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PLANNED PARENTHOOD OF CENT. NEW JERSEY v. VERNIERO

July 27, 1998

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY, et al., Plaintiffs,
v.
PETER G. VERNIERO, et al., Defendants.



The opinion of the court was delivered by: HUGHES

MEMORANDUM OPINION

 (Filed July 27, 1998)

 HUGHES, U.S.M.J.

 This matter comes before the Court upon Defendants' application to permit certain testimony at a hearing on Plaintiffs' motion for a permanent injunction. Plaintiffs oppose Defendants' motion by seeking to limit Defendants' presentation and also seek leave to file a summary judgment motion. The Court reviewed the parties' written submissions and conducted oral argument on July 13, 1998. The Court also permitted supplemental written memoranda, received on July 24, 1998. For the reasons that follow, Defendants' application is granted in part and denied in part, and Plaintiffs' application for leave to file a summary judgment motion is denied.

 I. BACKGROUND

 On December 15, 1997, the New Jersey State Legislature passed "an act prohibiting the performance of partial-birth abortions." Act of 1997, ch 262, 1997 N.J. Sess. Law Serv. 271-72 (West) (to be codified at N.J. Stat. Ann §§ 2A:65A-5 to -7) [hereinafter the Act]. The Act initially passed both houses of the New Jersey Legislature in June 1997, but was vetoed by Governor Whitman on the "advice of the Attorney General, the Office of Legislative Services, and [her] chief counsel that the bill in its current form is unconstitutional." Veto of A-2409, dated June 23, 1997. On December 4, 1997, the New Jersey assembly overrode Governor Whitman's veto; on December 15, the New Jersey Senate followed suit and the Act had immediate effect. See Act § 4.

 Immediately after the Legislature enacted the Act, Plaintiffs filed this lawsuit against Attorney General Peter Verniero, the New Jersey Board of Medical Examiners, and Len Fishmann, Commissioner of the Department of Health and Senior Services. On December 16, 1997, the Court entered a temporary restraining order prohibiting Defendants from enforcing the Act. Attorney General Verniero stated that he would not defend the Act as he had already declared the Act unconstitutional. On December 22, 1997, the New Jersey Legislature moved to intervene and defend the lawsuit. On December 24, 1997, the Court granted the Legislature's motion and, with the parties' consent, extended the temporary restraining order until final resolution of the case.

 Plaintiffs challenge the Act as unconstitutional and request a permanent injunction against enforcement of the Act. Plaintiffs cite four reasons to declare the Act unconstitutional. First, "the definitions of prohibited abortion methods were so imprecise as to render the laws unconstitutionally vague." Brief for Plaintiff at 3-4. Second, "the ambiguous definitions [of the Act] potentially encompass all of the safest and most common abortion procedures and unduly burdened the right to obtain abortions by chilling the provision of these procedures." Brief for Plaintiff at 4. Third, "the laws force physicians and their patients to resort to less safe and less available methods of abortion." Brief for Plaintiff at 4. Fourth, "the [Act] lack[s] constitutionally compelled exceptions for abortions necessary to preserve maternal health, and included only constitutionally inadequate exceptions for abortions necessary to preserve maternal life." Brief for Plaintiff at 4.

 II. PROPOSED WITNESSES

 Pursuant to the case management order filed July 7, 1998 the parties have submitted proposed lists of witnesses for the hearing to be conducted on September 10-13, 1998. Plaintiffs seek to offer four witnesses and Defendants seek to offer fourteen specific witnesses, and three, or more, potential witnesses.

 A. Plaintiffs' Witnesses

 1. Carolyn Westoff, M.D.

 Plaintiffs seek to offer Dr. Westoff to testify about the various methods of abortion, the safety of these methods, how she and other physicians perform abortions, the factors that inform choice of method for any given physician and patient, and how Dr. Westoff interprets the language of the Act. Dr. Westoff's testimony concerns the Act's vagueness, which method the Act reaches, and the impact of the Act on women. Dr. Westoff is an Associate Professor of Clinical Obstetrics and Gynecology and Public Health (Epidemiology) at the College of Physicians and Surgeons of Columbia University.

 2. David Wallace, M.D.

 Plaintiffs seek to offer Dr. Wallace's testimony on how physicians perform various abortions, the factors involved in choosing an abortion method, and which methods Dr. Wallace understands the Act to reach. Dr. Wallace's testimony addresses the Act's vagueness, the methods of abortion the Act reaches, and the medical impact of the Act on women. Dr. Wallace is President of the Medical Staff, Chairman of the Department of Obstetrics and Gynecology, and Director of the Residency Program at Monmouth Medical Center in New Jersey.

 3. Herbert Holmes, M.D.

 Dr. Holmes is a plaintiff in this case and will testify about how physicians perform various abortions, the factors that inform choice of method for any given physician and patient and which methods Dr. Holmes understands the language of the Act to reach. This testimony is relevant to the issues of vagueness, the methods the Act could reach, and the medical impact of the Act on women. Dr. Holmes is a Clinical Associate Professor of Obstetrics and Gynecology at the University of Medicine and Dentistry of New Jersey.

 4. Gerson Weiss, M.D.

 Dr. Weiss is a plaintiff in this case and will offer medical background and technical evidence to assist the Hearing Judge determine the Act's constitutionality. Dr. Weiss oversees the provision of all obstetrical and gynecological care at UMDNJ-Newark, including abortions for women up to 18 weeks lmp (last menstrual period). Dr. Weiss performs abortions and teaches residents the full range of obstetric and gynecological care, including abortions. He will testify to the vagueness of the Act's language and how it could affect his practice. Dr. Weiss is a Professor, Chairman and Chief of Service of the Department of the Obstetrics and Gynecology at UMDNJ in Newark, New Jersey.

 B. Defendants' Witnesses

 Summary evaluations of each proposed defense witness can be seen in Court Exhibit A. See infra p. 15.

 1. Brian Clowes, Ph.D.

 Defendants seek to offer Dr. Clowes to testify that one cannot conclude that abortion is safer than childbirth for a mother's health. He will testify that statistics concerning abortion mortality are not reliable because neither New Jersey nor the Center for Disease Control and Prevention monitors, audits, or otherwise verifies the accuracy of its received reports. He will testify that conclusions relying on available mortality statistics are invalid because of the unreliable statistics. However, based solely on the mortality statistics available, Dr. Clowes will testify that abortions after 18 weeks lmp are more dangerous than continuing pregnancy through childbirth. In addition, Dr. Clowes will testify that based solely on the mortality statistics available, the relative risks of dilation and evacuation abortions (D&E) are comparable to those of induction abortions after 16 weeks lmp. Furthermore, as there are no statistics available concerning the morbidity or mortality of the abortion method(s) variously called "intact dilation and evacuation" or "intact D&E," "dilation and extraction" or "D&X" and "intact dilation and extraction," there is no valid basis for the conclusions concerning the safety, prevalence or any other feature of such method(s).

 2. Frank H. Boehm, M.D.

 Defendants seek to offer Dr. Boehm as an expert in obstetrics and maternal-fetal medicine. Dr. Boehm has performed abortions including induction abortions and D&E abortions. He will testify that, regarding the abortion method described in the Act, there has been no peer review; it has not been the subject of clinical trials; there are no data available comparing it to other abortion methods; there are no epidemiological, safety or other data; there is no professional literature; there are no available statistics; it is not taught in medical school; there are no situations in which it is the best or necessary abortion method to preserve the life or health of a pregnant woman; its unavailability will not increase the risks to the mother's health or life; it is used only after 19 weeks lmp; it requires advance planning, is time consuming and logistically difficult to perform, and its various steps involve risks and complications; there are alternatives that are well-documented and which are commonly and effectively used; and it is contrary to the ethics and standards of the medical profession. In addition, Dr. Boehm will testify that the language of the Act is not vague, and does not apply to vacuum aspiration abortions, classic D&E abortions, and/or induced abortions. Dr. Boehm is a Clinical Professor of Obstetrics and Gynecology at the Vanderbilt University School of Medicine and the Director of Obstetrics and the Maternal Fetal Medicine Division at the Vanderbilt University Medical Center in Nashville, Tennessee.

 3. Watson A. Bowes, Jr., M.D.

 Defendants seek to offer Dr. Bowes to explain various abortion methods. His testimony will explain the medical aspects of the Act and the abortion method it describes. Dr. Bowes is board certified in, and a Professor of Obstetrics and Gynecology at the University of North Carolina School of Medicine, Chapel Hill, North Carolina.

 4. Nancy G. Romer, M.D.

 Defendants seek to offer Dr. Romer's testimony about the abortion method described in the Act. Dr. Romer privately practices obstetrics and gynecology and is an assistant clinical professor at the Wright State University School of Medicine Department of Obstetrics/Gynecology in Dayton, Ohio.

 5. Other Potential Witnesses

 a. Representative of the New Jersey Department of Health

 Defendants may seek to call a representative of the New Jersey Department of Health to describe the available statistics about: abortion, the contents thereof, and abortion providers and/or Plaintiffs in New Jersey.

 b. Representative of Robert Wood Johnson University Hospital in New Brunswick

 Defendants may seek to call a representative of the Robert Wood Johnson University Hospital in New Brunswick to describe abortions at this hospital and the use of digoxin or potassium chloride in connection with abortions.

 c. Representatives of Monmouth Medical Center and UMDNJ

 Defendants may seek to call a representative from the respective hospitals to authenticate documents produced by the respective hospitals.

 6. Dr. David Mark, Ph.D.

 Defendants seek to call Dr. David Mark to testify about DNA, its properties and functions, and DNA fingerprinting techniques that allegedly establish and confirm an unborn child as a separate, unique, and irreplaceable human being from conception throughout the entire gestation period. Dr. Mark will explain Substance P-the neuropeptide in pain transmission, other pain mechanisms, and testify to their activity at different gestational periods. In addition, Dr. Mark will explain the recent developments in recombinant DNA technology, the resulting discoveries about human development during gestation, and how science obtains knowledge about human beings. Dr. Mark has a Ph.D. in Molecular Biology and is currently the Executive Director of Biochemistry and Physiology at Merck Research Laboratories in Rahway, New Jersey.

 7. Dr. Marie A. Peeters-Ney, M.D.

 Defendants seek to offer Dr. Marie A. Peeters-Ney to testify about the conception process, the genetic makeup of a human being, and scientific facts relating to the completeness, uniqueness, and total separateness of a human being from the period of conception throughout the gestational period. She will reinforce the conclusion that a child in utero, which is the subject of the partial birth abortion, is a complete, separate and unique human being during the period subject to the prohibitions of the Act. Dr. ...


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