*1 CENTER FOR MEDICAL RICHMOND Fitzhugh, M.D.,
WOMEN; G. William themselves, staffs, their
on behalf Plaintiffs-Appel patients,
and their
lees, HICKS, capacity in his official
David M. Attorney for the
as Commonwealth Kizer,
City Richmond; A. Wade capacity
his official Common Attorney County of
wealth for
Henrico, Defendants-Appellants. Foundation, R. In-
Horatio Storer
corporated, Support- Amicus
ing Appellants,
Physicians Reproductive For Choice Cullins, Health;
And E. Vice Vanessa Affairs, Medical
President for
Planned Parenthood Federation Forty-Two Phy-
America; Individual
sicians, Appellees. Supporting Amici 03-1821,
Nos. 04-1255. Appeals,
United States Court
Fourth Circuit. 26, 2004.
Argued: Oct. Decided: June Thro, Eugene Deputy State So- William
licitor, Attorney General Office Richmond, Virginia, Appel- for Virginia, lants. Novak, Reproduc- for
Suzanne Center York, Policy, tive Law and New New York, Appellees.
Jerry Kilgore, Attorney General W. Jagdmann, Dep- Virginia, Judith Williams General, Johnson, E. uty Attorney David General, M. Ma- Attorney Edward Deputy General, con, Attorney Assistant Senior Attorney Stuchell, Assistant James C. Meredith, General, Anthony Assistant P. Richmond, General, Virginia, Attorney Appellants. *2 alive, Smith, Reproduc- completely but who has been
Priscilla J. Center York, mother, Policy, New New expelled tive Law extracted or from its York, (ii) Appellees. infant, kill re- does such occurs gardless whether death before Jr., Coleson, E. Bopp, James Richard expulsion or after or from its extraction Marzen, Gallant, Jeffrey P. Thomas J. completed. mother has been Haute, Bostrom, Terre Bopp, Coleson Indiana, Supporting Appel- for Amicus 18.2-71.1(B). § “human phrase Id. The lants. infant defined who has been born alive” is as Cohen, Law Project,
David S. Women’s product conception of human that has Pennsylvania; Philadelphia, Susan Frietsche, substantially Stacey Young, completely I. Women’s Law been or ex- Project, Pittsburgh, Pennsylvania, mother, for Am- pelled or extracted from its re- Supporting Appellees. ici gardless pregnancy, of the duration of expulsion which after such or extraction MICHAEL, NIEMEYER, Before any breathes or shows other evidence of MOTZ, Judges. Circuit heart, beating pulsa- life such cord, tion of the umbilical or definite opinion. published Judge Affirmed muscles, voluntary movement of wheth- majority opinion, wrote the in MICHAEL er or not the umbilical cord has been cut joined. Judge Judge MOTZ placenta or the is attached. dissenting opinion. NIEMEYER wrote a 18.2-71.1(0). § Id. The Act defines the OPINION phrase “substantially expelled or extracted MICHAEL, Judge. Circuit (i) mother” as when “the in- [the] body fant’s entire head is outside the challenge This case involves a facial un- the mother” the case of a headfirst Virgi- der the Fourteenth Amendment to a (ii) attempts presentation, “any part nia statute that to when of the criminalize abortion,” “partial birth which the statute trunk past infant’s the navel is outside the “partial terms birth infanticide.” a body of the mother” the case of breech summary judgment order the district court 18.2-71.1(D). § presentation. Id. declared the statute invalid for several rea- Act provides following exception to the sons. affirm We because lacks an ex- general prohibition: ception protect to woman’s health. prohibit This section shall not the use that, physician any procedure
I. judgment, reasonable medical is neces- mother, sary prevent the death of the A. long every so as the takes Chapters 961 and 963 of the 2003 medically step, reasonable consistent Virginia Assembly Acts of the General procedure, preserve with such' the life (“the Act”) it a 4 felony make Class for a procedure and health of the infant. A person knowingly perform “partial birth necessary pre- shall not be deemed § infanticide.” Ann. A Va.Code 18.2-71.1. complet- vent the death of the mother if felony in punishable by Class is delivery ing living infant prison up years term of to ten and a fine prevent the death of the mother. $100,000. § toup Id. 18.2-10. The Act 18.2-71.1(E). “partial defines birth infanticide” as § Id. The Act’s ban of cer- (i) any procedures provide tain abortion does not deliberate act is intended to kill a human infant who has been born for instances in which an fetus, D E necessary, proceeds an intact & one banned otherwise judgment, pre- ways. In the case of a vertex appropriate of two Indeed, the Vir- a woman’s health. serve physician collapses presentation, Assembly rejected proposed ginia General extracts the en- fetal calvarium then *3 provided that would amendments through the cervix. In the case tire for some circum- statutory exception presentation, of a breech health was at when a woman’s stances cervix, trunk pulls through the fetal Hicks, v. Richmond Med. Ctr. risk. See calvarium, collapses the fetal and then (E.D.Va.2004). F.Supp.2d through completes extraction of the fetus to include a Assembly failed The General prohibited the cervix. A second variation an earlier exception 'though even (D by the Act is the dilation and extraction banning late-term abor- Virginia statute X) procedure, & which is similar to the down because it lacked tions was struck D extraction variant of the intact & breech when continuation exception for instances respects except E in all material a threat to woman’s pregnancy poses of a repositioning intentional of the involves the Med. Ctr. health. See Richmond Because presentation. fetus to breech (4th Gilmore, 224 F.3d Women procedures D E D X the intact & and & Cir.2000). House of Dele- The similar, they so are often referred to are amendments rejected proposed also gates interchangeably.. variation.prohib- A third prohibi- Act’s have limited the Act the D & E in ited involves Hicks, postviability abortions. See tion outside of which fetal disarticulation occurs F.Supp.2d at 502. body. gener- the woman’s Disarticulation challenged Act this case excludes The (the ally beyond occurs the cervical os following “partial definition cervix) portion, opening, lower or of the infanticide”: birth against a result of traction the cervix. (i) curettage proce- the suction abortion However,-disarticulation may occur outside (ii) dure, aspiration the suction body there is little or of the woman’s when (iii) and evacua- procedure, the dilation space between the cervical os and the (D E) no in- ] tion &[ (the canal) (disarticula- vaginal- introitus vaginal volving [ dismemberment tion) removal from prior prolapses (emerges) of the fetus ] when the cervical os (iv) mother, com- body (The [and] Act vaginal introitus. outside delivery living of a human infant pleting certain criminalizes the treatment of also any severing the umbilical cord incomplete miscarriages.) completely deliv- infant who has been Fitzhugh, M.D. is a William G. Plaintiff ered. gynecolo- certified obstetrician and board 18.2-71.1(B). By § except- Ann. Va.Code practice is licensed to medicine gist who E only a variant of the D & ing single Fitzhugh Virginia. performs abortions disarticula- involving fetal procedure, he twenty pregnancy; weeks of through from the woman’s prior tion to removal any postviabili- not perform therefore does D E body, prohibits Act all other & of the abortions he ty abortions. Some statutory meeting variations definition intact D & Es and performs, particularly prohib- infanticide.” One “partial birth oc- D & Es which fetal disarticulation E, D ited variant is the intact body, pro- of the woman’s curs outside and in involve disarticulation does Fitzhugh performs Act. Dr. by the hibited from the uterus which the fetus is removed premises abortions on the of these rather than through pass the cervix in one some Medical Center plaintiff Depending presentation on the Richmond several. (RMCW) Di- preservation Women where he is Medical lacks an for the of a rector. Summary judgment woman’s health. “shall rendered forthwith” when the
B.
proffered
“show[s]
evidence
there is
Act
was scheduled to take effect on
genuine
any
no
issue as to
material fact
18, 2003,
July
2003. On June
RMCW
moving party
and that the
is entitled to a
Fitzhugh
complaint against
and Dr.
filed a
judgment as a matter of law.” Fed.
(“the
Attorneys
two Commonwealth’s
56(c).
judg
R.Civ.P.
We conclude that the
Commonwealth”) in the United States Dis- ment of the district court must be affirmed
trict
for the Eastern District of
Court
[Supreme]
because “the
un
Virginia, challenging the Act’s constitution-
*4
equivocally
Stenberg v.
held [in
ality
seeking declaratory
injunc-
914,
2597,
530
147
U.S.
120 S.Ct.
L.Ed.2d
tive relief to block its enforcement. The
(2000)
any
partial-birth
743
ban on
]
court granted
plaintiffs’
motion for a
abortion
an exception
must include
for the
injunction
preliminary
against enforcement
health of the mother in order to be consti
1,
July
of the Act on
2003. After the
tutional.” Richmond Med. Ctr. Wom
for
parties
in
engaged
discovery,
plaintiffs
(4th
Gilmore,
376,
en v.
219 F.3d
summary
filed a
judgment
motion for
Cir.2000)
J.,
(Luttig,
concurring).
25,
4, 2004,
September
February
2003. On
granted summary
the district court
judg-
In Carhart
the Court concluded
ment to
plaintiffs, declaring
the Act
statutory
Nebraska’s
ban on certain
permanently enjoin-
unconstitutional and
procedures, including
abortion
the intact D
Hicks,
ing its enforcement.
See
301 &
X&
violated the federal
procedure,
E/D
at
F.Supp.2d
517-18. The court held the
independent
Constitution for “at least two
facially
Act
invalid under the Fourteenth
reasons.” 530
at
U.S.
promote
endanger
but not
a woman’s
II.
regulates
health when it
the methods of
(quot
abortion.” Id. at 931
ring) (explaining that lack of “[t]his provision no for those situations health exception necessarily renders the D the intact & X “is E/D&. unconstitutional”). statute necessary, in appropriate judg medical
Indeed, it disputed ment, is not in this case preservation for the that the Act—like the Nebraska statute in health of the mother.” Casey, 505 at U.S. prohibits 879, (internal D the intact & 112 & S.Ct. 2791 quotation E/D Carhart — procedure. omitted). X Reply See Br. Appellants marks enough This alone is 2 (explaining that the Act “does not affirm the judgment district court’s invali allow the D procedure, & X dating because, or what is again, any the Act statute sometimes referred to as an D ‘intact & prohibiting the D X proce & & intact E/D ”);E’ id. at (identifying 3 central dure necessarily “[t]he significant “creates a issue in this case” as [Virginia] “whether health risk” and therefore “must contain a may prevent use of the D & X or intact D exception.” health 530 U.S. E” procedure). 938, 120 & In the course of this S.Ct. 2597.
625 se constitutional per as a requirement tion argues that sum The Commonwealth based on substantial is rule. rule This because improper judgment mary (from array broad authority medical medi substantial present did not plaintiffs sources) by recognized that authority proposition for the cal authority Court, medical body and particu in this needed exception is health every reproduced not have does concluded court district lar statute. to a birth challenge “partial subsequent point. beside the otherwise, except but lacking a health abortion” See, Planned Parenthood e.g., ion.1 excep the health established For Carhart "a smaller reduction allows cause calvarium presented medi- plaintiffs nevertheless 1. The cervix, through re- pass thus summary judgment record diameter authority cal also injury,” while ducing that considered risk cervical strikingly similar to that is example, surgi- greater For allowing in Carhart. retain Supreme Court al., Paul, deProsse Fitzhugh control); Dr. and Charles Dr. Maureen et both cal A Clini- testified, on their (the expert) based plaintiffs’ Surgical cian’s Guide To Abortion Medical And gy- and experience in obstetrics lengthy (1999) (noting physicians own often 133-35 sources, that necology and on other collapse calvari- compress the fetal must procedures & X abortion D cervix). the intact & E/D through the to facilitate removal um most safest and Act are the prohibited contrast, proffered the Commonwealth In women. medically appropriate for some proceedings summary judgment in the Giles, expert, testi- a defense Dr. Harlan Even expert (physician) witnesses testimony two (1) & X as & D fied E/D intact opinion no maternal who offered repre- Fitzhugh’s declaration described in necessary In addi exception is here. medically pro- appropriate” "safe sents a and tion, proffered supporting the Commonwealth cedure; (2) be allowed physicians should Congressional Record materials from & D flexibility perform the intact E/D testimony of included the committee OB/ do otherwise they think to procedure if X The district court excluded professor. GYN l.A. endanger health." the woman’s "would por testimony expert’s selected all of one 483, 522. other's, concluding it was tions of addition, was submitted an amicus brief under Kumho inadmissible unreliable and large group of of a court on behalf to this Carmichael, U.S. Co. v. Tire 3,400), (over including Physicians physicians (1999), Dau L.Ed.2d S.Ct. (PRCH), Reproductive Choice Health Pharmaceuticals, Inc., 509 Dow bert v. Merrell reproduc- expertise in the field who 125 L.Ed.2d U.S. procedures. and abortion health care tive Hicks, (1993). at 511-12. F.Supp.2d See *7 & D & agree that the intact amici E/D These Congressional Record The materials from proce- accepted medical procedure is an X hearsay. See as inadmissible were excluded Br. of available. often the safest dure that is de without if we assumed id. at 512. Even 9, They 12-23. et al. Curiae PRCH Amici its dis abused ciding district court that the their own opinions on base their medical excluding the Commonwealth's cretion' training, professional experience and clinical evidence, of the consideration opinion as variety medical sources they of cite change The not our-result. evidence would See, e.g., Stephen T. Chasen support. further in would at most evidence Commonwealth’s 's. al., 20 and Evacuation et Dilation on opinion of medical division dicate some Techniques, Operative Comparison Weeks: of “banning intact [the question whether 1180, (2004) Gyn. 1183 & Am. J. 190 Ob. endanger procedure could X]& D & E/D & X and D E D & (finding that intact E/D 938, U.S. at 530 women’s health.” procedures are both safe by disarticulation emphasized in As the Court 2597. 120 S.Ct. al- be recommending that physicians opinion” is Carhart, "unanimity of medical procedure is best to decide lowed required because “intraoperative patient any given based most opinion ... at division Grimes; Continuing factors”); A. David signals the uncertainty, a factor 747, means Abortions, 748 280 JAMA Late Need for risk, Where not its absence.... presence -of & X (1998) D & (explaining that intact E/D opinion be- body medical significant presence of especially useful "may be greater may bring with it procedure anomalies, lieves hydrocephalus,” be- such fetal 626
Heed,
(1st Cir.2004) (ex
53,
390 F.3d
croft,
957,
(N.D.Cal.
59
F.Supp.2d
320
1013
plaining
parental
2004)
that even a
notification
(noting that Carhart dispels charac
statute “must contain a
exception
health
in terization of the health exception inquiry
order to survive
challenge”),
constitutional
fact,
“as one
pure
limited to the record
granted
cert.
sub nom. Ayotte v. Planned
case”);
particular
WomanCare,
[the]
—
Parenthood,
U.S. -,
2294,
125 S.Ct.
Granholm,
P.C.
849,
v.
F.Supp.2d
— L.Ed.2d - (2005);
Planned Parent
(E.D.Mich.2001) (invalidating “partial birth
Wasden,
(9th
908,
hood v.
376 F.3d
abortion” statute because “there are no
Cir.2004) (characterizing health exception genuine
fact,
of material
issues
with re
per
as “a
requirement”),
se constitutional
spect to the
lack
a health
exception
-U.S.
denied,
1694,
cert.
-,
the statute” and
because the
(Mar. 28, 2005);
view
contrary.
itself
sary
tragic
risk of
consequences.
If
the uncertainty
significant
means a
they
likeli-
wrong,
simply
will
hood that those who believe that [intact D
turn out to have
unnecessary.
been
E/|D
937,
& X is a safer abortion method in
Id. at
627 Edwards, 27, F.2d T v. 974 pare Sojourner reviewing for standard proper apply Cir.1992) (5th (applying Casey’s undue alleging overbreadth. 30 challenges facial Salerno), Commonwealth, the court reference burden test without According to Moore, 12, 14 set forth the standard & n. 970 F.2d applied have with Barnes v. should Salerno, 739, curiam) (5th Cir.1992) 481 U.S. v. (per (applying States United 2 in (1987). 2095, L.Ed.2d 697 95 107 S.Ct. attack on an abortion to a facial Salerno that “[a] said There, Supreme Court regulation). is, Act legislative to a challenge
facial
Second, contrary to the Common
challenge
course,
difficult
the most
question
of Saler
suggestion,
wealth’s
challenger
successfully, since
mount
context
applicability
the abortion
no ’s
circumstances
no set of
establish that
must
squarely confronted
has not been
be valid.”
Act would
which the
exists under
that
claims
court. The Commonwealth
plaintiffs
2095. The
Id. at
(4th
Hunt,
F.3d 254
Cir.
Manning v.
119
approach is
proper
that the
counter
1997),
that Salerno survived Ca
we “ruled
Carhart,
Supreme
Court
used
parties
at 15. The
sey.”
Appellants
Br. of
applying Saler-
the Court—without
where
however,
not asked
Manning,
had
us
test—held
circumstances”
“no set of
’sno
improp
that the District Court
“to decide
banning certain
statute
the Nebraska
re
for
erly applied the Salerno standard
was unconstitutional
procedures
we
challenges,”
facial
therefore
view of
a health ex-
it lacked
face because
on its
properly
the issue
not
concluded
930-38,
at
530 U.S.
ception. See
n.
abortion clinic licensing standards. We These questions are difficult and sensitive
there,
used the
only
Salerno test
but
in the
sure,
to be
but
give
that does not
context of reviewing a claim
regu-
that the
dissent free license to accuse us of “tarring
latory scheme allowed for the standardless
[liberty] with
political
the color of
ideolo-
delegation of medical licensing authority to
645,
gy,” post at
“asserting] vacuously
parties
third
violation of
Yick Wo v.
doing
we are
what
Supreme
Court
Hopkins,
356,
1064,
118 U.S.
6 S.Ct.
30 commands,”
645,
post
deciding
at
this case
(1886).
II,
L.Ed. 220
See Greenville
317
“personal convenience,”
based on
post at
361-63;
J.,
F.3d at
id. at 372 & n. 4 (King,
646, disregarding “the mind’s sense of
dissenting).
right,”
645-46,
post at
and “disconnecting
Third, the recent case of Sabri v. Unit-
our
accepted
norms,”
from
law
moral
post
States,
600,
ed
1941,
541
124
U.S.
S.Ct.
at 645. No matter what the
says,
dissent
1948-49,
(2004),
We
Act.2
of the
against enforcement
of
tion
and women
Casey,
“[m]en
Court
sup-
disagree, and we
can
conscience
good
AFFIRMED
disagree, about
always shall
pose some
implications
NIEMEYER,
dissenting.
spiritual
Judge,
moral and
Circuit
profound
U.S.
pregnancy.”
terminating
of
enacted
Virginia
The Commonwealth
if “abortion
But even
112 S.Ct.
it a criminal offense
making
a law
principles
most basic
to our
offensive
[is]
born
infant who has been
kill a “human
to
control our
cannot
morality ...
alive,
completely
not been
has
but who
apply
to
decision,”
obligation is
for our
mother.”
expelled
extracted or
personal
lib-
definition
Supreme Court’s
18.2-71.1(B). The statute
§Ann.
Va.Code
own moral
mandate our
“not
to
erty,
has
only a live fetus that
protect
applies
today to
Thus, we are bound
Id.
code.”
halfway into the world—
been delivered
rule
constitutional
Carhart’s
apply
head is out-
i.e.,
infant’s entire
either “the
must
abortion”
birth
any
“partial
ban on
or, for a
mother”
body
of the
side
protect
woman’s
exception
an
include
infant’s
“any part of the
delivery,
breech
by the
forewarned
have been
health. We
body of
the navel is-outside
past
trunk'
paid
be
cost will
that “[s]ome
Court
18.2-71.1(D).
§
In en-
Id.
the mother.”
a con-
implements
or
approves
who
anyone
Virginia fo-
provision,
this narrow
acting
unpopular,
it is
where
stitutional decision
of infants
life
preserving
cused on
to work
undermine
refuses
or who
Nebraska
law from the
distinguishing its
price
force its reversal.
or to
decision
as
struck down
unconstitutional
statute
ostracism,
may
it
criticism or
may be
914, 120
530 U.S.
Stenberg v.
867, 112
2791. The
S.Ct.
violence.” Id.
(2000),
L.Ed.2d 743
extra
“[a]n
warned that
further
'methods.
array of abortion
prohibited
those who themselves
paid by
will be
price
be-
the differences
recognizing
Without
when
results
of the decision’s
disapprove
Virgi-
and the
statute
tween the Nebraska
terms, but
of constitutional
viewed outside
taking into account
without
nia
statute
it,
accept
be-
struggle to
who nevertheless
court,
ma-
panel
before
the .facts
Id. at
rule of law.”
they respect the
cause
per
se
to create
reads
jority
Carhart
words have
867-68,
2791. These
any ban
requires
constitutional rule
climate, and
today’s
resonance
special
lan-
to contain
partial-birth
on
critical
us
remind
they serve to
mother,
the health of
guage protecting
follow
obligation
our
importance
law, the
of the
scope
regardless
faithfully
decisions
facts,
actual
and the
of the relevant
nature
Court.
extend-
exception. By so
for a health
need
rule, the
per
se
applying
ing Carhart
V.
down
mechanically strikes
majority
not con-
Act does
Because the
unconstitutional, with-
Virginia statute
when
circumstances
tain an
analysis.
further
out
neces-
procedures
the banned
addition,
down
to strike
health,
we
a woman’s
sary
preserve
majority
challenge, the
aon facial
de-
judgment order
summary
affirm
our estab-
disregard
necessary to
it
found
its face.
unconstitutional
claring the Act
reason,
same
For this
ing it down.
its lack of
Act is invalid for
2. Because the
the Common-
consider
unnecessary
us to
to address the
we decline
exception,
arguments.
wealth’s other
grounds for strik-
alternative
district court’s
*11
lished
reviewing
standard for
facial chal-
Deferring momentarily the discussion of
lenges of abortion laws in favor of a more whether
per
Carharb
created
se constitu-
liberal standard of review.
tional rule that statutes like the Nebraska
statute must
exception,
health
bold,
The majority’s opinion is a
new law
Virginia
sufficiently
statute is
different
that,
essence,
constitutionalizes infanti-
from the Nebraska
any
statute that
would-
cide of
gruesome
a most
nature. The
per
se
apply
rule does not
to it. The
plaintiff Dr. William Fitzhugh, an abortion-
statute in
provided
Carharb
par-
that “[n]o
ist, sought, through
lawsuit,
this
to protect
tial birth abortion
performed
shall be
ability
his
to perform
by
abortions
crush-
state,”
this
except to save the life of the
ing infants’ skulls or dismembering their
Carharb,
mother.
530 U.S. at
they
limbs when
away
are inches
from
S.Ct. 2597 (quoting
§
Neb.Rev.Stat.
28-
being fully delivered alive
injury
without
328(1)) (internal
omitted).
quotation marks
the infant or to
words,
the mother.
In his
Supreme
The
Court read the Nebraska
“My job
any given
patient is to termi-
prohibit
statute to
an array of abortion
pregnancy,
nate that
which means that I
mebhods that included
“dilation
both
don’t want a
By
live
expanding
birth.”
(“D E”)
evacuation”
&
and “dilation and
extent,
abortion rights to
majority
this
(“D X”).
extraction”
&
See id. at
unnecessarily distances our jurisprudence
S.Ct. 2597. D
generally
& E
refers to
from that of
Supreme
Court and from
destruction of the fetus in the uterus and
general norms of morality.
I profoundly
removal of
destroyed
and even dis-
dissent
today’s
decision.
fetus,
membered
while D X generally
&
I
delivery
refers to
of the fetus into the
vagina in whole or in part and then de-
By casting
holding
Carharb’s
in the
it,
stroying
generally by sucking out the
general
most
terms —that a
may
State
contents of the
skull
by
fetus’
crushing
prohibit partial birth abortions without
Important
skull.
us,
to the case before
providing an exception for the health of
Supreme
Court
scope
summarized the
the mother —the majority rejects Virgi-
of the
by
Nebraska
stating
law
that it “of
nia’s contention
plaintiffs
that the
in this
course,
directly
does not
further an inter-
case
present
did not
“substantial medical
est ‘in
potentiality
of human
life’
authority for the proposition that a health
saving the fetus in question from destruc-
exception is needed in
particular
stat-
tion, as it regulates only a method of per-
ute.”
majority
reasons that “Carharb
forming
abortion.” Id. at
established the
exception require-
2597 (Supreme
emphasis).
Court’s
per
ment as a
rule,”
se constitutional
ante
and accordingly holds that “[b]e-
Unlike
statute,
the Nebraska
Virgi-
cause the Act lacks a health exception, it is nia
protects
statute
itself,
face,”
unconstitutional on its
ante at 626. prohibiting its destruction when it has
gross application
This
of Carharb fails to been delivered alive into the world or at
take into account the nature of the Ne-
halfway
least
into the world. Also in con-
braska statute under consideration in Car-
trast
statute,
the Nebraska
only
harb, the factual findings on which
prohibited
abortion procedures,
Virgi-
Supreme opinion,
based
and the
nia
excepts
statute
from its coverage vari-
reach of
Court’s actual hold- ous abortion
prohibited by
methods
ing.
Nebraska statute1 and limits itself
pro-
portion
The relevant
curettage
suction
proce-
00
dure,
statutory
excludes from the
coverage
(ii) the
aspiration
suction
X
intact D
&
statute bans the
killing ginia
E/D
by prohibiting
the fetus
tecting
*12
(or
“the fetal
born
because
calvarium
procedure
has been
infant who
a “human
of
skull)
completely
proce-
during
not been
alive,
collapsed
[that]
has
is
who
but
its mother
expelled
simplistic
or
a
at
Such
extracted
Ante
dure.”
occurs before
death
of whether
regardless
proce-
and abortion
the statute
view of
from its
expulsion
or
extraction
after
or
the Common-
account for
fails to
dures
Va.Code
completed.”
been
has
mother
fetal
crushing the
that
wealth’s evidence
18.2-71.1(B). Yet,
only by
it is
§
Ann.
neither to terminate
necessary
skull is
the
is
statute
Virginia
that the
assuming
delivery nor to
intact
after an
pregnancy
the
statute that
the Nebraska
as
same
of
safety advantages
purported
the
obtain
Virginia
the
down
to strike
majority is able
procedure.
X
D &
&
the intact
E/D
analysis.
using
per
its
se
statute
incorrect
relying on the
In addition to
characterizes
majority repeatedly
The
Virginia statute is
that
assumption
the
banning abortion
as
Virginia statute
Carhart,
at issue
to the statute
identical
“intact D &
including the
E/D
procedures,
depends on the
analysis also
majority’s
623-24, see also
at
ante
procedure,”
X&
creat-
that Carhart
unsupportable premise
and,
620-21, 624-25,
rely-
619-20,
ante at
Correctly
rule.
per
se constitutional
ed
characterization, analogizes the
ing on that
a “state
holds that
noting that Carhart
Ne-
to the unconstitutional
statute
Virginia
of
to use methods
statute,
Court
women
force
which the
cannot
braska
to their
proce-
greater risks
present
abortion
that
prohibit
interpreted
abortion
methods,”
ma-
analogy, the
ante
employing the
By
other
dures.
health than
available
prohibit-
that
affirm
jority
argue
622-23,
goes
is thus able
on to
majority
at
the safest
might sometimes
ing what
assess-
opinion without
the district.court’s
“in-
procedure
birth abortion
partial
ing whether
—the
procedure” Virginia
X
D &
&
tact
E/D
of
riskier methods
to use
fact force women
—
to obtain a safe
right
a woman’s
infringes
de-
to Virginia’s
In response
abortion.
623-25.
Ante at
abortion.
not
did
this case
plaintiffs
that the
fense
however,
authority
if
overlooks,
“substantial
majority
present
is
destroyed
exception
dur-
deliberately
a health
is not
the proposition
the fetus
statute,”
X
procedure,”
ante
D &
particular
an “intact
in this
ing
needed
E/D
proce-
complete
not be to
a consid-
and it need
that such
majority states
statute,
Nebraska’s
unlike
dure,
es-
“Carhart
irrelevant because
eration
procedure.
statute,
prohibit
does
requirement
the health
tablishes
fetus, not the abor-
killing of
It is the
rule,”
at 625.
ante
se constitutional
per
concern of Vir-
that is the
procedure,
tion
however,
indicates
Nothing
prohibiting
And while
ginia’s statute.
con-
creating a
se
per
Court
a woman’s
increases
procedure
safe
stat-
every
or
abortion
rule
stitutional
banning
risks,
one has contended
no
targets
meth-
ute,
of
regardless whether
an intact
after
of a
destruction
fetus
or
of
the life
ods
mother’s health
implicates the
delivery
interest,
contain
must
state
other
some
this distinction
than address
all. Rather
protection
for the
provides
clause
that the Vir-
majority asserts
directly, and sever-
living
delivery
human infant
of a
(iii)
and evacuation
procedure,
dilation
any infant who
cord
ing the umbilical
involving dismember-
delivered.
completely
been
has
prior to removal from
the fetus
ment of
18.2-71.1(B).
§
mother,
(iv)
Ann.
completing
Va.Code
body
[and]
the mother’s health. To read Carhart so
question
below;
in the trial court
superficially
protection
loses focus of the
the findings and
support
evidence
being implemented there. As the Carhart
Carhart.
said,
“We shall not revisit
those
931-32,
Id. at
Nebraska statute and the Constitution ap Quite apart from considering the actual plied to those facts. In explicitly declining nature Supreme holding Court’s to conduct facial statute, a review of the Carhart, majority elects rely on five the district court found unprepared itself circuit court cases it support contends to conclude that the law was unconstitu its conclusion that Carhart a per created se “regardless tional of how it might be ap rule. See ante at 625-27. Even without plied to a particular plaintiff,” because conducting analysis a full of those nonbind- such an inquiry would many entail too ing decisions for their faithfulness to Car- “unknown” factual circumstances. Car hart, it readily apparent becomes that the hart v. Stenberg, 11 F.Supp.2d 1119- support each provides nil or little. (D.Neb.1998). Supreme The Court Only one of the five circuit court cases upon drew the district findings, court’s as by cited majority stands the propo well texts,” as “related medical applied sition that Carhart per a established se established preexisting jurispru constitutional rule that obviated the need dence to Carhart, that record. See to examine authority in abortion 923-29, U.S. at 2597. Indeed cases. See Heed, Planned v. Parenthood responding to argument, Nebraska’s like (1st Cir.2004) 390 F.3d Virginia’s here, (invalidating that “safe alternatives re parental a main notification law due to its lack available” and that a “ban a health exception), create no granted risk to the cert. women,” health sub nom. — Ayotte responded, Parenthood, Planned not as the ma U.S. — - jority suggests -, here applying per a se L.Ed.2d rule, but noting, (2005). Yet, holding of that case—that The problem for Nebraska is all statutes “regulating abortion must con parties strongly contested this factual tain a health exception in order to survive majority’s opin- from hardly portion omitted challenge,” id.—can constitutional clar- ion). half of the sentence The second interpretation faithful considered understanding Car- majority’s court’s ifies the even under exception rule require se health per created hart does reading, expansive only those laws. but regulations, all abortion partial birth only for health. endanger a woman’s might any con- providing avoids majority why the And, explains clarification pre- citations of its the remainder text necessary to ex- deemed Tenth Circuit reveals inspection closer sumably because in the record contained evidence amine the estab- treating Carhart that —far genuine no [was] “there finding that before rule —the constitutional se lishing per [stat- fact the material directly as to have issue cases court only circuit ability pregnant infringe[d] found ute] question addressed Id. at only after health.” necessary their protect to be women to by the *14 introduced considering evidence 120 S.Ct. Side Choice—East In A Woman’s
parties. court circuit cases remaining. two The 684, Newman, F.3d 305 v. Clinic Women’s Parenthood majority the cited —Planned did Cir.2002), Circuit (7th the Seventh 688 (9th Cir. Wasden, 908 376 F.3d v. Court Supreme the observe indeed 2004), Medical and Women’s Professional a necessity of the treated previously had Cir.2003)— (6th 436 Taft, 353 F.3d Corp. v. legislative a question as exception health proposition the not similarly do stand why it explain on to fact, then but went them. Was- cites majority the for which following that approach: not was a of whether question the den addressed not has the Because adequate provi “must contain regulation however, and explicit, point made this preg her terminate for a woman sion approach undue-burden the because life or to her a threat poses nancy if a between choice prescribe does 922, not the distinct health,” at 376 F.3d adjudicative-fact legislative-fact abortion by partial-birth raised question, appropriate think it we approaches, that regulates bans, a statute whether this record the evidence review but aspect some may be properly inferences from terminat a woman prevent does not stage. pre-enforcement at the drawn a health must contain pregnancy ing her Id. at 688-89. did address And, while exception. Taft sen- truncation majority’s ban, particular partial-birth opin- the Tenth Circuit’s it lifts tence already contained at issue there Owens, 287 v. Parenthood in Planned ion argued party neither exception, health Cir.2002), similarly creates (10th F.3d 910 unnecessary. was exception a health treats circuit that that misimpression only question, 444-45. The F.3d 353 rule. se constitutional per Carhart in the affirma answered court by the quoted full, sentence Read ex health the statute’s tive, whether was state “Thus, current states: majority Id. adequate, constitutionally ception regulations state abortion law is that at 450. protec- for the provide must scant recognizing support Perhaps women pregnant of the health tion cir our sister among per se rule for its might otherwise regulations where those citing a.hand resorts cuits, majority their ability protect their infringe district randomly selected apparently 918, ful of Id. at an abortion.” through health A at 625-27. ante See opinions. court to the added (emphasis 2597 thorough more survey 2000) of the case law re (examining evidence submitted roughly veals a split even between district the parties before concluding that West courts that interpret Carhart to have es Virginia’s partial birth abortion ban “cre per tablished se rule and those that significant ate[d] health risk” and there interpret Carhart require a health ex fore provide had to a health exception). In only if ception the record demonstrates short, majority’s ten-case-long string regulation might issue endan cite disguise cannot the fact ger a woman’s health. Compare Repro weight of authority does not support ductive Health Servs. Planned Parent interpretation of Carhart. Nixon, hood v. F.Supp.2d (W.D.Mo.2004)(striking down a state par II
tial birth abortion ban for lack of a exception without examining evidence in
In addition to its mechanical application
record); WomanCare,
v.
P.C.
Gran
per
rule,
of a
se
which the majority unjust
holm,
F.Supp.2d
854-55
ifiably creates, the majority
ignores
also
(E.D.Mich.2001) (same); Summit Med.
this circuit’s existing standard for facial
Assocs.
Siegelman,
F.Supp.2d
challenges of abortion statutes.'
See
(M.D.Ala.2001)
(relying on Carhart’s
Greenville Women’s Clinic v. Commis
factual findings to strike down a-state par
(“Greenville
sioner
II”),
Women’s Clinic
tial
ban),
birth abortion
with Carhart v.
(4th
317 F.3d
Cir.2002); Green
Ashcroft, 331
*15
(D.Neb.2004)
F.Supp.2d 805
ville
(“Green
Women’s Clinic v. Bryant
(striking down the Federal Partial-Birth
ville
I”),
Women’s
222
157,
Clinic
F.3d
Abortion Ban Act of
in
2003
269-page
a
(4th
165
Cir.2000);
Hunt,
Manning v.
119
opinion, in which the court weighed the
254,
(4th Cir.1997).
F.3d
268-69
It finds
presented
evidence
during the course of a
that our “standard
trial);
does not
two-week
in
apply
the
Nat'l Abortion Fed’n v.
context
Ashcroft,
of a facial
436, 442,
challenge
330
F.Supp.2d
to a stat
482
(S.D.N.Y.2004)
ute
(finding
regulating a
the
woman’s
Federal Par
access to abor
tial-Birth Abortion Ban
tion.” Ante at
unconstitutional
628. In attempting to limit
for lack
a health
of
or distinguish
because the
our rule
apply
and
one that
evidence adduced during a sixteen-day
is more
liberal
its purposes,
majori
the
bench trial demonstrated that
signifi
“a
ty unapologetically violates the well-estab
body
cant
of
opinion”
medical
supported
lished
that
panel
rule
one
of this
may
court
proposition
the
that the ban would endan
not overrule another. See United States v.
ger a woman’s health); Planned Parent
Prince-Oyibo,
494,
(4th
320 F.3d
498
Cir.
hood Fed’n
Am.
Ashcroft,
v.
320
of
2003); Scotts Co. v. United
Corp.,
Indus.
957,
F.Supp.2d
(N.D.Cal.
1012-13, 1033
(4th
315
Cir.2002).
F.3d
271 n.
2004) (holding that “Stenberg’s health ex
The standard
articulated
ception
the Su
requirement does not appear to
preme Court in
Salerno,
United
arise to
States v.
the level of a constitutional ‘rule’
481 U.S.
like
requirements”
Miranda
S.Ct.
95 L.Ed.2d
finding
it
697 (1987), for facial
necessary to
challenges
examine the
of statutes
record before
provides:
determining
“A facial
“significant
challenge
whether
legisla
a
authority
is,
supports
course,
tive act
of
proposition that in
the
most difficult
cases,
some
[intact
challenge
D & is
to mount
E]
the safest
successfully, since the
(internal
procedure”
quotation
challenger
marks and
must establish that no set of
-omitted));
citation
Underwood,
Daniel v.
circumstances exists under which the Act
Finally, seeking to distinguish Green
Had the majority conducted its review
ville
II,
Women’s Clinic
the majority
under
the only standard legally estab
states that
used the
“[w]e
Salerno test
lished in our circuit for facial review of
there, but only in the context of reviewing
statutes,
it would have
it
found
a claim that the regulatory scheme allowed self compelled, in view of the record in this
for the
delegation
standardless
case,
that conclude
infanticide
*17
licensing authority to third
in
parties
viola
statute is constitutional. To
its
achieve
tion of Yick Wo Hopkins,
118 U.S.
6 contrary ruling, the majority trampled not
(1886).”
This 315 F.3d at continues 271 n. 2. our review of the facial constitutional challenges by made Ill abortion clinics in South to Carolina Regulation 61-12 of the South Carolina The underlying principles guaranteeing Department of Health and Environmen- a woman’s right conditional choose Control, tal establishing standards for abortion were not altered by the holding licensing abortion clinics. Carhart, as the Carhart expressly Court Fitzhugh”), have “Dr. individually as 2597. or 921, 120 S.Ct. U.S. noted. See a similar to create record attempted the at hand keep nature it is useful And that Recognizing con Carhart. when created in in Carhart that right applied the only abor- in this case. statute addresses Virginia statute Virginia the sidering the has a live fetus in which procedures tion fetus, has a “woman viability of Before from emerged completely substantially or preg- her to terminate to choose right coverage its excepts its and mother unduly burdens if a statute nancy,” and by proscribed procedures range broad Id. decision, it is unconstitutional. that Carhart, Dr. Fitz- statute the Nebraska marks (citation quotation internal procedures two State, complains about pro- hugh still omitted). the viability, After prohibited potential improperly interest he contends legitimate its tecting First, correct- proscribe, even he life, may “regulate, by Virginia statute. necessary, in killing it is prohibits except where the statute abortion ly asserts for judgment, through medical appropriate fully it is delivered after the fetus health of life or of the preservation As intact, head first. sometimes the cervix (citation quota- and internal Id. mother.” testified, “In such circum- Fitzhugh Dr. omitted). tion marks calva- stances, collapse might I need (skull) com- in order to the fetus Carhart, statute was rium Nebraska In that an pro- Arguing of abortion range procedure.” prohibit plete found to at various by doctors safest abortion employed delivery is often the cedures intact con- various and for growth method, Fitzhugh of fetal stages Dr. contends at the by the doctor confronted ditions from ban- prohibits Constitution Taking conducted. is the abortion time in these fetus the destruction ning and related record the factual into account exception. a health without circumstances conclud- texts, medical Second, claims that Fitzhugh Dr. authority medical ed, substantial “where ability limits his impermissibly also banning a proposition supports involving a feet- complete an endan- could procedure particular of the the head delivery where first “highly is a and there health” women’s ger cervix. in the woman’s lodged becomes why for explanation record-based plausible scenario, Fitzhugh states Dr. such “re- so,” the Constitution might skull, collapses fetus’ crushes the he a health ex- to include the statute quires com- contents, and then sucking out necessary, where ception cor- fetus. He delivery of the pletes judgment, appropriate pro- by performing rectly states that health of life or preservation the statute violate he would cedure 530 U.S. mother.” body had its feet after killing the fetus (citation quota- internal cervix. through the woman’s come omitted). marks tion first scenario Fitzhugh’s Dr. Under us, Fitzhugh and case before In the *18 statute, moth- the Virginia the objecting to Women, Center Medical the Richmond all. at play into brought is not health founder, owner, er’s and he is the of which into delivered fetus is live intact (referred collectively The director2 "to was founded for Women Center Medical in obstetrics Fitzhugh board certified is services,” operates and it practice, provide abortion part his and as gynecology, and Roanoke, which at abor- and second-trimester in Richmond performs over clinics he and Richmond abortions. hospitals first-trimester year perform in physicians each tions Virginia. The Richmond County, Henrico vagina beyond, or it whether is de- statute had to have a exception.3 stroyed after reaching that stage does not The district court reasoned that prohib- affect the mother’s health. As Dr. Charles iting deliveries, intact the doctor had to deProsse, Dr. Fitzhugh’s expert witness, destroy dismember or the fetus inside the testified: mother comply statute, with the
Q. And when presented [the comes fetus] out a greater health risk to the intact,
largely does that mean that mother than would an intact delivery. The you’re able to remove the fetus doctor’s sharp instruments, sharp fetal completely from the woman without fragments, as well as “uterine perfor- any parts disarticulating? ation,” were far riskier to the mother than A. Occasionally that can be. the intact delivery. But the district Q. inAnd court’s assumption instance hap- where that that the statute prohib-
pens, I you take it its intact engage wouldn’t deliveries of live fetuses finds no any other act to kill the fetus basis Virginia statute. The district other than removing it and place court applied CarhaH without recognizing it you place where you tissues the distinction between the stat- Nebraska is that removing; correct? ute and Virginia statute. A. Correct. In contrast to the statute issue in Dr. Fitzhugh could not think of any threat CarhaH, fairly which was construed as to the mother’s scenario, health under this banning deliveries, intact the statute here candidly recognized he that his de- cannot be so construed. Specifically, the struction of the fetus at stage would CarhaH statute prohibiting any “partial preserve not be to health, the mother’s but abortion,” birth banned ] “deliberate! rather to complete the abortion procedure. and intentional[ ] deliver[y] into vagina As he testified: a living, [of] unborn ... child pur ” Q. And the health benefit [to the moth- pose of performing er] is the termination of the preg- knowingly would result in the death of the nancy, not necessarily the death of child. The procedure regard was banned fetus; is that correct? In other less of where within the mother the fetus words—let phrase me way— was destroyed or how it destroyed. termination of the pregnancy go- 530 U.S. at ing to eliminate the health concern (quoting (em § 28-328(9)) Neb.Rev.Stat. with respect to the [mother’s] condi- added). phasis statute this case you tions that just described, bans any “deliberate act intended to whether or not what is removed is kill a human infant who has been born or dead; alive is that correct? alive, but who has not been completely
A. My job ultimate any given pa- extracted expelled mother, from its tient is to terminate that pregnancy, ... does kill such infant.” Va.Code which means I that don’t want a live 18.2-71.1(B). §Ann. words, In other birth. CarhaH statute banned delivery part The district court assumed that of a partial the Vir- birth procedure, ginia prohibits statute intact deliveries of whereas statute does not ban live fetuses —as did Nebraska part if delivery the intact fetus is not reviewed the CarhaH case—and destroyed. there- It bans only killing part fore concluded that under CarhaH the such procedure. The distinction is im- *19 3. The majority adopts now the argu- same ment. See ante at 623-24. advanced Thus, scenario under neither of question the makes it because portant the constitu- challenge to Fitzhugh by Dr. safety ad- intact deliveries
whether he dem- has statute of tionality involving dismem- deliveries vantages- ovér exception. a health for the need case, the onstrated in irrelevant berment about, in- say nothing has be statute could Fitzhugh’s position if Dr. Even the when deliveries intact permits, deed to the a risk demonstrate understood But destroyed. deliberately not life, fetus his health, to her and not mother’s the health (focusing 622-23 ante of opinion see the a risk and on such opinion deliveries). only The of intact advantages mark- differ by Virginia presented doctors delivery is intact in an question relevant a that demonstrates edly. The record endan- would be health a woman’s whether fact exists as material of issue genuine from physician the by prohibiting gered in authority substantial whether that has been killing a fetus intentionally barring that proposition supports fact the still alive. and is so delivered crushing the or collapsing from physicians of a the health endanger fetal skull would Fitzhugh’s second Dr. us to brings That circumstances, summary In these that woman. statute: to the objecting scenario granted. be cannot judgment the involving an abortion during fetus, the fetal skull delivery the breach some evidence Fitzhugh present did Dr. mother’s the lodged becomes crushing sometimes physician a prohibiting that by the to kill cervix, forcing him that head becomes collapsing a fetal or the preserve so crushing its skull endan- cervix would in the mother’s lodged of the mother. health life, health. perhaps the ger mother’s Fitzhugh by Dr. advanced evidence when The first that noted be It must .5% approximately that lodged in establishes becomes the fetus head and his Fitzhugh Dr. D E& abortions cervix, poses the condition mother’s lodged the skull becomes perform, clinics life, and abate mother’s to the threat places This cervix. to crush woman’s risk, Fitzhugh prefers Dr. Fitz- Dr. according to risk it. life at woman’s remove then of the fetus. skull de- Dr. Charles according to And hugh. As he testified: witness, the Prosse, Fitzhugh’s expert if me with you agree would Q. So skull. the fetal compress” “must com- did not you had you the—if scenario delivery plete Virginia, presented evidence The the head [where you just described substantially different however, painted know, you said lodged] you the Common- According to picture.4 — oth- or whatever the skull collapsing testimony, prohibitions wealth’s woman’s er means —that endanger woman’s life would you agree Do risk? be at would alter- equally safe there because that? with covered circumstances in the natives testi- First, Dr. Giles Yes sir. Harlan A. the statute. supports authority no medical statute, fied added). (Emphasis necessary to proposition pro- from its however, makes Similarly, Dr. fetal skull. lodged crush death prevent “to scriptions clini- “is no there 18.2-71.1(E). testified Seeds John §Ann. Va.Code mother.” of that some accordingly Even, infra, consider excluded though district court Virginia's presentation evidence, to describe evidence I Virginia's significant amount picture. V, factual a different improperly, see Part it did so conclude *20 cal [he scenario imagine could] where a IV physician would have to resort a proce- The district court advanced three addi- dure that violated [the statute].” grounds tional for striking Virginia’s down statute, which majority did not address Moreover, Virginia introduced evidence because of its ruling that Virginia stat- showing that equally safe alternatives exist ute per se unconstitutional for failing to for completing an abortion during which include a maternal health exception. Be- the fetal skull has lodged become in the my cause ruling would-be mother’s cervix. Dr. Giles testified that narrow statute need not contain such an the cervix will often dilate naturally I exception, will address these additional expel the skull if given sufficient time. He grounds three advanced the district testified that the can lightly also court, in order. (as crush) compress opposed to the skull using forceps without intending to kill the A fetus to remove from the cervix. Final- First, in holding Virginia statute un- ly, he noted that certain muscle relaxants constitutional, the district court relied on can be used to increase cervical dilation “ Carhart’s holding that a statute that ‘im- and thereby dislodge skull. Dr. Giles poses an undue burden on a woman’s abili- indeed provided testimony that crushing ty’ to choose a D E& abortion ... unduly skull, the fetal preferred by Dr. Fitz- the right burden[s] to choose abortion it- hugh, actually increases the risk to a wom- self.” See U.S. at an’s health due to fragmentation bony S.Ct. 2597 (quoting Casey, 505 U.S. at parts and maternal Similarly, tears. Virgi- 2791). The district court identi- provided nia the testimony of Dr. Mark fied two scenarios physician, given Neerhof before Repre- the House of who perform intends to E, a D & would sentatives Judiciary Committee, in which violate the statute. The first scenario oc- he stated that injecting scissors into the curs when a woman’s cervix is aligned so fetal skull to subjects crush it the woman closely with her vagina that during the to the risk of lacerations to her cervix and procedure, gets cervix pulled uterus and could result in severe bleeding, her vagina. outside Dr. Fitzhugh estimat- shock, and maternal death. ed that he sees such an anatomical config-
Dr. uration Fitzhugh’s only approximately response one-third of to this his con- tradicting second-trimester evidence argue patients. is to He unless claims that in circumstances, such proves that no medical dismem- authority berment of the supports fetus Dr. occurs on Fitzhugh’s assertion, the outside body woman’s Fitzhugh must win and the therefore would statute must not fall within the be statute’s stricken. Dr. for D forgets, Fitzhugh howev- & E procedures er, generally. that he See Va.Code bears the burden proving 18.2-71.1(B) § Ann. (excepting substantial from the medical authority supports statute’s ban the D & E procedure his proposition “involv- that the requires ing dismemberment of the prior maternal exception, and when ques- mother”). removal the body of tions of fact about this proposition exist, the district precluded court is from enter- As an matter, initial the district court ing summary judgment. The issue must erred resolving, on summary judgment, trial, reserved for as was done in Car- the factual question of whether such a hart. scenario actually ever occurs. Dr. Fitz- *21 so procedure D E the & deProsse, excepts statute admitted expert, Dr. own hugh’s the is such before long performed mentions as it is literature no medical Moreover, body. both See Va. the mother’s scenario. removed from an anatomical (B)(iii) doubts similar expressed (excepting experts § Ann. 18.2—71.1 Code. that a possibility the questioned even procedure and E ban D & statute’s a from the her emerge beyond could cervix woman’s pri- the fetus “involving dismemberment Dr. procedure. D & E during vagina moth- body of the from the or to removal his overall based on Seeds testified er”). to expect “would he eiqierience, clinical on a also relied second district court The the cervix to pull to woman’s be able uncon- find the statute to factual scenario the ... unless introitus vaginal level intends to physician stitutional —when as ligaments extremely elastic had woman involving D E dismember- a & perform full-term, vaginal de- multiple, a result body, inside the woman’s of the fetus ment much using too [he] or unless liveries through the prolapses instead but the fetus similarly and testified Dr. Giles force.” lodged becomes and its skull cervix intact about, seen, read had never that he noted found The court cervix. in the woman’s occurring a situation such heard about or then have would physician By disregard- procedure. D E during a & abor- complete skull Fitz- crush Dr. fetus’ accepting testimony and ing this - so, expose tion, himself by doing a basic violated but court the district hugh’s, judg- Be- summary entering liability the statute. under requirement to criminal dispute genuine no there be not know before ment —that physician could cause fact. material far D & E how procedure beginning the con- the court prolapse, the fetus would Moreover, misconstrued the court unconstitutionally the statute cluded that that it it so to construe or chose statute creating a right the abortion in the fac burdens be found unconstitutional could every time he This for the to exist. it found dilemma circumstances tual At ex rel. procedure. States D & E United performs See was error. Hudson Delaware
torney General district court’s with problem Co., 213 U.S. it had resolve is that conclusion (1909) “a when (holding that L.Ed. 836 the material about major disagreement constructions, two susceptible of is summary on a motion case facts consti doubtful grave and of which by one respect with explained As judgment. by the other arise questions tutional exception, a maternal the need for avoided, duty our questions which such whether III, the question supra Part latter”). Fitzhugh ex adopt the is to crushed must fetus’ skull he de circumstances plained lodged become the head has when point occurs scribed, dismemberment by the materials not resolved the cervix the fetus’ E results a D & during genuine parties, submitted cervix, Dr. de- through the passing Virgi- remains. material fact dispute of the dismemberment explained Prosse equally safe showing that evidence nia’s a few centimeters actually occur might exist, including alternatives safer even The district cervix. the woman’s outside skull, cervi- using compressing the gently as ex the statute to construe court chose relaxants, waiting for muscle cal only when D E the & cepting ignored further, cannot be cervix to dilate inside occurs the dismemberment summary in the by the court (or or resolved carefully more body. Read mother’s procedure. judgment questions), avoid constitutional so B press any confusion over the meaning of the question, Dr. Fitzhugh answered the The district court struck down the stat- *22 question in the negative, without hesi- ute also because it denies a woman a right tation. to choose appropriate medical treatment
when she is suffering from an incomplete sum, In none of the grounds additional miscarriage. In the case of a miscarriage, by advanced the district court to find the however, the cause of the fetus’ demise is statute unconstitutional has merit. natural, and the doctor is upon called to treat the mother and assist the natural V process. In no ordinary sense can it be Finally, I Virginia’s address contention said that the physician in a engages “delib- that the district court stacked the factual erate act ... is intended to kill a against deck improperly excluding human who infant has born been alive.” from consideration material evidence that (See 71.1(B). § Va.Code Ann. Even 18.2— would supported and, the statute Dr. Fitzhugh’s expert, deProsse, Dr. testi- more importantly, placed any factfinding fied that the physician’s in treating intent by the district court deeper in doubt. an incomplete miscarriage would be to particular, Virginia contends the dis- treat the mother “preserve and the health (1) trict court erred in striking the testimo- mother,” of the not to kill the fetus. ny Virginia’s of expert, Giles; Dr. Harlan (2) striking portions of the testimony of
C expert, Seeds; other Dr. John Finally, district court found the stat (3) and excluding testimony given before ute vagueness unconstitutional on grounds the United House Representa- States for failing give to physicians fair notice of tives Committee the Judiciary during what prohibits. conduct it A statute is hearings on the federal partial-birth abor- unconstitutionally vague if it pro to “fail[s] tion ban. I address these in order. vide the kind notice that will enable ordinary to people understand what con A duct it prohibits.” Chicago Morales, 56, 527 41, U.S. Virginia proffered S.Ct. the testimony of Dr. (1999). L.Ed.2d 67 Giles, an obstetrician and gynecologist spe- cializing in maternal and medicine, fetal to Here, the district court found terms support parts several defense, of its includ- mother,” such as “from its body “from the ing proposition equally safe alter- mother,” of the body “outside the any natives to mother,” banned “involving dismemberment of statute exist. The district court struck all prior to removal body from the of Dr. testimony Giles’ finding it to mother” unconstitutionally vague. But “unreliable because it [was] conclusion is inconsistent unsupportable. only Not is it incoherent.” In particular, hard imagine person how a district normal court found that Dr. intelligence Giles’ testimony would not con- understand words, cerning those everyday use of forceps but the record dem- to dislodge a onstrates that fetal head Fitzhugh experience and his himself did using medi- not find ambiguous. them cation For example, achieve cervical during dilation D when asked whether it & E procedures be medically testimony contradicted advisable for him to “start that Dr. dismembering given Giles had in prior lawsuit. fetus, part of the fetus that is The district court relied primarily on this already woman,” out aof rather than ex- inconsistency to disqualify Dr. Giles. the rebut- Specifically, Dr. Giles’ method. un course well-established
It is of “consti- that it would testified Pharmaceuti tal witness Dow v. Merrell Daubert der for a malpractice Inc., tute medical cals, 509 U.S. S.Ct. (1993), Tire Co. v. couple Kumho hours ‘just up wait’
L.Ed.2d 137, 119 Carmichael, 526 U.S. cervix to contract the uterus (1999), court has a district fetal lodged 143 L.Ed.2d own to remove dilate on its all any and to “ensure obligation D E where during previability head only rele is not testimony scientific any type is under sedation.” the woman Daubert, U.S. at *23 vant, but reliable.” added). specifically Dr. Giles (Emphasis the Su Although 113 S.Ct. however, that he testimony, in his stated Tire considered in Kumho preme Court 20 min- than 10 to not wait longer would testimony expert’s inconsistency of an if the were cervical woman utes for dilation expert, certifying in not factor as a Finally, the anesthetic. general a under case in that concern overriding Court’s expert Fitzhugh’s own testimony of Dr. used unreliability the method deProsse, Dr. witness, indicated Dr. Tire, 526 U.S. expert. Kumho by not be a breach method would Giles’ contrast, here, the 1167. In care, providing evidence standard con testimony in Dr. Giles’ inconsistencies testimony of conflicted with directly main reason the district court’s stituted Dr. de- witness. Fitzhugh’s rebuttal Dr. inconsistencies, howev the exclusion. wait could Prosse testified that testimony given er, between were a fetal head after long as hours as testimony case and in this Dr. Giles a risk of creating lodged without became earlier case. in an Dr. Giles given by infection. any dif reasons for exploring Without its supported court Finally, the district explanation, allowing for an ference or Dr. testimony to strike decision incorrectly placed itself court district not Dr. Giles could noting Giles factfinder, weighing credi role of support to literature any medical point witness. bility of the muscle relaxants theory that cervical his its de- supported court also The district a fetal head dislodge be used could with testimony Dr. to exclude Giles’ cision E proce- a D & during lodged had become Dr. Giles method that one conclusion on basis Dr. Giles Disqualifying dure. an abortion completing advocated Dr. Fitz- troubling because particularly lodged in the fetus’ head became which the support similarly failed to experts hugh’s fe- awhile for the waiting mother’s cervix— with documented opinions of their several below on its own—fell expel tus’ head chose the court authority, yet true, of care. If accepted standard Dr. deProsse example, For rely them. the conclusion might justify finding such E procedure D & the intact testified methods unreliable that Dr. Giles’ (also extrac- dilation and as the described Yet, to Tire. meaning of Kumho within the safety has ad- procedure) D & X tion or pro- Dr. Giles’ conclusion that reach its D Es and vantages over conventional malprac- constitute methods posed could but he procedures, other abortion testimony of a tice, on the the court relied support- literature any medical not recall only as identified that had been witness Similarly, Dr. de- ing proposition. (because could the witness witness rebuttal that, wom- on a depending testified Prosse conflict testify on direct due not might anatomy, her cervix an’s individual interest). Moreover, if the even rebuttal at times witness’, introitus vaginal her be outside properly consid- testimony was Yet, knew Dr. deProsse E. during a D & question into directly call ered, it did of no medical literature documenting that is unreliable. But as an expert, OBGYN anatomical configuration. Notwithstand- Dr. obviously Seeds knows more about the ing the lack of sup- medical literature to anatomy, female pregnancy, and birth than port Dr. however, testimony, deProsse’s fact, average juror. Seeds, the district court considered and relied on an expert medicine, may maternal/fetal it. rejection The court’s of Dr. Giles’testi- actually qhalified be more to render an mony for that reason created a double opinion than Dr. experts, Fitzhugh’s nei- standard and was an abuse of discretion. ther of expertise whom has in maternal/fe- tal medicine. aAs medicine maternal/fetal B specialist, Dr. Seeds has extensive training The district court also portions struck in the management of high-risk pregnan- the testimony expert other cies, highly which makes him qualified to witness, Seeds, Dr. John based on the speak to possible complications occurring district finding court’s that Dr. Seeds was during pregnancy that could necessitate an expert on neither abortions nor D E& *24 procedures types by banned procedures. Virginia relied on Dr. Seeds’ statute. testimony for expert his opinions on The exclusion of Dr. testimony Seeds’ whether the health by concerns raised highly so irregular that it is difficult for appellees medically were legitimate, me to conceive of the for motive the dis whether a would ever have to trict ruling. any event, court’s In I think resort to a procedure that violated the it clear that the district court abused its statute, and whether any there exists safer testimony. discretion in excluding Dr. Seeds’ alternative performing means for abortions than any procedure that would violate the C addition,
statute. Dr. Seeds answered
general questions about the female anato- Finally, the my. district parts court excluded of the Congressional Record for the feder- Again, the district court abused its dis- abortion, partial-birth al ban as evidence cretion in excluding the of Dr. testimony that such a ban would not endanger a Seeds, particularly with his credentials. woman’s health. This exclusion covered Dr. Seeds is board-certified the fields of all parts of Congressional Record, in- (“OBGYN”) obstetrics and gynecology cluding the House Report Committee medicine. He maternal/fetal is current- the congressional testimony of Dr. Mark ly the chair of the department OBGYN Neerhof, an professor OBGYN at North- the Medical College of Virginia, Virginia University western Spe- Medical School. Commonwealth University. He does not cifically, the district court found that currently perform abortions, but he is fa- report “political” was miliar “untrustworthy” with the procedures performed by and that Dr. physicians other Neerhofs statement his was department. As hearsay. chairman of the department, OBGYN Seeds testified that he would obligated feel Although it was within the district
to advise his staff professionally if the court’s discretion to conclude .the Con- statute would implicate the staffs abortion gressional Report unreliable, the dis- practices any way. again applied court trict a double standard
The district court concluded solely from such reach particular, conclusion. In the fact that Dr. Seeds does not perform the repeatedly court relied on hearsay abortions that testimony in his this matter statements made College American narrowly drafted and fits thus statute is Gynecologists of Obstetricians exceptions recognized Car- within by Dr. (“ACOG”), presented were 530 U.S. hart. See difference no relevant I can see Fitzhugh. (“[I]t have been a simple S.Ct. 2597 testimony before Dr. Neerhofs
between
matter,
excep-
example,
provide
If
statements.
the ACOG
Congress and
D & E and
performance
tion
its dis-
to exercise
court chose
district
id. at
procedures”);
other abortion
testimony,
it
then
such
to exclude
cretion
(O’Connor, J., concurring)
Virginia enacted pillars, supporting infants reason as statute, focusing the life of cess and on cide formulaically and world, alone applied but halfway fully into reason or delivered wring re- context can regard to them- without procedures on abortion than rather carefully reason- the most even sults that Indeed, legal vari- accepted selves. At unacceptable. finds ing decisionmaker over employed procedures “normal” ous decisionmaking lies judicial depths America. abortions 95% only the latter bans procedures while [my] ‘'mandating] suggesting that I am In Virgi- living With this uphold fetuses. I code” as write the destruction moral own statute, majority pre- difference, suggested ante at that we nia’s I material has, in Car- Supreme Court that the prece- sumes hart, can, Supreme Court with consistent "my violates protected conduct deeply dent, Virginia's held accommodate my address and that I should code” moral Carhart, offending position without moral Supreme Court’s decision objections of the Car- beyond the bounds going that in uncon- found Nebraska statute The Carhart. Virginia stat- holding to down strike hart however, differs materi- stitutional ute, only statute but also trample we statute, signifi- most ally it rests. grounds which the moral proscribed certain cantly that the former demanding bedrock accountability to the side of the body woman’s when there is right, mind’s sense of and this bedrock space little or no between the cervical os guides or perhaps even vetoes whatever (the vaginal introitus vaginal absurdities reason might deliver. canal) or when the cervical os prolapses (emerges) vaginal outside the opinions we introitus. today, issue we speak Ante at 621. legal illegal and the ways to dis- member the legs arms and of human fetus- I too have shuddered and must turn away. legal es and the illegal ways to.crush Can we not see that our discussions and budding doctors, human head. The the law we make in striking Virgi- down course, given They choice: can insert prohibition nia’s are unfit for the laws of a scissors into the base of the neck and suck people liberty? I wonder with befuddle- matter, out they the brain or can crush the ment, fear, sadness, how we can so Indeed, tender skull with forceps. some of joyfully celebrate child, the birth of a so these procedures legal remain under Virgi- zealously protect an infant and a mother statute, nia’s but the statute prohibit does who pregnant, reverently so wonder the destruction of a halfway fully about how human begins, life grows, and delivered from its body. mother’s develops, and at the same time write to Fitzhugh complained of this proscription strike down preserve a law to a right to though because—even killing the infant destroy a partially born infant. If the could not affect the mother’s health at that disconnect is explained by personal con- stage could not complete job. his He —he venience, then we must reason that all said, “I don’t want a live birth.” The morality is personal, without majority commonality complaint redresses his with the and source. product of such ruling today. chaos is unfathomable. Even majority’s opinion, however, seems have shuddered at discussing the destruction,
nuances of fetal un- employing
common and clinical if they words as
dull the moral context:
In the case of a vertex presentation, the
physician collapses the fetal calvarium
and then the entire extracts fetus through the cervix. the case of a Ricardo WELCH, Jr., Antonio breech presentation, pulls Plaintiff-Appellant, cervix, fetal trunk through the col- lapses calvarium, the fetal and then com- pletes UNITED America, extraction STATES through the cervix. Ante at Defendant-Appellee. 621.
A third involves the & E in which fetal disar- [*] variation [*] D [*] prohibited [*] by the Act % $ United States No. 04-1863. of Appeals, Fourth Circuit. ticulation occurs outside of the woman’s body. Disarticulation generally occurs Argued March 2005. (the beyond the cervical os por- lower May Decided tion, cervix) or opening, of the as a result of traction against the cervix.
However, may disarticulation occur out-