Eubanks v. Stengel

• Decision Date: 05 November 1998
• Docket Number: No. CIV. A. 398CV383-H.,CIV. A. 398CV383-H.
• Citation: 28 F.Supp.2d 1024
• Parties: Samuel G. EUBANKS, M.D., et al., Plaintiffs, v. R. David STENGEL, Commonwealth Attorney for Jefferson County, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

28 F.Supp.2d 1024

Samuel G. EUBANKS, M.D., et al., Plaintiffs, v. R. David STENGEL, Commonwealth Attorney for Jefferson County, et al., Defendants.

No. CIV. A. 398CV383-H.

United States District Court, W.D. Kentucky.

November 5, 1998.

COPYRIGHT MATERIAL OMITTED

David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, KY, A. Stephen Hut, Jr., Carrie Y. Flaxman, Matthew P. Previn, American Civil Liberties Union Foundation, Washington, DC, Catherine Weiss, Kimberly A. Parker, American Civil Liberties Union Foundation, Eve C. Gartner, Planned Parenthood Federation of America, New York City, for Plaintiffs.

N. Scott Lilly, Office of the County Attorney, Louisville, KY, Raymond Melvin Larson [Commonwealth Attorney], Margaret Kannenshohn, Fayette County Attorney, Lexington, KY, for R. David Stengel and Michael Conliffe.

D. Brent Irvin, Scott White, Office of the Attorney General, Frankfort, KY, for A.B. Chandler, III, Attorney General.

Donna L. Delahanty, Ky. Board of Medical Licensure, Louisville, KY, Marshall B. Woodson, Jr., Prospect, KY, for C. William Schmidt, Ky. Board of Medical Licensure.

Theodore H. Amshoff, Jr., Paul P. Clemens, Amshoff & Amshoff, Louisville, KY, for Kentucky Right to Life, Inc., et al.

MEMORANDUM OPINION

HEYBURN, District Judge.

The Court is called upon to determine whether the Kentucky "Partial Birth Abortion Act," KY. REV. STAT. § 311.720, et seq. (the "Act") is valid and enforceable under the United States Constitution. Three physicians challenge the Act as unconstitutional because they say it prohibits almost every type of abortion procedure.¹ Defendants counter that the legislature meant to ban only one procedure — the partial birth abortion — which has become a prominent political and moral symbol in the continuing fight over abortion rights and the right to life. The Court has no interest in either validating or rebuking its symbolic importance. Nothing in this opinion should be so conceived.

Instead, the Court's inquiry is strictly a constitutional one. In such an inquiry, the most vital and delicate task is often the accommodation of competing rights. Though "all rights tend to declare themselves absolute," in practice this is rarely so.² Here, the Court must accommodate three distinct rights, each of which asserts primacy: the state's interest in protecting potential life; the woman's right to terminate her pregnancy and to be free from an undue burden on that right; and the physician's due process right to know clearly when otherwise legitimate conduct becomes criminal. This opinion reveals the process of attempting to accommodate these competing interests.

I.

For some time, Kentucky law has prohibited a physician from knowingly performing an abortion upon a fetus which is reasonably expected to have reached viability, except where the physician believes it is necessary to preserve the life or health of the mother. KY. REV. STAT. ANN. § 311.780 (Michie 1995). This statute permissibly accommodates all competing interests.

On April 14, 1998, the Governor signed legislation enacted by the Kentucky General Assembly declaring that "no physician shall perform a partial birth abortion." New provisions to KY. REV. STAT. ANN. § 311.720 define the proscribed procedure as follows:

(7) "Partial-birth abortion" shall mean an abortion in which the physician performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.

(8) "Vaginally delivers a living fetus before killing the fetus" shall mean deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus.

The legislature also added the following sections to KRS 311.990:

(11)(a) 1. Any physician who performs a partial-birth abortion in violation of Section 2 of this Act shall be guilty of a Class D felony. However, a physician shall not be guilty of the criminal offense if the partial-birth abortion was necessary to save the life of the mother whose life was endangered by a physical disorder, illness, or injury.

2. A physician may seek a hearing before the State Board of Medical Licensure on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, illness, or injury. The board's findings, decided by majority vote of a quorum, shall be admissible at the trial of the physician. The board shall promulgate administrative regulations to carry out the provisions of this subparagraph.

3. Upon a motion of the physician, the court shall delay the beginning of the trial for not more than thirty (30) days to permit the hearing referred to in subparagraph 2 of this paragraph, to occur.

(b) Any person other than a physician who performs a partial-birth abortion shall not be prosecuted under this subsection but shall be prosecuted under provisions of law which prohibit any person other than a physician from performing any abortion.

(c) No penalty shall be assessed against the woman upon whom the partial-birth abortion is performed or attempted to be performed.

Plaintiffs challenge the constitutionality of the Act on several grounds. They say that the Act is so vague that one cannot know the procedures it prohibits. This is so, they say, because physicians do not know the meaning of words such as "deliver," "living," and "substantial portion." They contend that the Act's breadth would prohibit almost every significant abortion procedure used in Kentucky. They argue the absence of an exception allowing physicians to perform partial birth abortions if necessary for the health of the woman makes the Act unconstitutional. They point out that in every other case except one courts have voided other partial birth abortion statutes on similar grounds.

Defendants argue that the legislature's true intent was to prohibit only one specific procedure, the partial birth abortion.³ This is a procedure brought to national prominence by Dr. Martin Haskell of Ohio and known in medical circles as "dilation and extraction" ("D & X") or as "intact dilation and evacuation" ("Intact D & E").⁴ Defendants focus on the state's compelling interest in protecting potential life and in preventing unnecessary cruelty to a partially born child. To a great extent they rely upon the decision and rationale of Judge J. Michael Luttig of the Fourth Circuit upholding a virtually identical statute in Virginia. See Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir.1998).

Perhaps a statute specifically defining and prohibiting the Haskell or D & X procedure could survive a constitutional challenge on the evidence presented here. The Court is not called on to consider that precise question because the Act contains words which cover a broader scope of conduct. One of the Court's duties is to consider carefully the rights of those few who are within that scope. The moral, factual and legal complexities of the abortion debate, and indeed the horrific descriptions of some abortion practices, make this decision a wrenching one. The Court has struggled to accommodate the legitimate and vital exercise of representative government with the rights of those the statute affects. In the end, the legislature's words prevent an accommodation which preserves all important rights.

II.

The Court's consideration begins with a summary of the relevant procedural background and guiding legal principles.

Plaintiffs ask the Court to permanently enjoin enforcement of the Act on behalf of themselves and their patients. The Court has federal question jurisdiction because the case involves a challenge of a state statute under the United States Constitution. 28 U.S.C. § 1331. Plaintiffs have standing to raise the constitutional claim because they may face criminal prosecution under the Act and, thus, may seek pre-enforcement review. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1993). Plaintiffs can assert both their own constitutional claims as well as those of their patients because their own reaction to the statute affects the patients' rights and because the patients face many practical obstacles to asserting their own claims. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The issuance of a preliminary injunction is no longer at issue. The Court has received all the affidavits, testimony, and other evidence which the parties believe is relevant. Therefore, the sole issue is the constitutionality of the Act.

The Supreme Court's teachings on abortion rights are well known. A woman's right to an abortion before the fetus is viable is guaranteed under the Due Process Clause of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Casey, 505 U.S. at 846, 112 S.Ct. 2791. Although the Casey plurality abandoned the Roe trimester framework, it did reaffirm a woman's unburdened right to a pre-viability abortion. A woman's right is not absolute in all circumstances. Casey reaffirmed the holding in Roe "that the state has legitimate interests in the health of the woman and protecting the potential life within her." 505 U.S. at 872, 112 S.Ct. 2791.

In Women's Medical Professional Corp. v. Voinovich, the court summarized succinctly the Supreme Court jurisprudence on two settled principles: (1) states may ban a particular abortion procedure pre-viability as long as the regulation does not create an undue burden on a woman's right to choose an abortion; and (2) subsequent to viability, states may "`regulate and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" 130 F.3d 187, 193 (6th Cir.1997) (quoting Casey, 505 U.S. at 879,...