Report: Summary of Ruling by U.S. Court of Appeals for the Seventh Circuit Upholding Two State Laws Banning Abortion

Planned Parenthood v. Doyle was decided by a 5–4 vote of the United States Court of Appeals for the Seventh Circuit on October 26, 1999. This case was decided by the full court along with Christensen v. Doyle, which was a separate appeal of the Wisconsin "partial birth" abortion decision, and Hope Clinic v. Ryan, which was a challenge to the Illinois "partial birth" abortion statute. In an opinion written by Judge Easterbrook, the U.S. Court of Appeals for the Seventh Circuit partially upheld Wisconsin’s so-called "partial birth" abortion statute enacted in 1998.

The Court’s Solution to the Statute’s Broad Reach Banning All Common Methods of Abortion

The court understood that the Wisconsin statute, as drafted, could be understood to ban previability abortions by all common methods. Rather than strike the statute down on this basis, the court focused on the various ways that, in theory, the State of Wisconsin could interpret the statute to narrow its reach to a specifically defined dilation and extraction (D&X) procedure. The court posited, for example, that the reach of the statute could be narrowed to the "medical definition" of D&X by a legislative amendment or a state court decision clarifying the definition of the banned procedures or requiring that a physician know what constitutes a banned procedure. However, not only did the court not state explicitly what the "medical definition" is, but the court also allowed that the statute could be applied to the "medical definition . . . with allowance for different ways of reducing the head size and other immaterial variations." As a federal court, however, the court of appeals does not have the authority to impose these interpretations.

Recognizing that the statute, in the absence of these "interpretations," could reach all common abortion methods, the court of appeals ordered that the district court issue a "precautionary injunction" to prevent the statute from being applied to "normal" dilation and evacuations (D&Es) and inductions while the hypothesized state-based process of further interpretation proceeded. (The unprecedented "precautionary injunction" appears to be an invention of the Seventh Circuit.) The court did not define "normal," highlighting the specious distinction between D&E and D&X, i.e., whether a D&E in which the fetus is partially extracted before any portion is dismembered is a "normal" D&E or is within the "medical definition" of D&X. With the "precautionary injunction" in place, under the court’s opinion, the statute would go into effect and physicians would be subject to prosecution for performing a D&X according to the "medical definition" and for performing abortions that vary from that definition in unspecified ways to be determined prosecution-by-prosecution.

This aspect of the court’s opinion is fraught with legal and practical problems. The court’s holding recognizes that the statute reaches many abortions, and violation of the statute carries a mandatory sentence of life in prison. Yet the court attempts through the device of a "precautionary injunction" to protect against the application of the statute to all abortions while simultaneously allowing the state to prosecute doctors for performing the "medically defined" D&X and to "work out" through a process of test prosecutions which variations on the "medical definition" are not "normal," and for which doctors can be prosecuted. This abdicates the federal court’s responsibility to strike down criminal statutes that chill the exercise of constitutional rights, and it imposes a situation of great uncertainty concerning what abortions can be performed without risk of prosecution.

Can the State Ban D&X, Precisely Defined? If So, Must There Be an Exception To Protect a Woman’s Health?

At trial, plaintiffs introduced substantial evidence to show that many physicians believe that performing D&E by extracting as much of the fetus intact as possible before dismembering (which could qualify as D&X) is often a safer way to perform D&E, especially after approximately 17 weeks gestation. Plaintiffs also introduced substantial evidence that D&X techniques were sometimes preferable — usually later in pregnancy — for specific medical conditions or pregnancy complications.

Rather than address these facts, the court held that the issue of whether D&X was ever necessary from the perspective of the patient’s health was "not a seriously contested issue" and that there was a rational basis for a legislature to conclude that banning D&X would not pose "hazards to maternal health."

The court then proceeded to conclude that (a) banning D&X is not an "undue burden" on access to abortion; (b) since the effects of such a ban would be limited, it could be justified by a state’s interest in "moral considerations"; and (c) given the presence of safe (although not always as safe) abortion alternatives, it was not necessary for the state to enact an exception that would allow a physician to use D&X when in his professional judgment it was necessary to protect a woman’s health.

These holdings are radical departures from existing law: Planned Parenthood v. Casey (1992) requires that the impact of a restriction be measured from the perspective of the women it would affect, not all women seeking abortions. Thus, the question of the impact of banning D&X should be answered from the perspective of those women whose doctors believe the method would be the safest. The ban would compromise the health of those women, and should thus be deemed a substantial obstacle and therefore an undue burden and unconstitutional.

The Supreme Court has never recognized an interest in "moral considerations" as a legitimate basis for imposing a burden on the exercise of the right to abortion, or any other constitutional right. Indeed, all relevant jurisprudence recognizes that the state must remain essentially neutral on "morality-based" efforts to regulate constitutionally protected conduct. The only permissible interests for regulating abortion are the interests in potential life and maternal health, neither of which the court found present here. By allowing regulations of "limited effect" for moral considerations, the court opens a Pandora’s box of daunting possibilities.

Supreme Court jurisprudence has consistently held a woman’s health to be a paramount interest to be protected in the context of any abortion restriction, even those that only operate post-viability. This constant thread has been embodied in an unbroken line of holdings that abortion regulations must have exceptions to allow doctors to make good faith professional judgments on a case-by-case basis and, when necessary to protect a woman’s health, to proceed in ways that would otherwise violate the statute. The court’s holding sets a new precedent by abandoning the primacy of protecting a woman’s health, and substitutes instead a blunt requirement that an exception to preserve a woman’s health is not necessary in the absence of an "articulable category" of cases where, in this context, D&X would be necessary to preserve a woman’s health.

Where Does This Case Go From Here?

The next step would be for the court of appeals to return the case to the district court, by issuance of a "mandate." Upon receipt of the mandate, the district court would issue a "precautionary injunction" and that, in theory, would be the end of the litigation.

In reality, further litigation is inevitable over such issues as the definition of "normal" D&Es and inductions, and what procedures remain subject to prosecution. Moreover, presumably there would be additional litigation to prevent prosecutions of physicians who perform procedures that they believe should be protected by the injunction.

On November 30, 1999, however, U.S. Supreme Court Justice Stevens issued an order staying the mandate until after the court determines whether it will review the Seventh Circuit holding.

We will petition the Supreme Court to review the court of appeals holding. In September, the Eighth U.S. Circuit Court of Appeals struck down abortion bans from Iowa (Planned Parenthood v. Miller), Arkansas (Little Rock Family Planning Services v. Jegley), and Nebraska (Carhart v. Stenberg). Given the conflict within the circuit courts created by the Seventh Circuit ruling, it is highly likely that the Supreme Court will now take up this issue, although it may chose to review the Eighth Circuit holdings instead of the Seventh Circuit holding.

The Dissent

Four judges on the Seventh Circuit dissented in an angry opinion authored by Chief Judge Posner. An excerpt follows:


. . . It is extremely difficult, indeed probably impossible, to distinguish a "partial birth" abortion from the methods of abortion that are conceded to be privileged. . . . We should consider therefore why any state would pass such a law. An important part of the answer is . . . [that] the states want to dramatize the ugliness of abortion.

. . . Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based . . . on sheer ignorance of the medical realities of late-term abortion.
. . . Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational. . .

. . . These statutes, remember, are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses . . . They are concerned with making a statement in an ongoing war for public opinion, though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women’s health. . .

. . . But if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women . . .

. . . The physician is not the real target of the statute; the pregnant woman is. It is not the physician’s pregnancy that is to be terminated. He has no incentive to undergo the agony of a criminal prosecution merely in order to perform an abortion in a particular way . . . The in terrorem [intimidating] effect of these statutes, especially the Wisconsin statute with its maximum penalty of life imprisonment, is likely to induce physicians in these states to steer well clear of the forbidden zone. What physician would be fool enough, or hero enough, to risk a criminal prosecution in order to explore the precise meaning and outer bounds of the precautionary injunctions . . . ?

. . . I do not mean to criticize anyone who believes . . . that abortion is always wrong . . . But what is at stake in these cases is whether the people who feel that way are entitled to coerce a woman who feels differently to behave as they would in her situation. The Constitution . . . answers this question "no."

Prepared by: Public Policy Litigation and Law Department of Planned Parenthood Federation of America