Elizabeth Karlin, M.D.; Planned Parenthood of Wisconsin, Inc.; Gary T. Prohaska, M.D.; Dennis D. Christensen, M.D.; and Summit Women's Health Organization, on behalf of themselves and their patients seeking abortions, Plaintiffs-Appellants, Cross-Appellees,
v.
C. William Foust, in his official capacity as District Attorney for Dane County and a representative of the class of all district attorneys in Wisconsin; James E. Doyle, in his official capacity as Attorney General of Wisconsin; James Chambers, Michael Mehr, B. Ann Nevaiser, James Esswein, Rudolfo Molina, W.R. Schwartz, Mikki Patterson, Sidney Johnson, Sandra Makhorn, Pablo Pedraza, Glenn Hoberg, Wanda Roever, Ronald Grossman, and Darold Treffert, in their official capacities as members of the Wisconsin Medical Examining Board; Elaine August, Timothy D. Burns, Bonnie M. Creighton, Ruth E. Lindgren, Pamela A. Maxon, Lorraine A. Norem, Roberta P. Overby, McArthur Weddle, and Ann Brewer, in their official capacities as members of the Wisconsin Board of Nursing; Muriel Harper, Virginia Heinemann, Cornelia Hempe, Douglas Knight, and Anita Kropf, in their official capacities as members of the social worker section of the Wisconsin Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors; Joseph Leean, in his official capacity as Secretary of the Wisconsin Department of Health and Family Services; and K.B. Piper, in his official capacity as Administrator of the Division of Health of the Wisconsin Department of Health and Family Services, Defendants-Appellees,
and
E. Michael McCann, in his official capacity as District Attorney for Milwaukee County, Defendant-Appellee, Cross-Appellant.
Nos. 98-2043, 98-2262
United States Court of Appeals, Seventh Circuit
Argued September 25, 1998
Decided August 9, 1999
Appeal from the United States District Court for the Western District of Wisconsin. No. 96 C 374--Barbara B. Crabb, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Cudahy, Coffey, and Kanne, Circuit Judges.
Kanne, Circuit Judge.
This case involves a number of facial constitutional challenges to Assembly Bill 441 ("AB 441"), which repealed and recreated Wisconsin's abortion informed consent statute, Wis. Stat. sec. 253.10, to require physicians who perform abortions to meet with their patients at least twenty-four hours before the abortion procedure to provide the patients with specific oral and printed information. The district court found most of the provisions of AB 441 constitutional after severing certain provisions and construing others as not requiring physicians to provide certain information to women who are pregnant as a result of sexual assault or incest or to women whose fetuses have been diagnosed with a lethal anomaly. Plaintiffs now appeal this decision. Plaintiffs contend that a number of AB 441's provisions are unconstitutional because they either (1) are impermissibly vague or (2) place an "undue burden" on a woman's right to obtain an abortion. Defendant McCann also appeals, challenging the district court's ruling that certain information need not be provided to sexual assault or incest victims. For the following reasons, we affirm in part and reverse in part.
I. History
A. AB 441
In 1996, Wisconsin enacted AB 441, which repealed and recreated Wisconsin's abortion informed consent statute, Wis. Stat. sec. 253.10. AB 441 contemplates a number of comprehensive changes to the informed consent structure maintained under the previous informed consent statute.1
Similar to the previous informed consent statute, under AB 441, an abortion may not be performed by a physician unless the patient has given her voluntary and informed written consent. See id. sec. 253.10(3)(a). Consent to an abortion is considered "voluntary" under AB 441 only if it "is given freely and without coercion by any person." Id. sec. 253.10(3)(b). For a woman's consent to be considered "informed," AB 441 requires that two tiers of information be provided to her at least twenty-four hours before the abortion is to be performed. Under the first tier, either the physician who will perform the abortion or any other "qualified physician"2 must meet with the woman in person and orally provide her the information set forth in sec. 253.10(3)(c)1.3 Under the second tier, the information set forth in sec. 253.10(3)(c)24 must also be orally provided to the woman in person at least twenty-four hours prior to the scheduled abortion, although this information may be conveyed by qualified persons other than the physician performing the abortion or a qualified physician. The person providing the latter information must also give the woman specified state-provided printed materials. See id. sec.sec. 253.10(3)(c)2.d, (3)(d). Both tiers of information must be conveyed to the woman "in an individual setting that protects her privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances." Id. sec. 253.10(3)(c)3. In that setting, the provider(s) of the information must also afford the woman an adequate opportunity to ask questions. See id. sec. 253.10(3)(c)4. In addition, prior to the performance of the abortion, the woman must certify in writing that (1) she received the information required under AB 441; (2) the information was provided in the appropriate setting; and (3) all of her questions were answered in a satisfactory manner. See id. sec. 253.10(5)(c)5.
AB 441's twenty-four hour waiting period and informed consent requirements may be waived in the case of a "medical emergency." Id. sec. 253.10(3)(f). A "medical emergency" is defined as:
[A] condition, in a physician's reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.
Id. sec. 253.10(2)(d). If the physician determines that a medical emergency exists, the physician must inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's "reasonable medical judgment" that an immediate abortion is necessary and, if possible, obtain the woman's written consent prior to the abortion. See id. sec. 253.10(3)(f).
AB 441 makes certain accommodations for women seeking abortions who became pregnant as the result of sexual assault or incest. See id. sec. 253.10(3m). A woman who is the victim of sexual assault may bypass AB 441's twenty-hour waiting period and undergo an immediate abortion if she satisfies certain reporting requirements. See id. sec. 253.10(3m)(a). Similarly, if the woman is a victim of incest, the twenty-four hour period can be reduced to two hours if she satisfies comparable reporting requirements. See id. sec. 253.10(3m)(b).
AB 441 also provides that a physician must comply with the same informed consent and waiting period requirements if the woman seeking the abortion is a minor. See id. sec.sec. 253.10(3)(a), (3)(c)7. However, in addition to the minor's informed and voluntary consent, the physician must also obtain the voluntary and informed consent under sec. 253.10 of one of the minor's parents or a qualified parent substitute before the physician may perform the abortion. See id. sec. 253.10(3)(c)7; see also id. sec. 48.375(4) (a)(1). As with adult women, a minor's informed consent may be waived if the physician determines that a "medical emergency" exists as defined under AB 441.
AB 441 contains three enforcement mechanisms. Section 253.10(5) provides that any person who violates sec. 253.10(3), sec. 253.10(3m)(a)2, or sec. 253.10(3m)(b)2 "shall be required to forfeit not less than $1,000 nor more than $10,000." In addition, AB 441 provides that a person who violates those same provisions may be liable to the woman upon whom the abortion was performed for compensatory damages, punitive damages ranging from $1000 to $10,000, and attorneys' fees. See id. sec. 253.10(6). Finally, a physician who violates sec. 253.10(3) may also be subject to professional discipline, ranging from limitations on to revocation of his or her license. See id. sec. 441.07(1)(f); sec. 448.02(3)(a); sec. 457.26(2)(gm).
B. Procedural History
Plaintiffs are physicians who provide abortions and organizations that operate facilities where abortion services are provided.5 Defendants are a number of various state government officials who are charged with implementing and enforcing AB 441. On May 1, 1996, one day after AB 441 was signed into law, plaintiffs filed suit seeking declaratory and injunctive relief from all provisions of AB 441, both on their own behalf and on behalf of their patients seeking abortions. Plaintiffs alleged that AB 441 violated their rights and the rights of their patients as guaranteed by the First and Fourteenth Amendments and sought a temporary restraining order and a preliminary injunction barring defendants from enforcing AB 441. The district court granted the temporary restraining order on May 6, 1996, which the parties agreed to extend until the district court ruled on plaintiffs' preliminary injunction motion. Plaintiffs' preliminary injunction motion was subsequently converted to a motion for permanent injunction, which the district court heard in June 1996.
Before the district court, plaintiffs facially challenged the constitutionality of AB 441 on three grounds. First, plaintiffs alleged that a number of AB 441's provisions were unconstitutionally vague. Second, plaintiffs contended that AB 441 was unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey,
The district court denied plaintiffs' motion to enjoin AB 441 in its entirety, finding that AB 441 as a whole did not violate a woman's constitutional right to seek an abortion. However, the court did find certain provisions of AB 441 unconstitutional and severed them from the statute.6 In addition, the district court found that AB 441 was constitutional only if the "medical emergency" provision contained in sec. 253.10(2)(d) is construed to provide that physicians may perform emergency abortions when there is a "significant threat to a woman's health" and only if certain of the informed consent requirements set forth in sec. 253.10(3)(c)2 are construed as not requiring physicians to give specific information to women who are pregnant as a result of sexual assault or incest or to women whose fetuses have been diagnosed with a lethal anomaly.
On appeal, plaintiffs challenge the district court's conclusions that AB 441 is not unconstitutionally vague and that AB 441 does not have the effect or purpose of imposing an undue burden on a woman's right to an abortion. Defendant McCann cross-appeals, challenging the district court's severance of sec. 253.10(3)(c)1.g and its construction of sec. 253.10(3)(c)2.b.
II. Standard of Review
We review the district court's factual findings for clear error. See Brownsburg Area Patrons Affecting Change v. Baldwin,
III. Vagueness Analysis
Plaintiffs submit that the district court erred in determining that AB 441 was not unconstitutionally vague. Although plaintiffs argued before the district court that a number of AB 441's provisions were impermissibly vague, those challenges relevant to this appeal can be reduced to three main claims. First, plaintiffs argue that AB 441's "medical emergency" provision is unconstitutionally vague because it relies on an objective standard for evaluating a physician's decision to perform an emergency abortion. Second, plaintiffs contend that the differing medical emergency provisions set forth in AB 441 and sec. 48.375(4)(b)1 of Wisconsin's parental consent law create two conflicting standards applicable to minors' abortions. Finally, plaintiffs argue that some of the informed consent requirements contained in sec. 253.10(3)(c) are unconstitutionally vague because they require abortion providers to disclose broad categories of information to patients but fail to specify the exact content of what must be discussed in order to satisfy AB 441 and thereby avoid liability. Before we address each challenge, it is necessary to set forth the legal framework for evaluating vagueness challenges.
The void for vagueness doctrine rests on the basic principle of due process that a law is unconstitutional "if its prohibitions are not clearly defined." Grayned v. City of Rockford,
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Thus, there are two means by which a statute can operate in an unconstitutionally vague manner. First, a statute is void for vagueness if it fails to provide "fair warning" as to what conduct will subject a person to liability. See, e.g., Kolender v. Lawson,
A. AB 441's Medical Emergency Provision
A state abortion statute that interferes with a woman's choice to undergo an abortion procedure must contain a valid medical emergency exception to ensure that the statute is not applied in a manner that would constitute a significant threat to a woman's health. See Casey,
[A] condition, in a physician's reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.
Id. at sec. 253.10(2)(d). By requiring that a physician exercise "reasonable medical judgment," AB 441 employs an objective standard for evaluating a physician's decision to perform an emergency abortion. Furthermore, because AB 441 has no overarching scienter requirement, a physician is liable for any violation of AB 441, including the medical emergency provision, without regard to his or her good faith attempt to comply with AB 441's provisions.
Plaintiffs raise three separate vagueness challenges to AB 441's medical emergency provision. First, they argue that the provision must contain either a subjective standard or an objective standard combined with a scienter requirement in order to survive constitutional scrutiny.8 An objective standard alone, plaintiffs submit, is always void for vagueness in the abortion context. Second, plaintiffs contend that the medical emergency provision's objective standard fails to provide them with "fair warning" as to what conduct will subject them to liability under AB 441 because physicians may disagree as to what constitutes a "medical emergency" and, therefore, physicians will not be able to discern which emergency situations constitute a significant threat to a woman's health.9 Finally, plaintiffs argue that AB 441's "reasonable medical judgment" standard is inadequate to prevent against the risk of "arbitrary and discriminatory" enforcement of AB 441's liability provisions. Plaintiffs fear that an objective standard, as opposed to a subjective (i.e., good faith) standard, puts physicians at risk that their emergency medical judgments will be second-guessed by those charged with enforcing and applying AB 441's provisions.
As best as we can discern, we are the first court to squarely address on the merits the issue of whether an objective standard in a medical emergency exception to an abortion informed consent statute is unconstitutionally vague. For the reasons set forth below, we conclude that an objective reasonableness standard does not render AB 441's medical emergency provision void for vagueness.
1. An Objective Standard Is Not Per Se Unconstitutional
We begin by addressing plaintiffs' threshold argument that an objective standard renders the medical emergency provision unconstitutionally vague as a matter of law. Plaintiffs rely primarily on Women's Medical Professional Corp. v. Voinovich,
In striking down the statute as unconstitutionally vague, the Sixth Circuit relied on the Supreme Court's decision in Colautti v. Franklin,
The determination of whether a medical emergency or necessity exists, like the determination of whether a fetus is viable, is fraught with uncertainty and susceptible to being subsequently disputed by others. Moreover, the lack of scienter is compounded by the fact that this Act requires that a physician meet both an objective and a subjective standard in order to avoid liability. While we need not decide whether employment of an objective standard with a scienter requirement would be constitutional, an objective standard without one is especially troublesome in the abortion context. In an area as controversial as abortion, the need for a scienter requirement is, as the Supreme Court [in Colautti] pointed out, particularly important. In this area where there is such disagreement, it is unlikely that the prosecution could not find a physician willing to testify that the physician did not act reasonably. Under the Act, a physician who performs a post-viability abortion . . . may be held liable, even if the physician believed he or she was acting reasonably, and in accordance with his or her best medical judgment as long as others later decide that the physician's actions were nonetheless unreasonable. The objective standard combined with strict liability for even good faith determinations, "could have a profound chilling effect on the willingness of physicians to perform abortions," . . . when the woman's life or health is threatened. The uncertainty induced by this statute therefore threatens to inhibit the exercise of constitutionally protected rights.
Id. at 205 (citation omitted). The Sixth Circuit concluded that, without a scienter requirement, the Ohio statute did not adequately notify a physician that certain conduct was prohibited and, therefore, physicians would be less willing to perform abortions. See id. Accordingly, the Sixth Circuit held that the "combination of the objective and subjective standards without a scienter requirement renders [the medical emergency exception] unconstitutionally vague, because physicians cannot know the standard under which their conduct will ultimately be judged." Id.
Plaintiffs submit that Voinovich should convince us to reach the conclusion that AB 441's medical emergency provision is unconstitutionally vague because it contains an objective standard rather than a subjective standard and provides for the imposition of liability without a finding of scienter.10 We decline to do so for two reasons.
First and foremost, we respectfully disagree with the Sixth Circuit's assessment of the Supreme Court's opinion in Colautti to the extent that the Sixth Circuit construed Colautti as requiring, or at least strongly suggesting, that an abortion statute imposing an objective standard on a physician's medical determinations would be found unconstitutionally vague without a scienter requirement. In Colautti, the Supreme Court considered the constitutionality of a Pennsylvania abortion statute that required a physician who performed or induced an abortion to make a determination, "based on his experience, judgment or professional competence," that the fetus was not viable.
The Supreme Court struck down the Pennsylvania statute as unconstitutionally vague not because it lacked a scienter requirement, but rather because it was unclear whether the statute imposed "a purely subjective standard, or whether it impose[d] a mixed subjective and objective standard" on the physician's viability determination. Id. at 391. The Court concluded that the determination that the fetus "[was] viable" was to be based upon the attending physician's "experience, judgment or professional competence," a subjective standard, but it could not ascertain whether the "sufficient reason to believe that the fetus may be viable" determination was to be governed by a subjective or objective standard. Id. While the Court in Colautti did state that the vagueness of the statute was compounded by the fact that it subjected physicians to potential criminal liability without a finding of fault, the Court specifically declined to decide "whether, under a properly drafted statute, a finding of bad faith or some other type of scienter would be required before a physician could be held criminally responsible for an erroneous determination of viability." Id. at 396.
In effect, the Supreme Court did not hold in Colautti that an abortion statute utilizing an objective standard without a scienter requirement is unconstitutionally vague. See Voinovich v. Women's Med. Prof'l Corp., ___ U.S. ___,
Furthermore, we find no compelling indication in Colautti that the Court struck down the statute because it believed imposing an objective standard on a physician's medical decisions was unconstitutional per se in the abortion context. To the contrary, the Court found the Pennsylvania statute unconstitutionally vague because the statute failed to identify clearly the overall standard that controlled a physician's viability determination; that is, the Court could not determine whether the statute imposed a purely subjective standard or one that contained both subjective and objective elements. In fact, the Court seemingly left open the possibility that a mixed standard (combining both subjective and objective elements), if clearly articulated, could be found constitutional without some finding of fault.
Because we find nothing in Colautti suggests that a properly worded mixed standard is per se void for vagueness in the abortion context, we are not willing to infer that the Court would find an objective standard per se unconstitutional. Although the Court did appear to recognize that the incorporation of an objective element could pose some hazards, see Colautti,
Second, we also note that the standard employed in the Ohio statute considered in Voinovich was a dual objective-subjective standard. As such, the Sixth Circuit had no occasion to pass on the constitutional sufficiency of an objective standard alone. Therefore, we consider much of the court's analysis on this point as dicta. Furthermore, the Sixth Circuit in Voinovich held that it was the combination of objective and subjective elements without a scienter requirement that rendered the Ohio medical emergency provision unconstitutionally vague; the rationale being that physicians could not know the standard under which their medical emergency determinations will ultimately be judged. AB 441, by contrast, creates no such uncertainty because it makes clear that the standard to which it will hold physicians' decisions is an objective one.
We must now determine whether AB 441's "reasonable medical judgment" standard provides "fair warning" to Wisconsin physicians of the relevant legal standard under which their emergency medical determinations will be judged and whether that standard is adequate to prevent those charged with enforcing and applying AB 441 from engaging in "arbitrary and discriminatory" enforcement of its provisions.
2. AB 441's Medical Emergency Provision Provides "Fair Warning"
We turn first to the issue of fair warning. Unlike the statutes at issue in Colautti and Voinovich, AB 441's medical emergency provision makes clear that the operative legal standard is an objective one. Thus, physicians are fully aware that they will be judged solely on an objective basis in making the determination that a medical emergency exists. Furthermore, the "reasonable medical judgment" standard clearly is an ascertainable and comprehensible standard that provides physicians with more than "fair warning" as to what conduct is expected of them in order to avoid the imposition of liability under AB 441 because this is the same standard by which all of their medical decisions are judged under traditional theories of tort law. As the district court noted, physicians have a duty to exercise due care, i.e. act reasonably, in treating all their patients and this duty extends to a physician's decision to perform an emergency abortion. See Nowatske v. Osterloh,
Plaintiffs offered evidence at trial that showed that there could be differences of opinion among physicians about whether certain medical conditions would be considered serious enough to fall within AB 441's medical emergency provision. As a result, plaintiffs argue that the provision fails to give physicians fair warning. While it is certainly true that physicians may disagree as to whether a specific situation rises to the level of posing a significant threat to a woman's health sufficient to necessitate an immediate abortion, the fact that one physician would choose to perform the emergency abortion under those circumstances while others would not, does not necessarily mean the former physician is acting unreasonably. In any given medical situation there is likely to be a number of reasonable medical options and disagreement between doctors over the appropriate course of action does not, of course, render one option reasonable and another unreasonable. As the district court noted, "[i]f there are two reasonable options, in this case either performing an emergency abortion immediately or waiting 24 hours, the doctor who chooses either of those reasonable options will have acted within her reasonable medical judgment." Karlin,
In reaching this conclusion, we are mindful of the Supreme Court's admonition that a state abortion statute should not unduly limit a physician's discretion in making medical determinations. See, e.g., Colautti,
While physicians may feel more secure in determining that a medical emergency exists under AB 441 if they know that their emergency medical decisions need only satisfy a subjective good faith standard, a state's decision to hold a physician's emergency medical determination to an objective standard alone does not render the medical emergency provision impermissibly vague. There is no showing in other emergency contexts that an objective standard impermissibly limits a physician's discretion in making similar decisions. Plaintiffs fail to offer any compelling reason why the abortion context should be any different. Accordingly, we conclude that AB 441's "reasonable medical judgment" standard provides "fair warning" to physicians of the conduct that will subject them to liability under AB 441.
3. AB 441's Medical Emergency Provision Provides for "Fair Enforcement"
Plaintiffs also argue that AB 441 fails to provide an adequate standard to guide those charged with the enforcement of its provisions. Plaintiffs contend that an objective standard, while appropriate in the tort context, is inappropriate under AB 441 because, in addition to traditional civil liability, AB 441 imposes professional discipline and quasi-criminal penalties in the form of forfeiture upon physicians who make unreasonable emergency medical determinations. For this reason, plaintiffs submit that AB 441's objective standard is inadequate to restrain prosecutors and state licensing authorities from engaging in "arbitrary and discriminatory" enforcement of AB 441's provisions. We disagree.
A statute or statutory provision that proscribes penalties for violations is impermissibly vague when it fails to provide a definite standard of conduct, thereby giving prosecutors, courts, and jurors unfettered freedom to act on nothing but their own preferences and beliefs. See Smith,
It is certainly a stretch to argue that AB 441 fails to provide an explicit standard for those who apply it. AB 441 clearly indicates that those charged with enforcing AB 441's provisions must assess a physician's conduct under an objective standard. Such a standard does not permit those charged with enforcing AB 441's provisions to bring arbitrary actions because enforcement actions can properly be brought only when it is reasonably believed that a physician made an objectively unreasonable decision to perform an emergency abortion. See Kolender,
It appears that plaintiffs are really arguing that AB 441's objective standard places physicians at greater risk that their emergency medical judgments will be second-guessed by prosecutors and state licensing authorities. Plaintiffs contend that the fear of being second- guessed for good faith, albeit medically unreasonable, emergency medical determinations will chill physicians from performing emergency abortions that they otherwise would have performed, thereby infringing on a woman's constitutional right to obtain an abortion. This argument seems to be derived from such cases as Colautti, see
A physician who violates the operative provisions of AB 441 is subject to civil liability, a "penalty" constituting monetary forfeiture, and professional discipline. Specifically, sec. 253.10(6) provides that a physician who violates AB 441's provisions can be held civilly liable to the woman upon whom the abortion was performed for damages arising out of the performance or inducement of the abortion, including compensatory damages, potential punitive damages ranging from $1000 to $10,000, and reasonable attorneys' fees. See Wis. Stat. sec. 253.10(6). Under AB 441's "penalty" provision, a physician who does not comply with the provisions of AB 441 "shall be required to forfeit not less than $1,000 nor more than $10,000." Id. sec. 253.10(5). Finally, a physician who violates AB 441 may also be subject to professional discipline. See id. sec. 441.07(1)(f); sec. 448.02(3)(a); sec. 457.26(2)(gm).
These three enforcement provisions closely parallel existing Wisconsin law and regulations pursuant to which physicians may be held liable for the provision of medical services (which necessarily include abortions). These laws and regulations, like AB 441, impose objective standards to which physicians must conform their conduct in order to avoid liability or discipline. Because there is no evidence that physicians are chilled in the performance of emergency services (including emergency abortions) in those contexts, we will not conclude that physicians will be impermissibly chilled from performing abortions under AB 441 simply because it employs an objective standard.
With respect to AB 441's provision for civil liability, it goes without saying that a physician is subject to financial liability under traditional theories of tort law if he or she fails to exercise reasonable care. Thus, the fact that AB 441 provides that a physician who makes an unreasonable medical determination can be held civilly liable to the patient for damages arising out of the performance of the abortion cannot be said to impermissibly "chill" physicians in exercising their professional medical judgment that a medical emergency exists because they operate under the spectre of civil liability for unreasonable medical judgments everyday.
A close cousin to the recovery of monetary damages under AB 441 is the imposition of a monetary fine under AB 441's "penalty" provision. This provision would, at first blush, seem to be the most troublesome from a constitutional standpoint because an objective standard is most vulnerable in the abortion context when a statute imposes criminal or quasi-criminal penalties on constitutionally protected activity. See Staples v. United States,
As we discuss in greater detail in Part III.C.2 infra, the forfeiture provision of AB 441 merely levels a monetary fine for violations--there is no risk of incarceration nor is a violator labeled with the stigma of having been convicted of a misdemeanor or felony offense. Thus, the threat of potential financial liability under AB 441's forfeiture provision is, we believe, qualitatively no different from the threat of civil liability under AB 441. Because we have already concluded that the threat of financial liability under that section cannot be said to increase a physician's unwillingness to perform emergency abortions because the physician already faces the threat of financial liability at tort law for decisions to perform emergency abortions that are later adjudged to be medically unreasonable, it follows that the imposition of a monetary fine is likely to have no significant chilling effect on the performance of abortions in Wisconsin.
Finally, plaintiffs make much of the fact that physicians face professional discipline for violations of AB 441. See, e.g., Wis. Stat. sec. 448.02(3)(a) (providing that an investigation of unprofessional conduct may be initiated upon an allegation that a physician has violated the informed consent or waiting period requirements of AB 441). Plaintiffs submit that the threat of professional discipline for good faith, albeit unreasonable, medical determinations would contribute in large part to a physician's unwillingness to perform emergency abortions. However, we must point out that under existing Wisconsin law physicians are already subject to professional discipline for unreasonable medical decisions in abortion and non-abortion cases alike. Under Wis. Stat. sec. 448.02 physicians are subject to investigation upon an allegation of "negligence in treatment." Wisconsin courts have construed this term to mean conduct falling below the civil standard of care for medical negligence, which is the same objective reasonableness standard employed by AB 441. See Department of Regulation & Licensing,
In sum, we hold that AB 441's "reasonable medical judgment" standard is not void for vagueness for three reasons: (1) the standard clearly conveys to physicians that their emergency medical determinations will be judged on an objective basis; (2) physicians are accustomed to having their medical decisions adjudged under an objective standard; and (3) this same objectivity, we believe, provides an adequate safeguard against any risk of arbitrary and unfair enforcement.
B. Contradiction Between Medical Emergency Provisions
In a related argument, plaintiffs challenge the constitutionality of AB 441's medical emergency provision on the ground that it conflicts with the emergency medical provision contained in the parental consent law found in Wisconsin's Children's Code, Wis. Stat. sec. 48.01 et seq. Section 48.375 of Wisconsin's parental consent law provides that a physician may not perform an abortion on a minor unless the physician has obtained the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents or a parent substitute under sec. 253.10 of AB 441 at least twenty-four hours before the abortion procedure. See id. sec. 48.375(4)(a)(1).11
Under AB 441's medical emergency provision, a physician is permitted to perform an immediate emergency abortion when a condition arises that "in a physician's reasonable medical judgment" creates a "significant threat to a woman's health." See Karlin,
The district court rejected plaintiffs' argument that the conflicting standards operated to render AB 441 unconstitutional. Recognizing that the two statutes imposed different standards on a physician's medical determination to perform an emergency abortion on a minor, the district court reasoned that "[i]f a physician is considering an emergency abortion for a minor, she will be immune from liability if she makes a decision based on reasonable medical judgment. Requiring doctors to comply with the stricter standard is constitutional and cures any potential vagueness concerns." Karlin,
Both statutes, on their face, purport to dictate the circumstances under which a minor's and a parent's voluntary and informed consent can be waived in the case of a medical emergency. Section 253.10(3)(a) of AB 441 provides that a physician may not perform an abortion on a minor woman unless both the minor and the individual who is required to give consent under sec. 48.375(4)(a)1 have each given their "voluntary and informed consent" to the abortion procedure. See also Wis. Stat. sec. 253.10(3)(c)7. Similarly, sec. 48.375(4)(a) of the parental consent law provides that a physician may not perform an abortion on a minor unless the physician has received "under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents." (emphasis added).
The parental consent law then provides that the obtainment of the minor's and parent's informed consent pursuant to sec. 253.10 can be waived and an emergency abortion performed if the physician believes "to the best of his or her medical judgment based on the facts of the case before him or her" that a medical emergency exists--a subjective standard. See id. sec. 48.375(4)(b). This stands in direct contrast to AB 441's medical emergency provision under which a physician can perform an emergency abortion without obtaining the voluntary and informed consent of the minor and her parent only if the physician in the exercise of "reasonable medical judgment" (i.e., objectively) determines that a medical emergency exists that creates a significant threat to a woman's health. See id. sec.sec. 253.10(2)(d), (3)(c); Karlin,
However, while plaintiffs are correct that the two statutes operate to impose conflicting standards on a physician's decision to perform an emergency abortion on a minor, this conflict does not render AB 441 void for vagueness. As we explained in Part III.A, standing alone, AB 441's medical emergency provision is not vague. Nor does the fact that the parental consent law imposes a different standard on a physician's decision to perform an emergency abortion automatically cause AB 441's medical emergency provision to be void for vagueness. Instead, the conflicting provisions in the two statutes concerning emergency abortions for minors creates a question of implied repeal under Wisconsin law.
The Wisconsin Supreme Court has defined "implied repeal" as "[t]he abrogation or annulling of a previously existing law by the enactment of a subsequent statute . . . which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force. . . ." State v. Dairyland Power Coop.,
A later and an older statute will, if it is possible and reasonable to do so, be always construed together, so as to give effect not only to the distinct parts or provisions of the latter, not inconsistent with the new law, but to give effect to the older law as a whole, subject only to restrictions or modifications of its meaning, where such seems to have been the legislative purpose.
Jicha v. Karns,
In determining whether the parental consent law has been impliedly repealed, we must first consider whether there is any way to construe the two medical emergency provisions so as not to conflict with one another. Jicha,
Whenever a court is confronted with apparently conflicting legislation, its goal is to ascertain the intent of the legislative body and construe the law accordingly. See County of Columbia v. Bylewski,
AB 441 also makes clear that physicians are expected to exercise "reasonable medical judgment" in determining whether to perform an emergency abortion on all women--not just those situations involving adult women. The legislature explicitly expressed that one of its intentions in enacting AB 441 was to foster "the development of standards of professional conduct in the practice of abortion." Id. sec. 253(10)(1)(b)2. The medical emergency provision specifically employs the term "pregnant woman" not pregnant adult woman or pregnant non-minor woman. Given that the legislature sought to hold physicians to a higher standard of care under AB 441 by imposing an objective rather than subjective standard on their emergency medical decisions, we find it difficult to imagine that the legislature intended a different standard to apply to minors' abortions absent some indication in AB 441 that the objective standard was not to apply to minors.
We conclude that the legislature intended the objective standard contained in AB 441's medical emergency provision to apply to all women--adults and minors alike. As such, we cannot ignore the fact that AB 441's objective standard is manifestly inconsistent with the subjective standard found in the parental consent law's medical emergency provision. Because "[i]t is a standard rule of construction that when two statutes are manifestly in conflict the earlier statute[ ] will be repealed by implication and the last one enacted will be controlling," State v. Gurnoe,
C. Informational Requirements
Plaintiffs next contend that the informed consent requirements of AB 441 set forth in sections 253.10(3)(c)1 and 253.10(3)(c)2 are unconstitutionally vague because they require a physician to convey information to a woman seeking an abortion without adequately identifying the exact content of what needs to be conveyed in order to comply with AB 441 and avoid prosecution. Plaintiffs argue that AB 441's informed consent requirements fail to provide them with "fair warning" as to what conduct will subject them to liability under the statute.
To illustrate their allegations of vagueness, plaintiffs submit that AB 441 requires a physician to inform a woman seeking an abortion of the "probable gestational age" of the fetus, the "probable anatomical and physiological characteristics" of the fetus, and the "medical risks" associated with abortion including the risk of "psychological trauma" and any "danger to subsequent pregnancies." See Wis. Stat. sec.sec. 253.10(3)(c)1.b, d, f. Plaintiffs argue that physicians have no way of knowing whether their descriptions of the "probable" characteristics of the fetus are adequate or accurate enough to avoid liability under AB 441. Similarly, plaintiffs argue that physicians may differ in their medical judgments about the nature and extent of the risk that an abortion poses to subsequent pregnancies and whether there is any risk of psychological trauma from abortion. Without some sort of good faith standard or scienter requirement, plaintiffs contend that physicians can be held strictly liable under AB 441 despite communicating their best medical judgments to their patients regarding the information AB 441 requires them to discuss because they can be continually second-guessed by prosecutors who would have little difficulty in finding a physician to offer a different assessment. Furthermore, plaintiffs submit that in an area such as this, where professional medical judgments may differ, the Constitution requires a higher degree of precision in giving physicians "fair warning" of what conduct is expected of them, and, without some standard defining the content of what needs to be disclosed under AB 441, the informed consent requirements must be found void for vagueness.12
It is quite surprising that plaintiffs are raising this vagueness challenge on appeal because the district court construed AB 441's informed consent requirements in a manner that remedies their vagueness concerns. In the proceedings below, plaintiffs raised the same vagueness challenge to AB 441's informed consent requirements. The district court focused on plaintiffs' challenge to AB 441's requirement that physicians discuss with their patients the risk of psychological trauma an abortion can inflict on a woman. The evidence offered at trial showed that physicians disagreed over whether a woman who undergoes an abortion is at risk of suffering some level of psychological trauma. The district court concluded, however, that the fact that physicians may disagree over the nature and extent of the medical risks that AB 441 requires them to discuss with their patients does not render the informed consent requirements void for vagueness. Instead, the court reasoned that:
If doctors discuss the risks on the basis of their medical training and experience, they have no legitimate fear of prosecution. This means that if a physician believes that no psychological trauma is associated with the abortion procedure to be used, that is what the statute requires him or her to tell the patient. The legislature did not specify the exact details of the risks to be discussed. It left that determination to the individual doctors. Having done so, it has created no risk of prosecution for doctors who explain the medical risks of abortion in conformance with their own best medical judgment.
Karlin,
Thus, the district court construed the informed consent requirements in the manner that plaintiffs asserted was necessary in order to avoid vagueness. The court specifically concluded that a physician who relies on his or her "best medical judgment" in conveying the information that needs to be disclosed under the informed consent requirements will not be subject to prosecution or liability--a conclusion with which we agree. Accordingly, physicians are no longer left guessing as to what information needs to be conveyed under the requirements in order to avoid prosecution. While AB 441 does strictly require that physicians must provide their patients with information on a number of specific topics, the district court's interpretation of the informed consent requirements allows the physician to use his or her best medical judgment in determining the exact nature or content of that information. For example, as the district court noted, a physician is required to inform the patient of the medical risks associated with her abortion procedure including, among other risks, the risk of psychological trauma, even if it is only to indicate that the physician believes that no psychological trauma is likely to result from the abortion procedure. Provided the basis for this belief is the physician's best medical judgment based on the physician's training and experience, as opposed to some bad faith attempt to circumvent AB 441's informed consent requirements, a physician faces no fear of prosecution even if another physician disagrees with the existence of or extent of the risk of psychological trauma. Similarly, plaintiffs' complaint that physicians have no way of knowing whether their descriptions of the "probable" anatomical and physiological characteristics of the fetus are adequate or accurate enough to escape prosecution is equally flawed under the district court's construction because physicians face no risk of prosecution if the information they convey is based on their best medical judgment.
In sum, we agree with the district court's construction that a physician may rely on his or her "best medical judgment" in determining the content of the information that needs to be disclosed under AB 441's informed consent requirements. Although the court discussed this standard only in the context of the provision of information on the risk of psychological trauma under sec. 253.10(3) (c)1.f, we see no reason why this standard should not be applicable to AB 441's other informed consent requirements as well.13 Furthermore, we conclude that this standard provides fair warning of the conduct expected of physicians and is more than adequate to protect against any arbitrary enforcement of AB 441 by state officials.
Although the district court construed the informed consent requirements in a manner that plaintiffs argued was necessary in order to avoid being found unconstitutionally vague, plaintiffs now contend that the district court exceeded its authority by construing AB 441 in this manner. Plaintiffs argue that AB 441 is not "readily susceptible" to the court's construction because it imposes strict liability for violations of its provisions but provides "no leeway for honest mistakes." Plaintiffs submit that a statute that leaves no leeway for honest mistakes is not "readily susceptible" to a construction that allows physicians to rely on their best medical judgment in conveying the information that needs to be disclosed.
Plaintiffs' argument falls short of its mark because plaintiffs have confused the circumstances under which AB 441 purports to impose strict forfeiture liability for honest mistakes. As construed by the district court, AB 441 provides that a physician is subject to liability with respect to the content of the information conveyed under the informed consent requirements only if the physician fails to employ his best medical judgment. By contrast, AB 441 holds a physician strictly liable if the physician omits any of the designated topics identified in sec. 253.10(3)(c) from his informed consent discussion with the patient, even if the omission is inadvertent. We believe that two separate inquiries must be undertaken in order to unpack plaintiffs' challenge to the district court's construction. First, we must determine whether AB 441's informed consent requirements are "readily susceptible" to the district court's construction that physicians may exercise their "best medical judgment" in determining what information to provide patients within the specified topics. Second, if AB 441 is readily susceptible to such an interpretation, we must then determine whether it is constitutional to hold a physician strictly liable for an inadvertent failure to address one of the statutorily proscribed topics.
1. AB 441 Is Readily Susceptible To The District Court's Construction
Under Wisconsin law, before a court can conclude that a challenged statute is void for vagueness, it must first determine whether the statute can be "construed so as to avoid constitutional objections." State v. Fry,
We conclude that AB 441 is readily susceptible to the district court's construction that physicians may rely on their "best medical judgment" in determining the content of the information to be conveyed to the patient on specified topics. First, one of the overarching purposes of AB 441, and the purpose most pertinent to the district court's construction, is to ensure that, prior to the abortion, a woman considering an abortion receive "a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion." Wis. Stat. sec. 253.10(1)(b)3. The district court's construction in no way perverts this purpose.
Second, plaintiffs do not offer much in the way of support for their argument that AB 441 is not "readily susceptible" to the district court's construction except to quibble over minor aspects of the AB 441's informed consent requirements that plaintiffs contend unfairly subject them to the threat of forfeiture liability. Plaintiffs contend that AB 441 sets qualitative conditions on the content of the topics which make the statute not readily susceptible to the court's construction that the legislature intended to give physicians a free hand in determining what information to convey on the proscribed topics. For example, plaintiffs argue that physicians are directed to describe, not just the gestational age of the fetus, but the "probable" gestational age of the fetus. Plaintiffs submit that the district court's implicit position that AB 441 dictates solely the topics to be covered conflicts with the plain language of the statute and, therefore, AB 441 is not readily susceptible to the court's construction.
Plaintiffs' attempts to inject uncertainty into AB 441 at all costs fails to persuade us that AB 441 is not "readily susceptible" to the district court's construction. In order to define a list of topics that a physician must address with a patient, AB 441 must necessarily describe those topics with some specificity. In so doing, we must recognize that "there are limitations in the English language with respect to being both specific and manageably brief," United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, AFL-CIO,
Finally, the district court's construction that a physician is entitled to use his best medical judgment in determining the content of the information to be conveyed does not amount to a re-writing of AB 441, but rather flows naturally from the informed consent requirements themselves. As we indicated above, two of the requirements provide that the information conveyed is subject to the "reasonable medical judgment of the physician." See Wis. Stat. sec. 253.10(3)(c)1.a ("Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant."); id. sec. 253.10(3)(c)1.i ("If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability . . ."). By implication, the Wisconsin legislature must have intended that some other standard apply to the provision of information under AB 441's remaining informed consent requirements. Since AB 441 explicitly provides when the content of the information required to be conveyed will be subject to an objective standard, we believe AB 441 is "readily susceptible" to the district court's construction that remaining information is subject to the physician's "best medical judgment"--a subjective standard. The district court's construction was more or less the articulation of a residual standard that was already implicit in AB 441's informed consent requirements.
2. The Imposition of Strict Liability Does Not Render AB 441 Unconstitutionally Vague
Plaintiffs argue that the information requirements are unconstitutionally vague because a physician is subject to strict forfeiture liability for an inadvertent failure to address one of the statutorily proscribed topics. While statutes imposing strict criminal liability without a scienter requirement are generally disfavored, see Staples,
[C]ases [involving public welfare or regulatory offenses] do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime.
Id. at 255-56.
Similarly, under Wisconsin law, it is permissible to impose strict liability without a finding of fault in regulatory criminal statutes. See State v. Collova,
[R]egulatory statutes are concerned primarily with the protection of social and public interests, with the prevention of direct and widespread social injury. They are more concerned with the injurious conduct than with the question of individual guilt or moral culpability. The penalties imposed are generally light. The usual rationale for strict liability statutes is that the public interest is so great as to warrant the imposition of an absolute standard of care--the defendant can have no excuse for disobeying the law.
By imposing strict forfeiture liability upon physicians who fail to cover the required topics, AB 441 seeks to enforce a high standard of conduct designed to protect both women seeking an abortion and, to the extent constitutionally permissible, the life of the fetus. Given the state's legitimate interest in ensuring that a woman's decision to chose an abortion is informed, it is perfectly reasonable for the Wisconsin legislature to hold physicians strictly liable in order to encourage physicians to take care that a woman receives, at a minimum, all the information that the legislature has deemed necessary to make an informed and mature decision. Furthermore, strict forfeiture liability for inadvertent failures to address certain topics required by AB 441's informed consent requirements can be avoided with a minimum amount of care. A physician "is in a position to prevent [the offense] with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." Morissette,
Physicians are highly trained and intelligent individuals. Requiring them to discuss a list of clearly prescribed topics with a patient is simply not that difficult of a task especially when AB 441 clearly identifies the topics that need be discussed. We expect that with a minimum amount of diligence, a physician will have no difficulty in complying with AB 441's informed consent requirements.
In addition, the severity of the penalty under AB 441's forfeiture provision militates against a finding that AB 441 is unconstitutional. The forfeiture provision of AB 441 merely levels a monetary fine for violations--there is no risk of incarceration nor is a violator labeled with the stigma of having been convicted of a misdemeanor or felony offense. Cf. Stepniewski v. Gagnon,
Given the state's legitimate interest in ensuring that a woman's decision to chose an abortion is informed, we conclude that AB 441's strict forfeiture liability does not render the statute unconstitutionally vague.
IV. Undue Burden Analysis
A. Legal Framework Governing Abortion Regulations
In Roe v. Wade,
The Court attempted to balance these interests in Roe by employing a trimester framework to assess the constitutionality of abortion regulations. During the first trimester, the Court held that a woman's right to choose to terminate her pregnancy may be freely exercised without any interference or regulation by the state. During the second trimester, when the state's interest in protecting the health of the mother becomes stronger, the state may regulate abortions but only in ways that were reasonably related to maternal health. Finally, during the third trimester, when the state's interest in protecting the life of the fetus becomes compelling, the state may regulate and even prohibit post-viability abortions except where necessary to preserve the life or health of the mother. Id. at 163-65.
The Court revisited Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey,
Although the Court reaffirmed the central principles of Roe in Casey, the Court abandoned Roe's rigid trimester framework because it had the effect of undervaluing the state's legitimate interest in promoting the potential life within the woman by prohibiting all pre-viability regulation aimed at the protection of fetal life. Id. at 872-876. Under the trimester framework, the Court reasoned, state abortion regulations designed to ensure that a woman's choice was informed could be struck down even though they were consistent with Roe's recognition that states have a legitimate interest in promoting prenatal life. Id. at 873. As the Court observed:
Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. [T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth. It follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. This, too, we find consistent with Roe's central premises, and indeed the inevitable consequence of our holding that the State has an interest in protecting the life of the unborn.
Id. at 872-73 (internal quotation marks and citation omitted). The Court reasoned that state regulations designed to ensure that a woman's choice contemplated consequences for the fetus did not necessarily interfere with a woman's abortion right recognized in Roe, although such measures often had previously been found to be inconsistent with Roe's rigid trimester framework. Id. at 873. The Court concluded that the trimester framework had the improper effect of invalidating legitimate governmental attempts to regulate pre-viability abortions and this effect was "incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy." Id. at 876.
In its place, the Court adopted the "undue burden" standard which the Court viewed as the appropriate means of reconciling the state's interests with the woman's constitutionally protected right to choose abortion. Id. at 876. Under this standard, a state abortion regulation is unconstitutional only if its places an "undue burden" on the exercise of a woman's right to abortion. "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id. at 878.
After Casey, states may constitutionally enact pre-viability abortion regulations, such as AB 441, to ensure that a woman's consent is informed so long as such regulations do not place an "undue burden" on a woman's right to terminate her pregnancy. As the Court observed in Casey:
What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. . . . Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal.
So, after Casey, it is clear that a court faced with a facial constitutional challenge to a pre- viability abortion regulation must undertake an examination to determine whether the challenged regulation imposes an "undue burden" on a woman's abortion right. The difficulty lies, however, in determining what exactly is meant by an "undue" burden. When is a burden "undue" as opposed to merely incidental? The Court answered this question by explaining its "undue burden" concept as follows:
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.
Id. at 877.
Although this description serves as a useful guide to a court in considering the constitutionality of an abortion regulation, the undue burden test is perhaps best understood by examining the Court's application of it in Casey. At issue in Casey were facial constitutional challenges to five provisions of Pennsylvania's Abortion Control Act: (1) the informed consent provision; (2) the twenty-four hour waiting period requirement; (3) the medical emergency exception to the twenty-four hour waiting period; (4) the provision requiring parental consent for a minor's abortion; and (5) the spousal notification provision. The statute's informed consent provision required that at least twenty- four hours before performing an abortion a physician must inform the woman of the nature of the abortion procedure, the risks of and alternatives to abortion, the medical risks of childbirth, and the probable gestational age of the fetus. In addition, abortion providers were required to make available certain state-printed materials describing the fetus and providing information about medical assistance for childbirth, liability of the father for child support, and adoption and other alternatives to abortion. The parental consent provision required a physician to obtain both the informed consent of a minor seeking an abortion and the informed consent of at least one of her parents. Under the statute's spousal notification provision, a married woman seeking an abortion was required to sign a statement indicating that her spouse had been notified of her intent to undergo an abortion. The statute also contained a medical emergency exception which excused compliance from the three previous provisions and allowed for an immediate abortion. Finally, the statute imposed various reporting requirements on physicians and abortion facilities. The Court upheld all of the challenged provisions identified above except for the spousal notification provision.
The Court's analysis in striking down the spousal notification provision most clearly demonstrates what type of showing is necessary in order to satisfy a court that a facially challenged provision places an undue burden on a woman's abortion right. The Court concluded that the spousal notification provision placed an undue burden on a woman's right to abortion because it would have the effect of preventing a significant number of women from obtaining an abortion. Id. at 887-895. In reaching this determination, the Court relied on the district court's extensive findings of fact and a number of studies and other literature that indicated that some women would be subjected to physical and psychological abuse by their spouses if they were forced to notify the spouse that they were contemplating an abortion. See id. Based on this evidence, the Court concluded that many women have justifiable fears that notifying their spouses of their intent to have an abortion will subject them to abuse and these fears meant that the spousal notification law was:
likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.
Id. at 893-94. The Court reached this conclusion even though the spousal notification provision imposed almost no burden on the vast majority of women seeking abortions. In fact, the Court noted that only about one percent of the women who sought abortions would be affected. Nevertheless, the Court stated that "[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." Id. at 894. The Court found that the adverse consequences of the spousal notification provision on the one percent of the women for whom the provision was actually relevant operated as a substantial obstacle to a woman's choice to undergo an abortion and, hence, placed an undue burden on a woman's right to an abortion. Id. at 894-95.
It is clear from the Court's application of the undue burden standard to the spousal notification law that courts should not focus on whether the challenged regulation merely has the effect of making abortions a little more difficult or expensive to obtain. As the district court aptly noted, inconvenience, even severe inconvenience, is not an undue burden. See Karlin,
The Court's undue burden analysis of the waiting period was two-fold: (1) whether the waiting period requirement was reasonably related to a legitimate state interest and (2) whether the waiting period had the practical effect of imposing an undue burden. Id. at 885-87. The Court first concluded that the waiting period was a reasonable measure to effectuate the state's interest in protecting the life of the fetus; a measure the court determined did not amount to an undue burden. Id. at 885. "The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision." Id.
The Court then looked to whether the mandatory waiting period was nonetheless invalid because in practice it created a substantial obstacle to a woman's choice to terminate her pregnancy. Id. The district court in Casey found that because of the distances many women must travel to reach an abortion provider, the waiting period would require most women seeking an abortion to make two trips to the doctor. Id. at 885-86. As a result, the district court found that the waiting period would be particularly burdensome to those women who have the fewest financial resources, those who have to travel the longest distances to reach an abortion provider, and those who had problems explaining their absences to spouses or employers. Id. at 886. In addition, the second trip would increase the exposure of women to harassment from anti-abortion protesters. Id. While the Court acknowledged that the waiting period did operate to impose some burden on these women by making it more difficult and expensive to obtain an abortion, it was not convinced that the waiting period amounted to a substantial obstacle even for those women most burdened by it. Id. at 886-87. Accordingly, the Court concluded that the waiting period did not constitute an "undue burden."
It is clear from Casey's application of the undue burden standard to these two provisions, that to constitute an undue burden, a challenged state regulation must have a strong likelihood of preventing women from obtaining abortions rather than merely making abortions more difficult to obtain. "[U]nder the undue burden standard a State is permitted to enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest." Id. at 886 (emphasis added). By drawing the constitutional line at persuasion, the undue burden standard should not invalidate those state regulations designed to persuade a woman to carry her fetus to term, even though those regulations may incidentally burden the woman's abortion right by making an abortion more expensive or inconvenient to obtain; however, when those regulations actually prevent women from having abortions they would otherwise choose to have, then they pose an unconstitutional undue burden.
In the present case, plaintiffs challenge a number of AB 441's provisions on the ground that they impose an unconstitutional undue burden on a woman's right to an abortion. Plaintiffs challenge two aspects of AB 441 that they allege have the "effect" of placing a substantial obstacle in the path of a Wisconsin woman seeking an abortion. First, plaintiffs assert that AB 441's requirement that women meet face-to-face with an abortion provider at least twenty-four hours before the abortion procedure will pose an undue burden on a woman because it will have the effect of causing some women to have later abortions, some to leave the state to obtain abortions elsewhere, and will preclude still other women from obtaining abortions altogether. Second, plaintiffs argue that AB 441 unduly burdens a woman's access to abortion services because it fails to provide a mental health exception for situations in which providing the woman with the required informed consent information will be psychologically harmful to the woman. Plaintiffs also argue that the Wisconsin legislature passed AB 441 with the impermissible "purpose" of making it more difficult for women to obtain abortions in Wisconsin. In his cross appeal, defendant McCann challenges the district court's ruling that Wis. Stat. sec. 253.10(3)(c)1.g, which requires a physician to inform his or her patient that services are available to allow her to view the image of or hear the heartbeat of her unborn child, poses an undue burden because the information required to be conveyed is false and misleading, arguing that the provision is constitutional when read with common sense.
B. Standard Of Proof For Facial Challenges To State Abortion Regulations
Prior to Casey, in order to prevail on a facial challenge to a statute, the challenger had to "establish that no set of circumstances exists under which the [statute] would be valid." See United States v. Salerno,
In Casey, the Court appears to have tempered, if not rejected, Salerno's stringent "no set of circumstances" standard in the abortion context, without expressly saying so. The plurality opinion in Casey indicated that an abortion regulation is facially invalid if "in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion."
The district court evaluated plaintiffs' facial challenges under the less stringent Casey standard. We have not yet had occasion to pass on the proper standard for reviewing facial challenges to an abortion statute in light of Casey; however, neither party has appealed the district court's use of the Casey standard. For purposes of this appeal, we will assume that the standard set forth in Casey applies. We do note, however, that the application of the Salerno standard would not have affected the outcome of any of the challenges raised on appeal.
C. Plaintiffs' Effect-Based Challenges
1. Twenty-Four Hour Waiting Period
Plaintiffs contend that the district court erred in concluding that AB 441's twenty-four hour waiting requirement will not place an undue burden on a woman's right to an abortion even though it necessitates that, in practice, a woman will have to make two visits to an abortion facility in order to obtain an abortion.15 See Wis. Stat. sec.sec. 253.10(3)(c)1, 2. Plaintiffs submit that the requirement of a face- to-face meeting between the attending physician and the woman twenty-four hours before the abortion procedure would create a substantial obstacle to abortion services in the form of increased costs for travel, lodging, and child care, loss of confidentiality for women who are closely monitored and controlled by abusive partners, and delays that are in actuality longer than twenty-four hours because of the limited number of physicians performing abortions in Wisconsin.
The arguments raised by plaintiffs in the instant case are substantially the same as those raised by the plaintiffs in Casey and subsequently rejected by the Supreme Court. In Casey, the Court concluded that a virtually identical twenty-four hour waiting period requirement in Pennsylvania's abortion statute did not have the effect of placing a substantial obstacle in the path of a Pennsylvania woman seeking an abortion. Casey,
The first issue we must address is whether Casey foreclosed the possibility that plaintiffs could challenge similar abortion restrictions in other state abortion statutes that were modeled after the Pennsylvania provisions found constitutional in Casey. We conclude plaintiffs are not precluded from challenging a waiting period provision nearly identical in all respects to the one upheld in Casey. We find support for our conclusion in Casey itself and subsequent statements from two of the authors of the joint opinion in Casey.
First, Casey emphasized that its conclusion that the waiting period did not constitute an undue burden was based "on the record before us, and in the context of this facial challenge." Id. at 887. Similarly, Justice Blackmun indicated in his concurring opinion that he was "confident that in the future evidence will be produced to show that 'in a large part of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman's choice to undergo an abortion.'"
In addition, two of the authors of the joint opinion have subsequently indicated that they construe Casey as requiring lower courts to undertake an individualized inquiry into the effects of the regulations challenged in those jurisdictions, even if those regulations are virtually identical to those upheld in Casey. In denying plaintiff's application for a stay of North Dakota's informed consent statute in Fargo Women's Health Organization v. Schafer,
Id. (O'Connor, J., concurring in denial of stay) (internal quotation marks and citations omitted). Similarly, after the remand from the Supreme Court in Casey, the district court reopened the record to hear evidence on the likely effects of the Pennsylvania statute under the undue burden standard. See Planned Parenthood of Southeastern Pennsylvania v. Casey,
In light of the foregoing, we believe that Casey does not foreclose plaintiffs from bringing facial challenges to abortion regulations in other states that are similar to those found constitutional in Casey. Indeed our conclusion here is the only one which affords Wisconsin women a fair shake because, as the district court aptly recognized, not all states are like Pennsylvania. States differ in the number of physicians who perform abortions, the number of abortion facilities, the distances women must travel in order to reach an abortion facility, and the average income of women seeking abortions. See Karlin,
Convinced that plaintiffs may challenge AB 441's twenty-four hour waiting period, we now consider whether plaintiffs have proved that the factual circumstances in Wisconsin are such that the waiting period operates to impose an undue burden on women seeking abortions in Wisconsin. We note at the outset that plaintiffs have a tremendous hurdle to overcome in order to convince us that the district court erred in determining that AB 441's waiting period does not impose an undue burden on women seeking abortions in Wisconsin. Plaintiffs are contesting AB 441's waiting period on a facial challenge, meaning that the district court did not have the opportunity to consider evidence regarding the statute's actual impact on women seeking abortions in Wisconsin because the statute had not yet taken effect at the time the district court rendered its decision. The practical effect of bringing a facial challenge such as this in the abortion context is that it will be extremely difficult for a plaintiff to come forward with sufficient proof to convince a court that a restriction so similar to one found constitutional in Casey will place an undue burden on women in the forum state because plaintiffs cannot demonstrate with any certainty that the restriction will have a significantly more burdensome effect on women in that state than the comparable restriction had on women in Pennsylvania. It should come as no surprise that, to the best of our knowledge, every post-Casey facial challenge to a waiting period requirement substantially similar to the one upheld in Casey has been found constitutional. See, e.g., Miller,
In the present case, the hardships of which plaintiffs complain are generally no different than those the Court in Casey held did not amount to an undue burden. To prove that these hardships will operate to prevent a significant number of Wisconsin women from obtaining abortions, especially low income women from rural areas, plaintiffs first presented evidence showing the factual and demographic differences between Pennsylvania and Wisconsin. Plaintiffs' evidence focused on the geographic distribution and scarcity of abortion providers in relation to the female population of Wisconsin, and plaintiffs argued that this evidence proved that Wisconsin's waiting period would be more burdensome on Wisconsin women than Pennsylvania's restriction was on Pennsylvania women. After carefully reviewing the evidence in detail, the district court concluded that the demographic differences between the two states were not significant enough to suggest that Wisconsin women are quantitatively more burdened by AB 441's waiting period than Pennsylvania women were by that state's waiting period. On appeal, plaintiffs fail to offer any convincing argument or point to any evidence in the record that would suggest that the district court erred in reaching this conclusion. While the evidence proffered by plaintiffs before the district court shows that AB 441's mandatory waiting period would likely make abortions more expensive and more difficult for some Wisconsin women to obtain, we must nevertheless conclude, as did the Court in Casey, that plaintiffs have failed to show that the effect of the waiting period would be to prevent a significant number of women from obtaining abortions.
At trial, plaintiffs primary evidence to show that AB 441 would likely have the effect of imposing an undue burden on a significant number of Wisconsin women was a statistical study conducted by plaintiffs' expert, Dr. Stanley Henshaw, in conjunction with several colleagues, that evaluated the actual effect of a similar Mississippi abortion statute on the number of abortions performed in Mississippi after that law's passage ("Mississippi Study"). The Mississippi statute, like AB 441, contained a twenty-four hour waiting period that effectively required a woman to make two visits to an abortion facility. By comparing the number of abortions performed seven months prior to the Mississippi statute's passage with the number performed five months after, the Mississippi Study found that (1) the number of Mississippi women undergoing reported abortions declined by approximately eleven to thirteen percent from the expected level calculated by Dr. Henshaw, (2) the number of Mississippi women obtaining abortions before reaching the nine week point of their pregnancies was twenty-five percent less than expected, and (3) the number of Mississippi women going out-of-state for abortions increased by seventeen percent. Not surprisingly, the Mississippi Study concluded, and Dr. Henshaw testified, that Mississippi's mandatory waiting period was responsible for the decline in the abortion rates in Mississippi, the increase in the number of abortions performed later in the woman's pregnancy, and the increase in the number of women seeking abortions out-of-state.
In the present case, plaintiffs argued before the district court that the impact of Mississippi's waiting period on the ability of Mississippi women to obtain abortions in that state provided sufficient evidence to establish that Wisconsin's waiting period would likely cause a comparable reduction in the number of abortions performed in Wisconsin, thereby imposing an undue burden on a Wisconsin woman's right to abortion.
The district court concluded that the study contained a number of methodological flaws that precluded a finding that the decline in abortions in Mississippi resulted from the difficulties in making two trips to an abortion facility rather than from some other reason. For example, the district court found that the Mississippi Study failed to obtain information regarding the number of Mississippi women having abortions in Louisiana--a shortcoming of significance because the sole abortion facility in southern Mississippi closed in early 1992, the year that Mississippi's new abortion statute took effect. This fact meant that a number of women who would ordinarily obtain abortions in southern Mississippi would likely be forced to seek abortions in a nearby Louisiana facility. Although the Mississippi Study attempted to control for its lack of information on Louisiana abortions by reducing the decline in abortions figure by two percent, the district court found that the closing of the abortion clinic in Mississippi made that arbitrary reduction highly speculative.
The Mississippi Study's most significant shortcoming, however, is that it failed to adequately control for the persuasive effect of the law. In Casey, the Supreme Court recognized that a state has a profound interest in potential life from the outset of a woman's pregnancy.
While the Mississippi Study does show a decline in abortions after the passage of that state's abortion statute, the district court found that it does not adequately explain the reason for the decline--whether the drop in abortions is attributable to the persuasive effects of the law or the difficulties in making two trips to an abortion facility. Accordingly, the district court concluded that the Mississippi Study failed to establish that the waiting period caused the drop in Mississippi abortions and, thus, the Study bore no legal relevance to the inquiry into whether Wisconsin's waiting period would unduly burden a Wisconsin woman's choice to undergo an abortion.
On appeal, plaintiffs have pointed to no evidence in the record that would convince us to disturb the district court's ruling. Instead, plaintiffs argue that the district court's acceptance of two findings of the Mississippi Study--that the Mississippi law resulted in women leaving the state and obtaining later abortions-- should have compelled the court, as a matter of law, to find that Wisconsin's waiting period would constitute an undue burden on women seeking abortions in Wisconsin. In essence, plaintiffs ask that we ignore the district court's clear findings that the Mississippi Study contained significant shortcomings that made it impossible for the court to conclude that Mississippi's waiting period unconstitutionally caused the drop in Mississippi women receiving abortions in that state. Furthermore, not only would plaintiffs have us overlook the district court's rejection of plaintiffs' causation evidence, but they ask us to apply the Mississippi Study's suspect conclusions on the Mississippi experience to Wisconsin. We decline to do so.
Aside from making little sense, plaintiffs' argument mischaracterizes the district court's conclusions and the nature of its inquiry in this case. The district court recognized that the Mississippi Study reached certain conclusions regarding the impact of Mississippi's waiting period on the performance of abortions in that state. However, the necessary focus of the court's inquiry was whether those conclusions were justified and reliable--whether the waiting period, as opposed to some other factor or factors, caused the negative abortion trend in Mississippi. This inquiry ultimately led the court to conclude that the Mississippi Study was not reliable for the reasons we explained above. Plaintiffs otherwise point to no evidence and offer no convincing argument on appeal to show that the district court erred in reaching its determination that the Mississippi Study failed to prove that the drop in abortions in Mississippi is causally attributable to any unconstitutional effect of that state's mandatory waiting period. Accordingly, we conclude that the district court did not err in finding that plaintiffs failed to show that Wisconsin's waiting period is likely to impose an undue burden on Wisconsin women.
2. Absence of an Express Mental Health Exception
Plaintiffs next argue that AB 441 is unconstitutional because it does not contain an exception like the one found in Pennsylvania's abortion statute reviewed in Casey that permits a physician to forgo the informed consent requirements of the statute "if he or she can demonstrate by a preponderance of evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient." Casey,
Although the district court rejected plaintiffs' argument, the district court nevertheless found two situations in which a physician had to be permitted to exercise the discretion plaintiffs seek in order for AB 441 to be constitutional. Evidence at trial showed that requiring a physician to provide information about a father's responsibility for child assistance to a woman who became pregnant as a result of sexual assault or incest could cause a woman severe psychological harm. Similarly, the court found that the distribution of information about a father's liability and the availability of state assistance to a woman whose fetus has been diagnosed with a lethal anomaly could also cause the woman to suffer severe psychological harm. Because the provision of such information in those two situations could cause severe psychological harm, as opposed to some form of heightened anxiety, the court held that AB 441 was constitutional only if construed as not requiring physicians to provide that information in those situations. Defendant McCann cross appeals, arguing that the informed consent information must be provided in all circumstances involving rape and incest.16
We note at the outset of our analysis that the Supreme Court has never required that an informed consent statute in the abortion context contain an express mental health exception permitting a physician to exercise the type of discretion plaintiffs seek. In Casey, the Supreme Court merely recognized the existence of such a provision in the Pennsylvania abortion statute, but by no means held that such a provision was a prerequisite to a finding of the statute's constitutionality. See id. at 883-84; see also Planned Parenthood of the Blue Ridge v. Camblos,
Notwithstanding this point, we conclude that the only logical reading of AB 441 demonstrates that the medical emergency provision requires a physician to be able to exercise some degree of discretion in a pre-viability17 context when providing the information set forth in the informed consent section of the statute to a woman when the provision of this information would create a significant threat to a woman's health. We reach this conclusion for two reasons.
First, AB 441 contains a section setting forth the Wisconsin legislature's intent in enacting the statute. The very first statement of the legislature's intent provides that AB 441 is designed to further the important and compelling state interests in "[p]rotecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child." Wis. Stat. sec. 253.10(1)(b)1. It would truly cut against AB 441's express legislative intent if a physician was required to provide information to a woman that would have a severe adverse impact upon her mental health. Furthermore, it would also seem illogical for a state to seek to protect a woman's physical health while at the same time casting aside all concerns regarding her mental health.
Second, we conclude that AB 441's medical emergency provision is broad enough to encompass significant threats to a woman's mental well- being. As we have previously indicated, the medical emergency provision provides that a physician can dispense with AB 441's waiting period and informed consent requirements if there is a "serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions." Id. sec. 253.10(2)(d). In Casey, the Supreme Court adopted the Third Circuit's construction of similar language contained in the Pennsylvania statute to allow physicians to perform immediate abortions when there is a "significant threat to a woman's health." Casey,
Thus, we conclude that when a reasonable physician would determine that some specific information required to be given under AB 441's informed consent provisions would cause a woman psychological harm sufficient to rise to the level of a medical emergency, the physician may forgo providing this specific information to the woman. This conclusion does not, however, exempt the physician from otherwise complying with AB 441's informed consent requirements or the twenty-four hour waiting period. The physician still must provide the woman with all other required information that does not create a significant, non-temporary threat of severe harm to the woman's mental health, even if this information makes the woman extremely uncomfortable or creates a substantial degree of anxiety.
Accordingly, we reject the district court's piecemeal attempt to determine certain circumstances in which a physician must be permitted to exercise discretion and find that the lack of an express mental health exception does not render AB 441 unconstitutional.
3. Cross Appeal of District Court's Severance of Wis. Stat. sec. 253.10(3)(c)1.g
We now turn to the cross appeal brought by defendant McCann challenging the district court's conclusion that Wis. Stat. sec. 253.10(3)(c)1.g ("fetal heartbeat provision") imposed an undue burden on a woman's right to an abortion. This provision required physicians to inform their patients that "fetal ultrasound imaging and auscultation of fetal heart tone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child. In so informing the woman and describing these services, the physician shall advise the woman as to how she may obtain these services if she desires to do so." Id. Pursuant to this provision, a physician is required to inform a woman that two services are available: fetal ultrasound imaging, which would enable the woman to view the image of her unborn child, and fetal auscultation services, which enable the woman to hear the unborn child's heartbeat.
In Casey, the Supreme Court indicated that, as a general matter, a state has wide latitude in imposing regulations that are designed to ensure that a woman makes a thoughtful and informed choice so long as those regulations do not place an undue burden on the woman's right to choose to have an abortion. See
In striking down the fetal heartbeat provision, the district court focused on the provision's requirement that a physician inform a woman that auscultation of fetal heart tone services are available that enable a pregnant woman to hear her unborn child's heartbeat. The district court found that there are two methods by which fetal heartbeats can be auscultated (i.e., listened to): a hand-held ultrasound machine and a stethoscope. Utilizing either of the two methods, the earliest that a fetal heartbeat can be heard is approximately ten to twelve weeks after conception. However, many women seek and obtain abortions before they reach ten weeks of gestation. Based on this evidence, the district court concluded that the information required to be conveyed under sec. 253.10(3)(c)1.g was "false and misleading" because it demanded that a physician tell a woman who was less than ten weeks pregnant that fetal auscultation services "are available" to enable her to hear her unborn child's heartbeat, even though currently available auscultation technology cannot discern a fetal heartbeat at that point in the woman's pregnancy. In reaching this conclusion, the district court compared the fetal heartbeat provision to the provision requiring a physician to inform a patient that the father "is liable" for assistance. See Wis. Stat. sec. 253.10(3)(c)2.b. The court construed the latter provision as permitting the physician to explain the difficulties of obtaining child support, but found no such flexibility in the former provision.18 As a result, the court held that the fetal heartbeat provision placed an undue burden on a woman's right to choose and struck the provision from AB 441. Karlin,
On appeal, defendant McCann challenges the court's conclusion that the fetal heartbeat provision imposed an undue burden by arguing that it was unreasonable for the district court to interpret the provision as requiring a physician to tell a woman that fetal auscultation services are available when she is less than ten weeks into her gestation period. McCann argues that the district court's interpretation was hypertechnical and that the provision is constitutional when read with common sense. McCann submits that the proper and more reasonable interpretation of the provision reveals that it does not require a physician to tell a woman that she will be able to view the image or hear the heartbeat of her unborn child when those observations are technologically impossible; it merely requires a physician to tell the woman that such services are available in the general sense. McCann argues that the first sentence of the fetal heartbeat provision refers to general information relating to the existence of the two technologies, whereas the second sentence focuses on the particular circumstances of the woman. So construed, McCann believes the provision does not preclude a physician from explaining to a woman with an insufficiently developed fetus that the specified services are not available yet.
We find McCann's argument persuasive. First, the information required to be conveyed under the fetal heartbeat provision is neither false nor misleading because the services are available to all women; it is simply a question of when such services would render useful results. Furthermore, the language of the provision is not so narrow as to preclude a physician from being able to fully explain the availability of the identified services. Indeed, we see no reason why the provision would not also necessitate a physician to fully explain these services at issue. This interpretation is consistent with our earlier holding that the information requirements are topical in nature and simply identify certain categories of information that need to be discussed with a woman seeking an abortion, leaving the exact content of the discussion to the discretion of the physician. Like the informed consent provision that requires a physician to discuss the risk of psychological trauma, a physician is required to inform the woman that fetal heartbeat services are generally available, but consistent with our interpretation of the former provision, if the physician believes that such services are not specifically available to a patient because her fetus has not reached a particular gestational age, then that is what the physician must disclose.
Second, we see no basis for the district court's distinction between the provision at issue and the provision requiring disclosure of the liability of the father for financial assistance and a comparison of the relevant language of these provisions proves this point. The paternal liability provision provides "[t]hat the father of the unborn child is liable for assistance in the support of the woman's child," Wis. Stat. sec. 253.10(3)(c)2.b (emphasis added), while the fetal heartbeat provision provides "[t]hat fetal ultrasound imaging and auscultation of fetal heartone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child," id. sec. 253.10(3)(c)1.g (emphasis added). It is unclear to us why the district court felt that the wording of the paternal provision permitted a "physician to explain the difficulties of obtaining child support" (thereby assuaging any constitutional concerns of the district court regarding whether the information was false and misleading) and why the wording of the fetal heartbeat provision would not also allow a physician to provide a full explanation concerning the services at issue. This is especially true in light of the additional language contained in the second sentence of the fetal heartbeat provision specifically contemplating that a physician is to describe the services and explain to a woman how she may take advantage of the services: "In so informing the woman and describing these services, the physician shall advise the woman as to how she may obtain these services if she desires to do so." Id. In our view, any distinction between the phrases "is liable" and "are available" is arbitrary. Accordingly, we conclude that the district court erred in striking down the fetal heartbeat provision on the basis that it required the provision of "false and misleading" information.
D. Purpose Challenge
Plaintiffs' final challenge on appeal is that the district court erred in concluding that AB 441 does not have an unconstitutional purpose. Under Casey, an abortion law may also be found to impose an undue burden on a woman's abortion right if it was enacted with the purpose of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.
Casey recognized at least two important and legitimate state interests that justify regulating abortion: protecting the life and health of the mother and protecting the potentiality of human life.
While a plaintiff can challenge an abortion regulation on the ground that the regulation was enacted with an impermissible purpose, the joint opinion in Casey and the Court's later decision in Mazurek v. Armstrong,
The only other guidance from the Court on Casey's purpose prong comes from its per curiam decision in Mazurek--a decision that suggests that plaintiffs challenging abortion statutes will face significant difficulty in showing that an otherwise constitutional abortion regulation was enacted with an impermissible purpose. In Mazurek, plaintiffs sought to enjoin the enforcement of a Montana abortion statute that restricted the performance of abortions to licensed physicians on the ground that the purpose of the provision was to impose a substantial obstacle in the path of a woman seeking a pre-viability abortion.
Relying on Casey, the Court rejected plaintiffs' argument and reasoned that states have broad latitude to determine when licensed professionals should perform particular functions even when an objective assessment shows that those tasks could be performed equally as well by others. Id. at 973 (citing Casey,
Plaintiffs argued before the district court that the Wisconsin legislature's impermissible purpose in passing AB 441 could be demonstrated in four respects: (1) rejected amendments to AB 441 that would have lessened the burdens of the statute on women; (2) statements made by individual members of the legislature expressing opposition to abortion; (3) the fact that AB 441 was supported by anti-abortion organizations; and (4) the testimony of defendant's own expert that the prior Wisconsin informed consent statute was adequate to insure a woman's informed consent. The district court rejected plaintiffs' arguments and concluded that the evidence put forth by plaintiffs failed to establish that the passage of AB 441 was motivated by any unconstitutional purpose on the part of the Wisconsin legislature. Relying on Casey, the court found that the changes brought about by AB 441, while perhaps not necessary to protect a woman's health, were based on a permissible purpose because they were reasonably related to the state's legitimate interest in promoting childbirth over abortion.
On appeal, plaintiffs have shifted their focus away from the arguments they presented before the district court and now contend that the district court erred by concluding that Casey controlled the determination of whether the Wisconsin legislature acted with an illegitimate purpose in passing the legislation at issue. Plaintiffs also assert that AB 441's illegitimate purpose is evident from the fact that AB 441 is more restrictive than the portions of the Pennsylvania statute found constitutional by the Court in Casey and from the fact that AB 441 is allegedly unconstitutional on its face. We consider each of these arguments in turn.
In reaching its conclusion that AB 441 was not passed with an impermissible purpose, the district court referenced the standard set forth by the Court in Casey-- legislation is based on a permissible purpose if it is reasonably related to promoting childbirth over abortion or protecting maternal health. See Casey,
Plaintiffs argue that "the district court was wrong in holding that Casey controls any determination about the Wisconsin Act." Plaintiffs appear to have construed the opinion of the district court as saying that "because the Court in Casey did not find an impermissible purpose, I should not find one here." Plaintiffs badly misconstrue the point of the district court's assessment that "Casey controls this question." While the Court in Casey expended little time on assessing the purpose of the Pennsylvania abortion statute, there is no denying the fact that the Court did set forth the standard by which the purpose inquiry must be made. As the district court noted, "lower courts are bound by Supreme Court precedent." And indeed, this is what the district court recognized in applying the standard set forth in Casey. We find no error in the district court's recognition that Casey controls the purpose inquiry.
Plaintiffs next argue that AB 441 has an impermissible purpose because it "goes far beyond the Pennsylvania statute." Plaintiffs point to several provisions of AB 441 that, in their opinion, make AB 441 more restrictive and more likely to chill the privacy rights of women in Wisconsin than the Pennsylvania statute. We fail to see how the fact that an abortion statute imposes greater or different restrictions than those considered by the Court in Casey automatically demonstrates that the statute was drafted with an impermissible purpose. Nowhere does the Court in Casey suggest that the provisions of the Pennsylvania statute it found to be constitutional were intended to set the outer limits of permissible abortion regulations. For example, a statute imposing a twenty-five hour waiting period for abortions is arguably more restrictive than the Pennsylvania abortion statute, but this fact alone is insufficient to show that the statute was enacted with an impermissible purpose.
To find an impermissible purpose on this basis alone would be to ignore the Wisconsin legislature's stated purpose in enacting this legislation: It is the intent of the legislature in enacting this section to further the important and compelling state interests in all of the following:
1. Protecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child.
2. Fostering the development of standards of professional conduct in the practice of abortion.
3. Ensuring that prior to the performance or inducement of an elective abortion, the woman considering an elective abortion receive personal counseling by the physician and be given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion.
4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.
Wis. Stat. sec. 253.10(1)(b). We find nothing impermissible on the face of these stated purposes and will not cast them aside lightly. Absent some evidence demonstrating that the stated purpose is pretextual, our inquiry into the legislative purpose is necessarily deferential and limited. See Michael M. v. Superior Court of Sonoma County,
Plaintiffs' argument that the statute has an impermissible purpose because it goes beyond the restrictions of the Pennsylvania statute might have some merit if the legislature expressly stated that AB 441's purpose was to limit a woman's right to chose whether to have an abortion or this fact was clear on the face of AB 441. Such was the case when the Court of Appeals for the Tenth Circuit struck down a Utah statute that permitted abortions after twenty weeks' gestational age in only three narrow circumstances, thereby essentially establishing viability at twenty weeks. See Jane L. v. Bangerter,
While we recognize that a legislature's impermissible intent will not always be as readily discernable as was the case in Bangerter, a party attempting to show an impermissible intent must nevertheless come forward with some evidence of unconstitutional intent or purpose especially when the legislature has otherwise identified permissible purposes in enacting the legislation being challenged. Plaintiffs' reliance on the simple fact that the Wisconsin statute may be more restrictive in some respects than the Pennsylvania abortion statute without more is insufficient to show an impermissible purpose.
Plaintiffs' final argument is that the unconstitutional purpose of AB 441 is apparent on the face of the statute. Plaintiffs contend that the purpose of AB 441 is to chill physicians in the performance of abortions and that this purpose is evident from: (1) the strict liability imposed for violation of AB 441's numerous vague requirements; (2) the inclusion of an objective reasonableness standard governing the definition of medical emergency; (3) the inclusion of a greater number of informed consent requirements than the Pennsylvania statute; and (4) the failure to include an explicit mental health exception. We have just dispensed with the argument that the fact that a statute has more or greater requirements than the requirements upheld by the Court in Casey does not automatically demonstrate an impermissible purpose (plaintiffs' third argument). We are then left to consider plaintiffs' citation to provisions of AB 441 that we have previously upheld in this opinion and whether these provisions demonstrate an impermissible purpose.
The Supreme Court has stated that it will not assume unconstitutional legislative intent "even when statutes produce harmful results . . . much less do we assume it when the results are harmless." Armstrong,
V. Conclusion
For the foregoing reasons, the judgment of the district court is, consistent with this opinion, AFFIRMED in part, and REVERSED in part.
Notes:
Notes
Under Wisconsin's prior informed consent statute, the attending physician or a person assisting the attending physician had to provide verbally to a woman seeking an abortion the following information: (1) whether she was pregnant; (2) the number of weeks the woman was into her pregnancy; (3) the availability of public and private agencies and services that provide birth control information; (4) the availability of public and private agencies and services that provide assistance to women who choose not to have an abortion; (5) special guidance for minor women seeking abortions; and (6) any particular risks associated with the woman's pregnancy and the abortion technique to be employed. See Wis. Stat. sec. 253.10(1)(a) (repealed 1996). The attending physician or his or her assistant also had the option of providing the woman with information on the probable physical characteristics of the fetus. See id. sec. 253.10(1)(c) (repealed 1996).
The prior statute also required the physician or the assistant to distribute to the woman upon her request certain county-provided written information identifying agencies offering birth control information and assistance during the pregnancy and after the childbirth. See id. sec. 253.10(2) (repealed 1996). Prior to undergoing an abortion, a woman had to sign a statement acknowledging the receipt of the information required by the statute and stating that she freely consented to the abortion. See id. sec. 253.10(3) (repealed 1996). Obtaining the informed consent of a woman under the provisions of the previous version of sec. 253.10 was unnecessary if an emergency abortion was required because the continuation of the pregnancy posed an immediate threat and a grave risk to the life and health of the woman. See id. sec. 253.10(4) (repealed 1996).
"'Qualified physician' means a physician who by training or experience is qualified to provide the information required under sub. (3)(c)1." Wis. Stat. sec. 253.10(2)(g).
Section 253.10(3)(c)1 provides, in relevant part, that all of the following information must be orally conveyed to a woman at least twenty-four hours before the abortion is to be performed:
a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.
b. The probable gestational age of the unborn child at the time that the information is provided. The physician or other qualified physician shall also provide this information to the woman in writing at this time.
c. The particular medical risks, if any, associated with the woman's pregnancy.
d. The probable anatomical and physiological characteristics of the woman's unborn child at the time the information is given.
e. The details of the medical or surgical method that would be used in performing or inducing the abortion.
f. The medical risks associated with the particular abortion procedure that would be used, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility. g. That fetal ultrasound imaging and auscultation of fetal heart tone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child. In so informing the woman and describing these services, the physician shall advise the woman as to how she may obtain these services if she desires to do so.
h. The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.
i. If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, that the physician who is to perform or induce the abortion is required to take all steps necessary under s. 940.15 to preserve and maintain the life and health of the child.
j. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion.
k. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.
[l]. That, except as provided in sub. (3m), the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed after the requirements of this paragraph are met.
Section 253.10(3)(c)2 provides that the following information must be provided:
a. That benefits under the medical assistance program may be available for prenatal care, childbirth and neonatal care.
b. That the father of the unborn child is liable for assistance in the support of the woman's child, if born, even if the father has offered to pay for the abortion.
c. That the woman has a legal right to continue her pregnancy and to keep the child; to place the child in a foster home or treatment foster home for 6 months or to petition a court for placement of the child in a foster home, treatment foster home or group home or with a relative; or to place the child for adoption under a process that involves court approval both of the voluntary termination of parental rights and of the adoption.
d. That the woman has the right to receive and review the printed materials described in par. (d). The physician or qualified person assisting the physician shall physically give the materials to the woman and shall, in person, orally inform her that the materials are free of charge, have been provided by the state and describe the unborn child and list agencies that offer alternatives to abortion and shall provide her with the current updated copies of the printed materials free of charge.
e. If the woman has received a diagnosis of disability for her unborn child, that the printed materials described in par. (d) contain information on community-based services and financial assistance programs for children with disabilities and their families, information on support groups for people with disabilities and parents of children with disabilities and information on adoption of children with special needs.
f. If the woman asserts that her pregnancy is the result of sexual assault or incest, that the printed materials described in par. (d) contain information on counseling services and support groups for victims of sexual assault and incest and legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights.
g. That the printed materials described in par. (d) contain information on the availability of public and private agencies and services to provide the woman with information on family planning, as defined in s. 253.07(1)(a), including natural family planning information.
Plaintiffs, as physicians and abortion facilities, have standing to bring this suit under Planned Parenthood of Central Missouri v. Danforth,
Those provisions severed from AB 441 included: sec. 253.10(3) (c)1.g requiring physicians to inform their patients that fetal ultrasound imaging and auscultation of fetal heartone services are available; sec. 253.10(3)(c)1.j. requiring physicians to inform their patients of "[a]ny other information that a reasonable patient would consider material and relevant;" and certain parts of sec. 253.10(3)(d) and sec. 46.245(1) permitting the state to charge physicians a fee for the state-printed and county-compiled materials that AB 441 required physicians to distribute to patients. See Karlin v. Foust,
In vagueness challenges alleging infringement of constitutionally protected rights, courts may strike down a statute as vague and facially invalid even if that statute is not impermissibly vague in all of its applications. See Kolender v. Lawson,
For our purposes, these two arguments are more or less the same in that plaintiffs believe that a physician should not be held liable under AB 441's enforcement provisions for good faith medical determinations that are later adjudged to be medically unreasonable.
AB 441's medical emergency provision provides that a physician can bypass the waiting period and informed consent requirements if delaying the abortion for twenty-four hours would create a "serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions." Wis. Stat. sec. 253.10(2)(d). Before the district court, plaintiffs challenged this definition on the ground that it was too narrow and would prevent some women with serious health risks from obtaining immediate abortions. Plaintiffs argued that the effect of this provision would be to contravene one of the central principles of Casey that a state is forbidden "to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health." Casey,
The district court rejected plaintiffs' argument noting that the Supreme Court had entertained and rejected the same objection raised by the plaintiffs in Casey to essentially the same operative language in the medical emergency provision contained in Pennsylvania's abortion informed consent statute. See Karlin,
Because the Wisconsin legislature adopted language so similar to that contained in Pennsylvania's medical emergency provision, the district court concluded that the legislature intended to adopt the same meaning and interpretation given to Pennsylvania's definition and held constitutional in Casey. Karlin,
However, in challenging the provision's objective standard, plaintiffs appear to have overlooked the district court's holding on this point. Plaintiffs argue that the objective standard is constitutionally deficient, in part, because AB 441's medical emergency provision is replete with vague terms, thereby increasing the likelihood of second-guessing by prosecutors. Plaintiffs believe the terms "serious," "substantial," "irreversible," and "major bodily function," are ambiguous and that this ambiguity would have the effect of chilling physicians from performing abortions because physicians would fear that prosecutors would challenge their emergency medical determinations after the fact by arguing, for example, that only a 'minor' bodily function of the woman would have been affected by the twenty-four hour delay or that the impairment occasioned by the delay would have been 'insubstantial' or 'reversible.'
The difficulty with plaintiffs' argument is that a physician is no longer required to determine whether an abortion is necessary to avoid a "serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions." Instead, a physician is required to exercise reasonable medical judgment in determining whether an immediate emergency abortion is necessary to avert "a significant threat to a woman's health." The terms of which plaintiffs complain are no longer legally significant and, therefore, cannot form a proper basis for challenging the medical emergency provision on vagueness grounds.
In support of their argument that an objective standard is always unconstitutionally vague in the abortion context, plaintiffs also rely on Planned Parenthood of Southeastern Pennsylvania v. Casey,
While Casey and Schafer certainly illustrate that a statute that contains a subjective standard alone (or a subjective standard combined with a scienter requirement in the case of Schafer) will not be found to be void for vagueness, we do not believe that these cases do not carry the force plaintiffs suggest. Although plaintiffs acknowledge that neither of these courts were called upon to decide the constitutionality of an objective standard, plaintiffs, nevertheless, argue that these courts would have found such a standard unconstitutionally vague absent a scienter requirement because they found that a physician's ability to rely on his or her judgment saved the statutes at issue from being void for vagueness. We decline to speculate as to what these courts would have done had they been asked to address the constitutionality of an objective standard. Furthermore, to the extent those courts would have found an objective standard unconstitutional, or contain dicta that intimates as much, we disagree with that conclusion for the reasons we discuss infra.
Wisconsin's parental consent law provides in relevant part:
(4) Parental consent required.
(a) Except as provided in this section, no person may perform or induce an abortion on or for a minor who is not an emancipated minor unless the person is a physician and one of the following applies:
1. The person or the person's agent has, either directly or through a referring physician or his or her agent, received and made part of the minor's medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents or treatment foster parents, if the minor has been placed in a foster home or treatment foster home and the minor's parent has signed a waiver granting the department, a county department, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor.
2. The court has granted a petition under sub. (7) [the judicial bypass procedure].
(b) Paragraph (a) does not apply if the person who intends to perform or induce the abortion is a physician and any of the following occurs:
1. The person who intends to perform or induce the abortion believes, to the best of his or her medical judgment based on the facts of the case before him or her, that a medical emergency exists that complicates the pregnancy so as to require an immediate abortion.
* * *
Wis. Stat. sec. 48.375(4).
Plaintiffs also assert that AB 441's informed consent requirements impose an undue burden on a woman's right to abortion because AB 441's vagueness will have a chilling effect on a physician's willingness to provide abortions. In other words, because AB 441 is vague, it operates to impose an undue burden. However, because we conclude that AB 441's informed consent requirements are not vague, and because plaintiffs offer nothing more than the mere assertion that vagueness causes the undue burden, we necessarily reject plaintiffs' contention that the informed consent requirements as a whole impose an undue burden on a woman's right to abortion.
Notwithstanding this point, as we explain infra, Casey held that as long as the information required to be conveyed under an abortion informed consent statute is "truthful and not misleading," the requirement will not be found to impose an undue burden on a woman's abortion right.
Aside from the fetal auscultation information requirement, see Wis. Stat. sec. 253.10(3)(c)1.g, which we address in more detail below, plaintiffs raise no argument on appeal that the information they are asked to convey is false and misleading. Accordingly, plaintiffs' contention that the information requirements impose an undue burden under Casey is without merit.
Accordingly, we hold that this standard applies to all of the informed consent requirements contained in Wis. Stat. sec.sec. 253.10(3)(c)1, 2, except for the following three provisions: sec. 253.10(3)(c)1.j; sec. 253.10(3)(c)1.a; and sec. 253.10(3)(c)1.i. The requirement that a physician inform a woman of "any other information a reasonable patient would consider material and relevant" to the abortion decision, see id. sec. 253.10(3)(c)1.j, was found to be impermissibly vague by the district court, and defendants did not appeal this decision.
The "best medical judgment" standard does not apply to the remaining two provisions because both already contain an ascertainable standard-- the same "reasonable medical judgment" standard that we have already held is not vague in the abortion context. See id. sec. 253.10(3)(c)1.a ("Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant."); id. sec. 253.10(3)(c)1.i ("If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability . . .").
Although only three Justices of the Court joined in the lead Casey opinion, under Marks v. United States,
Defendants argued before the district court that AB 441 does not require that a woman make two trips to an abortion provider because the statute allows women to receive the required informed consent information from a "qualified physician." See Wis. Stat. sec. 253.10(3)(c)1; see also id. sec. 253.10(2)(g) ("'Qualified physician' means a physician who by training or experience is qualified to provide the informed consent information . . ."). Defendants asserted that there would be physicians "qualified" to give this information in most every county in the state, thereby negating the need for a woman to make two trips to an abortion provider.
The district court found, however, that as a practical matter AB 441 likely will require two trips to an abortion provider because the "qualified physician" definition is too unclear as to how exactly a physician becomes "qualified." The court concluded that AB 441's enforcement mechanisms were severe enough to discourage abortion providers from relying on other physicians to convey the required informed consent information because they would be uncertain that those physicians met the statutory standard of a "qualified physician." For purposes of this appeal, and because it will not affect our ultimate determination as to whether AB 441's waiting period operates to impose an undue burden on Wisconsin women, we assume that AB 441 would require two trips to an abortion provider.
Defendants do not contest that the specified information need not be given to women whose fetuses have been diagnosed with lethal fetal anomalies. However, we believe a different ground from that offered by the district court justifies striking down the mandatory provision of this information in these situations. While it may certainly be true that information pertaining to the father's liability and the availability of state assistance may cause a woman in such a situation severe mental harm, we do not need to reach this issue as a categorical matter because the provision of this information furthers no legitimate purpose. In Casey, the Court stated that the informed consent provisions furthered the twin important state interests of protecting maternal health and fetal life. See Casey,
As we understand the term "lethal anomaly" it means that the child will die at birth. Consequently, the mandatory provision of information relating to a father's child support obligations and the availability of state childrearing assistance serves no legitimate state interest and makes little sense under the circumstances. We fail to see how the provision of this largely irrelevant information helps a woman "facilitate the wise exercise of [her abortion] right." Id. at 887. Thus, irrespective of our analysis below, we hold that the provision of such information is not mandated under AB 441.
Wisconsin has a separate statute addressing post-viability abortions. See Wis. Stat. sec. 940.15. That statute is not presently before us.
Plaintiffs similarly argued before the district court that this provision required physicians to provide information that was false and misleading. The district court disagreed, finding that the provision is constitutional based on its reading of the provision to permit physicians to explain the difficulties of obtaining child support. Plaintiffs have not appealed this ruling.
CUDAHY, Circuit Judge, concurring in part and dissenting in part.
Abortion and its regulation are about as sensitive and contentious as things get in our society. If a court can deal with them in a way that seems credible and reassuring--not to mention just--something has been accomplished. Judge Crabb has subjected Assembly Bill 441 to an insightful and painstaking analysis, which cannot help but be reassuring. The majority has affirmed the bulk of her findings and I agree, in general, with its discussion of the core provisions of AB 441. However, the question whether a doctor's "reasonable medical judgment" may constitutionally be the standard for determining whether a medical emergency exists remains for me an important and debatable issue. Before attempting to resolve it, I would certify to the Wisconsin Supreme Court the issue whether as a matter of state law scienter would be required for the imposition of civil forfeiture liability under the Act. If state law were construed so that AB 441 contained a subjective element, a serious constitutional issue would be avoided.
AB 441's medical emergency provision is modeled on the Pennsylvania law that was upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey,
Judge Crabb dealt with this issue by observing that there would be "few situations in which a doctor would think that she was making a good faith judgment to perform an emergency abortion but not a reasonable one." See Karlin v. Foust,
As I read the majority opinion, it is saying two things about this issue. First, it is saying that the objective reasonableness standard is not vague because of ambiguity (a vice found in the Ohio statute in Women's Medical Professional Corp. v. Voinovich,
In Colautti v. Franklin,
Our sister circuits that have addressed the issue have emphasized the propriety of a subjective, in contrast to an objective, approach to medical emergencies in the abortion context. In Voinovich, the Sixth Circuit held that a mixed subjective-objective standard without a scienter requirement rendered Ohio's medical emergency provision unconstitutionally vague. Echoing the Supreme Court, the Sixth Circuit also expressed its disquiet over Ohio's use of an objective standard without a scienter requirement, a combination which it considered "especially troublesome in the abortion context."
The majority seeks to dodge the brunt of these authorities by emphasizing that none stands directly for the proposition that an objective standard is unconstitutional per se. This seems an overly technical reading of the case law. While it is one thing to say that these authorities do not directly rule out the majority's position, it is quite another to suggest that they actually support it. Contrary to the majority's view, these authorities clearly underscore the desirability of some form of scienter requirement.
The majority opines that there is no need for scienter here because under AB 441 a physician is subject only to financial liability, whether in the form of forfeiture or of an action for damages by the woman on whom the abortion was performed. But I cannot agree with the majority's pronouncement that the forfeiture provision is "qualitatively no different from the threat of civil liability under AB 441." Ante at 29. AB 441 directs the State to impose a penalty of not less than $1,000 and not more than $10,000 on a physician who violates its terms. The forfeiture provision has certain punitive characteristics: for example, it promotes the traditional aims of punishment--retribution and deterrence--and it has no other readily discernible purpose. See Hudson v. United States,
Nor am I persuaded by the majority's extensive analogy to tort standards that govern in other medical contexts. Just because the unreasonableness of a doctor's conduct may be put in question in a malpractice suit does not mean that his or her vulnerability to forfeiture liability also based on unreasonableness will not add to the chilling effect. It seems to me that Wisconsin's use of an objective standard, combined with strict liability and the arguable absence of a scienter requirement, may place an excessive burden on the medical profession. Under AB 441, a physician who performs an emergency abortion may be liable--even if the action was in good faith on the basis of the doctor's best medical judgment--if the physician is subsequently deemed to have acted unreasonably.
The use of a purely objective standard for medical emergencies may also complicate the discussion about the absence of an express mental health exception in AB 441. I endorse the majority's conclusion that "the only logical reading of AB 441 demonstrates that the medical emergency provision requires a physician to be able to exercise some degree of discretion in a pre-viability context when providing the information set forth in the informed consent section of the statute to a woman when the provision of this information would create a significant threat to a woman's health." Ante at 73 (note omitted). But if an objective standard without a scienter requirement is applied to a physician's exercise of discretion under the majority's view, many of the same problems that I have discussed in connection with emergency abortions may arise. Hence, the imposition of a scienter requirement would be helpful in arriving at a constitutional resolution.
All of the foregoing discussion becomes academic if there is an implied scienter term in the "reasonable medical judgment" provision of AB 441. See State of Wisconsin v. Olson,