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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHMOND MEDICAL CENTER FOR
WOMEN; WILLIAM G. FITZHUGH,
M.D.; HILLCREST CLINIC; HERBERT C.
JONES, JR., M.D.; PLANNED
PARENTHOOD OF METROPOLITAN
WASHINGTON, DC, INCORPORATED;
VIRGINIA LEAGUE FOR PLANNED
PARENTHOOD; PLANNED
PARENTHOOD OF THE BLUE RIDGE,
Plaintiffs-Appellees,
v.
JAMES GILMORE, in his official
capacity as Governor of the State of
No. 98-1930
Virginia; DAVID M. HICKS, in his
(CA-98-309-3)
official capacity as Commonwealth
Attorney for the City of Richmond;
DONALD S. CALDWELL, in his official
capacity as Commonwealth
Attorney for the County of
Roanoke; HOWARD GWYNN, in his
official capacity as Commonwealth
Attorney for the City of Newport
News; CHARLES D. GRIFFITH, JR., in
his official capacity as
Commonwealth Attorney for the
City of Norfolk; ROBERT F. HORAN,
JR., in his official capacity as
Commonwealth Attorney for the
County of Fairfax; JAMES L.
CAMBLOS, III, in his official capacity
as Commonwealth Attorney for the
County of Albemarle,
Defendants-Appellants.
Filed: July 29, 1998
Dissent Filed: August 11, 1998
_________________________________________________________________
ORDER
Upon the record and after briefing and oral argument, it is adjudged
and ordered that the motion to vacate the stay of the district court's
order appealed from shall be, and it hereby is, denied.
Judge Widener and Judge Luttig vote to deny the motion, Judge
Murnaghan would vacate the stay and votes to grant the motion.
The members of the panel may append to this order their reasons
for their positions in writing.
With the concurrences of Judge Murnaghan and Judge Luttig.
For the Court
________________________
H.E. Widener, Jr.
U.S. Circuit Judge
MURNAGHAN, Circuit Judge:
Because of shortness of time, aggravated by summer holiday vaca-
tion plans, I proceed herewith under the order of July 29, 1998, to
express my reasons for disagreeing with the decision of my col-
2
leagues to leave in effect the stay of the preliminary injunction. I
accordingly dissent.
In considering whether to stay an order entered by the district court
pending an appeal to this Court, it is not our province to rule on the
merits of the underlying suit, or to determine the merits of the appeal.
Before a stay may issue, however, we must determine that the movant
has made a "strong showing" that it is likely to prevail on appeal.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In the instant case,
therefore, a stay of the preliminary injunction should issue only if it
is likely that a panel of this court will conclude that the district court
abused its discretion in issuing the injunction. See Direx Israel, Ltd
v. Breakthrough Medical Corp., 952 F.2d 802, 814 (4th Cir. 1991).
Because, in my view, the Commonwealth has failed to make the req-
uisite showing of a likelihood of success on appeal, I would vacate
the stay entered by Judge Luttig.
The facts of the case and text of the Partial Birth Abortion Act (the
"Act"), Va. Code § 18.2-74.2, have been set forth in the memorandum
opinion of the district court, Richmond Medical Center v. Gilmore,
No. 3:98cv309 (E.D. Va. June 25, 1998), and in the opinion issued
by Judge Luttig as a single circuit judge, Richmond Medical Center
v. Gilmore, 144 F.3d 326 (4th Cir. 1998). For brevity's sake, I do not
repeat them here.
At the threshold, the Commonwealth alleges that the plaintiffs lack
standing to assert a constitutional challenge to the Act. I am not con-
vinced that the Commonwealth is likely to prevail on the question of
standing.
To establish standing, a plaintiff who contests the constitutionality
of a criminal statute must allege "an intention to engage in a course
of conduct arguably affected with a constitutional interest, but pro-
scribed by a statute, and . . . a credible threat of prosecution there-
under." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289,
298 (1979); see Virginia v. American Booksellers Ass'n, 484 U.S.
383, 393 (1988) (finding that the standing requirement was satisfied
where plaintiffs "alleged an actual and well-founded fear that the law
[would] be enforced against them"). "[I]maginary or speculative"
3
fears of prosecution are insufficient to confer standing. Younger v.
Harris, 401 U.S. 37, 42 (1971).
Because a plaintiff must allege a credible threat of prosecution
under the challenged statute, the State's intent to enforce the provi-
sion is a relevant consideration. See Babbitt , 442 U.S. at 302. "If the
prosecutor expressly agrees not to prosecute, a suit against him for
declaratory and injunctive relief is not such an adversary case as will
be reviewed here." Poe v. Ullman, 367 U.S. 497, 507 (1961).
The plaintiffs have conceded that they do not perform, and do not
presently intend to perform, the D&X procedure as it is described by
Dr. Martin Haskell, the American College of Obstetricians and Gyne-
cologists, and the American Medical Association. That concession
does not end the inquiry, however, for the Act's definition of "partial
birth abortion" is intentionally broader than the medical descriptions
of the D&X procedure. According to the Commonwealth,"[a]lthough
the D&X procedure is the target of the Act, the definition of `partial
birth abortion' used . . . by the General Assembly is cast in terms that
will encompass not only the identified medical formulations of the
procedure, but as-yet unidentified and/or uninvented variations of the
D&X procedure."
The testimony adduced by Dr. William Fitzhugh at the preliminary
injunction hearing shows that he performs abortions proscribed by the
Act. Dr. Fitzhugh testified that he performs abortions through the 20th
or 21st week of pregnancy, measured from the first day of the
woman's last normal menstrual period ("lmp"). After the first trimes-
ter, or beginning at approximately 14 weeks lmp, Dr. Fitzhugh per-
forms abortions using a method that has been labeled"dilatation and
evacuation," or "D&E." Before the D&E procedure, Dr. Fitzhugh
conducts an ultrasound examination and a medical evaluation. The
purpose of the examination is not to look for signs of life, but to
determine the size and age of the fetus. Nevertheless, the absence or
presence of cardiac activity is noted.
On the day before the procedure, osmotic dilators are placed in the
woman's cervix. By absorbing moisture from the surrounding cervi-
cal tissue, the dilators expand and cause dilation of the cervix and a
softening of the tissue. The dilators are removed and anesthesia is
4
administered. A suction cannula is placed into the uterus to rupture
the membrane surrounding the pregnancy and to remove fluid and tis-
sue. Finally, forceps are used to remove the pregnancy.
Dr. Fitzhugh testified that it is never his intent to disjoin the fetus
in the woman's uterus, but rather, to remove the fetus into the vagina.
Whether that goal is accomplished depends on the degree of dilation.
If the woman's cervix is sufficiently dilated, Dr. Fitzhugh testified
that he uses the forceps to grasp the fetus and deliver it intact into the
vagina. The umbilical cord is then severed, and the fetus and placenta
removed. If, however, as is more common, the dilation of the cervix
does not permit removal of the intact fetus, the use of the forceps will
cause fetal dismemberment as the physician grasps and tugs on parts
of the fetus.
Although Dr. Fitzhugh's ability to remove the fetus into the vagina
intact involves an element of uncertainty, his testimony was clear that
the delivery of the fetus into the vagina is both deliberate and inten-
tional. Unless the umbilical cord has been severed by suction, or the
fetus was dead at the commencement of the procedure, the fetus is
living at the time of delivery into the vagina.
If intact delivery of a living fetus into the vagina is accomplished,
Dr. Fitzhugh testified that his next act is to sever the umbilical cord.
The severance of the umbilical cord kills the fetus. When he effects
delivery of the fetus into the vagina, therefore, Dr. Fitzhugh does so
with the purpose of performing a procedure that he knows will kill the
fetus. And Dr. Fitzhugh does not cut the umbilical cord by chance,
but does so deliberately and intentionally. Finally, Dr. Fitzhugh com-
pletes the removal of the fetus and placenta from the mother's body.
In short, Dr. Fitzhugh's testimony plainly establishes that he intends
to perform a procedure that is prohibited by the Act each time he
commences a D&E abortion, although circumstances may prevent the
performance of the D&E as he intends.
In analyzing whether any plaintiff has standing to pursue the
instant suit, we are required to consider the defendants' sworn assur-
ances that physicians who perform suction curettage and "conven-
tional" D&E abortions will not be prosecuted under the Act. No
"credible threat of prosecution" may be found where the officials
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responsible for enforcement of the Act have expressly agreed not to
prosecute violations. See Babbitt, 442 U.S. at 302; Poe, 367 U.S. at
507.
The Commonwealth Attorneys have, however, defined a"conven-
tional" D&E in such a manner as to exclude the D&E abortions per-
formed by Dr. Fitzhugh. According to the Commonwealth Attorneys,
a conventional D&E is
an abortion procedure technique in which the physician . . .
dismembers the fetus in the uterine cavity using sharp
instruments such as forceps, and suction [and] then removes
the fetal parts by pulling them out piece by piece through
the cervical os.
Dr. Fitzhugh, however, does not commence a D&E with the intention
of using forceps to dismember the fetus in the woman's uterus, but
rather, uses the forceps to grasp and pull the intact fetus into the
vagina. Commonly, the force employed will cause dismemberment of
the fetus, and Dr. Fitzhugh may escape prosecution in those instances;
but there is no assurance that a prosecution will not follow when Dr.
Fitzhugh achieves his intended goal of delivering an intact fetus into
the vagina. Given the Commonwealth's asserted intent to prosecute
"variations" of the D&X procedure, I conclude that Dr. Fitzhugh rea-
sonably fears prosecution for his conduct, and has standing to pursue
a constitutional challenge to the Act. Having so concluded, I do not
consider the standing of the other plaintiffs. See Carey v. Population
Servs. Int'l, 431 U.S. 678, 682 (1977); Doe v. Bolton, 410 U.S. 179,
189 (1973).
Concerning the merits of the plaintiffs' challenge to the Act on the
ground that it is void for vagueness, I believe that, whatever the other
definitional merits or deficiencies of the Act, the term "substantial
portion" is hopelessly vague and is likely to render the Act unconsti-
tutional. In the short course of the instant litigation, the Common-
wealth itself has variously defined the term "substantial portion" to
mean "a portion of the trunk," one-third of the fetus by volume, "well
into the thorax," twenty-five percent, thirty-five percent, or a portion
that is "not insubstantial." The Commonwealth's own medical expert,
Dr. K. Aultman, testified that the definition of the term would change
6
depending on whether length or volume supplied the standard of mea-
surement. Length and volume, moreover, are not the only possible
standards; it would also be reasonable to define a"substantial portion"
of a living fetus with reference to what we consider to be meaningful
or important parts of the human anatomy.
Dr. Aultman conceded that liability under the Act may change
depending on the meaning ascribed to the term. If a leg is a "substan-
tial portion" of a fetus, Dr. Aultman admitted that many "conven-
tional" D&E procedures would be prohibited by the Act. If, on the
other hand, a leg is not a "substantial portion" of a fetus, those same
procedures fall outside the Act's proscription on partial birth abor-
tions. In short, the lack of definitional clarity leaves abortion provid-
ers without fair notice of the line between lawful and unlawful
conduct. Therefore, I think it likely that the Act will be found uncon-
stitutionally vague. See Grayned v. City of Rockford, 408 U.S. 104,
108 (1972).
Definitional precision aside, I cannot be persuaded that it is consti-
tutionally permissible to enact a ban on partial birth abortions with-
out, at a minimum, allowing the performance of such an abortion
when necessary, in the professional judgment of the attending physi-
cian, to preserve the health of the mother. The Supreme Court has
unequivocally established that the State has no interest which super-
sedes the mother's interest in preserving her health. See Planned Par-
enthood v. Casey, 505 U.S. 833, 880 (1992) (stating that "the essential
holding of Roe forbids a State to interfere with a woman's choice to
undergo an abortion procedure if continuing her pregnancy would
constitute a threat to her health"); Roe v. Wade, 410 U.S. 113, 164-65
(1973). In Casey, moreover, the Court suggested that the Constitution
would be violated by an abortion regulation which prevented a physi-
cian from exercising his or her medical judgment on the mother's
behalf. Casey, 505 U.S. at 884.
By failing to include a maternal health exception in the Act, the
General Assembly of Virginia has attempted to substitute its judg-
ment regarding the safety and necessity of the partial birth abortion
procedure for the individualized professional judgment of the physi-
cians who provide abortions. There may be physicians who will tes-
tify that the partial birth abortion procedure is never necessary to
7
preserve the health of the mother; I believe, however, that the Consti-
tution mandates that determination be left to the physician as he or
she confronts the unique circumstances of each case.
By failing to include a maternal health exception, the Act demands
that physicians decide, often under exigent circumstances, whether
their failure to perform a partial birth abortion will cause maternal
death or merely result in a significant impairment to the woman's
health. An erroneous judgment will subject the physician to prosecu-
tion and, if the physician has wrongly concluded that only the moth-
er's health is at risk, may cause the death of the mother. I cannot be
persuaded that the Constitution permits such a result.
Finally, I do not find that the Commonwealth will suffer irrepara-
ble injury absent a stay. See Hilton, 481 U.S. at 776. While the Com-
monwealth has asserted that several legitimate state interests are
served by the Act's prohibition of partial birth abortions, it was con-
ceded at oral argument that the D&X procedure--the procedure at
which the Act is allegedly aimed--is not performed by any abortion
providers in Virginia. I cannot see, therefore, how a temporary injunc-
tion prohibiting enforcement of the Act, while making sure what it
means and ascertaining whether it is constitutional, will work irrepa-
rable injury upon the Commonwealth.
In contrast, the plaintiffs are likely to suffer substantial harm if the
stay is granted. See id. Abortion providers face significant uncertainty
in determining which abortion methods are proscribed and which are
permitted. Moreover, the Act constitutes a grave intrusion into the
physician's right to exercise his independent medical judgment.
In conclusion, I find the Commonwealth's contention that the
plaintiffs lack standing unconvincing, and believe a panel of this court
will likely hold that the preliminary injunction was properly issued.
Therefore, I would vacate the stay ordered by Judge Luttig.
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