130 F.3d 187 (6th Cir. 1997), 96-3157, Women's Medical Professional Corp. v. Voinovich

Docket Nº:Defendants-Appellants (96-3157),
Citation:130 F.3d 187
Party Name:WOMEN'S MEDICAL PROFESSIONAL CORPORATION, Martin Haskell, M.D., Plaintiffs-Appellees, v. George VOINOVICH, Governor, State of Ohio, Betty D. Montgomery, Ohio Attorney General,
Case Date:November 18, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 187

130 F.3d 187 (6th Cir. 1997)

WOMEN'S MEDICAL PROFESSIONAL CORPORATION, Martin Haskell,

M.D., Plaintiffs-Appellees,

v.

George VOINOVICH, Governor, State of Ohio, Betty D.

Montgomery, Ohio Attorney General,

Defendants-Appellants (96-3157),

Mathias H. Heck, Jr., Montgomery County Prosecuting

Attorney, Defendant-Appellant (96-3159).

Nos. 96-3157, 96-3159.

United States Court of Appeals, Sixth Circuit

November 18, 1997

Argued May 2, 1997.

Page 188

[Copyrighted Material Omitted]

Page 189

David C. Greer (briefed), Bieser, Greer & Landis, Dayton, Ohio, Alphonse A. Gerhardstein (argued and briefed), Sarah W. Poston (briefed), Laufman, Rauh & Gerhardstein, Cincinnati, Ohio, Kathryn Kolbert (briefed), Center For Reproductive Law & Policy, New York City, for Women's Medical Professional Corp. in No. 96-3157.

David C. Greer, Bieser, Greer & Landis, Dayton, Ohio, Alphonse A. Gerhardstein (argued), Sarah W. Poston, Laufman, Rauh & Gerhardstein, Cincinnati, Ohio, Kathryn Kolbert, Center For Reproductive Law & Policy, New York City, for Women's Medical Professional Corp. in No. 96-3159.

David C. Greer, Bieser, Greer & Landis, Dayton, Ohio, Alphonse A. Gerhardstein, Sarah W. Poston, Laufman, Rauh & Gerhardstein, Cincinnati, Ohio, Kathryn Kolbert, Center For Reproductive Law & Policy, New York City, for Martin Haskell, M.D. in Nos. 96-3157 and 96-3159.

Elizabeth A. Scott (briefed), Diane R. Richards (argued and briefed), Office of the Attorney General of Ohio, Columbus, Ohio, for George Voinovich and Betty Montgomery in No. 96-3157.

Elissa D. Cohen (argued and briefed), Richard W. Divine, Office of the Prosecuting Attorney for the County of Montgomery, Dayton, Ohio, for Mathias H. Heck, Jr. in No. 96-3159.

James Bopp, Jr. (briefed), Bopp, Coleson & Bostrom, Terre Haute, Indiana, for American Association of Pro Life Obstetricians & Gynecologists.

Robert R. Melnick (briefed), Rutherford Institute, Youngstown, Ohio, for Rutherford Institute.

David J. Young (briefed), Squire, Sanders & Dempsey, Columbus, Ohio, for States of Nebraska, Alabama, California, Illinois, Mississippi and South Carolina and the Commonwealth of Virginia in No. 96-3157.

David J. Young, Squire, Sanders & Dempsey, Columbus, Ohio, for States of Nebraska, Alabama, California, Illinois, Mississippi and South Carolina and the Commonwealth of Virginia in No. 96-3159.

Paul Benjamin Linton (briefed), Americans United For Life, Chicago, Illinois, for Members of the Ohio General Assembly.

Nancy Northup (briefed), American Civil Liberties Union Foundation, New York City, Joan M. Englund (briefed), ACLU of Ohio Foundation, Inc., Cleveland, Ohio, for American College of Obstetricians and Gynecologists in No. 96-3157.

Nancy Northup, American Civil Liberties Union Foundation, New York City, Joan M. Englund (briefed), ACLU of Ohio Foundation, Inc., Cleveland, Ohio, for American College of Obstetricians and Gynecologists in No. 96-3159.

Lara E. Bowles (briefed), Arnold & Porter, Karen R. Guss (briefed), Marcy J. Wilder (briefed), National Abortion and Reproductive Rights Action League, Washington, DC, for National Abortion and Reproductive Rights Action League Foundation.

Page 190

Before: BROWN, KENNEDY, and BOGGS, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which BROWN, J., joined. BOGGS, J. (pp. 211-19), delivered a separate dissenting opinion.

OPINION

KENNEDY, Circuit Judge.

This case involves a facial challenge to the constitutionality of House Bill 135 ("Act"), which was enacted by the Ohio General Assembly on August 16, 1995, and was to have gone into effect on November 14, 1995. The District Court held unconstitutional the three major portions of the Act: (1) the ban on the use of the "dilation and extraction" (D & X) abortion procedure; (2) the ban on the performance of post-viability abortions; and (3) the viability testing requirement. The District Court further held that no other part of the Act was either constitutional or severable. It therefore enjoined enforcement of the entire Act. For the following reasons, we AFFIRM.

I. Facts

  1. House Bill 135

    The Act creates two separate bans as well as separate requirements with regard to post-viability abortions. First, the Act bans the use of the D & X procedure in all abortions, i.e. pre- and post-viability: "No person shall knowingly perform or attempt to perform a dilation and extraction procedure upon a pregnant woman." OHIO REV.CODE ANN. § 2919.15(B) (Anderson 1996). The D & X procedure is defined as:

    [T]he termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. "Dilation and extraction procedure" does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion.

    Id. § 2919.15(A). Physicians who are criminally prosecuted or sued civilly for violating this ban may assert, as an affirmative defense, that all other available abortion procedures would have posed a greater risk to the health of the pregnant woman. Id. § 2919.15(C)(1) (governing criminal actions); id. § 2307.51(C) (Anderson Supp.1995) (governing civil actions). In a criminal action, if the physician establishes a prima facie case in support of the affirmative defense, the prosecutor must prove beyond a reasonable doubt that at least one other available abortion procedure would not have posed a greater risk to the health of the pregnant woman than the risk posed by the D & X procedure. Id. § 2919.15(C)(2).

    Second, the Act provides that "[n]o person shall purposely perform or induce or attempt to perform or induce an abortion upon a pregnant woman if the unborn human is viable," except in the following two circumstances:

    (1) The abortion is performed or induced or attempted to be performed or induced by a physician, and that physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.

    (2) The abortion is performed or induced or attempted to be performed or induced by a physician and that physician determines, in good faith and in the exercise of reasonable medical judgment, after making a determination relative to the viability of the unborn human in conformity with division (A) of section 2919.18 of the Revised Code, that the unborn human is not viable.

    Id. § 2919.17(A). For purposes of the post-viability ban, any fetus of at least twenty-four weeks gestational age is rebuttably presumed to be viable. Id. § 2919.17(C). 1

    Section 2919.18(A), the viability testing provision, requires that no abortion shall be performed or attempted to be performed "after the beginning of [a pregnant woman's]

    Page 191

    twenty-second week of pregnancy" unless the physician determines "in good faith and in the exercise of reasonable medical judgment, that the unborn human is not viable, and the physician makes that determination after performing a medical examination of the pregnant woman and after performing or causing the performing" of tests that a "reasonable physician" would make to determine viability. Id. § 2919.18(A)(1). The viability testing provision need not be complied with if a medical emergency exists. 2 Id. § 2919.18(A)(3).

    Finally, any physician intending to perform a post-viability abortion, having determined that an abortion is "necessary", must meet several requirements: (1) the physician must certify the necessity of the abortion in writing; (2) a second physician must certify the necessity of the abortion in writing, after reviewing the patient's medical records and tests; (3) the abortion must be performed in a health care facility which has access to neonatal services for premature infants; (4) the physician must choose the abortion method which provides the best opportunity for the fetus to survive, unless it would pose a significantly greater risk of death to the pregnant woman, or a serious risk of substantial and irreversible impairment to a major bodily function; and (5) a second physician must be present at the abortion to care for the unborn human. Id. § 2919.17(B)(1). The physician need not comply with these conditions if the physician determines that a medical emergency exists. Id. § 2919.17(B)(2).

    The Act creates civil and criminal liability for violations of the D & X ban and the post-viability ban, and criminal liability for violations of the viability testing requirement. Violation of either the D & X ban or the post-viability ban is a fourth degree felony. Id. §§ 2919.15(D), 2919.17(D). Violation of the viability testing requirement is a fourth degree misdemeanor. Id. § 2919.18(b). A patient upon whom either a D & X or a post-viability abortion is performed or attempted to be performed is not criminally liable. Id. §§ 2919.15(E), 2919.17(E). She may, however, sue within one year of a violation of either the D & X ban or the post-viability ban for compensatory, punitive, and exemplary damages, as well as for costs and attorney's fees. Id. §§ 2307.51(B), 2307.52(B). Derivative claims for relief may also be brought. Id. § 2305.11(D)(3) & (7).

  2. Procedural History

    Plaintiff Women's Medical Professional Corporation (WMPC) operates clinics and provides abortion services in Montgomery, Hamilton, and Summit Counties, Ohio. Plaintiff Martin Haskell, M.D., is a doctor affiliated with plaintiff WMPC. He formerly performed abortions after the twenty-fourth week of pregnancy, but no longer does so. He uses the D & X procedure for abortions during the twenty-first to twenty-fourth weeks of gestation. 3...

To continue reading

FREE SIGN UP