Planned Parenthood Of Minnesota v. The State Of MinnesotaPlanned Parenthood Of Minnesota v. The State Of Minnesota
Rebecca Palmer, Minneapolis, Minn., for appellees.
Before LAY, Chief Judge, BOWMAN, Circuit Judge, and STUART,s Senior District Judge.
LAY, Chief Judge.
The issue before this court is whether the Minnesota fetal disposition law,
In 1987, Minnesota enacted a statute regulating the disposition of fetal remains resulting from abortions and miscarriages.2 Planned Parenthood, a family planning service that offers first trimester abortions, along with Dr. Mildred Hanson, filed suit prior to the effective date of the statute, challenging its constitutionality on several grounds. The district court entered a preliminary injunction against enforcement of the statute, and on Planned Parenthood‘s motion, found the statute unconstitutional and entered a permanent injunction against enforcement on June 30, 1989. The state‘s appeal followed.
The Supreme Court has recognized the legitimate interest of states and municipalities in regulating the disposal of fetal remains from abortions and miscarriages. See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 451-52 nn. 44, 45, 103 S.Ct. 2481, 2503-04 nn. 44, 45, 76 L.Ed.2d 687 (1983); Planned Parenthood Ass‘n v. Fitzpatrick, 401 F.Supp. 554, 573 (E.D.Penn.1975), aff‘d, without opin. sub nom., Franklin v. Fitzpatrick, 428 U.S. 901, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); see also Leigh v. Olson, 497 F.Supp. 1340, 1351 (D.N.D.1980); Margaret S. v. Edwards, 488 F.Supp. 181, 221-22 (E.D.La.1980). Fetal disposal statutes have been struck down, however, as either unconstitutionally vague or as infringing on a woman‘s right to an abortion. See Akron, 462 U.S. at 451, 103 S.Ct. at 2503 (uncertain meaning of “humane and sanitary” leaves statute too vague where criminal sanctions possible).3 However, Akron makes clear that more carefully drawn regulations might suffice to “further [the government‘s] legitimate interest in proper disposal of fetal remains.” Id. at 452 n. 45, 103 S.Ct. at 2504 n. 45.
I. VAGUENESS
The fundamental test applied to criminal laws challenged as unconstitutionally vague is whether “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316, 1320, 12 L.Ed.2d 377 (1964); see also Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). This test considers whether fair notice of the conduct prohibited is given, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), and whether the statute provides sufficient guidance to officials so that “arbitrary and discriminatory enforcement” is avoided. Id. at 357, 103 S.Ct. at 1858; see also Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S.Ct. 839, 847, 31 L.Ed.2d 110 (1972). Finally, the statute must be sufficiently clear so that the exercise of constitutionally protected rights is not restrained. See Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683-84, 58 L.Ed.2d 596 (1979); Grayned, 408 U.S. at 109, 92 S.Ct. at 2299.
The challenger of a statute “must demonstrate that the law is impermissibly vague in all of its applications,” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982), and that the statute could never be applied in a valid manner. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Statutes should not be declared unconstitutionally vague by speculating about possible hypothetical applications. If a law is susceptible of a reasonable interpretation which supports its constitutionality, the court must accord the law that meaning. United States v. National Dairy Prod. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963). With these standards in mind, we now turn to an evaluation of those portions of Minnesota‘s fetal disposal statute that the district court found impermissibly vague.
A. Use of the Term “Dignified”
The district court found the Minnesota legislature‘s use of the term “dignified” in the introductory subsection colored all later references to the acceptable disposal methods in the statute. In Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), decided one week after the district court‘s opinion here, the Supreme Court found that a preamble to a Missouri abortion statute which stated “the life of each human being begins at conception” was not intended to be controlling or regulatory, but instead simply expressed “a value judgment.” Webster, 109 S.Ct. at 3050. The Court added “it will be time enough for federal courts to address the meaning of the preamble should it be applied to restrict the activities of appellees in some concrete way.” Id.
Although the term “dignified,” standing alone, is no more definitive than “humane,” stricken in Akron, it nonetheless does not ultimately control Minnesota‘s fetal disposal law. Introductory provisions of a statute must give way to the specific language in the operative sections of the statute. See In re Atkinson, 291 N.W.2d 396, 400 (Minn.1980). Under governing principles of statutory construction it is generally accepted that “the preamble * * * contributes to a general understanding of the statute, but it is not an operative part of the statute * * *. Where the enacting or operative parts of a statute are unambiguous, the meaning of the statute cannot be controlled by language in the preamble.” Jurgensen v. Fairfax County, Va., 745 F.2d 868, 885 (4th Cir.1984) (quoting Association of Am. Railroads v. Costle, 562 F.2d 1310, 1316 (D.C.Cir.1977)); cf. United States Trustee v. Prines (In re Prines), 867 F.2d 478, 483-84 (8th Cir.1989) (declining to give dispositive weight to preamble language where doing so disregards language of operative section).
The district court found, however, that uncertainty remained as to the authorized methods of disposal. For example, the district court could not determine whether “group disposal” was dignified, and therefore found the statute vague.5 We believe the district court‘s conclusion misapplies the standards for judging the facial vagueness of a statute. In this context, the court must determine whether the statute can ever be applied in a valid manner. Salerno, 481 U.S. at 745, 107 S.Ct. at 2100. Whether or not group disposal is authorized by the statute, the district court could have upheld the statute based on valid application in the case of individual cremation or interment. The terms used in the statute are, however, ambiguous in the sense that the permissibility of group disposal is not clear. Although we need not address the group disposal issue to resolve the constitutional issue, we do so in order to resolve this ambiguity.
We note that the statute does not expressly prohibit group disposal. The intent of the statute was to preclude methods of disposal that were not associated with the notion of burial, such as disposal through the sewer system or the indifferent dumping of remains in landfills; however, this intent does not rule out group disposal. See, e.g., Hearings Before the Senate Health & Human Services Committee on S.F. No. 389, 74th Minn.Leg., Apr. 1, 1989 (statement of Sen. Chiemelewski, App. at 124). The legislature acknowledged that several hospitals already disposed of fetal remains by group disposal. See Senate Floor Debate on S.F. No. 389, 74th Minn.Leg., May 13, 1987 (Statement of Sen. Chiemelewski) (hospitals store aborted or miscarried fetal remains for disposal on a monthly basis) (App. at 94-95). We therefore believe the statute should be construed to allow group disposal.
This interpretation requires consideration of administrative rules that Planned Parenthood argues prohibit group disposal methods, and create additional vagueness problems. The pertinent rule states: “When cremation is selected as a method of disposition, cremation must be accomplished 72 hours from the time of death on all unembalmed bodies. * * * Commingling of cremains shall not be permitted without written permission from next of kin.”
If group disposal is authorized under the statute, and we have found that it is, Planned Parenthood urges that a conflict exists between this rule and subdivision 6 of the statute, which states that disposition can occur without consultation with the woman. The district court found the ambiguity regarding group disposal compounded by the potential application of this rule. The statute defines “remains of a human fetus” as “the remains of the dead offspring of a human being” which reflects “a stage of development” of “cartilaginous structures, fetal or skeletal parts.”
We therefore find the methods of disposal authorized by Minnesota‘s fetal disposal statute sufficiently clear to avoid vagueness concerns. Further, we find the statute as construed authorizes group disposal methods, but that the state‘s regulations on group cremation do not govern disposal undertaken in compliance with this statute.
B. Definition of Fetus
Application of the statute is triggered only when the remains of a human fetus that has reached a certain stage of development are the result of the abortion or miscarriage.
We again believe the district court applied an incorrect standard in striking down the disposal statute based on these concerns. The difficulties identified by the district court in cases of microscopic examinations are present in very few cases. The deposition testimony of pathologists established that only when the attending physician is uncertain whether a pregnancy existed, or the placenta or other material exhibit abnormal characteristics, is the aborted or miscarried material sent to a pathologist for further examination.8 Generally, the attending physician is able to determine from a gross examination of the fetal remains9 the existence of a normal pregnancy and “cartilaginous structures, or fetal skeletal parts.”10 When the abortion or miscarriage occurs during the second or third trimester, the fetus has developed to the point that application of the statute can be assumed. Planned Parenthood, however, offers abortion services only during the first trimester of the pregnancy. Admittedly, application of the statute during this period may be difficult to determine. Planned Parenthood‘s argument, however, hypothesizes a worst case scenario to demonstrate the facial vagueness of the statute. However, this is not the standard for a facial vagueness attack.
The delicate power of pronouncing a [legislative act] unconstitutional is not to be exercised with reference to hypothetical cases.... [A] limiting construction could be given to the statute by the court responsible for its construction if an application of doubtful constitutionality were ... presented. * * * * The strong presumptive validity that attaches to [a legislative act] has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.
United State v. National Dairy Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963) (quoting United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523, 4 L.Ed.2d 524 (1960)); see also Salerno, 481 U.S. at 745, 107 S.Ct. at 2100 (in a facial challenge to a statute, the challenge must establish that under no set of circumstances would the act be valid).
We therefore find that the statute is not unconstitutionally vague.
II. SUBSTANTIVE DUE PROCESS
The review of the substantive due process violation found by the district court raises more complex questions, due in no small part to the recent decision by the Supreme Court in Webster v. Reproductive Health Servs., 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); see also Hodgson v. Minnesota, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990). Prior to Webster, we believe the statute would have been reviewed under the strict scrutiny standard applied by the district court after it determined that the statute burdened a woman‘s exercise of the right to choose to have an abortion. See Planned Parenthood v. Minnesota, No. 487-676, slip op. at 12. In Webster, however, the Supreme Court appears to have adopted a less rigorous standard of review than the strict scrutiny analysis applied by the district court. See Webster, 109 S.Ct. at 3058 (“The Missouri testing requirement here is reasonably designed to ensure that abortions are not performed where the fetus is viable--an end which all concede is legitimate--and that is sufficient to sustain its constitutionality.“).13
We need not decide the extent of the change wrought by Webster to the standard of review of abortion regulations, however, since we find that Minnesota‘s fetal disposal statute does not burden the abortion choice. Regulations that have no significant impact on a woman‘s exercise of her right to an abortion may be permissible where there exists a legitimate state interest. Akron, 462 U.S. at 429, 103 S.Ct. at 2492; see also Harris v. McRae, 448 U.S. 297, 315, 100 S.Ct. 2671, 2687, 65 L.Ed.2d 784 (1980); Maher v. Roe, 432 U.S. 464, 473-74, 97 S.Ct. 2376, 2382-83, 53 L.Ed.2d 484 (1977). This statute presents just such a regulation. The only conduct regulated is that of the hospital, clinics and medical facilities where abortions are performed, or the physician attending the woman who has had a miscarriage or abortion. The woman need not be told of the disposition means, and indeed, she need not be consulted about the particular provider‘s choice for disposition.14 Rather than regulating abortion, this statute acknowledges the existence of abortion and regulates an issue related to abortion. While the statute admittedly touches on abortion, we cannot say it interferes with or burdens a woman‘s right to choose to have an abortion.
We also do not accept Planned Parenthood‘s argument that the statute creates an impermissible psychological burden by equating abortion with murder. Planned Parenthood argues that the state‘s purpose, taking fetuses out of the sewer system, can only succeed if the woman obtaining the abortion is aware of the statute‘s requirements. However, this argument seems to overstate the case. Abortion patients were not told of disposal methods prior to this statute. We discern no reason why the patient needs to be informed of the disposal choices now that the certain methods have been mandated. The choice of disposal is left to the physician or facility providing the abortion. There is no need for the patient‘s input, other than in the case where the patient requests specific information. Planned Parenthood‘s argument that the statute represents the state‘s conclusion that fetal remains are the equivalent of human remains is also unavailing. We cannot agree that the Minnesota legislature intended to convey meaning beyond common acceptance of common terms. However, even assuming this is the true purpose, we do not find it to be an invalid purpose. A state may make a value judgment favoring childbirth over abortion. See Webster, 109 S.Ct. at 3050.
The district court further concluded that, even if the disposal statute did not impinge on a fundamental right, it was not rationally related to any legitimate governmental interest, finding the statute both underinclusive and overinclusive.17 Planned Parenthood concedes the state has a legitimate interest in protecting public sensibilities. Where a challenger attacks the classifications drawn by a state, the classification can be upheld if the evidence before the legislature reasonably supports the classification. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 723, 66 L.Ed.2d 659 (1981). Further, a legislature must have the latitude to “establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill.” Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).
We find the classifications created by the Minnesota legislature here fall within the permissible boundaries recognized by the Clover Leaf Creamery and Plyler courts. Although abortions and miscarriages occurring at home are not regulated, the state of Minnesota has chosen to draw the line of regulation at hospitals and clinics. We cannot say, given the privacy concerns implicit in activity in one‘s home, that the state impermissibly drew its boundaries. See Plyler, 457 U.S. at 217, 102 S.Ct. at 2395; see also Clover Leaf Creamery, 449 U.S. at 466, 101 S.Ct. at 725 (legislature need not strike at all evils at one time).
CONCLUSION
We find the statute facially valid as construed, and that it does not interfere with a woman‘s right to obtain an abortion. We therefore reverse the district court and direct entry of judgment for the State.
Notes
DISPOSITION OF ABORTED OR MISCARRIED FETUSES.
Subd. 1. Purpose. The purpose of this section is to protect the public health and welfare by providing for the dignified and sanitary disposition of the remains of aborted or miscarried human fetuses in a uniform manner and to declare violations of this section to be a public nuisance.
Subd. 2. Definition; remains of a human fetus. For the purposes of this section, the term “remains of a human fetus” means the remains of the dead offspring of a human being that has reached a stage of development so that there are cartilaginous structures, fetal or skeletal parts after an abortion or miscarriage, whether or not the remains have been obtained by induced, spontaneous, or accidental means.
Subd. 3. Regulation of disposal. Remains of a human fetus resulting from an abortion or miscarriage, induced or occurring accidentally or spontaneously at a hospital, clinic, or medical facility must be deposited or disposed of in this state only at the place and in the manner provided by this section or, if not possible, as directed by the commissioner of health.
Subd. 4. Disposition; tests. Hospitals, clinics, and medical facilities in which abortions are induced or occur spontaneously or accidentally and laboratories to which the remains of human fetuses are delivered must provide for the disposal of the remains by cremation, interment by burial, or in a manner directed by the commissioner of health. The hospital, clinic, medical facility, or laboratory may complete laboratory tests necessary for the health of the woman or her future offspring or for purposes of a criminal investigation or determination of parentage prior to disposing of the remains.
Subd. 5. Violation; penalty. Failure to comply with this section constitutes a public nuisance. A person, firm or corporation failing to comply with this section is guilty of a misdemeanor.
Subd. 6. Exclusions. To comply with this section, a religious service or ceremony is not required as part of the disposition of the remains of a human fetus, and no discussion of the method of disposition is required with the woman obtaining an induced abortion.
There is also a debate between the parties as to whether the statute authorizes “commingling” of other body tissues or parts with the fetal remains that are cremated. For example, St. Paul Ramsey Medical Center may box and store amputated limbs for cremation or burial together with the remains of abortions and miscarriages. We believe our discussion of the group disposal issues applies equally to the issue of commingling.