dr. Grodin, Vol. I at 118-19; Trial Testimony of Dr. Bolognese, Vol. I at 145-46].
b. Physician-Only Disclosure Requirements.
204. Prior to performing an abortion, trained counselors at plaintiff-clinics or plaintiff-physicians provide a patient with options counseling and obtain her informed consent to the procedure. [Trial Testimony of Dr. Allen, Vol. I at 44, 51; Trial Testimony of Ms. Roselle, Vol. II at 77-80, 113-15; Preliminary Injunction Hearing Testimony of Ms. Stengle at 26-27; see also Findings of Fact at ¶¶ 26-27, 50, 86-88, 100-01, 128-30].
205. ACOG and the American Public Health Association have taken an official position in favor of the use of trained, qualified counselors to provide informed consent information concerning abortions. [Trial Testimony of Dr. Allen, Vol. I at 52].
206. In the last twenty years, the field of medicine has broadened and increased in complexity causing an increase in medical
207. In the field of obstetrics and gynecology, a significant portion of patient care is routine, non-emergent and can be provided as effectively by trained counselors as by licensed physicians. [Trial Testimony of Dr. Allen, Vol. I at 52-53]. This is particularly true with respect to the performance of abortions.
208. Trained counselors, such as those employed or utilized on a volunteer basis by plaintiff-clinics and plaintiff-physicians, are fully capable, by virtue of their training and experience, to provide information to patients, to discuss the alternatives to abortion with the patient, and to secure the patient's informed consent to the abortion procedure. [Trial Testimony of Dr. Allen, Vol. I at 51; Trial Testimony of Ms. Roselle, Vol. II at 78-79; Preliminary Injunction Hearing Testimony of Ms. Stengle at 27].
209. None of the plaintiffs have physicians who perform abortions without the physician talking to the patient before the abortion procedure. [Court's Exhibit 1-A at ¶ 88].
210. Requiring physicians to give information personally will leave the physician less time to provide the medical services which he or she, as a licensed physician, can provide. [Trial Testimony of Dr. Allen, Vol. I at 51].
211. In many instances, trained counselors, who are women, are more understanding than physicians and have more time to spend with patients. Further, it is more economical for the plaintiff-clinics to utilize trained counselors to provide options counseling and informed consent information to patients seeking an abortion. If the physician-only disclosure requirements become law, the added costs incurred by abortion providers will be imposed upon the women seeking abortions. [Trial Testimony of Dr. Allen, Vol. II at 51].
212. The requirement of section 3205 that physicians personally provide information necessary for informed consent will require extensive changes in the operating schedules of plaintiff-clinics and plaintiff-physicians. Physicians' schedules will need to be expanded to include additional medical consultation and counseling sessions which would be required by the Act
213. The state's interest in ensuring that a woman's consent to an abortion procedure is informed and unpressured is in no way furthered by mandating the identity of the person that must obtain the informed consent. The state's interest is satisfied when a woman gives her informed consent to the procedure and receives any necessary counseling from a trained, qualified person, such as the counselors utilized by plaintiff-clinics.
c. Content-Based Informed Consent.
214. Content-based informed consent is the supply of specific information to all patients regardless of the specific circumstances and needs of each individual patient. Content-based informed consent is contrary to the standard medical practice that informed consent be specifically tailored to the needs of the specific patient. [Trial Testimony of Dr. Grodin, Vol. I at 101-02, 107].
215. Medical practice requires that the informed consent dialogue between physician or counselor and patient be specifically tailored to the needs of the patient — rather than a "reasonable patient." [Trial Testimony of Dr. Grodin, Vol. I at 107].
217. Section 3205(d) may actively discourage the free flow of information during the informed consent dialogue by relieving any physician "who complies with the provisions" of section 3205 from civil liability for failure to obtain informed consent. This may provide some physicians with an incentive to limit their informed consent dialogue to the four corners of section 3205 in an effort to avoid civil liability. [Trial Testimony of Dr. Allen, Vol. I at 59-60; Trial Testimony of Dr. Grodin, Vol. I at 117-18].
218. For many women, the medical information required by section 3205 is over inclusive. For example, the Act requires a disclosure of medical risks of carrying a pregnancy to term. If a woman has decided that abortion is in her best interests, no legitimate purpose is served by informing her of maternal mortality statistics or that many women require caesarian sections at the time of delivery. [Trial Testimony of Dr. Allen, Vol. I at 55; Trial Testimony of Dr. Grodin, Vol. I at 105-06, 108-09]. Similarly, a physician would not advise a woman who has decided to carry her pregnancy to term of the risks associated with an abortion procedure. [Trial Testimony of Dr. Allen, Vol. I at 54].
219. Prior to the scheduling of an appointment with an abortion provider, most women have already decided that an abortion is in their best interest. [Trial Testimony of Ms. Roselle, Vol. II at 109; Trial Testimony of Dr. Allen, Vol. I at 43-44]. For many women, the decision to have an abortion is a decision which they reach only after a good deal of careful thought, consultation with a family member or other trusted individual, or a medical provider. [Trial Testimony of Ms. Roselle].
220. In some cases, merely offering a woman the opportunity to read materials and examine pictures designed to inform her of the probable anatomical and physiological characteristics of the fetus at two week gestational increments and of the possibility of the unborn child's survival, as well as a state created list of agencies that will assist her in carrying her pregnancy to term, will create undesirable and unnecessary anxiety, anguish and fear. [Trial Testimony of Dr. Grodin, Vol. I at 109-10; Trial Testimony of Ms. Roselle, Vol. II at 91-92, 112].
221. The mandated information required by sections 3205 and 3208 will create the impression in women that the Commonwealth disapproves of the woman's decision. The information and material required by these sections is an attempt by the Commonwealth to alter a woman's decision after she has determined that an abortion is in her best interest.
222. Once the decision to terminate the pregnancy is made by a woman, requiring physicians or counselors to provide the information required by section 3205 and to offer exposure of the literature required by section 3208 will undermine the physician's or counselor's ability to counsel a patient according to her individual needs and will force the physician or counselor to act in a manner inconsistent with their professional judgment and training. [Trial Testimony of Dr. Grodin, Vol. I at 109-10; Trial Testimony of Ms. Roselle, Vol. II at 84].
223. Informing women of the availability of medical assistance benefits or paternal support for the child has no legitimate medical justification. Such information may mislead or confuse the patient, and, in the vast majority of the cases, is plainly inappropriate given the circumstances of the individual patient. [Trial Testimony of Dr. Allen, Vol. I at 56; Trial Testimony of Dr. Grodin, Vol. I at 110-11; Trial Testimony of Ms. Roselle, Vol. II at 83-85, 90].
224. The circumstances under which medical assistance benefits or child support
225. The requirements that a woman be advised that medical assistance benefits or child support payments may be available, as well as some of the other information required to be offered by section 3205, are poorly veiled attempts by the Commonwealth to disguise elements of discouragement of the abortion decision.
226. The requirement that a specific body of information be given in all cases, regardless of the individual needs of the patient, intrudes upon the discretion of the physician and the woman's decision-making process. [Trial testimony of Dr. Grodin, Vol. I at 99-102].
227. Section 3205's imposition of criminal penalties
228. Fear of criminal sanctions by counselors or doctors will cause abortion providers to apply section 3205 with extreme caution. Some doctors may discontinue performing abortion procedures. [Trial testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
(3) Parental Consent (Section 3206)
229. Section 3206 of the Act, as amended by Act 31, provides, in pertinent part, as follows:
See 18 Pa.Con.Stat.Ann. § 3206(a) (emphasis added).
230. This section of the Act was not altered by the 1989 amendments to the Act. However, this section is distinct from the version that existed in 1982 inasmuch as the earlier version only required the "consent" of the pregnant woman and one of her parents — as opposed to the "informed consent" of both individuals. See 1982 Pa. Laws 476, 481-83, § 1.
231. Inasmuch as this section of the Act requires the "informed consent" of the parent and the pregnant woman, my earlier findings pertaining to informed consent apply with equal force to this section. Therefore, they shall be incorporated by reference herein.
232. The Act does not separately define "informed" parental consent. The Act does not explicitly state that the parent must visit the clinic personally in order to give his or her informed parental consent.
233. ACOG has taken a position against forced parental notification by minors. [Trial Testimony of Dr. Allen, Vol. I at 65].
234. Clinics in Pennsylvania that offer abortion counseling services and abortion services encourage parental involvement in the minor's decision to have an abortion whenever possible. [Verification of Ms. Roselle at ¶¶ 10, 20; Preliminary Injunction Hearing Testimony of Ms. Stengle at 28; Verification of Ms. Stengle at ¶¶ 12, 19; see
235. There can be delays in performing an abortion on a minor who chooses to wait for her parent to be able to come to the clinic, which delay can exceed two weeks. [Court's Exhibit 1-A at ¶ 100].
236. Most minors come to a clinic in the company of an adult, even if not a parent. [Trial Testimony of Dr. Allen, Vol. I at 64].
237. Approximately 54% of AWC's minor patients have parental consent for abortions. In all cases, AWC requires that some adult is available to care for the minor patient. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 28-29].
238. Under Act 31, and in accordance with standard medical principles of informed consent, the plaintiff-clinics intend to require in-person consultation with the parent to assure the parent's consent is informed. Plaintiff-clinics consider it necessary to require in-person parental informed consent to avoid the heightened risk of criminal and civil liabilities. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 11; Preliminary Injunction Hearing Testimony of Ms. Stengle at 30-31; Verification of Ms. Roselle at ¶ 21; Verification of Ms. Stengle at ¶ 25].
239. The plaintiff-clinics are unwilling to secure parental informed consent over the telephone, or by any means other than an in-person visit to the clinic. [Trial Testimony of Ms. Roselle, Vol. II at 81; Preliminary Injunction Hearing Testimony of Ms. Roselle at 10; Preliminary Injunction Hearing Testimony of Ms. Stengle; Verification of Ms. Roselle at ¶ 21].
240. An in-person visit by a parent for informed consent counseling may cause delays of several days or possibly weeks, even in cases where the parent is prepared to consent. [Verification of Ms. Stengle at ¶¶ 24, 26, 28; Verification of Ms. Roselle at ¶ 24].
241. Delays in obtaining parental consent could be both dangerous and prohibitive since a substantial number of minors decide to have an abortion much later in their pregnancy. [Trial Testimony of Dr. Allen, Vol. I at 63; Preliminary Injunction Hearing Testimony of Ms. Roselle at 14; Verification of Ms. Roselle at ¶ 24; Verification of Ms. Stengle at ¶ 28].
242. Adolescents as a group are generally more reluctant to initiate contact with an unfamiliar group or organization. For this reason, a pregnant minor may delay the initial step of contacting the clinic until further into their pregnancies. [Verification of Ms. Roselle at ¶ 27; Verification of Ms. Stengle at ¶ 33].
243. Adolescents as a group tend to deny their pregnancies out of guilt and postpone making any decisions as to what course of action is in their best interests. [Trial Testimony of Dr. Allen, Vol. I at 63; Verification of Ms. Stengle at ¶ 33].
244. Many adolescents are unaware of their pregnancy for weeks or months because of ignorance about their menstrual cycles, pregnancy and their own irregular menstrual cycles. [Trial Testimony of Dr. Allen at 63].
245. Further delays can arise from a minor's fear and hesitation in divulging to her parents: first, she has been sexually active; second, that she is pregnant, and third, that she wishes to have an abortion. Because of the disruption and trauma associated with these disclosures, a minor will delay telling her parents that she is pregnant for days or even weeks. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 14; Preliminary Injunction Hearing Testimony of Ms. Stengle at 29; Verification of Ms. Stengle at ¶ 30].
246. The clinics often find themselves having to expedite a minor's testing, counseling and procedure because the minor has delayed going to the clinic until she is near or into the second trimester of her pregnancy. [Trial Testimony of Dr. Allen, Vol. I at 63; Trial Testimony of Ms. Roselle; Preliminary Injunction Hearing Testimony of Ms. Roselle at 15].
247. The additional costs, burdens and delays incurred by minors and her parents, if the parent is required to make an in-person
248. More second trimester abortions are performed on minors in the United States than any other age group. [Verification of Ms. Stengle at ¶ 33]. Late abortions, particularly second trimester abortions, pose a greater risk to the woman's health. [Trial Testimony of Dr. Allen, Vol. I at 46-47; Trial Testimony of Dr. Bowes, Vol. III at 55-58; Preliminary Injunction Hearing Testimony of Ms. Stengle at 37; Verification of Ms. Stengle at ¶ 34]. Because teenagers have never experienced a prior dilation of the cervix, later abortions can be an especially dangerous procedure for them. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 37].
249. Many minors have great difficulty tolerating scheduling difficulties and delay. They tend to postpone the abortion decision because of fear and anxiety. Thus, once the decision has been made, they are likely to react negatively to scheduling delay and obstacles in obtaining an abortion. Some may lie about their age to attempt to avoid the requirements of section 3206; others may decide to carry their pregnancy to term; and some may resort to self-abortion. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 37-38].
250. In some cases, where parents are prepared to consent, he or she will be unable to come to the clinic for several days for the necessary counseling because of work schedules, family obligations, travel distance, or other commitments. [Verification of Ms. Stengle at ¶ 26; Verification of Ms. Roselle at ¶ 21]. Still in other cases, a parent may refuse to accompany their daughter to the facility even though he or she has agreed to consent to the daughter's abortion. [Trial Testimony of Ms. Roselle, Vol. II at 92-93].
251. Implementation of parental informed consent requirements of the Act will create scheduling and administrative difficulties for plaintiff-clinics and alter their current practices and procedures drastically. Counseling sessions will have to be scheduled at times and on days not presently within their staffing capabilities to accommodate the schedules of parents of minor patients. [Verification of Ms. Roselle at ¶¶ 22-23; Verification of Ms. Stengle at ¶¶ 27].
252. If the parental consent provision of the Act goes into effect, PPSP will counsel parents who attend with their minor child at the same time they counsel the minor. [Court's Exhibit 1-A at ¶ 118].
253. If the parental consent provision of the Act goes into effect, parents may receive counseling sessions at any of PPSP's clinics. [Court's Exhibit 1-A at ¶ 119].
254. The requirement of parental informed consent for minor women seeking abortions adds significant expense and delay to the expense and delay already existing in the Act. Taken together, the provisions of the Act, as applied to minors, will create layers of obstacles which could unduly burden a minor woman's ability to get an abortion. [Trial Testimony of Ms. Roselle, Vol. II at 81-82].
255. The additional financial cost of travel, lost wages and child care expenses incurred by minors and their parents because of the parental informed consent requirements of the Act would unduly burden a minor woman's ability to get an abortion. In some cases, the provisions may act in such a way as to deprive her of her right to have an abortion. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 14-15; Preliminary Injunction Hearing Testimony of Ms. Stengle at 35; Verification of Ms. Roselle at ¶ 25].
256. In order to avoid the risk of criminal or civil penalties, the plaintiff-clinics and plaintiff-physicians will be extremely conservative as to their requirements for proof of age and parenthood. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 31; Preliminary Injunction Hearing Testimony of Ms. Roselle at 10; Verification of Ms. Stengle at ¶ 31; Verification of Ms. Roselle at ¶ 26].
257. On many occasions, members of the public enter plaintiff-clinics posing as clients or pregnant women seeking information about abortion in order to scrutinize the procedures and controls in effect at the
258. Plaintiff-clinics reasonably fear that members of anti-abortion groups will send minors to the clinic posing as patients to test the clinic's compliance with section 3206. [Preliminary Injunction Hearing Testimony of Ms. Roselle].
259. All of the clinics anticipate increased expenses resulting from the parental consent provisions of section 3206. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 14; Verification of Ms. Stengle at ¶ 32].
260. Pennsylvania law governing consent for medical or health services on minors provides as follows:
35 Pa.Stat.Ann. § 10101 (Purdon 1977). Further, a minor parent may give effective consent to medical, dental or health services for his or her child. See 35 Pa.Stat.Ann. § 10102.
261. Pennsylvania law governing consent for medical or health service on pregnant minors provides as follows:
35 Pa.Stat.Ann. § 10103.
262. Finally, 35 Pa.Stat.Ann. § 10104 states:
263. Section 3206(b), regarding "Unavailability of parent or guardian," provides:
18 Pa.Con.Stat.Ann. § 3206(b).
264. In part because of the failure to define the terms "reasonable time," "reasonable manner," and "person standing in loco parentis," the plaintiff-clinics will likely take a conservative approach in applying section 3206(b).
265. Many of the plaintiff-clinic's patients are minors who live with non-parents, such as aunts, grandmothers or siblings. Often the arrangement is an informal one rather than a legal guardianship, with natural parents living in another city or perhaps having abandoned the minor. The plaintiff-clinics intend to be wary of permitting the adult "caretaker" to consent to the minor's abortion for fear of criminal or civil sanctions if officials believe that the parents could have been available in a reasonable time and manner. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 32-33].
266. The provisions of section 3206 relating to the judicial by-pass procedure are self-executing on their face. There was no testimony at the trial concerning whether the various Courts of Common Pleas in Pennsylvania were adequately prepared to implement the judicial by-pass procedures and protect the confidentiality of minors availing themselves of these procedures.
(4) Spousal Notification (Section 3209)
267. Pertinent portions of section 3209 read as follows:
18 Pa.Con.Stat.Ann. § 3206(a) — (c). The husband notification provisions of this section are new to the Act.
268. "Spousal sexual assault" is defined as follows:
18 Pa.Con.Stat.Ann. § 3128 (1990 Supp.).
269. If the husband notification provisions of the Act were to go into effect, PaDOH has prepared a form to be filled out by married women seeking an abortion prior to performance of the procedure. This form reads as follows:
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH ABORTIONS: SPOUSAL NOTICE
CERTIFICATION REGARDING SPOUSAL NOTICEI understand that as a married woman, I am required to notify my spouse of the fact that I am about to undergo an abortion, prior to obtaining such abortion, unless I am exempt from the notification requirements due to one of the reasons set forth below. Pursuant to this requirement, I hereby certify that: CHECK APPROPRIATE BLANK(S) ____ I have notified my spouse that I am about to undergo an abortion. ____ I have not notified my spouse that I am about to undergo an abortion for the following reason(s):
____ My spouse is not the father of the child. ____ My spouse, after diligent effort, could not be located. ____ The pregnancy is a result of spousal sexual assault which has been reported to a law enforcement agency having the requisite jurisdiction. ____ I have reason to believe that the furnishing of notice to my spouse is likely to result in the infliction of bodily injury upon me by my spouse or by another individual. I understand that any false statement made herein is punishable by law. __________________ Signature/Date
NOTICE: ANY FALSE STATEMENT MADE HEREIN IS PUNISHABLE BY LAW.
[Trial Testimony of Dr. Potrzebowski, Vol. III at 111; Defendants' Exhibit 48].
270. Dr. Potrzebowski was unable to explain why the Commonwealth felt it necessary to include the warning against criminal penalties on the spousal notice twice. [Trial Testimony of Dr. Potrzebowski, Vol. II at 134-35].
271. The woman making a false statement under section 3209 is subject to the penalties for a third degree misdemeanor. The physician is subject to license suspension or revocation and civil or criminal penalties for violation of this provision. See 18 Pa.Con.Stat.Ann. § 3209(e).
272. ACOG has taken an official position against forced husband notification. [Trial Testimony of Dr. Allen, Vol. I at 66].
273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy. [Trial Testimony of Ms. Roselle, Vol. II at 67-68].
274. The requirement that a married woman notify her husband prior to having an abortion will cause delay in performance of the abortion procedure. Those women without full knowledge of the provisions of the Act will be required to make two visits to the abortion provider.
275. The Act does not define the term "after diligent effort" contained in 18 Pa. Con.Stat.Ann. § 3209(b)(2).
276. The requirement that a woman make a "diligent effort" to locate her husband in order to comply with section 3209 will delay compliance with section 3209. [Trial Testimony of Dr. Walker, Vol. II at 46].
277. The criminal and civil penalties of section 3209 will force physicians and counselors to interpret "diligent effort" in a narrow fashion in order to avoid civil and criminal liability, and to counsel the patient properly so that the patient would not be subject to criminal penalties. [Trial Testimony of Dr. Davidson, Vol. I at 34-35; Trial Testimony of Dr. Bolognese, Vol. I at 143-44].
278. Section 3209(b)(4) only permits a woman to claim an exception from husband notification when she has reason to believe she is in danger of the infliction of bodily injury upon her by her husband or by another individual.
279. The "bodily injury" exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (1) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children. [Trial Testimony of Dr. Walker, Vol. II at 23, 50].
280. Because of the difference in the definition of abuse, a woman protected from her husband by a restraining order pursuant to the Protection From Abuse Act
281. Studies reveal that family violence occurs in two million families in the United States. This figure, however, is a conservative one that substantially understates (because battering is usually not reported until it reaches life-threatening proportions) the actual number of families affected by domestic violence.
282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband's illness, concern about her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion. [Trial Testimony of Ms. Roselle, Vol. II at 69-70].
283. The required filing of the spousal consent form would require plaintiff-clinics to change their counseling procedures and force women to reveal their most intimate decision-making on pain of criminal sanctions. The confidentiality of these revelations could not be guaranteed, since the woman's records are not immune from subpoena. [Trial Testimony of Ms. Roselle, Vol. II at 71-72].
284. Women of all class levels, educational backgrounds, and racial, ethnic and religious groups are battered. [Trial Testimony of Dr. Walker, Vol. II at 14].
285. Wife-battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous. [Trial Testimony of Dr. Walker, Vol. II at 15; Trial Testimony of Ms. Dillon, Vol. III at 147-48].
286. Married women, victims of battering, have been killed in Pennsylvania and throughout the United States. [Trial Testimony of Dr. Walker, Vol. II at 17, 22].
287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation. [Trial Testimony of Dr. Walker, Vol. II at 12-14, 17; Trial Testimony of Ms. Dillon, Vol. III at 155-56].
288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife. [Trial Testimony of Dr. Walker, Vol. II at 12; Trial Testimony of Ms. Dillon, Vol. III at 151-52].
289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. [Trial Testimony of Dr. Walker, Vol. II at 41, 44; Trial Testimony of Ms. Dillon, Vol. III at 144]. The battering husband may deny parentage and use the pregnancy as an excuse for abuse. [Trial Testimony of Ms. Dillon, Vol. III at 144].
290. Secrecy typically shrouds abusive families. Family members are instructed not to tell anyone, especially police or doctors, about the abuse and violence. Battering husbands often threaten their wives or her children with further abuse if she tells an outsider of the violence and tells her that nobody will believe her. A battered woman, therefore, is highly unlikely to disclose the violence against her for fear of retaliation by the abuser. [Trial Testimony of Dr. Walker, Vol. II at 48; Trial Testimony of Ms. Dillon, Vol. III at 150-51, 160-62].
291. Even when confronted directly by medical personnel or other helping professionals, battered women often will not admit
292. Battered women are monitored very closely by their abusers. Battered women are often expected to explain any absence from the home or work. Therefore, the opportunities of battered women to disclose battering to others are few, if any. [Trial Testimony of Dr. Walker, Vol. II at 19, 43; Trial Testimony of Ms. Dillon, Vol. III at 157, 162-63].
293. Battered women would find it extremely difficult to get to an abortion clinic because of the problem of accounting for her time. A 24-hour waiting period would be especially harsh upon battered women, since she would have to make two trips to the clinic. [Trial Testimony of Dr. Walker, Vol. II at 57; Trial Testimony of Ms. Dillon, Vol. III at 157].
294. A woman in a shelter or safe house unknown to her husband is not "reasonably likely" to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.
295. Marital rape is rarely discussed with others or reported to law enforcement authorities, and of those reported only few are prosecuted. [Trial Testimony of Dr. Walker, Vol. II at 23, 47, 48; Trial Testimony of Ms. Dillon, Vol. III at 154-55].
296. It is common for battered women to have sexual intercourse with their husbands to avoid being battered. While this type of coercive sexual activity would be spousal sexual assault as defined by the Act, many women may not consider it to be so and others would fear disbelief. [Trial Testimony of Dr. Walker, Vol. II at 22, 47-48, 55; Trial Testimony of Ms. Dillon, Vol. III at 155-56].
297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute, 18 Pa.Con.Stat.Ann. § 3128(c), further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident. [Trial Testimony of Dr. Walker, Vol. II at 13].
298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of whether the section applies to them. [Trial Testimony of Dr. Walker, Vol. II at 46-49].
299. Battered women are often victims of psychological abuse, including verbal degradation, food and sleep deprivation, isolation and monitoring. This psychological abuse would fall within the definition of psychological torture utilized by Dr. Walker and Amnesty International. However, such abuse does not fall within any exception to the husband notification requirement in the Act. [Trial Testimony of Dr. Walker, Vol. II at 18-19].
300. Battered women who experience serious psychological abuse, who are sexually abused by a way not covered by the sexual assault statute, and who are fearful of the physical and sexual abuse of their children would not be covered by the exceptions to the Act. [Trial Testimony of Dr. Walker, Vol. II at 48-50].
301. Physical and sexual abuse of children is an aspect of the battering relationship in over half of the cases studies by Dr. Walker. In addition, many batterers use economic coercion against women and children. [Trial Testimony of Dr. Walker, Vol. II at 20].
302. Many medical and surgical procedures, including, but not limited to, sterilization, prostate operations and chemotherapy, affect the capacity of males to have children within the marriage. The Commonwealth does not require that a husband
303. Women unable to reveal the battering or leave a battering relationship suffer from the psychological manifestations of battery called "battered women syndrome." Battered women syndrome is one form of Post-Traumatic Stress Disorder ("PTSD"), as defined in The Diagnostic and Statistical Manual of Mental Disorders, 3d edition (revised). [Trial Testimony of Dr. Walker, Vol. II at 30-31; Plaintiffs' Exhibit 89].
304. Among the psychological manifestations of PTSD in the case of battered women are "learned helplessness" and "the cycle of violence." [Trial Testimony of Dr. Walker, Vol. II at 24, 30-31].
305. Under the theory of learned helplessness, the battered woman develops a coping strategy, rather than an escaping mechanism, when she learns that her responses to the random and variable levels of abuse will not make a difference. [Trial Testimony of Dr. Walker, Vol. II at 24-30].
306. The battering ordinarily involves a three-phase recurring cycle of violence. First, there is a period of increasing tension in which the abusive behavior can be classified as mild or moderate on a scale of one to ten. This is followed by a period of acute battering during which the battering can attain life-threatening or endangering proportions. Lastly, the battering relationship enters into a period of "loving contrition." The final stage reinforces and perpetuates the violence and the relationship. [Trial Testimony of Dr. Walker, Vol. II at 30-34; Plaintiffs' Exhibit 88].
307. Due to learned helplessness and the cycle of violence, battered women deny and minimize the abuse in order to avoid the pain associated with discussing it. Most battered women do not have the psychological ability to avail themselves of the exceptions of section 3209. [Trial Testimony of Dr. Walker, Vol. II at 40-41, 49].
308. A woman's personal perception of the consequences which will likely result from notifying her husband is likely to be accurate. [Trial Testimony of Dr. Walker, Vol. II at 45]. Forced husband notification would not improve communication within a battering relationship nor improve the marital integrity. Instead, it would foster negative and abusive communication and increase the likelihood that a woman would be seriously battered. Dr. Walker likened forced husband notification in a battering situation to providing the husband with a hammer with which he can beat his wife. [Trial Testimony of Dr. Walker, Vol. II at 44-46, 50].
(5) Determination of Gestational Age (Section 3210)
309. Section 3210 of the Act, as amended, provides as follows:
18 Pa.Con.Stat.Ann. § 3210(a).
310. Section 3210 does not identify which specific examinations or tests should be performed by a physician in making an "accurate" diagnosis of gestational age. Instead, the Act requires the physician to perform those tests that a "prudent physician would consider necessary to make an accurate" determination of gestational age.
311. If this portion of the Act were to go into effect, PaDOH proposes to use a form which would require a physician to provide a "clinical determination of gestational age at time of abortion," as well as identify the "types of inquiries/examinations/tests utilized" and the "basis for diagnosis" of gestational age. [Trial Testimony of Dr. Potrzebowski, Vol. III at 99-100; Defendants' Exhibit 47C].
312. There are various methods of determining gestational age, including physical examination, patient medical history, and ultrasound. [Court's Exhibit 1-A at ¶ 106]. However, gestational age can ordinarily be accurately determined by review of a woman's menstrual history and a pelvic examination. [Trial Testimony of Dr. Bowes, Vol. III at 78].
313. All plaintiffs make a determination of gestational age prior to performing an abortion. [Court's Exhibit 1-A at ¶ 107].
314. An accurate determination of gestational age is desirable to determine the possibility of viability of the fetus, to assess the health risks to the patient seeking the abortion, and to determine which abortion technique would be appropriate under the circumstances.
315. The plaintiff-clinics utilize the following methods of determining gestational age at the following charges:
a. RHCC — Pelvic examination — $10 and ultrasound — $70.
b. AWC — Medical history and pelvic examination which are included in the cost of the $280 fee for the abortion procedure and sonogram — $50.
c. WSC — Date of last menstrual period as told to WSC by client and pelvic examination by physician performing abortion just prior to starting the abortion. Occasionally, when a client is unsure of her last menstrual period or is late in her first trimester, the physician will do a pelvic examination separate from the procedure of abortion.
d. PPSP — Pelvic sizing is performed by the physician prior to each abortion procedure which is included in the fee for the abortion procedure. An ultrasound is performed on all patients in their last two weeks of the first trimester to determine gestational sizing. This is done by a staff RN or Medical Assistant whose pay ranges from $8.60 to $13.60. Each ultrasound requires approximately fifteen minutes to perform. Other staff involvement would include telephone scheduling of appointment at $9 per hour and intake procedure at $9.80 per hour. Cost to patient is $25 to $50. The clinic would incur additional costs for supplies and equipment.
e. WHS — Prior to the abortion, the length of the pregnancy during the first fourteen weeks is determined by the length of time since the first day of the last normal menstrual period. This is verified by pelvic examination prior to the performance of the abortion. No fee is charged for this examination. If the woman is uncertain of the date of her last menses or the date indicates the pregnancy is greater than fourteen weeks since LMP, the length of pregnancy is determined by a pelvic examination at a fee of $30 and ultrasonography at a fee of $100. [Court's Exhibit 1-A at ¶ 108].
316. PPSP performs sonograms if the gestational age is near the end of the first trimester. [Court's Exhibit 1-A at ¶ 112].
317. For abortions from 12 to 16 weeks from the last menstrual period an ultrasound is required at RHCC. [Court's Exhibit 1 at ¶ 14].
318. At Magee, an ultrasound or sonogram is used to determine gestational age
319. At WHS, an ultrasound or sonogram is used to determine gestational age for any pregnancies beyond 14 weeks. [Court's Exhibit 1-A at ¶ 87].
320. WSC never uses a sonogram in determining gestational age. Instead, gestational age is determined by questioning the woman and the performance of a pelvic examination by the physician. If an ultrasound is ordered, it is performed at another facility. [Court's Exhibit 1-A at ¶ 132].
321. AWC determines gestational age by a woman's menstrual history and pelvic examination and, if AWC is unclear of the length of the woman's pregnancy, it will do a sonogram. The fee for a sonogram is $50 but is frequently waived. [Court's Exhibit 1-A at ¶ 147].
322. Section 3210 does not require physicians to perform those tests which will provide the most accurate determination of gestational age.
323. Section 3210, if implemented, would not cause physicians or other abortion providers to alter their current practices in determining the gestational age of the fetus.
(6) Public Disclosure and Reporting Requirements (Sections 3207 and 3214)
324. PaDOH's Division of Health Statistics and Research ("the Division") is responsible for the receipt, compilation and storage of all forms submitted under the Act. The Division is comprised of two sections — Statistical Registry Section and Statistical Support Section. The Statistical Registry Section is responsible for the collection and processing of data, while the Statistical Support Section analyzes the data received and prepares the annual report. [Trial Testimony of Dr. Potrzebowski, Vol. III at 88-90].
325. The Division is responsible for five forms under the Act: (1) the Abortion Facility Registration Form [Defendants' Exhibit 45]; (2) the Abortion: Quarterly Facilities Report [Defendants' Exhibit 46]; (3) the Report of Induced Termination of Pregnancy [Defendants' Exhibit 47B];
326. The content of the forms is determined by PaDOH's interpretations of the requirements of the Act and federal guidelines applicable to the collection of data on induced terminations of pregnancy. [Trial Testimony of Dr. Potrzebowski, Vol. III at 98].
327. The Division and its employees are familiar with maintaining the confidentiality of various reports and records. PaDOH's "Policies and Procedures for Confidentiality and Data Release" and the Division's "Handbook of Policies and Procedures" both address the non-release of confidential information. [Trial Testimony of Dr. Potrzebowski, Vol. III at 96-97; Defendants' Exhibits 41 and 42].
328. Under Pennsylvania law, the Division is directed to gather data and maintain such data's confidentiality in additional areas other than abortion. For example, records must be kept confidential, other than in limited, strictly supervised exceptions, under the Disease Prevention and Control Law of 1955, 35 Pa.Stat.Ann. § 521.15 (Purdon 1977); the Vital Statistics Law of 1953, 35 Pa.Stat.Ann. §§ 450.801, 450.805 (Purdon 1977); and the Pennsylvania Cancer Control, Prevention and Research Act, 35 Pa.Stat.Ann. § 5636 (Purdon 1990 Supp.).
329. In respect to each set of forms, PaDOH follows the following standard procedure: (1) the envelope containing the
330. At the end of the year, the Statistical Support Section is given access to the computer records for the purpose of preparing the annual report. The same security measures are in place. [Trial Testimony of Dr. Potrzebowski, Vol. III at 93].
331. PaDOH's annual reports do not release or reveal the names of any performing or referring physician, any facility that is submitting the reports, or any woman who has had an abortion. [Trial Testimony of Dr. Potrzebowski, Vol. III at 97].
332. Ms. Wall of PPSP has no knowledge of any case where PaDOH released the identity of a physician who performs abortions. [Court's Exhibit 1-A at ¶ 121].
a. Public Disclosure.
333. Section 3207(b), as amended, provides:
18 Pa.Con.Stat.Ann. § 3207(b).
334. Section 3207(b) of the Act was not amended by Act 64. However, the existing version of section 3207(b) is more narrowly drawn than its 1982 predecessor. Under the earlier version, all reports filed under this section were available for public inspection and copying. See 1982 Pa.Laws 476, 493, § 1. The same applies to section 3214(f). Id. at 487-91.
335. Section 3214(f), as amended, provides:
18 Pa.Con.Stat.Ann. § 3214(f).
336. PaDOH presently receives Abortion Facility Registration Forms [Defendants' Exhibit 45] and Quarterly Facilities Reports [Defendants' Exhibit 46] from abortion providers as required by the Act. Both forms would be made available for public inspection and copying if sections 3207(b) and 3214(f) were permitted to go into effect, but only if the facility received state appropriated funds within the preceding twelve month period. Currently, the forms are maintained in accordance with PaDOH's confidentiality procedures. [Trial Testimony of Dr. Potrzebowski, Vol. III at 93-94, 95, 109-11].
337. Records of state appropriations and expenditures are maintained and generally available at the present time under Pennsylvania's Right-to-Know Law, 65 Pa. Stat.Ann. §§ 66.1 to 66.4 (Purdon 1990 Supp.), unless the information fits within the exceptions enumerated within the statute.
338. Facilities at which abortions are performed, including plaintiff-clinics, hospitals and physician's offices, have traditionally received funding in the form of Medicaid payments for a wide variety of medically necessary services, including a narrow class of abortions for victims of rape and incest and women with life-threatening conditions. [Trial Testimony of Ms. Roselle, Vol. II at 65, 73-74; Verification of Ms. Roselle at ¶¶ 7, 29].
339. Facilities where abortions are performed, including clinics, hospitals and physician's offices, may also receive state appropriated funds for related medical care, as well as building and construction costs and other purposes unrelated to the provision of abortion services. [Trial Testimony of Ms. Roselle, Vol. II at 65-66, 117; Verification of Ms. Roselle at ¶ 29].
340. In 1987, AWC, which serves approximately 350 patients a month, received less than $4,000 in medical assistance funds. [Verification of Ms. Stengle at ¶¶ 2, 7].
341. In 1988, WHS, which performs 6500-7000 abortions annually and has 3,000 client contacts monthly, received medical assistance reimbursement for only 249 patients. [Trial Testimony of Ms. Roselle, Vol. II at 74; Verification of Ms. Roselle at ¶¶ 7, 31].
342. All clinics receiving state appropriated funds apply the funds only to the services for which they are allocated.
343. Because facilities at which abortion services and counseling are offered are subjected to acts of harassment and violence, plaintiff-clinics are concerned that their reports will be open for public inspection and copying under sections 3207(b) and 3214(f). [Trial Testimony of Ms. Roselle, Vol. II at 93; Verification of Ms. Roselle at ¶ 30; Verification of Ms. Stengle at ¶ 37].
344. WHS, as well as other abortion providers, has experienced harassment from anti-abortionists, including daily leaf-leting or picketing by few individuals, occasional false patient visits, and "hate" mail. [Trial Testimony of Ms. Roselle, Vol. II at 93, 95, 100; Preliminary Injunction Hearing Testimony of Ms. Roselle at 12-13; Preliminary Injunction Hearing Testimony of Ms. Stengle at 33-34]. Other incidents include: break-ins; picketing the residences of physicians and employees; bomb, kidnapping, and death threats against the clinics, employees and employee's family members.
345. At WHS, the harassment has escalated since September 1988. During September 1988, anti-abortion protestors blockaded WHS's doors. This resulted in the arrests of 370 anti-abortion protestors. [Trial Testimony of Ms. Roselle, Vol. II at 96, 121].
346. Also since that time, the hostility of the threats has escalated. [Trial Testimony of Ms. Roselle, Vol. II at 101].
347. One year later, on September 30, 1989, five individuals carrying buckets of tar forced their way into WHS as an employee arrived for work. While inside, these individuals positioned themselves in the hallway of the main patient care area with their feet in the tar. In the ensuing arrests, the buckets of tar spilled onto the floor and splashed against the walls. Also, the tar was tracked across the carpet by police officers while making the arrests.
348. More recent sources of demonstration and harassment at WHS have been organized by "Operation Multitude." Operation Multitude conducted three demonstrations at WHS on February 17, 1990, April 21, 1990, and in June 1990. During the February event, approximately 1200 anti-abortion demonstrators assembled outside WHS for five hours which crowded the sidewalks on both sides of the streets leading to the clinic. Women required prochoice escorts to reach the doors of the clinic. For the first time in the experience of Ms. Roselle, women refused to attempt to reach the clinic on April 21, 1990 because of the hostility of the crowd. [Trial Testimony of Ms. Roselle, Vol. II at 98-100].
349. The anti-abortion incidents described herein are commonplace and most facilities providing abortion services are subjected to such incidents. [Verification of Ms. Stengle at ¶ 37]. The harassment extends to the patients and staff members of the facilities.
350. Some anti-abortion demonstrations could adversely affect the ability of the clinic to operate their business and offer valuable services to the public, including such things as contraceptive counseling or AIDS testing.
351. I find plaintiff-clinics' fears of increased harassment if these reports are subject to public inspection to be reasonable.
352. Because of its concern with public disclosure of reports filed with PaDOH, AWC has determined that it will discontinue accepting all state appropriated funds, including medical assistance funds for poverty level women. [Verification of Ms. Stengle at ¶¶ 37-38]. Other clinics may also seriously consider following the same course of action.
353. I find it likely that clinics will refuse to accept patients who are on medical assistance. The likely result will be that indigent patients who have been the victims of rape or incest or who suffer from a life-threatening condition will find it difficult, if not impossible depending upon what part of the state the woman resides, to obtain abortion services.
b. The Reporting Requirements.
354. Section 3214(a), as amended, states:
18 Pa.Con.Stat.Ann. § 3214(a).
355. Act 31 required the reporting of the same basic information as the current version of section 3214(a) with the exception of that information tailored for specific provisions of the Act at the time. See 1988 Pa.Laws 262, 271-74, § 8. The 1982 version of the Act required that the report include the following additional information not presently contained in section 3214(a): (i) the woman's age, race and marital status; (ii) date of the woman's last menstrual period; (iii) the length and weight of the aborted fetus when measurable; (iv) how the abortion was paid for; (v) the date the determination of pregnancy was made; and (vi) other facts relating to specific sections of the 1982 version of the Act. See 1982 Pa.Laws 476, 487-91, § 1.
356. In addition to the information listed in section 3214(a), PaDOH, if permitted, intends to collect other data, including marital status (even if the husband notification provisions were not in place); Hispanic origin; race; level of education; and date since last menses. [Trial Testimony of Dr. Potrzebowski, Vol. III at 100-01].
357. The reports are not public records within the meaning of Pennsylvania's Right-to-Know law, 65 Pa.Stat.Ann. §§ 66.1 to 66.4. 18 Pa.Con.Stat.Ann. § 3214(e)(2). Disclosure may be made to law enforcement officials only upon an order of the Court of Common Pleas after application showing good cause. Id. PaDOH's statistical report shall not lead to the disclosure of the identity of any physician, facility, or patient. See 18 Pa.Con.Stat.Ann. § 3214(e)(1).
358. PaDOH recognizes that this information is not required by law, but maintains that it is authorized to seek more information than is required by law. [Trial Testimony of Dr. Potrzebowski, Vol. III at 100-01].
359. According to the testimony of Dr. Potrzebowski, this information is sought to (1) be consistent with the federal standards for the collection of data on induced terminations of pregnancy which were developed by the Center for Disease Control and (2) better study the three outcomes of pregnancy (live births, fetal deaths, and induced terminations of pregnancy) for which the Division collects data. [Trial Testimony of Dr. Potrzebowski, Vol. III at 101-02, 107;
360. The federal government, through the National Center for Health Statistics, United States Department of Health and Human Services has prepared a "Standard Report of Induced Termination of Pregnancy" ("Federal Standard Report") which is intended to serve as a model for the states. Other than requiring some information pursuant to the Act, Pennsylvania's "Report of Induced Termination of Pregnancy" ("Pennsylvania Report") [Defendants' Exhibit 47C] is virtually identical to the Federal Standard Report. [Defendants' Exhibit 43 at 14].
361. The Federal Handbook states:
[Defendants' Exhibit 43 at 2].
362. Both the Pennsylvania Report and the Federal Standard Report request the information listed in paragraph 356. The items of information required on the Pennsylvania Report but not required on the Federal Standard Report are: name of the referring physician and medical complications information.
363. Marital status, race and date of last normal menses are elements of "the woman's personal history." Thornburgh, 476 U.S. at 766, 106 S.Ct. at 2181.
364. Abortion is another "pregnancy outcome," in addition to births and fetal death, upon which the Division of PaDOH gathers information. [Court's Exhibit 1-A at ¶ 104].
365. On the Certificate for Fetal Death which must be submitted to PaDOH on each instance of fetal death after 16 weeks of gestation, the physician or reporting entity must include information concerning Hispanic origin, race, educational background of the mother and father, marital status, and date of last normal menses. [Defendants' Exhibit 52].
366. On the Certificate of Live Birth which must be submitted to PaDOH upon each instance of live birth, the physician or reporting entity must include information concerning Hispanic origin, race, educational background of the mother and father, marital status, and date of last normal menses. [Defendants' Exhibit 53].
367. Thirty-three states and New York City collect information on marital status and race of women having induced terminations of pregnancies; thirty-two states and New York City collect information concerning the date of last menses; twenty-eight states and New York City collect information relating to educational background; and sixteen states and New York City collect information concerning Hispanic origin. [Trial Testimony of Dr. Potrzebowski, Vol. III at 105-06].
368. As part of the patient's medical history, two (one of which makes disclosure of this information optional) of the plaintiff-clinics collects data concerning the abortion patient's education, religion, and ethnic group. Three of the plaintiff-clinics collect information concerning the abortion patient's marital status and all of the plaintiff-clinics collect information concerning the patient's menstrual history. [Plaintiffs' Exhibits 6, 12, 18, 36, 44].
369. The requirement that the identity of the referring physician or agency be identified serves no legitimate scientific purpose.
370. Many physicians who refer patients for abortions are extremely protective
371. There are two medical doctors who, although they do not perform abortions, refer clients to WHS for abortions on the strict condition that WHS not use their names in any of its reports. These doctors insist upon this because each has been subjected to public abuse and harassment in the past. Under no circumstances would either doctor refer any patients to WHS or any other clinic if his name is reported under section 3214(a) even if there were no risk of public disclosure of the report. [Preliminary Injunction Hearing Testimony of Ms. Roselle at 21; Verification of Ms. Roselle at ¶ 37]. Even though the information is available to these doctors, their patients would be unable to receive information concerning abortion services from their own physician and these women would have to go elsewhere for this information.
372. Several of AWC's current referring physicians will not permit AWC to send correspondence to their offices for fear that members of their own staffs would divulge to anti-abortion groups that they refer patients for abortions. [Verification of Ms. Stengle at ¶ 42]. One doctor has discontinued referring patients to AWC because of threats from anti-abortionists. [Verification of Ms. Stengle at ¶ 44].
373. On occasion the Division has had to contact a physician directly concerning forms submitted after the performance of an abortion, even when the facility at which the procedure was performed has a contact person that ordinarily handles such inquiries. [Trial Testimony of Dr. Potrzebowski, Vol. III at 133].
374. Many physicians that have performed abortions have been subjected to harassment from anti-abortion demonstrators. As a result some physicians have ceased performing abortions. [Verification of Ms. Roselle at ¶ 37; Verification of Ms. Stengle at ¶ 41].
375. For this reason, some physicians reasonably prefer to keep the fact that they perform abortions out of the realm of public information. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 39; Verification of Ms. Stengle at ¶ 42].
376. One physician that performed abortions at AWC prior to the enactment of the new Act has discontinued working for AWC out of fear of public disclosure. Further, he has stopped performing abortions in his private practice as well. [Preliminary Injunction Hearing Testimony of Ms. Stengle at 39; Verification of Ms. Stengle at ¶ 43].
377. No physician has stopped performing abortions for PPSP because her or his identity was included on the Individual Reporting Form to PaDOH. [Court's Exhibit 1-A at ¶ 120].
378. Ms. Hollos, the Executive Director of WSC, knows of no physicians who have stopped performing abortions because their identity is on the Pennsylvania Individual Report of Termination of Pregnancy Form. [Court's Exhibit 1-A at ¶ 131].
379. The evidence of record persuades me that the expectation of plaintiff-clinics that referring physicians and, to a lesser extent, performing physicians will terminate their relationship with the clinics is reasonable.
380. Section 3214(a) requires a physician who has performed an abortion to report the basis for his medical judgment to support his determination of gestational age, including the tests performed, under section 3210(a) or his conclusion that the abortion was necessary to prevent the death or a serious risk of substantial and irreversible impairment of a major bodily function under any of the sections of the Act. This subsection also requires that the physician report whether a married patient informed her husband she was undergoing
381. These provisions of section 3214(a) serve no useful scientific purpose and unjustifiably interfere with the physician's exercise of his or her best medical judgment. [Preliminary Injunction Hearing Testimony of Dr. Dratman at 58-59].
382. Compliance with section 3214(a) costs WHS approximately $12,000 annually. [Trial Testimony of Ms. Roselle, Vol. II at 72-73].
383. Section 3214(h) requires every physician called upon to provide medical care and treatment to a woman suffering from medical complications resulting from an abortion or attempted abortion to file a report with PaDOH within thirty days of first seeing the patient. See 18 Pa.Con. Stat.Ann. § 3214(h).
384. No other surgical procedure has a complications reporting requirement. [Verification of Dr. Dratman at ¶ 14].
385. If a patient is treated by more than one physician, a single abortion complication may be reported by two or more treating physicians pursuant to section 3214(h). Since the reports omit the identity of the patient, they cannot be matched with complication reports filed by other physicians. Also, since complications from the abortion procedure can also be reported on the Pennsylvania Report, the same problem exists for these reports. This may result in double counting of complications from abortion procedures.
386. Some women are hesitant to advise a physician, at least initially, that they have had an abortion because of the stigma and harassment emanating from anti-abortionists. This may cause physicians to provide inappropriate treatment for post-abortion symptoms or complications. Still other women delay in seeking post-abortion medical care for a complication. Thus, because of the delay, a minor problem may progress into a serious medical problem. [Verification of Dr. Dratman at ¶ 17, 18, 20].
387. While the problems noted above may result in a degree of misinformation or unreliable reporting of post-abortion complications, I conclude that data received will not be statistically meaningless. The information sought, though not perfectly collected, is relevant to a legitimate medical and public health purpose.
THE CONSTITUTIONAL STANDARD
The hostility of Pennsylvania's legislature to the protection of a woman's right of privacy to choose abortion is apparent from the history of the legislation purporting to regulate abortion in Pennsylvania. See supra at 1326-28. In 1986, the Supreme Court determined that "[c]lose analysis of [the] provisions of [the Act] ... shows that they 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." Thornburgh, 476 U.S. at 759, 106 S.Ct. at 2178. Of the informed consent requirements of the 1982 version of the Act, the Supreme Court determined that the information sought was not "medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice." Id. at 762, 106 S.Ct. at 2179. Similarly, when addressing the reporting requirements, the Court stated that "the reports required under the Act before us today go well beyond the health-related interests that served to justify" them and "raise the specter of public exposure and harassment of women ... [and] pose an unacceptable danger of deterring the exercise" of a woman's right to end a pregnancy. Id. at 766, 767-68, 106 S.Ct. at 2181, 2182.
This hostility is equally apparent in the 1988 and 1989 amendments to the Act. In fact, substantial portions of Act 64 are nothing more than a reenactment of provisions of the Act found unconstitutional by the Third Circuit and United States Supreme Court not too long ago in Thornburgh. Clearly, the Commonwealth of
Without question, the issue of abortion has generated much debate and controversy over the past several years. And, undoubtedly, it will likely engender continued debate and controversy over the next several years — perhaps decades. However, my function is not to debate the philosophical and moral dilemmas raised by a decision which Justice Blackmun aptly described as follows:
Thornburgh, 476 U.S. at 772, 106 S.Ct. at 2184. Instead, my function is to "uphold the law even when its content gives rise to bitter dispute." Id. at 771, 106 S.Ct. at 2184; see also Cooper v. Aaron,
Defendants seem to argue that the constitutional standard applicable to judicial review of abortion regulations has somehow been modified by recent Supreme Court decisions. For reasons explained fully below, I most respectfully disagree. Whatever the Supreme Court may decide to do with this issue in the future, one thing is presently clear — many of the challenged provisions of the Act are unconstitutional under Roe v. Wade and its progeny, including Thornburgh. "[O]nly [the Supreme] Court may overrule one of its precedents," Thurston Motor Lines, Inc. v. Jordan K. Rand Ltd.,
Rodriguez de Quijas v. Shearson/American Express, Inc.,
Relying upon prior cases which held that the fundamental constitutional right of privacy which guarantees freedom of personal choice in matters of marriage and family life, see, e.g., Eisenstadt v. Baird,
This fundamental right may be significantly limited only where the state
"[R]estrictive state regulation of the right to choose abortion, as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest." Akron, 462 U.S. at 427, 103 S.Ct. at 2491; see also Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 728. In the context of a woman's right to elect to terminate her pregnancy, two compelling state interests have been identified — the protection of a fetus capable of meaningful life and the protection of maternal health. American College II, 737 F.2d at 291. Recognizing other interests in cases involving minors — "the interest in the welfare of the pregnant minor, the interest of the parents, and the interest of the family unit" — the state may limit the right of a minor woman to obtain an abortion in a manner which would not be permissible in the case of an adult.
"Because abortion is a medical procedure requiring the advice and assistance of competent, trained medical personnel, a woman cannot exercise her fundamental right alone." American College II, 737 F.2d at 283. In the first trimester, only regulations which do not significantly burden the woman's decision and are justified by important state objectives will be permitted. Ashcroft, 462 U.S. at 489-90, 103 S.Ct. at 2523-2524. In light of the relative simplicity and safety of the abortion procedure, regulations that restrict competent medical personnel do not appreciably advance the state's interest in maternal health. Akron, 462 U.S. at 428-30 & n. 11, 434, 103 S.Ct. at 2492 & n. 11, 2495. Due
At approximately the beginning of the second trimester of pregnancy, the state's interest in promoting maternal health becomes compelling. "[T]o the extent that the regulation reasonably relates to the preservation of maternal health," the state may justify regulations which significantly burden the woman's right to terminate her pregnancy. Roe v. Wade, 410 U.S. at 164, 93 S.Ct. at 732. However, these regulations must not depart from accepted medical practice, Akron, 462 U.S. at 431, 103 S.Ct. at 2493; see also American College II, 737 F.2d at 292, and cannot "directly restrict a woman's decision whether or not to terminate her pregnancy." Colautti v. Franklin, 439 U.S. at 386, 99 S.Ct. at 681.
Finally, at "viability," a state may regulate, and even proscribe, abortion in the name of its interest in the potentiality of human life, except when necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 387-88, 99 S.Ct. at 681-82; Roe v. Wade, 410 U.S. at 164-65, 93 S.Ct. at 732. The point of viability is not for this court or the legislature to determine. Instead, this task must be left to the attending physician's medical judgment as to whether, based upon the facts of the particular case before him or her, there is "a reasonable likelihood of the fetus' `sustained survival' and `meaningful life' outside the womb." American College II, 737 F.2d at 292 (quoting Colautti v. Franklin, 439 U.S. at 386, 99 S.Ct. at 681).
Once the plaintiffs have demonstrated that a regulation imposes a significant burden on the woman's right to an abortion, the Commonwealth has the burden of proving that the regulation is narrowly tailored to the precise compelling interest at stake. Casey I, 686 F.Supp. at 1125-26; see also Akron, 462 U.S. at 433-34, 103 S.Ct. at 2494-95; Roe v. Wade, 410 U.S. at 155, 165, 93 S.Ct. at 728, 732; American College II, 737 F.2d at 292. For example, the Commonwealth must make a reasonable effort to limit the effect of its regulation to that portion of the trimester during which its interests will be furthered. Akron, 462 U.S. at 434, 103 S.Ct. at 2494-95.
The three recent Supreme Court decisions relating to abortion regulation have not changed or modified these basic tenets. In Webster, the Supreme Court reviewed provisions of the Missouri statute which: (1) bans the performance of abortions by public employees and in public facilities except to save the life of the mother; and (2) requires physicians to perform "such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child" on any woman the physician had reason to believe was 20 weeks or more pregnant. In addition, the Court also considered the preamble to the Missouri statute which declares that life begins at conception.
The Court determined that "none of the challenged provisions of the Missouri Act properly before [it] conflict with the Constitution." Webster, ___ U.S. at ___, 109 S.Ct. at 3059. Indeed, a plurality of the Court was prepared to modify Roe v. Wade, but only "to the extent" required to uphold the Missouri statute. Id. Providing
Further, nothing in Hodgson or Ohio v. Akron Center for Reproductive Health, ___ U.S. ___, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), the Supreme Court's recent decisions dealing with the rights of minors to obtain abortions, modifies Roe v. Wade. In these two cases, the Court struck down a Minnesota statute requiring minor women to notify both their parents, without a judicial by-pass procedure, before obtaining an abortion; upheld another section of the Minnesota statute which required two-parent notice but included judicial by-pass procedures; upheld a 48-hour waiting period, after notification was given to the parents, for all minor women; upheld Ohio's single-parent notice requirement which included a by-pass mechanism; and upheld Ohio's requirement that the physician notify the parent personally.
Neither Hodgson nor Ohio overrules Roe v. Wade. Justice Marshall wrote:
Hodgson, ___ U.S. at ___, 110 S.Ct. at 2952 (Marshall, J., concurring in part, concurring in judgment in part, and dissenting in part) (citations omitted).
Moreover, in neither case did a majority of the Court articulate a new standard of review in abortion cases. In Hodgson, Justice Kennedy, joined by three other members of the Court, upheld the by-pass procedure because it "comports in all respects
With these principles in mind, I turn to the specific challenges raised by plaintiffs in this action.
THE DEFINITION OF MEDICAL EMERGENCY
As noted above, the Commonwealth may not adopt abortion regulations which depart from accepted medical practices. Akron, 462 U.S. at 434, 103 S.Ct. at 2494-95; American College II, 737 F.2d at 292. At every stage of the pregnancy, the woman's health must always remain the paramount consideration. See Colautti v. Franklin, 439 U.S. at 400, 99 S.Ct. at 688; see also American College II, 737 F.2d at 300. For this reason, the Commonwealth's interest in promoting the integrity of the marital relationship and the prenatal life of a spouse's child (assuming that such a legitimate interest does in fact exist) or encouraging informed consent and parental involvement in abortion decisions must take the back seat to any immediate and serious threat to maternal health. Therefore, to pass constitutional muster, regulations of a woman's right to choose to terminate her pregnancy must contain an adequate exception for medical emergencies. Casey I, 686 F.Supp. at 1137.
While the Act does contain an exception for medical emergencies, I find that is far from adequate. The definition of medical emergency within the Act interferes with the physician's independent medical judgment. Without question, the definition of medical emergency is more restrictive than any other as applied in medical situations. Compare 18 Pa.Con.Stat.Ann. § 3203 with 35 Pa.Stat.Ann. § 6923 and Findings of Fact (¶ 152), supra at 1345. Previously, I concluded:
Casey I, 686 F.Supp. at 1137. This conclusion applies with equal force today. If anything, the record established herein makes this conclusion more certain.
Under the Act, the physician may only act in the best interests of his or her patient, if a delay would create a serious risk of substantial and irreversible impairment of [a] major bodily function" or death. At the risk of license suspension or revocation, as well as rather substantial potential criminal penalties, a physician is asked under the Act to proceed with the care of his or her pregnant patient in a manner inconsistent with his or her best medical judgment and incompatible with the best interests of his or her patient. This trade-off cannot be tolerated.
Defendants argue that the plaintiffs cannot demonstrate any situations in which a pregnant woman would be suffering from
Defendants also argue that the definition of medical emergency in the Act is less restrictive than the definition of medical emergency contained in the Missouri statute upheld in Hodgson. This argument is without merit. Without question, the Missouri statute does narrowly define the term "medical emergency," however, neither the lower courts nor the Supreme Court had occasion to consider its constitutionality.
I will, therefore, permanently enjoin the enforcement of all provisions of the Act containing the term "medical emergency."
TWENTY-FOUR HOUR WAITING PERIOD
Section 3205 of the Act requires a mandatory 24-hour delay between the time the woman's consent for an abortion is obtained and the actual time the procedure is performed. Section 3205 applies to all abortions regardless of which trimester of pregnancy is involved. Essentially, the Commonwealth seeks a decision which would effectively overrule Akron, as well as reverse the result reached in American College I, 552 F.Supp. at 797-98, and conceded by the Commonwealth in American College II, 737 F.2d at 293. This is something which I cannot, and will not, do, based upon the weight of authority and the record before me. While increasing the cost and risk of delay of abortions by requiring two trips to an abortion facility, this arbitrary and inflexible waiting period does not further the state's interest in maternal health and it impermissibly infringes the physician's discretion to exercise sound medical judgment. Therefore, a mandatory 24-hour waiting period unconstitutionally imposes a legally significant burden on a woman's rights to seek an abortion.
This issue is identical to the issue addressed by the Supreme Court in Akron. The Court invalidated a provision that required women, capable of consenting to abortion, to wait a period of 24 hours after giving consent before undergoing an abortion. The Court determined that "if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision." Akron, 462 U.S. at 450-51, 103 S.Ct. at 2503.
The record before me amply supports this result. However, I shall only briefly summarize my findings. Only a very small percentage of women are ambivalent concerning whether to have an abortion when
Moreover, a mandatory 24-hour waiting period would require two visits to the abortion provider. This would double the woman's travel time,
The Court's recent validation, in Hodgson, of a 48-hour waiting period for minors seeking an abortion to permit parental involvement in their decision does not alter this conclusion. In fact, a majority of the Court explicitly distinguished the situation before it from that presented in Akron. See Hodgson, ___ U.S. at ___ n. 35, 110 S.Ct. at 2944 n. 35; see also Ohio, ___ U.S. at ___, 110 S.Ct. at 2983 ("The distinction between notifying a minor's parents and informing a woman of routine risks of abortion has ample justification"). Significantly, the statute in Hodgson did not require any delay once the minor obtained the affirmative consent of a substitute decision-maker —either the court or a parent.
Based upon the record before me, I conclude that the 24-hour waiting period in section 3205 is unconstitutional.
PHYSICIAN-ONLY DISCLOSURE REQUIREMENT
Plaintiffs challenge the provision of section 3205(a)(1) requiring that the information required to be disclosed to the patient pursuant to (a)(1)
The Supreme Court concluded in Akron that it was "unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent," Akron, 462 U.S. at 449, 103 S.Ct. at 2502, since "the State's interest is in ensuring that the woman's consent is informed and unpressured; the critical factor is whether she
The record before me establishes that prior to performing an abortion, trained counselors at plaintiff-clinics provide a patient with options counseling and obtain her informed consent for the procedure. The record further establishes that these counselors are well-trained and extremely competent to impart such information to patients seeking to terminate their pregnancy. A physician-only disclosure requirement will require the plaintiff-clinics to substantially alter their current practices. Any changes of this nature would necessarily increase costs to the plaintiff-clinics for providing the service, which would undoubtedly be passed along to patients seeking an abortion.
Trained counselors, such as those employed or utilized on a volunteer basis by plaintiff-clinics, are fully capable, by virtue of their training and experience, to provide information to patients, to discuss the alternatives to abortion, and to secure the patient's informed consent. In many instances, trained counselors, who are women, are more understanding than physicians and have more time to spend with the patients. Consequently, in certain cases, the state's interest "in ensuring that the woman's consent is informed and unpressured" may be better served when trained counselors are able to impart the necessary information to the patient. A physician-only disclosure requirement is not narrowly tailored to serve the Commonwealth's interest in protecting maternal health.
Accordingly, I find that the physician-only informed consent requirements set forth in section 3205(a)(1) of the Act are unconstitutional.
CONTENT-BASED INFORMED CONSENT
"The validity of an informed consent requirement ... rests on the State's interest in protecting the health of the pregnant woman." Akron, 462 U.S. at 443, 103 S.Ct. at 2499. Plaintiffs do not dispute that a requirement that the woman give what is truly a voluntary and informed consent is proper and constitutional. Thornburgh, 476 U.S. at 760, 106 S.Ct. at 2178; Danforth, 428 U.S. at 67, 96 S.Ct. at 2840. However, a state, under the guise of informed consent requirements, "may not require the delivery of information designed `to influence the woman's informed choice between abortion or childbirth.'" Thornburgh, 476 U.S. at 760, 106 S.Ct. at 2178 (quoting Akron, 462 U.S. at 443-44, 103 S.Ct. at 2500). Also, rigid requirements that a specific body of information be imparted to a woman in all cases, regardless of the needs of the patient, improperly intrudes upon the discretion of the pregnant woman's physician and thereby imposes an "undesired and uncomfortable straitjacket." See Danforth, 428 U.S. at 67 n. 8, 96 S.Ct. at 2840 n. 8 (quoted in Thornburgh, 476 U.S. at 762, 106 S.Ct. at 2179).
Section 3205 of the Act states that five specific types of information, three of which must be presented by a physician, must be delivered to the woman at least 24 hours prior to the abortion. The five are: (a) the "nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision," (b) the "probable gestational age of the unborn child at the time the abortion is to be performed," (c) the "medical risks associated with carrying her child to term," (d) the fact that the "father of the unborn child is liable to assist in the support of her child," and (e) that "Medical Assistance benefits may be available for prenatal care, childbirth and neonatal care." See 18 Pa.Con.Stat.Ann. § 3205(a)(1) and (2). The woman must also be advised that materials printed and supplied by the Commonwealth that describe the fetus and that "list agencies which offer alternatives to abortion" are available for her review. See 18 Pa.Con.Stat.Ann. § 3205(a)(2)(i). If the woman elects to review the printed materials, a copy of the materials must be provided to her. See 18
Pursuant to section 3208 of the Act, PaDOH must prepare, publish and update, on an annual basis, easily comprehensible printed materials which would comply with the informed consent provisions of section 3205(a) of the Act. First, PaDOH must prepare "[g]eographically indexed materials designed to inform the woman of public and private agencies" available to assist her through pregnancy. See 18 Pa.Con. Stat.Ann. § 3208(a)(1). Second, PaDOH must prepare "[m]aterials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including pictures representing the development of unborn children at two-week gestational increments." See 18 Pa.Con.Stat. Ann. § 3205(a)(2).
The Supreme Court's assessment in Thornburgh of the content-based informed consent imposed by sections 3205 and 3208 of the Act applies with equal force today. For this reason, I shall quote Thornburgh at length. Justice Blackmun wrote:
Thornburgh, 476 U.S. at 762-63, 106 S.Ct. at 2179-80 (citations and footnotes omitted); see American College II, 737 F.2d at 295-96; see also Akron, 462 U.S. at 444-45, 103 S.Ct. at 2500-01 (invalidating substantially similar informed consent provisions).
The type of compelled informed consent contemplated by sections 3205 and 3208 of the Act is the antithesis of informed consent and goes far beyond merely describing the general subject matter relevant to the woman's decision. For this reason, I find that sections 3205 and 3208 are unconstitutional
PARENTAL INFORMED CONSENT
Bellotti II, 443 U.S. at 642, 99 S.Ct. at 3047-48.
Except in the case of a "medical emergency," section 3206 requires a physician to obtain the informed consent of a parent or guardian before performing an abortion on an unemancipated minor or an incompetent woman. Because section 3206 does not define "informed parental consent," I must look to the provisions of section 3205(a) to give meaning to the term. To be "informed" within the meaning of the Act, the physician must have orally informed the parent of all the information required by section 3205(a)(1). In addition, the parent must also be informed of the information required by section 3205(a)(2).
To be constitutional, a parental consent provision must not unduly burden the minor's right to seek an abortion. Bellotti II, 443 U.S. at 640, 99 S.Ct. at 3046. Although parents may not exercise "an absolute, and possibly arbitrary veto" over the decision, Danforth, 428 U.S. at 74, 96 S.Ct. at 2843, the state's reasonable judgment that the decision should be made after notification to and consultation with a parent has never been questioned. Id. at 75, 96 S.Ct. at 2844; see also Ohio, ___ U.S. at ___ - ___, 110 S.Ct. at 2978-81; Akron, 462 U.S. at 428 n. 10, 439, 103 S.Ct. at 2491 n. 10, 2497; H.L. v. Matheson,
While not explicitly requiring the parent to make an in-person visit to the abortion facility, I conclude, based upon the evidence of record, that an in-person visit to the facility will be necessary under generally accepted medical principles of informed consent in order for the facility to obtain the informed consent of the parent.
Casey I, 686 F.Supp. at 1126.
One could not reasonably dispute that "informed" parental consent would support the Commonwealth's interest in encouraging involvement in the minor's abortion decision so as to enable the parent to determine whether an abortion is in her best interests. Id. However, this interest can be served without requiring an in-person visit by the parent to the abortion provider. Therefore, section 3206 is not narrowly drawn to serve the Commonwealth's interest and unduly burdens the minor's rights. See Planned Parenthood Ass'n of Atlanta Area, Inc. v. Harris,
The question then becomes whether the existence of a judicial by-pass procedure eliminates this undue burden.
No abortion statute considered by the Supreme Court, including Hodgson and Ohio, has required parental "informed" consent. Nor have the parties identified any such statute for the court. A requirement of informed parental consent, if implemented, would greatly expand the instances in which judicial by-pass would be necessary. Under the requirements of section 3206, a minor who has obtained the consent of a parent will be burdened by the judicial by-pass procedure in order to effectuate her decision, if the parent is unable or unwilling to make an in-person visit to give informed consent for the procedure.
For the foregoing reasons, I agree with plaintiffs' argument that any requirement of informed parental consent is invalid even when a judicial by-pass procedure is in place. In addition, to the extent that section 3206 does not contain an adequate definition of medical emergency and the content-based informed consent required by section 3205 is impermissible, the Commonwealth will be permanently enjoined from implementing section 3206.
Of all the sections of the Act, this is probably the most problematic. Section 3209 of the Act requires that no physician may perform an abortion on a married woman unless he or she has received a signed statement from the woman stating that she has notified her spouse that she is about to undergo an abortion. See 18 Pa. Con.Stat.Ann. § 3209(a). However, such notice is not required if the woman certifies: (a) that her spouse is not the father of the child, 18 Pa.Con.Stat.Ann. § 3209(b)(1); (b) that she could not locate her spouse after diligent effort, 18 Pa.Con.Stat.Ann. § 3209(b)(2); (c) that the pregnancy is a result of spousal sexual abuse, 18 Pa.Con. Stat.Ann. § 3209(b)(3); and (d) that she has reason to believe that furnishing notice to her spouse would likely result in the infliction of bodily injury upon her by her spouse or by another individual. 18 Pa. Con.Stat.Ann. § 3209(b)(4). Also, spousal notification is not necessary in cases of a medical emergency as defined by section 3203. See 18 Pa.Con.Stat.Ann. § 3209(c). The Commonwealth argues that this section furthers its "interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within the marriage and in promoting prenatal life of that spouse's child." 18 Pa.Con.Stat.Ann. § 3209(a). Because I conclude that section 3209 is constitutionally defective in that it impermissibly invades a woman's fundamental right to privacy in the abortion decision, I will permanently enjoin the enforcement of this section.
At the risk of repetition, interference with a woman's abortion decision may be justified only by a "compelling state interest" and then the interference must be "narrowly drawn to express only the legitimate state interest at stake." Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 728. In Roe v. Wade, the Supreme Court identified only two compelling state interests — (1) an interest in maternal health which becomes compelling after the first trimester of pregnancy and (2) an interest in the protection of a potential human life which becomes compelling at the point of viability. Id. at 154, 163, 93 S.Ct. at 727, 731. If a challenged regulation does not impinge upon a woman's decision to have a first trimester abortion and does not place obstacles in the path of effectuating that decision, the Commonwealth need only demonstrate a rational relationship to a legitimate purpose. See, e.g., Maher v. Roe,
Moving through the requisite analysis, I conclude that any statute which requires a physician to notify a third party of a woman's abortion decision is, as a matter of law, a constitutionally significant burden on the woman's right to an abortion.
The pivotal inquiry is whether the challenged law places an obstacle, absolute or otherwise, in the path of a woman's free exercise of her decision. Maher v. Roe, 432 U.S. at 474, 97 S.Ct. at 2382; see also PPRI, 598 F.Supp. at 634 (a state regulation which merely has the potential to frustrate or delay a woman's abortion decision imposes a legally significant burden upon that decision). If Pennsylvania's spousal notification provision is enforced, it will have the effect of delaying or, in some cases, totally frustrating, a woman's decision to have an abortion. Women apprehensive about advising their husbands of their decision may delay in notifying him. Further, assuming one of the proffered interests for a notice requirement — promoting marital integrity — was valid, any notice could foster some delay to permit thoughtful marital communication. As previously stated, delay in the performance of an abortion could heighten the risk of complications and mortality. Perhaps more importantly, a forced notification requirement opens the door to total frustration of the woman's decision. Once advised, some husbands may exert pressure, physical or emotional, to coerce their wives to forego the abortion altogether. In addition, the woman who is forced to notify her husband (because she does not fall within the language of one of the exceptions contained in the Act) in order to obtain an abortion despite her better judgment to the contrary will be subjected to additional anxiety and stress. Finally, when faced with forced notice and her perceived view of the risk such notice poses to her or her family, a pregnant wife may elect a different alternative — carrying the pregnancy to term or an illegal abortion.
Having identified a legally significant burden upon the woman's right to terminate her pregnancy, I must now consider whether the Commonwealth can justify this burden with a compelling state interest. Admittedly, the Supreme Court has recognized the need to afford the institution of marriage and the family protection from state interference and intervention. See, e.g., Moore v. East Cleveland,
I do not wish to denigrate the importance of these rights. However, in Eisenstadt v. Baird, the Supreme Court stated:
Eisenstadt v. Baird, 405 U.S. at 453, 92 S.Ct. at 1038 (emphasis in original). No Supreme Court case has decided the issue of whether a mandatory spousal notification provision is constitutional. But while acknowledging the importance of protecting the marital relationship and the potential impact the abortion decision could have on the relationship, the Supreme Court concluded that conditioning a woman's abortion decision on the consent of her spouse
It is important to note that neither Danforth, despite the clear opportunity to do so, or any other Supreme Court opinion has interposed an additional compelling state interest — either in the marital relationship, protecting the procreation interests of the husband or promoting prenatal life in the spouse's child — relating to the spouse of a woman seeking an abortion. For the reasons stated above and those contained in PPRI, 598 F.Supp. at 637-40, I conclude that none of these represent a compelling state interest.
The Fifth Circuit's opinion in Scheinberg, upon which defendants rely extensively, does not alter this conclusion. In that case, the court held that mandatory husband notification was justifiable if the state could establish that an abortion procedure interferes with a married woman's future capacity to have children and, hence, the husband's right to procreate within the marriage. Scheinberg, 659 F.2d at 486-87. After a remand for further consideration of this possibility, the district court found that abortion posed no increased risk to a married woman's future ability to bear children. Scheinberg, 550 F.Supp. at 1122-23. Because the Commonwealth has not presented any proof that abortion would affect a woman's future child bearing capacity or even advanced this argument, Scheinberg does not support the Commonwealth's argument and, in fact, supports the conclusions reached herein.
Considering separately the state's asserted interest in promoting the prenatal life of the spouse's child, the state is essentially attempting to circumvent the holding of Roe v. Wade and its progeny. If the state's interest in the potentiality of life does not become sufficiently compelling until the point of viability so as to permit the state to prohibit abortions except those necessary to protect the life of the mother, then the state's interest in protecting the prenatal life of the spouse's child cannot become compelling until that point. Cf. Danforth, 428 U.S. at 69, 96 S.Ct. at 2841 (while recognizing the state's interest in promoting marital integrity and procreation choices, concluding that such interests are not sufficiently compelling for the state to validly delegate the power — a power which it does not possess itself — to veto the wife's abortion decision to the husband). Since the Act applies the notice requirement to all trimesters of pregnancy, it must be considered invalid for the state's alleged interest in protecting the prenatal life of a spouse's child could not become compelling until the point of viability, if at all.
Even assuming that the state has a compelling interest in promoting marital integrity, I conclude that section 3209 does not promote that interest. In a substantial number of cases, the decision to seek an abortion stems from the voluntary consultation of husband and wife. In fact, married couples are often encouraged to consult on important decisions, such as whether to terminate a pregnancy. I doubt that anyone would question the conclusion that a sound marital relationship is one in which communication on sensitive topics, like
Writing for the Court in Danforth, Justice Blackmun commented:
Danforth, 428 U.S. at 71, 96 S.Ct. at 2841 (citation omitted). The reasoning of Danforth applies with equal force to compelled mandatory spousal notification.
Marital accord arises from within the relationship not from the intervention of the state. Therefore, forced spousal notification is a totally irrational vehicle to achieve any of the state's purported goals. The record clearly establishes that instead of fostering marital communication and bolstering the state's interest in marital integrity, the exact opposite effect would likely occur. See also Eubanks v. Brown, 604 F.Supp. at 148; PPRI, 598 F.Supp. at 640-42. Not only could forced notice hasten the dissolution of a troubled marriage, but it could have potentially disastrous consequences, including subjecting the woman to physical abuse.
In the words of Governor Casey, "a state cannot intervene in a marital relationship to dictate the relationships between husband and wife." See Veto Message to House at 5 (December 17, 1987) (quoted at length supra at 1328-29 n. 13). For this reason and the reasons stated above, I will permanently enjoin section 3209 of the Act.
DETERMINATION OF GESTATIONAL AGE
Except in the case of a medical emergency,
Plaintiffs argue that "Section 3210 requires that the doctor perform a battery of tests to make an `accurate diagnosis,'" see Plaintiffs' Pretrial Memorandum of Law at 59, and, therefore, will significantly increase the cost of an abortion without any corresponding benefit to any legitimate state interest. On the other hand, defendants maintain that this section does not require the performance of tests to obtain the most accurate diagnosis of gestational age and only those inquiries and tests which a prudent physician would consider to be necessary under standard medical practice are required. See Defendants' Pretrial Memorandum of Law at 36-38. I agree with the Commonwealth's interpretation of section 3210(a).
A determination of probable gestational age is part of the routine care of a pregnant woman, regardless of whether she is considering terminating her pregnancy. In the abortion context, an accurate determination of gestational age is relevant to the physician's choice of abortion procedure, and the selection of the incorrect procedure could increase the risk of complications for the patient. Ordinarily, an accurate determination of gestational age can be made after review of a woman's menstrual history and a pelvic examination. Unless, considering the circumstances peculiar to the patient, a prudent physician would perform more tests to obtain an accurate diagnosis of gestational age, the Act requires no more than this.
The requirements of section 3210(a) are reasonably related to the Commonwealth's compelling interest in the protection of maternal health.
This conclusion is supported by the Supreme Court's decision in Webster. In that case, the Court upheld a Missouri statute which reads as follows:
Webster, ___ U.S. at ___, 109 S.Ct. at 3054 (quoting Mo.Rev.Stat. § 188.029). The plurality determined that this section of the Missouri Act did not require a physician to perform tests which "would be irrelevant to determining viability or even dangerous to the mother and the fetus." Id. at ___, 109 S.Ct. at 3055 (plurality); id. at ___, 109 S.Ct. at 3060-64 (O'Connor, J., concurring in judgment); id. at ___, 109 S.Ct. at 3064 (Scalia, J., concurring in judgment).
Because I conclude that section 3210(a) requires only those tests and inquiries that a prudent physician would consider necessary under standard medical practice for the determination of gestational age, and because this section protects the Commonwealth's compelling interest in protecting maternal health without imposing an undue
PUBLIC DISCLOSURE REQUIREMENTS
Record keeping and reporting requirements which are reasonably directed to the preservation of maternal health and which properly respect a patient's confidentiality and privacy are permissible. Danforth, 428 U.S. at 80-81, 96 S.Ct. at 2846; see also Thornburgh, 476 U.S. at 766, 106 S.Ct. at 2181; Casey I, 686 F.Supp. at 1129.
Sections 3207(b) and 3214(f) require that every facility at which abortions are performed file certain reports.
When first presented with this issue in 1982, I concluded that plaintiffs had not established that disclosure would impose a legally significant burden on the abortion decision. American College I, 552 F.Supp. at 803-04. Similarly, the Third Circuit determined that the plaintiffs had not "as yet demonstrated a nexus between the disclosure of such information and the chilling of constitutional rights." American College II, 737 F.2d at 297. Not long after that, I found that public disclosure of these reports would impose a legally significant burden on a woman's fundamental right to obtain an abortion. American College III, 613 F.Supp. at 666. Only two years ago, I stated "[t]he evidence of record in this action persuades me that the situation has not changed." Casey I, 686 F.Supp. at 1129. Once again, I am convinced, on the basis of the record presently before me, that the public disclosure requirements contemplated by sections 3207(b) and 3214(f) impose a legally significant burden on a woman's right to obtain an abortion.
Abortion facilities, physicians and their staffs remain under intense pressure from anti-abortion demonstrators. In fact, in recent months, this pressure has become more onerous. The pattern of hostile behavior which has developed in the past includes picketing and verbal harassment of clinic physicians and staff members at the facilities, their private offices and their homes. Pregnant women must also suffer extreme harassment upon entering a facility. While verbal harassment is most common, attempts to block egress and ingress at a facility, forced entries into abortion clinics as well as pushing and shoving have become more commonplace. Death, bombing and kidnapping threats also have been documented.
While this activity comes from members of the public, and not from the Commonwealth, any action of the Commonwealth which may increase the risk of harassment must be carefully scrutinized.
A regulation designed to inform the public about public expenditures does not further the Commonwealth's interest in protecting maternal health. Therefore, such a regulation cannot justify a legally significant burden on a woman's right to obtain an abortion. Moreover, I once again note that there are less obtrusive means through which the Commonwealth may satisfy the public's need to know how funds are spent. See Casey I, 686 F.Supp. at 1129-30.
Therefore, I will permanently enjoin the provisions of sections 3207(b) and 3214(f) which provide for the public disclosure of reports.
Plaintiffs challenge various reporting requirements contained in sections 3214(a) and 3214(h). At the outset, it is important to note that the information to be reported under sections 3214(a) and 3214(h) will, by statute, remain confidential.
Before turning to plaintiffs' specific challenges to these reporting requirements, I note that plaintiffs argue that the reporting requirements of section 3214 will impose a significant financial burden on the clinics, which will be passed on to their patients. The evidence of record suggests that plaintiff-clinics have, in fact, incurred additional administrative costs as a result of the reporting requirements. However, there was no testimony which suggests that any of the plaintiff-clinics have raised the fees for an abortion because of these added expenses. Further, I find that the additional cost to plaintiff-clinics is not so great that, in and of itself, it imposes a legally significant burden on the right to obtain an abortion.
Plaintiffs first specifically challenge the requirement of section 3214(a)(1) that the referring physician, if any, and the performing physician be identified on the individual abortion report.
The requirement that the referring physician, if any, be identified on the individual report does not add to the pool of scientific knowledge concerning abortion. Nor is it reasonably related to the Commonwealth's interest in promoting maternal health. See Casey I, 686 F.Supp. at 1130. The evidence of record persuades me that, notwithstanding the provisions pertaining to confidentiality of reports submitted to PaDOH, many physicians, particularly those that previously discontinued performing abortions because of harassment, will refuse to refer patients to abortion clinics if their names will appear on these reports. This would result in the imposition of an undue burden on the woman's ability to obtain an abortion.
To the extent that the Commonwealth may seek missing information contained on the individual abortion report, the ability and responsibility to provide that information rests with the abortion facility and the performing physician, not the referring physician. The Commonwealth also asserts that disclosure of the referring physician's identity is necessary because "[t]he referring physician is capable of giving informed consent required by § 3205 and making a determination of gestational age required by § 3210." See Defendants' Pretrial Brief at 40. This argument is without merit. The abortion provider, especially an abortion clinic, will review informed consent information with the patient prior to performing the procedure, regardless of what the referring physician may or may not have done. The same holds true for a determination of gestational age. Failure to do so would be tantamount to inviting a malpractice suit. Therefore, the performing physician or abortion facility will have all information the Commonwealth might seek in either of these two areas at their disposal. Finally, to the extent that the referring physician is involved in the post-abortion care of the patient, he is required to make an appropriate report of any complications under section 3214(h).
Plaintiffs also challenge the requirement that the facility report any medical complications arising out of pregnancy or from the abortion procedure, 18 Pa.Con.Stat. Ann. § 3214(a)(7),
Next, the plaintiffs challenge the requirement that the physician report the basis for his medical judgment concerning viability (section 3214(a)(8)), the existence of a medical emergency (section 3214(a)(10)), and determining gestational age (section 3214(a)(11)). I will permanently enjoin the enforcement of these provisions for the reasons set forth in my ruling on plaintiffs' motion for a preliminary injunction. See Casey I, 686 F.Supp. at 1132 (for a "physician [to] justify his medical judgment by reporting the basis therefor in a written report impermissibly interferes with the woman's ability to effectuate her abortion decision" and has a chilling effect upon the physician's exercise of his judgment).
Finally, plaintiffs challenge the Commonwealth's attempt to include inquiries concerning Hispanic origin, race, educational level, and date of last normal menses on the Report of Induced Termination of Pregnancy. While none of these items appear in the Act, the Commonwealth argues that PaDOH may legally go beyond the requirements of the statute and request this additional information.
The Handbook on the Reporting of Induced Terminations of Pregnancy prepared by the federal government, through the National Center for Health Statistics, United States Department of Health and Human Services states:
See Defendants' Exhibit 43 at 2. The "Standard Report of Induced Termination of Pregnancy," intended to serve as a model for the states, is virtually identical to the Pennsylvania Report.
Moreover, abortion is another "pregnancy outcome," in addition to live births and fetal deaths, upon which the Division of PaDOH gathers information. The same information is collected on the Certificate
The Act, as originally enacted in 1982, required the individual abortion report to contain the same information regarding the woman's personal history.
Thornburgh, 476 U.S. at 765-68, 106 S.Ct. at 2181-82.
While the Commonwealth removed many of these same reporting requirements from the Act, PaDOH still seeks to collect information in these areas for the reasons expressed above. Based upon the record before me, I do not find any legally significant burden to a woman's right to choose to terminate her pregnancy by these requirements. These reports are now secure from public disclosure. See 18 Pa.Con. Stat.Ann. § 3214(e)(2); see also 18 Pa.Con. Stat.Ann. § 3214(e)(1) (the annual statistical report shall not disclose any information which would lead to the disclosure of the identity of any person about whom a report is filed). Public disclosure of these reports was of substantial concern to the Supreme Court in Thornburgh. But the same danger of public exposure and harassment does not exist given the current restrictions contained in the Act. Further, no substantial additional burden would be imposed upon the plaintiff-clinics or other abortion providers to gather and report this information. As stated previously, these additional costs are not legally significant. In fact, some, if not all, of this information is already collected on medical history forms by abortion providers.
Inasmuch as no legally significant burden has been demonstrated by plaintiffs,
Because I conclude that compiling this information is rationally related to a legitimate government interest and does not impose a legally significant burden on a woman's right to end her pregnancy, I reject plaintiffs' argument that I should permanently enjoin the Commonwealth from seeking to collect this data.
In summary, except insofar as the Act requires the reporting of the name of the referring physician and the basis for the physician's medical judgment, I conclude that the reporting requirements of sections 3214(a) and 3214(h), including the additional information sought by the Commonwealth but not required by the Act, are constitutionally valid.
During argument, defendants contend that the Act's "very liberal severance provision" permits this court to strike "any word, phrase or provision" found to be unconstitutional.
While I have elected to sever certain of the reporting requirements from the Act, I decline the Commonwealth's invitation to engage in more substantial dissections of the Act. For example, I will not strike the word "informed" from section 3206, relating to the requirement of informed parental consent as suggested by the Commonwealth. See Trial Transcript, Vol. IV at 49. Because "consent" and "informed consent" have radically different meanings, striking the word "informed" from section 3206 would give the section a radically different meaning than that intended by the legislature and, therefore, be improper. The same is true for the language contained in
CONCLUSIONS OF LAW
Inasmuch as I find that I have subject jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), (4) and based upon the foregoing findings of fact and discussion, I conclude that portions of the Act are unconstitutional and, therefore, the defendants must be permanently enjoined from enforcing those portions of the Act. Other portions of the Act, in my opinion based upon the record before me, are constitutional, and plaintiffs' challenges to those sections are rejected. My conclusions can be summarized as follows:
a. The definition of "medical emergency" contained in section 3203 is unconstitutional, and all sections of the Act containing the term must be permanently enjoined. This includes, but is not limited to, the following sections: section 3205 (informed consent), section 3206 (informed parental consent or judicial by-pass), section 3209 (spousal notification), section 3210 (determination of gestational age), and section 3211 (performance of abortions after 24 weeks of gestation).
b. Because any attempt to sever the constitutionally offensive aspects of the definition of "medical emergency" would result in language contrary to the intention of the legislature, I cannot utilize the Act's savings clause to prevent the permanent injunction of these sections.
c. The 24-hour waiting period, physician-only disclosure requirement, and the content-based informed consent requirements contained in section 3205 are constitutionally invalid and must be permanently enjoined. Any attempt to sever the constitutionally offensive language from these sections would be improper.
d. The requirement of informed parental consent, in and of itself, is unconstitutional, notwithstanding the existence of a judicial by-pass procedure, because it unduly burdens a minor woman's right to elect to end her pregnancy and is not narrowly drawn to serve the state's interest. Hence, section 3206 must be permanently enjoined for this reason. In addition, because of the absence of a constitutionally valid definition of "medical emergency" and "informed consent," section 3206 must be permanently enjoined for these reasons as well.
e. The requirement of husband notification contained in section 3209 is unconstitutional and, therefore, must be permanently enjoined in its own right.
f. Section 3210 which requires the physician to make such inquiries and perform or cause to be performed such tests to make an accurate diagnosis of gestational age is constitutional.
g. The requirement under sections 3207(b) and 3214(f) that certain forms be made available for public disclosure creates an unconstitutional burden upon the woman's abortion decision, and I shall enjoin the enforcement of these sections.
h. Except insofar as section 3214(a) requires the reporting of the name of the referring physician (section 3214(a)(1)) and the basis of the physician's medical judgment (section 3214(a)(8), (10), and (11)), I find the balance of section 3214(a) is constitutional. In addition, section 3214(h) requiring the submission of reports on complications is constitutional.
i. Because a woman's abortion decision is not unduly burdened by the reporting of information of marital status, Hispanic origin, date of last menses, race, and educational background and this information is reasonably related to the state's interest in protecting maternal health, I conclude that requiring these items to be reported are constitutional.
For now, at least, the law of abortion remains undisturbed, because only the United States Supreme Court has the power
What the future holds is not certain. But one thing must be evident. Individuals can no longer feel as secure with the protections provided by the judiciary in this area. Instead, a woman's privacy rights and individual autonomy may soon be subjected to the vicissitudes of the legislative process. Therefore, the protection afforded will depend on the ballot box, and the nature of the protection, if any, could vary from term-to-term depending on the composition of the legislature. If unprotected by their vote and the votes of other pro-choice advocates, many women will be forced to seek abortion services elsewhere. For those that can afford it, this may only mean traveling to another jurisdiction. For those that cannot, the result may well be disastrous and tragic. But for now, at least, the law of abortion remains undisturbed.
An appropriate order follows.
HUYETT, District Judge.
Upon consideration of evidence submitted by the parties during the trial, the evidence presented during the preliminary injunction hearing admitted for the purpose of trial, the pretrial memoranda and submissions of plaintiffs and defendants, the arguments of counsel, and the post-trial memoranda and submissions of the parties, and based upon the attached findings of fact, discussion and conclusions of law, it is ORDERED that
Judgment is entered in FAVOR of plaintiffs and AGAINST defendants in a manner consistent with the attached opinion.
IT IS FURTHER ORDERED that:
1. Defendants are hereby permanently enjoined from implementing and enforcing all provisions of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64, that contain the term "medical emergency" as defined in section 3203 of the Act.
2. Defendants are hereby permanently enjoined from implementing and enforcing any and all provisions of section 3205 of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64.
3. Defendants are hereby permanently enjoined from implementing and enforcing any and all provisions of section 3206 of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64.
4. Defendants are hereby permanently enjoined from implementing and enforcing any and all provisions of section 3209 of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64.
5. Defendants are hereby permanently enjoined from disclosing or otherwise making available for public inspection and copying any report that has been filed or that may be filed pursuant to sections 3207(b) or 3214(f) of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64.
6. Defendants are hereby permanently enjoined from implementing or enforcing the provisions of section 3214(a)(1), insofar as it requires the identification of the referring physician, and sections 3214(a)(8), 3214(a)(10), and 3214(a)(11), insofar as they require the identification of the basis for the physician's medical judgment, of the Pennsylvania Abortion Control Act of 1982, as amended by Act 31 and Act 64.
7. Defendants are hereby enjoined from distributing or utilizing the Pennsylvania "Report of Induced Termination of Pregnancy" except in an appropriate form consistent with the discussion and conclusions of law contained in the foregoing opinion.
IT IS SO ORDERED.
HUYETT, District Judge.
Upon consideration of plaintiffs' motion for partial summary judgment and supporting memoranda, defendants' response, and for the reasons stated in my opinion issued this date,
Plaintiffs' motion is DENIED.
IT IS SO ORDERED.
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