Women's Medical Professional Corp. v. Taft

• Citation: 162 F.Supp.2d 929
• Decision Date: 20 September 2001
• Docket Number: No. C-3-00-368.,C-3-00-368.
• Parties: WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al., Plaintiffs, v. Bob TAFT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

162 F.Supp.2d 929

WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al., Plaintiffs, v. Bob TAFT, et al., Defendants.

No. C-3-00-368.

United States District Court, S.D. Ohio, Western Division.

September 20, 2001.

Dave Carr Greer, Bieser, Greer & Landis, Dayton, OH, Jennifer Lynn Branch, Alphonse & Gerhardstein, Cincinnati, OH, Janet Crepps, New York City, for Plaintiffs.

Stuart Harris, Ohio Atty. Gen. Corrections Litigation, Columbus, OH, Mary Crawford, Anne Berry Strait, Ohio Atty. Gen. Health & Human Services Section, Columbus, OH, Elizabeth Schuster, Ohio Atty. Gen. Chief Counsel's Staff Section, Columbus, OH, Karl Schedler, Assist. Atty. Gen., Columbus, OH, for Bob Taft, Betty D. Montgomery, defendants.

Gregory Paul Dunsky, Montgomery County Prosecutor's Office, Dayton, OH, for Mathias H. Heck, Jr., defendant.

DECISION AND ENTRY PERMANENTLY ENJOINING DEFENDANTS FROM ENFORCING PROVISIONS OF SUBSTITUTE HOUSE BILL 351 WHICH PROHIBIT PRE-VIABILITY AND POST-VIABILITY PERFORMANCE OF PARTIAL BIRTH PROCEDURE; PLAINTIFFS' CHALLENGE TO CONSTITUTIONALITY OF CIVIL LIABILITY PROVISION OF SUBSTITUTE HOUSE BILL 351 DISMISSED FOR LACK OF STANDING; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANTS; TERMINATION ENTRY

RICE, Chief Judge.

This case presents a facial challenge to the constitutionality of Substitute House Bill 351 ("HB 351" or "the Act"), which was to have become effective in August, 2000. The Plaintiffs are the Women's Medical Professional Corporation ("WMPC") and Dr. Martin Haskell. The Defendants are Ohio Governor Bob Taft, Ohio Attorney General Betty Montgomery and Montgomery County (Ohio) Prosecutor Mathias H. Heck, Jr.

The Plaintiffs commenced the present litigation on July 27, 2000, seeking declaratory relief regarding the constitutionality of HB 351 and seeking to enjoin the Defendants from enforcing the Act, which, with certain exceptions, bans Ohio physicians from performing, or attempting to perform, an abortion procedure identified as the "partial birth procedure." The Plaintiffs contend that HB 351 is unconstitutional for a number of reasons. These arguments may be divided into four categories. First, the Plaintiffs contend that the Act imposes an unconstitutional "undue burden" on certain women seeking abortion services in Ohio. Second, they argue that the Act lacks an adequate exception allowing the "partial birth procedure" to be performed when it is necessary to preserve a woman's health. Third, they contend that the Act is unconstitutionally vague and lacks adequate scienter standards. Fourth, they assert that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. The Court granted a ten-day Temporary Restraining Order ("TRO") on August 17, 2000, prohibiting enforcement of the Act. (Doc. # 4). On September 1, 2000, the Court extended the TRO until Tuesday, September 19, 2000. (Doc. # 16).

With respect to the Plaintiffs' request for preliminary injunctive relief, the Court held an oral and evidentiary hearing on September 5-6, 2000. During that proceeding, the Court heard testimony from two medical practitioners, Plaintiff Haskell and Ray Paschall, M.D., who testified as an expert witness for the Defendants. The Court also heard testimony from Barbara Brewer, a clinical psychologist who testified as an expert for the Plaintiffs. In addition, the Court admitted into evidence, by stipulation of the parties, testimony from several other individuals who did not attend the September 5-6, 2000, oral and evidentiary hearing. Those individuals include Rein Siiner, M.D., Paula Hillard, M.D., Mary Campbell, M.D., George Goler, M.D., Haynes Robinson, M.D., Raymond Gasser, M.D., Nancy Romer, M.D., Anthony Levatino, M.D., John Doe # 1, M.D., John Doe # 2, M.D., Jane Doe # 1, who was a patient of Plaintiff Haskell, and John Paulson, who is employed by the Ohio Department of Health. The parties provided the Court with affidavits, declarations and/or deposition testimony from some of the foregoing individuals. Others testified before the Court in a 1995 case, Women's Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (Rice, J.), which involved the same parties but somewhat different issues. The parties stipulated to the Court's consideration of extensive excerpts from the testimony and exhibits presented in the 1995 case.

After considering the foregoing evidentiary materials, the Court entered a Preliminary Injunction on September 22, 2000, enjoining the Defendants from enforcing HB 351, pending a final decision on the merits.¹ See Women's Medical Professional Corp. v. Taft, 114 F.Supp.2d 664 (S.D.Ohio 2000) (Rice, J.). Thereafter, on January 9-11, 2001, the Court conducted a full oral and evidentiary hearing on the merits of the Plaintiffs' request for permanent injunctive and declaratory relief. (See Minutes, Doc. # 44; Hearing Transcripts, Doc. # 45-47). A number of witnesses testified at the January, 2001, hearing, including Dr. Siiner, Rebecca Jackson, M.D., Morton P. Hibbert, M.D., Plaintiff Haskell, Cassing Hammond, M.D., LeRoy Sprang, M.D., Charles A.C. Ballard, M.D., and clinical psychologist Barbara Brewer. In conjunction with the January, 2001, hearing, the parties also provided the Court with a joint stipulation of exhibits, which includes, inter alia, numerous expert reports, medical journal articles, and a transcript of the deposition of Phillip Ney, M.D. (See Stipulation, Doc. # 48). Following the January, 2001, oral and evidentiary hearing, the parties submitted post-hearing Memoranda and proposed findings of fact and conclusions of law. (Doc. # 49-51, 54-55). The Court then heard final arguments on April 3, 2001. (See Minutes, Doc. # 56).

Having reviewed all of the testimony and exhibits submitted in connection with both the September, 2000, and January, 2001, hearings, the Court now concludes, for the reasons to follow, that HB 351 is unconstitutional on its face, insofar as it bans the pre-viability and post-viability performance, or attempted performance, of the "partial birth procedure." In particular, the Court finds that, in both the previability and post-viability context, the Act lacks adequate exceptions allowing the "partial birth procedure" to be performed when it is necessary to preserve a woman's health. Accordingly, based on the reasoning and citation of authority set forth, infra, the Court will enter a declaratory judgment and will permanently enjoin the Defendants from enforcing HB 351's ban on the "partial birth procedure." Insofar as the Act provides certain third parties with a cause of action for monetary damages against physicians who perform the "partial birth procedure," however, the Court concludes, for the reasons to follow, that the Plaintiffs lack standing to challenge that portion of the Act. In particular, with respect to the civil liability provision, the Plaintiffs have not demonstrated the existence of a justiciable "case or controversy" with the Defendants in this litigation. Consequently, the Plaintiffs are not entitled to declaratory or injunctive relief with respect to the civil liability component of HB 351.

I. Analysis

Plaintiff WMPC is an Ohio corporation that currently provides, and intends to continue providing, medical services in Montgomery, Hamilton and Summit Counties, Ohio.² WMPC's services include the "partial birth procedure" identified in HB 351. The corporation, which fears criminal and civil liability for its actions after the effective date of this Act, sues on its own behalf and on behalf of physicians, counselors and staff members who are employed at its various affiliated locations, as well as on behalf of women who receive medical services, including abortions, at these locations. Plaintiff Haskell, a physician, is the owner of WMPC. Haskell provides abortion services to women who reside throughout Ohio and other states. His patients include women seeking abortion services through approximately the 24th week of pregnancy. Haskell utilizes the "partial birth procedure" banned by HB 351.³ He intends to continue providing abortion services in a manner contrary to the Act after its effective date, thereby exposing himself to criminal prosecution and to civil liability.

Before turning to the merits of this litigation, the Court pauses briefly to address three threshold issues that it previously resolved in its preliminary injunction ruling. First, the Court notes that it has federal question jurisdiction under 28 U.S.C. § 1331, because this action involves a federal constitutional challenge to a state statute. See Women's Medical Professional Corp., 114 F.Supp.2d at 667. Second, the Court concludes, for the reasons set forth in its prior ruling, that Plaintiff Haskell has standing to pursue the present action on behalf of himself and his patients. Id. at 667-68. Third, the Court finds, again for the reasons set forth in its prior ruling, that Plaintiff Haskell has standing to challenge HB 351's pre-viability and post-viability ban on the performance of the "partial birth procedure."⁴ Id. at 668.

Having made the foregoing findings, the Court turns now to the merits of this litigation. In so doing, the Court will presume a degree of familiarity with its preliminary injunction ruling in this case. Therein, the Court provided a lengthy review of the substantive law governing the regulation of abortion, with particular emphasis placed on three cases: (1) this Court's ruling more than five years ago in Women's Medical Professional Corp. v Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (Rice, J.); (2) the Sixth Circuit's affirmance of that ruling in Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997); and (3) the Supreme Court's recent opinion in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a Nebraska statute banning "partial birth abortion." See Women's Medical Professional...