Causeway Medical Suite v. Foster, Civil Action No. 97-2211.
| Citation | 43 F.Supp.2d 604 |
| Decision Date | 17 March 1999 |
| Docket Number | Civil Action No. 97-2211. |
| Parties | CAUSEWAY MEDICAL SUITE et al. v. Murphy J. FOSTER, Jr. |
| Court | U.S. District Court — Eastern District of Louisiana |
Priscilla J. Smith, Michael Erdos, Kathryn Kolbert, Center for Reproductive Law & Policy, New York City, William E. Rittenberg, Rittenberg & Samuel, LLC, New Orleans, LA, for Causeway Medical Suite, Bossier City Medical Suite, Hope Medical Group for Women, Delta Women's
Clinic, Women's Health Clinic, A. James Whitmore, III, M.D.
Sidney M. Bach, Bach & Wasserman, Metairie, LA, for Ifeanyi Charles Okpalobi, M.D.
Dorinda Chiappetta Bordlee, Law Offices of Dorinda C. Bordlee, Metairie, LA, Roy A. Mongrue, Jr., Louisiana Dept. of Justice, Civil Division, Baton Rouge, LA, for Murphy J. Foster, Jr., Richard P. Ieyoub.
Jane L. Johnson, Terry A. O'Neill, New Orleans, LA, for American Civil Liberties Union Foundation of Louisiana.
Before this Court are cross Motions for Summary Judgment that came for hearing on a previous date. Oral arguments were heard on Thursday, November 19, 1998 and the matter was taken under submission. Having heard the arguments of counsel and having studied the legal memoranda submitted by the parties, this Court is fully advised on the premises of the case and sits ready to rule.
James Madison, the father of our Constitution, wrote that, "judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions [are] binding force ... because it is a reasonable and established axiom, that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case if any judge, disregarding the decision of his predecessors, should vary the rule of law according to his individual interpretation of it." James Madison, The Mind of the Founder: Sources of the Political Thought of James Madison 338-339 (Marvin Meyers ed., 1981), quoted by William D. Badar, Meditations on the Original: James Madison, Framer with the Common Law Intentions — Ramifications in the Contemporary Supreme Court, 20 Vt.L.Rev. 5, 9 (1995). His respect for Constitutional precedent was no less. Madison maintained that a judge must follow constitutional precedents, rather than "his solitary opinions as to the meaning of the law or Constitution." Id. While the body of the Constitution is silent on abortion, the Supreme Court, in interpreting the constitutionality of abortion laws, provided a protected right. This Court will rule accordingly.
This case presents a challenge to the constitutionality of Act 906 of the 1997 Louisiana Legislature (previously Senate Bill 943), which was to have been effective upon the Governor's signature. However, on Monday, July 14, 1997, this Court issued a temporary restraining order enjoining the defendants from enforcing Senate Bill 943. (Doc. 3). On Monday, July 21, 1997, the parties stipulated to a conversion of the temporary restraining order into a preliminary injunction until an adjudication on the merits. (Doc. 5). Plaintiffs now seek a permanent injunction from this court to prevent defendants from enforcing Act 906, the "Partial Birth Abortion Act." Act 906 reads as follows:
To enact R.S. 14:32.9 and R.S. 40:1299.35.3, and to amend and reenact R.S. 40:1299.35.1(1), relative to abortion; to provide for the crime of partial birth abortion; to provide for penalties; to provide for the prohibition of the performance of partial birth abortions by a physician or any other person except where necessary to preserve the life of the mother; to provide for civil remedies; to provide definitions; to provide for severability; and to provide for related matters.
Be it enacted by the Legislature of Louisiana:
Section 1. R.S. 14:32.9 is hereby enacted to read as follows:
Section 32.9 Partial birth abortion
A.(1) Partial birth abortion is the performance of a procedure on a female by a licensed physician or any other person whereby a living fetus or infant is partially delivered or removed from the female's uterus by vaginal means and with specific intent to kill or do great bodily harm is then killed prior to complete delivery or removal.
(2) As used in this Section, the terms "fetus" and "infant" are used interchangeably to mean the biological offspring of human parents.
B. It shall not be unlawful for a licensed physician to perform a partial birth abortion where the procedure is necessary to save the life of the mother because her life is endangered by a physical disorder, physical illness or physical injury, and further provided that no other medical procedure would suffice for that purpose.
C. As used in this Section, the term "person" shall not include the female upon whom the partial birth abortion is performed, and she shall not be subject to prosecution hereunder or as accessory to the offense or as a co-conspirator thereto.
D. Whoever commits the crime of partial birth abortion shall be imprisoned at hard labor for not less than one nor more than ten years or fined not less than ten thousand nor more than one hundred thousand dollars.
Section 2. R.S. 40:1299.35.3 is hereby enacted to read as follows:
Section 1299.35.3. Partial birth abortion
A. No licensed physician or any other person shall perform a partial birth abortion on a female unless the procedure is necessary to save the life of the female because her life is endangered by a physical disorder, physical illness or physical injury; and further provided that no other medical procedure would suffice for that purpose.
B.(1) As used in this Section, partial birth abortion means the intentional performance of a procedure on a female by a licensed physician or any other person whereby a living fetus or infant is partially delivered or removed from the female's uterus by vaginal means and then killed prior to complete delivery or removal.
(2) As used in this Section, the terms "fetus" and "infant" are used interchangeably to mean the biological offspring of human parents.
C. There is hereby created a cause of action against the licensed physician or any other person who performs a partial birth abortion for civil damages for survival and wrongful death as more fully set forth in Louisiana Civil Code Articles 2315.1 and 2315.2, except that such causes of action shall only be in favor of the natural or biological father of the aborted infant or fetus, the mother of the aborted infant or fetus or the parents or guardian on behalf of the mother of the aborted infant or fetus if the mother was a minor at the time of the abortion, unless such person's criminal conduct caused the pregnancy, or the person consented to the partial birth abortion.
Section 3. R.S. 40:1299.35.1(1) is hereby amended and reenacted to read as follows:
§ 1299.35.1. Definitions
As used in R.S. 40:1299.35.0 through 1299.35.18, the following words have the following meanings:
(1) "Abortion" means the deliberate termination of a human pregnancy after fertilization of a female ovum, by any person, including the pregnant woman herself, with an intention other than to produce a live birth, remove an ectopic pregnancy, or to remove a dead unborn child caused by a spontaneous abortion, missed abortion, or inevitable abortion.
Section 4. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.
Section 5. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If vetoed by the governor and subsequently approved by the legislature, this Act shall become effective on the day following such approval.
In sum, the Act makes an abortion provider criminally and civilly liable for performing a "partial birth abortion." While there is no medically recognized procedure known as a "partial birth abortion," the "procedure" itself and the impetus behind this litigation can be better understood with a general overview of standard abortion procedures.
There are several abortion procedures which a physician may choose to perform on a particular patient. For abortions through approximately 13-14 weeks, measured from the first day of the woman's last menstrual period (lmp), most physicians rely on a procedure called vacuum aspiration or suction curettage. (Stubblefield Decl. ¶ 24). In this procedure, the physician inserts a thin tube through the vagina into the uterus and removes the fetus or embryo through suction. Id. Forceps are occasionally used in this procedure to remove the fetus or fetal parts. Id. at 25. After 13-14 weeks of pregnancy lmp, most physicians can no longer rely exclusively on suction to evacuate the uterus. Id. at 26. In the vast majority of such cases, doctors will use the dilation and evacuation (D & E).
In the D & E procedure, a physician causes the cervix to dilate, ruptures the membranes (unless the membranes are already ruptured), and removes the fetus and other products of the pregnancy using a combination of forceps, curettage, and suction. (Stubblefield Decl. ¶¶ 26-27). Often in this procedure, the calvarium (or skull) is too large to pass through the cervix and the physician must compress it to remove the fetus. (Stubblefield Decl. ¶ 28). For various medical reasons, some physicians use a variation of the D & E procedure that involves intact breech extraction of the fetus, sometimes known as the dilation and extraction or D & X, which is the subject of the instant suit. AMA, Board of Trustees Report 26 (A-97), Late-Term Pregnancy Techniques at 8; (Doc. 24).
In the D &...
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