# Planned Parenthood Federation of America v. Ashcroft

> District Court, N.D. California · June 1, 2004 · 320 F. Supp. 2d 957

URL: https://www.frixlaw.com/law-library/cases/2469000

## Case

- **Full name:** PLANNED PARENTHOOD FEDERATION OF AMERICA, Et Al., Plaintiffs, v. John ASHCROFT, Attorney General of the United States, in His Official Capacity, Defendant; City and County of San Francisco, Plaintiff Intervenor, v. John Ashcroft, Attorney General of the United States, in His Official Capacity, Defendant
- **Court:** District Court, N.D. California
- **Decided:** June 1, 2004
- **Citations:** 320 F. Supp. 2d 957; 2004 U.S. Dist. LEXIS 9775; 2004 WL 1192708
- **Precedential status:** Published
- **Opinion:** Opinion by Hamilton
- **Judges:** Hamilton
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2469000

## How later opinions describe it (automated extraction)

- holding that "Stenberg’s health exception requirement does not appear to arise to the level of a constitutional ‘rule’ like Miranda requirements" and finding it necessary to examine the record 26 RICHMOND MEDICAL CENTER v. HICKS before determining whether "significant medical …
- explaining that induction is also known as a “medical abortion” where “drugs are administered to abort the pregnancy”
- noting that Carhart dispels characterization of the health exception inquiry "as one of pure fact, limited to the record in [the] particular case"

## Opinion text

ORDER GRANTING PERMANENT INJUNCTION; FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT THEREOF
HAMILTON, District Judge.
TABLE OF CONTENTS
RAcnFtfJROTTNTn . .959
I. FACTUAL BACKGROUND. O © 05
A. Established Abortion Procedure O CD 05
B. Contested Abortion Procedure . CO CD 05
II. LEGAL FRAMEWORK CD 05 05
III. PROCEDURAL HISTORY. TSSTTFK ... CD CD CD 05 05
msnnssTON...967
I. STANDARD OF REVIEW. o CD 05
II. UNDUE BURDEN . OO tO 05
A. Introduction. 00 ÍD 05
B. Parties’ Positions. 00 05
C. Legal Background . 05 O 05
D.
Stenberg:
Comparison of Act’s Language to
E. Findings of Fact.
F. Conclusions of Law. CO t>
III. CONSTITUTIONAL VAGUENESS. CD -q CH
A. Parties’ Positions.
B. Legal Standard. CD -q 05
C. Findings of Fact and Conclusions of Law. CD ~q 05
IV. HEALTH EXCEPTION ... CD *3 00
A. Parties’ Arguments-
Trial Evidence. B. -J CD
Findings of Fact. C.
Congressional Findings D.
Conclusions of Law.... E. o CO to
f!ONT!T .TTSTON I — *■ © W ^
INTRODUCTION
Before this court is the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Act”). With the Act, Congress seeks to ban an abortion procedure it refers to as “partial-birth abortion.” The
*960
Act is very similar to a prior Nebraska statute banning so-called “partial-birth abortions,” which the United States Supreme Court held unconstitutional.
See Stenberg v. Carhart,
530 U.S. 914 , 120 S.Ct. 2597 , 147 L.Ed.2d 743 (2000). Plaintiffs in this case seek an injunction permanently enjoining enforcement of the Act.
For the reasons that follow, this court concludes that the Act is unconstitutional, and PERMANENTLY ENJOINS enforcement of the Act.
1
BACKGROUND
I.
FACTUAL BACKGROUND
The Act at issue in this case imposes criminal and civil penalties on “[a]ny physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion.” 18 U.S.C. § 1531 (a). A brief summary of the various abortion procedures is set forth below to aid in an understanding of the Act’s scope and the procedure or procedures that it prohibits.
2
A. Established Abortion Procedure
A full-term pregnancy lasts for approximately 40 weeks, measured from the date of the woman’s last menstrual period (“Imp”).
3
Traditionally, pregnancy is divided into three trimesters, with the first trimester lasting until about the 13th or 14th week of pregnancy, the second lasting until about the 27th week, and the third lasting until birth.
See, e.g.,
Trial Transcript (“Tr.”) Yol. 1 at 14:2-20 (Paul). A fetus is considered viable, meaning that it has a realistic chance of long-term survival outside the uterus, at approximately 24 weeks Imp. Tr. Vol. 1 at 14:21-15:5 (Paul); Tr. Vol. 7 at 1119:23-1120:3 (Sprang), Tr. Vol. 9 at 1355:18-22 (Cook, finding viability at 23 weeks).
If a woman chooses to terminate her pregnancy, a doctor will use different medical techniques depending on the gestational age of the fetus. Second trimester abortions, the main subject of this litigation, generally involve one of two procedures: dilation and evacuation (“D & E,” or surgical abortion) or induction (which is also known as a medical abortion, meaning that drugs are administered to abort the pregnancy).
4
Other methods that are used much more rarely are hysterotomy (the caesarean removal of the fetus from the uterus) and hysterectomy. Tr. Vol. 1 at 44:7-47:2, 46:8-46:22 (Paul); Exh. 7 (table 16).
1. D&E
A D & E abortion is a surgical procedure, which is performed in two steps: dilation of the cervix and surgical removal
*961
of the fetus.
See, e.g.,
Tr. Vol. 1 at 50:10-15 (Paul). About 85-95% of all second trimester abortions performed in the United States are D & Es. Tr. Vol. 1 at 48:24-49:17 (Paul); Trial Exhibit (“Exh.”) 7 (table 18) (noting that D
&
Es make up 95% of all abortions taking place between 16 and 20 weeks of pregnancy, and 85% of all abortions taking place after 20 weeks); Tr. Vol. 5 at 804:2-3 (Westhoff).
5
To begin the D
&
E process, the woman’s cervix is first dilated with osmotic dilators used either alone or in conjunction with drugs known as prostaglandins (or misoprostyl).
6
This encourages the cervix to expand in width and shorten in length, as if in preparation for labor, and will permit the doctor to introduce surgical instruments into the woman’s uterus. Tr. Vol. 1 at 50:25-62:6 (Paul); Tr. Vol. 1 at 167:5-10 (Sheehan); Tr. Vol. 3 at 400:18-402:22(Doe); Tr. Vol. 4 at 509:4-511:19 (Broekhuizen); Tr. Vol. 4 at 657:13-662:25 (Creinin); Tr. Vol. 5 at 811:18-812:20 (Westhoff), Tr. Vol. 11 at 1718:4-1720:10 (Chasen). Doctors need more dilation as gestational age increases, and generally try to achieve a minimum of one millimeter of dilation for each week of gestation (for example, a doctor would try to achieve 20 millimeters, or 2 centimeters, of dilation for a 20 week fetus). Tr. Vol. 2 at 182:6-14 (Sheehan); Tr. Vol. 3 at 402:3-5(Doe); Tr. Vol. 4 at 661:22-662:1 (Creinin).
7
However, the amount of cervical dilation that can be achieved is individual to each woman and cannot necessarily be controlled. Tr. Vol. 1 at 55:8-14 (Paul); Tr. Vol. 2 at 14-15 (Sheehan); Tr. Vol. 3 at 402:10-18(Doe); Tr. Vol. 8 at 1283:3-8 (Shadigian); Tr. Vol. 4 at 661:19-21 (Crei-nin). For instance, women who have previously undergone childbirth often will achieve greater dilation in a shorter period of time than women who have not. Tr. Vol. 1 at 62:2-5 (Paul); Tr. Vol. 2 at 182:20-183:1 (Sheehan); Tr. Vol. 4 at 662:2-9 (Creinin); Tr. Vol. 5 at 812:12-13 (Westhoff); Tr. Vol. 11 at 1723:17-1724:6 (Chasen).
Dilation can take place over a period of time ranging from 90 minutes up to one or two days, depending on the practice of the physician. The process can be accelerated if drugs to induce dilation are administered along with the placement of laminaria in the cervix. Tr. Vol. 1 at 55:4-7, 59:9-11 (Paul, using a half to one-day dilation procedure); Tr. Vol. 1 at 180:21-183:10 (Shee-han, using a two-day dilation procedure); Tr. Vol. 3 at 401:7-402:22 (Doe, using a one-day dilation procedure); Tr. Vol. 4 at 659:23-24 (Creinin, using a one-day dilation procedure); Tr. Vol. 5 at 812:6-812:20 (Westhoff, using a two day-dilation procedure); Tr. Vol. 11 at 1719:10-25 (Chasen, using a two-day dilation procedure). If the doctor opts to perform dilation over an
*962
extended period of time, the procedure often takes place in an outpatient setting, so the woman can participate in her usual daily activities and spend the night at home.
See, e.g.,
Tr. Vol. 1 at 45:15-19, 60:1-6 (Paul); Tr. Vol. 2 at 181:11-14 (Sheehan); Tr. Vol. 3 at 402:21-22(Doe); Tr. Vol. 4 at 659:25-660:5 (Creinin).
The woman then returns to the clinic or hospital the next day, and, if sufficient dilation has been achieved, she is then placed under some form of sedation, and the cervix is prepared for surgery.
8
The doctor will then place forceps in the uterus, and, usually under ultrasound guidance, grasp the fetus with the forceps and then remove the fetus by pulling it through the cervix and vagina. This process usually causes the fetus to disarticu-late. It usually takes about 10-15 “passes” through the uterus to remove the entire fetus. When the entire fetus has been removed, the doctor then uses a suction tube, or cannula, to remove the placenta from the uterus and to ensure that no fetal parts have been left behind. Tr. Vol. 1 at 62:7-68:21, 69:9-21 (Paul); Tr. Vol. 2 at 183:15-186:13 (Sheehan); Tr. Vol. 3 at 402:23^l04:12(Doe); Tr. Vol. 4 at 514:20-526:17 (Broekhuizen); Tr. Vol. 4 at 663:1-668:4 (Creinin); Tr. Vol. 5 at 812:21-818:7 (Westhoff). All the testifying experts who perform this procedure use ultrasound to provide visual guidance for second trimester abortions. Tr. Vol. 1 at 67:6-7 (Paul); Tr. Vol. 1 at 168:6-13 (Shee-han); Tr. Vol. 3 at 403:16-19(Doe); Tr. Vol. 4 at 515:15-24 (Broekhuizen); Tr. Vol. 4 at 668:13-17 (Creinin); Tr. Vol. 11 at 1721:11-15 (Chasen).
This process takes between 10-15 minutes on average, and can take place either in an outpatient setting or in a hospital. Tr. Vol. 1 at 62:8-9, 73:2-4 (Paul); Tr. Vol. 2 at 186:12-13 (Sheehan); Tr. Vol. 3 at 407:24-408:l(Doe); Tr. Vol. 4 at 524:11-14 (Broekhuizen, averaging 10-15 minutes, but noting range of 5 to 40 minutes); Tr. Vol. 5 at 741:5-742:2 (Creinin, averaging 10-15 minutes, but noting range of up to 40 minutes).
Some doctors, but not all, also give an injection of either digoxin or potassium chloride (“KCI”) either directly into the fetus’ heart or in the amniotic fluid surrounding the fetus to effect fetal demise before the procedure is commenced.
Compare
Tr. Vol. 2 at 16-196:6 (Sheehan, who routinely offers digoxin); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen)
with
Tr. Vol. 2 at 328:24-329:18 (Drey, who only offers digoxin when specifically requested to do so), Tr. Vol. 3 408:7-13, 416:14-419:19 (Doe, who does not routinely effect fetal demise before procedure); Tr. Vol. 5 at 819:20-820:5 (Westhoff); Tr. Vol. 11 at 1780:20-1782:21 (Chasen).
2. Induction
The second-most common method of second trimester abortion is induction. About 5% of all second trimester abortions from 14-20 weeks are by induction; after 20 weeks, that percentage increases to 15%. Tr. Vol. 1 at 48:24-49:17 (Paul); Exh. 7 (table 18).
Since the uterus in the second trimester of pregnancy is not inclined to expel the fetus, contractions must instead be artificially induced through the use of chemical agents. In an induction, the woman is given medication to induce labor to expel the fetus. Inductions were previously triggered by saline injections into the uterus, but the most current medical tech-
*963
ñiques now call for the administration of misoprostyl or oxytocin to induce contractions and labor. Tr. Vol. 3 at 409:4-409:21(Doe); Tr. Vol. 4 at 527:6-529:20 (Broekhuizen, noting that “We are kind of overriding nature because ... there are usually signals at this time that suppress uterine activity”); Tr. Vol. 5 at 15:20 (Crei-nin, “We have to give very high doses of medicines, much higher than you would give at term, just because we are trying to override the fact that the uterus doesn’t want to do this process. So you have to make the uterus contract so strongly that it can break apart”); Tr. Vol. 11 at 1777:12-1778:9 (Chasen);
see also
Tr. Vol. 6 at 948:3-9, 950:5-15 (Bowes).
But see
Tr. Vol. 7 at 1093:1-7 (Sprang, testifying induction is more natural); Tr. Vol. 9 at 1391:21-1392:19 (Cook).
An induction abortion takes anywhere from 6 to 48 hours to complete, and in ten percent of inductions, the woman must also undergo a D & E to remove unexpelled matter from the uterus (usually the placenta). Tr. Vol. 3 at 409:18-410:9, 414:3-7 (Doe, stating that most inductions occur within 24 hours and noting complications); Tr. Vol. 4 at 527:6-532:13 (Broekhuizen, giving range of time as 8 to 72 hours, and discussing possible complications requiring subsequent D & E); Tr. Vol. 5 at 715:8-24 (Creinin); Tr. Vol. 8 at 1268:18-21, 1287:19-1289:5 (Shadigian) (stating that most inductions take place between 4 and 24 hours but can take up to 2 and a half days). Because an induction requires around-the-clock monitoring for at least 24 hours, these abortions can take place only in a hospital setting. Tr. Vol. 1 at 45:20-46:7 (Paul); Tr. Vol. 4 at 526:8-527:2 (Broekhuizen).
An induction is more likely to result in the delivery of an intact fetus, so when a fetal autopsy might be needed, doctors will recommend this procedure. Tr. Vol. 3 at 408:14-409:3(Doe); Tr. Vol. 9 at 1399:11-1400:4 (Cook). However, if the induction takes too long to complete, the fetal tissue breaks down and becomes unuseable for medical study. Tr. Vol. 11 at 1758:7-19 (Chasen).
3. Hysterotomy and Hysterectomy
Two other methods of second trimester abortion are also available, but are very rarely used. A hysterotomy, like a caesarean delivery, involves the surgical removal of the fetus through an incision in the uterus, and a hysterectomy involves the removal of the woman’s entire uterus. Tr. Vol. 1 at 46:8-47:2 (Paul); Exh. 7 (table 18, indicating these procedures make up .01% of all abortions and .07% of all second trimester abortions).
Both of these procedures are considered major surgery and are not recommended except in the case of extreme emergency.
See also, e.g.,
Tr. Vol. 1 at 82:9-12 (Paul, noting that hysterotomy and hysterectomy are not really options because of their high rate of mortality and morbidity); Tr. Vol. 11 at 1767:6-1768:4 (Chasen, stating that hysterotomy and hysterectomy should only be used when fetus must be delivered immediately to save the life or health of the woman); Tr. Vol. 6 at 972:6-8 (Bowes).
B. Contested Abortion Procedure
The government argues that none of these previously-described procedures (1st trimester abortion procedures, D & E, induction, hysterotomy, or hysterectomy) are banned by the Act. Rather, the Act prohibits a specific second trimester abortion technique, which the Act refers to as “partial-birth abortion.”
1. The Act
The Act defines “partial-birth abortion” as:
an abortion in which a physician deliberately and intentionally vaginally delivers
*964
a living, unborn child until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered infant, performs this act, and then completes delivery of the dead infant.
Act § 2(1);
see also
18 U.S.C. § 1531 (b) (statutory definition). The term “partial-birth abortion,” however, is neither recognized in the medical literature nor used by physicians who routinely perform second trimester abortions.
See, e.g.,
Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at 420:23-421:2(Doe);
but see
Tr. Vol. 6 at 901:5-19 (Bowes); Tr. Vol. 8 at 1219:23-1220:8 (Shadigian); Tr. Vol. 9 at 1386:7-1387:7 (Cook) (arguing “partial-birth abortion” is a medically recognized term). The language of the Act obviously omits any reference to D
&
X, D & E, or “intact” extraction.
2. Dr. Haskell and ACOG
The debate over this procedure appears to have been initiated by a presentation given by Dr. Marvin Haskell in 1992 before the National Abortion Federation (“NAF”).
See
Partial-Birth Abortion Ban Act of 2002: Hearing on H.R. 4965 before the Subcomm. on the Constitution of the House Comm, on the Judiciary, 107th Cong. 2nd Sess at 127-34 (2002) (“Record Exh. C”) (copy of article).
9
In that presentation, Dr. Haskell outlined a variant on D & E abortions in which the fetus was removed either intact or nearly intact rather than through disarticulation.
10
To distinguish this variant from the standard D & E by disarticulation, Dr. Haskell coined the term “D & X,” or “dilation and extraction.”
Id.
at 127 .
Dr. Haskell described a procedure in which 1) the woman’s cervix is dilated through the use of up to 20-30 osmotic dilators over a two-day period; 2) the physician inserts forceps into the woman’s uterus and, if the fetus is not presented in a breech position (feet first), the physician performs an “internal podalic version” of the fetus and inverts the fetus so that it is presenting in a breech position; 3) the fetus is extracted intact through the cervix and vagina until its head, or calvarium, is lodged at the cervical opening, or os; and 4) the physician inserts scissors and a suction cannula into the fetus’ skull and drains brain tissue from the .calvarium, which causes the calvarium to collapse to the point at which it can be extracted from the uterus. Record Exh. C at 129-131;
see also, e.g.,
Tr. Vol. 8 at 1219:12-1220:4 (Shadigian), Tr. Vol. 9 at 1386:7-1387:7 (Cook).
In response to the subsequent debate over this procedure, the American College of Obstetricians and Gynecologists (“ACOG”) subsequently coined the term “intact D
&
X,” which was defined as: 1) deliberate dilation of the cervix, usually over a sequence of days, 2) internal podalic version of the fetus to a breech position; 3) breech extraction of the fetus up to the calvarium, and 4) the extraction of the fetal cranial contents to permit vaginal delivery of a dead, intact fetus. Cain Depo. 164:8-166:17; Exh. 3;
see also, e.g.,
Tr. Vol. 5 at 735:8-736:2 (Creinin).
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3. Trial Testimony
At trial, plaintiffs presented the testimony of a number of physicians who perform D
&
E abortions by procedures which they believe might violate the Act. Several physicians report that occasionally while performing a D & E, they encounter a situation where they believe it will be possible to remove the fetus either intact or largely intact. This occurs when the woman’s cervix is dilated to such a degree that the fetus can be extracted up to the head, in either one or two “passes” with the forceps. The potential for a largely intact removal cannot be ascertained until the surgical procedure has already begun, and depends primarily on how the cervix presents at the commencement of the procedure. Tr. Vol. 1 at 67:24-68:1, 71:17-24 (Paul); Tr. Vol. 2 at 205:16-24, 206:5-13 (Sheehan); Tr. Vol. 8 at 406:24-407:ll(Doe); Tr. Vol. 5 at 784:-786:23 (Creinin); Tr. Vol. 5 at 815:3-816:22, 818:18-21(Westhoff).
The number of times this occurs varied per doctor, but ranged from between 5% to 33% of all D
&
Es performed, with most doctors reporting occurrences of around 5-15% of the time.
11
Tr. Vol. 1 at 71:8-19 (Paul, estimating 5-10%); Tr. Vol. 2 at 188:13-12 (Sheehan, reporting approximately 20% the week before); Tr. Vol. 3 at 406:10-16 (Doe, estimating 15-20%).
Notably, since Dr. Haskell’s paper and presentation, the process has evolved. While some physicians perform abortions in this circumstance using the four steps outlined by ACOG or Dr. Haskell, many others do not.
Some physicians insert up to 25 osmotic dilators over a two day period (known as “serial dilation”) to increase the likelihood of an intact D & E, while others simply proceed as they do for a standard D
&
E by disarticulation. Some physicians perform podalic version, while others do not. Some physicians puncture the calvarium and suction out the cranial contents, others disarticulate the calvarium and crush it with forceps before extraction, while yet others use forceps to collapse the calvari-um while it is still attached.
See, e.g.,
Tr. Vol. 1 69:22-70:6, 78:25-79:7 (Paul, who collapses the attached skull with forceps or disarticulates at the neck); Tr. Vol. 2 at 184:15-17, 193:22-24 (Sheehan, who does same, and does not perform podalic version); Tr. Vol. 3 at 405:19-406:9 (Doe, who disarticulates calvarium and crushes with forceps, and sometimes performs podalic version); Tr. Vol. 4 at 516:8-24, 523:1-524:10, 589:23-590:1, 615:7-13 (Broekhuizen, who sometimes practices serial dilation, sometimes performs podalic version when grasping for fetal part, and punctures cal-varium); Tr. Vol. 4 at 668:18-669:19, 680:11-681:1 (Creinin, who performs podalic version and punctures or disarticulates calvarium); Tr. Vol. 5 at 801:22-802:3 (Westhoff, who punctures calvarium); Tr. Vol. 11 at 1718:4-1725:10 (Chasen, who uses up to 25 dilators, performs podalic version, and punctures calvarium).
Furthermore, although Dr. Haskell inserted scissors or trocars by touch, all of the physicians who testified stated that they could see the insertion point, either directly or through ultrasound, before any insertions were made. Tr. Vol. 1 at 67:6-7 (Paul); Tr. Vol. 1 at 168:6-13 (Sheehan); Tr. Vol. 3 at 403:16-19(Doe); Tr. Vol. 4 at 632:2-8, 638:18-640:7 (Broekhuizen); Tr. Vol. 4 at 682:14-19 (Creinin); Tr. Vol. 5 at 801:25-802:5, 818:8-11 (Westhoff); Tr. Vol. 11 at 1722:10-13 (Chasen).
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Most significantly, all of the testifying physicians who have performed intact extractions refer to this procedure as a variant of D & E, and not as an entirely separate procedure.
See, e.g.,
Tr. Vol. 1 at 44:,14r-45:14 (Paul); Tr. Vol. 2 at 188:20-189:2, 205:16-13 (Sheehan); Tr. Vol. 3 at 406:17-23(Doe); Tr. Vol. 11 at 1721:16-23, 1723:4-1724:21 (Chasen). The only physicians who referred to it as a separate procedure were witnesses who had never performed the procedure. Tr. Vol. 6 at 959:10-960:3 (Bowes); Tr. Vol. 7 at 1034:8-1035:21, 1094:5-8 (Sprang); Tr. Vol. 8 at 1214:3-1215:3, 1232:14-1233:7 (Shadigian); Tr. Vol. 9 at 1374:4-9, 1380:7-18,1389:8-13 (Cook). Accordingly, the court will refer to the procedure throughout this order as “intact D & E.”
II.
LEGAL FRAMEWORK
As noted, this case involves an issue similar to that confronted by the Supreme Court in
Stenberg .
In 1997, Dr. Leroy Carhart, a medical doctor who provides late-term abortions, sought a preliminary injunction enjoining Nebraska’s “partial-birth abortion” law. Carhart argued that the state’s ban subjected women seeking abortions to a significantly greater risk of injury or death than would be the case if he were permitted to perform the banned procedure. The United States District Court for the District of Nebraska granted Carhart’s request for a permanent injunction, and the Eighth Circuit affirmed.
The United States Supreme Court subsequently granted certiorari in 2000.
Stenberg,
530 U.S. at 914 , 120 S.Ct. 2597 . Before evaluating the Nebraska statute, the Court reiterated the standards for evaluating abortion regulations and restrictions set forth by the Court previously in
Roe v. Wade,
410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), and
Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992), as follows:
(1) Prior to viability, a woman has a constitutional right to choose to terminate her pregnancy.
Id.
at 921 , 112 S.Ct. 2791 . And, while the state has interests in protecting the health of the mother and the potentiality of human life,
see id.,
“[t]he State’s interest in regulating abortion previability is considerably weaker than postviability.”
Id.
at 930 , 112 S.Ct. 2791 . Prior to viability, a law that places an “undue burden” on a woman’s decision to terminate her pregnancy is unconstitutional.
Id.
at 921 , 112 S.Ct. 2791 .
(2) Subsequent to viability, the state may regulate and even proscribe abortion “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Id.
(citations omitted).
The
Stenberg
Court subsequently held that the Nebraska statute violated the Fourteenth Amendment on two different bases. First, it concluded that the Nebraska . statute was unconstitutional because it lacked any exception for the preservation of the health of the mother.
See id.
at 930-32 , 120 S.Ct. 2597 . Second, it concluded that. the state law placed an undue burden on a woman seeking a previ-ability abortion.
See id.
at 945 , 120 S.Ct. 2597 .
III.
PROCEDURAL HISTORY
Approximately three years after the Supreme Court decided
Stenberg ,
the 108th Congress passed the final version of the Act, which President George W. Bush signed into law on. November 5, 2003. Plaintiffs filed the instant lawsuit, claiming that the Act violates their Fifth Amendment due process rights. At or around the same time that plaintiffs filed their lawsuit with this court, plaintiffs National Abortion Federation, et ah, and Dr. Leroy Carhart, plaintiff in the
Stenberg
case, and
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other physicians, filed similar lawsuits challenging the Act in the United States District Courts for the Southern District of New -York (“New York court”) and the District of Nebraska (“Nebraska court”), respectively.
See National Abortion Federation v. Ashcroft,
No. 03-8695 RCC (S.D.N.Y.);
Carhart v. Ashcroft,
No. 4:03CV3385 (D.Neb.).
On November 6, 2003, one day after the President signed the Act into law, this court issued an injunction temporarily enjoining enforcement of the Act. The New York and Nebraska courts also temporarily enjoined enforcement of the Act.
At the request of the Attorney General (“the government”), the hearing on the plaintiffs’ motion for a preliminary injunction was merged with the trial on the merits, and with the government’s consent, the matter was continued for approximately 120 days during which the parties engaged in expedited discovery and trial preparation. On March 19, 2004, the court extended the temporary restraining order to a reasonable time after trial on the merits, for preparation of the instant findings of fact and conclusions of law. Subsequently, on March 29, 2004, the bench trial in this case commenced, lasting approximately three weeks.
In addition to the sizeable Congressional Record submitted by both parties, this court heard testimony from a total of thirteen expert witnesses, and reviewed the deposition testimony of an additional six expert witnesses.
ISSUES
Plaintiffs contend that the Act is unconstitutional, for the following reasons:
(1)the Act places an undue burden on a woman’s right to choose;
(2) the Act is impermissibly vague because it fails to clearly define the prohibited medical procedures, thereby depriving physicians of fair notice and encouraging arbitrary enforcement;
(3) the Act’s failure to provide an exception for the health of the mother violates á woman’s Fifth Amendment due process rights as set forth by the Supreme Court in
Casey
and
Stenberg ;
and
(4) the Act violates a woman’s due process right to bodily integrity.
12
DISCUSSION
I.
STANDARD OF REVIEW
The 108th Congress made numerous findings in support of the Act. The government 'argues that this court must afford those findings substantial deference, while the plaintiffs, on the other hand, contend that this court need not accord the findings any deference. However, the congressional findings, the deference afforded them, and their interplay with the trial evidence in this case, are relevant primarily with respect to the issue regarding the necessity of a health exception, and are therefore discussed in the context of this court’s findings and conclusions in that section below.
The other issues involving the construction and validity of the Act: whether the Act places an undue burden on a woman’s right to choose, and the alleged vagueness of the Act, are issues of law, which this court reviews
de novo. See, e.g., Taylor v. Delatoore,
281 F.3d 844, 847 (9th Cir.2002);
Free Speech Coalition v. Reno,
198 F.3d 1083, 1090 (9th Cir.1999) (construction and constitutionality of statute are issues of law reviewed
de
novo). Accordingly, both plaintiffs and the govern
*968
ment agree that this court “is tasked with independently determining ... the [constitutional] validity of the [A]ct.”
See
Government’s January 30, 2004 reply brief at 10;
see also
March 1, 2004 amicus brief at 8 (“this Court must make an independent legal judgment regarding whether the applicable law unduly burdens [a woman’s right to terminate her pregnancy]”).
The court, therefore, discusses first the issues of undue burden and vagueness, setting forth its findings and conclusions on the issues, and subsequently, turns to the necessity of a health exception. In the section regarding the health exception, the court sets forth its findings of fact based on the trial evidence, and then discusses the legislative history of the Act and the record before Congress supporting the congressional findings. The court then provides its conclusion regarding the deference to be afforded the congressional findings, and its conclusions of law, based on the congressional findings and the evidence before this court, regarding the necessity of a health exception.
II.
UNDUE BURDEN
A. Introduction
In
Stenberg ,
one of the two bases for the Supreme Court’s holding that the Nebraska statute was unconstitutional was that the statute “ ‘impose[d] an undue burden on a woman’s ability to choose a D & E abortion, thereby unduly burdening the right to choose abortion itself.”
Stenberg,
530 U.S. at 930 , 120 S.Ct. 2597 (citing
Casey,
505 U.S. at 874 , 112 S.Ct. 2791 ).
The Court noted that an undue burden is created by a law that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Id.
at 921 , 120 S.Ct. 2597 . It subsequently held that Nebraska’s partial-birth abortion ban posed an unconstitutional undue burden on a woman’s decision because the language of the statute was broad enough that it could be interpreted to include a ban on previability D & Es, the most common second trimester abortion procedure, thereby unconstitutionally placing an obstacle in the path of a woman seeking a previability second trimester abortion.
Id.
at 945 , 120 S.Ct. 2597 .
B. Parties’ Positions
Plaintiffs claim that, similar to the Nebraska statute in
Stenberg ,
the Act here poses an undue burden on a woman’s decision to have an abortion prior to viability. Plaintiffs contend that the Act likewise bans other safe second trimester procedures, including D & E and induction abortions. They argue that the definition of “partial-birth abortion” in the Act is so broad that any abortion performed by the two safest, most common abortion procedures used in the second trimester of pregnancy, prior to fetal viability — D
&
E and induction- — could proceed so as to violate the Act. Accordingly, plaintiffs assert that the Act is unconstitutional as a matter of law.
Moreover, plaintiffs contend that regardless of any interpretation that the government may advance regarding the procedures banned by the Act, the court must follow the language of the definition of “partial-birth abortion” in the Act.
Stenberg,
530 U.S. at 942 , 120 S.Ct. 2597 (rejecting Nebraska Attorney General’s suggestion that the term “partial-birth abortion” is “ordinarily associated with the [intact D & E] procedure” because “[w]hen a statute includes an explicit definition, we must follow that definition even if it varies from that term’s ordinary meaning”);
see also Reno v. ACLU,
521 U.S. 844 , 884 n. 49, 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (federal courts lack the authority to rewrite a statute to conform it to constitutional requirements).
*969
The government, on the other hand, devoted very little attention to the undue burden issue at trial and in its pre-trial and post-trial submissions to the court. That was in spite of this court’s conclusion in its order temporarily enjoining the Act that “the scope of the Act may impermissi-bly encompass [all] D & E procedures and thus -impose an undue burden on a woman’s right to choose.”
See
November 7, 2003 Order.
Instead, as it did in its papers in opposition to the temporary restraining order, the government continues to mistakenly conflate plaintiffs’ undue burden challenge with the issue of vagueness. The government’s position is simply that Congress intended to ban only intact D & Es, and that the Act is not vague and should be interpreted to apply only to intact D & E abortions — not to D
&
Es by disarticulation, inductions, or other abortion procedures. Therefore, according to the government, there can be no undue burden.
The government’s approach, however, ignores the fact that the two issues, while somewhat related, are nevertheless distinct. The Act may be unduly burdensome under
Casey ,
yet not unconstitutionally vague. For example, this court could find that the Act was sufficiently specific regarding the description of the conduct that violates the Act; however, at the same time, the court could conclude that the prohibited conduct may be interpreted to encompass other safe second trimester abortion procedures besides intact D & E. Accordingly, the court rejects the government’s framework for analyzing the undue burden issue.
C. Legal Background
The government misconstrues the test regarding undue burden, narrowing the inquiry to whether the regulation poses a
“significant threat
to the ... health of a woman.” However, as the Supreme Court noted in
Stenberg ,
“[a]n ‘undue burden is ... shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ ” 530 U.S. at 921 , 120 S.Ct. 2597 (quoting
Casey,
505 U.S. at 877 , 112 S.Ct. 2791 ).
The Nebraska statute at issue in
Sten-berg
proscribed:
deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child.
530 U.S. at 938 , 120 S.Ct. 2597 (quoting Neb.Rev.Stat. Ann. § 28-326(9) (Supp. 1999)).
The state of Nebraska agreed that the statute would impose an undue burden if it applied to the more commonly used D
&
E procedure as well as to the intact D
&
E procedure.
Id.
at 938, 120 S.Ct. 2597 . However, the state argued that the statute’s aim was to ban intact D & E and that the statute differentiated between D & E and intact D & E.
The Supreme Court, however, rejected the state’s arguments. The Court held that regardless of the statute’s “aim,” “its language makes clear that [in addition to intact D & E], it also covers a much broader category of procedures.”
Id.
at 939 , 120 S.Ct. 2597 . It noted that “[t]he language [of the statute] does not track the medical differences between D
&
E and [intact D & E] — though it would have been a simple matter ... to provide an exception for the performance of D & E and other abortion procedures.”
Id.
Moreover, that the state of Nebraska “generally intended to bar intact D & E” could be correct, but according to the Supreme Court was “irrelevant.”
Id.
at 939 .
*970
Instead, the relevant inquiry was “whether the law was intended to apply
only
to [intact D
&
E].”
Id.
The Court noted that “even were we to grant the [Nebraska] Attorney General’s views [regarding the aim of the statute] substantial weight, [the Court] would still have to reject his interpretation [because] it conflicts with the statutory language.”
Id.
at 942 , 120 S.Ct. 2597 .
In holding that the statute constituted an undue burden, the Court further concluded that:
[U]sing this law some ... prosecutors ... may choose to pursue physicians who use D & E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman’s right to make an abortion decision.
Id.
at 945-46 , 120 S.Ct. 2597 .
D.
Stenberg :
Comparison of Act’s Language to Nebraska Statute
In contrast to the Nebraska statute in
Stenberg ,
the Act here forbids:
deliberately and intentionally vaginally delivering] a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.
18 U.S.C. § 1531 (b)(1)(A).
The government correctly notes that the language of the Act differs from the statute in
Stenberg
in three respects: 1) the Act requires delivery of the fetus outside of the mother; 2) the Act specifies the required protruding fetal parts; and 3) the Act proscribes an overt act distinct from the completion of the delivery itself.
i.
Location of Delivered Fetus
While the Nebraska statute applied where the living fetus or a substantial portion thereof was delivered “into the vagina,” the Act here specifies vaginal delivery “outside the body of the mother.” Neb.Rev.Stat. § 28-326(9); 18 U.S.C. § 1531 (b)(1)(A). The government contends that the constitutional infirmities of the Nebraska statute are avoided because D
&
Es by disarticulation, as compared to intact D
&
Es, are generally internal dismemberment procedures, and, as the Act here does not apply to procedures performed internally, it does not encompass D & Es by disarticulation.
ii.
Fetal Parts
In
Stenberg ,
the Nebraska statute required the delivery into the vagina of “a living unborn child or
substantial portion thereof.”
Neb.Rev.Stat. § 28-326(9). The Supreme Court took issue with this language, noting that it could
not understand how one could distinguish, using this language, between D & E (where a foot or arm is drawn through the cervix) and [intact D & E] (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D & E will often involve a physician pulling a “substantial portion” of a living fetus, say, an arm or leg, into the vagina prior to the death of the fetus.
Stenberg,
530 U.S. at 938-939 , 120 S.Ct. 2597 .
The Act, on the other hand, specifies vaginal delivery of “a living fetus until, in the case of a head-first presentation,
the entire fetal head
is outside the body of the mother
or
in the case of a breech presentation,
any part of the fetal trunk past the
*971
navel
is outside the body of the mother.” 18 U.S.C. § 1581 (b)(1)(A). The government likewise argues that inclusion of this language avoids the constitutional infirmities in
Stenberg
because the Act provides “a specific anatomic landmark.”
iii.
Overt Act
The language of the Act regarding completion of the abortion also varies somewhat from the Nebraska statute in
Stenberg .
In addition to defining the prohibited procedure, the Act provides that the physician “perform[] the overt act, other than completion of delivery, that kills the partially delivered living fetus.” 18 U.S.C. § 1531 (b)(1)(B). In comparison, the Nebraska statute defined the prohibited abortion procedure, and with respect to completion of the abortion, provided that the procedure “does kill the unborn child.” Neb.Rev.Stat. § 28-326(9).
The government argues that this further distinguishes the Act from the statute in
Stenberg .
It argues that the language distinguishes intact D & Es from other procedures because the specific act to kill the fetus must happen at a particular point and place in time. According to the government, “the fact that during the course of a D
&
E [by disarticulation] or induction, some ‘overt act’ is taken to kill a living fetus ... does not render D & E or induction unlawful” because the overt acts characteristic of the other procedures do not occur under the other requirements specified by the Act.
E. Findings of Fact
This court concludes, however, based on the findings set forth below, that despite linguistic differences between the Nebraska statute in
Stenberg
and the Act, the Act nevertheless poses an undue burden on a woman’s right to choose an abortion because the Act encompasses not only intact D
&
E procedures, but other previability D & E procedures and possibly inductions as well, in violation of the Supreme Court’s holding.
Specifically, this court finds, based on the evidence before it, that:
13
1. Like the Nebraska statute in
Sten-berg,
the Act bans abortions performed at any time during a pregnancy, regardless of gestational age or fetal viability. In fact, Congress rejected alternatives and amendments to the Act that would have limited its applicability to viable fetuses.
See
149 Cong. Rec. S3600 (daily ed. March 12, 2003) (statement of Sen. Feinstein); 149 Cong. Rec. H4939 (daily ed. June 4, 2003) (statement of Rep. Greenwood); 149 Cong. Rec. H4948 (daily ed. June 4, 2003) (statement of Rep. Baldwin).
2. In performing all D & Es, including D & Es by disarticulation, and inductions, physicians “deliberately and intentionally” extract the fetus from the woman’s uterus and through her vagina. Tr. Vol. 1 at 76:19-21 (Paul); Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at 422:3-12(Doe); Tr. Vol. 5 at 822:0-823:12 (Westhoff). Extraction of the fetus from the uterus, if brought through the cervix and vagina (as opposed to through an incision in the woman’s abdomen), is called a “vaginal delivery.” Tr. Vol. 1 at 75:20-76:5 (Paul); Tr. Vol. 3 at 421:6-ll(Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff).
3. The fetus may still have a detectable heartbeat or pulsating umbilical cord when the uterine evacuation begins in any D & E or induction, and may be considered a “living fetus.” Tr. Vol. 1 at 67:3-11; 76:6-
*972
18 (Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at 421:12-18(Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
4. Plaintiffs’ and the government’s experts agree that in any D & E or induction, a living fetus may be extracted in a breech presentation until some “part of the fetal trunk past the navel is outside the body of the mother.” Tr. Vol. 6 at 945:17-21 (Bowes); Tr. Vol. 8 at 1283:17-20 (Shadigian); Lockwood Depo 235:16-24; Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 1 at 99:16-2; 201:9-16 (Sheehan); Tr. Vol. 2 at 281:22-282:3 (Drey); Tr. Vol. 3 at 405:4-12; 422:3-19(Doe); Tr. Vol. 4 at 521:2-15; 551:19-552:4 (Broekhuizen); Tr. Vols. 4 & 5 at 678:23-679:14; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
5. In a D
&
E, this may occur under a variety of scenarios, including when:
(A) on an initial pass into the uterus with forceps, the physician disarticulates a small fetal part, which does not cause immediate demise, and then on a subsequent pass, the fetus is brought out of the cervix past the fetal navel;
(B) on an initial pass into the uterus with forceps, the physician brings out a fetal part — either attached to the rest of the fetus, or not — that is “part of the fetal trunk past the navel,” but the extraction does not cause immediate demise;
(C) the physician extracts the fetus intact until the calvarium lodges at the internal cervical opening; or
(D) the physician extracts the fetus intact until “part of the fetal trunk past the navel is outside the woman’s body,” but it is not extracted so far that the calvarium lodges at the cervical opening.
Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 2 at 201:9-202:1; 272:18-22 (Sheehan); Tr. Vol. 4 at 521:2-15; 551:1-18 (Broekhuizen); Tr. Vols. 4 & 5 at 681:8-16; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-1784:20 (Chasen).
6. In an induction, this may occur because fetal demise may not have occurred by the time the fetus passes through the woman’s cervix and vagina, and is outside the body of the woman past the fetal navel. Tr. Vol. 4 at 530:15-533:6 (Broekhuizen); Tr. Vol. 11 at 1784:21-1786:3 (Chasen).
7. In any D & E or induction, if the fetus has been brought to the point “where any part of the fetal trunk past the navel is outside the body of the mother” or “the entire fetal head is outside the body of the mother,” a physician may then, in order to complete the abortion in the safest manner, need to perform an “overt act,” short of completing delivery, that the physician knows the fetus cannot survive, if it is still living, and that “kills” the fetus. Lockwood Depo. 235:17-236:2; Tr. Vol. 1 at 79:8-16; 60:13-61:6; 69:22-25 (Paul); Tr. Vol. 3 at 422:3-19(Doe); Tr. Vol. 4 at 551:19-552:9 (Broekhuizen); Tr. Vol. 4 at 638:10-684:10 (Creinin); Tr. Vol. 11 at 1783:15-1786:3 (Chasen). This “overt act” may include disarticulation, cutting the umbilical cord, or compressing or decompressing the skull or abdomen or other fetal part that is obstructing completion of the uterine evacuation. Tr. Vol. 1 at 61:7-15; 70:1-6; 78:25-79:5 (Paul); Tr. Vol. 2 at 193:5-24; 205:8-15 (Sheehan); Tr. Vol. 3 at 405:13-22(Doe); Tr. Vol. 4 at 523:1-524:1 (Broekhuizen); Tr. Vol. 5 at 783:15 (Creinin).
8. The procedures described above are performed by the testifying physicians only on previable fetuses. Tr. Vol. 1 at 74:14-80:20 (Paul); Tr. Vol. 2 at 281:15-21 (Drey); Tr. Vol. 3 at 420:9-22(Doe); Tr. Vol. 4 at 550:18-552:9 (Broekhuizen); Tr. Vol. 4 at 657:3-8 (Creinin); Tr. Vol. 5 at
*973
822:9-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
9. For these reasons, any abortion performed using the D & E or induction method could proceed so as to violate the Act when performed in the safest manner. Tr. Vol. 1 at 92:2-93:4 (Paul); Tr. Vol. 1 at 165:11-21 (Sheehan); Tr. Vol. 2 at 282:20-283:3 (Drey); Tr. Vol. 11 at 1784:15-1786:3 (Chasen).
10. For the same reasons, the Act could also ban the steps that a physician takes when treating a woman who presents in the midst of a spontaneous second trimester miscarriage. Tr. Vol. 4 at 555:7-556:11 (Broekhuizen); Tr. Vol. 4 at 684:11-685:5 (Creinin); Tr. Vol. 5 at 824:4-24 (Westhoff); Tr. Vol. 11 at 1786:4-1787:9 (Chasen).
11. As part of their routine practice, eleven of the experts who testified before this court, including Drs. Paul, Sheehan, Doe, Drey, Broekhuizen, Creinin, West-hoff, Chasen, Hammond, Grunebaum, and Fredriksen, sometimes perform previability abortions, as described above, which would violate the act. Tr. Vol. 1 at 74:14-80:20 (Paul); Tr. Vol. 1 at 165:7-21 (Shee-han); Tr. Vol. 2 at 281:15-21 (Drey); Tr. Vol. 3 at 420:9-22(Doe); Tr. Vol. 4 at 550:18-552:9 (Broekhuizen); Tr. Vol. 4 at 657:3-8 (Creinin); Tr. Vol. 5 at 822:9-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen); Exh. 36, Exh. 37, Exh. 38.
12. When beginning a D & E or induction procedure, a physician cannot predict if the procedure will proceed in such a manner that it violates the Act, but the physician knows that is a possibility. Tr. Vol. 1 at 71:17-24 (Paul); Tr. Vol. 2 at 206:1-13 (Sheehan); Tr. Vol. 3 at 420:18-22; 426:5-7(Doe); Tr. Vol. 4 at 522:4-17 (Broekhuizen); Tr. Vol. 5 at 786:11-23 (Creinin).
13. Accordingly, because physicians may face criminal prosecution under the Act for violative procedures, the nature of which they cannot always predict, the Act would have a significantly negative impact on their practice and their relationships with their patients, and in some circumstances, already has.
See, e.g.,
Tr. Vol. 1 at 74:21-23 (Paul) (“my overriding concern is that if I continue to practice ... second trimester abortions in the way I believe is the safest for women, that I could be in prison”);
id.
at 92:8-13 (“I think [the Act] would have a tremendous impact on my practice. I would be forced with a decision I would have never faced before in medicine and that is as to whether to continue to do procedures in a way that I think are safest for women because if I did so, I would risk imprisonment”);
id.
at 93:5-12 (Act would undermine fundamental trust that physician has with patient because it would prevent them from giving best possible care); Tr. Vol. 4 at 563:3-16 (Broekhuizen) (the Act would “make it significantly more difficult to provide ... medically necessary services” and would force him to utilize fetocidal injections more frequently which “may not really be in the best interests of the patients”); Tr. Vol. 11 at 1787:10-23 '(Chasen) (fear of committing a criminal act may prevent physicians from giving their full attention while providing care); Tr. Vol. 5 at 820:6-20 (Westhoff) (describing complication that occurred as a result of a D & E performed utilizing fetocidal injection in attempt to avoid Act’s coverage); Tr. Vol. 2 at 204:14-205:3 (Sheehan) (the Act “would really cause a significant disruption between [me and] the patient”); Lockwood Depo. 68:2-68:16 (criminal penalties included in Act “further unravel physicians’ social contract with patients”).
F. Conclusions of Law
Accordingly, the court concludes that the definition of “partial-birth abortion” contained in the Act encompasses several second trimester abortion proce
*974
dures
in addition
to intact D
&
E. Physicians may perform each element contained in the Act’s definition in any D
&
E procedure, and in the course of certain induction abortions and treatment of spontaneous miscarriages as well. And, because D & E procedures comprise nearly 85-95% of all second trimester abortions, the Act creates a risk of criminal liability during virtually all abortions performed after the first trimester, and “has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Stenberg,
530 U.S. at 921 , 120 S.Ct. 2597 (quoting
Casey,
505 U.S. at 877 , 112 S.Ct. 2791 ). A majority of the physicians who testified noted that because they “fear prosecution, conviction, and imprisonment,” the wide net cast by the Act could have and has already had the effect of impacting all previability second trimester abortion services that they provide to their patients.
See id.
at 945-46 , 112 S.Ct. 2791 .
The government’s
argument
that Congress intended to ban only the intact D
&
E procedure is not convincing. First, as the Supreme Court noted in
Stenberg
in rejecting a nearly identical argument by the state of Nebraska, if Congress did not intend to prohibit procedures other than intact D & Es, it would have been simple for it to exclude other procedures.
See Stenberg,
530 U.S. at 939 , 120 S.Ct. 2597 (“it would have been a simple matter, for example, to provide an exception for the performance of D & E and other abortion procedures”);
see also Planned Parenthood of Central New Jersey v. Farmer,
220 F.3d 127, 140 (3rd Cir.2000) (holding New Jersey partial-birth abortion ban unconstitutional, and noting that “[i]f the Legislature intended to ban only the [intact D & E] procedure, it could easily have manifested that intent either by specifically naming that procedure or by setting forth the medical definition of [intact D & E] utilized by ACOG”);
cf. Women’s Medical Prof'l Corp. v. Taft,
353 F.3d 436, 452-53 (6th Cir.2003) (holding that Ohio partial-birth abortion ban did not pose an undue burden because it “avoided the flaws identified in
[Stenberg
] by precisely describing the restricted procedure and explicitly permitting D & E procedures”).
Moreover, it does not appear to this court that Congress simply overlooked the
Stenberg
Court’s language to this effect. Instead, it appears that Congress intentionally chose
not
to explicitly exclude D & Es. The government presented no evidence to this court that supported its arguments regarding congressional intent, and the Congressional Record suggests the contrary. Within Congress, opponents of the Act pointed out the potential over-breadth of the Act and proposed remedies regarding the scope. They noted that:
Medical experts testified just yesterday before the Constitution Subcommittee that the definition in the bill could easily be construed to ban the most commonly used second trimester procedure.
H.R. Report No. 108-58, at 80 (2003) (“Record Exh. A”). Congress, however, rejected the related amendments to narrow the scope of the Act.
However, even if it was Congress’ intent to limit the ban to intact D
&
Es, this court, like the Supreme Court in
Stenberg ,
is “without power to adopt a narrowing construction of [the statute] unless such a construction is reasonable and readily apparent.” 530 U.S. at 944 , 120 S.Ct. 2597 (citing
Boos v. Barry,
485 U.S. 312, 330 , 108 S.Ct. 1157 , 99 L.Ed.2d 333 (1988)). Even if this court were to accept the government’s argument that the phrase “partial-birth abortion,” as used by Congress, is commonly associated with the intact D & E procedure, the use of that phrase does not limit the scope of the Act to intact D & Es. Instead, the phrase “partial-birth abortion” is “subject to the statute’s
explicit statutory definition,”
which this court is required to follow even if that definition
*975
“varies from the term’s ordinary meaning.”
Id.
at 942-43, 120 S.Ct. 2597 (citing
Meese v. Keene,
481 U.S. 465, 484-85 , 107 S.Ct. 1862 , 95 L.Ed.2d 415 (1987));
see also Richmond Medical Center v. Hicks,
301 F.Supp.2d 499, 515 (E.D.Va.2004) (Virginia law posed an undue burden despite fact that it explicitly excepted from coverage “the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother where plain language of the Act [nevertheless] ban[ned] pre-viability D & Es and would cause those who perform such D & Es to fear prosecution, conviction, and imprisonment”). Here, for the reasons discussed above, the Act’s statutory definition casts a net wider than intact D & Es, and may include other previability abortion procedures, including D & Es by disarticulation, inductions, and treatment of spontaneous miscarriages.
However, even if this court were to find that linguistic differences in the Act make it less likely that the Act encompasses D & E by disarticulation procedures as did the Nebraska statute in
Stenberg ,
this court nevertheless concludes that the Act is unduly burdensome because, even assuming that the Act covers only the intact D
&
E procedure, the Act does not distinguish between previability and postviability in violation of
Roe
and
Casey. See Stenberg,
530 U.S. at 930 , 120 S.Ct. 2597 (the government’s “interest in regulating abortion previability is considerably weaker than postviability”). To the extent that a woman seeks or requires an intact D & E abortion prior to viability, this Act would undoubtedly place a substantial obstacle in her path and decision.
14
For the reasons stated above, the court finds that the Act is unconstitutional.
III.
CONSTITUTIONAL VAGUENESS
A. Parties’ Positions
Plaintiffs next challenge the Act on the ground that it is void for vagueness, in violation of the Due Process Clause, because the Act fails to clearly define the prohibited medical procedures and does not use terminology that is recognized in the medical community. Therefore, according to plaintiffs, it deprives physicians of fair notice and encourages arbitrary enforcement.
15
The government, however, contends that the inclusion of scienter requirements in the Act mitigates any possible vagueness.
See, e.g., Village of Hoffman Estates v. Flipside,
455 U.S. 489, 499 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982);
Colautti v. Franklin,
439 U.S. 379 , 395 n. 13, 99 S.Ct. 675 , 58 L.Ed.2d 596 (1979). It cites to three statutory phrases in the Act that it contends constitute scienter requirements. These phrases appear in § 1531(a), and in § 1531(b)(1)(A) (defining partial-birth abortion), and provide in pertinent part:
(a) Any physician who, in or affecting interstate or foreign commerce,
knowingly performs
a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both....
*976
(b) As used in this section—
(1) the term “partial-birth abortion” means an abortion in which the person performing the abortion—
(A)
deliberately and intentionally
vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother,
for the purpose of
performing an overt act that the person knows will kill the partially delivered fetus....
(Emphasis added.)
The government contends that the inclusion of these scienter requirements as emphasized above remedies any vagueness. It claims that because of the scienter requirements, “the Act does not criminalize situations, during a D
&
E [by disarticulation], in which a living fetus may be delivered, by happenstance, intact or even [in] cases where the partial delivery of the intact fetus is intentional or forseeable, but only procedures where the provider deliberately delivers the fetus both in the manner described by the Act and
with
a specific intent from the outset to perform an overt act that the provider knows will kill the fetus.”
B. Legal Standard
The Supreme Court has unambiguously stated that vague laws are unconstitutional:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
Grayned v. City of Rockford,
408 U.S. 104, 108 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972). Accordingly, to avoid unconstitutional vagueness, the Act must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards such that enforcement may be conducted in a non-arbitrary, non-discriminatory manner.
Nunez v. City of San Diego,
114 F.3d 935, 940 (9th Cir.1997).
“The need for definiteness is greater when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights than when it regulates the economic behavior of businesses.”
Id.
(quoting
Village of Hoffman Estates,
455 U.S. at 494 , 102 S.Ct. 1186 ). Moreover, if the Act does not provide sufficient “standards to prevent arbitrary enforcement,” it “would be impermissibly vague even if it did not reach a substantial amount of constitutionally protected conduct, because it would subject people to the risk of arbitrary deprivation of their liberty.”
Forbes v. Napolitano,
236 F.3d 1009, 1011-1012 (9th Cir.2000) (citing
City of Chicago v. Morales,
527 U.S. 41, 42 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999)). “Regardless of what type of conduct the criminal statute targets, the arbitrary deprivation of liberty is
itself
offensive to the Constitution’s due process guarantee.”
Id.
at 1012 (citing
Smith v. Goguen,
415 U.S. 566, 575 , 94 S.Ct. 1242 , 39 L.Ed.2d 605 (1974)).
C. Findings of Fact and Conclusions of Law
As plaintiffs note, several of the terms in the Act are ambiguous, including
*977
“partial-birth abortion,” “overt act,” “deliberately and intentionally,” and “living fetus.” The trial testimony of numerous physicians confirmed that, as physicians and practitioners providing abortion services, they do not understand exactly what the Act prohibits.
See, e.g.,
Tr. Vol. 1 at 76:7-82:12 (Paul); Tr-. Vol. 4 at 557:4-13 (Broekhuizen); Tr. Vol. 11 at 1787:10-23 (Chasen); Tr. Vol. 5 at 820:6-20 (Westhoff); Tr. Vol. 2 at 200:23-202:3 (Sheehan).
As many of the physicians testified before this court, the term “partial-birth abortion” has little if any medical significance in and of itself.
See, e.g.,
Tr. Vol. 3 at 420:23-421:2(Doe); Grunebaum Depo. at 214:1-7. Dissenting legislators within Congress made the same observation, arguing that:
This legislation is overly vague. It is unclear exactly, which procedures we would ban. The term ‘partial-birth abortion’ has no legal or medical meaning. It is a term invented for political purposes. The findings and actual operative clauses of the bill are inconsistent in their definitions, and in both cases are overly vague.
Record Exh. A, at 80.
Additionally, the Act’s use of the term “living fetus” adds to the vagueness of the statute, since, the term “living fetus” is not pertinent to the framework set forth by the Supreme Court in
Roe
and
Casey ,
and does not pertain to viability. As set forth above in the court’s findings regarding undue burden, a previable fetus may nonetheless be “living” if it has a detectable heartbeat or pulsating umbilical cord. Tr. Vol. 1 at 67:3-11; 76:6-18 (Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at 421:12-18(Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen). Moreover, as noted by the Third Circuit, “because a fetus may be ‘living’ as early as seven weeks Imp, use of the term ‘living’ instead of ‘viable’ indicates that, contrary to the understanding of the public and the concomitant rhetoric, the Act is in no way limited to late-term, or even mid-term, abortions.”
Farmer,
220 F.3d at 137 (holding state partial-birth abortion ban unconstitutionally vague, asserting that “the term ‘living human fetus’ adds little to the Act’s constitutional certainty because it does not draw the line at viability, as the Supreme Court has done”).
Nor does the requirement of an “overt act” sufficiently narrow the scope of the Act to give notice of the type of abortion procedure prohibited. Again, as set forth above in the court’s findings regarding undue burden, the “overt act” may be interpreted to comprise many acts, performed not only in the process of an intact D & E, but in the course of a D
&
E by disar-ticulation or induction as well, including disarticulation of the calvarium, cutting the umbilical cord, or compressing or decompressing the skull or abdomen or other fetal part that is obstructing completion of the uterine evacuation. Tr. Vol. 1 at 61:7-15; 70:1-6; 78:25-79:5 (Paul); Tr. Vol. 2 at 193:5-24; 205:8-15 (Sheehan); Tr. Vol. 3 at 405:13-22(Doe); Tr. Vol. 4 at 523:1-524:1 (Broekhuizen); Tr. Vol. 11 at 1783:15-1786:3 (Chasen). Accordingly, the term “overt act” cuts such a wide swath that it cannot possibly be considered sufficient to put physicians on notice of what type of “overt” act violates the Act.
This court further concludes that the Act’s vagueness and unconstitutional breadth cannot be cured by the alleged scienter requirements. First, the requirement that the physician “knowingly perform” a “partial-birth abortion,” as defined by the Act, is of no help to the government. As plaintiffs have argued and the trial evidence has demonstrated, as part of their routine medical practice, a physician performing a D & E, by disarticulation or
*978
intact, or an induction abortion in the safest, most medically appropriate manner, “knows” that the procedure may proceed in such a manner that the physician may have to engage in procedures proscribed by the Act.
See
Tr. Vol. 1 at 74:14-80:20 (Paul); Tr. Vol. 1 at 165:7-21 (Sheehan); Tr. Vol. 2 at 281:15-21 (Drey); Tr. Vol. 8 at 420:9-22(Doe); Tr. Vol. 4 at 550:18-552:9 (Broekhuizen); Tr. Vol. 4 at 657:8-8 (Creinin); Tr. Vol. 5 at 822:9-824:2 (West-hoff); Tr. Vol. 11 at 1783:15-1786:3 (Cha-sen).
Nor can the fact that the Act requires that a physician “deliberately and intentionally vaginally deliver a living fetus” cure the unconstitutional vagueness. The parties dispute whether the phrase modifies only the vaginal delivery or the additional steps contained in the Act’s definition of “partial-birth abortion.” However, this court need not resolve that dispute, because, as the Third Circuit held in
Farmer ,
this scienter requirement does nothing to ameliorate the vagueness of Act.
See Farmer,
220 F.3d at 138 (rejecting state’s argument that scienter requirement specifying “deliberate[ ] and intentional ] delivery] into the vagina of a living fetus” cured unconstitutional vagueness).
At a minimum, to limit the scope of a statute to ‘deliberately and intentionally’ performing a certain procedure, the procedure itself must be identified or readily susceptible of identification. Here it is not.
Id.
(citations omitted);
see also Planned Parenthood of Greater Iowa, Inc. v. Miller,
195 F.3d 386, 389 (8th Cir.1999) (Iowa partial-birth abortion ban’s inclusion of scienter requirement did not save Act because Act still “encompasse[d] more than just the [intact D
&
E] procedure”).
This same analysis applies to the Act’s requirement that the procedure be “for the purpose” of performing “an overt act that the [physician] knows will kill the partially delivered fetus.” Insofar as the court has already concluded that the Act’s definition may encompass many second trimester abortions and that the terms “partial-birth abortion” and “overt act” are ambiguous, the inclusion of a scienter requirement cannot cure the vagueness and save the Act.
As noted previously, the government also argues that this court should narrow the construction of the statute to eliminate any doubts about the Act’s unconstitutionality. This court rejects that argument for the reasons set forth above in the court’s conclusions of law regarding the undue burden posed by the Act.
Accordingly, the court finds that the Act is unconstitutional on this ground as well.
IV.
HEALTH EXCEPTION
Separate and apart from the undue burden and vagueness analyses,
Stenberg
also holds that “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,
Casey
requires the statute to include a health exception where the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ”
Stenberg,
530 U.S. at 938 , 120 S.Ct. 2597 (citing
Casey,
505 U.S. at 879 , 112 S.Ct. 2791 ). The Act, by contrast, excepts only “a partial-birth abortion that is necessary to save the
life
of a mother,” and omits the health exception and the “appropriate medical judgment” requirements of
Casey
and
Stenberg .
Although the court has already found that the Act is unconstitutional because it poses an undue burden and because it is vague, given the time and resources expended by the parties and this court, and the extensive evidence presented on the issue, the court is compelled to reach the issue regarding a health exception.
*979
A. Parties’ Arguments
Plaintiffs contend that
Stenberg
requires a health — not just life — exception under the circumstances, and that the congressional findings on the issue are not entitled to any deference. In support, plaintiffs assert that the intact D
&
E procedure, is a safe, if not a safer, option for pregnancy termination than other abortion procedures, and is necessary to preserve the health of certain women under certain circumstances. Additionally, plaintiffs also argue that the Act’s life exception is constitutionally inadequate because it does not allow a physician to determine, in his or her best medical judgment, whether the intact D & E procedure is necessary to preserve a woman’s life.
The government, however, argues that the Act’s life exception is constitutionally adequate because Congress has concluded that the procedure is never medically necessary, and that this court must defer to Congress’ finding. The government, therefore, contends that the evidence before this court is relevant
only
in determining the degree of deference afforded Congress’ finding regarding the necessity of a health exception.
B. Trial Evidence
At the outset, this court recognizes that Congress has made a finding pertinent to the trial evidence before this court, and that in affording the appropriate level of deference to Congress’ finding, the evidence before this court may play a limited role in resolution of this issue. Nevertheless, the court, prior to determining the degree of deference to be accorded the congressional findings, summarizes in significant detail and finds as follows regarding the extensive evidence presented by both parties before this court.
1. Witnesses’ Background and Qualifications
a. Plaintiffs’ Witnesses
Plaintiffs presented trial testimony from eight expert witnesses in opposition to the Act, several of whom also provided testimony in the New York case. Plaintiffs’ testifying experts included: Drs. Maureen Paul, Katharine Sheehan, Carolyn West-hoff, Fredrik Broekhuizen, John Doe, Mitchell Creinin, Eleanor Drey, and Stephen Chasen.
16
*980
Plaintiffs’ expert witnesses all currently practice and/or teach in the area of obstetrics and gynecology (“obgyn”), and all were qualified as experts in that area and in abortion practice. Additionally, three of the eight were also qualified as experts in maternal-fetal medicine; two were qualified as experts in epidemiology; and one taught epidemiology jointly with his medical practice. All eight have performed intact D & Es during the course of their practices, with varying frequencies, and all of those experts who teach in the area of abortion practice teach the intact D
&
E variant. Of plaintiffs’ witnesses asked to quantify the number of abortions they had performed, all answered in the thousands.
See, e.g.,
Tr. Vol. I at 160:5-14 (Sheehan, estimating 30,000); Tr. Vol. 5 at 732:10-12 (Creinin, estimating 5,000). Moreover, all eight opine that enforcement of the Act would significantly affect their patients and practices, and could subject them to prosecution under the Act. Six of plaintiffs’ experts have never previously testified in any case involving a ban on abortion. None of plaintiffs’ experts testified before or was consulted by Congress with respect to the drafting of the Act or the findings supporting the Act.
17
Plaintiffs also submitted the deposition testimony of five experts: one who is an expert in perinatal and gynecological pathology, and four of whom are experts in obgyn and abortion practice, including intact D
&
E. Three of the four are also experts in maternal-fetal medicine.
b. Government Witnesses
The government presented trial testimony from five expert witnesses. Several of these witnesses practice and teach in ob-gyn; and four of the five were, therefore qualified as experts in that area. Two of those four were also qualified as experts in maternal-fetal medicine, and one was qualified as an expert in medical literature. Three of the four were qualified as experts in pregnancy termination. However, none had performed the intact D & E procedure at issue in this case. Moreover, none had been instructed regarding the procedure or had personally observed the procedure being performed.
*981
All four witnesses had testified previously in support of state law restrictions on abortion, or had offered testimony before Congress in support of the Act, or both. The government’s fifth testifying expert, Dr. Anand, was qualified as an expert in the areas of pharmacology of anesthetic drugs, fetal neurobiology, and fetal pain.
The government also introduced deposition testimony from one expert witness, an expert in obgyn, maternal-fetal medicine, and abortion practice, with the caveat that he has never performed an intact D & E procedure.
The four government witnesses qualified as experts in obgyn included Drs. Leroy Sprang, Curtis Cook, Watson Bowes, and Elizabeth Shadigian.
Dr. Sprang, an associate clinical professor at Northwestern University and a practicing obgyn for approximately twenty eight years, testified that he had never performed any abortion procedure on a fetus post-17 weeks Imp, that he had performed fewer than twenty D & Es by disarticulation in his twenty eight years of practice, all of which were on demised fetuses, and that he had never been instructed regarding, had never taught, performed, or even observed an intact D & E procedure. Tr. Vol. 7 at 1033:17-18; 1034:1-1038:4 (Sprang). He further testified that his knowledge regarding intact D & E was based exclusively on his conversations with other physicians,
18
his review of medical literature, and his involvement in this litigation and other litigation in which he was required to read other expert reports and related documents.
Id.
at ,1045:2-1052:4. The court also notes that Dr. Sprang has never conducted clinical research in the area of abortion.
Id.
at 1029:3-7 .
Like Dr. Sprang, while Dr. Cook possesses expertise generally in obgyn and maternal-fetal medicine,' he also lacks expertise regarding the intact D & E procedure in particular. Dr. Cook has never performed, personally observed, supervised, received instruction in, or taught the intact D & E procedure.
19
Tr. Vol. 9 at 1380:7-1381:7 (Cook). Dr. Cook also lacks expertise in post-20 week D & Es generally.
Id.
at 1365:15-22. He has performed only three to five D & Es by disarticulation in his career, limited to cases where fetal demise had already occurred.
Id.
at 1364:14-25. Moreover, in terms of his observation of D & Es by disarticulation, Dr. Cook testified that he generally observes the procedure prior to 18 weeks gestation.
Id.
The same is true of Dr. Bowes, an emeritus professor of obgyn at the University
*982
of North Carolina/ Chapel Hill, retired from his clinical practice. He is board-certified in obgyn and maternal-fetal medicine. Tr. Vol. 6 at 875:1-879:7 (Bowes). Dr. Bowes has never performed an intact D
&
E; and he has only performed 2-3 D & Es by disarticulation on fetuses that had not already died at the time of the procedure.
Id.
at 978:8-983:23. Those D
& Es
were performed to save the mother’s life, as Dr. Bowes believes that abortion generally is warranted only when there are severe medical complications that threaten a mother’s life.
Id.
at 977:1-4.
Likewise, Dr. Elizabeth Shadigian, an obgyn and a clinical associate professor of obgyn at the University of Michigan, testified that she has never performed an intact D
&
E, and has never supervised, observed, been instructed in, or taught the procedure. Tr. Vol. 8 at 1214:3-1215:3 (Shadigian).
20
Of the abortions that she has performed on fetuses prior to demise, all have been induction abortions under circumstances of severe maternal complications. In her career, all of the D & Es by disarticulation that she has performed have been on demised fetuses.
c. Expert Qualifications
Accordingly, this court found that the government’s experts lacked the background, experience, and instruction to qualify as experts regarding the technique of the intact D
&
E procedure. Instead, the court allowed the government’s experts to testify only regarding their opinions on the safety of the procedure, based upon their review of the literature. The court noted that if it were to qualify the government’s witnesses, who did not “appear to have any personal experience with late-term abortion procedures at issue here,” it would mean that any obgyn would be considered an expert on late-term abortions.
See
Tr. Vol. 7 at 1052:22-25.
Overall, while the government’s witnesses are eminently qualified as obgyn practitioners, the court finds that the government’s witnesses lack the qualifications, experience, and knowledge possessed by plaintiffs’ witnesses with respect to Iate-term abortion procedures generally, and intact D & E in particular.
2. Overview of Plaintiffs’ Evidence
Plaintiffs presented evidence that intact D & E is at least as safe as D
&
E by disarticulation, and under some circumstances safer, because the procedure is quicker and requires fewer passes with the forceps. Plaintiffs also presented evidence that common sense and sound medical judgment indicate that fewer passes reduce the risk of uterine perforation and cervical lacerations from instruments and/or fetal bone fragments. Tr. Vol. 1 at 70:10-17 (Paul); Tr. Vol. 1 at 166:13-167:2, 169:7-13, Tr. Vol. 2 at 186:14-187:16 (Shee-han); Tr. Vol. 3 at 399:18-400:217, 407:12-20(Doe); Tr. Vol. 5 at 798:12-804:5 (West-hoff); Tr. Vol. 11 at 1755:5-1756:19 (Cha-sen). Certain of defendants’ witnesses agreed. Tr. Vol. 6 at 944:20-945:21
*983
(Bowes); Tr. Vol. 8 at 1285:4-14 (Shadigi-an); Tr. Vol. 9 at 1486:11-1487:5 (Cook).
But see
Tr. Vol. 7 at 1127:8-1128:12 (Sprang, opining that no risk in additional passes if ultrasound is used).
In addition, since the fetus undergoes less disarticulation, the risk of leaving fetal parts in the uterus is diminished, and the procedure is likely to take less time. Tr. Vol. 1 at 72:7-73:8 (Paul); Tr. Vol. 5 at 799:1-4, 800:13-4, 801:8-21 (Westhoff). The quicker the procedure, the less time the woman must spend under sedation, which further reduces the potential for complications caused by anesthesia. Tr. Vol. 1 at 168:19-169:6 (Sheehan). Plaintiffs also argue that a shorter surgical procedure will decrease the amount of blood loss and the risk of infection. Tr. Vol. 5 at 799:4 (Westhoff); Tr. Vol. 11 at 1756:15-19 (Chasen).
Because the intact D & E procedure results in a fetus that remains relatively intact after surgery, an autopsy of the fetus for diagnostic purposes is possible, particularly if the reason for the abortion was due to fetal anomalies. Such further diagnosis may be helpful for the woman in planning for future pregnancies. Tr. Vol. 2 at 189:3-20 (Sheehan); Tr. Vol. 11 at 1757:14-1758:19 (Chasen). Some women also prefer a surgical procedure that yields a relatively intact fetus for psychological reasons, so that the mother can hold the fetus and, if desired, have the fetus receive religious rites.
See, e.g.,
Tr. Vol. 4 at 503:18-504:3; 562:10-22 (Broekhuizen). However, if the intact D
&
E procedure destroys the contents of the brain, analysis of the brain tissue would be impossible. Tr. Vol. 2 at 254:17-25 (Sheehan); Tr. Vol. 3 at 433:9-434:6 (Doe, also noting that brain tissue is not always needed in autopsies and cannot always be successfully obtained even in inductions).
The AMA task force, on which government witness Dr. Sprang served, concluded that intact D & E “may minimize trauma to the woman’s uterus, cervix, and other vital organs, [and] may be preferred by some physicians, particularly when the fetus has been diagnosed with hydrocephaly or other anomalies incompatible with life outside the womb.” Tr. Vol. 7 at 1133:12-1134:8 (Sprang).
3. Overview of Government’s Evidence
In contrast, the government took the position that intact D & E is a dangerous procedure that is less safe than any other second trimester abortion method, is never medically necessary, and could potentially pose grave risks to women’s health. The government argues that not only is there ho scientific evidence showing that the procedure is safe as a whole, but the individual elements of the procedure have been shown to be unsafe as well.
See, e.g.,
Tr. Vol. 7 at 1079:1-1081:5 (Sprang); Tr. Vol. 8 at 1233:12-1234:3 (Shadigian); Tr. Vol. 9 at 1411:22-1416:1 (Cook).
The government also introduced evidence that in no situation is an intact D & E medically necessary, since a woman could always undergo another method of second trimester abortion in any given situation, including D & E by disarticulation, induction, or hysterotomy or hysterectomy.
See, e.g.,
Tr. Vol. 7 at 1110:14-1111:9 (Sprang); Tr. Vol. 8 at 1220:16-21 (Shadi-gian); Tr. Vol. 9 at 1390:3-22 (Cook).
4. Medical Organizations
Numerous medical organizations are divided on their positions regarding the Act. Among the largest organizations that oppose the Act are ACOG, a professional membership organization organized in 1951, concerned with professional practice and education in the health care of women. ACOG has more than 44,000 members in the United States, Canada, and Mexico. Each member of ACOG is a board-eerti-
*984
fied obgyn, and more than 90% of all board-certified obgyns are members of ACOG.
See generally
Deposition of Joanna Cain, M.D. (“Cain Depo”).
The California Medical Association (“CMA”) also opposes the Act. The CMA, which advocates for the interests of physicians and their patients, is California’s largest medical association, with more than 30,000 members, comprised of licensed physicians.
See generally
Deposition of John Whitelaw, M.D. (“Whitelaw Depo”). Two other associations, the American Medical Women’s Association (“AMWA”), an organization of 10,000 medical professionals, including women physicians, residents, and medical students, dedicated to advancing women in medicine and improving women’s health, and the American Public Health Association (“APHA”), an organization with approximately 50,000 members from all public health occupations, including obstetricians and gynecologists, devoted to advancing and promoting public health, also oppose the Act.
See generally
Deposition of Meghan Kissell (“Kissell Depo”); Deposition of Alan Baker (“Baker Depo”).
Among those organizations that supported the Act were the Association of American Physicians & Surgeons (“AAPS”), which submitted an amicus brief in support of Nebraska in the
Sternberg
case. AAPS is a nonprofit organization dedicated to defending the practice of private medicine. It submitted the amicus brief on behalf of several other medical organizations, including ISMS, the Illinois State Medical Society. An organization co-founded by government witness Dr. Cook to advocate for the banning of partial-birth abortion, the Physicians’ Ad Hoc Coalition for Truth (“PHACT”), with approximately -400 physician members, also opposed the Act.
See
Tr. Vol. 9 at 1361:11— 62:14 (Cook).
21
The American Medical Association (“AMA”), a national association with approximately 250,000 physician and medical student members, created to advocate on behalf of physicians and patient rights, supported the Act initially, but subsequently withdrew its support because of the criminal penalties included in the Act.
5. Scientific Studies on Intact D & E
The parties agree that no definitive large-scale studies have been completed that conclusively show that intact D & E is safe, or that it is unsafe. Tr. Vol. 1 at 102:9-14 (Paul); Tr. Vol. 3 at 438:5-11, 443:3-9(Doe); Tr. Vol. 5 at 849:9-12 (Westhoff); Tr. Vol. 6 at 905:19-909:20, 971:14-972:19 (Bowes); Tr. Vol. 8 at 1297:25-1298:12 (Shadigian).
It is the government’s position that in the absence of definitive studies concluding that intact D & E is safe, physicians should not be permitted to use the technique.
See, e.g.,
Tr. Vol. 8 at 1221:5-12, 1229:2-6, 1232:8-13 (Shadigian). Plaintiffs, on the other hand, take the position that in the absence of studies concluding that intact D
&
E is unsafe, physicians should be able to exercise their own medical judgment to determine if the procedure is appropriate under the circumstances presented.
See, e.g.,
Tr. Vol. 1 at 90:13-17 (Paul); Tr. Vol. 11 at 1828:3-21 (Chasen).
a. Research Methodology
The medical community follows certain epidemiological principles when evaluating the weight and significance of research results, and all parties recognized these principles in presenting trial evidence.
In general, “evidence-based medicine is a way of doing medicine that takes into consideration the scientific information that is available... [I]f there is good evi
*985
dence that one particular method should be used, then it is [the physician’s] responsibility to use that method, but where that evidence is lacking or inadequate, then we use our best clinical judgment to render the safest care possible for our patients.” Tr. Vol. 1, 91:5-13 (Paul).
Research methodology is evaluated on a hierarchy. Prospective randomized trials, where patients are selected before any treatment begins and randomly placed into treatment groups, yield the most significant results, since this type of study is considered to be subject to the least amount of bias. The next most reliable study is a retrospective cohort study, where records are reviewed after patients have undergone different types of treatment and the results are compared. Somewhat less reliable is a retrospective case study series, where records are reviewed after patients have undergone one specific type of treatment and the results are reported. Finally, if there is no study possible or available, doctors should rely on their clinical judgment and experience in determining what medical methods to use. Tr. Vol. 1 at 95:17-97:21 (Paul); Tr. Vol. 2 at 253:3-254:2 (Sheehan); Tr. Vol. 2 at 346:13-348:15 (Drey); Tr. Vol. 6 at 890:15-894:7, 895:25-896:8 (Bowes);
cf.
Tr. Vol. 8 at 1298:13-1299:3 (Shadigian, stating that intuitive judgment is of no value in assessing short- and long-term risks). When studies have been conducted, doctors are encouraged to incorporate the results into their practice.
22
Certain published studies are also subjected to peer review, where other doctors practicing in the same area will review results and provide criticism and commentary designed to ensure the accuracy of the results reported. Tr. Vol. 1 at 97:22-98:6 (Paul); Tr. Vol. 6 at 894:8-895:4 (Bowes).
b. Studies on Abortion Safety
The parties agree that abortion in general is a safe procedure, and that it is in fact safer than carrying a pregnancy to term. Tr. Vol. 1 at 22:11-38:5 (Paul, noting that risk of death from childbirth is 10 times greater than risk of death in abortion). The parties also agree that while no published studies comparing the safety of intact D & E to other methods of abortion exist, various studies have examined individual aspects of the intact D & E procedure, and others have compared the safety of D & Es generally with other methods of abortion.
The first large-scale studies on abortion safety took place in the 1970s, through the Joint Program for the Study of Abortion (“JPSA”), administered through the Centers for Disease Control (“CDC”). The JPSA study ran from 1971-1979, and included over 250,000 women.
23
It concluded that D & E abortions led to significantly fewer major medical complications than inductions, which at that time were performed using saline injections.
24
Tr. Vol. 1 at 25:18-31:13 (Paul).
*986
The parties agree that the methods of performing both D
&
E and induction abortions have changed since the time the JPSA studies were conducted, and both procedures have become even more safe. Tr. Vol. 1 at 31:14-19 (Paul). Individual witnesses, though, disagree as to which method between the two is better.
Compare, e.g.,
Tr. Vol. 5 at 717:24-719:3 (Crei-nin, noting that while inductions are safe, they have not improved in safety over the last 20 years); Tr. Vol. 3 at 414:8-14 (Doe, noting anecdotally that inductions have more complications than D & Es); Tr. Vol. 11 at 1771:22-1772:19 (Chasen, stating that D & Es are still significantly safer than current induction methods); Tr. Vol. 6 at 946:5-13 (Bowes, agreeing D & E safer than induction)
with
Tr. Vol. 7 at 1092:17-1093:7, 1122:14-1123:5 (Sprang, claiming inductions as safe or safer than D & E); Tr. Vol. 8 'at 1229:2-6, 1269:15-1274:25 (Shadigian, claiming inductions unambiguously safer than D
&
E).
In terms of abortion mortality, the primary study relied upon is based on data collected by the CDC between 1972-1987, and includes information about abortion-related deaths throughout the United States. Exh. 63 (Lawson report). That study concluded that while the risk of death increases with fetal gestational age, the risks of mortality from D & E are very low, and comparable to those for induction. Most of the witnesses agreed that both of those procedures are also significantly safer than a hysterectomy or hysterotomy. Exh. 63 (table III; listing D & E as “evacuation,” and induction as “instillation”).
See also
Tr. Vol. 1 at 32:7-37:7, 82:13-85:11 (Paul); Tr. Vol. 3 at 414:15-415:23(Doe) (noting risks of hysterotomy and hysterectomy).
But see
Tr. Vol. 9 at 1517:2-11 (Cook, recommending hysteroto-my over D & E).
c. Lack of Published Studies on Intact D & E
The JPSA and CDC studies provide the latest available statistics from long-term and large-scale studies on abortion safety comparing D & E to induction. The parties agree that relatively few studies have been conducted on second trimester abortions generally, and none have been published on the subject of intact D & E.
See, e.g.,
Tr. Vol. 5 at 719:19-720:3 (Creinin); Tr. Vol. 6 at 905:19-908:20 (Bowes). Furthermore, the few studies that have been published have not been on the same scale or held the same authoritative value as the JPSA and CDC results.
25
Because there is no significant authoritative data about intact D & E, while extensive authoritative data about the safety of other methods of second trimester abortion exists, the government presented evidence that physicians have a re
*987
sponsibility to use those other methods until such time that intact D & E is proven to be safe.
See, e.g.,
Tr. Yol. 6 at 922:20-924:6 (Bowes); Tr. Vol. 8 at 1237:3-1239:18,1257:9-1258:12 (Shadigian).
Plaintiffs, on the other hand, presented evidence that the study of abortion poses various methodological difficulties. As an initial matter, since abortion is so safe in general, a large number of women would need to be included in any study to make any meaningful findings on safety. Furthermore, since so few women have second trimester abortions, a large number of institutions would be required to participate in any study to ensure that sufficient numbers of women could be included.
See
Tr. Vol. 1 at 89:4-90:11 (Paul); Tr. Vol. 5 at 705:4-707:19 (Creinin, noting that any study would require over 5000 women in each group to be statistically significant). Plaintiffs note that it is also very difficult to secure sufficient funding or cooperation for studies relating to abortion funding, given the controversial nature of the subject.
26
Tr. Vol. 5 at 780:8-13 (Creinin).
Even if women who are willing to participate in studies can be located, there are further problems related to obtaining their consent. Many women have strong preferences as to which abortion procedures they wish to undergo, and thus it is difficult to achieve consent for true randomization of abortion methods, as would be required to conduct a full prospective study. Tr. Vol. 5 at 703:19-709:24 (Creinin). More significantly, because doctors cannot tell whether an intact D & E is feasible until the procedure has begun, it is difficult to control the number of procedures included in the studies. Tr. Vol. 3 at 441:22-442:9(Doe). Under these circumstances, plaintiffs conclude that the principles of evidence-based medicine permit doctors to continue performing intact D & Es in their best medical judgment, even in the absence of studies on the topic. Tr. Vol. 1 at 90:13-17 (Paul).
d. Chasen Study
While there are no published studies on the safety of intact D & E, one study by Dr. Stephen Chasen comparing modern methods of intact D & E with D & E by disarticulation is currently in press. Exh. 19.
27
The parties strongly dispute the interpretation of Dr. Chasen’s findings.
i. Methodology and Results of Study
Dr. Chasen conducted a retrospective cohort study examining the medical records of 383 women who had second trimester abortions after 20 weeks of pregnancy at the Cornell Weill Medical Center from 1996 to June 2003. Of those women, 120 underwent an intact D
&
E, and 282 underwent a D & E by disarticulation.
28
*988
Exh. 29.
See generally
Exh. 29, Tr. Vol. 11 at 1735:1-1754:17 (Chasen);
see also
Vol. 5 at 805:16-811:17, 850:22-864:17 (Westhoff).
The fetuses of the women who underwent an intact D & E were at a median of 23 weeks gestation, which was two weeks more advanced than the median gestational age of the fetuses of the women who underwent a D & E by disarticulation (21 weeks). The median blood loss suffered by each group was identical (100 mL), and the median procedure time was identical as well (22 minutes). The blood loss for the D & E by disarticulation group ranged from 40 mL to 1500 mL, and the procedure time ranged from 6-60 minutes. The blood loss for the intact D & E group ranged from 20 mL to 1200 mL, and the procedure time ranged from 6 — 45 minutes. Exh. 29.
Of the 383 women, 19 suffered complications, with equal frequency in both groups. However, the six complications observed in the intact D & E group were considered relatively minor (4 superficial lacerations and 2 follow-up curettages), and none were major (defined as requiring admission to an intensive care unit). In the group undergoing D & E by disarticulation, most injuries were minor, but three major complications occurred: one amniotic fluid em-bolus, where amniotic fluid is introduced into the woman’s bloodstream; one case of sepsis, or generalized infection throughout the woman’s system; and one perforated uterus. Exh. 29. Both parties concede that these complications are generally very rare, and that these results thus cannot be given much weight. Tr. Vol. 11 at 1746:9-1747:10 (Chasen); - Tr. Vol. 7 at 1104:7-1105:18 (Sprang).
The study also followed 62 of these women into subsequent pregnancies, when they obtained their -prenatal care at the Cornell Medical Center. Of these 62 women, only 4 experienced preterm birth, 2 who had undergone a D
&
E by disarticu-lation and 2 who had undergone an intact D
&
E. The two women who had undergone intact D & E and subsequently experienced early labor were both previously considered at high risk for premature labor, and were able to continue their subsequent pregnancies significantly longer than their previous ones. Tr. Vol. 5 at 810:21-24 (Westhoff); Tr. Vol. 11 at 1749:16-1751:17 (Chasen).
The article concludes that intact D & E and D
&
E by' disarticulation are equally safe' procedures, and that the decision of which technique to use should be left to the performing physician’s medical judgment. The article also concludes that intact D.
&
E does riot appear to have adverse effects on maternal health. Exh. 29.
ii. The Parties’ Interpretations of the Chasen Study
Plaintiffs interpret this study as indicating not only that intact D & E is safe, but that it is in fact safer than D & E by disarticulation. For instance, the women undergoing intact D & E had more advanced pregnancies, which normally would indicate a higher likelihood of complications, since abortions become more difficult to perform as gestational age increases. However, the complication rates were identical for intact D
&
Es at 23 weeks gestational age and D & Es by disarticulation at 21 weeks gestational age, which plaintiffs argue permits the inference that the intact D & E is in fact safer than D
&
E by disarticulation. Tr. Vol. 5 at 808:11— 810:9 (Westhoff); Tr. Vol. 11 at 1747:11-1748:18 (Chasen);
see also
Tr. Vol. 6 at 945:22-946:4 (government witness Bowes, agreeing).
The government, in contrast, notes that any arguments concerning the increased safety of the intact D & E due to the shorter time of the procedure and smaller
*989
amounts of blood loss are contradicted by the findings which show that on average, an intact D & E takes exactly as much time as a D & E by disarticulation. Tr. Vol. 11 at 1807:2-1811:18 (Chasen, agreeing with these findings).
Plaintiffs emphasized that while the median blood loss and procedure times were identical for intact D
&
E and D
&
E by disarticulation, the maximum values for these factors were significantly lower for the intact D
&
E group. This indicated to certain of plaintiffs’ experts that the most difficult intact D & Es take less time and result in less blood loss than the most difficult D & E by disarticulation, and therefore they believed this indicated the greater safety of the intact D & E procedure. Tr. Vol. 5 at 860:20-862:13 (West-hoff).
The government presented evidence in response that the Chasen study, while useful as an initial study of intact D & E, was too small in scale to support any conclusions.
29
Tr. Vol. 6 at 915:20-920:25 (Bowes), Tr. Vol. 7 at 1101:8-1108:13 (Sprang). The government noted, for example, that after peer review of the article, Dr. Chasen agreed to add language noting that the study’s retrospective nature and the relatively small sample size made it difficult to draw more generalized conclusions about the safety of the procedure. Tr. Vol. 11 at 1810:12-1814:18 (Chasen). This difficulty applies both to the findings as to safety, as well as to the findings on subsequent preterm labor, which the government notes is further flawed in that follow-up care could be reviewed only for patients who returned to the Cornell Medical Center. Tr. Vol. 11 at 1793:23-1794:22 (Chasen, on cross); Tr. Vol. 6 at 919:12-25 (Bowes).
e. Risks of Intact D & E
The government argues that intact D & E is a dangerous procedure that is less safe than any other second trimester abortion method and that it poses grave risks to women’s health.
See, e.g.,
Tr. Vol. 7 at 1079:1-1081:5 (Sprang).
But see
Tr. Vol. 6 at 974:21-976:7 (Bowes, stating that intact D & E does not appear to pose any long-term risks to women’s health). Plaintiffs take a contrary position and refute the risks asserted by the government. These risks primarily include the following.
i. Cervical Incompetence
The government presented evidence that the use of 25-30 osmotic dilators could potentially overstretch the cervix and lead to a condition called “cervical incompetence,” a condition where the cervix painlessly dilates during a subsequent pregnancy and causes either miscarriage or preterm delivery. Tr. Vol. 7 at 1081:14-1082:8 (Sprang); Tr. Vol. 9 at 1413:4-1415:5 (Cook). In support of this position, the government relies on an October 2001 study by Dr. Laurence Henriet published in the British Journal of Obstetrics and Gynaecology, which studied 12,000 women in France and concluded that abortion increased the risk of preterm delivery.
Plaintiffs dispute the methodology of the Henriet study as “awful,” Tr. Vol. 5 at
*990
755:25 (Creinin), noting that the study was purely retrospective and based on subjective self-reporting, which could have notably skewed the results, since women who experienced preterm delivery would be predisposed to recall previous abortions at a higher rate than those who did not (a phenomenon known as “recall bias”).
30
The study also was designed to compare women who had had abortions to women who had not had abortions. Plaintiffs presented evidence that these two groups are irrelevant to a study whose aim is to compare women who have undergone one method of abortion (intact D & E) with women who have undergone another method of abortion. Tr. Vol. 5 at 780:15-784:2 (Creinin); Tr. Vol. 9 at 1493:22-1496:25 (Cook).
Plaintiffs also question the relevance of the results to the issues at hand. For instance, 96% of the abortions reported in the study were performed in the first trimester. Data regarding those abortions does not relate to the question whether intact D & E abortions in the second trimester cause cervical incompetence, especially since most first trimester abortions do not involve the use of osmotic dilators or prostaglandin drugs but rather mechanical dilators, which are known to cause more trauma to the cervix. Plaintiffs also note that “preterm delivery” is different from “cervical incompetence,” in that cervical incompetence can cause preterm delivery, but not all preterm deliveries are caused by cervical incompetence. Tr. Vol. 5 at 780:15-784:2 (Creinin); Tr. Vol. 7 at 1144:22-1147:7 (Sprang, on cross).
Plaintiffs cite instead a 2002 article by Dr. Robin Kalish from the American Journal of Obstetrics and Gynecology, which concluded that second trimester D & Es did not cause an increased risk of miscarriage or preterm birth. Exh. 17 (study coauthored by Chasen). This paper was a retrospective case series, which followed 96 women who subsequently became pregnant after a second trimester D & E. The paper also noted that increased cervical dilation in the D & E actually decreased the likelihood of miscarriage or preterm birth in the second trimester, theorizing that increased dilation reduced the risk of cervical trauma when removing the fetus. Tr. Vol. 11 at 1726:13-1735:2 (Chasen);
see also
Tr. Vol. 4 at 692:3-691:17 (Creinin testimony on study); Exh. 29 (Chasen study discussed above, similarly concluding no increased risk of preterm birth after intact D & E).
See also
Tr. Vol. 8 at 1282:5-1283:17 (Shadigian, admitting use of serial laminara was “not unsafe”).
The government notes in response that the fact that these studies involved a relatively small number of participants, and followed only a limited number of women who returned to the same hospital where the abortion was performed for care in their subsequent pregnancies, might have skewed the results.
See, e.g.,
Tr. Vol. 6 at 919:8-25 (Bowes); Tr. Vol. 7 at 1105:20-1106:23 (Sprang).
Plaintiffs also cite the AMA task force’s report on second trimester abortion, which concluded that there was insufficient medical research or evidence to conclude that dilation increases the risk of cervical incompetence, and noted that the government’s witness Dr. Sprang was a member of that task force. Tr. Vol. 7 at 1147:8-1148:6 (Sprang). Also, practitioners report that they have not seen in their practices any increased incidence of cervical incompetence for subsequent pregnancies after intact D & E. Tr. Vol. 11 at 1734:2-25 (Chasen).
*991
ii. Infection
The government also claimed, and plaintiffs acknowledged, that the insertion of the laminaria could potentially rupture the amniotic sac, introduce bacteria from the vagina into the uterus, and increase the risk of a woman’s chance of infection. Tr. Vol. 7 at 1082:19-1085:17 (Sprang);
see also
Tr. Vol. 4 at 626:3-7 (Broekhuizen). Plaintiffs’ experts, testified, however, they have never encountered this actual situation except in cases where the amniotic sac had already ruptured, which predisposes the uterus to infection.
See, e.g.,
Tr. Vol. 11 at 1719:23-1720:10 (Chasen).
iii. Injuries from Podalic Version
Not all doctors perform a podalic version before commencing D & Es of any kind, but the doctors who do stated that rotation of the fetus is naturally effected as part of the procedure when the doctor takes hold of a fetal extremity and begins the extraction process, for any D & E. Furthermore, any placental separation that might occur does not pose a problem because the placenta will be removed in the extraction process in any event, and the risk of amniotic fluid embolus is nonexistent, because all amniotic fluid is removed from the uterus before a D & E begins. No doctors who perform podalic version preliminary to an intact D & E reported any of the complications discussed by the government’s witness, Dr. Sprang.
See, e.g.,
Tr. Vol. 4 at 516:8-518:6 (Broekhuizen); Tr. Vol. 4 at 668:18-678:4 (Creinin, discussing and discounting all purported risks); Tr. Vol. 5 at 827:19-829:1 (Westhoff). Moreover, plaintiffs note that Dr. Sprang’s citation for these complications comes directly from a textbook on full-term delivery, where the fetus is significantly larger than it is in the second trimester, and furthermore, that the references to the complications were removed in subsequent editions of the textbook. Tr. Vol. 7 at 1087:24-1089:1 (Sprang, speculating that section of the text was removed for space considerations).
iv.Injury from Instrumentation
The government also claims that the use of the trocar or scissors to reduce the size of the fetal head could cause injury to the woman if the instrument slips, especially when the instruments are used blindly, without the doctor’s being able to see where the instruments are being inserted. This appears to be based on Dr. Haskell’s 1992 description of the intact D
&
E procedure. The government also argues that if the fetal head is crushed with forceps before removal, the sharp ends of the skull fragments may pose a risk of laceration to the woman. Tr. Vol. 7 at 1089:25-1091:14 (Sprang).
But see
Tr. Vol. 7 at 1127:8-1128:12 (Sprang, arguing no risk of laceration or injury if ultrasound is used).
While the plaintiffs concede that laceration by instruments used to crush the skull or by fragments of fetal bones can pose a risk to women’s health, plaintiffs argue that intact D & E reduces the amount of risk from such laceration. Tr. Vol. 1 at 110:25-111:17 (Paul); Tr. Vol. 2 at 271:3-16, 273:3-14 (Sheehan), Tr. Vol. 3 at 445:4-446:23(Doe); Tr. Vol. 4 at 631:18-634:2 (Broekhuizen).
Of the testifying doctors who perform intact D & E by puncturing the calvarium, none insert the trocar or scissors blindly; rather, they all visualize the insertion point either directly or through ultrasound. Tr. Vol. 4 at 632:2-8, 638:18-640:7 (Broekhuizen); Tr. Vol. 4 at 682:14-19 (Creinin); Tr. Vol. 5 at 801:25-802:5, 818:8-11 (Westhoff). Cf. Tr. Vol. 7 at 1136:7-14 (Sprang, agreeing that visualization would reduce risk). Similarly, when fetal bones are crushed, the doctor takes special care to ensure that the bone fragments are covered with the
*992
forceps when removing them through the cervix.
31
Of plaintiffs’ experts, only a few testified that they had ever perforated a uterus while performing a D
&
E, and the ones who had, had done so only when performing a D & E by disarticulation. No expert had perforated a uterus while performing an intact D & E.
See
Tr. Vol. 1 at 73:13-18, 123:12-125:25 (Paul); Tr. Vol. 2 at 195:3-12 (Sheehan); Tr. Vol. 5 at 800:5-12 (Westhoff); Tr. Vol. 11 at 1755:24-1756:6 (Chasen).
f. Maternal and Fetal Health Concerns
Finally, plaintiffs presented evidence that for certain women or certain fetuses, an intact D & E may be the best option for their particular health situation.
See, e.g.,
Tr. Vol. 11 at 1762:8-25 (Chasen, noting that intact D & E is the quickest and therefore the safest procedure for these women);
see also
Tr. Vol. 6 at 943:4-944:19 (government witness Bowes, testifying that doctors should be allowed to use their judgment in determining whether any particular procedure is in a patient’s best interest, including intact D & E).
The government presented evidence that even in those circumstances, an intact D & E is never a physician’s only option for terminating the pregnancy, and thus the procedure is never medically necessary. The government’s position appears to be that induction is almost always a viable option for terminating a second trimester pregnancy, and in those rare circumstances when it is not, hysterotomy or hysterectomy would be. Furthermore, D & E by disarticulation also remains an option for women who would otherwise seek an intact D & E.
See, e.g.,
Tr. Vol. 7 at 1109:19-1114:9 (Sprang); Tr. Vol. 8 at 1220:16-21 (Shadigian); Tr. Vol. 9 at 1390:3-22,1411:22-1416:2 (Cook).
i. Maternal Health
Uterine Scarring
Women with uterine scars, from previous caesarean operations or other uterine surgery, cannot be treated with prosta-glandins such as misoprostyl, because the contractions caused by these medications can cause uterine rupture along the scar. Uterine rupture has serious implications for a woman’s future reproductive health, and can endanger a woman’s life. Accordingly, ACOG strongly discourages the use of prostaglandins for women with uterine scars, and thus doctors ordinarily recommend that women with uterine scars undergoing a second trimester abortion proceed with a D & E.
See, e.g.,
Tr. Vol. 2 at 190:14-20 (Sheehan); Tr. Vol. 3 at 410:20-413:2(Doe); Tr. Vol. 4 at 506:2-10, 506:25-507:20 (Broekhuizen); Tr. Vol. 5 at 712:9-714:4 (Creinin); Tr. Vol. 6 at 947:4-13 (Bowes).
The government presented evidence that an induction is still possible for such women, as long as milder prostaglandins or different labor inducing drugs are administered and she is well-monitored, but concedes that a risk of uterine rupture still exists. Tr. Vol. 9 at 1413:9-1436:5 (Cook).
But see
Tr. Vol. 3 at 434:13-435:10 (Doe, noting that other drugs are less likely to induce labor successfully); Tr. Vol. 8 at 1285:17-1286:13 (Shadigian, admitting that other drugs may cause uterine rupture).
Blood Loss
Some pregnant women suffer from bleeding-related disorders that render the blood loss inherent in a two-day induction procedure risky to their health. For in
*993
stance, women with bleeding disorders, on blood-thinning medications, or suffering from renal disease have a propensity to bleed excessively, which makes any extended procedure causing blood loss dangerous. Analogously, pregnant women diagnosed with preeclampsia, a rare and potentially fatal condition caused by the pregnancy itself, often lose blood volume as their blood thickens and begins to clot, so even a slight loss of blood can have drastic effects on their health. Women with cardiac or pulmonary disease, including asthma, also cannot tolerate excessive blood loss, because it causes excessive strain on their systems.
See, e.g.,
Tr. Yol. 1 15:14-17:18 (Paul); Tr. Vol. 3 at 383:17-22, 388:3-390:6(Doe); Tr. Vol. 8 at 1286:14-1287:11 (Shadigian). Thus, plaintiffs presented evidence that women with these health considerations who are undergoing second trimester abortions are better served by the quicker D & E procedure, and particularly by intact D & E.
See, e.g.,
Tr. Vol. 11 at 1763:1-20 (Cha-sen).
In response, the government presented evidence that with any surgery, there is the risk of traumatic injury, which could cause extreme blood loss as well, and that on balance, it is safer to treat such a woman in the hospital, where her blood loss can be monitored and transfusions can be given if necessary, than in an outpatient setting where there is not likely to be emergency care immediately available. Tr. Vol. 9 at 1391:10-20, 1420:22-1428:2 (Cook);
see also
Tr. Vol. 8 at 1223:8-1224:2 (Shadigian, recommending induction or hysterotomy for preeclampsia).
But see
Tr. Vol. 9 at 1477:12-1478:16 (Cook, conceding that intact D & E could be performed in a hospital setting).
Placenta Previa
Certain women develop the condition of placenta previa in pregnancy, where the placenta grows over the cervix and thus blocks the cervical opening. The parties agree that an induction cannot be performed in this circumstance because the fetus cannot pass through the blocked opening. Tr. Vol. 3 at 410:12-19(Doe); Tr. Vol. 4 at 506:14-24 (Broekhuizen). Plaintiffs presented evidence that in this circumstance, the placenta should be removed or pierced in a D & E. Tr. Vol. 11 at 1768:5-21 (Chasen).
The government, however, takes the position that a D & E is not indicated in this circumstance. The government witnesses would instead recommend that a hystero-tomy be performed, even though the hys-terotomy is significantly riskier than a D & E and has serious implications for the woman’s future reproductive health. Tr. Vol. 9 at 1428:3-1429:10 (Cook, stating that in later gestational ages, hysterotomy or caesarean delivery is the way to deliver a baby with placenta previa).
Uterine Infections
Women sometimes develop uterine or amniotic infections during pregnancy, and if these infections are not treated, they can lead to sepsis, or a generalized blood infection, which can spread throughout the body. If that happens, the uterus must be emptied immediately. Plaintiffs presented evidence that an induction would not be appropriate in that circumstance because the procedure takes too long and the woman’s health could be compromised while waiting for the fetus to deliver. Tr. Vol. 11 at 1766:19-1767:5 (Chasen).
In response, the government presented evidence that if an infection is present, the D & E surgery could potentially spread the infection if the uterus were perforated, and that induction would be acceptable as long as the woman was closely monitored over the two-day period. Tr. Vol. 9 at 1400:12-1401:1, 1429:14-1430:16 (Cook); see also Tr. Vol. 8 at 1224:3-22, 1266:23-1268:10 (Shadigian).
*994
Emergency Situations
The government witnesses testified that if time was of the essence and a pregnancy-needed to be terminated immediately, an intact D
&
E would take too long as well, since the cervix must be prepared over a two day period, and that a hysterotomy or hysterectomy would be the quickest way to proceed. Tr. Vol. 8 at 1227:6-12 (Shadigi-an); Tr. Vol. 9 at 1436:12-1437:12 (Cook). Plaintiffs agreed that D & Es in general require several hours of cervical preparation, though in certain situations, when misoprostyl and osmotic dilators are used, the cervix can be dilated in as little as 90 minutes.
See, e.g.,
Tr. Vol. 1 at 59:9-11 (Paul).
Psychological Reasons
Finally, many women do not wish to undergo inductions, primarily for psychological and emotional reasons. Some women do not wish to go through the physical and psychological pain of labor if the pregnancy is to be terminated, especially if the termination is for medical reasons, and some women also prefer having a quicker outpatient procedure, rather than checking into a hospital as is required for an induction.
See, e.g.,
Tr. Vol. 1 at 91:17-92:1 (Paul), Tr. Vol. 3 at 457:1^58:10(Doe); Tr. Vol. 4 at 503:22-504:3 (Broekhuizen); Tr. Vol. 5 at 802:11-803:19 (Westhoff), Tr. Vol. 11 at 1773:23-1776:10 (Chasen).
But see
Tr. Vol. 8 at 1277:22-1278:3 (Shadigian, stating that labor pains from induction should not be characterized as “traumatic”).
ii. Fetal Anomalies
Fetuses sometimes have anomalies that can create contraindications for induction. Examples of this include hydrocephaly, as-cites, or non-immune hydrops, where fluid collects in the fetal head, abdomen, or extremities and grossly distends those portions of the fetal body. In those circumstances, the fetal body may be so distended that it cannot be removed from the uterus unless reduced in size. Tr. Vol. 4 at 499:9-22 (Broekhuzien); Tr. Vol. 9 at 1446:16-1447:7 (Cook). These conditions can be, but are not always, fatal to the fetus. Tr. Vol. 7 at 1114:5-9 (Sprang); Tr. Vol. 9 at 1447:8-1448:5 (Cook).
If a D & E is performed, many doctors will remove all portions of the fetus from the uterus except for the oversized portion, and then take a deliberate action to reduce the size of the distended body part so that it too can be removed. All parties agree that this action could violate the Act if it caused fetal demise. Plaintiffs argue that this type of intact D & E is the best way to terminate a pregnancy where these conditions are present. Tr. Vol. 11 at 1759:8-1760:22 (Chasen).
The government argues that doctors could instead use a hypodermic needle to aspirate the fluid from the distended body part before the abortion is performed and proceed with either an induction or D
&
E by disarticulation. Tr. Vol. 7 at 1113:21-1114:9 (Sprang); Tr. Vol. 9 at 1446:16-1447:7 (Cook). Plaintiffs rebut this argument by stating that in some circumstances, fluid would refill the body part before the abortion could be completed, which would render aspiration futile, and furthermore, that there is no reason to subject the woman to an additional injection and the concomitant risks associated with it when an intact D & E procedure achieves the same end more efficiently. Tr. Vol. 11 at 1759:23-1762:7 (Chasen).
The government responds by arguing that if an injection is contraindicated, a hysterotomy or hysterectomy could be performed instead to terminate the pregnancy. The government also argues that the induction could be completed to the point at which the fetal body part lodges in the cervical os, and then “Duhrssen’s incisions” of approximately 1-2 cm in length
*995
could be made in the cervix to widen the os sufficiently for the fetus to pass. Plaintiffs contend that Duhrssen’s incisions are extremely risky to the woman’s future fertility, while the government argues that when properly performed, they do not represent any serious risk.
Compare
Tr. Vol. 4 at 533:18-534:24 (Broekhuizen, stating that Duhrssen’s incisions not appropriate to use in an induction); Tr. Vol. 11 at 1787:3-4 (Chasen)
with
Tr. Vol. 9 at 1509:20-1513:25 (Cook).
6. Fetal Demise
The Act does not proscribe intact D & Es performed after the death of the fetus. Thus, the government contends that if an intact D
&
E were ever necessary, the doctor could simply effect fetal demise before performing the procedure to escape liability under the Act.
See, e.g.,
Tr. Vol. 7 at 1114:10-13 (Sprang).
Plaintiffs argue that effecting fetal demise before a D & E is unnecessary, and doctors should not be required to subject their patients to an additional medical procedure that poses some risk and no benefit to the patient solely to protect themselves from liability. Tr. Vol. 2 at 291:5-20 (Drey); Tr. Vol. 5 at 727:22-728:4 (Crei-nin); Tr. Vol. 5 at 819:20-820:5 (Westhoff).
See also
Tr. Vol. 2 at 334:19-335:14 (Drey) (stating that it would be “a very painful decision” for her to begin using digoxin to avoid liability under the Act because “I wouldn’t even have any idea how to consent a patient if I am giving digoxin for my benefit as a provider ... I wouldn’t be saying that this is for her clinical benefit ... It is for me. I would feel very much forced to do something to a patient that wasn’t for her. That would just really be awful for me.”).
a. Injection Techniques
Fetal demise can be effected in a number of ways, but the methods primarily discussed at trial were the injection of either digoxin or potassium chloride (“KCI”) through the woman’s abdomen and either into the amniotic fluid (“intra-amniotieally”) or directly into the fetus’ heart (“intra-cardiac” or “intra-fetal injection”), both of which are toxic to the fetus.
Digoxin can be administered either in-tra-amniotieally or through an intra-cardi-ac injection, while KCI can only be administered intra-fetally. Tr. Vol. 2 at 295:9-25 (Drey). It is relatively simple to inject digoxin intra-amniotically, but intra-amni-otic injection is not always effective in causing fetal demise. An intra-cardiac injection of either KCI or digoxin is virtually 100% effective, but requires more skill to perform, and thus is typically performed only by maternal-fetal medicine obgyn specialists. Tr. Vol. 2 at 197:15-198:7, 243:25-245:1 (Sheehan); Tr. Vol. 2 at 312:7-24 (Drey); Tr. Vol. 6 at 964:18-968:17 (Bowes); Tr. Vol. 11 at 1780:20-1782:24 (Chasen).
After fetal demise, the fetal tissue rapidly undergoes a number of physiological changes, so by the time the D & E begins, the tissue is much softer and will disarticu-late more easily (known as tissue “friability”). Tr. Vol. 2 at 243:16-24 (Sheehan); Tr. Vol. 2 at 341:12-25 (Drey); Tr. Vol. 8 at 1284:19-1285:3 (Shadigian). This process, known as “maceration,” also renders the fetal tissue unusable for autopsy or diagnostic testing. Tr. Vol. 11 at 1758:7-19,1781:25-1782:5 (Chasen).
Some doctors effect fetal demise routinely as part of their D & E practice, while others have only done so upon direct request by the patient. Some doctors report that some of their patients are strongly opposed to causing fetal demise before the procedure begins, while other doctors indicate that their patients strongly prefer that an injection be given.
Compare
Tr. Vol. 2 at 196:5-20, 242:12-243:2 (Sheehan, stating that all patients accept digoxin in-
*996
jeetion)
with
Tr. Yol. 2 at 342:9-15 (Drey, stating that some patients find digoxin upsetting); Tr. Vol. 3 at 418:2-15 (Doe, stating that patients generally do not want fetal demise effected upon discussion); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen, saying that opinions on this issue differ sharply among his patients).
b. Risks of Procedure
As with any medical procedure, there are risks associated with these injections, which include bleeding and infection. While these risks are minimal, they can have significant ramifications for women with certain medical conditions, such as HIV or hepatitis. The injection itself is also uncomfortable, and some women experience nausea or vomiting afterwards. Tr. Vol. 2 at 197:2-14 (Sheehan); Tr. Vol. 2 at 314:14-329:20 (Drey); Tr. Vol. 3 at 417:6-419:19(Doe); Tr. Vol. 5 at 728:5-19 (Crei-nin); Tr. Vol. 6 at 968:25-969:6 (Bowes).
After fetal demise is effected, some women will also spontaneously miscarry the fetus before surgical extraction begins, which can be distressing, particularly if the woman is not in the hospital at the time. Tr. Vol. 2 at 198:12-13 (Sheehan); Tr. Vol. 2 at 296:7-22 (Drey).
Finally, during the procedure, if the fetus has already died, the increased friability of the tissue can increase the risk of leaving fetal parts in the uterus and subsequent infection. Tr. Vol. 2 at 341:23-25 (Drey); Tr. Vol. 5 at 820:6-822:4 (West-hoff, noting that she encountered this situation shortly after the Act was passed and she was using KCI for the first time, and believes she may have caused a uterine perforation as a result of the softened tissue).
c. Scientific Studies
Dr. Drey has conducted two prospective randomized studies on the safety and efficacy of intra-amnio tic injections of digoxin, and has concluded that while digoxin is generally safe to use, it did not improve the performance of D & E abortions in any significant way.
See generally
Tr. Vol. 2 at 291:5-20 (Drey).
For the safety aspect of the study, Drey followed eight women who received intra-amniotic digoxin injections before their second trimester abortions and monitored their reactions to t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2469000. Public record. Not legal advice.