Planned Parenthood of Wisconsin v. Doyle, 98-C-305-S.
| Decision Date | 04 June 1999 |
| Docket Number | No. 98-C-305-S.,98-C-305-S. |
| Citation | 44 F.Supp.2d 975 |
| Parties | PLANNED PARENTHOOD OF WISCONSIN, Gary T. Prohska, M.D., Fredrik F. Broekhuizen, M.D., Gavin Jacobson, M.D., Neville Sender, M.D., Dennis D. Christensen, M.D. and Bernard Smith, M.D., on behalf of themselves and their patients seeking abortions, Plaintiffs, v. James E. DOYLE, in his official capacity as the Attorney General of the State of Wisconsin and Diane M. Nicks, in her official capacity as District Attorney for Dane County and as representative of a class of all District Attorneys in Wisconsin, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
At issue in this matter is the constitutionality of 1997 Wisconsin Act 219, codified at Wis. Stat. §§ 895.038 and 940.16 (the "Act").
The Act forbids any person from intentionally performing a "partial-birth abortion." Wis. Stat. § 940.16(2). It defines "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 delivery of the child." Wis. Stat. § 940.16(1)(b). "Child" is defined as a "human being from the time of fertilization until it is completely delivered from a pregnant woman." Wis. Stat. § 940.16(1)(a) The Act provides an exception to its criminal sanction where a partial-birth abortion "is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness, or physical injury ... if no other medical procedure would suffice for that purpose." Wis. Stat. § 940.16(3). Violation of the Act is a class "All felony under Wisconsin law, subjecting violators to life imprisonment."
The Act also creates civil liability for its violation. It authorizes the father of the child aborted by the partial-birth abortion and, if the woman on whom the abortion was performed is a minor, either of her parents, to sue for damages. Wis. Stat. § 895.038(2)(a). Either may sue regardless of whether the woman consented to the partial-birth abortion. However, neither may sue if he or she consented to the partial-birth abortion. Wis. Stat. § 895.038.
In its enactment the Wisconsin legislature rejected proposed amendments, Exhibits 1 — 15.
Plaintiffs previously sought a preliminary injunction against enforcement of the Act which this Court denied. Planned Parenthood v. Doyle, 9 F.Supp.2d 1033 (W.D.Wis.1998). On the basis of undisputed facts, the Court found that (1) the Act could be narrowly construed to apply only to the dilation and extraction ("D & X") method of abortion, (2) the scienter requirements in the law helped save it from a vagueness challenge, and (3) the Act did not place an undue burden on a woman's right to choose an abortion. Accordingly, the Court found that plaintiffs had failed to establish a likelihood of success on the merits.
The Court of Appeals disagreed. Planned Parenthood v. Doyle, 162 F.3d 463 (7th Cir.1998). It found that plaintiffs might succeed in proving the Act unconstitutional for any of three reasons. First, the Act makes no exception for cases in which the fetus is not yet viable at the time of the abortion. Id. at 466. Second, the Act contains no exception for cases in which a D & X procedure is necessary for the preservation of the mother's health. Id. at 467. Third, the Act is vague. Id. at 469.
The Court of Appeals specifically noted that its opinion was based on the record compiled at the time and that "the full trial may cast the facts in a different light." Id. at 466. Accordingly, a trial was held in this matter to determine whether the evidence presented by the parties would continue to justify the Court of Appeals' concerns regarding the constitutionality of the Act.
Based on the evidence presented at trial and those facts to which the parties have stipulated, the Court makes the following findings of fact. These findings may be divided into three parts according to the issue they primarily address. In the first group is evidence relating to the vagueness of the Act — whether the Act can be construed to apply to any procedure other than the D & X procedure. In the second group is evidence relating to the impact of the Act — whether its purpose or effect is to place an undue burden on a woman's right to an abortion. In the third group is evidence relating to the state interests served by the Act.
The Court will present its factual findings according to this division of the relevant evidence. The facts to which the parties have stipulated are accepted as true except to the extent they conflict with the following findings.
Vagueness — The following facts are relevant to the issue of whether the Act is unconstitutionally vague.
The most commonly used methods of abortion are suction curettage, dilation and evacuation ("D & E") and induction. Some physicians also use the dilation and extraction ("D & X") method of abortion.
In a suction curettage procedure, the physician generally dilates the cervix, inserts a tube (cannula) through the vagina and the cervix into the uterus, and removes the embryo or fetus and other products of conception through the cannula while it is inside the vagina, cervix, and uterus.
Abortion by induction involves inducing preterm labor. The physician uses laminaria to dilate the cervix and introduces medications into the patient that will both continue the dilation and induce labor. As a result of the labor, the fetus is expelled from the woman's uterus.
In a D & E procedure, the physician generally dilates the cervix by inserting laminaria. When sufficient dilation is achieved, the physician removes the laminaria and ruptures the amniotic sac. Depending on the gestational age and the size of the fetus and the amount of dilation achieved, the physician may use suction to remove the parts of the fetus and products of conception that are removable by suction. The physician will then insert forceps into the woman's uterus in order to grasp and remove the remaining parts of the fetus from the uterus through the cervix into the vagina and then from the woman's body. This process involves dismemberment of the fetus and repeated insertions of the forceps into the woman's uterus to grasp and remove remaining fetal parts. During an abortion performed in this manner, there often is fetal cardiac activity and other signs of life after a fetal part has been delivered into the vagina. while the remainder of the fetus is in utero.
Plaintiffs Christensen and Smith define the D & X procedure as follows:
In the intact D & E procedure (which is also known as "dilation and extraction," "D & X" or "intact D & X"), the physician dilates the cervix and then removes the fetus from the uterus through the vaginal canal intact. The physician extracts the fetal body intact, usually feet first, until the cervix is obstructed by the after coming head, which is too large to pass through the cervix. Then the physician creates a small opening at the base of the skull and evacuates the contents, allowing the calvarium to pass through the cervical opening. The intentional removal of the fetus intact is what distinguishes an intact D & E procedure from a D & E procedure.
Similarly, the American College of Obstetricians and Gynecologists ("ACOG") defines the D & X procedure to include the following steps:
1. deliberate dilation of the cervix, usually over a sequence of days;
2. instrumental conversion of the fetus to a footling breech;
3. breech extraction of the body excepting the head; and
4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.
Dr. Broekhuizen agrees with this definition but would define D & X more broadly to include other variations on the technique, including crushing the skull to allow it to pass through the cervix. Haskell agrees that how the skull is reduced in size is not an important distinction. He stated that "the medical distinction between a D & E and a D & X is the extent to which the surgeon attempts to extract portions of the fetus intact." Ex. 227 at 8.
Haskell also testified that in perhaps 75% of the D & X procedures he performs, he cuts the umbilical cord before removing the fetus from the uterus. However, sometimes the child is partially delivered before he cuts the umbilical cord. Haskell stated that the child is likely to die within minutes after Haskell cuts its cord.
As evidenced by the policy statements of the American Medical Association (Ex. 17) and the American College of Obstetricians and Gynecologists (Ex. 16) as well as articles published in prominent medical journals (Exs. 205, 206, 207 and 240), the medical community understands the phrase "partial birth abortion" to refer to the dilation and extraction or "D & X" procedure. See also Ex. 239 at 35 () Nevertheless, the plaintiff physicians state that they find the definition of partial birth abortion in the Act to be vague because the definition could be construed to cover the three most common methods of abortion including suction curettage, induction, and dilation and evacuation ("D & E"). See Plaintiffs' Proposed Finding of Fact No. 24. They expressed concern over the following situations: 7
Suction Curettage — Occasionally, in some suction curettage procedures, it is necessary for the physician to use forceps to remove the fetus from the uterus. Sometimes the physician removes the fetus in parts and other times it is intact. When the fetus is intact, there may be a point in the procedure when part of the fetus is outside of the uterus while the rest of the fetus remains in the uterus.
Induction — Sometimes during an induction the physician must assist in the removal of the fetus; and...
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