Richmond Medical Center for Women v. Herring
| Decision Date | 24 June 2009 |
| Docket Number | No. 04-1255.,No. 03-1821.,03-1821.,04-1255. |
| Citation | 570 F.3d 165 |
| 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; Robert G. Marshall, Virginia Delegate; Kathy J. Byron, Virginia Delegate; M. Kirkland Cox, Virginia Delegate; Thomas D. Gear, Virginia Delegate; William J. Howell, Virginia Delegate; Timothy D. Hugo, Virginia Delegate; L. Scott Lingamfelter, Virginia Delegate; Samuel A. Nixon, Jr., Virginia Delegate; Brenda L. Pogge, Virginia Delegate; R. Lee Ware, Jr., Virginia Delegate; Jill Holtzman Vogel, Virginia Senator; Tom A. Coburn, U.S. Senator; The American Center for Law and Justice, Amici Supporting Appellants, Physicians for Reproductive Choice and Health; Vanessa E. Cullins, Vice President for Medical Affairs, Planned Parenthood Federation of America; Forty-Two Individual Physicians; National Abortion Federation; American Medical Women's Association; Association of Reproductive Health Professionals; Medical Students for Choice; Physicians for Reproductive Choice and Health, 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; Robert G. Marshall, Virginia Delegate; Kathy J. Byron, Virginia Delegate; M. Kirkland Cox, Virginia Delegate; Thomas D. Gear, Virginia Delegate; William J. Howell, Virginia Delegate; Timothy D. Hugo, Virginia Delegate; L. Scott Lingamfelter, Virginia Delegate; Samuel A. Nixon, Jr., Virginia Delegate; Brenda L. Pogge, Virginia Delegate; R. Lee Ware, Jr., Virginia Delegate; Jill Holtzman Vogel, Virginia Senator; Tom A. Coburn, U.S. Senator; The American Center for Law and Justice, Amici Supporting Appellants, Physicians for Reproductive Choice and Health; Vanessa E. Cullins, Vice President for Medical Affairs, Planned Parenthood Federation of America; Forty-Two Individual Physicians; National Abortion Federation; American Medical Women's Association; Association of Reproductive Health Professionals; Medical Students for Choice; Physicians for Reproductive Choice and Health, Amici Supporting Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert F. McDonnell, Attorney General of Virginia, Stephen R. McCullough, State Solicitor General, William C. Mims, Chief Deputy Attorney General, David E. Johnson, Deputy Attorney General, Maureen Riley Matsen, Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellants. Janet Crepps, Center for Reproductive Rights, New York, New York, for Appellees. Patrick M. McSweeney, McSweeney, Crump, Childress & Temple, P.C., Richmond, Virginia; Mailee R. Smith, Denise M. Burke, Americans United for Life, Chicago, Illinois, for Virginia Delegates Robert G. Marshall, Kathy J. Byron, M. Kirkland Cox, Thomas D. Gear, William J. Howell, Timothy D. Hugo, L. Scott Lingamfelter, Samuel A. Nixon, Jr., Brenda L. Pogge, and R. Lee Ware, Jr., and Virginia Senator Jill Holtzman Vogel, and U.S. Senator Tom A. Coburn, Amici Supporting Appellants. Jay Alan Sekulow, Stuart J. Roth, James M. Henderson, Sr., Walter M. Weber, American Center for Law & Justice, Washington, D.C.; Shannon Demos Woodruff, Kristina J. Wenberg, American Center for Law & Justice, Virginia Beach, Virginia, for The American Center for Law and Justice, Amicus Supporting Appellants. Kimberly A. Parker, Katherine A. Gillespie, Wilmer Cutler Pickering Hale and Dorr, L.L.P., Washington, D.C.; Talcott Camp, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York, New York, for National Abortion Federation, American Medical Women's Association, Association of Reproductive Health Professionals, Medical Students for Choice, and Physicians for Reproductive Choice and Health, Amici Supporting Appellees.
Before WILLIAMS, Chief Judge, and WILKINSON, NIEMEYER, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, DUNCAN, and AGEE, Circuit Judges.
Reversed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILLIAMS and Judges WILKINSON, SHEDD, DUNCAN, and AGEE joined. Judge WILKINSON wrote a separate concurring opinion. Judge MICHAEL wrote a dissenting opinion, in which Judges MOTZ, TRAXLER, KING, and GREGORY joined.
In this case, we consider whether Virginia's "Partial Birth Infanticide" Act, Va. Code Ann. § 18.2-71.1 (the "Virginia Act"), is facially unconstitutional.
After the Commonwealth of Virginia enacted the Virginia Act in April 2003, but before its July 1, 2003 effective date, Richmond Medical Center and its owner and medical director, Dr. William Fitzhugh (collectively, "Dr. Fitzhugh"), commenced this action to declare the Act unconstitutional and to enjoin its enforcement. The complaint alleged that the Act (1) impermissibly failed to include an exception for the preservation of the mother's health, and (2) defined the term "partial birth infanticide" "so broadly as to ban the safest and most common second trimester method of abortion, the [standard] dilation and evacuation ("D & E") method, and thus [to] impose an undue burden on the woman's ability to choose abortion."
The district court preliminarily enjoined enforcement of the Virginia Act and thereafter entered summary judgment in favor of Dr. Fitzhugh, declaring the Virginia Act unconstitutional on both grounds alleged by the plaintiffs and permanently enjoining its enforcement. Richmond Medical Center for Women v. Hicks, 301 F.Supp.2d 499, 512-18 (E.D.Va.2004). On appeal, we affirmed by a divided court, Richmond Medical Center for Women v. Hicks, 409 F.3d 619 (4th Cir.2005), and the Commonwealth filed a petition in the Supreme Court for a writ of certiorari.
While this case was pending in the Supreme Court, the Supreme Court decided Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), and held, in the face of similar constitutional challenges, that the federal partial-birth abortion statute, 18 U.S.C. § 1531 (the "Federal Act"), which is similar but not identical in language to the Virginia Act, was facially constitutional. Following its decision in Gonzales v. Carhart, the Supreme Court granted Virginia's petition for a writ of certiorari in this case, vacated our judgment holding the Virginia Act unconstitutional, and remanded this case for reconsideration in light of Gonzales v. Carhart. See Herring v. Richmond Medical Center for Women, 550 U.S. 901, 127 S.Ct. 2094, 167 L.Ed.2d 810 (2007).
On remand, relying on the distinction between the scienter language in the Federal Act and the scienter language in the Virginia Act, we again held the Virginia Act unconstitutional because it "imposes criminal liability on a doctor who sets out to perform a standard D & E that by accident becomes [a prohibited] intact D & E, thereby exposing all doctors who perform standard D & Es to prosecution, conviction, and imprisonment." Richmond Medical Center for Women v. Herring, 527 F.3d 128, 131 (4th Cir.2008) (emphasis added). On the Commonwealth's motion, we voted to rehear this case en banc, thus vacating the three-judge panel decision. See Local Rule 35(c).
We now conclude that insofar as Dr. Fitzhugh mounts a facial challenge against the Virginia Act, the challenge fails because (1) Dr. Fitzhugh's posited circumstance does not present a sufficiently frequent circumstance to render the Virginia Act wholly unconstitutional for all circumstances; (2) the Virginia Act's scienter language, although different from the Federal Act, nonetheless provides sufficient notice to a reasonable doctor of what conduct is prohibited by the statute; and (3) the provisions for a safe harbor and affirmative defenses, as well as the requirement of "an overt act," ensure that the Virginia Act will not create a barrier to, or have a chilling effect on, a woman's right to have a standard D & E or her physician's ability to undertake that procedure without fear of criminal liability. Insofar as Dr. Fitzhugh purports to mount an as-applied challenge, we conclude that he has not presented sufficiently concrete circumstances in which the as-applied challenge can be resolved, recognizing that "[t]he Act is open to a proper as-applied challenge in a discrete case." Gonzales v. Carhart, 550 U.S. at 168, 127 S.Ct. 1610. Accordingly, we reverse the judgment of the district court.
Effective July 1, 2003, Virginia enacted the "Partial Birth Infanticide" Act, which prohibits "kill[ing] a human infant" "who has been born alive," i.e., who has been "completely or substantially expelled or extracted from its mother." Va.Code Ann. § 18.2-71.1(A)-(C).1 The Virginia Act provides that an infant is "substantially expelled or extracted from its mother" when its "entire head is outside the body of the mother" or, in a breech delivery, its "trunk past the navel is outside the body of the mother." Id. § 18.2-71.1(D).2 As distinct from this prohibited procedure, known as "intact D & E," the Virginia Act excludes from its coverage numerous abortion procedures, including the "standard D & E," i.e., "the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal...
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