Richmond Medical Center for Women v. Hicks

• Decision Date: 03 June 2005
• Docket Number: No. 04-1255.,No. 03-1821.,03-1821.,04-1255.
• Citation: 409 F.3d 619
• Parties: RICHMOND MEDICAL CENTER FOR WOMEN; William G. Fitzhugh, M.D., on behalf of themselves, their staffs, and their patients, Plaintiffs-Appellees, v. David M. HICKS, 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

Page 619

409 F.3d 619

RICHMOND MEDICAL CENTER FOR WOMEN; William G. Fitzhugh, M.D., on behalf of themselves, their staffs, and their patients, Plaintiffs-Appellees, v. David M. HICKS, 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.

No. 03-1821.

No. 04-1255.

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2004.

Decided: June 3, 2005.

William Eugene Thro, Deputy State Solicitor, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellants.

Suzanne Novak, Center for Reproductive Law and Policy, New York, New York, for Appellees.

Jerry W. Kilgore, Attorney General of Virginia, 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, Richmond, Virginia, for Appellants.

Priscilla J. Smith, Center for Reproductive Law and Policy, 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.

OPINION

MICHAEL, Circuit Judge.

This case involves a facial challenge under the Fourteenth Amendment to a Virginia statute that attempts to criminalize "partial birth abortion," which the statute terms "partial birth infanticide." In a summary judgment order the district court declared the statute invalid for several reasons. We affirm because it lacks an exception to protect a woman's health.

I.

A.

Chapters 961 and 963 of the 2003 Acts of the Virginia General Assembly ("the Act") make it a Class 4 felony for a person to knowingly perform "partial birth infanticide." 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). The phrase "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). The Act defines the phrase "substantially expelled or extracted from [the] mother" as (i) when "the infant's entire head is outside the body of the mother" in the case of a headfirst presentation, or (ii) when "any part of the infant's trunk past the navel is outside the body of the mother" in the case of a breech presentation. Id. § 18.2-71.1(D). The Act provides the following exception to the general prohibition:

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.

Id. § 18.2-71.1(E). The Act's ban of certain abortion procedures does not provide an exception for instances in which an otherwise banned procedure is necessary, in appropriate medical judgment, to preserve a woman's health. Indeed, the Virginia General Assembly rejected proposed amendments that would have provided a statutory exception for some circumstances when a woman's health was at risk. See Richmond Med. Ctr. v. Hicks, 301 F.Supp.2d 499, 502 (E.D.Va.2004). The General Assembly failed to include a health exception even though an earlier Virginia statute banning late-term abortions was struck down because it lacked an exception for instances when continuation of a pregnancy poses a threat to a woman's health. See Richmond Med. Ctr. for Women v. Gilmore, 224 F.3d 337, 339 (4th Cir.2000). The Virginia House of Delegates also rejected proposed amendments that would have limited the Act's prohibition to postviability abortions. See Hicks, 301 F.Supp.2d at 502.

The Act challenged in this case excludes the following from the definition of "partial birth infanticide":

(i) the suction curettage abortion procedure, (ii) the suction aspiration abortion procedure, (iii) the dilation and evacuation [(D & E)] abortion procedure involving dismemberment [(disarticulation)] of the fetus prior to removal from the body of the mother, [and] (iv) completing delivery of a living human infant and severing the umbilical cord of any infant who has been completely delivered.

Va.Code Ann. § 18.2-71.1(B). By excepting only a single variant of the D & E procedure, that involving fetal disarticulation prior to removal from the woman's body, the Act prohibits all other D & E variations meeting the statutory definition of "partial birth infanticide." One prohibited variant is the intact D & E, which does not involve disarticulation and in which the fetus is removed from the uterus through the cervix in one pass rather than several. Depending on the presentation of the fetus, an intact D & E proceeds in one of two ways. In the case of a vertex presentation, the physician collapses the fetal calvarium and then extracts the entire fetus through the cervix. In the case of a breech presentation, the physician pulls the fetal trunk through the cervix, collapses the fetal calvarium, and then completes extraction of the fetus through the cervix. A second variation prohibited by the Act is the dilation and extraction (D & X) procedure, which is similar to the breech extraction variant of the intact D & E in all material respects except that it involves the intentional repositioning of the fetus to a breech presentation. Because the intact D & E and D & X procedures are so similar, they are often referred to interchangeably. A third variation prohibited by the Act involves the D & E in which fetal disarticulation occurs outside of the woman's body. Disarticulation generally occurs beyond the cervical os (the lower portion, or opening, of the cervix) as a result of traction against the cervix. However, disarticulation may occur outside of the woman's body when there is little or no space between the cervical os and the vaginal introitus (the vaginal canal) or when the cervical os prolapses (emerges) outside the vaginal introitus. (The Act also criminalizes the treatment of certain incomplete miscarriages.)

Plaintiff William G. Fitzhugh, M.D. is a board certified obstetrician and gynecologist who is licensed to practice medicine in Virginia. Dr. Fitzhugh performs abortions through twenty weeks of pregnancy; he therefore does not perform any postviability abortions. Some of the abortions he performs, particularly intact D & Es and D & Es in which fetal disarticulation occurs outside of the woman's body, are prohibited by the Act. Dr. Fitzhugh performs some of these abortions on the premises of plaintiff Richmond Medical Center for Women (RMCW) where he is Medical Director.

B.

The Act was scheduled to take effect on July 1, 2003. On June 18, 2003, RMCW and Dr. Fitzhugh filed a complaint against two Commonwealth's Attorneys ("the Commonwealth") in the United States District Court for the Eastern District of Virginia, challenging the Act's constitutionality and seeking declaratory and injunctive relief to block its enforcement. The court granted the plaintiffs' motion for a preliminary injunction against enforcement of the Act on July 1, 2003. After the parties engaged in discovery, the plaintiffs filed a motion for summary judgment on September 25, 2003. On February 4, 2004, the district court granted summary judgment to the plaintiffs, declaring the Act unconstitutional and permanently enjoining its enforcement. See Hicks, 301 F.Supp.2d at 517-18. The court held the Act facially invalid under the Fourteenth Amendment for several independent reasons: (1) it lacks an exception to protect a woman's health, (2) it places an undue burden on a woman's right to decide to have an abortion, (3) its life exception is inadequate, (4) it bans — in the absence of a compelling state interest — other safe gynecological procedures such as those used in certain miscarriage presentations, and (5) it is unconstitutionally vague. Id. at 513-17. In its order awarding summary judgment, the district court struck certain evidence proffered by the Commonwealth, specifically, the complete testimony of one expert, selected testimony of another expert, and several exhibits and other documents. The Commonwealth appeals.

II.

The Commonwealth argues that the district court erred when it granted...