Refining Permissible Abortion Regulations: Mandatory In-Person, Informed-Consent Meetings Held Constitutional, but Restriction on Number of Petitions by Minors for Judicial By-Pass of Parental-Consent Requirement Overturned - Cincinnati Women's Services, Inc. v. Taft1 - The United States Court of Appeals for the Sixth Circuit recently held that a provision of Ohio's abortion statute limiting minors to only one petition for judicial bypass of the parental-consent requirement for an abortion was an unconstitutional undue burden, but upheld a provision requiring an in-person meeting with a physician at least twenty-four hours prior to receiving the abortion.2
Prior to 1998, Ohio law required that minor women receive the informed consent of a parent or guardian before receiving an abortion.3 The law, however, allowed minors to petition a juvenile court for a judicial bypass of the parental-consent requirement so that the court could decide whether the minor was "sufficiently mature and well enough informed to intelligently decide whether to have an abortion" or whether notification of her parents was not in her best interest.4 The law did not impose any limitations on the number of times a minor could petition a court for such a bypass.5
Additionally, Ohio law mandated that women seeking an abortion receive information about the procedure from a physician at least twenty-four hours prior to the abortion.6 The informed-consent provision required that "a physician [inform] the pregnant woman, verbally or by other nonwritten means of communication," about the procedure.7 The Ohio Attorney General interpreted this language to mean that videotaped or audiotaped physician statements would be adequate means of imparting the necessary information to those seeking abortions.8
In 1998, the Ohio General Assembly passed Ohio House Bill 421, which amended the judicial bypass and informed-consent provisions of Ohio's abortion regulations.9 First, the new law limited a minor woman to only one judicial bypass petition during the term of each pregnancy (the "Single-Petition Rule").10 The Single-Petition Rule entitled minor women to only "one bite at the apple" when petitioning for a judicial bypass to the parental-consent requirement.11 second, the amendment required that the informed-consent meeting take place in person (the "In-Person Rule").12 This provision served to undo the previous law's permission to allow the use of recorded materials for informed-consent purposes and required those seeking abortions to make an additional trip to a physician prior to the procedure.
Cincinnati Women's Services, a healthcare provider that offers family planning services, and its medical director (hereinafter collectively "CWS"), brought a pre-enforcement facial attack against the Single-Petition and InPerson Rules, naming the Governor of Ohio and other government officials as defendants.13 CWS claimed that the provisions were "unconstitutionally vague and invalid under Supreme Court precedent."14 The Federal District Court for the District of Ohio upheld both provisions, noting that neither the Single-Petition nor the In-Person Rules created an undue burden on women seeking abortions.15 CWS appealed.16
The Sixth Circuit Court of Appeals began its analysis by determining that the proper standard to apply to facial challenges of abortion restrictions is the "large-fraction test" set out in Planned Parenthood of Southeastern Pennsylvania v. casey.17 The large-fraction test requires a reviewing court "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.'"18 In other words, the court must construct a fraction, the denominator of which is the number of women affected by the law, and the numerator of which is the number of those affected women who, because of the restriction, are precluded from receiving an abortion. …