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It has been suggested that "strict scrutiny" should be applied to the medical necessity exception to the ban on post-viability abortions, codified at O.R.C. § 2919.17(A)(1).10
This would force courts to decide when, and under what circumstances, an unborn child's life becomes more important, and more worthy of protection, than the life of its mother. In the opinion of this Court, this inquiry is beyond the realm of legal jurisprudence, and must be left to the discretion of the individuals involved. Neither the legislature, nor the courts, has either the legal or the moral authority to balance the interests and the lives involved, and to make this decision.
Therefore, this Court holds that although a state may ban most abortions subsequent to viability, it may not take away a pregnant woman's right, as recognized in Casey, to have a post-viability abortion which is necessary to preserve her life or health. A strict scrutiny analysis could have the effect of narrowing this exception, and should not be applied. Instead, any regulation which impinges upon or narrows this exception, must be declared to be unconstitutional.
Statutes are ordinarily challenged ... "as applied" -- that is, the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional "as applied" is to prevent its future application in a similar context, but not to render it utterly inoperative. To achieve the latter result, the plaintiff must succeed in challenging the statute "on its face."
Ada v. Guam Society of Obstetricians & Gynecologists, 113 S.Ct. 633 (1992) (Scalia, J , dissenting from denial of cert.). In the instant case, Plaintiff Haskell seeks to have the entirety of House Bill 135 declared unconstitutional, and not only as it applied to his particular situation. Thus, he is bringing a facial challenge to the statute.
Since Casey, a split has developed among the Circuits as to whether the Casey approach has replaced the Salerno standard. The Third and Eighth Circuits, joined by district courts in the Seventh (Indiana) and Tenth Circuits (Utah), have concluded that Casey did replace Salerno. Planned Parenthood Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458 (8th Cir. 1995) ("we choose to follow what the Supreme Court actually did ... and apply the undue burden test"); Casey v. Planned Parenthood, 14 F.3d 848, 863 n.21 (3rd Cir. 1994) ("the Court has ... set a new standard for facial challenges to pre-viability abortion laws"); A Woman's Choice -- East Side Women's Clinic v. Newman, Cause No. IP 95-1148-C H/G, at 19-20 (S.D. Ind. 1995) (memorandum opinion on motion for preliminary injunction) ("this court believes that Casey effectively displaced Salerno's application to abortion laws"); Utah Women's Clinic v. Leavitt, 844 F. Supp. 1482, 1489 (D. Utah 1994) ("to bring a facial challenge in good faith, one must reasonably believe that the statute is incapable of being applied constitutionally in a large fraction of the cases in which it is relevant."). The Fifth Circuit has disagreed, and continues to apply the Salerno standard when evaluating restrictions on abortion. Barnes v. Moore, 910 F.2d 12, 14 n.2 (5th Cir. 1992) ("we do not interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes").
The Supreme Court, itself, appears to be split on this issue. Compare Fargo Women's Health Org. v. Schafer, 113 S.Ct. 1668 (1993) (O'Connor, concurring with denial of application for stay and injunction) (stating that the Casey approach should be followed by lower courts), with Ada v. Guam Society of Obstetricians and Gynecologists, 113 S.Ct. 633 (1992) (Scalia, dissenting from denial of petition for writ of certiorari) (stating that Court did not change the Salerno standard in Casey).
Not surprisingly, whereas Plaintiff has urged this Court to adopt the Casey approach, Defendants have vigorously argued that the Salerno standard should be employed. Because the Sixth Circuit is silent on the issue of whether Salerno should apply to pre-viability abortion regulations, it is a matter of first impression in this Circuit.
This Court concludes that for purposes of evaluating the ban on the D&X procedure, which is used in the weeks preceding viability, this Court will follow the approach actually undertaken in Casey, and employed by courts in the Third, Seventh, Eighth, and Tenth Circuits, and ask whether, "in a large fraction of the cases in which [the ban] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." This Court makes this decision for two reasons. First, because Casey did not require that every married woman be subject to physical abuse in striking down the spousal notification requirement, the plaintiffs in that case did not have to show that "no set of circumstances exist under which the law would be invalid" in order to successfully challenge it. Second, it seems that it would be impossible, as a practical matter, to evaluate whether a regulation will create an undue burden on the right to an abortion, without examining specific facts in the record, and evaluating the likely impact that a regulation will have on the specific group of women who are affected by it. For these reasons, this Court declines to apply Salerno to the challenged pre-viability regulations in this case.
Although this Court has concluded that it will not apply Salerno to the pre-viability regulations in House Bill 135, the issue of whether Salerno should apply to the post-viability regulations in House Bill 135 is a separate issue. For purposes of evaluating the ban on post-viability abortions, therefore, this Court must likewise consider whether it is bound to apply the more restrictive Salerno standard.12
Whether the Salerno standard for facial challenges should apply to post-viability regulations appears to be an issue of first impression before this, or any, Court. Casey is not dispositive, because the approach in that case is specifically designed to evaluate whether a law restricting access to pre-viability abortions would impose an "undue burden" on a large fraction of the relevant population; it does not evaluate whether a law restricting access to post-viability abortions is invalid simply because it may jeopardize the life or health of a few (or many) pregnant women who need such an abortion. Indeed, none of the cases cited above which followed the new Casey approach involved restrictions on post-viability abortions. Thus, this appears to be an issue of first impression in this, or any, Court.
After careful consideration of the interests involved, this Court concludes that the Salerno requirement that the plaintiff must show that "no set of circumstances exists under which the law would be valid," should not apply to facial challenges to post-viability abortion regulations which may unconstitutionally threaten the life or health of even a few pregnant women. The Court so holds for three reasons. First, the cases which have applied Salerno have not involved laws which threaten to inflict, unconstitutionally, such severe and irreparable harm.13
Therefore, this Court will allow Plaintiff to facially challenge this post-viability ban, even though he has not shown that "no set of circumstances" exists under which the ban would be valid.
A vague law is especially problematic in two situations. First, its potential to cause citizens to "'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked," Id. (quoting Baggett v. Bullitt, 377 U S 360, 372 (1964)), is of particular concern where the exercise of constitutionally protected rights may be inhibited or "chilled." Colautti v. Franklin, 439 U.S. 379, 391 (1979) (applying to the right to an abortion); Baggett, 377 U.S. at 372 (applying to First Amendment rights). Second, a vague law which provides for criminal penalties is troubling because of the severe consequences which may result from violating the law. Hoffman Estates v. The Flipside, Hoffman Estates. Inc., 455 U S 489, 498-99 (1982). When determining whether a law is void for vagueness, this Court must examine the challenged law in light of all of the above considerations.
This Court now turns to Plaintiff's arguments challenging the constitutionality of the D&X ban, the post-viability ban, and the viability testing requirement, for purposes of gauging whether the likelihood of Plaintiff's success on the merits of these arguments is substantial.
[T]he termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. 'Dilation and extraction procedure' does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion.
O.R.C. § 2919.15(A). Plaintiff argues that this definition is unconstitutionally vague, because it does not adequately distinguish the D&X procedure from a different procedure known as the Dilation and Evacuation ("D&E"} procedure. Plaintiff further argues that this vagueness will chill physicians from performing abortions by use of the D&E method, which is the most common method used in the early to mid-second trimester. Defendants dispute this, arguing that the definition does not include or describe the D&E procedure, and so is not vague; further, Defendants argue that the D&E procedure is included in the definition of suction curettage, and so is excepted from the ban.
In order to address this vagueness argument, it is necessary to define and describe the various methods of abortion, based on the testimony in this case. When the procedures are described in detail, it becomes apparent that the statutory definition of the Dilation and Extraction procedure could be construed to include the more widespread Dilation and Evacuation ("D&E") procedure. It also becomes apparent that the D&E method is not included in any definition of suction curettage: although a D&E procedure does include suction curettage, it also includes additional steps, such as dismemberment, and additional instruments, such as forceps. Furthermore, suction curettage is a first-trimester procedure, whereas D&E is a second-trimester procedure. Accordingly, Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of a D&X procedure is unconstitutionally vague.
Frequently, however, the torso and the head cannot be removed in this manner (Tr., 12/5, at 35). The procedure typically results, therefore, in a dismemberment of the fetus, beginning with the extremities. This dismemberment is accomplished both by use of the suction curettage, and by the use of forceps (Id.).
Removing the head of the fetus from the uterus is typically the most difficult part of the D&E procedure, in part because the head is often too large to fit through the partially dilated cervix. It is important to remove the head as quickly as possible, because fetal neurologic tissue can negatively affect the mother's ability to clot, and lead to greater bleeding (Tr., 12/6, at 32). Physicians have developed different methods of decompressing the head, in order to remove it.
Dr. Anthony Levatino testified that when he performed D&E abortions, he preferred to grasp the fetal head with a clamp, crush it, and remove it in pieces along with the skull contents (Tr., 12/7, at 190). Because he decompressed the skull by crushing it, he found it unnecessary to decompress the skull by purposely inserting a suction device into the skull and removing some of its contents (Id. at 192).
Dr. Paula Hillard testified that when the skull is too large to remove intact, she grasps the skull and suctions out its contents with a cannula -- which may enter the skull -- in order to decompress it and facilitate its removal (Tr., 11/8, at 77). She has never performed the procedure utilized by Dr. Haskell (Id. at 49).
Dr. Doe Number One testified that because the use of forceps can cause trauma to the mother's uterus, his preference is to collapse the head by the use of suction, prior to its removal. By making a small incision at the base of the skull and inserting a suction device into the brain -- while the head is still within the uterus, and no longer attached to the body -- he can collapse the head and easily remove it, without the use of forceps (Tr., 12/5, at 43). This method decreases injury to the cervix and uterus, and reduces operating room time, blood loss, and anesthesia time (Id. at 44). Dr. Doe describes his procedure as a D&E, and collapses the head by the use of suction even in procedures performed from 15 to 18 weeks. Although he does not always collapse the head in this fashion, Dr. Doe Number One testified that the two procedures -- D&E with collapse, and D&E without collapse -- are on a continuum (Id. at 72). He has never performed the procedure utilized by Dr. Haskell (Id. at 84).
Dr. Mary Campbell has not performed second-trimester abortions, but has read about and observed various second-trimester methods, in preparation for setting up a second-trimester practice at her clinic. In describing the D&E procedure, she testified that the fetal skull is generally not intact following dismemberment of the body -- the jaw is often removed with the neck -- and "the edges of the fetal skull are sharp enough to lacerate the maternal uterine [blood] vessels ..." (Tr., 12/6, at 35). The goal is therefore to place the suction cannula into the skull in order to remove its contents and make it smaller, thereby allowing it to be removed intact, in order to minimize lacerations (Id. at 33). In addition, removing the head intact is advantageous because it ensures that no parts of the skull are left behind in the woman's uterus (Id. at 35).
Dr. Harlan Giles, who performs D&E abortions up to the twentieth week of pregnancy, testified that he had never seen an instance in which the fetal head was too large to be removed without being crushed or somehow decompressed, but he admitted that such an occurrence was possible (Tr., 11/13, at 269-70; Tr., 12/8, at 41).
The D&E procedure appears to be preferable to other available procedures before the twentieth week; at thirteen to sixteen weeks, it is the only available procedure. The main alternative to a D&E procedure after sixteen weeks is an induction or instillation method, which involves either the injection of saline, urea, or prostaglandins into the amniotic cavity, or, the insertion of vaginal prostaglandin suppositories. These procedures result in labor, and are further described below. The D&E procedure appears to be less painful for the mother than induction procedures, because it does not require labor, and because the cervix is dilated slowly with laminaria rather than being dilated more forcefully by uterine contractions. In addition, the D&E procedure takes less time, generally between ten and twenty minutes, as opposed to twelve to thirty-six hours. Because the uterus is not under pressure over a long period of time, there is less of a risk of forcing fluids or fetal proteins into the maternal circulation (Tr., 12/6, at 31). Finally, there is a reduced risk of retained products of conception, infection, hemorrhage, and cervical injury (Id. at 39).
Although the D&E procedure appears to have a lower rate of complications than other methods of abortion in the early to mid-second trimester, it can be equally risky at later periods, when the fetus is larger. One serious complication of later D&Es is caused by the use of forceps, which results in uterine and cervical injuries, and increased blood loss (Tr., 12/5, at 41).
Plaintiff Haskell described his procedure in a paper presented at the National Abortion Federation Conference in 1992 (Defendant's Exhibit A). The following description is taken from that paper.
On the first and second days of the procedure, Dr. Haskell inserts dilators into the patient's cervix. On the third day, the dilators are removed and the patient's membranes are ruptured.16
The primary distinction between this D&X procedure and the D&E procedure previously described appears to be that, whereas the D&E procedure results in dismemberment and piece-by-piece removal of the fetus from the uterus -- and, possibly, in removal of portions of the skull contents by the use of suction after the skull is crushed with forceps or otherwise invaded, and before the head is placed next to the opening to the uterus -- the D&X procedure results in a fetus which is removed basically intact except for portions of the skull contents, which are suctioned out after the head is placed next to the opening to the uterus (and after the rest of the fetus is removed from the uterus), and before the fetus is fully removed from the mother's body.18
The testimony indicates that the D&X procedure may be considered to be a variant of the D&E technique.l9
In this case, Dr. John Doe Number One testified that he developed a procedure which is similar to Haskell's D&X procedure for use in his D&E procedures at fifteen to eighteen weeks: after the extremities of the fetus are dismembered and removed, he collapses the head by making an incision and then using suction to decompress the skull, instead of crushing it with forceps, so that he can remove the skull intact (Tr., 12/5, at 42-44). Dr. John Doe Number Two, who uses Haskell's D&X procedure in situations where an intact fetus is requested, or if the fetus is breech (feet first), testified that he considered the D&X procedure to be a modification of the D&E procedure (Tr., 12/6, at 47-48).
Based on the testimony of various physicians, this Court further finds that in both the D&E and the D&X procedures, a suction device may be purposely inserted into the skull in order to remove the skull contents, to accomplish the goal of decompressing the fetal head, thereby facilitating its removal from the woman's body. Because the statutory definition of the prohibited "Dilation and Extraction Procedure" thereby appears to encompass the purportedly allowable D&E procedure as well, Plaintiff has demonstrated a substantial likelihood of success of showing that this definition is unconstitutionally vague, as it does not provide physicians with fair warning as to what conduct is permitted, and as to what conduct will expose them to criminal and civil liability.21
The reasoning in Danforth suggests that a state may act to prohibit a method of abortion, if there are safe and available alternatives. This reading comports with Casey, which dictates that if a ban on a specific method were to place a substantial obstacle in the path of a woman seeking a pre-viability abortion -- for example, if there were no safe and available alternative method of abortion -- the ban would be an undue burden and therefore unconstitutional. The issue before this Court, therefore, is whether, in Ohio, there are safe and available alternatives to the D&X procedure, which is typically performed during the twentieth to twenty-fourth weeks of pregnancy, such that there would be no undue burden if the procedure were banned.
The evidence suggests that induction methods were more frequently used in the 1970s, when the D&E procedure was just being developed. Also, induction procedures are more often used by less skilled physicians (Id. at 22). Finally, they must be performed in a hospital environment, and so cannot be done on an outpatient basis.
There appear to be two advantages which induction methods have over the D&E procedure: they require less skill to perform, and they do not involve the placement of any sharp instruments into the uterus (Id. at 29).
One obvious disadvantage of the induction method is that it results in labor, with all of its potential complications. These may include: fear, lack of control, mild to severe abdominal pain, nausea, and diarrhea, and extreme discomfort, over a lengthy period of time. The substances used, especially saline, may result in mild side effects -- vomiting, diarrhea, and high fever -- or in severe maternal complications. The fluids which are introduced may be forced into the maternal circulation, leading either to amniotic fluid embolus, which is generally fatal, or to disseminated intravascular coagulation (DIC), in which the clotting factors in the blood are used up, and bleeding cannot be stopped. Induction methods can also thin out the lower uterus to the point that the fetus comes through the uterine wall instead of through the vagina (Tr., 12/6, at 25-26). In addition, induction methods cannot be performed on women who have an active pelvic infection, or who are carrying dead fetuses (Id. at 26), and probably should not be performed on women who had previously had Cesarean sections, given the possibility of rupturing the uterine scar (Id. at 28). Finally, induction methods may be ineffective in cases where the fetus is lying with its head on one side and its feet on the other, because there is no pressure against the cervix (Id. at 27), and the fetus will not be expelled from the uterus.
First, the D&X procedure is relatively new -- it apparently was first described in l992 -- and it will take time for other practitioners to begin using and evaluating the procedure. Second, given the security concerns which must be considered by doctors who perform abortions, physicians who use the D&X procedure may be understandably reluctant to publicly acknowledge that they use this procedure, and may be even more reluctant to participate in a study and publish the results. Finally, as was testified to by Dr. Mary Campbell, funding for studies of abortion methods was cut drastically in the early 1980s, and there have been no large-scale abortion studies since that time (Tr., 12/6, at 74, 76). Given these obstacles to performing and publishing statistically valid studies on new abortion methods, this Court is not persuaded that the absence of a study on D&X abortions in the medical literature means that the procedure has no benefits.23
Dr. Levatino, who has performed D&E but not D&X abortions, predicted that the D&X procedure would have greater complications than the induction methods, because there is an increased possibility of perforating the patient's uterus when the abortion is performed in the late second trimester (Tr., 12/7, at 198, 205). This testimony appears, however, to have been based less on his analysis of the specific procedure then on his estimate of the risks of performing late-term D&E abortions, generally. As noted earlier, the D&E protrude can be risky in the late-second trimester, because the fetus is larger and more difficult to dismember, and the use of forceps in the uterus becomes more dangerous. The D&X procedure mitigates this risk by delivering the fetus intact -- except for a decompression of the head after it has been placed next to the opening to the uterus -- and thus would not appear to bear an increased risk of uterine perforation. Although forceps are still used, their use appears to be minimized.
Dr. Giles testified that the procedure is not new, but is rather a resurrection of an obstetric method discarded in the 1960s, which was used to deliver dead fetuses, and known as craniotomy (Tr., 12/8, at 18-23). His criticisms of the D&X procedure on this ground are not persuasive. First, the reason for the abandonment of the craniotomy procedure -- which required the use of sharp instruments, and caused uterine lacerations and perforations -- does not appear to be relevant to the D&X procedure, which reduces the risk of uterine lacerations (in comparison to the D&E procedure) by delivering all but the head of the fetus intact, which is then decompressed by the use of scissors and suction. Second, unlike the situation in the 1960s, ultrasound can now be utilized to help to avoid injury when sharp instruments are introduced into the uterus.
Finally, in regard to the availability of the D&X procedure, it can be performed on an outpatient basis, and does not require hospitalization. Although the procedure requires three separate visits to the clinic, the insertion of laminaria on days one and two takes less than an hour (Tr., 12/5, at 22), and the D&X procedure itself, which is performed on the third day, requires a total time of less than two hours (Id.). At least three doctors in Ohio perform some variation of the D&X procedure: Plaintiff Haskell (Tr., 11/8, at 109-10); Dr. John Doe Number One (Tr., 12/5, at 43); and Dr. John Doe Number Two (Tr., 12/7, at 47-48).
This Court also finds that the D&X procedure appears to pose less of a risk to maternal health than the use of induction procedures, which require the woman to go through labor, pose additional risks resulting from the injection of fluids into the mother, and cannot be used for every woman needing an abortion.
Finally, the Court finds that the D&X procedure appears to pose less of a risk to maternal health than either a hysterotomy or a hysterectomy, both of which are major, traumatic surgeries.
Because the D&X procedure appears to have the potential of being a safer procedure than all other available abortion procedures, this Court holds that the Plaintiff has demonstrated a substantial likelihood of success of showing that the state is not constitutionally permitted to ban the procedure. If this abortion procedure, which appears to pose less of a risk to maternal health than any other alternative, were banned, and women were forced to use riskier and more deleterious abortion procedures, the ban could have the effect of placing a substantial obstacle in the path of women seeking pre-viability abortions, which would be an undue burden and thus unconstitutional under Casey.
Even if induction procedures were as safe as the D&X procedure -- and this Court does not find, on the evidence, that they are as safe -- the requirement that a pregnant woman be hospitalized in order to undergo an induction procedure may also have a negative impact on the practical availability of abortions for women seeking pre-viability abortions. First, hospitals may refuse to allow induction procedures on an elective basis,25
For both of these reasons -- because the D&X procedure appears to be the safest method of terminating a pregnancy in the late second trimester, and because the D&X procedure is more available than induction methods, which require the woman to be hospitalized -- this Court holds that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the D&X procedure is unconstitutional under Danforth and Casey.27
Defendants' argument is unpersuasive, for two reasons. First, the certainty of arrest and prosecution is certain to chill physicians from performing the D&X procedure, even where it is the least risky method of abortion. Second, even if there were no chilling effect, the challenged law restricts the availability of D&X procedures to situations where it is obviously and irrefutably the safest method. Given this Court's findings that the D&X procedure may be safer and more available than other methods of abortion, this would still amount to an undue burden.
In Casey, the Supreme Court recognized two specific interests which the state has in regulating abortions prior to viability. First, "to promote the State's profound interest in potential life throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and [these] will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion." 112 S.Ct. at 2821. Second, "the State may enact regulations to further the health or safety of a woman seeking an abortion." Id. Neither of these interests, however, justify regulations which impose an undue burden on the right to seek a pre-viability abortion.
Because Casey only specifically mentioned these two interests, Plaintiff argues that any other interest -- such as that of preventing unnecessary cruelty to the fetus during the abortion -- is neither proper nor legitimate. Defendants argue that the interest is justified by the "State's profound interest in potential life throughout pregnancy," and that it would be contrary to logic and common sense to hold that this interest is not legitimate. The State further argues that if it is permitted to impose regulations which prevent cruelty to animals, then surely, it should be permitted to impose regulations which prevent cruelty to fetuses.
Again, this appears to be an issue of first impression before this, or any, Court. To this Court's knowledge, no abortion regulation has heretofore been justified by an interest in preventing unnecessary cruelty to the fetus. Moreover, this Court has no precedent to directly guide and inform its decision. There are, however, a few observations which help its analysis.
First, and foremost, this Court is mindful of Casey's strong recognition of the State's interest in potential life throughout the pregnancy. Second, although Casey only specifically delineated a few interests which the state has which justify regulation, nowhere in the opinion did the Court hold that no other state interest could justify regulations on pre-viability abortions. These observations, taken together, suggest that the state may impose regulations which vindicate its interest in the potential life of the fetus, based on interests other than those of persuading the woman to choose childbirth over abortion, or of protecting her heaIth and safety. Finally, the Court agrees with Defendants that it would be contrary to all logic and common sense, to hold that a state has no interest in preventing unnecessary cruelty to fetuses.
Assuming arguendo that the interest is legitimate, however, Casey is clear in holding that regulations enacted to further legitimate interests may not impose an undue burden on the right to seek a pre-viability abortion. Because Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on D&X abortions would impose an undue burden on the right, the legitimacy of the state's interest, no matter how legitimate or compelling, will, in all likelihood, once the merits of this litigation are determined, not save the ban from being unconstitutional.
Although the Court need not, at this point, address the testimony concerning the cruelty of the D&X procedure -- given that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the procedure is an undue burden and therefore is unconstitutional -- it is in the public interest to discuss the issue of cruelty. Therefore, this Court now turns to the relevant testimony.
Defendants called two experts to testify to the pain felt by the fetus during the D&X procedure.28
Dr. Joseph Conomy is a professor of clinical neurology at Case Western Reserve University, and is involved in the issue of medical ethics. He has studied the formation of the nervous system, and has worked on problems of the nervous system in fetuses and newborn infants.
In regard to fetal neurology, Dr. Conomy testified that, at the age of twenty to twenty-four weeks, many of the neural pathways which transmit pain to the brain are established, although the cortical projections from the lower level of the brain, the thalamus, are not yet established (Tr., 11/13; at 301). It is his opinion, therefore, that pain can be transmitted to at least the lower levels of the brain at that age (Id. at 302).
Dr. Conomy further testified that fetuses at the age of twenty to twenty-four weeks respond to nurturing stimuli, such as stroking the face, and noxious stimuli, such as pricking the skin, in different ways. Nurturing stimuli may cause a turning of the head, or pursing of the lips. Noxious stimuli will cause flexion and withdrawal (Id. at 300-302).
In reference to the D&X procedure, Dr. Conomy testified that it is his opinion that the procedure would prompt an unpleasurable stimulus to the fetus (Id. at 303). He also testified, however, that it would be "speculative" to try to "get inside the mind of a fetus, if there is one." (Id. at 301). Indeed, Dr. Conomy specifically refused to testify that a fetus can feel pain: although the fetus does "exhibit a clasc of responses that are characteristic of reflex response to obnoxious stimulation. ... feeling is very much beyond that because it involves perception, designation, locality, and things that are far too speculative for me to assure you that a fetus feels." (Id. at 305). Thus, although Dr. Conomy testified that a fetus at the age of twenty to twenty-four weeks may physically respond to noxious stimuli, he did not testify that the fetus has a conscious, mindful awareness of the pain it is experiencing.
Finally, Dr. Conomy testified that a fetus who is aborted by the D&E procedure, which involves dismemberment, might experience as much discomfort as a fetus who is aborted by the D&X procedure (Id. at 307).
Defendants' second expert was Dr. Robert White, who is a professor of neurosurgery at Case Western Reserve University. He has been the director of a brain research laboratory for thirty years, but has not specifically studied pain or its mechanisms.
In his testimony, Dr. White defined "pain" as a physiological, or perhaps behavioral, expression resulting from the appreciation of a noxious stimulus (Tr., 12/7, at 119-120).
In particular reference to the mechanics of the D&X procedure, Dr. White testified that two maneuvers would cause pain to the fetus. First, the act of compressing, rotating, and pulling the fetus down into the birth canal -- which also occurs during childbirth, at a more advanced age-must cause pain to the fetus (Id. at 131). Second, it was his opinion that the act of making an incision in the back of the neck and enlarging it -- without, apparently, cutting any part of the nervous system -- and then inserting a suction tube and evacuating the skull contents, must be painful (Id.).
Initially, Dr. White testified that it was his opinion that the fetus may feel pain during the D&X procedure; this answer was stricken from the record because it did not indicate an opinion within reasonable medical probability (Id. at 110-11). Later in his testimony, and after viewing a videotape of the procedure being performed on a dead fetus, Dr. White amended his opinion to state that the fetus can feel pain (Id. at 124). He based this opinion partly on the small size of the infant, which means that pain travels a much shorter distance than in adults, and partly on his opinion that chemicals in the brain which suppress pain are not established in fetuses, whereas, chemicals which reinforce pain are so established (Id. at 126-27). He also disputed Dr. Conomy's opinion that the cortical projections from the thalamus are not established at twenty-four weeks (Id. at 158-59).
In regard to whether a fetus at twenty-four weeks can consciously experience pain, Dr. White noted that the problem is "what we consider consciousness." (Id. at 162). He did admit, however, that he did not know "at what particular stage in the gestational [age] ... that an infant is conscious." (Id. at 163).
Finally, Dr. White testified that the D&E procedure would also be painful for the fetus, although the nervous system is more formed at twenty to twenty-four weeks, when the D&E procedure is used on a less frequent basis (Id. at 164).
Based on this testimony, this Court concludes the following: first, there is evidence that a fetus of age twenty to twenty-four weeks will react, physiologically, to noxious stimuli. Second, the evidence is inconclusive as to whether the pain impulses are transmitted to the higher levels of the brain at that age. Third, the evidence is inconclusive as to whether the D&X procedure is more painful than the D&E procedure.29
Assuming arguendo that the fetus does feel pain, one factor which suggests that the D&E procedure might be more painful than the D&X procedure -- the physical act of dismembering the fetus in the D&E, as opposed to a relatively quick incision and suctioning process in the D&X -- is balanced by the younger age of the fetus during the D&E procedure, which is performed earlier in the second trimester, when the nervous system is not as fully developed.
Assuming that the D&X procedure is "cruel," however, this Court fails to see how it is more cruel than the D&E procedure -- which involves the dismemberment of the fetus and, sometimes, the crushing of its skull -- or how it is always cruel, given that the fetus may already be dead (see Defendant's Exhibit R). The State's banning of the D&X procedure thus raises a question of whether its purpose in so doing was to prevent unnecssary cruelty, as stated, or, rather, was to place a significant obstacle in the path of a woman seeking a pre-viability abortion in the second trimester. Casey, 112 S.Ct. at 2820. Cf. Danforth, 428 U.S. at 78 (discussing the anomaly inherent in [the ban on saline amniocentisis] when it proscribes the use of saline but does not prohibit techniques that are many times more likely to result in maternal death").
Finally, and most importantly, neither Dr. Conomy nor Dr. White testified that a fetus at age twenty to twenty-four weeks experiences a conscious awareness of pain. Although Defendants have suggested that there needn't be a conscious awareness of pain in order to conclude that the D&X procedure is "cruel," a finding that there is such a conscious awareness of pain on the part of the fetus does appear to be relevant to this Court, so, too, is the inability of the Court to make such a finding. Some might argue that abortion is always cruel because it ends in the death of the fetus; this, however, does not provide a basis for distinguishing between different methods of abortion. If the fetus does not perceive or experience the pain, then it is hard to see how the D&X procedure could be any more cruel than any other abortion method.
This Court recognizes that the subject of when a fetus attains consciousness is a matter of great debate, and that reasonable minds can differ on the issue. As the Supreme Court stated in Casey:
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.
112 S.Ct. at 2806. Until medical science advances to a point at which the determination of when a fetus becomes "consciousN can be made within a reasonable degree of certainty, neither doctors nor judges nor legislators can definitively state when an abertion proc-dure becomes zcruel, n in the sense of when the f~tu- becomes aware of pain. That judgment must be made by each indisldual member of society. Given that there is no reliable evidence that the D&X procedure is more cruel than other methods of abortion, this Court is unable to conclude that the ban on the use of the D&X procedure serves the stated interest of preventing unnecessary cruelty to the fetus.30
This conclusion does not, however, mean that the state cannot regulate the D&X procedure, short of an absolute ban. As discussed above, Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the D&X procedure is unconstitutional, because it imposes an undue burden on the right to seek a pre-viability abortion, and because the definition of D&X is vague. Assuming, however, that the fetus is conscious of the pain involved in the D&X procedure, it appears to this Court that the state could still seek to vindicate its asserted interest in preventing arguably unnecessary cruelty to the fetus, by regulating the procedure without banning it outright.
Although the testimony on this issue was not conclusive, one such possible regulation may require the physician to cut the umbilical cord prior to making an incision in the base of the skull, and to wait until the fetus dies as a result. Another possible regulation might require the use of local or general anesthetic, on the fetus or the mother. By use of such regulations, states could prevent arguably unnecessary cruelty in the abortion procedure, without taking away the right to seek a pre-viability abortion. In enacting any regulation on the D&X procedure, however, Stateas must bear in mind that they cannot reduce either the safety or the availability of the procedure. Such an effect would render the regulation unconstitutional under both Danforth and Casey.
House Bill 135 bans the performance of all post-viability abortions, unless:
(1) the physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or [medically necessary to prevent] a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman, [or]O.R.C. § 2919.17(A)(1-2). The statute defines a serious risk of the substantial and irreversible impairment of a major bodily function as follows:(2) the physician determines, in good faith and in the exercise of reasonable medical judgment, after making a determination relative to the viability of the unborn human in conformity with [§ 2919.18(A)], that the unborn human is not viable.
[A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) pre-eclampsia; (2) inevitable abortion; (3) prematurely ruptured membrane; (4) diabetes; (5) multiple sclerosis.O.R.C. § 2919.16(J). This definition appears to limit the legality of post-viability abortions to situations where an abortion is required to preserve the woman's physical health, as opposed to her emotional or psychological health.
If the first exception applies (the abortion is medically necessary), the physician must conform with a number of requirements governing the performance of the abortion, unless a medical emergency exists. The statute sets forth five specific conditions which must be satisfied:
(a) the physician who performs ... the abortion certifies in writing that that physician has determined, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.O.R.C. § 2919.17(B)(l)(a-e). These requirements may be summarized as follows: (1) the certification requirement, (2) the second physician concurrence requirement, (3) the neonatal facility requirement, (4) the choice of method requirement, and (5) the second physician attendance requirement.(b) the determination of [that] physician ... is concurred in by at least one other physician who certifies in writing that the concurring physician has determined, in good faith, in the exercise of reasonable medical judgment, and following a review of the available medical records of and any available tests pertaining to the pregnant woman, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.
(c) the abortion is performed ... in a health care facility that has or has access to appropriate neonatal services for premature infants.
(d) the physician ... terminate[s] the pregnancy in the manner that provides the best opportunity for the unborn human to survive, unless that physician determines, in good faith and in the exercise of reasonable medical judgment, that the termination of the pregnancy in that manner poses a significantly greater risk of the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion.
(e) the physician ... has arranged for the attendance in the same room in which the abortion is to be performed ... of at least one other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn human immediately upon the unborn human's complete expulsion or extraction from the pregnant woman.
In the event of a medical emergency, some or all of these requirerents may be waived. The statute defines a medical emergency as:
[A] condition that a pregnant woman's physician determines, in good faith and in the exercise of reasonable vedical judgment, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create.O.R.C. § 2919.16(F). If a medical emergency exists, and is such that the physician cannot comply with one or more of the conditions, the physician may perforu the abortion without fulfilling those statutory requirements.
The statute also creates a rebuttable presumption of viability at twenty-four weeks of gestational age. O.R.C. § 2919.17(C). The statute defines gestational age as:
[T]he age of an unborn human as calculated from the first day of the last menstrual period of a pregnant woman.O.R.C. § 2919.16(B).
A person who violates any of the above provisions is guilty of the crime of terminating a human pregnancy after viability, a fourth-degree felony. O.R.C. § 2919.17(D). In addition, that person may be civilly liable for compensatory and punitive damages. O.R.C. § 2307.52(B).
Plaintiffs have challenged seven separate provisions of this ban: (1) the determination of non-viability, (2) the definition of serious risk of the substantial and irreversible impairment of a major bodily function, (3) the definition of medical emergency, (4) the second physician concurrence requirement, (5) the choice of method requirement, (6) the second physician attendance requirement, and (7) the presumption of viability, including the statutory definition of gestational age. This Court will consider each of these challenges separately.
[T]he stage of development of a human fetus at which in the determination of a phyaician, based on the particular facts of a woman's pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support.O.R.C. § 2919.16(L) (emphasis added). This definition appears to allow the physician to rely on his own best clinical judgment in determining whether a fetus is viable.
The statute directs, however, that the physician cannot perfore a late-term abortion unless the fetus is non-viable, as determined in the following manner:
[T]he physician determines, in good faith and in the exercise of reasonable medical judgment, that the unborn human is not viable, and the physician makes that determination after performing a medical examination of the pregnant woman and after performing or causing the performing of gestational age, weight, lung maturity, or other tests of the unborn human that a reasonable physician making a determination as to whether an unborn human is or is not viable would perform or cause to be performed.O.R.C. § 2919.18(A)(1) (emphasis added). Under this provision, it appears that the physician cannot rely solely on his or her own best clinical judgment in determining whether a fetus is viable; instead, that determination must be objectively reasonable as well, that is, reasonable to other physicians, as well as to the physician making the detervination.31
Second, the term "reasonable," as it is used in the law generally, almost always incorporates an objective standard. The term "reasonable belief", for example, is only used to indicate both that the actor himself holds a belief, and that a reasonable man would hold that belief under the same cicumstances. Black's Law Dictionary 874 (6th ed. 1991). The term "reasonable care" mens "that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances." Id. at 875. The term "reasonable cause" refers to the "basis for arrest without warrant, [with] such state of facts as would lead a man of ordinary care and prudence to believe ... that the person sought to be arrested is guilty of committing a crime." Id. These examples, which are not exhaustive, demonstrate that the term "reasonable" generally indicates a requirement that the action be reasonable to others. Absent a clear statutory intent to the contray , this Court must construe the term "in the exercise of reasonable medical judgement" as incorporating an objective standard.
Plaintiff argues that because one provision (the definition of "viable") suggests that a viability determination may be made based on a physician's own best clinical judgment, whereas another provision (the determination of non-viability) requires that determination to be reasonable to other physicians as well, the statute is unclear as to what standard will be applied, and, thus, is unconstitutionally vague. This Court agrees that the quoted provisions of the statute set forth different standards for judging the legality of the physician's determination, and, thus, that Plaintiff has demonstrated a substantial likelihood of showing that the determination of non-viability, as required to satisfy one exception to the post-viability ban, at O.R.C. § 2919.17(A)(2), is unconstitutionally vague, because it fails to provide the physician with fair warning of what legal standard will be applied, and, therefore, of what conduct will incur criminal and civil liability.32
[A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) pre-eclampsia; (2) inevitable abortion; (3) prematurely ruptured membrane; (4) diabetes; (5) multiple sclerosis.O.R.C. S 2919.16(J). This definition appears to limit the legality of post-viability abortions to situations where an abortion is required to preserve the woman' s physical health.
Plaintiff argues that this defihition is too narrow, and does not allow the physician to consider other factors which relate to the woman's health, including psychological and emotional factors. Plaintiff cites to a Supreme Court abortion case decided before abortion was legalized in Roe v. Wade, which discussed a statute that outlawed abortions except where a doctor determined that the abortion was necessary to preserve the mother's life or health:
We agree ... that the medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.Doe v. Bolton, 410 U.S. 179, 192 (1973). Plaintiff argues that House Bill 135 impermissibly limits the physician's discretion to determine whether an abortion is necessary to preserve the woman's health, because it limits the physician's consideration to medical factors relating to physical health.33
Defendant, however, cites to the Supreme Court's more recent decision in Casey, which upheld a similar definition of serious risk of the substantial and irreversible impairment of bodlly function, that also limited the physician's determination to consideration of medical factors. 112 S.Ct. at 2822. Defendant argues that the Supreme Court' s decision in Casey governs here.
Plaintiff responds by pointing out that the challenged definition in Casey did not have the effect of preventing the performance of an abortion, altogether; instead, it merely allowed for an exception to the informed consent requirement, the 24-hour waiting period, and the parental consent provision. Thus, Plaintiff argues, the application of this definition to the challenged ban on post-viability abortions will have a more severe impact than it did in Casey, because it will completely prevent, and not merely delay, abortions to preserve the mother's overall health.
The testimony of Jane Doe Number Two is illustrative of
how severe this impact vay be. This witness testified to the
pain and suffering she and her husband experienced when they
discovered, during her twenty-second week of pregnancy, that
their baby lacked a spine, had malfunctioning kidneys, and a
clubbed foot (Tr., 12/6, at 151-53). A neonatal specialist
advised then that after the baby was born, it would be
paralyzed, at least from the waist down, would require
immediate kidney dialysis, would need major surgery within
thirty minutes of birth, and would probably be hydrocephalic
(have water on the brain) (Id. at l54). Before this
discovery, the witness testified that all indications pointed
to an uneventful pregnancy (
Jane Doe Number Two and her husband decided to terminate
the pregnancy, rather than carry the baby to term. She
explained their decision as follows:
I kept thinking, What did I do? You know, I
didn't smoke. I didn't drink. I was eating right.
This has to be one of our fault's. It has to be
somebody's fault in some way that we're going
through this....
I couldn't imagine mentally going to term.
When I found this out, it was on a Friday, and I had
my [abortion] procedure scheduled for Tuesday; and
just, during that time, all we did was cry, we beat
ourselves up about what could we have done
differently, when there was nothing we could have
done.
I just -- if I had to carry that baby to term,
I am not sure I would have chosen to have children
again.
Under House Bill 135, it seems probable that a physician
would have been forced to determine that Jane Doe Number Two's
fetus had a realistic possibility of living after birth with
life-sustaining support, although its prognosis was dismal.
Therefore, if this Act had been in effect, Jane Doe Number
Two
would have been forced to carry her baby to term, because
there was no threat to her physical health, even though it
seems clear that this would have been very damaging to her
mental and emotional health.
It is also possible that a pregnant woman who is faced
with such a law, and who is carrying a fetus with severe
anomalies, might feel forced to abort her pregnancy before her
twenty-fourth week of pregnancy merely in order to avoid the
ban, even if she would prefer to try some measure, such as
fetal surgery, to mitigate or cure the anomaly.
This possibility is suggested by the testimony of another
of Dr. Haskell's patients, Jane Doe Number One, who
terminated
her most recent pregnancy on November 30, 1995. She first
learned that there was a problem in her sixteenth week of
pregnancy, when it was discovered that her baby had a bladder
obstruction and could not urinate (Tr., 12/5, at 16-17). Once
it was determined that the kidneys were functioning and that
the baby was making good urine, this witness traveled to
Detroit and underwent surgery to alleviate the bladder
obstruction, in her eighteenth week (Id. at 17-18). That
surgery was successful; however, the baby's ureter did not
function properly, and the baby's right kidney failed as a
consequence (Id.).
In her twentieth week of pregnancy, Jane Doe Number One
traveled back to Detroit, and learned that her baby suffered
from "prune belly syndrome." (Id. at 19). After reading about
the syndrome and consulting with their physician, the witness
and her husband learned that their baby only had a twenty
percent chance of survival at birth, that he would need a
kidney transplant, and that he would probably die before the
age of two (Id. at 19-20).
Jane Doe Number one was now in her twenty-second week of
pregnancy. She and her husband consulted with their own
doctor and a pediatric urologist, and then decided to
terminate the pregnancy. She explained why they decided to
have an abortion:
The testimony of these two witnesses demonstrates the
problems with House Bill 135's narrow definition of "serious
risk of the substantial and irreversible impairment of a major
bodily function," and its limitation to strictly medical
factors. First, as in the case of Jane Doe Number Two, this
definition will force women to carry babies to term which are
likely to die before birth or immediately thereafter, or which
have a prognosis so poor that its parents feel it would be
best to terminate the pregnancy. This result could have a
negative impact on the mental and emotional health of
the pregnant woman, as well as on the mental and emotional
health of the baby's father. Second, as in the case of Jane
Doe Number One, the possibility of being required to carry a
severely deformed fetus to term might prompt pregnant women
who are carrying fetuses with severe anomalies to abort before
their twenty-fourth week, simply in order to avoid the ban,
even if they would prefer first to attempt some measures to
improve their baby's chances of survival.
Finally, although there was no direct testimony from a
victim of rape or incest, Dr. Hillard did testify about an
eleven-year-old victim of incest, whose pregnancy was not
diagnosed until approximately her twenty-second week, at which
time legal charges were brought against her father (Tr., 11/8,
at 52). The girl and her mother then requested that the
pregnancy be terminated, and Dr. Hillard performed the
procedure. Under House Bill 135, Dr. Hillard would have had
to perform viability testing before terminating the pregnancy;
if the fetus had been adjudged to be viable, and there were no
physical threat to the girl's health, she would have been
forced to carry her pregnancy to term. In this Court's view,
it is inconceivable that the act of being forced to bear her
...
father's child, could have failed to have a severe, negative,
and lasting impact on this girl's emotional and psychological
health.
The issue of whether a state may ban post-viability
abortions except where necessary to preserve the woman's
physical health, even if carrying the baby to term would cause
her to suffer severe mental or emotional harm, appears to be
an issue of first impression before this, or any, Court.
Under the authority of
Doe v. Bolton,
discussed above,
this Court holds that a state may not constitutionally limit
the provision of abortions only to those situations in which a
pregnant woman's physical health is threatened -- because this
impermissibly limits the physician's discretion to determine
what measures are necessary to preserve her health.34
Before turning to the Act itself, it is advisable to
define the meaning of the terms "scienter" and "mens rea", and
to describe their importance in the law. The term "scienter"
means "knowingly" and is "frequently used to signify the
defendant's guilty knowledge." Black's Law Dictionary 1207
(5th ed. 1979). The term "mens rea" refers to a "guilty mind,
a guilty or wrongful purpose, a criminal intent." Id. at 889.
Both of these terms require that a defendant have some degree
of guilty knowledge, or some degree of blameworthiness or
culpability, in order to be criminally liable. Statutes which
do not contain such a requirement, and which impose criminal
liability even if the defendant did not knowingly violate the
law, or did not have a culpable state of mind, are known as
"strict liability" statutes.
There is a strong presumption in our law favoring a mens
rea or scienter requirement in statutes which create criminal
liability. See Staples v. United States, 114 S.Ct. 1793,
1797 (1994) ("we must construe the statute in light of the
background rules of common law ... in which the requirement of
some mens rea for a crime is firmly embedded"); United States
v. United States Gypsum Co., 438 US 422, 437-38 (1978) ("the
limited circumstances in which Congress has Posted 9 Sep 2000.
Court has recognized [strict liability] offenses ... attest to
their generally disfavored status"); Dennis v. United States,
341 U.S. 494, 500 (1951) ("the existence of a mens rea is the
rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence"). The rationale for
this presumption was eloquently set forth by Justice Jackson:
The unanimity with which [courts] have adhered
to the central thought that wrongdoing must be
conscious to be criminal is emphasized by the
variety, disparity and confusion of their
definitions of the requisite but elusive mental
element... [including] such terms as "felonious
intent," "criminal intent," "malice aforethought,"
"guilty knowledge," "fraudulent intent,"
"willfulness," "scienter," to denote guilty
knowledge, or "mens rea," to signify an evil purpose
or mental culpability. By use or combination of
these various tokens, they have sought to protect
those who were not blameworthy in mind from
conviction of infamous common-law crimes.
The medical emergency exception, which is defined in Ohio
Revised Code section 2919.16(F), is employed in the ban on
post-viability abortions. This Court concludes that because,
under the definition of medical emergency, a physician may not
rely alone on his own good-faith clinical judgment in
determining that a medical emergency exists, and because both
the medical emergency definition and provisions imposing
criminal liability for violations of section 2919.17 lack
scienter requirements, Plaintiff has demonstrated a
substantial likelihood of successful showing that the medical
emergency definition in the Act is unconstitutional.
House Bill 135 defines a medical emergency as follows:
Although this Court is unaware of any case which has
considered the constitutionality of a similar provision, there
are three cases which this Court finds to be relevant. In
Colautti v. Franklin, 439 U.S. 379, 396 (1979), the Supreme
Court held unconstitutional a Pennsylvania provision which
required physicians to determine non-viability before
performing an abortion. If a physician failed to abide by
specific requirements where there was "sufficient reason" to
believe that the fetus "may be viable," he was civilly and
criminally liable. Id. at 394. No language in the statute
indicated that liability was to be predicated on a culpable
state of mind. Id. at 380, n.l. The determination of
non-viability was to be based on the physician's "experience,
judgment, or professional competence." Id. at 380 n.1.
In concluding that the provision did not contain a
scienter requirement, the Court found that neither
Pennsylvania criminal law nor the Act itself "requires that
the physician be culpable in failing to find sufficient reason
to believe that the fetus may be viable." Id. at 394-95. The
Court also noted that the subjective standard in the Act which
is "keyed to the physician's individual skills and abilities
... is different from a requirement that the physician be
culpable or blameworthy for his performance...." Id. at 395
n.12. The Supreme Court then held the provision void for
vagueness due to its lack of a mens rea requirement:
The perils of strict criminal liability are
particularly acute here because of the uncertainty
of the viability determination itself. As the
record in this case indicates, a physician
determines whether or not a fetus is viable after
considering a number of variables .... In the face
of these uncertainties, it is not unlikely that
experts will disagree .... The prospect of such
disagreement, in conjunction with a statute imposing
strict civil and criminal liability for an erroneous
determination of viability, could have a profound
chilling effect on the willingness of physicians to
perform abortions ... in the manner indicated by
their best medical judgment.
Colautti is directly applicable to this case, insofar as
the determination of whether a medical emergency exists is
similarly fraught with uncertainty, and is therefore equally
susceptible to being disputed by experts at a later date,
thereby resulting in criminal liability even where the
physician acted in good faith. As noted, the medical
emergency exception in House Bill 135 contains both a
subjective and an objective requirement. Because both of
these requirements must be met in order for the physician to
avoid liability, and because there is no scienter requirement
in this provision, a physician who performs a post-viability
abortion under the medical emergency exception may be held
liable even if he or she acted in good faith, as long as the
physician was later determined, in the eyes of others, using
20/20 hindsight, to have acted unreasonably. Plaintiffs have
demonstrated a substantial likelihood of success of showing
that, given the short amount of time in which every decision
regarding a medical emergency must be made, and given the
varying, highly individual factors which must be considered
for each case, it is not unlikely that even where a physician
acts in good faith, experts may later disagree as to the
existence, immediacy, or extent of a medical emergency. As in
Colautti, this prospect of disagreement, combined with the
strict civil and criminal liability for even good-faith
determinations, could chill physicians from performing
post-viability abortions even where it is their best medical
judgment that an abortion is required to preserve the life or
health of a patient.
In so finding, this Court acknowledges that the "undue
burden" analysis in
Planned Parenthood v. Casey,
112 S.Ct.
2791 (1992), applied only to pre-viability abortions, and
therefore does not apply to this provision governing the
performance of post-viability abortions. Although it may seem
that this would render any "chilling effect" irrelevant, this
is manifestly not the case. In Casey, the Supreme Court
recognized that the State's interest in the life of the fetus
allows it to regulate or proscribe abortions after viability,
except "where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother." 112 S.Ct. at 2821. Such is the situation here. If
physicians were chilled from acting according to their own
best medical judgment when determining whether a
post-viability abortion is necessary to save the life of the
mother, and were forced to resolve even the smallest doubt in
favor of a refusal to act, this could have a profound,
negative impact on the State's interest in preserving the life
and health of the mother, and on the pregnant woman's interest
in her own life and health. It is this Court's belief that
such a situation would offend the Constitution to an even
greater degree than those situations in which a chilling
effect precludes the performance of elective pre-viability
abortions, which are not necessary to preserve the mother's
life or health. Therefore, the analysis in Colautti is
applicable to this case.
A more recent case which addresses this issue is Planned
Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th
Cir. 1995). In that case, the Court invalidated provisions
regarding the performance of abortions which Posted 9 Sep 2000.
criminal liability for violations of South Dakota's
parental-notice, mandatory-information, and medical-emergency
requirements. The medical emergency provision in that case
did not require the physician either to act in good faith, or
to apply reasonable medical judgment; instead, it merely
provided:
[34-23A-10.2] A physician who violates [the medical
emergency provision] is guilty of a Class 2
misdemeanor.
The District Court found that the provision creating
criminal liability lacked a mens rea requirement, which "made
it unconstitutionally vague, creating a 'chilling effect' so
that physicians, who cannot guess the standard under which the
courts will judge their conduct, would choose not to act at
all." Id. at 1463. The District Court also invalidated the
civil liability provision on similar grounds, after concluding
that strict civil liability Posted 9 Sep 2000.
made it unlikely that any physician would perform abortions.
Id.
The Eighth Circuit affirmed the lower court's decision,
due to the statute's lack of a scienter requirement. It
agreed that the provision creating criminal liability would
create an undue burden by chilling the willingness of
physicians to perform abortions. Id. at 1465. It further
agreed that the provision creating civil liability -- which did
not require a finding that the defendant acted willfully,
wantonly, or maliciously, before awarding punitive damages was
invalid:
As noted, the medical emergency exception in House Bill
135 could impose civil and criminal liability even where the
physician acted in good faith. Plaintiffs have demonstrated a
substantial likelihood of success of showing that, given the
fact that reasonable physicians might disagree as to the
existence or immediacy of a medical emergency, this provision
would create liability even for good-faith, reasonable
mistakes. As in Miller, this result would chill the
willingness of physicians to perform post-viability abortions
even where they are necessary, in a medical emergency, to
preserve the life and health of the mother.
A third case which supports this Court's findings is the
Eighth Circuit's decision to uphold the North Dakota
definition of a medical emergency, because it allowed the
physician to rely on his or her own "best clinical judgment"
in determining whether an emergency existed, and because the
statute contained a scienter requirement. Fargo Women's
Health Org. v. Schafer, 18 F.3d 526,8 534 (8th Cir. 1994) ("It
is the exercise of clinical judgment that saves the statute
from vagueness ... In addition, the North Dakota Act contains a
scienter requirement that we believe prevents a finding of
vagueness."). Accord Barnes v. Moore, 970 F.2d 12, 15 (5th
Cir. 1992) (upholding medical emergency definition which
allowed physician to rely on "best clinical judgment" and
contained scienter requirement for imposition of criminal
liability). The statute at issue in Schafer defined a
"medical emergency" as:
In its earlier opinion which explained its Temporary
Restraining Order, this Court incorrectly stated that Ohio law
does not allow courts to import a scienter requirement into
criminal statutes that are silent on the issue of whether
intent is a required element, relying on State v. Curry, 43
Ohio St.2d 66; 330 N.E.2d 720 (Ohio 1975) ("If the statute is
silent on the question of intent, intent is not an element of
the crime."). Plaintiff correctly pointed out that an Ohio
law enacted immediately prior to Curry (although inapplicable
to the facts in Curry, which arose prior to the effective date
of the statute) might, however, allow this Court to import a
scienter requirement into the medical emergency definition,
even though that definition does not include any intent
requirement. Section 2901.21(B) of the Ohio Revised Code
provides that:
When the section defining an offense does not
specify any degree of culpability, and plainly
indicates a purpose to impose strict criminal
liability for the conduct described in such section,
then culpability is not required for a person to be
guilty of the offense. When the section neither
specifies culpability nor plainly indicates a
purpose to impose strict liability, recklessness is
sufficient culpability to commit the offense.
Thus, if the statute does not plainly indicate an intent to
impose strict liability, Ohio courts could import a scienter
requirement of recklessness into the statute.
For two reasons, it is this Court's opinion that Ohio
courts would decline to import a recklessness standard into
the statute's requirement that a physician act "in the
exercise of reasonable medical judgment" when determining
whether a medical emergency exists.
First, both sections of the statute which apply the
medical emergency definition -- the ban on post-viability
abortions, and the viability testing requirement, discussed
infra -- plainly indicate an intention to impose strict
liability. Both of these sections state that "no person
shall" perform the proscribed acts, and fail to specify any
mental state. Ohio courts have held that similar laws which
lack culpable mental states, and contain the term "no person
shall...," plainly indicate an intention to impose strict
liability. State v. Cheraso, 43 Ohio App. 3d 221, 223; 540
N.E.2d 326 (Ohio 1988); Village of Bridgeport v. Bowen, 1995
Ohio App. LEXIS 3892, at *6 (Ohio Ct. App. 1995). In
addition, it is significant that although the post-viability
ban and the viability testing requirement lack scienter
requirements, the ban on use of the D&X procedure does contain
a scienter requirement.37
Even if this were not the case, however, Ohio courts
would be unable to import a recklessness requirement without,
in effect, rewriting the statute. This is because the
statute's standard of "reasonableness," which imposes criminal
liability if a physician acts unreasonably in determining that
a medical emergency exists, is a lower standard for incurring
criminal liability, from the perspective of the actor, than
the standard of "recklessness."38
In
Doe v. Bolton,
the Supreme Court struck down a Georgia
statute which required a physician to obtain confirmation of
his decision to perform an abortion, from two other doctors.
The Court reasoned that this requirement interfered with the
physician's clinical judgment and discretion:
Just finding out about this, mentally, it just
-- it crushed both of us. We were excited. We
wanted a baby very badly. We had prayed for a girl,
and I guess there was guilt involved because maybe
we didn't pray for [the baby to be] healthy. And
you felt selfish.
Id. at 155-56. Jane Doe Number Two terminated her pregnancy
by use of the D&X procedure, which was performed by Dr.
Haskell. She testified that it was important to her that the
fetus be intact, in order have an autopsy performed, and
thereby to determine whether a genetic defect had caused the
fetal anomalies (Id. at 158). The autopsy results indicated
that the defect was not genetic. She and her husband have
since had twin girls.
Because the prognosis was so poor. We had seen that
the left kidney had already become involved, and the
left ureter was dilated. So, we felt certain that
that kidney was going to fail, and we felt that the
baby was not going to survive.... It's terribly
agonizing to have a baby growing inside of you and
to feel him kick and to know that he won't live.
It's terrible.
Id. at 21. During her twenty-fourth week of pregnancy, Jane
Doe Number One received an abortion by use of the D&X
procedure, which was performed by Dr. Haskell. She compared
her experience with the D&X procedure to a previous abortion
by use of an induction procedure, by which she terminated
another pregnancy with severe fetal anomalies:
Physically ... there is no comparison. There was
minimal pain. I was alert the entire time, and the
procedure took, I would say, about an hour to an
hour and a half. Physically, the [D&X] procedure is
such -- it's terrible to say it was easier or
better, but the procedure was much easier to endure.
Id. at 22-23. She testified that it was definitely helpful to
have the D&X procedure available to her (Id. at 24).
In addition, Jane Doe Number One expressed concern that
House Bill 135 would have forced her to make a decision to
terminate the baby before she had the opportunity to do
everything possible to save it:
In our situation, the kidneys were involved, and ...
the baby's kidneys don't function until week sixteen
or eighteen. So, therefore, we would not have
known, or couldn't know, that there was a problem
and totally tried to help the baby and make him a
viable baby prior to that time. We'd have lost the
opportunity .... We wouldn't have had a choice, or
as many choices.
Id. Because her physical health would not have been
threatened by carrying the baby to term, Jane Doe Number One
would not, under House Bill 135, have been permitted to
terminate her pregnancy after her baby was deemed to be
viable.
34 In addition, as highlighted by Jane Doe Number One's testimony, an
exception which is limited only to preserving the pregnant woman's
physical health may run the risk of impermissibly limiting the
physician's
discretion -- and the mothers decision -- to take whatever steps may be
helpful (surgical or otherwise) in dealing with the specific problems
facing that unborn child.
Casey
is not dispositive of this issue, because it only considered
restrictions which delayed, but did not prevent, pre-viability
abortions; whereas, in this case, the statute will completely
prevent the performance of post-viability abortions that may,
in appropriate medical judgment, be necessary to preserve the
health of the pregnant woman. Under Casey, such a regulation
is clearly unconstitutional. 112 S.Ct. at 2821. Accordingly,
Plaintiff has demonstrated a substantial likelihood of success
of showing that the Act's definition of "serious risk of the
substantial and irreversible impairment of a major bodily
function," which is limited to strictly medical factors in
application to the ban on post-viability abortions, is
unconstitutional.35
35 As discussed in an earlier part of the opinion, this Court
concludes that it need not apply the Salerno standard to restrictions on
post-viability abortions, and that a pregnant woman may therefore succeed in a
facial challenge to such a regulation, even if she cannot show that
"no
set of circumstances exists under which the law would be valid."
4. Definition of "Medical Emergency"
In its explanation of its Temporary Restraining Order,
granted on November 13, 1995, this Court stated that Plaintiff
had demonstrated a substantial likelihood of success of
showing that the medical emergency definition was
unconstitutional on two grounds: first, it lacked a mens rea,
or scienter, requirement, and therefore was vague; second, it
did not allow physicians to rely solely on their own best
clinical judgment in determining that a medical emergency
existed, and so would chill physicians from exercising their
best medical judgment in deciding whether such an emergency
exists.36
36 On this point, it is significant that, as far as this Court is
aware,
no other court has been confronted with a medical emergency definition
that includes an objective requirement, and therefore does not permit
the
physician to rely only on his or her best clinical judgment.
This objective requirement seems certain to create a chilling
effect -- particularly given the lack of a scienter requirement. Even if
the statute had a scienter requirement, it might still have a chilling
effect, though to a lesser extent, given that the physician would
still be
subject to prosecution if other physicians disagreed with his or her
determination This Court therefore takes no position on whether an
objective requirement in a medical emergency definition, with or
without a
scienter requirement, is also void for vagueness.
Most of that discussion will be repeated here. In
addition, the Court will address the effect of O.R.C. §
2901.21, which could potentially allow this Court to import a
scienter requirement of "recklessness" into the medical
emergency definition.
The contention that an injury can amount to a
crime only when inflicted by intention is no
provincial or transient notion. It is as universal
and persistent in mature systems of law as belief in
freedom of the human will and a consequent ability
and duty of the normal individual to choose between
good and evil. A relation between some mental
element and punishment for a harmful act is almost
as instinctive as the child's familiar exculpatory
"But I didn't mean to" ....
Morissette v. United States, 342 U.S. 246, 250-52 (1952)
(emphasis added). Although the presumption favoring a mens
rea requirement is not as strong in statutes creating civil
liability, because House Bill 135 imposes civil and criminal
liability for the same actions, this Court must analyze the
provisions of the Act in light of the presumption of a mens
rea requirement. Having described the meaning and importance
of a "guilty knowledge" requirement in laws creating criminal
liability, this Court now turns to House Bill 135.
"Medical emergency" means a condition that a
pregnant woman's physician determines, in good faith
and in the exercise of reasonable medical judgment,
so complicates the woman's pregnancy as to
necessitate the immediate performance or inducement
of an abortion in order to prevent the death of the
pregnant woman or to avoid a serious risk of the
substantial and irreversible impairment of a major
bodily function of the pregnant woman that delay in
the performance or inducement of the abortion would
create.
O.R.C. § 2919.16(F) (emphasis added). This definition
includes subjective and objective requirements: the physician
must believe, himself, that the abortion is necessary, and his
belief must be objectively reasonable to other physicians.
Under this definition, a finding that the physician failed to
act in good faith is therefore not necessary to impose civil
and criminal liability. One could act in good faith and
according to one's own best medical judgment, and yet incur
civil and criminal liability if, after the fact, the exercise
of that medical judgment is determined by others to have been
not objectively reasonable. In other words, physicians need
not act willfully or recklessly in determining that a medical
emergency exists in order to incur criminal liability;
instead, they face liability even if they act in good faith,
and according to their own best (albeit, in the later opinion
of others, mistaken) medical judgment. Thus, this definition
appears to create strict liability, that is, liability even if
the physician acts in good faith, and without a culpable
mental state, to comply with the statute.
This Court has long recognized that the
constitutionality of a vague statutory standard is
closely related to whether that standard
incorporates a requirement of mens rea. Because of
the absence of a scienter requirement in the
provision directing the physician to determine
whether the fetus is or may be viable, the statute
is little more than a 'trap for those who act in
good faith.'
Id. at 395-96 (citations omitted) (emphasis added).
If a medical emergency compels the performance of an
abortion, the physician shall inform the female,
prior to the abortion if possible, of the medical
indications supporting his judgment that an abortion
is necessary to avert her death or that delay will
create serious risk of substantial and irreversible
impairment of a major bodily function.
Id. at 1455 n.4. Other provisions imposed civil and criminal
liability for violation of the medical emergency provision:
[§ 34-23A-22] If an abortion occurs which is not in
compliance with [the medical emergency provision],
the person upon whom such an abortion has been
performed ... may maintain an action against the
person who performed the abortion for ten thousand
dollars in punitive damages and treble whatever
actual damages the plaintiff may have sustained.
Id. at 1455-56 n.5-6. None of these provisions contained a
scienter or mens rea requirement on their face.
The potential civil liability for even good-faith,
reasonable mistakes is more than enough to chill the
willingness of physicians to perform abortions in
South Dakota. We therefore hold that [this
provision] is an undue burden on a woman's right to
choose whether to terminate her pre-viability
pregnancy.
Id. at 1467.
that condition which, on the basis of the
physician's best clinical judgment, so complicates a
pregnancy as to necessitate an immediate abortion to
avert the death of the mother or for which a twenty-four
hour delay will create grave peril of immediate
and irreversible loss of major bodily function.
Id. at 527, n.3 (emphasis added). Although the North Dakota
statute did not expressly contain a scienter requirement,
North Dakota criminal statutes which neither specify
culpability, nor explicitly provide that culpability is not
required, are construed as requiring a "willful" violation of
the statute, which is further defined as conduct done
"intentionally, knowingly, or recklessly." Id. at 534-35.
Thus, although the statute containing the medical emergency
definition was silent on the question of intent, the Eighth
Circuit imported a scienter requirement into the statute.
The medical emergency definition in House Bill 135
differs in two significant respects from the definition in
Schafer. First, the definition in House Bill 135 does not
allow the physician to rely solely on his or her own best,
good-faith medical judgment; instead, in addition to requiring
that he or she act in good faith, it requires the physician to
apply "reasonable medical judgment," which is an objective
requirement, subject to second-guessing by other physicians.
Second, the medical emergency provision creates strict
liability because it lacks a scienter requirement; in
addition, the provisions creating criminal liability for
violations of the ban on post-viability abortions, and of the
viability testing requirement -- both of which apply the medical
emergency exception -- lack scienter requirements. Therefore,
the medical emergency exception in House Bill 135 appears to
fail both of the tests upon which the North Dakota definition
was held to be valid.
37 O.R.C. § 2919 15(B) provides "No person shall knowingly perform
or attempt to perform a Dilation and Extraction procedure upon a pregnant
woman." (emphasis added). This demonstrates that the General Assembly
knows how to include a scienter requirement when that is its
intention.
Ohio courts have held if portions
of a statute specify a culpable mental state, whereas other
portions of the statute are silent as to the culpable mental
state, this is a plain indication of an intent to impose
strict liability in the latter sections or portions. State v.
Wac, 68 Ohio St. 2d 84, 87; 428 N.E.2d 428 (Ohio 1981); City
of Brecksville v. Marchetti, 1995 Ohio App. LEXIS 5164 (Ohio
Ct. App. 1995). Based on the foregoing, this Court finds that
the ban on post-viability abortions, and the viability testing
requirement, "plainly indicate" an intention to create strict
liability.
38 The difference between the two standards is most easily discernible
in the area of tort law. As an example, a physician who commits medical
malpractice may be found guilty of negligence if he acts unreasonably.
If
he acts recklessly, however, he may be found guilty of gross
negligence,
which is a more serious offense, and exposes the physician to a
greater
degree of liability. See, e.g., Gearhart v. Angeloff, 17 Ohio App. 2d
143; 244 N.E.2d 802 (Ohio 1969) ("Punitive damages may be recovered in
an
action for negligence where such negligence is so gross as to show a
reckless indifference to the rights and safety of other persons.")
(quoting syllabus).
If courts were to import a
recklessness requirement into the medical emergency definition
per the above-quoted section 2901.21(B), physicians would no
longer be liable if they acted unreasonably, i.e.,
negligently; instead, they would have to act recklessly in
order to be liable. This would contradict the legislature's
intent to create liability if a physician fails to act "in the
exercise of reasonable medical judgment," and would amount to
rewriting the statute, which courts may not do. Therefore,
this Court concludes that a scienter requirement may not be
imported into the definition of medical emergency.
On the basis of the foregoing, this Court concludes that
the Plaintiffs have shown a substantial likelihood of
demonstrating that the medical emergency exception in O.R.C. §
2919.16(F) is unconstitutional on two grounds: first, it
appears to be vague, because both the definition of medical
emergency, and the provisions imposing criminal (and civil)
liability for violations of the post-viability ban and the
viability testing requirement, lack scienter requirements;
second, the requirement that a physician's determination be
objectively reasonable -- that is, reasonable to other
physicians -- would appear to create a chilling effect that
would prevent physicians from performing post-viability
abortions where, in their own best judgment, an abortion is
necessary to preserve the life or health of the mother.5. Second Physician Concurrence Requirement
If it is determined that a post-viability abortion is
necessary to save the life of the mother, or to avoid a
serious risk of the substantial and irreversible impairment of
a major bodily function of the mother, the physician who
performs the abortion must comply with a number of conditions
governing the performance of the abortion. One of these
provisions requires that at least one other doctor concur, in
writing, as to the necessity of the abortion:
The determination of the physician who performs ...
the abortion ... is concurred in by at least one
other physician who certifies in writing that the
concurring physician has determined, in good faith,
in the exercise of reasonable medical judgment, and
following a review of the available medical records
of and any available tests [sic] results pertaining
to the pregnant woman, that the abortion is
necessary to prevent the death of the pregnant woman
or a serious risk of the substantial and
irreversible impairment of a major bodily function
of the pregnant woman.
O.R.C. § 2919.17(B)(l)(b). Plaintiff argues that this
requirement is unconstitutional because it undermines the
physician's judgment, imposes unnecessary and cumbersome
delays, and will be difficult to satisfy because few
physicians will be willing to concur, in writing, to an
abortion's necessity.39
39 The testimony by doctors who perform late-term abortions indicates
that
this may be a valid concern. Dr. John Doe Number One testified that
it
would be "virtually impossible" to find a second physician who would
be
willing to certify in writing that an abortion is necessary. "No one
wants
to involve themselves in the issue. I think ... whether it would be
fear
of personal harm, whether it would be fear of being ostracized, fear
of
picketing, who would want to involve themselves in this issue. It
would
be much easier to ignore it rather than to have your name on that
chart."
(Tr. , 12/5, at 51)
The statute's emphasis ... is on the attending
physician's 'best clinical judgment that an abortion
is necessary.' That should be sufficient. The
reasons for the presence of the confirmation step in
the statute are perhaps apparent, but they are
insufficient to withstand constitutional
challenge.... If a physician is licensed by the
State, he is recognized by the State as capable of
exercising acceptable clinical judgment. If he
fails in this, professional censure and deprivation
of his lic