Planned Parenthood of Central New Jersey v. Farmer , 220 F.3d 127 ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
7-26-2000
Planned Parenthood v. Farmer
Precedential or Non-Precedential:
Docket 99-5272
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"Planned Parenthood v. Farmer" (2000). 2000 Decisions. Paper 152.
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Filed July 26, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 99-5042 and 99-5272
PLANNED PARENTHOOD OF CENTRAL NEW JERSEY;
HERBERT HOLMES, M.D.; DAVID WALLACE, M.D.;
GERSON WEISS, M.D.; on behalf of themselves
and their patients
v.
JOHN FARMER, JR.*, 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; CHRISTINE GRANT*,
Commissioner of the Department of Health and
Senior Services, in her official capacity, and
her successors in office
NEW JERSEY LEGISLATURE, by and through DONALD T.
DIFRANCESCO, in his official capacity as President of the
New Jersey Senate, and JACK COLLINS, in his official
capacity as Speaker of the New Jersey Assembly, and as
the representative of the New Jersey Assembly
(Intervenors in D.C.),
Appellants
*Amended Pursuant to F.R.A.P. 43 (c)(2)
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. No.: 97-cv-06170
District Judge: The Honorable Anne E. Thompson
Argued: November 19, 1999
Before: ALITO, BARRY and GARTH, Circuit Judges .
(Opinion Filed: July 26, 2000)
Richard F. Collier, Jr., Esquire
(Argued)
Collier, Jacob & Mills
580 Howard Avenue
Corporate Park III
Somerset, NJ 08873
Attorney for Appellants
Talcott Camp, Esquire (Argued)
Cora K. Tung, Esquire
Louise Melling, Esquire
Reproductive Freedom Project
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004-2400
Lenora Lapidus, Esquire
American Civil Liberties Union
of New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, NJ 07102
Dara Klassel, Esquire
Roger Evans, Esquire
Planned Parenthood Federation
of America
810 Seventh Avenue
New York, NY 10019
Attorneys for Appellees
OPINION OF THE COURT
BARRY, Circuit Judge.
The majority opinion which follows was in final form
before the Supreme Court of the United States heard
argument in the appeal of Carhart v. Stenberg , 192 F.3d
1142 (8th Cir. 1999). The Supreme Court has now issued
2
its opinion in that case, finding Nebraska's "partial birth
abortion" statute -- a statute nearly identical to the one
before this Court -- unconstitutional. See Stenberg v.
Carhart, ___ U.S. ___, 2000 WL 825889 (U.S. June 28,
2000). Because nothing in that opinion is at odds with this
Court's opinion; because, in many respects, that opinion
confirms and supports this Court's conclusions and, in
other respects, goes both further than and not as far as,
this opinion; and, because we see no reason for further
delay, we issue this opinion without change.
Defendant-Intervenor, the New Jersey State Legislature
(the "Legislature"), appeals the decision of the United States
District Court for the District of New Jersey holding the
New Jersey Partial-Birth Abortion Ban Act of 1997 (the
"Act") unconstitutional and permanently enjoining
enforcement of the Act. In a comprehensive opinion, the
District Court found the Act unconstitutional because it: (1)
is void for vagueness; and (2) places an undue burden on
a woman's constitutional right to obtain an abortion. See
Planned Parenthood of Cent. N.J. v. Verniero, 41 F. Supp. 2d
478, 504 (D.N.J. 1998). We will affirm.
I. BACKGROUND
On December 15, 1997, the New Jersey State Legislature,
overriding the governor's veto, joined what is now a
majority of states in enacting a law banning "partial-birth
abortions."1 Since the first such statute was passed in
Ohio, statutes similar to the Act have been wending their
way through the judicial system with various courts
attempting to ascertain the constitutionality of each statute
within the context of over twenty-five years of abortion
rights jurisprudence.
While the vast majority of courts have enjoined the
enforcement of these statutes because they are
unconstitutionally vague and impose an undue burden on
_________________________________________________________________
1. See App. at 1846 (listing state statutes). The Congress of the United
States also passed federal "partial birth abortion" bans in 1995 and
1997. Both were vetoed by the President.
3
women who seek to have an abortion, it is the statute
before us on which we must focus our attention. As we do
so, we are fully aware that this dispute is framed by deeply
held convictions concerning abortion by men and women of
good will, convictions which we recognize and respect. On
the one side of the abortion issue, and the emotionally
charged public debate that issue engenders, are those who
believe that all abortion procedures are equally
objectionable, not merely the "partial birth abortion"
procedure at issue in this case, a position largely
foreclosed, as a matter of law, by Roe and Casey. On the
other side of the issue and the debate are those who fear
any encroachment on a woman's right to seek an abortion.
It is not for us to decide who is right and who is wrong as
a matter of conviction or philosophy. Rather, after carefully
analyzing the statute before us, we must decide whether
that statute passes constitutional muster.
A. Procedural History
The day the Act was to become effective, Planned
Parenthood of Central New Jersey ("Planned Parenthood")
and several physicians (collectively as "plaintiffs"), filed suit
on their own behalf and on behalf of their patients against
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 of New
Jersey ("HSS") (collectively as "defendants"). Plaintiffs
sought declaratory and injunctive relief pursuant to 42
U.S.C. SS 1983 and 1988 and 28 U.S.C. SS 2201 and 2202
with one goal in mind: to prevent the Act from taking effect.
The Attorney General, the New Jersey Board of Medical
Examiners and the Commissioner of the HSS all declined to
defend the Act. Accordingly, the Legislature sought leave to
intervene for that purpose, and leave was granted. See
Planned Parenthood of Cent. N.J. v. Verniero, No. 97-6170,
slip. op. at 1 (D.N.J. Dec. 24, 1997) (Order). On December
16, 1997, the District Court entered a Temporary
Restraining Order preventing enforcement of the Act
pending a hearing on the application for an injunction.
After a four-day hearing, at which the three individual
plaintiff physicians and four defense witnesses testified, the
District Court permanently enjoined enforcement of the Act,
4
and the Legislature appealed. We exercise appellate
jurisdiction pursuant to 28 U.S.C. S 1291.
B. The Act
New Jersey's partial-birth abortion statute prohibits "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.S.A.
S 2A:65A-6(e). The Act purports to define 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.S.A.
S 2A:65A-6(f). The Act provides a single exception whereby
this otherwise banned procedure may be used: namely,
when the procedure "is necessary to save the life of the
mother whose life is endangered by a physical disorder,
illness or injury." N.J.S.A. S 2A:65A-6(b).
Unlike almost all of the "partial-birth abortion" statutes
enacted throughout the country, the Act is civil, not
criminal. The penalties for violations of the Act are,
nonetheless, severe. Under the Act, those who perform
"partial-birth abortions" are subject to immediate
professional license revocation and a $25,000 fine for each
abortion performed. See N.J.S.A. S 2A:65A-6(c). An
ambulatory health care facility at which such a banned
procedure takes place is also subject to the immediate
revocation of its license. See N.J.S.A.S 2A:65A-6(d). A
woman upon whom a "partial-birth abortion" is performed,
however, is not subject to any penalties. See Senate
Women's Issues, Children and Family Services Committee
Statement, No. 2409-L. 1997, c. 262.
C. Facts
Because the District Court's findings of fact are not
clearly erroneous, see Lanning v. Southeastern Pa. Transp.
Auth., 181 F.3d 478, 481 (3d Cir. 1999), we will draw
heavily from its opinion in setting forth those facts below.
5
1. Abortion Procedures
The term "partial-birth abortion" does not exist in
medical parlance and, thus, scrutiny of the Act depends
largely on determining precisely what abortion procedure or
procedures the Act prohibits and whether this prohibition
creates an undue burden on a woman's right to an
abortion. It is, therefore, necessary to describe and examine
abortion procedures generally recognized by the medical
community, a description and examination that will, of
necessity, be somewhat graphic. Relying upon expert
testimony, the District Court detailed several abortion
procedures: (1) suction curettage; (2) dilation and
evacuation ("D&E"); (3) intact dilation and extraction
("D&X"); (4) induction and installation; (5) hysterotomy; and
(6) hysterectomy.2
Ninety percent of all abortions are performed during the
first trimester of pregnancy. Suction curettage, also known
as vacuum aspiration, is the standard procedure forfirst
trimester abortions. During this procedure, a physician
mechanically dilates the cervix and then inserts a cannula
-- a hollow tube with blunt openings -- into the uterus.
The cannula is attached to a vacuuming device and suction
is used to remove the uterine contents, including the
amniotic fluid, the fetus and the placenta. Afterwards, the
physician may scrape the uterine walls to ensure that the
uterus is fully evacuated. The fetus may be intact or
disarticulated, meaning dismembered, when it is suctioned
out of the uterus and through the cervix and vaginal canal.
In addition, 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 is in the
uterus. In either of these situations, the fetus may still have
a heartbeat.
_________________________________________________________________
2. These descriptions of the procedures are consistent with the
description utilized by the American College of Obstetricians and
Gynecologists ("ACOG"), a non-profit professional association of
physicians specializing in women's health care and representing
approximately 95% of all board-certified obstetricians and gynecologists
practicing in the United States. ACOG is appearing as amicus curiae in
this action.
6
The dilation and evacuation ("D&E") procedure is
performed during the second trimester, between thirteen
and twenty weeks measured from the first day of the
woman's last menstrual period ("lmp"). Eighty to ninety
percent of the abortions performed after the first trimester
are D&E procedures. During the D&E, the physician dilates
the cervix either mechanically or by using osmotic dilators
which are inserted into the cervical canal twelve to thirty
hours prior to the procedure. Once the cervix is sufficiently
dilated, the physician uses light suction to rupture the
amniotic sac. Then, largely without the benefit of seeing the
contents of the uterus, the physician inserts forceps into
the uterus, grasps hold of a part of the fetus and extricates
it from the woman's body. This process is repeated until the
entire fetus has been removed. The physician then uses
suction to remove the placenta.
During this procedure, the fetus may be removed from
the uterus and pulled through the cervix and the vaginal
canal either intact or disarticulated. The amount of
disarticulation depends upon the width of the dilated cervix
as well as the gestational stage of the fetus because the
fetus is more prone to disarticulate at earlier stages of the
pregnancy. As with the suction curettage procedure, the
D&E may result in a situation in which part of an intact
fetus is in the vagina and part in the uterus or a
disarticulated part of the fetus is in the vagina while the
remainder of the fetus is in the uterus. In either
circumstance, the fetus may still have a heartbeat.
After fourteen weeks lmp, the physician may use a
similar procedure in which he or she grasps the fetus by its
feet or legs and attempts to draw the fetus intact through
the cervix and into the vagina. The fetal head may become
stuck in the internal cervical os requiring the physician to
apply suction to dislodge the head. If the suction does not
work, the physician must either disarticulate the fetal head
and deliver it apart from the body or collapse the head in
order to deliver the fetus intact. The fetus may still have a
heartbeat while its body is in the vagina and the head
lodged in the cervix. This procedure is termed an"intact
dilation and extraction" ("D&X") by the American College of
Obstetricians and Gynecologists ("ACOG"). Although the
7
D&X has not been the subject of clinical trials or peer
reviewed studies, the District Court concluded that the
procedure may pose a lesser risk of cervical laceration and
uterine perforation because the procedure requires less
instrumentation than the D&E and fewer entries into the
uterus. In addition, the D&X generally results in an intact
fetus which is often desirable for diagnostic purposes.
During the second trimester, but generally not before
sixteen weeks lmp, induction abortions account for the
majority of abortions performed which are not D&E
abortions. During an induction procedure, the physician
dilates the cervix twelve to twenty-four hours before
medically inducing labor. Installation abortions, a subset of
inductions, involve the injection of a lethal substance, such
as sodium chloride or concentrated urea, into the uterus
either through the abdomen or through the cervix to cause
uterine contractions. Labor can last anywhere from ten to
thirty hours, resulting in the delivery of an intact fetus.
During an induction abortion, the fetus may die before
delivery. For example, the fetus may die in the uterus by
the injection of a lethal substance or by uterine
contractions. In addition, the fetus may expire during
delivery if, for example, the fetus becomes entangled in the
umbilical cord, or the fetal head becomes lodged in the
internal cervical os, requiring the physician to disarticulate
the head and deliver it separate from the body or deflate
the head in order to remove the intact fetus. Circumstances
requiring an expeditious delivery, such as maternal
hemorrhaging, may result in disarticulation. In addition,
the physician may need to sever the umbilical cord if the
fetus becomes entangled in it during delivery. In any of
these circumstances, fetal death may occur while the fetus
is partially in the uterus and partially in the vagina.
The two remaining methods of abortion are hysterotomy
and hysterectomy, procedures which are very rarely
performed for purposes of aborting a fetus. A hysterotomy
is a pre-term cesarean section in which the fetus is
delivered through an incision in the abdomen. A
hysterectomy is the complete removal of the uterus. Both
procedures carry a higher risk of maternal death than other
methods of abortions due to the possibility of hemorrhage.
The hysterectomy, of course, renders the woman sterile.
8
2. Plaintiffs
Planned Parenthood, an ambulatory health care facility
licensed pursuant to N.J.A.C. S 8:43A-1.3, provides vacuum
aspiration abortions up to fourteen weeks lmp. Plaintiffs
Gerson Weiss, M.D., David Wallace, M.D., and Herbert
Holmes, M.D., are licensed to practice medicine in the State
of New Jersey. Dr. Weiss, 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"), oversees
the provision of all obstetrical and gynecological care at the
hospital, including abortions up through eighteen weeks
lmp. He established a training program and teaches
residents the full range of obstetric and gynecological care,
including abortions. 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. He has performed abortions
since 1968 and has personally performed between 500 and
1000 abortions using the vacuum aspiration and D&E
methods. He has also performed hysterotomy abortions.
Dr. Wallace is the 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 1,500 and 2,000
abortions and currently performs about fifty abortions
annually. He performs abortions through twenty-three
weeks lmp, supervises abortions, and teaches abortion
procedures. He utilizes both the vacuum aspiration and the
D&E methods.
Dr. Holmes is a clinical associate professor of obstetrics
and gynecology at UMDNJ, where he is the primary
physician performing abortions. He is also an attending
surgeon at Newark Beth Israel Hospital with primary
responsibility for abortions. Annually, he performs 400 to
500 first trimester vacuum aspiration abortions and 200 to
9
300 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.
Dr. Holmes was previously affiliated with United Hospitals
in Newark, New Jersey, where he performed induction and
installation abortions through twenty weeks lmp, and
through twenty-four weeks lmp in the case of fetal
abnormality or risk to the mother's health.
Each physician was qualified to testify as an expert in
obstetrics and gynecology, including abortion procedures,
and did so during the hearing before the District Court.
II. DISCUSSION
The order of the District Court holding the Act
unconstitutional and granting a permanent injunction is
the focus of the parties' attention, and ours. We review that
order under an abuse of discretion standard. See American
Civil Liberties Union of N.J. v. Black Horse Pike Reg'l Bd. of
Educ., 84 F.3d 1471, 1476 (3d Cir. 1996). "An abuse of
discretion exists where the district court's decision rests
upon a clearly erroneous finding of fact, an errant
conclusion of law, or an improper application of law to
fact." Id. (citation omitted). In addition to the
constitutionality of the Act, however, several other issues --
standing, ripeness, and abstention -- have been raised by
the Legislature. While recognizing that generally such
issues are discussed sooner rather than later, an analysis
of these issues is directly informed by the scope of the Act.
See Audio Tape of Oral Argument before Court of Appeals
for the Third Circuit (Nov. 19, 1999) (on file with Court)
(statement by the attorney for the Legislature that the
"central issue in this case" is the scope of the Act and
"every issue in this case turns on the answer to that
question: abstention, ripeness, vagueness, undue burden,
everything else . . ."). We, therefore, will defer our
consideration of these issues until after we have considered
the Act's constitutionality -- or lack thereof. 3
_________________________________________________________________
3. We reject out of hand two additional issues summarily raised by the
Legislature. The Legislature asserts that the District Court abused its
10
A. Constitutionality of Act
1. The Act is Void for Vagueness
The District Court found the Act unconstitutionally vague
because it failed to define with any certainty the conduct
that is proscribed. The Legislature contends that the
District Court erred in so finding because although some
terms may be ambiguous, the Court confused the concepts
of ambiguity and vagueness and, in any event, should have
narrowed the scope of the Act instead of striking down the
Act in its entirety. Conceding that D&E, suction curettage
and induction abortions are constitutionally protected, the
Legislature argues that, if construed narrowly, the Act
simply bans the D&X procedure and not conventional
methods of abortion. The Legislature also points to the
intent element contained within the Act which purportedly
"clearly" restricts its scope. The District Court found that
the Act was not readily susceptible to a narrowing
interpretation and that the intent element does not cure the
vagueness concerns. We agree.
The Supreme Court has been explicit:
It is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values.
First, because we assume that man is free to steer
between lawful and unlawful conduct, we insist that
laws give the person of ordinary intelligence a
_________________________________________________________________
discretion in: (1) excluding materials, such as newspaper articles, that
illustrate the public debate surrounding partial birth abortion, as well
as
testimony of witnesses that the fetus is a human being and able to
experience pain; and (2) refusing to completely correct the transcripts of
the hearings. After examining the record, we find no abuse of discretion
in disallowing the materials and testimony because, among other
reasons, they were not relevant to the issue before the Court, i.e. the
constitutionality of the Act. As for the transcripts, the District Court
did
grant in part the Legislature's motion to amend the transcripts to
adequately reflect significant deviations but refused to order all of the
Legislature's proposed corrections, some of which included replacing
"gonna" with "going to." App. at 1250. We find no error, much less an
abuse of discretion.
11
reasonable opportunity to know what is prohibited, so
that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for
those who apply them.
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)
(footnotes omitted). The level of specificity required to pass
constitutional muster is informed by the subject of the
statute. If a statute is so nonspecific as to create
uncertainty regarding the exercise of a constitutionally
protected right, such as a woman's right to abortion, a
higher degree of clarity is required. See Colautti v. Franklin,
439 U.S. 379, 390 (1979), overruled in part on other
grounds, Webster v. Reproductive Health Servs., 492 U.S.
490 (1989); see also Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (evaluating
a civil statute for vagueness and stating that "perhaps the
most important factor affecting the clarity that the
Constitution demands of a law is whether it threatens to
inhibit the exercise of constitutionally protected rights").
Indeed, in Colautti, the Supreme Court struck down
provisions of the Pennsylvania Abortion Control Act,
stressing the ambiguous nature of both the viability
determination portion of the statute as well as the standard
of care provision. See Colautti, 439 U.S. at 401. The Court
held that the statute was impermissibly vague because
liability was conditioned "on confusing and ambiguous
criteria" which "present[ed] serious problems of notice,
discriminatory application, and [a] chilling effect on the
exercise of constitutional rights." Id. at 394.4
In addition, two basic tenets of statutory construction are
relevant to our analysis. Statutes are to be accorded a
presumption of constitutionality and, under both state and
federal canons of statutory construction, a statute may be
_________________________________________________________________
4. We note that the Court found the statute to be vague on its face
without mention of First Amendment concerns. See Colautti, 439 U.S. at
390. This in and of itself disposes of the Legislature's contention that
plaintiffs cannot bring a facial challenge on vagueness grounds in a case
such as this unless the First Amendment is implicated.
12
narrowed in order to fall within the confines of the
Constitution but only if, an "if " which is important here, it
is "readily susceptible" to such a limiting construction. See
Reno v. American Civil Liberties Union, 521 U.S. 844, 884
(1997) ("[i]n considering a facial challenge, this Court may
impose a limiting construction on a statute only if it is
``readily susceptible' to such a construction"); Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 280, 716 A.2d
1137, 1149 (1998) (holding that New Jersey statute must
be construed "in a constitutional manner if it is reasonably
susceptible to such a construction"), cert. denied, 527 U.S.
1021 (1999). We may not, however, "rewrite a state law to
conform it to constitutional requirements." Virginia v.
American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988).
The Act seeks to prevent physicians from performing
"partial-birth abortions." In medical parlance, as we have
noted above, that term does not exist. The subject of the
ban, then, must be determined from the text of the Act. See
Eubanks v. Stengel, 28 F. Supp. 2d 1024, 1033 (W.D. Ky.
1998) (noting that in examining Kentucky's partial birth
abortion statute, "the Court must consider the
constitutionality of the group of words, selected and
arranged by the General Assembly, presumably intended to
ban whatever they encompass."). According to the Act, a
partial-birth abortion is "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.S.A. S 2A:65A-6(e). The Act thereafter
purports to define "vaginally delivers a living human fetus
before killing the fetus" as "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.S.A. S 2A:65A-6(f). Discerning the meaning of all
of this is a Herculean task and one which illustrates that
the statutory definition of partial birth abortion is so vague
as to encompass almost all forms of abortion.
First, the term "partially vaginally delivers" could
reasonably describe the delivery of an intact fetus partially
into the vaginal canal or the delivery of a fetal part into the
13
vaginal canal. All abortion procedures, save the
hysterotomy and hysterectomy which are typically not
vaginal deliveries, could, therefore, be encompassed within
this definition because during each of the procedures a
fetus may be partially delivered into the vaginal canal and
thereafter killed. For instance, during suction curettage,
when the fetus is suctioned out of the uterus and through
the cervix and vaginal canal, a portion of the fetus may
remain in the uterus, effectuating a partial vaginal delivery.
In addition, during a D&E, parts of the fetus are pulled out
of the uterus and disarticulated, again effectuating a partial
vaginal delivery. Finally, during an induction, the fetus may
become entangled in the umbilical cord or the head may
become lodged in the internal cervical os resulting in the
fetus being partially in the uterus and partially in the
vaginal canal when the umbilical cord is cut or the head is
collapsed. See Little Rock Family Planning Services, P.A. v.
Jegley, 192 F.3d 794, 798 (8th Cir. 1999) (holding that use
of term "partially" in Arkansas partial birth abortion statute
means that "[a] physician who, as part of a D&E procedure,
or as part of a suction-curettage procedure, brings an arm
or a leg or some other part of a living fetus out of the
uterus into the vagina will violate the Act").
Contrary to the Legislature's protestations, following the
phrase "partially vaginally delivers" with"a living human
fetus" does not narrow the reach of the Act. All experts in
this case agree that the term "living" simply means that the
fetus has a heartbeat, a far cry, indeed, from much of the
rhetoric surrounding the partial birth abortion debate as to
what "living" means in the context of partial birth abortion
statutes. It is undisputed that a fetus has a heartbeat from
as early as seven weeks lmp until birth, thus encompassing
the time period during which almost all abortions are
performed. In addition, both an intact and a disarticulated
fetus may have heartbeats and, therefore, be "living." The
record amply supports the District Court's finding that
during a suction curettage, a D&E, or an induction
procedure, the fetus may very well have a heartbeat while
part of the fetus is delivered into the vaginal canal and part
remains in the uterus.
Moreover, far from clarifying anything, use of the term
"living human fetus" adds to the Act's constitutional
14
uncertainty because it does not draw the line at viability, as
the Supreme Court has done. In Roe, the Supreme Court
stressed that the state's interest in potential life may reach
the "compelling" point at viability, or when the fetus is
"potentially able to live outside the mother's womb, albeit
with artificial aid." Roe v. Wade, 410 U.S. 113, 160, 163
(1973). Thus, prior to viability, the state may not interfere
with the physician's decision, in consultation with his or
her patient, that the pregnancy should be terminated. See
id. at 163. After viability, however, the state may proscribe
abortions altogether except when necessary to protect the
life or health of the mother. See id. at 163-64. Although the
Court in Casey subsequently adopted an undue burden
approach when evaluating abortion regulations, it explicitly
reaffirmed Roe's emphasis on viability, holding that before
viability the state "may not prohibit any woman from
making the ultimate decision to terminate her pregnancy[,]"
while post-viability abortion may be proscribed so long as
there are exceptions for the life and health of the woman.
See Planned Parenthood of Southeastern Pa. v. Casey , 505
U.S. 833, 878-79 (1992).
A fetus typically reaches viability after about twenty-four
weeks of pregnancy. See Verniero, 41 F. Supp. 2d at 492
n.4. Here, however, because a fetus may be "living" as early
as seven weeks lmp, use of the term "living" instead of
"viable" indicates that, contrary to the understanding of a
large segment of the public and the concomitant rhetoric,
the Act is in no way limited to late-term, or even mid-term,
abortions. Rather, the Act is limited only to procedures
which entail vaginally delivering part of a fetus from the
uterus after the fetus is "living," or, in other words, after
seven weeks lmp. As we have already noted, most common
abortion procedures will fall within this limitation when
they entail the partial delivery into the vaginal canal of a
fetus that still has a heartbeat, as they usually do.
The uncertainty of the Act is further compounded by the
term "substantial portion." See Carhart v. Stenberg, 192
F.3d 1142, 1150 (8th Cir. 1999) (finding the "crucial
problem" with Nebraska's partial birth abortion statute to
be the undefined term "substantial portion"), cert. granted
in part, 120 S. Ct. 865, 68 U.S.L.W. 3338, 68 U.S.L.W.
153449 (Jan. 14, 2000) (No. 99-830). The Act prohibits
vaginally delivering "a living fetus or a substantial portion
thereof, for the purpose of performing a procedure the
physician . . . knows will kill the fetus, and the subsequent
killing of the fetus." N.J.S.A. S 2A:65A-6(f) (emphasis
added). Questions immediately arise as to whether
"substantial portion" is measured in terms of size or volume
in relation to the remainder of the body, length of the body,
functionality, or a combination of these factors. Even if
"substantial portion" were only interpreted to mean size,
reasonable minds may well differ as to how much of a fetus
is substantial: two limbs, four limbs, at least half of its
body, all but the head? Indeed, the Legislature's own
witness, Dr. Bowes, testified that "substantial" may be
evaluated in terms of function, length, and relative size and
there could be differences of opinion between reasonable
physicians as to whether a portion of a fetus is
"substantial." App. at 1138. It is constitutionally
impermissible to force a physician to guess at the meaning
of this inherently vague term and risk losing his or her
professional license and receiving a heavy fine if he or she
guesses wrong.5
Indeed, the phrase "substantial portion" undermines the
Legislature's assertion that the ban only prohibits the
delivery of intact fetuses. Nowhere does the term"intact"
appear in the Act and the record supports the conclusion
that a "substantial portion" of a living fetus could well refer
to a portion of a disarticulated fetus. Even reading the word
"intact" into the Act, however, does not limit it to the D&X
procedure because an intact fetus may be delivered during
both an induction and a D&E procedure as well.
_________________________________________________________________
5. Not only are physicians bereft of notice as to what procedures are
prohibited by the Act but the vagueness of the Act increases the risk of
disparate enforcement. See City of Chicago v. Morales, 527 U.S. 41, ___,
119 S. Ct. 1849, 1859 (1999) (stating that vague statutes authorize and
may even encourage arbitrary and discriminatory enforcement);
Graynard, 408 U.S. at 108 (same). The utter lack of clarity as to the
scope of the Act raises the Due Process concern that the New Jersey
Board of Medical Examiners would have virtually unfettered discretion to
revoke licenses and impose fines.
16
The Legislature argues, however, that the Act's scienter
requirement at least partially cures the vagueness concerns
it candidly admits exist. The Act forbids a physician from
"deliberately and intentionally delivering into the vagina a
living fetus, or a substantial portion thereof, for the
purpose of performing a procedure the physician . . . knows
will kill the fetus." N.J.S.A. S 2A:65A-6(f) (emphasis added).
While a scienter requirement can cure a vague statute, or
at least ameliorate the vagueness, see Colautti , 439 U.S. at
395, it cannot do so here. At a minimum, to limit the scope
of a statute to "deliberately and intentionally" performing a
certain procedure, the procedure itself must be identified or
readily susceptible of identification. See, e.g., Rhode Island
Med'l Soc'y v. Whitehouse, 66 F. Supp. 2d 288, 311-12
(D.R.I. 1999) (holding that scienter requirement could not
save Rhode Island's partial birth abortion statute because
the "scienter requirement modifies a vague term"). Here, it
is not.
Finally, the Legislature asserts that the reach of the Act
is narrowed by its requirement that after the living fetus, or
a substantial portion, is partially delivered into the vagina,
the physician must intentionally perform a separate
"procedure" which he or she knows will kill the fetus, and
does so. This requirement narrows the Act, the Legislature
asserts, to encompass only the D&X procedure in which the
intact fetus -- again, that word "intact"-- is partially
delivered into the vagina and a separate procedure is then
intentionally performed whereby the fetal head is punctured
and the intracranial contents suctioned, killing the fetus
before delivery is completed. Because delivery is not halted
to perform a separate procedure aimed at killing the fetus
during a D&E, suction curettage or induction abortion
(absent a complication), the Legislature argues that those
abortion procedures are not prohibited by the Act.
The words of the Act simply do not support any such
reading. Nowhere does the Act require that the abortion be
halted while a separate procedure is performed to kill the
fetus; indeed, the word "separate" does not even appear in
the Act. The Act simply prohibits "deliberately and
intentionally delivering into the vagina a living fetus, or a
substantial portion thereof, for the purpose of performing a
17
procedure the physician . . . knows will kill the fetus . . . ."
N.J.S.A. S 2A:65A-6(f). All abortions seek to terminate
pregnancy and necessarily entail the intent to deliver a
fetus, or a substantial portion thereof, for the purpose of
killing the fetus.
Even if we were to read the word "separate" into the Act
and find the Act only applicable to abortion procedures
which entail the intentional delivery into the vagina of a
fetus for the purpose of performing a "separate" procedure
aimed at killing the fetus, however, the Act is still not
limited to the D&X. It is uncontested, for example, that
during a D&E, a substantial portion of the fetus may be
intentionally and deliberately delivered into the vagina for
the purpose of performing a procedure, such as
dismemberment, which the physician knows will kill the
fetus. Indeed, Dr. Wallace testified that when performing a
D&E, his "goal" is to bring a part of the fetus down through
the cervix because he "[does not] want to disarticulate
whatever [he] has grabbed within the contents of the
uterine cavity" and will only disarticulate it in the uterus if
necessary. App. at 680. The purpose of this, he testified, is
to avoid unnecessary passes into the uterus. See id. Also
during a D&E, after a substantial portion of the fetus is
delivered, the physician might be required to collapse the
fetal skull in order to deliver the remainder of the fetus, a
procedure he or she knows will kill the fetus. Finally,
during an induction the physician may intentionally deliver
the fetus into the vagina for the purpose of performing a
separate procedure which will kill the fetus, such as cutting
the umbilical cord or collapsing the skull to deliver the
remainder of the fetus intact.
Another difficulty is that, even though treated as separate
procedures, the D&E and the D&X substantially overlap
given that the D&X is essentially a subset of the D&E.
Generally, the only difference between the procedures is
that the fetus is usually disarticulated in the D&E, while
intact removal is the goal of the D&X.6 In an attempt to
_________________________________________________________________
6. The record reflects that there can be benefits in attempting to remove
an intact, rather than a disarticulated, fetus during an abortion
procedure, including aiding in the diagnosis of fetal abnormalities.
18
perform a D&E, however, it is entirely possible that the
physician may extract not simply a portion of the fetus but
an intact fetus, thus transforming the procedure into a
D&X. In addition, during both the D&E and the D&X, the
head of the fetus may become lodged in the cervix,
requiring the physician to collapse the head. Thus, the
conduct of a physician during both procedures may be
identical. Because there is no meaningful difference
between the forbidden D&X procedure and the permissible
and concededly constitutionally protected D&E procedure,
and no reason of conviction or philosophy to prohibit the
former and permit the latter, one must wonder if the true
purpose of the Act is not, pure and simple, to dramatize to
the public the ugly nature of abortions of all types and
deter physicians from performing them.
Be that as it may, the Legislature asserts that the
scienter requirement narrows the application of the Act to
physicians who intend at the outset to perform a D&X, not
to physicians who intend at the outset to perform a D&E
which inadvertently becomes a D&X when the fetus is
extracted intact instead of disarticulated. So that the intent
is clear, the Legislature proposes that physicians
performing abortions register with the State the particular
type of abortion which, at least at the outset, they intend to
perform.
Separate and apart from the fact, and fact it be, that no
one would ever voluntarily register with the State that he or
she intends to perform a procedure which could or would
cost the physician his or her professional license, the Act
does not support any such reading. It does not prohibit
intentionally performing a D&X, but prohibits only the
intentional delivery of a living fetus, or substantial portion
thereof, for the purpose of performing a procedure that will
kill the fetus and subsequent killing of the fetus. As we
have explained, this prohibition could encompass a D&E, in
which a physician intends to partially deliver a living fetus
into the vagina, dismembers the fetus in the vagina,
thereby killing the fetus, and completes delivery. See
Planned Parenthood of Greater Iowa, Inc. v. Miller , 195 F.3d
386, 389 (8th Cir. 1999) (finding that scienter requirement
could not save Iowa's partial birth abortion ban because it
19
could still encompass the D&E procedure); Jegley , 192 F.3d
at 798 (rejecting argument that scienter requirement limits
scope of Arkansas partial birth abortion statute to cover
only D&X procedure); Carhart, 192 F.3d at 1150 (applying
similar reasoning with reference to Nebraska partial birth
abortion statute).
Finally, the Legislature argues that because New Jersey
is one of the most "liberal" states in terms of abortion
rights, it is "clear" that the drafters did not intend to
repudiate decades of abortion rights by banning all
abortions, but only intended the Act to prohibit the D&X
procedure. The District Court, the Legislature continues,
should have read the Act narrowly in order to effectuate
this clear intent. Indeed, when the Attorney General would
not defend the Act (a fact, we note, which has not escaped
our attention but on which we choose not to comment), the
Legislature itself appeared to do so and to declare both its
intent and its request for a narrowing construction.
Despite the Legislature's protestations, it was not the role
of the District Court, nor is it our role, to rewrite statutes
even at the request of the Legislature. Nonetheless, because
there is virtually no legislative history surrounding the
enactment of the Act, and because the Legislature in its
submissions to us did not even attempt to suggest what
that narrowing construction could or should be, at oral
argument we pressed counsel for the Legislature to specify
the narrow construction which was supposedly intended by
the drafters of the Act and which it calls upon us now to
put in place. We received no answer, giving us no reason to
believe that there is an answer. Indeed, all that we have
been told, and then at but one point in the Legislature's
brief, is that the Act only sought to ban a new method of
abortion which
involves the feet-first delivery of a live, intact fetus
almost completely out of the mother's womb, to the
point where only the head remains in the womb and
the legs and lower trunk are actually outside the
mother's body. At this point, the delivery is halted, the
baby's skull is punctured with a scissors, and the
baby's brains are sucked out with a vacuum, which
collapses the skull.
20
Appellant Br. at 6-7.
It is shocking in the extreme that, whatever one may
think of abortion in general and "partial birth abortion" in
particular, this wholesale mischaracterization of what is
necessarily involved in the D&X procedure and, thus, what
the Act supposedly proscribes is what has unquestionably,
at least in large part, inflamed public opinion. This, of
course, is the result of "partial birth abortion" having no
clear definition and, thus, no clear meaning.
But mischaracterization aside, the words of the Act could
not be more divergent from the Legislature's description of
what it purported to ban. The Act nowhere specifies that
the fetus must be intact, that it be delivered feet-first, that
only the head remain in the womb when delivery is halted,
that the legs and the lower trunk be outside the mother's
body, that the skull be punctured with a scissors, or that
the brains be sucked out with a vacuum in order to
collapse the skull. Instead, the Act is filled with vagaries
such as "partially vaginally delivers," "substantial portion,"
and "a procedure the physician . . . knows will kill the
fetus."
If the Legislature intended to ban only the D&X
procedure, it could easily have manifested that intent either
by specifically naming that procedure or by setting forth the
medical definition of D&X utilized by the ACOG, namely:
"(1) deliberate dilation of the cervix, usually over a sequence
of days; (2) instrumental conversion of the fetus to a
footling breech; (3) breech extraction of the body excepting
the head; and (4) partial evacuation of the intracranial
contents of a living fetus to effect vaginal delivery of a dead
but otherwise intact fetus." App. at 1328. We render no
opinion as to whether a statute explicitly prohibiting the
performance of a D&X or containing the ACOG definition
would pass constitutional muster. Cf. Women's Med'l Prof 'l
Corp. v. Voinovich, 130 F.3d 187, 190 (6th Cir. 1997)
(enjoining Ohio statute specifically prohibiting performance
of "a dilation and extraction procedure upon a pregnant
woman" because definition of procedure set forth in the
statute encompasses D&E procedure), cert. denied , 523
U.S. 1036 (1998); Planned Parenthood of Wis. v. Doyle, 162
F.3d 463, 471 (7th Cir. 1998) (commenting that "[t]he
21
singling out of the D&X procedure for anathematization
seems arbitrary to the point of irrationality"). We note only
that naming the procedure or utilizing clear medical
terminology to define that procedure for the physicians at
whom the Act is aimed would at least have indicated the
Legislature's supposed intent to simply ban the D&X.
There is simply no excuse for the failure of the
Legislature to have done so or for the incurably vague Act
which resulted from that failure. Indeed, we, as was the
District Court, are left to wonder whether the drafters chose
a path of deliberate ambiguity, coupled with public outrage
based largely on misinformation, in an attempt to proscribe
legitimate abortion practices. Cf. Eubanks, 28 F. Supp. 2d
at 1036 (in striking down a partial birth abortion statute,
the Court noted that "[t]he legislature focused directly on
protected activity in a manner which everyone knew might
be unconstitutional. The legislature could have passed a
statute of more limited reach and still achieve its supposed
objective. Instead, it decided to go farther. Indeed, as is
sometimes the case in controversial issues, the legislature
seems to have striven for, in Justice Frankfurter's words, a
``purposeful ambiguity.' ") (citation omitted).
The Act, pure and simple, is not susceptible much less
"readily susceptible" to a narrowing construction. To
narrow it to prohibit only the D&X procedure, as the
Legislature now says was the sole procedure it intended to
ban, would entail a complete rewriting, if not "brute force."
Unlike the Seventh Circuit, we decline to use such brute
force in an attempt to save the Act, and reject out of hand
that Court's observation that "courts do it all the time."
Hope Clinic v. Ryan, 195 F.3d 857, 865 (7th Cir. 1999) (en
banc), petition for cert. filed (U.S. Jan. 14, 2000) (Nos. 99-
1152, 1156). As the dissent in Hope Clinic so aptly stated,
it would be an act of "judicial hubris" to narrow the statute
to the D&X when the drafters of the statute decided not to
use that term, "preferring a vaguer term intended to be
broader."7 Id. at 866 (Posner, C.J., dissenting); see also
_________________________________________________________________
7. Numerous courts throughout the country have stuck down similarly
worded statutes after finding them unconstitutionally vague. See, e.g.,
Rhode Island Med'l Soc'y v. Whitehouse, 66 F. Supp. 2d 288, 310-12
22
Carhart v. Stenberg, 192 F.3d at 1150 (striking down
Nebraska's partial birth abortion statute and noting that
while court must give statute a construction that avoids
constitutional doubts, it "cannot, however, twist the words
of the law and give them a meaning that they cannot
reasonably bear").
2. The Act Creates an Undue Burden
In addition to finding the Act void for vagueness, a
finding with which we wholeheartedly agree, the District
Court determined that, under Roe and Casey, the Act
unduly burdened a woman's constitutional right to obtain
an abortion because: (1) the language of the Act is so broad
that it covers many conventional methods of abortion; (2)
the Act contains no health exception, constraining the
physician from performing a procedure which, in his or her
discretion, would preserve the health of the woman; and (3)
the Act's exception for the life of the woman is inadequate.
The Legislature contends that the District Court erred
because Roe and Casey do not apply, and, even if they do,
the Act creates no undue burden. We will address only the
first ground found by the District Court, and we do so
because the reasons which support that ground so closely
track the reasons which compelled our conclusion that the
Act is void for vagueness.
A woman has a constitutional right under the Due
Process Clause of the Fourteenth Amendment to choose to
_________________________________________________________________
(D.R.I. 1999) (holding partial birth abortion statute to be
unconstitutionally vague); Richmond Med'l Ctr. for Women v. Gilmore, 55
F. Supp. 2d 441, 493-500 (E.D. Va. 1999) (same); Causeway Med'l Suite
v. Foster, 43 F. Supp. 2d 604, 615-19 (E.D. La. 1999) (same); Evans v.
Kelley, 977 F. Supp. 1283, 1304-11 (E.D. Mich. 1997) (same); see also
Women's Med'l Prof 'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997)
(finding statute explicitly prohibiting the dilation and extraction method
of abortion to be impermissibly vague because it covered D&E procedure
as well), cert. denied, 523 U.S. 1036 (1998); but see Hope Clinic v. Ryan,
195 F.3d 857, 869 (7th Cir. 1999) (rejecting vagueness challenges to
Illinois and Wisconsin partial birth abortion statutes but recommending
that the district court enter "precautionary injunctions" prohibiting the
statutes from applying to D&E or induction abortions), petition for cert.
filed (U.S. Jan. 14, 2000) (No. 99-1152).
23
terminate her pregnancy. See Roe v. Wade, 410 U.S. 113,
153 (1973). While affirming the essential holding in Roe
that a state may not prohibit a woman from choosing to
terminate her pregnancy prior to viability, the Supreme
Court subsequently rejected the rigidity of Roe 's trimester
framework. See Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 870 (1992). Instead, the Casey Court
determined that before viability, the state may regulate
abortion but only insofar as it does not create an undue
burden on a woman's ability to choose to have an abortion.
See Casey, 505 U.S. at 874 (stating that "[o]nly where a
state regulation imposes an undue burden on a woman's
ability to make this decision does the power of the State
reach into the heart of the liberty protected by the Due
Process Clause"). In evaluating state regulations, the Court
explained that "[a]n undue burden exists, and therefore a
provision of law is invalid, if its purpose or effect is to place
a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability." Id. at 878.
Although the state may freely regulate, and even proscribe,
abortion after viability, any such restriction must still
contain an exception "where it is necessary, in appropriate
medical judgment, for the preservation of the life or health
of the mother." Id. at 879 (citing Roe, 410 U.S. at 164-65).
Before examining whether the Act creates an undue
burden, and finding that it surely does, we will briefly
address the Legislature's threshold argument that Roe and
Casey do not apply to New Jersey's "partial-birth abortion"
statute because: (1) the applicable test is that enunciated in
United States v. Salerno, 481 U.S. 739, 745 (1987), and
plaintiffs' facial challenge fails to meet Salerno's
requirement that no set of circumstances exists under
which the Act would be valid; and (2) "partial-birth
abortion" is not a Casey-protected abortion procedure, but
rather is tantamount to infanticide. We join numerous
other courts in rejecting both arguments.
First, citing Salerno, the Legislature asserts that in order
to mount a facial challenge to an Act, plaintiffs must
establish that no set of circumstances exists under which
the Act would be valid. See Salerno, 481 U.S. at 745.
According to the Legislature, plaintiffs cannot meet this
24
burden because, as narrowly construed -- assuming it
could be narrowly construed -- the Act is constitutional as
applied to them given that they do not perform the D&X
procedure.
But as several courts, including our own, have noted, the
Casey Court muted the Salerno requirement in the abortion
context by stating that a statute regulating abortion is
facially invalid if "in a large fraction of the cases in which
[the statute] is relevant, it will operate as a substantial
obstacle to a woman's choice to undergo an abortion."
Casey, 505 U.S. at 895. On remand to this Court, we
immediately recognized that the Supreme Court set a"new
standard for facial challenges to pre--viability abortion
laws" by requiring only that "a plaintiff show an abortion
regulation would be an undue burden ``in a large fraction of
the cases.' " Planned Parenthood of Southeastern Pa. v.
Casey, 14 F.3d 848, 863 n.21 (3d Cir. 1994) (citing Casey,
505 U.S. at 895, and noting that Salerno was the "old
rule"). Numerous courts have recognized the substitution of
the Casey standard for the Salerno test. See, e.g., Women's
Med'l Prof 'l Corp. v. Voinovich, 130 F.3d 187, 194-97 (6th
Cir. 1997) (stating that "[a]lthough Casey does not
expressly purport to overrule Salerno, in effect it does"),
cert. denied, 523 U.S. 1036 (1998); Jane L. v. Bangerter,
102 F.3d 1112, 1116 (10th Cir. 1996) (noting that Supreme
Court did not apply Salerno in Casey and that "the proper
test after Casey is the ``undue burden' standard applied by
the Court in that case"), cert. denied, 520 U.S. 1274 (1997);
Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d
1452, 1456-58 (8th Cir. 1995)("We choose to follow what
[Casey] actually did -- rather than what it failed to say --
and apply the undue-burden test. It is true that the Court
did not expressly reject Salerno's application in abortion
cases, but it is equally true that the Court did not apply
Salerno in Casey."), cert. denied , 517 U.S. 1174 (1996); but
see Causeway Med'l Suite v. Ieyoub, 109 F.3d 1096, 1102-
04 (5th Cir.) (finding it "ill-advised" to assume that the
Supreme Court abandoned Salerno in Casey but
invalidating statute under either standard), cert. denied,
522 U.S. 943 (1997).
Thus, in order to mount a facial challenge to an abortion
regulation, a plaintiff need not establish that no set of
25
circumstances exists under which the Act would be valid.
Rather, a plaintiff must show that an abortion regulation
would be an undue burden in a large fraction of the cases
in which that regulation is relevant.
Second, the Legislature contends that Roe and Casey are
inapplicable because they apply only to aborting the
"unborn," while the Act attempts to prohibit"the deliberate
killing of a living human being who has almost completed
the process of birth." Appellant Br. at 45. Because, the
argument goes, the Act pertains to fetuses that are in the
process of being "born" and that are more outside than
inside the uterus when they expire, the procedure is more
akin to infanticide than abortion. Indeed, the Legislature
stresses, the Supreme Court in Roe deliberately left open
the possibility of protecting "partially born" human beings
when it declined to review a Texas statutory provision
criminalizing "destroy[ing] the vitality or life in a child in a
state of being born and before actual birth." Roe, 410 U.S.
at 118 n.1.
The Legislature's argument that Roe and Casey are
inapplicable to "partial-birth" abortion procedures because
such procedures are infanticide rather than abortion is
based on semantic machinations, irrational line-drawing,
and an obvious attempt to inflame public opinion instead of
logic or medical evidence. Positing an "unborn" versus
"partially born" distinction, the Legislature would have us
accept, and the public believe, that during a "partial-birth
abortion" the fetus is in the process of being"born" at the
time of its demise. It is not. A woman seeking an abortion
is plainly not seeking to give birth.
Moreover, that the life of the fetus is terminated when a
"substantial portion" has passed through the cervix and is
in the vaginal canal, does not without more transform an
abortion procedure into infanticide. Again, the medical
evidence clearly indicates that in many conventional
abortion procedures the fetus may be killed, i.e. the heart
ceases beating, when a substantial portion of the fetus
(whether it be disarticulated limbs or part of the body of the
fetus) is in the vagina and a portion remains in the uterus.
In what can only be described as a desperate attempt to
circumvent over twenty-five years of abortion
26
jurisprudence, the Legislature would draw a line based
upon the location in the woman's body where the fetus
expires. Establishing the cervix as the demarcation line
between abortion and infanticide is nonsensical on its face
as well as inaccurate because that line may be crossed in
any number of abortion procedures which the Legislature
concedes are constitutionally protected. While there are
unquestionably numerous ethical, philosophical, and moral
issues surrounding abortion, we are unpersuaded that
these issues -- or our legal analysis -- should turn on
where in the woman's body the fetus expires during an
abortion.
Finally, the Legislature's reliance on the fact that the
Supreme Court in Roe did not review a provision of the
Texas Penal Code entitled "Destroying unborn child" is
misplaced. In Roe, the Supreme Court noted in a footnote
that numerous provisions of the Texas Penal Code,
including the above mentioned provision, were not
challenged by the parties. See Roe, 410 U.S. at 118 n.1.
The fact that the Supreme Court did not sua sponte review
a provision no party asked it to review says nothing about
its position on that provision or on this issue.
In any event, the Legislature neglected to cite the
remainder of the Texas statutory provision which clearly
illustrates its inapplicability to the situation at hand. In
full, that provision states that:
Whoever shall during parturition of the mother destroy
the vitality or life of a child in a state of being born and
before actual birth, which child would otherwise have
been born alive, shall be confined in the penitentiary
for life or for not less than five years.
Roe, 410 U.S. at 118 n.1 (quoting Article 1195 of Chapter
9 of Title 15 of the Texas Penal Code)(emphasis added). By
its own terms, then, the Texas provision applies explicitly to
killing the fetus during parturition, or during the process of
giving birth, not during an abortion procedure.
Furthermore, the provision applies only where the child
would otherwise be born alive. Absolutely nothing in the
Act before us restricts its application to circumstances
where the child would otherwise be born alive.
27
Quite simply, the one thing that is clear about the Act is
that the drafters sought to restrict abortion. The Act
explicitly states that " ``partial-birth abortion' means an
abortion" encompassing the conduct specified in the Act.
N.J.S.A. S 2A:65A-6(e). Indeed, if the abortion procedure the
Legislature now tells us it purported to ban were
tantamount to infanticide, it would have been criminalized
in the Act itself or in State homicide statutes, and the
women upon whom this procedure is performed would not
have been immunized from liability. The Legislature's
attempt to label the Act a birth, instead of an abortion,
regulation is nothing more than an effort to cloud the
issues and avoid clear precedent. As an abortion regulation,
the Act is subject to the analytical framework of Roe and
Casey.
Applying the principles of Roe and Casey , it is clear that
the Act is unconstitutional because it creates an undue
burden on a woman's right to obtain an abortion. As Casey
teaches, an abortion regulation creates an undue burden,
and hence is invalid, "if its purpose or effect is to place a
substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability." Casey, 505 U.S.
at 878. The Act erects a substantial obstacle because, as
already discussed in great detail, it is so vague as to be
easily construed to ban even the safest, most common and
readily available conventional pre- and post-viability
abortion procedures. Separate and apart from whether
such a widespread proscription was intended by the
drafters, because physicians are unable to determine
precisely what the Act bans, they will be chilled from
performing suction and curettage, D&E and induction
abortions in order to avoid the risk of license revocation
and fines. The Court has long recognized that ambiguous
meanings cause citizens to " ``steer far wider of the unlawful
zone' . . . than if the boundaries of the forbidden areas were
clearly marked." Baggett v. Bullitt, 377 U.S. 360, 372 (1964)
(citation omitted). Indeed, Drs. Weiss, Wallace, and Holmes
testified that they would "stop performing all abortions" if
the Act were to go into effect because they were unsure of
28
what conduct would fall within its confines. See Verniero,
41 F. Supp. 2d at 499.8
And if physicians who continued to perform abortions
were to take steps to avoid the reach of the Act by, for
example, killing the fetus by insertion of a toxic substance
into the uterus or limiting their practices to hysterectomies
and hysterotomies, the attendant health risks to women
would significantly increase. Dr. Weiss testified that
injecting a toxic substance such as digitalis or a high
concentration of potassium into the heart of the fetus to
ensure its demise before it is removed from the womb is
usually not done because of the increased health risks to
the woman. See App. at 484. Such a procedure requires
injecting a sizeable needle either through the cervix and
into the uterus or through the abdomen into the uterus. In
addition, because the fetus is relatively small and
oftentimes shifting, it is difficult, even with the aid of
ultrasound, to inject the substance into the heart of the
fetus. Such a procedure "increase[s] the chance of
damaging the woman, increase[s] the risk of infection and
even potentially increase[s] the risk of inducing or
instill[ing] toxic substances into her." Id. Moreover, as the
District Court found, injection of a toxic substance carries
the risk of hemorrhage and is contraindicated for women
who are obese. Verniero, 41 F. Supp. 2d at 500.
Performing a D&E by disarticulating the fetus while it is
completely within the uterus and then waiting for the
heartbeat to cease in order to avoid the tentacles of the Act
would also increase the health risk to the woman by
increasing the length of the procedure. Moreover, as Dr.
Weiss testified, "[t]he last thing [a doctor] would like to do
is disarticulate an advanced fetus and leave it in the uterus
because that would run the risk of causing additional
damage to the woman [due to sharp edges of bone
potentially perforating the uterus]." Id. at 486.
_________________________________________________________________
8. And, of course, were physicians in New Jersey to stop performing
these methods of abortion, women would be forced to go elsewhere to
obtain procedures to which they are constitutionally entitled. Not only
would this interfere with a woman's right to privacy and her relationship
with her doctor, but it could create a wholly unnecessary risk to the
woman's health or life due to delay.
29
Finally, aside from the sheer absurdity of performing only
hysterotomies and hysterectomies in order to avoid the Act,
those procedures carry an enhanced risk of morbidity and
mortality to the woman due to the incidence of hemorrhage.
See Verniero, 41 F. Supp. 2d at 485. In addition, a
hysterectomy renders the woman sterile. Absent an
independent reason such as cervical cancer to perform
these procedures, they are, therefore, rarely used as
abortion techniques.
The increased risk of injury or death to the woman by
attempting to ensure fetal demise in utero, or sterilization in
the case of hysterectomies, clearly constitutes an undue
burden. Indeed, the District Court found -- afinding
certainly not clearly erroneous -- that the D&X may be a
relatively safer second trimester procedure because it
involves fewer entries into the uterus, thereby creating
fewer risks of cervical laceration and uterine perforation.
See Verniero, 41 F. Supp. 2d at 485.
In sum, the Act's chilling effect on a woman's ability to
obtain a conventional and constitutionally permissible
method of abortion, coupled with the attendant health
risks, creates an undue burden under Casey and, thus,
renders the Act unconstitutional.9 In so finding, we need
_________________________________________________________________
9. Our conclusion is consistent with those of numerous other courts
which have struck down similarly worded partial birth abortion statutes
because they created an undue burden. See, e.g. , Little Rock Family
Planning Services v. Jegley, 192 F.3d 794, 798 (8th Cir. 1999) (holding
Arkansas's partial birth abortion statute unconstitutional because it
created an undue burden by encompassing D&E and suction curettage
procedures); Carhart v. Stenberg, 192 F.3d 1142, 1151 (8th Cir. 1999)
(holding Nebraska's partial birth abortion statute to be unconstitutional
because it prohibited most common second trimester abortions, thereby
creating undue burden), cert. granted in part , 120 S. Ct. 865, 68
U.S.L.W. 3338, 68 U.S.L.W. 3449 (Jan. 14, 2000) (No. 99-830); Planned
Parenthood of Greater Iowa v. Miller, 195 F.3d 386, 388 (8th Cir. 1999)
(holding Iowa's partial birth abortion statute unconstitutional because it
banned D&E, and in some circumstances suction curettage, abortions,
thereby creating an undue burden); Richmond Med'l Center for Women v.
Gilmore, 55 F. Supp. 2d 441, 487 (E.D. Va. 1999) (concluding that
Virginia's partial birth abortion ban created undue burden because it
prohibited D&E abortions); Eubanks v. Stengel , 28 F. Supp. 2d 1024,
30
not and, thus, do not discuss the Act's lack of a health
exception or whether its life exception is adequate.
B. Standing, Ripeness and Abstention
Having determined what the Legislature describes as the
"central issue in this case" -- the scope of the Act -- we
turn our attention to three of the issues which, the
Legislature argues, themselves turn on that determination:
standing, ripeness and abstention. The Legislature
contends that plaintiffs do not have standing to raise their
constitutional challenges, that the matter is not ripe for
review, and that the District Court should have abstained
from evaluating a state statute before it has been
interpreted by the state courts. We disagree.
1. Standing
The Legislature contends that plaintiffs lack standing
because they do not, by their own admission, perform the
D&X procedure, the only method which the Legislature now
posits is banned by the Act. Therefore, according to the
Legislature, plaintiffs would not sustain any injury were the
Act to be enforced.
The District Court found that plaintiffs had standing to
challenge the Act because the Act encompasses the
conventional methods of abortion plaintiffs currently
perform and, thus, they would be exposed to civil liability
and license revocation. In addition, the District Court
stressed well-established precedent for the proposition that
abortion providers have third party standing to assert the
rights of their patients in the face of governmental intrusion
into the abortion decision in order to determine whether
_________________________________________________________________
1035 (W.D. Ky. 1998) (finding Kentucky partial birth abortion ban
created undue burden because it prohibited D&E procedure); see also
Women's Med'l Prof 'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997)
(holding that statute explicitly prohibiting D&X procedure created undue
burden), cert. denied, 523 U.S. 1036 (1998); but see Hope Clinic v. Ryan,
195 F.3d 857 (7th Cir. 1999) (finding no undue burden in partial birth
abortion statute, but only after limiting statute to cover only D&X
procedure), petition for cert. filed (U.S. Jan. 14, 2000)(Nos. 99-1152,
1156).
31
such interference would constitute an undue burden. We
exercise plenary review over the District Court's
determination. See Conte Bros. Automotive, Inc. v. Quaker
State-Slick 50, Inc., 165 F.3d 221, 224 (3d Cir. 1998).
In order to meet the constitutional requirements of
standing which emanate from Article III of the Constitution,
plaintiffs were required to allege and ultimately prove that:
(1) they have suffered or imminently will suffer an"injury in
fact"; (2) the injury is "fairly traceable" to the defendant's
conduct; and (3) the requested relief is likely to redress the
injury. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83,
103 (1998); see also Northeastern Fla. Chapter of the
Associated Gen. Contractors of Am. v. City of Jacksonville,
508 U.S. 656, 663-64 (1993).
As we have already discussed in much detail, the Act is
so vague as to be impervious to a readily susceptible
narrowing construction, effectuating a ban on the
conventional types of abortions currently performed by
plaintiffs. Given that the Act is not subject to a narrowing
construction, it occasions an imminent "injury in fact"
upon plaintiffs because, as written, it threatens them with
severe civil penalties, namely, license revocation and a
$25,000 fine.10 In addition, plaintiffs have satisfied the
_________________________________________________________________
10. The District Court found Planned Parenthood had standing for
essentially the same reasons as the plaintiff physicians, i.e. that it
provides constitutionally protected abortions which may be disallowed by
the broad and vague Act, subjecting it to license revocation. The
Legislature asserts that Planned Parenthood does not have standing
because no evidence was introduced at the hearing concerning the
abortions allegedly performed at Planned Parenthood. See Appellants' Br.
at 37 n.18; Reply Br. at 15 n.17. Plaintiffs point to the declaration
submitted to the District Court in support of the motion for preliminary
restraints certifying that Planned Parenthood is a licensed ambulatory
health care facility which performs abortions. See Appellees' Br. at 55
n.28. We need not address this argument, buried within and argued
exclusively in footnotes, because it is uncontested that the plaintiff
physicians perform abortions and, therefore, at least they have standing
to assert the claims. See, e.g., Doe v. Bolton , 410 U.S. 179, 189 (1973)
(declining to decide whether additional appellants have standing because
"the issues are sufficiently and adequately presented by" appellants with
standing).
32
second and third prongs of the standing inquiry: the harm
is more than "fairly traceable" to the State's enforcement of
the Act, and the requested relief, a permanent injunction,
will clearly redress the injury.
Moreover, the District Court correctly concluded that
plaintiffs had standing to bring an undue burden challenge
on behalf of their patients whose abortion rights were
allegedly unconstitutionally impinged. Pointing to the close
relationship between a physician and his or her patients,
privacy interests, and imminent mootness concerns, the
Supreme Court explicitly held that "it generally is
appropriate to allow a physician to assert the rights of
women patients as against governmental interference with
the abortion decision[.]" Singleton v. Wulff, 428 U.S. 106,
118 (1976). Indeed, in Casey, where, it should be
remembered, the Court first articulated the undue burden
standard, the challenge to state abortion restrictions was
brought by abortion clinics and physicians who performed
abortions on behalf of their patients. See Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833(1992).
Accordingly, plaintiffs had standing to bring their claims.
2. Ripeness
The Legislature next argues that the challenge to the Act,
filed the day the Act was to have become effective and
before the Act had been interpreted by the state courts or
enforcement agencies, was not ripe for review. Moreover,
the Legislature argues, as it did with regard to standing,
that if construed narrowly, the Act does not cover the
procedures that plaintiffs perform and, thus, there is no
danger that it will be enforced against them. The District
Court rejected these arguments and found the matters ripe
for review. Again, we agree.
Intertwined with Article III's requirement that a party
suffer injury or be in danger of imminent injury, is the
ripeness doctrine which seeks to "prevent the courts,
through the avoidance of premature adjudication, from
entangling themselves in abstract disagreements." Artway
v. Attorney Gen. of N.J., 81 F.3d 1235, 1246-47 (3d Cir.
1996) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148
33
(1967), overruled on other grounds, Califano v. Sanders, 430
U.S. 99, 105 (1977)). To determine whether a claim is ripe,
a court must weigh: "(1) the hardship to the parties of
withholding court consideration; and (2) the fitness of the
issues for judicial review." Id. at 1247.
Federal court review is not foreclosed merely because
there is a pre-enforcement challenge to a state statute.
Indeed, in both Casey and Colautti, the Supreme Court
entertained constitutional challenges to state abortion
statutes which were filed before the statutes took effect.
See, e.g., Casey, 505 U.S. at 845; Colautti v. Franklin, 439
U.S. 379, 383 (1979), overruled in part on other grounds,
Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).
This matter was ripe for review because there would have
been hardship to the parties had review been withheld and
the issues were fit for review. With reference to the latter,
a comprehensive factual record was amply developed
during a four-day hearing, allowing the District Court to
fully delineate the legal issues. See Artway, 81 F.3d at
1249 (noting that the "principal consideration" in deciding
whether the issue is fit for review is "whether the record is
factually adequate to enable the court to make the
necessary legal determinations").
With reference to the hardship to the parties of
withholding review component of the ripeness test, and as
discussed with reference to standing, even though the
plaintiffs do not perform the D&X procedure, the threat
that the Act would have been enforced against plaintiffs
was credible and not speculative. As in the criminal
context, "[w]hen the plaintiff has alleged an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder, he
``should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.' " Babbitt v.
United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)
(citation omitted). Similarly, plaintiffs have performed in the
past, and intend to perform in the future, concededly
constitutionally protected procedures such as the D&E. The
Act fairly easily can be read to prohibit those
constitutionally protected procedures, and plaintiffs
34
received no assurances that it would not be enforced
against them if they performed such procedures. They were
entitled to know what they could not do. Cf. Virginia v.
American Booksellers Ass'n, Inc., 484 U.S. 383, 393 (1988)
(stating that it was "not troubled" by pre-enforcement
challenge to state statute because "[t]he State has not
suggested that the newly enacted law will not be enforced"
and "plaintiffs have alleged an actual and well-founded fear
that the law will be enforced against them").
The District Court did not err in finding the challenge to
the Act ripe for review.11
3. Abstention
The Legislature argues that the District Court should
have but did not abstain pursuant to Railroad Comm'n of
Tex. v. Pullman Co., 312 U.S. 496 (1941). Essentially, the
argument goes, the District Court should not have
undertaken to analyze the Act under the United States
Constitution because the Act has not yet been interpreted
by the New Jersey courts. According to the Legislature,
interpretation of the Act by the state courts, the courts
empowered to render binding interpretations of state
statutes, could significantly narrow the scope of the Act,
thereby eliminating, or at least limiting, the scope of the
federal constitutional concerns raised here. While on its
face the Act may seem ambiguous, the Legislature
continues, New Jersey courts frequently perform"judicial
surgery" to narrowly interpret statutes to relieve
constitutional concerns. The doctrine of Pullman
abstention, the Legislature concludes, dictates that the
state courts be given the opportunity to do just that before
a federal court swoops in and strikes down a statute.
The District Court carefully considered whether it should
abstain under Pullman and concluded that abstention was
not warranted because the Act was so vague that it was not
_________________________________________________________________
11. The Legislature's contention that the matter is not ripe for review
because a federal court should not attempt to decipher a state statute
without the benefit of interpretation by the state courts is better framed
as an argument for abstention and will be addressed in our discussion
of abstention.
35
susceptible to a state court interpretation which would
render unnecessary, or substantially limit, the federal
constitutional question. See Verniero, 41 F. Supp. 2d at
488-90. Yet once again, we agree.
The obligation of a federal court to adjudicate claims
which fall within its jurisdiction has been deemed by the
Supreme Court to be "virtually unflagging." New Orleans
Pub. Serv., Inc. v. Council of City of New Orleans , 491 U.S.
350, 359 (1989) (citations omitted). It has long been said
that "[federal courts] have no more right to decline the
exercise of jurisdiction which is given, than to usurp that
which is not given. The one or the other would be treason
to the Constitution." Id. at 358 (quoting Cohens v. Virginia,
6 Wheat. 264, 404 (1821)). This is because "Congress, and
not the Judiciary, defines the scope of federal jurisdiction
within the constitutionally permissible bounds." Id. at 359.
Abstention is an "extraordinary and narrow exception to
the duty of a District Court to adjudicate a controversy
properly before it" and one which should be invoked "only
in the exceptional circumstances." Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813
(1976) (citation omitted); see also City of Houston v. Hill,
482 U.S. 451, 467 (1987) (stating that "[a]bstention is, of
course, the exception and not the rule"); Marks v. Stinson,
19 F.3d 873, 881 (3d Cir. 1994) (same); City of Pittsburgh,
757 F.2d at 45 (same).
One type of abstention, commonly referred to as Pullman
abstention, applies "in cases presenting a federal
constitutional issue which might be mooted or presented in
a different posture by a state court determination of
pertinent state law." Colorado River, 424 U.S. at 814(citation omitted). In other words, abstention under Pullman
"is appropriate where an unconstrued state statute is
susceptible of a construction by the state judiciary``which
might avoid in whole or in part the necessity for federal
constitutional adjudication, or at least materially change
the nature of the problem.' " Bellotti v. Baird, 428 U.S. 132,
147 (1976) (citation omitted). The purpose of abstaining is
twofold: (1) to avoid a premature constitutional adjudication
which could ultimately be displaced by a state court
adjudication of state law; and (2) to avoid "needless friction
36
with state policies." Pullman, 312 U.S. at 500. While these
are compelling considerations, we reiterate that Pullman
abstention should be rarely invoked. See Artway , 81 F.3d
at 1270 (recognizing that Pullman abstention is an
"exception to the general rule that federal courts must hear
cases properly brought within their jurisdiction").
Before a federal court may abstain under Pullman , three
"exceptional circumstances" must be present. First, there
must be "uncertain issues of state law underlying the
federal constitutional claims." Presbytery of N.J. of the
Orthodox Presbyterian Church v. Whitman, 99 F.3d 101,
106 (3d Cir. 1996), cert. denied, 520 U.S. 1155 (1997).
Second, the state law issues must be amenable to a state
court interpretation which could "obviate the need to
adjudicate or substantially narrow the scope of the federal
constitutional claim." Id. Third, it must be that "an
erroneous construction of state law by the federal court
would disrupt important state policies." Id. If all three
circumstances are present, the District Court is then
required to determine, in the Court's discretion,"whether
abstention is appropriate by weighing such factors as the
availability of an adequate state remedy, the length of time
the litigation has been pending, and the impact of delay on
the litigants." Artway, 81 F.3d at 1270.
We agree with the District Court that, even though the
state courts have not had the opportunity to interpret the
Act, all of the "exceptional circumstances" requisite for
Pullman abstention are simply not present. Arguably
inherent in plaintiffs' vagueness challenge to the Act is that
there is an uncertain question of state law, namely, what
procedures are covered by the Act. The Supreme Court has
explicitly held, however, that "not every vagueness
challenge to an uninterpreted state statute or regulation
constitutes a proper case for abstention." Procunier v.
Martinez, 416 U.S. 396, 401 (1974), overruled on other
grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). In any
event, we need not reach the first and third "exceptional
circumstances" because it is clear that the second
circumstance is not present in this case.
At the risk of redundancy, the Act is so vague that it is
not amenable to a state court interpretation which would
37
render unnecessary or substantially narrow the
constitutional question at issue. Cf. Colautti , 439 U.S. at392 n.9 (refusing to abstain from deciding vagueness
challenge to abortion regulation because of "the extent of
the vagueness that afflicts [the statute]"). We have
previously noted a leading commentator's observation that
the Supreme Court's "amenability" standard establishes a
"fairly high threshold requiring a ``substantial possibility'
that a state interpretation would obviate the need for a
federal constitutional decision." Artway, 81 F.3d at 1271
n.34 (citing to Erwin Chemerinsky, Federal Jurisdiction
692-93 (1994)). "If the statute is not obviously susceptible
of a limiting construction, then even if the statute has
``never [been] interpreted by a state tribunal . . . it is the
duty of the federal court to exercise its properly invoked
jurisdiction.' " Hill, 482 U.S. at 468 (quoting Harman v.
Forssenius, 380 U.S. 528, 535 (1965)).
Abstaining to allow the New Jersey state courts to
interpret the Act would be fruitless because those courts,
even applying "judicial surgery," are not empowered to
completely rewrite statutes. See Hamilton Amusement Ctr.,
156 N.J. at 280 (holding that New Jersey courts may use
" ``judicial surgery' to excise a constitutional defect" but the
statute must be "reasonably susceptible to such a
construction"). For the same reasons that we will not
rewrite the Act, we have every confidence that the New
Jersey courts would likewise refuse to do so and would
likely say that it is up to the Legislature to take the Act
back and do it over.
Given how vast the reach of the Act and how vague and
ambiguous its terms, the entire Act is permeated with
defects of constitutional dimension, defects "judicial
surgery" could not cure without a total rewrite. There is, in
other words, nothing to "excise" but the Act itself. As we
have discussed throughout this opinion, and it bears
repetition one last time, the Act could reasonably be
interpreted to prohibit most conventional abortion
procedures. As such, it provides little guidance to
physicians who are attempting to tailor their conduct to
avoid the Act's prohibitions, performance of which could
strip them of their professional licenses. No narrowing
38
construction has even been suggested by the Legislature,
aside from its conclusory assertion that the Act covers only
the D&X procedure, an assertion completely unsupported
by the Act itself. Moreover, given the numerous meanings
that could be attributed to the Act's terms, as well as the
inherent uncertainty of terms such as "substantial portion,"
the Act is simply not susceptible to, much less, readily
susceptible to, a limiting reading by any court, much less
a reading which would bring it within the confines of the
Constitution. Because the Act cannot be reasonably
interpreted to obviate or substantially narrow the federal
constitutional question, the second exceptional
circumstance required for Pullman abstention is lacking.
Not only are all of the requisite exceptional circumstances
absent, but equitable considerations, such as the effect of
delay on the litigants or the public interest, also weigh
against abstention. Cf. Chez Sez III Corp. v. Township of
Union, 945 F.2d 628, 633-34 (3d Cir. 1991) ("When a facial
challenge is involved, abstention is generally not
appropriate because ``extensive adjudications, under a
variety of factual situations, [would be required to bring the
statute] within the bounds of permissible constitutional
certainty[.]' ") (quoting Baggett v. Bullitt, 377 U.S. 360, 378
(1964)), cert. denied, 503 U.S. 907 (1992). Unsure of what
conduct the statute encompasses, physicians would cease
performing conventional abortions such as D&Es for fear of
running afoul of the Act. Thus, if the federal court were to
abstain while cases brought under the Act wend their way
through the state courts, the rights of women to obtain
constitutionally protected abortions would be chilled.
Moreover, such limitations on the abortion procedures
available to women could have dramatic and irreversible
health risks to pregnant women. See, e.g., Verniero, 41 F.
Supp. 2d at 502 (detailing health risks attendant to women
forced to carry pregnancies to term such as liver or kidney
disease, severe hypertension, cardiac conditions, diabetes,
blindness or self-harm due to exacerbated schizophrenia).
The Supreme Court's discussion in Baggett is
illuminating. In Baggett, state employees challenged a
Washington statute requiring loyalty oaths as being
unconstitutionally vague. See Baggett v. Bullitt , 377 U.S.
39360, 361 (1964). The District Court abstained and
dismissed the case, holding that adjudication was
inappropriate in the absence of a state court interpretation
of the statute as state court interpretation might resolve the
constitutional issues. See id. at 366. The Supreme Court
reversed. It pointed out that, unlike in other cases in which
vagueness was a concern, the Baggett plaintiffs "cannot
understand the required promise, cannot define the range
of activities in which they might engage in the future, and
do not want to foreswear doing all that is literally or
arguably within the purview of the vague terms." Id. at 378.
As such, the Court opined, "[i]t is fictional to believe that
anything less than extensive adjudications, under the
impact of a variety of factual situations, would bring the
oath within the bounds of permissible constitutional
certainty." Id. Abstention, it concluded,"does not require
this." Id.
Likewise, in this case, physicians cannot understand
what conduct is permissible or prohibited under the Act.
Because the Act is subject to multiple interpretations and
can encompass numerous procedures, extensive
adjudication in the state courts would be necessary to
clarify the Act and narrow its scope even assuming, with
little or no confidence, that that could be done at all. In the
meantime, physicians would drastically limit their abortions
practices to avoid the reach of the Act and a woman's
constitutional right to obtain an abortion would be
impermissibly chilled. See Hill, 482 U.S. at 467-68 (noting
that "to force the plaintiff who has commenced a federal
action to suffer the delay of state-court proceedings might
itself effect the impermissible chilling of the very
constitutional right he seeks to protect") (quoting Zwickler
v. Koota, 389 U.S. 241, 252 (1967)). The District Court did
not abuse its discretion when it refused to abstain. 12
_________________________________________________________________
12. On November 19, 1999, the Supreme Court of New Jersey adopted
Rule 2:12A permitting the Court of Appeals for the Third Circuit to
certify questions of state law to the Supreme Court of New Jersey. Rule
2:12A became effective on January 3, 2000. See Notice to the Bar: Rule
Adopted on Certification of Questions of Law, 8 N.J. Lawyer 2560 (Dec.
6, 1999). While the Legislature brought this rule to the attention of the
Court in a letter submitted pursuant to Fed. R. App. P. 28(j), it did not
40
specifically request that this Court utilize the rule, nor did it set
forth
proposed questions for certification or argue why certification would be
appropriate in this case.
In any event, certification would be fruitless in light of the multiple
problems which permeate the Act. As the Supreme Court in Hill opined
when the possibility of certification was raised,"[a] federal court may
not
properly ask a state court if it would care in effect to rewrite a
statute."
Id. at 471.
13. Given this disposition, we need not reach plaintiffs' arguments that
the Act discriminates against women in violation of the Equal Protection
Clause and that the Act does not serve a legitimate state interest.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the District Court.13
41
ALITO, Circuit Judge, concurring in the judgment.
I do not join Judge Barry's opinion, which was never
necessary and is now obsolete. That opinion fails to discuss
the one authority that dictates the result in this appeal,
namely, the Supreme Court's decision in Stenberg v.
Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our
responsibility as a lower court is to follow and apply
controlling Supreme Court precedent. I write briefly to
explain why Carhart requires us to affirm the decision of
the District Court in this case. This is an appeal by the New
Jersey State Legislature from a decision of the United
States District Court for the District of New Jersey holding
the New Jersey Partial-Birth Abortion Ban Act of 1997,
2A:65A-5 et seq., unconstitutional and permanently
enjoining enforcement of the Act. Planned Parenthood of
Central New Jersey v. Verniero, 41 F. Supp. 2nd 478
(D.N.J. 1998). The New Jersey statute closely resembles
statutes enacted in recent years in many other states.
On January 14, 2000, the Supreme Court granted
certiorari to review the decision in Carhart v. Stenberg, 192
F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865(2000), which presented the question of the
constitutionality of a similar Nebraska statute. The
Supreme Court recently held that the Nebraska statute is
unconstitutional. Stenberg v. Carhart, 2000 WL 825889(U.S. June 28, 2000).
The Court based its decision on two grounds. First, in
Part II-A of its opinion, the Court held that the Nebraska
law is unconstitutional because it lacks an exception for
the preservation of the health of the mother. See 2000 WL
825889, *9-*14. Second, in Part II-B of its opinion, the
Court held that the Nebraska statute is unconstitutional
because it imposes an undue burden on a woman's ability
to choose the method most commonly used for second
trimester abortions, the "dilation and evacuation" (D & E)
method. See 2000 WL 825889, *14-*18.
Under Carhart, the decision of the District Court must be
affirmed. First, the New Jersey statute, like its Nebraska
counterpart, lacks an exception for the preservation of the
health of the mother. Without such an exception, the New
Jersey statute is irreconcilable with Part II-A of Carhart.
42
Second, the Supreme Court's holding in Part II-B of
Carhart is also applicable here. As noted, in that portion of
its opinion, the Court held that the Nebraska statute
applied, not only to the "dilation and extraction" or D & X
procedure, but also to the more commonly used D & E
procedure. The wording of the relevant provisions of the
Nebraska statute is nearly identical to that of the New
Jersey statute. Thus, the Supreme Court's holding in Part
II-B of its opinion in Carhart must be regarded as
controlling in this case.
In light of this interpretation of the New Jersey statute,
the Legislature's argument that the plaintiffs lack standing
must fail. As noted above, the New Jersey statute must be
interpreted, in light of Carhart, as applying to the D & E
procedure, and the plaintiff physicians in this case perform
that form of abortion. The Legislature's argument that this
case is not ripe because the New Jersey statute has not
been authoritatively interpreted by the state courts or state
enforcement officials must also fail. In view of the
interpretation in Carhart, there is no reason to wait for
interpretation by state officials or judges.
In a post-Carhart filing, the New Jersey Legislature has
urged us to certify questions concerning the interpretation
of the New Jersey statute to the state supreme court. In
Carhart, however, the Supreme Court of the United States
turned down a similar request for certification by the
Attorney General of Nebraska. 2000 WL 825889, *18. The
decision of the Supreme Court of the United States to deny
certification in Carhart must be regarded as controlling
here, both with respect to the Legislature's request for
certification and with respect to its closely related argument
that the District Court erred in refusing to abstain
pursuant to Railroad Commission v. Pullman Co. , 312 U.S.
496 (1941).
In conclusion, Carhart compels affirmance of the decision
of the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
43