Planned Parenthood of Southern Arizona, v. Woods

982 F.Supp. 1369

PLANNED PARENTHOOD OF SOUTHERN ARIZONA, INC., Planned Parenthood of Central and Northern Arizona, Inc., Joel B. Bettigole, M.D., and Frederic N. Stimmell, M.D., and on their patients, Plaintiffs, v. Grant WOODS, in his official capacity as Attorney General of the State of Arizona; and Barbara Lawall, in her official capacity as County Attorney for he County of Pima, and as representative for all other prosecuting attorneys similarly situated throughout the State of Arizona, including, without limitation, City Attorneys, Defendants.

No. CIV. 97-385-TUC-RMB.

United States District Court, D. Arizona.

October 27, 1997.

Diana J. Simon, Korn, Waterman & Simon, Tucson, AZ, Lawrence J. Rosenfeld, O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, Phoenix, AZ, Eve C. Gartner, Planned Parenthood Federation, New York City, for plaintiffs.

Thomas P. McGovern, Arizona Atty. Gen., Phoenix, AZ, William J. Ekstrom, Co. Atty., Kingman, AZ, Bruce W. Green, Sp. Asst. to Co. Atty., Washington, DC, for defendants.

ORDER

BILBY, Senior District Judge.

I. Introduction/Procedural History.

The Plaintiffs have filed a declaratory and injunctive action pursuant to 42 U.S.C. § 1983 which challenges the constitutionality of 1997 Arizona House Bill 2113 (codified at Ariz.Rev.Stat.Ann. § 13-3603.01)("the Act"). The Act criminalizes a practice which is called "partial birth abortion" by providing that "[a] person who knowingly performs a partial birth abortion and who kills a human fetus is guilty of a class 6 felony." See Ariz.Rev.Stat.Ann. § 13-3603.01(A).

After granting a temporary restraining order, which prohibited the Act from taking effect, the Court certified a defendant class consisting of all prosecuting attorneys in Arizona, and then designated class representatives. See Order dated July 18, 1997. The Court set a hearing on the request for preliminary injunction. By agreement of the parties, the hearing on the preliminary injunction was combined with a trial on the merits. The two-day trial was held on September 18-19, 1997, at which time the Court heard the testimony of four witnesses. Following the trial, the parties stipulated to the admission of three deposition transcripts for the Court to also consider as testimony. The Court also heard oral argument from counsel, and permitted the parties to file posthearing briefs. In addition, the Court permitted an amicus curiae brief to be filed by certain members of the Arizona State Legislature who voted for the Act.

II. Issues Presented.

There are three (3) issues which the Court considered with regard to the Act:

1) Whether the Act unconstitutionally burdens a woman's right to terminate a nonviable fetus;

2) Whether the Act is void for vagueness; and

3) Whether the Act creates impermissible spousal and parental consent mandates.

In considering these issues, the Court has made numerous findings of fact based upon the evidence presented. These findings of fact have led to the Court's conclusions of law which resolve these issues.

III. Findings of Fact.

The Court finds the following facts to be true:

A. The Parties.

1. Plaintiff Planned Parenthood of Southern Arizona, Inc. ("PPSA") is a non-profit healthcare provider based in Tucson, Arizona which provides abortions up to sixteen weeks from the first day of the woman's last menstrual period ("LMP").

2. Plaintiff Planned Parenthood of Central and Northern Arizona, Inc. ("PPCNA") is a non-profit healthcare provider based in Phoenix, Arizona which currently provides abortions up to sixteen weeks LMP.

3. Plaintiff Joseph B. Bettigole, M.D., is a physician licensed to practice in the State of Arizona. Dr. Bettigole performs abortions at PPSA in Tucson as well as in his private practice in Phoenix. Among the abortions performed by Dr. Bettigole are those in which the woman is in the second-trimester of pregnancy.

4. Plaintiff Frederic N. Stimmel, M.D., is a physician licensed to practice in the State of Arizona. Dr. Stimmell is the medical director at PPCNA where he also performs abortions. Among the abortions performed by Dr. Stimmel are those in which the woman is in the second-trimester of pregnancy.

5. The class of Defendants which has been certified for purposes of this action includes all prosecuting attorneys in Arizona. In certifying this class, the Court recognized that the class was so numerous that joinder was impractical, and that there were questions of law or fact which are common to the class.

B. Plaintiffs' Witnesses.

Dr. Joel Bettigole

6. Dr. Bettigole is a board certified physician in obstetrics and gynecology who is a graduate of Harvard University and Albany Medical College. Dr. Bettigole was also an Assistant Clinical Professor at Tufts University and at Boston University Medical Center.

7. Nearly all of Dr. Bettigole's current medical practice is in performing abortions. Prior to 1983, Dr. Bettigole delivered approximately 7000 children.

8. In his current private practice, Dr. Bettigole performs abortions up to twenty weeks LMP. At PPSA, Dr. Bettigole currently performs abortions up to sixteen weeks LMP.

9. Ninety percent of Dr. Bettigole's practice involves termination of pregnancies in the first-trimester.

10. Dr. Bettigole's patients express many different reasons for terminating pregnancy in the second-trimester, as opposed to during the first-trimester, including that: a) they did not realize that a pregnancy had progressed to the second-trimester, b) they experience a change in a life situation, such as a husband leaving them, c) a fetal abnormality is discovered which was not known before the second-trimester, and d) the woman develops medical problems during pregnancy or a medical problem becomes worse during pregnancy.

11. For a first-trimester abortion, Dr. Bettigole uses the suction curettage method. This method is accomplished by dilating the cervix with instruments and then suctioning the uterine cavity with a small cannula. This method cannot be used past the twelve or thirteenth week of pregnancy.

12. After the fourteenth week of pregnancy, the standard abortion procedure used by Dr. Bettigole is dilatation and evacuation, or "D & E". This procedure involves dilating the cervix overnight with either laminaria or another chemical substance. Following dilation, the fetal tissue is extracted. A "D & E" procedure can be performed on an outpatient basis. It can also be performed throughout the entire second-trimester of pregnancy, prior to viability.

13. When performing a "D & E", the fetus may be removed disarticulated, or it may be removed intact. It may be necessary to compress the skull of the fetus if the body is removed intact and the head remains trapped in the uterus.

14. When beginning a "D & E" procedure, a physician does not know if a fetus will be removed disarticulated, or if it will be removed intact.

15. Dr. Bettigole has also used the induction procedure to perform second-trimester abortions. This procedure involves the use of chemicals to cause a woman to go into premature labor and pass the fetus. An induction procedure cannot be performed on an outpatient basis. The induction procedure can usually not be performed until a woman is sixteen weeks LMP. In an induction procedure, it is sometimes necessary to compress the skull of the fetus if the head cannot pass through the uterus.

16. A hysterotomy is a third way known to Dr. Bettigole to terminate a second-trimester pregnancy. A hysterotomy is the equivalent to a Caesarian section in a viable fetus. Dr. Bettigole has never used a hysterotomy for abortion purposes. A woman must be hospitalized for a hysterotomy. There is greater chance of morbidity in performing the hysterotomy than in performing either the induction procedure or the "D & E" procedure.

17. In both the "D & E" and the induction procedures, a portion of the fetus may come through the cervical os and into the vaginal cavity while the fetal heart is still beating. A physician performing either of these procedures cannot predict when this is going to happen.

18. Dr. Bettigole fears prosecution under the Act if it were to go into effect.

19. The effect of the law would be that Dr. Bettigole and other physicians would stop providing "D & E" and induction procedure abortions, which are the methods by which almost all second-trimester abortions are performed.

Dr. William Meyer

20. Dr. Meyer is a board certified obstetrician/gynecologist who is licensed to practice in Arizona. He attended the University of Delaware and Thomas Jefferson University Medical Center.

21. Dr. Meyer is employed at Kino Community Hospital in Tucson, Arizona as the Chief of Obstetrics and Gynecology.

22. Kino Community Hospital has approximately 12,000 clinic visits per year.

23. Kino Hospital does not do elective terminations of pregnancies. Approximately 50 to 75 women each year are referred by the Kino Hospital clinic to other health care providers for abortions. Three to five of those referrals are for second-trimester abortions.

24. The patient population at Kino Hospital is mostly indigent. The indigent patient population is less likely to seek out medical care in a timely manner.

25. The types of situations for which Dr. Meyer has referred out patients for second-trimester abortions include situations where the woman's physical health can seriously deteriorate during pregnancy,.such as where the woman has diabetes mellitus, systemic lupus, or severe hypertension. Dr. Meyer has also referred out women for second-trimester abortions where the fetus is found to have severe anomalies.

26. A diagnosis of a fetal anomaly usually does not occur until the second-trimester.

27. If second-trimester abortions were not available in Tucson, many of the patients of Kino Hospital would not be able to obtain a second-trimester abortion because they do not have the means to travel outside of Arizona.

28. Dr. Meyer would fear criminal prosecution if the...