Richmond Medical Center v. Hicks, CIV.A.03CV531.

• Citation: 301 F.Supp.2d 499
• Decision Date: 02 February 2004
• Docket Number: No. CIV.A.03CV531.,CIV.A.03CV531.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Parties: RICHMOND MEDICAL CENTER FOR WOMEN, et al., Plaintiffs, v. David M. HICKS, et al., Defendants.

301 F.Supp.2d 499

RICHMOND MEDICAL CENTER FOR WOMEN, et al., Plaintiffs, v. David M. HICKS, et al., Defendants.

No. CIV.A.03CV531.

United States District Court, E.D. Virginia, Richmond Division.

February 2, 2004.

COPYRIGHT MATERIAL OMITTED

Susan Ann Kessler, Blackburn Conte Schilling & Click PC, Richmond, VA, Suzanne Novak, Priscilla Smith, Nan E. Strauss, New York City, for plaintiffs.

James Christian Stuchell, Siran S. Faulders, Office of the Attorney General, Edward Meade Macon, Assistant Attorney General, Edward Joseph McNelis, III, Rawls & McNelis PC, Richmond, VA, for defendants.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on the plaintiffs' motion for summary judgment. Also pending are plaintiffs' motions to strike (1) selected portions of Dr. Giles' sworn testimony; (2) selected portions of Dr. Seeds' sworn testimony; and (3) exhibits and other documents. The defendants have responded, the plaintiffs have filed replies, the Court has heard oral argument, and this matter is ripe for adjudication.

I. FACTS

The Court finds that the following facts are undisputed by evidence in the record.

Statutory Provisions

1. Chapters 961 and 963 of the 2003 Acts of the Virginia General Assembly, codified at Va.Code Ann. § 18.2-71.1 ("the Act"), make it a Class 4 felony for a person to knowingly perform "partial birth infanticide."

2. In Virginia, a Class 4 felony carries a prison term of up to ten years, and a fine of up to $100,000. Va.Code Ann. § 18.2-10.

3. The Act defines "partial birth infanticide" to mean:

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.

Va.Code Ann. § 18.2-71.1(B).

4. The Act provides the following list of exceptions from that definition:

The term "partial birth infanticide" shall not under any circumstances be construed to include any of the following procedures: (i) the suction curettage abortion procedure, (ii) the suction aspiration abortion procedure, (iii) the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother, or (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).

5. The Act defines the phrase "human infant who has been born alive" as follows:

"human infant who has been born alive" means 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.

Va.Code Ann. § 18.2-71.1(C).

6. The Act defines the phrase "substantially expelled or extracted from its mother" as follows:

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.

Va.Code Ann. § 18.2-71.1(D).

7. Subsection E of the Act provides a limited exception for the life of the woman:

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.

Va.Code Ann. § 18.2-71.1(E).

8. The Act contains no exception to its prohibition of steps taken to complete an abortion or other medical procedure "where it is necessary, in appropriate medical judgment for the preservation of the ... health of the mother." Stenberg v. Carhart, 530 U.S. 914, 931, 937, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Va.Code Ann. § 18.2-71.1.

9. The Virginia General Assembly rejected amendments to the Act that would have provided an exception for some circumstances when the woman's health was at risk. See H.B. 1541, Governor's recommendation, received by House 3/24/03, rejected 4/02/03, 2003 Sess. (Va.2003); S.B. 1205, Governor's recommendation, received by Senate 3/24/03, rejected 4/02/03, 2003 Sess. (Va.2003) (Appendix to plaintiffs' motion for summary judgment, Tabs 4 & 5 ("Pls' App. Tab __")).

10. The Act applies throughout pregnancy, regardless of the gestational age or viability of the fetus. Va.Code Ann. § 18.2-71.1

11. The Virginia House of Delegates rejected amendments offered to limit the Act's abortion ban to post-viability abortions. See H.B. 1541, Amendments 1 and 2 by Del. Ioannou, rejected by House 1/31/03, 2003 Sess. (Va.2003) (Pls' App. Tab 5).

The Applicable Medical Practices

12. Plaintiff Richmond Medical Center ("RMCW") is located in Richmond and also operates a facility in Roanoke and in Newport News. These facilities provide a variety of reproductive health services and gynecological and obstetrical medical services including evacuating the products of conception for women who have had miscarriages and are in need of such assistance. (Fitzhugh Decl. ¶ 10 (Pls' App. Tab 6).) See also 8/22/03 Order, Findings of Fact ("FF") ¶ 10.

13. Plaintiff Dr. William G. Fitzhugh is board-certified in obstetrics and gynecology and is licensed to practice medicine in Virginia. (Fitzhugh Decl. ¶ 1.) Dr. Fitzhugh is and has been the Medical Director of RMCW for more than 25 years. He also has a private practice in obstetrics and gynecology. (Fitzhugh Decl. ¶ 9.) He is also a clinical instructor in the Department of Obstetrics and Gynecology at Virginia Commonwealth University's Medical College of Virginia, located in Richmond, where he provides clinical training to medical students and residents. (Id.)

14. Dr. Fitzhugh performs abortions and treats women who are experiencing incomplete miscarriages at RMCW and at hospitals in the City of Richmond and the County of Henrico. Dr. Fitzhugh's patients come from all parts of Virginia, and some patients come from out of state. (Fitzhugh Decl. ¶¶ 10, 13;) 8/22/03 Order, FF ¶ 11.

15. In some of the cases of women experiencing incomplete miscarriages, the fetus is positioned in the woman's vagina and may show signs of life. Because the umbilical cord of a first and early second-trimester fetus is very short, the safest and most medically appropriate way to complete such a miscarriage is to separate the umbilical cord in order to remove the fetus. (Fitzhugh Decl. ¶ 29.)

16. With respect to his abortion practice at RMCW, Dr. Fitzhugh provides abortions up to thirteen (13) weeks as measured from the first day of the woman's last menstrual period ("Imp"). (Fitzhugh Decl.¶ 10.) He provides abortions through twenty (20) weeks lmp at hospitals within the City of Richmond and at a hospital in the County of Henrico. (Id.)

17. The most common abortion method is the suction curettage or suction aspiration method, in which the physician dilates the woman's cervix, inserts a tube (cannula) through the woman's vagina and into her uterus, and suctions the embryo or fetus and other products of conception through the woman's cervix and vagina. (Fitzhugh Decl. ¶ 15; deProsse Decl. ¶ 20 (Pls' App. Tab 7).) See also 8/22/03 Order, FF ¶ 12. This method is generally used prior to 14 weeks lmp. (Id.)

18. The Act excludes the suction curettage and suction aspiration procedures from criminal liability. Va.Code Ann. § 18.2-71.1.

19. After approximately 14 weeks, the fetus is generally too large to remove by suction alone. (Fitzhugh Decl. ¶ 17; deProsse Decl. ¶ 21.) See also 8/22/03 Order, FF ¶ 14. Dilation and evacuation ("D & E") is the most common method of pre-viability second-trimester abortion, accounting for approximately 96% of all second-trimester abortions in the United States. (deProsse Decl. ¶ 21.) See also 8/22/03 Order, FF ¶ 15; Carhart, 530 U.S. at 924, 120 S.Ct. 2597. As this Court has recognized, the D & E procedure "represents a significant advance in second-trimester abortions." Richmond Med. Ctr. for Women v. Gilmore, 55 F.Supp.2d 441, 480 (E.D.Va.1999).

20. In Carhart, the Supreme Court provided a general description of the D & E method. Generally, that method includes the following steps: "(1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus." 530 U.S. at 925, 120 S.Ct. 2597.

21. The steps taken by a physician performing a D & E are substantially the same today as they were when the Supreme Court decided Carhart, striking down a statute similar to the one at issue in this case, and the same as when this Court decided Richmond Med. Ctr. v. Gilmore. (Giles Dep. 166:21-24 (Pls' App. Tab 2).)

22. When performing a pre-viability D & E procedure, Dr. Fitzhugh typically dilates the woman's cervix with multiple intracervical osmotic dilators, which not only expand the cervix, but also cause it to change forms so that it will be a softer, more open organ. (Fitzhugh Decl. ¶ 17; see also deProsse Decl. ¶ 22.) He then removes the products of conception, including the pre-viable fetus, from the woman's uterus using a combination of suction and forceps. (Fitzhugh Decl. ¶¶ 17, 19; deProsse Decl. ¶ 22; see also Giles Dep. at 29:16-23.)

23. In order to remove the fetus during a D & E,...