984 F.Supp. 1404 (M.D.Ala. 1998), C. A. 97-T-1149, Summit Medical Associates, P.C. v. James

• Citation: 984 F.Supp. 1404
• Party Name: Summit Medical Associates, P.C. v. James
• Case Date: January 26, 1998
• Court: United States District Courts, 11th Circuit, U.S. District Court — Middle District of Alabama

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984 F.Supp. 1404 (M.D.Ala. 1998)

SUMMIT MEDICAL ASSOCIATES, P.C., et al., Plaintiffs,

v.

Fob JAMES, Jr., et al., Defendants.

Civil Action No. 97-T-1149-N.

United States District Court, M.D. Alabama, Northern Division.

Jan. 26, 1998

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J. Richard Cohen, Rhonda Brownstein, Southern Poverty Law Center, Montgomery, AL, Kathryn Kolbert, Julie Kay, Simon Heller, Center for Reproductive Law & Policy, New York City, David A. Gespass, Kathleen M. Johnson, Johnson & Gespass, Birmingham, AL, for Summit Medical Associates, William H. Knorr, M.D., Beacon Women's Center, New Woman, All Women Health Care.

Algert S. Agricola, Jr., Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery, AL, Jere L. Beasley, Thomas J. Methvin, P. Leigh O'Dell, Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery, AL, Charles B. Campbell, Albert L. Jordan, Kimberly R. West, Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, AL, William P. Gray, Jr., Gray & Jauregui, Montgomery, AL, for Fob James.

Algert S. Agricola, Jr., Wallace, Jordan, Ratliff & Brandt, L.L.C., Montgomery, AL, Charles B. Campbell, Albert L. Jordan, Kimberly R. West, Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, AL, for Bill Pryor, Ellen Brooks.

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

The plaintiffs, Alabama-based providers of abortion services, challenge the constitutionality of two recently-enacted Alabama abortion statutes under the fourteenth amendment to the United States Constitution, as enforced through 42 U.S.C.A. § 1983 (West 1994). The first challenged statute is the Alabama Partial-Birth Abortion Ban Act of 1997, 1975 Ala.Code § 26-23-1 to 26-23-6 (Law.Co-op.Supp.1997), which took effect on August 1, 1997, and proscribes what it terms "partial-birth abortions," except under certain medical emergency circumstances. The second statute, the Alabama Abortion of Viable Unborn Child Act, 1975 Ala.Code §§ 26-22-1 to 26-22-4 (Law.Co-op.Supp.1997), took effect on August 12, 1997, and proscribes abortions performed after the fetus has achieved "viability." The plaintiffs seek declaratory and injunctive relief and have named as defendants the Governor of the State of Alabama, the Attorney General of the State of Alabama, and the Montgomery District Attorney, in her official capacity and as a representative of the class of district attorneys for the State of Alabama. The jurisdiction of the court has been properly invoked pursuant to 28 U.S.C.A. §§ 1331 and 1343(a)(3) (West 1994).

This lawsuit is currently before the court on a motion to dismiss filed by the governor on September 4, 1997, and on a motion to dismiss filed by the attorney general and Montgomery district attorney (collectively, "the attorney general defendants"), also on September 4, 1997. A hearing was held on the motions on November 24, 1997. For the reasons that follow, the court will deny the governor's motion in its entirety, will grant the attorney general defendants' motion in part and deny it in part, and will certify certain pertinent questions of state law to the Alabama Supreme Court.

I. LEGAL STANDARD FOR MOTION TO DISMISS

In considering a defendant's motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court accepts the plaintiffs' factual allegations as true, Jackson v. Okaloosa County, 21 F.3d 1531, 1534 (11th Cir.1994); Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir.1990), and construes the complaint liberally in the plaintiffs' favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The action may not be dismissed unless "it appears to a certainty," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that the plaintiffs can offer no set of

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facts supporting the relief requested. Scheuer, supra; Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993).

II. BACKGROUND

The facts of this case, as alleged by the plaintiffs, are as follows. The Alabama Partial-Birth Abortion Ban Act of 1997 prohibits any physician from "knowingly" performing a "partial-birth abortion." 1975 Ala.Code § 26-23-3 (Law.Co-op.Supp.1997). ¹ Such an abortion is defined in the statute as "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." § 26-23-2(3). Neither the term "partial-birth abortion," nor the foregoing definition, is generally accepted in the medical community.

The partial-birth abortion statute provides only a single exception to its ban, which applies where the abortion "is necessary to save the life of the mother." § 26-23-4. The act contains no similar exception to preserve the mental or physical health of the pregnant woman.

The partial-birth abortion statute carries criminal penalties, namely conviction of a Class C felony punishable by a fine of not more than $5,000 and imprisonment for up to ten years, and triggers the possibility of license revocation under Alabama law. § 26-23-3; see also 1975 Ala.Code §§ 13A-5-6 & 13A-5-11 (Michie 1994); 1975 Ala.Code § 34-24-360(4) (Michie 1991). It also creates a civil cause of action against the physician, which may be brought by the "father" of the fetus, if married to the woman who underwent the abortion, or the "maternal grandparents" of the fetus, if the woman was a minor at the time. 1975 Ala.Code § 26-23-5 (Law.Co-op.Supp.1997).

On August 1, 1997, the day upon which the partial-birth abortion statute took effect, the Alabama attorney general forwarded a letter to four Alabama district attorneys instructing them that for purposes of prosecutions brought under the act, "a physician partially delivers a living fetus before killing the fetus [as proscribed by the act] when the physician deliberately and intentionally delivers into the vagina a viable fetus, or a substantial portion of the viable fetus, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus." (Emphasis added.) In the letter, the attorney general stated that his instructions to the district attorneys were given pursuant to

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1975 Ala.Code § 36-15-14 (Michie 1991), which provides in pertinent part as follows: "The attorney general ... may at any time he sees proper, either before or after indictment, superintend and direct the prosecution of any criminal case in any of the courts of this state."

The second challenged act, the Alabama Abortion of Viable Unborn Child Act, prohibits any person from "intentionally, knowingly, or recklessly" performing or inducing an abortion "when the unborn child is viable." 1975 Ala.Code § 26-22-3(a) (Law.Co-op.Supp.1997). ² However, such a post-viability'

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abortion may be performed where a physician "reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman." § 26-22-3(b)(1). "Viable and viability" are defined in the act as follows:

"The stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support."

§ 26-22-2(9).

The post-viability abortion statute also imposes five additional procedural requirements upon a physician performing a post-viability abortion in the limited medical emergency circumstances under which such an abortion is permitted. § 26-22-3(b)(1) & (c)(1)-(5). These requirements are waived where the physician, in his or her reasonable medical judgment, determines that the nature of the medical emergency prevents compliance. § 26-22-3(c).

Pursuant to the post-viability abortion statute, all physicians performing abortions after the nineteenth week of pregnancy must make a good-faith medical judgment as to whether the fetus is viable. §§ 26-22-2(9) & 26-22-4. However, the plaintiffs allege, the act does not specify the point at which the pregnancy begins for purposes of determining whether the pregnancy is in its nineteenth week.

The post-viability abortion statute imposes criminal penalties against the person who intentionally, knowingly, or recklessly performs

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or induces a post-viability abortion. §§ 26-22-3(a) & (d). Specifically, that person has committed a Class A felony, punishable by imprisonment from ten to 99 years and fines up to $20,000. § 26-22-3(d); see also 1975 Ala.Code §§ 13A-5-2, 13A-5-6(a)(1), & 13A-5-11(a)(1) (Michie 1994). The act also criminalizes, as a Class C felony, punishable by imprisonment from one year and one day to ten years and fines up to $5,000, the failure to comply with the procedural requirements for post-viability abortions set forth in § 26-22-3(c)(1) to (5). 1975 Ala.Code § 26-22-3(d) (Law.Co-op.Supp.1997); see also 1975 Ala.Code §§ 13A-5-2, 13A-5-6(a)(3), & 13A-5-11(a)(1) (Michie 1994).

Four plaintiffs have brought this lawsuit. They all allege that they perform abortions in the state of Alabama. Plaintiff Summit Medical Associates, P.C. provides abortions through 24 weeks of pregnancy, measured from the time of the woman's last menstrual period, or "lmp"; plaintiff William Knorr, M.D., performs abortions at Summit Medical, and intends to perform such abortions through 24 weeks lmp; plaintiff New Woman, All Women Health Care provides abortions through 20 weeks lmp; and plaintiff Beacon...