Planned Parenthood Fed. of America v. Gonzales, 04-16621.

Citation435 F.3d 1163
Decision Date31 January 2006
Docket NumberNo. 04-16621.,04-16621.
PartiesPLANNED PARENTHOOD FEDERATION OF AMERICA, INC.; Planned Parenthood Golden Gate, Plaintiffs-Appellees, v. Alberto R. GONZALES, Attorney General of the United States, in his official capacity, Defendant-Appellant, v. City and County of San Francisco, Plaintiff-intervenor-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Peter D. Keisler, Kevin V. Ryan, Gregory G. Katsas (argued), Marleigh D. Dover, Catherine Y. Hancock, Teal Luthy Miller, Jeffrey A. Wadsworth, U.S. Department of Justice, Washington DC, for the defendant-appellant.

Eve C. Gartner (argued), Roger K. Evans, Mimi Liu, Planned Parenthood Federation of America, Inc., New York, NY; Helene Krasnoff, Planned Parenthood Federation of America, Inc., Washington DC; Beth H. Parker, Teresa Federer, Rachel Sommovilla, Bingham McCutchen LLP, San Francisco, CA, for the plaintiffs-appellees.

Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Walter M. Weber, American Center for Law and Justice, Washington D.C., for amici curiae American Center of Law and Justice and various members of Congress in support of defendant-appellant.

Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for amicus curiae The National Legal Foundation in support of defendant-appellant.

James Bopp, Jr., Thomas J. Marzen, Richard E. Coleson, Bopp, Coleson & Bostrom, Terre Haute, IN, for amicus curiae Horatio R. Storer Foundation, Inc. in support of defendant-appellant.

Julie Shotzbarger, Thomas More Law Center, Ann Arbor, MI, for amicus curiae Thomas More Law Center in support of defendant-appellant.

Teresa S. Collett, University of St. Thomas School of Law, Minneapolis, MN, for amici curiae the Christian Medical and Dental Society and the Catholic Medical Association in support of defendant-appellant.

James Joseph Lynch Jr., Brad Dacus, James Griffiths, Pacific Justice Institute, Sacramento, CA, for amici curiae Margie Riley and Laurette Elsburry in support of defendant-appellant.

Dennis J. Herrera, Joanne C. Hoeper, Aleeta Van Runkle, Kathleen S. Morris, Office of the City Attorney, San Francisco, CA, for the plaintiff/intervenor-appellee.

Kurt G. Calia, Gregory M. Lipper, Kimberly S. McNish, Covington & Burling, Washington DC; David M. Jolley, Covington & Burling, San Francisco, CA; Margaret C. Crosby, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, CA; Susan Frietsche, Stacey I. Young, Women's Law Project, Pittsburgh, PA; David S. Cohen, Women's Law Project, Philadelphia, PA, for amici curiae the California Medical Association, Association of Reproductive Health Professionals, Physicians for Reproductive Choice and Health, and seventy-five individual physicians in support of plaintiff-appellees.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-03-04872-PJH.

Before REINHARDT, THOMAS, and W. FLETCHER, Circuit Judges.

REINHARDT, Circuit Judge.

This appeal presents a challenge to the constitutionality of the Partial-Birth Abortion Ban Act of 2003, Pub.L. No. 108-105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531). We, like every other federal court that has considered the question, conclude that both the Constitution and the law as established by the Supreme Court require us to hold the Act unconstitutional. Unlike the other courts, however, we do so after fully considering the Supreme Court's recent decision in Ayotte v. Planned Parenthood of N. New England, ___ U.S. ___, 126 S.Ct. 961, ___ L.Ed.2d ___ (2006). In light of Ayotte, we conclude that the only appropriate remedy is to enjoin enforcement of the Act and we now affirm the district court's grant of a permanent injunction.

I. Background
A. Post-First Trimester Abortion Methods

The vast majority of abortions in the United States are performed during the first trimester.1 Approximately ten percent of abortions are performed during the second trimester. Only about one percent are performed after the twentieth week from the woman's last menstrual period ("lmp") and only a small portion of those after the twenty-fourth week, the earliest time at which viability begins. In short, only a tiny percentage of abortions are performed after viability may have commenced.

Women seek abortions after the first trimester for various reasons, including newly discovered fetal anomalies and maternal health problems that are created or exacerbated by the pregnancy. This is primarily because ultrasound and amniocentesis — procedures that often detect these medical conditions — generally are not available until the second trimester. Because abortions are rarely performed after the twenty-fourth week lmp and even more rarely after the second trimester (in both cases almost always for medical reasons), the Act essentially regulates previability second trimester abortions.

Nearly all post-first trimester abortions are performed using one of two methods: dilation and evacuation ("D & E") or induction.2 D & E accounts for 85 to 95 percent of such abortions. Unlike induction, which is a form of "medical" abortion, D & E is a surgical procedure involving two steps: dilation of the cervix and surgical removal (evacuation) of the fetus. There are two forms of D & E, intact and non-intact.3

The first step of the procedure, cervical dilation, is the same for both forms of D & E. It is achieved primarily through the use of osmotic dilators, which are sponge-like devices that expand the cervix, typically over a period of twenty-four to forty-eight hours. Some doctors also use medications known as prostaglandins in conjunction with the osmotic dilators, though these drugs sometimes induce labor spontaneously, which results in partial or complete expulsion. The dilation process is necessary so that the doctor may insert an instrument, generally a type of forceps, through the cervix and into the uterus in order to remove the fetus.

The second step of the procedure, the evacuation phase, is when the two forms of D & E become different.4 When performing a non-intact D & E, the doctor, under ultrasound guidance, grasps a fetal extremity with forceps and attempts to bring the fetus through the cervix. At this point, the fetus will ordinarily disarticulate, or break apart, because of traction from the cervix, and the doctor must return the instrument to make multiple passes into the uterus to remove the remaining parts of the fetus, causing further disarticulation. To complete the removal process, the doctor evacuates the placenta and any remaining material using a suction tube, or cannula, and a spoon-like instrument called a curette.

In an intact D & E, the doctor, rather than using multiple passes of the forceps to disarticulate and remove the fetus, removes the fetus in one pass, without any disarticulation occurring (i.e., the fetus is "intact"). An intact D & E proceeds in one of two ways, depending on the position of the fetus in the uterus. If the fetus presents head first (a vertex presentation), the doctor first collapses the head, either by compressing the skull with forceps or by inserting surgical scissors into the base of the skull and draining its contents. The doctor then uses forceps to grasp the fetus and extracts it through the cervix.5 If the fetus presents feet first (a breech presentation), the doctor begins by grasping a lower extremity and pulling it through the cervix, at which point the head typically becomes lodged in the cervix. When that occurs, the doctor can either collapse the head and then remove the fetus or continue pulling to disarticulate at the neck. (If the doctor uses the latter option, he will have to use at least one more pass of the forceps to remove the part of the fetus that remains, and the procedure is not considered an intact D & E.)

As the district court found, some doctors prefer to use the intact form of D & E, whenever possible, because they believe it offers numerous safety advantages over non-intact D & E. As the district court also found, intact D & E may be significantly safer than other D & E procedures because it involves fewer instrument passes, a shorter operating time and consequently less bleeding and discomfort for the patient, less likelihood of retained fetal or placental parts that can cause infection or hemorrhage, and little or no risk of laceration from bony fetal parts. Finally, as the district court found, intact D & E is in fact the safest medical option for some women in some circumstances. For example, women with specific health conditions and women who are carrying fetuses with certain abnormalities benefit particularly from the availability of the intact D & E procedure.

According to the American College of Obstetricians and Gynecologists ("ACOG"), the safety advantages offered by intact D & E mean that in certain circumstances it "may be the best or most appropriate procedure... to save the life or preserve the health of a woman."6 Doctors typically decide whether to attempt an intact D & E based primarily on the amount of cervical dilation, but they can never predict beforehand whether they will be able ultimately to remove the fetus intact. In most cases, intact D & E is not an option from the outset; in others, although the procedure may start out as an intact removal, during the course of the procedure it turns into a non-intact D & E.

As explained further below, the government construes the Act as prohibiting intact D & Es but permitting non-intact D & Es, whereas the plaintiffs assert that it covers both forms of the procedure, as well as induction. The plaintiffs also contend that even if the Act banned only intact D & Es, it would still be unconstitutional.

B. The Statute

Enacted in response to the Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147...

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