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National Abortion Federation v. Ashcroft

August 26, 2004

NATIONAL ABORTION FEDERATION, MARK I. EVANS, M.D., CAROLYN WESTHOFF, M.D., M.SC., CASSING HAMMOND, M.D., MARC HELLER, M.D., TIMOTHY R.B. JOHNSON, M.D., STEPHEN CHASEN, M.D., GERSON WEISS, M.D., ON BEHALF OF THEMSELVES AND THEIR PATIENTS, PLAINTIFFS,
v.
JOHN ASHCROFT, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ALONG WITH HIS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND SUCCESSORS IN OFFICE, DEFENDANT



The opinion of the court was delivered by: Casey, District Judge

OPINION & ORDER

Plaintiffs, a non-profit organization providing abortion services, and seven individual physicians, seek to permanently enjoin enforcement of the Partial–Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (the "Act"), which imposes potential criminal and civil penalties if a physician performs a certain abortion procedure. The Act bans the procedure called "partial-birth abortion," and exempts from its prohibition only those abortions necessary to save the life of the mother. This medical procedure has been described by many, including Justices of the Supreme Court, as gruesome, inhumane, brutal, and barbaric. Plaintiffs challenge the Act on the grounds that the Constitution requires an exemption to permit the procedure when it is necessary to preserve maternal health; the Act imposes an undue burden on a woman's right to choose an abortion; it is unconstitutionally vague; the Act fails to serve any legitimate state interest; the life exception is constitutionally insufficient; and the Act violates women's rights to equal protection of the laws.

I. BACKGROUND

A. The Act

The Act prohibits any physician in the United States, "in or affecting interstate or foreign commerce [from] knowingly perform[ing] a partial-birth abortion."*fn1 18 U.S.C. § 1531(a). Partial-birth abortion is defined under the Act as:

an abortion in which the person performing the abortion (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

Id. § 1531(b)(1).*fn2 The Act applies regardless of the stage of pregnancy and thus bans partial-birth abortions both before and after fetal viability.*fn3

The Act subjects physicians to possible criminal and civil penalties. A violation of the statute constitutes a felony that carries a sentence of not more than two years' imprisonment, and/or a fine of not more than $250,000.*fn4 Id. § 1531(a); see also id. § 3571(b)(3). In terms of potential civil liability, the Act allows the putative "father" of the fetus (if he is married to the woman) or the putative "maternal grandparents of the fetus" (if the woman has not attained the age of eighteen) to "obtain appropriate relief" in a civil action, "unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion." Id. § 1531(c)(1). Such relief may include: "(A) money damages for all injuries, psychological and physical, occasioned by the violation of [the Act]; and (B) statutory damages equal to three times the cost of the partial-birth abortion." Id. § 1531(c)(2).

The Act permits a partial-birth abortion if it is necessary to preserve maternal life. The life exception states, "This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." Id. § 1531(a). The Act bans the procedure in all other instances.

The Act does not include a health exception because Congress determined that partial-birth abortion is never medically necessary to preserve maternal health and, in fact, may pose serious health risks to the mother. Congress therefore concluded that a health exception was unnecessary and made several findings to this effect. In section 2(14) of the Act, Congress found that "partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; [and] poses additional health risks to the mother." § 2(14)(O), Pub.L. No. 108–105, 117 Stat. 1201, 1206. Congress also concluded that there is "no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures" and that "a ban on partial-birth abortion is not required to contain a 'health' exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman." Id. §§ 2(13), 14(B), 117 Stat. at 1203–04; see also id. § 1, 117 Stat. at 1201 (finding that partial-birth abortion is "never medically necessary and should be prohibited"); id. § 2(2), 117 Stat. at 1201 (concluding that "partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women"); id. § 5, 117 Stat. at 1202 (declaring that "a partial-birth abortion is never necessary to preserve the health of a woman"); id. § 14(F), 117 Stat. at 1205 (reasoning that "[a] ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy"); id. § 14(G) (finding that the prohibition will "promot[e] maternal health"). Finally, Congress found that "[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion ... is never medically necessary and should be prohibited." Id., § 2(1), 117 Stat. at 1201.

The President signed the Act into law on November 5, 2003, and it went into effect at 12:01 a.m. the following day. See 18 U.S.C. § 1531(a) (stating that the Act would take effect one day after enactment).

B. Procedural History of This Case

Plaintiffs initiated this action on November 4, 2003, asserting several constitutional defects.*fn5 First, Plaintiffs contend that the Act violates the Fifth Amendment's Due Process Clause by failing to provide a health exception from its proscription of partial-birth abortion. (Compl.¶¶ 49–52.) Plaintiffs also challenge the Act on the grounds that it: (1) contains an inadequate life exception; (2) defines the term "partial-birth abortion" so broadly as to also ban D & E and induction termination *fn6 —other methods of second trimester abortion involving vaginal delivery of the fetus—and thus imposes an undue burden on a woman's right to reproductive choice; (3) is impermissibly vague in defining the banned conduct; (4) fails to serve a legitimate state interest; and (5) violates women's right to equal protection guaranteed by the Fifth Amendment. (Id. ¶ ¶ 53–60.) If Plaintiffs are correct on any one of these grounds, the Act is unconstitutional and must be permanently enjoined. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 930, 937, 946, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Planned Parenthood Fed'n of Am. v. Ashcroft, 320 F.Supp.2d 957, 960, 1034–35 (N.D.Cal.2004).

On November 5, 2003, hours after the Act was signed into law, the Court held a hearing on Plaintiffs' application for a temporary restraining order. The following day, the Court granted Plaintiffs' application and temporarily restrained enforcement of the Act through November 21, 2003. See National Abortion Federation v. Ashcroft, 287 F.Supp.2d 525, 526 (S.D.N.Y.2003). On November 10, 2003, the Government requested that the Court consolidate the proceedings on the preliminary and permanent injunctions, and set a hearing date within 120 days to permit a period of expedited discovery. Plaintiffs consented to this proposal, provided that they were permitted to move for summary judgment on their claim that the Act was unconstitutional for lack of a health exception. On November 18, 2003, the Court ordered the parties to engage in expedited discovery preceding a consolidated hearing. In addition, Plaintiffs were granted permission to file their proposed summary judgment motion. Upon the Government's consent, the Court extended the temporary restraining order until March 19, 2004.

On March 15, 2004, the parties stipulated that the temporary restraining order should be extended until the Court rendered its decision on the merits and issued a final judgment.*fn7 On March 17, 2004, the Court denied Plaintiffs' motion for summary judgment and reserved for trial the issue of whether the Act is unconstitutional for lack of a maternal health exception. See National Abortion Federation v. Ashcroft, 2004 WL 540470, at *5 (S.D.N.Y. Mar.17, 2004). Beginning on March 29, 2004, the Court conducted a sixteen-day bench trial, hearing testimony from twenty-two witnesses, sixteen of whom appeared in person and six via deposition.

Courts in the Northern District of California and the District of Nebraska held parallel trials in cases challenging the Act's constitutionality. As did this Court, both temporarily restrained the Act's enforcement. See Carhart v. Ashcroft, 287 F.Supp.2d 1015, 1016 (D.Neb.2003); Planned Parenthood, 320 F.Supp.2d at 967. Following a trial on the merits, the Northern District of California permanently enjoined enforcement of the Act. See Planned Parenthood, 320 F.Supp.2d at 1034–35. The application for a permanent injunction remains pending in the District of Nebraska.

C. The Congressional Record

1. 104th Congress

Congress first held hearings on proposed versions of the Act during this legislative session. The House Subcommittee on the Constitution of the Judiciary Committee held two hearings while the Senate Judiciary Committee held one.

(a) June 1995 House Hearing

The House subcommittee held the first hearing on June 15, 1995. (H.R.Rep. No. 104–267, at 12 (1995).) Two physicians and one nurse testified in favor of a ban, while a physician and a woman who had an abortion testified in opposition. (June 1995 Hearing at iii.) The hearing lasted approximately two and one-half hours. (Id. at 1, 102 (recording times at which subcommittee met and adjourned).)

Dr. Pamela Smith, a board-certified obstetrician and gynecologist, testified in favor of the proposed legislation. Dr. Smith used a model to describe the D & X procedure, and her testimony concentrated on the ethical dilemmas faced by physicians who perform D & X abortions. (Id. at 38–39.) The doctor described the similarities between D & X and the delivery of a breech baby, arguing that because the procedure is similar to techniques used to preserve fetal life, D & X "produces a moral dilemma that is even more acute than that encountered [with D & E]." (Id. at 42.) Dr. Smith further testified that during her fifteen years as a physician she had never experienced a situation that necessitated a D & X procedure in order to preserve maternal life and that supporters of the procedure have not substantiated their claims that the procedure is safe. (Id. at 39, 40.)

Dr. Robert J. White, a brain surgeon, neuroscientist, and a professor of surgery at Case Western Reserve University, supported the ban and testified on the topic of fetal pain. (Id. at 38, 67.) He testified that by the twentieth week of gestation, a fetus has developed the capacity to feel pain and is possibly more sensitive to painful stimuli than at birth. (Id. at 67, 69.) Mary Ellen Morton, a neonatal nurse, also testified as to fetal pain. (Id. at 76–79.)

Dr. J. Courtland Robinson, an associate professor in the Department of Gynecology and Obstetrics at Johns Hopkins University, testified against the ban. (Id. at 38, 63.) Her testimony did not focus on whether D & X offered safety advantages for some women; rather, Dr. Robinson confined her testimony to her view that Congress's definition of partial-birth abortion was overly broad, as it applied to both D & E and D & X procedures. (Id. at 63–65.)

The subcommittee also heard testimony from Tammy Watts, a woman who previously had an abortion, and Professor David M. Smolin of Cumberland Law School, who discussed the constitutionality of the proposed legislation. (Id. at 38, 71–74, 97–102.)

The record of this hearing contains statements from physicians, a member of Congress, and representatives of advocacy groups. ( See id. at 103–42.) Among those submissions is a letter from Dr. Watson A. Bowes, Jr., Professor at the University of North Carolina at Chapel Hill. (Id. at 104–07.) While Dr. Bowes stated that he had never witnessed a D & X, he shared his belief that fetuses feel pain during the procedure and that the proposed bill would not prohibit other, accepted medical procedures. ( See id. at 105–06.) Dr. Martin Haskell, M.D.'s paper Dilation and Extraction for Late Second Trimester Abortion, which describes the procedure, was also included in the record. ( See id. at 4–28.)

During the House debate, additional statements by physicians were introduced. For example, Drs. Mitchell Creinin and Lewis H. Koplik, both of whom stated that they regularly perform abortion procedures, opposed a ban that lacked a health exception on the grounds that D & X is medically necessary for certain maternal health conditions and may be safer than alternative procedures. (141 Cong. Rec. H11610 (daily ed. Nov. 1, 1995).)

(b) November 1995 Senate Hearing

The Senate Judiciary Committee held its first hearing on the proposed ban on November 17, 1995. ( Partial–Birth Abortion: Hearing Before the Senate Committee on the Judiciary, 104th Cong. 1 (1995) [November 1995 Hearing].)

During the approximately six-hour hearing, a total of ten witnesses testified; five of these witnesses were physicians. Two of these physicians, Drs. Smith and Robinson, had testified before the House subcommittee and reiterated their previous testimony. (Id. at 75–99 (Smith); id. at 103–05 (Robinson).) Dr. Norig Ellison, the President of the American Society of Anesthesiologists, testified that anesthesia given to a woman during a D & X would not eliminate pain to the fetus or cause fetal demise. Dr. Ellison did not voice any view as to the proposed legislation's effect on women's health. (Id. at 107–08.) Dr. Nancy Romer, a board-certified obstetrician and gynecologist, testified in favor of a ban and stated that during her thirteen years of practicing obstetrics, she never had a patient who required the procedure because of a maternal illness or fetal abnormality. (Id. at 109.) In her view, a majority of the procedures were elective. (Id.)

Finally, Dr. Mary Campbell, the medical director of Planned Parenthood of Metropolitan Washington, and a board certified obstetrician and gynecologist, testified against the ban. (Id. at 99.) She provided general background on abortion procedures and testified that the vagueness of the proposed act would have a chilling effect on the availability of abortion services and outlaw the safest way of terminating a third-trimester pregnancy. (Id. at 101.)

The Senate also heard testimony from Brenda Pratt Schaefer, a registered nurse, who testified about partial-birth abortions that she had observed. (Id. at 17–19.) Helen Alvaré, a representative of the National Conference of Catholic Bishops, testified as to the morality of partial-birth abortion, equating it with infanticide. (Id. at 112–15.) Finally, the committee heard from three women who experienced complications during the later stages of pregnancy and two law professors who had conflicting views as to the ban's constitutionality. (Id. at 158–65, 169–71, 188–90.)

Record submissions included a letter from Dr. Warren M. Hern, Assistant Clinical Professor at the University of Colorado Health Sciences Center, who stated that D & X may reduce the risk of uterine perforation and embolism of cerebral tissue into the woman's blood stream. ( See id. at 242, 247–48.) The written testimony and letters also included statements from a senator, women who had undergone abortions, and lawyers testifying about the constitutional and policy implications of the bill. ( See id. at 236–41, 280–335, 344–50, 352–59, 362–63.) The committee received letters from the National Abortion Federation ("NAF") (a plaintiff in this case), ACOG, the American Nurses Association ("ANA"), and Planned Parenthood Federation of America, Inc. ( See id. at 337–40.)

During the Senate debate, a letter from Dr. Antonio Scommegna, an obstetrician and gynecologist and head of the Department of Obstetrics and Gynecology at the University of Illinois, was introduced. (141 Cong. Rec. 17892–93.) Dr. Scommegna wrote Congress to express his view that the ban would be harmful to women's health. (Id. at 17892.) He recounted a specific instance in which he performed, in his view, a medically necessary D & X on a hydrocephalic fetus. (Id.) According to the doctor, the only option available to him other than a D & X would have significantly increased the woman's risk of infection and affected her future fertility. (Id.)

(c) March 1996 House Hearing

The final hearing of this legislative session was held on March 21, 1996, and focused exclusively on whether anesthesia administered to the mother during a D & X would result in fetal demise. ( Partial–Birth Abortion: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong. 1, 352 (March 21, 1996) [March 1996 Hearing].)

Four anesthesiologists testified during the six-hour hearing—Dr. Ellison (who had testified before the Senate in November 1995), and Drs. David Birnbach, David Chestnut, and Jean Wright. Each doctor stated that the administration of an anesthetic to the mother would not cause fetal demise, and therefore would not alleviate the pain a fetus endures during the D & X procedure. (Id. at 138–50.) Three witnesses who had testified before the Senate four months earlier presented testimony which tracked their previous statements. (Id. at 310–12 (statement of Brenda Pratt Shafer); id. at 320–24 (statement of Coreen Costello); id. at 331–33 (statement of Helen M. Alvaré).) In addition, the subcommittee considered the testimony of Mary–Dorothy Line, who opposed the ban while recounting her experience undergoing a D & X. (Id. at 326–29.)

Both the Senate and House of Representatives passed a bill banning partial-birth abortion. President Clinton vetoed the legislation. Senate attempts to override the veto failed.

2. 105th Congress

The 105th Congress again considered proposed legislation to ban partial-birth abortion. In a joint hearing before the House and Senate Judiciary Committees in March 1997, members of Congress heard from ten witnesses over a five-hour hearing. (March 1997 Hearing at v, 1.) Only one of these witnesses, Dr. Curtis Cook, provided testimony on whether partial-birth abortion was safer in some instances. (Id. at 120–22.) Three witnesses presented their personal experiences undergoing abortions and their personal views on the issue; the remaining six witnesses represented the policy-based views of advocacy groups such as the National Coalition of Abortion Providers, Planned Parenthood, the National Right to Life Committee, and the National Conference of Catholic Bishops. (Id. at 17–25, 31–33, 35–37, 124–31.)

Dr. Cook, a board-certified obstetrician and gynecologist and maternal-fetal medicine specialist, who also testified at trial in this case, presented his view that a health exception is not necessary. (Id. at 120–22.) He first described the steps involved in a partial-birth abortion. (Id. at 121–22.) Dr. Cook then opined that the procedure is unnecessary and potentially dangerous to maternal health, based on his view that the procedure involves: (1) the forceful placement of multiple dilators into the cervix, which could lead to cervical complications; (2) a greater risk of preterm birth; (3) an increased risk of bleeding and infection; and (4) converting the fetus into a footling breech, or feet-first, position—an obsolete obstetrics technique. (Id. at 122.) Dr. Cook also testified that in his experience, a partial-birth abortion is never the only available technique, even in the face of various maternal-health conditions. (Id.)

The hearing record also contains statements from members of Congress and law professors, letters from advocacy groups, and medical articles. (Id. at 1–17, 135–43, 157–70.)

3. 106th Congress

During the 106th Congress, both houses debated proposed versions of the Act but neither conducted additional hearings. More noteworthy, the Supreme Court in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), held that Nebraska's partial-birth abortion ban was unconstitutional.*fn8

4. 107th Congress

In 2002, Representative Steve Chabot introduced a version of the Act, asserting that it differed from previous proposals in order to address the Stenberg decision. (July 2002 Hearing at 2.) Specifically, Representative Chabot explained that the proposal contained a more precise definition of the prohibited procedure and that Congress's factual findings addressed why a health exception was unnecessary. (Id.) At the outset of the July 9, 2002 hearing, Representative Chabot stated that there existed a medical consensus that partial-birth abortion is an inhumane procedure and is never medically necessary. (Id. at 1.) Over the next ninety minutes, the subcommittee heard testimony from a panel that consisted of four witnesses: Dr. Aultman and Dr. Cook, both of whom previously testified before Congress, and Simon Heller and Robert Destro, attorneys who had conflicting views as to the constitutionality of the legislation. (Id. at 4–6.)

Dr. Aultman testified that the Act was not vague, and that even absent a health exception the proposal would not endanger women's health. (Id. at 6–7.) He supported the proposed legislation on the grounds that partial-birth abortion is a dangerous experimental procedure that jeopardizes women's health and blurs the line between abortion and infanticide. (Id. at 7.) In terms of the health exception, the doctor testified that there exist "standard alternative methods available" other than D & X to abort a fetus, such that the procedure is never medically necessary. (Id. at 8.) Finally, Dr. Aultman testified that a woman faced increased health risks by undergoing a D & X instead of a D & E, including increased risk of hemorrhage, infection, and cervical incompetence. (Id.) Dr. Aultman therefore concluded that the ban would actually safeguard women's health. (Id. at 9.)

Dr. Cook voiced support for the proposed legislation as well. He testified that during his ten years of practice he had never encountered a situation in which the procedure was required or safer than alternatives. (Id. at 26.) Dr. Cook also testified that after conversing with colleagues, he had yet to learn of an instance when a D & X was the only available option to terminate a second-trimester pregnancy. (Id.) Noting that the procedure was outside the mainstream of medical care, Dr. Cook explained that he was not aware of any material instructing physicians how to perform a D & X other than information presented at a NAF seminar. (Id.) Dr. Cook therefore supported the ban, explaining that D & X is an "unnecessary" procedure that is "potentially unsafe for women." (Id. at 27.)

The House subcommittee also heard from two attorneys who discussed whether the Act would survive a constitutional challenge. Professor Destro of the Catholic University of America testified that the proposed legislation would pass constitutional muster. (Id. at 5, 20–21.) On the other hand, Simon Heller, who represented the plaintiff in Stenberg, argued that the proposed legislation was unconstitutional. (Id. at 5, 15–16.)

The record for the 107th Congress also contains statements from members of the House of Representatives, letters from doctors, and medical papers. (Id. at 47–280.) In a letter dated May 19, 1997, the American Medical Association (the "AMA") indicated its support for the bill because it included a life exception and narrowly defined the prohibited procedure. (Id. at 124.) The AMA also stated that its expert panel could not identify any circumstances in which the procedure would be the only appropriate abortion method, and that the procedure had no history in peer-reviewed literature or in accepted medical practice. (Id. at 186.) The AMA's expert report on late-term pregnancy termination techniques concluded that: (1) partial-birth abortion is not a medical term, (2) D & X is a distinct procedure from D & E, and (3) D & X should not be used "unless alternative procedures pose materially greater risk to the woman." (Id. at 203.)

ACOG's Executive Board issued a Policy Statement Regarding Intact Dilation and Extraction on January 12, 1997, that was included in the record of the hearing.*fn9 According to the policy statement:

A select panel convened by ACOG could identify no circumstances under which [D & X] would be the only option to save the life or preserve the health of the woman. [A] ... D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision.

(Id. at 232.) In a Fact Sheet on the policy statement, ACOG indicated among its reasons for opposing a ban on D & X that D & X may be the most appropriate abortion procedure when the woman has sepsis, and may decrease the risk of cervical laceration and uterine rupture. (Id. at 241–42.)

The record for this hearing also includes a joint statement from the AMA and ACOG. ( See id. at 220–21.) Referring to the bill then pending before Congress, the organizations jointly stated:

Although our organizations take different positions on the legislation, with the AMA supporting the ... legislation and ACOG opposing it, we agree that each organization believed and believes the position it took furthers the best interests of patients.

(Id. at 220.)

In addition, a letter of September 18, 1996 to members of Congress from PHACT stated:

[A]s doctors intimately familiar with [cases of women undergoing abortions due to fetal abnormalities], let us be very clear: the partial-birth abortion procedure, as described by Dr. Martin Haskell (the nation's leading practitioner of the procedure), and defined in the Partial–Birth Abortion Ban Act, is never medically indicated and can itself pose serious risks to the health and fertility of women.

(Id. at 184.) PHACT also responded to ACOG's 1997 Statement of Policy. ( See id. at 236–44.) According to PHACT:

ACOG clearly recognizes that in no circumstances is partial-birth abortion the only option for women. In other words, ACOG agrees that there are other, medically recognized, and standard procedures available to women other than partial-birth abortion. Given ACOG's acceptance of this medical fact, [the] claim that a totally unrecognized, non-standard procedure, for which no peer-reviewed data exist, can nonetheless be the safest and most appropriate in certain situations, simply defies understanding.

...

In contrast, our research of the subject leads us to conclude that there are no obstetrical situations that would necessitate or even favor the medically unrecognized partial-birth abortion procedure as the safest or most appropriate option. Indeed, we have concerns that this procedure may itself pose serious health risks for women.

(Id. at 237.)

5. 108th Congress

During the 108th Congress, both houses again debated a ban on partial-birth abortion. However, only the House of Representatives conducted a hearing. On March 25, 2003, a single panel of three witnesses testified about the proposed legislation during a ninety-minute hearing. ( Partial–Birth Abortion Ban Act of 2002: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 107th Cong. 1, 35 (March 25, 2003) [March 2003 Hearing].)

Two of the panelists, Professor Gerard V. Bradley of Notre Dame Law School and attorney Simon Heller, discussed the constitutionality of the ban. (Id. at. 5–6.) Professor Bradley testified that a ban lacking a health exception would survive judicial scrutiny. (Id. at 16–17.) As he had done the year before, Heller voiced a contrary view. (Id. at 10–12.)

Dr. Neerhof, an Associate Professor of Obstetrics and Gynecology from Northwestern University Medical School, provided testimony on fetal pain, the ethical dilemmas posed by partial-birth abortion, and whether partial-birth abortion offers safety advantages for some women. (Id. at 5–7.) Dr. Neerhof testified in support of the ban for several reasons, including his belief that partial-birth abortion poses health risks to women. He stated that a woman who undergoes a D & X faces increased risk of hemorrhage, infection, and uterine perforation and rupture. (Id. at 7.) Moreover, he supported the ban in light of the fact that no studies evaluated or attested to the safety of D & X. (Id. at 6.)

Among the statements offered into the record was a letter from Dr. Philip D. Darney, M.D., Professor at the University of California, San Francisco, and Chief of Obstetrics, Gynecology and Reproductive Services at San Francisco General Hospital. ( See id. at 100–01.) Dr. Darney provided examples of two cases in which he believed D & X was "critical to the safe conduct of our surgery." (Id.) The first woman, according to Dr. Darney, had placenta previa and a blood clotting disorder; D & X was used to control the amount of blood loss. (Id. at 100.) The second woman also had placenta previa and three previous caesarian sections, placing her at risk of hemorrhage and hysterectomy.*fn10 (Id.) Dr. Darney claimed that D & X was used to avoid the need for hysterectomy and to reduce the amount of blood loss. (Id.)

Another physician, Dr. Daniel J. Wechter, M.D., Assistant Professor of Obstetrics and Gynecology at Michigan State College of Human Medicine, wrote in response to Dr. Darney's letter and disagreed that D & X was necessary for the two patients described. ( See id. at 102–03.) Dr. Wechter opined that the second patient could have delivered a healthy child by a caesarean section followed by hysterectomy. (Id. at 102.) Other physicians also wrote letters disagreeing with Dr. Darney's assertions, including Drs. Bowes, Steve Calvin, Nathan Hoeldtke, Byron C. Calhoun, T. Murphy Goodwin, and Susan E. Rutherford. ( See id. at 104–13.) Other physicians wrote letters expressing their views on the medical necessity of D & X. ( See id. at 113–19, 186–95.)

The views of medical organizations such as Physicians for Reproductive Choice and Health ("PRCH"), the American Medical Women's Association, Inc. ("AMWA"), ACOG, and PHACT were included as part of the hearing record. ( See id. at 120–45, 197–209.) ACOG's Executive Board issued a Statement of Policy in September 2000, which reiterated its position asserted in the 1997 policy statement. ( See id. at 197–200.) Also made a part of the hearing record was a statement from the AMA in 1999 stating that it no longer supported the legislation. ( See id. at 212.)

In sum, forty-six physicians offered their views to the 105th through 108th Congresses surrounding the health and safety advantages of D & X. Twenty-three physicians voiced support for the ban, twenty-two opposed it, and one physician offered a neutral assessment. Of the forty-six physicians, thirty-six were trained in obstetrics and gynecology. Of this number, seventeen supported the ban, while nineteen opposed it.

During the 108th legislative session, Congress passed the bill. On March 13, 2003, the Senate passed S. 3, the Partial–Birth Abortion Ban Act of 2003, by a vote of 64 to 33. (Ex. V–6, Cong. Rec. S3658; see also March 2003 Hearing at 1 (statement of Rep. Chabot, Member, House Comm. on the Judiciary).) The House of Representatives passed a virtually identical bill, H.R. 760, on June 4, 2003, by a 282–to–139 vote. (Ex. V–7, Cong.Rec.H4950.) On October 2, 2003, the House of Representatives passed the Conference Report for S. 3, the Partial–Birth Abortion Ban Act of 2003, by a vote of 281 to 142. (Ex. W, Cong.Rec.H9154–55.) The Senate passed the Conference Report for S. 3 on October 21, 2003, by a vote of 64 to 34. (Ex. W–1, Cong.Rec.S12948.) The legislation was then sent to the President, who signed the Act into law.

6. Views of Advocacy and Medical Associations

Throughout Congress's consideration of partial-birth abortion legislation, it heard the views of professional and medical-services organizations. The Court summarizes those views here, both as present in the congressional record and supplemented at trial in this case. Nine medical organizations opposed the ban, while two medical organizations supported it. One organization initially supported a ban on D & X, only to reconsider its position.

(a) Associations Opposing the Act

Opposing the ban were: (1) ACOG; (2) AMWA; (3) the American Public Health Association ("APHA"); (4) PRCH; (5) ANA; (6) NAF; (7) the California Medical Association ("CMA"); (8) the Maine Medical Association ("MMA"); and (9) the Association of Reproductive Health Professionals ("ARHP").

ACOG, a professional organization of board-certified obstetricians and gynecologists, opposed the ban. (Tr. 178:10–179:10 (Cain).) ACOG stated that although there may be alternatives to D & X to preserve maternal life or health, there may be times when D & X is the best or the most appropriate procedure. (149 Cong. Rec. S12921 (daily ed. Oct. 21, 2003) (statement of ACOG).) ACOG further believed that only a physician, in consultation with a patient, should decide which abortion procedure a woman should undergo. (Id.) The ACOG policy statement was not voted upon by its members; rather, its Executive Board adopted the policy based on the conclusions of a panel that considered the matter.*fn11

At trial in this matter, the Government contended that there was no forum in which ACOG's current policy on D & X was discussed or voted on by its entire membership. (Tr. 2229:3–16 (Cain).) According to the Government, the final policy statement did not become available to ACOG's membership until after it was already approved by the Executive Board, and the panel that submitted the proposed policy statement to the Executive Board was not involved in any discussions about the board's changes. (Tr. 2227:15–25, 2462:4–9 (Cain).) Therefore, the Government argues that it is questionable whether the ACOG policy statement accurately represents the views of its membership. The Executive Board reaffirmed its policy statement as recently as September 2000, and it remains the policy of ACOG. (Tr. 176:9–178:9, 187:2–190:2 (Cain).)*fn12

AMWA, an organization of female physicians, residents, and medical students, also opposed the Act. (March 2003 Hearing at 201; 149 Cong. Rec. S11597 (daily ed. Sept. 17, 2003); Tr. 1243:18–25, 1263:8–1265:6 (Kissell).) AMWA opposed the Act because it believes the Act prohibits a procedure that in some circumstances may be the safest and the most appropriate means to preserve a woman's health. (March 2003 Hearing at 201; 149 Cong. Rec. S11597; Tr. 1256:2–7 (Kissell).) This position was expressed in a letter to Congressman Jerrold Nadler, the ranking member of the House Subcommittee on the Constitution. (March 2003 Hearing at 201; 149 Cong. Rec. S11597; Tr. 1254:12–16 (Kissell).) Meghan Kissell, AMWA's director for communications and advocacy, prepared the letter by relying upon a similar letter from AMWA to Congress regarding prior legislation. (Tr. 1254:12–1255:12, 1273:13–15 (Kissell).)

The Government contends that AMWA never issued a formal position statement on the Act or predecessor legislation, and that Kissell independently prepared AMWA's letters to Congress. (Tr. 1271:1–7, 1272:21–1273:2, 1275:20–1276:15 (Kissell).)

Like ACOG and AMWA, APHA also opposed the Act. APHA consists of members from public-health occupations, including obstetricians and gynecologists. (Tr. 1291:19–1294:12 (Baker).) APHA opposed the Act because it does not include a health exception in circumstances in which a physician determines that D & X is the best or the most appropriate procedure to preserve the health of the woman. (149 Cong. Rec. S11596–97 (daily ed. Sept. 17, 2003); Tr. 1278:24–1279:15, 1297:5–11 (Baker).) APHA based its stance on its long-standing policy favoring a woman's right to reproductive choice. (140 Cong. Rec. S11596–97; Tr. 1279:18–1280:12 (Baker).) The organization expressed its position in a letter to Congress. (140 Cong. Rec. S11596–97.) Again, the Government argues that APHA did not consult its members while preparing the letter. (Tr. 1302:24–1303:2 (Baker).)

NAF presented testimony before Congress against the ban. Its executive director, Vicki Saporta, testified that D & X may be the most appropriate medical procedure for some women and that, even after viability, the procedure may be necessary to preserve maternal health. (March 1997 Hearing at 31–32.)

CMA submitted a letter to Congress to express its opposition to the ban. It contended that a ban on D & X would be deleterious to women's health. CMA cited specific reasons for this view, which included that D & X would "maintain [ ] uterine integrity, reduc[e] blood loss .... [and] permit[ ] the performance of a careful autopsy and therefore a more accurate diagnosis of ... fetal anomal[ies]." (142 Cong. Rec. S11351 (daily ed. Sept. 26, 1996).) For these reasons, CMA informed Congress that it believed D & X "may provide substantial medical benefits.... [and] is safer in several respects than the alternatives." (Id.)

Drs. Natalie Roche and Gerson Weiss co-authored a letter on behalf of PRCH, a professional organization of practicing obstetricians and gynecologists and academics. (149 Cong. Rec. S11597–98 (daily ed. Sept. 17, 2003).) Although the letter primarily opposed the Act on the ground that it failed to narrowly define partial-birth abortion so as to include only D & X, it also opposed the ban for lack of a health exception. (Id.) According to PRCH, banning the procedure would endanger the health of women. (Id. at 1597.)

ANA, a professional organization representing registered nurses, likewise opposed the ban. (November 1995 Hearing at 338; see also 149 Cong. Rec. H9150 (daily ed. Oct. 2, 2003) (statement of Rep. Stark).) It contended that D & X may be necessary when a fetus has severe abnormalities. (November 1995 Hearing at 338.)

MMA, a medical association whose membership includes both "pro-choice" and "pro-life" individuals and which does not endorse elective abortions during the third trimester of pregnancy, wrote Congress to oppose the Act. (145 Cong. Rec. S12897 (daily ed. Oct. 20, 1999).) MMA espoused the view that D & X "may be the most medically appropriate procedure for a woman in a particular case." (Id.) The organization expressed several reasons for its opinion; among them were that D & X maintains uterine integrity, reduces blood loss, and may be the only option when certain fetal anomalies are present. (Id.) MMA also opined that unlike any other surgical abortion procedures, D & X would permit an accurate autopsy and diagnosis of fetal anomalies, thereby providing a woman with genetic counseling to prepare for future pregnancies. (Id.)

ARHP wrote Congress to oppose the ban as well. (149 Cong. Rec. S12938 (daily ed. Oct. 20, 2003) (statement of ARHP).) The organization opposed the Act on several grounds, including that it lacked a maternal health exception. (Id.) Although it did not provide specifics to support its contention, ARHP concluded that the restriction on D & X would be harmful to maternal health. (Id.)

(b) Associations Supporting the Act

In contrast, the congressional record contains testimony of two associations that supported the ban: PHACT and the Association of ...


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