Opinion
No. 79-6063-CIV-JAG.
March 12, 1982.
Frances M. Farina, Farina, Wiener Schmitz, Miami Shores, Fla., for plaintiff.
Jim Smith, Atty. Gen., James A. Peters, Asst. Atty. Gen., Tallahassee, Fla., for defendants.
ORDER
THIS CAUSE is before the Court on Cross Motions for Summary Judgment on the Amended Verified Class Action Complaint.
Plaintiff, Florida Women's Medical Clinic, Inc. (Clinic), is an out-patient abortion facility which performs only first trimester abortions. Plaintiff, Garry H. Wachtel, M.D. is a licensed physician who regularly performs first trimester abortions at the Clinic. Plaintiff, Michael J. Benjamin, M.D. is a licensed physician who regularly performs first trimester abortions in his private office.
Plaintiffs brought this class action against Jim Smith, as Attorney General for the State of Florida; David Pingree, as Secretary of the Department of Health and Rehabilitative Services; and Michael J. Satz, as State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida.
The plaintiffs seek injunctive and declaratory relief pursuant to 42 U.S.C. § 1983.
The gravamen of the amended complaint is that the Florida Abortion Clinic Law, Fla.Stat. §§ 390.001-390.025, as amended (Supp. 1980), and the amended regulations promulgated thereunder by the Florida Department of Health and Rehabilitative Services (HRS), chapter 10D-72, Florida Administrative Code, are unconstitutional as applied to first trimester abortions. The text of the statute and the rules are contained in Appendix A and Appendix B respectively.
This action was originally filed in February, 1979. Thereafter this court held that the rules and regulations promulgated by HRS impermissibly invaded the constitutional right of privacy and that the state failed to demonstrate a compelling interest to warrant regulation of first trimester pregnancy terminations. Florida Women's Medical Clinic, Inc. v. Smith, 478 F. Supp. 233 (S.D.Fla. 1979) appeal dismissed, 620 F.2d 297 (5th Cir. 1980). The court went on to hold that the statutory licensing scheme, once sterilized by the ruling that the regulations were unconstitutional, did not pose an objectionable intrusion into the fundamental right of privacy. Id. at 236.
Thereafter, cross appeals were filed in the United States Court of Appeals for the Fifth Circuit. During the pendancy of that appeal the Florida Abortion Clinic Law was amended.
Plaintiffs sought to amend their complaint or to remand this cause to the district court, in order to challenge the law as amended. The Fifth Circuit denied the motion to amend but granted the motion to remand to enable plaintiffs to amend their complaint and challenge the 1980 enactment.
In arriving at its earlier decision this court was guided by the well settled general principle that courts will not pass on the constitutionality of an act of the legislature if the merits of the case may be fairly determined otherwise without so doing. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S.Ct. 342, 55 L.Ed. 389 (1911).
Thereafter the state did not see fit to amend the regulations previously promulgated so as to overcome the constitutional deficiencies earlier found by this court, but rather amended the statutes in question.
It is now clear in the light of the history of this matter that disposition of the constitutional questions presented is both imperatively required and unavoidable. Bush v. Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963); United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952).
Accordingly, this court granted plaintiffs leave to amend their original complaint and temporarily enjoined the enforcement of the Florida Abortion Clinic Law, Fla.Stat. §§ 390.001-390.025, as amended, and the amended rules and regulations adopted by HRS, insofar as they apply to first trimester abortions.
Thereafter, the court granted plaintiffs' motion for class certification allowing the named plaintiffs to represent the class composed of a) all first trimester abortion facilities in the State of Florida; b) all physicians licensed by the State of Florida who perform first trimester abortions in such facilities; c) all physicians licensed by the State of Florida who perform first trimester abortions in their private offices who may be subject to regulation; and d) all women of childbearing age who are or may become pregnant and who desire first trimester abortions.
Pursuant to the order of the court, the parties have submitted cross motions for summary judgment as to the constitutionality vel non of the statute and the regulations in their amended form.
The statute precludes abortion clinics ["any facility in which abortions are performed, other than a hospital or physician's office which is not used primarily for the performance of abortions," section 390.011(2)] from operating without a license issued by HRS. Fla.Stat. § 390.014.
In addition, HRS is delegated broad rulemaking authority pursuant to section 390.012(1).
The department shall have the authority to develop and enforce rules for the health, care, and treatment of persons in abortion clinics and for the safe operation of such clinics. These rules shall be comparable to rules which apply to all surgical procedures requiring approximately the same degree of skill and care as the performance of first trimester abortions. The rules shall be reasonably related to the preservation of maternal health of the clients. The rules shall not impose a legally significant burden on a woman's freedom to decide whether to terminate her pregnancy.
The amendment contained in section 390.012(1) grants even more sweeping authority to HRS than its predecessor to promulgate rules which provide for:
(a) The establishment of minimum standards for the care and treatment of clients of an abortion clinic;
(b) The availability of aftercare services and emergency medical services to be administered by a hospital;
(c) The transportation of patients requiring emergency care from an abortion clinic to a licensed hospital;
(d) The cleanliness of an abortion clinic and the area where the abortion is to be performed, which shall be consistent with the performance of surgical procedures generally, including the proximate location of sinks and the use of sterilized instruments in a sanitary environment, in the interest of protecting the health of the woman;
(e) The prompt and proper disposal of fetal remains and tissue resulting from the abortion, in the interest of protecting the public health; and
(f) The making, protection, and preservation of patient records, which shall be treated as medical records under chapter 458.
Fla.Stat. § 390.012 (Supp. 1978) provided, in relevant part, as follows:
The rules [adopted by HRS] shall provide for, but shall not be limited to:
1) The establishment of minimum standards for the care and treatment of clients of an abortion clinic;
2) The availability of aftercare services and emergency medical services to be administered by a hospital; and
3) The transportation of patients requiring emergency care from an abortion clinic to a licensed hospital
In the exercise of its mandate HRS promulgated amended rules which govern the licensing and regulation of clinics performing first trimester abortions.
The newly adopted rules set forth eight areas of regulation as follows:
10D-72.10 Licensure Procedures
10D-72.11 Medical Services
10D-72.12 Abortion Clinic Staff
10D-72.13 Medical Records
10D-72.14 Laboratory Services and Facilities
10D-72.15 Sanitation, Housekeeping and Maintenance
10D-72.16 Disposal of Fetal Remains
The statute provides for a transition period, not to exceed one year, within which presently existing clinics must comply with the rules. Fla.Stat. § 390.013. HRS then adopted a 90-day transition period. Rule 10D-72.17.
The penalty sections of the statute, which are then in effect, also delegate broad authority to HRS. Section 390.019 mandates a pre-licensing inspection of an abortion facility and further provides that HRS "shall make such additional inspections and investigations as may be necessary to assure compliance with this act."
Should HRS determine that an abortion facility is in non-compliance with the statute or the rules thereunder, HRS may institute legal proceedings to enjoin the operation of that facility. Fla.Stat. § 390.021.
In addition, HRS may revoke, suspend, or not renew a license if a clinic has violated any of the act's provisions or any rule or lawful order of HRS, or impose a fine not to exceed $1,000 for each violation. Fla.Stat. §§ 390.017, 390.018.
Finally, the failure to dispose of fetal remains in the appropriate manner constitutes a misdemeanor of the first degree. Fla.Stat. § 390.012(2).
The issues before the court may be divided as follows: first, whether the regulatory scheme unlawfully impinges on the constitutional right to privacy; second, whether the licensing provisions of the statute and the rules thereunder impermissibly intrude into this protected right.
Plaintiffs maintain that Florida's comprehensive regulatory scheme singles out the first trimester abortion process from similar medical procedures, unduly interferes with that process, and has not been substantiated by a compelling state interest. Moreover, they contend that compliance with the statute and the regulations would raise the cost of first trimester abortions and place the procedure beyond the financial means of a significant number of women.
Defendants submit that a regulatory plan which merely increases the cost of first trimester abortions and does not invade a woman's freedom to decide whether or not to terminate her pregnancy, must only provide a reasonable means to effectuate legitimate state goals. In sum, the state is not required to provide a first trimester abortion which is financially available to all pregnant women who wish to terminate their pregnancies.
Thus, the court must once again determine the breadth of the fundamental right which is at stake.
The starting point of any discussion of a woman's right to an abortion is Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), where the Court held unconstitutional a Texas statute which excepted from criminality only those abortions procured or attempted by medical advice for the purpose of saving the mother's life. The Court based its decision on the "liberty" component of the Due Process Clause of the Fourteenth Amendment which encompasses a freedom of personal choice in certain matters of marriage and procreation. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Skinner v. Oklahoma, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). This constitutional right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 153, 93 S.Ct. at 727.
Since the decision to terminate a pregnancy is a fundamental right, its regulation may be justified only by a "compelling state interest" and by a legislative enactment properly tailored to express only the legitimate state interest at stake. Id. at 155, 93 S.Ct. at 728. Thus, this fundamental right of personal privacy is not absolute and accordingly must be weighed against legitimate state interests in safeguarding maternal health, maintaining medical standards, and protecting potential life. Id. at 154, 93 S.Ct. at 727.
The Court articulated a framework within which to analyze these competing interests. At the heart of this framework lies the proposition that the interests of the state in regulating abortions grows in substantiality as the woman approaches the end of the nine month period of gestation.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health,
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 164-65, 93 S.Ct. at 732.Roe v. Wade and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) provide some guidance, albeit in dicta, as to the scope of permissible state regulation.
In Roe, the Court stated that during the period following the conclusion of the first trimester, regulations reasonably related to the preservation and protection of maternal health, include the decision as to the facility in which the abortion may be performed, the licensing of that facility, the determination as to who may perform an abortion, and requirements as to the licensure of that person. 410 U.S. at 163, 93 S.Ct. at 732. See Doe v. Bolton, 410 U.S. at 194-95, 93 S.Ct. at 748-49.
Subsequent to Roe and Doe the Court has had the opportunity to address the permissible range of regulation of first trimester abortions.
First, the Court upheld the requirement that all abortions, including those performed during the first trimester, be performed by a licensed physician. Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam). This decision is based on the determination in Roe that a first trimester abortion is as safe for the woman as childbirth. That finding can only be sustained if "the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman." Menillo, 423 U.S. at 11, 96 S.Ct. at 171.
Next the Court upheld two statutory provisions regulating first trimester abortions in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). First, the requirement that the woman provide written consent to the abortion procedure was permissible because it assured the woman's awareness of her decision and its significance. Id. at 67, 96 S.Ct. at 2840. Second, the requirement that records of abortions be maintained, although approaching impermissible limits, was not unconstitutional because such records are useful in promoting the State's interest in promoting the health of its female citizens. Id. at 81, 96 S.Ct. at 2846.
Finally, in Sendak v. Arnold, 429 U.S. 968, 97 S.Ct. 476, 50 L.Ed.2d 579 (1976) the Court summarily affirmed a lower court order declaring unconstitutional portions of the Indiana abortion statute. 416 F. Supp. 22 (S.D.Ind. 1976). The relevant statute required all abortions, including those performed during the first trimester, to be performed in a hospital or licensed facility which provided "the basic safeguards as provided by a hospital admission, and has immediate hospital backup . . ." Ind. Code § 35-1-58.5-2(a)(1) (1975). The lower court emphasized that Roe and Doe expressly provided that the State may designate the facility wherein a pregnancy may be terminated, only after the compelling point, which is the end of the first trimester. 416 F. Supp. at 24.
Plaintiffs rely, inter alia, on Roe and its progeny to support their position that the statute and the administrative rules are unconstitutional.
In reply, and in support of their own motion for summary judgment, defendants rely on a second series of abortion cases, Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) and Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), as well as several lower court decisions.
In Maher, the Court held that the scope of the protection afforded by Roe v. Wade did not include an entitlement to Medicaid payments for nontherapeutic abortions even though the State did provide payments for medical services incident to childbirth. The State had made a "value judgment favoring childbirth over abortion, and . . . implement[ed] that judgment by the allocation of public funds." 432 U.S. at 474, 97 S.Ct. at 2382. The State's value judgment was constitutionally permissible because the restriction on the availability of an abortion was not State-created. "The indigency that may make it difficult — and in some cases, perhaps, impossible — for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." Id. at 474, 97 S.Ct. at 2383.
Similarly, in Harris v. McRae the Court upheld the Hyde Amendment which limited the availability of medicaid funds for certain medically necessary abortions. Again the Court found that the challenged statute "place[d] no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services encourages alternative activity deemed in the public interest." 448 U.S. at 315, 100 S.Ct. at 2687.
Inasmuch as the relevant statutes did not impinge on a fundamental right, both cases were judged by the due process standard which requires that legislative enactment bear a rational relationship to a legitimate governmental interest. McRae, 448 U.S. at 324-26, 100 S.Ct. at 2692-93. Maher, 432 U.S. at 478-79, 97 S.Ct. at 2385.
Defendants also contend that the reasoning adopted by the lower courts in Westchester Women's Health Organization v. Whalen, 475 F. Supp. 734 (S.D.N.Y. 1979) ("WWHO") and Birth Control Centers, Inc. v. Reizen, 508 F. Supp. 1366 (E.D.Mich. 1981), should be applied herein.
In WWHO the issue before the court was whether the New York statutory and regulatory scheme regulating hospitals and other health service facilities was unconstitutional as applied to pregnancy termination facilities which performed first trimester abortions. The court upheld the comprehensive scheme as applied to the abortion clinics because its application did not intrude on a woman's freedom to decide whether or not to terminate her pregnancy. 475 F. Supp. at 740-41.
The fact that an abortion clinic must conform to minimum health and safety standards would not in any way coerce a woman into not having an abortion; indeed, the opposite effect would probably result in that a woman would be assured that certain health and safety standards had been met.Id. at 741.
Similarly, in Birth Control Centers the court upheld a statutory and regulatory scheme applicable to all "freestanding surgical outpatient facilities" insofar as they applied to first trimester abortions.
Both cases relied on by the defendants are distinguishable. First, neither the New York nor the Michigan regulatory schemes limit their application to first trimester pregnancy termination facilities. In each instance the State exercised its police powers to promote public health and sought to provide a comprehensive health package for all health service facilities. The State of Florida, however, has chosen to single out the first trimester abortion procedure from similar medical procedures and subject it to sweeping regulation.
Second, the regulations which were upheld in Birth Control Centers include the reporting and recordkeeping provisions which were approved in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). Moreover the restriction that "freestanding surgical outpatient facilities" may only perform "uncomplicated pregnancies of not over 14 weeks' duration" is based on the proposition in Roe v. Wade that the State's interest becomes compelling at the end of the first trimester. 508 F. Supp. at 1380-1381.
The legislative and regulatory enactments upheld in WWHO are somewhat analogous to the scheme imposed in Florida, and as such the case is not readily distinguishable on its facts. This court finds that the court in WWHO read the protected right too narrowly.
A review of the abortion decisions since Roe v. Wade indicates the existence of three strands of the constitutional right to privacy insofar as it applies to the termination of a pregnancy.
First the decisionmaking process itself is left to the woman in consultation with her physician and is guarded from unwarranted intrusion by the state. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (state may not require consent of the spouse as a condition for obtaining a first trimester abortion); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (state may not require pregnant minor to obtain parental consent to undergo an abortion where that consent may operate as an absolute veto). Cf. H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) (state may require the physician of an unemancipated, dependent minor to notify, if possible, the minor's parents prior to performing an abortion).
The second strand is an outgrowth of the freedom to decide, and incorporates the interest-balancing analysis set forth by the Court in Roe v. Wade. Thus, the State is precluded from regulating first trimester abortion facilities absent a compelling state interest. See Sendak v. Arnold, 429 U.S. 968, 97 S.Ct. 476, 50 L.Ed.2d 579, (1976); Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975). During the second trimester the State may "regulate the abortion procedure in ways that are reasonably related to maternal health." Roe, 410 U.S. at 164, 93 S.Ct. at 732. Finally, during the period after viability the State in advancing its interest in the potentiality of human life, may regulate or proscribe abortions except where the life or health of the mother is jeopardized. Id. at 164-65, 93 S.Ct. at 732.
The third deals with the question of whether the State must remove obstacles to facilitate access to first trimester abortions. It is now clear that while government may not engineer the imposition of obstacles it need not remove those which it did not create in the first instance. See Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). Enactments which merely advance the public interest in an alternative activity enjoy the presumption of constitutionality and will be upheld provided they bear a reasonable relationship to the public interest.
The components of this abortion construct are not separated by bright lines. There will be instances of overlap and few, if any, cases will be susceptible of being pigeonholed into one of the categories.
The comprehensive plan which plaintiffs assail fairly falls within the second category and must be measured by a heightened level of judicial review.
The court finds the Seventh Circuit's decision in Friendship Medical Center, Ltd. v. Chicago Board of Health, 505 F.2d 1141 (7th Cir. 1974), illuminating. There the court held unconstitutional regulations applicable to facilities performing first trimester abortions. The court rejected the argument of a distinction between regulating the abortion decision and regulating the manner by which the decision is effectuated.
The regulations by their very nature restrict the abortion decision and affect whether and in what manner an abortion will take place. The decision whether or not to abort a pregnancy cannot be made in a vacuum without regard to . . . under what conditions it will be performed, and what procedure will be followed. All these are involved in any abortion decision and it is precisely these elements of the decision that the regulations here challenged seek to control.Id. at 1151.
This court, like the Seventh Circuit, is not unmindful of the State's laudable goals in adopting the statute and promulgating the regulations. However, the existence of laudable goals, standing alone, does not provide a compelling state interest.
The task that remains for this court is the determination of the constitutionality of the statutory and regulatory provisions adopted by the State of Florida.
Medical Services, Laboratory Facilities, Sanitation, Disposal of Fetal Remains. Fla.Stat. § 390.012 grants rulemaking authority to HRS "to develop and enforce rules for the health, care, and treatment of persons in abortion clinics and for the safe operation of such clinics." See Appendix A for complete text.
Pursuant to that mandate, HRS promulgated the following rules as part of the Florida Administrative Code: 10D-72.11; 10D-72.14; 10D-72.15; 10D-72.16.
These rules require, inter alia, that abortion clinics and the physicians who perform first trimester abortions maintain specified equipment in the clinic; prepare a written pamphlet outlining post-operative treatment; perform specified tests prior to the abortion procedure; make available certain medications for post-operative treatment; establish procedures to maintain proper sanitation; and to dispose of fetal remains in a nuisance-free manner. See Appendix B for the complete text.
These provisions fall within the second category of the court's abortion construct — regulation of first trimester abortions. The statute and rules circumscribe the facilities themselves and the procedures used to perform first trimester abortions. They clearly run afoul of the standards articulated in Roe v. Wade, where the Court held that during the first trimester,
the attending physician, in consultation with his patient, is free to determine without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.410 U.S. at 163, 93 S.Ct. at 732.
Moreover, "during the first stage of pregnancy the State may impose no restrictions or regulations governing the medical judgment of the pregnant woman's attending physician with respect to the termination of her pregnancy." Planned Parenthood of Central Missouri, 428 U.S. at 80, 96 S.Ct. at 2846.