Richmond Medical Center for Women v. Herring
| Decision Date | 20 May 2008 |
| Docket Number | No. 03-1821.,No. 04-1255.,03-1821.,04-1255. |
| Citation | 527 F.3d 128 |
| Parties | RICHMOND MEDICAL CENTER FOR WOMEN; William G. Fitzhugh, M.D., on behalf of themselves, their staffs, and their patients, Plaintiffs-Appellees, v. Michael N. HERRING, in his official capacity as Commonwealth Attorney for the City of Richmond; Wade A. Kizer, in his official capacity as Commonwealth Attorney for the County of Henrico, Defendants-Appellants. Horatio R. Storer Foundation, Incorporated, Amicus Supporting Appellants, and Physicians for Reproductive Choice and Health; Vanessa E. Cullins, Vice President for Medical Affairs, Planned Parenthood Federation of America; Forty-Two Individual Physicians, Amici Supporting Appellees. Richmond Medical Center for Women; William G. Fitzhugh, M.D., on behalf of themselves, their staffs, and their patients, Plaintiffs-Appellees, v. Michael N. Herring, in his official capacity as Commonwealth Attorney for the City of Richmond; Wade A. Kizer, in his official capacity as Commonwealth Attorney for the County of Henrico, Defendants-Appellants. Horatio R. Storer Foundation, Incorporated, Amicus Supporting Appellants, and Physicians for Reproductive Choice and Health; Vanessa E. Cullins, Vice President for Medical Affairs, Planned Parenthood Federation of America; Forty-Two Individual Physicians, Amici Supporting Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William Eugene Thro, Deputy State Solicitor, Office of The Attorney General, Richmond, Virginia, for Appellants. Stephanie Toti, Center for Reproductive Rights, New York, New York, for Appellees.
ON BRIEF:
Jerry W. Kilgore, Attorney General, Judith Williams Jagdmann, Deputy Attorney General, David E. Johnson, Deputy Attorney General, Edward M. Macon, Senior Assistant Attorney General, James C. Stuchell, Assistant Attorney General, Anthony P. Meredith, Assistant Attorney General, Office of The Attorney General, Richmond, Virginia, for Appellants. Suzanne Novak, Priscilla J. Smith, Center for Reproductive Rights, New York, New York, for Appellees. James Bopp, Jr., Richard E. Coleson, Thomas J. Marzen, Jeffrey P. Gallant, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Amicus Supporting Appellants. David S. Cohen, Women's Law Project, Philadelphia, Pennsylvania; Susan Frietsche, Stacey I. Young, Women's Law Project, Pittsburgh, Pennsylvania, for Amici Supporting Appellees.
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge MICHAEL wrote the majority opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a dissenting opinion.
We reconsider the constitutionality of a Virginia statute that outlaws what is termed "partial birth infanticide." Va. Code Ann. § 18.2-71.1 (the Virginia Act or the Act). Reconsideration is required in light of Gonzales v. Carhart (Carhart II), 550 U.S. ___, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), which rejected a facial challenge to the federal partial birth abortion statute prohibiting the intact dilation and evacuation (D & E) procedure. Critical to the Court's holding in Carhart II is the federal statute's requirement that a doctor intend at the outset to perform an intact D & E; according to the Court, this requirement of intent at the outset ensures that the federal statute does not impose criminal liability on a doctor who sets out to perform a standard D & E that by accident becomes an intact D & E. As a consequence, the federal statute does not prohibit — through fear of criminal liability — doctors from performing the standard D & E procedure, the procedure employed in the vast majority of (previability) second trimester abortions. In contrast, the Virginia Act has no provision requiring intent at the outset of the procedure. The Virginia Act thus imposes criminal liability on a doctor who sets out to perform a standard D & E that by accident becomes an intact D & E, thereby exposing all doctors who perform standard D & Es to prosecution, conviction, and imprisonment.
The dissent argues unconvincingly that the Virginia Act is constitutional because, "properly read," it has the same requirement of intent at the outset as the federal statute. See post at 157. The dissent fails to accept that the Virginia Act plainly delays the application of its intent requirement until the fetus has been "substantially expelled or extracted" intact. See Va. Code Ann. § 18.2-71.1.C. After that point, as the doctor takes any intentional step in completing the procedure that results in termination of the fetus, he commits the crime of "partial birth infanticide." He commits the crime even if he intended at the outset to perform a (lawful) standard D & E, and thus the fetus was substantially expelled or extracted intact by accident. Such a statute cannot stand under Carhart II, which requires as a prerequisite for criminal liability that a doctor intend at the outset to perform an intact D & E.
The Virginia Act is therefore unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion. The district court's summary judgment, to the extent it declared the statute invalid on this ground, is affirmed.
Under the Virginia Act, passed in 2003, "[a]ny person who knowingly performs partial birth infanticide ... is guilty of a Class 4 felony." Va.Code Ann. § 18.2-71.1. A class 4 felony in Virginia is punishable by a prison term of up to ten years and a fine of up to $100,000. Id. § 18.2-10. The Act defines "partial birth infanticide" as
any deliberate act that (i) is intended to kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother, and that (ii) does kill such infant, regardless of whether death occurs before or after extraction or expulsion from its mother has been completed.
Id. § 18.2-71.1.B. A "human infant who has been born alive" is defined as
a product of human conception that has been completely or substantially expelled or extracted from its mother, regardless of the duration of pregnancy which after such expulsion or extraction breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.
Id. § 18.2-71.1.C. Finally, "`substantially expelled or extracted from the mother' means in the case of a headfirst presentation, the infant's entire head is outside the body of the mother, or, in the case of breech presentation, any part of the infant's trunk past the navel is outside the body of the mother." Id. § 18.2-71.1.D. (We refer to the positions of the fetus described in this definition as "anatomical landmarks.")
The Virginia Act excludes certain procedures from the definition of "partial birth infanticide," including (1) "the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother," and (2) "completing delivery of a living human infant and severing the umbilical cord of any infant who has been completely delivered." Id. § 18.2-71.1.B. The Act does not include an exception to preserve a woman's health. It does have a life — or "prevent[ion of] death" — exception:
This section shall not prohibit the use by a physician of any procedure that, in reasonable medical judgment, is necessary to prevent the death of the mother, so long as the physician takes every medically reasonable step, consistent with such procedure, to preserve the life and health of the infant. A procedure shall not be deemed necessary to prevent the death of the mother if completing the delivery of the living infant would prevent the death of the mother.
Plaintiff William G. Fitzhugh, M.D., is a board certified obstetrician and gynecologist who is licensed to practice medicine in Virginia. Dr. Fitzhugh performs previability abortions through twenty weeks of pregnancy. He performs some abortions on the premises of plaintiff Richmond Medical Center for Women (RMCW) where he is Medical Director. Dr. Fitzhugh uses several different abortion techniques in his practice. For second trimester abortions, he usually employs the dilation and evacuation (D & E) method. Dr. Fitzhugh asserts that the Act exposes a doctor to criminal liability every time he attempts a D & E abortion, because this procedure always poses the risk of unintentional intact delivery of the fetus to one of the anatomical landmarks specified in the Act.
Shortly before the Act's July 1, 2003, effective date, RMCW and Dr. Fitzhugh sued two Commonwealth Attorneys (the Commonwealth) in district court, challenging the Virginia Act as unconstitutional on its face and seeking to enjoin its enforcement. Ultimately, the district court granted the plaintiffs summary judgment and a permanent injunction. The court concluded that the Act was unconstitutional for five independent reasons: (1) the Act lacks an exception to protect a woman's health; (2) it imposes an undue burden on a woman's right to choose an abortion because "[t]he plain language of the Act bans previability D & Es and would cause those who perform such D & Es to fear prosecution, conviction and imprisonment"; (3) its exception to protect a woman's life is inadequate; (4) it bans the safe completion of miscarriages; and (5) it is unconstitutionally vague. See Richmond Med. Ctr. for Women v. Hicks, 301 F.Supp.2d 499, 513-17 (E.D.Va.2004).
The Commonwealth appealed to this court, and we (by a divided panel) affirmed the district court on the ground that the Act lacked an exception to protect a woman's health. Richmond Med. Ctr. for Women v. Hicks, 409 F.3d 619 (4th Cir. 2005). The petition for rehearing en banc was denied. Richmond Med. Ctr. for Women v. Hicks, 422 F.3d 160 (4th Cir. 2005). The Supreme Court later granted certiorari, vacated our judgment, and remanded for further...
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