Rhode Island Medical Soc. v. Whitehouse
| Decision Date | 30 August 1999 |
| Docket Number | No. C.A. 97-416L.,C.A. 97-416L. |
| Parties | RHODE ISLAND MEDICAL SOCIETY, Pablo Rodriguez, M.D., Benjamin S. Vogel, M.D., and Planned Parenthood of Rhode Island, Plaintiffs, v. Sheldon WHITEHOUSE, Attorney General of the State of Rhode Island, in his official capacity, Defendant, and Lincoln Almond, Governor of the State of Rhode Island, in his official capacity, Defendant—Intervenor. |
| Court | U.S. District Court — District of Rhode Island |
Lynette J. Labinger, Roney & Labinger, Providence, RI, Catherine Weiss, Louise Melling, Caitlin Borgmann, Talcott Camp, ACLU Foundation, New York City, for plaintiffs.
Rebecca Tedford Parington, Attorney General's Office, Providence, RI, Claire
J.V. Richards, Office of the Governor, Providence, RI, for defendant.
DECISION AND ORDER
Attorney General Sheldon Whitehouse and Governor Lincoln Almond ("defendants") undertake a Herculean effort to save Rhode Island's ban on partial birth abortions, R.I.Gen.Laws § 23-4.12 (1996) (the "Act"). Two years ago, this Court opined that the Act appeared presumptively unconstitutional, even with all presumptions applied in favor of the law. That proved true.
The Act sprouted amid a national debate about a relatively-new surgical procedure described below as a "D & X." When the Act first passed in 1997, the Rhode Island General Assembly (the "Legislature") was tilling soil already occupied by nearly three decades of abortion jurisprudence. Almost immediately, this case was filed, and this Court predicted that constitutional pruning would be necessary. Thus in 1998, the Legislature transplanted language from a Congressional bill in the hopes of escaping the shears. That amended Act is under review here.
At trial, defendants argued that the term "partial birth abortion" refers only to the D & X procedure. Doctors accept a definition of the D & X, and defendants claim that the Legislature trussed the Act to a limited trellis and banned that single procedure. However, the reality is that the Legislature rejected the medical exegesis. The Act defines "partial birth abortion" with completely different words and encompasses a completely different set of operations. As such, the Act's canopy stretches to overshadow constitutionally-protected abortions. Obstetricians Pablo Rodriguez and Benjamin Vogel, along with Planned Parenthood of Rhode Island and the Rhode Island Medical Society (collectively "plaintiffs"), have demonstrated multiple flaws in the Act — two provisions that strangle constitutional rights and two missing exceptions required by the United States Supreme Court.
Put simply, the Legislature did not write into law what defendants now claim that it intended. No reasonable reading of the Act matches what defendants see there. This is a nation of laws, not of legislative history or attorney general advisory opinions. No amount of government promises can salvage this Act. This case does not decide whether defendants may proscribe the D & X because this Act bans far more and, not coincidentally, far more than the Constitution allows. The Supreme Court instructs that a law this unrestrained and pernicious to the Constitution must be torn out by the roots.1
As explained below, the Act violates the Constitution for four distinct reasons. Because of the likelihood of legislative amendments, this Court seeks to be perfectly clear where the Act grows into a protected plot. First, the entire Act is unconstitutional because the definition of "partial birth abortion" is vague and infringes on the D & E procedure which is legally protected. Second, the entire Act is unconstitutional because it lacks an exception for the mother's health. Third the entire Act is unconstitutional because the "mother's life" exception is inadequate. Fourth, the civil remedies are unconstitutional because they place an undue burden on a woman's right to an abortion.
This Court declines to reach plaintiffs' "legitimate state interest" argument, which affects equal protection and substantive due process. These arguments would be relevant if the Legislature were to replace the Act's definition with the detailed, medically-accepted D & X definition. That, however, would be a different case and controversy.
Therefore, this Court issues a permanent injunction against the enforcement of R.I.Gen.Laws § 23-4.12. This Act violates the Constitution and 42 U.S.C. § 1983. Plaintiffs are also entitled to attorneys' fees and costs.
Drs. Rodriguez and Vogel are physicians who perform abortions in Rhode Island. Planned Parenthood is a Rhode Island corporation that hires doctors to perform abortions at its facility. The Rhode Island Medical Society (the "Medical Society") is an association of doctors. The defendants are the Attorney General and Governor of Rhode Island.
Pursuant to Federal Rule of Civil Procedure 52(a), this Court may enter judgment following a trial without a jury. See Fed.R.Civ.P. 52(a). In crafting a decision following a bench trial, the Court "shall find the facts specially and state separately its conclusions of law thereon." Id. It is within the purview of the trial court to weigh the credibility of witnesses for the purpose of making findings of fact. See id. This Court draws its factual evidence from a bench trial conducted May 36, 1999. The medical facts depend primarily on the testimony of three doctors who were certified as experts in abortion practice: plaintiff Rodriguez of Women & Infants Hospital, (see P.s' Ex. 6 (resume)); plaintiffs' witness Phillip Stubblefield of Boston Medical Center, (see P.s' Ex. 8 (resume)); and defendants' witness Frank Boehm of Vanderbilt University Hospital, (see D.s' Ex. J (resume)).
An abortion occurs any time that a pregnancy ends without a viable baby being born. The Act concerns itself only with induced, rather than natural, abortions, so the parties in this case use the term "abortion" without modification.
Doctors separate abortion procedures into six distinct types defined below. The procedures are performed at different stages of pregnancy and are accompanied by different risks and complications. The age of a fetus is measured in weeks, counting backwards to the first day of the woman's most-recent menstrual period.
One of the procedures — the D & X — is relatively new, and several courts have differed on whether it is distinct from the established procedure known as the D & E. However, the evidence in this case is clear that, even if there was confusion several years ago, the dust has settled. Based heavily on a 1997 definition by the American College of Obstetricians and Gynecologists ("ACOG"), doctors recognize the difference between the D & E and the D & X.
As an aside necessary to defining the words in the Act, this Court recognizes that doctors use the term "procedure" in a particularly diffuse fashion. It seems that any distinct action by a doctor can be defined as a procedure. Thus, the abortion operation is a procedure, and it is made up of components that are also procedures, such as injecting anesthesia, cutting an incision through a woman's abdomen, or scraping the uterine wall. Those, in turn, are made of up even more-basic and discrete procedures. Based on the testimony at this trial, this Court finds any distinct action can be medically defined as a procedure, but that doctors define only some actions as "procedures." Apparently, an action — much like esteemed people — must have some recognized significance to qualify for a title.
In a vacuum aspiration abortion, the physician dilates the cervix and then removes the fetus and the other products of conception with a tube or syringe that is inserted into the uterus. This is the procedure that carries the least risk to the woman, and it is the most-common type of abortion during the first 12 weeks of pregnancy.
The fetus can pass through the suction tube (called a "cannula") either intact or dismembered. While dismembered parts of the fetus are suctioned out of the uterus, part of the fetus remains in utero and may have a heartbeat. The vacuum aspiration becomes impossible when the fetus grows too large for the available tubes, typically after the first trimester.
Dr. Stubblefield and Dr. Rodriguez described instances in which portions of the fetus jam the suction tube. In that situation, the physician must remove the tube from the patient's body and clear the tube. The fetal tissue thereby passes through the vagina as the doctor removes the tube. The doctor then returns the tube to the uterus and continues the abortion.
In a D & E, the physician dilates the cervix and uses a combination of suction and traction to dismember the fetus inside the woman's body. The pieces are pulled out of the uterus through the vagina, generally with forceps. The D & E, also known as dilation and extraction, is the most-common technique used between 12 and 23 weeks.
The physician generally dilates the cervix with dilators that can be mechanical or osmotic, those which absorb moisture and expand slowly in the cervix. Once the cervix is open sufficiently and the dilators are removed, the doctor reaches into the uterus with an instrument and ruptures the amniotic sac. Then, using a combination of suction curettage and forceps, the physician removes the fetus. Normally, the fetus is removed in parts. The physician pulls on fetal body parts until the portion slides into the vagina and the remainder of the body jams against the cervix. The doctor tries to pull as much of the fetus as possible. Traction tears apart the fetus' body.
Theoretically, a D & E is possible until the fetus becomes viable. However, the fetus' bones become stronger as weeks pass, and the D & E becomes more and more difficult. Generally,...
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