Planned Parenthood Fed. of America v. Ashcroft
| Decision Date | 01 June 2004 |
| Docket Number | No. C 03-4872 PJH.,C 03-4872 PJH. |
| Citation | 320 F.Supp.2d 957 |
| Parties | PLANNED PARENTHOOD FEDERATION OF AMERICA, et al., Plaintiffs, v. John ASHCROFT, Attorney General of the United States, in his official capacity, Defendant. City and County of San Francisco, Plaintiff Intervenor, v. John Ashcroft, Attorney General of the United States, in his official capacity, Defendant. |
| Court | U.S. District Court — Northern District of California |
Beth H. Parker, Giselle Fahimian, Teresa L. Federer, Deborah A. Adler, Esq., Bingham McCutchen LLP, San Francisco, CA, Eve C. Gartner, Roger K. Evans, Planned Parenthood Federation of America, New York, NY, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, for Plaintiffs.
Aleeta Marie Van Runkle, Kathleen Suzanne Morris, Therese M. Stewart, Office of the City Attorney, San Francisco, CA, Intervenor Plaintiff.
Andrew Irving Warden, Anthony Joseph Coppolino, James J. Gilligan, Kaija Marie Clark, Terry Marcus Henry, Mark Thomas Quinlivan, Preeya Myrtle Noronha, U.S. Department of Justice, Washington, DC, W. Scott Simpson, U.S. Department of Justice, Washington, VA, for Defendant.
ORDER GRANTING PERMANENT INJUNCTION; FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT THEREOF
TABLE OF CONTENTS
BACKGROUND ............................................................ 959
I. FACTUAL BACKGROUND ........................................... 960
A. Established Abortion Procedure ............................ 960
B. Contested Abortion Procedure .............................. 963
II. LEGAL FRAMEWORK .............................................. 966
III. PROCEDURAL HISTORY ........................................... 966
ISSUES ................................................................ 967
DISCUSSION ............................................................ 967
I. STANDARD OF REVIEW ........................................... 967
II. UNDUE BURDEN ................................................. 968
A. Introduction .............................................. 968
B. Parties' Positions ........................................ 968
C. Legal Background .......................................... 969
D. Stenberg: Comparison of Act's Language to Nebraska Statute. 970
E. Findings of Fact .......................................... 971
F. Conclusions of Law ........................................ 973
III. CONSTITUTIONAL VAGUENESS ..................................... 975
A. Parties' Positions ........................................ 975
B. Legal Standard ............................................ 976
C. Findings of Fact and Conclusions of Law ................... 976
IV. HEALTH EXCEPTION ............................................. 978
A. Parties' Arguments ........................................ 979
B. Trial Evidence ............................................ 979
C. Findings of Fact .......................................... 998
D. Congressional Findings ................................... 1002
E. Conclusions of Law ....................................... 1032
CONCLUSION ........................................................... 1034
Before this court is the constitutionality of the Partial-Birth Abortion Ban Act of 2003 ("Act"). With the Act, Congress seeks to ban an abortion procedure it refers to as "partial-birth abortion." The Act is very similar to a prior Nebraska statute banning so-called "partial-birth abortions," which the United States Supreme Court held unconstitutional. See Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Plaintiffs in this case seek an injunction permanently enjoining enforcement of the Act.
For the reasons that follow, this court concludes that the Act is unconstitutional, and PERMANENTLY ENJOINS enforcement of the Act.1
The Act at issue in this case imposes criminal and civil penalties on "[a]ny physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion." 18 U.S.C. § 1531(a). A brief summary of the various abortion procedures is set forth below to aid in an understanding of the Act's scope and the procedure or procedures that it prohibits.2
A full-term pregnancy lasts for approximately 40 weeks, measured from the date of the woman's last menstrual period ("lmp").3 Traditionally, pregnancy is divided into three trimesters, with the first trimester lasting until about the 13th or 14th week of pregnancy, the second lasting until about the 27th week, and the third lasting until birth. See, e.g., Trial Transcript ("Tr.") Vol. 1 at 14:2-20 (Paul). A fetus is considered viable, meaning that it has a realistic chance of long-term survival outside the uterus, at approximately 24 weeks lmp. Tr. Vol. 1 at 14:21-15:5 (Paul); Tr. Vol. 7 at 1119:23-1120:3 (Sprang), Tr. Vol. 9 at 1355:18-22 ().
If a woman chooses to terminate her pregnancy, a doctor will use different medical techniques depending on the gestational age of the fetus. Second trimester abortions, the main subject of this litigation, generally involve one of two procedures: dilation and evacuation ("D & E," or surgical abortion) or induction (which is also known as a medical abortion, meaning that drugs are administered to abort the pregnancy).4 Other methods that are used much more rarely are hysterotomy (the caesarean removal of the fetus from the uterus) and hysterectomy. Tr. Vol. 1 at 44:7-47:2, 46:8-46:22 (Paul); Exh. 7 (table 16).
A D & E abortion is a surgical procedure, which is performed in two steps: dilation of the cervix and surgical removal of the fetus. See, e.g., Tr. Vol. 1 at 50:10-15 (Paul). About 85-95% of all second trimester abortions performed in the United States are D & Es. Tr. Vol. 1 at 48:24-49:17 (Paul); Trial Exhibit ("Exh.") 7 (table 18) ( that D & Es make up 95% of all abortions taking place between 16 and 20 weeks of pregnancy, and 85% of all abortions taking place after 20 weeks); Tr. Vol. 5 at 804:2-3 (Westhoff).5
To begin the D & E process, the woman's cervix is first dilated with osmotic dilators used either alone or in conjunction with drugs known as prostaglandins (or misoprostyl).6 This encourages the cervix to expand in width and shorten in length, as if in preparation for labor, and will permit the doctor to introduce surgical instruments into the woman's uterus. Tr. Vol. 1 at 50:25-62:6 (Paul); Tr. Vol. 1 at 167:5-10 (Sheehan); Tr. Vol. 3 at 400:18-402:22(Doe); Tr. Vol. 4 at 509:4-511:19 (Broekhuizen); Tr. Vol. 4 at 657:13-662:25 (Creinin); Tr. Vol. 5 at 811:18-812:20 (Westhoff), Tr. Vol. 11 at 1718:4-1720:10 (Chasen). Doctors need more dilation as gestational age increases, and generally try to achieve a minimum of one millimeter of dilation for each week of gestation (for example, a doctor would try to achieve 20 millimeters, or 2 centimeters, of dilation for a 20 week fetus). Tr. Vol. 2 at 182:6-14 (Sheehan); Tr. Vol. 3 at 402:3-5(Doe); Tr. Vol. 4 at 661:22-662:1 (Creinin).7 However, the amount of cervical dilation that can be achieved is individual to each woman and cannot necessarily be controlled. Tr. Vol. 1 at 55:8-14 (Paul); Tr. Vol. 2 at 14-15 (Sheehan); Tr. Vol. 3 at 402:10-18(Doe); Tr. Vol. 8 at 1283:3-8 (Shadigian); Tr. Vol. 4 at 661:19-21 (Creinin). For instance, women who have previously undergone childbirth often will achieve greater dilation in a shorter period of time than women who have not. Tr. Vol. 1 at 62:2-5 (Paul); Tr. Vol. 2 at 182:20-183:1 (Sheehan); Tr. Vol. 4 at 662:2-9 (Creinin); Tr. Vol. 5 at 812:12-13 (Westhoff); Tr. Vol. 11 at 1723:17-1724:6 (Chasen).
Dilation can take place over a period of time ranging from 90 minutes up to one or two days, depending on the practice of the physician. The process can be accelerated if drugs to induce dilation are administered along with the placement of laminaria in the cervix. Tr. Vol. 1 at 55:4-7, 59:9-11 (); Tr. Vol. 1 at 180:21-183:10 (); Tr. Vol. 3 at 401:7-402:22 (); Tr. Vol. 4 at 659:23-24 (); Tr. Vol. 5 at 812:6-812:20 (); Tr. Vol. 11 at 1719:10-25 (). If the doctor opts to perform dilation over an extended period of time, the procedure often takes place in an outpatient setting, so the woman can participate in her usual daily activities and spend the night at home. See, e.g., Tr. Vol. 1 at 45:15-19, 60:1-6 (Paul); Tr. Vol. 2 at 181:11-14 (Sheehan); Tr. Vol. 3 at 402:21-22(Doe); Tr. Vol. 4 at 659:25-660:5 (Creinin).
The woman then returns to the clinic or hospital the next day, and, if sufficient dilation has been achieved, she is then placed under some form of sedation, and the cervix is prepared for surgery.8 The doctor will then place forceps in the uterus, and, usually under ultrasound guidance, grasp the fetus with the forceps and then remove the fetus by pulling it through the cervix and vagina. This process usually causes the fetus to disarticulate. It usually takes about 10-15 "passes" through the uterus to remove the entire fetus. When the entire fetus has been removed, the doctor then uses a suction tube, or cannula, to remove the placenta from the uterus and to ensure that no fetal parts have been left behind. Tr. Vol. 1 at 62:7-68:21, 69:9-21 (Paul); Tr. Vol. 2 at 183:15-186:13 (Sheehan); Tr. Vol. 3 at 402:23-404:12(Doe); Tr. Vol. 4 at 514:20-526:17 (Broekhuizen); Tr. Vol. 4 at 663:1-668:4 (Creinin); Tr. Vol. 5 at 812:21-818:7 (Westhoff). All the testifying experts who perform this...
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