PLANNED PARENTHOOD OF MINNESOTA/SOUTH DAKOTA
and Peter D'Ascoli, M.D.,
WILLIAM J. JANKLOW,
Mark Barnett, Attorney General, in their official capacities,
[2003 DSD 2]
United States District Court
District of South Dakota--Southern Division
MEMORANDUM OPINION AND ORDER
Dara Klassel, Roger K. Evans, Carrie Y. Flaxman
Planned Parenthood Federation of America, Inc.
Legal Action for Reproductive Rights, New York, NY
Rhonda C. Lockwood, Kenneth M. Tschetter, Lockwood Law Office, Sioux Falls, SD
Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC
Janet A. Newberg, Felhaber, Larson, Fenlon & Vogt, PA, St. Paul, MN
Attorneys for Plaintiffs
John P. Guhin, Frank E. Geaghan, Patricia J. Froning
Attorney General's Office, Pierre, SD
Attorneys for Defendants
Dated February 13, 2003.
KAREN E. SCHREIER, U. S. DISTRICT JUDGE
[¶1] Plaintiffs Planned Parenthood of Minnesota/South Dakota and Peter D. Ascoli, M.D., brought an action against defendants seeking declaratory and injunctive relief. Plaintiffs sought to have two South Dakota statutes, SDCL 22-17-5 and 34-23A-4, declared unconstitutional. On August 14, 2002, the court issued an opinion declaring both statutes unconstitutional. Defendants subsequently moved for a new trial or amendment of the judgment pursuant to Fed. R. Civ. P. 59, or in the alternative, for relief from the final judgment pursuant to Fed. R. Civ. P. 60 (b)(1) and (3).
[¶2] 1. Standard for a New Trial or to Amend the Judgment
[¶3] Rule 59 permits a party to file a motion for a new trial or to alter or amend a judgment within ten days of that judgment. Fed. R. Civ. P. 59; Dale & Selby Superette & Deli v. United States Dep't of Agriculture, 838 FSupp 1346, 1347 (D. Minn. 1993). A motion to amend a judgment is appropriate "to correct manifest errors of law or fact or, in some limited situations, to present newly discovered evidence." Id. at 1347. Relief under Rule 59(e) is generally only available when a manifest error affects the correctness of the judgment. Norman v. Arkansas Dep't of Educ., 79 F3d 748, 750 (8th Cir. 1996). Defendants filed their motion for relief within ten days of the court order.
[¶4] Paragraph 39 of the court's memorandum opinion and order dated August 14, 2002, states as follows:
SDCL 34-23A-4 (1) is a hospitalization requirement. It allows clinic facilities to be used only when hospital facilities are not available. The State has never argued that hospital facilities are unavailable, and there is no evidence in the record to support such an assertion. Because hospital facilities are available in South Dakota, the alternative for an abortion in a clinic that has an access to a blood supply is not an option. As a result, the hospitalization requirement under SDCL 34-23A-4 is not less burdensome than the statute struck down in Akron.
Planned Parenthood of Minnesota/South Dakota v. Janklow, 2002 DSD 24, ¶ 39, 216 FSupp2d 983, 993.
[¶5] Defendants contend that hospital facilities are unavailable in South Dakota for abortions and that the court's failure to consider this fact constitutes a manifest error of law. Defendants did not previously argue that hospitals were unavailable in South Dakota. Even though plaintiff's motion for summary judgment challenged the meaning of availability, defendants never maintained that hospitals were not available. A Rule 59 motion is not a proper forum to raise arguments that defendants could have presented prior to the entry of judgment. Innovative Home Health Care, Inc. v. P.T.O.T. Assocs. of the Black Hills, 141 F3d 1284, 1286 (8th Cir. 1998). All of the facts remain exactly the same as they were at the time the court issued its previous order. Compare Norman v. Arkansas Dep't of Educ., 79 F3d 748, 750 (8th Cir. 1996) (court committed a mistake of fact warranting Rule 59 relief after dismissing the case under the erroneous belief that plaintiff failed to file a timely response). No additional facts suggest an error by the court, and defendants should have raised this argument before the court issued its order.
[¶6] The court's conclusion that hospitals are available for abortions following the twelfth week of pregnancy and through the twenty-fourth week of pregnancy (hereinafter referred to as the second trimester) is based on the undisputed evidence that approximately twenty abortions have been performed at Sioux Valley Hospital during the past four years. Sioux Valley Hospital in Sioux Falls, South Dakota, permits second trimester abortions to be performed in the hospital when continuing the pregnancy would significantly endanger the woman's life or health or when the fetus has a lethal, medical condition. For at least a number of women, therefore, Sioux Valley Hospital "is available" for second trimester abortions. Because a hospital is available in South Dakota, at least for the women who meet the Sioux Valley Hospital criteria, the court did not commit an error of fact and relief under Rule 59 is improper.
[¶7] Rule 60(b)(1) permits a party to file a motion for relief from a final judgment or order for mistake, inadvertence, surprise, or excusable neglect, and Rule 60(b)(3) allows relief if there was fraud, misrepresentation, or other misconduct of an adverse party. Fed. R. Civ. P. 60; Wilburn v. Pepsi-Cola Bottling Co. of St. Louis, 492 F2d 1288, 1290 (8th Cir. 1974). See 6 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1489 (2d ed. 1990). Rule 60(b) "is not a vehicle for simple reargument on the merits." Broadway v. Norris, 193 F3d 987, 990 (8th Cir. 1999). "Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances." Reyher v. Champion Intern. Corp., 975 F2d 483, 488 (8th Cir. 1992). The court has broad discretion in allowing such motions to amend. Hagerman v. Yukon Energy Corp., 839 F2d 407, 413 (8th Cir. 1988). Such motions, however, are disfavored. Rosebud Sioux Tribe v. A & P Steel Inc., 733 F2d 509, 515 (8th Cir. 1984).
[¶8] A strategic, litigation tactic does not amount to excusable neglect or an extraordinary circumstance that warrants Rule 60 relief. "Rule 60 was not intended to relieve counsel of the consequences of decisions deliberately made, although subsequent events reveal that such decisions were unwise." Miller v. Owsianowski (In re Salem Mortgage), 791 F2d 456, 459 (6th Cir. 1986). See Richards v. Aramark Servs., Inc., 108 F3d 925, 927 (8th Cir. 1997) (relief under Rule 60(b) is only available in exceptional circumstances). Defendants failed to argue in their response to plaintiffs' motion for summary judgment that hospitals were not available, even though plaintiffs raised the issue in their motion. Because defendants' choice in arguments was neither excusable neglect nor an extraordinary circumstance, relief under Rule 60(b) is not available.
[¶9] Furthermore, plaintiffs did not engage in any misrepresentation; thus defendants do not deserve relief under Rule 60(b)(3). "Relief is only available under Rule 60(b)(3) where the party's misconduct prevented the moving party from fully and fairly presenting its case. The moving party is required to prove the alleged misconduct by clear and convincing evidence." Cowan v. Strafford R-VI Sch. Dist., 140 F3d 1153, 1159 (8th Cir. 1998). Plaintiffs stated in their reply brief in support of their motion for summary judgment that "[d]efendants have never stated that hospital facilities aren't available, nor have they given any indication of what it means for a hospital to be 'available.'" Plaintiff's reply brief, paragraph 4. Defendants assert this misrepresents the record. Defendants, in their pleadings, however, acknowledge that abortions were available at Sioux Valley Hospital under limited circumstances. This is not the same as asserting that hospitals are unavailable. Furthermore, nothing indicates that plaintiffs prevented defendants from fully and fairly presenting their case. Any positions not argued resulted from defendants' choices rather than plaintiffs' conduct. Because there is no clear and convincing evidence that plaintiffs engaged in any misrepresentation, no grounds exist for relief under Rule 60(b)(3).
[¶10] 2. Void for Vagueness
[¶11] If the court did make an error in fact in determining that hospitals are available for abortions during the second trimester, then the court would grant defendants' motion to amend the judgment under Rule 59(e). The court would still conclude, however, that SDCL 34-23A-4 is unconstitutional. Under principles of due process, a law that does not clearly define its prohibitions is void for vagueness. Grayned v. City of Rockford, 408 US 104, 108, 92 SCt 2294, 2298, 33 LEd2d 222 (1972). A law is unconstitutionally vague if it fails to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly," or if it enables arbitrary and discriminatory enforcement by not providing "explicit standards for those who apply it." Id. at 2298-99. Vague laws "may trap the innocent by not providing fair warning . . . [and] impermissibly delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Id. at 2299. Furthermore, if a vague law abuts upon fundamental freedoms, it steers people away from exercising their constitutional rights. Id. A "more stringent vagueness test" is then applied. Gresham v. Peterson, 225 F3d 899, 908 (7th Cir. 2000). Statutes that impose criminal penalties require a higher degree of clarity. Id. See Colautti v. Franklin, 439 US 379, 394, 99 SCt 675, 685, 58 LEd2d 596 (1979) (vagueness determination compounded since statute imposed criminal liability).
[¶12] A federal court should attempt a limiting construction of the statute, particularly if state courts have interpreted it similarly. Ways v. City of Lincoln, Nebraska, 274 F3d 514, 519 (8th Cir. 2001). Such a limiting construction, however, is not available "unless an ordinance is readily susceptible to such an interpretation because federal courts lack jurisdiction authoritatively to construe state legislation." Id. Thus, federal courts should take reasonable efforts to construe the statute to avoid constitutional doubts but should not "twist the words of the law and give them a meaning they cannot reasonably bear." Carhart v. Stenberg, 192 F3d 1142, 1150 (8th Cir. 1999).
[¶13] In the current case, even if the court made a factual error in concluding that a hospital is "available" in South Dakota for the performance of second trimester abortions, the law is nevertheless void for vagueness. SDCL 34-23A-4 permits the performance of second trimester abortions in a medical clinic only when a hospital is not "available." Neither the statute itself nor South Dakota case law, however, construes what it means to have a hospital facility "available." The dictionary definition of "available" is "present or ready for immediate use" or "accessible, obtainable." Merriam Webster's Collegiate Dictionary 79 (10th ed. 1999). According to the undisputed testimony, Sioux Valley Hospital is immediately ready for use by some, though not all, women and is accessible by some, though not all, women. "Availability," therefore, could be measured by the women who could receive an abortion at Sioux Valley Hospital or by those who do not qualify for an abortion under Sioux Valley Hospital's requirements. For the latter, Sioux Valley Hospital is not available, while for the former it is. The question then becomes whether the unavailability for a majority of women allows a physician to perform abortions in a clinic where a blood supply is available. Additional uncertainly lies in determining whether a physician is subject to criminal liability for performing an abortion in a medical clinic when Sioux Valley Hospital's policy would allow that same abortion to be performed in the hospital. Furthermore, because Sioux Valley Hospital's policy is subject to change without public notice, a physician may not know with certainty whether a particular patient meets the hospital's current criteria for a second trimester abortion. "This level of uncertainty is fatal where criminal liability is imposed." City of Akron v. Akron Center for Reprod. Health, 462 US 416, 452, 103 SCt 2481, 2504, 76 LEd2d 687 (1983).
[¶14] "[T]he fact that questions may arise regarding [a law's] applicability to certain conduct does not automatically lead to the conclusion that it is void for vagueness." Thorburn v. Austin, 231 F3d 1114, 1121 (8th Cir. 2000). When the violation of a statute results in criminal sanctions, however, a higher degree of clarity is mandated. Since SDCL 34-23A-4 penalizes physicians criminally, the legislature must clearly define what it means to have a hospital available. See City of Akron, 103 SCt at 2503-04 (ordinance that required the "humane and sanitary" disposal of the remains of an unborn child was unconstitutionally vague because it imposed criminal liability without defining what was humane). A physician does not know when he or she can legally perform an abortion outside of a hospital, because the legislature did not define when a hospital is "available." "Because [§ 34-23A-4] fails to give a physician fair notice that his contemplated conduct is forbidden, [the law] violates the Due Process Clause." Id.
[¶15] The Eighth Circuit Court of Appeals examined the issue of whether an abortion statute was void for vagueness in Fargo Women's Health Organization v. Schafer, 18 F3d 526, 534 (8th Cir. 1994). The court found that the definitions of "medical emergency" and "abortion" were not vague because the North Dakota statute allowed the physician to rely on his or her "best clinical judgment" in determining whether a condition constituted a medical emergency. Id. "[I]t is the exercise of clinical judgment that saves the statute from vagueness[.]" Id. Additionally, the North Dakota Abortion Control Act only imposed criminal penalties on a physician if the physician "willfully" terminated a pregnancy without the necessary informed consent forms. Id. at 535. The court found the inclusion of a strict scienter requirement as an additional basis for saving the statute from a vagueness challenge. Id.
[¶16] In contrast, the Supreme Court invalidated a state statute that required a physician to adhere to a specific standard of care when determining whether a fetus is viable or may be viable. Colautti, 99 SCt at 683. The Court found that the phrases "is viable" and "may be viable" created a fatal ambiguity. Id. In addition to the double ambiguity, the Court invalidated the statute because it did not specify a scienter requirement. Id. at 685. "[T]he constitutionality of a vague standard is closely related to whether that standard incorporates a requirement of mens rea... . Because of the absence of a scienter requirement ... the statute is little more than a trap for those who act in good faith." Id.
[¶17] SDCL 34-23A-4 contains neither a good faith safety valve nor a scienter requirement. Under the statute, criminal liability can ensue even when a physician believes in good faith that a hospital is unavailable and even when the physician does not intend to engage in the prohibited conduct. Failure to state the necessary culpability fails to put a physician on notice of what is barred by the statute. A doctor is liable regardless of fault or state of mind. "The present statute does not afford broad discretion to the physician. Instead, it conditions potential criminal liability on confusing and ambiguous criteria. It therefore presents serious problems of notice, discriminatory application, and chilling effect on the exercise of constitutional rights." Colautti, 99 SCt at 685.
[¶18] Neither South Dakota courts nor the legislature have offered any guidance on when a hospital is available. See, e.g., SDCL 34-23A-1 (Chapter 34-23A defines only abortion, fetus, medical emergency, parent, physician, and probable gestational age of the unborn child). The surrounding circumstances and purpose of the law also do not shed light on the availability of a hospital. Cf. Grayned, 92 SCt at 2300-02 (although the ordinance's words, "do not disturb," were less than precise, the ordinance was not void for vagueness because it applied only in the context of schools, and it explained what constituted a disturbance). Another statutory provision explaining the law's purpose might add clarity to the words and save the statute from vagueness. The South Dakota statute does not, however, provide such an explanation, and no other statutory provision clarifies section 34-23A-4. Cf. Fargo Women's Health, 18 F3d at 535 (definition of "medical emergency" not vague when considered in light of the purpose section of the Act). This court is left with only the words of the statute which are not readily susceptible to a limiting construction. As a result, the statute is unconstitutionally vague and is therefore void.
[¶19] Defendants have failed to show that the court made a manifest error of law or of fact. Defendants have also failed to show that they engaged in excusable neglect or that other exceptional circumstances exist. Additionally, clear and convincing evidence does not exist to show that plaintiffs engaged in any misrepresentation. Accordingly, defendants are not entitled to relief under Rules 59 or 60(b).
[¶20] Accordingly, it is hereby
[¶21] ORDERED that defendants' motions for a new trial or to set aside the judgment (Docket 103) are denied.
1. SDCL 34-23A-4 states, "An abortion may be performed following the twelfth week of pregnancy and through the twenty-fourth week of pregnancy by a physician only in a hospital licensed under the provisions of chapter 34-12 or in a hospital operated by the United States, this state, or any department, agency or political subdivision of either or in the case of hospital facilities not being available, in the licensed physician's medical clinic or office of practice subject to the requirements of § 34-23A-6".
SDCL 34-23A-6 states, "Any abortion performed under the provisions of § 34-23A-4 or 34-23A-5 shall be performed only in a facility which has a blood bank or a sufficient supply of blood immediately available and such facilities shall provide for Rhesus factor (Rh) testing and Rho-gam, Gammulin or any other product of equivalency inoculations shall be required for women undergoing abortion who have the Rh-negative factor."