Hope Clinic vs. Ryan.

• Author: Bostrom, Barry A.
• Position: Partial-birth abortion

The issue was whether the state laws of Illinois and Wisconsin prohibiting partial-birth abortions are unconstitutionally vague or unduly burden women's rights. Acting without an evidentiary hearing, an Illinois district court held the Illinois statute unconstitutional and entered a permanent injunction. Hope Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill. 1998). But a Wisconsin district court, after trial, concluded that the Wisconsin statute was valid. Planned Parenthood of Wisconsin v. Doyle, 44 F. Supp. 2d 975 (W.D. Wis. 1999). A panel of the Seventh Circuit Court of Appeals earlier had ordered preliminary relief against Wisconsin's law. Planned Parenthood of Wisconin v. Doyle, 162 F.3d 463 (7th Cir. 1998). Both appeals were heard en banc, and the Seventh Circuit concluded that both laws can be applied in a constitutional manner. Circuit judge Easterbrook authored the opinion. Hope Clinic v. Ryan, 195 F.3d 857, 861 (7th Cir. 1999).

Induction, suction curettage, and dilation and evacuation (D&E) are the principal methods of performing abortions in the United States. Prohibiting any one of these would conflict with the right of abortion recognized by Casey, 505 U.S. at 877 (plurality opinion) (adopting "undue burden" as the constitutional standard), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79 (1976) (holding that a state may not forbid saline amniocentesis, at the time the principal means of induction). The cases at issue before the Seventh Circuit involved a procedure known to the medical community as "intact dilation and extraction" or just "dilation and extraction" (D&X), and to the public as "partial-birth abortion." Hope Clinic, 195 F.3d at 861.

Partial-Birth Abortion Definitions

A D&X is a variant of a D&E in which the fetus is removed without dismemberment. The American College of Obstetricians and Gynecologists (ACOG) defines D&X as follows: "1. deliberate dilation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intra-cranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus." Martin Haskell, the physician who developed the D&X procedure, see Dilation and Extraction for Late Second Trimester Abortion (1992), reprinted in 139 Cong. Rec. E1092 (Apr. 29, 1993), believes that how the head is diminished in size so that it can pass through the cervix is not important: mechanically crushing the skull serves the same end as evacuating its contents, which causes its collapse. It is this combination of coming so close to delivering a live child with the death of the fetus by reducing the size of the skull that not only distinguishes D&X from D&E medically but also causes the adverse public and legislative reaction. Opponents deem the D&X procedure needlessly cruel and bordering on infanticide, and all three states (Illinois, Indiana, and Wisconsin) in the Seventh Circuit have enacted statutory restrictions. Hope Clinic, 195 F.3d at 861-62.

PBA Statutory Provisions

The Illinois statute defines partial-birth abortion (PBA) 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 used interchangeably to refer to the biological offspring of human parents." 720 ILCS [sections] 513/5. It classifies PBA as a Class 4 felony but provides an exception if the PBA is necessary to save the life of the mother. 720 ILCS [sections] 513/10. The maternal grandparents of the fetus or infant, if the mother has not attained the age of 18 years at the time of the PBA, may file a civil action for money damages for all injuries, psychological and physical, occasioned by the violation of the Act and statutory damages equal to three times the cost of the PBA. 195 F.3d at 862 (citing 720 ILCS [sections] 513/15).

Indiana has a similar statute with an identical definition of PBA. Ind. Code [sections] 16-18-2-267.5. The Indiana statute has never been challenged and has been in effect since July 1, 1997. The Court uses Indiana as a model of the effect of prohibition of PBA when no injunction has been entered. 195 F.3d at 862.

The Wisconsin statute defines PBA as "an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child." Wis. Stat. [sections] 940.16(1)(b). Wisconsin classifies PBA as a Class A felony, but also has an exception to save the life of the mother. 195 F.3d at 862-63 (citing Wis. Stat. [sections] 940.16(3)).

Wisconsin's definition of PBA is substantially the same as Illinois', but the mental-state elements differ, as do the maximum penalties: Illinois makes an unjustified PBA a Class 4 felony, with a maximum penalty of three years in prison; in Wisconsin the offense is a Class A felony, for which the penalty is life imprisonment. Id. at 863.

Divergence Among the Circuits

Litigation elsewhere has produced results mirroring the divergence between the outcomes in Illinois and Wisconsin. The Sixth Circuit held that Ohio's ban on PBA is unconstitutional, Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), but the Fourth Circuit issued a stay preventing interference with Virginia's statute. Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998), motion to vacate stay denied, 183 F.3d 303. Both of those decisions were rendered over dissents. A single panel of the Eighth Circuit recently held three states' PBA laws unconstitutional, but only after first concluding that all three statutes forbid the D&E procedure. Hope Clinic, 195 F.3d at 864 (citing Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999) (Nebraska); Little Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794 (8th Cir. 1999) (Arkansas); Planned Parenthood of Greater Iowa, Inc. v. Miller, 195 F.3d 386 (8th Cir. 1999) (Iowa)).

PBA Bans Are Not Unconstitutionally Vague

Plaintiffs asked the Court to employ the analysis of the Seventh Circuit's panel opinion in the Wisconsin case and declare both state bans unconstitutional. But two events since the panel decision caused the Court to make a fresh analysis. First, the panel's opinion dealt with preliminary relief and observed that "the full trial may cast the facts in a different light." 162 F.3d at 466. Since a trial was held in the Wisconsin case, the Court held that its results must be considered. Second, both the panel's decision in the Wisconsin case and the district court's opinion in the Illinois case concluded that the statute as written was vague. A more recent decision of the Supreme Court in Chicago v. Morales, 527 U.S. 41 (1999), stresses that the state courts are entitled to construe state laws to reduce their ambiguity, and that federal courts should evaluate state laws as they have been construed by state courts, not just as they appear in the statute books. See also, e.g., Parker v. Levy, 417 U.S. 733 (1974); Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973). This implies that Illinois and Wisconsin are entitled to interpret their own laws--that federal courts...