Thornburgh v. American College of Obstetricians and Gynecologists

PETITIONER: Thornburgh
RESPONDENT: American College of Obstetricians and Gynecologists
LOCATION: Circuit Court of Jefferson County

DOCKET NO.: 84-495
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 476 US 747 (1986)
ARGUED: Nov 05, 1985
DECIDED: Jun 11, 1986

Andrew S. Gordon - on behalf of the appellants
Kathryn Kolbert - on behalf of the appellees

Facts of the case

In 1982, the state of Pennsylvania enacted legislation that placed a number of restrictions on abortion. The law required the following: "informed consent" of the woman, the dissemination of information concerning the risks of abortion, reporting procedures, the use of certain medical techniques after viability, and the presence of a second physician for post-viability abortions. The initial suit was brought against Richard Thornburgh, the Governor of Pennsylvania.


Did the Pennsylvania requirements unconstitutionally interfere with the right to privacy?

Media for Thornburgh v. American College of Obstetricians and Gynecologists

Audio Transcription for Oral Argument - November 05, 1985 in Thornburgh v. American College of Obstetricians and Gynecologists

Warren E. Burger:

We will hear arguments first this morning in Thornburgh against American College of Obstetricians and Gynecologists.

Mr. Gordon, I think you may proceed whenever you are ready.

Andrew S. Gordon:

Mr. Chief Justice, and may it please the Court, this appeal is from a decision of the Third Circuit, which in reviewing a preliminary injunction ruling struck down numerous provisions of Pennsylvania's Abortion Control Act.

The case presents a variety of questions.

First, the Court must decide whether an appeal lies from a decision of a Court of Appeals which strikes down state statutes as unconstitutional but which remands for further proceedings on additional constitutional claims.

Next, the Court must determine whether the Court of Appeals' substantive rulings were consistent with this Court's recent decisions on the permissible scope of abortion regulation.

And finally, even if the Court finds that the Court of Appeals properly applied the law to the limited record before it, the Court must decide whether it was appropriate for the Court of Appeals to finally declare these provisions of state law unconstitutional before the state has been given a fair opportunity to present evidence in defense of the statute.

Harry A. Blackmun:

Mr. Gordon, just as a matter of curiosity, is Governor Thornburgh still a party to this litigation?

Andrew S. Gordon:

The parties did agree that he should be removed, but the District Court never entered an order on that, so technically I believe he still is a party, but he will be removed as soon as it is returned to the District Court and the District Court issues an order.

Harry A. Blackmun:

Well, the case comes up here in a posture with a high official of Pennsylvania as the lead name, and he vetoed all this legislation.

It seems a little strange situation.

Andrew S. Gordon:

Well, if I may, he vetoed a prior bill.

This particular statute he did sign, and he approved this statute.

Now, before discussing the question--

Harry A. Blackmun:

But you are taking the position he still is a party?

Andrew S. Gordon:

--There has been no order of dismissal issued.

Harry A. Blackmun:

Even though the parties have agreed that he should go out.

Andrew S. Gordon:


It is our understanding until the Court issues an order dismissing him that he is still a party.

Now, before reaching the questions presented to the Court this morning, I would like to sketch very briefly the procedural history of the case, which is relevant to the issues before the Court.

The statute was passed in June of 1982, and it was not until October that this lawsuit was filed.

About one month later, the plaintiffs filed a motion for preliminary injunction, and they attached to this motion 40 detailed affidavits.

On November 18th of 1982, the District Court issued a procedural order to govern the hearing on the motion for preliminary injunction, and as a part of this order, the District Court directed the parties to agree on stipulations, and also prohibited any party from contesting any fact at the hearing unless that party had positive evidence to offer in support of that particular fact.

So, stipulations were agreed upon, but they were agreed upon solely for the purposes of the preliminary injunction hearing, and they were largely drawn from the allegations of the complaint and the complainant's affidavits.

The District Court with one minor exception denied the preliminary injunction, and after lengthy consideration, the Court of Appeals struck down numerous provisions of Pennsylvania's statute.

First, the jurisdictional question.

As I said, the question is whether or not an appeal lies to this Court from a decision of a Court of Appeals striking down some provisions of state law but remanding to the District Court for further proceedings on additional constitutional claims.

The appeal statute does not expressly require that to be appealable a decision of a court of appeals must finally dispose of all constitutional issues, and in fact--

William J. Brennan, Jr.:

You mean 1254 when you say that?

Andrew S. Gordon:

--Twelve fifty-four two, that's right.