Amicus Curiae Brief — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

AUG 2 - 2UuE

OFFICE wae i Hh ?

No. 05-1382 , SUPREMF Cour ; "

IN THE

Supreme Court of the United States

ALBERTO R. GONZALES, ATTORNEY GENERAL.

Petitioner,

Vv

PLANNED PARENTHOOD FEDERATION OF AMERICA, ET AL..,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE THOMAS MORE

SOCIETY, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Thomas Brejcha Paul Benjamin Linton*

Attorney at Law Attorney at Law

29 S. La Salle Street 921 Keystone Avenue

Suite 440 Northbrook, IL 60062

Chicago, IL 60603 (847) 291-3848

(312) 782-1680

*Counsel of Record

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..... Dseekescddbenoanes ii

INTEREST OF AMICUS CURIAE ........000 eee eeees l

INTRODUCTION AND SUMMARY

Se CIEE occ édeseccccecosusensccns I

FE oo even he civeetdvcccuctenscescnedess 5

I, THE PARTIAL-BIRTH ABORTION BAN

ACT DOES NOT IMPOSE AN UNDUE BUR-

DEN ON WOMEN SEEKING PRE-VIABIL-

ITY, SECOND-TRIMESTER ABORTIONS ..... 5

Il. THE ACT IS NOT UNCONSTITUTIONALLY

iil. © OFFICIALSTATE ABORTION REPORTING

STATISTICS ALSO REFUTE THE

VAGUENESS AND UNDUE BURDEN

CHALLENGES TO THE ACT .............-.. 21

SME cS N che Uedeceesicds G8GensbeneeeHs 30

| PPPPUTTTETETETTTTIT ITT TET Te la

TABLE OF AUTHORITIES

Cases:

Chavez v. United States, 275 F.2d 813 (9" Cir. 1960).... 21

Grayned v. City of Rockford, 408 U.S. 104 (1972) .... 4,19

Hope Clinic v. Ryan, 195 F.3d 857 (7" Cir. 1999) (en banc),

vacated and remanded with directions,

530 U.S. 1271 (2000), on remand,

249 F.3d 603 (7" Cir. 2001) (en banc)....... 23, 24

Kolender v. Lawson, 461 U.S. 352 (1983) ............. 19

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...... 3

Planned Parenthood Federation of America v. Gonzales,

435 F.3d 1163 (9th Cir. 2006) ............ passim

Richmond Medical Center for Women v. Gilmore,

11 F. Supp. 2d 795 (E.D. Va. 1998) ........... 27

Richmond Medical Center for Women v. Gilmore,

144 F.3d 326 (4 Cir. 1998) ............00008 27

Scheidler v. NOW, 537 U.S. 393 (2003) ...........005- ]

Scheidler v. NOW, 125 S. Ct. 2991 (2006) ..........4.. 1

Stenberg v. Carhart, 530 U.S. 914 (2000) ......... passim

United States v. Bailey, 444 U.S. 394 (1980) .......... 18

Wynn v. Scott, 449 F. Supp. 1302 (N.D. Ill. 1978) ,

appeal dismissed, 439 U.S. 8 (1978),

aff'd sub nom. Wynn v. Carey, 599 F.2d 193

PP MONE oe cniadevanssncdsicweeesoneees 14

Constitutional Provisions and Statutes:

oe eevee wanes eae bewut 5

I sg he we ele Swag eveenedeudenans 21

Ee i ce ck eaten dese kel eae 21

SEE ccdutucucvudenddesaevees tees asean 2

A ED 6 oa ccc eee de peb Aten eeeeeee 3

I I icra 8 3

ii

a 3,7

ED 5 cc ccetcccdiumcvestaneuen 3

EE oobcct cn codes sasesunensseanens 21

Pub. L. No. 108-105, § 2(1), 117 Stat. 1201 ............ 1

PM och cebseseddaceeudeenenviaeteses 22

IND. CODE ANN. § 16-18-2-267.5 (West Supp. 2005) .... 23

IND. CODE ANN. § 16-34-2-1(b) (West Supp. 2005) ..... 23

MIss. CODE ANN. § 41-41-71 et seg. (1999) ........... 23

MISS. CODE ANN. § 41-41-73(2)(a) (1999) ............ 23

S.D. CODIFIED LAWS § 34-23A-27 et seq.

PUTED vcovocsccthssescosseenss 23

S.D. CODIFIED LAWS § 34-23A-32 (Michie Supp. 2003) . 23

VA. CODE ANN. § 18.2-74.2 (Michie Supp. 1999) ..... noe

VA. CODE ANN. § 18.2-74.2(D) (Michie Supp. 1999) .... 23

Other Authorities:

INDIANA NATALITY, INDUCED TERMINATION OF PREGNANCY,

AND MARRIAGE REPORT[:] STATE, COUNTY,

SUUGRNU IN GED cc ccccncetnecsovcceics

INDIANA TERMINATED PREGNANCY REPORT 1996

SED dc ok eh edadebaveee deed ceases 24

MISSISSIPPI VITAL STATISTICS 1996 ............000-. 25

MISSISSIPPI VITAL STATISTICS 1997 ............--455 25

MISSISSIPPI VITAL STATISTICS 1998 ............-. 25, 26

SOUTH DAKOTA VITAL STATISTICS &

SE re eee ae 26

iii

INTEREST OF AMICUS CURIAE

The Thomas More Society, Inc., is a non-profit, public

interest law firm based in Chicago, Ilinois. It was founded in

1997 to meet the burgeoning legal needs of the pro-life

movement. Incorporated as a 501(c)(3) not-for-profit corpora-

tion under the laws of the State of Illinois, the Thomas More

Society provides legal advice and assistance to those who face

harassment, employment discrimination, unjust treatment, civil

litigation or criminal prosecution as a result of their pro-life

views or their peaceful protest activities. The Thomas More

Society has provided legal services and assistance in a wide

range of cases, including in this Court the representation of the

named petitioners in Scheidler v. NOW, 537 U.S. 393 (2003),

and Scheidler v. NOW, 125 S. Ct. 2991 (2006).

In addition to the legal representation it provides, the

Thomas More Society supports appropriate public policy

measures that are intended to protect innocent prenatal human

life. Consistent with its core mission and the respect for human

life that mission implies, the Thomas More Society respectfully

submits this brief in support of petitioner the United States.

INTRODUCTION AND SUMMARY OF ARGUMENT

The issue presented in this case, as in Gonzales v.

Carhart, No. 05-380, is whether the United States has the

constitutional authority to ban an abortion procedure, variously

described in the medical literature and trial testimony as “intact

dilation and evacuation” (intact D&E) or “dilation and extrac-

tion” (D&X), that Congress has characterized as “gruesome and

inhumane.” Pub. L. No. 108-105, § 2(1), 117 Stat. 1201. In

that procedure, a physician

* Letters of consent have been filed with the Clerk. None of

the counsel for the parties authored this brief in whole or in part, and

no one othegthan amicus or its counsel has contributed money or

services to the preparation or submission of this brief.

deliberately and intentionally vaginally delivers a living,

unborn child’s body until either the entire baby’s head is

outside the body of the mother, or any part of the baby’s

trunk past the navel is outside the body of the mother and

only the head remains inside the womb, for the purpose of

performing an overt act (usually the puncturing of the

back of the child’s skull and removing the baby’s brains)

that the [physician] knows will kill the partially delivered

infant, performs this act, and then completes the delivery

of the dead infant... .

Id.

Based upon this Court’s decision in Stenberg v. Carhart,

530 U.S. 914 (2000), the Ninth Circuit held that the Partial-

Birth Abortion Ban Act of 2003 (the Act), 18 U.S.C. § 1531,

which prohibits this procedure, except when necessary to save

the life of the mother, is unconstitutional because it lacks a

health exception and imposes an “undue burden” on women

seeking pre-viability, second-trimester abortions. See Planned

Parenthood Federation of America v. Gonzales, 435 F.3d 1163,

1171-81 (9th Cir. 2006). The court held further that the Act is

unconstitutionally vague. /d. at 1181-84. For the reasons set

forth in the Solicitor General’s brief, the Ninth Circuit's

principal holding — that the Act is unconstitutional because it

lacks a health exception — is erroneous and should be reversed. '

' Amicus emphasizes one point with respect to the health

issue. Even assuming that, for some women, an induction may be

contraindicated, that for other women, a dismemberment D&E may

not be appropriate, and that for yet still other women, it may not be

possible to cause “fetal demise” before beginning an intact D&E,

respondents failed to identify any circumstances in which all three

alternatives to performing an intact D&E on a living fetus would be

contraindicated, inappropriate or impossible. Respondents’ failure

to identify such circumstances is fatal to their argument that an intact

D&E performed on a living fetus is ever necessary to)preserve the

woman’s health, in either an absolute or even a relative sense.

2

Rather than address the court’s flawed principal holding,

amicus addresses the court of appeals’ alternative holdings.

1. Undue Burden. The court of appeals held that the Act

imposes an “undue burden” on women seeking pre-viability,

second-trimester abortions in violation of Planned Parenthood

v. Casey, 505 U.S. 833 (1992), because its definition of “partial-

birth abortion” includes not only intact D&Es, but also other

second-trimester abortion procedures — such as dismemberment

D&Es and inductions — which account for almost all abortions

performed in the second trimester. See 435 F.3d at 1176-81.

That holding cannot be reconciled with the language or struc-

ture of the Act.

By its plain terms, the Act applies only if a physician

“deliberately and intentionally” vaginally delivers a living fetus

— not parts of a fetus — beyond the anatomical markers set forth

in the Act (18 U.S.C. § 1531(b)(1)(A)); only if the physician

does so “for the purpose of performing an overt act” that he or

she knows will kill the fetus (id.); only if the physician then

performs such an overt act, other than completion of delivery

(id. § 1531(b)(1)(B)); and only if the physician does all of this

“knowingly,” rather than by accident or happenstance (id. §

1531(a)). The conduct described in the definition of “partial-

birth” abortion,” together with the scienter requirements of the

Act, effectively exclude dismemberment D&Es and inductions.

? The Act prohibits a physician from “knowingly”

performing a “partial-birth abortion,” 18 U.S.C. § 1531(a), which is

defined as “an abortion in which the person performing the abortion.

~ (A) deliberately and intentionally vaginally delivers a living fetus

until, in the case of a head-first presentation, the entire feta! head is

outside the body of the mother, or, in the case of breech presentation,

any part of the fetal trunk past the navel is outside the body of the

mother, for the purpose of performing an overt act that the person

knows will kill the partially delivered living fetus; and (B) performs

the overt act, other than completion of the delivery, that kills the

partially delivered living fetus.” 18 U.S.C. § 1531(b)(1).

3

In neither procedure does the physician have the specific intent,

at the outset of the procedure, to deliver the fetus intact for the

purpose of performing an overt act that will kill the fetus after

it has been partially delivered. Nor does the Act apply when,

during the course ofa standard D&E or induction, the physician

discovers that he or she must perform an overt act that kills the

partially delivered fetus in order to complete delivery.

2. Vagueness. The court of appeals held that three terms

used in the Act — “partial-birth abortion,” “living fetus” and

“overt act” — are impermissibly vague. See 435 F.3d at 1181-

84. That holding is also erroneous. Whether the term “partial-

birth abortion” has a recognized meaning, apart from the Act,

is of no consequence, because it is clearly and carefully defined

in the Act itself. The term “living fetus” means a fetus with a

heartbeat, as respondents’ expert witnesses recognized. Finally,

the term “overt act,” in context, refers to an act that the physi-

cian knows will kill the fetus after it has been delivered beyond

the anatomical markers set forth in the Act, distinct from those

acts (e.g., cutting the umbilical cord) that are required to

complete delivery. Individually as well as collectively, then, the

challenged terms used in the Act “give the person of ordinary

intelligence a reasonable opportunity to know what is prohib-

ited, so that he may act accordingly.” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972).

3. Impact of the Act. In addition to being foreclosed by

the text and structure of the Act, the court of appeals’ “undue

burden” and vagueness holdings are refuted by official abortion

reporting statistics from several States whose partial-birth

abortion acts were not enjoined prior to this Court’s decision in

Stenberg. Review of these statistics reveals that enactment of

such laws did not prevent physicians from performing dismem-

berment D&Es and inductions. This, in turn, suggests that

respondents’ alleged fear that enforcement of the Partial-Birth

Abortion Ban Act would “chill” physicians from performing

conventional second-trimester abortion procedures is baseless.

ARGUMENT

I.

THE PARTIAL-BIRTH ABORTION BAN ACT

DOES NOT IMPOSE AN UNDUE BURDEN

ON WOMEN SEEKING PRE-VIABILITY,

SECOND-TRIMESTER ABORTIONS.

In their complaint, respondents alleged that “the term

‘partial-birth abortion’ . . . is defined so broadly in the Act as to

chill physicians from providing the safest and most common

methods of abortion used in the second trimester of pregnancy

prior to viability,” and thus “imposes an ‘undue burden’ on the

right to obtain previability abortions.” Supp. Cplt. at 2, { 4.

See also id. at 3-5, J 9-10. Respondents alleged that a “partial

birth-abortion,” as defined in the Act, “could occur in any D&E

abortion, including, but not limited to intact D&E abortions, as

well as in any induction abortion,” id. at 8-9, € 25, which, taken

together, “account for more than 95% of pre-viability abortions

performed in the second trimester of pregnancy.” /d. at 9, { 27.

“While not all D&E or induction abortions will proceed in a

manner that violates the Act, physicians cannot know or predict

in advance which abortions will so proceed. Performing any

D&E or induction abortion thus places doctors at-risk of

violating the Act.” /d. at 9,426. “If the Act were to take effect

[respondents] would be chilled from providing D&E or

inductions abortions because of the reasonable fear of criminal

prosecution and civil liability under the Act.” /d. at 10, § 29.

The Act “imposes an undue burden on women seeking second-

trimester abortions,” id., which violates their right to privacy

and liberty guaranteed by the Due Process Clause of the Fifth

Amendment.” /d. at 12, § 39 (Second Claim for Relief).

Respondents’ medical experts testified (at trial or in

designated portions of discovery depositions that were admitted

into evidence) that the Act would prevent them from perform-

ing intact D&Es and, depending upon the circumstances, could

prevent them from performing standard (dismemberment)

D&Es, as well.’ Drs. Broekhuizen, Grunebaum and Hammond

testified that the Act would also prevent them from performing

at least some inductions.‘ The court of appeals agreed with

_Tespondents’ “undue burden” claim and, in the alternative,

struck down the Act on this ground. See 435 F.3d at 1176-81.

The Ninth Circuit’s conclusion — and the testimony of

respondents’ medical experts concerning the purported scope of

the Act’s prohibitions — rest on a fundamental misunderstanding

of the statutory language, however. Properly interpreted, the

Act simply does not apply to procedures other than intact

D&Es. Physicians who perform standard (dismemberment)

D&Es and inductions do not “deliberately and intentionally”

deliver the fetal head or trunk outside the mother’s body “for

the purpose of performing an overt act that the person knows

will kill the partially delivered living fetus.” 18 U.S.C. §

* See Tr. 50, 74-80 (Paul); 199-202 (Sheehan); 281-83, 334

(Drey); 420-22, 425-26 (Doe); 551-52 (Broekhuizen); 656-57

(Creinin); 822-24 (Westhoff); 1787-88 (Chasen); Hammond Dep.

200:7-15. See also Plaintiffs’ Exh. 36 (Frederiksen Exp. Rep.), at 3-

4. Dr. Grunebaum no longer performs second-trimester abortions

because he does not believe that the language of the Act is clear and

he does not know whether he is covered by the injunctions that have

been issued in the cases challenging the Act. See Grunebaum Dep.

31:25-32:8; 160:24-161:18; 167:1-21; 223: 14-224:3; 236:8-15.

* See Tr. 551-53 (Broekhuizen); Grunebaum Dep. 224:6-7;

Hammond Dep. 327:6-11. Dr. Frederiksen made the same claim in

her expert report. See Plaintiffs’ Exh. 36, at 4. Three other experts

who testified for respondents—Drs. Drey, Chasen and Doe—perform

induction abortions, as well as D&Es. Dr. Drey and Dr. Chasen,

however, expressed no opinion on the impact of the Act on their

performance of inductions. See Tr. 281-84; 334 (Drey); 1788

(Chasen). Dr. Doe did offer an opinion on the subject, but the

district court sustained the Government’s objection to his opinion

because it was not discussed in his expert report. See Tr. 423-25.

6

1531(b)(1 (A). A standard D&E contemplates dismemberment

(through traction at the internal cervical os) and fetal death

while the fetus itself is within or almost entirely within the

mother’s body. See Stenberg, 530 U.S. at 924-27. And induc-

tion merely involves induced premature delivery of a fetus,

which results in the death of the fetus without the need for any

overt act, other than completing the delivery. Neither procedure

is undertaken with the specific intent, when it begins, of causing

partial delivery of a living fetus outside the mother’s body for

the purpose of performing an overt act that the physician knows

will kill the fetus after such partial delivery. Thus, neither

procedure falls within the scope of the Act.

Moreover, the circumstances that could lead to any

purported need to kill a fetus to complete a vaginal delivery

after a standard (dismemberment) D&E abortion or induction

has begun are simply circumstances that might occur, but are

not planned as part of either procedure (as the Act clearly

requires). If such circumstances happen to develop during the

performance of a standard D&E or induction, or even if they are

foreseen, physicians may cause fetal death after the fetus has

been partially delivered without violating the Act. This is so

because, at the outset of the procedure, they did not “deliber-

ately and intentionally” partially vaginally deliver the fetus

- Outside the mother’s body (beyond the anatomical markers

specified in the Act) “for the purpose of performing an overt act

{other than completing delivery]” that they knew would kill the

partially delivered fetus. 18 U.S.C. § 1531(b)(1)(A).

Dilation and Evacuation Procedures

Most of respondents’ expert witnesses testified that an

intact D&E is simply a variation of a standard D&E and not a

distinct procedure.* Dr. Creinin, however, testified that an

* See Tr. 44, 45, 71 (Paul); 458 (Doe); 521 (Broekhuizen);

795, 807 (Westhoff); 1710, 1826 (Chasen); Grunebaum Dep. 66:3-5;

7

intact D&E (or D&X) is a distinct procedure from a D&E (but

one which he does not currently perform). Tr. 736-37. But

whether an intact D&E is only a variation of a standard D&E or

is a separate procedure, it has certain characteristics that

distinguish it from a standard D&E in which the fetus is

dismembered during the course of the abortion. Those charac-

teristics, along with the scienter requirements specified by the

Act, provide a principled basis for distinguishing between intact

D&Es and dismemberment D&Es —- and for prohibiting the -

former (when performed with the requisite intent) but not the

latter.

First, as respondents’ experts generally agreed, intact

D&E generally requires more dilation of the cervix, usually

over the course of several days, to allow the physician to extract

the fetus intact (up to the head, in a breech presentation),° than

is required to remove the fetus in parts with forceps in a

214:11-16; Frederiksen Dep. 28:23-24. See also Tr. 205 (Sheehan)

(“I don’t differentiate those two procedures”); Hammond Dep.

94:14-15 (“the fact is a D&E is a D&E is a D&E”); see also id. at

95:21-96:17. :

® There is no evidence in the record that any of the

respondents’ witnesses ever performs an “overt act” to cause the

death of the child affer its head has completely emerged from the

mother’s body ina D&E. If the fetus presents in a vertex (head first)

or transverse (sideways) position, it is usually converted to a breech

position. See Tr. 405-06 (Doe); 515-16 (Broekhuizen); 667, 669

(Creinin); 827-29 (Westhoff); 1724-25 (Chasen). In Dr. Chasen’s

study of intact D&Es, in the few instances in which a vertex

presentation was not converted to a breech, fetal death was caused

before the head was completely outside the mother’s body. Tr. 1741-

42 (Chasen). See also Tr. 761-62 (Creinin) (same in his experience);

Frederiksen Dep. 49: 12-18 (same). The Act would not apply in such

cases.

standard D&E.’ In Dr. Broekhuizen’s words, the greater degree

of cervical dilation is the “critical difference” between intact

D&E and dismemberment D&E. Tr. 544. Second, intact D&E

calls for a different use of instruments and technique. Unlike a

standard D&E, in which forceps with serrated inside edges are

used in a “twisting” or “rotating” motion to grasp and crush

tissue to dismember the fetus at the internal cervical os, in an

intact D&E physicians use little or no instrumentation in the

uterus and apply “gentle traction” in order to bring the fetus

through the cervix intact (or largely intact), at which point an

overt act is performed that causes death.* Third, in a standard

D&E, the physician does not generally know at what stage of

the procedure the fetus dies,’ whereas in an intact D&E, he or

” See Tr. 55, 57, 71 (Paul); 165-66, 182-83, 193, 206, 241-42

(Sheehan); 281-82 (Drey); 437 (Doe); 507-08, 518-20, 522, 588

(Broekhuizen); 678, 685, 735, 738-39 (Creinin); 835-37 (Westhoff);

1723 (Chasen) (“In cases in which I am able to do an intact — the

intact variation of D&E, those patients tend to have more dilation

than patients in whom I must resort to forceps”); Frederiksen Dep.

28:24-29:4. Dr. Hammond implied that the dilation required for to

remove the fetus intact is greater than that needed simply to pass

instruments through the cervix in a disarticulation D&E. See

Hammond Dep. 72:18-73:1, 103:22-104:9, 136:2-8. See also

Grunebaum Dep. 72:3-15; 102:22-103:22; 167:22-168:3 (degree of

dilation makes a difference in what options are available).

* Tr. 70-71 (Paul); 224-25, 229-35 (Sheehan); 435-36 (Doe);

519, 567-71 (Broekhuizen); 666-668, 740 (Creinin); 837 (Westhoff);

1721, 1759 (Chasen); Grunebaum Dep. 83:1 1-21; 90:17-91:2; 94:1-

14; 106:6-113:23 (describing intact D&E); 150:19-151:14 (in an

intact D&E “no instrument . . . enters the uterus”); 165:25-166:17;

175:25-176:3; 213:21-214:6.

* See Tr. 73 (Paul); 187 (Sheehan); 282 (Drey); Grunebaum

Dep. 85:5-21; 125:23-126:1. See also Plaintiffs’ Exh. 36

(Frederiksen Exp. Rep.), at 4 (in a D&E, “I am unaware of when the

fetal heart stops beating”).

she knows that it is the act of separating the head from the body,

crushing the head with forceps or puncturing the base of the

head with a sharp instrument and suctioning (or draining) its

contents that causes the death of a fetus that was alive at the

beginning of the procedure."® It is precisely because an intact

D&E has distinctive characteristics that differentiate it from a

standard D&E that respondents’ experts were able to describe

it in a leading textbook on abortion practice, teach it as a

procedure in medical school and study its relative safety.'!

Respondents’ experts testified that, before performing a

standard D&E, they cannot usually predict whether the fetus

'° See Tr. 512 (Broekhuizen); 823 (Westhoff); 1783-84

(Chasen); Grunebaum Dep. 126:2-4; 127:2-4; 230:13-19; Frederiksen

Dep. 28:23-29:17. See also Plaintiffs’ Exh. No. 36 (Frederiksen Exp.

Rep.), at 4 (physician knows that the fetus will not survive an overt

act compressing its head). Physicians who do not intend to perform

an intact D&Es also recognize that these acts cause death. See Tr. 73

(Paul); 422 (Doe).

'' Dr. Paul’s standard reference text on abortion, “A

Clinician’s Guide to Medical and Surgical Abortion,” includes a

separate section on “intact D&E.” Tr. 11-12, 44 (Paul). Both Dr.

Westhoff and Dr. Chasen teach the intact variation of D&E at their

university medical centers. See Tr. 795, 83 1-32 (Westhoff); 1711-12

(Chasen). Intact D&E is also taught at a number of other universities

and medical colleges. See Tr. 832 (Westhoff). And Dr. Chasen was

able to design and conduct a “retrospective cohort study” of 383

patients (Plaintiffs’ Exhibit No. 19) comparing the relative safety of

intact D&E, referred to in the study as “intact dilation and

extraction,” with disarticulation (dismemberment) D&E at 20 weeks

or greater gestational age. Tr. 1735-39, 1742. The study

differentiated between “disarticulation with forceps” and “intact

extraction,” in which the fetus was removed intact up to the head or,

in a handful of cases, when the fetus had already died, and

disarticulation without forceps occurred after the lower extremities

and pelvis had been removed. Tr. 1740-41.

10

will be removed substantially intact or disarticulated.'? In their

experience, however, removal of an intact (or largely intact)

fetus is the exception, not the rule.'’ And even in those

'? See Tr. 71, 121 (Paul); 206-07, 235 (Sheehan); 406-07,

420, 426, 436, 455, 458, 462-63 (Doe); 522 (Broekhuizen); 681, 786

(Creinin).

'3 See Tr. 71 (Paul) (5-10% of second-trimester D&Es); 571

(Broekhuizen) (same); 273 (Sheehan) (one out of every fifteen

second-trimester D&Es); 432 (Doe) (15% of second-trimester D&Es,

of which 80% were partially delivered and 20% were completely

delivered without further instrumentation); 681, 731 (Creinin) (once

a month, or slightly more than 2% of the 500 abortions he performed

in a recent year). Out of 5,000 D&E abortions Dr. Creinin has

performed, the fetus has been delivered intact up to the head before

becoming lodged at the internal cervical os on only 50 occasions.

See Tr. 732, 744-47. In Dr. Hammond’s experience, it happens only

three times a month. See Hammond Dep. |13:2-24. Out of the

hundreds of D&Es she has performed, Dr. Frederiksen was unable to

state whether she has performed even twenty intact D&Es (or intact

D&Xs). See Frederiksen Dep. 25:5-8; 26:7-9; 31:6-12; 32:3-6.

These physicians generally expect that the abortion will proceed as

a dismemberment D&E. See Tr. 223 (Sheehan) (“The procedure that

we use is generally disarticulation and crushing maneuvers to get the

fetus smal! enough to fit through the aperture”), 221-23 (“routine”

D&E “usually” involves disarticulation), 235 (disarticulation “is

what we generally do”); 435 (Doe) (common characteristic of a D&E

is disarticulation); Hammond Dep. 90:21-01:12 (in “most D&Es,”

the fetus is disarticulated in parts), id. at 81:18-21 (in performing a

D&E, Dr. Hammond “extract[s] portions of the fetus with repeated

insertions of the extraction forceps”) (emphasis added). In her expert

report, Dr. Frederiksen stated that “When performing D&E

abortions, . . . at least some degree of dismemberment in often

required.” Plaintiffs’ Exh. 36, at 2. In describing a standard D&E to

his patients, Dr. Broekhuizen informs them that he will use suction

methods and instruments “to remove the fetus in parts.” Tr. 510,

567. Dr. Creinin also informs his patients that the fetus will be

removed “in parts.” Tr. 739-40.

1]

exceptional cases, respondents’ experts, in performing a

standard D&E, attempt to complete delivery without causing

the death of the fetus by an overt act after the fetus has partially

emerged from the mother’s body beyond the anatomical

markers specified in the Act.'* It is only if the fetus cannot be

completely delivered without further intervention that these

physicians perform an overt act that causes the death of the

fetus.'° But that conduct does not bring them within the scope

of the Act because it was not their intent, at the outset of the

procedure, to deliver a living fetus partially outside the

mother’s body for the purpose of performing an overt act that

they know would kill the fetus before completing delivery.

Rather, their intent was, in the first instance, to deliver the fetus

'* See Tr. 60-61, 67-68, 71 (Paul); 193, 241-42 (Sheehan);

405, 432 (Doe); 511-12, 523 (Broekhuizen); 747 (Creinin) (referring

to five to ten “surgical transvaginal abortions” performed between

the sixteenth and twenty-four weeks of pregnancy in which the fetus

was removed intact without Dr. Creinin having to collapse the skull).

At or near twenty-four weeks’ gestation, however, Dr. Creinin takes

steps to avoid the delivery of a live baby, including holding the head

of the fetus on the internal side of the cervical os in order to collapse

the skull, even if the entire fetus could have passed through the

cervix without having its head compressed. See Tr. 747-48. Dr.

Frederiksen testified that it is “preferable” to remove the fetus intact

without compressing the head. Frederiksen Dep. 30:5-14. Dr.

Hammond testified that it would be “desirable” ina D&E “to remove

the entire fetus intact from inside through the cervix out of the body

without disarticulation, decompression or any other maneuver,”

although, in his experience, that has never been possible with a live

fetus. Hammond Dep. 104:10-23. With induction procedures, when

fetal demise has not been caused beforehand by an injection of

digoxin or potassium chloride, Dr. Hammond never takes steps to kill

the fetus during or after the procedure. If the fetus is born alive, he

provides appropriate comfort care for the baby. /d. 184:4-17.

'S See Tr. 61, 70 (Paul); 193, 206, 235 (Sheehan); 405, 433

(Doe); 512, 523-24 (Broekhuizen); 680-81, 744-46 (Creinin).

12

vaginally without performing an overt act that would cause its

death after it had been partially delivered.

Intent at the time the procedure begins, then, is key to

liability under the Act (along with performance of the conduct

described therein). Unlike physicians who perform standard

D&Es, Dr. Westhoff and Dr. Chasen, as a routine part of their

abortion practice and in their teaching, perform second-trimes-

ter D&Es with the express intention, at the outset of the

procedure, of delivering an intact fetus beyond the anatomical

markers set forth in the statute, for the purpose of performing an

overt act that they know will cause the death of the fetus after

it has been partially vaginally delivered. See Tr. 795, 801-02,

805, 816-17, 823 (Westhoff); 1710-12, 1722 (Chasen).'® In

contrast to the practice of Drs. Paul, Sheehan, Doe,

Broekhuizen, Hammond and Frederiksen and, in certain

circumstances, Dr. Creinin, in performing standard D&Es (see

note 14, supra), neither Dr. Westhoff nor Dr. Chasen allows a

partially delivered fetus to be completely delivered without

causing its death by an overt act. See Tr. 817, 823 (“at that

point I will perform one or more acts . . . that I know will kill

the fetus”) (Westhoff); 1783-84 (Chasen) (same)."’

'° As did Dr. Grunebaum, before he stopped performing

abortions. See Grunebaum Dep. 88:5-91:2; 95:17-96:21; 106:6-

113:23.

'” See also Grunebaum Dep. 96:23-97:17 (Dr. Grunebaum

has never performed an intact D&E on a live fetus when the entire

fetus was delivered “head to toe” without having its brains suctioned

out while its head was lodged at the internal cervical os). Along with

Dr. Creinin’s chilling testimony that “the purpose of my act is to kill

the partially-delivered living fetus because that’s the objective of the

abortion,” Tr. 683, this practice raises disturbing questions about the

nature of the “abortion liberty.” Is it the right not to be pregnant

anymore? or the right to a dead baby when a living (if not viable)

baby could have been delivered without in any way endangering the

13

Moreover, again unlike physicians performing standard

D&Es, who do not take any special steps to ensure that the fetus

will be delivered intact,'* both Dr. Westhoff and Dr. Chasen

employ distinctive maneuvers in performing an intact D&E and

both provide significantly greater dilation of the cervix than

they would in performing a standard D&E at an earlier stage of

pregnancy. See Tr. 836-40 (Westhoff); 1723 (Chasen).'* Asa

result, Dr. Westhoff, succeeds in performing an intact D&E in

one-third to one-half of the cases in which she intends to

perform the procedure (after the 19" or 20" week of gestation),

mother’s life or health? Both Dr. Broekhuizen (Tr. 610-11) and Dr.

Westhoff (Tr. 847-49) testified that when an abortion is indicated

because of maternal health conditions, it is never medically

necessary to kill the fetus in the process. In Wynn v. Scott, 449 F.

Supp. 1302 (N.D. Ill. 1978) , appeal dismissed, 439 U.S. 8 (1978),

aff'd sub nom. Wynn v. Carey, 599 F.2d 193 (7" Cir. 1979), the

district court held that, when a physician has a choice of procedures,

both of equal risk to the woman, the State may, without interfering

with the woman’s right to terminate her pregnancy, require the

physician to use that procedure “which is least likely to kill the

fetus.” 449 F. Supp. at 1321. The court explained, “Ji never could

be argued that she has a constitutionally protected right to kill the

fetus. She does not.” Id. (emphasis added).

'§ See Tr. 435-36 (Doe); 520 (Broekhuizen); 685 (Creinin).

See also Tr. 205 (Sheehan) (suggesting that whether the fetus

emerge: . -.act is a matter of happenstance). Dr. Sheehan has never

performed an intact D&E, as it has been described by the American

College of Obstetricians & Gynecologists. See Tr. 213. Dr. Creinin

has performed an intact D&E only three times, see Tr. 736, 784, but

never with that intent at the beginning of the procedure. See Tr. 766

(“I didn’t set out to do it, but it happened that way”).

'° See also Grunebaum Dep. 58:24-59:6; 72:6-9 (same).

Given adequate dilation, Dr. Grunebaum has a choice to do “an

extraction D&E or a dismemberment D&E.” Jd. 212:21-213:4.

14

see Tr. 819, 836,” which is a significantly higher percentage

than is reflected in the experience of those physicians who do

not set out to perform intact D&Es and who do not take any

special steps to ensure that the fetus will be delivered intact.

See note 13, supra (indicating that the fetus is partially vagi-

nally delivered intact in only one to twelve percent of the

second-trimester D&Es that they perform).

In addition to Dr. Westhoff and Dr. Chasen (and Dr.

Grunebaum, when he performed abortions), Dr. Broekhuizen,

on very rare occasions, has used his “serial dilitat:on [dilation]”

technique as an alternative to “the traditional D&E-type

method,” in a manner that would violate the Act. Tr. 536. See

also Tr. 588. With that technique, Dr. Broekhuizen dilates the

cervix with laminaria every four to six hours until he has

achieved enough dilation to extract the fetus. Tr. 538. At that

point, if there is sufficient dilation for only partial, as opposed

to total, extraction, he “compress[es] and decompress[es]” the

head of the fetus to complete the procedure. Tr. 538. On two

of the three occasions in which he intended to use this tech-

nique,”' the fetus was delivered completely intact without Dr.

Broekhuizen having to “compress” or “decompress” the fetal

° Dr. Grunebaum reported the same results. See Grunebaum

Dep. 47:14-20 (one-half to two-thirds of the 100 D&Es he performed

in a recent three year period were not intact D&Es, implying that

one-third to one-half were intact D&Es). Dr. Chasen did not

quantify how often he succeeds in attempting to perform intact

D&Es, perhaps because he performs only three to five abortions per

month. See Tr. 1710.

*! One case involved a patient who had scleroderma with

pulmonary hypertension and vascular disease; the other involved a

patient whose fetus had a lethal anomaly, skeletal dysplasia (a form

of dwarfism). See Tr. 537, 539. 591-92, 598-600. Dr. Broekhuizen

uses his “serial dilitation” technique whenever he intends to deliver

the fetus intact to the head. Tr. 588-59.

15

head. Tr. 538-40. Nevertheless, in choosing this abortion

method in these two instances, his purpose was to deliver the

fetus intact only up to the head, a method he called “intact

D&E,” or “D&X.” Tr. 588-90, 600. On the third occasion,

involving a fetus “with a lethal chromosomal anomaly and

significant macrocephaly [or “hydrocephaly,” an enlarged head

caused by excess fluid in the skull, Tr. 603) that clearly was

incompatible with survival,” Dr. Broekhuizen induced labor

with serial dilation of the cervix, delivered the fetus until its

head lodged at the internal cervical os, then inserted a thin

trocar (a hollow instrument with a sharp edge, see Tr. 524) into

the base of the skull, drained the fluids and brain tissue,

collapsed the skull with forceps and completed the delivery. Tr.

540-42, 602-03, 606. The fetus was alive when its head lodged

at the internal os. Tr. 542. Dr. Broekhuizen acknowledged,

however, that in certain circumstances excess fluid may be

removed with a needle without causing the death of the fetus.

See Tr. 603-06.” In sum, when it is given its proper construc-

tion, the Partial-Birth Abortion Ban Act applies only to physi-

cians who intend, at the beginning of an abortion procedure, to

perform an intact D&E — the Act does not apply to physicians

who perform dismemberment D&Es.

Induction Procedures

Respondents claimed that physicians who perform

induction abortions could be found to have violated the Act, at

least in certain circumstances. See Supp. Cplt. at 8-11, {J 25-

27, 29, 31. This case, however does not provide the Court with

an appropriate vehicle for determining what effect, if any, the

” Dr. Broekhuizen mentioned that on one or two other “rare”

occasions, he had patients who were opposed to induction but

wanted an intact fetus for autopsy purposes. Tr. 540. He admitted,

however, that compression (or decompression) of the head in these

circumstances would destroy the brain and preclude the ability to

examine the brain for any pathological analysis. See Tr. 581-82

16

Act has with respect to the performance of induction abortions

and, if so, whether that effect is constitutional. Planned

Parenthood Federation of America does not provide any

medical services. See Tr. 130-31 (Craig). Planned Parenthood

Golden Gate, the other original plaintiff, does not perform

inductions at any of their clinics. See Tr. 10 (Paul). Neither

respondent alleged that it offers induction procedures. See

Supp. Cplt. at 3-4, 99 9, 10. Inductions are performed in

facilities operated by the City and County of San Francisco, the

intervening plaintiff, but in describing the impact of the Act on

their services, Dr. Drey mentioned only D&Es, not inductions.

See Tr. 281-84, 334. Four of respondents’ expert witnesses —

Drs. Broekhuizen, Hammond, Grunebaum and Frederiksen -

perform inductions and testified (or stated in their expert

reports) that the Act could affect such procedures.”” None of

them, however, is employed by or performs abortions for the

respondents.” It was improper, therefore, for the lower courts

to consider whether the Act could apply to inductions. In any

event, their resolution of this issue was erroneous.

In an induction, the fetus is normally delivered completely

intact without the necessity of performing an overt act that kills

the fetus after it has been delivered past the anatomical markers

specified in the Act. It is the rare situation when, in a breech

presentation, the head of the fetus lodges at the internal cervical

os and cannot be removed without being compressed or having

* See Tr. 551-53 (Broekhuizen); Hammond Dep. 327:6-

329:11; Grunebaum Dep. 224:6-14; Plaintiffs’ Exh. 36 (Frederiksen

Exp. Rep.), at 4. Dr. Chasen performs inductions, but offered no

opinion on the effect of the Act on inductions. Dr. Doe’s opinion

was excluded. See note 4, supra.

** Dr. Broekhuizen is the part-time medical director of

Planned Parenthood of Wisconsin (which is not a respondent in this

case), but he does not perform abortions at any of their facilities. See

Tr. 486-88 (Broekhuizen).

17

its contents suctioned,” or, in a vertex presentation, the body is

trapped by the umbilical cord after the head has passed through

the cervix.” In other words, surgical intervention to complete

an induction is not planned. See Grunebaum Dep. 224:9-10

(“You plan not to do [a] D&E”). The absence of a specific

intent, at the beginning of the procedure, to perform the acts

prohibited by the Act takes the physician’s conduct outside the

scope of the Act, even in those situations in which he

“anticipate[s]” that he may have to complete an induction

instrumentally. Tr. 551-52 (Broekhuizen). The mere possibil-

ity that the physician may have to complete an induction or, for

that matter, a D&E, in a manner that is described in the Act

does not satisfy the statutory requirement that the physician

perform the proscribed procedure “knowingly,” much less that

he or she does so “deliberately and intentionally.” See United

States v. Bailey, 444 U.S. 394, 404-05 (1980) (discussing

various mental states). The Act does not apply to inductions.”’

*® See Plaintiffs’ Exh. 36 (Frederiksen Exp. Rep.), at 4 (it is

only when “the induction fails” that “delivery must be completed

using D&E surgical techniques”). Dr. Frederiksen normally injects

potassium chloride into the fetal heart the day before an induction.

See Frederiksen Dep. 100:6-13; 103:24-104:5; 109:8-16; 112:22-

113:8 (“routinely” causes fetal death by intracardiac injection before

performing an induction). The Act would not apply to Dr.

Frederiksen in such situations, regardless of her intent.

*° See Hammond Dep. 328:18 (not “a common scenario”).

*? Dr. Broekhuizen testified that in a few “fairly rare

situations” involving lethal “disfiguring fetal anomalies,” he caused

fetal death (by decompressing the chest or abdomen) after the child’s

entire head was outside the mother’s body (in procedures that began

as inductions). See Tr. 552-53. If, at the beginning of those

procedures, it was his intent to proceed in this manner, then his

conduct would fall within the scope of the Act.

18

Il.

THE ACT IS NOT UNCONSTITUTIONALLY VAGUE.

In their complaint, respondents alleged that “the [Partial-

Birth Abortion Ban] Act is so vague that it fails to give physi-

cians fair warning of which abortion procedures are prohibited.”

Supp. Cplt. at 2,44. See also id. at 3-5, ¥§ 9-10. For that

reason, respondents contended, the Act “forces physicians to

guess — under threat of criminal prosecution and civil liability

— whether performing an accepted medical procedure falls

within the Act’s proscription.” /d. at 10, 4 30. “Moreover,”

respondents alleged, “because of the Act’s vagueness, prosecut-

ing attorneys may differ widely as to what conduct they believe

is proscribed by the Act. It thus subjects [respondents] to

arbitrary and discriminatory prosecution.” /bid. Relying on

these allegations, respondents claimed (in their Fourth Claim

for Relief) that, “[b]y failing to give adequate notice of the

procedures it proscribes, and by encouraging arbitrary enforce-

ment, the Act is impermissibly vague, thereby violating the

right of [respondents] and their employees and agents to due

process, as guaranteed by the Fifth Amendment.” /d. at 12, 4

43. As previously noted, the Ninth Circuit agreed with respon-

dents’ claim, finding that the terms “partial-birth abortion,”

“living fetus” and “overt act” are impermissibly vague. See 435

F.3d at 1181-84. That conclusion, however, is not supported by

the law or the facts.

To survive a vagueness challenge, a statute “must give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). But the

Constitution does not demand “impossible standards of clarity,”

Kolender v. Lawson, 461 U.S. 352, 361 (1983) (internal

quotation marks omitted), nor does it require that statutory

language provide “mathematical certainty.” Grayned, 408 U.S.

at 110. Rather, a statute is not vague if it is “clear what the

[statute] as a whole prohibits.” Jd.

19

-

“Partial-Birth Abortion”

Dr. Doe testified that the term “partial-birth abortion” has

no “commonly understood meaning.” Dr. Hammond agreed,

adding that the Act attempts to describe a procedure that does

not exist in medical practice. See Hammond Dep. 199:18-22.”

But whether “partial-birth abortion” has a “commonly under-

stood meaning” is irrelevant where, as here, the Act itself

clearly defines the term. Respondents’ expert witnesses stated

or implied that the Act would apply to a physician who intended

to perform (and did perform) an intact D&E.” The Act,

therefore, has an irreducible core of meaning which respondents

clearly understand. Their belief that the Act could apply to

dismemberment D&Es and inductions, however, is ill-founded

and, as explained above, cannot be reconciled with the language

and structure of the Act.

“Living Fetus”

Respondents’ expert medical witnesses agreed that a

“living fetus” is a fetus with a heartbeat.*° “Fetus,” in turn,

refers to an unborn child that has developed beyond the

_ embryonic stage, which is ten weeks as measured by the first

** Dr. Chasen, however, appeared to understand that the term

“partial-birth abortion” refers to an intact D&E. See Tr. 1788.

?° See Tr. 77-78, 92-93 (Paul); 205 (Sheehan); 282-83, 334

(Drey); 420, 422 (Doe); 507-08 (referring to “serial dilitation”

method), 536-40, 582-83 (describing patients for whom intact

procedure was used), 550-51 (impact of Act) (Broekhuizen); 735-37,

786 (Creinin); 795, 822-23, 830-32 (Westhoff); 1787 (Chasen);

Hammond Dep. 199:7-201:7; Plaintiffs’ Exh. 36 (Frederiksen Exp.

Rep.), at 3-4.

© See Tr. 76 (Paul); 201 (Sheehan); 421 (Doe); 788

(Creinin); 822-23 (Westhoff); Frederiksen Dep. 105:6-11;

Grunebaum Dep. 229:22-230:1; Hammond Dep. 186: 13-20.

20

day of the woman’s last menstrual period (Imp) or eight weeks

post-conception. See Tr. 14-15, 76 (Paul); 788 (Creinin); 1710

(Chasen). The term “living fetus” does not refer to a viable

fetus, see Tr. 76 (Paul); 421 (Doe); 787-88 (Creinin), i.e., a

fetus which has “a realistic chance of long-term survival outside

the uterus.” Tr. 14 (Paul). The term “living fetus” is not vague.

“Overt Act”

Two of respondents’ experts testified, without explana-

tion, that they did not understand what the term “overt act”

means. See Tr. 78 (Paul); 202 (Sheehan). Numerous federal

statutes, however, use the term “overt act” to define crimes,”'

and none has been held to be vague. In criminal law, “an overt

act” is “an outward act done in pursuance of the crime and in

manifestation of an intent or design, looking toward the

accomplishment of the crime.” Chavez v. United States, 275

F.2d 813, 817 (9" Cir. 1960). Here, “overt act” simply refers

to a distinct physical act that kills the fetus after it has been

partially vaginally delivered (beyond the anatomical markers set

forth in the Act), “other than completion of delivery.” 18

U.S.C. § 1531(b)(1)(B). Limited in scope by this language, the

Act does not include those acts (e.g., cutting the umbilical cord)

that would be required to complete delivery. The language in

the Act is not unconstitutionally vague.

Il.

OFFICIAL STATE ABORTION REPORTING

STATISTICS ALSO REFUTE THE VAGUENESS

AND UNDUE BURDEN CHALLENGES TO THE ACT.

As explained above, the Partial-Birth Abortion Ban Act,

*! See, e.g., 18 U.S.C. § 1117 (“overt act” in furtherance of

conspiracy to commit designated homicides); id. § 1201(c) (“overt

act” in furtherance of conspiracy to kidnap); id. § 2101(a) (“overt

act” done to incite riot).

21

properly understood and interpreted, applies only to intact

D&Es (performed with the requisite specific intent), and not to

dismemberment D&Es and inductions. Apart from the analysis

set forth in Sections I and II, however, there is a practical

method for testing respondents’ claims (and the Ninth Circuit’s

holdings) that the Act imposes an “undue burden” on physicians

who perform pre-viability, second-trimester abortions, and that

the Act is so vague that physicians must guess at its meaning

and application.

That method examines official abortion reporting statistics

from three of the five States — Indiana, Mississippi, South

Carolina, South Dakota and Tennessee — whose partial-birth

abortion acts were not challenged prior to this Court’s decision

in Stenberg v. Carhart, 530 U.S. 914 (2000), and from one

State — Virginia — whose law went into effect during litigation.”’

In considering the significance of these statistics, it must be

kept in mind that the statutes in these States were not drafted

with the same precision as the federal law at issue in this case.”

* The statistics set forth in this brief, along with abortion

reporting statistics from South Carolina and Tennessee, are also set

forth in the brief amicus curiae submitted in Gonzales v. Carhart,

No. 05-380. In Carhart, amicus presented the statistics to address an

“undue burden” claim. Here, they are presented in abbreviated form

to address respondents’ “undue burden” and vagueness claims.

* Even if these statistics are not legislative facts, they are

adjudicative facts of which the Court may take judicial notice. See

FED. R. EVID. 201, and the authorities cited in the brief amicus

curiae submitted in Gonzales v. Carhart, No. 05-380, at 14 note 9.

Documents authenticating the statistics discussed in this brief are

included in the appendices.

* Indiana, Mississippi and South Dakota defined “partial-

birth abortion” to mean an abortion in which the person performing

the abortion partially vaginally delivers a living fetus before killing

the fetus and completing the delivery. See IND. CODE ANN. § 16-18-

22

Yet, despite the imprecise language of these statutes, physicians

were not deterred from performing conventional second-

trimester abortion procedures. They understood, in other words,

that the partial-birth abortion statutes in these States did not

prohibit dismemberment D&Es or inductions. And neither does

the Partial-Birth Abortion Ban Act of 2003.

Indiana, Mississippi and South Dakota all enacted partial-

birth abortion bans that became effective on July 1, 1997. See

IND. CODE ANN. § 16-18-2-267.5 (West Supp. 2005) (defining

offense); § 16-34-2-1(b) (West Supp. 2005) (prohibition); Miss.

CODE ANN. § 41-41-71 ef seg. (1999); S.D. CODIFIED LAWS §

34-23A-27 et seq. (Michie Supp. 2003). None of these statutes,

prior to Stenberg, was construed by any state or federal court.

A comparison of official abortion reporting statistics from

these States for the first half of 1997, when none of their

statutes was in effect, to statistics for the second half of 1997,

when all three were in effect, leaves no doubt that respondents’

expressed fears that the federal Act would “chill” physicians

from performing dismemberment D&Es and inductions are

baseless. That comparison also shows that respondents’

professed inability to understand what the Act forbids is more

contrived than genuine. Review of these statistics enables this

Court “to perform a reality check” on respondents’ assertion

that they would not be able to perform conventional second-

trimester abortion procedures if the Act were allowed to go into

effect. Hope Clinic v. Ryan, 195 F.3d 857, 870 (7" Cir. 1999)

(en banc), vacated and remanded with directions, 530 U.S.

1271 (2000), on remand, 249 F.3d 603 (7" Cir. 2001) (en banc).

2-267.5 (West Supp. 2005); MISS. CODE ANN. § 41-41-73(2)(a)

(1999); S.D. CODIFIED LAWS § 34-23A-32 (Michie Supp. 2003).

Virginia added the phrase, “or a substantial portion thereof,” to the

words “living fetus.” See VA. CODE ANN. § 18.2-74.2(D) (Michie

Supp. 1999). None of these statutes required that the fetus be

delivered beyond an anatomical marker outside the mother’s body.

23

Indiana

The Indiana State Department of Health reported that

13,208 abortions were performed in 1997, of which 12,429

were suction curettage, 87 sharp curettage, 159 dilation and

evacuation (D&E), and two intra-uterine prostaglandin instilla-

tion. See Appendix A-2.*° The statistics reflect that 54.71% of

the dilation and evacuation procedures (87 of 159) were

performed in the second half of the year (when the Indiana

partial-birth abortion act was in effect). As these statistics

show, the partial-birth abortion act did not prevent physicians

in Indiana from performing dismemberment D&Es.

“These data,” the Seventh Circuit noted, “are incompati-

ble with plaintiffs’ a priori belief that the partial-birth abortion

statutes will discourage the performance of the D&E procedure

Or cause the physician to substitute an inferior procedure.”

Hope Clinic, 195 F.3d at 871. In the eighteen months after the

Indiana partial-birth abortion statute took effect (July 1, 1997

through December 31, 1998), there were 286 D&Es, while in

the eighteen months before the statute took effect (January |,

1996, through June 30, 1997), there were 263 D&Es. See

Appendix A-2 and INDIANA TERMINATED PREGNANCY REPORT

1996 (Jan. 1998) at 20 (Table 20), INDIANA NATALITY, IN-

DUCED TERMINATION OF PREGNANCY, AND MARRIAGE RE-

PORT[:] STATE, COUNTY, AND CITY DATA 1998 at 84 (Table

18). This certainly does not suggest that physicians in Indiana

were deterred or discouraged from performing dismemberment

D&Es by the enactment of the partial-birth abortion statute.

Official abortion reporting statistics from other States

confirm the Seventh Circuit’s sense that “partial-birth abortion

statutes need not have [and, in fact, did not have] the baleful

effect the [respondents] foresee.” Hope Clinic, 195 F.3d at 817.

** In addition, there were 371 unknown procedures and 160

procedures not otherwise classified.

24

Mississippi

The Mississippi State Department of Health reported that

4,325 abortions were performed in Mississippi in 1997, of

which 2,494 were suction curettage, one sharp curettage, 1,788

dilation and evacuation (D&E), and 23 intra-uterine prostaglan-

din instillation. See Mississippi VITAL STATISTICS 1997 at 43

(Table F3).** A breakdown of the data by pro edure and month

discloses that 41.94% of the dilation and evacuation procedures

(750 of 1,788), and almost two-thirds of the prostaglandin

instillation procedures (15 of 23) were performed in the second

half of the year, during the time that the Mississippi partial-birth

abortion act was in effect. See Appendix B-2. Although the

number of D&Es as a percentage of all abortions declined from

44.07% for the first six months of the year (1,038 of 2,355) to

38.07% for the second six months of the year (750 of 1,970),

both the number of D&Es performed in the second half of the

year (750) and the number of D&Es as a percentage of all

abortions for the second half of 1997 (38.07%) leave little doubt

that Mississippi’s partial-birth abortion act did not prevent

physicians in Mississippi from performing dismemberment

D&Es. Nor, given the greater numbers of induction abortions

performed in the second half of the year, were Mississippi

physicians deterred from performing induction procedures.

In 1998, the first full year after the Mississippi partial-

birth abortion act took effect, almost one-third of all abortions

performed in Mississippi (1,287 of 3,955) were D&Es. See

MISSISSIPP! VITAL STATISTICS 1998, Table F3 at 43. This

represents a slight decline from 1996, the last full year before

the partial-birth abortion act took effect, when approximately

37% of all abortions (1,553 of 4,206) were D&Es. See MIssIs-

SIPP! VITAL STATISTICS 1996, Table F3 at 43. Nevertheless, the

small number of instillation procedures (32) and procedures not

otherwise classified (13), which together account for barely one

*° There were 19 procedures not otherwise classified. /d.

25

percent of all abortion procedures performed in 1998, suggests

that physicians performing abortions in Mississippi were not

deterred from performing dismemberment D&E procedures

after the partial-birth abortion act became effective. But

perhaps the most significant statistic is that more than 2,000

D&Es were performed in Mississippi in the eighteen months

after the partial-birth abortion act became effective on July 1,

1997. See Appendix B-2 and Mississippi! VITAL STATISTICS

1998 at 43 (Table F3). Thus, there is no evidence that physi-

cians in Mississippi were deterred from performing dismember-

ment D&Es by the unchallenged partial-birth abortion act.

South Dakota

The South Dakota Department of Health reported that 919

abortions were performed in South Dakota in 1997, of which

702 were suction curettage and 217 were dilation and evacua-

tion (D&E). See SOUTH DAKOTA VITAL STATISTICS & HEALTH

STATUS 1997 at 67-68 & 77 (Figure 24). A breakdown of the

data by procedure and month reveals that 26.92% of the suction

curettage procedures (189 of 702) and all but one of the dilation

and evacuation procedures (216 of 217) were performed in the

second half of the year, during which time the South Dakota

partial-birth abortion act was in effect. See Appendix C-2.”

Obviously, the South Dakota partial-birth abortion act did not

prevent physicians from performing dismemberment D&Es.

Remarkably, almost three times as many D&Es were performed

in the eighteen months after the South Dakota partial-birth

abortion act took effect (889 procedures) as in the eighteen

months before the act took effect (307 procedures). See

Appendices C-2, C-4.

*” That all but one of the D&Es were performed in the fast

four months of the year, when only 15 suction curettage procedures

were performed, may have been attributable to the retirement of one

abortion provider, who preferred using suction curettage, and his

replacement by another, who preferred using D&Es.

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Virginia

As the result of a stay of a preliminary injunction, see

Richmond Medical Center for Women v. Gilmore, 144 F.3d 326

(4" Cir.) (Luttig, J.), the Virginia partial-birth abortion act (see

VA. CODE ANN. § 18.2-74.2 (Michie Supp. 1999)) went into

effect on July 1, 1998. The experience of physicians perfor-

ming abortions in Virginia after the statute took effect com-

pletely belied the district court’s statement, at the hearing on the

preliminary injunction, that “the Act is written so broadly and

vaguely that a prosecutor could interpret the Act to include the

procedures these physicians perform such as . . . D&E, as the

plaintiffs perform them.” Richmond Medical Center for Women

v. Gilmore, 11 F. Supp. 2d 795, 805 (E.D. Va. 1998). Accord-

ingly, the plaintiffs’ professed “fear [of] prosecution and the

loss of their medical license to practice if they continue per-

forming abortions in their normal course of practice,” id., was

shown to be groundless.

The Virginia Department of Health reported that 26,115

abortions were performed in Virginia in 1998, of which 24,920

were suction curettage, 14 sharp curettage, 268 dilation and

evacuation (D&E), 11 intra-uterine saline instillation and 98

intra-uterine prostaglandin instillation. See Appendix D-2.** Of

these, 46.26% of the dilation and evacuation procedures (124 of

268) and approximately one-half of the instillation procedures

(55 of 109) were performed in the second half of the year when

the Virginia partial-birth abortion act was in effect. Dilation

and evacuation procedures accounted for 1.07% of all abortions

performed in the first six months (144 of 13,341) and 0.97% of

all abortions performed in the last six months (124 of 12,773).

Although the number of D&Es declined by 13.88% from the

first half of the year to the second half of the year (144 to 124),

** The Department reported three hysterectomies, two

hysterotomies, 76 unknown procedures and 723 procedures not

otherwise classified. /d.

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the number of D&Es performed in the second half of the year

(124) suggests, as in the case of Mississippi, that the partial-

birth abortion act did not prevent physicians in Virginia from

performing dismemberment D&Es. Indeed, more D&Es were

performed in the last six months of 1998 (124), when the

partial-birth abortion act was in effect, than in the last six

months of 1997 (121), when the law was not in effect. See

Appendices D-2, D-3. So, too, more inductions were performed

in the last six months of 1998 (55), when the partial-birth |

abortion act was jn effect, than in the last six months of 1997

(30), when the law was not in effect. See Appendices D-2, D-3.

* * *

To summarize the foregoing statistics, almost 1,200 D&Es

were performed in just four States in the first six months after

their partial-birth abortion acts went into effect.*? Clearly, the

physicians in those States were not deterred from performing

dismemberment D&Es. Nor were they deterred from perform-

ing inductions. A total of 70 inductions were performed in

Mississippi (15) and Virginia (55) in the first six months their

partial-birth abortion acts were in effect, compared to 62 in the

previous six months. See Appendices B-2, D-2. There is no

evidence that physicians in these States were in any way

confused as to what abortions these laws prohibited.

In evaluating the impact of the unchallenged state paruial-

birth abortion laws on the incidence of dismemberment D&Es

and inductions, the experience of States whose laws were in

effect prior to Stenberg is highly instructive. Equally instruc-

tive, however, is the experience of these States subsequent to

Stenberg. Stenberg was decided on June 28, 2000. As of that

date, none of the foregoing partial-birth abortion statutes was

enforceable. Had physicians in those States whose laws had not

** Dilation and evacuation: Indiana (87); Mississippi (750);

South Dakota (216); Virginia (124).

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been enjoined been deterred from performing dismemberment

D&Es and labor inductions before the opinion in Stenberg was

announced, one would expect a dramatic increase in the

numbers of such abortions in the second half of 2000. The

official abortion reporting statistics from Indiana, Mississippi

and Virginia, however, do not show such an increase.“

In Indiana, significantly more D&Es were performed in

the first half of 2000 (122) than in the second half of the year

(89). See Appendix A-3.*' In Mississippi, the overwhelming

majority of D&Es (58 of 68, or 82.95%) were performed in the

Jirst half of 2000. See Appendix B-3. Although few intrauterine

instillation procedures were reported for Mississippi in 2000,

the majority of them (9 of 14) were performed in the first half

of the year. /d.” And in Virginia, slightly more than one-half

of the D&Es (1140 of 2154, or 53.57%) were performed in the

first half of the year, as well as half (7 of 14) of the intra-uterine

instillation procedures. See Appendix D-4.*

Notwithstanding respondents’ claims that the Act imposes

an “undue burden” on women seeking pre-viability, second-

trimester abortions, and that the Act is impermissibly vague —

claims that could never be empirically challenged because of

*° In South Dakota, the overwhelming majority of aborions

performed in 2000 (840 of 878) were classified as “sharp curettage.”

See Appendix C-6. Thirteen were classified as “medical.” Six of the

twenty-five D&Es were performed in the first half of the year. Jd.

*' The data for Indiana do not separately identify the number

of labor induction procedures, if any, that were performed during the

year. A total of 62 unknown procedures and 147 procedures not

otherwise classified were performed in Indiana during 2000.

* In Mississippi, only 21 procedures were not classified. /d.

* Virginia also reported 79 unknown procedures and 79

procedures not otherwise classified. /d.

29

the preliminary injunction that was entered in this case — the

experience in those States whose partial-birth abortion acts

were allowed to go into effect before Stenberg was decided, as

well as the experience of those States after Stenberg, proves

that physicians did understand the difference between what

those acts did and did not prohibit. They did not prohibit — and

were not understood to prohibit — dismemberment D&Es and

labor inductions. That, in turn, suggests that respondents’

expressed fears about being subjected to criminal prosecution

(and civil liability) for performing dismemberment D&Es and

inductions, and their professed doubts as to what conduct the

Act prohibits, are unfounded and unwarranted. The Act applies

only to a physician who, at the outset of performing an abortion,

specifically intends to perform an intact D&E, partially vagi-

nally delivers the fetus beyond the anatomical markers de-

scribed in the statute for the purpose of performing an “overt

act” that he or she knows will kill the fetus, and then performs

the overt act that kills the fetus, other than completing delivery.

CONCLUSION

For the foregoing reasons, as well as those set forth in

the brief of petitioner the United States, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Thomas Brejcha Paul Benjamin Linton*

Attorney at Law Attorney at Law

29 S. La Salle Street 921 Keystone Avenue

Suite 440 Northbrook, [L 60062

Chicago, IL 60603 (847) 291-3848

(312) 782-1680

August 2, 2006 | *Counsel of Record

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