United States Court of Appeals
For the First Circuit
No. 99-2141
RHODE ISLAND MEDICAL SOCIETY, ET AL.,
Plaintiffs, Appellees,
v.
SHELDON WHITEHOUSE, ATTORNEY GENERAL OF THE STATE
OF RHODE ISLAND, IN HIS OFFICIAL CAPACITY,
Defendant,
____________________
LINCOLN C. ALMOND, GOVERNOR FOR
THE STATE OF RHODE ISLAND,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Lipez, Circuit Judge, and
Stearns,* District Judge.
Joseph S. Larisa, Jr., Executive Counsel, Claire Richards,
Deputy Executive Counsel, Thomas M. Dickinson, and Pine &
Cantor, on brief for appellant.
Catherine Weiss, Caitlin Borgmann, Talcott Camp, Jessie
Hill, Reproductive Freedom Project, American Civil Liberties
Union Foundation, Lynette Labinger and Roney & Labinger, on
brief for appellees.
February 12, 2001
_______________
*Of the District of Massachusetts, sitting by designation.
Per Curiam. Governor Lincoln Almond has appealed
a district court judgment, permanently enjoining enforcement
of Rhode Island's ban on partial birth abortions, R.I. Gen.
Laws § 23-4.12 ("the Act"). See Rhode Island Med. Soc'y v.
Whitehouse, 66 F. Supp. 2d 288 (D. R.I. 1999). We affirm.
Appellant does not contend that the Act differs in
any significant way from the Nebraska statute at issue in
Stenberg v. Carhart, 120 S. Ct. 2597 (2000). Nor does he
contest the merits of the district court's determination.
Rather, he argues that, because appellees do not perform any
post-viability abortions, they lack standing to challenge
the Act as applied to post-viability abortions. The lack of
standing, he asserts, precluded the district court from
enjoining any post-viability application of the Act. This
argument is a variation of the standing argument that
appellant made below -- an argument that was rejected --
where he contended that the appellees lacked standing to
challenge the Act because none of them performed the
procedure which, under appellant's interpretation, was
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prohibited by the Act. See Rhode Island Med. Soc'y, 66 F.
Supp. 2d at 301-04.1
Contrary to appellant's contention, this court's
decision in Rodos v. Michaelson, 527 F.2d 582 (1st Cir.
1975), is not controlling here. What appellant seeks to do
is to cure the Act's facial defect of vagueness (which
impermissibly draws appellees within its orbit) by declaring
the Act applicable only to post-viability abortions.
However, unlike Rhode Island's "quick child" statute, R.I.
Gen. Laws § 11-23-5, which the plaintiffs in Rodos sought to
1
Appellant's citation to City News and Novelty, Inc. v. City
of Waukesha, 121 S. Ct. 743 (2001), in his recent filing
does not advance his standing argument. In City News, the
Court had granted certiorari to resolve a split in the
circuits on the issue whether an unsuccessful applicant for
an adult business license must be assured a prompt judicial
determination on the merits of a license denial or simply a
right to promptly file for judicial review. Id. at 746.
Two months after petitioning for certiorari review, however,
City News withdrew its license renewal application and
ceased operating as an adult business. Id. The Court
dismissed its previously-granted writ of certiorari. The
case "no longer qualifie[d] for judicial review" because it
had become moot by City New's subsequent action. Id. at
747.
The instant case presents no similar posture. The
appellees had standing to challenge the Act because the
murkiness of whether the Act described a constitutionally-
permissible procedure chilled both their constitutional
rights and the constitutional rights of their patients and
potentially exposed them to criminal prosecution and civil
liability. See Rhode Island Med. Soc'y, 66 F. Supp. 2d at
304. No subsequent conduct by the appellees has vitiated
their standing or mooted this case.
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challenge and which undisputedly applies only to a viable
fetus, the Act's definition of the banned partial birth
abortion procedure does not distinguish between pre- and
post-viability abortion procedures. See Rhode Island Med.
Soc'y, 66 F. Supp. 2d at 305. In effect, what appellant
seeks to do is to sever an unconstitutional application of
the Act from, what he contends would be, a constitutional
application.
Severability is a matter of state law. Leavitt v.
Jane L., 518 U.S. 137, 139 (1996) (per curiam). Under Rhode
Island law, "a court may hold a portion of a statute
unconstitutional and uphold the rest when the
unconstitutional portion is not indispensable to the rest of
the statute and can be severed without destroying
legislative purpose and intent." Landrigan v. McElroy, 457
A.2d 1056, 1061 (R.I. 1983) (severing that portion of a
statute providing for an ex parte hearing). "The test for
determining the separability of portions of a statute is
whether, at the time the statute was enacted, the
legislature would have passed it absent the constitutionally
objectionable provision." Id. (citation and internal
quotation marks omitted).
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It appears that the Rhode Island Legislature's
purpose and intent was to ban the partial birth abortion
procedure for all fetuses, nonviable and viable, as the Act
draws no line between viability and nonviability. Would the
Legislature have passed the Act banning the partial birth
abortion procedure absent its application to a nonviable
fetus? There is doubt on that score, in light of the fact
that the "quick child" statute, banning all abortion
procedures on a viable fetus (save to preserve the life of
the mother), still stands on the books.
The Act does contain a severability provision, §
23-4.12-6. But, "[s]everability clauses, though probative
of legislative intent, are not conclusive." Ackerley
Communications of Mass. Inc, v. Cambridge, 135 F.3d 210, 215
(1st Cir. 1998). Moreover, "[a] severability clause
requires textual provisions that can be severed." Reno v.
American Civil Liberties Union, 521 U.S. 844, 882 (1997).
Appellant does not argue that the Act's severability
provision saves the Act, nor does it appear that it could do
so because, as noted, the Act contains no "provisions,
sections, subsections, sentences, clauses, phrases or words"
distinguishing between nonviable and viable fetuses, which
would make it capable of being severed. See Ackerley
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Communications of Mass. Inc., 135 F.3d at 215-16 (concluding
that a severability clause was unavailing since it only
operated to sever invalidated "parts" of a city ordinance
that sought to require the removal of off-site billboards,
while those "parts" did not distinguish between banning
display of commercial messages (a ban that possibly was
constitutional) and noncommercial messages (a ban that was
unconstitutional for lack of an on-site billboard ban)).
Even if what appellant would have this court do is
sever an application of the Act, rather than any section of
the Act, we may impose a limiting construction on a statute
"only if it is readily susceptible to such a construction."
Reno v. American Civil Liberties Union, 521 U.S. at 884
(citation and internal quotation marks omitted). The
difficulty posed by accepting appellant's proposed treatment
of the Act is aptly described by the Sixth Circuit in
striking down Ohio's partial birth abortion statute:
[T]he language of the ban simply makes
it not susceptible to severance. Post-
viability application of the ban cannot
be separated from pre-viability
application of the ban so that it may
stand alone. There is no clause or word
dealing with post-viability application
of the ban. We essentially would have
to rewrite the Act in order to create a
provision which could stand by itself.
This we cannot do. Accordingly, the
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entire ban on the D & X procedure must
be struck down.
Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 202
(6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998); see
also Eubanks v. Stengel, 28 F. Supp. 2d 1024, 1041 (W.D. Ky.
1998) ("Nothing in the [Kentucky] Act distinguishes between
pre- and post-viability. There is no particular section,
paragraph, sentence, or word that the Court could strike
leaving behind any coherent remains."), aff'd, 224 F.3d 576
(6th Cir. 2000).
The judgment of the district court is affirmed.
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