City of Akron v. Akron Center for Reproductive Health, Inc.
Docket: 81-746
Court: Supreme Court of the United States; June 15, 1983; Federal Supreme Court; Federal Appellate Court
An Akron, Ohio ordinance mandates that: 1) all abortions after the first trimester must be performed in a hospital; 2) physicians cannot perform abortions on unmarried minors under 15 without parental consent or a court order; 3) attending physicians must inform patients about their pregnancy status, fetal development, viability, potential complications from abortion, and available resources; 4) a 24-hour waiting period is required after the patient signs a consent form; and 5) fetal remains must be disposed of humanely and sanitarily. Violations are punishable as misdemeanors.
The District Court invalidated certain sections of the ordinance while upholding others. The Court of Appeals affirmed some of these rulings but reversed others. The Supreme Court ruled that Section 1870.03 is unconstitutional, stating that while the state's interest in health regulation is compelling post-first trimester, regulations must align with accepted medical practices and not create unnecessary burdens on access to safe abortion procedures. Section 1870.05(B) was also found unconstitutional for broadly assuming that all minors under 15 lack the maturity to make informed abortion decisions without parental consent, contradicting existing juvenile law regarding maturity and emancipation.
Section 1870.05(B) does not permit case-by-case assessments of the maturity of pregnant minors in juvenile proceedings. Sections 1870.06(B) and 1870.06(C) are deemed unconstitutional because they exceed the State's interest in ensuring informed consent for abortions. The requirement for informed consent must not manipulate a woman's decision-making regarding abortion or childbirth. Section 1870.06(B) overreaches by imposing rigid informational mandates on physicians that hinder their discretion and ability to counsel patients effectively. Additionally, Section 1870.06(C) incorrectly asserts that only a physician can provide the necessary counseling for informed consent, limiting the role of other qualified individuals.
Section 1870.07 is also unconstitutional, lacking evidence that a mandatory waiting period serves any legitimate state interest or enhances the safety of the abortion procedure. The imposed 24-hour delay does not reasonably contribute to ensuring an informed decision. Finally, Section 1870.16 violates the Due Process Clause by failing to provide physicians with adequate notice regarding prohibited conduct. This review follows earlier rulings on abortion regulations, reaffirming the constitutional right to privacy established in Roe v. Wade, which upholds a woman's right to choose to terminate her pregnancy. The Court continues to clarify the boundaries of state authority in regulating abortions.
The doctrine of stare decisis is acknowledged as significant in a society governed by the rule of law, with a reaffirmation of Roe v. Wade. In February 1978, Akron's city council enacted Ordinance No. 160-1978, which includes 17 provisions regulating abortions, five of which are contested in this case:
1. **Section 1870.03** mandates that post-first trimester abortions must occur in a hospital.
2. **Section 1870.05** outlines parental notification and consent requirements for unmarried minors.
3. **Section 1870.06** requires the attending physician to provide specified information to ensure informed consent.
4. **Section 1870.07** enforces a 24-hour waiting period between consent and the procedure.
5. **Section 1870.16** dictates the humane and sanitary disposal of fetal remains.
Violations of the ordinance are classified as misdemeanors, and any invalidated provisions will be severed from the ordinance. The ordinance took effect on May 1, 1978. A lawsuit challenging nearly all provisions was filed shortly before this date by three abortion clinic corporations and a physician against the city and its officials, with two individuals intervening as co-defendants.
On April 27, 1978, the District Court issued a preliminary injunction against the ordinance. After a merits hearing in August 1979, the court found that the plaintiffs lacked standing on seven provisions and invalidated four, including parental notification and certain disclosure requirements, while upholding the hospitalization requirement, specific disclosure obligations, and the waiting period. All parties appealed, leading to a partial affirmation and reversal by the Court of Appeals for the Sixth Circuit. The appeals court upheld the hospitalization requirement but deemed the parental notice, certain disclosures, and the waiting period unconstitutional. Subsequently, three petitions for certiorari were filed, prompting the Court to grant both Akron's and the plaintiffs' petitions due to the significant legal issues involved and conflicting rulings on second-trimester abortion hospital requirements.
The Supreme Court denied the intervenors' petition in Seguin v. Akron Center for Reproductive Health, Inc., allowing their participation as respondents. The Court reversed the Court of Appeals' judgment regarding Akron's hospitalization requirement but upheld the decision invalidating provisions related to parental consent, informed consent, waiting periods, and fetal remains disposal. The ruling reaffirms the right of privacy under the Fourteenth Amendment, which permits a woman to decide whether to terminate her pregnancy. While this right is not explicitly listed in the Constitution, historical interpretations confirm that the Due Process Clause guarantees a broad scope of personal liberties, including choices about marriage and family life. The Court's decision emphasizes that the physician must have the discretion to exercise medical judgment in assisting women with their choices regarding abortion. The Court acknowledged the state's interest in regulating abortion, particularly concerning the protection of potential human life, which becomes compelling at the point of viability, when the fetus can survive outside the womb.
At viability, the state has a compelling interest in protecting potential life, allowing it to prohibit abortions except when necessary to safeguard the mother’s life or health. A state may also assert interests in the health of women undergoing abortions, yet this interest becomes compelling only at the end of the first trimester. During this initial period, a woman has the right to decide to have an abortion without state interference, although the state may impose regulations that do not significantly impact this right and are justified by health objectives.
The Supreme Court upheld Missouri regulations requiring informed written consent and record-keeping for abortions during the first trimester, indicating that such regulations must further important health-related concerns. However, these regulations must not interfere with physician-patient consultations or the woman’s choice. Once the first trimester ends, the state may regulate abortion procedures in ways that reasonably relate to preserving maternal health, but such regulations cannot deviate from accepted medical practices.
A specific regulation requiring abortions performed after the first trimester to be conducted in accredited hospitals is outlined in Section 1870.03 of the Akron ordinance. This regulation limits abortions to facilities that meet comprehensive health and safety standards, thereby excluding outpatient facilities lacking acute-care capabilities.
Plaintiffs in the District Court argued that Akron's hospitalization requirement for second-trimester abortions significantly hinders women's access to these procedures and lacks a reasonable connection to the state's interest in maternal health. The District Court acknowledged the argument but found the evidence insufficient to override the Supreme Court's precedent in Roe v. Wade, which differentiates between permissible second-trimester regulations and impermissible first-trimester ones. The Court of Appeals upheld this view, recognizing that the hospitalization requirement lacked a reasonable health justification during part of the second trimester but refused to abandon the established legal standard.
The Supreme Court disagreed with the lower courts, concluding that the hospitalization requirement under Ohio Revised Code § 1870.03 is unconstitutional. It reaffirmed that after the first trimester, while the state's interest in health becomes compelling, regulations must reasonably further that interest. The Court noted past rulings, including the invalidation of Georgia's hospital requirement in Doe v. Bolton, emphasizing that states must demonstrate that only hospital settings are adequate for second-trimester abortions.
The Court clarified that while states have some latitude in establishing regulations, they cannot broadly apply restrictions that deviate from accepted medical practices throughout the entire second trimester. The requirement imposes significant burdens on women, notably increasing costs for second-trimester abortions, which can exceed double the price of procedures performed in clinics.
In-hospital abortions range from $850 to $900, while clinic-based dilatation-and-evacuation (D.E) abortions cost between $350 and $400. The court noted that second-trimester abortions are infrequently performed in Akron hospitals, with only nine such procedures conducted in the year prior to the trial. This hospitalization requirement can compel women to travel for available services, imposing additional financial burdens and health risks, thereby significantly limiting access to abortion. Akron defends the regulation as a reasonable health measure, referencing past support from the American Public Health Association (APHA) and the American College of Obstetricians and Gynecologists (ACOG) for hospitalization. However, advancements have made second-trimester abortions, particularly via the D.E procedure, much safer than before. Evidence indicates that D.E can be performed safely on an outpatient basis, leading the APHA to revise its stance against outpatient procedures for second-trimester abortions. The ACOG similarly no longer advocates for hospital-only abortions, allowing for the procedure to be conducted in suitable outpatient facilities until 18 weeks of pregnancy. These developments challenge Akron's justification for its hospitalization requirement, which does not align with current medical knowledge. While the regulation's validity is not negated by the ability to perform some mid-trimester abortions in less equipped settings, the regulation must still be reasonable, which Akron's requirement fails to demonstrate.
Akron's regulation on D. E abortions significantly restricts women's access to a safe and affordable procedure, imposing an unnecessary burden, particularly affecting the majority of abortions performed after 12 weeks. The provision in Section 1870.05(B) requires parental consent or a court order for minors under 15 to obtain an abortion. This requirement was invalidated by the District Court, which noted it failed to provide a process for minors to demonstrate informed decision-making, mandating both informed consent from the minor and either parental consent or a court order in all cases. The Court of Appeals upheld this decision, aligning with precedents that prohibit blanket parental consent requirements for unmarried minors, emphasizing the state's need to allow minors to show maturity or best interests in making abortion decisions. Akron's ordinance does not fulfill the alternative procedural requirement established by the Bellotti II ruling, which states that a state must not assume all minors are too immature to make such decisions. Akron argues that the Ohio Juvenile Court could provide the needed jurisdiction to address these concerns, yet the courts concluded that the ordinance should not have been upheld based solely on this assertion. The abstention principle from earlier cases, which suggests deferring to state court interpretation of ambiguous statutes, was deemed inappropriate in this instance.
A state court is expected to interpret state statutes regarding abortion consent for minors in a manner consistent with constitutional guidelines, as seen in previous cases. However, the current case addresses a municipal ordinance that lacks specific procedures for determining consent for minors seeking abortions. The ordinance attempts to rely on an Ohio statute regarding juvenile proceedings, which does not address minors' abortions or the authority to evaluate a minor's maturity or emancipation. Consequently, the ordinance does not provide a mechanism for assessing the maturity of pregnant minors on a case-by-case basis, leading to the affirmation of the Court of Appeals' ruling declaring the ordinance unconstitutional.
The Akron ordinance mandates that no abortion can be performed without the informed, written consent of the pregnant woman, which must be freely given without coercion. The ordinance also stipulates that the attending physician must orally inform the woman about her pregnancy status, fetal development, potential viability, possible complications from the abortion, and available support resources. Additionally, the physician must provide information regarding the specific risks associated with the woman's pregnancy and the abortion method.
While the District Court found one provision unconstitutional, it deemed another relevant to state interests in maternal health. The Court of Appeals, however, ruled both provisions unconstitutional, a decision that has been upheld. The excerpt also references a Missouri law upheld in a prior case that requires a woman to certify her informed consent for an abortion in writing, emphasizing the need for comprehensive knowledge regarding the decision's nature and consequences. The requirement for informed consent is fundamentally supported by the state's interest in safeguarding the health of pregnant women, as the implications of abortion decisions extend beyond typical medical treatments.
The State has a legitimate interest in ensuring that women are provided with comprehensive information relevant to their well-being when considering an abortion, encompassing psychological, emotional, and physical factors. However, this does not grant the State unreviewable authority over the information mandated to be shared with a woman prior to her decision. The primary responsibility for conveying appropriate information lies with the physician, tailored to the patient's specific circumstances. Regulations aimed at influencing a woman’s informed choice between abortion and childbirth are not justified.
Section 1870.06(B) is criticized for extending the State's interest in informed consent beyond acceptable limits. The information required often serves to persuade women against consent, such as the stipulation that the physician must state that "the unborn child is a human life from the moment of conception," contradicting established legal precedents. Additionally, detailed descriptions of the unborn child's characteristics may lead to speculative assertions by the physician. The provision also includes a list of potential physical and psychological complications of abortion, which may be exaggerated and intended to portray abortion as excessively dangerous.
Moreover, the regulation restricts the physician's discretion by mandating the recitation of specific information regardless of its relevance to the individual patient. This creates a conflict with the physician's judgment and places undue burdens on them, as outlined in prior case law. While the State can require physicians to ensure that patients understand the implications of abortion, the rigid requirements of Section 1870.06(B) unduly obstruct the physician's ability to provide personalized advice.
The provision mandates that the "attending physician" inform a woman about the specific risks related to her pregnancy and the abortion technique, including a general overview of post-abortion care instructions to ensure safe recovery. This information is deemed essential for maternal health and supports the state's objective of informed consent. However, the Court of Appeals ruled that this requirement infringes on the physician's medical judgment by necessitating disclosures in all cases, which they argued was a misapplication of precedent set in Danforth. The court noted that "informed consent" should encompass the information necessary for the patient to understand the procedure and its consequences.
The ruling also determined that the requirement for the disclosure to be made by the "attending physician" was invalid, as the plaintiff clinics typically have non-physicians conduct counseling. Akron contested this finding, arguing that it is essential for a genuine physician-patient relationship, which ensures that the physician engages directly with the patient regarding health risks and the abortion decision. While requiring personal discussions may increase costs, there is no evidence that ethical practitioners would raise fees. The legal precedent from Roe and subsequent cases emphasizes the physician's crucial role in consulting with patients about abortions and performing the procedure, with states permitted to mandate that only licensed physicians conduct abortions to safeguard the process.
The excerpt addresses the state's interest in ensuring informed consent for abortion without mandating that a physician personally counsel the patient if not requested. It emphasizes that the key is whether the patient receives adequate information from a qualified individual, rather than the identity of that individual. The court notes that there was no evidence to support claims that non-physician counselors are unqualified, and thus, a physician may delegate counseling responsibilities. The state retains the authority to ensure that counseling is adequate and that the physician verifies informed consent.
The excerpt also critiques an Akron ordinance requiring a 24-hour waiting period after a woman signs a consent form before an abortion can be performed. The District Court had upheld this waiting period as supportive of careful decision-making, but the Court of Appeals reversed this decision, deeming the waiting period arbitrary, lacking medical justification, and outside the state's power to impose. The waiting period was found to increase the cost and logistical burden on women, with potential health risks due to delays. Akron failed to prove that the waiting period serves any legitimate state interest, nor that it enhances the safety of the abortion procedure. The judgment of the Court of Appeals, declaring the waiting period invalid, was affirmed.
The court expresses skepticism regarding the effectiveness of a mandated 24-hour waiting period for informed consent in abortion decisions, emphasizing the importance of allowing physicians discretion in medical judgment. If a woman is properly counseled and provides written informed consent, the state cannot require a delay in her decision to proceed with an abortion. The Akron ordinance's requirement for humane and sanitary disposal of fetal remains is deemed impermissibly vague, leading to the invalidation of the entire provision. The court affirms that this vagueness fails to provide physicians with clear notice of prohibited conduct, violating the Due Process Clause. Consequently, the court upholds the invalidation of sections of Akron's abortion regulations concerning parental consent, informed consent, the waiting period, and disposal of fetal remains, while reversing the requirement for second-trimester abortions to be performed in hospitals. Justice O'Connor, joined by Justices White and Rehnquist, dissents, noting that the court does not revisit the foundational ruling of Roe v. Wade, which recognizes a woman's right to make decisions about terminating her pregnancy, and suggests that the court’s analysis is inconsistent regarding the varying stages of pregnancy and related standards of review.
The Court's review of the Akron regulations reveals inconsistencies with prior abortion case analyses and the treatment of fundamental rights in other contexts. It asserts that regulations on lawful abortions are unconstitutional only if they impose an "undue burden" on the right to seek an abortion, a standard established in previous cases such as Maher v. Roe and Harris v. McRae. This "unduly burdensome" standard should apply throughout pregnancy, without regard to specific stages, and if a regulation does not impose an undue burden, it should only be evaluated for its rational relation to a legitimate state interest.
The dissent criticizes the trimester approach from Roe as an ineffective framework for balancing women's rights and state interests, arguing it has become unworkable due to evolving medical practices. The Court notes that state interests in maternal health shift with advances in medical technology, and regulations must align with accepted medical standards. The Court invalidates a regulation requiring second-trimester abortions to occur in hospitals, as advancements in the dilation and evacuation (D.E.) procedure now allow for safe performance in non-hospital settings. It establishes 16 weeks of gestation as the threshold for safe non-hospital procedures, thereby blurring the clear distinctions previously drawn by the trimester approach. Consequently, the state must now engage in continuous review of medical literature to ensure that regulations do not diverge from accepted practices during specific periods within the trimester.
Legislative bodies, equipped with adequate resources, are expected to make informed decisions regarding public health protections, a task that the Constitution does not mandate them to undertake before ensuring the health of citizens. The courts, lacking these resources, should not assume the role of revising medical standards, especially when organizations like the American College of Obstetricians and Gynecologists (ACOG) periodically update their guidelines, as was the case in 1982, after the relevant trials. ACOG previously recommended that mid-trimester abortions occur in hospitals, illustrating the evolution of medical standards over time.
Medical advancements are reshaping the timeline for state regulations concerning maternal health and fetal viability. Historically, viability was considered to occur around 28 weeks, but ongoing research indicates that earlier viability may soon be achievable, potentially during the first trimester. The Supreme Court has recognized this flexibility in determining viability, noting that it is dependent on medical judgment and advancements.
The existing Roe framework presents inherent contradictions: as the safety of abortion procedures improves, the state can regulate maternal health closer to childbirth, while advancements in medical science may push the viability threshold closer to conception. Additionally, the trimester-based approach lacks the stability and consistency necessary for effective judicial decision-making, as it is overly reliant on the prevailing medical technology at the time of litigation.
Legislatures are tasked with making factual judgments regarding "accepted medical practice," yet the Court's framework compels them to speculate on this without adequate expertise. Consequently, courts act as de facto science review boards, evaluating legislative decisions. Although the Court follows the Roe framework out of respect for the doctrine of stare decisis, it acknowledges that this principle is not applied as strictly in constitutional cases. The Court retains the authority to reexamine its constitutional decisions when convinced of prior errors.
Even if a fundamental right to terminate a pregnancy exists, the trimester framework established in Roe lacks legal or logical justification and is an ineffective means of reconciling that right with compelling state interests. The Court recognizes the state’s legitimate interests in health standards and protecting potential life, asserting that these interests are not confined to specific trimesters but are present throughout pregnancy. Consequently, states can enact regulations to ensure the safety of medical procedures, as there is no constitutional limitation on their power to do so. The Court's current interpretation under Roe delays the compelling state interest in maternal health until the second trimester, based on outdated mortality comparisons between abortion and childbirth.
Before the second trimester, the decision to perform an abortion should be determined by the medical judgment of the pregnant woman's attending physician. The argument critiques the Roe v. Wade framework, asserting that while the State has a compelling interest in maternal safety during later stages of pregnancy, it also has a legitimate interest in regulating first-trimester abortions to ensure safety. The State's interest in potential human life exists throughout the pregnancy, not just at viability, which the Court identified as the point when the state interest becomes compelling. This choice of viability is criticized as arbitrary, as potential life exists from the outset of pregnancy.
While the State has compelling interests in protecting potential life and maternal health, not all regulations must meet strict scrutiny. Roe established that the right to an abortion is not absolute, but protects women from undue burdens on their decision to terminate a pregnancy. The standard of "unduly burdensome" has been consistently applied in abortion cases and is not limited to this context; it requires that state interference substantially impacts a fundamental right before strict scrutiny is applied. If the regulation does not meet this threshold, it is assessed based on a rational relationship to legitimate state purposes, a standard also seen in First Amendment cases.
Before applying the "strict scrutiny" standard to state laws affecting sexual freedom, there must be a significant burden on a protected right or substantial limitations on an individual's ability to prevent conception or terminate pregnancy. The Court noted that even burdensome regulations could be justified by a compelling state interest. In Griswold v. Connecticut, the Court highlighted that a ban on contraceptives for married couples severely impacted marital relationships. Although the term "undue burden" is not explicitly used, the Court acknowledges that a "significant obstacle" may still be validated by reasonable regulation.
The "undue burden" standard, particularly relevant in abortion cases, serves as a threshold inquiry to determine whether a state must justify its legislative actions under the compelling state interest standard. This standard should be applied with restraint, respecting legislative judgments. The privacy right in the abortion context is not absolute; Roe v. Wade did not establish an unrestricted right to abortion but aimed to protect against state actions that drastically limit access to safe abortion services.
State regulations that inhibit abortions do not automatically render those regulations invalid, provided they do not impose absolute obstacles or severe limitations. The Court has invalidated laws that create significant barriers, such as Texas's criminalization of most abortions and prohibitions on specific abortion methods that effectively prevent access. Additionally, regulations requiring parental or spousal consent have been struck down for effectively granting veto power over the abortion decision during early pregnancy.
Concerns were raised regarding the extent of parental authority over abortion decisions, emphasizing that sensitive issues like abortion should ultimately be resolved by legislatures, which are seen as guardians of public welfare. While assessing whether a state regulation imposes an "undue burden" on abortion rights, it is vital to consider how other branches of government have approached the issue, rather than deferring entirely to legislative judgments. The Constitution does not require states to facilitate abortions; instead, it allows for regulations that encourage childbirth as part of a legitimate interest in protecting potential life.
The Akron ordinance's requirement that second-trimester abortions be performed in hospitals was deemed to create a "significant obstacle" by increasing costs and reducing availability, which the Court rejected as a reasonable health regulation. The author disagrees with the trimester framework used by the Court and advocates for the "unduly burdensome" test, concluding that the hospitalization requirement does not constitute an undue burden. Furthermore, the claim that costs and availability were adversely affected is challenged by the lack of evidence showing that local hospitals denied abortions or that other hospitals in the vicinity did not offer such services. It is noted that most regulations, including licensing, inherently lead to increased costs. In a related case, the Court upheld stringent licensing requirements as a reasonable means for advancing maternal health, suggesting that similar health regulations should not be viewed as significant interference with abortion decisions.
Health-related factors for abortion considerations encompass a range of elements beyond just medical safety, including physical, emotional, psychological, familial aspects, and the woman’s age. The American College of Obstetricians and Gynecologists notes that midtrimester abortions are generally more hazardous, costly, and emotionally distressing than early abortions. The requirement for hospitalization does not impose an undue burden and is rationally related to the state's goal of protecting citizens' health and welfare.
Section 1870.05(B) of the Akron ordinance mandates that no physician may perform an abortion on a minor under 15 without written consent from a parent or guardian or a court order. Although the regulation has not been interpreted by state courts, it is deemed unconstitutional as it does not allow for individual evaluations of the maturity of pregnant minors. The Court expresses that it should have abstained from declaring the ordinance unconstitutional, referencing previous cases where abstention was appropriate to avoid federal constitutional issues. The Court acknowledges the abstention doctrine but opts not to apply it here, speculating that a state juvenile court could assess a minor’s maturity regarding abortion decisions. However, it ultimately rejects this interpretation, noting that requiring parental notification for filing a petition in juvenile court would be unconstitutional if it contradicts the minor's best interests.
The excerpt addresses the constitutionality of the informed consent provisions in the Akron ordinance regarding abortion. The Court concludes that state courts are unlikely to interpret the consent requirement as allowing parental or judicial vetoes for mature minors. Emphasizing federalism, the Court expresses caution against federal interference in state matters. It invalidates subsections (B)(3), (B)(4), and (B)(5) of the informed consent provisions due to their unconstitutionality, while acknowledging that subsections (B)(1), (B)(2), (B)(6), and (B)(7) are acceptable but cannot be severed because the law requires information to be provided by the attending physician, despite other qualified individuals being able to assist. The Court references prior cases where informed consent provisions were upheld, highlighting the importance of informed decision-making in abortion. The validity of subsections (3), (4), and (5) was not contested in the current case, as the City of Akron had conceded their unconstitutionality. The excerpt also mentions a separability clause in the ordinance, indicating that the remaining provisions could function independently, but Akron has not demonstrated that severing the unconstitutional subsections would significantly alter the legislative intent.
Section 1870.06(B) and 1870.06(C) of the Akron ordinance are designed to facilitate informed decision-making regarding abortion without infringing on privacy rights guaranteed by the Fourteenth Amendment. However, Section 1870.07, which mandates a 24-hour waiting period between consent and the procedure (except in emergencies), was invalidated by the lower court. The Supreme Court affirmed this decision not because it affects early abortions but due to Akron's failure to prove that the waiting period serves a legitimate state interest.
The Court acknowledged concerns from the Akron Center that this waiting period increases the financial burden and risks associated with abortion due to the need for multiple clinic visits. It emphasized that the decision to proceed with an abortion should rest with the physician’s medical judgment, highlighting that the existing physician-patient relationship does not adequately address state interests in maternal well-being.
The American College of Obstetricians and Gynecologists supports pre-abortion counseling to help women reflect on their options, but the waiting period does not apply in emergencies. While the waiting period may impose additional costs, it does not constitute an undue burden or absolute obstacle to abortion access. The state is not obligated to minimize abortion-related costs. Even if the waiting period is viewed as a burden, the state's interests in maternal health and fetal life justify its implementation. The decision to abort is recognized as serious, and the waiting period allows for careful consideration of the consequences for both the woman and the fetus.
Akron ordinance 1870.16 mandates that physicians performing abortions ensure the humane and sanitary disposal of fetal remains. The Court finds this provision void for vagueness, but dissenting opinions argue against this conclusion. Citing Planned Parenthood Ass'n v. Fitzpatrick, which upheld a similar humane disposal requirement, the dissent notes that the City of Akron's intent is to prevent the indiscriminate disposal of fetuses rather than impose costly burial requirements. The dissent asserts that the term "humane" is not more vague than "sanitary," which is not contested, and thus the ordinance should not be deemed void for vagueness.
Furthermore, the dissent emphasizes the importance of adhering to the precedent established in Roe v. Wade, which affirmatively recognized a woman's fundamental right to choose to terminate a pregnancy. The dissent critiques the opposing opinion for undermining Roe's premise without outright rejecting it, arguing that the dissent's reasoning effectively seeks to diminish the protections granted by Roe. It highlights that while the dissent acknowledges state interests in maternal health and fetal life, it does not find any abortion regulations imposing significant burdens on the right to choose that would necessitate heightened scrutiny.
A health regulation, specifically a requirement that all abortions be conducted in an acute-care hospital, is not considered 'official interference' with the abortion decision. The dissenting opinion argues that such a requirement does not constitute an unacceptable burden on the right to abortion. However, it warns that this stance could lead to many abortions being performed outside of regulated environments, potentially without medical oversight, thereby compromising safety. The dissent appears to endorse a broad range of abortion regulations under a rational-basis test and suggests that even regulations subject to heightened scrutiny would be upheld based on the State's interest in protecting potential human life.
The ordinance includes several findings, emphasizing the need for high standards of healthcare for abortion procedures due to the associated risks. It asserts that abortions should be performed only in hospitals or specialized outpatient facilities that ensure the safety and health of the pregnant woman. The Council expresses the belief that life begins at conception, viewing the development stages of the unborn child as a continuum. It acknowledges the physician's role in balancing the health interests of both the pregnant woman and the unborn child, asserting that the purpose of abortion is not primarily to terminate the unborn life. The Council concludes that enacting this ordinance is a reasonable measure to enhance public health, safety, and welfare.
The ordinance stipulates that no abortion may be performed after the first trimester unless conducted in a hospital, which is defined as an accredited general or specialized hospital.
No physician is permitted to perform or induce an abortion on an unmarried pregnant woman under 18 years of age without providing at least 24 hours of actual notice to a parent or legal guardian. If the parent or guardian cannot be reached after a reasonable effort, 72 hours of constructive notice via certified mail to the last known address is required, unless a court order is obtained. For minor pregnant women under 15 years, informed written consent from both the minor and a parent or guardian is mandatory, or a court order must be secured.
Informed consent for an abortion, as outlined in Section 1870.05, must be obtained freely and without coercion. The attending physician must orally inform the pregnant woman and her consenting parent or guardian about several key facts: confirmation of pregnancy, gestational age based on medical evaluation, the unborn child’s characteristics, the potential viability of the unborn child if over 22 weeks gestation, the risks and complications associated with abortion, and the availability of resources for birth control and support services during pregnancy and post-delivery. A signed consent form is required to acknowledge that this information has been communicated.
The attending physician must orally inform the pregnant woman and her legal guardian or parent of the risks associated with her pregnancy and the abortion technique, including post-abortion medical instructions for safe recovery. The physician is also required to provide any other medically relevant information for the woman's decision-making. Additionally, the physician must give a duplicate copy of the signed consent form to the woman and her guardian or parent when applicable.
A waiting period of twenty-four hours is mandated after the consent form is signed before an abortion can be performed, which the physician must certify in writing. The remains of the unborn child must be disposed of humanely and sanitarily by the physician.
In terms of legal context, any invalidated provision of the Chapter does not affect the validity of other provisions. The excerpt references case law, noting that states have significant interests in regulating abortions, particularly concerning minors, who are deemed less capable of making such decisions. The legal precedent emphasizes the importance of parental involvement but acknowledges that the constitutional rights of mature minors or those whose best interests conflict with parental involvement must be upheld.
A State promoting parental involvement in minors' abortion decisions must offer an alternative process for minors to prove their maturity or the abortion's benefits to them, as established in Bellotti II. Roe v. Wade identified the end of the first trimester as a critical point due to historical data suggesting that abortion was safer than childbirth during that period. Recent advancements in second-trimester abortion methods indicate that abortion can be safer than childbirth up to 16 weeks gestation. Nonetheless, the Roe framework, which marks the beginning of the second trimester as when the State's interest in maternal health becomes compelling enough for regulation, remains valid. Medical evidence indicates that until the end of the first trimester, regulations limiting abortion methods by licensed physicians are not warranted. While midtrimester abortions are typically more hazardous and emotionally taxing, state regulations on these procedures must be medically justified. The comparison of abortion and childbirth mortality rates is particularly pertinent when a state seeks to justify a complete ban on certain abortion methods based on health concerns. The State may also impose penalties for non-physician abortion providers to ensure safety, and reasonable recordkeeping can support the State’s interest in protecting women's health, provided it is not excessive.
Permissible state regulations on abortion include establishing qualifications and licensure for providers, as well as licensing and standards for the facilities where abortions are performed, which can include hospitals or clinics. The Akron ordinance lacks a clear definition of "first trimester," but implies that fetal age is calculated from conception. It mandates that physicians inform patients of the weeks since conception and the viability of a fetus post-22 weeks. Generally, the first trimester is estimated at 12 weeks from conception or 14 weeks from the last menstrual period, with variations in measurement possible. The Court recognizes the "compelling point" for state health interests as approximately the end of the first trimester.
The ordinance differentiates between hospitals and outpatient clinics, requiring even first-trimester abortions to occur in a licensed hospital or an abortion facility, which includes clinics and physician's offices. A precedent case upheld an Indiana requirement for hospitalization in the second trimester, but the affirmance of that decision does not bind this case, particularly regarding the necessity of hospitalization for early second-trimester procedures. The additional requirement for hospitals to be accredited by the Joint Commission on Accreditation of Hospitals (JCAH) was deemed not reasonably related to the act's purposes.
Georgia's hospital requirement for first-trimester abortions was deemed invalid. In 1978, the average cost for a D&E abortion at a clinic was $284 compared to $435 in hospitals, excluding potential physician fees of up to $300. Many regions have limited access to second-trimester abortions, with only one hospital in Missouri performing them and none in Kentucky or Louisiana. The death-to-case ratio for second-trimester abortions decreased from 14.4 deaths per 100,000 in 1972 to 7.6 per 100,000 in 1977. Initially, the D&E procedure was used only for first-trimester abortions, while instillation procedures for second-trimester abortions could not typically begin until around the 16th week of pregnancy. Testimony indicated that D&E procedures performed outside of hospitals up to the 16th week are as safe as in-hospital non-D&E procedures. Akron's reliance on outdated medical organization positions regarding hospitalization during the second trimester was noted, and the city's broad ban on all second-trimester abortions was criticized as not reasonably promoting health. The court reiterated that states may establish licensing standards for abortion facilities post-first trimester, provided they are related to legitimate health objectives.
Standards are established to address perceived deficiencies in clinic operations, with the city suggesting that its hospital requirement is justifiable for later dilation and evacuation (D.E.) abortions and for all second-trimester instillation abortions. The court does not rule out the state's ability to mandate that certain abortions occur in full-service hospitals, noting that D.E. procedures are generally safer than instillation methods up to a certain fetal development stage. The evidence regarding hospitalization needs pertains specifically to the D.E. method during early second-trimester procedures. In 1978, a significant percentage of abortions in the U.S. were performed using the D.E. method. The Court of Appeals affirmed the notification requirement of 1870.05(A), which remains unchallenged. In the Matheson case, the court ruled that a pregnant minor lacked standing to contest Utah's abortion consent law as she did not demonstrate her maturity or emancipation, but in this instance, a physician facing potential criminal liability has the standing to advocate for the rights of minor patients. Ohio's juvenile court can only consider a pregnant minor as "neglected" under specific definitions, which complicates the process for a mature minor seeking an abortion without parental involvement. The statute mandates parental notification upon filing for judicial approval, raising constitutional concerns regarding mature minors’ rights to choose an abortion. The state has a vested interest in protecting immature minors and promoting family integrity in abortion decisions.
A state may assert an interest in the outcomes of pregnancies, including whether they result in abortion or childbirth, as established in H.L. v. Matheson. The Supreme Court upheld laws allowing reimbursement for childbirth but not for abortion, as seen in Maher v. Roe and Harris v. McRae, provided these laws did not impose additional restrictions on abortion access. The District Court indicated significant uncertainty regarding various characteristics of the "unborn child," such as pain sensitivity. It also noted that while abortion is often labeled a "major surgical procedure," it is generally regarded as a "minor surgical procedure."
Section 1870.06(B)(5) requires physicians to inform patients that abortion can lead to serious complications and may exacerbate pre-existing psychological issues. Akron's defense of the constitutionality of this section was weak, focusing instead on the validity of four other subsections that mandate patients be informed about pregnancy status, gestational age, and available resources. Although this information is deemed accurate and typically provided, the requirement for it to be delivered orally by the physician is seen as unnecessary, as it could be given by qualified assistants. Furthermore, appropriate counseling should extend beyond merely presenting medical facts, acknowledging that individual patient needs for information and discussion vary significantly, with the need for personalized counseling recognized.
Guidelines established by Planned Parenthood for the operation and evaluation of first trimester outpatient abortion facilities emphasize the importance of counseling, particularly for minors who may be isolated from parental support. Simple provision of printed information is insufficient for counseling; effective counseling must involve competent, ethical physicians who adhere to established medical standards. Physicians are tasked with verifying that appropriate counseling has occurred prior to performing an abortion. Competent counselors, who may include skilled physicians and trained professionals, must be well-versed in a range of topics, including reproductive health and informed consent. In emergency situations where the woman's life or health is endangered, the requirement for prior counseling may be waived. The American College of Obstetricians and Gynecologists (ACOG) recommends allowing sufficient time for patients to reflect on their decision, acknowledging that the necessary time may vary based on individual circumstances. The document also addresses legal aspects surrounding the disposal of fetal remains, distinguishing between regulations that do not impose criminal liability and those that might. It reiterates the state's legitimate interests in protecting maternal health and potential human life, which become increasingly compelling as a pregnancy progresses, particularly after the first trimester, when medical decisions regarding abortion should primarily rest with the attending physician.
A State is permitted to regulate abortion procedures if the regulations are reasonably related to protecting maternal health. The Court observed that, based on contemporary medical knowledge, the mortality rate for abortions during the first trimester may be lower than that of normal childbirth. The state's interest in potential human life becomes compelling at the point of viability, defined as when the fetus can potentially survive outside the womb with artificial support, generally around 28 weeks, but possibly as early as 24 weeks. After viability, states can prohibit abortions except when necessary to protect the mother's life and health.
While the Court retains the trimester framework for regulating abortion, it departs from the earlier view linking mortality rates of childbirth and abortion to assess the reasonableness of second-trimester regulations. Now, health regulations must align with accepted medical practices, and states should limit regulations to periods in the trimester where their health interests are relevant. The Court ruled that a prior case, Gary-Northwest Indiana Women's Services, Inc. v. Bowen, is not binding precedent regarding hospitalization requirements, noting that the earlier ruling was based on the plaintiffs' failure to demonstrate the safety of second-trimester abortions. Moreover, it acknowledges that legislatures are better equipped to make health-related judgments than courts. Recent studies highlight the survival rates of very preterm infants, indicating that those born before 25 weeks have a survival rate of 20%, while those weighing 1000 grams or less have a survival rate of 42%.
An infant born at 22 weeks gestational age and weighing 484 grams is currently thriving in a Los Angeles hospital, with a physician estimating a 95% survival chance. A related case, Simopoulos v. Virginia, involved a fetus of similar gestational age and weight. Advances in medical techniques are improving the survival rates of small premature infants, indicating a notable progress in neonatal care. The Court's decision in Danforth upheld certain regulations, including recordkeeping and consent, for first-trimester abortions, suggesting a shift from Roe v. Wade's stance that the state had no compelling interest in regulating during this period. The American College of Obstetricians and Gynecologists (ACOG) has set standards for emergency care in first-trimester abortions, supporting state interests in health regulations. The Court also emphasized that states cannot impose undue burdens on minors seeking abortions, nor on adult women, referencing various cases including Bellotti v. Baird and Harris v. McRae. The doctrine established by Roe v. Wade protects women from significant state interference in their decision to terminate a pregnancy, particularly before the third trimester, when state interests in protecting potential human life become more compelling.
The compelling state interest standard is applicable only when state regulations significantly hinder or burden constitutional rights regarding abortion. In *Planned Parenthood v. Danforth*, the informed-consent requirement for first-trimester abortions was upheld as it did not impose an "undue burden." Conversely, in *Doe v. Bolton*, the Court invalidated regulations such as hospitalization requirements for first-trimester abortions, citing that these were uniquely applied to abortion and not other medical procedures. However, later cases have refuted the notion that differential treatment of abortion mandates the invalidation of regulations.
The Solicitor General, in an amicus brief, advocates for the adoption of the "unduly burdensome" standard, emphasizing deference to legislative judgment regarding what constitutes an undue burden. While the Court has acknowledged the need for careful attention to legislative judgment, it has not mandated that state regulations on abortion be "narrowly drawn" to align strictly with state interests. The Court supports the notion that burdensome health regulations must be "reasonably related" to a compelling state interest but has not consistently applied this standard in practice.
The hospitalization requirement is deemed to reasonably relate to the state's compelling interest in maternal health, yet the regulation is criticized for departing from accepted medical practices during a significant portion of the second trimester. The Court emphasizes that D. E abortions can be safely performed in outpatient clinics up to 16 weeks, disputing the assertion that a substantial portion of the second trimester is affected by the regulation.
The text outlines that the Court has not declared parental notification for mature minors unconstitutional, with references to previous cases suggesting the need for judicial bypass options. It highlights that the attending physician must provide critical information to the pregnant woman, including details about her pregnancy, risks of abortion, and available support services.
It also notes that prior rulings did not see the informed consent requirement as significantly impacting access to first-trimester abortions. Assuming the Court reconsiders previous decisions, it fails to evaluate whether informed consent provisions align with legitimate state interests, instead proposing a stringent standard of a "vital state need" for justification.
The excerpt addresses potential First Amendment concerns regarding communication requirements imposed on physicians but indicates that such arguments were not raised in the lower court. Finally, it remarks on the waiting-period requirement, asserting its validity due to its minimal impact on access to abortions, drawing parallels to previous case law that upheld similar regulations.
