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            Title Planned Parenthood v. Casey

 

            Date 1991

            By

            Subject Other\Concurring & Dissenting

                

 Contents

 

 

Page 1

58 of 64 DOCUMENTS

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA REPRODUCTIVE HEALTH AND COUNSELING CENTER WOMEN'S HEALTH SERVICES, INC., WOMEN'S SUBURBAN CLINIC, ALLENTOWN WOMEN'S CENTER, NORTHEAST WOMEN'S CENTER, ALLEN, THOMAS, M.D., on behalf of himself and all others similarly situated v. CASEY, ROBERT P., RICHARDS, N. MARK, PREATE, ERNEST, personally and in their official capacities, and MARINO, MICHAEL D., personally and in his official capacity, together with all others similarly situated Robert

P. Casey, N. Mark Richards and Ernest D. Preate, Jr., Appellants

No. 90-1662

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

947 F.2d 682; 1991 U.S. App. LEXIS 24792

February 25, 1991, Argued

October 21, 1991, Filed

PRIOR  HISTORY:              **1        On  Appeal  From  the United States District Court For the Eastern District of Pennsylvania.  (D.C. Civil Action No. 88-3228)

CASE SUMMARY:

PROCEDURAL POSTURE: The Commonwealth ap- pealed a judgment of the United States District Court for the Eastern District of Pennsylvania, which held that cer- tain amendments of the Abortion Control Act of 1982, 18

Pa. Cons. Stat. Ann. §§ 3201-3220, violated U.S. Const. amend. XIV.

OVERVIEW: Plaintiff clinics,  certain abortion clinics, brought  an  action  against  the  Commonwealth  alleging certain amendments to the Abortion Control Act (act), 18

Pa. Cons. Stat. Ann. §§ 3201-3220, violated U.S. Const. amend. XIV. The trial court found several provisions of the  act  unconstitutional,  including  those  provisions  re- quiring informed consent, parental consent, spousal no- tice,  reporting  requirements,  and  public  disclosure  of plaintiff  clinics'  reports.  The  Commonwealth  appealed, arguing  that  the  trial  court  erred  in  finding  the  provi- sions of the act unconstitutional. The court, applying the undue burden standard, ruled that no undue burden was caused by abortion regulations that did not have a severe or drastic impact upon time, cost, or the number of legal providers of abortions. Further, the court held that a state's requirement that abortion providers communicate infor- mation to a woman did not constitute an undue burden if  the  information  that  the  abortion  provider  must  give was relevant, accurate, and non-inflammatory. The court, however, found that spousal notice provision constituted

an undue burden and that it was unconstitutional. OUTCOME: The court reversed the district court's judg- ment regarding the spousal notice provision of the act and ruled that the provision was unconstitutional. The judg- ment was affirmed as to the other challenged provisions of the act, finding that they were constitutional. LexisNexis(R) Headnotes

Constitutional Law > Substantive Due Process > Scope of Protection

HN1    The   Due   Process   Clause   of   the   Fourteenth Amendment states:  nor shall any State deprive any per- son of life,  liberty,  or property,  without due process of law. U.S. Const. amend. XIV. Though the Due Process Clause,  read  literally,  is  a  guarantee  only  of  fair  pro- cedures when the government deprives a person of life, liberty,  or  property,  the  Supreme  Court  has  held  under the "substantive due process" doctrine that there is more to  the  Due  Process  Clause  than  this  guarantee  of  pro- cedural fairness. Government interference with personal rights  within  the  scope  of  the  life,  liberty,  or  property umbrella of the Due Process Clauses must be justified by a legitimate state interest; government interference with a "fundamental right" may be justified only by the most important of state interests.

Governments > Courts > Judicial Precedents

HN2  In constitutional cases, the United States Supreme Court's opinions usually include two major aspects. First, the Court provides the legal standard or test that is appli- cable to laws implicating a particular constitutional pro- vision. This is part of the reasoning of the decision, the

947 F.2d 682, *; 1991 U.S. App. LEXIS 24792, **1

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ratio decidendi. Second, the Court applies that standard or test to the particular facts of the case that the Court is confronting--in other words, it reaches a specific result using the standard or test. As a lower court, a circuit court is bound by both the Supreme Court's choice of legal stan- dard or test and by the result it reaches under that standard or test. Courts are bound to adhere not only to results of cases, but also to their explications of the governing rules of law.

Governments > Courts > Judicial Precedents

HN3  The Marks rule provides that the controlling opin- ion in a splintered United States Supreme Court decision is that of the Justice or Justices who concur on the "nar- rowest grounds." The principal objective of this Marks rule is to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a sin- gle legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, pro- duce results with which a majority of the Justices in the case articulating the standard would agree. In a run-of-- the-mill  case  where  a  majority  of  the  Justices  endorse a single legal standard, lower courts simply follow that standard. In splintered decisions where no single rationale

"enjoys the assent of five Justices," the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which,  when applied,  will  necessarily  produce  results  with  which  a majority  of  the  Court  from  that case  would  agree,  that standard is the law of the land.

Constitutional Law > Substantive Due Process > Privacy

HN4  No undue burden is caused by abortion regulations that do not have a severe or drastic impact upon time, cost, or the number of legal providers of abortions. Constitutional Law > Substantive Due Process > Privacy

HN5  A state's requirement that abortion providers com- municate information to a woman, which is typically in the  form  of  an  informed  consent  requirement,  will  not constitute  an  undue  burden  if  the  information  that  the abortion provider must give is relevant, accurate, and non- inflammatory.

Family  Law  >  Parental  Duties  &  Rights  >  Parental

Consent

HN6  A regulation in which the state gives a veto power to the woman's husband or, for a minor woman, to a parent constitutes an undue burden.

Constitutional Law > Substantive Due Process > Privacy

HN7   Requiring  a  woman  to  listen  imposes  no  undue burden or drastic limitation on the abortion decision. Constitutional Law > Substantive Due Process > Privacy

HN8  The state's interest in ensuring that the decision to have an abortion is both informed and well-considered is rationally related to the state's legitimate interest in the life and health of the mother as well as its interest in the potential life of the fetus. The waiting period reasonably relates to the state's interest in ensuring that a woman does not make this serious decision in undue haste. Constitutional Law > Substantive Due Process > Privacy

HN9  The state does not have the constitutional author- ity to give a spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the state itself lacks that right.

Constitutional Law > Substantive Due Process > Scope of Protection

Constitutional Law > Substantive Due Process > Privacy

HN10  What 18 Pa. Cons. Stat. Ann. § 3209 seeks to preserve for a husband is the possibility of participating in a decision of his wife to have an abortion, which she is constitutionally privileged to make on her own for her own reasons. While promoting the possibility of spousal participation is undoubtedly a legitimate state interest, it is not the kind of compelling state interest that can jus- tify the very substantial burdens imposed by § 3209 on the  wife's  right  to  choose  an  abortion.  Section  3209  is unconstitutional because it imposes an undue burden on a woman's abortion decision and does not serve a com- pelling state interest.

Governments > State & Territorial Governments > Police

Power

HN11  See 18 Pa. Cons. Stat. Ann. § 3214. Governments > State & Territorial Governments > Police Power

Constitutional Law > Substantive Due Process > Privacy

HN12   Recordkeeping  and  reporting  requirements  re- garding abortions are permissible so long as they are not used to accomplish through the sheer burden of record- keeping  detail,  what  has  been  held  to  be  an  otherwise unconstitutional restriction, and so long as the reports are confidential. Furthermore, the reports must be rationally related to a legitimate state interest.

Governments > State & Territorial Governments > Police

Power

HN13  See 18 Pa. Cons. Stat. Ann. § 3207(b). Governments > State & Territorial Governments > Police Power

HN14  See 18 Pa. Cons. Stat. Ann. § 3214(f). Governments > State & Territorial Governments > Police Power

Constitutional Law > Substantive Due Process > Scope of Protection

947 F.2d 682, *; 1991 U.S. App. LEXIS 24792, **1

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HN15  When a state provides money to a private com- mercial  enterprise,  there  is  a  legitimate  public  interest in informing taxpayers who the funds are benefiting and what services the funds are supporting.

COUNSEL:

Ernest  D.  Preate,  Jr.,  Attorney  General,  Kate  L. Mershimer,  (Argued)  Senior  Deputy  Attorney  General, Calvin  R.  Koons,   Senior  Deputy  Attorney  General, John  G.  Knorr,  III,  Chief  Deputy  Attorney  General, Chief, Litigation Section, Office of the Attorney General, Litigation Section,  Harrisburg,  Pennsylvania,  Attorneys for Appellants.

Thomas   E.   Zemaitis,   Stephen   J.   Cipolla,   Jody Kathleen    Marcus,  Pepper,   Hamilton                 &             Scheetz, Linda  Wharton,  Women's  Law  Project,  Philadelphia, Pennsylvania. Kathryn Kolbert, (Argued) American Civil Liberties  Union,  Reproductive  Freedom  Project,  Roger K. Evans, Dara Klassel, Planned Parenthood Federation of America,  Inc.,  New York,  New York. Seth Kreimer, University  of  Pennsylvania  Law  School,  Philadelphia, Pennsylvania, Attorneys for Appellees.

Susan  Oliver  Renfer,  Ann-Louise  Lohr.  Kevin  J. Todd, Americans United **2  for Life, Chicago, Illinois. John E. McKeever, Philadelphia, Pennsylvania, Attorneys for  Amicus  Curiae,   American  Academy  of  Medical Ethics.

Phyllis  Gelman,   Nancy  A.  Breslow,   New  York, New  York,   Barbara  J.  Hart,   Pennsylvania  Coalition Against   Domestic   Violence,   Reading,   Pennsylvania, Attorneys  for  Amicus  Curiae,  Pennsylvania  Coalition Against   Domestic   Violence,   Pennsylvania   Coalition Against Rape, New Jersey Coalition for Battered Women, Women's Coalition of St. Croix, Virgin Islands, Families in  Transition  Center  of  Milford,   Delaware,   National Clearinghouse  for  the  Defense  of  Battered  Women, National Coalition Against Domestic Violence, National Woman  Abuse  Prevention  Project,  Domestic  Violence Research and Resources, Connecticut Coalition Against Domestic  Violence,  Clinton  County  Women's  Center, Hospitality  House  Services  for  Women,  Inc.,  Laurel House,  Pennsylvania  Campaign  for  Choice  Survivors, Inc., Tioga County Women's Coalition, Women Against Abuse, Inc. and Women Against Abuse Legal Center, Inc., Women's Center & Shelter of Greater Pittsburgh.

James  Eiseman,   Jr.,   Drinker,            **3        Biddle  & Reath, Philadelphia, Pennsylvania, Attorneys for Amicus Curiae, Pennsylvania Chapter of the American College of Emergency Physicians.

JUDGES:

Stapleton,  Alito,  and  Seitz,  Circuit  Judges.   Alito, Circuit Judge, concurring in part and dissenting in part.

OPINIONBY:

STAPLETON

OPINION:

*687   OPINION OF THE COURT STAPLETON, Circuit Judge:

Five abortion clinics and one physician (the "clinics")

raise a facial constitutional challenge to certain 1988 and

1989 amendments to the Pennsylvania Abortion Control

Act  of  1982  (the  "Act").  See  18  Pa.  Cons.  Stat.  Ann.

§§ 3201-3220 (1983 & Supp. 1991). The United States District  Court  for  the  Eastern  District  of  Pennsylvania held  that  §§  3205  (informed  consent),  3206  (parental consent),  3209  (spousal  notice),  3214(a)  (reporting  re- quirements), and 3207(b) and 3214(f) (public disclosure of clinics' reports) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Commonwealth defendants (the "Commonwealth") appeal.  Because  we  find  unconstitutional  only  §  3209, which requires notice to a spouse of a planned abortion, we will affirm in part and reverse in part.

I.

The clinics filed a complaint alleging that certain **4

1988 amendments to the Pennsylvania Abortion Control Act of 1982 were facially unconstitutional. The district court  issued  a  preliminary  injunction.  Thereafter,  the court stayed all proceedings pending the Supreme Court's decision  in  Webster  v.  Reproductive  Health  Services  in the  summer  of  1989.  After  the  Webster  decision,  the Pennsylvania  legislature  passed  further  amendments  to the Act. The clinics filed an amended complaint to include the 1989 amendments within the scope of their challenge, and the district court extended the preliminary injunction to include the 1989 amendments. The district court then conducted a three-day trial and issued an opinion holding several sections of the Act unconstitutional.  744 F. Supp.

1323. The Commonwealth filed this timely appeal. The clinics have not cross-appealed on the provisions upheld by the district court. The district court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

II.

In Webster v. Reproductive Health Services, 492 U.S.

490,  109  S.  Ct.  3040,  106  L.  Ed.  2d  410  (1989),  the

Supreme Court declined to reconsider Roe v. Wade, 410

U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), **5  be- cause the Missouri abortion regulations at issue in Webster

947 F.2d 682, *687; 1991 U.S. App. LEXIS 24792, **5

Page 4

did not conflict with Roe, which held that a statute which

"criminalized  the  performance  of  all  abortions,  except when the mother's life was at stake . . . unconstitutionally infringed the right to an abortion." Webster, 492 U.S. at

521 (opinion of Rehnquist, C.J.). Like Webster, this ap-

peal does not directly implicate Roe;  this case involves the regulation of abortions rather than their outright pro- hibition. The threshold question is whether the standard of review of abortion regulations promulgated by the

947 F.2d 682, *688; 1991 U.S. App. LEXIS 24792, **5

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*688   Court in Roe and in later cases such as Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416,

103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists,

476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779 (1986), has survived Webster and the Court's subsequent decision in Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926,

111 L. Ed. 2d 344 (1990).

As Justice O'Connor cogently observed in an equal protection case alleging racial discrimination, a "dispute regarding the appropriate standard of review may strike

**6   some as a lawyers' quibble over words, but it is not. The standard of review establishes when the Court and Constitution allow the Government to employ racial clas- sifications. A lower standard signals that the Government may  resort  to  racial  distinctions  more  readily."  Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S. Ct. 2997,

3033, 111 L. Ed. 2d 445 (1990) (O'Connor, J., dissenting). Similarly, the standard of review used for abortion leg- islation establishes the degree to which the government may regulate abortion. Because of its importance to the resolution  of  the  issues  before  us,  we  discuss  at  some length our reasons for selecting the standard we will sub- sequently use in analyzing the challenged provisions of the Pennsylvania Act. We will first examine the different standards of review that have been suggested by various Justices as appropriate for reviewing abortion regulations. Then we will consider the rules of stare decisis that must

be employed in determining which of these standards we must apply in this case.

A.

The choice of a standard of review in a substantive due process case turns on whether a "fundamental right" is im- plicated. The Justices of the Supreme Court **7   were divided in Roe v. Wade and have continued to be divided over whether the right to an abortion is a fundamental right under the Due Process Clause. n1 Accordingly, they have disagreed over the proper standard to apply in reviewing abortion regulations. The majority in Roe concluded that abortion was a fundamental right and, therefore, applied strict  scrutiny  review,  the  standard  of  review  generally applied in fundamental rights cases. See Roe, 410 U.S. at

155. The dissenters in Roe contended that abortion was not a fundamental right and thus judicial review of abor- tion  regulations  under  the  Due  Process  Clause  should be  no  different  from  review  of  any  social  or  economic legislation implicating a liberty interest. Therefore, they urged that the Court apply the deferential rational basis test traditionally used to review social and economic leg- islation.  See  id.  at  173  (Rehnquist,  J.,  dissenting).   n2

Justice O'Connor has referred to the right to abortion as a

"limited" fundamental right and adopted a middle ground between these two positions. She uses the strict scrutiny standard if the regulation at issue   **8   causes an "undue burden" on a woman's abortion decision and the rational basis standard if it

947 F.2d 682, *689; 1991 U.S. App. LEXIS 24792, **8

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*689   does not. See Akron, 462 U.S. at 453, 465 n. 10

(O'Connor, J., dissenting).

n1   HN1   The  Due  Process  Clause  of  the Fourteenth Amendment states: "nor shall any State deprive any person of life, liberty, or property, with- out due process of law." U.S. Const. amend. xiv. Though the Due Process Clause, read literally, is a guarantee only of fair procedures when the govern- ment deprives a person of life, liberty, or property, the  Supreme  Court  has  held  under  the  "substan- tive due process" doctrine that there is more to the Due Process Clause than this guarantee of procedu- ral fairness. Government interference with personal rights within the scope of the life, liberty, or prop- erty umbrella of the Due Process Clauses must be justified by a legitimate state interest; government interference with a "fundamental right" may be jus- tified only by the most important of state interests.

n2 The Roe dissenters argued that only those rights "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradi- tion" are fundamental rights and that the right to an abortion does not meet that standard. See Roe, 410

U.S. at 174 (Rehnquist, J., dissenting); Thornburgh,

476 U.S.  at 793 (White,  J.,  dissenting).  The Roe majority stated that there is a fundamental right to privacy. This right includes "the right of the individ- ual, married or single, to be free from unwarranted government intrusions into matters so fundamen- tally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S.

438, 453, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972).

**9

1.

In  Roe,  the  Court  held  that  the  fundamental  right of  privacy  protected  by  the  Due  Process  Clause  of  the Fourteenth Amendment was "broad enough to encompass a woman's decision whether or not to terminate her preg- nancy." Roe, 410 U.S. at 153. Thus, the Court stated that a regulation limiting that fundamental right must meet the strict scrutiny test; it must be justified by a "compelling state interest" and "must be narrowly drawn" to serve that interest.   Id. at 155. The Court held that the state's in- terests in maternal health and in the potential life of the fetus become compelling at different points in a woman's pregnancy. The state's interest in maternal health is com- pelling during the second and third trimesters; the state's interest in potential life is compelling when the fetus is viable, that is, during the third trimester. Id. at 162-64.

In  dissent  in  Hodgson,   the  most  recent  abortion case,  Justice  Marshall,  joined  by  Justices  Brennan  and Blackmun,  summarized  the  approach  of  cases  such  as Roe, Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), Akron, and   **10   Thornburgh: "we have subjected state laws limiting the abortion  right to the most exacting scrutiny, requiring a State to show that such a law is narrowly drawn to serve a compelling inter- est. Only such strict judicial scrutiny is sufficiently pro- tective of a woman's right to make the intensely personal decision whether to terminate her pregnancy." Hodgson,

110  S.  Ct.  at  2952  (Marshall,  J.,  dissenting)  (citations omitted).

2.

A statute is struck down under rational basis review only if it is not rationally related to a legitimate state in- terest. The test is a deferential one, and state legislation is rarely invalidated as not rationally related to a legitimate state  interest.  See  Williamson  v.  Lee  Optical,  348  U.S.

483, 487, 75 S. Ct. 461, 99 L. Ed. 563 (1955); Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 10 L. Ed. 2d

93 (1963).

In Roe, Justice White and then-Justice Rehnquist dis- sented and, applying rational basis review, would have up- held Texas' criminal prohibition of abortion. In dissent in Thornburgh, Justice White, joined by Justice Rehnquist, stated his reasoning:

State  action  impinging  on  individual  inter- ests need only   **11   be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamen- tal" rights are entitled to the added protection provided by strict judicial scrutiny of legisla- tion that impinges upon them. I can certainly agree with the proposition--which I deem in- disputable--that a woman's ability to choose an abortion  is a species  of "liberty"  that  is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restric- tions  upon  it  call  into  play  anything  more than the most minimal judicial scrutiny.

Thornburgh,  476  U.S.  at  789-90  (White,  J.,  dissent- ing) (citations omitted). In Webster, the plurality of Chief Justice  Rehnquist,  Justice  White,  and  Justice  Kennedy asked whether the challenged regulation "permissibly fur- thers  the  State's  interest  in  protecting  potential  human

947 F.2d 682, *689; 1991 U.S. App. LEXIS 24792, **11

Page 7

life,"  Webster,  492  U.S.  at  519-20,  a  standard  that,  at least  for  present  purposes,  we  equate  with  rational  ba- sis review. See also Hodgson, 110 S. Ct. at 2969 **12

(Kennedy, J., concurring and dissenting) (two-parent no- tification requirement represents "permissible, reasoned" attempt to further parents' rights).

3.

Justice O'Connor has taken middle ground between these two positions. She has consistently stated that she would subject an abortion regulation to strict scrutiny re- view only if the regulation "unduly burdens" a woman's freedom to decide whether to terminate her pregnancy; otherwise,

947 F.2d 682, *690; 1991 U.S. App. LEXIS 24792, **12

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*690     she  would  employ  rational  basis  review.  See Akron,  462  U.S.  at  453  (O'Connor,  J.,  dissenting)  (ci- tation omitted) ("If the particular regulation does not 'un- duly burden' the fundamental right, then our evaluation of that regulation is limited to our determination that the reg- ulation rationally relates to a legitimate state purpose."); Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting)

(repeating undue burden standard and citing dissent from Akron); Webster, 492 U.S. at 530 (O'Connor, J., concur- ring) (same); Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J., concurring) (same).

Justice O'Connor has adopted the undue burden stan- dard **13    because of the "limited nature of the fun- damental right that has been recognized in the abortion cases." Akron, 462 U.S. at 465 n.10 (O'Connor, J., dis- senting). In support of her position,  she has referenced both previous abortion cases and other fundamental rights cases.  n3

n3 In the abortion context, the pedigree of the undue  burden  standard  can  be  traced  to  Justice Powell's opinion for the majority in Maher v. Roe, a government funding case:

Roe  did  not  declare  an  unqualified

"constitutional  right  to  an  abortion," as the District Court seemed to think. Rather,  the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy. It implies no limitation on the authority of a State to make a value judgment favoring child- birth over abortion.

Maher v. Roe, 432 U.S. 464, 473-74, 97 S. Ct. 2376,

53 L. Ed. 2d 484 (1977) (emphasis added). Chief Justice Burger added, "The Court's holdings in Roe and Doe v. Bolton  simply require that a State not create an absolute barrier to a woman's decision to have an abortion." Id. at 481 (Burger, C.J., con- curring) (emphasis added).  In a later funding case, Justice Stewart stated for the Court that Roe pro- tects the woman from "unduly burdensome inter- ference," such as the "severe criminal sanctions" in Roe or the "absolute requirement of spousal con- sent" in Planned Parenthood v. Danforth, 428 U.S.

52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976). Harris v. McRae, 448 U.S. 297, 314, 100 S. Ct. 2671, 65

L. Ed. 2d 784 (1980). Though Maher and Harris

involved  funding  and  thus  presented  a somewhat

different  analytical  problem  than  general  regula- tion of abortion, Justice O'Connor has interpreted those cases as providing the correct standard of re- view for all abortion regulations. Thornburgh, 476

U.S. at 828 (O'Connor, J., dissenting) ("These prin- ciples  for  evaluating  state  regulation  of  abortion were not newly minted in my dissenting opinion in Akron."). Justice O'Connor has also pointed out that  the  results  reached  in  Danforth  and  Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed.

2d 797 (1979) ("Bellotti II"),  the most important non-funding  cases  between  Roe  and  Akron,  are consistent  with  the  undue  burden  approach.  See Akron, 462 U.S. at 461-62 n.8, 464 (O'Connor, J., dissenting).  Beyond  the  abortion  context,  Justice O'Connor has pointed to other fundamental rights cases where the Court has required a significant or substantial infringement on the fundamental right in order to trigger strict scrutiny. See, e.g., Carey v. Population Services International, 431 U.S. 678,

689, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977) (ad- dressing  state  ban  on  nonmedical  contraceptives, Court stated that strict scrutiny is appropriate only when  law  imposes  "significant  burden"  on  pro- tected  right);  Zablocki  v.  Redhail,  434  U.S.  374,

387, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978) (height- ened  scrutiny  is  appropriate  when  law  interferes

"directly and substantially with the right to marry" and  "citizens  suffer  a  serious  intrusion  into  their freedom of choice in an area in which we have held such freedom to be fundamental.").

**14

With respect to the concept of "undue burden," Justice O'Connor explained in Akron that an undue burden occurs when a regulation imposes an "absolute obstacle  or se- vere  limitation   on  the  abortion  decision,"  not  merely when  a  regulation  "may  'inhibit'  abortions  to  some  de- gree." Akron, 462 U.S. at 464 (O'Connor, J., dissenting). She repeated this definition in other cases. In Thornburgh, she stated that "an undue burden will generally be found in situations involving absolute obstacles or severe limi- tations on the abortion decision." Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting). And in Hodgson, she observed that "the 'primary constitutional deficiency lies in   the  notification  statute's   imposition  of  an  absolute limitation  on  the  minor's  right  to  obtain  an  abortion.'" Hodgson, 110 S. Ct. at 2950-51 (O'Connor, J., concur- ring) (emphasis added) (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 90, 96 S. Ct. 2831, 49 L. Ed. 2d 788

(1976)). Also in Hodgson, Justice O'Connor approved the judicial

947 F.2d 682, *691; 1991 U.S. App. LEXIS 24792, **14

Page 9

*691   bypass procedure for the two-parent notification requirement on the **15   grounds that it "would not im- pose parental approval as an absolute condition upon the minor's right." Id. at 2951 (quoting Danforth, 428 U.S. at

91) (emphasis added).  n4

n4 As we read Justice O'Connor's explications of the concept of "undue burden," they are all con- sistent with the view that the right to elect not to carry to term is a constitutional right of each indi- vidual woman. Where it is clear that a governmental regulation will restrict the ability of some women to choose an abortion, we believe the issue of whether there is an undue burden turns on the degree of re- striction that the affected women will experience. Accordingly, whether the adversely affected group is but a small fraction of the universe of pregnant women desiring an abortion seems to us irrelevant to that issue.

B.

Having   identified   the   three   approaches   that   the Justices  have  suggested  for  reviewing  abortion  regula- tions,  we must now decide which standard is presently the law of the land. As we have   **16   noted, the Court applied  strict  scrutiny  review  in  Roe,  Doe,  Akron  and Thornburgh. We thus must review Webster and Hodgson, to determine if the standard of review used in those cases displaced strict scrutiny as the standard binding on lower courts. In making that determination, we will apply sev- eral principles of law that constrain lower courts in their decisionmaking.

1.

Decisions of the Supreme Court regarding federal law and  the  Constitution  are  binding  on  the  lower  courts. There is no room in our system for departure from this principle,  for  if  it  were  otherwise,  the  law  of  the  land would quickly lose its coherence. See Hutto v. Davis, 454

U.S. 370, 375, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982). The Supreme Court with its limited docket would become irrelevant in all but the handful of cases that reached it.

To say that such decisions are binding, however, does not  suffice  in  the  current  context.  We  must  determine what  components  of  a  Supreme  Court  decision  consti- tute precedent binding on lower courts. HN2  In consti- tutional cases, the Court's opinions usually include two major aspects. First, the Court provides the legal standard or  test  that  is  applicable  to  laws  implicating   **17    a

particular constitutional provision. This is part of the rea- soning of the decision, the ratio decidendi. n5 Second, the Court applies that standard or test to the particular facts of the case that the Court is confronting--in other words, it reaches a specific result using the standard or test. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991) (applying four-part O'Brien test and holding ban on nude dancing constitu- tional); Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d

876 (1990) (applying new Free Exercise Clause standard to uphold state ban on peyote use).

N5 For almost every constitutional provision in the Bill of Rights and the Fourteenth Amendment, the Supreme Court has adopted a standard or test, usually known afterwards by the name of the case adopting  it,  to  flesh  out  the  constitutional  lan- guage  and  guide  future  resolution  of  cases  that arise under those provisions. A brief and inexhaus- tive  list  includes:   Lemon  v.  Kurtzman,  403  U.S.

602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), for the Establishment Clause;  New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d

686 (1964), for libel; Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110

S.  Ct.  1595,  108  L.  Ed.  2d  876  (1990),  for  Free

Exercise  claims;  Brandenburg  v.  Ohio,  395  U.S.

444,  89  S.  Ct.  1827,  23  L.  Ed.  2d  430  (1969),

for  threatening  speech;  United  States  v.  O'Brien,

391  U.S.  367,  88  S.  Ct.  1673,  20  L.  Ed.  2d  672

(1968), for First Amendment expressive conduct;

National Treasury Employees Union v. Von Raab,

489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685

(1989), for drug testing;  City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed.

2d 854 (1989), for state affirmative action; Metro

Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S. Ct.

2997, 111 L. Ed. 2d 445 (1990) for federal affirma- tive action; Mathews v. Eldridge, 424 U.S. 319, 96

S. Ct. 893, 47 L. Ed. 2d 18 (1976), for procedural due process; Blockburger v. United States, 284 U.S.

299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), and now

Grady v. Corbin,  495 U.S. 508,  110 S. Ct. 2084,

109 L. Ed. 2d 548 (1990), for double jeopardy.

**18

As a lower court, we are bound by both the Supreme Court's choice of legal standard or test and by the result it reaches

947 F.2d 682, *692; 1991 U.S. App. LEXIS 24792, **18

Page 10

*692    under that standard or test. As Justice Kennedy has stated, courts are bound to adhere not only to results of cases, but also "to their explications of the governing rules of law." County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 668, 109 S. Ct. 3086, 106 L. Ed.

2d 472 (1989) (Kennedy, J., dissenting); see also Marks v.  United  States,  430  U.S.  188,  194,  97  S.  Ct.  990,  51

L. Ed. 2d 260 (1977) (previous case provided "governing standards"). Our system of precedent or stare decisis is thus based on adherence to both the reasoning and result of a case,  and not simply to the result alone. This dis- tinguishes the American system of precedent, sometimes called "rule stare decisis," from the English system, which historically has been limited to following the results or disposition based on the facts of a case and thus referred to  as  "result  stare  decisis."  See  Note,  The  Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756,  757 n.7 (1980) ("The American system of precedent places substantially **19   greater reliance on the reasoning component of judicial decisions than, for example, the British system, where the House of Lords is- sues individual opinions with the understanding that only the specific result will have precedential force."); see gen- erally R. Aldisert, The Judicial Process 618-35, 777-801

(1976).  n6

n6  The  lower  courts  in  constitutional  matters universally follow both the Supreme Court's choice of legal standard and the specific results the Court has reached by applying that legal standard. See, e.g., Reuber v. Food Chemical News, Inc., 925 F.2d

703,  714-18  (4th  Cir.  1991)  (applying  New  York Times actual malice standard in defamation case); Vandiver v. Hardin County Board of Education, 925

F.2d 927, 931-34 (6th Cir. 1991) (applying Smith Free  Exercise  Clause  standard);  United  States  v. Pungitore,  910  F.2d  1084,  1109-1112  (3d  Cir.

1990) (applying Grady v. Corbin double jeopardy test); United States v. Cruz, 910 F.2d 1072, 1078-

79 (3d Cir. 1990) (applying Duckworth v. Eagan,

492 U.S. 195, 109 S. Ct. 2875, 106 L. Ed. 2d 166

(1989),  test  for  adequacy  of  Miranda  warnings); United States v. American Investors of Pittsburgh, Inc., 879 F.2d 1087, 1106-07 (3d Cir. 1989) (apply- ing Leon standard for defective search warrants).

**20

2.

Like lower courts, the Supreme Court applies princi- ples of stare decisis and recognizes an obligation to re- spect both the standard announced and the result reached in its prior cases. Unlike lower courts, the Supreme Court is free to change the standard or result from one of its earlier  cases  when  it  finds  it  to  be  "unsound  in  princi- ple or  unworkable in practice." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). Accordingly, when a majority of the Justices announce in the course of deciding a case that they are substituting a new standard or result for that used in a prior case, the substitution is effected, and the lower courts are thereafter bound to follow the new standard or result. See, e.g., Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990); Vandiver v. Hardin County Board of Education, 925 F.2d 927 (6th Cir. 1991)

(applying new Smith test).

Occasionally, the Supreme Court's decision in a case reveals that a standard established in an earlier case no longer  commands  the  allegiance  of  a  majority  of  the Justices,   **21   but also reveals that no single substitute is endorsed by that majority of the Justices. Thereafter, the lower courts must determine whether to apply the old standard or, if not, what standard to apply. Fortunately, the Supreme Court has instructed the lower courts on how to resolve these issues.

Marks v. United States, 430 U.S. 188, 97 S. Ct. 990,

51 L. Ed. 2d 260 (1977), was a criminal prosecution under a statute barring the interstate transportation of obscene materials. The Court had previously established that the statute was to be interpreted in accordance with the defi- nition of obscenity fashioned by the Supreme Court under the Free Speech Clause of the First Amendment. In re- sponse to a contention based on the Ex Post Facto Clause, the Supreme Court in Marks had to determine what the law of the land regarding obscenity had been at the time of the defendant's alleged offense. It therefore reviewed its more recent obscenity jurisprudence. In

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Page 11

*693    Roth v. United States, 354 U.S. 476, 489, 77 S. Ct.  1304,  1  L.  Ed.  2d  1498  (1957),  the  Court  had  de- clared the test to be "whether to the average person, ap- plying contemporary community standards, the dominant theme of the material taken **22    as a whole appeals to the prurient interest." Some years later in Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d

1 (1966), a plurality opinion joined only by three Justices announced that a work is not obscene unless "three ele- ments . . . coalesce:"

It must be established that (a) the domi- nant theme of the material taken as a whole appears to a prurient interest in sex; (b) the material is patently offensive because it af- fronts  contemporary  community  standards relating to the description or representation of sexual matters; and (c) the material is ut- terly without redeeming social value.

383 U.S. at 418. The plurality opinion in Memoirs de- cided that Fanny Hill was not obscene when judged by this standard and, accordingly, that the defendants' conviction had to be overturned. Three additional Justices concurred in this result but did so utilizing different rules of law: two stated that the First Amendment shields all speech including obscenity; one stated that the First Amendment protects all but "hard core pornography." Three Justices dissented.

The Marks Court was required to determine whether the  legal  standard  announced   **23     in  Roth  had  re- mained the law of the land after Memoirs or whether it had been superseded by a new standard in Memoirs. Despite the fact that no new legal standard had commanded the allegiance of a majority of the Justices in Memoirs, the Marks  Court  held  that  Roth's  standard  did  not  survive Memoirs because a majority of Justices in Memoirs re- jected  the  Roth  standard.  Marks  thus  stands  for  a  very important proposition:  a legal standard endorsed by the Court ceases to be the law of the land when a majority of the Court in a subsequent case declines to apply it, even

if that majority is composed of Justices who disagree on what the proper standard should be.

Having decided that the Roth standard had ceased to control, the Marks Court also determined what standard had taken its place. The Court concluded that the Memoirs plurality  opinion  had  become  the  law  of  the  land.  The court  explained  that  "when  a  fragmented  court  decides a case and no single rationale explaining the result en- joys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on **24   the narrow- est grounds.'" Marks, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909, 49 L. Ed.

2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). The Justices in the plurality in Memoirs were those who concurred on the narrowest grounds.

Thus,   HN3   Marks  stands  for  a  second  important proposition:  the controlling opinion in a splintered de- cision  is  that  of  the  Justice  or  Justices  who  concur  on the "narrowest grounds." The principal objective of this Marks rule is to promote predictability in the law by en- suring lower court adherence to Supreme Court precedent. This objective requires that, whenever possible, there be a single legal standard for the lower courts to apply in sim- ilar cases and that this standard, when properly applied, produce results with which a majority of the Justices in the case articulating the standard would agree. In a run- of-the--mill case where a majority of the Justices endorse a single legal standard, see, e.g., Lemon v. Kurtzman, 403

U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), lower courts simply follow that standard. In splintered decisions such as Memoirs where no single **25  rationale "enjoys the assent of five Justices," the situation becomes more complex, but the controlling principle is the same. Where a Justice or Justices concurring in the judgment in such a case articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land. In a constitutional case where (1) there is a 5-4 decision or where there are only two opinions in the

947 F.2d 682, *694; 1991 U.S. App. LEXIS 24792, **25

Page 12

*694    majority and (2) the majority votes to uphold a law as constitutional, the "narrowest grounds" principle will identify as authoritative the standard articulated by a Justice or Justices that would uphold the fewest laws as constitutional. Conversely, in a constitutional case where

(1) there is a 5-4 split or there are only two opinions in the majority and (2) the majority strikes down a law as uncon- stitutional, the authoritative standard will be that which would invalidate the fewest laws as unconstitutional.  n7

n7 When six or more Justices join in the judg- ment and they issue three or more opinions, the sit- uation is slightly more complex. In those cases, the idea is to locate the opinion of the Justice or Justices who concurred on the narrowest grounds necessary to secure a majority. In other words, a lower court should not follow an opinion that, though part of the majority in that case,  was unnecessary to se- cure a five-Justice majority. Thus, if three Justices issue the broadest opinion, two Justices concur on narrower grounds, and one Justice concurs on still- narrower grounds, the two-Justice opinion is bind- ing because that was the narrowest of the opinions necessary to secure a majority.

**26

In splintered Supreme Court decisions where there has been a common denominator standard that would neces- sarily produce results with which a majority of the Justices from the controlling case would agree, the Supreme Court and the lower courts have consistently identified as bind- ing precedent the opinion setting forth that standard.  See Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909,

49 L. Ed. 2d 859 (1976) (identifying three-Justice plu- rality opinion from Furman v. Georgia, 428 U.S. 238, 92

S. Ct. 2726,  33 L. Ed. 2d 346 (1972), as binding);  S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752 (11th Cir. 1991) (following Chief Justice Burger's opinion from Fullilove v. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L. Ed. 2d 902 (1980)); Lundblad v. Celeste, 874 F.2d 1097

(6th  Cir.  1989)  (following  Justice  Stewart's  opinion  in

Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d

547 (1976)); Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir. 1979) (same); Islamic Center of Mississippi, Inc. v. City of Starksville, 876 F.2d 465 (5th Cir. 1989) (following

Justice O'Connor's opinion in Pennsylvania v. Delaware

Valley Citizens Council For Clean Air, 483 U.S. 711, 107

S. Ct. 3078, 97 L. Ed. 2d 585 (1987) **27   ("Delaware Valley  II");  Student  Public  Interest  Research  Group  of New Jersey, Inc. v. AT & T Bell Laboratories, 842 F.2d

1436 (3d Cir. 1988) (same).  n8

n8 In rare cases, no common denominator ex- ists beyond agreement on the result in that particular case.   See United States v. Eckford, 910 F.2d 216

(5th Cir. 1990) (finding no common denominator and thus no binding opinion in Baldasar v. United States, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d

169 (1980)); Schindler v. Clerk of Circuit Court,

715 F.2d 341 (7th Cir. 1983) (same).

The binding opinion from a splintered decision is as authoritative for lower courts as a nine-Justice opinion. While the opinion's symbolic and perceived authority, as well as its duration, may be less, that makes no difference for  a  lower  court.  This  is  true even if  only  one  Justice issues  the  binding  opinion.  In  Blum  v.  Witco  Chemical Corp., 888 F.2d 975, 981 (3d Cir. 1989), **28   for ex- ample, we concluded, as has every other court of appeals to address the issue, that Justice O'Connor's concurring opinion in Delaware Valley II governed subsequent coun- sel  fee  cases  even  though  no  other  Justice  joined  that opinion. We acknowledged that, "although there is some awkwardness in attributing precedential value to an opin- ion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determi- native opinion." Blum, 888 F.2d at 981.

In  sum,  the  effect  of  following  the  wrong  opinion from  a  splintered  decision  is  the  same  as  affirmatively declaring that a Supreme Court majority opinion is not binding. By following the opinion that comports with the Marks principle, we respect the decision of a majority of the Court and thus fulfill our obligation to comply with decisions of the Supreme Court.

3.

With this background, we turn to the Supreme Court's abortion  jurisprudence  to  determine  whether  the  strict scrutiny  legal  standard  endorsed  by  the  Court  in  Roe, Akron, and Thornburgh remains

947 F.2d 682, *695; 1991 U.S. App. LEXIS 24792, **28

Page 13

*695     the   applicable   standard   after   Webster   and Hodgson.  The  primary  issue  in  Webster  was   **29  the  constitutionality  of  Missouri's  viability  testing  pro- vision. The five Justices in the majority issued three opin- ions in upholding that viability testing provision. Chief Justice Rehnquist's opinion, joined by Justices White and Kennedy,  upheld  the  provision  under  the  "permissibly furthers" standard, the equivalent of rational basis review. Justice Scalia concurred, similarly rejecting strict scrutiny review of abortion regulations and arguing that Roe should be explicitly overruled. The four Justices in dissent would have applied the traditional strict scrutiny test.  n9

n9 Four Justices dissented over the interpreta- tion of the Missouri statute. The dissenters agreed, however, that the statute as interpreted by the ma- jority survived strict scrutiny review. Thus, all nine members of the Court concluded that the statute as interpreted by the majority was constitutional, but for four different reasons. In any event, five Justices rejected strict scrutiny, and the narrowest opinion of those five Justices was that of Justice O'Connor.

**30

In her concurring opinion, Justice O'Connor used the undue  burden  standard  that  she  had  articulated  in  past dissents. She concluded that Missouri's viability testing requirement was constitutional because it did not impose an undue burden on a woman's abortion decision and was rationally related to a legitimate state interest. She stated: It  is clear  to  me  that  requiring  the  per-

formance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be  medically  imprudent  to  do  so,  does  not impose an undue burden on a woman's abor- tion decision.  On this ground alone I would reject the suggestion that § 188.029 as inter- preted is unconstitutional.

Webster, 492 U.S. at 530 (O'Connor, J., concurring) (em- phasis added). n10

n10 Although Justice O'Connor's discussion in Webster  did  not  end  with  her  analysis  under  the undue burden standard,  it did rely on and adhere to  her  undue  burden  approach  for  abortion  regu- lations. Interpreting Justice O'Connor's opinion as agreeing with the Akron strict scrutiny standard for reviewing all abortion regulations would not only be inconsistent with that portion of her opinion that we have quoted in the text, but would also be plainly

incompatible with her consistent approach in cases before and after Webster: that the undue burden ap- proach is the proper analysis for review of abortion regulations.

We note that Justice O'Connor herself has sub- sequently interpreted her opinion in Webster as re- lying on the undue burden standard. In Hodgson, she again put forth the undue burden approach as the proper standard for abortion cases. In doing so, she cited her opinion in Webster in support of her understanding that if a regulation does not unduly burden  the  fundamental  right,  "then  our  evalua- tion is limited to our determination that the regula- tion rationally relates to a legitimate state purpose." Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J., con- curring).

Moreover,   in  addition  to  Justice  O'Connor, her  colleague  read  her  opinion  as  we  do.  Justice Scalia in concurrence in Webster interpreted Justice O'Connor's  opinion  to  rely  on  the  undue  burden standard  in  upholding  the  viability  testing  provi- sion.  He  stated:  "Justice  O'Connor  would  never- theless uphold the law because 'it does not impose an undue burden on a woman's abortion decision.'" Webster, 492 U.S. at 536 n. * (Scalia, J., concur- ring).

To understand  Justice O'Connor's  further dis- cussion in Webster, it is necessary to remember that the trimester framework establishes what types of abortion regulations meet the strict scrutiny stan- dard.  Under  the  trimester  framework,  the  state's interest  in  maternal  health  is  compelling  only  in the second and third trimesters, and the state's in- terest in the fetus is compelling only in the third trimester. The plurality in Webster found that the viability testing provision was in conflict with the trimester framework. But the plurality upheld the provision after discarding the trimester framework as "unsound in principle and unworkable in prac- tice." Justice O'Connor stated that she continued to have problems with the trimester framework,  but she saw no need in Webster to address the serious constitutional  question  raised  by  its  reconsidera- tion.  In  effect,  Justice  O'Connor's  opinion,  after stating why she believed the viability testing pro- vision was constitutional, agreed with the dissent that the plurality was reaching out unnecessarily in addressing the trimester framework.

She  gave  two  reasons  why  the  viability  test- ing provision did not implicate the trimester frame- work. First, under her approach, it did not cause an undue burden and therefore strict scrutiny and the

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Page 14

trimester framework derived from it were simply not applicable. Second, even if the provision trig- gered strict scrutiny, thus implicating the trimester framework, the Court had always held--consistent with the trimester framework--that the state has a compelling interest in determining the critical point of viability. In sum, according to Justice O'Connor, the trimester framework was neither triggered by nor inconsistent with the viability testing provision. For  our  purposes,  the  most  important  point about  Justice  O'Connor's  opinion  in  Webster  is

the following:  in arguing that strict scrutiny was not  triggered  and  thus  that  the  trimester  frame- work  should  not  have  been  reconsidered,  Justice O'Connor in no way retreated from, and indeed she affirmatively relied on, her consistent view that a threshold undue burden determination is necessary before strict scrutiny is to be employed.

**31

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Page 15

*696   Hodgson was decided in a similar manner. There the Court addressed the constitutionality of a two-parent notification  requirement  without  a  judicial  bypass  op- tion  and  a  two-parent  notification  requirement  with  a judicial bypass option. Five Justices--Justices O'Connor, Brennan, Marshall, Blackmun, and Stevens--held that a two-parent notification statute without a judicial bypass procedure was unconstitutional. Justice O'Connor found that the regulation caused an undue burden and failed to survive strict scrutiny review. She articulated the standard as follows:

It  has  been  my  understanding  in  this area  that  "if  the  particular  regulation  does not 'unduly burde n ' the fundamental right,

.  .  .  then  our  evaluation  of  that  regula- tion is limited to our determination that the regulation  rationally  relates  to  a  legitimate state  purpose."  Akron  v.  Akron  Center  for Reproductive  Health,  462  U.S.  416,  453,

103  S.  Ct.  2481,  76  L.  Ed.  2d  687  (1983)

(O'Connor, J., dissenting); see also Webster v. Reproductive Health Services, 492 U.S. 490,

, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989)

(O'Connor, J., concurring in part and concur- ring in judgment). . . . I agree with Justice Stevens that Minnesota has offered no suffi- cient **32   justification for its interference with the family's decisionmaking processes created by subdivision 2--two-parent notifi- cation.

Hodgson, 110 S. Ct. at 2949-50(O'Connor, J., concur- ring).  Three  of  the  other  four  Justices  in  the  majority applied  strict  scrutiny  review  without  determining  as  a threshold matter whether the regulation caused an undue burden. Justice Stevens agreed that the statute was uncon- stitutional, noting that "under any analysis, the Minnesota statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests." Id. at

2937 (opinion of Stevens, J.). He concluded both that the state had no legitimate interest in assuring that a particular individual parent participate in the child's abortion deci-

sion and that requiring the minor to notify both parents did not further the state's interest in seeing that a minor's abortion decision be informed. Id. at 2937, 2945. The four dissenters would have applied rational basis review and upheld the provision.

Also  in  Hodgson,  five  Justices--Justice  O'Connor, Chief  Justice  Rehnquist,  and   **33               Justices  White, Scalia, and Kennedy--held that a two-parent notification requirement with a judicial bypass option was constitu- tional. Justice O'Connor concluded that it did not cause an undue burden and passed rational basis review:

In a series of cases, this Court has explicitly approved judicial bypass as a means of tai- loring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion. In Danforth, the Court stated that the

"primary constitutional        defi- ciency  lies  in   the  notification statute's   imposition  of  an  ab- solute limitation on the minor's right to obtain an abortion. . . .

Subdivision  6  passes  constitutional  muster because the interference with the internal op- eration of the family required by subdivision

2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure.

Hodgson, 110 S. Ct. at 2950-51 (O'Connor, J., concur- ring) (emphasis added) (citations omitted). The other four Justices in the majority on this issue in Hodgson found that the statute passed rational basis review without first deciding if it caused an undue burden. The **34    dis- senters would have used strict scrutiny and struck down the provision.

947 F.2d 682, *697; 1991 U.S. App. LEXIS 24792, **34

Page 16

*697   Justice O'Connor thus concurred in Webster and on  one  issue  in  Hodgson  by  holding  that  an  abortion regulation that imposes no undue burden on a woman's decision  to  have  an  abortion  does  not  violate  the  Due Process Clause so long as it is rationally related to a legit- imate state interest. While the views of the other Justices concurring in the judgment on those issues differed from those of Justice O'Connor, all of them would uphold as constitutional any regulation meeting that standard.

Moreover, Justice O'Connor concurred in the Court's judgment on the other issue in Hodgson on the ground that an abortion regulation that imposes an undue burden on the decision to abort violates the Due Process Clause if does not meet the strict scrutiny standard. Here also, the other Justices concurring in the judgment on this issue did not join her opinion, but they would strike down as unconstitutional  any  regulations  struck  down  under  the undue burden standard.

In these circumstances, we conclude that it would be inconsistent with the teachings of Marks for lower courts to  apply  the  strict  scrutiny  test   **35    of  Roe,  Akron, and Thornburgh to all abortion regulations. We also con- clude that only by applying the undue burden standard of review, that is, only by applying strict scrutiny review to regulations that impose an undue burden and rational basis review to those which do not, can we remain faith- ful to Marks. Only by following the rationale of Justice O'Connor's concurring opinions will the lower courts de- cide abortion regulation cases in a way consistent with the way the Court decided them in Webster and Hodgson.

4.

Having concluded that the undue burden standard is binding on us,  one issue of stare decisis remains:  Are we  required  to  follow  results  reached  by  the  Supreme Court in cases prior to Webster and Hodgson even though we are not bound by the rationale which produced those results?         In  the  instant  case,  this  issue  is  relevant  be- cause the Supreme Court, engaging in strict scrutiny re- view  in  Akron  and  Thornburgh,  struck  down  informed

consent provisions almost identical to the provisions at issue here. If we were constrained to follow the results reached in Akron and Thornburgh, we would hold uncon- stitutional the informed **36   consent provisions of the Pennsylvania Act. We are convinced, however, that such a course would be improper.

It would be anomalous if the results reached under a constitutional standard remained binding after the stan- dard or test was repudiated. To take a variation n11 of a familiar constitutional story, suppose that the Court in Brown  v.  Board  of  Education,  347  U.S.  483,  74  S.  Ct.

686,  98  L.  Ed.  873  (1954),  had  required  that  states  no longer run segregated school systems by repudiating the Plessy  separate  but  equal  doctrine  and  stating  that  the Equal Protection  Clause forbids invidious racial classi- fications by government. Although Brown of course in- volved schools, a lower court in the aftermath would apply that principle to all racial classifications by government, regardless of whether before Brown the Supreme Court had upheld racial classifications in the particular context at issue. Thus,  if pre-Brown,  the Court had stated that state-segregated  public  pools  did  not  violate  the  Equal Protection Clause, a lower court faced with a challenge to state-segregated pools after the Brown decision would apply the new principle to pools rather than upholding the segregated **37   pools on the basis of the result reached by the Supreme Court under the discarded standard.

n11  We  say  variation  because  the  Court  in Brown actually seemed to rest its decision on the Context--schools---rather than a blanket principle about the Equal Protection Clause. For our example here, we will assume that the latter had occurred.

In order to change course in a particular area, it sim- ply is unnecessary for the Supreme Court to go case-by-- case through fact patterns that the Court had previously addressed under a repudiated standard. If the standard is replaced, decisions reached under the old standard are

947 F.2d 682, *698; 1991 U.S. App. LEXIS 24792, **37

Page 17

*698   not binding. n12 We thus conclude that a change in the legal test or standard governing a particular area is a change binding on lower courts that makes results reached under a repudiated legal standard no longer binding. n13

n12  While  results  reached  under  a  discarded standard are no longer binding, that does not mean that the old results are necessarily wrong; it simply means that the fact patterns producing those results must be analyzed under the new standard. That is why,  though  we  conclude  that  the  strict  scrutiny standard  applied  in  Akron  and  Thornburgh  is  no longer  governing  and  the  results  no  longer  bind- ing, the provisions held unconstitutional there are not necessarily constitutional; we must instead an- alyze the provisions under the newly minted undue burden standard.

**38

n13  We  are  of  course  mindful  that  only  the Supreme  Court  "may  overrule  one  of  its  prece- dents."  Thurston  Motor  Lines  v.  Jordan  K.  Rand Ltd.,  460  U.S.  533,  535,  103  S.  Ct.  1343,  75

L.  Ed.  2d  260  (1983);  Rodriguez  de  Quijas  v. Shearson/American  Express,  Inc.,  490  U.S.  477,

109  S.  Ct.  1917,   104  L.  Ed.  2d  526  (1989). The   Court   rejected   anticipatory   overruling   in Rodriguez. A lower court may not disregard a result reached  under  a  controlling  standard,  even  when that result is inconsistent with other results reached under the same standard. Similarly, a lower court may not reject a governing standard unless a major- ity of the Justices in a single case declines to apply it. Thus, while a regulation must constitute an undue burden to trigger strict scrutiny, the trimesterframe- work  is  still  binding  when  strict  scrutiny  is  trig- gered. Although five sitting Justices of the Supreme Court have criticized or rejected the Roe trimester framework,  they  have  not  rejected  it  in  a  single case.  Cf.  Sojourner v. Roemer, 772 F. Supp. 930

(E.D. La. 1991) (invalidating criminal prohibition on abortion).

In sum, Justice O'Connor's undue burden standard is the law of the land, and we will apply that standard to all provisions of the Pennsylvania Act at issue in this appeal.

III.   **39

An abortion regulation can infringe upon the abortion right in at least seven ways:  (1) causing a delay before the abortion is performed; (2) raising the monetary cost of an abortion; (3) reducing the availability of an abortion by directly or indirectly causing a decrease in the num-

ber  of  legal  abortion  providers;  (4)  causing  or  forcing the woman to receive information she has not sought; (5) causing the woman to find the person or persons whom the state has required that she notify or obtain consent from;

(6) causing the woman to endure any negative or hostile response from a person whom the state has required the woman to notify or obtain consent from; and (7) taking away the  power  to  decide  whether  to  have  an  abortion by giving another person, usually a parent or spouse, a veto power on the abortion decision. Almost all abortion regulations  implicate  the  first  three  of  these;  informed consent requirements also involve the fourth; and notice and  consent  statutes  also  implicate  the  fifth,  sixth,  and seventh.

A review of the abortion case law, and Webster and Hodgson in particular, suggest that HN4  no undue bur- den is caused by abortion regulations that do not have a

"severe" or **40  "drastic" impact upon time, cost, or the number of legal providers of abortions. Webster, 492 U.S. at 529-30 (O'Connor, J., concurring);  Thornburgh, 476

U.S. at 827-33 (O'Connor, J., dissenting); Akron, 462 U.S. at 464-67, 472-74 (O'Connor, J., dissenting). Similarly, the case law indicates that HN5  a state's requirement that  abortion  providers  communicate  information  to  a woman,  which  is  typically  in  the  form  of  an  informed consent requirement, will not constitute an undue burden if the information that the abortion provider must give is relevant, accurate, and non-inflammatory.   Thornburgh,

476 U.S. at 830-32 (O'Connor, J., dissenting). n14

N14 We have held that the undue burden stan- dard adopted by Justice O'Connor in Webster and Hodgson  is  the  binding  standard.  The  definition of that standard--"absolute obstacle or severe lim- itation"--used by Justice O'Connor in those cases is  binding,  as  is  her  application  of  that  standard to  the  viability  testing  provision  and  two-parent notification provision. However, her application of that standard in past dissents--the results she would have reached in those cases--is not binding on us. Nonetheless, we will often refer to her application of  the  undue  burden  standard  in  past  dissents  as evidence (though not conclusive) of how the undue burden  standard  might  apply  here.  As  we  stated earlier, lower courts cannot read the tea leaves in overruling  precedent,  but  lower  courts  can  do  so with respect to open issues or new areas; and that, in effect, is what we confront here, since for most of the provisions involved in this case,  the Court has never applied the undue burden standard.

**41

947 F.2d 682, *699; 1991 U.S. App. LEXIS 24792, **41

Page 18

*699    The primary manner in which an abortion reg- ulation  can  constitute  an  undue  burden,  other  than  by banning some or all previability abortions, is by taking away the woman's unilateral power to decide whether to have a previability abortion. Thus, HN6  a regulation in which the state gives a veto power to the woman's husband or, for a minor woman, to a parent constitutes an undue burden. See Hodgson, 110 S. Ct. at 2949-50 (O'Connor, J.,  concurring);  Akron,  462  U.S.  at  464  (O'Connor,  J., dissenting);  Bellotti  II,  443  U.S.  at  646-48;  Danforth,

428 U.S. at 67-72. However, a parental consent or notice provision combined with an adequate judicial bypass pro- cedure does not constitute an undue burden. See Hodgson,

110 S. Ct. at 2950-51 (O'Connor, J., concurring).

With this overall orientation, we turn now to the indi- vidual provisions of the Act. We may overrule the district court's  factual  findings  based  on  the  evidence  before  it only when clearly erroneous. We exercise plenary review, however, over the district court's determination of consti- tutionality **42   and thus over whether the facts found regarding  the  effect  of  a  particular  statutory  provision constitute an "undue burden." We also exercise plenary review over the question whether a provision passes strict scrutiny or rational basis review.

A.  The Medical Emergency Exception

We first address an issue that would affect virtually all of our later analysis if not resolved at the outset. Section

3203 of the Act defines the term medical emergency. A

medical emergency is:

that  condition  which,  on  the  basis  of  the physician's good faith clinical judgment, so complicates the medical condition of a preg- nant  woman  as  to  necessitate  the  immedi- ate termination of her pregnancy to avert her death or for which a delay will create serious risk  of  substantial  and  irreversible  impair- ment of major bodily function.

18  Pa.  Cons.  Stat.  Ann.  §  3203  (1983  &  Supp.  1991). When a medical emergency exists, the Act permits doc- tors and women to forego a number of the Act's require- ments,  including  the  waiting  period,  parental  consent, and  spousal  notice  requirements.  The  district  court  de- clared the definition in § 3203 unconstitutionally narrow and struck down all provisions of the Act that contained

**43  this medical emergency exception; for certain pro- visions, this was only an alternative basis for the district court's holding of unconstitutionality.

The Supreme Court indicated in Roe and subsequent cases that the state's interest in the fetus is not sufficient to prevent a woman: (1) from having a previability abor- tion; or (2) from having an abortion at any point during the pregnancy, immediately if necessary, to prevent a se- rious threat to her life or health. In Roe, the Court stated that third trimester abortions may be banned except where

"necessary to preserve the life or health of the mother."

410  U.S.  at  164  (emphasis  added);  see  also  Harris  v. McRae,  448 U.S. 297,  316,  100 S. Ct. 2671,  65 L. Ed.

2d 784 (1980) ("it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does in fact lie at the core of the con- stitutional  liberty  identified  in   Roe .").  From  Roe  and subsequent cases, it thus appears that any abortion reg- ulation which might delay or prevent an abortion must contain a medical emergency exception.

The Commonwealth does not dispute that its abortion regulations would be constitutionally **44   deficient if they did not contain an exception for those situations in which compliance would pose a serious risk to the life or health of the woman. The clinics acknowledge that the Act's medical emergency exception is intended to protect the life and health of the woman, but they seek to demon- strate that it is deficient by pointing to three conditions encountered  by pregnant  women  with some  frequency: preeclampsia, inevitable abortion, and prematurely

947 F.2d 682, *700; 1991 U.S. App. LEXIS 24792, **44

Page 19

*700    ruptured  membrane.  In  the  clinics'  view,  these conditions are not covered by the medical emergency ex- ception  because  each  "could  pose  a  serious  threat  to  a woman's health without immediately creating a serious risk of substantial and irreversible impairment to a major bodily function." Brief for Appellees at 16. The clinics insist that this renders the Commonwealth's regulations unconstitutional.

The  Commonwealth  does  not  challenge  the  asser- tion  that  its  regulations  would  be  unconstitutional  if women having preeclampsia, inevitable abortion, or pre- maturely ruptured membrane were required to satisfy all of the requirements of the Act before having an abortion. Rather, the Commonwealth responds that preeclampsia, inevitable  abortion,   **45    and  prematurely  ruptured membrane are "medical emergencies" as defined in the Act  because  "all  of  these  conditions,  if  left  untreated, could progress to such a point that death or substantial and  irreversible  impairment  of  a  major  bodily  function will occur." Reply Brief for Appellants at 4 n.2.

It  is  thus  apparent  that  our  initial  issue  for  resolu- tion is one of statutory interpretation and is governed by Pennsylvania law. There is no helpful Pennsylvania case law construing the medical emergency provision of the Act. There are,  however,  Pennsylvania cases indicating that statutes of the Commonwealth should be construed to  sustain  their  constitutionality.  See  Commonwealth v.  Blystone,  519  Pa.  450,  549  A.2d  81,  87  (Pa.  1988)

("Any  doubts  are  to  be  resolved  in  favor  of  sustain- ing the legislation."); Hughes v. Commonwealth Dept. of Transportation, 514 Pa. 300, 523 A.2d 747, 750-51 (Pa.

1987) ("We must presume that an Act of the legislature is intended to be constitutional and wherever a legislative act can be preserved from unconstitutionality it must be preserved."); see also Webster, 492 U.S. at 514 (statutes should **46   be interpreted to avoid constitutional dif- ficulty); Frisby v. Schultz, 487 U.S. 474, 483, 108 S. Ct.

2495, 101 L. Ed. 2d 420 (1988) (same). With this case law in mind,  we turn to the symptoms and the risks of each of the conditions identified by the clinics.

Preeclampsia is a combination of symptoms related to an immunological disorder. When diagnosed as having preeclampsia, "the patient develops hypertension, she can have destruction of the liver, hemorrhage into the liver, she can have destruction of the kidneys and she may go on to have clampsia,  which is a seizure disorder of the brain" Trial Testimony of Dr. Bolognese, Witness for the Clinics ("Bolognese Testimony"), App. at 614. Both Dr. Bolognese for the clinics and the doctor who testified for the Commonwealth agreed that preeclampsia requires an abortion. Trial Testimony of Dr. Bowes, Witness for the Commonwealth ("Bowes Testimony"), App. at 889.

The  symptoms  of  inevitable  abortion  are  bleeding from the uterus and cramps in the lower abdominal area. The failure to terminate the pregnancy immediately when this  condition  exists  can  lead  to  extensive  blood  loss, shock,  infection,  and,  if  there  is  serious  hemorrhaging and shock,   **47   even death.  744 F. Supp. at 1346-47. The Commonwealth's expert at trial agreed with the clin- ics'  expert  that  the  universally  recommended  treatment of an inevitable abortion is immediate termination of the pregnancy. Bowes Testimony, App. at 888.

The  major  risk  from  a  prematurely  ruptured  mem- brane is that an infection will occur. If an infection oc- curs, a woman can be exposed to spread of the infection, an overwhelming septic infection, hemorrhaging, shock, and even death. Bolognese Testimony, App. at 611.

There   is   no   dispute   between   the   parties   that preeclampsia,  inevitable  abortion  and  prematurely  rup- tured membrane can lead to a substantial and irreversible impairment of a major bodily function. The record is clear that a failure to obtain an abortion when a woman is diag- nosed with preeclampsia can lead to irreversible damage to  the  liver,  kidneys  and  more;  that  failure  to  perform an abortion when a woman is diagnosed with inevitable abortion can eventually lead to death; and that a failure to obtain an abortion when a woman is diagnosed with prematurely ruptured

947 F.2d 682, *701; 1991 U.S. App. LEXIS 24792, **47

Page 20

*701   membrane can eventually lead to death. The dis- pute between the parties concerns the **48   meaning of the phrase "serious risk." The Commonwealth insists that whenever these conditions exist, there is a "serious risk" of substantial and irreversible impairment of a major bod- ily function. The clinics argue that no such "serious risk" exists  until  the  woman  has  actually  experienced  shock or contracted an infection. We conclude that the clinics' interpretation is unduly restrictive.

The word "risk" necessarily implies an event that may or may not happen in the future. Neither "risk" nor the addition of the adjective "serious" implies that the proba- bility assessed is the probability of the hypothesized event occurring immediately following the time of assessment. Accordingly, we do not believe the risk that prematurely ruptured  membrane,  if  untreated,  will  lead  to  substan- tial and irreversible injury only after progressing through shock or infection necessarily means that there is no "seri- ous risk" at the onset of the condition. We assume that the risk of substantial and irreparable impairment of a major bodily function will be quantitatively less at the onset of a prematurely ruptured membrane than after shock has occurred, but this does not mean the risk at onset is not

**49   "serious."

The Pennsylvania legislature did not choose the word- ing of its medical emergency exception in a vacuum, and we do not believe the words chosen should be interpreted in one. In the case of all three conditions pointed to by the clinics, the treatment uniformly prescribed by the medi- cal profession at the time of the legislature's choice was an immediate abortion. This was the recommended treat- ment in all pregnancies in which these conditions arose, including planned and desired pregnancies. This medical consensus that the risk occasioned is sufficiently serious to call for an immediate abortion was a part of the context in which the medical emergency provision was fashioned. Moreover, we read the medical emergency exception as intended by the Pennsylvania legislature to assure that

compliance  with  its  abortion  regulations  would  not  in any way pose a significant threat to the life or health of a woman. We believe it should be interpreted with that objective in mind. While the wording seems to us care- fully chosen to prevent negligible risks to life or health or significant risks of only transient health problems from serving as an excuse for noncompliance,  we decline to construe **50   "serious" as intended to deny a woman the uniformly recommended treatment for a condition that can lead to death or permanent injury.

The essence of the definition in § 3203 is that it al- lows  a  woman  and  her  doctors  to  forego  many  of  the Act's requirements when there is a medical emergency to the woman's physical health, and that includes where a woman has symptoms of preeclampsia, inevitable abor- tion, or prematurely ruptured membrane. We interpret §

3203 to allow women and doctors to forego the Act's re- quirements when a woman is diagnosed as having one of these conditions. If the Commonwealth were to choose, in contradiction to its representations to this court, to prevent doctors and women from foregoing the Act's requirements when a woman has been so diagnosed, that application would almost certainly be unconstitutional under present Supreme Court law.

Any doubt on our interpretation of § 3203 is resolved by  the  procedural  posture  of  the  case.  This  is  a  facial challenge. The Supreme Court has instructed on numer- ous occasions that a court is not to strike down a law as unconstitutional  on  the  basis  of  "a  worst-case  analysis that may never occur." Ohio, 110 S. Ct. at 2981. **51  The Supreme Court recently applied this principle in a very  similar  context  in  Rust  v.  Sullivan,  500  U.S.  173,

111 S. Ct. 1759,  114 L. Ed. 2d 233 (1991). There,  the regulations at issue did not contain an explicit exception for cases where a woman's pregnancy placed her life in imminent peril, but the Court rejected a facial claim that the regulations would not allow abortion referral in such circumstances. The Court stated that on a facial challenge without "any application by the Secretary to a specific

947 F.2d 682, *702; 1991 U.S. App. LEXIS 24792, **51

Page 21

*702   fact situation," it would not read the regulations to bar referral in such cases. Id. at 1773. Similarly presented with a facial challenge, we uphold the medical emergency exception defined in § 3203.

In an alternative challenge, the clinics argue that the medical emergency definition is void for vagueness. The district court did not consider this issue;  we do so here and reject it. The Act provides criminal and civil sanc- tions  against  doctors  who  violate  the  Act's  provisions. However,  the Act allows doctors and women to forego the Act's requirements when, "on the basis of the physi- cian's  good  faith  clinical  judgment,"  a  condition  exists that meets   **52   the definition of medical emergency in § 3203. The Commonwealth argues that the terms of

§ 3203 are not vague. They also contend that the subjec- tive standard of "good faith clinical judgment" saves the statute from any problem of vagueness.

In United States v. Vuitch, 402 U.S. 62, 69-72, 91 S. Ct. 1294, 28 L. Ed. 2d 601 (1971), the Supreme Court up- held against a vagueness challenge a requirement that an abortion be "necessary for the preservation of the mother's life or health." In Doe v. Bolton, the Court upheld against a vagueness challenge a requirement that the physician determine, on the basis of his or her "best clinical judg- ment," that an abortion is "necessary." 410 U.S. at 191-92. In contrast, in Colautti v. Franklin, 439 U.S. 379, 390-97,

99 S. Ct. 675, 58 L. Ed. 2d 596 (1979), the Court struck down on vagueness grounds a requirement that the physi- cian determine if the fetus "is viable" or "may be viable" before performing an abortion. The Court stated that it was unclear whether the Act incorporated a subjective or objective standard. In addition, the definition of "may be viable" was elusive and did not provide sufficient notice. In this case,   **53   the statute requires a physician to violate his or her own good faith clinical judgment in order to be criminally liable. This is a subjective, not an objective standard, thus making the case more similar to Vuitch and Doe than to Colautti. We fail to see how any physician practicing in good faith could fear conviction

under the Act.

Moreover, as we have already concluded, the language of § 3203, apart from the "good faith clinical judgment" language,  does not prohibit doctors from foregoing the Act's requirements when what are commonly perceived to be medical emergencies exist. The clinics here came up with three medical emergencies that they argued were not covered by the statute. We have held that they are. Physically  threatening  emergencies  are  covered;  deter- mining whether, in a physician's good faith clinical judg- ment, one of those emergencies is present is the type of

"judgment  that physicians are obviously called upon to make  routinely  whenever  surgery  is  considered."  Doe,

410 U.S. at 192. Section 3203 provides the fair warning required  by  the  Due  Process  Clause;  it  is  not  void  for vagueness.

B.  The Informed Consent Requirement   **54

Section 3205(a) contains the informed consent provi- sions of the Act. Three aspects of that section are at issue in this appeal:  two information disclosure requirements and a requirement that the woman wait 24 hours between the time she receives this information and the time the abortion is performed.  n15 We address these provisions in turn.

n15 Section 3205 of the Act states in relevant part:

(a) GENERAL RULE.--No abortion shall be per- formed or induced except with the voluntary and informed  consent  of  the  woman  upon  whom  the abortion is to be performed or induced. Except in the  case  of  a  medical  emergency,  consent  to  an abortion is voluntary and informed if and only if:

(1) At least 24 hours prior to the abortion, the physi- cian who is to perform the abortion or the referring physician has orally informed the woman of:

(i)  The  nature  of  the  proposed  procedure  or treatment and of those risks and alternatives to the procedure  or  treatment  that  a  reasonable  patient would consider material to the decision of whether or not to undergo the abortion.

(ii) The probable gestational age of the unborn child at the time the abortion is to be performed.

(iii) The medical risks associated with carrying her child to term.

(2) At least 24 hours prior to the abortion, the physi- cian who is to perform the abortion or the refer- ring physician,  or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:

(i) The department Pennsylvania Department of  Health   publishes  printed  materials  which  de- scribe the unborn child and list agencies which of- fer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.

(ii) Medical assistance benefits may be avail- able for prenatal care, childbirth and neonatal care, and  that  more  detailed  information  on  the  avail- ability of such assistance is contained in the printed

947 F.2d 682, *702; 1991 U.S. App. LEXIS 24792, **54

Page 22

materials published by the department.

(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.

(3) A copy of the printed materials has been pro- vided to the woman if she chooses to view these materials.

(4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided.

(b) EMERGENCY.--Where a medical emergency compels the performance of an abortion, the physi- cian shall inform the woman, prior to the abortion if possible,  of the medical indications supporting his judgment that an abortion is necessary to avert her  death  or  to  avert  substantial  and  irreversible impairment of major bodily function.

(c) PENALTY. --  Any physician who violates the provisions  of  this  section  is  guilty  of  "unprofes- sional conduct" and his license for the practice of medicine and surgery shall be subject to suspension or revocation . . . . Any physician who performs or induces an abortion without first obtaining the

certification required by subsection (a)(4) or with knowledge  or  reason  to  know  that  the  informed consent of the woman has not been obtained shall for the first offense be guilty of a summary offense and for each subsequent offense be guilty of a mis- demeanor for the third degree. No physician shall be guilty of violating this section for failure to fur- nish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the 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.

(d) LIMITATION ON CIVIL LIABILITY.--Any physician who complies with the provisions of this section may not be held civilly liable to his patient for failure to obtain informed consent to the abor- tion within the meaning of that term as defined by the act of October 15,  1975 (P.L. 390,  No. 111), known  as  the  Health  Care  Services  Malpractice Act.

**55

947 F.2d 682, *703; 1991 U.S. App. LEXIS 24792, **55

Page 23

*703   1.  Physician-Disclosed Information

Section 3205(a)(1) requires that the referring or per- forming  physician  inform  a  woman  contemplating  an abortion of:  (i) the nature of the abortion procedure and of those risks and alternatives to the procedure or treat- ment that a reasonable patient would consider material to the decision whether or not to obtain an abortion; (ii) the probable gestational age of the fetus; and (iii) the medi- cal risks associated with carrying a child to term. Such a provision can be expected to cause four types of burdens: time delay, higher cost, reduced availability, and forcing the woman to receive information she has not sought. We conclude, however, that none of these potential burdens can be characterized as an undue burden.

The Time required to provide medical risk informa- tion  of  this  kind  is  acknowledged  to  be  insignificant. While  the  district  court  found  that  higher  costs  would

be occasioned by § 3205(a)(1)'s requirement that physi- cians rather than counselors provide this information, the district court did not quantify the increase, and this record would not support a finding of an increase of sufficient size to constitute an absolute obstacle or **56    severe limitation on the abortion right. See Webster, 492 U.S. at

530 (O'Connor, J., concurring); Akron, 462 U.S. at 467,

473 (O'Connor, J., dissenting). Similarly, this requirement will not cause abortion providers to stop providing any or all abortions and, accordingly, will not cause a drastic or severe reduction in the availability of abortion. Finally, the information provided is accurate and necessary for a woman to make an assessment for her abortion decision. Indeed, the record shows that the clinics, without excep- tion, insist on providing this information to women before an abortion is performed. Thus, the "burden" of forcing a woman to listen

947 F.2d 682, *704; 1991 U.S. App. LEXIS 24792, **56

Page 24

*704   to it is not an absolute obstacle or severe limita- tion. In sum, we agree with Justice O'Connor's character- ization of nearly identical requirements in Akron:   HN7  such  requirements  "impose  no  undue  burden  or  drastic limitation on the abortion decision." Akron, 462 U.S. at

472 (O'Connor, J., dissenting).

We   also   have   no   difficulty   concluding   that   §

3205(a)(1)  is  rationally  related  to  a  legitimate  state  in- terest. In Akron, all nine Justices **57   agreed that the state  may  require  a  woman  contemplating  an  abortion to receive information about the nature and risks of the abortion procedure. This type of information "clearly is related  to  maternal  health  and  to  the  State's  legitimate purpose in requiring informed consent." Akron, 462 U.S. at 446. The Court in Akron also found that the state has a legitimate interest in requiring that an abortion provider inform the woman of the probable gestational age of the fetus. Finally, there is nothing irrational about a require- ment that the provider inform the woman of the medi- cal risks of carrying the pregnancy to term since this is obviously  the  only  medical  alternative  to  abortion.  See Thornburgh, 476 U.S. at 830 (O'Connor, J., dissenting)

(such a requirement provides "the kind of balanced infor- mation I would have thought all could agree is relevant to a woman's informed consent"). n16

n16  The  district  court  stressed  that  a  woman who has decided upon an abortion has no need to know about the risk of carrying to term. This misses what we perceive to be the relevant point. The state may rationally require that a woman not move for- ward on a decision to abort without evaluating that decision on an informed basis.

**58

Turning  from  the  content  of  the  required  advice  to the  manner  of  its  presentation,  we  think  it  patent  that a  state  may  rationally  decide  that  physicians  are  better qualified than counselors to impart this information and answer questions about the medical aspects of the avail- able alternatives. While the record contains evidence that counselors at the clinics are often capable of informing

women about the abortion procedure, that is not the is- sue;  the  issue  is  whether  the  state  may  rationally  con- clude  that  physicians  as  a  class  are  better  equipped  to provide such medical information and answer questions about the abortion procedure and the alternative. We be- lieve  the  Commonwealth  could  rationally  so  conclude and, accordingly, that § 3205(a)(1) is a constitutionally valid regulation. Cf.  Williamson v. Lee Optical, 348 U.S.

483, 487, 75 S. Ct. 461, 99 L. Ed. 563 (1955).

2.  Counselor-Disclosed Information

Section 3205(a)(2) requires that a physician or coun- selor  ("any  qualified  agent  of  the  physician")  inform  a woman: (i) that medical assistance benefits may be avail- able for prenatal, childbirth, and neonatal care and that more information about the benefits is available in **59  state-printed materials; (ii) that the father of the child is liable to assist in support of the child (this information is not required to be given in rape cases); and (iii) that the Pennsylvania Department of Health publishes printed ma- terials which describe the fetus at various intervals and list agencies which offer alternatives to abortion and that such materials are available free of charge. n17 Applying the threshold undue burden standard, we conclude that this provision does not cause an undue burden;  in addition, we find it rationally related to a legitimate state interest. Therefore, we uphold it against the clinics' challenge.

n17 Section 3205(a)(3) requires that a copy of these printed materials be available if the woman chooses to see them.

Once again, the time required to provide the required information is minimal. While requiring that a physician or counselor impart this information will add some cost to the pre-abortion procedure at those clinics that do not already  provide  options  counseling,  nothing   **60    in the  record  suggests  that  the  increase  will  be  drastic  or even substantial. Similarly, there is no evidence that any abortion provider will stop providing abortions because of this requirement. Indeed, the record indicates that most clinics already require that a counselor consult in

947 F.2d 682, *705; 1991 U.S. App. LEXIS 24792, **60

Page 25

*705   person with the woman about alternatives to abor- tion before the abortion is performed.

Justice O'Connor stated in Thornburgh that informed consent requirements could constitute an undue burden if the information required to be given was irrelevant,  in- accurate, or inflammatory. See Thornburgh, 476 U.S. at

830-31 (O'Connor, J., dissenting). The information that

§ 3205 requires a physician or counselor to impart is rel- evant, accurate, and non-inflammatory. The information regarding  the  financial  assistance  to  which  the  woman may be entitled is relevant in that it provides a woman with information necessary to make an informed choice. There is nothing on the face of the statute that suggests that  this  information  is  inaccurate.  Nor  do  we  see  any threat that such information is inflammatory. Moreover, the  printed  materials  concerning  the  fetus  and  alterna- tives to abortion **61    are not forced on the woman; the woman is merely told that such information is avail- able to her if she desires it. As Justice O'Connor stated in Thornburgh, "If the materials were sufficiently inflam- matory and inaccurate the fact that the woman must ask to see them would not necessarily preclude finding an un- due burden, but there is no indication that this is true of the description of fetal characteristics or alternatives to abortion  the statute contemplates." Id. at 831 (O'Connor, J., dissenting). For these reasons, we conclude that this provision  causes  nowhere  near  the  kind  of  burden  that must result for a regulation to constitute an undue burden. We further conclude that this provision is rationally related to a legitimate state interest. Roe recognized that the state has a legitimate interest in the potential life of the fetus throughout pregnancy, and a state may rationally conclude that this interest will be served by assuring that a pregnant woman have knowledge of the resources avail-

able to her should she elect to carry to term.

3.  First Amendment Implications of Section 3205(a) The clinics claim that § 3205(a) requires that **62  a physician or counselor act as an instrument for the dis- semination of an ideological message in violation of their

First Amendment rights. We find the argument unpersua- sive.

This case involves commercial speech, and the clin- ics do not dispute this point. The First Amendment lim- its on compelled disclosure requirements for commercial speech were explained by the Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S. Ct. 2265,

85 L. Ed. 2d 652 (1985). n18 There, the Court rejected an attorney's challenge to a state requirement that he in- clude certain information in an advertisement.  The Court stressed that the attorney overlooked "material differences between  disclosure  requirements  and  outright  prohibi- tions on speech." Id. at 650. Disclosure requirements are permissible so long as they are not a state attempt to pre- scribe what is "orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id. at 651. The Court then  held  that  First  Amendment  rights  "are  adequately protected so long as disclosure requirements are reason- ably related **63    to the state's interest in preventing deception of consumers." Id.

n18 The clinics' reliance on Riley v. National

Federation for the Blind, 487 U.S. 781, 108 S. Ct.

2667, 101 L. Ed. 2d 669 (1988), is misplaced. The Court  there  distinguished  its  case,  which  did  not involve commercial speech, from other cases, and stated that "purely commercial speech is more sus- ceptible to compelled disclosure requirements." Id. at 796 n.9.

Here,  none  of  the  information  that  §  3205  requires that physicians and counselors provide, including the in- formation offered in the printed materials, has been shown to be false or unverifiable. It is not an attempt to prescribe an orthodoxy in matters of opinion, and the information involved  is  reasonably  related  to  the  state's  interest  in ensuring  that  women  have  relevant  information  before having an abortion. n19

947 F.2d 682, *706; 1991 U.S. App. LEXIS 24792, **63

Page 26

*706   We thus hold that the informed consent require- ments do not violate the First Amendment.

n19          The          disclosure              required  by            the Pennsylvania  Act  is  similar  to  a  long  list  of regulations   by   state   and   federal   governments designed  to  protect  the  public.  For  example,  the federal   government   requires   warnings   on   all cigarette packages, advertisements, and billboards.

15  U.S.C.  §  1333  (1988).  Federal  law  requires disclosure in the context of securities transactions.

15 U.S.C. § 78j (b) (1988). Pennsylvania requires financial   institutions   to   disclose   rates,   terms, definitions,  and  other  information  in  residential mortgage applications. 41 Pa. Cons. Stat. Ann. §

301(e) (Supp. 1991).

The  clinics'  argument  is  potentially  limitless; there is "no reason why a concern for professional freedom could be confined to the medical profes- sion; nothing in the Constitution indicates a prefer- ence for the liberty of doctors over that of lawyers, accountants, bakers, or brickmakers." Thornburgh,

476 U.S. at 802-03 (White, J., dissenting). Thus, if  this  provision  violated  the  First  Amendment, the above-cited disclosure requirements would pre- sumably also have to fall.

**64

4.  The 24-Hour Waiting Period

Section 3205(a) of the Act requires a mandatory 24- hour  waiting  period  between  the  time  that  the  physi- cian and counselor provide the required information to a woman and the time that a physician performs the abor- tion. The woman's consent to the abortion may be given at any time during that period, including right before the abortion.

As the clinics stress, a 24-hour waiting period may result  in  delays  considerably  longer  than  24  hours  be- cause most clinics do not perform abortions every day of the week. Moreover, such a waiting period may require a woman to make two visits to a clinic rather than one. Where  the  woman  has  no  clinic  immediately  available and must travel to obtain an abortion, this means that the overall cost of an abortion to her may increase by a sig- nificant percentage. And as the district court pointed out, the burden of an additional trip to the clinic falls most heavily  on  battered  wives  who  often  find  it  difficult  to free themselves of their husband's surveillance.

Despite these adverse consequences from the 24-hour waiting period, however, we conclude that this require- ment does not constitute an undue burden. In Hodgson, the **65   Supreme Court concluded that a two-parent

notification requirement with a judicial bypass was ratio- nally related to a legitimate state interest and, therefore, was constitutional. Justice O'Connor noted that the Court had "explicitly approved judicial bypass as a means of tai- loring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion."

110 S. Ct. at 2950 (O'Connor, J., concurring). The Court reached this conclusion despite the trial court's findings that "scheduling practices in Minnesota courts typically require minors to wait two or three days between their first contact with the court and the hearing on their petitions" and that this delay "may combine with other facts to result in a delay of a week or more." Hodgson v. Minnesota, 648

F. Supp. at 763 (1986).

Given  the  Court's  conclusion  in  Hodgson  that  the length of the delays and the increased costs occasioned by the judicial bypass did not impose an undue burden on the right to an abortion or otherwise require strict scrutiny, we decline to reach a different result with respect to the Commonwealth's imposition of a 24-hour delay for con- sidering **66   the information required by the informed consent requirements.  n20

n20 In Akron, the Supreme Court invalidated an Ohio statute that required a 24-hour delay so that the "woman's decision would  be informed." 462

U.S. at 450. The Court reached this result applying strict scrutiny, however, and as we have explained, we are not bound by the result in Akron if, as we conclude,  the  Commonwealth's  24-hour  waiting period  imposes  no  undue  burden.  While  Justices Stevens and O'Connor in Hodgson viewed Akron's

24-hour waiting period for an adult as less justified by the state's interest than a 48-hour waiting period for a minor after notification of a parent, 110 S. Ct. at 2944 n.35, nothing said in Hodgson on suggests to  us  that  the  Commonwealth's  24-hour  waiting period  is  an  undue  burden.  As  Justice  O'Connor stressed  in  Hodgson,  the  Court  has  consistently viewed  judicial  bypass  provisions  as  a  means  of avoiding an undue burden and, it necessarily fol- lows that the time required to pursue such a bypass cannot constitute one. That time varies depending on the statute involved, but necessarily involves at least several days. The judicial bypass approved in Planned Parenthood v. Ashcroft, 462 U.S. 476, 477 n.4, 491 n.16, 103 S. Ct. 2517, 76 L. Ed. 2d 733

(1983), could require 17 calendar days; the bypass approved in Ohio v. Akron Center for Reproductive Health,  497 U.S. 502, 110 S. Ct. 2972,  2980-81,

111 L. Ed. 2d 405 (1990), could require 14 days.

**67

947 F.2d 682, *707; 1991 U.S. App. LEXIS 24792, **67

Page 27

*707  Accordingly, we now inquire whether the 24-hour waiting period passes rational basis. n21 All parties agree that choosing to have an abortion is an important decision.

HN8  The state's interest in ensuring that such a decision is both informed and well-considered is rationally related to the state's legitimate interest in the life and health of the mother as well as its interest in the potential life of the fetus. The waiting period "reasonably relates to the State's interest in ensuring that a woman does not make this serious decision in undue haste." Akron, 462 U.S. at

474 (O'Connor, J., dissenting).

n21 The Court in Akron in striking down a sim- ilar 24-hour waiting period occasionally used lan- guage  similar  to  that  of  rational  basis  review  in considering the relationship between a waiting pe- riod and maternal health. However, we believe that the Court's level of review in Akron for all abor- tion regulations was strict scrutiny. See Akron, 462

U.S. at 428-31 (outlining Roe standard); Hodgson,

110 S. Ct. at 2952 (Marshall,  J.,  dissenting) (cit- ing Akron in stating, "we have subjected state laws limiting that right to the most exacting scrutiny, re- quiring a State to show that such a law is narrowly drawn to serve a compelling state interest").

**68

In sum, we believe the waiting period is "a small cost to impose to ensure that a woman's decision is well consid- ered in light of its certain and irreparable consequences on fetal life, and the possible effects on her own." Akron, 462

U.S. at 474 (O'Connor, J., dissenting). We fully recognize that  many  women  contemplating  an  abortion  will  have seriously  considered  their  decision  before  the  required consultations  with  physician  and  counselor  take  place. The waiting period may not for those women serve any purpose. But the wait does not prevent any woman from having an abortion, and the possible overinclusiveness of the provision does not render it irrational, especially given the serious and irreversible consequences of a hasty and ill-considered abortion decision.

C.  Parental Consent with Judicial Bypass

For women under 18 who desire an abortion, § 3206 of the Act requires the informed consent of at least one parent, but provides a judicial bypass option if a woman does not wish to or cannot obtain a parent's consent.  n22

n22 Section 3206 of the Act provides in part:

(a) GENERAL RULE.--Except in the case of a medical emergency, or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated, or if she has been ad-

judged an incompetent . . ., a physician shall not perform an abortion upon her unless, in the case of a woman who is less than 18 years of age, he first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is incompetent, he first obtains the informed consent of her guardian.

. . .

(c) PETITION TO COURT FOR CONSENT.-- If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall,  upon petition or motion,  after an appropri- ate hearing,  authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.

(d) COURT ORDER.--If the court determines that the pregnant woman is not mature and capa- ble of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall deter- mine whether the performance of an abortion upon her would be in her best interests. If the court deter- mines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.

. . .

(f) PROCEEDINGS.--

(1) Court proceedings under this section shall be confidential and shall be given such precedence over other pending matters as will ensure that the court may reach a decision promptly and without delay in order to serve the best interests of the preg- nant woman. In no case shall the court of common pleas fail to rule within three business days of the date of application. A court of common pleas which conducts proceedings under this section shall make in writing specific factual findings and legal con- clusions supporting its decision and shall, upon the initial filing of the minor's petition for judicial au- thorization  of  an  abortion,  order  a  sealed  record of the petition, pleadings, submissions, transcripts, exhibits, orders, evidence and any other written ma- terial to be maintained which shall include its own findings and conclusions.

947 F.2d 682, *707; 1991 U.S. App. LEXIS 24792, **68

Page 28

. . .

(3) The name of the pregnant woman shall not be entered on any docket which is subject to pub- lic inspection. All persons shall be excluded from hearings under this section except the applicant and such other persons whose presence is specifically requested by the applicant or her guardian.

. . .

(h) REGULATION OF PROCEEDINGS.--

. . . Any court to which an appeal is taken un- der this section shall give prompt and confidential attention thereto and shall rule thereon within five business days of the filing of the appeal.

. . .

(i) PENALTY.--Any person who performs an abortion upon a woman who is an unemancipated minor or incompetent to whom this section applies either  with  knowledge  that  she  is  a  minor  or  in- competent  to  whom  this  section  applies,  or  with reckless disregard or negligence as to whether she is  a  minor  or  incompetent  to  whom  this  section applies, and who intentionally, knowingly or reck- lessly fails to conform to any requirement of this section is guilty of "unprofessional conduct" and his license for the practice of medicine and surgery shall be suspended . . . for a period of at least three months.

**69

947 F.2d 682, *708; 1991 U.S. App. LEXIS 24792, **69

Page 29

*708    An absolute parental consent requirement with no exceptions would cause an undue burden on a minor woman's abortion decision because it would impose an absolute veto and take the decisionmaking power from the woman contemplating an abortion. Cf.  Hodgson, 110

S. Ct. at 2949-50 (O'Connor, J., concurring); Akron, 462

U.S. at 464 (O'Connor, J., dissenting). The Pennsylvania statute, however, provides a judicial bypass option, and the Supreme Court, including Justice O'Connor, has con- sistently held that any undue burden caused by a parental notification or consent statute is alleviated if it provides a judicial bypass option that comports with the require- ments outlined in Bellotti v. Baird,  443 U.S. 622,  663-

64,  99  S.  Ct.  3035,  61  L.  Ed.  2d  797  (1979)  ("Bellotti II"). See Hodgson, 110 S. Ct. at 2950-51 (O'Connor, J., concurring); id. at 2970 (opinion of Kennedy, J.); Ohio,

110 S. Ct. at 2978-81; see also Planned Parenthood v. Miller, 934 F.2d 1462, 1475-82 (11th Cir. 1991). Thus, so long as an adequate judicial bypass **70   procedure existed,  the  Court  has  upheld  many  different  forms  of parental  consent  and  parental  notification  laws,  includ- ing two-parent consent and two-parent notification. See Bellotti II, 443 U.S. at 643 ("We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained."); Hodgson, 110 S. Ct. at 2970 (opinion of Kennedy, J.) ("The simple fact is that our decision in Bellotti II stands for the proposition that a two-parent consent law is constitutional if it provides for a sufficient judicial bypass alternative.").  n23

n23  The  district  court  held  that  the  require-

ment  of  "informed"  parental  consent  would  ne- cessitate in-person parental consent. We need not decide  whether  that  is  correct,  for  any  burden caused by one-parent, in-person consent is surely no more than that caused by two-parent consent, cf.  Hodgson, 110 S. Ct. at 2970; and the Supreme Court has held that a judicial bypass option allevi- ates the undue burden caused by two-parent con- sent requirements.

**71

Bellotti II set out the constitutional requirements for a bypass procedure that the Court has followed in a number of subsequent cases:

A  pregnant  minor  is  entitled  in  such  a proceeding  to  show  either:   (1)  that  she  is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her par- ents'  wishes;  or  (2)  that  even  if  she  is  not able to make this decision independently, the desired abortion would be in her best inter- ests. The proceeding in which this showing is made must assure that a resolution of the is- sue, and any appeals that may follow, will be completed with anonymity and sufficient ex- pedition to provide an effective opportunity for an abortion to be obtained.

Bellotti II, 443 U.S. at 622.

947 F.2d 682, *709; 1991 U.S. App. LEXIS 24792, **71

Page 30

*709    The Pennsylvania Act's bypass procedure com- plies  with  each  of  the  four  requirements  set  forth  in Bellotti  II.  Under  §  3206,  if  a  minor  woman  does  not wish to or cannot obtain the consent of a parent, she may file a motion or petition with the court of common pleas in the district where she lives or in which the abortion is sought. A judge of the court of common pleas must hold a  hearing,   **72    at  which  the  woman  has  a  right  to court-appointed counsel. At the hearing, the judge must determine if the woman is mature and able to make her own decision and has in fact consented to the abortion. If so, the judge must allow the abortion. Furthermore, if the  judge  finds  that  the  woman is  not  mature  and  able to make her own decision,  the judge must decide if an abortion would nevertheless be in her best interests. 18

Pa. Cons. Stat. Ann. § 3206 (c)-(d) (1983 & Supp. 1991). This  statutory  language  mirrors  the  Bellotti  II  require- ments for the factors that must guide a judge in making this decision.

In accordance with Bellotti II, the statute requires that the  proceedings  be  confidential.  Id.  §  3206(f).  Initials must be used to identify the woman in all documents. The hearing before the common pleas judge must be closed, and the appeals procedure must also be confidential. The record of the proceedings must be sealed.

Section 3206 also meets the promptness requirement of Bellotti II. Section 3206 requires that the court hold the hearing and render a decision within three business days of the application by the woman. The woman has a right to appeal to the Superior **73  Court if the court of com- mon pleas does not grant her permission. The Superior Court decision must be rendered within five business days of the filing of an appeal. Id. § 3206 (f), (h). This entire procedure should last no longer than eight business days. In Ohio, the Supreme Court upheld Ohio's bypass proce- dure, which required the trial court to make its decision within five business days and required the court of appeals to decide within nine days after the filing of a notice of appeal.  110 S. Ct. at 2980. The Pennsylvania statute re-

quires a quicker decision than did Ohio's, and the Supreme Court held that Ohio's procedure was sufficiently prompt. The  Commonwealth's  bypass procedure  thus  meets the Bellotti II requirements and alleviates the undue burden that would be caused by a parental consent statute with no judicial bypass. Cf.  Glick v. McKay, 937 F.2d 434 (9th Cir. 1991) (striking down parental consent statute because bypass provision did not specify time in which judge had to render decision).

We further conclude that requiring parental consent in combination with a judicial bypass procedure passes ra- tional **74   basis review. It is not irrational for the state to require adult guidance for a minor woman, eleven or twelve years old in some cases, see 744 F. Supp. at 1343, in deciding whether to obtain an abortion. See Hodgson,

110 S. Ct. at 2950-51 (O'Connor, J., concurring); Ohio,

110 S. Ct. at 2983-84; H.L. v. Matheson, 450 U.S. 398,

411, 101 S. Ct. 1164, 67 L. Ed. 2d 388 (1981); Bellotti

II, 443 U.S. at 634-37, 640-41; Danforth, 428 U.S. at 91

(Stewart, J., concurring). D.  Spousal Notice

Next, we address the issue in this case that presents the most difficult application of the undue burden standard. Section 3209 of the Act requires that, before a physician may perform an abortion on a married woman, the woman must sign a statement that she has notified her husband of her intended abortion. The Commonwealth is to provide the forms for these statements, and each form must bear a notice that false statements are punishable by law. Besides the standard medical emergency exception, § 3209 con- tains four other important exceptions. A   **75   woman is not required to notify her husband if:  (1) her husband is  not  the  father;  (2)  her  husband,  after  diligent  effort, cannot be located; (3) the pregnancy is a result of spousal sexual assault which has been reported to a law enforce- ment agency; or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury by her spouse or by another

947 F.2d 682, *710; 1991 U.S. App. LEXIS 24792, **75

Page 31

*710    individual.   n24 If the woman provides a false statement  on  the  form,  she  may  be  liable  for  a  misde- meanor of the third degree. Any physician who performs an abortion without complying with this section may be subject to civil penalties.

n24 Section 3209 of the Act states:

(a) SPOUSAL NOTICE REQUIRED.--In or- der to further the Commonwealth's interest in pro- moting the integrity of the marital relationship and to  protect  a  spouse's  interests  in  having  children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in  subsections  (b)  and  (c),  unless  he  or  she  has received a signed statement, which need not be no- tarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The state- ment  shall  bear  a  notice  that  any  false  statement made therein is punishable by law.

(b) EXCEPTIONS.--The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman pro- vides the physician a signed statement certifying at least one of the following:

(1) Her spouse is not the father of the child.

(2) Her spouse, after diligent effort, could not be located.

(3)  The  pregnancy  is  a  result  of  spousal  sex- ual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.

Such statements need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.

(c)  MEDICAL  EMERGENCY.--The  require- ments of subsection (a) shall not apply in the case of a medical emergency.

. . .

(e) PENALTY; CIVIL ACTION.--Any physi- cian who violates the provisions of this section is guilty of "unprofessional conduct," and his or her

license  for  the  practice  of  medicine  and  surgery shall be subject to suspension or revocation. . . . In addition, any physician who knowingly violates the provisions of this section shall be civilly liable to the spouse who is the father of the aborted child for any damages caused thereby and for punitive dam- ages in the amount of $5,000, and the court shall award a prevailing plaintiff a reasonable attorney fee as part of costs.

**76

First, we must consider whether § 3209 imposes an undue burden on the woman's abortion decision. At this point, it is important to emphasize that we do not consider the countervailing interest of the husband;  we consider only the burden imposed on the woman. After we conduct this threshold analysis, as we must, then we will address the Commonwealth's interest in furthering the husband's interest.

A spousal notice requirement does not cause a drastic or severe time delay, increase in costs, or decrease in the number of abortion providers. Nor does it give a state- sanctioned veto power over the woman's abortion deci- sion to another person. But as Justice O'Connor noted in Hodgson,  a  provision  requiring  a  woman  to  notify  an- other person before obtaining an abortion can impose an undue burden in two other ways. First, the act of finding the  person  to  whom  notice  must  be  given  may  consti- tute an undue burden. In Hodgson,  so many parents in Minnesota were divorced that it would have been a great burden in many cases for the child to track down the other parent. This is not a problem with the Commonwealth's spousal notification requirement, however, since it allows a woman **77   to certify that her husband, after diligent effort,  could not be notified. Second,  the giving of no- tice and the consequences thereof may constitute a severe limitation on the woman's abortion decision. The notified person, for example, may effectively prevent the abortion or may severely penalize the woman in other ways if she exercises her right to obtain an abortion. Cf.   Hodgson,

110 S. Ct. at 2939. Such consequences were found to con- stitute undue burdens on a woman's right to an abortion in both Bellotti II and Hodgson.

In Bellotti v. Baird ("Bellotti I") 428 U.S. 132, 145, 96

S. Ct. 2857, 49 L. Ed. 2d 844 (1976), the Court noted that one proffered interpretation of the Massachusetts statute requiring parental consent would allow minor women to obtain  permission  for  abortion  in  a  bypass  proceeding, thus avoiding the "undue burden" caused by forced "con- sultation."  Then,  in  Bellotti  II,  the  Court  held  that  the statute did not meet constitutional standards because, as construed by the courts of Massachusetts,

947 F.2d 682, *711; 1991 U.S. App. LEXIS 24792, **77

Page 32

*711   the bypass procedure was available only after the minor  had  notified,  and  unsuccessfully  sought  consent from, her parents. The Court **78   concluded:

We think that, construed in this manner,

§ 12S would impose an undue burden upon the exercise by minors of the right to seek an abortion.  As the District  Court  recognized,

"there are parents who would obstruct, and perhaps altogether prevent, the minor's right to  go  to  court."  Baird  III,  450  F.  Supp.  at

1001. There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those liv- ing  at  home,  are  particularly  vulnerable  to their parents' efforts to obstruct both an abor- tion and their access to court.

Bellotti II, 443 U.S. at 647.

In Hodgson,  the Court rejected a two-parent notice requirement that did not provide a judicial bypass option. As we have noted, Justice O'Connor, the fifth vote neces- sary for the majority, found that a two-parent notification requirement was an "undue burden" on the abortion de- cision.   110 S. Ct. at 2950. n25 Justice Stevens, writing for a majority of the Justices, including Justice O'Connor, described the burden **79    imposed by the notice re- quirement in the following terms:

The  record  reveals  that  in  the  thousands of  dysfunctional  families  affected  by  this statute,  the  two-parent  notice  requirement proved positively harmful to the minor and her family. The testimony at trial established that this requirement, ostensibly designed for the  benefit  of  the  minor,  resulted  in  major trauma  to  the  child,  and  often  to  a  parent as well. In some cases, the parents were di- vorced  and  the  second  parent  did  not  have custody or otherwise participate in the child's upbringing. App. 244-245; id. at 466; Id., at

115. In these circumstances,  the privacy of the parent and child was violated, even when they suffered no other physical or psycholog- ical  harm.  In  other  instances,  however,  the second parent had either deserted or abused the  child,  id.  at  462,  464,  had  died  under tragic circumstances, id. at 120-121, or was

not notified because of the considered judg- ment that notification would inflict unneces- sary stress on a parent who was ill. Id. at 204,

465.

* * *

The most common reason for not notifying the second parent was that that parent was a child or spouse-batterer, App. at 204, and no- tification would have provoked further abuse.

Hodgson, 110 S. Ct. at 2945 & n.36.

n25 Judge Alito disagrees with our interpreta- tion  of  Justice  O'Connor's  application  of  the  un- due  burden  standard  in  Hodgson.  We  agree  with Judge Alito that Part I of Justice O'Connor's opin- ion  in  Hodgson  is  ambiguous;  however,  Part  II clarifies her reasoning. As we noted above, Justice O'Connor in Part II of her opinion in Hodgson ex- plained that the Court often had approved parental consent and notice provisions that contained a by- pass option because a bypass option tailors a con- sent or notice statute "so as to avoid unduly bur- dening" the abortion right.  Hodgson, 110 S. Ct. at

2950 (O'Connor, J., concurring). Justice O'Connor thus found constitutional the Minnesota statute that contained the bypass option. If a bypass procedure renders  a  parental  notice  provision  constitutional because it alleviates the undue burden of the no- tice requirement, we think it follows that a parental notice requirement without the bypass option con- stitutes an undue burden.

**80

The Supreme Court has thus been attuned to the real- world consequences of forced notification in the context of minor child/parent relationships and has found an un- due burden to exist where there is a realistic likelihood either  of  parents  preventing  the  abortion  or  of  parents causing serious physical or psychological trauma for the pregnant child. In this case,  we conclude that the real- world consequences of forced notification in the context of wife/husband relationships impose similar kinds of un- due burdens on a woman's right to an abortion.

Most  married  women  will  discuss  the  abortion  de- cision with their husbands. As Justice Stevens noted in Hodgson, a notification

947 F.2d 682, *712; 1991 U.S. App. LEXIS 24792, **80

Page 33

*712   requirement is unnecessary and serves no state in- terest in those instances.  110 S. Ct. at 2945. The relevant burdens to be assessed are those imposed by § 3209 on women who would choose not to notify their husbands in the absence of state compulsion **81   to do so.

The  district  court  found  that  §  3209's  notification requirement  creates  a  substantial  risk  that  women  who would otherwise have an abortion will be prevented from having one. Abortion is a matter about which individu- als have deeply held and strongly felt convictions, often rooted in moral or religious commitment. In those situa- tions where a husband is sufficiently opposed to abortion or sufficiently desirous of having a child that the wife will not voluntarily share the fact of her pregnancy and her intention to abort with him, the clinics' experts testified that coerced notification will predictably result in an ef- fort to prevent the abortion. That testimony showed that the husband's response will frequently take a variety of forms other than persuasive discourse.

Many  husbands  are  capable  of  violence  in  circum- stances of this kind and will use physical force and the threat thereof to keep the wife from access to the clinic. But physical force is not the only means at the disposal of  a  husband  who  seeks  to  prevent  an  abortion.  In  the numerous households where the husband alone holds the economic power, the wife is in as vulnerable a position as the pregnant minor discussed **82    in Bellotti II. The husband can simply decline to pay for the abortion and/or threaten to withhold future economic support unless the woman decides to forego the abortion. Finally, the record reveals that the forms of effective psychological coercion available to a husband are potentially unlimited and in- clude the ultimate threat of a dissolution of the marriage. One  form  of  psychological  coercion  warrants  spe- cial note because of the potential toll it may take on the wife  and  its  resulting  effectiveness  as  a  deterrent.  We have  often  spoken  about  the  value  placed  by  our  soci- ety on the right of each individual to privacy concerning

personal  health  information.  See,  e.g.,  United  States  v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.

1980); see also Whalen v. Roe, 429 U.S. 589, 599-600,

97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). The only thing we can think of more personal and intimate than the fact that one is carrying a child is the fact that one intends to seek an abortion. When the state forces spousal notification on a wife in a seriously troubled marriage, or even a wife in an untroubled marriage with a husband unalterably op- posed to abortion,   **83   it compels disclosure of very intimate information with no assurance of confidentiality to someone highly motivated to make a public disclosure. As the district court found, the threat of exposure of the abortion decision to family, friends, and the community at large is likely to be a very substantial deterrent to a woman's pursuing her decision to abort.

Prevention of a planned abortion is not the only fore- seeable  consequence  of  coerced  notification,  however. Even if the woman is not deterred from pursuing an abor- tion,  the same arsenal of physical,  economic,  and psy- chological abuse is available to the notified husband to penalize the wife for exercising her constitutionally be- stowed right. Nor is the effect of § 3209 limited to those situations in which the wife gives notice pursuant to the statute. Just as the principal power of Damocles' sword is  in  its  hanging  rather  than  its  fall,  the  primary  effect of § 3209 may well be on those women who desire an abortion but who choose to carry to term because of the feared consequences of giving notice to their husbands. The  Pennsylvania  legislature  has  not  been  unmind- ful of the burdens imposed on pregnant wives by § 3209 and has attempted **84    to ease or avoid a number of them by including exceptions. Section 3209, for example, speaks to the dilemma of a woman who "has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A woman with such a fear may avoid notification by certifying her fear to her physician on a form provided by the Commonwealth.

947 F.2d 682, *713; 1991 U.S. App. LEXIS 24792, **84

Page 34

*713   While ameliorative, this exception does not save

§ 3209 from being unduly burdensome in the constitu- tional  sense.  The  district  court  found,  with  appropriate record support, that battered spouses are psychologically incapacitated from making the assertion required by the statute even when there is ample objective basis for the required fear. Many other women who have never before been the victims of "bodily injury" at the hands of their husband, may subjectively fear that notice may occasion

"the first time," but conclude that they lack the requisite

"reason to believe." Moreover, it is not clear to us that the

"fear of bodily injury" exception was intended to aid those women whose access to an abortion is blocked by phys- ical constraints or who reasonably fear physical **85  abuse and the attendant suffering,  but cannot conscien- tiously  represent  that  injury  to  their  bodies  is  likely  to occur.

If physical violence were the only burden reasonably predictable from coerced spousal notification we might be inclined in this facial challenge to hold that the fear of bodily injury exception was sufficient to avoid an undue burden, at least until the effects of the Act in practice are known. But as we have previously stressed, physical vio- lence is not the only burden reasonably predictable. The record reveals and the district court found that if § 3209 is allowed to go into effect, abortions can and will be pre- vented by economic and psychological duress and wives can  and  will  be  penalized  by  such  duress  for  electing abortions.

One other of § 3209's exceptions warrants comment in  our  assessment  of  the  burdens  imposed  by  that  sec- tion. The record demonstrates and the district court found that many women consent to sexual intercourse with their husbands solely to avoid greater physical or psycholog- ical  abuse.  Section  3209  provides  that  when  a  child  is conceived in the course of coerced sex, notification need not be given, if, but only if, the wife reports her **86  husband to law enforcement authorities having jurisdic- tion over the matter. While this limitation on the exception is understandably imposed to discourage misrepresenta- tions at the time an abortion is sought, its motivation does not ease the impact of the notification requirement on a woman who finds herself pregnant as a result of a sexual

assault by her spouse. Given the devastating effect that a report to law enforcement authorities is likely to have on the marital relationship and the economic support pro- vided the wife by the marriage, we believe it would be unrealistic to find that such a woman's right to choose an abortion is not severely burdened by § 3209. Cf. Hodgson,

110 S. Ct. at 2950 (O'Connor, J., concurring).

Because of the nature of the marriage relationship and the emotional character of human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from noti- fying their husbands is potentially limitless. n26 Because fear  of  those  consequences  is  likely  to  dissuade  many from seeking an abortion if such notification is required and because the consequences themselves are **87   an undue burden, we hold that § 3209 constitutes an undue burden on a woman's abortion decision.

n26  The  district  court's  list  of  situations  in which  spousal  notification  is  likely  to  cause  dire consequences  for  the  women  include,  inter  alia: women  who  reasonably  fear  retaliatory  psycho- logical  abuse;   women  who  reasonably  fear  re- taliatory physical or psychological abuse of their children;  women  who  are  separated  following  a failed marriage relationship and for whom renewal of contact may produce severe emotional distress; women whose husbands have serious health prob- lems and who reasonably fear that notification will be health threatening; and women whose marriages are severely troubled and who reasonably fear that notice will precipitate the demise of the marital re- lationship.  744 F. Supp. at 1386 n.42.

Accordingly,  we  must  apply  strict  scrutiny  to  de- termine  if  §  3209  is  narrowly  tailored  to  serve  a  com- pelling state interest. Section 3209 expressly states that the  spousal  notice  requirement   **88     is  designed  to further  three  state  interests:   promoting  the  integrity  of the marital relationship, protecting a spouse's interests in having children within marriage, and protecting a spouse's interest in the prenatal life of that spouse's child.

947 F.2d 682, *714; 1991 U.S. App. LEXIS 24792, **88

Page 35

*714   We turn first to marital integrity. It is not entirely clear what the Commonwealth means when it speaks of the integrity of a marriage. If the interest is in honesty and full disclosure between married individuals, Hodgson in- dicates  that  this  interest  does  not  rise  to  the  level  of  a legitimate state interest, much less a compelling one. In the course of striking down Minnesota's two-parent no- tice requirement without a judicial bypass, Justice Stevens there wrote for a majority of the court:

The State does not rely primarily on the best interests of the minor in defending this statute.  Rather,  it  argues  that,  in  the  ideal family,  the  minor  should  make  her  deci- sion only after consultation with both parents who should naturally be concerned with the child's welfare and that the State has an in- terest in protecting the independent right of the parents "to determine and strive for what they  believe  to  be  best  for  their  children." Minn.Br.   **89    26. Neither of these rea- sons can justify the two-parent notification requirement.  The  second  parent  may  well have an interest in the minor's abortion deci- sion, making full communication among all members of a family desirable in some cases, but such communication may not be decreed by the State. The State has no more interest in requiring all family members to talk with one another than it has in requiring certain of them to live together. . . . A  state interest in standardizing its children and adults, making the "private realm of family life" conform to some state-designed ideal, is not a legitimate state interest at all.

Hodgson, 110 S. Ct. at 2946.

If  the  state's  alleged  interest  in  the  integrity  of  the marriage refers to the state's interest in keeping married individuals  together  in  wedlock,  we  agree  that  this  is a  legitimate  state  interest.  It  is  not  an  interest  that  the Supreme Court has recognized as a compelling one, how- ever. Moreover, even if we were to assume that it does constitute a compelling state interest, we could not con-

clude that the Commonwealth has carried its burden of demonstrating that § 3209 is narrowly tailored to promote

**90    that interest. As we have noted, the only effect of § 3209 is to require notice in those instances in which the wife would not otherwise share with her husband the fact of the pregnancy and her intention to abort. In such situations,  an  across-the--board  requirement  of  coerced disclosure is an altogether arbitrary approach to a diffi- cult and complex problem of human relations. Nothing in this record suggests that replacing the wife's judgment regarding disclosure with such an arbitrary rule will save more marriages than it destroys.

The Commonwealth asserts that § 3209 furthers its interests in furthering the husband's interest both in hav- ing children within the marriage and in the fetus. To the extent that these interests are distinct, the abstract interest in having children within the marriage is not more sub- stantial than the interest in the fetus. Therefore, we will now turn to the most difficult issue:  the state's interest in furthering the husband's interest in the individual fetus. In Danforth, in discussing a spousal consent requirement, the Court recognized the state's legitimate interest in the husband's interest in the fetus. Justice Blackmun for the Court stated **91   that the Court was "not unaware" of the "deep and proper concern and interest" that a husband has in his wife's pregnancy and in the growth and devel- opment of the fetus she is carrying.  Danforth, 428 U.S. at 69. Nevertheless,  the Court struck down the spousal consent requirement in Danforth, finding that the state's interest in supporting the husband's interest in the fetus was insufficient to override the wife's right to an abortion:

Notwithstanding  these  factors,  we  cannot hold that HN9  the State has the constitu- tional authority to give the spouse unilater- ally the ability to prohibit the wife from ter- minating her pregnancy, when the State itself lacks that right. See Eisenstadt v. Baird, 405

U.S. 438, 453, 92 S. Ct 1029, 31 L. Ed. 2d

349 (1972).

* * *

As the Court recognized in Eisenstadt v. Baird, "the marital couple is not an

947 F.2d 682, *715; 1991 U.S. App. LEXIS 24792, **91

Page 36

*715    independent entity with a mind and heart of its own,  but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individ- ual, married or single, to be free from unwar- ranted governmental intrusion into matters so  fundamentally  affecting  a  person as  the decision whether to bear or beget a child."

405 U.S. at 453 **92    (emphasis in origi- nal).

Danforth, 428 U.S. at 70 & n.11. Danforth can be read to stand for the proposition that the state's interest in pro- tecting a husband's interest in a previable fetus within his marriage is not a compelling one. It must be read at least to  hold  that  that  interest  must  yield  to  the  wife's  right to have an abortion. Thus, the state cannot vindicate the husband's interest in a fetus, and § 3209 was enacted with that realization.

Section 3209, despite its preamble, does not protect the husband's interest in the fetus; under Danforth, as we have noted, a state statute cannot constitutionally protect that interest. HN10  What § 3209 seeks to preserve for the husband is something considerably more modest: the possibility of participating in a decision his wife is con- stitutionally privileged to make on her own for her own reasons. While promoting the possibility of spousal par- ticipation is undoubtedly a legitimate state interest,  we conclude  in  light  of  Danforth  that  it  is  not  the  kind  of compelling  state  interest  that  can  justify  the  very  sub- stantial burdens imposed by § 3209 on the wife's right to choose an abortion.

In sum,   **93    we hold that § 3209 is unconstitu- tional because it imposes an undue burden on a woman's abortion decision and does not serve a compelling state interest. n27

n27 Our conclusion that § 3209 is unconstitu- tional  does  not  prevent  the  Commonwealth  from putting into effect the rest of the Act's provisions. The  Act  contains  a  broad  severability  provision.

"The  provisions  of  this  act  are  severable.  If  any word,  phrase  or  provision  of  this  act  or  its  ap- plication  to  any  person  or  circumstance  is  held invalid,  the  invalidity  shall  not  affect  any  other word, phrase or provision or application of this act which can be given effect without the invalid word, phrase, provision or application." Act of November

17,  1989,  1989  Pa.  Laws  592,  No.  64,  §  6.  In addition,  Pennsylvania  has  a  general  severability statute. 1 Pa. Cons. Stat. Ann. § 1925 (Supp. 1991). Severability  is  a  question  of  state  law.   Davis  v. Michigan  Dept.  of  Treasury,  489  U.S.  803,  818,

109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989). Because the remainder of the Act may be given effect with- out § 3209, we conclude that § 3209 may be severed from the Act in accordance with Pennsylvania law.

**94

E. Confidential Medical Reports

An  abortion  provider  must  file  a  report  with  the Department of Health for every abortion performed at its facility. 18 Pa. Cons. Stat. Ann. § 3214(a) (1983 & Supp.

1991). Each report must include a variety of information about the abortion. n28 Because

947 F.2d 682, *716; 1991 U.S. App. LEXIS 24792, **94

Page 37

*716    these reports are not open for public inspection and are subject to various safeguards against disclosure, id. § 3214(b), the district court concluded--and the clinics do not challenge the conclusion--that the Commonwealth had  adequately  assured  the  confidentiality  of  these  re- ports.

n28 The relevant text of § 3214 HN11  pro- vides:

(a) GENERAL RULE.--For the purpose of pro- motion  of  maternal  health  and  life  by  adding  to the sum of medical and public health knowledge through  the  compilation  of  relevant  data,  and  to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion per- formed shall be made to the department on forms prescribed by it. The report forms shall not identify the individual patient by name and shall include the following information:

(1)  Identification  of  the  physician  who  per- formed  the  abortion,  the  concurring  physician as required by section 3211(c)(2) (relating to abortion on unborn child of 24 or more weeks gestational age), the second physician as required by section

3211(c)(5) and the facility where the abortion was performed and of the referring physician,  agency or service, if any.

(2) The county and state in which the woman resides.

(3) The woman's age.

(4) The number of prior pregnancies and prior abortions of the woman.

(5) The gestational age of the unborn child at the time of the abortion.

(6)  The  type  of  procedure  performed  or  pre- scribed and the date of the abortion.

(7)   Pre-existing   medical   conditions   of   the woman which would complicate pregnancy, if any, and, if known, any medical complication which re- sulted from the abortion itself.

(8) The basis for the medical judgment of the physician who performed the abortion that the abor- tion was necessary to prevent either the death of the  pregnant  woman  or  the  substantial  and  irre- versible impairment of a major bodily function of the woman, where an abortion has been performed pursuant to section 3211(b)(1).

(9) The weight of the aborted child for any abor- tion performed pursuant to section 3211(b)(1).

(10) Basis for any medical judgment that a med- ical emergency existed which excused the physi- cian  from  compliance  with  any  provision  of  this chapter.

(11)  The  information  required  to  be  reported under section 3210(a) (relating to determination of gestational age).

(12) Whether the abortion was performed upon a married woman and, if so, whether notice to her spouse was given. If no notice to her spouse was given, the report shall also indicate the reason for failure to provide notice.

(b) COMPLETION OF REPORT.--The report shall be completed by the hospital or other licensed facility, signed by the physician who performed the abortion and transmitted to the department within

15 days after each reporting month.

. . .

(i) PENALTIES.--

(1) Any person required under this section to file a report, keep any records or supply any infor- mation, who willfully fails to file such report, keep such records or supply such information at the time or times required by law or regulation is guilty of

"unprofessional  conduct"  and  his  license  for  the practice of medicine and surgery shall be subject to suspension or revocation in accordance with pro- cedures provided under the act of October 5, 1978

(P.L.  1109,  No.  261),  known  as  the  Osteopathic

Medical Practice Act, the act of December 20, 1985

(P.L. 457, No. 112), known as the Medical Practice

Act of 1985, or their successor acts.

(2) Any person who willfully delivers or dis- closes to the department any report, record or in- formation  known  by  him  to  be  false  commits  a misdemeanor of the first degree.

(3) In addition to the above penalties, any per- son, organization or facility who willfully violates any of the provisions of this section requiring re- porting shall upon conviction thereof:

(i) For the first time, have its license suspended for a period of six months.

(ii) For the second time,  have its license sus- pended for a period of one year.

(iii) For the third time, have its license revoked.

18 Pa. Cons. Stat. Ann. § 3214(a), (i) (1983 & Supp.

1991).

947 F.2d 682, *716; 1991 U.S. App. LEXIS 24792, **95

Page 38

**95

In Danforth, the Court held that HN12  recordkeep- ing and reporting requirements are permissible so long as they are not used to accomplish "through the sheer burden of recordkeeping detail, what the Court has  held to be an otherwise unconstitutional restriction," and so long as the reports are confidential.   Danforth,  428 U.S. at 81. Furthermore, the reports must be rationally related to a legitimate state interest. Id.

The district court concluded that the Commonwealth could  not  constitutionally  require  of  a  doctor  or  clinic four of the many items of information listed in the statute:

(1) the basis for the physician's determination of gesta- tional age; (2) in a third trimester abortion, the basis for the physician's decision that a third trimester abortion was necessary for the life or health of the mother; (3) in a med- ical emergency case, the basis for the physician's decision that a medical emergency suspended the statute's require- ments; and (4) the identity of the referring physician.  n29

744 F. Supp. at 1391-95.

n29 The Court in Thornburgh struck down sim- ilar reporting requirements because they were not confidential, 476 U.S. at 765-68; in that case, the

report could unduly burden the abortion right by making public both information about the women who  obtain  abortions  and  information  about  the doctors who perform them.

**96

First, we address the three reporting requirements re- lating to the physician's medical judgments for particular types of abortions. The abortion provider must file one report for every abortion. The report will not cause by the

"sheer burden of recordkeeping detail" a drastic increase in delay or cost, or a drastic decrease in availability. The district court's only relevant finding on this point was that compliance with this section had cost $12,000 per year for a clinic that performed 7,000 abortions per year.  744 F. Supp. at 1337, 1372. An added cost of at most a few dol- lars per abortion that the clinics may pass on to patients is not the kind of "drastic" increase necessary to constitute an undue burden. In addition, the reports are concededly confidential, and the reporting requirement does not con- stitute an undue burden on that basis. The reports are also rationally related to preservation of maternal health; they will enable the Commonwealth to discover how often and under

947 F.2d 682, *717; 1991 U.S. App. LEXIS 24792, **96

Page 39

*717   what circumstances women obtain medically nec- essary  abortions.  Finally,  the  reports  will  confirm  that clinics and physicians are complying with the Act's re- quirements.

The   **97    district court concluded that such a re- port  would  have  a  "chilling  effect"  on  the  exercise  of the physician's judgment. We fail to perceive a chilling effect,  however,  other  than  on  a  physician  who  is  not complying with the other provisions of the Act for med- ical emergencies,  determination of gestational age,  and third trimester abortions. Because those provisions them- selves are constitutional, it seems unremarkable and not unduly burdensome that the Commonwealth requires this information in a report concerning an abortion.

With respect to the requirement of § 3214(a)(1) that the  report  concerning  an  abortion  include  the  name  of the performing and referring physicians, the district court concluded that the record was devoid of any evidence that a performing physician would be deterred from perform- ing abortions by the requirement that the report include his or her name.  744 F. Supp. at 1391-92. Nevertheless, the district court concluded that some physicians might stop referring women for abortions if their names were included in the confidential report.  Id. at 1392. The testi- mony at trial established that referring physicians **98  zealously protect their anonymity, and we would face a different and more difficult case if there were a significant risk that such information would be disclosed. But given the district court's conclusions about the safeguards that will ensure confidentiality,  we decline to conclude that

referring  physicians will  be deterred  in  sufficient  num- ber that the availability of an abortion will be drastically reduced. Accordingly, we conclude that the requirement of disclosure of the identity of the names of the referred and performing physicians need only satisfy rational basis review.

As to rational basis, the district court found that the performing physician's name was properly included be- cause he or she could answer questions that might arise about information contained in the reports. However, the district  court  felt  that  no  similar  reason  existed  for  the referring physician's name.   Id. This conclusion ignores the fact that the referring physician can perform some of the  Act's  requirements;  the  Act  allows  referring  physi- cians both to obtain the woman's informed consent and to determine gestational age. We thus conclude that this requirement  is  rationally  related  to  a  legitimate   **99  state interest.

We hold that the confidential reporting requirements of § 3214(a) are constitutional.

F.  Publicly Available Reports

Abortion facilities must file with the Department of Health a report supplying the name and address of the fa- cility and the name and address of affiliated organizations, such as parent or subsidiary corporations. 18 Pa. Cons. Stat. Ann. § 3207(b) (Supp. 1991).   n30 Every abortion facility must also file a report showing the total number of abortions performed, broken down by trimester, at the facility during

947 F.2d 682, *718; 1991 U.S. App. LEXIS 24792, **99

Page 40

*718  the preceding quarter year. 18 Pa. Cons. Stat. Ann.

§ 3214(f) (1991 Supp.). n31 If a facility has received pub- lic funds during the preceding year, the reports must be made available to the public.

n30 Section 3207(b) HN13  provides:

Within 30 days after the effective date of this chap- ter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, containing the follow- ing information:

(1) Name and address of the facility.

(2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associa- tions.

(3) Name and address of any parent, subsidiary or  affiliated  organizations,  corporations  or  asso- ciations having contemporaneous commonality of ownership, beneficial interest, directorship or offi- cership with any other facility.

The information contained in those reports which are  filed  pursuant  to  this  subsection  by  facilities which receive State appropriated funds during the

12-calendar--month period immediately preceding a  request  to  inspect  or  copy  such  report  shall  be deemed public information. Reports filed by facil- ities which do not receive State appropriated funds shall only be available to law enforcement officials, the State Board of Medicine and the State Board of Osteopathic Medicine for use in the performance of their official duties. Any facility failing to com- ply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof.

**100

n31 Section 3214(f) HN14  provides:

Every  facility  in  which  an  abortion  is  performed within this Commonwealth during any quarter year shall file with the department a report showing the total  number  of  abortions  performed  within  the hospital or other facility during that quarter year. This report shall also show the total abortions per- formed in each trimester of pregnancy. Any report shall be available for public inspection and copy- ing only if the facility receives State-appropriated funds within the 12-calendar--month period imme- diately preceding the filing of the report. These re- ports shall be submitted on a form prescribed by the department which will enable a facility to indicate whether  or  not  it  is  receiving  State-appropriated

funds. If the facility indicates on the form that it is not receiving State-appropriated funds, the depart- ment shall regard its report as confidential unless it receives other evidence which causes it to conclude that the facility receives State-appropriated funds.

The clinics do not attack these reporting requirements;

they  challenge  only  the  mandate  that  reports  of  clinics

**101   receiving public funds be available to the public. More specifically, the argument presented by the clinics-- and accepted by the district court--is that public disclo- sure of these reports will cause protests in front of clinics to proliferate and intensify, and that this will eventually reduce the number of abortion providers and the avail- ability of abortions. Like the district court, we recognize that substantial public protest,  directed toward both the clinics  and  the  women  entering  them,  occurs  in  front of abortion clinics. See, e.g., Northeast Women's Center v. McMonagle, 939 F.2d 57 (3d Cir. 1991). In its opin- ion, the district court detailed much of this activity and then  concluded  that  the  clinics  had  reasonable  fears  of increased protest from the public disclosure of these re- ports. The district court also concluded that some clinics might refuse the funds they receive for medically neces- sary abortions in order to avoid having their reports made available to the public.  744 F. Supp. at 1390-91.

We  have  considered  this  issue  before  in  address- ing  nearly the  same reporting  requirements.   American College  of  Obstetricians  v.  Thornburgh,  737  F.2d  283,

297-98 (3d Cir. 1984) **102   ("ACOG"), aff'd on other grounds, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779

(1986). Unless the clinics show a clear nexus between the disclosure requirement and increased private harassment, any attempt to argue that this requirement constitutes an undue burden fails.  ACOG, 737 F.2d at 297-98. Here, the clinics have not shown that the public disclosure require- ment will so enlarge the number or escalate the severity of protests that they will become an absolute obstacle or severe limitation on a woman's abortion right. The clinics are publicly advertised and listed in the phone book, and many,  if not all,  encounter protests and demonstrations without this requirement. On the record as we review it-- at a time before this provision has been implemented-- we cannot conclude that the public disclosure requirement will result in an absolute obstacle or severe limitation on a woman's abortion decision. We thus conclude,  as we did in the previous incarnation of this challenge, that §§

3207(b) and 3214(f) do not constitute an undue burden because the clinics have not "demonstrated a nexus be- tween the disclosure of such information and the chilling of constitutional **103   rights." Id. at 297.

The next question is whether this provision is ratio-

947 F.2d 682, *718; 1991 U.S. App. LEXIS 24792, **103

Page 41

nally related to a legitimate state interest. Records relating to public expenditures and disbursements are generally available  to  the  public  under  Pennsylvania  law.  65  Pa. Cons.  Stat.  Ann.  §§  66.1,  66.2  (1959  &  Supp.  1991).

HN15  When a state provides money to a private com- mercial  enterprise,  there  is  a  legitimate  public  interest in informing taxpayers who the funds are benefiting and

what services the funds are supporting. Thus, this require- ment does not lack a rational basis.

The clinics also argue that the public disclosure re- quirement is an unconstitutional condition on the receipt of public  funds. Under the doctrine  of unconstitutional conditions, "government may not grant a benefit on the condition that the beneficiary surrender a constitutional

947 F.2d 682, *719; 1991 U.S. App. LEXIS 24792, **103

Page 42

*719     right,   even   if   the   government   may   with- hold that benefit altogether." Sullivan,  Unconstitutional Conditions, 102 Harv. L. Rev. 1415, 1415 (1989). There are two major elements of a successful unconstitutional conditions challenge.

The first is that "the constitutional interest at issue . .

. rise to the level **104   of a recognized right--indeed a  preferred  right  normally  recognized  by  strict  judicial review." Id. at 1427. In this case, the constitutional right to  abortion  is  implicated  by  these  requirements;  how- ever,  as  we  concluded  above,  this  right  is  not  unduly burdened by these disclosure requirements and thus strict scrutiny is not triggered. Therefore, it is not an unconsti- tutional conditions problem in the way that it would be if the Commonwealth prohibited a recipient of public funds from performing abortions at all. Cf.  Babbitt v. Planned Parenthood, 479 U.S. 925, 107 S. Ct. 391, 93 L. Ed. 2d

346 (1986), aff'g 718 F.2d 938 (9th Cir. 1983). n32

n32  The  Supreme  Court's  abortion  funding cases exemplify the second major element of an un- constitutional conditions case:  the state may fund activities  as  it  pleases,  may  refuse  to  fund  other activities,  and  may  prevent  recipients  of  govern- ment  funds  from  using  those  funds  in  ways  the government does not permit; however, the govern- ment  may  not  restrict  a  recipient  of  government funds from constitutionally-protected activities it chooses to perform with its own or private funds. See Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759,

114 L. Ed. 2d 233 (1991).

The Supreme Court has used these principles in deciding a number of abortion, funding cases. In Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), the Court upheld a state regula- tion under which Medicaid recipients received pay- ment for medical services related to childbirth, but not for those related to nontherapeutic abortions. Similarly, in Poelker v. Doe, 432 U.S. 519, 97 S. Ct.

2391, 53 L. Ed. 2d 528 (1977), the Court upheld a city's policy of providing publicly financed hospi- tal services for childbirth without providing corre- sponding services for nontherapeutic abortions. In Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65

L. Ed. 2d 784 (1980), the Court upheld the federal government's refusal to fund medically necessary abortions though it funded other medically neces- sary services.  In Webster, the Court upheld a state's ban on the use of public employees and facilities for the performance or assistance of nontherapeu- tic abortions. In Rust, the Court upheld the federal government's  refusal  to  fund  programs  that  refer women for abortions.

In  the  one  abortion  funding  case  where  the Court has struck down a government restriction on abortion funding, a state had attempted to prohibit any recipient of any state funds from performing abortions, even if that recipient wished to provide abortion services with private funds.  Babbitt, 479

U.S. at 925. The problem in Babbitt was that the government had attempted to prohibit a recipient of government funds from using its own funds to exercise its constitutional right;  that is an uncon- stitutional condition,  but not one imposed by the legislation before us.

**105

Having concluded that this requirement does not un- duly burden the abortion right, rationally relates to a legit- imate state interest, and does not present an unconstitu- tional condition on the receipt of public funds, we uphold

§§ 3207(b) and 3214(f). IV.

We conclude that the undue burden standard adopted by  Justice  O'Connor  was  the  narrowest  grounds  in  the majority in Webster and Hodgson and is at present the law of the land. Applying the undue burden standard, we conclude that § 3209, the spousal notice provision, con- stitutes an undue burden. Since the state does not have a compelling interest in ensuring spousal notice, we hold §

3209 unconstitutional. However, none of the other provi- sions at issue here constitutes an undue burden, and each is rationally related to a legitimate state purpose. Thus, we uphold them against the clinics' challenge. We will affirm in part and reverse,  in part the judgment of the district court. STAPLETON Circuit Judge

CONCURBY:

ALITO (In Part)

DISSENTBY:

ALITO (In Part)

DISSENT:

ALITO, Circuit Judge, concurring in part and dissent- ing in part.

I concur in the court's judgment except insofar as it holds that 18 Pa. Cons. Stat. Ann. § 3209 (Supp. 1991)

(spousal notice) **106  is unconstitutional. I also join all of the court's opinion except for the portions concerning Section  3209  and  those  interpreting  Justice  O'Connor's opinion in Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 2949-51, 111 L. Ed. 2d 344 (1990), to mean that

947 F.2d 682, *719; 1991 U.S. App. LEXIS 24792, **106

Page 43

the two-parent notification requirement without judicial bypass imposed an "undue burden" and was thus required

to satisfy strict scrutiny.

947 F.2d 682, *720; 1991 U.S. App. LEXIS 24792, **106

Page 44

*720   I.

As the court suggests, the crux of this case concerns the identification of the constitutional standard that the lower courts must now apply in cases involving laws reg- ulating abortion. For the reasons carefully explained in the court's opinion, I agree that Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2 410 (1989), and Hodgson changed the law that we are  bound  to  apply  and  that  the  test  set  out  in  Justice O'Connor's opinions now represents the governing legal standard.

My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18

Pa. Cons. Stat. Ann. § 3201 et seq. (1983 & Supp. 1991), results  from  disagreement  about  the  portion  of  Justice O'Connor's two-part test that must be applied to this pro- vision.   **107   Under that test, as the majority explains, a law that imposes an "undue burden" must serve a "com- pelling"  state  interest.  By  contrast,  a  law  that  does  not impose an "undue burden" must simply be "rationally" or

"reasonably" related to a "legitimate" state interest. The majority  holds  that  Section  3209  constitutes  an  undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a "compelling" interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is consti- tutional because it is "rationally related" to a "legitimate" state interest.

Although  the  majority  and  I  apply  different  prongs of  this  two-part  test,  I  see  no  indication  that  we  dis- agree  concerning  the  conclusion  produced  when  either prong is applied to Section 3209. If the majority is cor- rect that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section

3209   **108         cannot  satisfy  the  rational  relationship test. Indeed, the majority acknowledges that Section 3209 serves a "legitimate" interest. See majority slip op. type-

script at 74, 77. Thus, my major disagreement with the majority concerns the question whether Section 3209 im- poses an "undue burden," and I will therefore turn to that question.

II.

A.   Justice O'Connor has explained the meaning of the term "undue burden" in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464 (O'Connor, J., dissenting), she wrote that "an 'un- due burden' has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." She noted that laws held unconstitu- tional in prior cases involved statutes that "criminalized all abortions except those necessary to save the life of the mother," inhibited "'the vast majority of abortions after the  first  12  weeks,'"  or  gave  the  parents  of  a  pregnant minor an absolute veto power over the abortion decision. Id.  (emphasis  in  original;  citations  omitted).  She  sug- gested that an "undue burden" would not be created by

"a state regulation that  may 'inhibit'   **109   abortions to some degree." Id. She also suggested that there is no undue  burden  unless  a  measure  has  the  effect  of  "sub- stantially limiting access." Id. at 463, quoting Carey v. Population Services International, 431 U.S. 678, 688, 97

S. Ct. 2010, 52 L. Ed. 2d 675 (1977) (emphasis added in

Justice O'Connor's opinion).

Justice  O'Connor  reiterated  the  same  analysis  in Thornburgh  v.  American  College  of  Obstetricians  and Gynecologists, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed.

2d 779 (1986). She wrote ( id. at 828 (O'Connor, J., dis- senting), quoting Akron, 462 U.S. at 464 (O'Connor, J., dissenting)):

An undue burden would generally be found

"in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree."

947 F.2d 682, *721; 1991 U.S. App. LEXIS 24792, **109

Page 45

*721     She  also  criticized  the  majority  for  taking  an approach  under  which  "the  mere  possibility  that  some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it." Id. at 829 (emphasis added).

Justice  O'Connor's   **110    application  of  the  un- due  burden  test  in  several  cases  further  illustrates  the meaning  of  this  test.  In  Hodgson,  110  S.  Ct.  at  2950-

51, Justice O'Connor found that no undue burden was im- posed by a law requiring notice to both parents or judicial authorization  before  a  minor  could  obtain  an  abortion. Justice O'Connor reached this conclusion despite statis- tics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of mi- nors from obtaining abortions (id. at 2953-54) (Marshall, J.,  dissenting)  and  despite  the  district  court's  finding, noted in Justice Marshall's dissent, that the judicial bypass option "so daunted" some minors that they felt compelled to carry to term (id. at 2959, quoting 648 F. Supp. at 763). Justice O'Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld  in  H.L.  v.  Matheson,  450  U.S.  398,  101  S.  Ct.

1164, 67 L. Ed. 2d 388 (1981), which required parental notice prior to any abortion on an unemancipated minor. Instead, she has stated that this statute merely inhibited

**111    abortions  to  "some  degree."  Thornburgh,  476

U.S. at 828 (O'Connor, J., dissenting);  Akron, 462 U.S. at 464 (O'Connor, J., dissenting). In dissent in Matheson, Justice Marshall argued that the statute would result in substantial interference with abortions sought by minors. He wrote (450 U.S. at 398) (Marshall, J., dissenting) that

"the  minor  may  confront  physical  or  emotional  abuse, withdrawal of financial support or actual obstruction of the  abortion  decision."  These  harms  are  almost  identi- cal  to  those  that  the  majority  in  this  case  attributes  to Section 3209. See majority slip op. typescript at 66-68.

See also Planned Parenthood Association v. Ashcroft, 462

U.S. 476, 505, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983)

(O'Connor concurring and dissenting) (statute requiring parental consent or judicial authorization "imposes no un- due burden").

Finally, Justice O'Connor has concluded that regula- tions that simply increase the cost of abortions, includ- ing  regulations  that  may  double  the  cost,  do  not  cre- ate an "undue burden." See Akron,  462 U.S. at 434-35

(maj. op.); 466-67 (O'Connor,   **112    J., dissenting). Justice O'Connor reached this conclusion even though it seems clear that such increased costs may well deter some women.

Taken  together,  Justice  O'Connor's  opinions  reveal that an undue burden does not exist unless a law (a) pro- hibits abortion or gives another person the authority to veto  an  abortion  or  (b)  has  the  practical  effect  of  im- posing "severe limitations," rather than simply inhibiting abortions "'to some degree'" or inhibiting "some women." Thornburgh, 476 U.S. at 828, 829 (O'Connor, J., dissent- ing), quoting Akron, 462 U.S. at 464 (O'Connor, J., dis- senting). Furthermore,  Justice O'Connor's opinions dis- close that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs. Since the laws at issue in those cases had inhibiting effects that almost cer- tainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply **113   by show- ing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown. In this case, the plaintiffs, who made a facial attack

n1 on Section 3209, did not

947 F.2d 682, *722; 1991 U.S. App. LEXIS 24792, **113

Page 46

*722   prove that this provision would impose an undue burden. Section 3209 does not create an "absolute obsta- cle" or give a husband "veto power." Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions.

n1 Because the plaintiffs made a facial attack on Section 3209, they could not rely on a "worst-case analysis" ( Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S. Ct. 2972, 2981, 111

L.  Ed.  2d  405  (1990))  or  on  proof  showing  only that the provision would impose an undue burden

"under  some  conceivable  set  of  circumstances"  ( United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)). Thus, proof that the provision would adversely affect an unknown number of women with a particular combination of characteristics could not suffice.

**114

The plaintiffs also failed to carry their burden n2 of proving  that  Section  3209  if  enforced  would  have  the kind of broad practical impact needed to establish an "un- due burden" under the opinions discussed above. Clearly the plaintiffs did not substantiate the impact of Section

3209 with the degree of analytical rigor that should be de- manded before striking down a state statute. Cf.  Akron,

462 U.S. at 463 (O'Connor, J., dissenting) (citation omit- ted) (courts should exercise "'deliberate restraint'" before finding an undue burden "'in view of the respect that prop- erly  should  be  accorded  legislative  judgments'");  id.  at

465.

n2 In Thornburgh, Justice O'Connor made clear that  a  party  challenging  the  constitutionality  of a  statute  must  bear  the  burden  of  proving  that the  law  imposes  an  undue  burden.  After  arguing strenuously  that  the  case  should  be  sent  back  to the  district  court  for  "additional  factual  develop- ment"  (476  U.S.  at  827  (O'Connor,  J.,  dissent- ing),  Justice  O'Connor  repeatedly  stated  that  the appellees,  who  were  challenging  the  statute,  had the burden of proving that individual statutory pro- visions would impose an undue burden. She dis- cussed whether "appellees could succeed in mak- ing the threshold showing of undue burden" ( id. at 831), whether "appellees could  establish that the abortion decision would be  unduly burdened"

(id.), and whether the appellees "could succeed in establishing an undue burden" ( id. at 832).

**115

At the outset, it is apparent that two factors imposed a

low ceiling on any showing that the plaintiffs could have made. First, as the district court found, the "vast major- ity" of married women voluntarily inform their husbands before seeking an abortion. Planned Parenthood v. Casey,

744 F. Supp. 1323, 1360 (E.D. Pa. 1990). Indeed, in the trial testimony on which the district court relied, the plain- tiffs' witness stated that in her experience 95% of married women notify their husbands. App. at 701. Second, the overwhelming  majority  of  abortions  are  sought  by  un- married women.  n3 Thus, it is immediately apparent that Section 3209 cannot affect more than about 5% of married women seeking abortions or an even smaller percentage of all women desiring abortions.

n3 Since 1973, abortions on unmarried women have consistently exceeded 70% of the national to- tal and at times have surpassed 80%.  United States Department  of  Commerce,  Statistical  Abstract  of the United States 1990 at 71.

The **116    plaintiffs failed to show even roughly how many of the women in this small group would actu- ally be adversely affected by Section 3209. As previously noted, Section 3209 contains four significant exceptions. These exceptions apply if a woman certifies that she has not notified her husband because she believes n4 that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the au- thorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her. If Section 3209 were allowed to take effect, it seems safe to assume that some percentage of the married women seeking abortions without notifying their husbands would qualify for and invoke these exceptions. The record, how- ever,  is devoid of evidence showing how many women could or could not invoke an exception.

n4  The  form  prepared  by  the  Pennsylvania Department  of  Health  for  use  in  implementing Section 3209 requires a woman to certify that she has not notified her husband "for the following rea- son(s). . . ." (744 F. Supp. at 1359). Moreover,  a false statement is punishable (as a third degree mis- demeanor) only if the woman did not "believe the statement  to be true" (18 Pa. Cons. Stat. Ann. §

4904(b) (1983)).

**117

Of the potentially affected women who could not in- voke  an  exception,  it  seems  safe  to  assume  that  some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering

947 F.2d 682, *723; 1991 U.S. App. LEXIS 24792, **117

Page 47

*723   substantial ill effects. Again, however, the record lacks  evidence  showing  how  many  women  would  or would not fall into this category. Thus, the plaintiffs did not even roughly substantiate how many women might be inhibited from obtaining an abortion or otherwise harmed by Section 3209. n5 At best, the record shows that Section

3209 would inhibit abortions "'to some degree'" or that

"some women would  be less likely to choose to have an abortion by virtue of the presence" of Section 3209. Thornburgh, 476 U.S. at 828 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464 (O'Connor, J., dissenting). n6 And even with respect to these women, the plaintiffs did not show that the impact of Section 3209 would be any greater or any different from the impact of the no- tice requirement upheld in Matheson. Consequently, the plaintiffs failed to prove that Section 3209 would impose an undue burden.

n5 In considering whether Section 3209 would impose  an  undue  burden,  I  do  not  take  into  ac- count a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private

(the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Proving  that  a  woman  violated  the  law  due to a false statement concerning one of the excep- tions would also be hard. As noted (see footnote

4, supra), the Commonwealth would have to prove that the woman did not "believe the statement  to be true" (18 Pa. Cons. Stat. Ann. § 4904(b) (1983)). Consequently,  if  a  woman  certified  that  she  did not notify her husband because he was not the fa- ther, the Commonwealth would have to prove that she subjectively believed that the husband was the father.  Or,  if  a  woman  certified  that  she  did  not notify her husband because she had reason to be- lieve that this would lead to the infliction of bodily injury  upon  her,  the  Commonwealth  would  have to prove that the woman subjectively believed that she would not be harmed. It seems likely, therefore, that Section 3209, if allowed to take effect, would be  widely  evaded  and  infrequently  enforced  and would consequently be less likely to produce either the  good  or  bad  effects  that  the  opposing  parties claim.

**118

n6 The plaintiffs' proof may be separated into five categories. First, they offered testimony that a spousal notification requirement would sometimes delay  an  abortion  or  necessitate  an  extra  trip  to the abortion provider (see 744 F. Supp. at 1360). But as the majority properly concludes in rejecting identical objections to the 24-hour waiting period required by Section 3205(a) (see majority slip op. typescript at 52-55), these potential effects do not amount to an undue burden. See Akron, 462 U.S. at

472-74 (O'Connor, J., dissenting).

Second, the plaintiffs offered testimony that the exceptions in Section 3209 would not cover a case in which a woman did not want to notify her hus- band for fear that he would retaliate in some way other than the infliction of bodily injury upon her, such as by subjecting her to psychological abuse or abusing their children (see 744 F. Supp. at 1360-

62). The plaintiffs, however, do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute.

Third,  the  plaintiffs  introduced  general  evi- dence about the problem of spouse abuse (see 744 F. Supp. at 1361). They offered widely varying statis- tics concerning the dimensions of the problem, as well as evidence that battering occurs in all socioe- conomic groups and is sometimes fatal. This proof, while  documenting  the  existence  of  a  broad  na- tional problem, provides no basis for any estimate of what is relevant here --  the impact of Section

3209.

Fourth,   the  plaintiffs  offered  evidence  that

"mere  notification  of  pregnancy  is  frequently  a flashpoint for battering" (see 744 F. Supp. at 1361). This proof indicates when violence is likely to oc- cur in an abusive marriage but provides no basis for determining how many women would be adversely affected by Section 3209. Finally, the plaintiffs of- fered the opinion of one of their witnesses that most battered  women  would  be  psychologically  inca- pable of taking advantage of Section 3209's fourth exception, i.e., the exception for cases in which the woman has reason to fear that notification will lead to the infliction of bodily harm upon her (see 744

F. Supp. at 1363). However, the plaintiffs failed to show how many of the women potentially affected by  Section  3209  (married  women  seeking  abor- tions without notifying their husbands) are victims of battering. Thus, the opinion offered by their ex- pert, even if taken at face value, merely describes the likely behavior of most of the women in a group

947 F.2d 682, *723; 1991 U.S. App. LEXIS 24792, **118

Page 48

of unknown size. Clearly, then, this evidence does not show how many women would be inhibited or otherwise harmed by Section 3209. I cannot believe that a state statute may be held facially unconsti- tutional simply because one expert testifies that in her opinion the provision would harm a completely

unknown number of women.

**119

Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of

947 F.2d 682, *724; 1991 U.S. App. LEXIS 24792, **119

Page 49

*724    this  provision  is  a  matter  of  grave  concern.  It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent Section 3209 from causing adverse effects by adopting the four exceptions noted  above.  Whether  the  legislature's  approach  repre- sents sound public policy is not a question for us to de- cide. Our task here is simply to decide whether Section

3209 meets constitutional standards. The first step in this analysis is to determine whether Section 3209 has been shown to create an undue burden under Supreme Court precedent,  and  for  the  reasons  just  explained  it  seems clear that an undue burden has not been established.

B.   This conclusion is not undermined (and may in- deed be supported) by the portion of Justice O'Connor's opinion in Hodgson regarding the constitutionality of the two-parent  notice  requirement  without  judicial  bypass. The  majority  in  this  case  interprets  Justice  O'Connor's opinion to mean that this requirement imposed an undue burden and did not serve a "compelling" interest. Majority typescript  slip  op.  26,  28.  I  interpret   **120    Justice O'Connor's opinion differently. I do not read her opinion to mean that the two-parent notice requirement without judicial  bypass  constituted  an  undue  burden.  Rather,  I interpret her opinion to mean that this requirement was unconstitutional because it was not reasonably related to a legitimate state interest. Thus, I do not believe that her opinion (or the Court's holding) supports the majority's conclusion in the present case that the spousal notification requirement in Section 3209 imposes an undue burden.

In Hodgson,  Justice Stevens wrote the lead opinion discussing the unconstitutionality of the two-parent noti- fication requirement without judicial bypass, and Justice O'Connor joined most of Justice Stevens' opinion (see 110

S. Ct. at 2949 (O'Connor, J., concurring). Thus, in inter- preting Justice O'Connor's position, it is helpful to begin with the relevant portions of Justice Stevens' opinion.

Two  portions  of  Justice  Stevens'  opinion,  Parts  III and VII, are most important for present purposes. In Part III, Justice Stevens discussed the applicable constitutional standard. Nowhere in this portion of his opinion (or in- deed in any portion   **121   of his opinion) did Justice Stevens make reference to "strict," "exacting," or "height-

ened" scrutiny or any of the terminology associated with that level of review. Instead, he concluded that the statute failed  to  satisfy  even  the  least  demanding  standard  of review. He wrote (110 S. Ct. at 2937): "Under any anal- ysis, the . . .  statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests."

In Part VII of his opinion, Justice Stevens explained

(id. at 2945) why the two-parent notice requirement did not "reasonably further any legitimate state interest." Thus it seems clear that Justice Stevens' opinion concluded that the  two-parent  notice  requirement  without  judicial  by- pass was unconstitutional because it failed some variant of the rational relationship test.

In my view, Justice O'Connor's opinion in Hodgson did not subject this requirement to a more exacting level of scrutiny. Although Justice O'Connor did not join Part III of Justice Stevens' opinion (in which he discussed the general constitutional standard that he applied),  Justice O'Connor wrote as follows (110 S. Ct. at 2949-50 **122

(emphasis added)):

It has been my understanding in this area that

"if the particular regulation does not 'unduly burde n ' the fundamental right, . . . then our evaluation of that regulation is limited to our determination  that  the  regulation  rationally relates to a legitimate state purpose." . . . . It is with that understanding that I agree with Justice  Stevens'  statement  "that  the  statute cannot  be  sustained  if  the  obstacles  it  im- poses are not reasonably related to legitimate state interests."

I interpret this to mean that Justice O'Connor agreed with Justice Stevens that the challenged statute should be judged under the rational relationship test. I do not think that  she  would  have  expressed  general  agreement  with Justice Stevens' statement of the governing legal standard if she believed that the statute imposed an

947 F.2d 682, *725; 1991 U.S. App. LEXIS 24792, **122

Page 50

*725   undue burden and was thus required to satisfy an entirely different legal standard. I also do not think that she would have concluded that the statute created an undue burden without explaining the basis for that conclusion. Moreover,  Justice  O'Connor  joined  Part  VII  of  Justice Stevens' opinion, in which, as previously noted, Justice Stevens concluded that the **123   two-parent notice re- quirement without judicial bypass was not "reasonably" related  to  any  "legitimate  interest."  I  do  not  think  that Justice O'Connor would have joined this portion of Justice Stevens'  opinion  if  her  position  regarding  the  constitu- tionality of the provision was based on a fundamentally different analysis. Thus, I conclude that Justice O'Connor found the two-parent notice statute unconstitutional un- der the rational relationship test. This must mean either (a) that she did not believe that this requirement constituted an undue burden or (b) that she did not find it necessary to reach that question because she believed that the re- quirement could not even pass the rational relationship test. In either event, her position in no way undermines my conclusion that Section 3209 has not been shown to create an undue burden. n7

n7 In the portion of her opinion concluding that the two-parent notification requirement with judi- cial  bypass  was  constitutional,  Justice  O'Connor wrote (110 S. Ct. at 2950 (emphasis added)): "In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion." I interpret this statement to mean that a judicial by- pass option prevents a consent requirement (which would otherwise amount to an absolute veto) from creating an undue burden. This statement is there- fore  fully  consistent  with  my  view  that  Justice O'Connor  did not find that  an undue burden  was created by the two-parent notice requirement with- out judicial bypass.

**124

III.

Since  Section  3209  has  not  been  proven  to  impose

an  undue  burden,  it  must  serve  a  "legitimate"  (but  not necessarily a "compelling") state interest. The majority acknowledges  that  this  provision  serves  a  "legitimate" interest, namely, the state's interest in furthering the hus- band's interest in the fetus. See majority slip op. typescript at 74, 77. I agree with this conclusion, and I do not think that this point requires extended discussion.

The Supreme Court has held that a man has a funda- mental interest in preserving his ability to father a child. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110,

86 L. Ed. 1655 (1942). The Court's opinions also seem to establish that a husband who is willing to participate in raising a child has a fundamental interest in the child's welfare.  Michael H. v. Gerald D., 491 U.S. 110, 123, 109

S. Ct. 2333, 105 L. Ed. 2d 91 (1989); Quilloin v. Walcott,

434 U.S. 246,  98 S. Ct. 549,  54 L. Ed. 2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60

L. Ed. 2d 297 (1969); Stanley v. Illinois, 405 U.S. 645,

92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). It follows that a husband has a "legitimate" interest in the welfare of a fetus he has conceived **125   with his wife.

To  be  sure,  the  Supreme  Court  held  in  Planned

Parenthood  of  Missouri  v.  Danforth,  428  U.S.  52,  67-

72, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), that a po- tential father may not be given the legal authority to veto an abortion, and thus the Court apparently held that the potential father's interest was not "compelling." But the Court did not question the legitimacy of this interest. On the contrary, the Court wrote ( id. at 69 (emphasis added)):

"We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying." See also id. at 93 (White, J., dis- senting) ("A father's interest in having a child -- perhaps his only child --  may be unmatched by any other inter- est in his life"). Since a "deep and proper . . . interest" appears indistinguishable from a "legitimate" interest, it seems clear that a husband has a "legitimate" interest in the fate of the fetus.

This interest may be legitimately furthered by state legislation. "Statutory regulation of domestic relations is  an area **126

947 F.2d 682, *726; 1991 U.S. App. LEXIS 24792, **126

Page 51

*726  that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393, 404,

95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). See also Moore v.  East  Cleveland,  431  U.S.  494,  499,  97  S.  Ct.  1932,

52 L. Ed. 2d 531 (1977); Scheinberg v. Smith, 659 F.2d

476, 483-94 (5th Cir. 1981). Accordingly, Pennsylvania has a legitimate interest in furthering the husband's inter- est in the fate of the fetus,  as the majority in this case acknowledges.

IV.

The  remaining  question  is  whether  Section  3209  is

"rationally" or "reasonably" related to this interest. Under the rational relationship test,  which developed in equal protection cases, "legislation carries with it a presumption of rationality that can only be overcome by a clear show- ing of arbitrariness and irrationality." Hodel v. Indiana,

452  U.S.  314,  331-32,  101  S.  Ct.  2376,  69  L.  Ed.  2d

40 (1981). This test does not permit the invalidation of legislation simply because it is "deemed unwise or unart- fully drawn." U.S. Railroad Retirement Board v. Fritz, 449

U.S. 166, 175, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1981). Legislation  does  not  violate  this  test  simply  because  it produces some adverse effects.   **127   Id.; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337,

55 L. Ed. 369 (1911). As the Court wrote in Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S. Ct. 1153, 25 L. Ed.

2d 491 (1970):

"The problems of government are practical ones and may justify, if they do not require, rough  accommodations --  illogical,  it  may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 68-70, 57 L. Ed. 730, 33 S. Ct. 441 (1913) . . . .

. . . The rational-basis standard  is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what consti- tutes wise economic or social policy.

See also Dallas v. Stanglin, 490 U.S. 19, 25-27, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989); Cleburne v. Cleburne Living  Center,  Inc.,  473  U.S.  432,  439-40,  105  S.  Ct.

3249, 87 L. Ed. 2d 313 (1985). Rather, "those challeng- ing the legislative judgment must convince the Court that the legislative facts on which the classification is appar- ently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley,

440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 2d 171 (1979). See also Hancock Industries v. Schaeffer, 811 F.2d 225,

238 (3d Cir. 1987). **128

Even  assuming  that  the  rational  relationship  test  is more  demanding  in  the  present  context  than  in  most equal  protection  cases,  that  test  is  satisfied  here.  The Pennsylvania  legislature  could  have  rationally  believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems - such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion. In  addition,  the  legislature  could  have  reasonably  con- cluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage  of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no author- ity to overrule that legislative judgment even if we deem it "unwise" or worse.  U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175. "We should not **129   forget that

'legislatures are ultimate guardians of the liberty and wel- fare of the people in quite as great a degree as the courts.'" Akron v. Akron Center For Reproductive Health, 462 U.S. at 465 (O'Connor, J., dissenting), quoting Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 24 S. Ct. 638 (1904). Clearly, the plaintiffs have not shown that

"the legislative facts on which the statute  is apparently based could not reasonably be conceived to be true by the governmental decisionmaker."

947 F.2d 682, *727; 1991 U.S. App. LEXIS 24792, **129

Page 52

*727   Vance v. Bradley, 440 U.S.  at 11. Thus, Section

3209 is rationally related to a legitimate state interest and may not be invalidated under the Supreme Court's abor- tion precedents.  n8

n8 The plaintiffs argue that the district court's decision may be affirmed on alternative constitu- tional grounds not adopted by that court, i.e., that

Section 3209 violates the rights to marital and in- formational privacy and equal protection. Because the majority has relied solely on the abortion right in affirming the district court, I do not address these alternative grounds.

**130

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