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Planned Parenthood of Central New Jersey v. Verniero

December 8, 1998

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY, HERBERT HOLMES, M.D., DAVID WALLACE, M.D., AND GERSON WEISS, M.D., ON BEHALF OF THEMSELVES AND THEIR PATIENTS,
PLAINTIFFS,
V.
PETER G. VERNIERO, ATTORNEY GENERAL: OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE, NEW JERSEY BOARD OF MEDICAL EXAMINERS, AND THEIR SUCCESSORS IN: OFFICE, AND LEN FISHMAN, COMMISSIONER OF THE DEPARTMENT OF HEALTH AND SENIOR: SERVICES, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE,
DEFENDANTS.



The opinion of the court was delivered by: Anne E. Thompson, Chief Judge

OPINION

I. Introduction

Plaintiffs, Planned Parenthood of Central New Jersey and several physicians, bring this action against defendants, the Attorney General of the State of New Jersey, the New Jersey Board of Medical Examiners and the Commissioner of the Department of Health and Senior Services, pursuant to 42 U.S.C. §§ 1983 and 1988 and pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek declaratory and injunctive relief from this Court to prevent the New Jersey Partial-Birth Abortion Ban Act of 1997, ch. 262, 1997 N.J. Sess. Law Serv. 871-72 (West), codified at N.J. Stat. Ann. §§ 2A:65A-5 to -7 (the "Act"), from taking effect. This Act exposes those who perform "partial-birth abortions" to professional license revocation and fines. Plaintiffs challenge the constitutionality of the Act on the grounds that it is vague and that it imposes an undue burden on a woman's right to choose to have an abortion.

The matter is before the Court on plaintiffs' request for a declaration that the Act is unconstitutional and for a preliminary and permanent injunction. Plaintiffs contend that an injunction is necessary to prevent irreparable harm to themselves and their patients from the statute's chilling effect on their ability to provide abortion services. The Court has reviewed the parties' briefs, proposed findings of fact and conclusions of law, affidavits of the experts, testimony of the witnesses, and relevant caselaw. For the reasons set forth below, the Court grants to plaintiffs the relief they seek.

II. Findings of Fact

A. The Challenged Statute

The Act prohibits the performance of a "partial-birth abortion." See N.J. Stat. Ann § 2A:65A-6(a). The Act defines the banned conduct as "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery," N.J. Stat. Ann. § 2A:65A-6(e), and further defines the phrase "vaginally delivers a living human fetus before killing the fetus" to mean "deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus," N.J. Stat. Ann. § 2A:65A-6(f). The ban applies throughout pregnancy.

The Act does not define "partially" as it modifies "vaginally delivers," "deliver," "substantial," "substantial portion," or "procedure." The Act does not require that the fetus be intact or viable at the time the "partial-birth abortion" is performed. The Act allows an otherwise banned procedure only when such a procedure "is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury." N.J. Stat. Ann. § 2A:65A-6(b). The Act contains no exception for procedures necessary to preserve the woman's health.

Under the Act, "knowing" performance of a "partial-birth abortion" subjects a physician to immediate license revocation and a $25,000 fine for each incident. See N.J. Stat. Ann. § 2A:65A-6(c). An ambulatory health care facility in which a "partial- birth abortion" occurs is also subject to immediate revocation of its license under the Act. See N.J. Stat. Ann. § 2A:65A-6(d); see also Senate Women's Issues, Children and Family Services Committee, Statement to the Gen. Assembly, No. 2409-L. 1997, c. 262 ("[T]he bill provides that a woman upon whom a partial-birth abortion is performed shall be immune from civil or criminal liability for a violation of the provisions of the bill.").

B. Parties

1. Plaintiffs

Plaintiff Gerson Weiss, M.D., is licensed to practice medicine in the State of New Jersey. He is a professor in and Chairman and Chief of Service of the Department of Obstetrics and Gynecology at the University of Medicine and Dentistry of New Jersey-New Jersey Medical School ("UMDNJ"), located in Newark, New Jersey. He is also Director of the Center for Reproductive Medicine, which is affiliated with Hackensack Hospital. Dr. Weiss is board-certified in obstetrics and gynecology, and has a subspecialty board-certification in reproductive endocrinology. In his position as Chairman and Chief of Service at UMDNJ, Dr. Weiss oversees the provision of all obstetrical and gynecological care at the hospital, including abortions up through eighteen weeks measured from the first day of the woman's last menstrual period ("lmp"). He established the training program and teaches residents to provide the full range of obstetric and gynecological care, including abortions. Dr. Weiss has performed abortions since 1968, and has personally performed between 500 and 1000 abortions. He has used the suction curettage, or vacuum aspiration, dilation and evacuation, or D&E, and installation methods. He has also performed hysterotomy abortions. Dr. Weiss was qualified to testify as an expert in obstetrics and gynecology, including abortion methods. He sues on his own behalf and on behalf of his patients.

Plaintiff David Wallace, M.D., is licensed to practice medicine in the State of New Jersey. He is President of the Medical Staff at Monmouth Medical Center, which is affiliated with the St. Barnabas Health Care System in Long Branch, New Jersey. He is Chairman of the Department of Obstetrics and Gynecology and Director of the Residency Program. Dr. Wallace is board-certified in obstetrics and gynecology, and is eligible for certification in maternal-fetal medicine. Since 1980, Dr. Wallace has performed between 1500 and 2000 abortions. He currently performs about fifty abortions annually. Dr. Wallace provides, supervises, and teaches abortions through twenty-three weeks lmp. For procedures in the first trimester, he uses the vacuum aspiration method. For early second trimester procedures, through sixteen weeks lmp, he uses the D&E method. In his supervisory capacity, he teaches and supervises the performance of these abortion techniques. Dr. Wallace was qualified to testify as an expert in obstetrics and gynecology, including abortion methods. He sues on his own behalf and on behalf of his patients.

Plaintiff Herbert Holmes, M.D., is licensed to practice medicine in the State of New Jersey. He is a clinical associate professor of obstetrics and gynecology at UMDNJ, where he is the primary physician who performs abortions. He is also an attending surgeon at Newark Beth Israel Hospital with primary responsibility for abortions. Annually, Dr. Holmes performs four to five hundred first trimester suction curettage abortions and two to three hundred second trimester D&E abortions up through eighteen weeks lmp. He performs D&E abortions after eighteen weeks lmp where there is a demonstrable fetal abnormality. Until recently, while he was affiliated with United Hospitals in Newark, New Jersey, Dr. Holmes performed induction and installation abortions through twenty weeks lmp generally, and through twenty-four weeks lmp in the case of fetal abnormality or risk to the mother's health. Dr. Holmes was qualified to testify as an expert in obstetrics and gynecology, including abortion practice. He sues on his own behalf and on behalf of his patients.

Plaintiff Planned Parenthood of Central New Jersey ("Planned Parenthood") is an ambulatory health care facility licensed pursuant to N.J.A.C. § 8:43A-1.3, which provides vacuum aspiration abortions up to fourteen weeks lmp. It sues on its own behalf and on behalf of its patients.

Among plaintiffs' patients are women seeking abortions for a wide range of reasons, including the protection of health and life. They include women who develop serious health problems because of their pregnancies, and women for whom pregnancy presents particularly significant risks because of pre-existing health conditions such as neurological disease, kidney disease, severe high blood pressure, cardiac conditions, cancer, diabetes, and other physical and mental health disorders. Among plaintiffs' patients seeking abortions are women for whom a pregnancy endangers health, but not necessarily life. One such example is the risk of blindness that pregnancy poses for certain diabetic women.

2. Defendants

Defendant Peter G. Verniero is Attorney General of the State of New Jersey and is responsible for enforcement of the Act. See N.J. Stat. Ann. § 2A:65A-6(c), (d). He is sued in his official capacity. The Office of the Attorney General declined to defend the Act.

Defendant New Jersey Board of Medical Examiners is responsible under the Act for license revocation in cases where physicians are found to have violated the Act. See N.J. Stat. Ann. § 2A:65A-6(c). The Office of the Attorney General, charged with representing all state entities including the Board of Medical Examiners, declined to defend the Act.

Defendant Len Fishman is Commissioner of the Department of Health and Senior Services ("HSS") of New Jersey and is responsible under the Act for license revocation in cases where ambulatory health care facilities are found to have violated the Act. See N.J. Stat. Ann. § 2A:65A-6(d). He is sued in his official capacity. As stated above, the Office of the Attorney General, charged with representing HHS, declined to defend the Act.

The New Jersey State Legislature was granted permission by this Court to intervene to defend the Act. See Planned Parenthood of Central N.J. v. Verniero, No. 97-6170, slip op. at 1 (D.N.J. Dec. 24, 1997) (Order).

C. Witnesses

1. Plaintiffs' Witnesses

In addition to testimony by Drs. Weiss, Wallace and Holmes, plaintiff also offered into evidence the curriculum vitae and declaration of Carolyn Westhoff, M.D. Dr. Westhoff is an Associate Professor of Clinical Obstetrics and Gynecology and of Public Health at the College of Physicians and Surgeons of Columbia University in New York City, New York. She is also Medical Director of Family Planning and an associate attending physician at Columbia Presbyterian Medical Center in New York City. She is board-certified in obstetrics and gynecology. Dr. Westhoff presently performs only first trimester abortions, but has in her career performed more than five hundred second trimester abortions, including D&E, induction, saline installation and hysterotomy abortions. She teaches courses dealing with epidemiology, sexuality and reproduction, and reproductive health, including abortion techniques.

2. Defendants' Witnesses

Frank Henry Boehm, M.D., is Professor of Obstetrics and Gynecology at Vanderbilt University and Director of Obstetrics at Vanderbilt Medical Center. He is board-certified in obstetrics and gynecology and as a maternal fetal medicine specialist. Dr. Boehm has in his career performed first trimester D&C abortions and second trimester D&E, induction and hysterotomy abortions, and he teaches these abortion methods. In the past ten years, he has performed only two D&E abortions on live fetuses. Dr. Boehm was qualified to testify as an expert in obstetrics and gynecology, including abortion methods.

Watson A. Bowes, Jr., M.D., is Clinical Professor of Obstetrics and Gynecology at the University of North Carolina. He is board-certified in obstetrics and gynecology and as a maternal fetal medicine specialist. Between 1965 and 1967, while a resident at the University of Colorado, Dr. Bowes performed less than one hundred induction abortions. Since 1967, he has performed four or five abortions on live fetuses in cases where the life of the mother was at risk, including two D&E and one or two induction abortions, all before eighteen weeks lmp. With this above exception, Dr. Bowes has observed no abortions on live fetuses since 1967. He does perform between twenty and forty dilation and curettage, or D&C, procedures, a variation of the D&E method, annually where there has been an incomplete spontaneous abortion. He has also performed D&E and induction abortions in cases of fetal death. He teaches D&C, D&E, and induction abortion procedures. Dr. Bowes was qualified to testify as an expert in obstetrics and gynecology, including abortions.

D. Abortion Practice

An understanding of abortion in general and the various abortion methods in particular is necessary to any evaluation of the Act's constitutionality. The Court's understanding of these issues was derived from expert witness testimony, exhibits and affidavits. See Fed. R. Evid. 702 ("If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."); Virgin Islands v. Sanes, 57 F.3d 338, 341 (3d Cir. 1995) (noting the district court's broad discretion to admit or rely on expert testimony).

1. Abortion Practice Generally

The abortion procedure is considered to be generally safe. The risk of death from abortion does, however, increase as the pregnancy progresses. *fn1

The following five conventional methods of abortion have been described to the Court: (1) suction curettage; (2) dilation and evacuation, or D&E; (3) induction, including installation; (4) hysterotomy; and (5) hysterectomy. In choosing which abortion procedure is most appropriate and in performing such procedure, the physician takes into account a number of factors, including the health and medical history of the patient, the gestational age, condition and position of the fetus, the skill of the physician, and the facilities available. Performance of a particular procedure will vary from physician to physician and, in procedures performed by one physician, from patient to patient. During each procedure, however, the intent of the physician is to terminate the pregnancy as efficiently as possible and in the way that is safest for the woman.

2. Specific Abortion Procedures

a. Suction Curettage

Approximately ninety percent (90%) of all abortions are performed prior to twelve weeks lmp. Suction curettage, also known as vacuum aspiration, is considered the standard of care during the first trimester, takes less than five minutes to complete, and is performed in an out-patient setting. During the procedure, the physician first cleanses the vagina and then grasps the cervix with a clamp. She then inserts into the cervix mechanical dilators-smooth metal or plastic dowels-of increasing diameter to gradually dilate the cervix. Once the cervix is sufficiently dilated, the physician inserts a cannula-a hollow tube with a blunt tip and openings on its side-into the uterus. The cannula is attached to a suction or vacuuming device. Suction is used to remove the uterine contents, including the amniotic fluid, the fetus and the placenta. Once this is done, the physician may scrape the uterine walls with a curette-a loop of metal with a sharp to dull edge-to insure that the uterus is empty.

During the suction curettage procedure, the cannula runs through the vagina and cervix into the uterus. The fetus may come through the cannula either intact or disarticulated. At times, part of the intact fetus may be in the vagina and part in the uterus, or a disarticulated part of the fetus may be in the vagina while the remainder of the fetus is in the uterus. In either of these situations, that part of the fetus which remains in the uterus may still have a heartbeat.

b. Dilation and Evacuation (D&E)

Dilation and evacuation, or D&E, procedures make up eighty to ninety percent (80-90%) of abortions performed after the first trimester and are performed from thirteen to twenty weeks lmp. During this procedure, the physician dilates the cervix in one of two ways. The physician may use mechanical dilators, as described above, or osmotic dilators. Osmotic dilators-thin straws containing laminaria or some other substance which swells when it comes in contact with water-are inserted into the cervical canal twelve to thirty hours prior to the procedure. The dilators swell and either partially or completely dilate the cervix. When the cervix is sufficiently dilated, the physician removes the dilators, grasps the cervix, and cleans the vagina. After using light suction to rupture the amniotic sac, the physician begins a largely blind procedure, inserting forceps into the uterus, grasping a conception product and pulling it out. This action is repeated until the fetus has been removed. Lastly, the physician uses suction to remove the placenta.

During the D&E procedure, the fetus may be removed from the uterus and brought through the cervix and vagina either intact or disarticulated. Whether disarticulation occurs will depend largely on the amount of dilation, i.e., whether the cervix is sufficiently dilated to permit the fetus to pass through the internal os, and the gestation of the fetus, i.e., the fetus is more frail and prone to disarticulation during earlier stages of pregnancy. With this in mind, it may happen that part of the intact fetus will be in the vagina and part in the uterus or a disarticulated part of the fetus will be in the vagina while the remainder of the fetus is in the uterus. In either of these situations, that part of the fetus which remains in the uterus may still have a heartbeat.

From approximately fourteen weeks lmp until term, the physician may grasp the fetus by the feet or legs and draw the fetus intact through the cervix into the vagina where the fetal head may get stuck in the internal cervical os. At this point, the fetus may still have a heartbeat. The physician will apply suction to dislodge the head. However, if this does not work, the physician must either disarticulate the fetal head and deliver it apart from the body or collapse the fetal head in order that the fetus may be delivered intact. This latter option resembles a procedure the American College of Obstetricians and Gynecologists ...


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