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Importantly, Plaintiff Haskell has standing in this lawsuit not only to raise his own rights, but also to raise the rights of his patients. Therefore, this Court need not decide whether the harm which Plaintiff Haskell will suffer if prosecuted criminally or sued civilly under the Act, is irreparable. Instead, this Court will focus on the harm which will b suffered by his patients.
Both Jane Doe Number One and Jane Doe Number Two testified that they chose to terminate their pregnancies, late in the second trimester, after discovering that their unborn children had severe anomalies. If this Act had been in effect, either or both of these women may have been prevented from terminating their pregnancies under either the provisions of the viability testing requirement, or the provisions of the post-viability ban. In both cases, the fetus may well have been determined to have been viable, and would not have been able to be aborted.
In this Court's opinion, the cost of being forced by the state to carry to term a child without a spine, or functioning kidneys, or with other such severe defects, is beyond description. It is difficult to imagine how horrible it would be to knowingly carry a child to term who is dying, or who has no reasonable chance of normal physical development.43
In addition, it is impossible to calculate the harm which would be suffered by a pregnant woman who, though she would prefer to try surgery or other methods to mitigate her unborn child's severe defects, is compelled by this ban on post-viability abortions -- which only allows an abortion if her physical health is in danger -- to terminate her pregnancy before the ban can apply to her, instead of taking measures to help her unborn child, because she feared the emotional and mental cost of carrying a child to term who had such severe defects. It is difficult to imagine a clearer example of irreparable harm, than is evidenced by these two scenarios.
As for the harm suffered by pregnant women who are unable to terminate their pregnancies by means of the D&X procedure, Jane Doe Number Two testified that the procedure was helpful to her because it allowed her fetus to be aborted intact, which was necessary for the performance of an autopsy. After learning that the defect was not genetic, she and her husband had more children. Jane Doe Number One testified that the D&X procedure was much easier to endure than an earlier abortion performed by use of an induction procedure. In addition, this Court has held that Plaintiff has demonstrated a substantial likelihood of success of showing that the alternatives to the D&X procedure -- induction methods, hysterotomies, and hysterectomies -- are neither as safe to the mother's health, nor as available to women seeking non-therapeutic abortions. Pregnant women in this state who are unable to terminate their pregnancies by means of the D&X procedure may therefore suffer irreparable harm, either because other abortion methods are not as safe for their health, or because other abortion methods are not as available to them.
Based on the above, this Court concludes that a preliminary injunction would serve to prevent irreparable injury to the- patients of Plaintiff Haskell.
As far as the Defendants' interests are concerned, a preliminary injunction will merely maintain the status quo while the constitutionality of this legislation is decided. The potential for irreparable injury to some of Plaintiff's patients has already been discussed; in addition, other pregnant women may be harmed by specific provisions of the Act. For example, the objective reasonableness standard in the medical-emergency definition may chill the discretion of a pregnant woman's physician in determining that a medical emergency exists, to the detriment of her health. As another example, the apparent vagueness of the determination of non-viability may chill physicians from determining that certain fetuses are not viable, and, therefore, may place an undue burden in the path of a woman seeking a pre-viability abortion. In this Court's opinion, therefore, the harm to the patients whom Plaintiff represents, should the preliminary injunction be denied, would be greater than the harm to the Defendants, if the injunction were granted.
In this Court's opinion, the public interest is best served by a full and fair hearing on the merits of the constitutionality of this legislation, particularly in view of the fact that the Plaintiff has demonstrated a substantial likelihood of success of showing that numerous provisions in House Bill 135 are unconstitutional. Accordingly, the Court concludes that the public interest would be served by the issuance of a preliminary injunction.
(1) it has federal question jurisdiction, under 28 U.S.C. § 1331, over this constitutional challenge to a state statute,
(2) Plaintiff Haskell may seek pre-enforcement review of House Bill 135, and this lawsuit is therefore ripe;
(3) Plaintiff Haskell has standing to bring this action, and may assert both his own rights and the rights of his patients;
(4) the Salerno standard no longer applies to a facial challenge to pre-viability abortion regulations;
(5) the Salerno standard does not apply to a facial challenge to post-viability abortion regulations;
(6) although a state may proscribe most abortions subsequent to viability, the state may not take away a pregnant woman's right to have a post-viability abortion where, in appropriate medical judgment, such an abortion is necessary to preserve her life or health -- accordingly, strict scrutiny should not be utilized in this analysis;
(7) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of "Dilation and Extraction procedure" in O.R.C. § 2919.15(A) is unconstitutional, because of vagueness;
(8) Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on use of the D&X procedure in § 2919.15(B) is unconstitutional, because the state may not ban an abortion procedure unless there are safe and available alternatives, and because this ban may chill the exercise of a woman's right to a pre-viability abortion;
(9) Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on use of the D&X procedure dons not serve the stated interest of preventing unnecessary cruelty to the fetus;
(10) Plaintiff has demonstrated a substantial likelihood of success of showing that the mandated determination of non-viability in § 2919.18(A)(1), as applied to the post-viability ban (§ 2919.17(A)(2)) and the viability testing requirement (§ 2919.18), is unconstitutional, because the objective standard in that determination is inconsistent with the purely subjective standard in the definition of viable in § 2919.16(L);
(11) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of serious risk of the substantial and irreversible impairment of a major bodily function in § 2919.16(J), as it applies to one allowable exception to the ban on post viability abortions, in 2919.17(A)(1), is unconstitutional, because its limitation to factors relating solely to physical health impermissibly restricts the physician's determination of whether an abortion is necessary to preserve the health of the pregnant woman;
(12) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of medical emergency in § 2919.16(F), as it applies to the post-viability ban (§ 2919.17) and the viability testing requirement (§ 2919.18), is unconstitutional, because it lacks a scienter requirement, and thus is vague, and because it does not allow the physician to rely on his or her own best clinical judgment that a medical emergency exists, and so may chill physicians from determining that a medical emergency exists even where necessary to preserve the pregnant woman's life or health;
(13) Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician concurrence requirement in § 2919.17(B)(1)(b) is unconstitutional, because it impermissibly limits the primary physician's discretion, and because it may chill the performance of post-viability abortions that are necessary to preserve the life or health of the mother;
(14) Plaintiff has demonstrated a substantial likelihood of success of showing that the choice of method requirement in § 2919.17(B)(l)(d) is unconstitutional, because it requires the woman to bear an increased medical risk, forces the physician to "trade off" the pregnant woman's health for that of the fetus, and impermissibly interferes with the physician's exercise of discretion, to the detriment of the pregnant woman's health;
(15) Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician attendance requirement in § 2919.17(B)(1)(e) is unconstitutional, because the medical emergency exception appears to be unconstitutional;
(16) Plaintiff has demonstrated a substantial likelihood of success of showing that the rebuttable presumption of viability in § 2919.17(C) is unconstitutional, because the mandated determination of non-viability in House Bill 135 appears to be unconstitutional;
(17) Plaintiff has demonstrated a substantial likelihood of success of showing that the viability testing requirement in § 2919.18(A)(1) is unconstitutional, because the medical emergency definition appears to be unconstitutional, and because the mandated determination of non-viability appears to be unconstitutional.
This Court further concludes that the issuance of an injunction will prevent irreparable injury to the patients of Plaintiff Haskell, that such injury outweighs the injury which will be suffered by Defendants if this injunction is issued, and that the public interest would be served by the issuance of this preliminary injunction.44
However, this Court assures Counsel for the Plaintiff and the state Defendants that their detailed, proposed Findings of Fact and Conclusions of Law was thoroughly reviewed and form the basis of much of the discussion contained herein. This includes the submissions of the state Defendants which were not fully delivered to this Court's chambers, by facsimile, until 3:45 a.m., this date. In short, the diligent effort of Counsel has not been in vain.
For purposes of completing the record, this Court also renders the following evidentiary rulings: Plaintiff's Exhibit 24 is admitted, for the limited purpose of showing the position of the American College of Obstetricians and Gynecologists on the federal Partial Birth Abortion Act of 1995, but not for the truth of the statements asserted therein. Plaintiff's Exhibit 25 is excluded, as hearsay.
WHEREFORE, based upon the aforesaid, this Court orders that the Plaintiff's Motion for a Preliminary Injunction be GRANTED, effective as of the filing of this opinion. Accordingly, Defendants, their employees, agents, and servants are preliminarily enjoined from enforcing any provision of House Bill 135. Having considered the issue of bond as is required by Rule 65 of the Federal Rules of Civil Procedure, this Court concludes that no bond should be required of the Plaintiff .
Counsel listed below will note that a brief telephone conference will be held, between Court and Counsel, beginning at 4:00 p.m., Eastern time, on Friday, December 22, 1995, for the express purpose of determining further procedures to be followed in this litigation. Specifically, Counsel should be prepared to discuss whether they wish to proceed to trial upon the merits of the captioned cause, at a date in mid-1996, or whether, in the alternative, Defendants wish to take an immediate appeal of this decision to the Sixth Circuit Court of Appeals, pursuant to 28 U.S.C. § 1292(a)(1).
December 13, 1995
WALTER HERBERT RICE
UNITED STATES DISTRICT JUDGE
David C. Greer, Esq.
Alphonse A. Gerhardstein, Esq.
Sarah Poston, Esq.
Kathryn Kolbert, Esq.
Diane Richards, Esq.
Marilena Walters, Esq.
Elissa Cohen, Esq.
Chris Van Schaik, Esq.
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Posted 9 Sep 2000.
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