|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
An Akron, Ohio, ordinance, inter alia, (1) requires all abortions performed after the first trimester of pregnancy to be performed in a hospital (§ 1870.03); (2) prohibits a physician from performing an abortion on an unmarried minor under the age of 15 unless he obtains the consent of one of her parents or unless the minor obtains an order from a court having jurisdiction over her that the abortion be performed (§ 1870.05(B)); (3) requires that the attending physician inform his patient 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 (§ 1870.06(B)), and also inform her of the particular risks associated with her pregnancy and the abortion technique to be employed (§ 1870.06(C)); (4) prohibits a physician from performing an abortion until 24 hours after the pregnant woman signs a consent form (§ 1870.07); and (5) requires physicians performing abortions to ensure that fetal remains are disposed of in a "humane and sanitary manner" (§ 1870.16). A violation of the ordinance is punishable as a misdemeanor. Respondents and cross-petitioners filed an action in Federal District Court against petitioners and cross-respondents, challenging the ordinance. The District Court invalidated § 1870.05(B), § 1870.06(B), and § 1870.16, but upheld § 1870.03, § 1870.06(C), and § 1870.07. The Court of Appeals affirmed as to § 1870.03, § 1870.05(B), § 1870.06(B), and § 1870.16, but reversed as to § 1870.06(C) and § 1870.07.
1. Section 1870.03 is unconstitutional. Pp. 431-439.
(a) While a State's interest in health regulation becomes compelling at approximately the end of the first trimester, the State's regulation may be upheld only if it is reasonably designed to further that interest. If, during a substantial portion of the second trimester, the State's regulation [p417] departs from accepted medical practice, it 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 may be furthered. Pp. 433-434.
(b) It cannot be said that the lines drawn in § 1870.03 are reasonable. By preventing the performance of dilatation-and-evacuation 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. Section 1870.03 has the effect of inhibiting the vast majority of abortions after the first trimester, and therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion. Pp. 434-439.
2. Section 1870.05(B) is unconstitutional as making a blanket determination that all minors under the age of 15 are too immature to make an abortion decision, or that an abortion never may be in the minor's best interests without parental approval. Under circumstances where the Ohio statute governing juvenile proceedings does not mention minors' abortions nor suggest that the Ohio Juvenile Court has authority to inquire into a minor's maturity or emancipation, § 1870.05(B), as applied in juvenile proceedings, is not reasonably susceptible of being construed to create an opportunity for case-by-case evaluations of the maturity of pregnant minors. Pp. 439-442.
3. Sections § 1870.06(B) and § 1870.06(C) are unconstitutional. Pp. 442-449.
(a) The validity of an informed consent requirement rests on the State's interest in protecting the pregnant woman's health. But this does not mean that a State has unreviewable authority to decide what information a woman must be given before she chooses to have an abortion. A State may not adopt regulations designed to influence the woman's informed choice between abortion or childbirth. Pp. 442-444.
(b) Section 1870.06(B) attempts to extend the State's interest in ensuring "informed consent" beyond permissible limits, and intrudes upon the discretion of the pregnant woman's physician. While a State may require a physician to make certain that his patient understands the physical and emotional implications of having an abortion, § 1870.06(B) goes far beyond merely describing the general subject matter relevant to informed consent. By insisting upon recitation of a lengthy and inflexible list of information, the section unreasonably has placed obstacles in the path of the physician. Pp. 444-445.
(c) With respect to § 1870.06(C)'s requirement that the "attending physician" must inform the woman of the specified information, it is unreasonable for a State to insist that only a physician is competent to [p418] provide the information and counseling relevant to informed consent. Pp. 446-449.
4. Section 1870.07 is unconstitutional. Akron has failed to demonstrate that any legitimate state interest is furthered by an arbitrary and inflexible waiting period. There is no evidence that the abortion procedure will be performed more safely. Nor does it appear 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. Pp. 449-451.
5. Section 1870.16 violates the Due Process Clause by failing to give a physician fair notice that his contemplated conduct is forbidden. Pp. 451-452.
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, post, p. 452. [p419]