Richmond Medical Center for Women v. Hicks

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHMOND MEDICAL CENTER FOR 
WOMEN; WILLIAM G. FITZHUGH,
M.D., on behalf of themselves, their
staffs, and their patients,
Plaintiffs-Appellees,
v.
DAVID M. HICKS, in his official
capacity as Commonwealth
Attorney for the City of Richmond;
WADE A. KIZER, in his official
capacity as Commonwealth
Attorney for the County of Henrico,
Defendants-Appellants.
 No. 03-1821
HORATIO R. STORER FOUNDATION,
INCORPORATED,
Amicus Supporting Appellants,
and
PHYSICIANS FOR REPRODUCTIVE CHOICE
AND HEALTH; VANESSA E. CULLINS,
Vice President for Medical Affairs,
Planned Parenthood Federation of
America; FORTY-TWO INDIVIDUAL
PHYSICIANS,
Amici Supporting Appellees.

2 RICHMOND MEDICAL CENTER v. HICKS
RICHMOND MEDICAL CENTER FOR 
WOMEN; WILLIAM G. FITZHUGH,
M.D., on behalf of themselves, their
staffs, and their patients,
Plaintiffs-Appellees,
v.
DAVID M. HICKS, in his official
capacity as Commonwealth
Attorney for the City of Richmond;
WADE A. KIZER, in his official
capacity as Commonwealth
Attorney for the County of Henrico,
Defendants-Appellants.
 No. 04-1255
HORATIO R. STORER FOUNDATION,
INCORPORATED,
Amicus Supporting Appellants,
and
PHYSICIANS FOR REPRODUCTIVE CHOICE
AND HEALTH; VANESSA E. CULLINS,
Vice President for Medical Affairs,
Planned Parenthood Federation of
America; FORTY-TWO INDIVIDUAL
PHYSICIANS,
Amici Supporting Appellees.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-03-531-3)
Argued: October 26, 2004
Decided: June 3, 2005
RICHMOND MEDICAL CENTER v. HICKS 3
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the majority
opinion, in which Judge Motz joined. Judge Niemeyer wrote a dis-
senting opinion.
COUNSEL
ARGUED: William Eugene Thro, Deputy State Solicitor, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellants. Suzanne Novak, CENTER FOR REPRODUC-
TIVE LAW AND POLICY, New York, New York, for Appellees.
ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, Judith
Williams Jagdmann, Deputy Attorney General, David E. Johnson,
Deputy Attorney General, Edward M. Macon, Senior Assistant Attor-
ney General, James C. Stuchell, Assistant Attorney General, Anthony
P. Meredith, Assistant Attorney General, Richmond, Virginia, for
Appellants. Priscilla J. Smith, CENTER FOR REPRODUCTIVE
LAW AND POLICY, New York, New York, for Appellees. James
Bopp, Jr., Richard E. Coleson, Thomas J. Marzen, Jeffrey P. Gallant,
BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Amicus
Supporting Appellants. David S. Cohen, WOMEN’S LAW PROJ-
ECT, Philadelphia, Pennsylvania; Susan Frietsche, Stacey I. Young,
WOMEN’S LAW PROJECT, Pittsburgh, Pennsylvania, for Amici
Supporting Appellees.
OPINION
MICHAEL, Circuit Judge:
This case involves a facial challenge under the Fourteenth Amend-
ment to a Virginia statute that attempts to criminalize "partial birth
abortion," which the statute terms "partial birth infanticide." In a sum-
mary judgment order the district court declared the statute invalid for
4 RICHMOND MEDICAL CENTER v. HICKS
several reasons. We affirm because it lacks an exception to protect a
woman’s health.
I.
A.
Chapters 961 and 963 of the 2003 Acts of the Virginia General
Assembly ("the Act") make it a Class 4 felony for a person to know-
ingly perform "partial birth infanticide." Va. Code Ann. § 18.2-71.1.
A Class 4 felony in Virginia is punishable by a prison term of up to
ten years and a fine of up to $100,000. Id. § 18.2-10. The Act defines
"partial birth infanticide" as
any deliberate act that (i) is intended to kill a human infant
who has been born alive, but who has not been completely
extracted or expelled from its mother, and that (ii) does kill
such infant, regardless of whether death occurs before or
after extraction or expulsion from its mother has been com-
pleted.
Id. § 18.2-71.1(B). The phrase "human infant who has been born
alive" is defined as
a product of human conception that has been completely or
substantially expelled or extracted from its mother, regard-
less of the duration of pregnancy, which after such expul-
sion or extraction breathes or shows any other evidence of
life such as beating of the heart, pulsation of the umbilical
cord, or definite movement of voluntary muscles, whether or
not the umbilical cord has been cut or the placenta is
attached.
Id. § 18.2-71.1(C). The Act defines the phrase "substantially expelled
or extracted from [the] mother" as (i) when "the infant’s entire head
is outside the body of the mother" in the case of a headfirst presenta-
tion, or (ii) when "any part of the infant’s trunk past the navel is out-
side the body of the mother" in the case of a breech presentation. Id.
§ 18.2-71.1(D). The Act provides the following exception to the gen-
eral prohibition:
RICHMOND MEDICAL CENTER v. HICKS 5
This section shall not prohibit the use by a physician of any
procedure that, in reasonable medical judgment, is necessary
to prevent the death of the mother, so long as the physician
takes every medically reasonable step, consistent with such
procedure, to preserve the life and health of the infant. A
procedure shall not be deemed necessary to prevent the
death of the mother if completing the delivery of the living
infant would prevent the death of the mother.
Id. § 18.2-71.1(E). The Act’s ban of certain abortion procedures does
not provide an exception for instances in which an otherwise banned
procedure is necessary, in appropriate medical judgment, to preserve
a woman’s health. Indeed, the Virginia General Assembly rejected
proposed amendments that would have provided a statutory exception
for some circumstances when a woman’s health was at risk. See Rich-
mond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499, 502 (E.D.
Va. 2004). The General Assembly failed to include a health exception
even though an earlier Virginia statute banning late-term abortions
was struck down because it lacked an exception for instances when
continuation of a pregnancy poses a threat to a woman’s health. See
Richmond Med. Ctr. for Women v. Gilmore, 224 F.3d 337, 339 (4th
Cir. 2000). The Virginia House of Delegates also rejected proposed
amendments that would have limited the Act’s prohibition to postvia-
bility abortions. See Hicks, 301 F. Supp. 2d at 502.
The Act challenged in this case excludes the following from the
definition of "partial birth infanticide":
(i) the suction curettage abortion procedure, (ii) the suction
aspiration abortion procedure, (iii) the dilation and evacua-
tion [(D&E)] abortion procedure involving dismemberment
[(disarticulation)] of the fetus prior to removal from the
body of the mother, [and] (iv) completing delivery of a liv-
ing human infant and severing the umbilical cord of any
infant who has been completely delivered.
Va. Code Ann. § 18.2-71.1(B). By excepting only a single variant of
the D&E procedure, that involving fetal disarticulation prior to
removal from the woman’s body, the Act prohibits all other D&E
variations meeting the statutory definition of "partial birth infanti-
6 RICHMOND MEDICAL CENTER v. HICKS
cide." One prohibited variant is the intact D&E, which does not
involve disarticulation and in which the fetus is removed from the
uterus through the cervix in one pass rather than several. Depending
on the presentation of the fetus, an intact D&E proceeds in one of two
ways. In the case of a vertex presentation, the physician collapses the
fetal calvarium and then extracts the entire fetus through the cervix.
In the case of a breech presentation, the physician pulls the fetal trunk
through the cervix, collapses the fetal calvarium, and then completes
extraction of the fetus through the cervix. A second variation prohib-
ited by the Act is the dilation and extraction (D&X) procedure, which
is similar to the breech extraction variant of the intact D&E in all
material respects except that it involves the intentional repositioning
of the fetus to a breech presentation. Because the intact D&E and
D&X procedures are so similar, they are often referred to inter-
changeably. A third variation prohibited by the Act involves the D&E
in which fetal disarticulation occurs outside of the woman’s body.
Disarticulation generally occurs beyond the cervical os (the lower
portion, or opening, of the cervix) as a result of traction against the
cervix. However, disarticulation may occur outside of the woman’s
body when there is little or no space between the cervical os and the
vaginal introitus (the vaginal canal) or when the cervical os prolapses
(emerges) outside the vaginal introitus. (The Act also criminalizes the
treatment of certain incomplete miscarriages.)
Plaintiff William G. Fitzhugh, M.D. is a board certified obstetrician
and gynecologist who is licensed to practice medicine in Virginia. Dr.
Fitzhugh performs abortions through twenty weeks of pregnancy; he
therefore does not perform any postviability abortions. Some of the
abortions he performs, particularly intact D&Es and D&Es in which
fetal disarticulation occurs outside of the woman’s body, are prohib-
ited by the Act. Dr. Fitzhugh performs some of these abortions on the
premises of plaintiff Richmond Medical Center for Women (RMCW)
where he is Medical Director.
B.
The Act was scheduled to take effect on July 1, 2003. On June 18,
2003, RMCW and Dr. Fitzhugh filed a complaint against two Com-
monwealth’s Attorneys ("the Commonwealth") in the United States
District Court for the Eastern District of Virginia, challenging the
RICHMOND MEDICAL CENTER v. HICKS 7
Act’s constitutionality and seeking declaratory and injunctive relief to
block its enforcement. The court granted the plaintiffs’ motion for a
preliminary injunction against enforcement of the Act on July 1,
2003. After the parties engaged in discovery, the plaintiffs filed a
motion for summary judgment on September 25, 2003. On February
4, 2004, the district court granted summary judgment to the plaintiffs,
declaring the Act unconstitutional and permanently enjoining its
enforcement. See Hicks, 301 F. Supp. 2d at 517-18. The court held the
Act facially invalid under the Fourteenth Amendment for several
independent reasons: (1) it lacks an exception to protect a woman’s
health, (2) it places an undue burden on a woman’s right to decide to
have an abortion, (3) its life exception is inadequate, (4) it bans — in
the absence of a compelling state interest — other safe gynecological
procedures such as those used in certain miscarriage presentations,
and (5) it is unconstitutionally vague. Id. at 513-17. In its order
awarding summary judgment, the district court struck certain evi-
dence proffered by the Commonwealth, specifically, the complete tes-
timony of one expert, selected testimony of another expert, and
several exhibits and other documents. The Commonwealth appeals.
II.
The Commonwealth argues that the district court erred when it
granted summary judgment to the plaintiffs on the ground that the Act
is unconstitutional because it lacks an exception for the preservation
of a woman’s health. Summary judgment "shall be rendered forth-
with" when the proffered evidence "show[s] that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c). We conclude
that the judgment of the district court must be affirmed because "the
[Supreme] Court . . . unequivocally held [in Stenberg v. Carhart, 530
U.S. 914 (2000)] that any ban on partial-birth abortion must include
an exception for the health of the mother in order to be constitu-
tional." Richmond Med. Ctr. for Women v. Gilmore, 219 F.3d 376,
377 (4th Cir. 2000) (Luttig, J., concurring).
In Carhart the Court concluded that Nebraska’s statutory ban on
certain abortion procedures, including the intact D&E/D&X proce-
dure, violated the federal Constitution for "at least two independent
reasons." 530 U.S. at 930. The statute (1) imposed "an undue burden
8 RICHMOND MEDICAL CENTER v. HICKS
on a woman’s ability to choose a D&E abortion, thereby unduly bur-
dening the right to choose abortion itself" and (2) lacked "any excep-
tion for the preservation of the . . . health of the mother." Id. (internal
quotation marks omitted). Thus, the lack of a health exception alone
provides a sufficient basis for invalidating restrictions on a woman’s
right to have an abortion. The Carhart opinion explained that "the
governing standard requires an exception ‘where it is necessary, in
appropriate medical judgment for the preservation of the life or health
of the mother,’ for this Court has made clear that a State may promote
but not endanger a woman’s health when it regulates the methods of
abortion." Id. at 931 (quoting Planned Parenthood v. Casey, 505 U.S.
833, 879 (1992)). Thus, a state cannot force women to use methods
of abortion that present greater risks to their health than other avail-
able methods, see id., regardless of whether the fetus has reached via-
bility, see id. at 930 ("Since the law requires a health exception in
order to validate even a postviability abortion regulation, it at a mini-
mum requires the same in respect to previability regulation.").
The State of Nebraska contended in Carhart that the intact
D&E/D&X abortion procedure could be outlawed and that no health
exception was necessary. The Supreme Court disagreed after conduct-
ing a wide-ranging review of medical authority evaluating the intact
D&E/D&X procedure. In the course of its review, the Court supple-
mented the district court record with information from a significant
array of medical sources. Extra-record sources considered by the
Court included medical textbooks and journals relating to abortion,
obstetrics, and gynecology; the factual records developed in prior
"partial birth abortion" cases; and amicus briefs (with citations to
medical authority) submitted on behalf of medical organizations. See
id. at 923-29, 932-36.
Based on all of the information available, the Court concluded that
substantial medical authority supports the proposition that the intact
D&E/D&X procedure offers significant health and safety advantages
over alternative methods of late-term abortion. First (and most impor-
tant), the intact D&E/D&X procedure permits the fetus to pass
through the cervix in one pass rather than several. Id. at 927. It there-
fore reduces operating time, blood loss, trauma, exposure to anesthe-
sia, and the risk of infection; it also reduces the risk of (1) instrument-
inflicted damage to the uterus and cervix and (2) injury from sharp
RICHMOND MEDICAL CENTER v. HICKS 9
fetal bone fragments. Id. at 932, 936. Second, the procedure prevents
the most common causes of maternal mortality (disseminated
intravascular coagulation and amniotic fluid embolus), eliminates the
possibility of serious complications arising from retained fetal tissue,
and eliminates the risk of embolism of cerebral tissue into the
woman’s blood stream. Id. at 932, 935. Third, it reduces the risk of
cervical injury in circumstances involving nonviable fetuses, such as
fetuses with hydrocephaly, because reduction of the fetal calvarium
allows a smaller diameter to pass through the woman’s cervix. Id. at
929. Fourth, the intact D&E/D&X procedure can mitigate the special
risks faced by women with prior uterine scars or for whom abortion
by induction would be especially dangerous. Id. These factors led the
Court to hold that any statute prohibiting the intact D&E/D&X proce-
dure necessarily "creates a significant health risk" because "substan-
tial medical authority" confirms the procedure’s utility in
safeguarding women’s health. Id. at 938. Any such statute "must
[therefore] contain a health exception." Id. The fact that the Nebraska
statute — like the Act here — contained an exception to protect a
woman’s life had no bearing on the Court’s holding that a freestand-
ing health exception is constitutionally required. See id. at 921-22.
The dissent argues that the differences between the Act and the
Nebraska statute are sufficient to exempt the Act from Carhart’s
holding. See post at 19-21, 32-33. This argument fails because the two
laws have key similarities. To begin with, the Nebraska law, like the
Act, applied previability as well as postviability. Carhart makes clear
that this "aggravates the constitutional problem presented" because a
state’s "interest in regulating abortion previability is considerably
weaker than postviability." 530 U.S. at 930. (Again, Dr. Fitzhugh per-
forms only previability abortions.) In addition, the Act criminalizes
some of the same medical procedures (specifically, intact
D&E/D&Xs) that Nebraska had criminalized, and these same proce-
dures were the focus of the Court’s attention in Carhart. Admittedly,
Nebraska’s law was broader in scope than the one we consider here:
the Nebraska law was read to prohibit both D&Es by disarticulation
and intact D&E/D&Xs, see id. at 938, whereas the Act purports to
except the former from its reach, see Va. Code Ann. § 18.2-71.1(B).
In any event, the Carhart Court’s analysis of the health exception
requirement dealt exclusively with its application to the intact
D&E/D&X procedure. See 530 U.S. at 930-38. Carhart thus applied
10 RICHMOND MEDICAL CENTER v. HICKS
the health exception requirement to only a subcategory of the total
conduct proscribed by the Nebraska statute. Specifically, the Court
addressed the question of whether a health exception was constitu-
tionally required in the context of Nebraska’s attempt to criminalize
the intact D&E/D&X procedure. Justice O’Connor highlighted the
Court’s focus by explaining that if a statute "limited its application to
the [intact D&E/]D&X procedure and included an exception for the
. . . health of the mother, the question presented would be quite differ-
ent." Id. at 950 (O’Connor, J., concurring) (emphasis added); see also
id. at 948 (O’Connor, J., concurring) (explaining that "[t]his lack of
a health exception necessarily renders the statute unconstitutional").
Indeed, it is not disputed in this case that the Act — like the
Nebraska statute in Carhart — prohibits the intact D&E/D&X proce-
dure. See Reply Br. of Appellants at 2 (explaining that the Act "does
not allow the D&X procedure, or what is sometimes referred to as an
‘intact D&E’"); id. at 3 (identifying "[t]he central issue in this case"
as "whether [Virginia] may prevent use of the D&X or intact D&E"
procedure). In the course of this medical procedure the fetus will
often be "substantially expelled or extracted" from the woman’s body,
and the fetus will often show some "evidence of life" at the time the
physician commits a "deliberate act" that is "intended to" and "does"
terminate the pregnancy. Va. Code Ann. § 18.2-71.1(B), (C), (D). The
dissent gets nowhere by contending that "[i]t is the killing of the fetus,
not the abortion procedure," that is outlawed by the Act. Post at 21;
see also post at 44 n.5 (arguing that "[t]he Nebraska statute found
unconstitutional in Carhart . . . differs materially from the Virginia
statute" because "the former proscribed certain abortion procedures
while the latter bans only the destruction of living fetuses"). Whatever
else the Act might criminalize, it most certainly criminalizes the intact
D&E/D&X procedure. As the Carhart Court explained (and as we
note in part I), the fetal calvarium (or skull) is collapsed during the
intact D&E/D&X procedure, 530 U.S. at 927-28, and during this pro-
cedure, which results in the demise of the fetus, the fetus may not be
"completely extracted or expelled" from the woman’s body, Va. Code
Ann. § 18.2-71.1(B). Dr. Fitzhugh performs this very procedure,
which would violate the Act, as the dissent acknowledges. See post
at 30-31.
It is also undisputed that the Act makes no provision for those situ-
ations in which the intact D&E/D&X procedure "is necessary, in
RICHMOND MEDICAL CENTER v. HICKS 11
appropriate medical judgment, for the preservation of the . . . health
of the mother." Casey, 505 U.S. at 879 (internal quotation marks
omitted). This alone is enough to affirm the district court’s judgment
invalidating the Act because, again, any statute prohibiting the intact
D&E/D&X procedure necessarily "creates a significant health risk"
and therefore "must contain a health exception." Carhart, 530 U.S. at
938.
The Commonwealth argues that summary judgment was improper
because the plaintiffs did not present substantial medical authority for
the proposition that a health exception is needed in this particular stat-
ute. The district court concluded otherwise, but that is beside the
point. For Carhart established the health exception requirement as a
per se constitutional rule. This rule is based on substantial medical
authority (from a broad array of sources) recognized by the Supreme
Court, and this body of medical authority does not have to be repro-
duced in every subsequent challenge to a "partial birth abortion" stat-
ute lacking a health exception.1 See, e.g., Planned Parenthood v.
(Text continued on page 13)
1
The plaintiffs nevertheless presented medical authority in the sum-
mary judgment record that is strikingly similar to that considered by the
Supreme Court in Carhart. For example, both Dr. Fitzhugh and Dr.
Charles deProsse (the plaintiffs’ expert) testified, based on their own
lengthy experience in obstetrics and gynecology and on other medical
sources, that the intact D&E/D&X abortion procedures prohibited by the
Act are the safest and most medically appropriate for some women. Even
Dr. Harlan Giles, a defense expert, testified that (1) the intact D&E/D&X
as described in Dr. Fitzhugh’s declaration represents a "safe and medi-
cally appropriate" procedure, and (2) physicians should be allowed the
flexibility to perform the intact D&E/D&X procedure if they think to do
otherwise "would endanger the woman’s health." J.A. 483, 522.
In addition, an amicus brief was submitted to this court on behalf of
a large group of physicians (over 3,400), including Physicians for Repro-
ductive Choice and Health (PRCH), who have expertise in the field of
reproductive health care and abortion procedures. These amici agree that
the intact D&E/D&X procedure is an accepted medical procedure that is
often the safest available. Br. of Amici Curiae PRCH et al. at 9, 12-23.
They base their medical opinions on their own clinical experience and
professional training, and they cite a variety of medical sources as further
support. See, e.g., Stephen T. Chasen et al., Dilation and Evacuation at
12 RICHMOND MEDICAL CENTER v. HICKS
≥ 20 Weeks: Comparison of Operative Techniques, 190 Am. J. Ob. &
Gyn. 1180, 1183 (2004) (finding that intact D&E/D&X and D&E by dis-
articulation are both safe procedures and recommending that physicians
be allowed to decide which procedure is best for any given patient based
on "intraoperative factors"); David A. Grimes, The Continuing Need for
Late Abortions, 280 JAMA 747, 748 (1998) (explaining that intact
D&E/D&X "may be especially useful in the presence of fetal anomalies,
such as hydrocephalus," because calvarium reduction allows "a smaller
diameter to pass through the cervix, thus reducing risk of cervical
injury," while also allowing the physician to retain greater surgical con-
trol); Maureen Paul, et al., A CLINICIAN’S GUIDE TO MEDICAL AND SURGICAL
ABORTION 133-35 (1999) (noting that physicians often must compress or
collapse the fetal calvarium to facilitate removal through the cervix).
In contrast, the Commonwealth proffered in the summary judgment
proceedings the testimony of two expert (physician) witnesses who
offered the opinion that no maternal health exception is necessary here.
In addition, the Commonwealth proffered supporting materials from the
Congressional Record that included the committee testimony of an
OB/GYN professor. The district court excluded all of one expert’s testi-
mony and selected portions of the other’s, concluding that it was unreli-
able and inadmissible under Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). See Hicks, 301 F. Supp. 2d at 511-12. The materials from
the Congressional Record were excluded as inadmissible hearsay. See id.
at 512. Even if we assumed without deciding that the district court
abused its discretion in excluding the Commonwealth’s opinion evi-
dence, the consideration of that evidence would not change our result.
The Commonwealth’s evidence would at most indicate some division of
medical opinion on the question of whether "banning [the intact
D&E/D&X] procedure could endanger women’s health." Carhart, 530
U.S. at 938. As the Court emphasized in Carhart, "unanimity of medical
opinion" is not required because a
division of medical opinion . . . at most means uncertainty, a fac-
tor that signals the presence of risk, not its absence. . . . Where
a significant body of medical opinion believes a procedure may
bring with it greater safety for some patients and explains the
medical reasons supporting that view, we cannot say that the
presence of a different view by itself proves the contrary. Rather,
the uncertainty means a significant likelihood that those who
RICHMOND MEDICAL CENTER v. HICKS 13
Heed, 390 F.3d 53, 59 (1st Cir. 2004) (explaining that even a parental
notification statute "must contain a health exception in order to sur-
vive constitutional challenge"), cert. granted sub nom. Ayotte v.
Planned Parenthood, ___ S.Ct. ___, 2005 WL 483164 (May 23,
2005); Planned Parenthood v. Wasden, 376 F.3d 908, 922 (9th Cir.
2004) (characterizing health exception as "a per se constitutional
requirement"), cert. denied, 125 S.Ct. 1694 (Mar. 28, 2005); Women’s
Med. Prof’l Corp. v. Taft, 353 F.3d 436, 444-45 (6th Cir. 2003)
(explaining that Casey and Carhart require a health exception); A
Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684,
688 (7th Cir. 2002) (noting that Carhart Court was "of the view . . .
that [the] constitutionality [of laws regulating abortion] must be
assessed at the level of legislative fact, rather than adjudicative fact
determined by more than 650 district judges. Only treating the matter
as one of legislative fact produces the nationally uniform approach
that [Carhart] demands."); Planned Parenthood v. Owens, 287 F.3d
910, 918 (10th Cir. 2002) (explaining that Carhart requires "state
abortion regulations [to] provide an exception for the protection of the
health of pregnant women"); Reproductive Health Servs. of Planned
Parenthood v. Nixon, 325 F. Supp. 2d 991, 994-95 (W.D. Mo. 2004)
(invalidating "partial birth abortion" statute "[b]ecause there are no
genuine issues of material fact as to the presence of a health excep-
tion, [which requires the] Court, pursuant to Stenberg v. Carhart, [to]
conclude that the [statute] is unconstitutional"); Planned Parenthood
Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 1013 (N.D. Cal. 2004)
(noting that Carhart dispels characterization of the health exception
inquiry "as one of pure fact, limited to the record in [the] particular
case"); WomanCare, P.C. v. Granholm, 143 F. Supp. 2d 849, 855
(E.D. Mich. 2001) (invalidating "partial birth abortion" statute
because "there are no genuine issues of material fact, with respect to
the lack of a health exception in the statute" and because the Supreme
Court’s decision in Carhart is "controlling"); Summit Med. Assocs. v.
believe that [intact D&E/]D&X is a safer abortion method in cer-
tain circumstances may turn out to be right. If so, then the
absence of a health exception will place women at an unneces-
sary risk of tragic health consequences. If they are wrong, the
exception will simply turn out to have been unnecessary.
Id. at 937.
14 RICHMOND MEDICAL CENTER v. HICKS
Siegelman, 130 F. Supp. 2d 1307, 1309, 1314 (M.D. Ala. 2001)
(invalidating "partial birth abortion" statute "on the pleadings" and
concluding that it was unconstitutional under Carhart "[f]or its lack
of a health-exception alone"); Daniel v. Underwood, 102 F. Supp. 2d
680, 681, 684 (S.D. W.Va. 2000) (concluding that the state’s "ban on
‘partial-birth abortion’ fails to provide an exception for the preserva-
tion of the health of the woman and therefore violates the United
States Constitution" and explaining that Carhart "compels th[is] con-
clusion").
In sum, Carhart has already established, based on substantial medi-
cal authority, that a statute prohibiting the intact D&E/D&X abortion
procedure necessarily "creates a significant health risk" and "must
[therefore] contain a health exception." 530 U.S. at 938. Because the
Act lacks a health exception, it is unconstitutional on its face.
III.
The Commonwealth also argues that the district court erred in fail-
ing to apply the proper standard for reviewing facial challenges alleg-
ing overbreadth. According to the Commonwealth, the court should
have applied the standard set forth in United States v. Salerno, 481
U.S. 739 (1987). There, the Supreme Court said that "[a] facial chal-
lenge to a legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." Id. at 745.
The plaintiffs counter that the proper approach is that used by the
Supreme Court in Carhart, where the Court — without applying
Salerno’s "no set of circumstances" test — held that the Nebraska
statute banning certain abortion procedures was unconstitutional on
its face because it lacked a health exception. See Carhart, 530 U.S.
at 930-38. We conclude, for the following reasons, that Salerno does
not govern a facial challenge to a statute regulating abortion.
First, in Carhart the Supreme Court "without so much as a mention
of Salerno . . . held invalid, in a pre-enforcement challenge, an abor-
tion statute that might . . . have [had] at least some [constitutional]
applications." Newman, 305 F.3d at 687. Earlier, the Court in Casey
had similarly disregarded Salerno. As a result, seven circuits have
concluded that Salerno does not govern facial challenges to abortion
RICHMOND MEDICAL CENTER v. HICKS 15
regulations. See Heed, 390 F.3d at 58-59; Newman, 305 F.3d at 687;
Planned Parenthood v. Farmer, 220 F.3d 127, 142 (3d Cir. 2000);
Planned Parenthood v. Lawall, 180 F.3d 1022, 1027 (9th Cir. 1999),
amended by 193 F.3d 1042 (1999); Women’s Med. Prof’l Corp. v.
Voinovich, 130 F.3d 187, 193 (6th Cir. 1997); Jane L. v. Bangerter,
102 F.3d 1112, 1116 (10th Cir. 1996); Planned Parenthood v. Miller,
63 F.3d 1452, 1458 (8th Cir. 1995). Only the Fifth Circuit has sug-
gested otherwise, but even that circuit’s cases are inconsistent. Com-
pare Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992)
(applying Casey’s undue burden test without reference to Salerno),
with Barnes v. Moore, 970 F.2d 12, 14 & n.2 (5th Cir. 1992) (per
curiam) (applying Salerno to a facial attack on an abortion regula-
tion).
Second, contrary to the Commonwealth’s suggestion, the question
of Salerno’s applicability in the abortion context has not been
squarely confronted by this court. The Commonwealth claims that in
Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997), we "ruled that
Salerno survived Casey." Br. of Appellants at 15. The parties in Man-
ning, however, had not asked us "to decide that the District Court
improperly applied the Salerno standard for review of facial chal-
lenges," and we therefore concluded that the issue was not properly
before us. Manning, 119 F.3d at 268 n.4. Moreover, in Planned Par-
enthood v. Camblos, 155 F.3d 352, 359 n.1 (4th Cir. 1998) (en banc),
our full court specifically declined to decide whether to apply Salerno
to statutes regulating abortion. There, we characterized "Manning[’s
suggestion] that the Salerno standard remains the governing standard
until the Supreme Court explicitly holds otherwise" as "dicta." Id. at
381 n.14. Later, in Greenville Women’s Clinic v. Bryant, 222 F.3d
157 (4th Cir. 2000) (Greenville I), we again declined to resolve the
question, holding that various aspects of a South Carolina regulation
establishing standards for licensing abortion clinics were constitu-
tional under either the Casey or Salerno standard for reviewing a
facial challenge. See id. at 165 (concluding that the regulation at issue
survived "[e]ven when we apply [the standard from Casey,] a less
deferential standard than that articulated in Salerno"). In Greenville
Women’s Clinic v. Commissioner, 317 F.3d 357 (4th Cir. 2002)
(Greenville II), we addressed further aspects of the facial challenge to
the South Carolina abortion clinic licensing standards. We used the
Salerno test there, but only in the context of reviewing a claim that
16 RICHMOND MEDICAL CENTER v. HICKS
the regulatory scheme allowed for the standardless delegation of med-
ical licensing authority to third parties in violation of Yick Wo v. Hop-
kins, 118 U.S. 356 (1886). See Greenville II, 317 F.3d at 361-63; id.at 372 & n.4 (King, J., dissenting).
Third, the recent case of Sabri v. United States, 124 S.Ct. 1941,
1948-49 (2004), puts the issue to rest by recognizing the appropriate-
ness of facial challenges alleging overbreadth in the regulation of
abortion. In Sabri the Supreme Court recognized that facial attacks
are appropriate in only "limited settings" that include challenges to
laws restricting abortion. Id. at 1949. In rejecting a criminal defen-
dant’s facial challenge to a federal bribery statute, the Court noted
that facial challenges are to be discouraged because "they invite judg-
ments on fact-poor records" and "call for relaxing familiar require-
ments of standing." Id. at 1948. Nevertheless, the Court stated that it
had "recognized the validity of facial attacks alleging overbreadth . . .
in relatively few settings," and these include challenges to abortion
regulations. Id. (citing Carhart). Thus, Sabri makes clear that Saler-
no’s "no set of circumstances" standard does not apply in the context
of a facial challenge, like the one here, to a statute regulating a
woman’s access to abortion.
IV.
As Justice O’Connor has said, "[t]he issue of abortion is one of the
most contentious and controversial in contemporary American soci-
ety. It presents extraordinarily difficult questions that . . . involve ‘vir-
tually irreconcilable points of view.’" Carhart, 530 U.S. at 947(O’Connor, J., concurring) (quoting opinion of the Court, id. at 921).
These questions are difficult and sensitive to be sure, but that does not
give the dissent free license to accuse us of "tarring [liberty] with the
color of political ideology," post at 43, "assert[ing] vacuously that we
are doing what the Supreme Court commands," post at 44, deciding
this case based on "personal convenience," post at 45, disregarding
"the mind’s sense of right," post at 44, and "disconnecting our law
from accepted moral norms," post at 43. No matter what the dissent
says, the simple truth is that we affirm the district court’s order strik-
ing down the Act for a single reason: the "lack of a health exception
necessarily renders the [Act] unconstitutional." Carhart, 530 U.S. at
948 (O’Connor, J., concurring).
RICHMOND MEDICAL CENTER v. HICKS 17
A woman’s interest in protecting her health is at the core of her
"constitutional liberty . . . to have some freedom to terminate her
pregnancy." Casey, 505 U.S. at 869. This enduring principle — which
the dissent either ignores or minimizes — was recognized in Roe v.
Wade, the case in which the Supreme Court struck down a Texas
abortion statute "that except[ed] from criminality only a life-saving
procedure on behalf of the mother." 410 U.S. 113, 164 (1973). The
Roe opinion also recognized that a state has an "interest in the potenti-
ality of human life." Id. But even when this interest is at its highest
point (subsequent to viability), a state may regulate or proscribe abor-
tion only if it provides an exception for instances "where it is neces-
sary, in appropriate medical judgment, for the preservation of the . . .
health of the mother." Id. at 165. This constitutional principle was
expressly reaffirmed by the Court in Casey, 505 U.S. at 846, 879, and
reinforced in Carhart, 530 U.S. at 921.
We acknowledge, as did the Supreme Court in Casey, that "[m]en
and women of good conscience can disagree, and we suppose some
always shall disagree, about the profound moral and spiritual implica-
tions of terminating a pregnancy." 505 U.S. at 850. But even if "abor-
tion [is] offensive to our most basic principles of morality . . . that
cannot control our decision," for our obligation is to apply the
Supreme Court’s definition of personal liberty, "not to mandate our
own moral code." Id. Thus, we are bound today to apply Carhart’s
constitutional rule that any ban on "partial birth abortion" must
include an exception to protect a woman’s health. We have been fore-
warned by the Court that "[s]ome cost will be paid by anyone who
approves or implements a constitutional decision where it is unpopu-
lar, or who refuses to work to undermine the decision or to force its
reversal. The price may be criticism or ostracism, or it may be vio-
lence." Id. at 867. The Court further warned that "[a]n extra price will
be paid by those who themselves disapprove of the decision’s results
when viewed outside of constitutional terms, but who nevertheless
struggle to accept it, because they respect the rule of law." Id. at 867-
68. These words have special resonance in today’s climate, and they
serve to remind us of the critical importance of our obligation to fol-
low faithfully the decisions of the Supreme Court.
18 RICHMOND MEDICAL CENTER v. HICKS
V.
Because the Virginia Act does not contain an exception for circum-
stances when the banned abortion procedures are necessary to pre-
serve a woman’s health, we affirm the summary judgment order
declaring the Act unconstitutional on its face. We likewise affirm the
permanent injunction against enforcement of the Act.2
AFFIRMED
NIEMEYER, Circuit Judge, dissenting:
The Commonwealth of Virginia enacted a law in 2003, making it
a criminal offense to kill a "human infant who has been born alive,
but who has not been completely extracted or expelled from its
mother." Va. Code Ann. § 18.2-71.1(B). The statute applies to protect
only a live fetus that has been delivered halfway into the world — i.e.,
either "the infant’s entire head is outside the body of the mother" or,
for a breech delivery, "any part of the infant’s trunk past the navel is
outside the body of the mother." Id. § 18.2-71.1(D). In enacting this
narrow provision, Virginia focused on preserving the life of infants
and distinguishing its law from the Nebraska statute struck down as
unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000), that
prohibited an array of abortion methods.
Without recognizing the differences between the Nebraska statute
and the Virginia statute and without taking into account the facts
before this court, the panel majority reads Carhart to create a per se
constitutional rule that requires any ban on partial-birth abortion to
contain language protecting the health of the mother, regardless of the
scope of the law, the nature of the relevant facts, and the actual need
for a health exception. By so extending Carhart and applying a per
se rule, the majority mechanically strikes down the Virginia statute as
unconstitutional, without further analysis.
2
Because the Act is invalid for its lack of a health exception, we
decline to address the district court’s alternative grounds for striking it
down. For this same reason, it is unnecessary for us to consider the Com-
monwealth’s other arguments.
RICHMOND MEDICAL CENTER v. HICKS 19
In addition, to strike down Virginia’s statute on a facial challenge,
the majority found it necessary to disregard our established standard
for reviewing facial challenges of abortion laws in favor of a more
liberal standard of review.
The majority’s opinion is a bold, new law that, in essence, constitu-
tionalizes infanticide of a most gruesome nature. The plaintiff Dr.
William Fitzhugh, an abortionist, sought, through this lawsuit, to pro-
tect his ability to perform abortions by crushing infants’ skulls or dis-
membering their limbs when they are inches away from being fully
delivered alive without injury to the infant or to the mother. In his
words, "My job on any given patient is to terminate that pregnancy,
which means that I don’t want a live birth." By expanding abortion
rights to this extent, the majority unnecessarily distances our jurispru-
dence from that of the Supreme Court and from general norms of
morality. I profoundly dissent from today’s decision.
I
By casting Carhart’s holding in the most general terms — that a
State may not prohibit partial birth abortions without providing an
exception for the health of the mother — the majority rejects Virgin-
ia’s contention that the plaintiffs in this case did not present "substan-
tial medical authority for the proposition that a health exception is
needed in this particular statute." The majority reasons that "Carhart
established the health exception requirement as a per se constitutional
rule," ante at 11, and accordingly holds that "[b]ecause the Act lacks
a health exception, it is unconstitutional on its face," ante at 14. This
gross application of Carhart fails to take into account the nature of
the Nebraska statute under consideration in Carhart, the factual find-
ings on which the Supreme Court based its opinion, and the reach of
the Supreme Court’s actual holding.
Deferring momentarily the discussion of whether Carhart created
a per se constitutional rule that statutes like the Nebraska statute must
have a health exception, the Virginia statute is sufficiently different
from the Nebraska statute that any would-be per se rule does not
apply to it. The statute in Carhart provided that "[n]o partial birth
abortion shall be performed in this state," except to save the life of
the mother. Carhart, 530 U.S. at 921 (quoting Neb. Rev. Stat. § 28-
20 RICHMOND MEDICAL CENTER v. HICKS
328(1)) (internal quotation marks omitted). The Supreme Court read
the Nebraska statute to prohibit an array of abortion methods that
included both "dilation and evacuation" ("D&E") and "dilation and
extraction" ("D&X"). See id. at 938. D&E generally refers to destruc-
tion of the fetus in the uterus and removal of the destroyed and even
dismembered fetus, while D&X generally refers to delivery of the
fetus into the vagina in whole or in part and then destroying it, gener-
ally by sucking out the contents of the fetus’ skull or by crushing the
skull. Important to the case before us, the Supreme Court summarized
the scope of the Nebraska law by stating that it "of course, does not
directly further an interest ‘in the potentiality of human life’ by saving
the fetus in question from destruction, as it regulates only a method
of performing abortion." Id. at 930 (Supreme Court’s emphasis).
Unlike the Nebraska statute, the Virginia statute protects the fetus
itself, by prohibiting its destruction when it has been delivered alive
into the world or at least halfway into the world. Also in contrast to
the Nebraska statute, which only prohibited abortion procedures, the
Virginia statute excepts from its coverage various abortion methods
prohibited by the Nebraska statute1 and limits itself to protecting the
fetus by prohibiting the killing of a "human infant who has been born
alive, but who has not been completely extracted or expelled from its
mother . . . regardless of whether death occurs before or after extrac-
tion or expulsion from its mother has been completed." Va. Code
Ann. § 18.2-71.1(B). Yet, it is only by assuming that the Virginia stat-
ute is the same as the Nebraska statute that the majority is able to
strike down the Virginia statute using its per se analysis.
The majority repeatedly characterizes the Virginia statute as ban-
1
The relevant portion of the Virginia statute excludes from the statu-
tory coverage
(i) the suction curettage abortion procedure, (ii) the suction aspi-
ration abortion procedure, (iii) the dilation and evacuation abor-
tion procedure involving dismemberment of the fetus prior to
removal from the body of the mother, [and] (iv) completing
delivery of a living human infant and severing the umbilical cord
of any infant who has been completely delivered.
Va. Code Ann. § 18.2-71.1(B).
RICHMOND MEDICAL CENTER v. HICKS 21
ning abortion procedures, including the "intact D&E/D&X proce-
dure," ante at 9-10, see also ante at 5, 6, 10-11, and, relying on that
characterization, analogizes the Virginia statute to the unconstitu-
tional Nebraska statute, which the Supreme Court interpreted to pro-
hibit abortion procedures. By employing the analogy, the majority is
thus able to argue that in prohibiting what might sometimes be the
safest partial birth abortion procedure — the "intact D&E/D&X pro-
cedure" — Virginia infringes a woman’s right to obtain a safe abor-
tion. Ante at 9-11.
The majority overlooks, however, that if the fetus is not deliber-
ately destroyed during an "intact D&E/D&X procedure," and it need
not be to complete the procedure, Virginia’s statute, unlike Nebras-
ka’s statute, does not prohibit the procedure. It is the killing of the
fetus, not the abortion procedure, that is the concern of Virginia’s
statute. And while prohibiting a safe procedure increases a woman’s
health risks, no one has contended that banning the destruction of a
fetus after an intact delivery implicates the mother’s health at all.
Rather than address this distinction directly, the majority asserts that
the Virginia statute bans the intact D&E/D&X procedure because "the
fetal calvarium (or skull) is collapsed during [that] procedure." Ante
at 10. Such a simplistic view of the statute and abortion procedures
fails to account for the Commonwealth’s evidence that crushing the
fetal skull is necessary neither to terminate a pregnancy after an intact
delivery nor to obtain the purported safety advantages of the intact
D&E/D&X procedure.
In addition to relying on the incorrect assumption that the Virginia
statute is identical to the statute at issue in Carhart, the majority’s
analysis also depends on the unsupportable premise that Carhart cre-
ated a per se constitutional rule. Correctly noting that Carhart holds
that a "state cannot force women to use methods of abortion that pre-
sent greater risks to their health than other available methods," ante
at 8, the majority goes on to affirm the district court’s opinion without
assessing whether the Virginia statute would in fact force women to
use riskier methods of abortion. In response to Virginia’s defense that
the plaintiffs in this case did not present "substantial medical author-
ity for the proposition that a health exception is needed in this particu-
lar statute," ante at 11, the majority states that such a consideration
22 RICHMOND MEDICAL CENTER v. HICKS
is irrelevant because "Carhart establishes the health exception
requirement as a per se constitutional rule," ante at 11.
Nothing in Carhart, however, indicates that the Court was creating
a per se constitutional rule or that every abortion statute, regardless
of whether it targets methods of abortion or the life of the fetus or
some other state interest, must contain a clause that provides for the
protection of the mother’s health. To read Carhart so superficially
loses focus of the protection being implemented there. As the Carhart
Court said, "We shall not revisit those legal principles [providing
basic protection to the mother’s right to choose]. Rather, we apply
them to the circumstances of this case." 530 U.S. at 921 (emphasis
added). And, of course, the Court thus rendered its holding on the
underlying principle being implemented: that a State cannot "interfere
with a woman’s choice to undergo an abortion procedure if continuing
her pregnancy would constitute a threat to her health." Planned Par-
enthood v. Casey, 505 U.S. 833, 880 (1992) (emphasis added) (citing
Roe v. Wade, 410 U.S. 113, 164 (1973)).
Moreover, in Carhart there was a full trial in which the district
court made findings of fact and then considered how the Nebraska
statute and the Constitution applied to those facts. In explicitly declin-
ing to conduct a facial review of the statute, the district court found
itself unprepared to conclude that the law was unconstitutional "re-
gardless of how it might be applied to a particular plaintiff," because
such an inquiry would entail too many "unknown" factual circum-
stances. Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1119-20 (D. Neb.
1998). The Supreme Court drew upon the district court’s findings, as
well as "related medical texts," and applied established preexisting
abortion jurisprudence to that record. See Carhart, 530 U.S. at 923-
29. Indeed in responding to Nebraska’s argument, like Virginia’s
here, that "safe alternatives remain available" and that a "ban . . .
would create no risk to the health of women," the Supreme Court
responded, not as the majority suggests here by applying a per se rule,
but by noting,
The problem for Nebraska is that the parties strongly con-
tested this factual question in the trial court below; and the
findings and evidence support Dr. Carhart.
RICHMOND MEDICAL CENTER v. HICKS 23
Id. at 931-32. That the Supreme Court did not create a per se rule is
further fortified by its statement of its holding, which inherently pre-
cludes such a conclusion:
The upshot is a District Court finding that D&X signifi-
cantly obviates health risks in certain circumstances, a
highly plausible record-based explanation of why that
might be so, a division of opinion among some medical
experts over whether D&X is generally safer, and an
absence of controlled medical studies that would help
answer these medical questions. Given these medically
related evidentiary circumstances, we believe the law
requires a health exception.
Id. at 936-37 (emphasis added).
Quite apart from considering the actual nature of the Supreme
Court’s holding in Carhart, the majority elects to rely on five circuit
court cases that it contends support its conclusion that Carhart created
a per se rule. See ante at 11-14. Even without conducting a full analy-
sis of those nonbinding decisions for their faithfulness to Carhart, it
becomes readily apparent that the support each provides is nil or little.
Only one of the five circuit court cases cited by the majority stands
for the proposition that Carhart established a per se constitutional
rule that obviated the need to examine medical authority in abortion
cases. See Planned Parenthood v. Heed, 390 F.3d 53, 59 (1st Cir.
2004) (invalidating a parental notification law due to its lack of a
health exception), cert. granted sub nom. Ayotte v. Planned Parent-
hood, ___ S.Ct. ___, 2005 WL 483164 (May 23, 2005). Yet, the hold-
ing of that case — that all statutes "regulating abortion must contain
a health exception in order to survive constitutional challenge," id. —
can hardly be considered a faithful interpretation of Carhart, which
even under the majority’s expansive reading, created a per se rule
only for partial birth abortion laws.
The majority avoids providing any context for the remainder of its
citations presumably because closer inspection reveals that — far
from treating Carhart as establishing a per se constitutional rule —
the only circuit court cases to have directly addressed the question
24 RICHMOND MEDICAL CENTER v. HICKS
have found a health exception to be necessary only after considering
evidence introduced by the parties. In A Woman’s Choice — Eastside
Women’s Clinic v. Newman, 305 F.3d 684, 688 (7th Cir. 2002), the
Seventh Circuit did indeed observe that the Supreme Court had previ-
ously treated the necessity of a health exception as a question of legis-
lative fact, but then went on to explain why it was not following that
approach:
Because the Supreme Court has not made this point explicit,
however, and because the undue-burden approach does not
prescribe a choice between the legislative-fact and the
adjudicative-fact approaches, we think it appropriate to
review the evidence in this record and the inferences that
properly may be drawn at the pre-enforcement stage.
Id. at 688-89.
The majority’s truncation of the sentence it lifts from the Tenth
Circuit’s opinion in Planned Parenthood v. Owens, 287 F.3d 910(10th Cir. 2002), similarly creates the misimpression that that circuit
treats Carhart as a per se constitutional rule. Read in full, the sen-
tence quoted by the majority states: "Thus, the current state of the law
is that state abortion regulations must provide an exception for the
protection of the health of pregnant women where those regulations
might otherwise infringe on their ability to protect their health
through an abortion." Id. at 918 (emphasis added to the portion omit-
ted from the majority’s opinion). The second half of the sentence clar-
ifies the court’s understanding that Carhart does not require a health
exception in all abortion regulations, but only in those that might
endanger a woman’s health. And, that clarification explains why the
Tenth Circuit deemed it necessary to examine the evidence contained
in the record before finding that "there [was] no genuine issue as to
the material fact that the [statute] infringe[d] on the ability of preg-
nant women to protect their health." Id. at 920.
The remaining two circuit court cases cited by the majority —
Planned Parenthood v. Wasden, 376 F.3d 908 (9th Cir. 2004), and
Women’s Medical Professional Corp. v. Taft, 353 F.3d 436 (6th Cir.
2003) — similarly do not stand for the proposition for which the
majority cites them. Wasden addressed the question of whether a reg-
RICHMOND MEDICAL CENTER v. HICKS 25
ulation "must contain adequate provision for a woman to terminate
her pregnancy if it poses a threat to her life or health," 376 F.3d at
922, not the distinct question, raised by partial-birth abortion bans, of
whether a statute that regulates some aspect of abortion procedure but
does not prevent a woman from terminating her pregnancy must con-
tain a health exception. And, while Taft did address a partial-birth
abortion ban, the particular statute at issue there already contained a
health exception, and neither party argued that a health exception was
unnecessary. 353 F.3d at 444-45. The only question, which the court
answered in the affirmative, was whether the statute’s health excep-
tion was constitutionally adequate. Id. at 450.
Perhaps recognizing the scant support for its per se rule among our
sister circuits, the majority resorts to citing a handful of apparently
randomly selected district court opinions. See ante at 11-14. A more
thorough survey of the case law reveals a roughly even split between
district courts that interpret Carhart to have established a per se rule
and those that interpret Carhart to require a health exception only if
the record demonstrates that the regulation at issue might endanger a
woman’s health. Compare Reproductive Health Servs. of Planned
Parenthood v. Nixon, 325 F. Supp. 2d 991, 994 (W.D. Mo. 2004)
(striking down a state partial birth abortion ban for lack of a health
exception without examining evidence in the record); WomanCare,
P.C. v. Granholm, 143 F. Supp. 2d 849, 854-55 (E.D. Mich. 2001)
(same); Summit Med. Assocs. v. Siegelman, 130 F. Supp. 2d 1307,
1314 (M.D. Ala. 2001) (relying on Carhart’s factual findings to strike
down a state partial birth abortion ban), with Carhart v. Ashcroft, 331
F. Supp. 2d 805 (D. Neb. 2004) (striking down the Federal Partial-
Birth Abortion Ban Act of 2003 in a 269-page opinion, in which the
court weighed the evidence presented during the course of a two-
week trial); Nat’l Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436,
442, 482 (S.D.N.Y. 2004) (finding the Federal Partial-Birth Abortion
Ban unconstitutional for lack of a health exception because the evi-
dence adduced during a sixteen-day bench trial demonstrated that "a
significant body of medical opinion" supported the proposition that
the ban would endanger a woman’s health); Planned Parenthood
Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 1012-13, 1033 (N.D.
Cal. 2004) (holding that "Stenberg’s health exception requirement
does not appear to arise to the level of a constitutional ‘rule’ like
Miranda requirements" and finding it necessary to examine the record
26 RICHMOND MEDICAL CENTER v. HICKS
before determining whether "significant medical authority supports
the proposition that in some cases, [intact D&E] is the safest proce-
dure" (internal quotation marks and citation omitted)); Daniel v.
Underwood, 102 F. Supp. 2d 680, 684-85 (S.D. W. Va. 2000) (exam-
ining evidence submitted by the parties before concluding that West
Virginia’s partial birth abortion ban "create[d] a significant health
risk" and therefore had to provide a health exception). In short, the
majority’s ten-case-long string cite cannot disguise the fact that the
weight of authority does not support its interpretation of Carhart.
II
In addition to its mechanical application of a per se rule, which the
majority unjustifiably creates, the majority also ignores this circuit’s
existing standard for facial challenges of abortion statutes. See Green-
ville Women’s Clinic v. Commissioner ("Greenville Women’s Clinic
II"), 317 F.3d 357, 362 (4th Cir. 2002); Greenville Women’s Clinic
v. Bryant ("Greenville Women’s Clinic I"), 222 F.3d 157, 165 (4th
Cir. 2000); Manning v. Hunt, 119 F.3d 254, 268-69 (4th Cir. 1997).
It finds that our "standard does not apply in the context of a facial
challenge . . . to a statute regulating a woman’s access to abortion."
Ante at 16. In attempting to limit or distinguish our rule and apply one
that is more liberal for its purposes, the majority unapologetically vio-
lates the well-established rule that one panel of this court may not
overrule another. See United States v. Prince-Oyibo, 320 F.3d 494,
498 (4th Cir. 2003); Scotts Co. v. United Indus. Corp., 315 F.3d 264,
271 n.2 (4th Cir. 2002).
The standard articulated by the Supreme Court in United States v.
Salerno, 481 U.S. 739 (1987), for facial challenges of statutes pro-
vides: "A facial challenge to a legislative act is, of course, the most
difficult challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the Act
would be valid." Id. at 745; see also Rust v. Sullivan, 500 U.S. 173,
183 (1991) (explaining that a facial challenge will fail if an act "can
be construed in such a manner that [it] can be applied to a set of indi-
viduals without infringing upon constitutionally protected rights").
This standard stems from the fact that we are courts exercising judi-
cial power over actual cases, and not super-legislatures reviewing leg-
islative acts in the abstract. And this circuit has applied the Salerno
RICHMOND MEDICAL CENTER v. HICKS 27
standard to facial reviews of abortion statutes in three cases that have
not been overturned by either the Supreme Court or this court sitting
en banc. See Greenville Women’s Clinic II, 317 F.3d at 362; Green-
ville Women’s Clinic I, 222 F.3d at 165; Manning, 119 F.3d at 268-
69. To avoid applying this standard and thereby being required to
uphold the constitutionality of Virginia’s infanticide statute, the
majority unjustifiably turns aside the binding precedents of this court.
First, it explains that in Manning, we did not decide the issue,
because "the issue was not properly before us." Ante at 15. In Man-
ning, we reviewed the district court’s denial of the plaintiff’s claim
that facially challenged North Carolina’s Act to Require Parental or
Judicial Consent for an Unemancipated Minor’s Abortion. In con-
ducting our review, we said, "Because this is a facial challenge,
appellants carry a heavy burden," and we then set forth and cited the
Salerno standard. Manning, 119 F.3d at 268. We noted that the dis-
trict court had applied the Salerno standard and that the challengers
to the statute did not take exception to that standard on appeal.
Accordingly, we applied the Salerno standard in our holding:
Thus, in order to succeed, Appellants are required to show
that under no set of circumstances can the Act be applied in
a manner which is not an undue burden on an unemanci-
pated pregnant minor’s right to obtain an abortion.
Id. at 268-69. Salerno therefore was the standard that we explicitly
applied in Manning, and the finding of that standard was necessary
to our ruling rejecting the plaintiff’s facial challenge of the statute.
How the majority can conclude that this was not a decision of our
court is baffling. The majority apparently has found comfort in quot-
ing a portion of one sentence in footnote 4 of that opinion that indi-
cated that the applicability of Salerno to facial challenges of abortion
regulations was "not [then] properly before the court." But it could
not have relied on even that explanatory statement without reading
further into the footnote. After noting that the standard of review was
not challenged by the statute’s challengers and therefore was not
placed before us, we nonetheless recognized that we had to apply a
standard of review. And we said further on in footnote 4:
At the moment, the most that can be said is that three Jus-
tices have indicated a desire to [overrule application of
28 RICHMOND MEDICAL CENTER v. HICKS
Salerno]. Until the Supreme Court specifically does so,
though, this Court is bound to apply the Salerno standard
as it has been repeatedly applied in the context of other
abortion regulations reviewed by the Supreme Court.
Id. at 268 n.4 (emphasis added).
Were the holding in Manning not clear, however, — and the major-
ity apparently concludes that it was not because we decided the case
on a standard that was not challenged by the parties — our decision
in Greenville Women’s Clinic I, put the question to rest. There, dis-
cussing the holding of Manning at some length, we stated:
While we believe that the observation in Manning was part
of the court’s holding because application of Salerno was
necessary to the ruling in that case and not dictum, we add
the observation that the logic of the Salerno test is necessary
to show deference to legislatures, particularly in light of the
limitation imposed by Article III of the Constitution that the
judiciary act only in cases and controversies. See U.S.
Const. art. III, § 2. As we explain below, when the abortion
clinics are confronted with Salerno’s requirement that no set
of circumstances exists under which Regulation 61-12
would be valid, they fail, if for no other reason, because the
impact on the Greenville Women’s Clinic is so modest.
222 F.3d at 165 (emphasis added). We not only held that Manning did
decide the proper standard to apply, but we again applied that stan-
dard in Greenville Women’s Clinic I. The majority insists that we ren-
dered an alternative ruling under the more liberal standard. But a
closer reading of Greenville Women’s Clinic I reveals that we ren-
dered our principal (and therefore binding) holding under the Salerno
standard. Our hypothetical application of the more liberal standard
served only to underscore the inherent weakness of the plaintiffs’
claims. See id.Finally, seeking to distinguish Greenville Women’s Clinic II, the
majority states that "[w]e used the Salerno test there, but only in the
context of reviewing a claim that the regulatory scheme allowed for
the standardless delegation of medical licensing authority to third par-
RICHMOND MEDICAL CENTER v. HICKS 29
ties in violation of Yick Wo v. Hopkins, 118 U.S. 356 (1886)." Ante
at 15. The review in that case, though, was a continuation of the
review begun in Greenville Women’s Clinic I, and we so stated:
This appeal continues our review of the facial constitutional
challenges made by abortion clinics in South Carolina to
Regulation 61-12 of the South Carolina Department of
Health and Environmental Control, establishing standards
for licensing abortion clinics.
317 F.3d at 359. We then held directly and explicitly, clarifying that
which was our principal holding in Greenville Women’s Clinic I, that
the Salerno standard applies to the facial challenge of an abortion reg-
ulation:
We begin by emphasizing, as we did in [Greenville
Women’s Clinic I], that the challenge to Regulation 61-12
[South Carolina’s abortion regulation] is a facial one and
therefore "the most difficult challenge to mount success-
fully, since the challenger must establish that no set of cir-
cumstances exists under which the Act would be valid."
United States v. Salerno, 481 U.S. 739, 745 (1987). To show
the necessary respect to legislative departments, particularly
in light of Article III’s limitation of judicial power to cases
and controversies, we require evidence — as opposed to
speculation — sufficient to rebut the regulation’s presump-
tive constitutionality. Yet, in this record, we find only spec-
ulation.
Id. at 362.
Had the majority conducted its review under the only standard
legally established in our circuit for facial review of abortion statutes,
it would have found itself compelled, in view of the record in this
case, to conclude that Virginia’s infanticide statute is constitutional.
To achieve its contrary ruling, the majority trampled not only the pre-
cedents establishing the applicability of the Salerno standard but also
the precedents establishing that one panel of our court may not over-
rule another. See Prince-Oyibo, 320 F.3d at 498; Scotts Co., 315 F.3d
at 271 n.2.
30 RICHMOND MEDICAL CENTER v. HICKS
III
The underlying principles guaranteeing a woman’s conditional
right to choose an abortion were not altered by the holding in Car-
hart, as the Carhart Court expressly noted. See 530 U.S. at 921. And
it is useful to keep at hand the nature of the right applied in Carhart
when considering the Virginia statute in this case.
Before viability of a fetus, a "woman has a right to choose to termi-
nate her pregnancy," and if a statute unduly burdens that decision, it
is unconstitutional. Id. (citation and internal quotation marks omitted).
After viability, the State, in protecting its legitimate interest in poten-
tial life, may "regulate, and even proscribe, abortion except where it
is necessary, in appropriate medical judgment, for the preservation of
the life or health of the mother." Id. (citation and internal quotation
marks omitted).
In Carhart, the Nebraska statute was found to prohibit a range of
abortion procedures employed by doctors at various stages of fetal
growth and for various conditions confronted by the doctor at the time
the abortion is conducted. Taking into account the factual record and
related medical texts, the Supreme Court concluded, "where substan-
tial medical authority supports the proposition that banning a particu-
lar abortion procedure could endanger women’s health" and there is
a "highly plausible record-based explanation for why that might be
so," the Constitution "requires the statute to include a health excep-
tion where the procedure is necessary, in appropriate medical judg-
ment, for the preservation of the life or health of the mother."
Carhart, 530 U.S. at 936, 938 (citation and internal quotation marks
omitted).
In the case before us, Dr. Fitzhugh and the Richmond Medical
Center for Women, of which he is the founder, owner, and medical
director2 (referred to collectively or individually as "Dr. Fitzhugh"),
2
Dr. Fitzhugh is board certified in obstetrics and gynecology, and as
part of his practice, he performs over 200 second-trimester abortions
each year at hospitals in Richmond and Henrico County, Virginia. The
Richmond Medical Center for Women was founded "to provide abortion
services," and it operates clinics in Richmond and Roanoke, at which
physicians perform first-trimester abortions.
RICHMOND MEDICAL CENTER v. HICKS 31
have attempted to create a record similar to that created in Carhart.
Recognizing that the Virginia statute addresses only abortion proce-
dures in which a live fetus has substantially or completely emerged
from its mother and excepts from its coverage a broad range of proce-
dures proscribed by the Nebraska statute in Carhart, Dr. Fitzhugh still
complains about two procedures that he contends are improperly pro-
hibited by the Virginia statute. First, he correctly asserts that the stat-
ute prohibits killing the fetus after it is fully delivered through the
cervix intact, sometimes head first. As Dr. Fitzhugh testified, "In such
circumstances, I might need to collapse the calvarium (skull) of the
fetus in order to complete the procedure." Arguing that an intact
delivery is often the safest abortion method, Dr. Fitzhugh contends
that the Constitution prohibits Virginia from banning the destruction
of the fetus in these circumstances without a health exception.
Second, Dr. Fitzhugh claims that the statute also impermissibly
limits his ability to complete an abortion involving a feet-first deliv-
ery where the head of the fetus becomes lodged in the woman’s cer-
vix. In such a scenario, Dr. Fitzhugh states that he crushes the fetus’
skull, or collapses it by sucking out its contents, and then completes
the delivery of the fetus. He correctly states that by performing this
procedure he would violate the statute by killing the fetus after its feet
and body had come through the woman’s cervix.
Under Dr. Fitzhugh’s first scenario for objecting to the Virginia
statute, the mother’s health is not brought into play at all. The live
intact fetus is delivered into the vagina or beyond, and whether it is
destroyed after reaching that stage does not affect the mother’s health.
As Dr. Charles deProsse, Dr. Fitzhugh’s expert witness, testified:
Q. And when [the fetus] comes out largely intact, does
that mean that you’re able to remove the fetus com-
pletely from the woman without any parts disarticulat-
ing?
A. Occasionally that can be.
Q. And in the instance where that happens, I take it you
wouldn’t engage in any other act to kill the fetus other
32 RICHMOND MEDICAL CENTER v. HICKS
than removing it and to place it where you place the tis-
sues you are removing; is that correct?
A. Correct.
Dr. Fitzhugh could not think of any threat to the mother’s health
under this scenario, and he candidly recognized that his destruction
of the fetus at that stage would not be to preserve the mother’s health,
but rather to complete the abortion procedure. As he testified:
Q. And the health benefit [to the mother] is the termina-
tion of the pregnancy, not necessarily the death of the
fetus; is that correct? In other words — let me phrase
it this way — termination of the pregnancy is going to
eliminate the health concern with respect to the [moth-
er’s] conditions that you have just described, whether
or not what is removed is alive or dead; is that correct?
A. My ultimate job on any given patient is to terminate
that pregnancy, which means that I don’t want a live
birth.
The district court assumed that the Virginia statute prohibits intact
deliveries of live fetuses — as did the Nebraska statute reviewed in
the Carhart case — and therefore concluded that under Carhart the
statute had to have a health exception.3 The district court reasoned
that by prohibiting intact deliveries, the doctor had to dismember or
destroy the fetus inside the mother to comply with the statute, which
presented a greater health risk to the mother than would an intact
delivery. The doctor’s sharp instruments, and sharp fetal fragments,
as well as "uterine perforation," were far riskier to the mother than the
intact delivery. But the district court’s assumption that the statute pro-
hibits intact deliveries of live fetuses finds no basis in the Virginia
statute. The district court applied Carhart without recognizing the dis-
tinction between the Nebraska statute and the Virginia statute.
In contrast to the statute at issue in Carhart, which was fairly con-
3
The majority now adopts the same argument. See ante at 9-10.
RICHMOND MEDICAL CENTER v. HICKS 33
strued as banning intact deliveries, the statute here cannot be so con-
strued. Specifically, the Carhart statute in prohibiting any "partial
birth abortion," banned the "deliberate[ ] and intentional[ ] deliver[y]
into the vagina [of] a living unborn child . . . for the purpose of per-
forming a procedure" that knowingly would result in the death of the
child. The procedure was banned regardless of where within the
mother the fetus was destroyed or how it was destroyed. Carhart, 530
U.S. at 921 (quoting Neb. Rev. Stat. § 28-328(9)) (emphasis added).
The statute in this case bans any "deliberate act . . . intended to kill
a human infant who has been born alive, but who has not been com-
pletely extracted or expelled from its mother, and that . . . does kill
such infant." Va. Code Ann. § 18.2-71.1(B). In other words, the Car-
hart statute banned the delivery part of a partial birth abortion proce-
dure, whereas the Virginia statute does not ban the delivery part if the
intact fetus is not destroyed. It bans only the killing part of such a pro-
cedure. The distinction is important because it makes the question of
whether intact deliveries have safety advantages over deliveries
involving dismemberment irrelevant in this case, for the statute has
nothing to say about, and indeed permits, intact deliveries when the
fetus is not deliberately destroyed. But see ante at 8-9 (focusing on
the health advantages of intact deliveries). The only relevant question
in an intact delivery is whether a woman’s health would be endan-
gered by prohibiting the physician from intentionally killing a fetus
that has been so delivered and is still alive.
That brings us to Dr. Fitzhugh’s second scenario for objecting to
the statute: that during an abortion procedure involving the breach
delivery of the fetus, the fetal skull sometimes becomes lodged in the
mother’s cervix, forcing him to kill the fetus by crushing its skull so
as to preserve the health of the mother.
It must be noted first that when the head of the fetus becomes
lodged in the mother’s cervix, the condition poses a threat to the
mother’s life, and to abate that risk, Dr. Fitzhugh prefers to crush the
skull of the fetus and then remove it. As he testified:
Q. So would you agree with me that if you had the — if
you did not complete the delivery in the scenario you
just described [where the head was lodged] — you
know, you said collapsing the skull or whatever other
34 RICHMOND MEDICAL CENTER v. HICKS
means — that the woman’s life would be at risk? Do
you agree with that?
A. Yes sir.
(Emphasis added). The Virginia statute, however, makes an exception
from its proscriptions "to prevent the death of the mother." Va. Code
Ann. § 18.2-71.1(E).
Thus, under neither scenario advanced by Dr. Fitzhugh to chal-
lenge the constitutionality of Virginia’s statute has he demonstrated
the need for a health exception.
Even if Dr. Fitzhugh’s position could be understood to demonstrate
a risk to the mother’s health, and not to her life, his opinion on such
a risk and the opinion of doctors presented by Virginia differ mark-
edly. The record demonstrates that a genuine issue of material fact
exists as to whether substantial medical authority in fact supports the
proposition that barring physicians from collapsing or crushing the
fetal skull would endanger the health of a woman. In these circum-
stances, summary judgment cannot be granted.
Dr. Fitzhugh did present some evidence that prohibiting a physi-
cian from crushing or collapsing a fetal head that becomes lodged in
the mother’s cervix would endanger the mother’s life, or perhaps
health. The evidence advanced by Dr. Fitzhugh establishes that in
approximately .5% of the D&E abortions Dr. Fitzhugh and his clinics
perform, the skull becomes lodged in the woman’s cervix. This places
the woman’s life at risk according to Dr. Fitzhugh. And according to
Dr. Charles deProsse, Dr. Fitzhugh’s expert witness, the physician
"must compress" the fetal skull.
The evidence presented by Virginia, however, painted a substan-
tially different picture.4 According to the Commonwealth’s testimony,
the prohibitions in the statute would not endanger a woman’s health
4
Even though the district court excluded a significant amount of Vir-
ginia’s evidence, I conclude that it did so improperly, see Part V, infra,
and accordingly consider some of that evidence to describe Virginia’s
presentation of a different factual picture.
RICHMOND MEDICAL CENTER v. HICKS 35
because there are equally safe alternatives in the circumstances cov-
ered by the statute. First, Dr. Harlan Giles testified that no medical
authority supports the proposition that it would be necessary to crush
a lodged fetal skull. Similarly, Dr. John Seeds testified that there "is
no clinical scenario [he could] imagine where a physician would have
to resort to a procedure that violated [the statute]."
Moreover, Virginia introduced evidence showing that equally safe
alternatives exist for completing an abortion during which the fetal
skull has become lodged in the mother’s cervix. Dr. Giles testified
that the cervix will often dilate and naturally expel the skull if given
sufficient time. He testified that the physician can also lightly com-
press (as opposed to crush) the skull using forceps without intending
to kill the fetus to remove it from the cervix. Finally, he noted that
certain muscle relaxants can be used to increase cervical dilation and
thereby dislodge the skull. Dr. Giles indeed provided testimony that
crushing the fetal skull, as preferred by Dr. Fitzhugh, actually
increases the risk to a woman’s health due to fragmentation of bony
parts and maternal tears. Similarly, Virginia provided the testimony
of Dr. Mark Neerhof given before the House of Representatives Judi-
ciary Committee, in which he stated that injecting scissors into the
fetal skull to crush it subjects the woman to the risk of lacerations to
her cervix and uterus and could result in severe bleeding, shock, and
maternal death.
Dr. Fitzhugh’s only response to this contradicting evidence is to
argue that unless Virginia proves that no medical authority supports
Dr. Fitzhugh’s assertion, Dr. Fitzhugh must win and the statute must
be stricken. Dr. Fitzhugh forgets, however, that he bears the burden
of proving that substantial medical authority supports his proposition
that the statute requires a maternal health exception, and when ques-
tions of fact about this proposition exist, the district court is precluded
from entering summary judgment. The issue must be reserved for
trial, as was done in Carhart.
IV
The district court advanced three additional grounds for striking
down Virginia’s statute, which the majority did not address because
of its ruling that the Virginia statute is per se unconstitutional for fail-
36 RICHMOND MEDICAL CENTER v. HICKS
ing to include a maternal health exception. Because of my would-be
ruling that Virginia’s narrow statute need not contain such an excep-
tion, I will address these additional three grounds advanced by the
district court, in order.
A
First, in holding the Virginia statute unconstitutional, the district
court relied on Carhart’s holding that a statute that "‘imposes an
undue burden on a woman’s ability’ to choose a D&E abortion . . .
unduly burden[s] the right to choose abortion itself." See Carhart, 530
U.S. at 930 (quoting Casey, 505 U.S. at 874). The district court identi-
fied two scenarios in which a physician, who intends to perform a
D&E, would violate the statute. The first scenario occurs when a
woman’s cervix is aligned so closely with her vagina that during the
abortion procedure, the cervix gets pulled outside her vagina. Dr.
Fitzhugh estimated that he sees such an anatomical configuration in
approximately one-third of his second-trimester abortion patients. He
claims that in such circumstances, dismemberment of the fetus occurs
on the outside of the woman’s body and therefore would not fall
within the statute’s exception for D&E procedures generally. See Va.
Code Ann. § 18.2-71.1(B) (excepting from the statute’s ban the D&E
procedure "involving dismemberment of the fetus prior to removal
from the body of the mother").
As an initial matter, the district court erred by resolving, on sum-
mary judgment, the factual question of whether such a scenario ever
actually occurs. Dr. Fitzhugh’s own expert, Dr. deProsse, admitted
that no medical literature mentions such an anatomical scenario.
Moreover, both of Virginia’s experts expressed similar doubts and
even questioned the possibility that a woman’s cervix could emerge
beyond her vagina during a D&E procedure. Dr. Seeds testified that
based on his overall clinical experience, he "would not expect to be
able to pull a woman’s cervix to the level of the vaginal introitus . . .
unless the woman had extremely elastic ligaments as a result of multi-
ple, full-term, vaginal deliveries or unless [he] was using too much
force." Dr. Giles testified similarly and noted that he had never seen,
read about, or heard about such a situation occurring during a D&E
procedure. By disregarding this testimony and accepting Dr. Fitz-
hugh’s, the district court violated a basic requirement for entering
RICHMOND MEDICAL CENTER v. HICKS 37
summary judgment — that there be no genuine dispute of material
fact.
Moreover, the court misconstrued the statute or chose to construe
it so that it could be found unconstitutional in the factual circum-
stances it found to exist. This was error. See United States ex rel.
Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408
(1909) (holding that when "a statute is susceptible of two construc-
tions, by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided, our duty
is to adopt the latter"). Dr. Fitzhugh explained that in the circum-
stances he described, the dismemberment that occurs during a D&E
results from the fetus’ passing through the cervix, and Dr. deProsse
explained that the dismemberment might actually occur a few centi-
meters outside the woman’s cervix. The district court chose to con-
strue the statute as excepting the D&E procedure only when the
dismemberment occurs inside the mother’s body. Read more carefully
(or so as to avoid constitutional questions), the statute excepts the
D&E procedure so long as it is performed before the fetus is removed
from the mother’s body. See Va. Code Ann. § 18.2-71.1(B)(iii)
(excepting from the statute’s ban a D&E procedure "involving dis-
memberment of the fetus prior to removal from the body of the
mother").
The district court also relied on a second factual scenario to find
the statute unconstitutional — when the physician intends to perform
a D&E involving dismemberment of the fetus inside the woman’s
body, but the fetus instead prolapses through the cervix intact and its
skull becomes lodged in the woman’s cervix. The court found that the
physician would then have to crush the fetus’ skull to complete the
abortion, but by doing so, would expose himself to criminal liability
under the statute. Because a physician could not know before begin-
ning the D&E procedure how far the fetus would prolapse, the court
concluded that the statute unconstitutionally burdens the abortion
right by creating a dilemma for the physician every time he performs
a D&E procedure.
The problem with the district court’s conclusion is that it had to
resolve the major disagreement about the material facts in this case
on a motion for summary judgment. As explained with respect to the
38 RICHMOND MEDICAL CENTER v. HICKS
need for a maternal health exception, supra at Part III, the question
of whether the fetus’ skull must be crushed at the point when the head
has become lodged in the cervix is not resolved by the materials sub-
mitted by the parties, and a genuine dispute of material fact remains.
Virginia’s evidence showing that equally safe or even safer alterna-
tives exist, including gently compressing the skull, using cervical
muscle relaxants, and waiting for the cervix to dilate further, cannot
be ignored or resolved by the court in the summary judgment proce-
dure.
B
The district court struck down the statute also because it denies a
woman a right to choose appropriate medical treatment when she is
suffering from an incomplete miscarriage. In the case of a miscar-
riage, however, the cause of the fetus’ demise is natural, and the doc-
tor is called upon to treat the mother and assist in the natural process.
In no ordinary sense can it be said that the physician engages in a "de-
liberate act that . . . is intended to kill a human infant who has been
born alive." See Va. Code Ann. § 18.2-71.1(B). Even Dr. Fitzhugh’s
expert, Dr. deProsse, testified that the physician’s intent in treating an
incomplete miscarriage would be to treat the mother and "preserve the
health of the mother," not to kill the fetus.
C
Finally, the district court found the statute unconstitutional on
vagueness grounds for failing to give physicians fair notice of what
conduct it prohibits. A statute is unconstitutionally vague if it "fail[s]
to provide the kind of notice that will enable ordinary people to
understand what conduct it prohibits." Chicago v. Morales, 527 U.S.
41, 56 (1999).
Here, the district court found terms such as "from its mother,"
"from the body of the mother," "outside the body of the mother," and
"involving dismemberment of the fetus prior to removal from the
body of the mother" unconstitutionally vague. But its conclusion is
unsupportable. Not only is it hard to imagine how a person of normal
intelligence would not understand those everyday words, but the
record demonstrates that Dr. Fitzhugh himself did not find them
RICHMOND MEDICAL CENTER v. HICKS 39
ambiguous. For example, when asked whether it would be medically
advisable for him to "start dismembering the fetus, the part of the
fetus that is already out of a woman," rather than express any confu-
sion over the meaning of the question, Dr. Fitzhugh answered the
question in the negative, without hesitation.
In sum, none of the additional grounds advanced by the district
court to find the statute unconstitutional has merit.
V
Finally, I address Virginia’s contention that the district court
stacked the factual deck against it by improperly excluding from con-
sideration material evidence that would have supported the statute
and, more importantly, placed any factfinding by the district court
deeper in doubt. In particular, Virginia contends that the district court
erred in (1) striking the testimony of Virginia’s expert, Dr. Harlan
Giles; (2) striking portions of the testimony of Virginia’s other expert,
Dr. John Seeds; and (3) excluding testimony given before the United
States House of Representatives Committee on the Judiciary during
hearings on the federal partial-birth abortion ban. I address these in
order.
A
Virginia proffered the testimony of Dr. Giles, an obstetrician and
gynecologist specializing in maternal and fetal medicine, to support
several parts of its defense, including the proposition that equally safe
alternatives to any procedure banned by the statute exist. The district
court struck all of Dr. Giles’ testimony finding it to be "unreliable
because it [was] inconsistent and incoherent." In particular, the dis-
trict court found that Dr. Giles’ testimony concerning the use of for-
ceps to dislodge a fetal head and his experience using medication to
achieve cervical dilation during D&E procedures contradicted testi-
mony that Dr. Giles had given in a prior lawsuit. The district court
relied primarily on this inconsistency to disqualify Dr. Giles.
It is of course well-established that under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.
40 RICHMOND MEDICAL CENTER v. HICKS
Carmichael, 526 U.S. 137 (1999), a district court has an obligation to
"ensure that any and all scientific testimony . . . is not only relevant,
but reliable." Daubert, 509 U.S. at 589. Although the Supreme Court
in Kumho Tire considered the inconsistency of an expert’s testimony
as a factor in not certifying the expert, the Court’s overriding concern
in that case was the unreliability of the method used by the expert.
Kumho Tire, 526 U.S. at 157. In contrast, here, the inconsistencies in
Dr. Giles’ testimony constituted the district court’s main reason for
the exclusion. The inconsistencies, however, were between the testi-
mony given by Dr. Giles in this case and the testimony given by Dr.
Giles in an earlier case. Without exploring the reasons for any differ-
ence or allowing for an explanation, the district court incorrectly
placed itself in the role of a factfinder, weighing the credibility of the
witness.
The district court also supported its decision to exclude Dr. Giles’
testimony with its conclusion that one method Dr. Giles advocated for
completing an abortion in which the fetus’ head became lodged in the
mother’s cervix — waiting awhile for the fetus’ head to expel on its
own — fell below the accepted standard of care. If true, such a find-
ing might justify the conclusion that Dr. Giles’ methods are unreliable
within the meaning of Kumho Tire. Yet, to reach its conclusion that
Dr. Giles’ proposed methods would constitute malpractice, the court
relied on the testimony of a witness that had been identified only as
a rebuttal witness (because the witness could not testify on direct due
to a conflict of interest). Moreover, even if the rebuttal witness’ testi-
mony was properly considered, it did not directly call into question
Dr. Giles’ method. Specifically, the rebuttal witness testified that it
would "constitute medical malpractice for a physician to ‘just wait’
for up to a couple of hours for the uterus to contract and the cervix
to dilate on its own to remove a lodged fetal head during a previa-
bility D&E where the woman is under any type of sedation." (Empha-
sis added). Dr. Giles specifically stated in his testimony, however,
that he would not wait longer than 10 to 20 minutes for cervical dila-
tion if the woman were under a general anesthetic. Finally, the testi-
mony of Dr. Fitzhugh’s own expert witness, Dr. deProsse, indicated
that Dr. Giles’ method would not be a breach of the standard of care,
providing evidence that directly conflicted with the testimony of Dr.
Fitzhugh’s rebuttal witness. Dr. deProsse testified that a physician
RICHMOND MEDICAL CENTER v. HICKS 41
could wait as long as 24 hours after a fetal head became lodged with-
out creating a risk of infection.
Finally, the district court supported its decision to strike the testi-
mony of Dr. Giles by noting that Dr. Giles could not point to any
medical literature to support his theory that cervical muscle relaxants
could be used to dislodge a fetal head that had become lodged during
a D&E procedure. Disqualifying Dr. Giles on this basis is particularly
troubling because Dr. Fitzhugh’s experts similarly failed to support
several of their opinions with documented medical authority, yet the
court chose to rely on them. For example, Dr. deProsse testified that
the intact D&E procedure (also described as the dilation and extrac-
tion or D&X procedure) has safety advantages over conventional
D&Es and other abortion procedures, but he could not recall any med-
ical literature supporting that proposition. Similarly, Dr. deProsse tes-
tified that, depending on a woman’s individual anatomy, her cervix
might be outside her vaginal introitus at times during a D&E. Yet, Dr.
deProsse knew of no medical literature documenting that anatomical
configuration. Notwithstanding the lack of medical literature to sup-
port Dr. deProsse’s testimony, however, the district court considered
and relied on it. The court’s rejection of Dr. Giles’ testimony for that
reason created a double standard and was an abuse of discretion.
B
The district court also struck portions of the testimony of Virginia’s
other expert witness, Dr. John Seeds, based on the district court’s
finding that Dr. Seeds was an expert on neither abortions nor D&E
procedures. Virginia relied on Dr. Seeds’ testimony for his expert
opinions on whether the health concerns raised by the appellees were
medically legitimate, whether a physician would ever have to resort
to a procedure that violated the statute, and whether there exists any
safer alternative means for performing abortions than any procedure
that would violate the statute. In addition, Dr. Seeds answered general
questions about the female anatomy.
Again, the district court abused its discretion in excluding the testi-
mony of Dr. Seeds, particularly with his credentials. Dr. Seeds is
board-certified in the fields of obstetrics and gynecology ("OBGYN")
and of maternal/fetal medicine. He is currently the chair of the
42 RICHMOND MEDICAL CENTER v. HICKS
OBGYN department at the Medical College of Virginia, Virginia
Commonwealth University. He does not currently perform abortions,
but he is familiar with the procedures performed by other physicians
in his department. As chairman of the OBGYN department, Dr. Seeds
testified that he would feel obligated to advise his staff professionally
if the statute would implicate the staff’s abortion practices in any way.
The district court concluded solely from the fact that Dr. Seeds
does not perform abortions that his testimony in this matter is unreli-
able. But as an OBGYN expert, Dr. Seeds obviously knows more
about the female anatomy, pregnancy, and birth than the average
juror. In fact, Dr. Seeds, as an expert in maternal/fetal medicine, may
actually be more qualified to render an opinion than Dr. Fitzhugh’s
experts, neither of whom has expertise in maternal/fetal medicine. As
a maternal/fetal medicine specialist, Dr. Seeds has extensive training
in the management of high-risk pregnancies, which makes him highly
qualified to speak to possible complications occurring during preg-
nancy that could necessitate the types of procedures banned by the
statute.
The exclusion of Dr. Seeds’ testimony is so highly irregular that it
is difficult for me to conceive of the motive for the district court’s rul-
ing. In any event, I think it clear that the district court abused its dis-
cretion in excluding Dr. Seeds’ testimony.
C
Finally, the district court excluded parts of the Congressional
Record for the federal partial-birth abortion ban as evidence that such
a ban would not endanger a woman’s health. This exclusion covered
all parts of the Congressional Record, including the House Committee
Report and the congressional testimony of Dr. Mark Neerhof, an
OBGYN professor at Northwestern University Medical School. Spe-
cifically, the district court found that the report was "political" and
"untrustworthy" and that Dr. Neerhof’s statement was hearsay.
Although it was within the district court’s discretion to conclude
that the Congressional Report was unreliable, the district court again
applied a double standard to reach such a conclusion. In particular,
the court repeatedly relied on hearsay statements made by the Ameri-
RICHMOND MEDICAL CENTER v. HICKS 43
can College of Obstetricians and Gynecologists ("ACOG"), which
were presented by Dr. Fitzhugh. I can see no relevant difference
between Dr. Neerhof’s testimony before Congress and the ACOG
statements. If the district court chose to exercise its discretion to
exclude such testimony, then it should have done so across the board.
If it chose to include them as legislative facts, then it should have
done so uniformly. Its ruling against Virginia only, however, is, I sub-
mit, unexplainable and an abuse of discretion.
VI
The choice made today by the majority to strike down Virginia’s
partial-birth infanticide statute is not compelled by the Constitution,
nor by any Supreme Court case. As such, the majority opinion stands
on its own reasoning and amounts to a momentous step in disconnect-
ing our law from accepted moral norms. In gratuitously rejecting Vir-
ginia’s law, the majority announces a strange law that the liberty
protected by the Constitution guarantees a woman the right to destroy
her live fetus after it has been delivered halfway or fully into the
world. The majority opinion stands for nothing less.
Virginia enacted its partial-birth infanticide statute, focusing on the
life of infants delivered halfway or fully into the world, rather than
on abortion procedures themselves. Indeed, it accepted as legal vari-
ous "normal" procedures employed in over 95% of abortions in
America. Virginia’s statute is thus narrowly drafted and fits within the
exceptions recognized by Carhart. See Carhart, 530 U.S. at 939 ("[I]t
would have been a simple matter, for example, to provide an excep-
tion for the performance of D&E and other abortion procedures"); id.
at 950 (O’Connor, J., concurring) ("[S]ome other States have enacted
statutes more narrowly tailored . . . by specifically excluding from
their coverage the most common methods of abortion, such as the
D&E and vacuum aspiration procedures"). This was Virginia’s spe-
cific goal.
It is an affront to Virginia’s sovereignty to extend Carhart to strike
down its statute in the name of the liberty protected by the Constitu-
tion. It should make us question whether we understand liberty, or if
we do, whether we are tarring it with the color of political ideology
that tarred the national ideals of other ages when immoral laws were
44 RICHMOND MEDICAL CENTER v. HICKS
imposed by ideological commands. It provides us no cover to assert
vacuously that we are doing what the Supreme Court commands. The
truth remains open for all to see that we are doing not what is required
by law, as I have demonstrated in some detail, but what we will.5
As it must, judicial authority finds process and reason as its sup-
porting pillars, but reason alone applied formulaically and without
regard to context can wring results that even the most carefully rea-
soning decisionmaker finds unacceptable. At the depths of judicial
decisionmaking lies a bedrock demanding accountability to the
mind’s sense of right, and this bedrock guides or perhaps even vetoes
whatever absurdities reason might deliver.
In the opinions we issue today, we speak of the legal and the illegal
ways to dismember the arms and legs of human fetuses and the legal
and illegal ways to crush the budding human head. The doctors, of
course, are given a choice: They can insert scissors into the base of
the neck and suck out the brain matter, or they can crush the tender
skull with forceps. Indeed, some of these procedures remain legal
under Virginia’s statute, but the statute does prohibit the destruction
of a fetus halfway or fully delivered from its mother’s body. Dr. Fitz-
hugh complained of this proscription because — even though killing
the infant could not affect the mother’s health at that stage — he
could not complete his job. He said, "I don’t want a live birth." The
majority redresses his complaint with the ruling today.
5
In suggesting that I am "mandat[ing] [my] own moral code" as I write
to uphold Virginia’s statute, ante at 17, the majority presumes that the
Supreme Court has, in Carhart, protected conduct that violates "my
moral code" and that I should address my objections to the Supreme
Court’s decision in Carhart. The Nebraska statute found unconstitutional
in Carhart, however, differs materially from the Virginia statute, most
significantly in that the former proscribed certain abortion procedures
while the latter bans only the destruction of living fetuses. With this
material difference, I have suggested that we can, consistent with
Supreme Court precedent, accommodate Virginia’s deeply held moral
position without offending Carhart, and that in going beyond the bounds
of the Carhart holding to strike down the Virginia statute, we trample
not only the statute but also the moral grounds on which it rests.
RICHMOND MEDICAL CENTER v. HICKS 45
Even the majority’s opinion, however, seems to have shuddered at
discussing the nuances of fetal destruction, employing uncommon and
clinical words as if they would dull the moral context:
In the case of a vertex presentation, the physician collapses
the fetal calvarium and then extracts the entire fetus through
the cervix. In the case of a breech presentation, the physi-
cian pulls the fetal trunk through the cervix, collapses the
fetal calvarium, and then completes extraction of the fetus
through the cervix. Ante at 6.
* * *
A third variation prohibited by the Act involves the D&E in
which fetal disarticulation occurs outside of the woman’s
body. Disarticulation generally occurs beyond the cervical
os (the lower portion, or opening, of the cervix) as a result
of traction against the cervix. However, disarticulation may
occur outside of the woman’s body when there is little or no
space between the cervical os and the vaginal introitus (the
vaginal canal) or when the cervical os prolapses (emerges)
outside the vaginal introitus. Ante at 6.
I too have shuddered and must turn away.
Can we not see that our discussions and the law we make in strik-
ing down Virginia’s prohibition are unfit for the laws of a people of
liberty? I wonder with befuddlement, fear, and sadness, how we can
so joyfully celebrate the birth of a child, so zealously protect an infant
and a mother who is pregnant, so reverently wonder about how
human life begins, grows, and develops, and at the same time write
to strike down a law to preserve a right to destroy a partially born
infant. If the disconnect is explained by personal convenience, then
we must reason that all morality is personal, without commonality
and source. The product of such chaos is unfathomable.