The issue presented in this case is whether H.B. No. 108, on its face, violates the Bill of Rights of the Ohio Constitution. The trial court found this legislation insupportable under the Ohio Constitution, resting its decision on the strict scrutiny standard formulated in the landmark case of Roe v. Wade (1973),410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, and its progeny. Since the United States Supreme Court has subsequently reexamined the underpinnings of Roe in the recent decision ofPlanned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. ___, 112 S. Ct. 2791, 120 L. Ed. 2d 674, it is necessary to address the propriety of the trial court's ruling in this regard. Because I find that Casey should not control here and that the Equal Protection and Benefit Clause of the Ohio Constitution18 was violated with respect to R.C.2317.56(B)(3)(b), I must respectfully dissent.
In Casey, the United States Supreme Court was presented with the issue of whether certain restrictions on abortion passed by the Pennsylvania legislature ran afoul of the so-called implied "right of privacy" found in the United States Constitution. In a lengthy, fractured decision, a bare majority of the court voted to strike down the Pennsylvania spousal-consent provision but then voted to uphold other provisions, allowing, inter alia, a waiting period for abortion services, broad regulations on informed consent and abortion counseling, and other such restrictions. Identical or similar provisions had been previously struck down in post-Roe cases.19 Four Justices rigorously dissented in Casey and *Page 707 aired their individual views that Roe should have been overruled outright and that the whole issue of abortion should now be subjected to minimum judicial scrutiny so that state legislatures would be unconstrained to develop their own rules in this troubling and difficult area. Under such scrutiny, these judges would have upheld all of the challenged abortion constraints struck down in Casey.
Because the instant case is predicated on the individual rights protections contained in the Ohio Constitution's Bill of Rights, as opposed to those contained in federal law, it is necessary to commence the discussion of the impact of Casey here with an analysis of the relationship between our state constitutional jurisprudence and federal constitutional jurisprudence.20
I The Ohio Constitution and its Bill of Rights have always been the primary foundation of civil rights and civil liberties protection for Ohioans.21 It is undeniable from an examination of the language and history of the federal and state Constitutions that our government was founded pursuant to principles of federalism, whereby the federal Constitution would create and limit the power of the federal government with few restrictions on the plenary power of the several states.Debolt v. Ohio Life Ins. Trust Co. (1853), 1 Ohio St. 563. These basic principles of federalism embodied in our constitutional government inform us that this court is completely free to interpret the Ohio Constitution without adherence to the outcome of court decisions in similar cases at the federal level. For the United States Constitution provides a floor, not a ceiling, for individual rights enjoyed by state citizens. PruneYard Shopping Ctr. v. Robbins (1980),447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741; State v. Brown (1992),63 Ohio St. 3d 349, 588 N.E.2d 113. *Page 708
Though the passage of the post-Civil War amendments changed the original structure of federalism to allow federal protection for individual rights through the due process and the equal protection guarantees of the federal Constitution, and though many issues thereby came under the purview of federal constitutional law, this alteration in the constitutional landscape in no way changed the foundation for constitutional protection for Ohioans. That foundation in our own state Constitution deserves equal dignity, respect and attention from our courts, regardless of the shifting sands of the federal government.
Of course, the development and expansion of federal individual rights safeguards has not been without effect on state constitutional jurisprudence. It is abundantly clear that the United States Supreme Court has acted as a de facto leader in the development of doctrine and that state courts have followed that guidance, with Ohio as no exception. The benefits of this approach, of course, have been uniformity and ease; but the costs have been a retarded development in our own individual state constitutional law.22
In the recent past, some judges and commentators have called on state courts to independently interpret their own constitutional individual rights provisions, no doubt in response to the perceived retrenchment of the Burger and Rehnquist courts from the Warren court's ideals and activism. See Brennan, State Constitutions and the Protection of Individual Rights (1977), 90 Harv.L.Rev. 489. Yet, there is nothing in our constitution which charges that we take a stance of activism and constant recognition of rights. Again, the Ohio Constitution has stood firm, as it always has, as the source of individual rights guarantees for Ohioans. As always, then, this court should interpret our Constitution's provisions in accordance with the intent of the framers of this fundamental charter, with proper recognition of the development of our history and law.
Manifestly, Ohio courts have a duty, then, to recognize and apply any different language in our own Constitution as it is written. When there are parallel provisions in the United States Constitution with the same or similar language, we should seek to follow the United States Supreme Court decisions interpreting those provisions, unless there are good reasons not to do so.Brown, supra.
Accordingly, we must make clear here that Casey does not establish any binding federal precedent. Though a great deal of the Casey opinion was devoted to the efficacy of the trimester framework contained in Roe and use of the so-called "compelling-state-interest" test that goes along with that framework, *Page 709 work, there was no majority opinion in Casey on these subjects that could serve to guide federal courts, let alone this court. Certainly the newly composed "undue-burden" standard, previously espoused by Justice O'Connor and contained in the Casey plurality opinion, demands no recognition from this Ohio court. It is inconceivable that the framers of our Constitution contemplated that Ohio courts, when interpreting our Ohio Constitution, would simply count the heads in the federal court and somehow divine where they think they are going.
Hence, I cannot understand the majority's intimations that we must follow Casey and that we must use the undue-burden standard in the Casey plurality opinion. That plurality opinion is not binding law in the present case and the majority opinion should not create any impression to the contrary. It is painfully obvious that the United States Supreme Court has been unable to agree on the appropriate criteria against which abortion regulations should be judged. The lengthy Casey decision only reflects the heated and sometimes out-of-bounds debate carried on by the members of the court in the pages of the United States Reports and in the public eye.
Moreover, the plurality opinion should not be used in this case because it is entirely unpersuasive in analysis and application. As the dissenters pointed out, the newly minted undue-burden standard has no counterpart in federal constitutional law and provides no guidance on which abortion restrictions will survive judicial scrutiny.23 Indeed, Chief Justice Rehnquist himself characterized the plurality opinion as a "constitutional compromise" that offered no framework for further analysis. Casey, supra, 505 U.S. at ___,112 S.Ct. at 2855-2856, 120 L.Ed.2d at 759.
As Casey provides no real leadership in this area, we have to endeavor to do justice to the language of the Ohio Constitution in its own right. Hence, the issue presented here is what level of judicial scrutiny is required for abortion services regulation under the Ohio Constitution's Bill of Rights.
II The starting point for all questions of individual rights in Ohio is, fittingly, the Liberty Clause of Section 1, Article I, Ohio Constitution, which has no counterpart *Page 710 in the federal Constitution. It was recognized long ago that this clause reflects that all people in Ohio are born with liberty and have the substantive right to enjoy it, subject only to the restrictions imposed by valid laws necessary for the common welfare. Palmer Crawford v. Tingle (1896), 55 Ohio St. 423,45 N.E. 313. Hence, by virtue of this simple principle, Ohioans may do anything, including terminate a pregnancy, unless there is a valid law against it.
To be valid, of course, the law must be within the ambit of the legislative power and must not contravene any rights guaranteed by the Ohio Constitution. As a general principle of constitutional judicial review, legislation is presumed to be constitutional unless it is demonstrated otherwise. Sedar v.Knowlton Constr. Co. (1990), 49 Ohio St. 3d 193, 551 N.E.2d 938;State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 57 Ohio Op. 134, 128 N.E.2d 59. So long as there is some reasonable basis for the legislation, it will be sustained. Bd. of Edn. v.Walter (1979), 58 Ohio St. 2d 368, 12 O.O.3d 327, 390 N.E.2d 813. This analysis, it is said, coincides with the federal "rational-basis" test and will most likely result in the legislation being upheld. By contrast, when legislation impinges on the enjoyment of a constitutional guarantee, stricter judicial scrutiny is warranted. Such legislation is presumptively unconstitutional unless demonstrated otherwise. It will therefore be struck down unless the state shows a compelling interest and that the legislation, as written, is narrowly tailored to serve that interest. Id. at 373-374, 12 O.O.3d at 330-331, 390 N.E.2d at 817-818.
To trigger stricter scrutiny, then, there must be an infringement of a right guaranteed by the text of the Ohio Constitution. Of course, the specific guarantees of the Bill of Rights, which were placed in the Constitution to limit the authority of the will of the majority, are rights guaranteed which must be so protected. But as Section 20, Article I, declares, these are not the only rights of the people recognized by the document.
While federal abortion law has been predicated on the so-called fundamental "right to privacy," which was read into the federal Constitution as an implied concept underlying other specific Bill of Rights guarantees tangentially related to privacy, we really need not rest our decision in this case on recognition of such an amorphous, hard-to-define concept. Though other state courts24 around the nation have echoed the "emanation" and "penumbra" elocution which Justice Douglas crafted in Griswold v. Connecticut (1965), 381 U.S. 479,85 S. Ct. 1678, 14 L. Ed. 2d 510, a case which voided a state ban on contraceptives, we should not thoughtlessly confine ourselves to the federal court's decisions, and the problems *Page 711 they have brought, in this regard. Concededly, if we do have authority to give recognition to some natural inalienable rights in the constitution, it should only be done conservatively and with great caution.
The Supreme Court of the United States on numerous occasions has found certain rights fundamental by necessary implication from other specific constitutional guarantees. For instance, freedom of association, NAACP v. Alabama ex rel. Patterson (1958), 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488, the right to travel, Shapiro v. Thompson (1969), 394 U.S. 618,89 S. Ct. 1322, 22 L. Ed. 2d 600, and the right to vote, Harper v. VirginiaState Bd. of Elections (1966), 383 U.S. 663, 86 S. Ct. 1079,16 L. Ed. 2d 169, must have been contemplated as necessary preconditions to the exercise of our express constitutional guarantees. This same analysis supports a fundamental right to bodily integrity.25
There are numerous express protections in the Ohio Bill of Rights which secure freedom of thought and enjoyment of one's faculties. The Free Speech Clause and the Conscience Clause, in particular, are predicated on the notion that the government should not be able to dictate or control one's thoughts, whether related to politics, religion, or other matters. It is undeniable that one's mind is absolutely interconnected with one's body. Control of one can be control of the other. If the state could alter a person's body, for whatever reason, it would assuredly affect his or her faculties. The case of Skinner v. Oklahoma (1942), 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655, is illustrative. There, the United States Supreme Court struck down a statute requiring compulsory sterilization of some, but not all, convicted criminals. Indeed, it is hard to imagine even in the abstract that the state could inject people with drugs, surgically alter their bodies, or use other instruments of technology, so that the populace would accept official doctrine, for instance, and that the Ohio Constitution would serve as no real barrier to such unconscionable actions. What would stop the state from *Page 712 ordering one person to donate bodily tissue to another for the sake of the common welfare? It would have been utterly irrational for the framers of our Constitution to have contemplated strict safeguards for protection of thought while at the same time allowing all sorts of intrusions into the body.
Manifestly, a fundamental right to bodily integrity must be acknowledged as a necessary precondition to the enjoyment of our express guarantees of freedom in the Ohio Bill of Rights. While this essential right, like most rights, is by no means absolute, it certainly demands at least some stricter judicial scrutiny, else the fundamental safeguards for our freedoms would be rendered hollow and meaningless, now and in the future.
Moreover, regulation of abortion inherently impacts on a right to bodily integrity. A state's effort to compel birth, for instance, subjects females to the tremendous demands and the innate risks of reproduction, an unquestionably indelible event for any living organism, and especially for a woman in our society. One cannot deny that pregnancy consumes a woman's life in a profound way, physically, mentally, emotionally and perhaps spiritually. In accordance with this significant impact, we should hold that the abortion regulation, which is truly suigeneris, is subject to a form of intensified constitutional scrutiny, beyond mere rational-basis review.
This does not mean, however, that all legislation regulating abortion should be struck down. On the contrary, the state has many legitimate as well as important interests in this area. One of those interests is the protection of life and potential life. Indeed, as a community, our interest in the preservation of human life is important and worthy of respect by our law.
III Under the Equal Protection and Benefit Clause of the Ohio Constitution, legislation must treat similarly situated people equally. This means that, when the legislature draws lines and thereby creates classifications among people, those lines must be supported by some reasonable basis when measured against the legitimate purposes or objects of the legislation. Courts generally will give great deference to the legislature in this regard, acknowledging the difficulty that inheres in such a task. But the means selected will be examined more closely when the legislation is based on either a suspect classification or if it encroaches upon a fundamental right. Conley v. Shearer (1992), 64 Ohio St. 3d 284, 595 N.E.2d 862.
In the past, federal courts have recognized several suspect classifications, like race, which is expressly mentioned in the federal Constitution. Strauder v. West Virginia (1880),100 U.S. 303, 25 L. Ed. 664. Gender-based classifications have *Page 713 been treated as less dubious on account of the bona fide physical differences between men and women. Hence, gender-based classifications are deemed quasi- or semi-suspect classifications that deserve a kind of semi-strict scrutiny.Craig v. Boren (1976), 429 U.S. 190, 204, 97 S. Ct. 451, 460,50 L. Ed. 2d 397, 411. That is, courts will perform a form of intermediate review of the legislative means to determine whether the legislation passes constitutional muster. Id.26
A classification is gender-based if it is expressly based on sex as a criterion in the statute itself or if a seemingly neutral criterion is really by design or pretext a regulation based on sex. In Geduldig v. Aiello (1974), 417 U.S. 484,94 S. Ct. 2485, 41 L. Ed. 2d 256, modified by statute on other grounds as stated in Newport News Shipbuilding Dry Dock Co. v. EqualEmp. Opportunity Comm. (1983), 462 U.S. 669, 103 S. Ct. 2622,77 L. Ed. 2d 89, the United States Supreme Court held that a classification based on pregnancy was not a gender-based classification because it classified between pregnant persons and "nonpregnant persons." The court reasoned that only women were in the class of pregnant persons, but both men and women were in the class of nonpregnant persons. Hence, Justice Stewart, who authored the majority opinion, concluded in a footnote that pregnancy was not really a gender-based criterion. Id. at 496-497, 103 S.Ct. at 2528, 76 L.Ed.2d at 748-749, fn. 20. The court then upheld the exclusion of pregnancy from coverage under a state insurance program, though similar health matters concerning men were covered.
Geduldig, supra, has not been accorded much favor in the larger picture of constitutional law. The case, though apparently still good law at the federal level, has been criticized and is rarely cited by the United States Supreme Court itself.27 We should avoid uncritical acceptance ofGeduldig in Ohio. Though the Ohio Supreme Court often follows federal decisions in the equal protection area, there is no mandate we do so here.28 In short, it would be an entirely positive *Page 714 development in the law if we reject Geduldig analysis in the present context and treat abortion as a sexual equality issue.29 Given the substantial impact on the female gender of laws regulating reproduction, the aforementioned serious concerns about control over bodily integrity implicit in our constitutional order, and the profound and pragmatic reality of such laws in application to the female gender, it is only fair that such laws be subjected to intermediate level scrutiny by Ohio courts.30 Plainly, H.B. No. 108 is a provision regulating abortion services conducted on women. Its special waiting periods, informed consent protections, and counseling mandates will never apply in like measure to a man getting a vasectomy or making other important reproductive decisions affecting society.
Notwithstanding, the same type of intermediate scrutiny employed in gender-based cases would be required here, at minimum, if we recognize a fundamental right over bodily integrity implicit in our constitutional order. Hence, the issue becomes whether the individual provisions of H.B. No. 108 provide equal protection and benefit of the laws to Ohioans.
IV The trial court essentially found H.B. No. 108 unconstitutional in toto on a variety of constitutional grounds. In applying equal protection analysis in the instant case, we should uphold the "waiting" period and physician disclosure provisions, uphold the medically based informed consent provisions, and uphold the mandated information on abortion alternatives, but we should strike down the mandatory requirement for conveyance of explicit information about incremental fetal development.
As the trial court found, there was information in the record that the waiting period would be burdensome to women, especially poor women living in rural counties in Ohio. The statute appears to require two trips to the family planning clinic instead of one, thereby increasing the cost and arguably the risks of the *Page 715 procedure. But there was evidence that went unrebutted to demonstrate that many women have to make multiple trips anyway. For instance, if a pregnancy test at the Preterm Clinic indicates a second-trimester pregnancy, the woman will often have to be rescheduled and return to the clinic as soon as possible because second-trimester abortions entail more complicated medical procedures. Clearly a waiting period, with ample provision for emergency situations, would foster reflection about important medical decisions. Though we are unaware of similar waiting periods for other types of medical procedures, this is not fatal. No doubt there are many situations where medical providers perform questionable and perhaps unnecessary surgeries, such as hysterectomies, where a waiting period might serve to quell unthinking acceptance of a doctor's conclusion. This is not too far afield of the common insurance company practice of requiring second opinions before invasive procedures are undertaken.
Likewise, the provision requiring informed consent on material health risks is also facially acceptable. Such procedures are required for most all surgeries in any event, whether performed on women or men. Informed-consent law has developed under our common law and by state statute to protect all people in their fundamental sovereignty over their bodies. See Nickell v. Gonzales (1985), 17 Ohio St. 3d 136, 17 OBR 281,477 N.E.2d 1145, and R.C. 2317.54. Indeed, the requirement for informing the woman about abortion alternatives, such as adoption, does not appear to require anything grossly out of the ordinary in the medical setting. Moreover, requiring that the name of the doctor scheduled to perform the surgery be given to the patient could lessen the occurrence of malpractice.
Antithetically, the measure mandating that state-prepared materials on incremental fetal development be sent to every single woman regardless of circumstances simply cannot be sustained.31 This provision, which requires that such materials be sent to the woman just prior to having the procedure, as opposed to the Pennsylvania statute in Casey which only required that the physician inform the woman about theexistence of such materials,32 is absolutely alien to any concept of "informed" consent to surgery. *Page 716
Concededly, this provision is designed to make the woman ponder or think twice about the moral interests of the fetus and, while such materials are supposed to be "nonjudgmental," they are inherently judgmental in such a context.33 To be sure, there is not a single such statute relating to medical procedures performed on men. While such fetal materials are not necessarily the only message which can be conveyed by the clinic or physician, it is inherently inflammatory, misleading, and constitutes true undue influence at a time in a woman's life that may be the most vulnerable and stressful.
Imagine receiving a document like the one in the record, emblazoned by the state with the label "Informed Consent," which upon opening it contains graphic, larger-than-life depictions of the week-by-week development of a fetus. The document begins with the phrase about fertilization that says, "On the first day, conception for life begins." It focuses on any similarities of the fetus to human beings but obscures distinguishing features, like the lack of individuation, motility, cognition and volition. It depicts the size development of the fetus from little "head" to "rump" and emphasizes the development of human characteristics like limb buds, ears, fingers and toes. Imagine too that you are a woman who wants more than anything to give birth to a bouncing, healthy baby but, instead, has been told that diagnosis has shown that her developing child has no arms or legs or brain. The woman must nevertheless receive these abortion messages about healthy baby development, though her child, through some stroke of misfortune, can only suffer pain from coming into this world. The lack of humanity in this rigid statute is enough to shock the conscience of the court and only bolsters the argument that this constriction on abortion is only a pretext designed to condemn, punish, and shock as many women out of abortion as possible, whatever the cost.34 *Page 717
Indeed, apart from anecdotal affidavits, there is no scientific evidence in the record that women suffer serious psychological effects from not knowing the development of the fetus at the time of having an abortion.35 Though a woman certainly would suffer some psychic injury in any event because of the unpleasantness of the circumstances, such as when the clinic of necessity makes arrangements for payment for termination of pregnancy, one has to feel that pitting the state against the woman in this setting and in this fashion steps outside the bounds of normal human decency.
Assuming that it is legitimate for the state to moralize on this subject36 in an effort to persuade women about ethical consequences, we should also note that the state's purposes could be served by less inhumane legislation. The state's interest in preserving human life could be furthered by public advertisements or educational programs about the ethical consequences of abortion. Materials could be made available for the patient's perusal, as opposed to a mandated reception of same. See footnote 15, supra.
For the foregoing reasons, I concur that the trial court erred in finding R.C. 2317.56(B)(1), (B)(2) and (B)(3)(a) unconstitutional. I must respectfully dissent because I find R.C. 2317.56(B)(3)(b) unconstitutional.
18 Section 2, Article I of the Ohio Constitution states:
"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have a right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly."
19 Akron v. Akron Ctr. for Reproductive Health, Inc. (1983),462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687; Thornburgh v. Am.College of Obstetricians Gynecologists (1986), 476 U.S. 747,106 S. Ct. 2149, 90 L. Ed. 2d 779.
20 At present, only a handful of courts have tried to grapple with the impact of Casey on abortion law. Sojourner v.Edwards (C.A.5, 1992), 974 F.2d 27 (striking down Louisiana statute prohibiting termination of pregnancy except in cases of rape or incest, or to save the life of the mother or unborn baby); Planned Parenthood v. Neely (D.Ariz.1992),804 F. Supp. 1210 (holding unconstitutional statute requiring parental consent except when there was a "serious risk" to the minor); In rePetition No. 349 (Okla. 1992), 838 P.2d 1 (holding unconstitutional initiative effort to ban previability nontherapeutic abortions except in cases of rape, incest, grave physical or mental defect of the fetus, or grave impairment of mother's physical or mental health); Barnes v. Moore (C.A.5, 1992), 970 F.2d 12, 13 (upholding Mississippi informed consent act "substantially identical" to Pennsylvania waiting period and nonmandatory informed-consent provisions sanctioned inCasey).
21 Indeed, unlike the federal Bill of Rights, the Ohio Constitution begins with its Bill of Rights, thereby emphasizing the prominence our Constitution affords to the protection of individual rights.
22 It is not uncommon, for instance, for Ohio attorneys to be totally unfamiliar with the important cases or developments in Ohio constitutional law, while at the same time showing conversance with, for instance, the major decisions on federal abortion law by name and significance. See, generally, Porter Tarr, The New Judicial Federalism and the Ohio Supreme Court: Anatomy of a Failure (1984), 45 Ohio St. L.J. 143.
23 The plurality opinion characterized a "finding of an undue burden [as] a shorthand for the conclusion that 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." Casey, 505 U.S. at ___, 112 S.Ct. at 2820,120 L.Ed.2d at 714. By contrast, Justice Stevens's idea was that "[a] burden may be `undue' either because the burden is too severe or because it lacks a legitimate, rational justification." Id. at ___, 112 S.Ct. at 2842-2843,120 L.Ed.2d at 743 (Stevens, J., concurring in part and dissenting in part). Neither formulation received five votes so that there would be controlling constitutional doctrine.
24 The New Jersey Supreme Court in construing that state's own Constitution, which contains a broad-based Liberty Clause like Ohio's, did find a right to privacy implicit in that state's constitution. Right to Choose v. Byrne (1982), 91 N.J. 287, 450 A.2d 925.
25 Though much of the larger debate in this area of constitutional law has focused on defining the "right to privacy" as either some all-encompassing libertarian principle in line with the philosophy of John Stuart Mill or some core recognition of family values central to American tradition, a number of judges and commentators have acknowledged that a basic concern in the abortion arena is the protection of bodily integrity. The Casey plurality opinion states that "Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether mistaken or not) of personal autonomy and bodily integrity. * * *" Casey, supra, 505 U.S. at ___,112 S.Ct. at 2810, 120 L.Ed.2d at 702. Justice Stevens likewise states "[i]n counterpoise [to the state's interest in potential human life] is the woman's constitutional interest in liberty. One aspect of this liberty is a right to bodily integrity, a right to control one's person. * * *" Id. at ___,112 S.Ct. at 2840, 120 L.Ed.2d at 740. Justice Blackmun's dissent also states that "* * * restrictive abortion laws force women to endure physical invasions far more substantial than those this Court has held to violate the constitutional principle of bodily integrity in other contexts." Id. at ___, 112 S.Ct. at 2846,120 L.Ed.2d at 748. See, also, Regan, Rewriting Roe v. Wade (1979), 77 Mich.L.Rev. 1569. Hence, we need not enter the morass of issues concerning general autonomy against government, such as whether someone has a right to sexual freedom or a right to be homosexual.
26 Under Craig, classifications by gender "must serve important governmental objectives and must be substantially related to achievement of those objectives." Id.,429 U.S. at 197, 97 S.Ct. at 457, 50 L.Ed.2d at 407.
27 Only recently has the Geduldig case and its equal protection analysis come before the court. Fittingly, it occurred in Bray v. Alexandria Women's Health Clinic (1993), 506 U.S. ___, 113 S. Ct. 753, 122 L. Ed. 2d 34, a case involving the application of the federal Ku Klux Klan Act to bar Operation Rescue, an anti-abortion protest group, from picketing at an abortion clinic. Though Justice Scalia's majority opinion was predicated on whether the Act applied and whether invidious discrimination by the protesters occurred against women in general, his footnote 3, along with Justice Steven's dissent, only serve to highlight the court's troubles with Geduldig.
28 One would assume, for instance, that the Ohio Supreme Court would not follow the so-called "irrebuttable presumption" cases that have been criticized by commentators as devoid of reasoned analysis under neutral principles of constitutional law. See, e.g., Cleveland Bd. of Edn. v. LaFleur (1974),414 U.S. 632, 652, 94 S. Ct. 791, 802, 39 L. Ed. 2d 52, 67. In Bray,supra, Justice Stevens persuasively limits Geduldig to situations involving a denial of benefits with an overall nondiscriminatory effect. Bray, supra, 506 U.S. at ___, 113 S.Ct. at 760,122 L.Ed.2d at 49.
29 Other courts have appeared to have done so as well. SeeDoe v. Maher (1986), 40 Conn. Super. Ct. 394, 443-444, 515 A.2d 134,159; Planned Parenthood v. Dept. of Human Resources (1983),63 Or. App. 41, 60-61, 663 P.2d 1247, 1260.
30 See Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy) (1992), 92 Colum.L.Rev. 1, 32-33. Accord, Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade (1985), 63 N.C.L.Rev. 376, 386 ("Overall, the Court's Roe position is weakened, I believe by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective. * * *").
31 This is to be distinguished from informing the woman of the probable gestational age of the fetus, which is just another way of telling the woman how far along she is in her pregnancy, an important medical concern that is entirely supportable.
32 Mandating that a woman receive such abortion materials poses more harm than simply informing a woman about the existence of such materials. The latter situation allows the woman at least a chance to avoid repulsive materials that may harm her, while the former does not. The Pennsylvania Right to Know Statute, 18 Pa.Cons.Stat.Ann. Section 3205(a)(2)(i), reprinted in the appendix of Casey, 505 U.S. at ___, 112 U.S. at 2834, 120 L.Ed.2d at 731, only required the physician to inform the pregnant woman that the Department of Health "publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided free of charge if she chooses to review it."
33 Justice Blackmun's majority opinion in Thornburgh v. Am.College of Obstetricians Gynecologists, supra, though decided before Casey, examines a similar statute and finds it unconstitutional under federal law. The opinion's concerns over this type of mandated message still have much persuasive force. The Ohio provision is especially troublesome because it allows for misleading communication. Like the example in the record, the information on a fetus can state "objective" facts and be "nonjudgmental" about the woman's moral choice but still can be slanted or skewed in favor of an anti-abortion stance.
34 Also, there are no exceptions for situations where the woman is raped, mentally ill, suicidal and so on. By contrast, the Pennsylvania statute allowed for the physician to disregard "informed consent" if there was a serious risk to the woman's physical or mental health. 18 Pa.Cons.Stat. (1990), Section 3205, quoted in the plurality opinion of Casey, 505 U.S. at ___,112 S.Ct. at 2824, 120 L.Ed.2d at 710-720.
35 For a thorough study of this topic, see Russo, Psychological Aspects of Unwanted Pregnancy and Its Resolution, printed in Butler Walbert, Abortion, Medicine, and the Law (1992) 593. The appendix of this comprehensive and insightful book contains U.S. Surgeon General C. Everett Koop's Report on the Health Effects of Abortion, commissioned by President Ronald W. Reagan. The surgeon general found inconclusive evidence of psychological problems stemming from abortion. Id. at 739.
36 Federal courts appeared to have found similar "right to know" laws in violation of the First Amendment. PlannedParenthood League of Mass. v. Bellotti (C.A.1, 1981),641 F.2d 1006, 1021-1022; Charles v. Carey (C.A.7, 1980), 627 F.2d 772,784; Women's Med. Ctr. of Providence v. Roberts (D.R.I.1982),530 F. Supp. 1136, 1153-1154. *Page 718