Richmond Medical Center for Women v. David M. Hicks

PUBLISHED
Filed: September 2, 2005
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 RICHMOND MEDICAL CENTER FOR
WOMEN; WILLIAM G. FITZHUGH,
M.D., on behalf of themselves, their
staffs, and their patients,
Plaintiffs-Appellees,
v.
DAVID M. HICKS, in his official
capacity as Commonwealth
Attorney for the City of Richmond;
WADE A. KIZER, in his official
capacity as Commonwealth
Attorney for the County of Henrico, No. 03-1821  Defendants-Appellants.
HORATIO R. STORER FOUNDATION,
INCORPORATED,
Amicus Supporting Appellants,
PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; VANESSA E.
CULLINS, Vice President for Medical
Affairs, Planned Parenthood
Federation of America; FORTY-TWO
INDIVIDUAL PHYSICIANS,
Amici Supporting Appellees. 
Remanded by Supreme Court, April 23, 2007

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 RICHMOND MEDICAL CENTER FOR
WOMEN; WILLIAM G. FITZHUGH,
M.D., on behalf of themselves, their
staffs, and their patients,
Plaintiffs-Appellees,
v.
DAVID M. HICKS, in his official
capacity as Commonwealth
Attorney for the City of Richmond;
WADE A. KIZER, in his official
capacity as Commonwealth
Attorney for the County of Henrico, No. 04-1255  Defendants-Appellants.
HORATIO R. STORER FOUNDATION,
INCORPORATED,
Amicus Supporting Appellants,
PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; VANESSA E.
CULLINS, Vice President for Medical
Affairs, Planned Parenthood
Federation of America; FORTY-TWO
INDIVIDUAL PHYSICIANS,
Amici Supporting Appellees. 
ORDER
I.
Upon a request for a poll of the court on the petition for rehearing
en banc, Judges Widener, Niemeyer, and Shedd voted to grant the
petition for rehearing en banc. Chief Judge Wilkins, Judges Wilkin-
son, Luttig, Michael, Motz, Traxler, King, Gregory, and Duncan
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voted to deny rehearing en banc. Accordingly, the petition for rehear-
ing en banc is denied.
II.
The panel considered the petition for rehearing. Judge Niemeyer
voted to grant the petition for rehearing, and Judges Michael and
Motz voted to deny the petition for rehearing. Accordingly, the peti-
tion for rehearing is denied.
III.
Judge Wilkinson, Judge Luttig, and Judge Michael filed separate
opinions concurring in the denial of rehearing en banc. Judge Nie-
meyer filed a separate opinion dissenting from the denial of rehearing
en banc, in which Judge Widener joined. The separate opinions are
attached.
IV.
Judge Williams, being disqualified, did not participate in the pro-
ceedings with respect to this case.
For the Court
/s/ Patricia S. Connor
Clerk
WILKINSON, Circuit Judge, concurring in the denial of rehearing en
banc:
Whatever one’s views on the various issues surrounding abortion,
ending the life of an infant at the moment of its birth is a uniquely
disturbing act.
At the very least, the democratic process should not be precluded
from coming to that judgment. We have always relied upon that pro-
cess to soften the harsh blows of life. The New Deal and Great Soci-
ety had in common a desire to help those who through no fault of
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their own found themselves in straitened circumstances. If our democ-
racy can work to enhance equal opportunity in life, should it not also
be permitted here to enhance the opportunity for life to begin? I am
at a loss to explain how a partially born child can be excluded from
the American embrace.
Whether a health exception to a partial birth abortion ban is a
necessity or a loophole — and the proper scope of such exceptions
— strike me as altogether fair and debatable questions, but again, I
believe the political process deserves some leeway in arriving at the
answers. Our democracy often cools passions by giving them appro-
priate expression. The partial birth abortion debate will, I fear, be only
further inflamed through judicially imposed solutions.
The moment a child is brought into the world is supposed to repre-
sent the ultimate in human joy. Instead, through methods of partial
birth abortion too gruesome to bear repetition here, medical science
is employed to bring a child’s life to an end. That a right to the "intact
D&E/D&X procedure" is now found in no less than our founding
document is simply and indescribably sad. The means that so trans-
form the miracle of birth are not something this good land should seek
to constitutionalize.
* * * *
We do not write upon a clean slate here. As circuit judges, we are
bound to follow the Supreme Court. I can find no fair basis for distin-
guishing this case from Stenberg v. Carhart, 530 U.S. 914 (2000). For
that reason, I vote to deny rehearing en banc.
LUTTIG, Circuit Judge, concurring in the denial of rehearing en
banc:
I vote to deny rehearing en banc in this case for the reasons stated
in my concurrence in Richmond Medical Center for Women v. Gil-
more, 219 F.3d 376 (4th Cir. 2000).
MICHAEL, Circuit Judge, concurring in the denial of rehearing en
banc:
I concur in the court’s denial of rehearing en banc. The panel deci-
sion, Richmond Medical Center for Women v. Hicks, 409 F.3d 619
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(4th Cir. 2005), holds that the Commonwealth of Virginia’s latest
statute criminalizing "partial birth abortion" is unconstitutional on its
face because it lacks an exception to protect a woman’s health. The
decision is mandated by Stenberg v. Carhart, 530 U.S. 914 (2000),
which holds that any statute banning "partial birth abortion," specifi-
cally the intact D&E/D&X procedure, must contain a health exception
in order to be constitutional.
In Carhart the Supreme Court, in striking down a Nebraska ban on
"partial birth abortion," based its holding on longstanding precedent
and a thoroughgoing analysis of all available medical information.
The Court began by recognizing the established standard from Roe v.
Wade, 410 U.S. 113, 164-65 (1973), a standard reiterated by the plu-
rality opinion in Planned Parenthood v. Casey, 505 U.S. 833, 879
(1992): "subsequent to viability, the State in promoting its interest in
the potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medi-
cal judgment, for the preservation of the life or health of the mother."
Carhart, 530 U.S. at 930 (internal quotation marks and citation omit-
ted). The Carhart Court applied this standard by examining medical
opinion and information regarding the intact D&E/D&X procedure
from a broad range of sources. The Court drew both from the record
and sources outside the record, including medical textbooks and jour-
nals covering abortion, the factual records developed in other "partial
birth abortion" cases, and amicus briefs (with citations to medical
authority) submitted by medical organizations. Based on all of this
information, the Court determined that substantial medical authority
supports the proposition that the intact D&E/D&X procedure offers
significant health and safety advantages in certain circumstances. See
id. at 934-38. This determination led the Carhart Court to establish
as a per se constitutional rule the health exception requirement for
any statute outlawing "partial birth abortion." Id. at 938 (holding that
"a statute that altogether forbids [the intact D&E/]D&X" procedure
necessarily "creates a significant health risk" and "consequently must
contain a health exception"). As Virginia acknowledges, its statute
criminalizes "the D&X procedure, or what is sometimes referred to
as an ‘intact D&E.’" Reply Br. of Appellants at 2; see also id. at 3
(identifying "[t]he central issue in this case" as "whether [Virginia]
may prevent use of the D&X or intact D&E" procedure). Because the
Virginia statute lacks a health exception, it is unconstitutional on its
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face. See Carhart, 530 U.S. at 938; see also Sabri v. United States,
124 S. Ct. 1941, 1948-49 (2004) (recognizing the validity of facial
challenges to statutes regulating abortion procedures).
NIEMEYER, Circuit Judge, dissenting from the denial of Virginia’s
petition to rehear this case en banc:
In the aftermath of the Supreme Court’s decision in Stenberg v.
Carhart, 530 U.S. 914 (2000) (holding unconstitutionally overbroad
a Nebraska partial-birth abortion statute), Virginia enacted a narrowly
focused law in 2003, making it a criminal offense "to kill a human
infant who has been born alive, but who has not been completely
extracted or expelled from its mother." Va. Code Ann. § 18.2-
71.1(B). The statute explicitly excludes numerous abortion methods
from its coverage and applies only to protect a live fetus that has been
delivered halfway into the world — i.e., either "the infant’s entire
head is outside the body of the mother" or, for a breech delivery, "any
part of the infant’s trunk past the navel is outside the body of the
mother." Id. § 18.2-71.1(D). Virginia found it unnecessary, based on
the narrow proscriptions of its statute, to include an exception for the
health of the mother because the available medical data revealed that
protecting a live fetus that is delivered at least halfway from its
mother does not put the mother’s health at risk.
Without analysis of the statute’s application to the facts in the
record, the panel majority struck down Virginia’s statute as unconsti-
tutional under Carhart. Rather than analyze the statute’s reach and the
record, the majority held simply that Carhart created a per se consti-
tutional rule that any partial-birth abortion statute must contain a
health exception regardless of whether the facts relevant to the stat-
ute’s prohibition demonstrate a need for one. See Richmond Med. Ctr.
for Women v. Hicks, 409 F.3d 619, 624-26 (4th Cir. 2005).
In addition, in striking down Virginia’s statute on a facial chal-
lenge, the majority disregarded the standard for reviewing facial chal-
lenges defined in United States v. Salerno, 481 U.S. 739, 745 (1987),
and ignored this circuit’s standard for facial challenges of abortion
laws, see Greenville Women’s Clinic v. Comm’r, 317 F.3d 357, 362
(4th Cir. 2002); Greenville Women’s Clinic v. Bryant, 222 F.3d 157,
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163-65 (4th Cir. 2000); Manning v. Hunt, 119 F.3d 254, 268-69 (4th
Cir. 1997).
These two issues — (1) whether Carhart creates a per se constitu-
tional rule and (2) whether facial challenges to abortion statutes are
governed by United States v. Salerno — are questions of exceptional
importance to the people of Virginia and to our jurisprudence and so
qualify this case for en banc review. See Fed. R. App. P. 35(a)(2). I
therefore take exception to our decision not to rehear this case
en banc.
Our court’s continuing rejection of Virginia’s multiple efforts to
legislate for the protection of fetuses, see Richmond Med. Ctr. for
Women v. Gilmore, 224 F.3d 337 (4th Cir. 2000); Richmond Med.
Ctr. for Women v. Hicks, 409 F.3d 619 (4th Cir. 2005), has created
an unnecessary tension between federal law and state sovereign
authority. As I demonstrated in my separate opinion, dissenting from
the majority, see Richmond Med. Ctr. for Women v. Hicks, 409 F.3d
at 630-34 (Niemeyer, J., dissenting), the Virginia statute before us
now, when analyzed against the record in this case, does not conflict
with the U.S. Constitution as interpreted in Carhart. The Carhart
holding relates to a totally different statutory proscription in the con-
text of a totally different factual record.
The statute at issue in Carhart provided that "‘[n]o partial birth
abortion shall be performed in this state,’" except "‘to save the life of
the mother.’" Carhart, 530 U.S. at 921 (quoting Neb. Rev. Stat. § 28-
328(1)). The Supreme Court read the Nebraska statute, which regu-
lated only the methods of performing abortions, to prohibit a broad
array of abortion procedures. The Court noted that the statute did not
"directly further an interest ‘in the potentiality of human life’ by sav-
ing the fetus in question from destruction." Id. at 930. Unlike the
Nebraska statute, the Virginia statute before us protects the fetus itself
— the "human infant who has been born alive, but who has not been
completely extracted or expelled from its mother," Va. Code Ann.
§ 18.2-71.1(B) — by prohibiting its destruction when it has been
delivered at least halfway into the world. The Virginia statute also
excepts from its coverage various abortion procedures prohibited by
the Nebraska statute.
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In addition, the record presented in Carhart was materially differ-
ent from that before us. In Carhart, the Nebraska statute was found
to prohibit a broad range of abortion procedures employed by doctors
at various stages of fetal growth in various conditions, leaving the
mother with no alternative when her health was at risk. The Supreme
Court observed that the record demonstrated such risk to be "highly
plausible." Carhart, 530 U.S. at 936. The Court accordingly con-
cluded that "[g]iven these medically related evidentiary circum-
stances, we believe the law requires a health exception." Id. at 937.
No similar evidentiary circumstances can be found in the record
here. The plaintiff presented no medical evidence to prove that the
prohibition in Virginia’s statute creates a risk to the mother’s health.
The Virginia statute protects the fetus in two limited scenarios: (1)
when it is delivered headfirst into the vagina or beyond and (2) when
it is delivered in breech position and the fetus is delivered halfway
into the vagina. As to the first scenario, no evidence exists in the
record to suggest that a prohibition against destroying the fetus
creates any risk to the mother’s health. As to the second scenario, all
of Virginia’s evidence and all of the written medical evidence indicate
that preserving the fetus presents no risk to the mother’s health. To
the contrary, when a fetus is delivered in breech position, the medical
evidence shows that the fetus can be safely delivered without deliber-
ately destroying it. Dr. Fitzhugh did assert in testimony that if the
fetal head becomes stuck — a rare occurrence even according to him
— the life of the mother is placed at risk. But the Virginia statute pro-
vides a specific exception for such a circumstance. See Va. Code Ann.
§ 18.2-71.1(E) (permitting destruction of the fetus "to prevent the
death of the mother").
In short, only by creating a per se constitutional rule and adopting
a liberal standard for evaluating facial challenges of statutes was the
majority able to strike down the Virginia statute. Neither action was
required by established law. It is clear for all to read that we are doing
not what is required by law, as I have amplified in my earlier opinion,
see 409 F.3d at 645-46 (Niemeyer, J., dissenting), but what we will.
And in doing so, we have unnecessarily extended the holding of Car-
hart.
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I deeply regret that we do not find these issues sufficiently impor-
tant to consider them as a court en banc, and I dissent from our
refusal to do so.
Judge Widener has joined in this opinion.
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