Carhart v. Ashcroft, No. 4:03CV3385.
| Decision Date | 08 September 2004 |
| Docket Number | No. 4:03CV3385. |
| Citation | 331 F.Supp.2d 805 |
| Parties | Leroy CARHART, M.D., William G. Fitzhugh, M.D., William H. Knorr, M.D., and Jill L. Vibhakar, M.D., Plaintiffs, v. John ASHCROFT, in his official capacity as Attorney General of the United States, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Janet L. Crepps, Nan E. Strauss, Priscilla J. Smith, Suzanne Novak, New York, NY, Jerry M. Hug, Omaha, NE, for Plaintiffs.
Andrew I. Warden, Anthony J. Coppolino, James J. Gilligan, Preeya M. Noronha, Terry M. Henry, U.S. Department of Justice, Washington, DC, Paul D. Boeshart, Assistant United States Attorney, Lincoln, NE, for Defendant.
Susan Frietsche, Pittsburgh, PA, pro se.
David S. Cohen, Philadelphia, PA, pro se.
Stacey I. Young, Pittsburgh, PA, pro se.
Again and again the uterus contracts as the cervix opens up. The tiny passageway that once allowed the entrance of a single file of sperm now must widen to about four inches to accommodate a baby's head.
Human births are far more dangerous than those of other mammals or even other primates. The human brain is three to four times bigger than an ape's brain. And the pelvis is narrower to allow us to walk upright. A human baby has to go through considerable contortions to make it through the narrow opening. Sometimes, there simply is not enough room.1
Like giving birth to a child, when a woman ends her pregnancy during or after the second trimester, she confronts a serious problem. Her cervix will frequently be too small to allow the skull of the human fetus to pass through it. Although terminating a pregnancy in America is safer than childbirth, this "skull-is-too-large" difficulty makes the abortion of a human fetus, like the birth of a human baby, potentially very dangerous to both the life and health of the woman. Our elected representatives have decided that it is never necessary to use a specific surgical technique — "partial-birth abortion" — to deal with this concern during an abortion. On the contrary, they have banned the procedure.
After giving Congress the respectful consideration it is always due, I find and conclude that the ban is unreasonable and not supported by substantial evidence. In truth, "partial-birth abortions," which are medically known as "intact D & E" or "D & X" procedures, are sometimes necessary to preserve the health of a woman seeking an abortion. While the procedure is infrequently used as a relative matter, when it is needed, the health of women frequently hangs in the balance.
Four examples, out of many, illustrate this point:
* During the 17th week of gestation, before many physicians are comfortable inducing fetal death by injection prior to beginning a surgical abortion, one of Mr. Ashcroft's expert witnesses conceded that it would be consistent with the standard of care at the University of Michigan Medical School, where she practices, to crush the skull of the living fetus when the body was delivered intact outside the cervix and into the vaginal cavity if the skull was trapped by the cervix and the woman was hemorrhaging.
* Another of Mr. Ashcroft's expert witnesses, the head of obstetrics and gynecology at Yale, testified on direct examination, and confirmed again on cross-examination, that there are "compelling enough arguments as to [the banned technique's] safety, that I certainly would not want to prohibit its use in my institution."
* Another physician, Dr. Phillip D. Darney, the Chief of Obstetrics and Gynecology at San Francisco General Hospital, a major metropolitan hospital that performs 2,000 abortions a year, provided Congress with two very specific examples of abortions at 20 weeks and after (one case presenting with a bleeding placenta previa and clotting disorder and the other with a risk of massive hemorrhage) "in which the `intact D & E' technique was critical to providing optimal care[,]" and was the "safest technique of pregnancy termination" in those situations. (Ct.'s Ex. 9, Letter to Sen. Feinstein from Dr. Darney, at 100-01.)
* Still another doctor, who had served on the committee of physicians designated by the American College of Obstetricians and Gynecologists (ACOG) to look into this issue and who holds certifications in biomedical ethics, obstetrics and gynecology, and gynecologic oncology, Dr. Joanna M. Cain, testified that in the case "of cancer of the placenta often diagnosed in the second trimester," where "the least amount of instrumentation possible of the uterine wall is desirable[,] ... it is much safer for the woman to have an intact D & X to remove the molar pregnancy." (Pls.' Ex. 115, Dep. Dr. Cain, at 177.)
Therefore, I declare the "Partial-Birth Abortion Ban Act of 2003" unconstitutional because it does not allow, and instead prohibits, the use of the procedure when necessary to preserve the health of a woman. In addition, I decide that the ban fails as a result of other constitutional imperfections. As a result, I will also permanently enjoin enforcement of the ban.2 Importantly, however, because the evidence was sparse regarding postviability, I do not decide whether the law is unconstitutional when the fetus is indisputably viable.
In advance, I apologize for the length of this opinion. I am well aware that appellate judges have plenty to do and that long-winded opinions from district judges are seldom helpful. That admitted, this case is unique.
As might be expected, the two-week trial presented numerous live witnesses and hundreds of exhibits. That evidence includes a record developed by Congress over many years. Because the parties have also submitted the testimony and evidence presented in two other similar cases, this record is bloated by that additional information. Lastly, and most importantly, since I decide the constitutionality of an Act of Congress that explicitly found a prior decision of this court to be factually unsound, and that law addresses one of the most contentious issues confronting this nation, respect for our national legislature requires more than the usual attention to detail. Nonetheless, I pity the poor appellate judge who has to slog through this thing. I am truly sorry.
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