Planned Parenthood of Wisconsin v. Doyle

• Citation: 1998 WL 787360,162 F.3d 463
• Decision Date: 03 November 1998
• Docket Number: No. 98-2521,98-2521
• Parties: PLANNED PARENTHOOD OF WISCONSIN, et al., Plaintiffs-Appellants, v. James E. DOYLE, in his official capacity as Attorney General of the State of Wisconsin, and Diana M. Nicks, in her official capacity as District Attorney for Dane County and as a representative of a class consisting of all district attorneys in the State of Wisconsin, Defendants-Appellees, and Thomas J. Back and Fredric K. Buford, II, Intervening Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 463

162 F.3d 463

PLANNED PARENTHOOD OF WISCONSIN, et al., Plaintiffs-Appellants, v. James E. DOYLE, in his official capacity as Attorney General of the State of Wisconsin, and Diana M. Nicks, in her official capacity as District Attorney for Dane County and as a representative of a class consisting of all district attorneys in the State of Wisconsin, Defendants-Appellees and Thomas J. Back and Fredric K. Buford, II, Intervening Defendants-Appellees.

No. 98-2521.

United States Court of Appeals Seventh Circuit.

Argued Aug. 10, 1998.

Decided Nov. 3, 1998.

Bonnie Scott Jones, Center for Reproductive Law & Policy, New York City; Roger K. Evans (argued), Planned Parenthood Federation of America, Legal Action for Reproductive Rights, New York City, for Plaintiffs-Appellants.

Susan K. Ullman (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, IN; Scott D. Obernberger, Milwaukee, WI, for Intervening Defendants-Appellees

Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.

POSNER, Chief Judge.

This is an appeal from the denial (reported at 9 F.Supp.2d 1033 (W.D.Wis.1998)) of a motion for a preliminary injunction against the enforcement of a recently enacted Wisconsin statute that decrees life imprisonment for anyone who performs a "partial birth abortion." Wis. Stat. §§ 939.50(3)(a), 940.16(2). We stayed both the enforcement of the statute and further proceedings in the district court pending the decision of this appeal.

The statute defines a partial birth abortion as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child." § 940.16(1)(b). The statute defines "child" to mean "a human being from the time of fertilization," § 940.16(1)(a), and the parties assume that "living" means having a heartbeat. Hence a partial birth abortion is criminal even if the fetus is not yet viable (that is, couldn't survive outside of the womb), provided that it has a heartbeat. The only exception to the statutory prohibition is where the partial birth abortion is "necessary to save the life of the [mother]." § 940.16(3).

The Wisconsin branch of Planned Parenthood, plus several physicians who perform abortions in Wisconsin, brought suit against the state's attorney general and other state law enforcement officials to enjoin the enforcement of the new statute, contending that it violates the Fourteenth Amendment. One of the plaintiff physicians regularly though infrequently performs the type of abortion variously termed "intact dilation and evacuation," "dilation and extraction," and (the term we'll use) "D & X." The others would like the option to consider performing it should the condition of a patient so warrant. The standing of the physician plaintiffs, and of Planned Parenthood as the owner of abortion clinics in Wisconsin, to maintain this suit is not open to question. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Doe v. Bolton, 410 U.S. 179, 188-89, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). Not so the standing of the intervening defendants, two husbands of pregnant women, to be parties to the suit. As these men are passionately opposed to abortion of any kind and do not suggest that their wives disagree with them about the issue and so might consider undergoing a D & X, they have no significant interest in this litigation other than an ideological one. A purely ideological interest is not an adequate basis for standing to sue in a federal court, Diamond v. Charles, 476 U.S. 54, 67, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986); United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)--and we require such standing of all would-be intervenors. Solid Waste Agency v. U.S. Army Corps of Engineers, 101 F.3d 503, 507 (7th Cir.1996). If these men have standing to oppose a challenge to the partial abortion law, then any potential beneficiary of a statute could intervene in any suit challenging the statute's scope or validity, something no one believes. We add that there is nothing to suggest that the state is not an adequate representative of the intervenors' interests.

We turn from standing to the merits. The decision whether to grant a preliminary injunction requires consideration both of the likelihood that the plaintiff will win when the case is tried in full and of the relative harms to the parties of granting or denying the injunction. The stronger the likelihood that the plaintiff will win, the less of a showing he need make that the denial of the preliminary injunction would hurt him more than granting it would hurt the defendant. Hetreed v. Allstate Ins. Co., 135 F.3d 1155, 1158 (7th Cir.1998); American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 593 (7th Cir.1986); EEOC v. Astra USA, Inc., 94 F.3d 738, 743 (1st Cir.1996); cf. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). If the defendant is very likely to lose, allowing him to continue in his probably unlawful course of conduct until the end of what may be protracted proceedings would give him a windfall.

The balancing of the imponderables involved in the decision whether to grant or deny a preliminary injunction is a task calling for a judgment based on the particulars of the individual case. The district judge's decision is therefore entitled to considerable weight--the weight encapsulated in the concept of appellate review for "abuse of discretion." Fleet Wholesale Supply Co. v. Remington Arms Co., 846 F.2d 1095, 1097 (7th Cir.1988); American Hospital Supply Corp. v. Hospital Products Ltd., supra, 780 F.2d at 595; Smith, Bucklin & Associates, Inc. v. Sonntag, 83 F.3d 476, 479 (D.C.Cir.1996). But when it is clear that the plaintiff is both highly likely to prevail when the case is tried in full and is more likely to be harmed by the denial of preliminary relief than the defendant is to be harmed by its grant, we reverse. Meridian Mutual Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1120-21 (7th Cir.1997); Kirkeby v. Furness, 52 F.3d 772, 774 (8th Cir.1995); see also Thomas & Betts Corp. v. Panduit Corp., 65 F.3d 654, 657-64 (7th Cir.1995); August Storck K.G. v. Nabisco, Inc., 59 F.3d 616, 619-20 (7th Cir.1995). It should go without saying that in deciding these questions in this appeal we must, so far as it is humanly possible to do, lay to one side whatever personal reservations any of us may have either about abortion in general or about the decisions in which the Supreme Court has interpreted the Constitution as creating a right to abortion.

The origin of the statute challenged in this case is a paper by a physician describing the D & X method of abortion. Martin Haskell, "Dilation and Extraction for Late Second Trimester Abortion" (1992), reprinted in 139 Cong. Rec. E1092, 1993 WL 135664 (Apr. 28, 1993), and in The Partial-Birth Abortion Ban Act of 1995, Hearing before the S. Comm. on the Judiciary, 104th Cong., 1st Sess. 5 (Nov. 17, 1995). The procedure is employed rarely (though how rarely we don't know--there are no reliable statistics on this question), and usually only in late-term abortions (20 weeks or more). After the cervix (the mouth of the uterus), has been dilated, a process that can take several days, the D & X procedure is ready to begin. The physician draws the fetus out feet first. When only the fetus's head remains in the uterus, the physician inserts a scissors into the base of the fetus's brain, inserts a tube in the hole made by the scissors, and removes the contents of the skull by suction, causing the skull to collapse. The physician then completes the extraction of the now-dead fetus from the woman's body, death having occurred while the body of the fetus was in the vagina.

The unpleasantness of the procedure (and perhaps the fact that the only reason Haskell's paper gave for it is that it can be performed on an outpatient basis with a local anesthetic--though this implies that it may be safer for the woman than alternative methods of abortion) has given rise to a host of state statutes, as well as to bills in Congress (two of which President Clinton has vetoed), designed to outlaw it. There are differences among these statutes (see, e.g., Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997), invalidating the Ohio statute), but we ignore them and confine our attention to the Wisconsin law. On the basis of the record compiled to date in this litigation--a potentially important qualification, since the full trial may cast the facts in a different light--it is apparent that whatever may be the case with the other statutes, Wisconsin's statute impermissibly burdens the constitutionally recognized right to an abortion in three respects.

First, it contains no exception for cases in which the fetus is not yet viable (that is, cannot survive outside the mother's body); all that is required, as we noted, is that the fetus have a heartbeat, and that is well before viability. The fetal heartbeat is detectable at 6 weeks, Robert Berkow et al., The Merck Manual 1851 (16th ed.1993), while in the present state of medical technology the fetus may become viable as early as 20 weeks into the pregnancy or as late as 27 weeks (or later--and some terribly malformed fetuses never attain viability). Therefore some D & X abortions (a procedure employed from week 20 on) are likely to be of fetuses that are not yet viable but have a heartbeat and so are protected by the statute. The statutory prohibition of aborting such fetuses--a prohibition that, remember, allows as the sole exception cases in which the mother's...