After the 1973 decision of Roe v. Wade, 410 U.S. 113 (1973), a myriad of legislative responses to Roe held that the right of privacy encompasses a woman’s right to decide whether to terminate her pregnancy. In these responses the states were attempting to determine which restrictions on and regulations of abortion were constitutionally valid. A February 1978 abortion ordinance passed by the city of Akron, Ohio, was part of this wave of legislative responses. The ordinance contained seventeen provisions, five of which were at issue in Akron v. Akron Center for Reproductive Health. The Court, with three justices dissenting, found that all five of the provisions at issue were unconstitutional. In doing so the Court reiterated that a woman’s right to an abortion is not unqualified; however, restrictive state regulations of a woman’s right to choose must be supported by a compelling state interest.
The first provision of the ordinance that the Court addressed provided that abortions performed after the first trimester of pregnancy must be performed in a hospital. In finding the provision to be unconstitutional, the Court reaffirmed Roe’s recognition of the state’s interest in a woman’s health. Thus, at the end of the second trimester, the state may regulate the abortion procedure if the regulation reasonably relates to the preservation and protection of maternal health. In this case, however, the hospital requirement imposed a heavy and unnecessary burden on a woman’s access to an abortion; thus, the city failed to demonstrate a compelling interest.
The requirement was heavy because an abortion at a hospital would cost twice as much as at a clinic and because the woman might need to travel to find a hospital that would perform the abortion. The requirement was unnecessary because current medical knowledge indicates that second trimester abortions have become substantially safer. Furthermore, medical evidence indicates that second trimester abortions can be performed safely in outpatient clinics.
The second provision of concern to the Court was that a physician must obtain the informed written consent of one of the parents of a minor below the age of fifteen. In reviewing this provision, the Court acknowledged that the state has an interest in encouraging parental involvement in their minor child’s decision to have an abortion. However, it found the consent provision in the ordinance to be unconstitutional because, contrary to the Court’s holding in Bellotti v. Baird (Bellotti II, 443 U.S. 622, 1979), the ordinance did not create any procedures for allowing a minor to avoid the consent requirement.
The third provision required an attending physician to make certain specified statements to the patient and/or her parent (if parental consent was required) to ensure that the consent for the abortion was truly informed. In considering this provision, the Court reaffirmed its previous holding in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976), that a state could constitutionally require a woman to certify in writing her consent to the abortion and that her consent is informed and freely given. However, the Court found that it was the responsibility of the patient’s physician to ensure that appropriate information was relayed to enable her to give informed consent. The state may not decide what information a woman must be given before she chooses to have an abortion. Furthermore, much of the information required to be given by the Akron ordinance was not designed to inform the woman, but rather to persuade her to carry the fetus to term.
In the fourth provision, a twenty-four-hour waiting period was mandated between the signing of the consent form and the performance of the abortion. The Court found that Akron failed to demonstrate that any legitimate state interest was furthered by an arbitrary and inflexible waiting period. There was no evidence that a waiting period would allow the abortion to be performed more safely or that the state’s interest in the woman giving informed consent was reasonably served by the delay.
Finally, the fifth provision required that the fetal remains be disposed of in a humane and sanitary manner. The city of Akron contended that it enacted the provision to prevent the dumping of aborted fetuses on garbage piles. However, the Court found that there was uncertainty as to whether the provision had such limited intent. It was possible to interpret the statute as requiring that a decent burial be given to an embryo. The Court found that this uncertainty caused the provision to violate the due process clause in that the provision failed to give the physician the required fair notice as to what conduct was prohibited.
Although Akron answered a number of questions regarding the type of abortion regulations that a state could enact, it left a number of questions unanswered that would be the subject of subsequent abortion litigation.
JANET W. STEVERSON
Cases and Statutes Cited
See also Abortion; Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976); Reproductive Freedom; Roe v. Wade, 410 U.S. 113 (1973)