National Abortion Federation v. Ashcroft, No. 03 CIV. 8695(RCC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtCasey
Citation330 F.Supp.2d 436
PartiesNATIONAL ABORTION FEDERATION, Mark I. Evans, M.D., Carolyn Westhoff, M.D., M.SC., Cassing Hammond, M.D., Marc Heller, M.D., Timothy R.B. Johnson, M.D., Stephen Chasen, M.D., Gerson Weiss, M.D., on behalf of themselves and their patients, Plaintiffs, v. John ASHCROFT, in his capacity as Attorney General of the United States, along with his officers, agents, servants, employees, and successors in office, Defendant.
Docket NumberNo. 03 CIV. 8695(RCC).
Decision Date26 August 2004
330 F.Supp.2d 436
NATIONAL ABORTION FEDERATION, Mark I. Evans, M.D., Carolyn Westhoff, M.D., M.SC., Cassing Hammond, M.D., Marc Heller, M.D., Timothy R.B. Johnson, M.D., Stephen Chasen, M.D., Gerson Weiss, M.D., on behalf of themselves and their patients, Plaintiffs,
v.
John ASHCROFT, in his capacity as Attorney General of the United States, along with his officers, agents, servants, employees, and successors in office, Defendant.
No. 03 CIV. 8695(RCC).
United States District Court, S.D. New York.
August 26, 2004.

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COPYRIGHT MATERIAL OMITTED

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A. Stephen Hut, Jr., Amy Kreiger Wigmore, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Julie Ellen Sternberg, Susan Talcott Camp, ACLU, Louise Frances Melling, ACLUF, Rebekah Diller, New York Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

James Stuart Frank, Sills Cummis Epstein & Gross PC, New York, NY, for Appellant.

Elizabeth Wolstein, Joseph Anthony Pantoja, Sean H. Lane, Sheila Marie Gowan, U.S. Attorney's Office, Lisa M. Landau, NYS Attorney General's Office, New York, NY, for Defendant.

Anne L. Clark, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, Vincent P. McCarthy, American Center for Law and Justice, New Milford, CT, for Movants.

Robert J. Winnemore, Kew Gardens, NY, for Intervenor.

OPINION & ORDER

CASEY, District Judge.


TABLE OF CONTENTS
 Page
                 I. BACKGROUND ...........................................................439
                 A. The Act ...........................................................439
                 B. Procedural History of This Case ...................................441
                 C. The Congressional Record ..........................................443
                 1. 104th Congress .................................................443
                 (a) June 1995 House Hearing ....................................443
                 (b) November 1995 Senate Hearing ...............................444
                 (c) March 1996 House Hearing ...................................445
                 2. 105th Congress .................................................445
                 3. 106th Congress .................................................446
                 4. 107th Congress .................................................446
                 5. 108th Congress .................................................448
                 6. Views of Advocacy and Medical Associations .....................449
                 (a) Associations Opposing the Act ..............................449
                 (b) Associations Supporting the Act ............................452
                 (c) The American Medical Association ...........................452
                 D. Stenberg v. Carhart ...............................................452
                 1. The Nebraska Statute ...........................................453
                 2. The Majority Opinion ...........................................453
                

Page 439

 (a) The Facts before the Court .................................453
                 (b) The Court's Legal Analysis .................................454
                 3. The Concurring Opinions ........................................457
                 4. The Dissenting Opinions ........................................457
                 E. Trial Experts .....................................................458
                 1. Plaintiffs' Experts ............................................458
                 2. The Government's Experts .......................................462
                 F. Abortion Procedures ...............................................464
                 1. D & E ..........................................................464
                 2. D & X ..........................................................465
                 3. Induction ......................................................467
                 4. Hysterectomy and Hysterotomy ...................................467
                 G. Trial Testimony Regarding Comparative Safety of Abortion
                 Procedures ......................................................467
                 1. Comparison of D & E to Induction ...............................467
                 2. Comparison of D & X to D & E ...................................470
                 H. Testimony Regarding Possibility of Effecting Fetal Demise
                 Prior to Abortion Procedure .....................................474
                 I. Trial Testimony Regarding Congress's Factual Findings .............475
                 1. Congress's Findings Regarding the Risks of "Partial-Birth
                 Abortion" ......................................................475
                 2. Congress's Findings Regarding Other Aspects of "Partial-Birth
                 Abortion" ......................................................478
                 II. FINDINGS OF FACT ....................................................479
                III. CONCLUSIONS OF LAW ...................................................482
                 A. The Court Only Reaches the Health-Exception Issue ...............482
                 B. Level of Deference Owed to Congressional Findings ...............483
                 C. The Act Requires a Health Exception .............................487
                 IV. CONCLUSION ...........................................................492
                

Plaintiffs, a non-profit organization providing abortion services, and seven individual physicians, seek to permanently enjoin enforcement of the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (the "Act"), which imposes potential criminal and civil penalties if a physician performs a certain abortion procedure. The Act bans the procedure called "partial-birth abortion," and exempts from its prohibition only those abortions necessary to save the life of the mother. This medical procedure has been described by many, including Justices of the Supreme Court, as gruesome, inhumane, brutal, and barbaric. Plaintiffs challenge the Act on the grounds that the Constitution requires an exemption to permit the procedure when it is necessary to preserve maternal health; the Act imposes an undue burden on a woman's right to choose an abortion; it is unconstitutionally vague; the Act fails to serve any legitimate state interest; the life exception is constitutionally insufficient; and the Act violates women's rights to equal protection of the laws.

I. BACKGROUND
A. The Act

The Act prohibits any physician in the United States, "in or affecting interstate or foreign commerce [from] knowingly perform[ing] a partial-birth abortion."1 18 U.S.C. § 1531(a). Partial-birth abortion is defined under the Act as:

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an abortion in which the person performing the abortion (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

Id. § 1531(b)(1).2 The Act applies regardless of the stage of pregnancy and thus bans partial-birth abortions both before and after fetal viability.3

The Act subjects physicians to possible criminal and civil penalties. A violation of the statute constitutes a felony that carries a sentence of not more than two years' imprisonment, and/or a fine of not more than $ 250,000.4 Id. § 1531(a); see also id. § 3571(b)(3). In terms of potential civil liability, the Act allows the putative "father" of the fetus (if he is married to the woman) or the putative "maternal grandparents of the fetus" (if the woman has not

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attained the age of eighteen) to "obtain appropriate relief" in a civil action, "unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion." Id. § 1531(c)(1). Such relief may include: "(A) money damages for all injuries, psychological and physical, occasioned by the violation of [the Act]; and (B) statutory damages equal to three times the cost of the partial-birth abortion." Id. § 1531(c)(2).

The Act permits a partial-birth abortion if it is necessary to preserve maternal life. The life exception states, "This subsection does not apply to a partial-birth abortion that is necessary to save the life of a 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." Id. § 1531(a). The Act bans the procedure in all other instances.

The Act does not include a health exception because Congress determined that partial-birth abortion is never medically necessary to preserve maternal health and, in fact, may pose serious health risks to the mother. Congress therefore concluded that a health exception was unnecessary and made several findings to this effect. In section 2(14) of the Act, Congress found that "partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; [and] poses additional health risks to the mother." § 2(14)(O), Pub.L. No. 108-105, 117 Stat. 1201, 1206. Congress also concluded that there is "no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures" and that "a ban on partial-birth abortion is not required to contain a `health' exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman." Id. §§ 2(13), 14(B), 117 Stat. at 1203-04; see also id. § 1, 117 Stat. at 1201 (finding that partial-birth abortion is "never medically necessary and should be prohibited"); id. § 2(2), 117 Stat. at 1201 (concluding that "partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women"); id. § 5, 117 Stat. at 1202 (declaring that "a partial-birth abortion is never necessary to preserve the health of a woman"); id. § 14(F), 117 Stat. at 1205 (reasoning that "[a] ban on the partial-birth abortion procedure will therefore advance the health interests of...

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11 practice notes
  • Richmond Medical Center for Women v. Hicks, No. 03-1821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 3, 2005
    ...opinion, in which the court weighed the evidence presented during the course of a two-week trial); Nat'l Abortion Fed'n v. Ashcroft, 330 F.Supp.2d 436, 442, 482 (S.D.N.Y.2004) (finding the Federal Partial-Birth Abortion Ban unconstitutional for lack of a health exception because the evidenc......
  • Gonzales v. Carhart, Nos. 05–380
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...Court for the Southern District of New York also considered the constitutionality of the Act. National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, National Abortion Feder......
  • Carhart v. Ashcroft, No. 4:03CV3385.
    • United States
    • U.S. District Court — District of Nebraska
    • September 8, 2004
    ...Partial-Birth Abortion Ban Act of 2003 was unconstitutional as it lacked a health exception. National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004). In his view, Congress acted unreasonably in omitting such an exception given the evidence. In particular, he found that bo......
  • National Abortion Federation v. Gonzales, Docket No. 04-5201-CV.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 2006
    ...statute unconstitutional for lack of a health exception and enjoining its enforcement. See National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004) ("N.A.F. I"). Because the Supreme Court has held that a health exception is constitutionally required for any statute prohibi......
  • Request a trial to view additional results
10 cases
  • Richmond Medical Center for Women v. Hicks, No. 03-1821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 3, 2005
    ...opinion, in which the court weighed the evidence presented during the course of a two-week trial); Nat'l Abortion Fed'n v. Ashcroft, 330 F.Supp.2d 436, 442, 482 (S.D.N.Y.2004) (finding the Federal Partial-Birth Abortion Ban unconstitutional for lack of a health exception because the evidenc......
  • Gonzales v. Carhart, Nos. 05–380
    • United States
    • United States Supreme Court
    • April 18, 2007
    ...Court for the Southern District of New York also considered the constitutionality of the Act. National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, National Abortion Feder......
  • Carhart v. Ashcroft, No. 4:03CV3385.
    • United States
    • U.S. District Court — District of Nebraska
    • September 8, 2004
    ...Partial-Birth Abortion Ban Act of 2003 was unconstitutional as it lacked a health exception. National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004). In his view, Congress acted unreasonably in omitting such an exception given the evidence. In particular, he found that bo......
  • National Abortion Federation v. Gonzales, Docket No. 04-5201-CV.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 2006
    ...statute unconstitutional for lack of a health exception and enjoining its enforcement. See National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004) ("N.A.F. I"). Because the Supreme Court has held that a health exception is constitutionally required for any statute prohibi......
  • Request a trial to view additional results
1 books & journal articles
  • Abortion
    • United States
    • Georgetown Journal of Gender and the Law Nbr. XXII-2, January 2021
    • January 1, 2021
    ...given Congress’s express intent to exclude a health exception), rev’d, 550 U.S. 124 (2007); Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436, 492 (S.D.N.Y. 2004), aff’d in part sub nom., Nat’l Abortion Fed’n v. Gonzales, 437 F.3d 278, 290 (2d Cir. 2006) (aff‌irming that the statute was......

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