Womancare of Southfield, P.C. v. Granholm

• Decision Date: 26 April 2001
• Docket Number: No. 00-CV-70585.,No. 00-CV-70586.,00-CV-70585.,00-CV-70586.
• Citation: 143 F.Supp.2d 849
• Parties: WOMANCARE OF SOUTHFIELD, P.C., Northland Family Planning Clinic, Inc., Northland Family Planning Clinic, Inc. — West, Northland Family Planning Clinic, Inc. — East, Scottsdale Womens Center, and Marshall D. Levine, M.D., Plaintiffs, v. Jennifer M. GRANHOLM, James T. Cherry, Carl L. Marlinga, David G. Gorcyca, and John D. O'Hair, Defendants. and Mark I. Evans, M.D. Planned Parenthood of Mid-Michigan, Planned Parenthood of Southeast Michigan, Planned Parenthood of South Central Michigan, Planned Parenthood Affiliates of Michigan, and Timothy R.B. Johnson, M.D., Plaintiffs, v. Jennifer M. Granholm, and John D. O'Hair, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 849

143 F.Supp.2d 849

WOMANCARE OF SOUTHFIELD, P.C., Northland Family Planning Clinic, Inc., Northland Family Planning Clinic, Inc. — West, Northland Family Planning Clinic, Inc. — East, Scottsdale Womens Center, and Marshall D. Levine, M.D., Plaintiffs, v. Jennifer M. GRANHOLM, James T. Cherry, Carl L. Marlinga, David G. Gorcyca, and John D. O'Hair, Defendants. and Mark I. Evans, M.D. Planned Parenthood of Mid-Michigan, Planned Parenthood of Southeast Michigan, Planned Parenthood of South Central Michigan, Planned Parenthood Affiliates of Michigan, and Timothy R.B. Johnson, M.D., Plaintiffs, v. Jennifer M. Granholm, and John D. O'Hair, Defendants.

No. 00-CV-70585.

No. 00-CV-70586.

United States District Court, E.D. Michigan, Southern Division.

April 26, 2001.

Tracie D. Palmer, David S. Steingold Assoc., Detroit, MI, for Plaintiffs.

R. Philip Brown, Ronald J. Styka, Santiago Rios, Michigan Department of Attorney General Public Health Division, Lansing, MI, Daniel W. Grow, Damm & Tauscher, Detroit, MI, Frank J. Krycia, Macomb County Corporation Counsel, Mount Clemons, MI, Jody L. Strutz, County of Oakland Prosecutor's Office, Pontiac, MI, William G. Pierson, Oakland County Corporation Counsel, Pontiac, MI, for Defendants.

MEMORANDUM OPINION AND ORDER

TARNOW, District Judge.

GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND PERMANENTLY ENJOINING DEFENDANTS FROM ENFORCING MICHIGAN'S "INFANT PROTECTION ACT", 1999 Mich.Pub.Acts 107, CODIFIED AT MICH.COMP. LAW § 750.90g

I. Introduction

These two cases are consolidated and are before the Court on the plaintiffs' Motion for Summary Judgment. Plaintiffs are physicians practicing obstetrics and gynecology, and providers of women's reproductive health services. The sole remaining defendant is Jennifer Granholm, in her official capacity as the Attorney General for the State of Michigan.

On March 9, 2000, the Court issued a preliminary injunction prohibiting Attorney General Granholm and the State of Michigan from enforcing Michigan's "Infant Protection Act", 1999 Mich.Pub.Acts 107, codified at Mich.Comp.Law § 750.90g. The injunction was to remain in effect until further Order of this Court.

The Court finds that Michigan's "Infant Protection Act" fails to include adequate safeguards to protect the health of the pregnant woman. Therefore, the Court GRANTS Plaintiffs' Motion for Summary Judgment and permanently enjoins Attorney General Jennifer Granholm and the State of Michigan from enforcing the "Infant Protection Act", 1999 Mich.Pub.Acts 107, codified at Mich.Comp.Law § 750.90g.

II. Background

The pertinent facts of this case were set forth in detail in this Court's March 9, 2000 Opinion and Order. The standing of the plaintiffs to bring this cause of action, the types and descriptions of the procedures performed, and the language of Michigan's "Infant Protection Act" remain unchanged from March 9, 2000 to the present. Therefore, the Court adopts by reference the findings of fact, the description of the parties, the joint stipulated statements of facts, and the summary of the testimony of Timothy Johnson, M.D., as previously recited at pages 4-26 of the Court's March 9, 2000 Opinion and Order.

III. Standard of Review

Summary judgment, "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law", Fed.R.Civ.P. 56(c).

IV. Analysis

A. Stenberg v. Carhart

On January 14, 2000, the United States Supreme Court granted certiorari in Stenberg v. Carhart, 528 U.S. 1110, 120 S.Ct. 865, 145 L.Ed.2d 725 (2000). The United States Court of Appeals for the Eighth Circuit, in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999), had affirmed the decision of the District Court, declaring Nebraska's state law banning partial-birth abortions to be unconstitutional. The order preliminarily enjoining enforcement of Michigan's Infant Protection Act was entered March 9, 2000. The decision of this Court regarding permanent injunctive relief was stayed pending the Supreme Court's decision in Stenberg v. Carhart.

On June 28, 2000, the United States Supreme Court published its opinion in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). The Supreme Court affirmed the Eighth Circuit, holding that the Nebraska partial-birth abortion statute violated the United States Constitution. The Nebraska statute was declared unconstitutional both because it unduly burdened a pregnant woman's right to choose a pre-viability abortion, and because the statute failed to provide adequate protection to protect both the life and the health of the pregnant woman. Carhart, supra, 530 U.S. at 929-30, 120 S.Ct. 2597.

B. The Michigan Statute

The Michigan "Infant Protection Act", 1999 Mich.Pub.Acts 107, codified at Mich. Comp.Law § 750.90g, states:

Sec. 90g. (1) This section shall be known and may be cited as the "infant protection act".

(2) The legislature finds all of the following:

(a) That the constitution and laws of this nation and this state hold that a live infant completely expelled from his or her mother's body is recognized as a person with constitutional and legal rights and protection.

(b) That a live infant partially outside his or her mother is neither a fetus nor potential life, but is a person.

(c) That the United States supreme court decisions defining a right to terminate pregnancy do not extend to the killing of a live infant that has begun to emerge from his or her mother's body.

(d) That the state has a compelling interest in protecting the life of a live infant by determining that a live infant is a person deserving of legal protection at any point after any part of the live infant exists outside of the mother's body.

(3) Except as provided in subsections (4) and (5), a person who intentionally performs a procedure or takes any action upon a live infant with the intent to cause the death of the live infant is guilty of a felony punishable by imprisonment for life or any term of years or a fine of not more than $50,000.00, or both.

(4) It is not a violation of subsection (3) if a physician takes measures at any point after a live infant is partially outside of the mother's body, that in the physician's reasonable medical judgment are necessary to save the life of the mother and if every reasonable precaution is also taken to save the live infant's life.

(5) Subsection (3) does not apply to an action taken by the mother. However, this subsection does not exempt the mother from any other provision of law.

(6) As used in this section:

(a) "Live infant" means a human fetus at any point after any part of the fetus is known to exist outside of the mother's body and has I or more of the following:

(i) A detectable heartbeat.

(ii) Evidence of spontaneous movement.

(iii) Evidence of breathing.

(b) "Outside of the mother's body" means beyond the outer abdominal wall or beyond the plane of the vaginal introitus.

(c) "Part of the fetus" means any portion of the body of a human fetus that has not been severed from the fetus, but not including the umbilical cord or placenta.

(d) "Physician" means an individual licensed to engage in the practice of allopathic medicine or the practice of osteopathic medicine and surgery under article 15 of the public health code, 1978 PA 368, M.C.L. § 333.16101 to 333.18838.

Any law restricting a woman's right to choose a pre-viability abortion must contain an adequate safeguard to protect the life and health of the pregnant woman. "Since the law requires a health exception in order to validate even a post-viability abortion regulation, it at a minimum requires the same in respect to pre-viability regulation." Carhart, supra, 530 U.S. at 930, 120 S.Ct. 2597, citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) and Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). "[A] State may promote but not endanger a woman's health when it regulates the methods of abortion." Carhart, supra, 530 U.S. at 931, 120 S.Ct. 2597, citing Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-769, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986); Colautti v. Franklin, 439 U.S. 379, 400, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 76-79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); and Doe v. Bolton, 410 U.S. 179, 197, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Plaintiffs, in their motion for summary judgment, assert that the Michigan statute is unconstitutional because it does not include an adequate exception where the health of the pregnant woman may be in jeopardy. The "Infant Protection Act" does state that the Act is not violated if, "in the physician's reasonable judgment [the measures] are necessary to save the life of the mother ..." Mich.Comp.Laws § 750.90g(4). However, the statute fails to contain an exception which would except the physician from liability, if the measures are necessary to protect the health of the pregnant woman.

Federal courts, reviewing state abortion regulations, have held that statutes which seek to regulate abortion must contain an adequate exception to protect the health of the pregnant woman. "The legislature's failure to include the health exception could prevent physicians from exercising appropriate medical judgment as to some post-viability abortions. This has rather obvious constitutional implications." Eubanks v. Stengel, 28 F.Supp.2d 1024, 1042 (W.D.Ky.1998). The district court's decision was affirmed by the Sixth Circuit. Eubanks v. Stengel, et al., 224 F.3d 576 (6th Cir.2000). The Fourth Circuit also affirmed a district court's decision declaring Virginia's partial-birth abortion statute unconstitutional, based in part on the...