Richmond Medical Center for Women v. Gilmore

Decision Date16 July 1999
Docket NumberNo. Civ.A. 3:98cv309.,Civ.A. 3:98cv309.
Citation55 F.Supp.2d 441
PartiesRICHMOND MEDICAL CENTER FOR WOMEN et al., Plaintiffs, v. Jim GILMORE et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia

Simon Heller, Bebe J. Anderson, Karen Raschke, The Center for Reproductive Law & Policy, New York City, Dara Klassel, Planned Parenthood Federation of America, New York City, for plaintiffs.

Mark L. Earley, Attorney General of Virginia, Willaim H. Hurd, Office of the Attorney General, Richmond, VA, for defendants.


PAYNE, District Judge.

This action calls into question the constitutionality of the Virginia statute, Va.Code Ann. § 18.2-74.2 (the "Act"), which proscribes as criminal so-called "partial birth abortions," interpreted by the Commonwealth to mean the abortion procedure known as intact dilation and extraction and all potential variants thereof. The Commonwealth defends the Act first by arguing that the procedures which it proscribes are not really abortions, but rather "infanticide" and, on that rationale, argues that the constitutionality of the Act is not to be measured against the decisions of the Supreme Court of the United States which define the constitutional parameters of state abortion laws. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Alternatively, the Commonwealth asks the Court to disregard Roe and Casey by applying them in a fashion that has been rejected by eighteen of the nineteen decisions to have addressed partial birth abortion statutes in other States.

As will be seen, these defenses of the Act ignore the fundamental fact that the Supreme Court is the ultimate authority on the interpretation of our Constitution and laws, and thus its decisions control the determination whether a State abortion law is repugnant to the United States Constitution. Under our form of government, all lower federal courts must adhere to the Supreme Court's controlling decisions. And, that is true even where, as here, the State law touches on deeply-held moral beliefs or implicates the twin concerns of federalism and comity.

Plaintiffs, Virginia physicians, medical clinics, and nonprofit corporations offering reproductive health services and obstetrical and gynecological medical services, including abortions, brought this action against the defendants, the Governor of Virginia and six Commonwealth's Attorneys, seeking preliminary and permanent injunctive relief and a declaration that the Act offends the Constitution of the United States in several ways. The individual and institutional plaintiffs brought this action on their own behalf and on behalf of their patients seeking abortions.

Before the Act took effect on July 1, 1998, the Plaintiffs sought preliminary injunctive relief, which the Court granted. See Richmond Medical Center for Women v. Gilmore, 11 F.Supp.2d 795 (E.D.Va. 1998). A judge of the United States Court of Appeals for the Fourth Circuit stayed the preliminary injunction order pursuant to Fed.R.App.P. 8. See Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir.1998). A panel of the Court of Appeals then denied, without opinion, the Plaintiffs' motion to vacate that stay, and the parties subsequently convened for a two-day bench trial on the Act's constitutional merits. The parties have agreed that the record shall be comprised of the transcript of that hearing and that of the hearing on the preliminary injunction, certain exhibits and affidavits presented at both hearings and certain deposition testimony.1

Upon review of the complete record and, for the reasons set forth more fully below, the Court finds that the Plaintiffs have standing to maintain this action; that, on the merits, the Act infringes upon the fundamental abortion right recognized in Roe, as reaffirmed and refined in Casey; and, finally, that the Act is impermissibly vague in violation of the Fourteenth Amendment's Due Process Clause.


Plaintiff William G. Fitzhugh, M.D., is a physician licensed to practice medicine in Virginia and is board-certified in obstetrics and gynecology. He is the Medical Director of the Plaintiff Richmond Medical Center for Women, and he is an associate professor of obstetrics and gynecology at the Medical College of Virginia, Virginia Commonwealth University, in Richmond, where he instructs residents, medical students, and interns. Dr. Fitzhugh performs abortions as late as twenty weeks of pregnancy, as measured from the first day of the woman's last menstrual period ("lmp"). He first began providing abortions early in his residency, in 1969, and, he estimates that, since then, he may have performed as many as 100,000 abortion procedures. (P.I.Tr. at 108-09.)2 Dr. Fitzhugh primarily performs abortions by the medical, suction curettage, and the dilation and evacuation methods, though he is familiar with all commonly employed techniques.

Plaintiff Herbert C. Jones, M.D., is a physician licensed to practice medicine in Virginia. Like Dr. Fitzhugh, Dr. Jones is board-certified in obstetrics and gynecology. Dr. Jones maintains a private office in Charlottesville, Virginia, where he performs abortions; he also works as a consultant and Medical Director for the Planned Parenthood of Roanoke, Richmond, and Falls Church, Virginia. In addition, Dr. Jones teaches abortion procedures to residents at the University of Virginia School of Medicine, where he is a Clinical Assistant Professor of Obstetrics and Gynecology. He is the former chief of Obstetrics/Gynecology at, and presently is on the staff of, the Martha Jefferson Hospital in Charlottesville. Dr. Jones estimates that he has performed nearly 30,000 abortions in his career. He presently performs abortions up to twenty weeks lmp, most often using the medical induction, suction curettage, and dilation and evacuation techniques. (P.I.Tr. at 154-55.)

The institutional plaintiffs, Richmond Medical Center for Women, Hillcrest Clinic, Ltd., Virginia League for Planned Parenthood, and Planned Parenthood of the Blue Ridge, all provide first-trimester abortions and other reproductive health services and obstetrical and gynecological medical services to women around the Commonwealth. In addition, Plaintiff Hillcrest Clinic refers women seeking abortions after the first trimester to providers in Richmond and locations outside Virginia.3

Defendant Jim Gilmore is the Governor of Virginia and is responsible for ensuring that the laws of Virginia are faithfully executed. He is sued in his official capacity. The other six defendants are Commonwealth's Attorneys for the County of Albemarle, the County of Fairfax, the City of Newport News, the City of Norfolk, the City of Richmond, and the County of Roanoke. They are responsible for prosecuting violations of Virginia's criminal statutes, and they, too, are sued in their official capacity.4

The Plaintiffs contend that the Act, by virtue of its overly broad language, offends the controlling principles that: (i) a State may not, before fetal viability, constitutionally impose an undue burden on a woman's decision to have an abortion; and (ii) that "[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Casey, 505 U.S. at 833, 112 S.Ct. 2791. In addition, Plaintiffs contend that the Act violates the rule in Casey by prohibiting post-viability abortions even when necessary to protect maternal health. Plaintiffs also argue that the Act is, for several reasons, void for vagueness. Finally, the Plaintiffs contend that the Act runs afoul of the Equal Protection Clause because it discriminates based on sex without being substantially related to the achievement of an important governmental objective. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).


The Act, which went into effect on July 1, 1998, added certain provisions "relating to partial birth abortions" to Virginia's extant abortion regulatory statutes. See 1998 Va.Acts ch. 448 & 579.5 Section 18.2-74.2(A), which is entitled "Partial birth abortion prohibited," provides that "[n]otwithstanding the provisions of §§ 18.2-72, 18.2-73 and 18.2-74, a physician shall not knowingly perform a partial birth abortion that is not necessary to save the life of a mother." Section 18.2-74.2(D) defines "partial birth abortion" to mean:

an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery.

A physician who violates Section 18.2-74.2(A) is guilty of a Class I misdemeanor, which is punishable by a maximum term of imprisonment of 1 year, a fine of not more than $2,500, or both. See Va.Code Ann. § 18.2-11 (Michie 1996).6 A physician convicted of violating the Act also is at risk of forfeiting the privilege of practicing medicine. See id. §§ 54.1-2914 to -2915.

Several aspects of the Act are implicated in the Plaintiffs' challenge and thus must be kept in mind as the analysis of the claims proceeds. First, the Act criminalizes the providing of abortions by reference to whether the fetus is "living," not whether it is "viable." And, the Act defines only one circumstance exempt from its partial birth abortion ban: where the procedure is "necessary to save the life of a mother." Id. § 18.2-74.2(A). Furthermore, although the Act does require as a prerequisite to criminal liability that the physician at all times act "knowingly," and although it purports to criminalize only conduct...

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