Thornburgh v. American College of Obstetricians and Gynecologists
Appellees brought an action in Federal District Court alleging that the Pennsylvania Abortion Control Act of 1982 violated the Federal Constitution and seeking declaratory and injunctive relief. The court denied appellees' motion for a preliminary injunction, except as to one provision of the Act which it held was invalid. The Court of Appeals, after granting appellees' motion to enjoin enforcement of the entire Act, held unconstitutional, on the basis of the intervening decisions in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, and Simopoulos v. Virginia, 462 U.S. 506, the following provisions of the Act: (1) the portions of § 3205 that, with respect to the requirement that the woman give her "informed consent" to an abortion, require her to be informed of the name of the physician who will perform the abortion, the "particular medical risks" of the abortion procedure to be used and of carrying her child to term, and the facts that there may be "detrimental physical and psychological effects," medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, the father is liable to assist in the child's support, and printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion; (2) § 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born and a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments"; (3) § 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability, and the method of payment for the abortion, and further provide that such reports shall not be deemed public records but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report; (4) § 3211(a) that requires the physician, after the first trimester, to report the basis for his determination that a child is not viable; (5) § 3210(b) that requires a physician performing a post-viability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health; and (6) § 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health. The court held that the validity of other provisions of the Act might depend on evidence adduced at the trial and accordingly remanded these features of the case to the District Court.
1. In a situation such as is presented by this case, where the judgment below is not final and the case is remanded for further development of the facts, this Court has no appellate jurisdiction under 28 U.S.C. 1254(2). But the jurisdictional statement here is treated as a petition for certiorari, and the writ is granted. Pp. 754-755.
2. With a full record before it on the issues as to the validity of the Act and with the intervening decisions in Akron, Ashcroft, and Simopoulos at hand, the Court of Appeals was justified in proceeding to plenary review of those issues. It was not limited to determining whether the District Court abused its discretion in denying a preliminary injunction. Pp. 755-757.
3. The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make. Pp. 758-771.
(a) The printed materials required by § 3205 and § 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician. Similarly, § 3205's requirement that the woman be advised that medical assistance may be available and that the father is responsible for financial assistance in support of the child are poorly disguised elements of discouragement for the abortion decision. And § 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent. Pp. 759-765.
(b) The scope of the information required by § 3214(a) and (h) and § 3211(a) and its availability to the public belie any assertions by the State that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right and must be invalidated. Pp. 765-768.
(c) Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical-emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions. Pp. 768-771.
737 F.2d 283, affirmed.
Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 772. Burger, C. J., filed a dissenting opinion, post, p. 782. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 785. O'Connor, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 814.
Andrew S. Gordon, Senior Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were LeRoy S. Zimmerman, Attorney General, and Allen C. Warshaw, Chief Deputy Attorney General.
Kathryn Kolbert argued the cause for appellees. With her on the brief was Thomas E. Zemaitis.[*]
^ . Briefs of amici curiae urging reversal filed for the United States by Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Assistant Attorney General Kuhl, John F. Cordes, and John M. Rogers; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko; for Senator Gordon J. Humphrey et al. by Robert A. Destro and Basile J. Uddo; for Watson D. Bowes, Jr., et al. by Steven Frederick McDowell; and for John D. Lane et al. by John E. McKeever.
Briefs of amici curiae urging affirmance were filed for the Attorney General of New York by Robert Abrams, Attorney General, pro se, Robert Hermann, Solicitor General, Rosemarie Rhodes, Assistant Attorney General, and Lawrence S. Kahn, Sanford M. Cohen, and Martha J. Olson, Assistant Attorneys General; for the American Civil Liberties Union et al. by Nan D. Hunter, Janet Benshoof, and Suzanne M. Lynn; for the American Medical Association et al. by Benjamin W. Heineman, Jr., Carter G. Phillips, Newton N. Minow, Jack R. Bierig, Stephan E. Lawton, Joel I. Klein, Joseph A. Keyes, Jr., and Ann E. Allen; for the Center for Constitutional Rights et al. by Anne E. Simon, Nadine Taub, Rhonda Copelon, and Judith Levin; for the National Abortion Federation by David I. Shapiro, Sidney Dickstein, Kenneth M. Simon, and Amy G. Applegate; for the National Abortion Rights Action League et al. by Lynn I. Miller; for the National Family Planning and Reproductive Health Association, Inc., by Robert T. Crothers; for the National Organization for Women et al. by Diane E. Thompson; and for the Planned Parenthood Federation of America, Inc., et al. by Dara Klassel and Eve W. Paul.
Briefs of amici curiae were filed for the American Psychological Association by Donald N. Bersoff and Bruce J. Ennis; for the Women's Lawyers' Association of Los Angeles, California, et al. by Susan R. Schwartz, Carol Boyk, Judith Gordon, and Lorraine Loder; for the Unitarian Universalist Association et al. by Madeline Kochen; for Senator Bob Packwood et al. by Laurence H. Tribe and Kathleen M. Sullivan; for Susan Bandes et al. by Arthur Kinoy; and for Olivia Gans et al. by James Bopp, Jr.