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HOPE CLINIC v. RYAN

February 12, 1998

THE HOPE CLINIC, MARILYNN CONNERS FREDERIKSEN, M.D., NORMAN A. GINSBERG, M.D., CASSING HAMMOND, M.D., LAUREN STREICHER, M.D., DAVID ZBARAZ, M.D., et al., Plaintiffs,
v.
JAMES RYAN, Attorney General of the State of Illinois, in his official capacity; RICHARD DEVINE, State Attorney for Cook County, in his official capacity, Defendants.



The opinion of the court was delivered by: KOCORAS

 CHARLES P. KOCORAS, District Judge:

 Plaintiffs, the Hope Clinic and several doctors, bring this action against defendants, the Attorney General of the State of Illinois and the State's Attorney for Cook County, in their official capacities, pursuant to 42 U.S.C. §§ 1983 and 1988, and pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek declaratory and injunctive relief from this court to prevent House Bill 382 ("HB 382"), the Partial-Birth Abortion Ban Act (the "Act"), from taking effect on February 13, 1998. This Act imposes criminal and civil penalties against individuals who perform "partial-birth abortions". Plaintiffs challenge the constitutionality of the Act on the grounds that it is vague and unduly burdensome in violation of the Due Process Clause of the Fourteenth Amendment and that it endangers the health and life of women in violation of the Equal Protection Clause of the Fourteenth Amendment.

 This matter is before the court on the plaintiffs' motion for a preliminary and permanent injunction. Plaintiffs assert that an injunction is necessary to prevent irreparable harm to themselves and their patients from the statute's chilling effect on their ability to provide abortion services. Plaintiffs contend that they can demonstrate actual success on the merits of their claims by proving that the Act is facially vague and unduly burdensome on a woman's right to seek an abortion. In addition, they assert that injunctive relief will serve the public interest in that it will protect the constitutional rights of women.

 Twenty-five years after the Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, this country is still deeply divided over whether a woman should have the right to terminate her pregnancy and the extent of that right. Although the abortion issue divides people on moral, religious and political grounds, this court is bound to resolve questions on the extent of a woman's constitutional right to an abortion on legal grounds. The court has reviewed the parties' briefs, the affidavits and declarations from plaintiffs' experts, and Supreme Court authority. For the reasons set forth below, the court grants the plaintiffs' motion for a preliminary and permanent injunction. Before addressing the merits of the plaintiffs' motion, the court will identify the parties to this dispute, outline the challenged legislation, and describe the abortion procedures used in Illinois that may be within the legislation's reach.

 I. THE PARTIES

 The parties in this action are as follows. The Hope Clinic for Women, Ltd., provides abortions and abortion-related services including testing, non-directive options counseling and post-abortion birth control services, in Granite City, Illinois. The Hope Clinic provides abortions to women from the fifth week to the twenty-fourth week of pregnancy as measured from the woman's last menstrual period ("LMP").

 The remaining plaintiffs are physicians licensed to practice in the State of Illinois. Plaintiff Marilynn Conners Frederiksen, M.D., is the Section Head for General Obstetrics and Gynecology at Northwestern Memorial Hospital. She is an Associate Professor in Obstetrics and Gynecology and in Clinical Pharmacology at Northwestern University Medical School in Chicago. She has been certified by the American Board of Obstetrics and Gynecology as a Maternal-Fetal Medicine Specialist. Moreover, Dr. Frederiksen is a Diplomate of the Board. Dr. Frederiksen provides a number of services to her patients including prenatal care, fetal diagnoses, labor and delivery, fetal therapy and abortion usually between six and twenty-four weeks LMP.

 Plaintiff Norman A. Ginsberg, M.D., is an Assistant Professor of Clinical Obstetrics and Gynecology at Northwestern University Medical School. He is a Diplomate of the American Board of Obstetrics and Gynecology and a Fellow of the American College of Obstetrics and Gynecology. Dr. Ginsberg is a founding member of the International Society of Obstetrical and Gynecological Ultrasound, a member of the Society of Perinatal Obstetricians, and holds an Affiliate Doctoral from the American College of Medical Genetics. He is a member of the American Medical Association and the International Fetal Medicine and Surgery Society. Dr. Ginsberg also serves on the Editorial Board of the Journal of Reproduction and Genetics. Dr. Ginsberg provides abortions until twenty-four weeks LMP.

 Plaintiff Cassing Hammond, M.D., is an Instructor of Obstetrics and Gynecology at Northwestern University Medical School, and actively engages in the practice of obstetrics and gynecology, including providing abortion services. Dr. Hammond is a Fellow of the American College of Obstetrics and Gynecology and a member of the Association of Professors of Gynecology and Obstetrics.

 Plaintiff Lauren Streicher, M.D., provides a broad range of services including, gynecological care, pre-natal care, labor and delivery, and abortion. She is a Clinical Instructor of Obstetrics and Gynecology at Northwestern University Medical School. Dr. Streicher is a Diplomate of the American Board of Obstetrics and Gynecology and her admission to become a Fellow of the American College of Obstetrics and Gynecology is pending. Dr. Streicher serves on the Early Detection Committee of the American Cancer Society, Illinois Division, and the Medical Board of Planned Parenthood of Chicago.

 Plaintiff David Zbaraz, M.D., is a Clinical Assistant Professor of Obstetrics and Gynecology at Northwestern School of Medicine. He is a Diplomate of the American Board of Obstetrics and Gynecology and a Fellow of the American College of Obstetrics and Gynecology. Dr. Zbaraz is also a member of the American Medical Association, the Illinois State Medical Society and the Chicago Medical Society. Dr. Zbaraz provides a broad range of services, including prenatal care, fetal diagnoses, labor and delivery, and abortion.

 The plaintiffs bring this suit individually and as a class action on behalf of all duly licensed physicians, surgeons and medical researchers desiring to perform or conduct medical research relating to pregnancy terminations, patients seeking abortion services, and minors capable of giving informed consent to an abortion procedure or whose best interests would be served by an abortion. Plaintiffs bring suit against defendant James Ryan, Attorney General for the State of Illinois, in his official capacity, and against defendant Richard Devine, State's Attorney for Cook County, in his official capacity.

 II. THE CHALLENGED LEGISLATION

 HB 382 bans "partial-birth abortions". A "partial-birth abortion" is defined as "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery." The terms "fetus" and "infant" are defined as the "biological offspring of human parents." The phrase "partially vaginally delivers" is not defined in the statute, nor are the terms "deliver" or "living".

 The ban does not apply to a partial-birth abortion that is necessary "to save the life of a mother because her life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, provided that no other medical procedure would suffice for that purpose." There is no exception to the ban in circumstances when the woman's health is endangered, when the woman suffers from conditions or illnesses other than those enumerated, such as mental conditions or disorders, or when the woman's health is endangered by the pregnancy itself or is compromised by the alternative abortion procedure. Finally, the Act does not make a distinction as to the viability of the fetus.

 The Act also provides that a person who "knowingly" performs a partial-birth abortion is guilty of a Class 4 felony. The penalty for a Class 4 felony is imprisonment for not less than one year and for as many as three years, and includes a fine of as much as $ 10,000. 730 ILCS 5/5 §§ 5-8-1(a)(7), 5-9-1(a)(1). A physician convicted of a felony risks having her license revoked or suspended by the Department of Professional Education and Registration. 225 ILCS 60/22 (A)(3). In addition, a physician who violates the Act may be subject to civil suits by the "maternal grandparents of the fetus" if the mother is under the age of 18 years at the time of the abortion and the plaintiff did not consent to the procedure. There is an exception to such civil suits if the pregnancy of the minor resulted from the plaintiff's criminal conduct. Physicians subject to these civil suits may be liable for money damages for all psychological and physical injuries resulting from the partial-birth abortion, and statutory damages equal to three times the cost of the partial-birth abortion.

 III. ABORTION PROCEDURES

 In order to properly understand the parties' arguments as to the breadth and vagueness of the Act, it is necessary to understand the various abortion procedures utilized by physicians in Illinois. The court's description of these procedures is taken from the affidavits and declarations of the five named plaintiffs and the affidavits of Julie R. Adams and Beth A. Fine, M.S., C.G.C., who provide counseling to women seeking abortions and have specialized knowledge of the circumstances under which women seek abortions. Plaintiffs have moved this court to qualify the plaintiff-physicians, Adams, and Fine as experts. Defendants do not object to this motion or to the medical opinions and facts contained in the affidavits, but have objected to portions of the affidavits that they claim contain legal conclusions and speculation, or lack foundation.

 A district court has broad discretion to admit or rely on expert testimony. See Miksis v. Howard, 106 F.3d 754, 762 (7th Cir. 1997). Expert testimony is admissible if "scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R.Evid. 702. Moreover, experts are permitted to testify as to the ultimate issue in a case. Moore v. Wesbar Corp., 701 F.2d 1247, 1253 (7th Cir. 1983). In this case, the court will rely on the statements made by the physician-plaintiffs in their affidavits and declarations as to the various abortion procedures used, the reasons women obtain abortions, their understanding of the ban on partial-birth abortions, and its effect on their practice. For these reasons, we grant the plaintiffs' motion for qualification of experts inasmuch as these matters are within the scope of their established expertise.

 Abortion is one of the safest surgical procedures in terms of mortality and morbidity, and it is much safer than continuing the pregnancy through childbirth. In the first trimester of pregnancy, when most abortions are performed, a woman is twenty times more likely to die from continuing the pregnancy through childbirth than from a first-trimester abortion. At any stage of pregnancy, a woman is ten times more likely to die from continuing the pregnancy through childbirth than from an abortion. The risk of death from abortion, however, increases approximately 30% with each week of gestation from eight weeks LMP to twenty weeks LMP. The risk of major complications increases approximately 20% with each week of gestation from seven weeks onward. When performing an abortion, the physician chooses the procedure most appropriate for a particular patient. This decision is based on a number of variables, including the underlying health conditions of the patient, the stage of pregnancy, the condition of the fetus, the position of the fetus, the skill and training of the physician, and the facilities available.

 The term "partial-birth" abortion is not a medical term and does not denote a specific abortion procedure. Rather, the doctors described six abortion procedures: (1) administration of agents such as RU 486 and methotrexate, for early first-trimester abortions; (2) suction curettage; (3) dilation and evacuation procedures ("D&E"); (4) induction procedures; (5) hysterotomy; and (6) hysterectomy. Because RU 486 and methotrexate are not available in the United States except as part of clinical trials, the court will not address them in the context of the partial-birth abortion statute.

 A. Suction Curettage

 For first-trimester abortions, most physicians in Illinois use suction curettage, also called vacuum aspiration. In this procedure, the physician mechanically dilates the cervix and then removes the embryo or fetus and the other products of conception with a tube or syringe that is inserted in the uterus. The tube is attached to a vacuum generator, which provides suction to empty the contents of the uterus. During the procedure, the fetus can come through the suction tube either intact or dismembered. While dismembered parts of the fetus are suctioned out of the uterus, part of the fetus remains in utero and may be "alive," which the experts define as having a heartbeat.

 B. D&E

 At the end of the first-trimester and thereafter, most physicians generally use either the D&E procedure, which accounts for 95% of post-first trimester abortions nationally, or induction, which accounts for 5% of such abortions. In a D&E procedure, a physician begins by dilating the cervix over a period of hours with multiple intracervical osmotic dilators, which absorb moisture and expand slowly in the cervix. When the cervix is sufficiently dilated, the physician removes the dilators and ruptures the amniotic sac. Then, using a combination of suction curettage and forceps, the physician removes the fetus. The fetus is usually removed in parts, but at times, the physician can remove the fetus intact. Because the calvarium (skull) is often too large to pass through the cervix whole, the physician must either collapse it with forceps or use suction to remove the calvarium's contents. A number of factors affect the progression of this procedure, including the size and orientation of the fetus, the amount of dilation, the condition of the cervix and uterus, and the patient's overall health and medical condition. The physician adapts her technique in light of the individual patient's needs.

 Physicians sometimes use a variation of this procedure, particularly in the late second-trimester, referred to as the intact D&E or the D&X. In an intact D&E, the physician extracts the fetus intact, feet first, until the cervix is obstructed by the fetal skull. Because the fetal skull is too large to pass through the cervix, it must be decompressed either with forceps or by inserting a sharp instrument at the base of the fetal skull and evacuating the contents. The intact D&E is particularly useful in cases of fetal abnormalities because geneticists often request that the fetus be removed intact to facilitate genetic testing. In addition, the intact D&E reduces the risk of retained tissue and reduces the risk of uterine perforation and cervical ...


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