Carhart v. Stenberg

• Decision Date: 14 August 1997
• Docket Number: No. 4:97CV3205.,4:97CV3205.
• Parties: Leroy CARHART, M.D., on behalf of himself and his patients obtaining abortions, Plaintiff, v. Don STENBERG, in his official capacity as Attorney General for the State of Nebraska; Mike Munch, in his official capacity as County Attorney for Sarpy County and as a representative of all county attorneys in Nebraska; and Deb Thomas, in her official capacity as Director of Regulation and Licensure of the Nebraska Department of Health and Human Services, Defendants.
• Court: U.S. District Court — District of Nebraska

972 F.Supp. 507

Leroy CARHART, M.D., on behalf of himself and his patients obtaining abortions, Plaintiff, v. Don STENBERG, in his official capacity as Attorney General for the State of Nebraska; Mike Munch, in his official capacity as County Attorney for Sarpy County and as a representative of all county attorneys in Nebraska; and Deb Thomas, in her official capacity as Director of Regulation and Licensure of the Nebraska Department of Health and Human Services, Defendants.

No. 4:97CV3205.

United States District Court, D. Nebraska.

August 14, 1997.

COPYRIGHT MATERIAL OMITTED

Simon Heller and David Gans, New York City, Jerry M. Hug, Omaha, NE, for plaintiff.

Don Stenberg, Attorney General, Steve Grasz, Deputy Attorney General, Lincoln, NE, for defendants Don Stenberg, and Deb Thomas.

Tamra Walz, Deputy Sarpy County Attorney, Papillion, NE, for defendant Mike Munch.

MEMORANDUM AND ORDER

KOPF, District Judge.

LeRoy Carhart (Carhart), a medical doctor, seeks a preliminary injunction regarding enforcement of Nebraska's "partial-birth" abortion law. After an evidentiary hearing, we conclude that a preliminary injunction should be issued.

We agree with the first argument raised by Carhart: Nebraska's ban on the "partial-birth" abortion procedure has the effect of subjecting Carhart's patients to an appreciably greater risk of injury or death than would be the case if these women could rely on him to perform his variant of the banned procedure on nonviable fetuses when medically advisable. Such a ban, therefore, is an "undue burden" to women seeking abortions, and it violates the Due Process Clause of the Fourteenth Amendment.

We do not reach the merits of Carhart's second argument that the statute is unconstitutionally vague. We note, however, that a similar vagueness argument was recently adopted in a persuasive opinion. Evans v. Kelley, No. 97-CV-71246-DT, slip op. at 48-67, 85-88 n. 38, ___ F.Supp. ___, ___ -___, ___ - ___ n. 38 (E.D.Mich. July 31, 1997) (granting preliminary and permanent injunction) (Evans). It is unnecessary to reach this question given our resolution of Carhart's first argument, and "[a]s the U.S. Supreme Court has repeatedly cautioned, federal courts should avoid unnecessary and broad constitutional adjudication." Id., slip op. at 85-86 n. 38, ___ F.Supp. at ___ - ___ n. 38 (citations omitted). We believe it particularly appropriate to avoid this issue until we have the benefit of a trial on the merits.¹

Our reasons for the foregoing findings and conclusions are set forth in the following memorandum and order.² We turn to those reasons now.

I. FINDINGS OF FACT

A. The Parties

1. Plaintiff LeRoy Carhart, M.D., practices medicine and surgery in Nebraska and performs abortions in Bellevue, Sarpy County, Nebraska. (Filing 1, Compl., at 3; Filing 9, Stenberg and Thomas Answer, at 2; Ex. 16, Carhart Curriculum Vitae, at 1, 5.)

2. Carhart received his Doctorate of Medicine in 1973; completed his internship at Malcolm Grow USAF Hospital at Andrews Air Force Base, Maryland, in 1974; and completed his general surgery residency at Hahnemann Medical College and Hospital in Philadelphia, Pennsylvania, and Atlantic City Medical Center in Atlantic City, New Jersey, in 1978. Carhart is a retired lieutenant colonel in the United States Air Force who served as chief of general surgery, chief of emergency medicine, and chairman of the department of surgery at Offutt Air Force Base in Nebraska from 1978 to 1985. As part of his duties at Offutt, Carhart supervised 20 to 25 other physicians, including obstetricians and gynecologists. (Tr. 193:25-194:5.) Carhart has been an assistant professor in the surgery departments of both Creighton University School of Medicine and the University of Nebraska Medical Center. (Ex. 16, Carhart Curriculum Vitae, at 2-4.) Since 1985 Carhart has operated a general medical practice with a specialized abortion facility.³ (Tr. 82:14-21.) He performs 800 abortions each year. (Tr. 83:3.) Carhart has never attempted to become certified by a medical specialty board and currently has no hospital privileges. (Tr. 139:2-25.) He is licensed to practice medicine in eight states. (Ex. 16, Carhart Curriculum Vitae, at 5.)

3. Defendant Don Stenberg is attorney general of the State of Nebraska, and defendant Deb Thomas is director of the Nebraska Department of Health and Human Services Regulation and Licensure. (Filing 1, Compl., at 3-4; Filing 9, Stenberg and Thomas Answer, at 2.)

4. Defendant Mike Munch is the elected county attorney for Sarpy County, Nebraska, and is responsible for the enforcement of criminal law within Sarpy County. (Filing 1, Compl., at 3-4; Filing 11, Munch Answer, at 1.)

B. Legislative Bill 23

5. On June 3, 1997, the Nebraska Uni-cameral passed Legislative Bill 23 ("LB 23") with an emergency clause making it effective upon the governor's signature on June 9, 1997. (Ex. 6.)

6. Legislative Bill 23 prohibits "partial-birth abortions" in the State of Nebraska "unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." LB 23 § 3(1).

7. Legislative Bill 23 defines "partial-birth abortion" as follows:

Partial-birth abortion means an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. For purposes of this subdivision, the term partially delivers vaginally a living unborn child before killing the unborn child means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.

LB 23 § 2(9).

8. Legislative Bill 23 makes the "intentional and knowing performance of an unlawful partial-birth abortion" a Class III felony, as well as grounds for automatic suspension and revocation of an attending physician's license to practice medicine in Nebraska. LB 23 § 3(2) & (4).

9. "Partial-birth abortion" is not a recognized medical term. (Tr. 88:18-89:6, Carhart Test.; Tr. 216:3-13, Hodgson Test.)

C. Abortion Procedures

10. Carhart performs abortions in a clinic setting from a gestational age of 3 weeks until fetal viability,⁴ with gestational age being measured from the first day of a woman's last menstrual period, as verified by ultrasound. (Tr. 83:9-84:5; 141:20-22.) Of the 800 women on whom Carhart performed abortions in 1996, 200 were past their 14th week of pregnancy. (Tr. 83:1-3; 185:14-24.) As far as he knows, Carhart is the only abortion provider in Nebraska who performs elective abortions past 16 weeks' gestation. (Tr. 132:10-18.)

11. If a woman wants an abortion after viability and the abortion is not medically indicated, Carhart refers the patient elsewhere. (Tr. 87:13-22.) If a patient comes to him for an abortion and "there is any concern of fetal viability," Carhart does not use his own judgment to determine viability, but instead insists on a specific referral from the patient's physician identifying fetal flaws, stating that the fetus is not viable, and stating that the patient needs an abortion. (Tr. 174:4-16.)

12. Carhart performs abortions on patients whose health, rather than life, would be preserved by having an abortion, such as those with severe renal disease, severe diabetes that has required hospitalization, and hyperemesis gravidarum, a condition characterized by constant vomiting throughout pregnancy such that the pregnant woman loses a good portion of her body weight. Carhart has also performed abortions on patients who indicated that if abortion had not been an option for them, they would have considered attempting a self-induced abortion or suicide. (Tr. 133:16-134:11.)

13. Carhart selects the abortion procedure he will use on various patients based on gestational age and other medical factors. (Tr. 84:6-12.)

14. The parties have stipulated to the admission of Exhibit 7, which is a portion of the American Medical Association's (AMA's) "Report of the Board of Trustees on Late-Term Abortion." The board of trustees prepared and submitted the report to the AMA's board of delegates in May, 1997, in response to the passage of a 1996 resolution by the delegates calling for the AMA to conduct a study of late-term pregnancy termination techniques. (Filing 13 ¶ 2; Tr. 326:7-327:16.) Hereinafter, Exhibit 7 shall be referred to as the "AMA report."⁵

1. Suction Curettage or Vacuum Aspiration

15. The AMA report indicates that suction curettage, or vacuum aspiration, is the most common means of inducing abortion from the 6th through the 12th week of gestation. (Ex. 7, at 7:29-30.) The AMA report describes this procedure as follows:

Prior to the procedure a pelvic examination is done to determine the size and position of the uterus. A speculum is used to visualize the cervix, a local anesthetic such as a paracervical block is administered, and the cervix is then dilated using rigid dilators (e.g., the Pratt dilator). Osmotic dilators may be used prior to the procedure. Once the cervix is sufficiently dilated, a suction tube is inserted and rotated inside the uterus to loosen and remove the contents. The suction tube may be attached to a suction machine or syringe. A curette may be used to scrape the endometrium, thereby ensuring the removal of any remaining tissue. These procedures are typically performed on an out-patient basis.

(Ex. 7, at 7:31-37 (footnotes omitted).)

16. Carhart uses curettage⁶ with vacuum aspiration from approximately the 12th through the 15th week of gestation. Carhart stated that "[a]t about the 12th or 13th week, we usually use curettage with vacuum aspiration up through the 15th, 16th week, after that 16th week,...