Richmond Medical Center for Women v. Gilmore, 98-1930

Decision Date30 June 1998
Docket NumberNo. 98-1930,98-1930
Citation144 F.3d 326
PartiesRICHMOND MEDICAL CENTER FOR WOMEN; William G. Fitzhugh, M.D.; Hillcrest Clinic; Herbert C. Jones, Jr., M.D.; Planned Parenthood of Metropolitan Washington, DC, Incorporated; Virginia League for Planned Parenthood; Planned Parenthood of the Blue Ridge, Plaintiffs-Appellees, v. James GILMORE, in his official capacity as Governor of the State of Virginia; David M. Hicks, in his official capacity as Commonwealth Attorney for the City of Richmond; Donald S. Caldwell, in his official capacity as Commonwealth Attorney for the County of Roanoke; Howard Gwynn, in his official capacity as Commonwealth Attorney for the City of Newport News; Charles D. Griffith, Jr., in his official capacity as Commonwealth Attorney for the City of Norfolk; Robert F. Horan, Jr., in his official capacity as Commonwealth Attorney for the County of Fairfax; James L. Camblos, III, in his official capacity as Commonwealth Attorney for the County of Albemarle, Defendants-Appellants.
CourtU.S. Court of Appeals — Fourth Circuit
ORDER

LUTTIG, Circuit Judge.

The General Assembly of the Commonwealth of Virginia enacted on March 12, 1998, and the Governor of the Commonwealth signed into law on April 13, 1998, Virginia's Partial Birth Abortion Act. This Act was modeled after the bill passed by the Congress of the United States on October 8, 1997, which was supported by the American Medical Association but subsequently vetoed by the President. The undisputed purpose of Virginia's Partial Birth Abortion Act is to prohibit the late-term abortion procedure in which

the physician pulls a lower extremity into the vagina and then uses his fingers to deliver the lower extremity and then the torso followed by the shoulders and the upper extremities. At that point, the skull is lodged at the internal cervical os. Usually the dilation is insufficient for the skull to pass through. At that point, the surgeon slides his or her fingers along the back of the fetus; uses a pair of blunt curved scissors to rupture the base of the skull; and uses a suction catheter to evacuate the contents of the skull and then applies traction to the fetus to remove it from the patient.

Mem. Op. of District Court at 16-17. The Partial Birth Abortion Act is to become effective at midnight tonight.

On May 21, plaintiffs, Richmond Medical Center, Hillcrest Clinic, three branches of Planned Parenthood, and two doctors--none of whom, according to their own concessions and the findings of the district court, performs this procedure--sought an injunction from the federal district court in the Eastern District of Virginia barring the Commonwealth and its officials from enforcing the Act. The plaintiffs contended that the Act is unconstitutionally vague and also imposes a facially unconstitutional burden on the abortion rights of the women of the Commonwealth of Virginia. The Governor of Virginia and six of the Commonwealth's Attorneys were named as defendants to the lawsuit and vigorously defended the constitutionality of the statute on behalf of the citizens of Virginia. On June 25, following hearings before the district court, that court granted the preliminary injunction and, on June 29, declined to stay its order pending appeal to this court.

This morning, the Commonwealth filed with me as a single Circuit Judge an application pursuant to Federal Rule of Appellate Procedure 8 to stay the district court's preliminary injunction pending appeal. I requested that the plaintiffs respond to the Commonwealth's submissions by 3:00 p.m. this afternoon. Having received and reviewed the submissions of both parties, together with the opinion of the district court, for the reasons stated I hereby grant the stay of the district court's injunction requested by the Commonwealth of Virginia.

I.

Section 18.2-74.2(A) of the Virginia Code, which is entitled "Partial Birth Abortion Prohibited," provides as follows:

Notwithstanding 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. A violation of this section shall be punishable as a Class I misdemeanor.

Va.Code § 18.2-74.2(A). A partial birth abortion is defined as

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.

Id. § 18.2-74.2(D). Like Congress in enacting the federal statute on which Virginia's is modeled, the General Assembly of Virginia in enacting section 18.2-74.2 intended to prohibit partial birth abortions, otherwise known as the "intact dilatation and extraction" method of abortion, see, e.g., Helen Dewar, AMA Backs "Partial Birth" Abortion Curb, Wash. Post, May 20, 1997, at A1 ("the procedure called 'partial birth abortion' ... [i]s medically known as intact dilation and extraction"); Mem. Op. at 49 (explaining that AMA understood essentially identical definitional language in federal bill to refer only to intact D & X procedure); id. at 4 (noting that American College of Obstetricians and Gynecologists equates "partial birth abortion" with "intact D & X"). As described by the American College of Obstetricians and Gynecologists, similarly to the description recited by the district court and quoted above, this method of abortion includes the following four elements:

1. Deliberate dilatation 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;

4. Partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

American College of Obstetricians and Gynecologists Statement of Policy (quoted in Mem. Op. at 4-5).

Plaintiffs concede, and the district court found, that they do not perform this procedure. Furthermore, as explained below, the plain language of section 18.2-74.2(D) cannot reasonably be read to prohibit the particular procedures that plaintiffs actually do perform. Therefore, the district court's conclusion that the plaintiffs faced a reasonable fear of prosecution under section 18.2-74.2(D), and thus had standing to challenge that provision, was simply in error. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979).

II.

Section 18.2-74.2(D), which provides the statutory definition of a partial birth abortion, sets forth the elements necessary in order to establish a violation of Virginia's Partial Birth Abortion Act. As relevant here, to violate the statute, an abortion provider must (1) deliver an intact fetus or a substantial portion thereof, (2) while the fetus is living, (3) into the vagina. In addition, in provisions barely mentioned by the district court, the statute also provides two critical mens rea requirements. Thus, the statute does not prohibit the mere delivery of a living fetus or substantial portion thereof into the vagina, but, rather, prohibits only the deliberate and intentional delivery of such a fetus into the vagina. Indeed, even the intentional and deliberate delivery of a living fetus into the vagina does not violate the statute unless it is performed for the specific purpose of performing a procedure the provider knows will kill the fetus. Cf. Planned Parenthood v. Doyle, --- F.Supp. ----, ----, 1998 WL 299912, at * 6 (W.D.Wis.) ("To partially deliver a fetus and violate the ban, the physician would deliberately and intentionally manipulate the body of the intact, living child partially out of the body of the mother for the purpose of performing a procedure intended to kill the child, and then kill the child.") (quoting medical testimony).

When the statute is thus understood--with both its actus reus and explicit mens rea requirements appreciated--the unreasonableness of the district court's construction of the statute is apparent. The district court held that section 18.2-74.2(D) could reasonably be construed to prohibit abortions performed by suction curettage and conventional dilatation and evacuation procedures, the two most common methods of abortion during the first two trimesters of pregnancy, see, e.g., Mem. Op. at 80; id. at 10-11, both of which methods are apparently performed by the plaintiffs, see id. at 6-7. The district court thus held, in effect, that section 18.2-74.2(D) was so vague as potentially to prohibit nearly every abortion performed in the Commonwealth of Virginia. An examination of the suction curettage and dilatation and evacuation methods of abortion makes clear, however, that section 18.2-74.2(D) cannot reasonably be read to prohibit these techniques, and therefore that the plaintiffs do not face a reasonable fear of prosecution under the statute.

A.

In the suction curettage procedure, a physician inserts a tube or cannula (which is attached to a vacuum generator) through the vagina and into the uterus and then removes the fetus piecemeal by means of negative suction. Because such suction may occasionally detach the entire fetus, or identifiable parts thereof, and because such parts might include cells that are still living as they pass through the vagina via the cannula and into the vacuum, the district court concluded that section 18.2-74.2(D) could reasonably be read to prohibit suction curettage. This section, however, cannot reasonably be so read.

First, the statute prohibits only the delivery of intact fetuses or substantial portions of intact fetuses. It does not prohibit the extraction of dismembered body parts, no matter how substantial. Cf. Planned Parenthood v. Doyle, --- F.Supp. ----, ----, 1998 WL 299912, * 9 (W.D.Wis.) (noting that similar statute in question there was explicitly directed at partial...

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2 books & journal articles
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