Women's Medical Professional Corp. v. Taft, 01-4124.

• Citation: 353 F.3d 436
• Decision Date: 17 December 2003
• Docket Number: No. 01-4124.,01-4124.
• Parties: WOMEN'S MEDICAL PROFESSIONAL CORPORATION; Martin Haskell, MD, Plaintiffs-Appellees, v. Bob TAFT, Governor; Betty D. Montgomery, Attorney General; Mathias H. Heck, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

353 F.3d 436

WOMEN'S MEDICAL PROFESSIONAL CORPORATION; Martin Haskell, MD, Plaintiffs-Appellees, v. Bob TAFT, Governor; Betty D. Montgomery, Attorney General; Mathias H. Heck, Jr., Defendants-Appellants.

No. 01-4124.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2003.

Decided and Filed: December 17, 2003.

Petition for Rehearing Denied En Banc: April 1, 2004. Pursuant to Sixth Circuit Rule 206.

Stephen P. Carney (argued and briefed), Anne Berry Strait, Karl William Schedler (briefed), Office of the Attorney General of Ohio, Columbus, Ohio, for Appellants.

Alphonse A. Gerhardstein (argued and briefed), Jennifer L. Branch (briefed), Laufman & Gerhardstein, Cincinnati, Ohio, David C. Greer (briefed), Bieser, Greer & Landis, Dayton, Ohio, for Appellees.

Eric D. Miller, United States Department of Justice, Washington, D.C., A. Stephen Hut, Jr., Kimberly A. Parker, Wilmer, Cutler & Pickering, Washington, D.C., Jennifer Dalven, American Civil Liberties

Union Foundation, New York, NY, for Amici Curiae.

Before: RYAN and BATCHELDER, Circuit Judges; TARNOW, District Judge.^*

RYAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. TARNOW, D.J. (pp. 453-467), delivered a separate dissenting opinion.

OPINION

RYAN, Circuit Judge.

For the second time in six years, we must decide whether an Ohio statute that restricts partial birth abortions violates the Fourteenth Amendment of the United States Constitution. In Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997), we held, inter alia, that Ohio's first attempt to restrict partial birth abortions violated the Fourteenth Amendment because it imposed an "undue burden" on "a woman's right to choose to have an abortion." Id. at 200-03.

The plaintiffs claim that Ohio's new partial birth abortion statute, Ohio Rev.Code Ann. § 2919.151 (Anderson 2002) (the Act), is likewise unconstitutional, because: (1) it does not contain an adequate health exception; and (2) it imposes an "undue burden" upon a woman seeking to abort a non-viable fetus, in that the description of the banned abortion method encompasses the concededly lawful dilation and evacuation (D & E) abortion procedure.

As set forth in detail below, we reject both claims, and hold that Ohio's new statute does not violate the Constitution in any respect. We shall therefore reverse the district court's judgment.

I. INTRODUCTION

After our decision in Voinovich, Ohio's General Assembly enacted the present statute, Ohio Rev.Code Ann. § 2919.151 (the Act). The Act restricts partial birth abortions, but it differs significantly from the law struck down in Voinovich in that the Act specifically excludes the "dilation and evacuation" (D & E) method from its reach. Ohio Rev.Code Ann. § 2919.151(F). The Act also contains a "health exception" which permits the partial birth abortion method before and after viability, when necessary to protect the mother's health. Ohio Rev.Code Ann. § 2919.151(B), (C).

Shortly before the Act's effective date, the United States Supreme Court decided Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), a case concerning the constitutionality of a Nebraska law that banned all partial birth abortions before and after viability. The Court held the law unconstitutional on two grounds. First, Nebraska's ban lacked a "health exception" that would permit doctors to perform the banned abortion method when necessary to protect the mother's health. Id. at 937-38, 120 S.Ct. 2597. Second, Nebraska's ban imposed an "undue burden" on the abortion right by restricting the commonly performed dilation and evacuation (D & E) method of abortion. Id. at 938-40, 120 S.Ct. 2597.

Almost immediately after Carhart was decided, the plaintiffs who prevailed in Voinovich brought a facial challenge to the constitutionality of the present statute. They challenged the Act on several grounds, the principal claims being: (1) the Act's health exception is constitutionally inadequate, and (2) the Act imposes an "undue burden" on the abortion right by restricting the commonly performed dilation and evacuation (D & E) abortion method. The district court agreed with the plaintiffs' first claim and held that the Act's health exception was constitutionally inadequate. In the district court's view, Carhart requires states to permit a partial birth abortion whenever a physician believes it to be "simply the safest" available procedure. On the basis of this reading of Carhart, the district court invalidated the Act and entered a permanent injunction against its enforcement. The district court declined to address the plaintiffs' undue burden claim at the permanent injunction stage, but both parties urge us to reach that issue on appeal.

For the reasons set forth below, we hold that the Act conforms in all respects to the requirements of the Fourteenth Amendment in the abortion legislation context, as those requirements were announced in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), and subsequently applied in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). We therefore REVERSE the district court's judgment and VACATE the injunction preventing enforcement of the Act.

II. FACTUAL BACKGROUND

A. Parties

The plaintiffs are the Women's Medical Professional Corporation (WMPC), an Ohio corporation providing abortion services in Ohio, and Dr. Martin Haskell, the physician who owns and operates WMPC. They perform procedures prohibited by the Act and fear civil and criminal liability as a result. The defendants are various officers of the State of Ohio sued in their official capacities.

B. Late Term Abortion Procedures

A clear understanding of our resolution of the issues presented requires an equally clear understanding of two procedures used to put to death fetuses that have advanced to the later stages of the second trimester of the mother's pregnancy. The labels we use to describe each of these procedures, while not perfectly precise, have a generally understood meaning, regularly relied upon by courts, litigants, medical experts, and legislatures operating in this field of law. And we reject the efforts by the parties and amici to fortify their arguments by the use of labels and descriptive language obviously employed for revulsive or obfuscating effect.

1. Dilation and evacuation — D & E

As performed late in the second trimester, the abortion procedure commonly referred to as dilation and evacuation, or "D & E," begins with dilation of a woman's cervix. Carhart, 530 U.S. at 925, 120 S.Ct. 2597; Women's Med. Prof'l Corp. v. Taft, 162 F.Supp.2d 929, 946 (S.D.Oh.2001). Once sufficient dilation is achieved, the physician reaches into the woman's uterus with an instrument, grasps an extremity of the fetus, and pulls. Carhart, 530 U.S. at 925-26, 120 S.Ct. 2597; Women's Med., 162 F.Supp.2d at 946. When the fetus lodges in the cervix, the traction between the grasping instrument and the cervix causes dismemberment and eventual death, although death may occur prior to dismemberment. See Carhart, 530 U.S. at 925-26, 120 S.Ct. 2597; Women's Med., 162 F.Supp.2d at 946. The process continues until the entire dead fetus has been removed, piece-by-piece, from the woman's uterus.

2. Dilation and extraction — D & X

In the abortion procedure now widely known as partial birth abortion and also commonly referred to as dilation and extraction, or "D & X," and sometimes called "intact D & E" or "intact D & X," see Carhart, 530 U.S. at 927-28, 120 S.Ct. 2597; ACOG Statement of Policy (1997), the physician removes the dead fetus whole and "`intact,' i.e., in one pass, rather than in several passes." Carhart, 530 U.S. at 927, 120 S.Ct. 2597. Dr. Haskell claims to have coined the clinical term "dilation and extraction" in 1992 in order to distinguish the intact abortion procedure from the more common "dismemberment-type D & E" abortion method.

The physician initiates the D & X or partial birth abortion procedure by dilating a woman's cervix, but to a greater degree than in the traditional D & E procedure. Women's Med., 162 F.Supp.2d at 946. Once the physician achieves sufficient dilation, the manner in which the abortion proceeds depends upon the presentation of the fetus. Although some doctors take the fetus as it presents, Dr. Haskell maneuvers the fetus to a feet-first position (breech presentation) before proceeding. Carhart, at 927-28, 120 S.Ct. 2597; Women's Med., 162 F.Supp.2d at 946. In a breech extraction, the physician partially delivers the fetus through the mother's cervix up to a point that allows the physician to access the fetus's head, which is inside the mother, while stabilizing the fetus's body, which is outside the mother. Then, in order to collapse the fetus's skull (so that it will pass easily through the cervix), the physician "forces a pair of scissors into the base of the skull, enlarges the opening and evacuates the contents with a suction catheter." Women's Med., 162 F.Supp.2d at 946. The abortion concludes with the removal, in a single pass, of the fetus's intact, dead body. Carhart, 530 U.S. at 927, 120 S.Ct. 2597. If the fetus presents head first (a cephalic presentation), the doctor first collapses the fetus's exposed skull by "breaching and compressing the [head] with the forceps' jaws, inserting a finger ..., or piercing the [head] with a sharp instrument, such as a tenaculum or a large-bore needle." W. Martin Haskell, MD, et al., Surgical Abortion After the First Trimester, in A Clinician's Guide to Medical and Surgical Abortion, 135 (Maureen Paul, MD, et al., eds.1999). The doctor then suctions out the fetus's skull contents, if necessary, id., and completes the delivery of the fetus from the mother's body, whole and intact, in a single pass. Carhart, 530 U.S. at 927, 120 S.Ct. 2597.

We now turn to an examination of the Ohio statute.

C. Statutory Provisions—Ohio Rev.Code Ann. §...