Planned Parenthood of Cent. New Jersey v. Verniero

Decision Date08 December 1998
Docket NumberCivil No. 97-6170(AET).
Citation41 F.Supp.2d 478
PartiesPLANNED PARENTHOOD OF CENTRAL NEW JERSEY, Herbert Holmes, M.D., David Wallace, M.D., and Gerson Weiss, M.D., on behalf of themselves and their patients, Plaintiffs, v. Peter G. VERNIERO, Attorney General of the State of New Jersey, in his official capacity, and his successors in office, New Jersey Board of Medical Examiners, and their successors in office, and Len Fishman, Commissioner of the Department of Health and Senior Services, in his official capacity, and his successors in office, Defendants, and New Jersey Legislature, by and through Donald T. Difrancesco, in his official capacity as President of the New Jersey Senate, and as the representative of the New Jersey Senate, and Jack Collins, in his official capacity as Speaker of the New Jersey Assembly, and as the representative of the New Jersey Assembly, Defendant-Intervenor.
CourtU.S. District Court — District of New Jersey

Lenora M. Lapidus, ACLU of New Jersey Newark, NJ, Talcott Camp, Reproductive Freedom Project ACLU Foundation, New York, NY, Dara Klassel, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.

Richard F. Collier, Jr., David J. Treibman, on the briefs, Somerset, NJ, for Intervenor-Defendant New Jersey State Legislature.

OPINION

ANNE E. THOMPSON, Chief Judge.

I. Introduction

Plaintiffs, Planned Parenthood of Central New Jersey and several physicians, bring this action against defendants, the Attorney General of the State of New Jersey, the New Jersey Board of Medical Examiners and the Commissioner of the Department of Health and Senior Services, pursuant to 42 U.S.C. §§ 1983 and 1988 and pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek declaratory and injunctive relief from this Court to prevent the New Jersey Partial-Birth Abortion Ban Act of 1997, ch. 262, 1997 N.J. Sess. Law Serv. 871-72 (West), codified at N.J. STAT. ANN. §§ 2A:65A-5 to -7 (the "Act"), from taking effect. This Act exposes those who perform "partial-birth abortions" to professional license revocation and fines. Plaintiffs challenge the constitutionality of the Act on the grounds that it is vague and that it imposes an undue burden on a woman's right to choose to have an abortion.

The matter is before the Court on plaintiffs' request for a declaration that the Act is unconstitutional and for a preliminary and permanent injunction. Plaintiffs contend that an injunction is necessary to prevent irreparable harm to themselves and their patients from the statute's chilling effect on their ability to provide abortion services. The Court has reviewed the parties' briefs, proposed findings of fact and conclusions of law, affidavits of the experts, testimony of the witnesses, and relevant caselaw. For the reasons set forth below, the Court grants to plaintiffs the relief they seek.

II. Findings of Fact
A. The Challenged Statute

The Act prohibits the performance of a "partial-birth abortion." See N.J. STAT. ANN § 2A:65A-6(a). The Act defines the banned conduct as "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery," N.J. STAT. ANN. § 2A:65A-6(e), and further defines the phrase "vaginally delivers a living human fetus before killing the fetus" to mean "deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus," N.J. STAT. ANN. § 2A:65A-6(f). The ban applies throughout pregnancy.

The Act does not define "partially" as it modifies "vaginally delivers," "deliver," "substantial," "substantial portion," or "procedure." The Act does not require that the fetus be intact or viable at the time the "partial-birth abortion" is performed. The Act allows an otherwise banned procedure only when such a procedure "is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury." N.J. STAT. ANN. § 2A:65A-6(b). The Act contains no exception for procedures necessary to preserve the woman's health.

Under the Act, "knowing" performance of a "partial-birth abortion" subjects a physician to immediate license revocation and a $25,000 fine for each incident. See N.J. STAT. ANN. § 2A:65A-6(c). An ambulatory health care facility in which a "partial-birth abortion" occurs is also subject to immediate revocation of its license under the Act. See N.J. STAT. ANN. § 2A:65A-6(d); see also SENATE WOMEN'S ISSUES, CHILDREN AND FAMILY SERVICES COMMITTEE, STATEMENT TO THE GEN. ASSEMBLY, No. 2409-L.1997, c. 262 ("[T]he bill provides that a woman upon whom a partial-birth abortion is performed shall be immune from civil or criminal liability for a violation of the provisions of the bill.").

B. Parties
1. Plaintiffs

Plaintiff Gerson Weiss, M.D., is licensed to practice medicine in the State of New Jersey. He is a professor in and Chairman and Chief of Service of the Department of Obstetrics and Gynecology at the University of Medicine and Dentistry of New Jersey-New Jersey Medical School ("UMDNJ"), located in Newark, New Jersey. He is also Director of the Center for Reproductive Medicine, which is affiliated with Hackensack Hospital. Dr. Weiss is board-certified in obstetrics and gynecology, and has a subspecialty board-certification in reproductive endocrinology. In his position as Chairman and Chief of Service at UMDNJ, Dr. Weiss oversees the provision of all obstetrical and gynecological care at the hospital, including abortions up through eighteen weeks measured from the first day of the woman's last menstrual period ("lmp"). He established the training program and teaches residents to provide the full range of obstetric and gynecological care, including abortions. Dr. Weiss has performed abortions since 1968, and has personally performed between 500 and 1000 abortions. He has used the suction curettage, or vacuum aspiration, dilation and evacuation, or D & E, and installation methods. He has also performed hysterotomy abortions. Dr. Weiss was qualified to testify as an expert in obstetrics and gynecology, including abortion methods. He sues on his own behalf and on behalf of his patients.

Plaintiff David Wallace, M.D., is licensed to practice medicine in the State of New Jersey. He is President of the Medical Staff at Monmouth Medical Center, which is affiliated with the St. Barnabas Health Care System in Long Branch, New Jersey. He is Chairman of the Department of Obstetrics and Gynecology and Director of the Residency Program. Dr. Wallace is board-certified in obstetrics and gynecology, and is eligible for certification in maternal-fetal medicine. Since 1980, Dr. Wallace has performed between 1500 and 2000 abortions. He currently performs about fifty abortions annually. Dr. Wallace provides, supervises, and teaches abortions through twenty-three weeks lmp. For procedures in the first trimester, he uses the vacuum aspiration method. For early second trimester procedures, through sixteen weeks lmp, he uses the D & E method. In his supervisory capacity, he teaches and supervises the performance of these abortion techniques. Dr. Wallace was qualified to testify as an expert in obstetrics and gynecology, including abortion methods. He sues on his own behalf and on behalf of his patients.

Plaintiff Herbert Holmes, M.D., is licensed to practice medicine in the State of New Jersey. He is a clinical associate professor of obstetrics and gynecology at UMDNJ, where he is the primary physician who performs abortions. He is also an attending surgeon at Newark Beth Israel Hospital with primary responsibility for abortions. Annually, Dr. Holmes performs four to five hundred first trimester suction curettage abortions and two to three hundred second trimester D & E abortions up through eighteen weeks lmp. He performs D & E abortions after eighteen weeks lmp where there is a demonstrable fetal abnormality. Until recently, while he was affiliated with United Hospitals in Newark, New Jersey, Dr. Holmes performed induction and installation abortions through twenty weeks lmp generally, and through twenty-four weeks lmp in the case of fetal abnormality or risk to the mother's health. Dr. Holmes was qualified to testify as an expert in obstetrics and gynecology, including abortion practice. He sues on his own behalf and on behalf of his patients.

Plaintiff Planned Parenthood of Central New Jersey ("Planned Parenthood") is an ambulatory health care facility licensed pursuant to N.J.A.C. § 8:43A-1.3, which provides vacuum aspiration abortions up to fourteen weeks lmp. It sues on its own behalf and on behalf of its patients.

Among plaintiffs' patients are women seeking abortions for a wide range of reasons, including the protection of health and life. They include women who develop serious health problems because of their pregnancies, and women for whom pregnancy presents particularly significant risks because of preexisting health conditions such as neurological disease, kidney disease, severe high blood pressure, cardiac conditions, cancer, diabetes, and other physical and mental health disorders. Among plaintiffs' patients seeking abortions are women for whom a pregnancy endangers health, but not necessarily life. One such example is the risk of blindness that pregnancy poses for certain diabetic women.

2. Defendants

Defendant Peter G. Verniero is Attorney General of the State of New Jersey and is responsible for enforcement of the Act. See N.J. STAT. ANN. § 2A:65A-6(c), (d). He is sued in his official capacity. The Office of the Attorney General declined to defend the Act.

Defendant New Jersey Board of Medical Examiners is responsible under the Act for license revocation in cases where physicians are found to have violated the...

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