Ohio’s law regulating abortion (court case)

United States 6th Circuit Court of Appeals Reports

CINCINNATI WOMEN’S SERVICE, INC. v. TAFT, 468 F.3d 361 (6th
Cir. 2006) CINCINNATI WOMEN’S SERVICES, INC.; Walter
Bowers, Dr. Plaintiffs-Appellants, v. Robert TAFT, Governor
of Ohio; Betty D. Montgomery, Attorney General; Joseph
Deters; Michael K. Allen; Jim Petro, Defendants-Appellees.
No. 05-4174. United States Court of Appeals, Sixth
Circuit. Argued: February 1, 2006. Decided and Filed:
November 13, 2006. Page 362

Appeal from the United States District Court for the
Southern District of Ohio, Sandra S. Beckwith, Chief Judge,
2005 WL 2206219. Page 363

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.

Before COLE, GIBBONS, and ROGERS, Circuit Judges.

COLE, J., delivered the opinion of the court, in which
GIBBONS, J. joined. ROGERS, J. (pp. 374-78), delivered a
separate concurring opinion.

OPINION

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 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. Page 364

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, ___ F.Supp.2d ___, ___, 2005 2005 WL 2206219,
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 un-emancipated 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).[fn1] 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, ___ F.Supp.2d at ___, 2005 U.S. Dist.
LEXIS 23015, at *27. The district 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 ___, 2005 U.S. Dist. LESIX 23015, 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
___, ___, 2005 U.S. Dist. LEXIS 23015, 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 Page 365 contain any requirement
that the meeting take place in person. See Ohio 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
non-written 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, ___, F.Supp.2d at ___, 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
___, 2005 U.S. Dist. LEXIS 23015, 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 ___, ___, ___, ___, 2005
U.S. Dist. LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS
23015, 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, ___, F.Supp.2d at
___, 2005 U.S. Dist. 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 ___, 2005
U.S. Dist. LEXIS 23015, 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 Page 366 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 ___ ___, 2005 U.S.
Dist. LEXIS 23015, at *46-*47 (citing Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992)).

The district court also held that the Single-Petition Rule
“does not impose any undue burden even in the previability
context.” Id. at ___, 2005 U.S. Dist. LEXIS 23015, 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 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 ___
___, 2005 U.S. Dist. LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS 23015, 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 ___ ___, ___, 2005 U.S. Dist.
LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS
23015, 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 ___, 2005 U.S. Dist. LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS 23015, 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
___ ___, 2005 U.S. Dist. LEXIS 23015, 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 ___, 2005 U.S. Dist. LEXIS 23015, 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.[fn2] Page 367

II. The Large Fraction Test

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112
S.Ct. 2791, 120 L.Ed.2d 674 (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, 112 S.Ct. 2791. 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, 112 S.Ct. 2791. 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, 112 S.Ct. 2791. This test has come to be known as
the Casey “large fraction” test.

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, 127 L.Ed.2d 352 (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, 113 S.Ct. 1668, 123 L.Ed.2d 285 (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)).[fn3]
Page 368

In United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct.
2095, 95 L.Ed.2d 697 (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 (1 st Cir.2004), vacated on other grounds
by Ayotte v. Planned Parenthood, ___ U.S. ___, 126 S.Ct.
961, 163 L.Ed.2d 812 (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, 22Q
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 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 f
circumstances exists under which the Act Page 369 would be
valid” (quoting Salerno, 481 U.S. at 745,107 S.Ct.
2095)).[fn4]

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
previability 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, 112 S.Ct. 2791). 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, 112 S.Ct. 2791)); 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, 112 S.Ct. 2791) (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 non-viable fetus'” (citing Casey, 505 U.S. at
876-77,112 S.Ct. 2791)).

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, 112 S.Ct. 2791.

III. The Single-Petition Rule

A. Constitutionality of the Single-Petition Rule

If a state requires parental consent before an
un-emancipated 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, 99 S.Ct. 3035, 61 L.Ed.2d 797 (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, 117 S.Ct.
1169, 137 L.Ed.2d 464 (1997) (citation omitted). Otherwise,
the attendant bypass procedure is constitutionally invalid.
See Bellotti II, 443 U.S. at 643-44, 99 S.Ct. 3035. Page
370

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
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,
112 S.Ct. 2791. 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, 112 S.Ct. 2791. 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, 112 S.Ct. 2791. 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 894,112 S.Ct. 2791. The
spousal-notification law in Casey was facially
unconstitutional because it satisfied that test. Id. at
895, 112 S.Ct. 2791.

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.[fn5] 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 Page 371 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., ___ U.S.
___, 126 S.Ct. 961, 964, 163 L.Ed.2d 812 (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, 105
S.Ct. 2794, 86 L.Ed.2d 394 (1985)). “So long as [the
reviewing court is] faithful to legislative intent,” the
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, 71 Ohio St.3d 513, 644
N.E.2d 369, 377 (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, 117 Ohio St. 451,160 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. Page 372

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, 112 S.Ct. 2791. Therefore, the
Court concluded that the in-person informed-consent
requirement did not constitute an undue burden. Id. at 885,
112 S.Ct. 2791; see also id. at 887,112 S.Ct. 2791 (“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:

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, 112 S.Ct. 2791. 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, 112 S.Ct. 2791. 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 Page 373 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 894,112 S.Ct. 2791.

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
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 previability 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. Page 374
Casey, 505 U.S. at 899, 112 S.Ct. 2791; 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.

[fn1] The 1998 statutory amendment also changed Ohio law by
requiring parental con sent instead of parental notice, but
this aspect of the law is not before us.

[fn2] 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 oh 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.

[fn3] Justice Thomas’s dissent in Stenberg v. Carhart, 530
U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (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, 120
S.Ct. 2597 (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, 120 S.Ct. 2597;
see also id. at 938-46, 120 S.Ct. 2597. 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, 120 S.Ct: 2597, 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 previability 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)).

[fn4] 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).

[fn5] 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.

ROGERS, Circuit Judge, concurring.