Richmond Medical Center for Women v. Gilmore, Civ.A. 3:98CV309.

• Decision Date: 25 June 1998
• Docket Number: No. Civ.A. 3:98CV309.,Civ.A. 3:98CV309.
• Parties: RICHMOND MEDICAL CENTER FOR WOMEN, et al., Plaintiffs, v. James S. GILMORE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

11 F.Supp.2d 795

RICHMOND MEDICAL CENTER FOR WOMEN, et al., Plaintiffs, v. James S. GILMORE, et al., Defendants.

No. Civ.A. 3:98CV309.

United States District Court, E.D. Virginia, Richmond Division.

June 25, 1998.

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Karen A. Raschke, Macaulay, Lee & Powell, P.C., Richmond, VA, Simon Heller, Bebe J. Anderson, The Center for Reproductive Law & Policy, New York City, for Plaintiffs.

William H. Hurd, Ashley L. Taylor, Jr., Mark L. Earley, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

The plaintiffs are Virginia physicians, medical clinics, and non-profit corporations (the "plaintiffs") offering reproductive health services and obstetrical and gynecological medical services, including abortions, to women in Charlottesville, Falls Church, Newport News, Norfolk, Richmond, and Roanoke, Virginia, and neighboring counties. The geographic area in which they offer abortion services encompasses a large segment of Virginia's population. The individual and institutional plaintiffs brought this action on their own behalf and on behalf of their patients seeking abortions.

The defendants are the Governor of Virginia and the Commonwealth Attorneys for the County of Albemarle, the County of Fairfax, the City of Newport News, the City of Norfolk, the City of Richmond, and the County of Roanoke. The Governor is responsible for ensuring that the laws of Virginia are faithfully executed and the Commonwealth Attorneys are responsible for enforcing Virginia's criminal statutes.

The plaintiffs filed this civil rights action, pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4), 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202, seeking a declaration that Chapters 448 and 579 of the 1998 Acts of the General Assembly, Va.Code § 18.2-74.2 (the "Act"), offend the Constitution of the United States in several ways. In particular, the plaintiffs assert that the Act violates a woman's right to privacy under the Due Process Clause of the Fourteenth Amendment and is void for vagueness. They allege also that the Act violates the Equal Protection Clause of the Fourteenth Amendment. The Act, which was passed by the General Assembly in the winter of 1998, and signed by the Governor on April 13, 1998, is scheduled to take effect on July 1, 1998.¹

At this time, the plaintiffs seek preliminary injunctive relief. For the reasons set forth below, the motion for a preliminary injunction is granted.

STATEMENT OF FACTS

A. The Statute

The Act adds certain provisions "relating to partial birth abortions" to Virginia's extant abortion regulatory statutes. See 1998 Va. Acts ch. 448. Section 18.2-74.2(A) is entitled "Partial Birth Abortion Prohibited." Its substantive provisions are that:

A. Notwithstanding the provisions of §§ 18.2-72, 18.2-73 and 18.2-74, a physician shall not knowingly perform a partial birth abortion that is not necessary to save the life of a mother. A violation of this section shall be punishable as a Class I misdemeanor.²

Section 18.2-74.2(D) defines "partial birth abortion" to mean:

an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery.³

The statute does not define the terms "deliver," "living fetus," or "a substantial portion thereof."

The term "partial birth abortion" is a term coined by legislators, anti-abortion activists, and the media. It has no accepted medical meaning. The American College of Obstetricians and Gynecologists ("ACOG") has issued a statement of policy to put some form and content to this otherwise medically unrecognized term. To that end, ACOG has equated the term "partial birth abortion" with a medical procedure known as "intact dilatation and extraction," which is also referred to as "Intact D & X." According to the ACOG statement of policy, an Intact D & X contains all four of the following elements:

1. Deliberate dilatation of the cervix, usually over a sequence of days;

2. Instrumental conversion of the fetus to a footling breech;

3. Breech extraction of the body excepting the head; and

4. Partial evacuation of the intra cranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

(Amended Compl.Ex. B). According to ACOG, any procedure which does not contain all four elements in sequence is not an Intact D & X.

That part of Virginia's criminal code which defines when and under what circumstances an abortion can be performed lawfully has been in effect since 1975 and is consistent with controlling Supreme Court authority respecting the regulation and proscription of abortion. The first provision in that statutory scheme is Va.Code § 18.2-71, which makes performance of an abortion a felony unless the abortion is otherwise permitted by ensuing code sections. Under Va.Code § 18.2-72, it is lawful to perform an abortion during the first trimester of pregnancy, the only limitation being that it must be performed by a licensed physician. Under Va. Code § 18.2-73, it is lawful to perform an abortion during the second trimester of pregnancy, the only limitations being that the abortion be performed by a licensed physician in a hospital licensed by the State. Under Va.Code § 18.2-74, it is lawful to perform an abortion after the second trimester of pregnancy if: (i) the abortion is performed in a licensed hospital; (ii) the attending physician and two consulting physicians certify that the "continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman"; and (iii) life support measures are available for the product of the abortion in the event of evidence of viability.⁴

The Act now under challenge, to be codified at Va.Code § 18.2-74.2, prohibits a doctor from knowingly performing a "partial birth abortion" that is not necessary to save the life of the mother, notwithstanding the fact that first and second trimester abortions are otherwise readily available with obviously non-burdensome restrictions and that even third trimester abortions are available if necessary to save the life of the mother or to protect her physical or mental health from substantial, irreparable injury. Thus, it is no understatement to assert that the Act will alter rather well-settled Virginia law respecting the performance and receipt of abortion procedures.

The plaintiffs apprehend that the statute is so broad as to encompass two key methods of abortion now performed by the plaintiffs. The parties agree that so-called "medical abortions," which are performed by the administration of drugs during the first 49 to 53 days after the last menstrual period,⁵ are not covered by the Act. The plaintiffs also argue that the statute is so vaguely worded as to have the same effect. Finally, they contend that the Act offends the controlling principles that: (i) the State may not, before fetal viability, constitutionally impose an undue burden on a woman's decision to have an abortion; and (ii) that "[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). They also argue that, in failing to provide a maternal health exception, the Act violates the rule in Casey regulating such an exception after viability.

These challenges to the Act can be assessed only in the context of the record respecting the various means of performing abortions and the means used by the physicians and clinics who are plaintiffs in this action.

B. Abortion Methods

There are several undisputed facts which are of significance in understanding abortion methods and the issues presented by the Act. First, it is undisputed that the purpose of an abortion is to terminate a pregnancy and that the abortion procedure kills the fetus. Nor is it disputed that the plaintiff physicians and the employees of the institutional plaintiffs who perform abortions do so with the knowledge and intent that, in terminating the pregnancy, the fetus will be killed.

Also, it is undisputed that, in most medically acceptable methods of abortions, the fetus is removed from the uterus, through the cervical canal and cervical os, into and through the vagina, either intact or in parts. In some methods of abortion in the first and second trimester, the fetus is brought from the uterus to the vagina in a syringe or through a cannula.

There is no dispute that the term "viability" means "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb." Casey, 505 U.S. at 870, 112 S.Ct. 2791. The parties are in agreement that, generally, viability occurs between 23 and 25 weeks lmp. Also, it is agreed that, in medical parlance, sustained cardiac activity over a period of time at a set rate evinces the existence of life in the fetus; that this occurs usually at 10 weeks lmp; that fetal tissue may be alive in some sense of the word before 10 weeks lmp; and that "life" in the fetus and viability are different concepts.

With these facts in mind, it is now appropriate to describe the basic methods of abortion. The most reliable evidence on the methods of abortion came from Dr. Hausknecht, Dr. Jones, and Dr. Fitzhugh, each of whom is board certified in obstetrics and gynecology, a member of ACOG, a teacher of medicine, including abortion, at respected facilities, and an expert in the area of abortions.⁶ Dr. Hausknecht has performed approximately 5,000 abortions. Drs. Fitzhugh and Jones have performed...