Cincinnati Women's Services, Inc. v. Taft , 468 F.3d 361 ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0419p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CINCINNATI WOMEN’S SERVICES, INC.; WALTER
Plaintiffs-Appellants, -
BOWERS, Dr.,
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No. 05-4174
,
v. >
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ROBERT TAFT, Governor of Ohio; BETTY D.
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MONTGOMERY, Attorney General; JOSEPH DETERS;
Defendants-Appellees. -
MICHAEL K. ALLEN; JIM PETRO,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 98-00289—Sandra S. Beckwith, Chief District Judge.
Argued: February 1, 2006
Decided and Filed: November 13, 2006
Before: COLE, GIBBONS, and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH, Cincinnati, Ohio, for
Appellants. Diane Richards Brey, OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellees. ON BRIEF: Alphonse A. Gerhardstein, Jennifer L. Branch,
GERHARDSTEIN & BRANCH, Cincinnati, Ohio, David A. Friedman, FERNANDEZ FRIEDMAN
GROSSMAN KOHN & SON, Louisville, Kentucky, for Appellants. Diane Richards Brey, Stephen
P. Carney, Douglas R. Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus,
Ohio, Anne Berry Strait, Tracy M. Greuel, OFFICE OF THE ATTORNEY GENERAL,
CHARITABLE LAW SECTION, Columbus, Ohio, for Appellees.
COLE, J., delivered the opinion of the court, in which GIBBONS, J. joined. ROGERS, J.
(pp. 11-14), delivered a separate concurring opinion.
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OPINION
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R. GUY COLE, JR., Circuit Judge. In this facial constitutional attack, Plaintiffs-Appellants
Cincinnati Women’s Services (“CWS”) and Dr. Walter Bowers, CWS’s medical director, appeal the
district court’s judgment upholding two provisions of Ohio House Bill 421, a law enacted by the
1
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Ohio General Assembly in 1998 concerning the regulation of abortions. The first of these provisions
limits minors seeking a judicial bypass of the statutory parental-consent requirement to one petition
per pregnancy (“Single-Petition Rule”). The second challenged provision requires women seeking
abortions to attend, for informed-consent purposes, an in-person meeting with a physician at least
twenty-four hours prior to receiving the abortion (“In-Person Rule”). Following a bench trial, the
district court granted judgment in favor of the Defendants.
For the following reasons we REVERSE the district court’s judgment that the Single-
Petition Rule is constitutionally valid and conclude that the Single-Petition Rule is severable from
the remainder of the statute. Further, we AFFIRM the district court’s judgment that the In-Person
Rule is constitutionally valid and REMAND for further proceedings consistent with this opinion.
I. Background
A. Factual Background
In 1998, the Ohio General Assembly made various substantive changes to Ohio’s law
regulating abortion, two of which are at issue in this case: the Single-Petition Rule and the In-
Person Rule. See Cincinnati Women’s Servs. v. Taft, No. 1:98-CV-289, 2005 U.S. Dist. LEXIS
23015, at *1-*2 (S.D. Ohio Sept. 8, 2005).
Until 1998, Ohio law did not impose any restrictions upon the number of times a minor
woman could petition for a judicial bypass of the prior parental-notification rule. The 1998
amendments, however, included the Single-Petition Rule, which limits to once per pregnancy the
number of times a minor may seek a judicial bypass in lieu of parental consent. Ohio law makes it
a misdemeanor and a tort for any person to perform an abortion on an unemancipated minor unless
the attending physician has “secured the written informed consent of the minor and one parent,
guardian, or custodian.” Ohio Rev. Code § 2919.121(B)(1) (2005).1 The statutory amendment
permits a minor woman to petition a juvenile court for a judicial bypass of parental consent if “the
court finds that the minor is sufficiently mature and well enough informed to decide intelligently
whether to have an abortion” or that “the abortion is in the best interests of the minor.” Id.
§ 2919.121(C)(3). The Single-Petition Rule further provides that “[n]o juvenile court shall have
jurisdiction to rehear a petition concerning the same pregnancy once a juvenile court has granted or
denied the petition.” Id. § 2919.121(C)(4).
In evaluating the probable impact of the Single-Petition Rule, the district court found that
“[m]ost judicial bypasses occur in the first trimester of a minor’s pregnancy.” Taft, 2005 U.S. Dist.
LEXIS 23015, at *27. The district court also found that “there have been times when it was
apparent that a bypass was denied because the minor failed by oversight to adequately discuss facts
that the minor knew or could easily learn.” Id. at *28. One witness, a part-time magistrate in the
Cuyahoga County Juvenile Court in Cleveland, testified that in such situations he has advised the
minor’s attorney to file another bypass petition during the same pregnancy. Id. at *27-*28.
The 1998 statutory amendment also modifies prior law by requiring women seeking
abortions to attend an in-person meeting with a physician for informed-consent purposes. See Ohio
Rev. Code § 2317.56(B)(1) (2005). “The meeting need not occur at the facility where the abortion
is to be performed or induced, and the physician involved in the meeting need not be affiliated with
that facility or with the physician who is scheduled to perform or induce the abortion.” Id.
Although Ohio’s prior abortion regulation required informed consent before a woman underwent
an abortion, the law did not contain any requirement that the meeting take place in person. See Ohio
1
The 1998 statutory amendment also changed Ohio law by requiring parental consent instead of parental notice,
but this aspect of the law is not before us.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 3
Rev. Code § 2317.56(B)(1) (1997) (“At least twenty-four hours prior to the performance or
inducement of the abortion, a physician informs the pregnant woman, verbally or by other
nonwritten means of communication . . . .”). Ohio’s Attorney General issued an opinion in 1994
interpreting the older version of section 2317.56(B)(1) to permit videotaped or audiotaped physician
statements. See 1994 Ohio Op. Att’y Gen. No. 94-094, 1994 WL 725885. The challenged provision
thus changed the status quo to require that a woman seeking an abortion receive informed consent
in-person, by any physician, rather than “verbally or by other nonwritten means.” Id.
CWS is a healthcare provider that provides contraceptive services and performs pregnancy
testing and abortions. See Taft, 2005 U.S. Dist. LEXIS 23015, at *19. When a woman inquires
about obtaining an abortion from CWS, her first contact is generally by phone. Id. at *20. CWS
employees inform her of CWS’s abortion process and invite her to schedule two appointments. Id.
“The first appointment is for an informed consent visit and the second appointment is for an actual
procedure.” Id.
In evaluating the impact of the In-Person Rule on CWS, the district court found that the In-
Person Rule will have the practical effect of requiring all of CWS’s own clients to come to its
premises twice, once for the informed-consent meeting with a physician affiliated with CWS, and
a second time for the procedure. See id. at *12, *20, *36, *39. The district court found that CWS
currently excuses approximately 5 to 10 percent of its patients from its normal two-visit protocol.
Id. at *24. “Some women are excused from coming because of the distance of their residencies from
the clinic, their lack of resources, or because of interference from an abusive partner.” Id. The
district court found that 7 to 18 percent of those excused by CWS are excused because of “partner
abuse.” Id. Excused patients “receive all the information about the procedure via mail and are given
the opportunity to listen to an audio version” of the informed consent video tape, and to speak with
CWS’s “patient advocates.” Id. Witnesses from two other abortion clinics — Capital Care clinic
in Columbus and Center for Choice clinic in Toledo — testified that their clinics excuse 5 to 10
percent of their patients from their own two-visit protocols. Id. at *25. Twenty to 25 percent of this
excused group are “abused women.” Id.
B. Procedural Background
Several weeks before the Act’s effective date, CWS filed a pre-enforcement facial attack
against two of the Act’s provisions, naming the Governor of Ohio and various other government
officials as defendants. Taft, 2005 U.S. Dist. LEXIS 23015, at *3. CWS sought injunctive and
declaratory relief on the grounds that the statutory provisions are unconstitutionally vague and
invalid under Supreme Court precedent. Following a bench trial, the district court upheld both
provisions. With respect to the Single-Petition Rule, the district court reasoned that Supreme Court
precedent does not “require[] the state to afford a minor virtually unlimited opportunities to petition
for a bypass.” Id. at *46. Assuming that striking down the Single-Petition Rule would mandate
“limitless opportunities to petition for a bypass” during the same pregnancy, the district court
determined that “such a requirement would conflict with Casey in that the state could completely
prohibit minors from even obtaining an abortion except where necessary to preserve the life or
health of the minor.” Id. at *46-*47 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
879 (1992)).
The district court also held that the Single-Petition Rule “does not impose any undue burden
even in the pre-viability context.” Id. at *47. To find otherwise, the district court concluded that
it would have to engage in speculation and guesswork about the following: (1) what fraction of
subsequent petitioners’ bypass petitions had been denied due to a lack of understanding of the
abortion procedure; (2) whether a petitioner’s increased understanding in a second proceeding would
be enough to tip the balance in favor of granting a bypass; and (3) what proportion of subsequent
petitioners would develop fetal anomalies after an unsuccessful petition in the first trimester (the
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 4
district court concluded that a minor who discovered such a fetal anomaly likely had access to
prenatal care, “which leads one to conclude further that she has a parent or guardian involved in her
pregnancy to pay the medical bills”). See id. at *47-*50. The district court also determined that it
would be pure speculation to conclude that a large fraction of parents would withhold consent for
an abortion from a minor. See id. at *50. Finally, the district court held that the Single-Petition Rule
need not contain a mental-health exception, and that the general maternal-health exception was
constitutional even though it had been “promulgated in the form of an affirmative defense.” See id.
at *51-*52, *53.
Likewise, the district court upheld the In-Person Rule because it “does not create a
substantial obstacle for women seeking abortions.” Id. at *29. While granting that the In-Person
Rule could have the effect of delaying abortions up to two weeks, the district court held that a “delay
of up to two weeks, however, does not impose an undue burden on women seeking abortions.” Id.
at *30. The district court relied on the Supreme Court’s ruling in Casey, which upheld
Pennsylvania’s similar informed-consent statute.
Addressing the “most difficult question to answer,” the district court rejected CWS’s
argument that the In-Person Rule would increase the probability that abusive partners would learn
about the pregnancy or the attempt to obtain an abortion, thereby causing an undue burden on the
abortion-seeking woman’s constitutional right to an abortion. See id. at *39. After reviewing the
testimonial and record evidence received at trial, the district court concluded that the evidence did
not establish what proportion of the abused women would be blocked from obtaining abortions. See
id. at *39-*42. The district court thus concluded that it could not strike down the In-Person Rule
under Casey’s “large fraction” test. See id. at *41.
This timely appeal followed. Enforcement of the Single-Petition Rule, but not the In-Person
Rule, has been enjoined pending resolution of this appeal.2
II. The Large Fraction Test
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), sets the standard that we are
bound to apply in facial challenges to abortion restrictions. In Casey, the Supreme Court set forth
the test that must be applied in analyzing whether a restriction placed on a woman’s constitutional
right to an abortion is an “undue burden” on that right, thereby rendering the restriction facially
unconstitutional. Id. at 878, 894–95. The Supreme Court determined that, because “[l]egislation
is measured for consistency with the Constitution by its impact on those whose conduct it affects,”
when analyzing abortion restrictions, “[t]he proper focus of constitutional inquiry is the group for
whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894. Therefore,
if, “in a large fraction of the cases in which [the abortion restriction] is relevant, it will operate as
a substantial obstacle to a woman’s choice to undergo an abortion,” then reviewing courts should
find that the restriction is an “undue burden, and therefore invalid.” Id. at 895. This test has come
to be known as the Casey “large fraction” test.
2
Slightly more than a week after CWS filed its complaint, the parties agreed to an order maintaining the status
quo — i.e., the state of the law prior to the 1998 amendments — in the form of a preliminary injunction. When the
district court entered its final judgment dismissing the case on September 8, 2005, the preliminary injunction was
dissolved. The next day the district court issued another order suspending dissolution of the injunction for two weeks.
CWS filed a notice of appeal on September 16, 2005. When the order suspending dissolution of the injunction ran its
course, the district court, on September 22, 2005, denied CWS’s motion to stay the judgment pending appeal.
On October 3, 2005, this Court granted in part and denied in part CWS’s motion to enjoin enforcement of the
Act pending appeal. We enjoined enforcement of the Single-Petition Rule, but in all other respects, we denied the
motion.
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In the intervening decade, the Supreme Court has not abandoned Casey. See, e.g., Planned
Parenthood v. Casey, 510 U.S. 1309, 114 S. Ct. 909, 910 (1994) (Souter, J., denying application for
stay of mandate) (if an abortion restriction interposes a substantial obstacle on a large fraction of the
affected population, it is an unconstitutional violation of “the exercise of the right to reproductive
freedom guaranteed by the Due Process Clause and affirmed in th[e] Court’s Casey opinion”
(citations omitted)); Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014 (1993)
(O’Connor, J., concurring) (“[W]e made clear that a law restricting abortions constitutes an undue
burden, and hence is invalid, if, in a large fraction of the cases in which [the law] is relevant, it will
operate as a substantial obstacle to a woman’s choice to undergo an abortion.” (internal citation to
Casey omitted)).3
In United States v. Salerno, 481 U.S. 739, 745 (1987), the Supreme Court held that, to
succeed in a facial constitutional challenge, “the challenger must establish that no set of
circumstances exists under which the [law] would be valid.” However, in considering facial
challenges to abortion restrictions, every circuit, with one exception, has applied Casey’s test rather
than Salerno’s more restrictive “no set of circumstances” test. See Nat’l Abortion Fed’n v.
Gonzales, 437 F.3d at 294 (Walker, Jr., C.J., concurring) (“As it stands now, however, the Supreme
Court appears to have adopted the ‘large fraction’ standard . . . for those who seek to challenge an
abortion regulation as facially unconstitutional.”); Richmond Med. Ctr. for Women v. Hicks, 409
F.3d 619, 628 (4th Cir. 2005) (holding that “Salerno’s ‘no set of circumstances’ standard does not
apply in the context of a facial challenge . . . to a statute regulating a woman’s access to abortion”);
Planned Parenthood v. Heed, 390 F.3d 53, 57 (1st Cir. 2004), vacated on other grounds by Ayotte
v. Planned Parenthood, 126 S. Ct. 961 (2006) (determining that Casey’s large-fraction test is
properly applied to facial abortion-restriction challenges); A Woman’s Choice-E. Side Women’s
Clinic v. Newman, 305 F.3d 684, 687, 698–99 (7th Cir. 2002) (an abortion restriction “will be
deemed valid unless, in a large fraction of the cases in which the law is relevant, it will operate as
a substantial obstacle to a woman’s choice to undergo abortion” (internal citation omitted)); Planned
Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142-43 (3d Cir. 2000) (“a plaintiff must show
that an abortion regulation would be an undue burden in a large fraction of the cases in which that
regulation is relevant”); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1027, amended
on denial of reh’g, 193 F.3d 1042 (9th Cir. 1999) (following the “great weight of circuit authority
holding that Casey has overruled Salerno in the context of facial challenges to abortion statutes”);
Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (noting that the Casey Court “did not
apply” the Salerno test, but rather “evaluated the regulations under the undue burden standard”);
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995) (opting
3
Justice Thomas’s dissent in Stenberg v. Carhart, 530 U.S. 914 (2000), takes to task the Stenberg majority for
not applying Casey’s large-fraction test and implicitly argues that the Court has abandoned the large-fraction test. Id.
at 1019–20 (Thomas, J., dissenting). Cf. Nat’l Abortion Fed’n v. Gonzales, 437 F.3d 278, 294 (2d Cir. 2006) (Walker,
Jr., C.J., concurring) (“[T]he Supreme Court appears to have adopted the ‘large fraction’ standard (perhaps modified by
Stenberg to mean a ‘not-so-large fraction’ standard) for those who seek to challenge an abortion regulation as facially
unconstitutional.”). However, Justice Thomas’s criticism is misplaced. The holding in Stenberg relating to whether the
abortion restriction before the Court was an undue burden hinged entirely on statutory interpretation. Stenberg, 530 U.S.
at 938; see also id. at 938–46. In Stenberg, the state of Nebraska acknowledged that the statute in question placed an
undue burden on a woman’s right to an abortion if it was interpreted in a certain way — the way the Supreme Court
eventually interpreted it. Id. Because the state conceded that the statute was an undue burden if interpreted a certain
way, the Court did not need to undertake the large-fraction analysis. See Planned Parenthood of Idaho, Inc. v. Wasden,
376 F.3d 908, 921 n.10 (9th Cir. 2004) (“The abortion-specific ‘large fraction’ standard is part and parcel of the undue
burden analysis.”). Finally, the Stenberg Court affirmed the Eighth Circuit’s decision in toto, Stenberg, 530 U.S. at 946,
which itself used Casey’s large-fraction test, see Carhart v. Stenberg, 192 F.3d 1142, 1149 (8th Cir. 1999); see also id.
at 1151 (Because “[a]n abortion regulation that inhibits the vast majority of second trimester abortions would clearly
have the effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion” and the
restriction here “prohibit[s] the most common procedure for second-trimester abortions,” it thereby causes “an undue
burden on a woman’s right to choose to have an abortion.” (quotation omitted)).
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 6
to “follow what the Supreme Court actually did — rather than what it failed to say — and apply the
undue-burden test” which requires a court to invalidate an abortion restriction if the law “operate[s]
as a substantial obstacle to a woman’s choice to undergo an abortion in a large fraction of the cases
in which [it] is relevant” (quotation omitted)). The Fifth Circuit stands alone in its rejection of the
large fraction test. See Barnes v. Moore, 970 F.2d 12, 14 (5th Cir. 1992) (holding that a plaintiff
must “establish that no set 4of circumstances exists under which the Act would be valid” (quoting
Salerno, 481 U.S. at 745)).
Like the majority of other circuits, this Court too has followed Casey’s large-fraction test in
analyzing facial attacks on abortion regulations. In deciding whether a pre-viability abortion
restriction passes facial constitutional muster, we “determine whether ‘in a large fraction of the cases
in which [the ban] is relevant, it will operate as a substantial obstacle to a woman’s choice to
undergo an abortion.’” Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 196 (6th Cir. 1997)
(quoting Casey, 505 U.S. at 895). This has been our repeated and continuous practice. See, e.g.,
Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 607 (6th Cir. 2006) (following Casey’s holding
that “a regulation is an undue burden if ‘in a large fraction of the cases in which [the regulation] is
relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion’”
(quoting Casey, 505 U.S. at 895)); Memphis Planned Parenthood v. Sundquist, 175 F.3d 456, 477
n.3 (6th Cir. 1999) (“When considering [whether a] statute [that regulates abortion] is
unconstitutional on its face, we must analyze the factual record to determine whether the challenged
regulation in a large fraction of the cases in which it is relevant, will operate as a substantial
obstacle to a woman’s choice to undergo an abortion” (citing Casey, 505 U.S. at 895) (emphasis
added)); see also Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436, 443, 446 (6th Cir. 2003)
(holding that “a state may regulate abortion before viability as long as it does not impose an ‘undue
burden’ on a woman’s right to terminate her pregnancy,” and that “an ‘undue burden’ exists when
‘a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus’” (citing Casey, 505 U.S. at 876–77)).
Thus, our path is clear: We must follow Casey’s large-fraction test in analyzing the facial
challenge to the two abortion restrictions before us. Accordingly, we asses whether Ohio’s abortion
restrictions present a substantial obstacle to obtaining an abortion for a large fraction of the women
for whom the restrictions are relevant. Casey, 505 U.S. at 895.
III. The Single-Petition Rule
A. Constitutionality of the Single-Petition Rule
If a state requires parental consent before an unemancipated minor woman receives an
abortion, it must provide for a judicial or administrative procedure so that a minor woman who
satisfies certain conditions may bypass the consent requirement. See Bellotti v. Baird, 443 U.S. 622,
647–51 (1979) (plurality opinion) (“Bellotti II”). If a minor woman establishes either “that she is
mature enough and well enough informed to make the abortion decision independently” or “that the
abortion would be in her best interests,” the reviewing court or agency must issue the bypass.
Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (citation omitted). Otherwise, the attendant bypass
procedure is constitutionally invalid. See Bellotti II, 443 U.S. at 643–44.
Ohio provides for a judicial-bypass procedure that apparently encompasses the procedural
requirements set forth in Lambert and Bellotti II. Ohio, however, seeks to limit a minor woman to
filing one petition for a bypass per pregnancy. The Supreme Court has never determined whether
4
Interestingly, even the Fifth Circuit’s cases are inconsistent on this issue. Compare Sojourner T. v. Edwards,
974 F.2d 27, 30 (5th Cir. 1992) (applying Casey’s undue burden test without reference to Salerno), with Barnes, 970
F.2d at 14 & n.2 (5th Cir. 1992) (per curiam) (applying Salerno to a facial attack on an abortion regulation).
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 7
an abortion restriction preventing a minor woman from filing multiple bypass petitions violates the
Constitution. We must, therefore, analyze whether Ohio’s restriction to the judicial-bypass
procedure constitutes an undue burden under Casey’s large-fraction test.
In Casey, the Supreme Court analyzed a spousal-notification law that required a married
woman who wished to abort her pregnancy to first notify her husband, unless she fit into a statutorily
exempted category. Casey, 505 U.S. at 887–88. The Supreme Court held that, in determining
whether this restriction was an undue burden, the “proper focus of constitutional inquiry is the group
for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894.
Therefore, while the restriction ostensibly affected all married women seeking an abortion, the
spousal-notification restriction was only relevant to married women seeking an abortion who did
not fit into a statutory exception to the notification requirement and did not desire to inform their
husbands about the abortion. Id. at 894–95. Of the women for whom the restriction was actually
relevant, many of whom were at risk for spousal abuse, the restriction would “operate as a
substantial obstacle” to a “large-fraction.” Id. Casey thus requires courts to determine whether a
large fraction of the women “for whom the law is a restriction” will be “deterred from procuring an
abortion as surely as if the [government] has outlawed abortion in all cases.” Id. at 894. The
spousal-notification law in Casey was facially unconstitutional because it satisfied that test. Id. at
895.
Applying Casey to the Single-Petition Rule before us, we find that the group of women for
whom the restriction actually operates are women who are denied a bypass and who have changed
circumstances such that if they were able to reapply for a bypass, it would be granted. The group
of women who will be deterred from procuring an abortion because of the restriction are women
with changed circumstances who would apply for another bypass if allowed. The record shows that
second petitioners exist under Ohio’s current bypass scheme, and that practically all second
petitioners allege changed circumstances such that, if believed, a reviewing court must issue a
bypass. The changed circumstances that affect abortion-seeking minors include increased maturity,
increased medical knowledge about abortion, and pregnant minors who discover that their fetus has
a medical anomaly such as gastroschisis.5 The record further shows that most women who are
denied a bypass but who experience a change in their circumstances will subsequently seek another
bypass procedure. Because Ohio’s law preventing more than one petition per procedure acts as a
substantial obstacle to a woman’s right to an abortion in a large fraction of the cases in which the
single petition is relevant, we find that the Single-Petition Rule is an undue burden and, therefore,
is facially unconstitutional.
In sum, because the Single-Petition Rule fails under Casey’s large-fraction test, we hold that
it is facially unconstitutional.
B. Severability of the Single-Petition Rule
The Single-Petition Rule is severable from the remainder of Ohio’s statute regulating
abortion. Therefore, our finding that the Single-Petition Rule does not survive constitutional
scrutiny is not fatal to the remainder of the regulations.
In Ayotte v. Planned Parenthood of N. New Eng., 126 S. Ct. 961, 964 (2006), the Supreme
Court held that a reviewing court need not invalidate an entire statute when the court “may be able
to render narrower declaratory and injunctive relief.” The “normal rule” is that “partial, rather than
facial, invalidation is the required course.” Id. at 968 (quoting Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 504 (1985)). “So long as [the reviewing court is] faithful to legislative intent,” the
5
It is likewise clear from the record that most judicial bypass petitions are filed in the first trimester of a
minor’s pregnancy and that fetal anomalies are usually not discoverable or diagnosed until the second trimester.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 8
court “can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional
application.” Id. at 969.
Whether a portion of a state’s statute is severable is determined by the law of that state. See
Voinovich, 130 F.3d at 202. In Ohio, “statutory provisions are presumptively severable.” Id. Ohio
law provides that:
If any provisions of a section of the Revised Code or the application thereof to any
person or circumstance is held invalid, the invalidity does not affect other provisions
or applications of the section or related sections which can be given effect without
the invalid provision or application, and to this end the provisions are severable.
Ohio Rev. Code § 1.50 (2006). A provision may be severed only if “severance will not
fundamentally disrupt the statutory scheme of which the unconstitutional provision is a part.”
Voinovich, 130 F.3d at 202 (citing State ex rel. Maurer v. Sheward, 644 N.E.2d 369, 377 (Ohio
1994)).
Ohio has devised a three-factor test that determines whether severance will cause such a
disruption:
(1) Are the constitutional and the unconstitutional parts capable of separation so that
each may be read and may stand by itself? (2) Is the unconstitutional part so
connected with the general scope of the whole as to make it impossible to give effect
to the apparent intention of the Legislature if the clause or part is stricken out? (3)
Is the insertion of words or terms necessary in order to separate the constitutional
part from the unconstitutional part, and to give effect to the former only?
Id. (quoting Geiger v. Geiger, 160 N.E. 28, 33 (1927)).
Applying this test, we find that the Single-Petition Rule may be severed. As to the first part
of the test, the Single-Petition Rule can be read independently. Nothing in the remainder of the
bypass scheme inherently requires a limit on the number of petitions. The Single-Petition Rule is
therefore “capable of separation.” As to the second part of the test, excising the Single-Petition Rule
is not so connected to the general scope of the bypass scheme that other provisions would not have
their intended effect if the court removed it. Under the final part of the test, we need only eliminate,
not add, words to strike down the Single-Petition Rule. The Single-Petition Rule can simply be
deleted. The invalidity of the Single-Petition Rule does not affect the remainder of Ohio’s parental
consent law and, therefore, is severable.
IV. The In-Person Rule
We now turn to the In-Person Rule. Although Casey upheld both an in-person informed-
consent requirement and a twenty-four-hour notification requirement, the record in Casey as to these
two issues was sparse. In the Casey Court’s words, “there is no evidence on this record that
requiring a doctor to give the information as provided by the statute would amount in practical terms
to a substantial obstacle to a woman seeking an abortion.” Casey, 505 U.S. at 884. Therefore, the
Court concluded that the in-person informed-consent requirement did not constitute an undue
burden. Id. at 885; see also id. at 887 (“Hence, on the record before us, and in the context of this
facial challenge, we are not convinced that the 24-hour waiting period constitutes an undue
burden.”).
The sum of the evidence before the Casey Court concerning the twenty-four-hour
notification requirement was as follows:
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 9
The findings of fact . . . indicate that because of the distances many women must
travel to reach an abortion provider, the practical effect will often be a delay of much
more than a day because the waiting period requires that a woman seeking an
abortion make at least two visits to the doctor. [I]n many instances this will increase
the exposure of women seeking abortions to “the harassment and hostility of
anti-abortion protestors demonstrating outside a clinic.” As a result, . . . for those
women who have the fewest financial resources, those who must travel long
distances, and those who have difficulty explaining their whereabouts to husbands,
employers, or others, the 24-hour waiting period will be “particularly burdensome.”
Id. at 885-86. On the basis of these facts, and without reference to abused women, the Supreme
Court declined to find an undue burden. The record evidence concerning abused women available
to the Casey Court centered entirely on the impact on such women of the spousal-notification
requirement. See Casey, 505 U.S. at 888–94. These admittedly extensive facts did not discuss the
impact on abused women of the in-person informed-consent requirement. Id.
The Appellants in the case at bar were obviously aware of the Casey Court’s reliance on the
paucity of the record concerning how the in-person informed-consent requirement affected abused
women in declining to find an undue burden. In an attempt to establish that there are abused women
who effectively cannot obtain in-person informed consent with a physician at least twenty-four hours
prior to receiving an abortion, the Appellants amassed an impressive amount of data, akin to the data
available in Casey on the issue of spousal notification.
The record shows that three Ohio abortion providers, by their own policies, currently require
women to come in for an in-person informed-consent meeting prior to obtaining an abortion. This
meeting does not have to be with a physician. Some abortion-seeking women request to be excused
from the in-person meeting. Some of these requests are denied by the clinics. Attendance is
excused for women who “simply live too far away” or have “income or [other] hardship” reasons.
Women excused from the in-person informed-consent meeting constitute 5 to 10 percent of abortion-
seeking women. According to Appellants, the in-person meeting is all but impossible for women
“in abusive situations,” who constitute approximately 25 percent of the women excused by the
clinics’ in-person requirement. Of this 25 percent, 12.5 percent would be precluded altogether from
obtaining an abortion as a result of the In-Person Rule. For abused women, appearing in person
twice is difficult and, in some cases, life-threatening. Any woman who is excused from the in-
person informed-consent meeting receives videos and literature through the mail sent to her or
another address of her choice. All other women are required to come in for an in-person meeting
prior to obtaining an abortion.
Therefore, of every 1000 women who seek an abortion, 50 to 100 are excused by the clinic
from an in-person informed-consent meeting. According to the facts provided by the clinics, 6 to
12.5 of those 50 to 100 excused women will face a substantial obstacle in obtaining an abortion if
forced to comply with the In-Person Rule. Therefore, for approximately 6 to 12.5 women out of
every 1000 women seeking an abortion, the state’s In-Person Rule would likely deter them “from
procuring an abortion as surely as if [Ohio] has outlawed abortion in all cases.” Casey, 505 U.S. at
894.
Thus, Appellants have improved on the Casey record, at least with respect to the issue of
informed consent. Nevertheless, we find that the restriction survives constitutional scrutiny. The
parties agree that the group of women who will be deterred from obtaining an abortion because of
the restriction are the 12.5 women who, due to domestic abuse, cannot meet the in-person informed-
consent requirement without grave risk of retaliation. The parties disagree, however, over the
definition of the group for whom the law is a restriction. Appellants argue that the 12.5 women who
will not obtain an abortion as a result of the restriction should be compared against all women
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 10
actually affected by the in-person requirement, defined as all women who are presently excused by
the clinic from the clinic’s own in-person informed-consent requirement. Ohio argues, on the other
hand, that the group for whom the law is actually relevant is all women seeking an abortion.
Unlike the parties, we find that the group for whom the law is a restriction for purposes of
applying Casey’s large fraction test is “all women who seek an exception to the clinic’s in-person
informed-consent requirement.” The record does not reflect this number.
Yet, even accepting the definition urged by Appellants, we do not find a substantial burden
under Casey. This Court has previously found that a large fraction exists when a statute renders it
nearly impossible for the women actually affected by an abortion restriction to obtain an abortion.
Voinovich, 130 F.3d at 201. Importantly, in Voinovich, a large fraction was found because all
women upon whom the restriction actually operated — i.e., women seeking second-trimester pre-
viability abortions — would effectively be barred from exercising their constitutional right to obtain
an abortion. Id. Other circuits that have applied the large fraction test to facial challenges to
abortion regulations have, likewise, only found a large fraction when practically all of the affected
women would face a substantial obstacle in obtaining an abortion. See, e.g., Heed, 390 F.3d at 64;
Farmer, 220 F.3d at 145; Miller, 63 F.3d at 1463; see also Newman, 305 F.3d at 699 (Coffey, J.
concurring) (in applying the large-fraction test “it is clear [from Casey] that a law which incidentally
prevents ‘some’ [of the] women [for whom the abortion restriction will actually be a burden] from
obtaining abortions passes constitutional muster”). The Casey Court itself was not persuaded to
invalidate Pennsylvania’s parental-consent requirement by record evidence showing that the
requirement would altogether prevent some women from obtaining an abortion. Casey, 505 U.S.
at 899; see also Planned Parenthood v. Casey, 744 F. Supp. 1323, 1356-57 (E.D. Pa. 1990) (finding
that in “some” of the forty-six percent of cases where a minor can neither obtain parental consent
nor obtain a judicial bypass, the law “may act in such a way as to deprive [the minor] of her right
to have an abortion”).
To date, no circuit has found an abortion restriction to be unconstitutional under Casey’s
large-fraction test simply because some small percentage of the women actually affected by the
restriction were unable to obtain an abortion. Although a challenged restriction need not operate
as a de facto ban for all or even most of the women actually affected, the term “large fraction,”
which, in a way, is more conceptual than mathematical, envisions something more than the 12 out
of 100 women identified here.
V. Conclusion
For the foregoing reasons, the judgment of the district court upholding the Single-Petition
Rule is REVERSED, the judgment upholding the In-Person Rule is AFFIRMED, and the case is
REMANDED for further proceedings consistent with this opinion.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 11
_________________
CONCURRENCE
_________________
ROGERS, Circuit Judge, concurring. I concur in Parts I, III-B, and IV of the majority
opinion, and entirely in the result. I write separately concerning the single petition rule because, as
a categorical limitation on whether an abortion is permitted at all, the rule defies application of the
“large fraction” test. The Supreme Court has used the “large fraction” test instead to examine state
regulation of how an abortion is to be performed or of what information should be given a woman
who is legally allowed to get an abortion. It is not necessary in this case to apply the test to the
single petition rule, however, because Supreme Court holdings regarding judicial bypass procedures
directly compel invalidation of that rule.
Requiring a minor to get parental consent for an abortion, without the possibility of an
administrative or judicial bypass procedure that meets defined standards, unduly burdens the minor’s
right to an abortion. This is the holding of Bellotti v. Baird, 443 U.S. 622, 647-51 (1979) (plurality
opinion) (“Bellotti II”), reaffirmed by the Supreme Court in many subsequent cases. See, e.g.,
Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (per curiam); Planned Parenthood v. Casey, 505
U.S. 833, 895 (1992); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 510-13 (1990).
To survive constitutional challenge, a law requiring parental consent for a minor’s abortion must
contain a procedure that (1) allows the minor to bypass the consent requirement if she establishes
that she is mature enough and well enough informed to make the abortion decision independently,
(2) allows the minor to bypass the consent requirement if she establishes that the abortion would be
in her best interests, (3) ensures the minor’s anonymity, and (4) provides for expeditious bypass
procedures. See Lambert, 520 U.S. at 295.
The Supreme Court in Bellotti II stated that a minor possesses an absolute right to a
proceeding where she may establish her entitlement to a bypass:
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 parents’ wishes; or (2) that
even if she is not able to make this decision independently, the desired abortion
would be in her best interests.
Bellotti II, 443 U.S. at 643-44 (emphasis added). The Bellotti II Court explained that every minor
must have the opportunity to establish that she should not have to seek parental consent based on
her current level of maturity or her current best interests:
We conclude, therefore, that under state regulation such as that undertaken by
Massachusetts, every minor must have the opportunity—if she so desires—to go
directly to a court without first consulting or notifying her parents. If she satisfies
the court that she is mature and well enough informed to make intelligently the
abortion decision on her own, the court must authorize her to act without parental
consultation or consent. If she fails to satisfy the court that she is competent to make
this decision independently, she must be permitted to show that an abortion
nevertheless would be in her best interests. If the court is persuaded that it is, the
court must authorize the abortion. If, however, the court is not persuaded by the
minor that she is mature or that the abortion would be in her best interests, it may
decline to sanction the operation.
Id. at 647-48.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 12
Under a fair reading of Bellotti II, a minor’s right not to seek parental consent depends on
the current level of her maturity or interest in abortion. See id. at 647-51. Bellotti II also provides
that this right must be protected by judicial proceedings. See id. But if the right is to be adequately
protected, such proceedings must account for material changes in the petitioner’s state after a first,
unsuccessful bypass proceeding. Accordingly, under Bellotti II, the single petition rule is facially
invalid because, after a failed first petition, the rule does not permit a judge to evaluate the
petitioner’s current maturity or interest in abortion in light of new developments. When a minor
alleges that her current state has materially changed, an older and potentially incorrect determination
will in identifiable cases nullify Bellotti II’s command that a minor’s current state be determinative
of her request for a bypass. Ohio must in some manner stand ready to evaluate minors’ claims of
appropriate changed circumstances. Such minors cannot constitutionally be cut off from all recourse
in the manner accomplished by the single petition rule. Therefore, the single petition rule violates
the right of second petitioners to some judicial or administrative process that evaluates their claims
of changed circumstances.
While the question of successive bypass petitions was not before the Bellotti II Court, the
Court’s rationale directly compels the result in this case. The Bellotti II Court founded its
determination of the law concerning parental consent and judicial bypass upon a careful and nuanced
balancing of constitutional interests. On the one hand were the need to preserve the constitutional
right to an abortion and the unique nature of the abortion decision. See id. at 639-44. On the other
hand were “the particular vulnerability of children; their inability to make critical decisions in an
informed, mature manner; and the importance of the parental role in child rearing.” Id. at 634.
These considerations preclude the single petition rule just as they led to a judicial bypass
requirement in the first place in Bellotti II. Indeed, the Bellotti II Court expressly contemplated that
a judicial bypass procedure would be available in later stages of pregnancy. See id. at 651 n.31. The
state has not distinguished Bellotti II by identifying any way in which the single petition rule furthers
the interests of protecting vulnerable minors, making up for their inability to make mature decisions,
or furthering the parental role, other than simply by curtailing the availability of judicial bypass for
minors with late-arising bases for a judicial bypass.
Instead, the single petition rule is said to avoid the possibility of a minor’s “re-filing
throughout her pregnancy until she finds a judge who will grant her petition.” Appellees’ Br. at 47.1
This court does not need to decide whether a state may require minors to direct their second or
successive bypass petitions to the same judge to avoid judge shopping, or require a higher burden
of proof for successive petitions to limit refiling. These issues are not before us because the single
petition rule does much more than limit judge shopping and unlimited refiling. Instead, it forbids
a judicial bypass where one has been sought unsuccessfully before in the same pregnancy, regardless
of a change in circumstances. Such a prohibition is inconsistent with the holding and reasoning of
Bellotti II, and thus constitutes an undue burden on a minor’s right to an abortion. Casey, which sets
the standard that we are bound to apply in abortion cases, explicitly reaffirmed the Bellotti II
holding. See 505 U.S. at 895, 899. Under Bellotti II a minor is entitled to seek a judicial bypass in
the later stages of pregnancy, and none of the constitutional foundations for this decision warrants
an exception so distantly related to the constitutional policies furthered by that decision. The
conclusion is inescapable that the single petition rule runs afoul of Bellotti II, which continues to
bind us.
The rationale of Bellotti II is of sufficiently direct applicability to the single petition rule at
issue in this case that it is not necessary for us to become entangled in the meta-mathematical
niceties of whether a “large fraction” of a relevant group is denied the right to an abortion. Indeed,
1
The state’s brief however concedes that “[t]he evidence established that second bypass petitions under the prior
law were extremely rare.” Appellees’ Br. at 18.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 13
the “large fraction” analysis contested by the parties is of questionable assistance in resolving the
issue presented in this case. The question in this case is not the constitutionality of some procedural
hurdle imposed as part of the bypass procedure, but rather the constitutionality of a categorical limit
on the availability of the bypass procedure to certain minors. No matter what the circumstances, a
minor who has previously been denied a judicial bypass may not obtain such a bypass during the
remainder of the same pregnancy.
In evaluating the constitutionality of such a provision, the inquiry cannot be simply restated
as whether “in a large fraction of the cases in which [the law] is relevant, it will operate as a
substantial obstacle to a woman’s choice to undergo an abortion.” Such a standard may provide
analytic clarity when the challenge is to a type of abortion procedure, where the question is whether
the right to an abortion is sufficiently preserved by the availability of other methods. See, e.g.,
Stenberg v. Carhart, 530 U.S. 914 (2000). The “large fraction” analysis may also make sense where
the question is whether the requirements of the judicial bypass procedure are so onerous as to defeat
its purposes and thereby unduly burden the minor’s right to an abortion. See, e.g., Memphis Planned
Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999). But where the issue is a categorical
exception to the availability of a bypass procedure, the “large fraction” analysis becomes so
manipulable as to lose its logical usefulness. Too much depends on the arbitrary determination of
what the denominator is.
Opponents of the categorical exception will simply argue that the denominator is the persons
precluded by the exception, leading to a large fraction of one. Thus plaintiffs in this case argue that
the denominator consists of “all women who are denied a bypass and who later discover medical and
other information causing them to renew their pursuit of an abortion.” Appellants’ Reply Br. at 2.
As the district court noted in its order denying CWS’s motion for a stay pending appeal, “[i]mplicit
in Plaintiffs’ argument is a contention . . . that the only relevant group in considering whether a
regulation creates an undue burden is those women who are actually foreclosed from obtaining an
abortion.” Any plaintiff so defining the denominator could automatically show a fraction of one
(i.e., one-hundred percent), and thereby invalidate any categorical exception to the availability of
a bypass procedure.
Defenders of the exception, on the other hand, must argue a larger denominator, some class
of abortion-seeking women that also includes persons not precluded. Thus defendants in this case
argue that the denominator should include all women who are initially denied bypasses, regardless
of circumstances that might obviate the need for a later bypass. In the absence of evidence that a
large portion of minors initially denied a bypass will need one later, defendants argue that the
relevant fraction is small. In contrast, but to a similar result, the district court at one point
considered the denominator to be minors whose need for a judicial bypass arises at a later point
during pregnancy, regardless of whether a bypass has been sought previously. Cincinnati Women’s
Servs., Inc. v. Taft, 2005 U.S. Dist. LEXIS 23015, at *49. The district court reasoned that “it is only
speculation that a large fraction of minors who develop fetal anomalies in the second trimester will
have already filed a petition for a bypass of parental consent.” Id. at *48. The difficulty with these
broader-denominator analyses is that they are in some tension with the idea that “[t]he proper focus
of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the
law is irrelevant.” Casey, 505 U.S. at 894; Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187,
194-97 (6th Cir. 1997). Where there is a categorical exception to the availability of a judicial
bypass, it is arguably somewhat artificial to say that those outside the category are within the group
for whom the law is a restriction.
Thus, outside the context of an abortion law that limits the types of abortions, or imposes
procedural hurdles to a judicial bypass, a total preclusion for a defined category of cases defies
“large fraction” analysis. In this context the district court’s observations about the indeterminacy
of the large fraction test are particularly compelling:
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 14
The “large fraction” standard enunciated in Casey by nature invites the courts and
the parties to engage in a number-crunching exercise to assess the impact of an
abortion regulation. The parties have tried to do so here. Nevertheless, stating that
a “large fraction” constitutes a substantial obstacle is not the same thing as defining
a “large fraction.” Because the Supreme Court instructs that the constitutional
analysis should focus on only those women for whom the restriction is actually
relevant, Casey, 112 S. Ct. at 2829, the argument devolves to which group of women
is properly considered the numerator and which group of women is properly
considered the denominator. Even if a court properly identifies the numerator and
denominator, it still must decide whether the resulting fraction is “large.” Again, the
Casey Court provides no real guidance. This Court’s research has not developed
any decisions in which the courts which have successfully applied, or have even
attempted to apply, the large fraction test.
Taft, 2005 U.S. Dist. LEXIS 23015, at *10–11 (footnote omitted).
Indeed, wooden application of a pure “large fraction” analysis would lead to the following
anomaly. Suppose a state law precluded a judicial bypass for persons who had traveled to Fiji in
the previous three months. The number of such persons in the state who needed a judicial bypass
would be a tiny fraction of any relevant group, other than the group of persons who need a judicial
bypass who have been to Fiji. Yet it is hard to imagine that the Supreme Court would uphold such
a limit under a “large fraction” analysis. On the other hand, there may be categorical limitations on
the availability of a judicial bypass that would not be an undue burden on the right to an abortion.
Although Bellotti II was handed down more than a decade before Casey, Justice Powell’s opinion
in Bellotti II explicitly applied an “undue burden” test, albeit without using any “large fraction”
analysis. 443 U.S. at 640, 647–48. The opinion cannot fairly be read to preclude any type of
categorical limitation on the availability of a judicial bypass. Such a reading, unnecessary today,
would be an overly formal and artificial application of a “large fraction” analysis that makes sense
only in other contexts.