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.
Nos. 03-1821, 04-1255
United States Court of Appeals, Fourth Circuit
Argued: Oct. 28, 2008. Decided: June 24, 2009.
570 F.3d 165
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.
The Sixth Circuit Court of Appeals, by contrast, supports assessing an apportioned amount of filing fees in joint-prisoner actions. The Sixth Circuit addressed the issue of how to assess fees and costs in a two-prisoner suit. See Talley-Bey v. Knebl, 168 F.3d 884, 885 (6th Cir. 1999). It affirmed a district court‘s division of costs and fees between two prisoners. Id. at 887. It noted that “any fees and costs that a district court or that we may impose must be equally divided among all the participating prisoners.” Id. (emphasis added).
I would assess an apportioned fee among the fourteen prisoners to satisfy the $450 appellate-docketing fee. This would satisfy both
ARGUED: William Eugene Thro, Office of the Attorney General of Virginia, Rich-
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.
OPINION
NIEMEYER, Circuit Judge:
In this case, we consider whether Virginia‘s “Partial Birth Infanticide” Act,
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 (2007), and held, in the face of similar constitutional challenges, that the federal partial-birth abortion statute,
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).
I
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.”
ment of the fetus prior to removal from the body of the mother.”
In his complaint challenging the Virginia Act, Dr. Fitzhugh alleged that “[b]ecause of the Act‘s breadth and vagueness, the Virginia Commonwealth‘s Attorneys statewide may differ widely over what conduct they believe is proscribed by the Act. The Act thus subjects physicians to the risk of arbitrary and discriminatory prosecution.” He also pointed out that the Act does not permit a physician “to protect a woman from damage to her health” inasmuch as the statute only contains exception to protect the woman‘s life. He summarized, “by prohibiting or severely restricting physicians from performing the most common, least expensive, and safest second trimester abortion procedures, the Act impermissibly restricts women‘s ability to obtain abortions.”
The district court accepted Dr. Fitzhugh‘s arguments and ruled that the Virginia Act was facially unconstitutional and enjoined its enforcement. 301 F. Supp. 2d at 517. The court concluded that the Act is unconstitutional “because it fails to contain a health exception,” id. at 513, and because the Act “places an undue burden on women‘s constitutional right to choose an abortion” by banning “pre-viability D & E‘s” and by “caus[ing] those who perform such D & E‘s to fear prosecution, conviction and imprisonment,” id. at 515.
After the district court entered judgment and we affirmed, the Supreme Court decided Gonzales v. Carhart, 550 U.S. 124 (2007), rejecting similar challenges to the Federal Act,
The record in this case shows that each year, Dr. Fitzhugh performs about 4,000 first-trimester abortions and about 225 second-trimester abortions. For second-trimester abortions, Dr. Fitzhugh usually uses the standard D & E method in which the mother‘s cervix is dilated for 24 hours and then the fetus is evacuated from the mother in parts. As the Supreme Court explained in Gonzales v. Carhart, a doctor performing a standard D & E procedure can take from 10 to 15 passes through the uterus to remove all of the parts. See Gonzales v. Carhart, 550 U.S. at 150-51. The Court distinguished the “standard D & E” from an “intact D & E” because in a standard D & E, “the doctor intends to remove the fetus in parts from the outset.” Id. at 151 (emphasis added).
Dr. Fitzhugh testified that in his practice, between 75 to 85% of the second-trimester abortions he performs are standard D & E procedures. “Occasionally,” he might use other procedures. But “rarely” does a fetus emerge “intact” to the anatomical landmarks of the Federal and Virginia Acts. He estimated such an accidental emergence of the fetus occurs 10% of the time, but he was unable to cite any instance of the scenario occurring within the previous month or even the previous year. Even more rare, “less than one-half percent” of the time, according to Dr. Fitzhugh, the fetus emerges to the anatomical landmark up to its neck and its head becomes lodged in the woman‘s cervix. In that circumstance, Dr. Fitzhugh crushes the fetal skull to remove the fetus, because otherwise, the “woman‘s life would be at risk.” If an intact fetus emerged head first through the cervix, it would be delivered intact, and the Act would require that it not be deliberately destroyed. Dr. Fitzhugh explained, however, that in performing standard D & Es, he does not see
Describing his practice generally, Dr. Fitzhugh testified that he always intends to do the standard D & E procedure—in which the fetus is removed in parts. “Very rarely do you get a whole—you do get a whole fetus out sometimes, but that‘s very rare.” But Dr. Fitzhugh contends that when he does receive an intact fetus, he “cannot know at the outset of a standard D & E procedure whether [the] prohibited procedure will result.” He asserts that if the Virginia Act were to take effect, “[his] only options would be to cease performing standard D & E procedures or to violate the Virginia Ban and then challenge its constitutionality in a criminal enforcement proceeding.”
II
Dr. Fitzhugh argues principally that the Virginia Act is facially unconstitutional because it imposes an undue burden on a woman‘s ability to have an abortion using the standard D & E method. He asserts that the standard D & E method is the most common and safest method for a second-trimester abortion and that the Virginia Act, unlike the Federal Act, imposes criminal liability for the performance of an “accidental” intact D & E—i.e., for “procedures that are intended to result in standard D & Es but inadvertently result in intact D & Es.” Because of the alleged facial deficiencies in the Virginia Act, Dr. Fitzhugh contends that the district court was correct in finding a complete invalidation of the Act. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-30 (2006).
Virginia contends that the district court erred in invalidating the statute on its face, arguing (1) that the district court should not have entertained a facial challenge alleging over-breadth in the abortion context; (2) that “abortion statutes must be construed to avoid constitutional problems“; and (3) that “if an abortion statute has some constitutional applications, it should not be invalidated in all applications.”
The Supreme Court has, as a policy matter, expressed a strong preference for avoiding facial challenges to statutes and has held, in the abortion context, that facial challenges should not be entertained except where the challenged statute “will operate as a substantial obstacle to a woman‘s choice to undergo an abortion” “in a large fraction of the cases in which [the statute] is relevant.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895 (1992). The record in this case does not satisfy that standard as Dr. Fitzhugh does not demonstrate that the Virginia Act criminalizes standard D & Es that accidentally become intact D & Es “in a large fraction of the cases in which [the Virginia Act] is relevant.” Id. Additionally, the Virginia Act, while different from the Federal Act, which was upheld in Gonzales v. Carhart, nonetheless provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability. Accordingly, it does not impose an undue burden on a woman‘s right to choose an abortion and is therefore constitutional. We address these points in order.
A
With increasing frequency, the Supreme Court has expressed caution about determining the constitutionality of statutes in the context of facial challenges. See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-51 (2008)
Article III, however, extends the jurisdiction of courts only to cases and controversies, thus precluding courts from issuing advisory opinions or opining on constitutional issues not before the court. Thus, the most basic functions of the court as interpreter of the Constitution and the ultimate arbitrator of disputes exist in a tenuous balance meant to empower and simultaneously restrain the courts. See Richard H. Fallon, Jr., Marbury and the Constitutional Mind: Bicentennial Essay on the Wages of Doctrinal Tension, 91 Cal. L. Rev. 1, 34 (2003) (recognizing that “the tension between Marbury‘s private-rights and special-functions faces emerges from even a cursory reflection on Marbury itself“). It is therefore not surprising that an apparent division has resulted between those cases in which constitutional challenges are mounted only to test a facial reading of the statute (“facial” challenges) and those cases in which constitutional challenges are mounted, based on a developed factual record and the application of a statute to a specific person (“as-applied” challenges).
The idea supporting facial challenges derives from the principle that “no one may be judged by an unconstitutional rule of law.” Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 238 (1994). From that idea evolves the notion that courts can efficiently address constitutional concerns of a large group without engaging in the long and unwieldy process of case-by-case analyses. See id. at 277; see also David H. Gans, Strategic Facial Challenges, 85 B.U. L. Rev. 1333, 1352-53 (2005). And thus facial challenges are justified where as-applied adjudication is thought to be “inadequate to protect constitutional norms.” Gans, 85 B.U. L. Rev. at 1337.
But Article III most centrally requires that a court begin with a case, and usually a case involving concrete facts and allegations of harm caused by the defendant that can be redressed by the court.
The focus of concern must be whether the plaintiff is entitled to relief. To adjudicate a case, however, a court will invoke legal doctrine, typically as reflected in general rules, principles, or tests. Moreover, the application of doctrine—including the processes of reasoning necessary to resolve the dispute—will sometimes unmistakably, even necessarily, yield the conclusion that a statute is invalid, not merely as applied to the facts, but more generally or even in whole. In such cases, facial invalidation occurs as an outgrowth of as-applied adjudication.
Richard H. Fallon, Jr. As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1337 (2000) (footnote omitted). But “[i]f a statute has valid applications and no harm occurs in using case-by-case adjudication,
Thus, slipping into the embrace of a facial challenge can tend to leave behind the limitations imposed by Article III and, indeed, to trample on legislative prerogatives, in violation of separation of powers principles. Moreover, as the Supreme Court has observed, “Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks.” Sabri v. United States, 541 U.S. 600, 608-09 (2004).
Accordingly, the Supreme Court has, as a policy matter, expressed a strong preference for avoiding facial challenges. As the Court recently explained:
Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “‘anticipate a question of constitutional law in advance of the necessity of deciding it‘” nor “‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.‘” Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”
Washington State Grange, 128 S. Ct. at 1191 (citations omitted); see also Fallon, As-Applied and Facial Challenges, 113 Harv. L. Rev. at 1331 (noting that the Supreme Court prefers “fact-specific, case-by-case decisions” because “full specification of the statute‘s meaning require[s] a series of judgments concerning the extent to which it should be read literally or purposively (for example, to avoid constitutional difficulties) and how it would apply to the gamut of imaginable fact situations“); id. at 1368 (noting that “the full meaning of a statute frequently is not obvious on the occasion of its first application“).
The proper implementation of the Supreme Court‘s policy preference, however, has not been governed by well defined criteria. Because a facial challenge can result in finding an act wholly invalid, the Court has observed that the act cannot be found facially unconstitutional if it operates constitutionally in some circumstances. See United States v. Salerno, 481 U.S. 739, 745 (1987). Thus the Court announced that “the [facial] challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [challenged] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” Id. Yet when the Court considered a facial challenge to Pennsylvania‘s Abortion Control Act, it applied a somewhat different standard, without mentioning Salerno, stating that because “in a large fraction of the cases,” the Pennsylvania statute “will operate as a substantial obstacle to a woman‘s choice to undergo an abortion,” the statute is facially invalid. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895 (1992). But after Casey, the Court again considered, in a more complete analysis, the appropriate circumstances under which a
Under United States v. Salerno, 481 U.S. 739, 745 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “‘plainly legitimate sweep.‘” Washington State Grange, 552 U.S. at 449 (alteration in original) (citations omitted); see also Crawford v. Marion County Election Bd., 553 U.S. 181, 202-03 (2008) (Stevens, J., plurality opinion) (reciting the standard that a statute must lack “a plainly legitimate sweep“).
Urging us to apply the “no set of circumstances” or the “plainly legitimate sweep” standard, the Commonwealth of Virginia contends in its brief that the difference between the two is more theoretical than substantive—resting on a difference between “always unconstitutional and almost always unconstitutional.” We need not, however, attempt to resolve the uncertainty regarding the appropriate criteria for entertaining facial challenges in this case, because, as we explain, Dr. Fitzhugh cannot successfully mount a facial challenge to the Virginia Act even under the more relaxed “large fraction of the cases” test applied in Casey.
B
Under the Casey standard, Dr. Fitzhugh must show that the Virginia Act is unconstitutional in criminalizing standard D & Es that accidentally become intact D & Es “in a large fraction of the cases in which [the Virginia Act] is relevant.” Casey, 505 U.S. at 895. This showing is not sufficiently supported by the record. As the Supreme Court has stated, an intact D & E is almost always a conscious choice and almost never accidental:
The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. And intact D & E is usually described as involving some manner of serial dilation.3 Doctors who do not seek to obtain this serial dilation perform an intact D & E on far fewer occasions. See, e.g., Carhart, 331 F. Supp. 2d 805, 857-858 (“In order for intact removal to occur on a regular basis, Dr. Fitzhugh would have to dilate his patients with a second round of laminaria“). This evidence belies any claim that a standard D & E cannot be performed without intending or foreseeing an intact D & E.
Gonzales v. Carhart, 550 U.S. at 155 (emphasis added) (citations omitted).
The medical evidence in this case is nearly identical to that presented in Gonzales v. Carhart, where Dr. Fitzhugh was also a plaintiff and presented similar evidence. The record in this case reveals that generally, standard D & Es represent 96% of abortions after the first-trimester, and Dr. Fitzhugh testified that in his practice, standard D & Es represent 75 to 85% of his second-trimester abortions. Thus the vast majority of the procedures for
It is the rare circumstance when the fetus in breech position emerges intact to its navel on which Dr. Fitzhugh relies to mount a facial challenge to the Virginia Act prohibiting the knowing performance of an intact D & E. But Gonzales v. Carhart requires that we evaluate the constitutionality of the Act and appropriateness of the facial challenge based on “all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications.” 550 U.S. at 168. As the Court explained:
It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. [I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.
Id. (alteration in original) (internal quotation marks omitted).
Yet, even in that rare circumstance identified by Dr. Fitzhugh, he need not violate the Virginia Act. Dr. Charles deProsse, Dr. Fitzhugh‘s expert witness, stated that when the fetus appears at the cervix head first and passes the anatomical landmarks, there is never a need to perform an overt act to kill it, as it can simply be removed from the woman intact. And in the rare event that the fetus appears at the cervix in breech position and its skull becomes lodged in the cervix, the woman‘s life is in danger, as Dr. Fitzhugh testified, and the doctor may take any step within reasonable medical judgment that is necessary to prevent the mother‘s death. See
As a result, there is little or no evidence in the record suggesting the inevitability of the “accidental” intact D & E abortion that would violate the Virginia Act, and to the extent that such a circumstance might arise in a rare case, the doctor has adequate alternatives so as to preclude a finding on a facial challenge that the statute is unconstitutional in “a large fraction” of the cases in which it is relevant. To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstance presented by Dr. Fitzhugh is not appropriate under any standard for facial challenges.
C
Moreover, the Virginia Act, even though somewhat different from the Federal Act,
The Federal Act applies to any physician who “knowingly[,] deliberately and intentionally vaginally delivers a living fetus ... for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus,” and who “performs the overt act.”
In contrast to the Federal Act, the language of the Virginia Act does not preclude such liability. Virginia Code
Despite the fact that the Virginia Act is broader in scope than the federal statute, covering accidental intact D & Es, it is neither unconstitutionally vague nor unduly burdensome. The Virginia Act sufficiently cabins the narrow set of situations in which a doctor could incur criminal liability and therefore does not impermissibly chill the performance of allowed procedures. The Court in Gonzales v. Carhart clearly enunciates the standard a statute must meet so as not to be unconstitutionally vague:
The [federal] Act provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Indeed, it sets forth “relatively clear guidelines as to prohibited conduct” and provides “objective criteria” to evaluate whether a doctor has performed a prohibited procedure. Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513, 525-26 (1994). Unlike the statutory language in Stenberg v. Carhart, 530 U.S. 914 (2000), that prohibited the delivery of a “‘substantial portion‘” of the fetus—where a doctor might question how much of the fetus is a substantial portion—the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. Stenberg, 530 U.S. at 922. Doctors performing D & E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability.
550 U.S. at 149.5 Doctors, knowing when and how they might incur liability, need not be inhibited from performing permissible standard D & E procedures because the Virginia Act is plain as to how that liability may be avoided.
In the circumstances where a standard D & E results in a full, intact birth, the Virginia Act makes clear that a doctor will incur liability only if the doctor performs any deliberate act “intended to kill” the fetus that has just been completely expelled from the mother. Nothing in the record or the Act supports any doubt as to the actions a doctor may or may not take to avoid criminal liability if a complete expulsion of the fetus occurs.
The circumstance of a partial expulsion of a fetus from the mother presents a more complicated scenario under the language of the Virginia Act. But this scenario does not create any constitutional infirmity because the Act exempts a doctor from liability if the mother‘s life is in danger and makes clear to the doctor the
Finally, in the rare circumstance where the mother‘s life is not in danger and the fetus has been partially expelled to an anatomical landmark, the statute clearly prohibits the doctor from completing the abortion by taking a deliberate act to kill the fetus. In this circumstance, however,
Thus, Dr. Fitzhugh‘s concern that a doctor could incur liability under the Virginia Act for performing any act that ultimately kills the fetus, regardless of whether the doctor intends to kill the fetus or not, is unfounded. The Virginia Act, like the Federal Act, makes a clear distinction between the acts necessary to deliver the fetus and the prohibited overt acts that destroy the fetus—a distinction found important in Gonzales v. Carhart. See 550 U.S. at 153 (“This distinc-
tion matters because, unlike intact D & E, standard D & E does not involve a delivery followed by a fatal act“).
In the Virginia Act, a partial birth infanticide is defined as a “deliberate act that is intended to kill a human infant who has been born alive.”
Moreover, the Supreme Court noted in Gonzales v. Carhart that “[t]he law need not give abortion doctors unfettered choice in the course of their medical practice,” 550 U.S. at 163:
The government may use its voice and its regulatory authority to show its profound respect for the life within the woman ... Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
Id. at 157-58. Thus, in the rare circumstance where the fetus is partially expelled from the mother and the mother‘s life is not in danger, the Virginia Act clearly delineates when a doctor will incur liability, while, at the same time, extending protection to a fetus‘s life. This limited circumstance creates no barrier to, or 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.
D
In short, the posited rare circumstance where a fetus accidentally emerges to an anatomical landmark intact and alive and its head then becomes lodged in the cervix has been noted by the Supreme Court to occur rarely, if ever—a fact supported also in the record here—and this fact makes a facial challenge on this basis improper. The possibility of this rare circumstance certainly does not justify rendering invalid the Virginia Act for all other circumstances.
Additionally, while the Virginia Act has a broader scope than the Federal Act, the Virginia Act is nonetheless constitutional. The Act clearly delineates the rare circumstances in which a doctor will incur liability, thus enabling a doctor to perform a standard D & E without fear that accidental emergence of the fetus to an anatomical landmark will present a Morton‘s fork, where the doctor must choose between criminal liability or care that the doctor believes is not in the best interest of the patient.
For these reasons, we reject Dr. Fitzhugh‘s facial challenge of the Virginia Act.
In addition to mounting a facial challenge to the Virginia Act, Dr. Fitzhugh contends that he is mounting an as-applied challenge, although the Virginia Act has never been applied, nor threatened to be applied, to anyone and the record contains no concrete factual circumstance to which Dr. Fitzhugh can claim the Act applies unconstitutionally. He has not indicated that he has any particular patient in mind, nor any discrete factual circumstance that is detailed by medical records or other similarly concrete evidence. Moreover, Dr. Fitzhugh has testified generally that the circumstances in each of his cases are unique, and he cannot determine as a general matter how the Virginia Act might apply. As he testified:
Like other physicians, I decide how to remove the fetus during a particular abortion procedure based on the clinical situation, the condition of the cervix and the uterus, the presentation and size of the fetus, the overall health of the patient, and other medical factors.
This record does not present the concrete facts necessary to create a live case or controversy so as to be able to show “that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the [Virginia] Act must be used.” Gonzales v. Carhart, 550 U.S. at 167.
We have resolved Dr. Fitzhugh‘s facial constitutional challenges to the Virginia Act—challenges that might be assertable not only by him but also by others in his situation. But to go further and find the Virginia Act unconstitutional in particular factual circumstances requires a more complete and readily identifiable set of facts that can be evaluated and therefore that draws on a more nuanced application of the Virginia Act. We conclude that in this case, with its record, an as-applied challenge cannot be addressed.
For the reasons given, the judgment of the district court is REVERSED.
WILKINSON, Circuit Judge,
concurring:
I am happy to join Judge Niemeyer‘s fine opinion in this case. As the opinion mentions, the Supreme Court remanded our previous decision for “further consideration” in light of Gonzales v. Carhart, 550 U.S. 124 (2007). Herring v. Richmond Med. Ctr. for Women, 550 U.S. 901 (2007). It is doubtful that, by “further consideration,” the Supreme Court meant avoiding the plain import of Gonzales v. Carhart and finding constitutional infirmities where none exist. To the contrary, proper reconsideration requires that we uphold Virginia‘s statute because it is similar in its critical respects to the federal statute upheld by the Supreme Court.
Indeed, there is substantial congruity between the two statutes. The Virginia statute applies to any person who “knowingly performs partial birth infanticide,”
There is, to be sure, the one difference between the two statutes. If a physician intends at the outset to perform a standard D & E, and if the fetus is accidentally
Moreover, Gonzales v. Carhart makes clear that bringing a facial challenge in this case was inappropriate from the start. 550 U.S. at 167. Carhart pointedly cautions that we should not “resolve questions of constitutionality with respect to each potential situation that might develop.” Id. at 168. Here, as in Carhart, we are asked to strike down a statute in its entirety based on nothing more than rare and speculative applications, none of which have been presented in this case with the concreteness necessary to support a facial or for that matter an as-applied attack. Indeed, the difference in application between the Virginia and federal statutes is hypothetical at best: the accidental emergence of the intact fetus to an anatomical landmark during a standard D & E is rare, to say the least. Virginia‘s statute is constitutionally valid in almost all foreseeable circumstances, and we should not overstep our institutional bounds to invalidate it based on the off chance that an unconstitutional scenario might someday develop.
Putting issues of statutory interpretation aside, I believe that the majority also correctly touches on a more important concern: that matters of such medical complexity and moral tension as partial birth abortion should not be resolved by the courts, with no semblance of sanction from the Constitution they purport to interpret. Indeed, the sheer mass of medical detail summoned in this case has led us far beyond the ambit of our own professional competence. And it obscures the central question. This is a brutal business for which we are asked to provide constitutional protection, and nothing in law or precedent requires that we do so. To explain that belief requires consideration of three time periods: past, present, and future.
Past
It is inconceivable that the founding generation or the drafters of the Fourteenth Amendment thought that their Constitution dealt with the subject of partial birth abortion. The text of the Constitution does not touch on partial birth abortion, much less sanctify it. There was nothing in the debates leading to the Constitution‘s or the Amendment‘s ratification that even approached the matter or anything fairly analogous to it. And if historical practice is any guide, our forebears would have been amazed to discover that the Constitution had whisked the issue of partial birth abortion from the legislative branch and through some mysterious process assigned it to the courts.
Indeed, it is unthinkable the Framers meant to put their imprimatur on a singularly controversial method of abortion so unconnected to those struggles that led to the formation of this nation. Nor does protection for this method of abortion find a foothold in the ideals of equality and liberation from bondage that motivated the
Present
Controversy over abortion has raged in the decades since Roe v. Wade, 410 U.S. 113 (1973). In truth, the matter of early-term abortions is a difficult and intractable one. On one hand, the choice of a female to abort a fetus is not only intimate but agonizing. No one wants to see a ban drive young women into unsafe circumstances. I understand the argument too that a momentary lapse in judgment should not be the occasion for severe burdens that may handicap a woman‘s education and career throughout life. See Gonzales v. Carhart, 550 U.S. at 171-72 (Ginsburg, J., dissenting). On the other hand, it is unsettling to tamper with the most sacred of life‘s cycles and disquieting for those here on earth to pull the ladder up on those who would join the human company. But it is one thing to say that abortions present difficult questions as a matter of policy, and quite another to say that those questions should be resolved as a matter of constitutional law.
Indeed, the very difficulty of the issue commends itself to legislative compromise. It is in representative bodies where those who support and those who oppose abortion have the best chance for an airing of their honest beliefs. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part). Those who would strike Virginia‘s statute as unconstitutional would take from them that chance and allow the people little voice on an issue where moral, religious, and philosophical beliefs have taken such deep root.
The majority and dissenting opinions in this case agree that the state may proscribe an intact D & E—in which an intact fetus is partially delivered and then killed—that is intended from the outset. They disagree, however, as to whether the state may also proscribe deliberately killing a fetus if a standard D & E—in which the fetus is meant to be extracted from the uterus in pieces—accidentally becomes an intact D & E and if the life of the mother is not then in danger. To invalidate Virginia‘s statute on its face solely because it applies in this highly unusual circumstance is to say that courts have the ability not merely to create non-textual rights but to oversee their infinite permutations. To say further that the Virginia legislature cannot act to preserve humane ideals of protecting life not only traduces the views of past generations but denies present generations the opportunity to act upon the best and noblest of impulses.
Future
All civilizations will be measured in the fullness of time. Perhaps fine art, great invention, sustained prosperity, or enhanced longevity mark the quality of civilized life. Perhaps, I say, because there must be something more. How a society treats its most vulnerable members may do more than grandiosity to shape its last-ing worth. A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection. So we can talk at length about facial challenges and as-applied challenges, and “standard D & E” procedures and “intact D & E” procedures, and “anatomical landmarks,” and “disarticulation,” and “fetal demise.” And we can deploy this terminology to disguise
The future, however, will not be similarly misled. The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.
Others may see this issue differently, and they possess the means to enact their genuine convictions. As abhorrent as I find the procedure at issue, I would not deny the ability of democratic majorities to sanction it in law. It is the democratic process that enhances the mutual respect through law that both sides to this charged debate must work to achieve. But to jump from legislative enactment to constitutional edict is a leap too far. To say that our founding document and fundamental values affirmatively sanction this procedure—based on an argument over the precise timing of a doctor‘s intent to extinguish the existence of an emerging infant—is to invite coming generations to judge harshly the coldness of our ways.
My fine colleague in dissent expresses his view that this concurrence represents some disagreement on my part with the Supreme Court‘s abortion jurisprudence. Post at 197-98. I would remind him, however, that it is I who would follow the Supreme Court‘s clear instructions regarding the inadvisability of facial challenges and the Supreme Court‘s decision in Gonzales v. Carhart which upheld a federal statute closely akin to the one that my dissenting colleague would strike down.
The finale to my friend‘s dissent misses the point. This case is not about abortion generally, but rather the particular practice of partial birth abortion to which the Virginia statute addresses itself. As to this practice, I have no hesitancy in expressing my personal opposition, but only to underscore the point that I would respect completely a democratic judgment that runs contrary to my view. The dissent notes the moral complexity of the abortion issue, a proposition with which I agree. The dissent embraces certain of Dr. Fitzhugh‘s empirical assertions, the validity of which I am in no position to judge. But both the moral debate and the empirical assertions caution yet once more against the loss of all faith in our federal system, the foreclosure of prospects for legislative compromise, and the preemption of democratic liberty by the courts. And that is what in the last analysis this case is about: how the question of partial birth abortion is to be decided. It is wrong to recognize no discernible limits on the ability of courts to constitutionalize this heinous practice down to its last detail.
Such treatment of the truly helpless will not stand the test of time. Virginia‘s statute invokes the consent of the governed to soften the sting of the impending rebuke. Our invocation of precepts found nowhere in the Constitution‘s text or history will not provide us a comparable defense. Where the people‘s will and moral claims on behalf of the powerless are aligned, plying the Constitution to defeat both is a wrong future generations will not overlook. They will understand this inversion of law‘s legitimate role in protecting the weak, and they will ask: “What on earth were they thinking? What on earth were they thinking?”
I would reverse the judgment of the district court.
MICHAEL, Circuit Judge,
dissenting:
The majority‘s decision to uphold the Virginia abortion ban challenged here (the Virginia Act) marks an alarming departure
The Supreme Court in Carhart II considered a facial challenge to the federal criminal statute that prohibits the intact D & E procedure. The Court upheld the federal statute based on its requirement that a doctor intend at the outset to perform an intact D & E. This intent requirement, the Carhart II Court emphasized, precludes liability from attaching to an accidental intact D & E. Carhart II thus affords constitutional protection to a doctor whose intent at the outset is to perform a standard D & E, even when the doctor must complete the abortion by performing an intact D & E. This doctor, in other words, is shielded from criminal liability under the Federal Act. The Virginia Act provides a doctor with no such protection.
The majority itself concedes that “the Virginia Act is broader in scope than the federal statute, covering accidental intact D & Es.” Ante at 177. The majority, however, claims that the Virginia Act is nonetheless constitutional because it provides a doctor with “affirmative defenses” that purportedly could be used to argue for jury acquittal in a criminal trial. As I will explain, those hollow “defenses” do not offer doctors who set out to perform constitutionally protected standard D & Es any realistic or reliable option. No doctor would be foolish enough to take the treacherous path suggested by the majority, for it would almost certainly lead to the commission of a crime under the Virginia Act. Because of the real fear of criminal liability, doctors in Virginia will stop performing standard D & Es altogether. This result places an undue burden on a woman‘s right to obtain a pre-viability second trimester abortion—a constitutional right repeatedly reaffirmed by the Supreme Court.
For similar reasons, the majority is wrong when it says that no facial challenge lies in this case because the accidental intact D & E does not occur with sufficient frequency. The majority overlooks the fact that the Virginia Act subjects a doctor to the risk of criminal liability every time he sets out to perform a standard D & E. This risk is real, as the Supreme Court recognized in Carhart II. And because this risk is present during every standard D & E, facial invalidation of the Virginia Act is required.
I respectfully dissent.1
I.
A.
The Virginia Act criminalizes “partial birth infanticide,” a new, non-medical term chosen by the legislature.
(that is, has emerged to an anatomical landmark) and exhibits “evidence of life,” (2) thereafter, but before the fetus is “completely extracted or expelled,” a person “knowingly performs” “any deliberate act that ... is intended to kill” the fetus, and (3) the deliberate act “does kill” the fetus, “regardless of whether death occurs before or after extraction or expulsion.”
B.
Plaintiff William G. Fitzhugh, M.D., is a board certified obstetrician and gynecologist who is licensed to practice medicine in Virginia. Dr. Fitzhugh performs only pre-viability abortions, through twenty weeks of pregnancy. He performs some abortions on the premises of plaintiff Richmond Medical Center for Women. For second trimester abortions, Dr. Fitzhugh usually employs the standard D & E method.
Dr. Fitzhugh explains that his patients who seek second trimester abortions “do so for a variety of reasons“:
Some women have pregnancies complicated by severe or fatal fetal anomalies diagnosed in the second trimester; some are pregnant as a result of rape, incest or failed contraception; some are in need of abortion services to protect their health and lives; some are unaware of their menstrual cycle or have irregular menstrual cycles; and some of the very young are unaware of or dismiss the possibility of pregnancy. Some have delayed obtaining an abortion for a wide range of other personal reasons.
Fully one-third of the 225 second trimester abortions Dr. Fitzhugh performs “are because of a genetic abnormality to the fetus, a bad condition of the fetus, or a medical condition of the woman.”
Dr. Fitzhugh asserts that the Virginia Act exposes a doctor to criminal liability every time he attempts a D & E abortion because the procedure always poses the risk of unintentional intact delivery of the fetus to one of the anatomical landmarks specified in the Act. The district court agreed with Dr. Fitzhugh, holding that the Virginia Act is unconstitutional because (among other things) it imposes an undue burden on a woman‘s right to choose an abortion for the following reason: “The plain language of the Act bans pre-viability D & Es and would cause those who perform such D & Es to fear prosecution, conviction and imprisonment.” Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499, 515 (E.D. Va. 2004).
II.
Because the majority is reversing the award of summary judgment to Dr. Fitzhugh and directing the entry of judgment in favor of the Commonwealth of Virginia, Dr. Fitzhugh‘s evidence “is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The D & E procedure is by far the most common method of pre-viability second trimester abortion, used in approximately ninety-five percent of cases. In this proce
A variation of the standard D & E procedure, often termed “intact D & E,” occurs when the doctor removes the fetus intact or largely intact. A doctor intending to perform an intact D & E uses certain methods, such as serially dilating the cervix or rotating the fetus as it is pulled out of the uterus, to increase the likelihood of intact delivery. In an intact D & E the fetal skull is typically too large to pass through the cervix, and the doctor compresses or collapses the skull to complete the abortion.
As the Supreme Court has recognized—and the undisputed record in this case establishes—a doctor performing standard D & Es will, in a small fraction of cases, unintentionally (or accidentally) deliver the fetus intact to or past an anatomical landmark. See Carhart II, 550 U.S. at 155. The potential is always present for an accidental intact delivery to an anatomical landmark during a standard D & E because a doctor cannot predict at the outset of the procedure when, or even whether, a fetus will disarticulate during evacuation. Fetal disarticulation is influenced by several factors beyond the doctor‘s control, including the precise level of cervical dilation, the condition of the uterus and the cervix, the size and orientation of the fetus, and fetal fragility. While the fetus usually disarticulates as it is pulled through the cervix, on occasion the factors just noted may cause it to emerge intact or substantially intact. Dr. Fitzhugh does not intentionally perform intact D & Es; however, when he performs standard D & Es, a small fraction of those cases result in intact extraction of the fetus to an anatomical landmark prior to completion of the abortion.
Once a fetus emerges to an anatomical landmark despite the doctor‘s intent to perform a standard D & E, steps must be taken to complete the abortion. Thus, in a breech presentation, after the fetus emerges to the navel (an anatomical landmark), the doctor will continue to pull to extract the fetus. This force and traction usually causes the fetus to disarticulate, leading to its demise. In addition, the fetal skull can become lodged in the cervix without disarticulation, as it would in an intentional intact D & E. In this situation the doctor will have to compress or collapse the fetal skull to remove it through the cervix and complete the abortion, another act that causes fetal demise.
Dr. Fitzhugh explained in detail why he would be in constant risk of violating the Virginia Act in his practice. First, “about one, two, three [times] a year,” or “[l]ess than a half” percent of the time, the fetus (in breech position) is removed intact with the neck lodged in the cervix. At this point, the fetus is outside of the woman‘s body to the navel or beyond, and Dr. Fitzhugh must compress or collapse the skull to complete the abortion. Second, about ten percent of the time the fetus (in breech position) emerges from the cervix intact to the navel or beyond, but the neck has not reached the cervical opening.4 In this sit
In sum, when a doctor is faced with the accidental situation of the intact extraction of the fetus to an anatomical landmark, he has no realistic option short of completing the abortion in a manner that causes fetal demise. See Carhart II, 550 U.S. at 154 (“To complete an accidental intact D & E, the ‘doctor[ ] will commit an overt act that kills the partially delivered fetus.‘“)
III.
The Supreme Court has instructed us to assess the Virginia Act in light of Carhart II. There, the Court based its decision to uphold the federal statute on the statute‘s requirement that the crime of partial birth abortion cannot occur unless the doctor intends at the outset of the procedure to perform an intact D & E. The majority readily acknowledges that the Virginia Act lacks this intent requirement, and it fails to muster an argument that saves the Act under Carhart II. Without the protection of the intent-at-the-outset requirement, the Virginia Act exposes a doctor who performs standard D & Es to criminal liability for an accidental intact D & E. As a result, a doctor‘s only safe course is to stop performing standard D & Es altogether. This outcome imposes an undue burden on a woman‘s right to obtain a standard D & E abortion in violation of the Constitution.
A.
In Carhart II the Court considered the constitutional limits on the regulation of abortion procedures and held that the federal Partial-Birth Abortion Ban Act of 2003 (the Federal Act),
“It must be stated at the outset and with clarity that [the] essential holding [of Roe v. Wade, 410 U.S. 113 (1973) ], the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State‘s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman‘s effective right to elect the procedure. Second is a confirmation of the State‘s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman‘s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life
of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.”
Carhart II, 550 U.S. at 145 (quoting Casey, 505 U.S. at 846). In Carhart II the Court also adhered to Carhart I‘s central holding: a law that effectively prohibits “[standard] D & E procedures, the most commonly used method for performing previability second trimester abortions,” imposes “an undue burden upon a woman‘s right to make an abortion decision,” in violation of the Constitution. Carhart I, 530 U.S. 914, 945-46 (2000); see Carhart II, 550 U.S. at 150-54.
The Carhart II Court, after reviewing the text of the Federal Act, concluded that the statute “prohibits a doctor from intentionally performing an intact D & E,” but “does not prohibit the [standard] D & E procedure in which the fetus is removed in parts.” Carhart II, 550 U.S. at 150. The Court‘s constitutional analysis proceeded as follows. First, the Court considered whether the Federal Act was void for vagueness or overly broad. Here, the Court was guided by the Federal Act‘s “defin[ition of] the unlawful abortion in explicit terms.” Id. at 147. Specifically, to violate the Federal Act, a doctor must (1) vaginally deliver a living fetus; (2) deliver the fetus to a clearly described anatomical landmark (trunk past the navel in a breech presentation or entire head outside in a head-first presentation); and (3) perform a distinct “‘overt act, [an act] other than completion of delivery, that kills the partially delivered living fetus.‘” (quoting
In rejecting the vagueness challenge, the Court concluded that the Federal Act‘s intent requirements provide doctors with a clear description of the prohibited conduct and prosecutors with objective criteria that serve to limit their discretion. 550 U.S. at 148-150. The Court then concluded that the Federal Act was not overly broad because it only “prohibits a doctor from intentionally performing an intact D & E.” Id. at 150. Again, the Court found that the Federal Act‘s reach was limited by the features of the unlawful abortion enumerated above. Id. at 150-56. Specifically, the Federal Act‘s “intent requirements ... preclude liability from attaching to an accidental intact D & E.” Id. at 155. Thus, a doctor never runs the risk of violating the Federal Act when he sets out to perform a standard D & E, even though the fetus might be delivered to one of the anatomical landmarks “by accident or inadvertence.” Id. at 148. As a result, the scope of the Federal Act is carefully limited to prohibit intentional intact D & E, thereby allowing access to the more widely used standard D & E procedure. Id. at 150-56.
Second, the Court considered whether the Federal Act was passed with the impermissible purpose of placing “a substantial obstacle in the path of a woman seeking an abortion before the fetus at
Third, the Court considered whether the Federal Act imposed a substantial obstacle to late-term, pre-viability abortions by failing to include an exception to preserve the health of the woman. Id. at 161-67. The Federal Act contains a life exception,
When the Virginia Act is measured against Carhart II and is compared to the materially different Federal Act, it becomes clear that the Virginia Act effectively prohibits the (pre-viability) standard D & E procedure, in violation of the Constitution.
B.
To repeat, the Virginia crime of “partial birth infanticide” occurs when (1) a fetus “has been ... substantially expelled or extracted from its mother” (that is, has emerged to an anatomical landmark) and exhibits “evidence of life,” (2) thereafter, but before the fetus is “completely extracted or expelled,” a person “knowingly performs” “any deliberate act that ... is intended to kill” the fetus, and (3) the deliberate act “does kill” the fetus, “regardless of whether death occurs before or after extraction or expulsion.”
The Virginia Act lacks the intent and distinct overt act requirements that were central to the Supreme Court‘s decision to uphold the Federal Act in Carhart II. Indeed, the Virginia General Assembly intentionally omitted these requirements from the final version of the Virginia Act. As originally introduced in the House of Delegates, House Bill No. 1541 contained both an intentional delivery requirement and a distinct overt act requirement that used precisely the same language as the Federal Act. Compare H.B. 1541, 2003 Leg. Reg. Sess. (Va. 2003) (Introduced) with
1.
As I have pointed out, the Federal Act “contains scienter requirements concerning all the actions involved in the prohibited abortion,” including both a requirement that the doctor intentionally deliver the fetus to an anatomical landmark and a requirement that this delivery be for the purpose of performing the overt act that the doctor knows will cause fetal demise. Carhart II, 550 U.S. at 148; see
The Virginia Act lacks any such protection, as the majority acknowledges. Instead, the Act‘s only intent requirement relates to the overt act: the doctor is prohibited from “knowingly perform[ing] ... any deliberate act that ... is intended to kill [and does kill] a human infant who has been born alive, but who has not been completely extracted or expelled from its mother.”
The majority agrees that the Virginia Act does not require intent at the outset and therefore applies to an accidental intact D & E. In the majority‘s words,
The Virginia Act‘s scienter is measured only after partial delivery of the “human infant who has been born alive” and not at the commencement of the abortion procedure, as under [the Federal Act].... [T]he doctor‘s intent before commencing the D & E procedure is not determinative of scienter for purposes of criminal liability under the Virginia Act. The Virginia Act applies with equal
force to a doctor who intends to perform a prohibited intact D & E procedure, intentionally extracts the fetus past an anatomical landmark, and then performs a “deliberate act” to kill the fetus, and to a doctor who intends to perform a permissible standard D & E procedure, accidentally extracts the fetus past an anatomical landmark, and then performs a deliberate act to kill the fetus and complete the abortion. In either event, however, we read the Virginia Act intent requirement to require purpose, not mere knowledge, that a specific act—taken after emergence to the anatomical landmark—will result in fetal demise.5
Ante at 177 (emphasis in original) (citation omitted). The Virginia Act cannot survive the majority‘s basic interpretation—an interpretation I agree with—that the Act applies to an accidental intact D & E. The Virginia Act must fall under Carhart II, for a doctor faced with an accidental intact delivery to an anatomical landmark has no “affirmative defense.” He must either collapse the fetal skull, which causes fetal demise, or continue to pull (or apply traction), which usually causes disarticulation and fetal demise. In either case, he has committed a “deliberate act that ... is intended to kill” the fetus, thereby violating the Virginia Act. This doctor, confronted with an unintentional delivery to an anatomical landmark, does not have the option that saved the Federal Act, that is, the option to “complete[ ][the] abortion by performing an intact D & E” without violating the law. Carhart II, 550 U.S. at 155. The option to complete the abortion is available under the Federal Act because intent at the outset to perform an intact D & E is required. The Virginia Act‘s failure to provide that central requirement is by itself sufficient to render the Act unconstitutional.
2.
There is a second key difference between the Virginia Act and the Federal Act. Although both statutes require that the doctor perform a deliberate act to cause fetal demise after delivery to an anatomical landmark, the Federal Act explicitly requires that this act be distinct from completing delivery. The Virginia Act lacks such a distinction. Compare
The majority erroneously claims that the Virginia Act‘s language, “deliberate act that is intended to kill a human infant who has been born alive,”
3.
The absence of the intent-at-the-outset and distinct overt act requirements in the Virginia Act expand its reach substantially beyond that of the Federal Act. Every time a doctor intends at the beginning to perform a standard D & E, he runs the real risk of accidentally delivering an intact fetus to an anatomical landmark. As the Supreme Court recognizes, and the record in this case confirms, an accidental intact D & E occurs “in a small fraction of the overall number of D & E abortions.” Carhart II, 550 U.S. at 155. The Virginia Act imposes criminal liability in all such cases because a doctor faced with an accidental intact D & E must take steps to complete the abortion, which results in fetal demise. The doctor commits a crime even though he intended at the outset to perform the legal, standard D & E procedure.
C.
The majority argues that the lack of an intent-at-the-outset requirement does not render the Virginia Act unconstitutional because the Act “sufficiently cabins the narrow set of situations in which a doctor could incur criminal liability.” Ante at 177. This argument, however, ignores both the critical nature of the intent requirement and the lack of realistic options for avoiding criminal liability under the Virginia Act when a doctor is faced with an accidental intact delivery to an anatomical landmark.
In claiming that the Virginia Act is “plain as to how [] liability may be avoid
This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. Because a doctor performing a D & E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as a trap for those who act in good faith.
Carhart II, 550 U.S. at 149-50 (internal quotation marks and citations omitted). Carhart II thus makes clear that an intent-at-the-outset requirement was crucial to ensure that a doctor setting out to perform a constitutionally protected standard D & E would not face criminal punishment.
The majority claims that even without the initial intent requirement, the Virginia Act “makes clear to the doctor the permissible avenues for avoiding criminal liability” when “the fetus accidentally emerges intact to an anatomical landmark but is not completely expelled.” Ante at 177-78. The majority refers to these avenues as “affirmative defenses.” Id. at 169, 176-77, 177-78. As it must, the majority addresses the breech presentation when the fetal head is lodged in the cervix. As the Supreme Court recognized, this is “the usual intact D & E,” 550 U.S. at 138, with the trunk extracted “past the anatomical landmark,” id. at 151. In this situation, the majority says, the mother‘s life is at risk, which allows a doctor to invoke the Virginia Act‘s life exception,
The majority also states that “where the mother‘s life is not in danger and the fetus has been partially expelled to an anatomical landmark, the [Virginia Act] clearly prohibits the doctor from completing the abortion by taking a deliberate act to kill the fetus.” Ante at 178. Here, the majority is referring to the situation when the fetus is partially extracted to a landmark, but the head is not lodged. In that instance, according to the majority, the doctor‘s only option is “to attempt to safely complete delivery of the fetus.”
Finally, the majority observes that in the circumstance “where a standard D & E results in a full, intact birth“—a very rare circumstance—the “doctor will incur
The majority‘s analysis offers no realistic options for the doctor who would wish to continue performing legal, standard D & E abortions. That doctor will not be assured by the majority‘s implausible assertion that he has an “affirmative defense to any criminal liability.” See ante at 177-78. Nor will he have any confidence that the Supreme Court of Virginia would agree with the majority‘s “affirmative defense” analysis. That doctor will stop performing standard D & Es altogether.
D.
Because a doctor violates the Virginia Act when a standard D & E results in an accidental (partial) intact delivery and he must then perform an act causing fetal demise, he subjects himself to the risk of criminal liability at the outset of every standard D & E. The only way for a doctor to avoid this risk is to refrain from performing all standard D & E procedures. As a result, the Virginia Act imposes an undue burden upon a woman‘s right to choose a pre-viability second trimester abortion. The Act is therefore unconstitutional.
IV.
Because an accidental intact D & E occurs in only “a small fraction of the overall number of D & E abortions,” Carhart II at 156, the majority concludes that a facial challenge is not appropriate. The majority, however, focuses on the wrong fraction in reaching this conclusion. The majority considers how often a standard D & E becomes an accidental intact D & E, when the critical question is how often (and whether) the Virginia Act imposes a burden on a woman‘s ability to obtain a (pre-viability) standard D & E abortion. It is the latter inquiry, not the former, that should ultimately guide our decision as to whether a facial challenge can be sustained. The record here establishes that the Virginia Act threatens criminal liability—and thus imposes a burden—in every case that calls for a standard D & E. That is 100 percent of those cases, more than sufficient to sustain a facial challenge.
In arguing that a facial challenge cannot be “successfully mount[ed]” in this case, the majority begins by noting the Supreme Court‘s oft-stated “preference for avoiding facial challenges.” Ante at 172-73. Notwithstanding the Court‘s professed preference, the Court has allowed facial challenges more often “than generally recognized.” Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1322 (2000) (citing Michael C. Dorf, Facial Challenges to State and Federal Statutes (Facial Challenges), 46 Stan. L. Rev. 235 (1994)). Indeed, it is well established that a facial challenge alleging overbreadth is an appropriate vehicle for seeking the invalidation of a statute regulating abortion. See Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citing Carhart I, 530 U.S. at 938-946).
As recently as 2007 in Carhart II the Court entertained a facial (overbreadth) challenge to the Federal Act prohibiting partial birth abortion. After conducting a careful analysis of the text of the Federal Act to determine its “operation and effect,” the Court concluded that the statute did not impose an undue burden through over
There is a compelling reason for allowing facial challenges in the abortion context. See Sabri, 541 U.S. at 609-10 (recognizing the validity of facial attacks in a “few settings,” including abortion, based “on the strength of specific reasons weighty enough to overcome [the Court‘s] well-founded reticence” to entertain such attacks). There is simply insufficient time in an individual case to pose an as-applied challenge to a statute regulating abortion. For example, Dr. Fitzhugh only performs D & E abortions during six weeks of a pregnancy, from fourteen weeks through twenty weeks. That narrow period would not realistically afford a pregnant woman or Dr. Fitzhugh enough time to obtain a judgment that an abortion regulation is invalid as applied. Mandatory case-by-case challenges, as the majority advocates, would require a doctor to violate the Virginia Act and then raise the constitutional defense during his criminal prosecution. As I have already emphasized, rather than take such a perilous course, a doctor would surely stop performing D & E abortions altogether. “Thus, requiring that challenges to an overbroad statute prohibiting abortion proceed on a case-by-case [or as-applied] basis will chill a woman‘s right to choose an abortion.” Dorf, Facial Challenges, 45 Stan. L. Rev. at 271.
The majority appears ultimately to recognize that facial challenges are valid in the abortion context, but says there is “uncertainty regarding the appropriate criteria for entertaining facial challenges” in such cases. Ante at 174. The majority advances three alternatives: (1) the “no set of circumstances” standard, see United States v. Salerno, 481 U.S. 739, 745 (1987) (a facial challenge “must establish that no set of circumstances exists under which the Act would be valid“); (2) the “plainly legitimate sweep” standard, see Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S. Ct. 1184, 1190 (2008) (“a facial challenge must fail where the statute has a plainly legitimate sweep“) (quotation marks omitted); and (3) the “large fraction of [relevant] cases” standard, see Casey, 505 U.S. at 895 (facial challenge sustained because “in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman‘s choice to undergo an abortion“).
The “no set of circumstances” and the “plainly legitimate sweep” standards are not justifiable options because the Supreme Court has not adopted either standard in the abortion context. In Casey (1992) the Court used the “large fraction of [relevant] cases” standard. Id. at 895. Later, in Carhart I (2000) the Court did not refer to either the “no set of circumstances” or “plainly legitimate sweep” standard in holding an abortion ban statute unconstitutional on its face because it imposed an undue burden on a woman‘s ability to choose a standard D & E abortion. Carhart I, 530 U.S. at 945-46. And, most recently, the Court in Carhart II (2007) declined specifically to endorse the “no set of circumstances” standard, stating that the debate about the proper burden need not be re
Here, the majority contends that facial invalidation of the Virginia Act is not appropriate under any standard, not “even under the more relaxed ‘large fraction of the cases’ test applied in Casey.” Ante at 174; see ante at 175-76. The majority ultimately uses the Casey standard, but goes seriously astray in applying that standard.
The majority states that it is a “rare circumstance” in Dr. Fitzhugh‘s practice for a fetus in breech position to emerge intact to the navel. Ante at 175. This pronouncement ignores the fundamental question: how often in Dr. Fitzhugh‘s practice would the Virginia Act burden the right of a woman to choose a (pre-viability) D & E abortion. Dr. Fitzhugh performs about 225 pre-viability D & E abortions each year. One, two, or three times a year Dr. Fitzhugh is faced with the situation when the fetus (in breech position) accidentally emerges intact with the head lodged in the cervix. In this circumstance, the record establishes that Dr. Fitzhugh must compress the fetal skull, which terminates the fetus, in violation of the Virginia Act. In addition, Dr. Fitzhugh encounters, in what would also be a small fraction of cases, the circumstance when the fetus (again in breech position) emerges intact to the navel before the neck becomes lodged in the cervix. To complete removal, he must continue to apply traction that typically results in disarticulation; he lacks a way to assure a live, intact delivery and avoid liability under the Virginia Act. The record therefore establishes that Dr. Fitzhugh, if he continued to perform D & E abortions, would commit a felony under the Virginia Act in the range of one to three times a year. To avoid this real and substantial risk, Dr. Fitzhugh, or any reasonable doctor, would have to stop performing D & Es altogether. Again, the majority has not asked how often the Virginia Act will deter a doctor, such as Dr. Fitzhugh, from performing a standard D & E, the most common and safest abortion method during the second trimester of pregnancy. The answer is that a doctor would be at risk—and deterred—in every case that calls for a standard D & E. This result is more than sufficient to meet Casey‘s “large fraction of relevant cases” standard, making a facial challenge appropriate.
V.
At the very least Dr. Fitzhugh‘s as-applied challenge should be allowed and determined in his favor. Notwithstanding the majority‘s assertion to the contrary, see ante at 180, Dr. Fitzhugh has presented a thoroughly concrete set of facts establishing that the Virginia Act will operate unconstitutionally as applied to his individual D & E abortion practice. Dr. Fitzhugh has testified about the number of standard D & E abortions he performs each year. He has explained how in a small fraction of those cases the fetus accidentally emerges up to or past an anatomical landmark and he must take action that results in the demise of the fetus—action that violates the Virginia Act. This evidence will be no different if Dr. Fitzhugh is forced to file another lawsuit. On the current record Dr. Fitzhugh has established that if the Virginia Act goes into effect, his only options will be either to stop performing standard D & Es altogether or to continue performing the proce
VI.
Judge Wilkinson writes a concurrence to record his obvious disagreement with 36 years of Supreme Court jurisprudence on the issue of abortion. In doing so, he goes beyond our warrant as an inferior court, which is to apply the Constitution as the Supreme Court has interpreted it, and exceeds our role as a court of law, which is to adjudicate legal, not ethical, questions.
Moreover, the moral dimensions of the abortion debate are significantly more complex than Judge Wilkinson acknowledges. He fails, for example, to fully recognize that a woman‘s decision whether to bear a child involves “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Casey, 505 U.S. at 851. The freedom to make that decision ensures that a woman has control over her body and the conditions of her life, including her ability to protect and nurture her family, to overcome financial hardships, to leave abusive relationships, and to make critical decisions about her own health and well being. As the Supreme Court recognized in Casey, “[m]en and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage.” Id. at 850. In the face of that disagreement, however, the Supreme Court went on to confirm a woman‘s constitutional right. Our duty here is to measure the Virginia Act against that precedent, not revisit the debate.
VII.
I would affirm the district court‘s judgment declaring the Virginia Act unconstitutional on the ground that it imposes an undue burden on a woman‘s right to choose a pre-viability second trimester abortion.
Judge MOTZ, Judge TRAXLER, Judge KING, and Judge GREGORY join in this dissent.
Davy Gene STEPHENS, Petitioner-Appellant,
v.
Gerald J. BRANKER, Warden, Central Prison, Raleigh, North Carolina, Respondent-Appellee.
No. 08-14.
United States Court of Appeals, Fourth Circuit.
Argued: May 13, 2009.
Decided: June 30, 2009.
Notes
A. Any person who knowingly performs partial birth infanticide and thereby kills a human infant is guilty of a Class 4 felony.
B. For the purposes of this section, “partial birth infanticide” means 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. 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.
C. For the purposes of this section, “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.
D. For purposes of this section, “substantially expelled or extracted from its mother” means, 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.