RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0419p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

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.

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No. 05-4174

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 98-00289—Sandra S. Beckwith, Chief District Judge.

Argued: February 1, 2006

Decided and Filed: November 13, 2006 

Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL

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.

COLE, J., delivered the opinion of the court, in which GIBBONS, J. joined. ROGERS, J.

(pp. 11-14), 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

1
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1

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

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. 

For the following reasons we REVERSE the district court’s judgment that the SinglePetition 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 InPerson Rule. See Cincinnati Women’s Servs. v. Taft, No. 1:98-CV-289, 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 unemancipated 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).1

 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, 2005 U.S. Dist.

LEXIS 23015, at *27. The district court 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 *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 *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 contain any requirement that the meeting take place in person. See Ohio
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 3

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

nonwritten 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, 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 *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 InPerson 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 *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 *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 *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, 2005 U.S. 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 *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 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 *46-*47 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

879 (1992)). 

The district court also held that the Single-Petition Rule “does not impose any undue burden

even in the pre-viability context.” Id. 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
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2

 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 on 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. 

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 *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 *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 *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 *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 *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 *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 *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 *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.2

II. The Large Fraction Test

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (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. 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. 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. This test has come

to be known as the Casey “large fraction” test.
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3

 Justice Thomas’s dissent in Stenberg v. Carhart, 530 U.S. 914 (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 (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; see also id. at 938–46. 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,

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 pre-viability 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)). 

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 (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 (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)).3

In United States v. Salerno, 481 U.S. 739, 745 (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 (1st Cir. 2004), vacated on other grounds by Ayotte

v. Planned Parenthood, 126 S. Ct. 961 (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, 220 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
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 6

4

 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).

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 of circumstances exists under which the Act would be valid” (quoting

Salerno, 481 U.S. at 745)).4

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 pre-viability 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). 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)); 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) (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 nonviable fetus’” (citing Casey, 505 U.S. at 876–77)).

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.

III. The Single-Petition Rule

A. Constitutionality of the Single-Petition Rule

If a state requires parental consent before an unemancipated 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 (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 (1997) (citation omitted). Otherwise, the attendant bypass

procedure is constitutionally invalid. See Bellotti II, 443 U.S. at 643–44. 

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
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5

 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.

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. 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.

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. 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. The

spousal-notification law in Casey was facially unconstitutional because it satisfied that test. Id. at

895.

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.5

 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 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., 126 S.Ct. 961, 964 (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 (1985)). “So long as [the reviewing court is] faithful to legislative intent,” the
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 8

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, 644 N.E.2d 369, 377 (Ohio

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, 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.

IV. The In-Person Rule

We now turn to the In-Person Rule. Although Casey upheld both an in-person informedconsent 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. Therefore, the

Court concluded that the in-person informed-consent requirement did not constitute an undue

burden. Id. at 885; see also id. at 887 (“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:
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 9

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. 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. 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 abortionseeking 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 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 inperson 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.

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 informedconsent 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
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 10

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. Casey, 505 U.S.

at 899; 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.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 11

_________________

CONCURRENCE

_________________

ROGERS, Circuit Judge, concurring. I concur in Parts I, III-B, and IV of the majority

opinion, and entirely in the result. I write separately concerning the single petition rule because, as

a categorical limitation on whether an abortion is permitted at all, the rule defies application of the

“large fraction” test. The Supreme Court has used the “large fraction” test instead to examine state

regulation of how an abortion is to be performed or of what information should be given a woman

who is legally allowed to get an abortion. It is not necessary in this case to apply the test to the

single petition rule, however, because Supreme Court holdings regarding judicial bypass procedures

directly compel invalidation of that rule.

Requiring a minor to get parental consent for an abortion, without the possibility of an

administrative or judicial bypass procedure that meets defined standards, unduly burdens the minor’s

right to an abortion. This is the holding of Bellotti v. Baird, 443 U.S. 622, 647-51 (1979) (plurality

opinion) (“Bellotti II”), reaffirmed by the Supreme Court in many subsequent cases. See, e.g.,

Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (per curiam); Planned Parenthood v. Casey, 505

U.S. 833, 895 (1992); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 510-13 (1990).

To survive constitutional challenge, a law requiring parental consent for a minor’s abortion must

contain a procedure that (1) allows the minor to bypass the consent requirement if she establishes

that she is mature enough and well enough informed to make the abortion decision independently,

(2) allows the minor to bypass the consent requirement if she establishes that the abortion would be

in her best interests, (3) ensures the minor’s anonymity, and (4) provides for expeditious bypass

procedures. See Lambert, 520 U.S. at 295. 

The Supreme Court in Bellotti II stated that a minor possesses an absolute right to a

proceeding where she may establish her entitlement to a bypass:

A pregnant minor is entitled in such a proceeding to show either: (1) that she is

mature enough and well enough informed to make her abortion decision, in

consultation with her physician, independently of her parents’ wishes; or (2) that

even if she is not able to make this decision independently, the desired abortion

would be in her best interests. 

Bellotti II, 443 U.S. at 643-44 (emphasis added). The Bellotti II Court explained that every minor

must have the opportunity to establish that she should not have to seek parental consent based on

her current level of maturity or her current best interests:

We conclude, therefore, that under state regulation such as that undertaken by

Massachusetts, every minor must have the opportunity—if she so desires—to go

directly to a court without first consulting or notifying her parents. If she satisfies

the court that she is mature and well enough informed to make intelligently the

abortion decision on her own, the court must authorize her to act without parental

consultation or consent. If she fails to satisfy the court that she is competent to make

this decision independently, she must be permitted to show that an abortion

nevertheless would be in her best interests. If the court is persuaded that it is, the

court must authorize the abortion. If, however, the court is not persuaded by the

minor that she is mature or that the abortion would be in her best interests, it may

decline to sanction the operation.

Id. at 647-48.
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 12

1

The state’s brief however concedes that “[t]he evidence established that second bypass petitions under the prior

law were extremely rare.” Appellees’ Br. at 18.

Under a fair reading of Bellotti II, a minor’s right not to seek parental consent depends on

the current level of her maturity or interest in abortion. See id. at 647-51. Bellotti II also provides

that this right must be protected by judicial proceedings. See id. But if the right is to be adequately

protected, such proceedings must account for material changes in the petitioner’s state after a first,

unsuccessful bypass proceeding. Accordingly, under Bellotti II, the single petition rule is facially

invalid because, after a failed first petition, the rule does not permit a judge to evaluate the

petitioner’s current maturity or interest in abortion in light of new developments. When a minor

alleges that her current state has materially changed, an older and potentially incorrect determination

will in identifiable cases nullify Bellotti II’s command that a minor’s current state be determinative

of her request for a bypass. Ohio must in some manner stand ready to evaluate minors’ claims of

appropriate changed circumstances. Such minors cannot constitutionally be cut off from all recourse

in the manner accomplished by the single petition rule. Therefore, the single petition rule violates

the right of second petitioners to some judicial or administrative process that evaluates their claims

of changed circumstances.

While the question of successive bypass petitions was not before the Bellotti II Court, the

Court’s rationale directly compels the result in this case. The Bellotti II Court founded its

determination of the law concerning parental consent and judicial bypass upon a careful and nuanced

balancing of constitutional interests. On the one hand were the need to preserve the constitutional

right to an abortion and the unique nature of the abortion decision. See id. at 639-44. On the other

hand were “the particular vulnerability of children; their inability to make critical decisions in an

informed, mature manner; and the importance of the parental role in child rearing.” Id. at 634.

These considerations preclude the single petition rule just as they led to a judicial bypass

requirement in the first place in Bellotti II. Indeed, the Bellotti II Court expressly contemplated that

a judicial bypass procedure would be available in later stages of pregnancy. See id. at 651 n.31. The

state has not distinguished Bellotti II by identifying any way in which the single petition rule furthers

the interests of protecting vulnerable minors, making up for their inability to make mature decisions,

or furthering the parental role, other than simply by curtailing the availability of judicial bypass for

minors with late-arising bases for a judicial bypass. 

Instead, the single petition rule is said to avoid the possibility of a minor’s “re-filing

throughout her pregnancy until she finds a judge who will grant her petition.” Appellees’ Br. at 47.1

This court does not need to decide whether a state may require minors to direct their second or

successive bypass petitions to the same judge to avoid judge shopping, or require a higher burden

of proof for successive petitions to limit refiling. These issues are not before us because the single

petition rule does much more than limit judge shopping and unlimited refiling. Instead, it forbids

a judicial bypass where one has been sought unsuccessfully before in the same pregnancy, regardless

of a change in circumstances. Such a prohibition is inconsistent with the holding and reasoning of

Bellotti II, and thus constitutes an undue burden on a minor’s right to an abortion. Casey, which sets

the standard that we are bound to apply in abortion cases, explicitly reaffirmed the Bellotti II

holding. See 505 U.S. at 895, 899. Under Bellotti II a minor is entitled to seek a judicial bypass in

the later stages of pregnancy, and none of the constitutional foundations for this decision warrants

an exception so distantly related to the constitutional policies furthered by that decision. The

conclusion is inescapable that the single petition rule runs afoul of Bellotti II, which continues to

bind us.

The rationale of Bellotti II is of sufficiently direct applicability to the single petition rule at

issue in this case that it is not necessary for us to become entangled in the meta-mathematical

niceties of whether a “large fraction” of a relevant group is denied the right to an abortion. Indeed,
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 13

the “large fraction” analysis contested by the parties is of questionable assistance in resolving the

issue presented in this case. The question in this case is not the constitutionality of some procedural

hurdle imposed as part of the bypass procedure, but rather the constitutionality of a categorical limit

on the availability of the bypass procedure to certain minors. No matter what the circumstances, a

minor who has previously been denied a judicial bypass may not obtain such a bypass during the

remainder of the same pregnancy.

In evaluating the constitutionality of such a provision, the inquiry cannot be simply restated

as whether “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.” Such a standard may provide

analytic clarity when the challenge is to a type of abortion procedure, where the question is whether

the right to an abortion is sufficiently preserved by the availability of other methods. See, e.g.,

Stenberg v. Carhart, 530 U.S. 914 (2000). The “large fraction” analysis may also make sense where

the question is whether the requirements of the judicial bypass procedure are so onerous as to defeat

its purposes and thereby unduly burden the minor’s right to an abortion. See, e.g., Memphis Planned

Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999). But where the issue is a categorical

exception to the availability of a bypass procedure, the “large fraction” analysis becomes so

manipulable as to lose its logical usefulness. Too much depends on the arbitrary determination of

what the denominator is.

Opponents of the categorical exception will simply argue that the denominator is the persons

precluded by the exception, leading to a large fraction of one. Thus plaintiffs in this case argue that

the denominator consists of “all women who are denied a bypass and who later discover medical and

other information causing them to renew their pursuit of an abortion.” Appellants’ Reply Br. at 2.

As the district court noted in its order denying CWS’s motion for a stay pending appeal, “[i]mplicit

in Plaintiffs’ argument is a contention . . . that the only relevant group in considering whether a

regulation creates an undue burden is those women who are actually foreclosed from obtaining an

abortion.” Any plaintiff so defining the denominator could automatically show a fraction of one

(i.e., one-hundred percent), and thereby invalidate any categorical exception to the availability of

a bypass procedure.

Defenders of the exception, on the other hand, must argue a larger denominator, some class

of abortion-seeking women that also includes persons not precluded. Thus defendants in this case

argue that the denominator should include all women who are initially denied bypasses, regardless

of circumstances that might obviate the need for a later bypass. In the absence of evidence that a

large portion of minors initially denied a bypass will need one later, defendants argue that the

relevant fraction is small. In contrast, but to a similar result, the district court at one point

considered the denominator to be minors whose need for a judicial bypass arises at a later point

during pregnancy, regardless of whether a bypass has been sought previously. Cincinnati Women’s

Servs., Inc. v. Taft, 2005 U.S. Dist. LEXIS 23015, at *49. The district court reasoned that “it is only

speculation that a large fraction of minors who develop fetal anomalies in the second trimester will

have already filed a petition for a bypass of parental consent.” Id. at *48. The difficulty with these

broader-denominator analyses is that they are in some tension with the idea that “[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.” Casey, 505 U.S. at 894; Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187,

194-97 (6th Cir. 1997). Where there is a categorical exception to the availability of a judicial

bypass, it is arguably somewhat artificial to say that those outside the category are within the group

for whom the law is a restriction.

Thus, outside the context of an abortion law that limits the types of abortions, or imposes

procedural hurdles to a judicial bypass, a total preclusion for a defined category of cases defies

“large fraction” analysis. In this context the district court’s observations about the indeterminacy

of the large fraction test are particularly compelling:
No. 05-4174 Cincinnati Women’s Servs. et al. v. Taft et al. Page 14

The “large fraction” standard enunciated in Casey by nature invites the courts and

the parties to engage in a number-crunching exercise to assess the impact of an

abortion regulation. The parties have tried to do so here. Nevertheless, stating that

a “large fraction” constitutes a substantial obstacle is not the same thing as defining

a “large fraction.” Because the Supreme Court instructs that the constitutional

analysis should focus on only those women for whom the restriction is actually

relevant, Casey, 112 S. Ct. at 2829, the argument devolves to which group of women

is properly considered the numerator and which group of women is properly

considered the denominator. Even if a court properly identifies the numerator and

denominator, it still must decide whether the resulting fraction is “large.” Again, the

Casey Court provides no real guidance. This Court’s research has not developed

any decisions in which the courts which have successfully applied, or have even

attempted to apply, the large fraction test. 

Taft, 2005 U.S. Dist. LEXIS 23015, at *10–11 (footnote omitted).

Indeed, wooden application of a pure “large fraction” analysis would lead to the following

anomaly. Suppose a state law precluded a judicial bypass for persons who had traveled to Fiji in

the previous three months. The number of such persons in the state who needed a judicial bypass

would be a tiny fraction of any relevant group, other than the group of persons who need a judicial

bypass who have been to Fiji. Yet it is hard to imagine that the Supreme Court would uphold such

a limit under a “large fraction” analysis. On the other hand, there may be categorical limitations on

the availability of a judicial bypass that would not be an undue burden on the right to an abortion.

Although Bellotti II was handed down more than a decade before Casey, Justice Powell’s opinion

in Bellotti II explicitly applied an “undue burden” test, albeit without using any “large fraction”

analysis. 443 U.S. at 640, 647–48. The opinion cannot fairly be read to preclude any type of

categorical limitation on the availability of a judicial bypass. Such a reading, unnecessary today,

would be an overly formal and artificial application of a “large fraction” analysis that makes sense

only in other contexts.