PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHMOND MEDICAL CENTER FOR

WOMEN; WILLIAM G. FITZHUGH, M.D.;

HILLCREST CLINIC; HERBERT C. JONES,

JR., M.D.; PLANNED PARENTHOOD OF

METROPOLITAN WASHINGTON, DC,

INCORPORATED; VIRGINIA LEAGUE FOR

PLANNED PARENTHOOD; PLANNED

PARENTHOOD OF THE BLUE RIDGE,

Plaintiffs-Appellees,

v.

JAMES GILMORE, in his official capacity

as Governor of the State of Virginia;

DAVID M. HICKS, in his official

capacity as Commonwealth Attorney

No. 98-1930

for the City of Richmond; DONALD S.

(CA-98-309-3)

CALDWELL, in his official capacity as

Commonwealth Attorney for the

County of Roanoke; HOWARD GWYNN,

in his official capacity as

Commonwealth Attorney for the City

of Newport News; CHARLES D.

GRIFFITH, JR., in his official capacity as

Commonwealth Attorney for the City

of Norfolk; ROBERT F. HORAN, JR., in

his official capacity as Commonwealth

Attorney for the County of Fairfax;

JAMES L. CAMBLOS, III, in his official

capacity as Commonwealth Attorney

for the County of Albemarle,

Defendants-Appellants.

Filed: June 30, 1998

11:50 p.m.

_________________________________________________________________
ORDER

LUTTIG, Circuit Judge:

The General Assembly of the Commonwealth of Virginia enacted

on March 12, 1998, and the Governor of the Commonwealth signed

into law on April 13, 1998, Virginia's Partial Birth Abortion Act. This

Act was modeled after the bill passed by the Congress of the United

States on October 8, 1997, which was supported by the American

Medical Association but subsequently vetoed by the President. The

undisputed purpose of Virginia's Partial Birth Abortion Act is to prohibit the late-term abortion procedure in which

the physician pulls a lower extremity into the vagina and

then uses his fingers to deliver the lower extremity and then

the torso followed by the shoulders and the upper extremities. At that point, the skull is lodged at the internal cervical

os. Usually the dilation is insufficient for the skull to pass

through. At that point, the surgeon slides his or her fingers

along the back of the fetus; uses a pair of blunt curved scissors to rupture the base of the skull; and uses a suction catheter to evacuate the contents of the skull and then applies

traction to the fetus to remove it from the patient.

Mem. Op. of District Court at 16-17. The Partial Birth Abortion Act

is to become effective at midnight tonight.

On May 21, plaintiffs, Richmond Medical Center, Hillcrest Clinic,

three branches of Planned Parenthood, and two doctors -- none of

whom, according to their own concessions and the findings of the district court, performs this procedure -- sought an injunction from the

federal district court in the Eastern District of Virginia barring the

Commonwealth and its officials from enforcing the Act. The plaintiffs

contended that the Act is unconstitutionally vague and also imposes

a facially unconstitutional burden on the abortion rights of the women

of the Commonwealth of Virginia. The Governor of Virginia and six

of the Commonwealth's Attorneys were named as defendants to the

lawsuit and vigorously defended the constitutionality of the statute on

behalf of the citizens of Virginia. On June 25, following hearings

before the district court, that court granted the preliminary injunction

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and, on June 29, declined to stay its order pending appeal to this

court.

This morning, the Commonwealth filed with me as a single Circuit

Judge an application pursuant to Federal Rule of Appellate Procedure

8 to stay the district court's preliminary injunction pending appeal. I

requested that the plaintiffs respond to the Commonwealth's submissions by 3:00 p.m. this afternoon. Having received and reviewed the

submissions of both parties, together with the opinion of the district

court, for the reasons stated I hereby grant the stay of the district

court's injunction requested by the Commonwealth of Virginia.

I.

Section 18.2-74.2(A) of the Virginia Code, which is entitled "Partial Birth Abortion Prohibited," provides as follows:

Notwithstanding the provisions of §§ 18.2-72, 18.2-73 and

18.2-74, a physician shall not knowingly perform a partial

birth abortion that is not necessary to save the life of a

mother. A violation of this section shall be punishable as a

Class I misdemeanor.

Va. Code § 18.2-74.2(A). A partial birth abortion is defined as

an abortion in which the person performing the abortion

deliberately and intentionally delivers a living fetus or a

substantial portion thereof into the vagina for the purpose of

performing a procedure the person knows will kill the fetus,

performs the procedure, kills the fetus and completes the

delivery.

Id. § 18.2-74.2(D). Like Congress in enacting the federal statute on

which Virginia's is modeled, the General Assembly of Virginia in

enacting section 18.2-74.2 intended to prohibit partial birth abortions,

otherwise known as the "intact dilatation and extraction" method of

abortion, see, e.g., Helen Dewar, AMA Backs "Partial Birth" Abortion

Curb, Wash. Post, May 20, 1997, at A1 ("the procedure called `partial

birth abortion' . . . [i]s medically known as intact dilation and extrac-

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tion"); Mem. Op. at 49 (explaining that AMA understood essentially

identical definitional language in federal bill to refer only to intact

D&X procedure); id. at 4 (noting that American College of Obstetricians and Gynecologists equates "partial birth abortion" with "intact

D&X"). As described by the American College of Obstetricians and

Gynecologists, similarly to the description recited by the district court

and quoted above, this method of abortion includes the following four

elements:

1. Deliberate dilatation of the cervix, usually over a

sequence of days;

2. Instrumental conversion of the fetus to a footling breech;

3. Breech extraction of the body excepting the head;

4. Partial evacuation of the intracranial contents of a living

fetus to effect vaginal delivery of a dead but otherwise intact

fetus.

American College of Obstetricians and Gynecologists Statement of

Policy (quoted in Mem. Op. at 4-5).

Plaintiffs concede, and the district court found, that they do not

perform this procedure. Furthermore, as explained below, the plain

language of section 18.2-74.2(D) cannot reasonably be read to prohibit the particular procedures that plaintiffs actually do perform.

Therefore, the district court's conclusion that the plaintiffs faced a

reasonable fear of prosecution under section 18.2-74.2(D), and thus

had standing to challenge that provision, was simply in error. See

Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 298

(1979).

II.

Section 18.2-74.2(D), which provides the statutory definition of a

partial birth abortion, sets forth the elements necessary in order to

establish a violation of Virginia's Partial Birth Abortion Act. As relevant here, to violate the statute, an abortion provider must (1) deliver

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an intact fetus or a substantial portion thereof, (2) while the fetus is

living, (3) into the vagina. In addition, in provisions barely mentioned

by the district court, the statute also includes two critical mens rea

requirements. Thus, the statute does not prohibit the mere delivery of

a living fetus or substantial portion thereof into the vagina, but, rather,

prohibits only the deliberate and intentional delivery of such a fetus

into the vagina. Indeed, even the intentional and deliberate delivery

of a living fetus into the vagina does not violate the statute unless

such delivery is for the specific purpose of performing a procedure

the provider knows will kill the fetus. Cf. Planned Parenthood v.

Doyle, 1998 WL 299912, at *6 (W.D. Wis.) ("To partially deliver a

fetus and violate the ban, the physician would deliberately and intentionally manipulate the body of the intact, living child partially out of

the body of the mother for the purpose of performing a procedure

intended to kill the child, and then kill the child.") (quoting medical

testimony).

When the statute is thus understood -- with both its actus reus and

explicit mens rea requirements appreciated-- the unreasonableness

of the district court's construction of the statute is apparent. The district court held that section 18.2-74.2(D) could reasonably be construed to prohibit abortions performed by suction curettage and

conventional dilatation and evacuation procedures, the two most common methods of abortion during the first two trimesters of pregnancy,

see, e.g., Mem. Op. at 80; id. at 10-11, both of which methods are

apparently performed by the plaintiffs, see id . at 6-7. The district

court thus held, in effect, that section 18.2-74.2(D) was so vague as

potentially to prohibit nearly every abortion performed in the Commonwealth of Virginia. An examination of the suction curettage and

dilatation and evacuation methods of abortion makes clear, however,

that section 18.2-74.2(D) cannot reasonably be read to prohibit these

procedures, and therefore that the plaintiffs do not face a reasonable

fear of prosecution under the statute.

A.

In the suction curettage procedure, a physician inserts a tube or

cannula (which is attached to a vacuum generator) through the vagina

and into the uterus and then removes the fetus piecemeal by means

of negative suction. Because such suction may occasionally detach

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the entire fetus, or identifiable parts thereof, and because such parts

might include cells that are still living as they pass through the vagina

via the cannula and into the vacuum, the district court concluded that

section 18.2-74.2(D) could reasonably be read to prohibit suction

curettage. This section, however, cannot reasonably be so read.

First, the statute prohibits only the delivery of intact fetuses or substantial portions of intact fetuses. It does not prohibit the extraction

of dismembered body parts, no matter how substantial. Cf. Planned

Parenthood v. Doyle, 1998 WL 299912, at *9 (W.D. Wis.) (noting

that similar statute in question there was explicitly directed at partial

"births," a phrase "readily applied to the partial delivery of an intact

child but hardly applicable to the delivery of dismembered body

parts." (emphasis added)). Second, the statute prohibits only delivery

of an intact fetus or a substantial portion thereof while that fetus is

living. It does not prohibit extraction of a dead fetus or of detached

fetal tissue that may still contain living cells. Third, the statute prohibits only the delivery of an intact living fetus (or a substantial portion

thereof) into the vagina. It does not prohibit the removal of detached

fetal parts through the vagina via an enclosed cannula or similar

bypass. Thus, it is clear that the suction curettage method of abortion

simply does not satisfy even the actus reus requirements set forth in

section 18.2-74.2(D).

More importantly, even if one were to read these actus reus

requirements more broadly than their plain language can bear, such

that suction curettage might on occasion fall within the purview of

these requirements, the provider of suction curettage, according to the

plaintiffs' own testimony before the district court, would never be acting with the mens rea necessary to violate the statute.

The statute requires that the delivery of an intact living fetus (or a

substantial portion thereof) into the vagina be both deliberate and

intentional. As the testimony establishes, an abortion provider performing suction curettage cannot predict or control whether the procedure removes the fetus intact or in pieces (substantial or otherwise).

See, e.g., Mem. Op. at 21 ("the intact fetus may come through the cannula" (quoting plaintiffs' testimony)). And the effectiveness of the

procedure does not depend upon the manner in which the fetus is

removed. Thus, an abortion provider cannot be said to deliberately

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and intentionally remove an intact living fetus or a substantial portion

thereof, even if by happenstance such is the result of the procedure.

Furthermore, "no effort is made to determine whether the fetus is or

is not living" during the procedure. Mem. Op. at 10-11 (emphasis

added); see also id. at 52-53 & n.22 (provider following "common

practice" "cannot know" when the fetus dies). A provider lacking

such information cannot even be said to be knowingly removing a

living fetus, let alone to be doing so deliberately and intentionally.

Finally, even were the statute construed such that a provider performing this type of abortion could be said to deliver a living fetus

or substantial portion thereof into the vagina deliberately and intentionally, his conduct would not be "for the purpose of performing a

procedure" that "will kill the fetus." Va. Code Ann. § 18.2-74.2

(emphasis added). The provider does not deliver the fetus into the

vagina in order that he may perform a subsequent procedure that "will

kill" the fetus. Rather, the very act of extracting the fetus from the

uterus through the cannula is itself the procedure that kills the fetus,

and it is so understood. Although the cannula traverses the vagina, the

fetus is not brought through the vagina for the purpose of killing it

there, but only to complete the removal procedure.

B.

In the conventional dilatation and evacuation procedure, the abortion provider, in addition to using suction, typically dismembers the

fetus with a pair of forceps and then removes the fetus from the uterus

in pieces. Mem. Op. at 12-13. Because such a procedure occasionally

results in the extraction of the umbilical cord, fetal limbs, or even an

intact fetus into the vagina while the fetus is still alive, the district

court held that section 18.2-74.2(D) could reasonably be construed to

prohibit dilatation and evacuation in such circumstances. Once again,

it is plain that the district court read this section unreasonably.

Just as an abortion provider performing suction curettage does not

satisfy the actus reus elements of the statute, neither does one performing conventional dilatation and evacuation. First, the dilatation

and evacuation procedure does not involve delivery into the vagina of

an intact fetus or substantial portion of an intact fetus. On the contrary, whereas the statute on its face contemplates the delivery of all

 7
or a substantial portion of an intact fetus into the vagina, not its delivery in pieces or separate parts, conventional dilatation and evacuation

is distinguished from intact dilatation and extraction by the very fact

that the former involves dismemberment of the fetus. Mem. Op. at 16

("[A]s a general proposition, D&X is a variant of D&E but differs

from classic D&E in that it [D&X] does not rely upon dismemberment to remove the fetus." (internal quotation omitted)). The error of

the district court's interpretation of "substantial portion" is manifest

in its conclusion that extraction of even the umbilical cord into the

vagina might satisfy this element of the statute. Id. at 53 (emphasis

added). Second, the fetus is usually not living when it or a substantial

portion of it enters the vagina. Normally the physician severs the

umbilical cord, and so kills the fetus, while the fetus is still within the

uterus. Id. at 13-14. Or, alternatively, the physician may remove and

extract limbs first, an act that similarly kills the fetus remaining in the

uterus. Id. at 14.

Despite the fact that the vast majority of conventional dilatation

and evacuation abortions do not satisfy the actus reus requirements

of the Act, the district court focused on those rare cases in which a

fetus (or a substantial portion thereof) enters the vagina both living

and intact. However, the mens rea elements of the statute once again

clearly protect abortion providers from prosecution even in these

unusual circumstances.

From the plaintiffs' own testimony, it is apparent that those

instances in which an intact fetus (or substantial portion thereof)

emerges into the vagina are a result of "luck" rather than deliberation

and intent. Mem. Op. at 85 n.37. Whether such a result occurs is

beyond the provider's control. Id.; see also id. at 60; Planned

Parenthood v. Doyle, 1998 WL 299912, at *3 (W.D. Wis.) ("The

intentional removal of the fetus intact is what distinguishes an intact

[D&X] procedure from a [conventional] D&E procedure." (internal

quotations omitted)).

Likewise, as with the suction curettage procedure, the provider performing conventional dilatation and evacuation "can neither predict

nor control" whether the fetus will still be living when it (or a substantial portion thereof) enters the vagina. Mem. Op. at 60 (internal quotations omitted). Thus, the provider cannot reasonably be said to have

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deliberately or intentionally delivered a living fetus or a substantial

portion thereof into the vagina. Finally, an abortion provider who performs a conventional dilatation and evacuation cannot reasonably be

said to deliver a living and intact fetus, or substantial portion thereof,

into the vagina for the purpose of killing the fetus there. Even on

those unusual occasions when the fetus is delivered intact into the

vagina, this results from an unplanned deviation from the conventional dilatation and evacuation procedure, rather than from the provider's deliberate design. The provider cannot be said to intend to kill

the fetus in the vagina when he assumes that termination will occur

in the uterus. Mem. Op. at 13-14.

III.

Even if there were question as to whether Virginia's Partial Birth

Abortion Act could arguably be interpreted to prohibit the suction

curettage and the dilatation and evacuation procedures, the Commonwealth of Virginia and the individual defendants have provided

unequivocal assurances (1) that they interpret the statute to cover neither suction curettage nor conventional dilatation and evacuation procedures, (2) that they would not enforce the statute against individuals

performing such procedures, and (3) that, specifically, they interpret

the incidental protrusion of some part of the fetus into the vagina as

insufficient to transform a conventional dilatation and evacuation

abortion into an intact dilatation and extraction abortion. The Governor himself has represented in writing that individuals performing

suction curettage and conventional dilatation and evacuation procedures will not be prosecuted. See Letter of Gov. James C. Gilmore,

Exhibit F(1) (cited in Motion To Stay or Modify Preliminary Injunction, at 6). The Attorney General has likewise represented that the

term "partial birth abortions" in the statute applies only to the intact

dilatation and extraction procedure and that "conventional [dilatation

and evacuation procedures]" are not subject to prosecution under the

Act. Defendants' Memorandum, Exhibit 1, at 2 & n.5 (cited in Mem.

Op. at 30, 47-48). And the Commonwealth's Attorneys individually

have concluded that the statute covers only the intact dilatation and

extraction procedure and represented that they do not intend to prosecute persons who perform either suction curettage or conventional

dilatation and evacuation. Defendants' Memorandum, Exhibits 2-7, at

¶ 5 (cited in Mem. Op. at 46).

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The district court dismissed outright all of these representations on

two primary grounds: that abortion is so politicized an issue that the

Commonwealth's officials cannot be expected to abide by their sworn

statements to the court and that, in any event, the officials are not

bound by these representations and could therefore change their views

at any time. Neither of these asserted justifications warrants the summary dismissal of these solemn representations by the Commonwealth's chosen representatives. First, by suggesting that the

Commonwealth's officials will yield to politics over law, the district

court imputes a type of bad faith, if not lawlessness, to the State's

officials without either authority or justification. Second, by categorically rejecting the statements on the ground that the Commonwealth's

officials may renege on these representations and prosecute persons

who perform suction curettage or dilatation and evacuation, the district court gave impermissibly short shrift to the fact that these statements were made under oath and with the knowledge and imprimatur

of the Governor of the Commonwealth himself. Rather than lightly

dismissing these statements, the district court instead was under an

affirmative obligation, in evaluating the vagueness of the statute, to

accord these submissions the respect they are due as the official representations of those whose duty it is to faithfully enforce not only the

laws of the Commonwealth but also the Constitution of the United

States. See, e.g., Forsyth County v. The Nationalist Movement, 505

U.S. 123, 131 (1992).

IV.

When all is said and done, it appears that, although the district

court finely parsed the statute, it effectively overread those portions

of the statute that it did address -- finding ambiguity where none reasonably exists -- and it actually omitted from consideration significant portions of the statute that directly bear (if not bear most directly)

upon the plaintiffs' claims that section 18.2-74.2 can reasonably be

understood to prohibit the suction curettage and the dilatation and

evacuation procedures they perform.

Thus, for example, falling victim to what are but sophistic arguments, the district court accepted unhesitatingly that the suction of

fetal cells, tissue, or parts from the uterus, through a tube or cannula

that transverses the vagina, can reasonably be understood as "deliver-

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[ing] a living fetus or a substantial portion thereof into the vagina."

Likewise did it accept that this statutory phrase could be satisfied by

the mere pulling of the umbilical cord into the vagina, or by the

extraction of mere fetal tissue from the uterus. And, at the same time

that the district court accepted these contrived arguments as to the

reasonable interpretation of the statute, it ignored altogether the

explicit mens rea limitations of section 18.2-74.2 that the provider

must have delivered a living fetus or a substantial portion thereof into

the vagina both "deliberately and intentionally" and "for the purpose

of performing a procedure the [provider] knows will kill the fetus" --

this, despite the repeated admonitions of the Supreme Court that consideration of mens rea requirements is essential in the judicial consideration of vagueness challenges in particular.

When the statute is read in its entirety, with both its actus reus and

its mens rea limitations, it is clear, contrary to the district court's conclusion, that persons of ordinary intelligence would not at all understand the statute to prohibit the procedures these plaintiffs perform.

Rather, they would understand the one procedure prohibited by section 18.2-74.2 to be that of intact dilatation and extraction, or partial

birth abortion -- the very procedure that the Commonwealth of Virginia sought to prohibit.

The American Medical Association's observation with respect to

the almost identically worded federal partial birth abortion statute

overwhelmingly passed by Congress is no less apropos of the Commonwealth of Virginia's partial birth abortion statute: It "clearly

define[s] the prohibited procedure so that it is clear on the face of the

legislation what act is to be banned [and therefore] physicians will be

on notice as to the exact nature of the prohibited conduct." In concluding otherwise, the district court turned on its head the cardinal

principle governing the federal courts in their interpretation of yet

unconstrued state statutes, a principle that governs especially in the

context of requests for extraordinary injunctive relief. Instead of presuming the statute constitutional and indulging the assumption, mandated by our federalism, that the State will, where necessary, construe

its statutes so as to ensure their constitutionality, the district court all

but presumed the statute unconstitutional and, where the slightest

ambiguity in the statute's language arguably existed, assumed -- in

the face of the Governor's, the Attorney General's, and the prosecutor

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defendants' sworn representations that they would construe the statute

otherwise -- that the State would adopt and enforce a construction of

the statute that would render it unconstitutional.

Accordingly, the plaintiffs having failed to establish the likely

applicability of section 18.2-74.2 to the procedures they perform and

thus to establish the likelihood that they will ultimately be held to

have standing to pursue their action, the stay of the district court's

injunction requested by the Commonwealth of Virginia is granted.

It is so ordered.

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