220 F.3d 127 (3rd Cir. 2000), 99-5042, Planned Parenthood of Central NJ v. Farmer

Docket Nº:99-5042 and 99-5272
Citation:220 F.3d 127
Party Name:PLANNED PARENTHOOD OF CENTRAL NEW JERSEY; HERBERT HOLMES, M.D.; DAVID WALLACE, M.D.; GERSON WEISS, M.D.; ON BEHALF OF THEMSELVES AND THEIR PATIENTS v. JOHN FARMER, JR.[*], ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE; NEW JERSEY BOARD OF MEDICAL EXAMINERS, AND THEIR SUCCESSORS IN OFFICE; CHRIST
Case Date:July 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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220 F.3d 127 (3rd Cir. 2000)

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY; HERBERT HOLMES, M.D.; DAVID WALLACE, M.D.; GERSON WEISS, M.D.; ON BEHALF OF THEMSELVES AND THEIR PATIENTS

v.

JOHN FARMER, JR.[*], ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE; NEW JERSEY BOARD OF MEDICAL EXAMINERS, AND THEIR SUCCESSORS IN OFFICE; CHRISTINE GRANT[*], COMMISSIONER OF THE DEPARTMENT OF HEALTH AND SENIOR SERVICES, IN HER OFFICIAL CAPACITY, AND HER SUCCESSORS IN OFFICE

NEW JERSEY LEGISLATURE, BY AND THROUGH DONALD T. DIFRANCESCO, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE NEW JERSEY SENATE, AND JACK COLLINS, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE NEW JERSEY ASSEMBLY, AND AS THE REPRESENTATIVE OF THE NEW JERSEY ASSEMBLY (INTERVENORS IN D.C.), APPELLANTS

Nos. 99-5042 and 99-5272

United States Court of Appeals, Third Circuit

July 26, 2000

Argued: November 19, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. No.: 97-cv-06170 District Judge: The Honorable Anne E. Thompson

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Richard F. Collier, Jr., Esquire (Argued) Collier, Jacob & Mills 580 Howard Avenue Corporate Park III Somerset, NJ 08873 Attorney for Appellants

Talcott Camp, Esquire (Argued) Cora K. Tung, Esquire Louise Melling, Esquire Reproductive Freedom Project American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004-2400 Lenora Lapidus, Esquire American Civil Liberties Union of New Jersey Foundation 35 Halsey Street, Suite 4B Newark, NJ 07102 Dara Klassel, Esquire Roger Evans, Esquire Planned Parenthood Federation of America 810 Seventh Avenue New York, NY 10019 Attorneys for Appellees

Before: Alito, Barry and Garth, Circuit Judges .

OPINION FOR THE COURT

Barry, Circuit Judge.

The majority opinion which follows was in final form before the Supreme Court of the United States heard argument in the appeal of Carhart v. Stenberg , 192 F.3d 1142 (8th Cir. 1999). The Supreme Court has now issued its opinion in that case, finding Nebraska's "partial birth abortion" statute -- a statute nearly identical to the one before this Court -- unconstitutional. See Stenberg v. Carhart, 120 S.Ct. 2597 (U.S. June 28, 2000). Because nothing in that opinion is at odds with this Court's opinion; because, in many respects, that opinion confirms and supports this Court's conclusions and, in other respects, goes both further than and not as far as, this opinion; and, because we see no reason for further delay, we issue this opinion without change.

Defendant-Intervenor, the New Jersey State Legislature (the "Legislature"), appeals the decision of the United States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997 (the "Act") unconstitutional and permanently enjoining enforcement of the Act. In a comprehensive opinion, the District Court found the Act unconstitutional because it: (1) is void for vagueness; and (2) places an undue burden on a woman's constitutional right to obtain an abortion. See Planned Parenthood of Cent. N.J. v. Verniero, 41 F.Supp.2d 478, 504 (D.N.J. 1998). We will affirm.

I. BACKGROUND

On December 15, 1997, the New Jersey State Legislature, overriding the governor's veto, joined what is now a majority of states in enacting a law banning "partial-birth abortions."1 Since the first such statute was passed in Ohio, statutes similar to the Act have been wending their way through the judicial system with various courts attempting to ascertain the constitutionality of each statute within the context of over twenty-five years of abortion rights jurisprudence.

While the vast majority of courts have enjoined the enforcement of these statutes because they are unconstitutionally vague and impose an undue burden on women who seek to have an abortion, it is the statute before us on which we must focus our attention. As we do so, we are fully aware that this dispute is framed by deeply held convictions concerning abortion by men and women of good will, convictions which we recognize and respect. On the one side of the abortion issue, and the emotionally charged public debate that issue engenders, are those who believe that all abortion procedures are equally objectionable, not merely the "partial birth abortion" procedure at issue in this case, a position largely foreclosed, as a matter of law, by Roe and Casey. On the other side of the issue and the debate are those who fear any encroachment on a woman's right to seek an abortion. It is not for us to decide who is right and who is wrong as a matter of conviction or philosophy. Rather, after carefully analyzing the statute

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before us, we must decide whether that statute passes constitutional muster.

A. Procedural History

The day the Act was to become effective, Planned Parenthood of Central New Jersey ("Planned Parenthood") and several physicians (collectively as "plaintiffs"), filed suit on their own behalf and on behalf of their patients against the Attorney General of the State of New Jersey, the New Jersey Board of Medical Examiners, and the Commissioner of the Department of Health and Senior Services of New Jersey ("HSS") (collectively as "defendants"). Plaintiffs sought declaratory and injunctive relief pursuant to 42 U.S.C. SS 1983 and 1988 and 28 U.S.C. SS 2201 and 2202 with one goal in mind: to prevent the Act from taking effect. The Attorney General, the New Jersey Board of Medical Examiners and the Commissioner of the HSS all declined to defend the Act. Accordingly, the Legislature sought leave to intervene for that purpose, and leave was granted. See Planned Parenthood of Cent. N.J. v. Verniero, No. 97-6170, slip. op. at 1 (D.N.J. Dec. 24, 1997) (Order). On December 16, 1997, the District Court entered a Temporary Restraining Order preventing enforcement of the Act pending a hearing on the application for an injunction. After a four-day hearing, at which the three individual plaintiff physicians and four defense witnesses testified, the District Court permanently enjoined enforcement of the Act, and the Legislature appealed. We exercise appellate jurisdiction pursuant to 28 U.S.C. S 1291.

B. The Act

New Jersey's partial-birth abortion statute prohibits "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery." N.J.S.A. S 2A:65A-6(e). The Act purports to define the phrase "vaginally delivers a living human fetus before killing the fetus" to mean "deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus." N.J.S.A. S 2A:65A-6(f). The Act provides a single exception whereby this otherwise banned procedure may be used: namely, when the procedure "is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury." N.J.S.A. S 2A:65A-6(b).

Unlike almost all of the "partial-birth abortion" statutes enacted throughout the country, the Act is civil, not criminal. The penalties for violations of the Act are, nonetheless, severe. Under the Act, those who perform "partial-birth abortions" are subject to immediate professional license revocation and a $25,000 fine for each abortion performed. See N.J.S.A. S 2A:65A-6(c). An ambulatory health care facility at which such a banned procedure takes place is also subject to the immediate revocation of its license. See N.J.S.A. S 2A:65A-6(d). A woman upon whom a "partial-birth abortion" is performed, however, is not subject to any penalties. See Senate Women's Issues, Children and Family Services Committee Statement, No. 2409-L. 1997, c. 262.

C. Facts

Because the District Court's findings of fact are not clearly erroneous, see Lanning v. Southeastern Pa. Transp. Auth., 181 F.3d 478, 481 (3d Cir. 1999), we will draw heavily from its opinion in setting forth those facts below.

1. Abortion Procedures

The term "partial-birth abortion" does not exist in medical parlance and, thus, scrutiny of the Act depends largely on determining precisely what abortion procedure or procedures the Act prohibits and whether this prohibition creates an undue burden on a woman's right to an abortion. It is, therefore, necessary to describe and

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examine abortion procedures generally recognized by the medical community, a description and examination that will, of necessity, be somewhat graphic. Relying upon expert testimony, the District Court detailed several abortion procedures: (1) suction curettage; (2) dilation and evacuation ("D&E"); (3) intact dilation and extraction ("D&X"); (4) induction and installation; (5) hysterotomy; and (6) hysterectomy.2

Ninety percent of all abortions are performed during the first trimester of pregnancy. Suction curettage, also known as vacuum aspiration, is the standard procedure for first trimester abortions. During this procedure, a physician mechanically dilates the cervix and then inserts a cannula -- a hollow tube with blunt openings -- into the uterus. The cannula is attached to a vacuuming device and suction is used to remove the uterine contents, including the amniotic fluid, the fetus and the placenta. Afterwards, the physician may scrape the uterine walls to ensure that the uterus is fully evacuated. The fetus may be intact or disarticulated, meaning dismembered, when it is suctioned out of the uterus and through the cervix and vaginal canal. In addition, at times, part of the intact fetus may be...

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