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September 8, 1977


Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on November 16, 1976. The case was reserved and reported by Wilkins, J.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Liacos, JJ. Hennessey, C.j., Concurring, with whom Quirico, J., joins.


Zoning, Abortion clinic. Constitutional Law, Abortion. Abortion.

The opinion of the court was delivered by: Kaplan

An amendment to the zoning by-law of a town prohibiting "abortion clinics" in all districts was invalid as an unconstitutional interference with the effectuation of a woman's counseled decision to terminate her pregnancy during the first trimester [283-288]; Hennessey, C.J., Concurring, with whom Quirico, J., joined, on the ground that the amendment was not valid as a matter of statutory construction [289].

The plaintiffs are Framingham Clinic, Inc., a for-profit corporation organized to operate a gynecological clinic in the town of Southborough, Massachusetts; three persons who organized the corporation and were serving as its directors; a physician specializing in obstetrics and gynecology who had undertaken to act as medical director of the clinic; and two pseudonymous women of childbearing age, residents of Southborough, who wished to have available to them in the town a clinic of the type described. The defendants are the board of selectmen of the town and the town's building inspector who was charged with enforcing the town's zoning by-law. The action, commenced in the Supreme Judicial Court for Suffolk County, sought to have a certain amendment of the zoning by-law regarding so called "abortion clinics" declared invalid, and its enforcement enjoined.

If allowed to function, the clinic would assist patients with comprehensive family planning and offer them gynecological services, all on an ambulatory, out-patient basis. The services would include procedures, using the "vacuum aspirator method," for termination of pregnancies that had not advanced beyond the first trimester. Chosen to house the clinic, but requiring renovation for the purpose, was a one-story office building of masonry construction located at 304 Turnpike Road, Southborough, part of an "industrial park" on the northerly side of Route 9, a State highway. The corporation entered into a lease of the premises in November, 1975, to run for ten years from February, 1976, or from the date of the issuance to it of a "determination of need" by the Commonwealth's Department of Public Health, if that should happen earlier. *fn2

In connection with its application for the determination of need (see G. L. c. 111, §§ 25C, 51), the corporation was required by a regulation of the Department of Public Health to show that the clinic would not be in violation of any applicable zoning ordinance or by-law. See Reg. 30.7 of D.P.H., Mass. Determination of Need Regs. (1975, 1976), which sought to accommodate regional planning of the location of health facilities to the municipal arrangements as to land use. The corporation obtained the necessary assurance on November 20, 1975, in the form of a communication from the board of selectmen (through its administrative assistant), forwarding a statement by the town counsel. Counsel referred to § IV, 7, of Southborough's zoning by-law setting out permitted uses in "industrial park districts." (It may be noted that among these uses were many permitted in "research, scientific and professional districts," and among the latter were many uses permitted in "residence A districts." *fn3

A public hearing regarding the application for the determination of need was held under the auspices of the Department of Public Health in June, 1976. When the present action was filed, preliminary steps in the approval process had been accomplished, favorable reports having been received from the appropriate regional agencies; and the application was before the public health council of the department for final action.

On July 28, 1976, however, following the hearing on the application for the determination of need, the town's planning board held a public hearing to consider an amendment to the zoning by-law concerning "abortion clinics." In reporting to the town meeting its affirmative recommendation on the proposed amendment (four members favoring, one abstaining), the planning board on August 12, 1976, stated in part: "The Planning Board concluded that adoption . . . was consistent with the desires of a substantial number of residents and a clear expression of how they wish to regulate the use of land, buildings and structures within the Town." The amendment was considered at a special town meeting held on the evening of August 12, and was approved by a vote of 260 to 65. *fn4 It consisted of adding to § VIII, 8, of the zoning by-law, as the fifth of the "Prohibited Uses -- All Districts," the words "Abortion Clinics," "abortion" being defined in par. 16 added to § II as "the knowing destruction of the life of an unborn child or the intentional expulsion or removal of an unborn child from the womb other than for the principal purposes of producing a live birth." *fn5 (The other four prohibited uses for all districts were: "Trailer camps," "Commercial race tracks or uses accessory thereto," "Junk yards," and "Piggeries or fur farms.")

The foregoing account has been abstracted from a statement of agreed facts prepared by the parties to the action after complaint and answer were filed. (Additional facts from the same source will be referred to below.) On a record incorporating the statement, a single Justice of this court, without decision, reserved and reported the case for determination by the full bench. *fn6

We hold for the plaintiffs. The by-law amendment is invalid. The Conclusion becomes clear when attention is paid to the constitutionally protected rights of a woman in respect to termination of her pregnancy (and the correlative rights of an attending physician or a health facility), as expounded by the Supreme Court of the United States in the line of cases beginning with Roe v. Wade, 410 U.S. 113 (1973). *fn7 These are rights of "privacy," acknowledged to be "fundamental." Wade at 153. Maher v. Roe, 432 U.S. 464, 471-473 (1977). See also Carey v. Population Servs. Int'l, 431 U.S. 678, 684-686 (1977). During the first trimester of pregnancy, the rights are at their apogee, enjoying a high measure of freedom from peculiar interposition by the State. *fn8 It was in this sense that the Supreme Court said in Wade, supra at 164: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." The State may evince an intensified interest in the health of the woman only after the first trimester, and in the potentiality of the life of the fetus, only after the fetus attains viability. Id. at 164-165.

However, the State is not bereft of all power to regulate the abortion situation, as such, during the first stage. Thus, to help assure that the "abortion decision," surely an important decision, is well deliberated, the State of Missouri could require that, before undergoing the abortion procedure during the first twelve weeks of a pregnancy, the woman should put her consent in writing and certify that it was informed and freely given and not the result of coercion. Planned Parenthood v. Danforth, 428 U.S. 52, 65-67 (1976). *fn9 See Bellotti v. Baird, 428 U.S. 132, 148-150 (1976). Similarly we may assume there is some room for State regulation directed particularly to the "effectuation" of the abortion decision in the early period. It is not easy to find a precise answer to the question what burden a State must sustain in order to establish the validity of a regulation impinging on the constitutional right during that time span -- whether the State must demonstrate a "compelling" interest overcoming the right pro tanto, or whether, in some circumstances at any rate, a less rigorous showing may suffice. Compare Powell, J., in Maher v. Roe, supra at 471-473, with Brennan, J., Dissenting, id. at 483-485. We may forgo a nice analysis here because the facts do not place the case at a borderline of invalidity but well beyond it; the regulation appears on its face to be an incursion into the basic right without acceptable justification.

The by-law amendment would have the effect of banishing from the town any clinic in which first-trimester abortions, themselves admittedly lawful, were performed. *fn10 But clinics offering other lawful medical procedures could locate themselves and carry on in this or any other industrial park district that might appear on the town map. This indicates strongly that discrimination was at work against the constitutional right. The exiling of clinics performing the abortion procedure would confine recourse in the town for that remedy to hospitals or individual physicians who might offer it. But that would burden arbitrarily the constitutional right. It may make the point more sharply, perhaps, to note that the legal vices would be in substance the ...

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