Jane L. v. Bangerter

• Decision Date: 17 December 1992
• Docket Number: Civ. No. 91-C-345G.
• Citation: 809 F. Supp. 865
• Parties: JANE L., et al., Plaintiffs, v. Norman BANGERTER, et al., Defendants.
• Court: U.S. District Court — District of Utah

809 F. Supp. 865

JANE L., et al., Plaintiffs, v. Norman BANGERTER, et al., Defendants.

Civ. No. 91-C-345G.

United States District Court, D. Utah, C.D.

December 17, 1992.

COPYRIGHT MATERIAL OMITTED

Janet Benshoof, Rachael Pine, Eve Gartner, New York City, Jeffrey Oritt, Howard Lundgren, Salt Lake City, UT, and Simon Heller, New York City, for plaintiffs.

Mary Anne Wood, Anthony Quinn, James Soper, Paul Durham and Kay Balmforth, Salt Lake City, UT, for defendants.

MEMORANDUM DECISION AND ORDER III-IN RE PORTIONS OF MOTION FOR SUMMARY JUDGMENT

J. THOMAS GREENE, District Judge.

This matter came regularly before the Court on April 10, 1992, on defendants' Motion for Summary Judgment. Plaintiffs were represented by Janet Benshoof, Rachel Pine, Eve Gartner, Jeffrey Oritt, Howard Lundgren and Simon Heller. Mary Anne Wood, Anthony Quinn, James Soper, Paul Durham and Kay Balmforth appeared for defendants. Extensive oral argument was heard, after which bench rulings were rendered and later supplemented as to several issues,¹ and the Court took certain other issues under advisement pending resolution by the Supreme Court of Planned Parenthood v. Casey, ___ U.S. ___, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). After that case was decided on June 29, 1992, the parties were permitted to file further memoranda concerning the impact of Casey upon the matters under advisement.

Now being fully advised, the Court enters its Memorandum Decision and Order.

STATUTORY BACKGROUND

During the 1990 General Session of the Utah legislature, three bills to restrict abortion were introduced.² The legislature did not formally consider these bills, but decided to study the issue further. To this end, the legislature adopted a resolution, HJR 39, "Abortion Limitation Resolution," stating that the policy of the legislature was to favor childbirth over abortion and to restrict abortion to the extent the Constitution would permit. This resolution established the "Abortion Task Force Committee," composed of fourteen members of the Utah House and Senate. The Task Force committee held a series of hearings throughout the spring and summer of 1990. Experts in the fields of medicine, law, philosophy, public policy, and political science were invited to testify and to submit data relating to possible abortion legislation. In addition, the Task Force conducted nine public hearings throughout the state in order to elicit public comment on various legislative options concerning abortion. Following these hearings, Senate Bill No. 23, entitled "An Act Relating to Abortion; Prohibiting Abortion Except Under Specified Circumstances," was sponsored by Sen. McAllister, debated and passed within four days, and signed into law by the Governor of Utah on January 25, 1991.

On April 4, 1991, plaintiffs in this action filed a complaint for declaratory judgment and injunctive relief against enforcement of portions of the new and existing Utah Abortion Acts. Shortly thereafter, Senate Bill 23 was amended by Senate Bill 4,³ and adopted by the Utah legislature in a four hour special session held on April 17, 1991. On May 15, 1991, plaintiffs filed an eight count Amended Complaint seeking invalidation of the entire new Act, and invalidation of certain sections of the Utah Abortion Act of 1974. This Court enjoined enforcement of the challenged provisions of the Utah Abortion Acts pending determination of the merits of this litigation.

An extensive record was developed and filed with the Court presenting legislative and historical facts relating to abortions, pregnancies and the Utah statutes in which the liberty interest of women in making the choice to have an abortion is balanced against the state's interest in protecting unborn children. Professional and expert opinions, statistics, social and economic data, and information concerning medical health, religious, family and psychological impacts were set forth in depositions, written summaries, exhibits and other documents all of which were verified and lodged with the Court.

The Utah statutes which were taken under advisement after extensive argument on defendants' Motion for Summary Judgment are as follows:

76-7-302. Circumstances under which abortion authorized.

(1) An abortion may be performed in this state only by a physician licensed to practice medicine under the Utah Medical Practice Act or an osteopathic physician licensed to practice medicine under the Utah Osteopathic Medicine Licensing Act and, if performed 90 days or more after the commencement of the pregnancy as defined by competent medical practices, it shall be performed in a hospital.

(2) An abortion may be performed in this state only under the following circumstances:

(a) in the professional judgment of the pregnant woman's attending physician, the abortion is necessary to save the pregnant woman's life;

(b) the pregnancy is the result of rape or rape of a child, as defined by Section 76-5-402 and 76-5-402.1, that was reported to a law enforcement agency prior to the abortion;

(c) the pregnancy is the result of incest, as defined by Subsection 76-5-406(10) or Section 76-7-102, and the incident was reported to a law enforcement agency prior to the abortion;

(d) in the professional judgment of the pregnant woman's attending physician, to prevent grave damage to the pregnant woman's medical health; or

(e) in the professional judgment of the pregnant woman's attending physician, to prevent the birth of a child that would be born with grave defects.

(3) After 20 weeks gestational age, measured from the date of conception, an abortion may be performed only for those purposes and circumstances described in Subsections (2)(a), (d) and (e).

(4) The name of a victim reported pursuant to Subsection (b) or (c) is confidential and may not be revealed by law enforcement or any other party except upon approval of the victim. This subsection does not effect or supersede parental notification requirements otherwise provided by law.

76-7-304. Considerations by physician —Notice to minor's parents or guardian or married woman's husband.

To enable the physician to exercise his best medical judgment, he shall:

(1) Consider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,

(a) her physical, emotional and psychological health and safety,

(b) her age,

(c) her familial situation.

(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married.

76-7-307. Medical procedure required to save life of unborn child.

If an abortion is performed when the unborn child is sufficiently developed to have any reasonable possibility of survival outside its mother's womb, the medical procedure used must be that which, in the best medical judgment of the physician will give the unborn child the best chance of survival. No medical procedure designed to kill or injure that unborn child may be used unless necessary, in the opinion of the woman's physician, to prevent grave damage to her medical health.

76-7-308. Medical skills required to preserve the life of unborn child.

Consistent with the purpose of saving the life of the woman or preventing grave damage to the woman's medical health, the physician performing the abortion must use all of his medical skills to attempt to promote, preserve and maintain the life of any unborn child sufficiently developed to have any reasonable possibility of survival outside of the mother's womb.

76-7-315. Exceptions to certain requirements in serious medical emergency:

When due to a serious medical emergency, time does not permit compliance with Section 76-7-302, Subsection 76-7-304(2) or Subsection 76-7-305(2), the provisions of those sections do not apply.

BACKGROUND FACTS

The following non-adjudicative, legislative or undisputed facts⁴ pertinent to certain matters under advisement support the rulings made herein:

• Utah has kept some of the most meticulous, complete, and accurate abortion statistics in the nation. Brockert Test. ¶¶ 5, 10-11.

• The duration of a pregnancy can be measured from the last menstrual period (LMP) or from conception. Calculation of conception age begins 2 weeks later than LMP. See, e.g., F. Gary Cunningham, Paul C. MacDonald and Norman F. Gant, Williams Obstetrics at 87 (18th ed. 1989). (Defs.' Supp.Mem. of 10/4/92 Ex. B.)

• The Utah legislature calculated gestation age "measured from the date of conception...." Utah Code Ann. § 76-7-302(3) (Supp.1991).

• The statutory cut-off for non-therapeutic abortions is after 20 weeks, which is 21 weeks from the date of conception or 23 weeks LMP. Utah Code Ann. § 76-7-302(3) (Supp.1991).

• Survival as early as 21 weeks gestational age (23 weeks LMP) is possible. Williams Obstetrics, supra, note 1, at 747-48.

• At twenty weeks gestational age, the unborn child is fully developed and is simply maturing in the womb. See Defs.' Trial Ex. A. By twenty weeks gestational age, even the eyelids, eyebrows and fingernails of the unborn child are well developed. DeVore Summ. at 13.

• Based on the record before this Court, there has never been a non-therapeutic abortion performed in the State of Utah after 20 weeks gestational age. Defs.' Trial Ex. G-T.

• If a viable child is aborted and survives, it almost always suffers impairment as a result of prematurity. Williams Obstetrics supra note 1, at 747-48.

• The Utah Women's Clinic, since 1989, performed abortions on only three fetuses after nineteen weeks gestational age, all for severe abnormalities. Pls.' Mem.Opp'n Defs' Mot.Summ. J. Porter Decl. at 2.

• The principal abortionist in the State of Utah, Dr. Madhuri Shah of the Utah Women's Clinic, does not do abortions after 20 weeks gestational age because of the difficulties they pose for herself and her patients. Shah Dep. at 71: 12-21.

• Dilatation and extraction ("D and E") is the safest form of...