After the Commonwealth of Virginia
enacted the Virginia Act in April 2003, but before its July 1, 2003 effective date, Richmond Medical Center
and its owner and medical director, Dr. William Fitzhugh
"), commenced this action to declare the Act unconstitutional and to enjoin its enforcement.
The complaint alleged that the Act (1) impermissibly failed to include an exception for the preservation of the mother's health, and (2) defined the term "partial birth infanticide" "so broadly as to ban the safest and most common second trimester method of abortion, the [standard] dilation and evacuation ("D&E") method, and thus [to] impose an undue burden on the woman's ability to choose abortion."
The district court preliminarily enjoined enforcement of the Virginia Act and thereafter entered summary judgment in favor of Dr. Fitzhugh
, declaring the Virginia Act unconstitutional on both grounds alleged by the plaintiffs and permanently enjoining its enforcement.
Richmond Medical Center
for Women v. Hicks, 301 F. Supp.
2d 499, 512-18 (E.D. Va. 2004).
We now conclude that insofar as Dr. Fitzhugh mounts a facial challenge against the Virginia Act, the challenge fails because (1) Dr. Fitzhugh's posited circumstance does not present a sufficiently frequent circumstance to render the Virginia Act wholly unconstitutional for all circumstances; (2) the Virginia Act's scienter language, although different from the Federal Act, nonetheless provides sufficient notice to a reasonable doctor of what conduct is prohibited by the statute; and (3) the provisions for a safe harbor and affirmative defenses, as well as the requirement of "an overt act," ensure that the Virginia Act will not create a barrier to, or have a chilling effect on, a woman's right to have a standard D&E or her physician's ability to undertake that procedure without fear of criminal liability.
Insofar as Dr. Fitzhugh
purports to mount an as-applied challenge, we conclude that he
has not presented sufficiently concrete circumstances in which the asapplied challenge can be resolved, recognizing that "[t]he Act is open to a proper as-applied challenge in a discrete case.
Gonzales v. Carhart, 550 U.S. at 168.
complaint challenging the Virginia
Act, Dr. Fitzhugh
alleged that "[b]ecause of the Act's breadth and vagueness, the Virginia Commonwealth's Attorneys statewide may differ widely over what conduct they believe is proscribed by the Act.
The Act thus subjects physicians to the risk of arbitrary and discriminatory prosecution.
also pointed out that the Act does not permit a physician "to protect a woman from damage to her
health" inasmuch as the statute only contains exception to protect the woman's life.
summarized, "by prohibiting or severely restricting physicians from performing the most common, least expensive, and safest second trimester abortion procedures, the Act impermissibly restricts women's ability to obtain abortions."
The district court accepted Dr. Fitzhugh's
arguments and ruled that the Virginia Act was facially unconstitutional and enjoined its enforcement.
301 F. Supp.
2d at 517.
The court concluded that the Act is unconstitutional "because it fails to contain a health exception," id. at 513, and because the Act "places an undue burden on women's constitutional right to choose an abortion" by banning "pre-viability D&E's" and by "caus[ing] those who perform such D&E's to fear prosecution, conviction and imprisonment," id. at 515.
After the district court entered judgment and we affirmed, the Supreme Court decided Gonzales v. Carhart, 550 U.S. 124, rejecting similar challenges to the Federal Act, 18 U.S.C. § 1531.
On remand of this case from the Supreme Court, Virginia and Dr. Fitzhugh
filed supplemental briefs adjusting their arguments in light of Gonzales v. Carhart.
The record in this case shows that each year, Dr. Fitzhugh
performs about 4,000 first-trimester abortions and about 225 second-trimester abortions.
For second-trimester abortions, Dr. Fitzhugh
usually uses the standard D&E method in which the mother's cervix is dilated for 24 hours and then the fetus is evacuated from the mother in parts.
As the Supreme Court explained in Gonzales v. Carhart, a doctor performing a standard D&E procedure can take from 10 to 15 passes through the uterus to remove all of the parts.
See Gonzales v. Carhart, 550 U.S. at 150-51.
The Court distinguished the "standard D&E" from an "intact D&E" because in a standard D&E, "the doctor intends to remove the fetus in parts from the outset.
Id. at 151 (emphasis added).
testified that in his
practice, between 75 to 85% of the second-trimester abortions he
performs are standard D&E procedures.
might use other procedures.
But "rarely" does a fetus emerge "intact" to the anatomical landmarks of the Federal and Virginia Acts.
estimated such an accidental emergence of the fetus occurs 10% of the time, but he
was unable to cite any instance of the scenario occurring within the previous month or even the previous year.
Even more rare, "less than one-half percent" of the time, according to Dr. Fitzhugh
, the fetus emerges to the anatomical landmark up to its neck and its head becomes lodged in the woman's cervix.
In that circumstance, Dr. Fitzhugh
crushes the fetal skull to remove the fetus, because otherwise, the "woman's life would be at risk.
If an intact fetus emerged head first through the cervix, it would be delivered intact, and the Act would require that it not be deliberately destroyed.
explained, however, that in performing standard D&Es, he
does not see head-first deliveries of an intact fetus, presumably because his
standard D&E procedure involves only 24 hours of dilation.
practice generally, Dr. Fitzhugh
testified that he
always intends to do the standard D&E procedure-in which the fetus is removed in parts.
"Very rarely do you get a whole-you do get a whole fetus out sometimes, but that's very rare.
But Dr. Fitzhugh
contends that when he
does receive an intact fetus, he
"cannot know at the outset of a standard D&E procedure whether [the] prohibited procedure will result.
asserts that if the Virginia Act were to take effect, "[his] only options would be to cease performing standard D&E procedures or to violate the Virginia Ban and then challenge its constitutionality in a criminal enforcement proceeding."
argues principally that the Virginia Act is facially unconstitutional because it imposes an undue burden on a woman's ability to have an abortion using the standard D&E method.
asserts that the standard D&E method is the most common and safest method for a second-trimester abortion and that the Virginia Act, unlike the Federal Act, imposes criminal liability for the performance of an "accidental" intact D&E-i.e., for "procedures that are intended to result in standard D&Es but inadvertently result in intact D&Es.
Because of the alleged facial deficiencies in the Virginia Act, Dr. Fitzhugh
contends that the district court was correct in finding a complete invalidation of the Act.
See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-30 (2006).
contends that the district court erred in invalidating the statute on its face, arguing (1) that the district court should not have entertained a facial challenge alleging overbreadth in the abortion context; (2) that "abortion statutes must be construed to avoid constitutional problems"; and (3) that "if an abortion statute has some constitutional applications, it should not be invalidated in all applications."
The Supreme Court has, as a policy matter, expressed a strong preference for avoiding facial challenges to statutes and has held, in the abortion context, that facial challenges should not be entertained except where the challenged statute "will operate as a substantial obstacle to a woman's choice to undergo an abortion" "in a large fraction of the cases in which [the statute] is relevant.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895 (1992).
The record in this case does not satisfy that standard as Dr. Fitzhugh
does not demonstrate that the Virginia Act criminalizes standard D&Es that accidentally become intact D&Es "in a large fraction of the cases in which [the Virginia Act] is relevant.
We need not, however, attempt to resolve the uncertainty regarding the appropriate criteria for entertaining facial challenges in this case, because, as we explain, Dr. Fitzhugh
cannot successfully mount a facial challenge to the Virginia Act even under the more relaxed "large fraction of the cases" test applied in Casey.
Under the Casey standard, Dr. Fitzhugh
must show that the Virginia Act is unconstitutional in criminalizing standard D&Es that accidentally become intact D&Es "in a large fraction of the cases in which [the Virginia Act] is relevant.
RICHMOND MEDICAL CENTER FOR WOMEN v. HERRING 17 Casey, 505 U.S. at 895.
2d, at 857-858 ("In order for intact removal to occur on a regular basis, Dr. Fitzhugh
would have to dilate his
patients with a second round of laminaria").
This evidence belies any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E.
Gonzales v. Carhart, 550 U.S. at 155 (emphasis added) (citations omitted).
The medical evidence in this case is nearly identical to that presented in Gonzales v. Carhart, whe