Haskell v Voinovich

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION


WOMEN'S MEDICAL PROFESSIONAL CORP.

and

MARTIN HASKELL, M.D.,

Plaintiffs,

vs.

GEORGE VOINOVICH, GOVERNOR, STATE OF OHIO

and

BETTY MONTGOMERY, ATTORNEY GENERAL, STATE OF OHIO

and

MATTHIAS HECK, JR., PROSECUTING ATTORNEY, MONTGOMERY COUNTY, OHIO,

Defendants.

Case No. C-3-95-414
JUDGE WALTER HERBERT RICE


DECISION AND ENTRY GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION (DOC. #2); DEFENDANTS, EMPLOYEES, AGENTS, SERVANTS PRELIMINARILY ENJOINED FROM ENFORCING ANY PROVISION OF HOUSE BILL 135, PENDING A FINAL DECISION ON THE MERITS; CONFERENCE CALL SET TO DETERMINE FURTHER PROCEDURES TO BE FOLLOWED IN THIS LITIGATION.
Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of either rational discussion or compromise, as is the ongoing controversy, of which this case is but the latest chapter, over the legality of attempts by the State to regulate abortion -- the act of voluntarily terminating a pregnancy, prior to full term.1
1 According to the Supreme Court's opinion in Roe v. Wade, 410 U. S. 113 (1973), until the last half of the nineteenth century, most states used the English common-law approach to abortion, which only criminalized abortion after the fetus "quickened," or moved in utero, which typically occurred during the sixteenth to eighteenth weeks of pregnancy. Id. at 132, 138. In the latter half of the nineteenth century, a number of states enacted statutes which criminalized abortion, at any stage of pregnancy. Id. at 139. By the end of the 1950s, most states banned all abortions except those necessary to preserve the life or health of the mother. Id.

In Roe, the Supreme Court held that a pregnant woman has a constitutional right to privacy, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which prevents states from proscribing abortion before viability. 410 U.S. at 147-65. Roe also established a trimester framework: during the first trimester, the State could not interfere with the woman's decision to have an abortion; during the second trimester and until viability, the State could regulate abortion in ways that were reasonably related to the mother's health; after viability, the State could proscribe abortion, except where necessary to preserve the life or health of the mother. Id. at 163-65.

In Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992), the Supreme Court reaffirmed Roe's "central holding" that, prior to viability, the State could not prohibit any woman from obtaining an abortion, because of the woman's liberty interest as protected by the Fourteenth Amendment to the United States Constitution. In contrast to Roe, however, the Court placed a greater emphasis on the State's interest in potential life throughout pregnancy. Accordingly, the Court discarded the trimester framework in Roe, and allowed the State to regulate pre-viability abortions as long as the regulation did not impose an "undue burden": that is, as long as the regulation had neither "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 2820-21.

In the few years since Casey was decided, several states have enacted regulations on pre-viability abortions, and the constitutionality of some of these regulations has been challenged. See, e.g., Planned Parenthood v. Miller, 63 F.3d 1452 (8th Cir. 1995) (striking down parental notification provisions, criminal provisions, and civil penalty provisions; upholding mandatory information requirements); Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995) (striking down ban on abortions after 20 weeks, fetal experimentation ban, and choice of method requirement; upholding of medical emergency exception); Fargo Women's Health Org. v. Schafer, 18 F.3d 526 (8th Cir. 1994) (upholding mandatory information requirement, 24-hour waiting period, and medical emergency definition); Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.) (upholding parental consent requirement and judicial bypass mechanism), cert. denied, 114 S.Ct. 468 (1993); Barnes v. Moore, 970 F.2d 12 (5th Cir.) (upholding informational requirement and 24-hour waiting period), cert. denied, 113 S.Ct. 656 (1992); Utah Women's Clinic, Inc. v. Leavitt, 844 F.Supp. 1482 (D. Utah 1994) (upholding 24-hour waiting period and medical emergency exception); Planned Parenthood v. Neele, 804 F.Supp. 1210 (D. Arlz. 1992) (striking down medical emergency definition, and definition of medical procedures with respect to an abortion).


Over the course of six days of hearings, this Court has heard testimony from a number of medical practitioners, each expert in the field in which he or she testified. This Court believes that, regardless of the personal opinions of these professionals, whether pro-choice or pro-life, each testified, not in accordance with those personal opinions, but rather on the basis of his or her medical opinion. So, too, has this Court endeavored to put aside its personal opinion on the issues herein, in order to render an opinion which it believes is mandated by the present state of the law.

This case presents a challenge to the constitutionality of House Bill 135, which was enacted by the Ohio General Assembly on August 16, 1995, and was to have become effective on November 14, 1995. After hearing two days of testimony, this Court granted a ten-day Temporary Restraining Order on November 13, 1995, which was extended for an additional ten days, and was set to expire today, on December 13, 1995. Following four additional days of testimony, the Court now issues a preliminary injunction which enjoins enforcement of the three major portions of the Act: the ban on the use of the Dilation and Extraction ("D&X") abortion procedure; the ban on the performance of post-viability abortions, and the viability testing requirement. During the effective period of this preliminary injunction, no part of House Bill 135 may be enforced, as there is no part which appears to be either constitutional, or severable, from the remainder of the Act.

This Act creates two separate bans, and a separate requirement with regard to post-viability abortions. First, the Act bans the use of Dilation and Extraction ("D&X") procedure2


2 The D&X procedure is defined as:

The termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. "Dilation and Extraction procedure" does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion.

O.R.C. § 2919.15(A).

in all abortions, including those performed before viability. O.R.C. § 2919.15(B). Physicians who are criminally prosecuted or sued civilly for violating this ban may assert, as an affirmative defense, that all other available abortion procedures would pose a greater risk to the health of the pregnant woman. § 2919.15(C); ः.51(C). Second, the Act bans all post-viability abortions, except where necessary to prevent the pregnant woman's death, or to avoid a serious risk of substantial and irreversible impairment to a major bodily function.3
3 The determination that a post-viability abortion is necessary must be made in good faith, and in the exercise of reasonable medical judgment. O.R.C. § 2919.17(A).
§ 2919.17(A). For purposes of the post-viability ban only, any unborn child of at least 24 weeks is presumed to be viable.4
4 The gestational age is calculated from the first day of the last menstrual period of the pregnant woman. § 2919.16(B).
§ 2919.17(C). Third, the Act also imposes a viability testing requirement before an abortion may be performed after the 22nd week of pregnancy. § 2919.18. Unless a medical emergency exists, any physician intending to perform a post-viability abortion must meet several requirements.5
5 The following requirements apply to post-viability abortions: (1) the physician must certify the necessity of the abortion in writing, (2) a second physician must certify the necessity of the abortion in writing, after reviewing the patient's medical records and tests, (3) the abortion must be performed in a health care facility which has access to neonatal services for premature infants, (4) the physician must choose the abortion method which provides the best opportunity for the fetus to survive, unless it would pose a significantly greater risk of death to the pregnant woman, or a serious risk of substantial and irreversible impairment to a major bodily function, and (5) a second physician must be present at the abortion to care for the unborn human. O.R.C. § 2919.17(B)(1). These conditions need not be complied with if the physician determines, in good faith and in the exercise of reasonable medical judgment, that a medical emergency exists and prevents compliance. § 2919.17(B)(2)
The Act creates civil and criminal liability for violations of the D&X ban or the post-viability ban, and criminal liability for violations of the viability testing requirement.6
6 Violation of the viability testing requirement is a fourth degree misdemeanor. O.R.C. § 2919.18(B). Violation of either the D&X ban or the post-viability ban is a fourth degree felony. § 2919.15(D), § 2919.17(D). A patient upon whom one of these procedures is performed or attempted to be performed is not criminally liable. § 2919.15(B), § 2919.17(E) . She may, however, sue within one year of the procedure or attempted procedure for compensatory, punitive, and exemplary damages, as well as for costs and attorneys fees. § 2307.51(B), § 2307.52(B). Derivative claims for relief may also be brought. § 2305.11(D)(3)&(7).

Plaintiff Women's Medical Professional Corporation ("WMPC") operates clinics and provides abortion services in Montgomery, Hamilton, and Summit Counties (Doc. #1, ¶5). Plaintiff Haskell, a doctor affiliated with Plaintiff WMPC, formerly performed abortions after the 24th week, but no longer does so; he uses the D&X procedure for abortions during the 21st to 24th week of gestation (Id., ¶6). On October 27, 1995, Plaintiffs filed this suit for declaratory and injunctive relief from all provisions of the Act, on their own behalf and on behalf of their patients. Plaintiffs allege that this Act imposes an undue burden on the rights of their patients to choose an abortion, and, further, that the Act's provisions are unconstitutionally vague and fail to give physicians fair warning as to what actions will incur criminal and civil liability. Accordingly, they seek to enjoin the Act as a violation of Plaintiffs' rights to privacy, liberty, and due process, as guaranteed by the Fourteenth Amendment to the United States Constitution.

I. Jurisdiction, Ripeness, Standing, Preliminary Injunction Standard

Before addressing the merits of Plaintiffs' request for a preliminary injunction, this Court must address three issues relating to its jurisdiction over this action. First, because this case involves a challenge to the constitutionality of a state statute under the United States Constitution, federal question jurisdiction is proper under 28 U.S.C. § 1331. Second, even though Plaintiff Haskell has not yet been prosecuted for violating the Act, this case is ripe for decision because a doctor facing criminal penalties for performing abortions may sue for pre-enforcement review of the relevant statute. Doe v. Bolton, 410 U.S. 179, 188 (1973).

Third, Plaintiff Haskell has the necessary standing to raise both his own rights and the rights of his patients. Because Plaintiff Haskell has asserted that he intends to continue performing the D&X procedure after this law takes effect, he is at direct risk of prosecution, and has standing to seek pre-enforcement review of this statute. Doe, 410 U.S. at 188. Given the close relationship between Plaintiff Haskell and his patients, and given the obstacles which prevent pregnant women from challenging this statute, including a desire for privacy and the imminent mootness of their claims, he may also assert third-party standing and raise the rights of his patients. Singleton v. Wulff, 428 U.S. 106 (1976) (plurality opinion) (allowing two doctors to sue for declaratory and injunctive relief from state statute taking away Medicaid funding for abortions), cited with approval in Planned Parenthood Ass'n v. Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987). It is also noteworthy that in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), an action for declaratory and injunctive relief from a state statute restricting the right to abortion was brought by similar plaintiffs: abortion clinics and a doctor. Based on the foregoing authority, Plaintiff Haskell has standing to bring this action, and to assert both his own rights and the rights of his patients. Although Defendants have argued that the Plaintiff must show that a particular woman will be impacted by the Act in order to have standing to raise her rights, this Court agrees with Plaintiff Haskell's argument that such a showing is unnecessary. It is sufficient that Plaintiff Haskell has alleged that he regularly has patients upon whom he performs the procedure, and that he will have such in the future.7


7 In addition, this Court notes that one such patient, Jane Doe Number 2, testified in this hearing after her abortion was performed by Dr. Haskell on November 30, 1995 -- two weeks after the Act was to have taken effect.

Plaintiff Haskell also has standing to challenge the provisions of the Act which ban post-viability abortions, codified at O.R.C. § 2919.17, and the viability testing requirement in O.R.C. § 2919.18. Defendants have argued that he lacks standing to challenge these provisions, because he only performs the D&X procedure up through the 24th week of pregnancy (Defendant's Memorandum in Opposition, Doc. #11, p.27, 34). The ban on post-viability abortions, however, imposes a refutable presumption of viability at 24 weeks, O.R.C. § 2919.17(C), which will apply to Plaintiff Haskell. If, in certain cases, he is unable to rebut the presumption of viability, the remaining provisions relating to the ban on post-viability abortions will also apply to him. In addition, Plaintiff Haskell will have to satisfy the viability testing requirement for any patients he treats who are in or beyond their twenty-second week of pregnancy. Therefore, Plaintiff Haskell also has standing to challenge these provisions of House Bill 135.

Plaintiff WMPC sues on behalf of its physicians who are employed at its various affiliated locations, and on behalf of women who receive medical services, including abortions, at these locations. This Court does not now reach the issue of whether Plaintiff WMPC has standing to bring this action, due to an inadequately developed factual record.8


8 For example, although Plaintiff WMPC has asserted that it has standing because it will incur civil liability under the Act, this Court does not now have facts sufficient to conclude that Plaintiff WMPC may be civilly liable.
This issue need not be reached at this time, because Plaintiff Haskell's standing is sufficient to allow this action to go forward. Accordingly, the remainder of this opinion will use "Plaintiff" in the singular, in reference to Plaintiff Haskell. This Court now turns to the merits of Plaintiff's Motion for a Preliminary Injunction.

When considering whether a preliminary injunction is proper, this Court must consider four factors: (1) the substantial likelihood of the Plaintiff's success on the merits; (2) whether the injunction will save the Plaintiff's patients from irreparable injury; (3) whether the injunction would harm others;9


9 This third prong is also construed as a "balancing of equities"; to wit, whether the harm which would be suffered by the Plaintiff if the injunction were not granted, outweighs the harm which would be suffered by the Defendant if the injunction were to be granted.
and (4) whether the public interest would be served by issuance of the injunction. International Longshoremen's Ass'n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir. 1991), cert. denied, 112 S.Ct. 63 (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985)). This Court need not conclude that all four factors support its decision. Chrysler Corp. v. Franklin Mint Corp., 1994 U.S. App. LEXIS 18389, at *4 (6th Cir. 1994). Rather than being "rigid and unbending requirements" that must be satisfied, these factors are intended to guide this Court's discretion in balancing the equities. In re Eagle-Picher Industries. Inc., 963 F.2d 855, 859 (6th Cir. 1992). For example, the degree of likelihood of success which is required to issue a preliminary injunction may vary according to the strength of the other factors. In re DeLorean Motor Co., 755 F.2d at 1229. This Court must make specific findings as to each of these factors, unless fewer are dispositive of the issue. International Longshoreman's Ass'n, 927 F.2d at 903.


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Posted 9 Sep 2000.

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