National Abortion Federation v. Gonzales

437 F.3d 278

NATIONAL ABORTION FEDERATION, Mark I. Evans, M.D., Carolyn Westhoff, M.D., Cassing Hammond, M.D., Marc Heller, M.D., Timothy R.B. Johnson, M.D., Stephen Chasen, M.D., and Gerson Weiss, M.D., Plaintiffs-Appellees, v. Alberto GONZALES,¹ in his capacity as Attorney General of the United States, along with his officers, agents, servants, employees, and successors in office, Defendants-Appellants.

Docket No. 04-5201-CV.

United States Court of Appeals, Second Circuit.

Argued: October 6, 2005.

Decided: January 31, 2006.

Elizabeth Wolstein, Asst. U.S. Atty., New York, NY (David N. Kelley, U.S. Atty., James L. Cott, Sean H. Lare, Sarah S. Normand, Asst. U.S. Attys., New York, NY, on the brief), for Defendants-Appellants.

A. Stephen Hut, Jr., Washington, DC (Amy Kreiger Wigmore, Kimberly A. Parker, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington DC; Elisabeth Benjamin, Anna Schissel, N.Y. Civil Liberties Union Foundation, New York, NY; Susan Talcott Camp, Louise Melling, Julie Sternberg, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York, NY; Lorie A. Chaiten, The Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, on the brief), for Plaintiffs-Appellees.

(James Bopp, Jr., Thomas J. Marzen, Richard E. Coleson, Bopp, Coleson & Bostrom, Terre Haure, IN, for amicus curiae Horatio R. Storer Foundation, Inc., in support of Defendants-Appellants.)

(Edward L. White III, Julie Shotzbarger, Thomas More Law Center, Ann Arbor, MI, for amicus curiae Thomas More Law Center, in support of Defendants-Appellants.)

(Thomas Brejcha, Chicago, IL, Paul Benjamin Linton, Northbrook, IL, for amicus curiae Thomas More Society, Inc., in support of Defendants-Appellants.)

(Phill Kline, Kansas State Atty. General, Topeka, KS, Nikolas T. Nikas, Denise M. Burke, Mailee R. Smith, Americans United for Life, Chicago, IL, for amicus curiae Attorney General of Kansas, in support of Defendants-Appellants.)

(Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for amicus curiae The Nat'l. Legal Foundation, in support of Defendants-Appellants.)

(Teresa Stanton Collett, University of St. Thomas School of Law, Minneapolis, MN, for amici curiae The Christian Medical and Dental Ass'n, and The Catholic Medical Ass'n, in support of Defendants-Appellants.)

(Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Walter M. Weber, Am. Ctr. for Law and Justice, Washington, DC; Vincent P. McCarthy, Ann-Louise Lohr, Kristina J. Wenberg, Am. Ctr. for Law and Justice, New Milford, CT, for amicus curiae The Am. Ctr. for Law and Justice and Various Members of Congress, in support of Defendants-Appellants.)

(James Joseph Lynch, Jr., Brad Dacus, James Griffiths, The Pacific Justice Institute, Sacramento, CA, for amicus curiae Margie Riley and Laurette Elsburry, in support of Defendants-Appellants.)

(Pamela Harris, William R. Nifong, Pammela Quinn, O'Melveny & Myers, LLP, Washington, DC; Caroline R. Fredrickson, Blake M. Cornish, Belinda L. Bulger, NARAL Pro-Choice America Foundation, Washington, DC, for amicus curiae NARAL Pro-Choice America Foundation, in support of Plaintiffs-Appellees.)

(Eliot Spitzer, NY State Atty. General, Caitlin J. Halligan, Solicitor, General, Michelle Aronowitz, Deputy Solicitor General, Lisa Landau, Asst. Atty. General, New York, NY; Richard Blumenthal, Conn. State Atty. General, Hartford, Conn; William H. Sorrell, Vermont State Atty. General, Montpelier, VT, for amici curiae The States of New York, Connecticut and Vermont, in support of Plaintiffs-Appellees.)

(Kurt G. Calia, Gregory M. Lipper, Covington & Burling, Washington, DC; Martin E. Beeler, Michael J. Naft, Stephanie Yu, Covington & Burling, New York, NY; Susan Frietsche, Stacey I. Young, Women's Law Project, Pittsburgh, PA; David S. Cohen, Women's Law Project, Philadelphia, PA, for amici curiae Ass'n of Reproductive Health Professionals, et al., in support Plaintiffs-Appellees.)

(Kenneth Pasquale, Claude Szyfer, Dina Kolker, Stroock & Stroock & Lavan, LLP, New York, NY, for amicus curiae Statisticians Norman Henderson and Jeff Witmer, in support of Plaintiffs-Appellees.)

Before: WALKER, Chief Judge, NEWMAN, and STRAUB, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

The issue on this appeal is whether the federal statute prohibiting an abortion method generally medically known as dilation and extraction ("D & X") and sometimes colloquially and in federal and state statutes called "partial birth abortion" is unconstitutional for lack of an exception permitting the procedure to be used to protect the health of a pregnant woman. The Government appeals from the August 27, 2004, judgment of the District Court for the Southern District of New York (Richard Conway Casey, District Judge) declaring the statute unconstitutional for lack of a health exception and enjoining its enforcement. See National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004) ("N.A.F. I"). Because the Supreme Court has held that a health exception is constitutionally required for any statute prohibiting a method of abortion whenever "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," Stenberg v. Carhart, 530 U.S. 914, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), and because such substantial medical authority indisputably exists with respect to the D & X procedure, we agree with the District Court that the lack of a health exception renders the Act unconstitutional. We therefore affirm as to the declaration of the Act's unconstitutionality, but, in view of the Supreme Court's recent decision in Ayotte v. Planned Parenthood of Northern New England, ___ U.S. ___, 126 S.Ct. 961, ___ L.Ed.2d ___ (2006), defer a ruling as to the remedy pending receipt of supplemental briefs.

Background

Abortion in general. Abortion is the killing of a fetus prior to birth. For centuries abortion has been a matter of intense controversy. Some consider abortion the illegitimate killing of a person. Others consider abortion a legitimate medical procedure used by a pregnant woman, in consultation with her doctor, to terminate a pregnancy prior to birth. Those on both sides of the controversy acknowledge that the fetus is a living organism, starting as a collection of cells just after conception and developing into a recognizable human form as the time for birth approaches. The destruction of a fetus is a distressing event, whether one views abortion as the killing of a person or a pregnant woman's personal choice concerning her body.

The challenged statute. In 2003, Congress enacted the statute at issue in this case, the Partial-Birth Abortion Ban Act of 2003 ("the Act"), Pub.L. No. 108-105 (2003) (codified at 18 U.S.C. § 1531).² The Act imposes criminal and civil penalties upon those who perform what the Act calls a "partial-birth abortion," id. § 1531(a), although the medical community usually calls the procedure "dilation and extraction" or "D & X."³ The Act defines the procedure by identifying the extent to which a portion of the fetus has emerged from a woman's body in the course of a vaginal delivery prior to the killing of the fetus:

the term "partial-birth abortion" means an abortion in which the person performing the abortion— (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus[.]

18 U.S.C. § 1531(b)(1).

Accompanying the operative portions of the Act are 14 detailed findings, one of which, Finding 14, contains 15 sub-paragraphs. See Pub.L. No. 108-105, § 2, 117 Stat. 1201, 1201-06 (2003), reprinted in 18 U.S.C.A. § 1531, Historical and Statutory Notes, Congressional Findings (2005) ("Findings"). Especially relevant to the parties' contentions in this litigation are the following findings:

a partial-birth abortion . . . is never medically necessary. . . . Finding 1.

a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed and is outside the standard of medical care. Finding 5.

partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; [and] poses additional health risks to the mother. . . . Finding 14(O).

Other findings, discussed later in this opinion, concern the deference that Congress believes the courts are obliged to give to congressional findings.

The District Court decision. The District Court conducted a 16-day bench trial at which distinguished physicians gave fundamentally differing views concerning the D & X procedure and whether or not it might be needed in some circumstances to avoid health risks to the mother. Judge Casey's comprehensive opinion, including detailed findings of fact and conclusions of law, demonstrate the extreme thoughtfulness and sensitivity with which he approached his decision. Especially pertinent to the basic issue in this case—whether a health exception is constitutionally required—are two sets of findings made by the District Court. On the one hand, Judge Casey cast substantial doubt on much of the Plaintiffs' expert opinions. He found that "some" of the reasons advanced for using the D & X procedure were "incoherent," "other" reasons were "theoretical," and "many" reasons were "false." N.A.F. I, 330 F.Supp.2d at 479-80. On the other hand, accepting the probative force of other portions of the testimony and affidavits of the...