DAVIS v. FIEKER

DAVIS v. FIEKER
1997 OK 156
952 P.2d 505
69 OBJ 34
Case Number: 88420
Decided: 12/23/1997
Mandate Issued: 02/12/1998
Supreme Court of Oklahoma

FRANK W. DAVIS, LARRY FERGUSON, ROBERT WORTHEN, TIM POPE, DAN WEBB, CHARLES GRAY, CHARLES KEY, JOAN GREENWOOD, CAROLYN COLEMAN, WAYNE COZORT, LEONARD SULLIVAN, GROVER CAMPBELL, WAYNE PETTIGREW, MIKE O'NEAL, JIM REESE, RICHARD PHILLIPS, JOHN SMALIGO, MIKE THORNBRUGH, DOUG MILLER, JOHN SULLIVAN, SCOTT ADKINS, FRED PERRY, ODILIA DANK, SHARON GOLMORADI AND CRAIG EVANS, M.D., Appellants,
vs.
DAN H. FIEKER, President of Oklahoma State Board of Health, GORDON H. DECKERT, Vice President of the Oklahoma State Board of Health, BETH ANITA GORDON, GLEN DIACON, JR., R. BRENT SMITH, FRANK W. MERRICK, JOHN B. CARMICHAEL, JAY A. GREGORY, WALTER SCOTT, Members of the Oklahoma State Board of Health, JERRY NIDA, Commissioner of the Oklahoma State Board of Health and THE DEPARTMENT OF HEALTH OF THE STATE OF OKLAHOMA, Appellees.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE JAMES B. BLEVINS, DISTRICT JUDGE

[952 P.2d 506]

¶0Petitioners applied for writ of mandamus in the district court against individual members of Oklahoma State Board of Health, Commissioner of Oklahoma State Board of Health, and Department of Health of State of Oklahoma seeking members of Board be compelled to promulgate standards regarding abortion facilities and Commissioner be required to enforce regulations and statutes regarding performance of abortions. District Judge James B. Blevins dismissed individual defendants and denied application for writ of mandamus as to other parties. This Court retained the case for disposition.

JUDGEMENT OF DISTRICT COURT AFFIRMED IN PART
AND REVERSED IN PART;
WRIT OF MANDAMUS IS GRANTED
AGAINST COMMISSIONER OF OKLAHOMA STATE BOARD OF HEALTH.

William D. (Bill) Graves, Oklahoma City, Oklahoma, for Appellants.
Jack L. Atkinson, Suzanne W. Nichols, Oklahoma State Department of Health, Oklahoma City, Oklahoma, for Appellees.
Dara Klassel, Legal Action for Reproductive Rights Planned Parenthood Federation of American, Inc., New York, New York, Linda G. [952 P.2d 507] Scoggins, Oklahoma City, Oklahoma, Margaret A. Swimmer, William H. Hinkle, Tulsa, Oklahoma, for amici curiae Planned Parenthood of Central Oklahoma, Inc., Planned Parenthood of Eastern Oklahoma and Western Arkansas, Inc., The Religious Coalition for Reproductive Choice, American Civil Liberties Union of Oklahoma, and Oklahoma National Abortion Rights Action League.
Michael L. Tinney, Oklahoma City, Oklahoma, Mark D. Mitchell, John B. Davis, Metheny, Mitchell, Davis, & Klein, Oklahoma City, Oklahoma; Steve Nash, Oklahoma City, Oklahoma, for amici curiae, The Oklahoma Family Policy Council, The Oklahoma Christian Coalition, Eagle Forum, Concerned Women of America, and Oklahomans for Children and Families.

HODGES, J.

¶1The principle issue in this case is whether the district court erred in finding that sections 1-731 and 1-737 of title 63 restricting abortions to certain facilities are unconstitutional. The other issue in this case is whether the trial court erred in dismissing individual members of the Oklahoma State Board of Health (Board) as defendants and denying the petition for writ of mandamus. We find that, on the record before this Court, sections 1-731 and 1-737 are not unconstitutional and a writ of mandamus should issue against the Commissioner of the Oklahoma State Board of Health.

I. Facts

¶2In 1973, the United States Supreme Court in Roe v. Wade

¶3In 1984, Oklahoma's Attorney General opined that these restrictions on abortion were unconstitutional

¶4Twenty-three Oklahoma legislators, a physician practicing in Oklahoma, and a woman who allegedly had suffered injury from an abortion performed in a clinic

[952 P.2d 508]

¶5The parties stipulated to the following facts. The legislative plaintiffs have standing to bring the suit. Certain plaintiffs are members on the Board, and the Commissioner has the duty to administer and enforce the laws regarding the Department. In 1979, the Board promulgated rules for the licensure and governance of abortion facilities, but the Commissioner has not enforced either the rules or statutes since the Attorney General rendered his opinions finding Oklahoma's statutes were unconstitutional. Currently, ambulatory surgical centers, hospitals, nursing facilities, hospices, home care agencies, birthing centers, alcoholism treatment centers, and emergency medical services are regulated by the Department. Between 1981 and 1997, there were three abortion-related deaths in Oklahoma.

¶6At the hearing, the trial judge refused to admit petitions filed in district courts alleging malpractice by doctors performing abortions. The trial judge also refused to hear plaintiffs' evidence regarding the need to regulate abortion facilities and the need for certain emergency equipment. Also rejected was the testimony of the plaintiff, Ms. Golmoradi, regarding the complications from her abortion. The defendants argued without presenting supporting evidence that the effect of the statutes and rules regulating abortion would create an undue burden on the right to have an abortion.

¶7The plaintiffs filed a petition in error preserving for this Court's review the following issues: (1) whether mandamus is an appropriate remedy in this case, (2) whether sections 1-731 and 1-737 of title 63 of the Oklahoma Statutes are constitutional, and (3) whether the trial judge improperly excluded testimony of plaintiff's expert and evidence of malpractice suits filed in district courts. This Court retained the case for disposition.

II. STANDING

¶8 Standing is based on an interest in the proceeding that is "direct, immediate and substantial."

¶9We need not address the standing of the plaintiffs which are members of the Oklahoma Legislature since we find that the other two plaintiffs have standing.

III. Writ of Mandamus

¶10The defendants argue that mandamus is not a proper remedy in this case because promulgation of rules and enforcement of both rules and statutes are discretionary functions and there is not a plain legal duty to perform discretionary functions.

[952 P.2d 509]

¶11We first note that in 1979, the Board promulgated regulations governing the licensure of abortion facilities. The defendants have not argued that the 1979 regulations which are still effective, even though not enforced, are inconsistent with the abortion statutes or that the regulations do not meet the mandate of section 1-737. This leaves the question of whether mandamus is proper as to the enforcement of the statutes and regulations.

¶12Writs of mandamus are governed by sections 1451 and 1452 of title 12 of the Oklahoma Statutes. Section 1451 provides that a writ of mandamus may issue "to any . . . board or person . . . to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station." Section 1452 prohibits the issuance of a writ "where there is a plain and adequate remedy in the ordinary course of the law."

¶13Here, the Commissioner has the duty to enforce the "rules, regulations and standards adopted by the State Board of Health."

IV. Oklahoma's Statutes Regulating Abortion

¶14As stated above, under Oklahoma's statutory scheme, the Oklahoma State Board of Health has the power to adopt rules and regulations to carry out the provisions of the Oklahoma Public Health Code.

¶15In 1978, the Oklahoma Legislature enacted sections 1-731(B) and 1-737 of title 63 of the Oklahoma Statutes as part of the Oklahoma Public Health Code. Section 1-731(B) provides:

No person shall perform or induce an abortion upon a pregnant woman subsequent to the end of the first trimester of her pregnancy, unless such abortion is performed or induced in a general hospital.

Section 1-737 provides:

An abortion otherwise permitted by law shall be performed only in a hospital, as defined in this article, which meets standards set by the Department. The Department shall develop and promulgate reasonable standards relating to abortions.

Section 1-732 prohibits abortions after the fetus is viable

¶16Section 1-701(1) defines hospitals to include "places where pregnant females are admitted and receive care incident to pregnancy, abortion or delivery." A general hospital is "a hospital maintained for the purpose of providing hospital care in a broad category of illness and injury."

¶17 In 1979, pursuant to section 1-737, the Department promulgated regulations governing abortions. The abortions follow the statutory scheme established in title 63. The effect of the statutory scheme and the regulations is to permit abortions during the first trimester

V. United States Supreme Court Decisions
Before Casey

¶18In 1973, the United States Supreme Court decided Roe v. Wade,

¶19Under Roe, these state interests became more compelling as the pregnancy progressed,

¶20 A state's interest in protecting potential human life became compelling at viability.

¶21 The United States Supreme Court decided Doe v. Bolton,

¶22In striking down Georgia's hospital-related requirements, the Court noted that the Joint Commission on Accreditation of Hospitals accreditation requirement was not "reasonably related to the purposes of the Act."

¶23Then in 1983, the United Supreme Court once again faced issues relating to abortion regulations in City of Akron v. Akron Center for Reproductive Health, Inc.,

¶24The Akron Court struck down as unconstitutional an ordinance requiring all abortions after the end of the first trimester to be performed only in acute-care, full-service hospitals.

¶25Ashcroft dealt with several Missouri abortion statutes, one of which restricted abortions after the twelfth week of pregnancy to hospitals.

¶26In Simopoulos v. Virginia,

VI. Oklahoma Attorney General's Opinions

¶27With this as the background, Oklahoma's Attorney General was asked whether Oklahoma's statutory scheme regulating abortions was constitutional.

¶28Then in 1991, the Attorney General was asked whether his 1984 opinion was binding on the Department.

VII. Planned Parenthood of Southeastern
Pennsylvania v. Casey

¶29Until 1989, when it decided Webster v. Reproductive Health Services,

¶30In 1992, the United States Supreme Court decided Casey and, while receding from Roe, refused to overrule it.

¶31Applying these principles to the statutes at issue and overruling previous holdings including parts of Akron, the Casey Court upheld a requirement that 24 hours before an abortion, a doctor was to "inform the woman of the nature of the procedure, the health risks of the abortion and childbirth, and the 'probable gestational age of the unborn child,'" make available printed materials, and obtain the woman's written consent.

¶32A review of the Casey opinion shows that legal findings regarding the constitutionality of the statutes at issue were based on the record before the Court and on the evidence of the effect of the statutes on a woman's right to seek an abortion.

¶33Since the 1992 decision in Casey, the United States Supreme Court has upheld a statute requiring either that a minor's parent be notified or a court finding that notification is not in the minor's best interest before an abortion can be performed.

¶34 In 1997, the United States Supreme Court decided Mazurek v. Armstrong.

VIII. The Standard for Facial Attacks
on Abortion Regulations

¶35Since the Casey decision, there has been confusion on the proper standard to be applied in facial attacks of abortion regulations.

¶36Because the challengers, the defendants in this case, do not argue that there are no set of circumstances under which sections 1-731 and 1-737 would be valid, the statutes withstand the Salerno test for a facial attack on the record before us. Thus, we analyze the validity of the statutes under the undue-burden test.

IX. Validity of Sections 1-731 and 1-737

¶37In determining the validity of Oklahoma's abortion restrictions, it is the duty of this Court to uphold the law and apply federal constitutional law

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

¶38As stated above, the Oklahoma statutes regulation abortion can be divided into three distinct phases. First, from conception [952 P.2d 515] until the end of the first trimester, the abortion must be performed in a hospital which includes offices and clinics.

¶39We must then look to the record before us as the source of information to determine whether the evidence shows that restricting abortions performed during the first trimester to hospitals, including clinics and offices, and restricting abortions performed during the second trimester before viability to general hospitals places an undue burden on a woman's right to seek an abortion during these periods of her pregnancy.

¶40The evidence in this case is insufficient to show that the restrictions place an undue burden on a woman's right to abortion. In striking down a spousal notification requirement in Casey, the Court relied on evidence that the requirement would allow "the husband to wield an effective veto over his wife's decision."

¶41 In A Woman's Choice-East Side Women's Clinic v. Newman,

¶42In Casey, the United States Supreme Court upheld an informed consent requirement based on the lack of evidence in the record that the requirement "would amount in practical terms to a substantial obstacle to a woman seeking an abortion."

¶43The defendants urge that the decision in Akron controls the present case. The Casey decision addressed some of the issues raised in Akron and explicitly overruled parts of the Akron decision although it did not address the requirement that [952 P.2d 516] second-trimester abortions be performed in hospitals. The United Supreme Court in Casey rejected the rigid standard of review endorsed in Roe and on which the Akron decision was based. After a review of the Casey decision and subsequent decisions, we disagree that Akron retains its validity. For these reasons, the Casey decision, not the decision in Akron, controls the present case.

X. Conclusion

¶44In 1979, the Board promulgated standards regarding the licensure of abortion facilities. The application for a writ of mandamus to require the Board and its members to promulgate standards is moot. Thus, we need not address whether the individual members are proper parties to this action. The district court correctly dismissed the individual members of the Board. Further the district court correctly refused to issue a writ of mandamus against the Board because it is has promulgated standards regarding abortion facilities as requested in the application.

¶45 The Commissioner is charged with enforcement and has refused to enforce regulations regarding abortion facilities based on opinions of the Oklahoma Attorney General that the underlying statutes, sections 1-731 and 1-737 of title 63, are unconstitutional. On the record before us, we find that sections 1-731 and 1-737 are not invalid. Mandamus is proper against the Commissioner to require that he enforce these statutory provisions subject to his prosecutorial discretion.

JUDGEMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; WRIT OF MANDAMUS IS GRANTED AGAINST COMMISSIONER OF OKLAHOMA STATE BOARD OF HEALTH.

¶46CONCUR: Hodges, Lavender, Hargrave, Opala, Watt, JJ.

¶47CONCUR IN RESULT: Kauger, C.J., Summers, V.C.J.

¶48CONCUR IN PART; DISSENT IN PART: Wilson, J.

¶49DISSENT: Simms, J.

FOOTNOTES

1 410 U.S. 113 (1973).

2 Okla. Stat. tit. 63, § 1-737 (1991).

3 Id. at §§ 1-731, 1-737.

4 The term nontherapeutic abortion as used here is one which is performed for reasons other than abortions which are necessary "to prevent the death of the pregnant woman or to prevent an impairment to her health." See id. at § 1-732(C).

5 Id. at §§ 1-732(C).

6 Op. Att'y Gen. No. 83-182 (1984).

7 Id. at No. 91-10 (1991).

8 505 U.S. 833 (1992).

9 The record does not show at what date the plaintiff Sharon Golmoradi had the abortion which allegedly caused the injuries or if the abortions fell within the statutory restrictions. The petition reflects the Golmoradi's alleged injuries were not a result of the abortion being performed in a clinic but allegedly the doctor's failure to instruct her as to post-abortion care.

10 The amici curiae brief supporting the defendants' position presents evidentiary information that limiting the performance of abortions to general hospitals after the first trimester places an undue burden on women seeking an abortion. This evidentiary information is not part of the record on appeal and cannot properly be considered by this Court. Anerson v. Eichner, 1994 OK 136, n. 7, 890 P.2d 1329.

11 In re Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576.

12 The plaintiffs which are members of the Legislature are: Frank W. Davis, Larry Ferguson, Robert Worthen, Tim Pope, Dan Webb, Charles Gray, Charles Key, Joan Greenwood, Carolyn Coleman, Wayne Cozort, Leonard Sullivan, Grover Campbell, Wayne Pettigrew, Mike O'Neal, Jim Reese, Richard Phillips, John Smaligo, Mike Thornbrugh, Doug Miller, John Sullivan, Scott Adkins, Fred Perry, and Odilia Dank.

13 Okla. Stat. tit. 63, § 1-106(B)(2) (1991).

14 See State v. Okla. Corp. Comm'n, 1980 OK 96, 614 P.2d 45.

15 Okla. Stat. tit. 63, § 1-104 (1991).

16 Id. at § 1-106(B)(2).

17 A fetus become viable when it has reached a stage where it can live and develop outside the womb. See The American Heritage Dictionary 1346 (2nd ed. 1976).

18 Okla. Stat. tit. 63, § 1-701(2) (1991).

19 Full term of pregnancy is reached at 40 weeks after a woman's last normal menstrual period . Ralph C. Benson, M.D. , HANDBOOK OF OBSTETRICS & GYNECOLOGY 65 (1992). The first trimester ends at thirteen and one-half weeks after a woman's last normal menstrual period. Viability of the fetus is possible 24 weeks after a woman's last normal menstrual period. Benson, supra ,at 81; see Okla. Stat. tit. 63, § 1-732(B) (1991).

20 410 U.S. 113 (1973)

21 Id. at 155.

22 Id. at 162.

23 Id. at 154.

24 Id. at 162-63.

25 Id. at 163.

26 Id.

27 Id.

28 Id.

29 410 U.S. 179 (1973),

30 Id. at 184.

31 Id. at 194.

32 Id. at 195.

33 462 U.S. 416 (1983) overruled in part by Casey, 505 U.S. at 870.

34 462 U.S. 476 (1983).

35 462 U.S. 506 (1983).

36 Akron at 429.

37 Id. at 430-31 (quoting Roe, 410 U.S. at 163).

38 Id. at 431 (quoting Doe v. Bolton, 410 U.S. 179, 195 (1973).

39 Id. at 432.

40 Id. at 434-35, 437.

41 Id. at 448.

42 462 U.S. at 478.

43 Id. at 481 n. 6.

44 462 U.S. at 506.

45 Id. at 512.

46 Id. at 514.

47 Id. at 514-15.

48 Id.

49 Id. at 516-17.

50 Ok. Att'y Gen. Op. 83-182 (1984).

51 Id. Specifically, the opinion states:

It is, therefore, the official opinion of the Attorney General that:

1. Based upon the United States Supreme Court decisions . . . 63 O.S. 1981, § 731(B) which provides that an abortion performed subsequent to the end of the first trimester of pregnancy be performed or induced in a general hospital, is unconstitutional because it unreasonably infringes upon a woman's constitutional right to obtain an abortion; and

2. Title 63 O.S. 1981, § 1-737 which provides that an abortion otherwise permitted by law shall be performed only in a hospital, extends the interest of the State in regulating abortions beyond permissible limits and is unconstitutional.

52 Ok. Att'y Gen. Op. 91-10 (1991).

53 Id.

54 Id.

55 505 U.S. 833 (1992).

56 492 U.S. 490 (1989).

57 Jethro K. Lieberman, The Evolving Constitution 24 (1992); see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) overruled in part by Casey, 505 U.S. at 870 (invalidating statutes requiring women to be advised of financial assistance for child, detrimental physical and psychological effects, and particular medical risks, governing care of abortions done after viability of the fetus, and requiring presence of second physician without excepting medical emergency); Bellotti v. Baird, 443 U.S. 622 (1979) (invaliding parental consent requirement); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) (invaliding spousal consent requirement, ban on certain procedures after first trimester, blanket parental consent requirement, but upholding woman's written consent requirement and hospital record keeping requirement); State v. Menillo, 423 U.S. 9 (1975) (upholding requirement abortion be performed by physician); but cf. H.L. v. Matheson, 450 U.S. 398 (1981) (upholding parental notification for an unemancipated minor who lives with and is dependent on parents and does not allege sufficient maturity to make decision to have abortion or bad relationship with parents.)

The United Supreme Court has never required a state to fund abortions. Webster v. Reproductive Helath Services, 492 U.S. at 1989; Harris v. McRae, 488 U.S. 297 (1980); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519 (1977); Singleton v. Wulff, 428 U.S. 106 (1976).

58 492 U.S. at 490.

59 505 U.S. at 846.

60 Id. at 860.

61 Id. at 874.

62 Id. at 877.

63 Id. at 878.

64 Id.

65 Id. at 881-87 (overruling Akron, 462 U.S. at 416).

66 Id. at 893.

67 Id. at 899.

68 Id. at 900.

69 Id. at 884, 887, 888.

70 Id. at 884.

71 Id. at 887-98.

72 Id. at 885-86; id. at 926 (Blackmun, J, concurring in part and dissenting in part); Planned Parenthood of Southeastern Pennsylvania v. Casey, 510 U.S. 1309 (1994) (decision by Justice Souter, in chambers).

73 Lambert v. Wickland, U.S. , 117 S. Ct. 1169 (1997).

74 Maher v. Roe, 432 U.S. 464 (1977).

75 Dalton v. Little Rock Family Planning Services, U.S. , 116 S. Ct. 1063 (1996).

76 U.S. , 117 S. Ct. 1865 (1997).

77 Id. at 1867.

78 Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995); Fargo Women's Health Organization v. Schafer, 18 F.3d 526, 530 (8th Cir. 1994); Women's Medical Prof. Corp. v. Vionovich, 911 F. Supp. 1051,1060 (S.D.Ohio 1995); Woman's Choice-East Side Women's Clinic v. Newman, 904 F. Supp. 1434, 1447 (S.D.Ind. 1995).

79 481 U.S. 739 (1987).

80 Id. at 745.

81 Casey, 505 U.S. at 876-77.

82 Id. at 877.

83 Fargo Women's Health Org. v. Schafer, 507 U.S. 1013 (1993).

84 In re Initiative Petition No. 349, 838 P.2d 1, 7, 1992 OK 122.

85 Casey, 505 U.S. at 850.

86 Okla. Stat. tit. 63, § 1-737 (1991).

87 Id. at § 1-731.

88 Id. at § 1-732(C).

89 505 U.S. at 860.

90 838 P.2d at 7.

91 505 U.S. at 887.

92 Id. at 886.

93 Id.

94 Id. at 897.

95 904 F. Supp. 1434 (S.D.Ind. 1995).

96 Id. at 1448.

97 Id.

98 Casey, 505 U.S. at 884.

99 Id. at 901.