The Hope Clinic v. Ryan
| Decision Date | 26 October 1999 |
| Docket Number | 99-2533,Nos. 98-1726,99-2528,s. 98-1726 |
| Citation | 195 F.3d 857 |
| Parties | (7th Cir. 1999) The Hope Clinic, et al., Plaintiffs-Appellees, v. James E. Ryan, Attorney General of Illinois, and Richard K. Devine, State's Attorney of Cook County, Illinois,Defendants-Appellants. Dennis D. Christensen, et al., Plaintiffs-Appellants, v. James E. Doyle, Attorney General of Wisconsin, and Diane M. Nicks, District Attorney for Dane County, Wisconsin, Defendants-Appellees |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 8702--Charles P. Kocoras, Judge.
Appeals from the United States District Court for the Western District of Wisconsin. No. 98-C-0305-S--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted]
[Copyrighted Material Omitted] Before Posner, Chief Judge, and Coffey, Flaum, Easterbrook, Manion, Kanne, Rovner, Diane P. Wood, and Evans, Circuit Judges.*
We must decide whether state laws prohibiting partial-birth abortions are unconstitutionally vague or unduly burden women's rights. Acting without an evidentiary hearing, a district court held the Illinois statute unconstitutional and entered a permanent injunction. Hope Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill. 1998). But after a trial, another district court concluded that the Wisconsin statute is valid. Planned Parenthood of Wisconsin v. Doyle, 44 F. Supp. 2d 975 (W.D. Wis. 1999). A panel of this court earlier had ordered preliminary relief against Wisconsin's law, see Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (7th Cir. 1998), and plaintiffs say that this decision, applying Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), justifies permanent injunctions against both states' rules. To ensure consistency, we heard the appeals en banc. We conclude that both laws can be applied in a constitutional manner. Whether that will occur depends on state courts, which alone can settle questions about the construction of the statutes. To ensure that physicians are not deterred from performing other medical procedures while issues wend their way through state tribunals, we hold that both sets of plaintiffs are entitled to injunctive relief that will limit the statutes' application to the medical procedure that each state insists is its sole concern.
Induction, suction curettage, and dilation and evacuation (D&E) are the principal methods of performing abortions in the United States. Prohibiting any one of these would conflict with the right of abortion recognized by cases such as Casey, 505 U.S. at 877 (plurality opinion) (), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79 (1976) (). Our cases involve an uncommon procedure known to the medical community as "intact dilation and extraction" or just "dilation and extraction (D&X)," and to the public as "partial-birth abortion."
Some medical background is essential to understanding the issues. Induction means inducing preterm labor, which causes the expulsion of the conceptus. Methotrexate or mifepristone (ru-486, now in clinical trials), in combination with misoprostol, can be used for this purpose early in pregnancy; saline amniocentesis and injected prostaglandins serve the same function in the second trimester. Suction curettage (vacuum aspiration), the most common surgical method of abortion early in pregnancy, refers to evacuation of the uterine cavity; the embryo or fetus is separated from the placenta either by scraping or vacuum pressure, then is removed by suction. When these methods are inappropriate, or do not work, physicians employ the D&E procedure. To perform a D&E, the physician dilates the cervix and dismembers the fetus inside the uterus using forceps. Fetal parts are removed with forceps or by suction.
A D&X is a variant of a D&E in which the fetus is removed without dismemberment. The American College of Obstetricians and Gynecologists (ACOG) defines D&X as follows: "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; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus." Martin Haskell, the physician who developed the D&X procedure, see Dilation and Extraction for Late Second Trimester Abortion (1992), reprinted in 139 Cong. Rec. E1092 (Apr. 29, 1993), believes that how the head is diminished in size so that it can pass through the cervix is not important: mechanically crushing the skull serves the same end as evacuating its contents, which causes its collapse. It is this combination of coming so close to delivering a live child with the death of the fetus by reducing the size of the skull that not only distinguishes D&X from D&E medically but also causes the adverse public (and legislative) reaction. Opponents deem the D&X procedure needlessly cruel and bordering on infanticide, and all three states in this circuit have enacted statutory restrictions.
The statute in Illinois has three sections with legal significance:
720 ILCS sec.513/5. Definitions
In this Act: "Partial-birth abortion" means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery. The terms "fetus" and "infant" are used interchangeably to refer to the biological offspring of human parents.
720 ILCS sec.513/10. Partial-birth abortions prohibited
Any person who knowingly performs a partial-birth abortion and thereby kills a human fetus or infant is guilty of a Class 4 felony. This Section does not apply to a partial-birth abortion that is necessary to save the life of a mother because her life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, provided that no other medical procedure would suffice for that purpose.
720 ILCS sec.513/15. Civil action
The maternal grandparents of the fetus or infant, if the mother has not attained the age of 18 years at the time of the abortion, may in a civil action obtain appropriate relief unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion. The relief shall include money damages for all injuries, psychological and physical, occasioned by the violation of this Act and statutory damages equal to 3 times the cost of the partial-birth abortion.
The Indiana statute defines "partial-birth abortion" in identical terms. Ind. Code sec.16- 18-2-267.5. Like Illinois it forbids partial- birth abortions unless that procedure is necessary to save the mother's life, and no other procedure would suffice. Ind. Code sec.16-34-2- 1(b). The Indiana statute has never been challenged and has been in effect since July 1, 1997.
Wisconsin has taken a slightly different approach. Its statutes provide:
Wis. Stat. sec.895.038 Partial-birth abortions; liability.
(1) In this section:
(a) "Child" has the meaning given in sec.940.16 (1) (a).
(b) "Partial-birth abortion" has the meaning given in sec.940.16 (1) (b).
1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.
2. The father of the child aborted by the partial-birth abortion.
1. The person consented to performance of the partial-birth abortion.
2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of sec.940.225, 944.06, 948.02, 948.025, 948.06 or 948.09 that was committed by the person.
(3) The relief available under sub. (2) shall include all of the following:
(a) If the abortion was performed in violation of sec.940.16, damages arising out of the performance of the partial- birth abortion, including damages for personal injury and emotional and psychological distress.
(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.
(4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion. Wis. Stat. sec.940.16 Partial-birth abortion.
(a) "Child" means a human being from the time of fertilization until it is completely delivered from a pregnant woman.
(b) "Partial-birth abortion" means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.
(3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.
Wisconsin's definition of partial-birth abortion is substantially the same as Illinois', but the mental-state elements differ, as do the maximum penalties: Illinois makes unjustified partial- birth abortion a Class 4 felony, with a...
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