Women's Medical Professional Corp. v. Taft

• Decision Date: 22 September 2000
• Docket Number: No. C-3-00-368.,C-3-00-368.
• Citation: 114 F.Supp.2d 664
• Parties: WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al., Plaintiffs, v. Bob TAFT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

114 F.Supp.2d 664

WOMEN'S MEDICAL PROFESSIONAL CORPORATION, et al., Plaintiffs, v. Bob TAFT, et al., Defendants.

No. C-3-00-368.

United States District Court, S.D. Ohio, Western Division.

September 22, 2000.

COPYRIGHT MATERIAL OMITTED

Alphonse A. Gerhardstein, Cincinnati, OH, David C. Greer, Dayton, OH, Janet Crepps, New York, NY, for Plaintiffs.

Elizabeth L. Schuster, Karl Schedler, Columbus, OH, Greg Dunsky, Dayton, OH, for Defendants.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOC. # 2); DEFENDANTS, THEIR EMPLOYEES, AGENTS, SERVANTS PRELIMINARILY ENJOINED FROM ENFORCING ANY PROVISION OF SUBSTITUTE HOUSE BILL 351, PENDING FINAL DECISION ON MERITS; CONFERENCE CALL SET FOR THURSDAY, SEPTEMBER 28, 2000, AT 5:00 P.M., TO DETERMINE FURTHER PROCEDURES TO BE FOLLOWED IN THIS LITIGATION

RICE, Chief Judge.

On December 13, 1995, in an opinion preliminarily enjoining a prior attempt by the State of Ohio to prohibit a means of pregnancy termination known as Dilation and Extraction or "partial birth" abortion, this Court stated:

Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of either rational discussion or compromise, as is the ongoing controversy, of which this case is but the latest chapter, over the legality of attempts by the State to regulate abortion — the act of voluntarily terminating a pregnancy, prior to full term.

Women's Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051, 1056 (S.D.Ohio 1995) (Rice, J.).

Nothing that has ensued, in the almost five years that have elapsed since that observation, has lessened either the stridency of the arguments or the sincerity of those holding opposite, seemingly irreconcilable opinions on this issue. The issue presently before the Court is not whether pregnancy termination by the Dilation and Extraction method, commonly known as the partial birth abortion, is moral or otherwise, or whether the attempt to ban such a procedure is or is not good public policy. This Court's opinion on the morality of the procedure in question, or on the subject of pregnancy termination in general, is not relevant to its consideration of the facts presented or the applicable law. Nor is the Court's personal viewpoint on these issues of relevance to or of influence in the decision rendered in this matter. This Court does not sit as a super-legislative body to carry out its own agenda or the morality, the public policy or the will of the people. Rather, this Court's task is to determine whether Substitute House Bill 351 ("HB 351" or "the Act"), the State of Ohio's latest effort to ban this procedure, is in accord with our Constitution, as interpreted by the Supreme Court of the United States. For the reasons which follow, the Court concludes that the Plaintiffs have demonstrated a substantial likelihood that it is not.

The present case presents a facial challenge to the constitutionality of Ohio HB 351, which was to have become effective on August 18, 2000. The Plaintiffs are the Women's Medical Professional Corporation ("WMPC") and Dr. William Mudd Martin Haskell. The Defendants are Ohio Governor Bob Taft, Ohio Attorney General Betty Montgomery and Montgomery County (Ohio) Prosecutor Mathias H. Heck, Jr.

The Plaintiffs commenced the present litigation on July 27, 2000, by filing a Complaint for a Temporary Restraining Order ("TRO") and Preliminary Injunction (Doc. # 1). In their Complaint, the Plaintiffs seek to enjoin the Defendants from enforcing HB 351. With certain exceptions, which will be discussed, infra, HB 351 bans Ohio physicians from performing, or attempting to perform, an abortion procedure identified in the Act as the "partial birth procedure." The Plaintiffs contend that HB 351 is unconstitutional for a number, of reasons. These arguments may be divided into four broad categories. First, the Plaintiffs contend that the Act imposes an unconstitutional "undue burden" on women seeking abortion services in Ohio. Second, they argue that the Act lacks an adequate exception for the health of a woman. Third, they contend that the Act is unconstitutionally vague. Fourth, they assert that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. The Court granted a ten-day TRO on August 17, 2000, prohibiting enforcement of the Act. (Doc. # 4). On September 1, 2000, the Court extended the TRO until Tuesday, September 19, 2000. (Doc. # 16). Thereafter, on September 18, 2000, the Court entered a final extension to noon on September 22, 2000. (Doc. # 31).

In connection with the Plaintiffs' request for injunctive relief, the Court held an oral and evidentiary hearing on September 5-6, 2000. During that proceeding, the Court heard testimony from two medical practitioners, Plaintiff Haskell and Ray Paschall, M.D., who testified as an expert witness for the Defendants. The Court also heard testimony from Barbara Brewer, a clinical psychologist who testified as an expert for the Plaintiffs. In addition, the Court admitted into evidence, by stipulation of the parties, testimony from several other individuals who did not attend the September 5-6, 2000, oral and evidentiary hearing. Those individuals include Rein Siiner, M.D., Paula Hillard, M.D., Mary Campbell, M.D., George Goler, M.D., Haynes Robinson, M.D., Raymond Gasser, M.D., Nancy Romer, M.D., Anthony Levatino, M.D., John Doe # 1, M.D., John Doe # 2, M.D., Jane Doe # 1, who was a patient of Plaintiff Haskell, and John Paulson, who is employed by the Ohio Department of Health. The parties have provided the Court with affidavits, declarations and/or deposition testimony from some of the foregoing individuals. Others testified before the Court in the 1995 case of Women's Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995), which involved the same parties but somewhat different issues. The parties have stipulated to the Court's consideration of extensive excerpts from the testimony and exhibits presented in the 1995 case. The Court has so considered matters from that earlier litigation. Finally, the parties have fully briefed and argued the issues raised in connection with the Plaintiffs' challenge to the constitutionality of HB 351. The Court heard final arguments on the Plaintiffs' Motion for a Preliminary Injunction on September 12, 2000. Having reviewed the parties' respective arguments, the Court turns now to the Plaintiffs' Motion for a Preliminary Injunction.

As a threshold matter, the Court will briefly address three issues that have not been raised by the parties. First, the Court notes that it has federal question jurisdiction under 28 U.S.C. § 1331, because this action involves a federal constitutional challenge to a state statute. Second, the Court finds, and the Defendants have not disputed, that Plaintiff Haskell has standing to bring the present action on behalf of himself and his patients. Given that Plaintiff Haskell intends to continue performing the "partial birth procedure" after HB 351 takes effect, he faces a direct risk of prosecution and, therefore, has standing to seek pre-enforcement review of the Act. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In addition, "[g]iven the close relationship between Plaintiff Haskell and his patients, and given the obstacles which prevent pregnant women from challenging this statute, including a desire for privacy and the imminent mootness of their claims, he may also assert third-party standing and raise the rights of his patients." Voinovich, 911 F.Supp. at 1058 (citing Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion)). Third, based upon the record before it, the Court also concludes, and the Defendants have not disputed, that Plaintiff Haskell has standing to challenge the portion of HB 351 that imposes a post-viability ban on the performance of the "partial birth procedure." As the Court will explain more fully, infra, the question of whether a fetus is viable "is fraught with uncertainty and susceptible to being subsequently disputed by others." Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 205 (6th Cir.1997). Plaintiff Haskell has testified that he performs abortions through the twenty-fourth week of pregnancy. (Tr. 9-6-2000 at 56). On the record before it, the Court cannot say that the twenty-fourth week abortions performed by Plaintiff Haskell will fall outside the Act's definition of post-viability abortions. This is particularly true, given that HB 351 does not employ a presumptive date for the existence of a viable fetus. Rather, the Act defines the term "viable" to mean "the stage of development of a human fetus at which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-sustaining support." Ohio Rev.Code § 2919.151(A)(6); Ohio Rev.Code § 2901.01(B)(1)(c)(ii). In light of this inherently imprecise standard, the Court is unable to conclude, on the present record, that the abortions performed by Plaintiff Haskell at or near the end of the twenty-fourth week of pregnancy fall outside of the range of abortions proscribed by the post-viability portion of the Act. In reaching this conclusion, the Court recognizes that "[t]he time when viability is achieved may vary with each pregnancy[.]" Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). In addition, the record contains evidence indicating that premature infants at twenty-four weeks of age have maintained life outside the womb in neonatal intensive care. (Tr. 9-5-2000 at 126-127) (noting the existence of "quite a few 24-week deliveries"). As a result, the Court finds that Plaintiff Haskell has standing to challenge the post-viability provisions of HB 351. Given that P...