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Thornburgh v. American College of Obstetricians & Gynecologists (1986)

In Depth

Background

In 1982, the Pennsylvania General Assembly enacted the Abortion Control Act which regulates the practice of abortion.  After the Act was passed but before it went into effect, plaintiffs, the American College of Obstetricians & Gynecologists, certain physicians who perform abortions and other parties, challenged the Act in federal district court, alleging that the Act violated their constitutional rights.  Named as defendants were the Governor of Pennsylvania, other officials of the Commonwealth and a local district attorney.  The district court granted plaintiffs' motion for a preliminary injunction only with respect to one provision of the Act (mandating a twenty-four waiting period), but denied their motion with respect to the other challenged provisions.  Both the plaintiffs and defendants appealed.  On appeal, the court of appeals held multiple provisions of the Act unconstitutional and remanded the case to the district court for further proceedings to decide the constitutionality of the remaining provisions.  The defendants appealed the court of appeals' judgment to the Supreme Court which, treating the appeal as a petition for review (because there was no final judgment entered by the court of appeals), granted review.

The Statutes Under Review

Sections 3205 (informed consent) and 3208 (printed information) prescribed in detail the method for obtaining the informed consent of the pregnant woman before she could undergo an abortion.  Except in a medical emergency, the woman had to be informed by either her attending physician or a referring physician at least twenty-four hours before she gave her consent of (a) the name of the physician who would perform the abortion, (b) the "fact that there may be detrimental physical and psychological effects which are not accurately foreseeable," (c) the "particular medical risks associated with the particular abortion procedure to be employed," (d) the probable gestational age of the unborn child at the time the abortion was to be performed and (e) the "medical risks associated with carrying her child to term."  In addition, the woman had to be informed by either her physician or the physician's agent (f) that "medical assistance benefits may be available for prenatal care, childbirth and neonatal care," and (g) that "the father is liable to assist" in the child's support, "even in instances where the father has offered to pay for the abortion."  18 Pa. Cons. Stat. Ann. §§ 3205(a)(1)(i)-(v), (2)(i)-(ii).  The woman also must be informed that materials printed and supplied by the Commonwealth that describe the unborn child and that list agencies offering alternatives to abortion are available for her review.  If she chooses to review the materials but is unable to read, the materials "shall be read to her," and any answer she seeks must be "provided her in her own language."  Id. § 3205(a)(2)(iii).  She must certify in writing, prior to the abortion, that all of these requirements have been complied with.  Id. § 3205(a)(3). The printed materials "shall include the following statement":

There are many public and private agencies willing and able to help you carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place her or him for adoption.  The Commonwealth of Pennsylvania strongly urges you to contact them before making a final decision about abortion.  The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion.

18 Pa. Cons. Stat. Ann § 3208(a)(1).  The materials must describe the "probably anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child's survival." Id. § 3208(a)(2).

Sections 3214(a) and (h) (reporting) required the physician to report, among other things, information as to the political subdivision and state in which the woman resides; her age, race and marital status; the number of prior pregnancies; the basis for any judgment that a medical emergency existed; the determination regarding the viability or nonviability of the unborn child; and the method of payment for the abortion.  18 Pa. Cons. Stat. Ann §§ 3214(a), (h).

Section 3211(a) (determination of viability) provided:

Prior to performing any abortion upon a woman subsequent to her first trimester of pregnancy, the physician shall determine whether, in his good faith judgment, the child is viable.  When a physician has determined that a child is viable, he shall report the basis for his determination that the abortion is necessary to preserve maternal life or health.  When a physician has determined that a child is not viable, he shall report the basis for such determination.

18 Pa. Cons. Stat. Ann § 3211(a).

Sections 3210(b) and (c) regulated post-viability abortions.  Section 3210(b) required a physician performing a post-viability abortion to exercise the degree of care that would be required to preserve the life and health of any unborn child intended to be born and not aborted, 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.  18 Pa. Cons. Stat. Ann § 3210(b).  And § 3210(c) required that a second physician be present during an abortion performed when viability is possible, which physician must take all reasonable steps necessary to preserve the child's life and health.  Id. § 3210(c)

The Court's Holding

By a five-to-four vote, the Court affirmed the judgment of the court of appeals, declaring unconstitutional §§ 3205 (informed consent), 3208 (printed information); 3214(a) and (h) (reporting requirements), 3211(a) (determination of viability or nonviability), 3210(b) (degree of care required in post-viability abortions) and 3210(c) (second-physician requirement).

The Court's Reasoning

Justice Blackmun wrote the opinion for the Court.  Before considering the specific provisions of the ordinance that were in issue, the Court reaffirmed Roe v. Wade, 410 U.S. 113 (1973).  Thornburgh, 476 U.S. at 759, 771-72.

Informed Consent, Printed Materials

Based largely upon its opinion in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), the Court struck down the informed consent (§ 3205) and printed materials (§ 3208) requirements.  Thornburgh, 476 U.S. at 759-65 (for an analysis of the constitutional issues decided in City of Akron, please see the summary for that case).  Justice Blackmun stated that "[t]he printed materials required by §§ 3205 and 3208 seem to us to be nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician." Id. at 762.  "The mandated description of fetal characteristics at 2-week intervals, not matter how objective, is plainly overinclusive," may not always be "relevant to the woman's decision" to obtain an abortion and "may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice."  Id. The listing of agencies in the printed form "contains names of agencies that may well be out of step with the needs of the particular woman and thus place the physician in an awkward position and infringes upon his or her professional responsibilities," in effect, making the physician or counselor "an agent of the State in treating the woman" and placing his or her "imprimatur upon both the materials and the list."  Id. at 763.

Justice Blackmun also took issue with many of the informed consent requirements mandated by § 3205.  The requirements that the woman be advised that medical assistance benefits may be available, § 3205(a)(2)(i), and that the father is responsible for financial assistance in the support of the child, § 3205(a)(2)(ii), "are poorly disguised elements of discouragement for the abortion decision."  Thornburgh, 476 U.S. at 763.  ""Much of this . . . nonmedical information . . . would be irrelevant and inappropriate" for "many patients," including patients with a life-threatening pregnancy and victims of rape.  Id.  Moreover, "theoretical financial responsibility often does not equate with fulfillment."  Id. "Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to [informed] consent, and, thus, it advances no legitimate interest."  Id. The requirements that the woman be informed by the physician of "detrimental physical and psychological effects," § 3205(a)(1)(ii), and of all "particular medical risks," § 3205(a)(1)(iii), "compound the problem of medical attendance, increase the patient's anxiety, and intrude upon the physician's exercise of proper professional judgment."  Id. a 764.  Justice Blackmun described this type of "compelled information" the "antithesis of informed consent."  Id.  That the Commonwealth does not compel similar disclosure "of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose."  Id.  The Commonwealth "would require the physician to recite its litany" without regard to whether the physician believes that the information is relevant to the patient's personal needs.  Id.  Justice Blackum concluded that the information requirements of § 3205 are "facially unconstitutional."  Id.  He rejected the Commonwealth's suggestion that the remainder of § 3205 be severed and allowed to go into effect.  What would be left "would leave § 3205  with little resemblance to that intended by the Pennsylvania Legislature."  Id. Moreover, the Act contained no severability clause.  Id.

Reporting Requirements, Viability Determination

Justice Blackmun next turned to the reporting requirements of §§ 3214(a) and (h), and the determination of viability, § 3211(a), which was incorporated by § 3214(a)(8).  The Court held that the reporting requirements were unconstitutional because the information requested was not justified by "health-related interests," and because there were insufficient safeguards to protect the identity of the patient from public disclosure, even though the law expressly provided that the physician's reports were not public records and required redaction of any information that could lead to the identity of the patient.  Thornburgh, 476 U.S. at 765-68.  With respect to § 3211(a), Justice Blackmun noted that requirement that a physician report the basis for his determination "that a child is not viable" applied only after the first trimester.  Id. at 765.   Without specifically addressing the constitutionality of this section, the Court affirmed the court of appeals' judgment declaring § 3211(a) unconstitutional.  Id. at 772.  The court of appeals found § 3211(a) unconstitutional because there was no reason to require a determination of viability for every abortion performed after the end of the first trimester of pregnancy.

Standard of Care, Second Physician Requirement

Relying upon its decision in Colautti v. Franklin, 439 U.S. 379 (1979), the the Court struck down the standard of care applicable to post-viability abortions, § 3210(b), because, in Justice Blackmun's opinion, it required an unacceptable "trade-off" between "the woman's health and fetal survival, and failed to require that maternal health be the physician's paramount consideration," Thornburgh, 476 U.S. at 768-69 (for an analysis of the constitutional issues decided in Colautti, please see the summary for that case).  The Court also struck down the second-physician requirement, § 3210(c).  Id. at 769-71.  Although the Court had upheld a second-physician requirement in Planned Parenthood Ass'n of Kansas City, Misssouri, Inc. v. Ashcroft, 462 U.S. 476 (1983), Justice Blackmun found § 3210(c) constitutionally deficient because it did not include an express exception for medical emergencies nor was such an exception reasonably implied in the statutory language.  Thornburgh, 476 U.S. at 770-71 (for an analysis of the constitutional issues decided in Ashcroft, please see the summary for that case).

The Concurring And Dissenting Opinions

Justice Stevens wrote a concurring opinion in which he defended the Court's decision in Roe v. Wade and attacked Justice White's dissent. Thornburgh, 476 U.S. at 772-82 (Stevens, J., concurring).

Chief Justice Burger wrote a brief dissenting opinion, criticizing the Court for going far beyond what the Court had decided in Roe and suggesting that Roe be reexamined.  Thornburgh, 476 U.S. at 782-85 (Burger, C.J., dissenting).

Justice White, joined by Justice Rehnquist, dissented.  In the first part of his dissent, Justice White reiterated and expanded upon his reasons for dissenting in Roe v. Wade, arguing that a woman does not have a fundamental constitutional right to obtain an abortion and that the State's interests in protecting fetal life and maternal health are compelling throughout pregnancy. Thornburgh, 476 U.S. at 786-97 (White, J., dissenting).  In the second part of his dissent, Justice White took issue with the Court's application of the principles of Roe to the statutes at hand.  Id. at 798-812.  In the final paragraph of his dissent, Justice White accused the Court of being defensive over what it had decided in Roe: "Perceiving, in a statute implementing the State's legitimate policy of preferring childbirth to abortion, a threat to or criticism of the decision in Roe v. Wade, the majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe."  Id. at 814.  Justice White concluded his dissent stating, "I do not share the warped point of view of the majority, nor can I follow the tortuous path the majority treads in proceeding to strike down the statute before us."  Id.

Justice O'Connor, joined by Justice Rehnquist, also dissented.  In the first part of her dissent, Justice O'Connor expressed the view that it was inappropriate for either the court of appeals or the Supreme Court to reach the ultimate constitutional questions raised in the context of the appeal from the issuance of a preliminary injunction.  Thornburgh, 476 U.S. at 815-26 (O'Connor, J., dissenting).  In the second part of her dissent, Justice O'Connor stated that, given the appropriate standard of review ("undue burden"), none of the challenged statutes should have been enjoined.  Id. at 826-33.  She concluded that "today's decision makes bad constitutional law and bad procedural law."  Id. at 833.

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