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City of Akron v. Akron Center for Reproductive Health (1983)

In Depth

Background

In 1978, the City Council of Akron, Ohio, adopted a comprehensive ordinance regulating abortion.  Plaintiffs, three corporations that operate abortion clinics in Akron and a physician who performs abortions, brought a lawsuit in federal district court against defendants, the City of Akron and three officials responsible for enforcing the ordinance, alleging that the ordinance violated their constitutional rights.  Following a hearing, the district court determined that plaintiffs lacked standing to challenge seven of the seventeen sections of the ordinance; struck down four sections, including those mandating parental consent and notice, requiring disclosure of certain facts concerning the woman's pregnancy, fetal development, the complications of abortion and the names of agencies available to assist the woman and regulating the disposal of fetal remains; and upheld the remaining six sections, including those mandating a twenty-four hour waiting period, requiring all abortions after the first trimester to be performed in a hospital and requiring the attending physician to disclose to a woman seeking an abortion the particular risks of her pregnancy and the abortion technique to be used on her.  Both plaintiffs and defendants appealed.  On appeal, the court of appeals affirmed in part and reversed in part the district court's judgment. The court of appeals upheld the hospitalization requirement and the parental notice requirement, but struck down the parental consent requirement, the disclosure requirements, including the requirement that the physician personally disclose the particular risks of the woman's pregnancy and the abortion technique to be used, the mandated twenty-four hour waiting period and the regulation regarding the disposal of fetal remains.  The Supreme Court thereafter granted both the plaintiffs' and the defendants' petitions for review.

The Ordinance Under Review

§ 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.

City of Akron, Ordinance No. 160-1978, "Regulation of Abortions," § 1870.03.

§ 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 parent 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.

City of Akron, Ordinance No. 160-1978, "Regulation of Abortions," § 1870.05.

§ 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.

City of Akron, Ordinance No. 160-1978, "Regulation of Abortions," § 1870.06.

§ 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.

City of Akron, Ordinance No. 160-1978, "Regulation of Abortions," § 1870.07.

§ 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.

City of Akron, Ordinance No. 160-1978, "Regulation of Abortions," § 1870.16.

The Court's Holding

By a six-to-three vote, the Court struck down the requirement that all abortions after the end of the first trimester of pregnancy be performed in hospitals, § 1870.03, the requirement that a minor under the age of 15 obtain parental consent before undergoing an abortion, § 1870.05(B), major provisions of the informed consent requirement, § 1870.06(B), (C), the mandated twenty-four waiting period, § 1870.07, and the fetal disposal requirement, § 1870.16.

The Court's Reasoning

Justice Powell 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) and reiterated the principles set forth therein governing the regulation of abortion.  City of Akron, 462 U.S. at 419-20, 426-33 (for an analysis of the constitutional issues decided in Roe, please see the summary for that case).

Post First-Trimester Hospitalization Requirement

Section 1870.03 required that all abortions after the end of the first trimester of pregnancy be performed in a hospital.  A "hospital," in turn, was defined in the ordinance 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." Ordinance No. 160-1978, § 1870.01(B).   Because of the definition of "hospital," § 1870.03 prevented the performance of abortions (after the first trimester) in outpatient facilities that were not part of an acute-care, full-service hospital.  Plaintiffs argued that the 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."  City of Akron, 462 U.S. at 432 (summarizing plaintiffs' argument).

The Court struck down the hospitalization requirement.  City of Akron, 462 U.S. at 433-39.  Justice Powell acknowledged that, under Roe, "a State's interest in health regulation becomes compelling at approximately the end of the first trimester."  Id. at 434.  "The existence of a compelling health interest," he explained, however, "is only the beginning of the inquiry." Id. "The State's regulation may be upheld only if it is reasonably designed to further that state interest."  Id.  Although the State must have some "latitude in adopting regulations of general applicability in this sensitive area," "if it appears that during a substantial portion of the second trimester the State's regulation depart[s] from accepted medical practice, . . . the regulation may not be upheld simply because it may be reasonable for the remaining portion of the trimester."  Id. (internal quotation marks omitted).  Instead, "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."  Id.

Based on the record in the district court, the Court noted that the hospitalization requirement could more than double the cost of a second-trimester abortion performed in a clinic.  City of Akron, 462 U.S.  at 434-35.  Moreover, very few second-trimester abortions were performed in Akron hospitals, thereby forcing women "to travel to find available facilities, resulting in both financial expense and additional health risk."  Id. at 435.  As a consequence, Justice Powell noted, "a second-trimester hospitalization requirement may significantly limit a woman's ability to obtain an abortion."  Id.  The defendants did not dispute that the requirement imposed a significant burden on women's access to abortion, but, instead, defended it as a reasonable health regulation.  Id.  Although at the time Roe was decided in 1973, both the American Public Health Association (APHA) and the American College of Obstetricians & Gynecologists (ACOG) recommended hospitalization for all second-trimester abortions, in the ten years since Roe was decided, "the safety of second-trimester abortions has increased dramatically," principally because "the D&E [dilation and evacuation] procedure is now widely and successfully used for second-trimester abortions."  Id. at 435-36.  D&E, which involves dismemberment of the fetus, is " 'the safest method of performing post-first trimester abortions today,' " and practically the only method that can be used "during the interval between approximately 12 and 16 weeks of pregnancy."  Id. at 436 (quoting court of appeals).  Because of these developments, both APHA and ACOG revised their positions, stating that hospitalization was not required for D&E procedures performed early in the second trimester of pregnancy.  Id. at 436-37.  The Court found 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."  Id. at 437.  This finding "convincingly undercuts Akron's justification for requiring that all second-trimester abortions be performed in a hospital."  Id. (emphasis in original).

The City of Akron argued that " '[t]he fact that some mid-trimester abortions may be done in a minimally equipped clinic does not invalidate the regulation,'" on its face because § 1870.03  reasonably could be applied to "later D&E abortions," as well as "all second-trimester instillation abortions." City of Akron, 462 U.S. at 438 & n. 27 (quoting defendants' brief).  The Court acknowledged that "a state abortion regulation is not unconstitutional simply because it does not correspond perfectly in all cases to the asserted state interest."  Id.  Nevertheless, "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."  Id. Section 1870.03 effectively inhibited the overwhelming majority of abortions performed after the end of the first trimester and, therefore, "unreasonably infringes upon a woman's constitutional right to obtain an abortion."  Id. at 439.

Parental Consent

The Court next considered the parental consent requirement of § 1870.05(B) (the court of appeals upheld the notification requirement of § 1870.05(A) and plaintiffs did not challenge that ruling in the Supreme Court).  Section 1870.05(B) prohibited a physician from performing an abortion upon a minor pregnant woman under the age of 15 unless he first obtained "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 Court determined that § 1870.05(B) did not comport with the legal standards for evaluating parental consent statutes enunciated in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), and Bellotti v. Baird, 443 U.S. 622 (1979), and, therefore, had to be struck down.  City of Akron, 462 U.S. at 439-42 (for an analysis of the constitutional issues decided in Danforth and Bellotti, please see the summaries for those cases).

Danforth 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."  428 U.S. at 74.  Bellotti recognized that "a State's interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial," but cautioned 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 or that, despite her immaturity, an abortion would be in her best interests." City of Akron, 462 U.S. at 439-40 (summarizing Bellotti).  Under Danforth and Bellotti, "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." Id. at 440.

Akron's parental consent ordinance did not expressly create the alternative procedure required by Bellotti.  Akron argued, however, that the state juvenile court would qualify as a "court having jurisdiction" within the meaning of § 1870.05(B), and that it should not be assumed that in the juvenile proceedings the court would not construe the ordinance in a manner that was consistent with constitutional requirements.  City of Akron, 462 U.S. at 440 (summarizing defendants' argument).  The Court rejected this argument:

This suit . . . 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.  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."

Id. at 441 (quoting Bellotti, 443 U.S. at 643 n. 23).

Informed Consent

The text of the informed consent requirements mandated by §§ 1870.06(A), (B) and (C) are set out above.  Section 1870.06(A) provides that no abortion shall be performed except "with the informed written consent of the pregnant woman, . . . given freely and without coercion."  Neither the district court nor the court appeals found any constitutional infirmity in § 1870.06(A) and the Supreme Court did not consider its constitutionality.  The court of appeals, however, declared both § 1870.06(B) and (C) unconstitutional and the Supreme Court affirmed that part of the court's judgment.  City of Akron, 462 U.S. at 442-49.

The Court acknowledged that the State may require the written informed consent of the woman before an abortion is performed upon her.  City of Akron, 462 U.S. at 442-43 (citing Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 67) (for an analysis of the constitutional issues decided in Danforth, please see the summary for that case).  Such a requirement, Justice Powell, wrote, "rests on the State's interest in protecting the health of the pregnant woman."  Id. at 443.  The State, however, does not have "unreviewable authority to decide what information a woman must be given before she chooses to have an abortion.," which "remains primarily the responsibility of the physician," who must decide what information is conveyed to the patient, "depending upon her particular circumstances."  Id.

The Court found multiple provisions of § 1870.06(B) objectionable.  "[M]uch of the information required," in Justice Powell's view, seemed "designed not to inform the woman's consent but rather to persuade her to withhold it altogether."  City of Akron, 462 U.S. at 444.  For example, § 1870.06(B)(3) required the physician to inform his patient that "the unborn child is a human life from the moment of conception," a requirement that the Court determined was inconsistent with the holding in Roe v. Wade "that a State may not adopt one theory of when life begins to justify its regulation of abortion."  Id. (citing Roe, 410 U.S. at 159-62).  Moreover, much of the detailed description of "the anatomical and physiological characteristics of the particular unborn child" required by subsection (3) would, according to Justice Powell, "involve at best speculation by the physician."  Id. And subsection (B)(5), "that begins with the dubious statement that 'abortion is a major surgical procedure' and proceeds to describe numerous possible physical and psychological consequences of abortion, is a 'parade of horribles' intended to suggest that abortion is a particularly dangerous procedure."  Id. at 444-45.  "An additional, and equally decisive, objection to § 1870.06(B)," in the Court's opinion, was "its intrusion upon the discretion of the pregnant woman's physician."  Id. at 445.    Section 1870.06(B) "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."  Id.  Thus, "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."  Id.  Recognizing that "a State may require that a physician make certain that his patient understands the physical and emotional implications of having an abortion," the Court determined that "Akron has gone far beyond merely describing the general subject matter relevant to informed consent."  Id.  Instead, "[b]y 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."  Id. (citation and internal quotation marks omitted).

In a footnote to this part of its opinion, the Court noted that Akron had made "little effort to defend the constitutionality of §§ 1870.06(B)(3), (4) and (5)," but argued that "the remaining four subsections of the provision are valid and severable."  City of Akron, 432 U.S. at 445 n. 38.  Those four subsections required 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, § 1870.06(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, § 1870.07(B)(7).  Justice Powell agreed that such information, to the extent that it is accurate, "certainly is not objectionable, and probably is routinely made available to the patient."  Id. Nevertheless, the Court was not persuaded to sever those provisions from the remainder of § 1870.06(B) because that subsection (B) required 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."  Id.  As is explained below, the Court determined that requiring a physician to convey information that may be provided by other qualified personnel is unconstitutional

The Court agreed that the information required by § 1870.06(C), regarding the particular risks associated with the woman's own pregnancy and the abortion technique to be employed, along with a least a general description of the medical instructions to be followed subsequent to the abortion in order to insure her safe recovery, "clearly is related to maternal health and to the State's legitimate purpose in requiring informed consent."  City of Akron, 432 U.S. at 446.  Nevertheless, the Court struck down this subsection because it required the information to be given only by a physician, not another qualified person.  Id. at 448-49.  "The State's interest is in ensuring that the woman's consent is informed and unpressured," Justice Powell wrote.  Id. at 448.  "[T]he 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."  Id.  Although Akron disputed the qualifications of the clinic personnel who provide such information, the Court noted that the lower courts made no findings with respect to their qualifications.  Id.  On the basis of the record before it, the Court could not say that "the woman's consent to the abortion will not be informed if a physician delegates the counseling task to another qualified individual."  Id.  The physician, of course, is the person "ultimately responsible for the medical aspects of the decision to perform the abortion."  Id.  He may required to verify that adequate counseling has been provided and that the woman's consent is informed.  Id. at 449.  Moreover, "the State may establish reasonable minimum qualifications for those people who perform the primary counseling function."  Id.  Given these alternatives, the Court concluded that it was unreasonable "for a State to insist that only a physician is competent to provide the information and counseling relevant to informed consent." Id.

Twenty-Four Hour Waiting Period

Section 1870.07 prohibited a physician from performing an abortion until twenty-four hours after the pregnant woman signed a form consenting to the procedure.  The Court affirmed the court of appeals' judgment declaring § 1870.07 unconstitutional.  City of Akron, 462 U.S. at 450-51.  According to Justice Powell, Akron "failed to demonstrate that any legitimate interest is furthered by an arbitrary and inflexible waiting period." Id. at 450.  "There is no evidence that the abortion procedure will be performed more safely," nor was the State's "legitimate concern that the woman's decision be informed . . . reasonably served by requiring a 24-four hour delay as a matter of course."  Id.  The decision to proceed with an abortion is one that must be left up to the woman in consultation with her physician who, the Court assumed, "will advise the patient to defer the abortion when he thinks this will be beneficial to her."  Id.  "But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision."  Id. at 450-51.

Disposal of Fetal Remains

Section 1870.16 required physicians performing abortions to "insure that the remains of the unborn child are disposed of in a humane and sanitary manner."  The Court agreed with the court of appeals that the word "humane" was impermissibly vague as a definition of conduct subject to criminal prosecution because it failed to give physicians "fair notice" of what conduct was prohibited.  City of Akron, 462 U.S. at 451-52.  The Court declined Akron's invitation to sever the word "humane" from the provision, expressing doubt "as to whether the city would have enacted § 1870.16 with the word 'sanitary' alone."  Id. at 452 n. 45.

The Dissenting Opinion

Justice O'Connor, joined by Justices White and Rehnquist, dissented.  In her dissent, Justice O'Connor criticized the trimester approach adopted by the Court in Roe.  "Even assuming that there is a fundamental right to terminate pregnancy in some situations," she wrote, "there is no justification in law or logic for the trimester framework adopted in Roe . . . " City of Akron, 462 U.S. at 459 (O'Connor, J., dissenting).  Justice O'Connor observed that "[j]ust as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe abortions except when necessary to preserve the life and health of the mother."  Id. at 456-57 (O'Connor, J., dissenting) (emphasis in original).  As a consequence, "[t]he Roe framework . . . is clearly on a collision course with itself."  Id. at 458.

Justice O'Connor also took issue with the Court's formulation of when the State's interests in maternal health and protecting "potential" human life become sufficiently strong to justify regulation (or, after viability, even prohibition) of abortion.  Those interests, she submitted, "are present throughout pregnancy."  Akron Center, 462 U.S. at 459 (emphasis in original).  See also id. at 461 ("the State possesses compelling interests in the protection of potential human life and in maternal health throughout pregnancy").  In Justice O'Connor's view, not every regulation touching upon abortion must be "measured against the State's compelling interests and examined with strict scrutiny."  Id. at 461.  She advocated instead the "undue burden" standard of review, which she argued had been employed both in the Court's abortion cases and in its evaluation of burdens placed on other fundamental rights.  Id. at 453, 461-66.  Under that standard, which "should be applied to the challenged regulations throughout the entire pregnancy without reference to the particular 'stage' of pregnancy involved," id. at 453, the Court would decide whether a particular regulation unduly burdened the right to abortion.  If it did not, "then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose."  Id. And, even if the regulation did impose an "undue burden," the possibility remained that it could be justified by one of the State's compelling interests.  Id. at 462-63.  Applying the "undue burden" test, Justice O'Connor would have upheld each of the provisions of the ordinance that were struck down by the Court, other than the provisions of the informed consent requirement, § 1870.06(B)(3), (4) and (5), whose invalidity was conceded by Akron, which were severable under the ordinance.  Id. at 466-75 (citing § 1870.19).

Note

Those portions of the opinion in City of Akron striking down the informed consent provisions of the city ordinance (including the requirement that the physician convey the information mandated by the ordinance) and the twenty-four hour waiting period were overruled in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).  For an analysis of the constitutional issues decided in Casey, please see the summary for that case.

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