|Akron v. Akron Center for Reproductive Health, Inc.
651 F.2d 1198, affirmed in part and reversed in part.
[ Powell ]
[ O'Connor ]
Akron v. Akron Center for Reproductive Health, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JUSTICE POWELL delivered the opinion of the Court.
In this litigation, we must decide the constitutionality of several provisions of an ordinance enacted by the city of Akron, Ohio, to regulate the performance of abortions. Today we also review abortion regulations enacted by the State of Missouri, see Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476, and by the State of Virginia, see Simopoulos v. Virginia, post, p. 506.
These cases come to us a decade after we held in Roe v. Wade, 410 U.S. 113 (1973), that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy. Legislative responses to the Court's decision have required us on several occasions, and again today, to define the limits of a State's authority to regulate the performance of abortions. And arguments continue to be made, in these cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of [p420] stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. [n1] We respect it today, and reaffirm Roe v. Wade. [p421]
In February, 1978, the City Council of Akron enacted Ordinance No. 160-1978, entitled "Regulation of Abortions." [n2] [p422] The ordinance sets forth 17 provisions that regulate the performance of abortions, see Akron Codified Ordinances ch. § 1870, 5 of which are at issue in this case:
(i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital. [n3]
(iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed. [n6]
A violation of any section of the ordinance is punishable as a criminal misdemeanor. § 1870.18. If any provision is invalidated, it is to be severed from the remainder of the ordinance. [n8] The ordinance became effective on May 1, 1978.
On April 19 1978, a lawsuit challenging virtually all of the ordinance's provisions was filed in the District Court for the Northern District of Ohio. The plaintiffs, respondents and cross-petitioners in this Court, were three corporations that operate abortion clinics in Akron and a physician who has performed abortions at one of the clinics. The defendants, petitioners and cross-respondents here, were the city of Akron and three city officials (Akron). Two individuals (intervenors) were permitted to intervene as codefendants "in their individual capacity as parents of unmarried minor daughters of childbearing age." 479 F.Supp. 1172, 1181 (1979). On April 27, 1978, the District Court preliminarily enjoined enforcement of the ordinance.
In August, 1979, after hearing evidence, the District Court ruled on the merits. It found that plaintiffs lacked standing to challenge seven provisions of the ordinance, none of which is before this Court. The District Court invalidated four provisions, including § 1870.05 (parental notice and consent), § 1870.06(B) (requiring disclosure of facts concerning the woman's pregnancy, fetal development, the complications of abortion, and agencies available to assist the woman), and § 1870.16 (disposal of fetal remains). The court upheld the constitutionality of the remainder of the ordinance, including § 1870.03 (hospitalization for abortions after the first trimester), § 1870.06(C) (requiring disclosure of the particular risks of the woman's pregnancy and the abortion technique to be employed), and § 1870.07 (24-hour waiting period). [p426]
All parties appealed some portion of the District Court's judgment. The Court of Appeals for the Sixth Circuit affirmed in part and reversed in part. 651 F.2d 1198 (1981). It affirmed the District Court's decision that § 1870.03's hospitalization requirement is constitutional. It also affirmed the ruling that § 1870.05, § 1870.06(B), and § 1870.16 are unconstitutional. The Court of Appeals reversed the District Court's decision on § 1870.06(C) and § 1870.07, finding these provisions to be unconstitutional.
Three separate petitions for certiorari were filed. In light of the importance of the issues presented, and in particular the conflicting decisions as to whether a State may require that all second trimester abortions be performed in a hospital, [n9] we granted both Akron's and the plaintiffs' petitions. 456 U.S. 988 (1982). We denied the intervenors' petition, Seguin v. Akron Center for Reproductive Health, Inc., 456 U.S. 989 (1982), but they have participated in this Court as respondents under our Rule 19.6. We now reverse the judgment of the Court of Appeals upholding Akron's hospitalization requirement, but affirm the remainder of the decision invalidating the provisions on parental consent, informed consent, waiting period, and disposal of fetal remains.
In Roe v. Wade, the Court held that the
right of privacy, . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
410 U.S. at 153. Although the Constitution does not specifically identify this right, the [p427] history of this Court's constitutional adjudication leaves no doubt that
the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting from dismissal of appeal). Central among these protected liberties is an individual's "freedom of personal choice in matters of marriage and family life." Roe, 410 U.S. at 169 (Stewart, J., concurring). See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). The decision in Roe was based firmly on this long-recognized and essential element of personal liberty.
The Court also has recognized, because abortion is a medical procedure, that the full vindication of the woman's fundamental right necessarily requires that her physician be given "the room he needs to make his best medical judgment." Doe v. Bolton, 410 U.S. 179, 192 (1973). See Whalen v. Roe, 429 U.S. 589, 604-605, n. 33 (1977). The physician's exercise of this medical judgment encompasses both assisting the woman in the decisionmaking process and implementing her decision should she choose abortion. See Colautti v. Franklin, 439 U.S. 379, 387 (1979).
At the same time, the Court in Roe acknowledged that the woman's fundamental right "is not unqualified, and must be considered against important state interests in abortion." Roe, 410 U.S. at 154. But restrictive state regulation of the right to choose abortion, as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest. Id. at 155. We have recognized two such interests that may justify state regulation of abortions. [n10] [p428]
First, a State has an "important and legitimate interest in protecting the potentiality of human life." Id. at 162. Although this interest exists "throughout the course of the woman's pregnancy," Beal v. Doe, 432 U.S. 438, 446 (1977), it becomes compelling only at viability, the point at which the fetus "has the capability of meaningful life outside the mother's womb," Roe, supra, at 163. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 63-65 (1976). At viability, this interest in protecting the potential life of the unborn child is so important that the State may proscribe abortions altogether, "except when it is necessary to preserve the life or health of the mother." Roe, 410 U.S. at 164.
Second, because a State has a legitimate concern with the health of women who undergo abortions, "a State may properly assert important interests in safeguarding health [and] [p429] in maintaining medical standards." Id. at 154. We held in Roe, however, that this health interest does not become compelling until "approximately the end of the first trimester" of pregnancy. [n11] Id. at 163. Until that time, a pregnant woman must be permitted, in consultation with her physician, [p430] to decide to have an abortion and to effectuate that decision "free of interference by the State." [n12] Ibid.
This does not mean that a State never may enact a regulation touching on the woman's abortion right during the first weeks of pregnancy. Certain regulations that have no significant impact on the woman's exercise of her right may be permissible where justified by important state health objectives. In Danforth, supra, we unanimously upheld two Missouri statutory provisions, applicable to the first trimester, requiring the woman to provide her informed written consent to the abortion and the physician to keep certain records, even though comparable requirements were not imposed on most other medical procedures. See 428 U.S. at 65-67, 79-81. The decisive factor was that the State met its burden of demonstrating that these regulations furthered important health-related state concerns. [n13] But even these minor regulations on the abortion procedure during the first trimester may not interfere with physician-patient consultation or with the woman's choice between abortion and childbirth. See id. at 81.
From approximately the end of the first trimester of pregnancy, the State
Roe, 410 U.S. at 163. The State's discretion to regulate on this basis does not, however, permit it to adopt abortion regulations that depart from accepted medical practice. We have rejected a State's attempt to ban a particular second trimester abortion procedure where the ban would have increased the costs and limited the availability of abortions without promoting important health benefits. See Danforth, 428 U.S. at 77-78. If a State requires licensing or undertakes to regulate the performance of abortions during this period, the health standards adopted must be "legitimately related to the objective the State seeks to accomplish." Doe, 410 U.S. at 195.
Section 1870.03 of the Akron ordinance requires that any abortion performed "upon a pregnant woman subsequent to the end of the first trimester of her pregnancy" [n15] must be [p432] "performed in a hospital." A "hospital" is
a general hospital or special hospital devoted tp gynecology or obstetrics which is accredited by the Joint Commission on Accreditation of Hospitals or by the American Osteopathic Association.
§ 1870.01(B). Accreditation by these organizations requires compliance with comprehensive standards governing a wide variety of health and surgical services. [n16] The ordinance thus prevents the performance of abortions in outpatient facilities that are not part of an acute care, full-service hospital. [n17]
In the District Court, plaintiffs sought to demonstrate that this hospitalization requirement has a serious detrimental impact on a woman's ability to obtain a second trimester abortion in Akron, and that it is not reasonably related to the State's interest in the health of the pregnant woman. The District Court did not reject this argument, but rather found the evidence "not . . . so convincing that it is willing to discard the Supreme Court's formulation in Roe" of a line between impermissible first trimester regulation and permissible second trimester regulation. 479 F.Supp. at 1215. The Court of Appeals affirmed on a similar basis. It accepted plaintiffs' argument that Akron's hospitalization requirement did not have a reasonable health justification during at least part of the second trimester, but declined to "retreat from the ‘bright line' in Roe v. Wade." 651 F.2d at [p433] 1210. [n18] We believe that the courts below misinterpreted this Court's prior decisions, and we now hold that § 1870.03 is unconstitutional.
In Roe v. Wade, the Court held that, after the end of the first trimester of pregnancy, the State's interest becomes compelling, and it may "regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." 410 U.S. at 163. We noted, for example, that States could establish requirements relating
to the facility in which the procedure is to be performed, that is, whether it must be in a hospital or may be a clinic or some other place of less-than-hospital status.
Ibid. In the companion case of Doe v. Bolton, the Court invalidated a Georgia requirement that all abortions be performed in a hospital licensed by the State Board of Health and accredited by the Joint Commission on Accreditation of Hospitals. See 410 U.S. at 201. We recognized the State's legitimate health interests in establishing, for second trimester abortions, "standards for licensing all facilities where abortions may be performed." Id. at 195. We found, however, that
the State must show more than [was shown in Doe] in order to prove that only the full resources of [p434] a licensed hospital, rather than those of some other appropriately licensed institution, satisfy these health interests.
We reaffirm today, see supra at 429, n. 11, that a State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest. See Doe, 410 U.S. at 195. And the Court in Roe did not hold that it always is reasonable for a State to adopt an abortion regulation that applies to the entire second trimester. A State necessarily must have latitude in adopting regulations of general applicability in this sensitive area. But if it appears that, during a substantial portion of the second trimester, the State's regulation "depart[s] from accepted medical practice," supra at 431, the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester. Rather, the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered.
There can be no doubt that § 1870.03's second trimester hospitalization requirement places a significant obstacle in the path of women seeking an abortion. A primary burden created by the requirement is additional cost to the woman. The Court of Appeals noted that there was testimony that a second trimester abortion costs more than twice as much in a [p435] hospital as in a clinic. See 651 F.2d at 1209 (in-hospital abortion costs $850-$900, whereas a dilatation-and-evacuation (D&E) abortion performed in a clinic costs $350-$400). [n20] Moreover, the court indicated that second trimester abortions were rarely performed in Akron hospitals. Ibid. (only nine second trimester abortions performed in Akron hospitals in the year before trial). [n21] Thus, a second trimester hospitalization requirement may force women to travel to find available facilities, resulting in both financial expense and additional health risk. It therefore is apparent that a second trimester hospitalization requirement may significantly limit a woman's ability to obtain an abortion.
Akron does not contend that § 1870.03 imposes only an insignificant burden on women's access to abortion, but rather defends it as a reasonable health regulation. This position had strong support at the time of Roe v. Wade, as hospitalization for second trimester abortions was recommended by the American Public Health Association (APHA), see Roe, 410 U.S. at 143-146, and the American College of Obstetricians and Gynecologists (ACOG), see Standards for Obstetric-Gynecologic Services 65 (4th ed.1974). Since then, however, the safety of second trimester abortions has increased [p436] dramatically. [n22] The principal reason is that the D&E procedure is now widely and successfully used for second trimester abortions. [n23] The Court of Appeals found that there was "an abundance of evidence that D&E is the safest method of performing post-first trimester abortions today." 651 F.2d at 1209. The availability of the D&E procedure during the interval between approximately 12 and 16 weeks of pregnancy, a period during which other second trimester abortion techniques generally cannot be used, [n24] has meant that women desiring an early second trimester abortion no longer are forced to incur the health risks of waiting until at least the 16th week of pregnancy.
For our purposes, an even more significant factor is that experience indicates that D&E may be performed safely on an outpatient basis in appropriate nonhospital facilities. The evidence is strong enough to have convinced the APHA to abandon its prior recommendation of hospitalization for all second trimester abortions:
Current data show that abortions occurring in the second trimester can be safely performed by the Dilatation and Evacuation (D and E) procedure. . . . Requirements that all abortions after 12 weeks of gestation be performed in hospitals increase the expense and inconvenience to the woman without contributing to the safety of the procedure.
APHA Recommended Program [p437] Guide for Abortion Services (Revised 1979), 70 Am.J.Public Health 652, 654 (1980) (hereinafter APHA Recommended Guide).
Similarly, the ACOG no longer suggests that all second trimester abortions be performed in a hospital. It recommends that abortions performed in a physician's office or outpatient clinic be limited to 14 weeks of pregnancy, but it indicates that abortions may be performed safely in
a hospital-based or in a free-standing ambulatory surgical facility, or in an outpatient clinic meeting the criteria required for a free-standing surgical facility,
until 18 weeks of pregnancy. ACOG, Standards for Obstetric-Gynecologic Services 54 (5th ed.1982).
These developments, and the professional commentary supporting them, constitute impressive evidence that -- at least during the early weeks of the second trimester -- D&E abortions may be performed as safely in an outpatient clinic as in a full-service hospital. [n25] We conclude, therefore, that "present medical knowledge," Roe, supra, at 163, convincingly undercuts Akron's justification for requiring that all second trimester abortions be performed in a hospital. [n26] [p438]
Akron nonetheless urges that "[t]he fact that some mid-trimester abortions may be done in a minimally equipped clinic does not invalidate the regulation." [n27] Brief for Respondents in No. 81-1172, p.19. It is true that a state abortion regulation is not unconstitutional simply because it does not correspond perfectly in all cases to the asserted state interest. But the lines drawn in a state regulation must be reasonable, and this cannot be said of § 1870.03. By preventing the performance of D&E abortions in an appropriate nonhospital setting, Akron has imposed a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure. [n28] Section 1870.03 has "the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks," Danforth, 428 U.S. at 79, and [p439] therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion.
We turn next to § 1870.05(B), the provision prohibiting a physician from performing an abortion on a minor pregnant woman under the age of 15 unless he obtains "the informed written consent of one of her parents or her legal guardian" or unless the minor obtains "an order from a court having jurisdiction over her that the abortion be performed or induced." The District Court invalidated this provision because
[i]t does not establish a procedure by which a minor can avoid a parental veto of her abortion decision by demonstrating that her decision is, in fact, informed. Rather, it requires, in all cases, both the minor's informed consent and either parental consent or a court order.
479 F.Supp. at 1201. The Court of Appeals affirmed on the same basis. [n29] The relevant legal standards are not in dispute. The Court has held that
the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor.
Danforth, supra, at 74. In Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), a majority of the Court indicated that a State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. See id. at 640-642 (plurality opinion for four Justices); id. at 656-657 (WHITE, J., dissenting) (expressing approval of absolute parental or judicial consent requirement). See also Danforth, supra, at 102-105 (STEVENS, J., concurring in part and dissenting in part). The Bellotti II plurality cautioned, however, that the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself [p440] or that, despite her immaturity, an abortion would be in her best interests. 443 U.S. at 643-644. Under these decisions, it is clear that Akron may not make a blanket determination that all minors under the age of 15 are too immature to make this decision, or that an abortion never may be in the minor's best interests without parental approval.
Akron's ordinance does not create expressly the alternative procedure required by Bellotti II. But Akron contends that the Ohio Juvenile Court will qualify as a "court having jurisdiction" within the meaning of § 1879.05(B), and that
it is not to be assumed that, during the course of the juvenile proceedings the Court will not construe the ordinance in a manner consistent with the constitutional requirement of a determination of the minor's ability to make an informed consent.
Brief for Petitioner in No. 81-746, p. 28. Akron concludes that the courts below should not have invalidated § 1879.05(B) on its face. The city relies on Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti I), in which the Court did not decide whether a State's parental consent provisions were unconstitutional as applied to mature minors, holding instead that
abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem."
Id. at 146-147 (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). See also H. L. v. Matheson, 450 U.S. 398 (1981) (refusing to decide whether parental notice statute would be constitutional as applied to mature minors). [n30] [p441]
We do not think that the abstention principle should have been applied here. It is reasonable to assume, as we did in Bellotti I, supra, and Matheson, supra, that a state court, presented with a state statute specifically governing abortion consent procedures for pregnant minors, will attempt to construe the statute consistently with constitutional requirements. This suit, however, concerns a municipal ordinance that creates no procedures for making the necessary determinations. Akron seeks to invoke the Ohio statute governing juvenile proceedings, but that statute neither mentions minors' abortions nor suggests that the Ohio Juvenile Court has authority to inquire into a minor's maturity or emancipation. [n31] In these circumstances, we do not think that the Akron ordinance, as applied in Ohio juvenile proceedings, is reasonably susceptible of being construed to create an "opportunity for case-by-case evaluations of the maturity of pregnant minors." Bellotti II, supra, at 643, n. 23 (plurality [p442] opinion). We therefore affirm the Court of Appeals' judgment that § 1879.05(B) is unconstitutional.
The Akron ordinance provides that no abortion shall be performed except "with the informed written consent of the pregnant woman, . . . given freely and without coercion." § 1879.06(A). Furthermore, "in order to insure that the consent for an abortion is truly informed consent," the woman must be "orally informed by her attending physician" of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth. § 1879.06(B). In addition, the attending physician must inform her
of the particular risks associated with her own pregnancy and the abortion technique to be employed . . . [and] other information which in his own medical judgment is relevant to her decision as to whether to have an abortion or carry her pregnancy to term.
The District Court found that § 1879.06(B) was unconstitutional, but that § 1879.06(C) was related to a valid state interest in maternal health. See 479 F.Supp. at 1203-1204. The Court of Appeals concluded that both provisions were unconstitutional. See 651 F.2d at 1207. We affirm.
In Danforth, we upheld a Missouri law requiring a pregnant woman to "certif[y] in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion." 428 U.S. at 85. We explained:
The decision to abort . . . is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. [p443] The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.
Id. at 67. We rejected the view that "informed consent" was too vague a term, construing it to mean
the giving of information to the patient as to just what would be done and as to its consequences. To ascribe more meaning than this might well confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession.
Id. at 67, n. 8.
The validity of an informed consent requirement thus rests on the State's interest in protecting the health of the pregnant woman. The decision to have an abortion has "implications far broader than those associated with most other kinds of medical treatment," Bellotti II, 443 U.S. at 649 (plurality opinion), and thus the State legitimately may seek to ensure that it has been made
in the light of all attendant circumstances -- psychological and emotional as well as physical -- that might be relevant to the wellbeing of the patient.
Colautti v. Franklin, 439 U.S. at 394. [n32] This does not mean, however, that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. It remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Danforth's recognition of the State's interest in ensuring that this information be given [p444] will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth. [n33]
Viewing the city's regulations in this light, we believe that § 1879.06(B) attempts to extend the State's interest in ensuring "informed consent" beyond permissible limits. First, it is fair to say that much of the information required is designed not to inform the woman's consent, but rather to persuade her to withhold it altogether. Subsection (3) requires the physician to inform his patient that "the unborn child is a human life from the moment of conception," a requirement inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions. See 410 U.S. at 159-162. Moreover, much of the detailed description of "the anatomical and physiological characteristics of the particular unborn child" required by subsection (3) would involve, at best, speculation by the physician. [n34] And subsection (5), that begins with the dubious statement that "abortion is a major surgical procedure" [n35] and proceeds to describe numerous possible [p445] physical and psychological complications of abortion, [n36] is a "parade of horribles" intended to suggest that abortion is a particularly dangerous procedure.
An additional, and equally decisive, objection to § 1870.06(B) is its intrusion upon the discretion of the pregnant woman's physician. This provision specifies a litany of information that the physician must recite to each woman regardless of whether, in his judgment, the information is relevant to her personal decision. For example, even if the physician believes that some of the risks outlined in subsection (5) are nonexistent for a particular patient, he remains obligated to describe them to her. In Danforth, the Court warned against placing the physician in just such an "undesired and uncomfortable straitjacket." 428 U.S. at 67, n. 8. Consistent with its interest in ensuring informed consent, a State may require that a physician make certain that his patient understands the physical and emotional implications of having an abortion. But Akron has gone far beyond merely describing the general subject matter relevant to informed consent. By insisting upon recitation of a lengthy and inflexible list of information, Akron unreasonably has placed "obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision." Whalen v. Roe, 429 U.S. at 604, n. 33. [n37] [p446]
Section 1870.06(C) presents a different question. Under this provision, the "attending physician" must inform the woman
of the particular risks associated with her own pregnancy and the abortion technique to be employed including providing her with at least a general description of the medical instructions to be followed subsequent to the abortion in order to insure her safe recovery, and shall in addition provide her with such other information which in his own medical judgment is relevant to her decision as to whether to have an abortion or carry her pregnancy to term.
The information required clearly is related to maternal health and to the State's legitimate purpose in requiring informed consent. Nonetheless, the Court of Appeals determined that it interfered with the physician's medical judgment
in exactly the same way as Section 1870.06(B). It requires the doctor to make certain disclosures in all cases, regardless of his own professional judgment as to the desirability of doing so.
651 F.2d at 1207. This was a misapplication of Danforth. There we construed "informed consent" to mean "the giving of information to the patient as to just what would be done and as to its consequences." 428 U.S. at 67, n. 8. We see no significant difference in Akron's requirement that the woman be told of the particular risks of her pregnancy and the abortion technique to be [p447] used, and be given general instructions on proper post-abortion care. Moreover, in contrast to subsection (B), § 1879.06(C) merely describes in general terms the information to be disclosed. It properly leaves the precise nature and amount of this disclosure to the physician's discretion and "medical judgment."
The Court of Appeals also held, however, that § 1879.06(C) was invalid because it required that the disclosure be made by the "attending physician." The court found that
the practice of all three plaintiff clinics has been for the counseling to be conducted by persons other than the doctor who performs the abortion,
651 F.2d at 1207, and determined that Akron had not justified requiring the physician personally to describe the health risks. Akron challenges this holding as contrary to our cases that emphasize the importance of the physician-patient relationship. In Akron's view, as in the view of the dissenting judge below, the "attending physician" requirement "does no more than seek to ensure that there is, in fact, a true physician-patient relationship even for the woman who goes to an abortion clinic." Id. at 1217 (Kennedy, J., concurring in part and dissenting in part).
Requiring physicians personally to discuss the abortion decision, its health risks, and consequences with each patient may in some cases add to the cost of providing abortions, though the record here does not suggest that ethical physicians will charge more for adhering to this typical element of the physician-patient relationship. Yet in Roe and subsequent cases we have
stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion and in determining how any abortion was to be carried out.
Colautti v. Franklin, 439 U.S. at 387. Moreover, we have left no doubt that, to ensure the safety of the abortion procedure, the States may mandate that only physicians perform abortions. See Connecticut v. Menillo, 423 U.S. 9, 11 (1975); Roe, 410 U.S. at 165. [p448]
We are not convinced, however, that there is as vital a state need for insisting that the physician performing the abortion, or for that matter any physician, personally counsel the patient in the absence of a request. The State's interest is in ensuring that the woman's consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it. [n38] Akron and intervenors strongly urge that the nonphysician counselors at the plaintiff abortion clinics are not trained or qualified to perform this important function. The courts below made no such findings, however, and, on the record before us, we cannot say that the woman's consent to the abortion will not be informed if a physician delegates the counseling task to another qualified individual.
In so holding, we do not suggest that the State is powerless to vindicate its interest in making certain the "important" and "stressful" decision to abort "[i]s made with full knowledge of its nature and consequences." Danforth, 428 U.S. at 67. Nor do we imply that a physician may abdicate his essential role as the person ultimately responsible for the medical aspects of the decision to perform the abortion. [n39] A [p449] State may define the physician's responsibility to include verification that adequate counseling has been provided and that the woman's consent is informed. [n40] In addition, the State may establish reasonable minimum qualifications for those people who perform the primary counseling function. [n41] See, e.g., Doe, 410 U.S. at 195 (State may require a medical facility "to possess all the staffing and services necessary to perform an abortion safely"). In light of these alternatives, we believe that it is unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent. We affirm the judgment of the Court of Appeals that § 1879.06(C) is invalid.
The Akron ordinance prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs a consent form. § 1879.07. [n42] The District Court upheld this provision on the ground that it furthered Akron's interest in ensuring "that a woman's abortion decision is made after careful consideration of all the facts applicable to her particular [p450] situation." 479 F.Supp. at 1204. The Court of Appeals reversed, finding that the inflexible waiting period had "no medical basis," and that careful consideration of the abortion decision by the woman "is beyond the state's power to require." 651 F.2d at 1208. We affirm the Court of Appeals' judgment.
The District Court found that the mandatory 24-hour waiting period increases the cost of obtaining an abortion by requiring the woman to make two separate trips to the abortion facility. See 479 F.Supp. at 1204. Plaintiffs also contend that, because of scheduling difficulties, the effective delay may be longer than 24 hours, and that such a delay in some cases could increase the risk of an abortion. Akron denies that any significant health risk is created by a 24-hour waiting period, and argues that a brief period of delay -- with the opportunity for reflection on the counseling received -- often will be beneficial to the pregnant woman.
We find that Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence suggesting that the abortion procedure will be performed more safely. Nor are we convinced that the State's legitimate concern that the woman's decision be informed is reasonably served by requiring a 24-hour delay as a matter of course. The decision whether to proceed with an abortion is one as to which it is important to "affor[d] the physician adequate discretion in the exercise of his medical judgment." Colautti v. Franklin, 439 U.S. at 387. In accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. [n43] But if a woman, after appropriate counseling, is prepared [p451] to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision.
Section 1870.16 of the Akron ordinance requires physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner." The Court of Appeals found that the word "humane" was impermissibly vague as a definition of conduct subject to criminal prosecution. The court invalidated the entire provision, declining to sever the word "humane" in order to uphold the requirement that disposal be "sanitary." See 651 F.2d at 1211. We affirm this judgment.
Akron contends that the purpose of § 1879.16 is simply "‘to preclude the mindless dumping of aborted fetuses onto garbage piles.'" Planned Parenthood Assn. v. Fitzpatrick, 401 F.Supp. 554, 573 (ED Pa.1975) (three-judge court) (quoting State's characterization of legislative purpose), summarily aff'd sub nom. Franklin v. Fitzpatrick, 428 U.S. 901 (1976). [n44] It is far from clear, however, that this provision has such a limited intent. The phrase "humane and sanitary" does, as the Court of Appeals noted, suggest a possible intent to "mandate some sort of ‘decent burial' of an embryo at the earliest stages of formation." 651 F.2d at 1211. This level of uncertainty is fatal where criminal liability is imposed. See Colautti v. Franklin, supra, at 396. Because § 1879.16 fails to give a physician "fair notice that his contemplated conduct is forbidden," United States v. Harriss, 347 [p452] U.S. 612, 617 (1954), we agree that it violates the Due Process Clause. [n45]
We affirm the judgment of the Court of Appeals invalidating those sections of Akron's "Regulations of Abortions" ordinance that deal with parental consent, informed consent, a 24-hour waiting period, and the disposal of fetal remains. The remaining portion of the judgment, sustaining Akron's requirement that all second trimester abortions be performed in a hospital, is reversed.
It is so ordered.
* Together with No. 81-1172, Akron Center for Reproductive Health, Inc., et al. v. City of Akron et al., also on certiorari to the same court.
1. There are especially compelling reasons for adhering to stare decisis in applying the principles of Roe v. Wade. That case was considered with special care. It was first argued during the 1971 Term, and reargued -- with extensive briefing -- the following Term. The decision was joined by THE CHIEF JUSTICE and six other Justices. Since Roe was decided in January, 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy. See Connecticut v. Menillo, 423 U.S. 9 (1975); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 428 U.S. 132 (1976); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Colautti v. Franklin, 439 U.S. 379 (1979); Bellotti v. Baird, 443 U.S. 622 (1979); Harris v. McRae, 448 U.S. 297 (1980); H. L. v. Matheson, 450 U.S. 398 (1981).
Today, however, the dissenting opinion rejects the basic premise of Roe and its progeny. The dissent stops short of arguing flatly that Roe should be overruled. Rather, it adopts reasoning that, for all practical purposes, would accomplish precisely that result. The dissent states that "[e]ven assuming that there is a fundamental right to terminate pregnancy in some situations," the State's compelling interests in maternal health and potential human life "are present throughout pregnancy." Post at 459 (emphasis in original). The existence of these compelling interests turns out to be largely unnecessary, however, for the dissent does not think that even one of the numerous abortion regulations at issue imposes a sufficient burden on the "limited" fundamental right, post at 465, n. 10, to require heightened scrutiny. Indeed, the dissent asserts that, regardless of cost,
[a] health regulation, such as the hospitalization requirement, simply does not rise to the level of 'official interference' with the abortion decision.
Post at 467 (quoting Harris v. McRae, supra, at 328 (WHITE, J., concurring)). The dissent therefore would hold that a requirement that all abortions be performed in an acute care general hospital does not impose an unacceptable burden on the abortion decision. It requires no great familiarity with the cost and limited availability of such hospitals to appreciate that the effect of the dissent's views would be to drive the performance of many abortions back underground free of effective regulation, and often without the attendance of a physician.
In sum, it appears that the dissent would uphold virtually any abortion regulation under a rational basis test. It also appears that even where heightened scrutiny is deemed appropriate, the dissent would uphold virtually any abortion-inhibiting regulation because of the State's interest in preserving potential human life. See post at 474 (arguing that a 24-hour waiting period is justified in part because the abortion decision "has grave consequences for the fetus"). This analysis is wholly incompatible with the existence of the fundamental right recognized in Roe v. Wade.
2. The ordinance was prefaced by several findings:
WHEREAS, the citizens of Akron are entitled to the highest standard of health care; and
WHEREAS, abortion is a major surgical procedure which can result in complications, and adequate equipment and personnel should be required for its safe performance in order to insure the highest standards of care for the protection of the life and health of the pregnant woman; and
WHEREAS, abortion should be performed only in a hospital or in such other special outpatient facility offering the maximum safeguards to the life and health of the pregnant woman; and
WHEREAS, it is the finding of Council that there is no point in time between the union of sperm and egg, or at least the blastocyst stage and the birth of the infant at which point we can say the unborn child is not a human life, and that the changes occurring between implantation, a six-weeks embryo, a six-month fetus, and a one-week-old child, or a mature adult are merely stages of development and maturation, and
WHEREAS, traditionally the physician has been responsible for the welfare of both the pregnant woman and her unborn child, and that while situations of conflict may arise between a pregnant woman's health interests and the welfare of her unborn child, the resolution of such conflicts by inducing abortion in no way implies that the physician has an adversary relationship towards the unborn child; and
WHEREAS, Council therefore wishes to affirm that the destruction of the unborn child is not the primary purpose of abortion and that consequently Council recognizes a continuing obligation on the part of the physician towards the survival of a viable unborn child where this obligation can be discharged without additional hazard to the health of the pregnant woman; and
WHEREAS, Council, after extensive public hearings and investigations concludes that enactment of this ordinance is a reasonable and prudent action which will significantly contribute to the preservation of the public life, health, safety, morals, and welfare.
Akron Ordinance No. 160-1978.
§ 1870.03 ABORTION IN HOSPITAL
No person shall perform or induce an abortion upon a pregnant woman subsequent to the end of the first trimester of her pregnancy, unless such abortion is performed in a hospital.
Section 1870.01(B) defines "hospital" as
a general hospital or special hospital devoted to gynecology or obstetrics which is accredited by the Joint Commission on Accreditation of Hospitals or by the American Osteopathic Association.
§ 1870.05 NOTICE AND CONSENT
(A) No physician shall perform or induce an abortion upon an unmarried pregnant woman under the age of 18 years without first having given at least twenty-four (24) hours actual notice to one of the parents or the legal guardian of the minor pregnant woman as to the intention to perform such abortion, or if such parent or guardian cannot be reached after a reasonable effort to find him or her, without first having given at least seventy-two (72) hours constructive notice to one of the parents or the legal guardian of the minor pregnant woman by certified mail to the last known address of one of the parents or guardian, computed from the time of mailing, unless the abortion is ordered by a court having jurisdiction over such minor pregnant woman.
(B) No physician shall perform or induce an abortion upon a minor pregnant woman under the age of fifteen (15) years without first having obtained the informed written consent of the minor pregnant woman in accordance with Section 1870.06 of this Chapter, and
(1) First having obtained the informed written consent of one of her parents or her legal guardian in accordance with Section 1870.06 of this Chapter, or
(2) The minor pregnant woman first having obtained an order from a court having jurisdiction over her that the abortion be performed or induced.
§ 1870.06 INFORMED CONSENT
(A) An abortion otherwise permitted by law shall be performed or induced only with the informed written consent of the pregnant woman, and one of her parents or her legal guardian whose consent is required in accordance with Section 1870.05(B) of this Chapter, given freely and without coercion.
(B) In order to insure that the consent for an abortion is truly informed consent, an abortion shall be performed or induced upon a pregnant woman only after she, and one of her parents or her legal guardian whose consent is required in accordance with Section 1870.05(B) of this Chapter, have been orally informed by her attending physician of the following facts, and have signed a consent form acknowledging that she, and the parent or legal guardian where applicable, have been informed as follows:
(1) That according to the best judgment of her attending physician she is pregnant.
(2) The number of weeks elapsed from the probable time of the conception of her unborn child, based upon the information provided by her as to the time of her last menstrual period or after a history and physical examination and appropriate laboratory tests.
(3) That the unborn child is a human life from the moment of conception and that there has been described in detail the anatomical and physiological characteristics of the particular unborn child at the gestational point of development at which time the abortion is to be performed, including, but not limited to, appearance, mobility, tactile sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.
(4) That her unborn child may be viable, and thus capable of surviving outside of her womb, if more than twenty-two (22) weeks have elapsed from the time of conception, and that her attending physician has a legal obligation to take all reasonable steps to preserve the life and health of her viable unborn child during the abortion.
(5) That abortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and that abortion may leave essentially unaffected or may worsen any existing psychological problems she may have, and can result in severe emotional disturbances.
(6) That numerous public and private agencies and services are available to provide her with birth control information, and that her physician will provide her with a list of such agencies and the services available if she so requests.
(7) That numerous public and private agencies and services are available to assist her during pregnancy and after the birth of her child, if she chooses not to have the abortion, whether she wishes to keep her child or place him or her for adoption, and that her physician will provide her with a list of such agencies and the services available if she so requests.
(C) At the same time the attending physician provides the information required by paragraph (B) of this Section, he shall, at least orally, inform the pregnant woman, and one of her parents or her legal guardian whose consent is required in accordance with Section 1870.05(B) of this Chapter, of the particular risks associated with her own pregnancy and the abortion technique to be employed including providing her with at least a general description of the medical instructions to be followed subsequent to the abortion in order to insure her safe recovery, and shall in addition provide her with such other information which in his own medical judgment is relevant to her decision as to whether to have an abortion or carry her pregnancy to term.
(D) The attending physician performing or inducing the abortion shall provide the pregnant woman, or one of her parents or legal guardian signing the consent form where applicable, with a duplicate copy of the consent form signed by her, and one of her parents or her legal guardian where applicable, in accordance with paragraph (B) of this Section.
§ 1870.07 WAITING PERIOD
No physician shall perform or induce an abortion upon a pregnant woman until twenty-four (24) hours have elapsed from the time the pregnant woman, and one of her parents or her legal guardian whose consent is required in accordance with Section 1870.05(B) of this Chapter, have signed the consent form required by Section 1870.06 of this Chapter, and the physician so certifies in writing that such time has elapsed.
§ 1870.16 DISPOSAL OF REMAINS
Any physician who shall perform or induce an abortion upon a pregnant woman shall insure that the remains of the unborn child are disposed of in a humane and sanitary manner.
§ 1870.19 SEVERABILITY
Should any provision of this Chapter be construed by any court of law to be invalid, illegal, unconstitutional, or otherwise unenforceable, such invalidity, illegality, unconstitutionality, or unenforceability shall not extend to any other provision or provisions of this Chapter.
9. Compare Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 655 F.2d 848 (CA8), supplemented, 664 F.2d 687 (CA8 1981) (invalidating hospital requirement), with Simopoulos v. Commonwealth, 221 Va. 1059, 277 S.E.2d 194 (1981) (upholding hospital requirement). Numerous States require that second trimester abortions be performed in hospitals. See Brief for Americans United for Life as Amicus Curiae in Simopoulos v. Virginia, O.T. 1982, No. 81-185, p. 4, n. 1 (listing 23 States).
10. In addition, the Court repeatedly has recognized that, in view of the unique status of children under the law, the States have a "significant" interest in certain abortion regulations aimed at protecting children "that is not present in the case of an adult." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 75. See Carey v. Population Services International, 431 U.S. 678, 693, n. 15 (1977) (plurality opinion). The right of privacy includes "independence in making certain kinds of important decisions," Whalen v. Roe, 429 U.S. 589, 599-600 (1977), but this Court has recognized that many minors are less capable than adults of making such important decisions. See Bellotti v. Baird, 443 U.S. at 633-635 (Bellotti II) (plurality opinion); Danforth, supra, at 102 (STEVENS, J., concurring in part and dissenting in part). Accordingly, we have held that the States have a legitimate interest in encouraging parental involvement in their minor children's decision to have an abortion. See H. L. v. Matheson, 450 U.S. 398 (1981) (parental notice); Bellotti II, supra, at 639, 648 (plurality opinion) (parental consent). A majority of the Court, however, has indicated that these state and parental interests must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement. See, e.g., Matheson, 450 U.S. at 420 (POWELL, J., concurring); id. at 450-451 (MARSHALL, J., dissenting). The plurality in Bellotti II concluded that a State choosing to encourage parental involvement must provide an alternative procedure through which a minor may demonstrate that she is mature enough to make her own decision or that the abortion is in her best interest. See Bellotti II, supra, at 643-644.
11. Roe identified the end of the first trimester as the compelling point because, until that time -- according to the medical literature available in 1973 -- "mortality in abortion may be less than mortality in normal childbirth." 410 U.S. at 163. There is substantial evidence that developments in the past decade, particularly the development of a much safer method for performing second trimester abortions, see infra at 435-437, have extended the period in which abortions are safer than childbirth. See, e.g., LeBolt, Grimes, & Cates, Mortality From Abortion and Childbirth: Are the Populations Comparable?, 248 J.A.M.A. 188, 191 (1982) (abortion may be safer than childbirth up to gestational ages of 16 weeks).
We think it prudent, however, to retain Roe's identification of the beginning of the second trimester as the approximate time at which the State's interest in maternal health becomes sufficiently compelling to justify significant regulation of abortion. We note that the medical evidence suggests that, until approximately the end of the first trimester, the State's interest in maternal health would not be served by regulations that restrict the manner in which abortions are performed by a licensed physician. See, e.g., American College of Obstetricians and Gynecologists (ACOG), Standards for Obstetric-Gynecologic Services 54 (5th ed.1982) (hereinafter ACOG Standards) (uncomplicated abortions generally may be performed in a physician's office or an outpatient clinic up to 14 weeks from the first day of the last menstrual period); ACOG Technical Bulletin No. 56, Methods of Mid-Trimester Abortion 4 (Dec.1979) ("Regardless of advances in abortion technology, midtrimester terminations will likely remain more hazardous, expensive, and emotionally disturbing for women than earlier abortions").
The Roe trimester standard thus continues to provide a reasonable legal framework for limiting a State's authority to regulate abortions. Where the State adopts a health regulation governing the performance of abortions during the second trimester, the determinative question should be whether there is a reasonable medical basis for the regulation. See Roe, 410 U.S. at 163. The comparison between abortion and childbirth mortality rates may be relevant only where the State employs a health rationale as a justification for a complete prohibition on abortions in certain circumstances. See Danforth, supra, at 78-79 (invalidating state ban on saline abortions, a method that was "safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth").
12. Of course, the State retains an interest in ensuring the validity of Roe's factual assumption that "the first trimester abortion [is] as safe for the woman as normal childbirth at term," an assumption that "holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman." Connecticut v. Menillo, 423 U.S. 9, 11 (1975) (per curiam). On this basis, for example, it is permissible for the States to impose criminal sanctions on the performance of an abortion by a nonphysician. Ibid.
13. For example, we concluded that recordkeeping,
if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment.
428 U.S. at 81. See infra at 443-445 (discussing the State's interest in requiring informed consent).
Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.
Roe, supra, at 163-164.
15. The Akron ordinance does not define "first trimester," but elsewhere suggests that the age of the fetus should be measured from the date of conception. See § 1870.06(B)(2) (physician must inform woman of the number of weeks elapsed since conception); § 1870.06(B)(4) (physician must inform woman that a fetus may be viable after 22 weeks from conception). An average pregnancy lasts approximately 38 weeks from the time of conception or, as more commonly measured, 40 weeks from the beginning of the woman's last menstrual period. Under both methods, there may be more than a 2-week deviation either way.
Because of the approximate nature of these measurements, there is no certain method of delineating "trimesters." Frequently, the first trimester is estimated as 12 weeks following conception, or 14 weeks following the last menstrual period. We need not attempt to draw a precise line, as this Court -- for purposes of analysis -- has identified the "compelling point" for the State's interest in health as "approximately the end of the first trimester." Roe, 410 U.S. at 163. Unless otherwise indicated, all references in this opinion to gestational age are based on the time from the beginning of the last menstrual period.
16. The Joint Commission on Accreditation of Hospitals (JCAH), for example, has established guidelines for the following services: dietetic, emergency, home care, nuclear medicine, pharmaceutical, professional library, rehabilitation, social work, and special care. See generally JCAH, Accreditation Manual for Hospitals, 1983 Edition (1982).
17. Akron's ordinance distinguishes between "hospitals" and outpatient clinics. Section 1870.02 provides that even first trimester abortions must be performed in "a hospital or an abortion facility." "Abortion facility" is defined as "a clinic, physician's office, or any other place or facility in which abortions are performed, other than a hospital." § 1870.01(G).
18. The Court of Appeals believed that it was bound by Gary-Northwest Indiana Women's Services, Inc. v. Bowen, 496 F.Supp. 894 (ND Ind.1980) (three-judge court), summarily aff'd sub nom. Gary-Northwest Indiana Women's Services, Inc. v. Orr, 451 U.S. 934 (1981), in which an Indiana second trimester hospitalization requirement was upheld. Although the District Court in that case found that
Roe does not render the constitutionality of second trimester regulations subject to either the availability of abortions or the improvements in medical techniques and skills,
496 F.Supp. at 901-902, it also rested the decision on the alternative ground that the plaintiffs had failed to provide evidence to support their theory that it was unreasonable to require hospitalization for dilatation and evacuation abortions performed early in the second trimester. See id. at 902-903. Our summary affirmance therefore is not binding precedent on the hospitalization issue. See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 180-181, 182-183 (1979).
19. We also found that the additional requirement that the licensed hospital be accredited by the JCAH was "not ‘based on differences that are reasonably related to the purposes of the Act in which it is found.'" Doe, 410 U.S. at 194 (quoting Morey v. Doud, 354 U.S. 457, 465 (1957)). We concluded that, in any event, Georgia's hospital requirement was invalid because it applied to first trimester abortions.
20. National statistics indicate a similar cost difference. In 1978, the average clinic charged $284 for a D&E abortion, whereas the average hospital charge was $435. The hospital charge did not include the physician's fee, which ran as high as $300. See Rosoff, The Availability of Second trimester Abortion Services in the United States, published in Second trimester Abortion: Perspectives After a Decade of Experience 35 (G. Berger, W. Brenner, & L . Keith eds.1981) (hereinafter Second trimester Abortion) .
21. The Akron situation is not unique. In many areas of this country, few, if any, hospitals perform second trimester abortions. See, e.g., Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 664 F.2d at 689 (second trimester D&E abortions available at only one hospital in Missouri); Wolfe v. Stumbo, 519 F.Supp. 22, 23 (WD Ky.1980) (no elective post-first trimester abortion performed in Kentucky hospitals); Margaret S. v. Edwards, 488 F.Supp. 181, 192 (ED La.1980) (no hospitals in Louisiana perform abortions after first trimester).
22. The death-to-case ratio for all second trimester abortions in this country fell from 14.4 deaths per 100,000 abortions in 1972 to 7.6 per 100,000 in 1977. See Tyler, Cates, Schulz, Selik, & Smith, Second trimester Induced Abortion in the United States, published in Second trimester Abortion 17-20.
23. At the time Roe was decided, the D&E procedure was used only to perform first trimester abortions.
24. Instillation procedures, the primary means of performing a second trimester abortion before the development of D&E, generally cannot be performed until approximately the 16th week of pregnancy because, until that time, the amniotic sac is too small. See Grimes & Cates, Dilatation and Evacuation, published in Second trimester Abortion 121.
25. See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, supra, at 690, n. 6 (discussing testimony by Dr. Willard Cates, Chief of Federal Abortion Surveillance for the National Centers for Disease Control, that D&E second trimester abortions are as safely performed outside of hospitals up to the 16th week); APHA Recommended Guide 654 (outpatient D&E is safer than all in-hospital non-D&E abortion procedures during the second trimester).
26. At trial, Akron relied largely on the former position of the various medical organizations concerning hospitalization during the second trimester. See 651 F.2d at 1209. The revised position of the ACOG did not occur until after trial.
Akron also argues that the safety of nonhospital D&E abortions depends on adherence to minimum standards such as those adopted by ACOG for free-standing surgical facilities, see ACOG Standards 51-62, and that there is no evidence that plaintiffs' clinics operate in this manner. But the issue in this litigation is not whether these clinics would meet such standards if they were prescribed by the city. Rather, Akron has gone much further by banning all second trimester abortions in all clinics, a regulation that does not reasonably further the city's interest in promoting health. We continue to hold, as we did in Doe v. Bolton, that a State may,
from and after the end of the first trimester, adopt standards for licensing all facilities where abortions may be performed so long as those standards are legitimately related to the objective the State seeks to accomplish.
410 U.S. at 194-195. This includes standards designed to correct any deficiencies that Akron reasonably believes exist in the clinics' present operation.
27. The city thus implies that its hospital requirement may be sustained because it is reasonable as applied to later D&E abortions or to all second trimester instillation abortions. We do not hold today that a State in no circumstances may require that some abortions be performed in a full-service hospital. Abortions performed by D&E are much safer, up to a point in the development of the fetus, than those performed by instillation methods. See Cates & Grimes, Morbidity and Mortality, published in Second trimester Abortion 166-169. The evidence before us as to the need for hospitalization concerns only the D&E method performed in the early weeks of the second trimester. See 651 F.2d at 1208-1210.
28. In the United States during 1978, 82.1% of all abortions from 13-15 weeks and 24.6% of all abortions from 16-20 weeks were performed by the D&E method. See Department of Health and Human Services, Centers for Disease Control, Abortion Surveillance: Annual Summary 1978, Table 14, p. 43 (1980).
29. The Court of Appeals upheld § 1870.05(A)'s notification requirement. See 651 F.2d at 1206. The validity of this ruling has not been challenged in this Court.
30. The Court's primary holding in Matheson was that the pregnant minor who questioned Utah's abortion consent requirement on the ground that it impermissibly applied to mature or emancipated minors lacked standing to raise that argument, since she had not alleged that she or any member of her class was mature or emancipated. 450 U.S. at 406. No such standing problem exists here, however, as the physician plaintiff, who is subject to potential criminal liability for failure to comply with the requirements of § 1870.05(B), has standing to raise the claims of his minor patients. See Danforth, 428 U.S. at 62; Doe v. Bolton, 410 U.S. at 188-189; Bellotti II, 443 U.S. at 627, n. 5 (plurality opinion).
31. The Ohio Juvenile Court has jurisdiction over any child "alleged to be a juvenile traffic offender, delinquent, unruly, abused, neglected, or dependent." Ohio Rev.Code Ann. § 2151.23 (Supp.1982). The only category that arguably could encompass a pregnant minor desiring an abortion would be the "neglected" child category. A neglected child is defined as one
[w]hose parents, guardian or custodian neglects or refuses to provide him with proper or necessary subsistence, education, medical or surgical care, or other care necessary for his health, morals, or wellbeing.
§ 2151.03. Even assuming that the Ohio courts would construe these provisions as permitting a minor to obtain judicial approval for the "proper or necessary . . . medical or surgical care" of an abortion, where her parents had refused to provide that care, the statute makes no provision for a mature or emancipated minor completely to avoid hostile parental involvement by demonstrating to the satisfaction of the court that she is capable of exercising her constitutional right to choose an abortion. On the contrary, the statute requires that the minor's parents be notified once a petition has been filed, § 2151.28, a requirement that, in the case of a mature minor seeking an abortion, would be unconstitutional. See H. L. v. Matheson, 450 U.S. at 420 (POWELL, J., concurring); id. at 428, n. 3 (MARSHALL,J., dissenting).
32. In particular, we have emphasized that a State's interest in protecting immature minors and in promoting family integrity gives it a special interest in ensuring that the abortion decision is made with understanding and after careful deliberation. See, e.g., H. L. v. Matheson, 450 U.S. at 411; id. at 419-420 (POWELL,J., concurring); id. at 421-424 (STEVENS,J., concurring in judgment).
33. A State is not always foreclosed from asserting an interest in whether pregnancies end in abortion or childbirth. In Maher v. Roe, 432 U.S. 464"]432 U.S. 464 (1977), and 432 U.S. 464 (1977), and Harris v. McRae, 448 U.S. 297 (1980), we upheld governmental spending statutes that reimbursed indigent women for childbirth, but not abortion. This legislation to further an interest in preferring childbirth over abortion was permissible, however, only because it did not add any "restriction on access to abortions that was not already there." Maher, supra, at 474.
34. This description must include, but not be limited to,
appearance, mobility, tactile sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.
The District Court found that "there was much evidence that it is impossible to determine many of [these] items, . . . such as the ‘unborn child's' sensitivity to pain." 479 F.Supp. at 1203.
35. The District Court found that
there was much evidence that, rather than being "a major surgical procedure," as the physician is required to state . . . , an abortion generally is considered a "minor surgical procedure."
36. Section 1870.06(B)(5) requires the physician to state
[t]hat abortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and that abortion may leave essentially unaffected or may worsen any existing psychological problems she may have and can result in severe emotional disturbances.
37. Akron has made little effort to defend the constitutionality of § 1870.06(B)(3), (4), and (5), but argues that the remaining four subsections of the provision are valid and severable. These four subsections require that the patient be informed by the attending physician of the fact that she is pregnant, § 1870.06(B)(1), the gestational age of the fetus, § 1807.06(B)(2), the availability of information on birth control and adoption, § 1870.06(B)(6), and the availability of assistance during pregnancy and after childbirth, § 1870.06(B)(7). This information, to the extent it is accurate, certainly is not objectionable, and probably is routinely made available to the patient. We are not persuaded, however, to sever these provisions from the remainder of § 1870.06(B). They require that all of the information be given orally by the attending physician when much, if not all of it, could be given by a qualified person assisting the physician. See infra at 448-449.
38. We do not suggest that appropriate counseling consists simply of a recital of pertinent medical facts. On the contrary, it is clear that the needs of patients for information and an opportunity to discuss the abortion decision will vary considerably. It is not disputed that individual counseling should be available for those persons who desire or need it. See, e.g., National Abortion Federation Standards 1 (1981) (hereinafter NAF Standards); Planned Parenthood of Metropolitan Washington, D.C. Inc., Guidelines for Operation, Maintenance, and Evaluation of First Trimester Outpatient Abortion Facilities 5 (1980). Such an opportunity may be especially important for minors alienated or separated from their parents. See APHA Recommended Guide 654. Thus, for most patients, mere provision of a printed statement of relevant information is not counseling.
39. This Court's consistent recognition of the critical role of the physician in the abortion procedure has been based on the model of the competent, conscientious, and ethical physician. See Doe, 410 U.S. at 196-197. We have no occasion in this case to consider conduct by physicians that may depart from this model. Cf. Danforth, 428 U.S. at 91-92. n. 2 (Stewart, J., concurring).
40. Cf. ACOG Standards 54 ("If counseling has been provided elsewhere, the physician performing the abortion should verify that the counseling has taken place").
41. The importance of well-trained and competent counselors is not in dispute. See, e.g., APHA Recommended Guide 654 ("Abortion counselors may be highly skilled physicians as well as trained, sympathetic individuals working under appropriate supervision"); NAF Standards 2 (counselors must be trained initially at least in the following subjects: "sexual and reproductive health; abortion technology; contraceptive technology; short-term counseling skills; community resources and referrals; informed consent; agency policies and practices").
42. This provision does not apply if the physician certifies in writing that
there is an emergency need for an abortion to be performed or induced such that continuation of the pregnancy poses an immediate threat and grave risk to the life or physical health of the pregnant woman.
43. The ACOG recommends that a clinic allow "sufficient time for reflection prior to making an informed decision." ACOG Standards 54. In contrast to § 1870.07's mandatory waiting period, this standard recognizes that the time needed for consideration of the decision varies depending on the particular situation of the patient and how much prior counseling she has received.
44. In Fitzpatrick, the District Court accepted Pennsylvania's contention that its statute governing the "humane" disposal of fetal remains was designed only to prevent such "mindless dumping." That decision is distinguishable because the statute did not impose criminal liability, but merely provided for the promulgation of regulations to implement the disposal requirement. See 401 F.Supp. at 572-573.
45. We are not persuaded by Akron's argument that the word "humane" should be severed from the statute. The uncertain meaning of the phrase "humane and sanitary" leaves doubt as to whether the city would have enacted § 1870.16 with the word "sanitary" alone. Akron remains free, of course, to enact more carefully drawn regulations that further its legitimate interest in proper disposal of fetal remains.