Hope Clinic v. Ryan

POSNER, Chief Judge,

with whom ILANA DIAMOND ROVNER, DIANE P. WOOD, and TERENCE T. EVANS, Circuit Judges, join, dissenting.

Compromise holds seductive allure for a court faced with a hot issue, and there is none hotter than the issue of abortion rights. The Illinois and Wisconsin statutes criminalizing “partial birth” abortion are challenged here both as being unconstitutionally vague and as unconstitutionally burdening the right of abortion. (These are independent grounds; if either is valid, the statutes are invalid.) The court rejects both challenges yet orders the district courts to enjoin enforcement of the statutes against any method of abortion other than the one the medical community refers to as “intact D & E” (that is, intact dilation and evacuation) or, more commonly, “D & X” (dilation and extraction). This is the form of “partial birth” abortion that gave rise to these statutes, although they are not limited to it.

The court’s decision is not a real compromise. It leaves intact the core of the statutory prohibitions, which unlawfully burden the right of abortion by outlawing the D & X procedure. The court does toss a bone to the plaintiffs, but at the cost of expanding federal judicial power over the states by a method that the Supreme Court has never countenanced and that violates Article III of the Constitution. It is a bone, incidentally, that the plaintiffs didn’t ask for; neither side, in either case, requested this novel form of relief or commented on it in their briefs. We are taking a leap into the unknown without any input from the parties.

The “precautionary” injunctions that the court is directing the district courts to enter will forbid the enforcement of the statutes outside their core prohibition, thus placing the federal contempt power behind this court’s interpretation of state statutes. The court does this while accepting the enforcers’ assurances that they will not enforce the statutes outside the core, and concludes, therefore, “that the probability of improper prosecution is low.” The states are nevertheless to be enjoined because the probability, though low, is greater than zero. The probability of improper prosecution under every criminal statute ever written is greater than zero; and so the court’s decision, should it be followed outside the abortion context — and nothing in the decision suggests a principled limitation to that context — implies a radical expansion of the power of the federal courts to superintend the enforcement of state statutes. State officials will be subject to federal contempt sanctions for failing to abide by a federal court’s interpretation of the statutes that these officials, not federal judges, are charged with administering.

The court adds that while the probability of improper enforcement now is low, given the assurances that the state law enforcement authorities have made in their briefs in this court and at oral argument, the probability was high enough when these cases were brought to confront the plaintiffs with “a real risk” of being prosecuted for performing constitutionally privileged abortions. But if that is so, it means the statutes are unconstitutionally vague. If the law enforcers’ present assurances are not enough to moot the case, how can they be enough to moot the central issue to which those assurances are addressed, the issue the court ducks of whether the statutes are in fact unconstitutionally vague? And if the present probability of improper enforcement is slight, as the *877 court believes, what equity do the plaintiffs have to obtain an injunction?

The court is directing that state statutes be enjoined that it has not found either violate federal law or create a significant danger of such violation. This is unprecedented, and (on the court’s view of the facts) violates Article III. If the court is right — I do not think it is, but it is the premise of the decision — that there is only a “non-zero” probability that either state statute will be enforced against any abortion procedure other than the D & X, the threatened injury is too slight to activate the curative powers of federal courts. A nonzero probability could be a probability of one in a thousand, or one in a million. A probabilistic injury can support standing, e.g., Clinton v. City of New York, 524 U.S. 417 , -, 118 S.Ct. 2091, 2100-01 , 141 L.Ed.2d 393 (1998); Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991), but the probability must be nontrivial, not merely nonzero. E.g., Murphy v. Hunt, 455 U.S. 478, 482-83 , 102 S.Ct. 1181 , 71 L.Ed.2d 353 (1982) (per curiam); City of Los Angeles v. Lyons, 461 U.S. 95 , 105-07 and n. 8, 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983); Walters v. Edgar, supra, 163 F.3d at 434-35 . Otherwise the federal courts will be flooded with cases, since few statutes are altogether free of vagueness; statutes that are too precise allow loopholes.

Lyons , the choke-hold case, makes the basic point. The probability that the plaintiff would again be arrested and subjected to a choke hold was held to be too slight to support standing. But it was no less than the implicit probability that this court today assigns to the threat of prosecution for performing abortions that the state law enforcement authorities concede are constitutionally privileged.

Although the injunctions that the court is ordering ostensibly are temporary, to remain in force only until the state courts have a chance to clarify the statutes, those courts are unlikely ever to get that chance, since the enforcement of the statutes beyond their core prohibition, which in the court’s view needs no clarification, will be enjoined. Private civil suits are unaffected, but the provisions for civil enforcement of these statutes are limited and cases are unlikely. The Illinois statute authorizes civil suits only by the parents of a minor who has a “partial birth” abortion, and the Wisconsin statute by either the minor’s parent or the fetus’s father. Should a prosecutor indict a physician for performing a D & X, and the physician contend that it was really a D & E, the dispute will be resolved by the district court’s interpreting its injunction in contempt proceedings. As a practical matter, the courts of Illinois and Wisconsin will never have an opportunity to explore the outer bounds of these statutes.

The court cites no case that authorizes such injunctions. It relies on cases such as City of Chicago v. Morales, — U.S. -, -, 119 S.Ct. 1849, 1861 , 144 L.Ed.2d 67 (1999), and Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 , 494 n. 5, 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982), which hold that if a state statute has been interpreted by the state’s highest court, the interpretation binds any federal court asked to decide the meaning of the statute. No case holds, however, that until the statute is construed by the state courts, a claim that it is unconstitutionally vague is premature. No case denies the authority of the federal courts to interpret state statutes, which is something we do all the time. No case holds that until a state statute is construed by the state courts its operation may be enjoined without a determination that the statute is unconstitutional. All the cases on which the majority relies involve federal courts either narrowing federal statutes that are fairly susceptible of being narrowed or accepting as authoritative a narrowing interpretation of a state statute by a state court. In no case cited by the majority did a federal court impose its own narrowing interpretation on a state statute *878 by injunction, let alone a state statute the language of which defies a saving interpretation.

Although grounded in a concern with preserving the prerogative of state courts to interpret state statutes, today’s decision curtails that prerogative by forbidding the states to enforce state statutes that the court has not found to be invalid. The decision is thus internally inconsistent (the court both rejects the charge that the statutes are unconstitutionally vague and, by enjoining their application outside their small clear core until they are clarified by the state courts, holds that they are too vague to provide fair warning — -which means they are unconstitutionally vague, e.g., Bouie v. City of Columbia, 378 U.S. 347, 351 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964)), as well as being an evasion of judicial duty, a violation of Article III, and an affront to federalism. The content of the injunctions that the court orders entered, moreover, is not specified; disputes over it will undoubtedly give rise to further litigation. And there will be a nice question of whether the plaintiffs can obtain attorneys’ fees on the ground that they have won something, with the defendants arguing that it is they who have won the case because the court has both held the challenged statutes to be valid and accepted the defendants’ assurances that the statutes will not be enforced beyond their valid scope.

On the merits, the most important issue raised by the appeals is that of undue burden. (I’ll come back later to the substantive issue of vagueness, as distinct from the problems raised by the court’s effort to evade the issue by means of the “precautionary” injunctions.) To understand this issue requires understanding the peculiar and questionable character of these statutes. They do not protect the lives of fetuses either directly or by seeking to persuade a woman to reconsider her decision to seek an abortion. For the statutes do not forbid the destruction of any class of fetuses, but merely criminalize a method of abortion — they thus have less to recommend them than the antiabortion statutes invalidated in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973). If any fetal lives are saved by these statutes, it will only be by scaring physicians away from performing any late-term abortions, an effect particularly likely in Wisconsin, whose statute imposes a punishment of life imprisonment for its violation. In tacit acknowledgment of that statute’s especially questionable character, the majority opinion invites an Eighth Amendment challenge should a lengthy prison sentence ever be imposed on a violator of the statute.

The statutes do not seek to protect the lives or health of pregnant women, or of anybody else, as by confining the performance of abortions to licensed physicians, as in Mazurek v. Armstrong, 520 U.S. 968 , 117 S.Ct. 1865 , 138 L.Ed.2d 162 (1997) (per curiam), or to facilities equipped to deal with emergencies that may arise in the course of an abortion, particularly a late-term one. A legislature can ban quacks from practicing medicine without making an exception for those quacks (and no doubt there are some) who are abler than the worst physicians. Any general health regulation is likely to hurt a few people. But as banning “partial birth” abortions is not intended to improve the health of women (or anyone, for that matter), it cannot be defended as a health regulation.

The statutes make no exception for cases in which pregnancy results from rape or incest, or in which the fetus is profoundly deformed, nonviable, or unlikely to live more than a few hours after birth, or indeed, as I shall show, in which the woman’s life would be endangered if she carried the fetus to term. The absence of any such exceptions is particularly surprising because late-term abortions are much less likely than the much more common first-trimester abortions to be motivated by considerations merely of convenience rather than of urgency. A woman who finds herself five months pregnant is *879 unlikely to decide to have an abortion unless advised by her physician either that the fetus is profoundly deformed or that her own health requires that the pregnancy be terminated. Indeed, if the fetus has become viable, she cannot lawfully obtain an abortion unless her life or health is in danger. Wis. Stat. § 940.15 (3); 720 ILCS 510/5(1). These are constitutionally permissible protections of fetal life. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992). It is incomprehensible to me why these states, if acting in good faith, were unwilling to write the same health exception into statutes that criminalize the abortion of nonviable as well as viable fetuses. The “partial birth” statutes do not distinguish between fetuses that are viable, in the sense of being sufficiently developed to be able to survive outside the mother’s body, and those that are not. Some fetuses don’t become viable until 27 weeks or even later, but the “partial birth” abortion, even defined so narrowly as to cover only the D & X procedure, is performed from 20 weeks on. A physician might be convicted of a felony violation of these statutes even though the Supreme Court has held that a state may not prevent the abortion of a nonviable fetus. Id. at 846, 877 , 112 S.Ct. 2791 .

The statutes do not outlaw a particularly cruel or painful or horrifying mode of abortion. This can be shown with the aid of a simple example. Suppose that the fetus is hydrocephalic, so that its head is too large to pass through the cervix. If the physician performing the abortion crushes the fetus’s skull in the uterus, killing the fetus while the fetus is still entirely within the uterus, he is not guilty of violating either of the statutes before us. But if before crushing the fetus’s skull the physician turns the fetus around so that its feet are protruding into the vagina, he has committed a felony. In both cases, the fetus is killed by the crushing of its head in the uterus. (The crushing is necessary to enable the fetus to be removed through the birth canal without making the woman go into labor.) From the standpoint of the fetus, and, I should think, of any rational person, it makes no difference whether, when the skull is crushed, the fetus is entirely within the uterus or its feet are outside the uterus. Yet the position of the feet is the only difference between committing a felony and performing an act that the states concede is constitutionally privileged.

The tortured efforts of the states’ lawyers to provide guidance to physicians engaged in performing abortions—physicians who already are frequent subjects of picketing and other harassment and occasionally of physical assaults, see, e.g., United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), and who are now to be threatened with criminal prosecution and professional defrocking—make one thing clear: it is extremely difficult, indeed probably impossible, to distinguish a “partial birth” abortion from the methods of abortion that are conceded to be privileged. (This is the key to the statutes’ vagueness, and so a point to which I’ll return.) The principal reason for the difficulty is that, as my example of the hydrocephalic fetus suggests, there is no meaningful difference between the forbidden and the privileged practice. No reason of policy or morality that would allow the one would forbid the other. We should consider therefore why any state would pass such a law. An important part of the answer is found in Judge Manion’s opinion in Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (7th Cir.1998). The states want to dramatize the ugliness of abortion. “[A]U methods [of abortion] are gruesome. But this is the one method that has been at least partially exposed to the light of day.... The exposure of this procedure has cast a bright light on the alternative procedures that are equally gruesome.... No doubt when this statute is properly construed—[so] that it bans only the rarely-used D & X procedure—it does not appear to accomplish much in the way of saving babies. But these laws have certainly elevated the public’s concern over *880 the fate of the ‘potential human lives’ that are exposed to abortion.” Id. at 477, 479 (dissenting opinion). From this standpoint, the more a “partial birth” abortion is like an abortion that is conceded to be constitutionally privileged, the better.

The wave of “partial birth” abortion statutes that broke over the nation after a description of the D & X procedure was publicized — see Martin Haskell, “Dilation and Extraction for Late Second Trimester Abortion” (1992), reprinted in 139 Cong. Rec. E1092, 1993 WL 135664 (Apr. 28, 1993), and in The Partial-Birth Abortion Ban Act of 1995, Hearing before the S. Comm, on the Judiciary, 104th Cong., 1st Sess. 5 (Nov. 17, 1995) — does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based — as is implicit in Judge Manion’s defense of the laws — on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus’s feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of. the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational.

This is a harsh verdict, but doubt about its soundness is laid to rest by the absence of any exception for situations in which a “partial birth” abortion is necessary to protect the pregnant woman’s health. The right of abortion is unduly burdened by any law that endangers the woman’s health. Even a law that limits only the right to abort viable fetuses — a limitation not found in the statutes challenged in this case — must, to pass constitutional muster, make -an exception “for pregnancies which endanger the woman’s life or health.” Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 846 , 112 S.Ct. 2791 (emphasis added). Immediately the question arises why the Wisconsin and Illinois legislatures didn’t try to come within reach of the cases that permit states to limit the right of abortion by making an exception for pregnancies that endanger the woman’s health, the same exception they have written into their other abortion statutes. When pressed at argument, the lawyers for the two states could answer only that the exception is unnecessary. The lawyers were confident that such an abortion is .never required to preserve a woman’s health. They may be right, though I think not (more on this below). But if so, they are right only for today. Tomorrow, studies may show that, yes, there indeed are cases where a “partial birth” abortion is necessary to protect the mother’s health, as many physicians believe. Tomorrow, then, these two statutes may be unconstitutional even by the lights of the majority opinion. Why would a state risk the early obsolescence of its statute by making it wholly dependent on ever-changing medical opinion, when to avoid this risk it need only have excepted those “partial birth” abortions, if any, that are necessary to protect the woman’s health? If there are few such cases, the exception will rarely be invoked; if none, never.

The answer is that opponents of abortion do not think there should be an exception for abortions that endanger a woman’s health. Life, yes, but not health. These statutes, remember, are not concerned with saving fetuses, with protecting fetuses from a particularly cruel death, with protecting the health of women, with protecting viable fetuses, or with increasing the Wisconsin population (as intimated, surely not seriously,- by Wisconsin’s counsel). They are concerned with making a statement in an ongoing war for public opinion, *881 though an incidental effect may be to discourage some late-term abortions. The statement is that fetal life is more valuable than women’s health.

I do not deny the right of legislatures to enact statutes that are mainly or for that matter entirely designed as a statement of the legislators’ values. Milner v. Apfel, 148 F.3d 812, 814 (7th Cir.1998). Nothing in the Constitution forbids legislation so designed. Many statutes are passed or, more commonly, retained merely for their symbolic or aspirational effect. But if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue. The statutes before us endanger pregnant women — and not only pregnant women who want to have an abortion. There is no exception for women whose physicians tell them you must have an abortion or die. It is true that if a “partial birth” abortion is necessary to save the woman’s life, the statutes permit this. But if her life could be saved by another type of abortion, even one that threatened her health — that threatened to sterilize her or to paralyze her — -then the physician would be committing a felony if he performed a “partial birth” abortion. I cannot believe that my colleagues would think the physician could be punished in such a case, and I wonder therefore why the “precautionary” injunctions do not extend to it. The statutes allow a “partial birth” abortion to be performed if “no other medical procedure would suffice for that purpose” (that is, saving the mother’s life). Wis. Stat. § 940.16 (3); 720 ILCS 513/10. Could not “would suffice” be interpreted to mean “would be as good as from the standpoint of the woman’s health”? Such an interpretation, no more audacious than the interpretive leaps that underlie the order to enter “precautionary” injunctions, would seem compelled by the court’s own reasoning, but goes unremarked. If the interpretation is rejected, it would imply that a D & X would be forbidden even if the only alternative were a hysterectomy. That can’t be right.

The court points out that it is unclear how many women are endangered by these statutes. The forbidden procedure is performed only (or almost only) in late-term abortions, which fortunately are rare; and only in some unknown fraction of them is a “partial birth” abortion the medically preferable procedure. But government cannot without a reason forbid a person to obtain medical treatment and if challenged defend by pointing out that most people don’t need that treatment. In the context of abortion this principle is implicit in the statement in Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 878 , 112 S.Ct. 2791 , that “purpose or effect” (emphasis added) — and thus purpose alone — “to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” condemns an antiabortion statute. E.g., Okpalobi v. Foster, 190 F.3d at 354; Jane L. v. Bangerter, 102 F.3d 1112, 1116-18 (10th Cir.1996). That is no constitutional novelty; statutes that burden other constitutional rights besides the right of abortion have been invalidated on the basis of improper purpose. E.g., Edwards v. Aguillard, 482 U.S. 578 , 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987). The Casey opinion speaks of placing a substantial obstacle in the path of “a woman,” not “many women.” Imagine a married woman, pregnant, told by her physician that her life depends on her obtaining an abortion. He tells her it would be better from the standpoint of minimizing the risk to her of medical complications from the abortion for her to have a D & X. But, he adds, unfortunately the law prohibits the procedure. It does so not because the procedure kills the fetus,' not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy, but because the state wishes to make a statement of opposition to constitutional doctrine. A legislature may be taken to intend any conse *882 quences of its handiwork that are at once natural, highly probable, and wholly foreseeable (and foreseen). Here the intent is to block a woman from seeking an abortion when her doctor advises her that the best procedure for her is criminal.

The statutes’ improper purpose is further shown by the terminology they employ. The Wisconsin statute defines a fetus from the moment of conception to the inoment of birth as a “child” (thus absurdly implying that when we are born we are no longer children). The Illinois statute defines the fetus, also from the moment of conception, as an “infant.” If these definitions are sound, all abortion is infanticide, which is not the Supreme Court’s view. A state cannot be permitted to abrogate federal constitutional rights by definition. Line drawing is inescapable but the line between feticide and infanticide is birth. Once the baby emerges from the mother’s body, no possible concern for the mother’s life or health justifies killing the baby. But as long as the baby remains within the mother’s body, it poses a potential threat to her life or health and this threat presents a compelling case (or so at least the Supreme Court believes) for a right of abortion. The Wisconsin statute, whose provision for life imprisonment already marks it as the crazier one, also allows either of the fetus’s grandparents to sue in respect of a “partial birth” abortion. One can imagine a father who cares more for having a grandchild than he cares for the health of his daughter threatening to sue in order to block a “partial birth” abortion, while the mother (who may be divorced from the father), valuing the situation differently, sits on the sideline, helpless to protect her daughter.

In concluding that the challenged statutes do not pose any threat to women’s health, the court relies heavily on tendentious factfindings by the district judge in the Wisconsin case. He fastened on the fact that a Dr. Harlan Giles believes that the D & X procedure is rarely, maybe never, necessary for the protection of the pregnant woman’s health. The judge brushed aside the contrary testimony of reputable physicians — more reputable, perhaps, as we’re about to see, than Dr. Giles. Giles’s testimony is essentially the only basis of the judge’s finding, and the judge’s finding is the principal basis on which this court, disregarding the contrary findings in the Illinois case, dismisses concerns about the absence of a health exception. Yet apart from everything else, Judge Shabaz’s opinion is internally contradictory. He acknowledged that the D & X procedure, being quicker and easier to perform on fetuses that are more than 18 weeks old, has advantages for the woman’s health in reducing the amount of bleeding, the risk of uterine perforations, and the amount of time that she has to be under anesthesia. Planned Parenthood v. Doyle, 44 F.Supp.2d 975, 979 (W.D.Wis.1999). Yet without retracting these findings, he concluded that the procedure is never necessary to protect the woman’s health.

I daresay reputable physicians can be found who believe that surgery is never necessary in a case of prostate cancer, or that all vitamins are worthless, or that no efforts should be made to resuscitate a person over 80 years old who experiences cardiac arrest, since he is quite likely to be “revived” to a vegetative state. Dr. Giles may not even be wholly reputable. Another district judge rejected his testimony in opposition to the D & X procedure because, among other reasons, Giles was “more focused on the political aspects of the abortion debate than on the medical questions essential to resolution of the issues presented in this action. And, Dr. Giles was evasive when responding to questions directed at crucial issues in the case. Hence the testimony of Dr. Giles was neither credible, rehable nor helpful.” Richmond Medical Center for Women v. Gilmore, 55 F.Supp.2d 441, 450 (E.D.Va.1999) (footnote omitted). Another district judge criticized Giles' — who appears to be a member of that much-criticized fraternity, the professional expert witness — for pro *883 nouncing on an abortion statute with which he was unfamiliar. Evans v. Kelley, 977 F.Supp. 1283, 1309-10 (E.D.Mich.1997). Another rejected his testimony that the D & X is “a resurrection of an obstetric method discarded in the 1960s, which was used to deliver dead fetuses, and known as craniotomy,” and concluded that Giles’s criticisms of the D & X procedure were “not persuasive.” Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051, 1070 (S.D.Ohio 1995), aff'd, 130 F.3d 187 (6th Cir.1997).

Judge Shabaz, his only support the dubious Dr. Giles, stands alone among district judges who have made factfindings concerning the potential benefits of the D & X procedure for women’s health. See Rhode Island Medical Society, v. Whitehouse, 1999 WL 683846, at *22 (D.R.I.1999) (contrary testimony is “unbelievable”); Richmond Medical Center for Women v. Gilmore, supra, at 451; Carhart v. Stenberg, 11 F.Supp.2d 1099, 1124-26 (D.Neb.1998), aff'd, 1999 WL 753919 (8th Cir. Sept.24, 1999); A Choice For Women v. Butterworth, 54 F.Supp.2d 1148, 1153, 1156-57 (S.D.Fla.1998); Hope Clinic v. Ryan, 995 F.Supp. 847, 852 (N.D.Ill.1998) (the decision reversed today without regard for the district judge’s findings); Evans v. Kelley, supra, 977 F.Supp. at 1296 ; Women’s Medical Professional Corp. v. Voinovich, supra, 911 F.Supp. at 1070 ; see also Causeway Medical Suite v. Foster, 43 F.Supp.2d 604, 608, 613-14 (E.D.La.1999); Planned Parenthood of Central New Jersey v. Verniero, 41 F.Supp.2d 478, 484-85 (D.N.J.1998). If this court is to give weight to district judges’ assessment of the credibility of the physicians who have testified pro or con the D & X procedure, it ought at least to acknowledge that Judge Shabaz is in a minority of one.

In refusing to give any weight to the findings of fact made by Judge Kocoras in the Hope case, the court seems to have forgotten that we are reviewing his judgment too. It is not some unrelated case that we are free to ignore on the ground that it is based on a different record from any before us. His findings, made in a proceeding that resulted in the issuance of a permanent injunction against the Illinois statute, are entitled to as much weight as Judge Shabaz’s, Knapp v. Northwestern University, 101 F.3d 473, 478 (7th Cir.1996); Durasys, Inc. v. Leyba, 992 F.2d 1465, 1471 (7th Cir.1993) — more, really, because they are not infected by the internal contradiction that weakens Judge Sha-baz’s findings. If those findings justify our upholding the Wisconsin statute, Judge Kocoras’s should lead us to invalidate the Illinois statute.

The court denies that Judge Kocoras made findings. I don’t understand this. It is true that he based his findings on affidavits rather than on live testimony, but the state did not challenge the facts contained in the affidavits, including the facts about the medical advantages of the D & X procedure. Findings do not lose weight by being based on uncontested facts; admissions are not weaker evidence than facts found after vigorous contest. And if it were true that there were no-findings in the Illinois case, this would call for a remand; it would not entitle us to plug Judge Shabaz’s findings into a separate litigation with no common parties. (What kind of transplant is that?)

Consistent deference to district court factfindings in this pair of cases would lead to an inconsistent result — the upholding of one statute and the condemnation of its sister. This demonstrates that the constitutional right of abortion cannot be made to depend on whether a particular district judge finds a particular physician who disagrees with the consensus of medical opinion to be more credible than the spokesmen for the consensus. The consensus here is found in the statement by the American College of Obstetricians and Gynecologists (ACOG) that the D & X procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consulta *884 tion with the patient, based upon the woman’s particular circumstances can make this decision.” As Judge Shabaz himself acknowledged, the procedure reduces the risk of lacerating the uterus and the cervix with the sharp instruments used in the standard D & E. Such lacerations cause trauma and loss of blood. The D & X also reduces the risk that fetal tissue will remain in the woman’s body, where it can cause infection. It reduces the length of time that the woman is under anesthesia. And it facilitates testing for genetic abnormalities, which is particularly important to the woman’s decision whether to become pregnant again. (So much for the suggestion of Wisconsin’s lawyer that banning the D & X will lead to more births.) Not all physicians agree with these points; and ACOG hedged its opinion by noting that a select panel of physicians had been unable to identify specific circumstances in which there is no satisfactory alternative to a D & X. But the team of Dr. Giles and Judge Shabaz are, with all due respect, not competent to resolve this medical controversy.

How often the circumstances sketched in the previous paragraph that led ACOG to recommend retention of the D & X as a treatment option in late-term abortions will be present is not critical. It is slight consolation to be told that while the state has forbidden the optimal treatment of your medical problem, that problem happily is rare. Although we haven’t been told of cases in states that have enacted laws forbidding “partial birth” abortion that were not promptly enjoined in which the consequence has been to endanger women, for all we know women in those states go out of state if they are candidates for a D & X. Cf. Jane L. v. Bangerter, supra, 102 F.3d at 1117 . That would be the prudent course. My colleagues in the majority perform their own statistical analysis, outside the record, in an effort to refute this possibility. I have no objection to a court’s relying on extra-record evidence to determine the health effects of “partial birth” abortion. Those effects should indeed be treated as a legislative fact rather than an adjudicative fact, in order to avoid inconsistent results arising from the reactions of different district judges, sheltered by the deferential “clear error” standard of appellate review of factfindings, to different records — the inconsistency illustrated by the different findings of Judges Sha-baz and Kocoras in the two cases before us. Even so, we should hesitate to play statistician. It is incongruous for this court to brush aside the findings of district judges in other cases while bolstering Judge Shabaz’s inadequate findings with extra-record evidence of its own.

The court tries to shore up Judge Sha-baz’s findings with two medical papers. One of these, however, Nancy G. Romer, “The Medical Facts of Partial-Birth Abortion,” 3 Nexus: A Journal of Opinion 57 (1998), is not a medical paper at all. Although the author is an M.D., she is also a pro-life activist, and the burden of her paper is that viable fetuses should be saved rather than aborted. This is a respectable ethical stance but it has nothing to do with the medical pros and cons of a D & X. The other paper, M. LeRoy Sprang & Mark G. Neerhoff, “Rationale for Banning Abortions Late in Pregnancy,” 280 JAMA (,Journal of the American Medical Association) 744 (1998), appears in a section of JAMA captioned “controversies,” and though it does point out possible dangers to the woman from the procedure, the authors are heavy on the ethical issues involved in abortion. Like Dr. Romer, they come out in opposition to late-term abortion by any method, and opine very unscientifically that “partial birth” abortion is “closer to infanticide than it is to abortion.” Id. at 746. Another medical article in the same issue of JAMA concludes that the D & X procedure should, as ACOG concluded, be an option for the physician. See David A. Grimes, “The Continuing Need for Late Abortions,” 280 JAMA (Journal of the American Medical Association) 747 (1998). The court does not cite that article.

*885 No hypothesis has been proposed by either of the states, or by the amid curiae who have submitted briefs in support of the Wisconsin statute, as to why physicians would perform, or the American College of Obstetricians and Gynecologists support, a method of abortion that benefits no patient. There has been no suggestion of any pecuniary incentive that might cause them to engage in a controversial procedure of this kind.

Apart from performing its own statistical analysis and bringing to bear so-called medical papers, the court evinces its queasiness about resting entirely on Judge Shabaz’s findings by saying that “the question in the end is not what one or another judge found on a given record” (the question the court had spent so much time discussing). “It is enough that there is real, and not just hypothetical, support for a belief that the partial-birth-abortion laws do not pose hazards for maternal health.” This sounds suspiciously like the test for whether a statute has a rational basis, see, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 315 , 113 S.Ct. 2096 , 124 L.Ed.2d 211 (1993), and so may explain the court’s one-sided treatment of the facts (the failure to cite Dr. Grimes’s paper, for example). Rational basis is not the issue here. The issue is whether the Wisconsin and Illinois “partial birth” statutes impose an undue burden, and specifically whether they are a threat to maternal health. That is rightly an issue of legislative fact, meaning that its resolution is not to be cabined by facts determined in an adjudicative hearing; still it must be resolved in accordance with the weight of the evidence, including such extra-record evidence as the consensus of the relevant expert community, in this case the medical community. It is not enough to note that there is some evidence in support of one side of the issue, when there is more evidence on the other side. In the case the court cites as illustrating the appropriate scope of review, Craig v. Boren, 429 U.S. 190, 199-204 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976), the Supreme Court critically reviewed statistical evidence underlying the claimed constitutionality of the challenged statute — and found it wanting. When one critically reviews the testimony of Dr. Giles, and the court’s own statistical analysis, and the so-called medical papers, and weighs them against the evidence that establishes the medical consensus, it becomes apparent that the court does not take the standard of Craig seriously.

Let me suggest an analogy. Suppose that a legislature in the South in the 1950s had listened to several “reputable” cognitive psychologists testify that blacks as a group are slow learners, and hence that they should be educated in separate schools. No one would argue that this legislative finding, because supported by some evidence from the relevant expert community, would have to be accepted in deciding the constitutionality of segregated education. The court, if it thought the issue relevant, would have to decide whether the finding was correct before relying on it. Similarly, the Wisconsin and Illinois legislatures are not entitled to ban an abortion procedure that the medical community believes may be preferable from a medical standpoint for some women, simply because a marginally reputable expert (Dr. Giles) thinks that the set of women for whom the procedure is preferable is actually zero. That might bear on the legislatures’ good faith (though there is contrary evidence on that too, as I have pointed out), but it would not decide the issue of the statutes’ effects on the right of abortion.

Enough said: banning the D & X, the core prohibition in these statutes, imposes an undue burden on women who seek to have an abortion, and is therefore unconstitutional. Let me turn now to the alternative ground of vagueness. Both statutes forbid the partial vaginal delivery of a living fetus, and this describes many instances of the D & E method of abortion — ■ which the court acknowledges cannot constitutionally be banned, see also Carhart v. *886 Stenberg, 192 F.3d 1142 (8th Cir.1999); Little Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794 (8th Cir.1999); Planned Parenthood of Greater Iowa, Inc. v. Miller, 195 F.3d 386 (8th Cir.1999) — as well as it does the D & X. Judge Shabaz himself acknowledged that “often” in the course of a D & E there is a fetal heartbeat after portions of the fetus have been delivered into the vagina, 44 F.Supp.2d at 977 , making the D & E definitionally a “partial birth” abortion under both statutes. The court’s response, as I noted at the outset of this dissent, is not to hold that the statutes are unconstitutionally vague, but instead to hold that they can’t be enforced against any procedure except the D & X until the Wisconsin and Illinois state courts have had a chance (the chance that is unlikely ever to come) to “interpret” their statutes to permit the standard D & E method even when it results, as it frequently does, in the partial vaginal delivery of a living fetus.

Putting to one side my objections to the court’s procedure, which I discussed at the outset of this dissent, I note that the court seems to have bought into the legal-realist view that a statute means whatever the courts say it means, despite the Supreme Court’s admonition that a court “may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction.” Reno v. American Civil Liberties Union, 521 U.S. 844, 884 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997), and cases cited there. If the realists are right, and the contrary intimations of cases such as Reno v. American Civil Liberties Union can be brushed aside, I wish the court would, as I suggested earlier, hold that these statutes can be further narrowed by “precautionary” injunction to make an exception for cases in which the D & X procedure is necessary to protect the woman’s health. The interpolation of such an exception would be no greater act of judicial hubris than narrowing the statute to the D & X when the draftsmen of the statutes decided not to use that term, preferring a vaguer term intended to be broader.

The constitutional law of vagueness is obviously in turmoil and so I shall suggest a lowest-eommon-denominator approach with which I think few judges will disagree, however much they may disagree about its application to particular cases. If a criminal statute is so worded that it is highly likely to condemn a constitutionally privileged act, and if the constitutionally privileged actor could not as a practical matter avoid being punished for engaging in such an act by raising a defense in a criminal proceeding, then the statute is enjoinable, in advance of any prosecutions, as unconstitutionally vague. For the very existence of such a statute “deter[s] constitutionally protected activity.” Coe v. County of Cook, 162 F.3d 491, 496 (7th Cir.1998), and cases cited there. When vague statutes prescribe heavy penalties for their violation, rational people avoid any conduct that might be thought to fall within the statute’s scope, even if in an error-free litigation the conduct would be sure to be found constitutionally protected. See, e.g., Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., supra, 455 U.S. at 494 n. 6, 102 S.Ct. 1186 ; Colautti v. Franklin, 439 U.S. 379 , 99 S.Ct. 675 , 58 L.Ed.2d 596 (1979); Charles v. Daley, 749 F.2d 452, 460 (7th Cir.1984).

When the demanding conditions that I have outlined are satisfied, the statute is invalid, and the legislature has to go back to the drawing board. The court cannot rewrite the statute, or tell the state courts how to rewrite it, and, in advance of any further interpretation, uphold the rewritten statute. That procedure, the procedure followed by the court today, in effect nullifies the doctrine of unconstitutional vagueness.

These statutes are either absurdly (and unlawfully) overbroad or remarkably vague, and the court’s direction to issue “precautionary” injunctions is a tacit ac-knowledgement of its inability to give the statutes a plausible narrowing interpreta *887 tion; the confused concessions of the states’ lawyers at the oral argument were no help in the endeavor. Although the statutes are addressed to physicians — it is their conduct alone that is regulated — the language employed is not medical language. Instead of denoting the victim of illegal abortion as a live fetus, a fetus with a heartbeat, or a viable fetus (a fetus, remember, that can survive outside the mother’s body), the Illinois statutes refers to “a living human fetus or infant,” terms that the statute explains are “used interchangeably to refer to the biological offspring of human parents,” 720 ILCS 513/5, while the Wisconsin statute refers to “a living child” or “partially delivered child,” with “child” defined, as I noted earlier, as “a human being from the time of fertilization until it is completely delivered from a pregnant woman.” Wis. Stat. §§ 940.16 (l)(a), (b). The use of such language makes the statutes incurably ambiguous. Neither “biological offspring” nor “living” is defined. At argument the Solicitor General of Illinois was emphatic that “biological offspring” is a synonym for “intact fetus,” that is, a fetus (however deformed) before the physician performing the abortion begins to work on it. But he retreated from this position when faced with the hypothetical case of a physician who, intending to perform a D & X, removes a limb or other part of the fetus before beginning the procedure. His retraction was consistent with his statement that the Illinois legislature had tried to make the statute “as broad as possible.” More extensive dismemberment than merely removing a limb or two, Wisconsin’s lawyer assured us, would inevitably kill the fetus before any part of it emerged from the uterus. She offered no basis for this hopeful bit of medical advice, and it ik--wrong. Carhart v. Stenberg, supra, at *4; Richmond Medical Center for Women v. Gilmore, supra, at *10. By “killing” the fetus, she evidently meant doing something to cause its heart to stop beating, although a fetus is living before it develops a heart. Obviously a one-day old embryo, like the cells that compose a living human body, is alive, not “dead.”

In a standard D & E, part or all of the fetus often will still have a heartbeat, and so be “living,” in the sense of the word apparently intended by the legislatures, when it emerges from the uterus. Therefore it is “partially vaginally delivered,” just as in a D & X. “During the D & E procedure, the fetus may be removed from the uterus and brought through the cervix and vagina either intact or disarticulat-ed.... [I]t may happen that part of the intact fetus will be in the vagina and part in the uterus or a disarticulated part of the fetus will be in the vagina while the remainder of the fetus is in the uterus. In either of these situations, that part of the fetus which remains in the uterus may still have a heartbeat.” Planned Parenthood of Central New Jersey v. Verniero, supra, 41 F.Supp.2d at 484 . If the physician then kills the fetus, he would, one would think, be guilty of having violated these statutes, which punish the killing of a fetus that has been partially vaginally delivered.

Against this interpretation, the Illinois Solicitor General, discarding settled principles of criminal law for the sake of a short-term victory, declared that the statute would not be violated unless the physician had planned before beginning the abortion to wait until a part of the fetus had emerged from the uterus and kill the fetus then; the mere fact that the physician knew it was likely that a part of the fetus would be outside the uterus at the moment of death would not show the requisite intent. By this logic — which the state’s Solicitor General actually embraced at argument — if you fire a machine gun into a lighted college dormitory at night, reckoning that you have only a 10 percent chance of actually killing anyone, and you do kill one or more of the residents, you are not guilty of murder, provided you didn’t want to kill anyone but just wanted to see whether your machine gun was in working order. The law is otherwise. First-degree murder in Illinois requires only that *888 “in performing the acts which cause the death” the defendant “knows that such acts create a strong probability of death or great bodily harm.” 720 ILCS 5/9-1; People v. Daniels, 301 Ill.App.3d 87 , 234 Ill.Dec. 158 , 702 N.E.2d 324, 330-31 (Ill.App. 1998); People v. Mitchell, 234 Ill.App.3d 912 , 176 Ill.Dec. 218 , 601 N.E.2d 916, 919 (Ill.App.1992); Hennon v. Cooper, 109 F.3d 330, 333-334 (7th Cir.1997). A physician who performs a standard D & E knowing, as he must, before he begins, that part of the fetus is quite likely to be outside the uterus when he kills the fetus, and then kills it after a part has emerged from the uterus, is guilty of the crime of partially vaginally delivering a living fetus and then killing it.

The Illinois statute itself, moreover, requires only that the partial-birth abortion have been performed “knowingly.” 720 ILCS 513/10. Under the law of Illinois, a defendant is deemed to know “the result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” 720 ILCS 5/4 — 5(b).

Wisconsin authorizes life imprisonment for performing a “partial birth” abortion. That is the state’s heaviest penalty, the penalty for murder. Wisconsin deems its statute — as both the penalty and the use of the term “child” to denote the fetus reflect — a law against infanticide. (So does Illinois, by using the term “infant,” but it is not serious, because the maximum punishment for killing the “infant” is only three years.) No one would suppose, in the example of shooting into a dormitory, that if only a one-day-old baby were killed the killer would be innocent of murder. If Wisconsin is serious in regarding a fetus that has begun to emerge from the uterus as “a living child” who should be protected to the full extent of the law against murder, it cannot rationally interpret the statute to permit the physician to escape punishment by the plea that when he began the abortion he thought there was only a 50 percent chance that he would be killing “a living child.” It would be like arguing that if a nurse hit a newborn over the head with a baseball bat, with all her might, not to kill it but merely to make it stop crying, and the newborn died, the nurse could defend against a charge of first-degree murder by proving that while she thought it quite possible that the newborn would die, she didn’t want it to die and thought it had a 50 percent chance of surviving.

Any doubts on this score are stilled by Wisconsin’s statutory definition of intentional. The statute punishes “intentionally” performing a partial birth abortion, Wis. Stat. § 940.16 (2), and the term means either acting purposely to accomplish the forbidden end or being “aware that [one’s] conduct is practically certain to cause that result.” Wis. Stat. § 939.23 (3). As glossed by the case law, the alternative definition is satisfied by conduct carrying a known high risk of the forbidden result even if that result is not desired. See State v. Gould, 56 Wis.2d 808 , 202 N.W.2d 903, 906 (Wis.1973); State v. McCarter, 36 Wis.2d 608 , 153 N.W.2d 527, 529 (Wis.1967); State v. Webster, 196 Wis.2d 308 , 538 N.W.2d 810 (Wis.App.1995). In Webster , where the defendant was convicted of attempted first-degree murder, it was deemed irrelevant that the jury might have accepted his testimony “that he precisely aimed the shotgun at Hood’s armpit, and that the gun was loaded only with shotshells filled with bird shot.” 538 N.W.2d at 815 .

So the state-of-mind requirements of the two statutes turn out to be the same. They are, moreover, the standard state of mind requirements for liability for serious crimes. A criminal defendant acts intentionally, and, even more clearly, knowingly, “when he knows that that result [here, a ‘partial birth’ abortion] is practically certain to follow from his conduct, whatever his desire may be as to that result.” 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.5, p. 304 (1986); see, e.g., United States v. United *889 States Gypsum Co., 438 U.S. 422, 444-46 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978); Smith v. Farley, 59 F.3d 659, 663 (7th Cir.1995); United States v. McAnally, 666 F.2d 1116, 1119 (7th Cir.1981).

I have discussed the state of mind requirements of these statutes at such length in order to make clear how little mileage the court can get from the cases that it cites, such as Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), that save vague statutes by narrow interpretations. Put aside the fact that these were federal statutes given narrowing interpretations by federal courts, rather than state statutes given narrowing interpretations by federal courts, and that the Supreme Court in Bellotti v. Baird, 428 U.S. 132, 146-47 , 96 S.Ct. 2857 , 49 L.Ed.2d 844 (1976), a decision that is still good law on this point, held that the proper way to obtain a narrowing interpretation of a vague state abortion statute is to abstain in favor of the state courts. The point I wish to stress is that the device used in Seretes and many similar cases to save the statute, that of interpolating a scienter requirement, is unavailable here. And this for two reasons. The first is that the Wisconsin and Illinois statutes make clear what the state of mind requirement for guilt under each statute is, leaving no room for interpolating such a requirement in the guise of interpretation; and the second is that the problem with knowing what these statutes require of a physician is not ignorance of legal obligation, but ignorance of the factual premises of liability. The statute challenged in Screws made it a crime to deprive a person of a constitutional right. The Court held that the statute could be saved by requiring that the defendant be shown to have known that he was violating a constitutional right. It was a realistic requirement because the set of constitutional rights at any moment is more or less known and it is a straightforward (though not always easily answerable) factual question whether the defendant knew that his conduct infringed something in that set. No one knows what procedures constitute “partial birth” abortion, and specifically whether many, perhaps most, D & E’s do, given that the fetus often has a heartbeat after part of the fetus has emerged from the uterus. Screws, when he beat his victim to death, knew that he was committing the assault; the question was whether he knew that the assault (because he was a sheriff and his victim an arrestee) violated the Constitution. Physicians performing late-term abortions in Illinois and Wisconsin do not know whether they are performing “partial birth” abortions and thus committing crimes.

The incurable vagueness of these statutes might seem to be of little moment if a physician prosecuted for infanticide or feti-cide had a sure defense should the prosecution stray beyond the narrow path to which the court today attempts to confine the statute. He could not avoid prosecution but at least he would know he would be acquitted, and if he were lucky he would be let out on bail pending trial and maybe Planned Parenthood would pay his legal fees. But let us be realistic, and not only about the possibility of legal error. The physician is not the real target of the statute; the pregnant woman is. It is not the physician’s pregnancy that is to be terminated. He has no incentive to undergo the agony of a criminal prosecution merely in order to perform an abortion in a particular way. Better for him either to abandon late-term abortions altogether, or to be sure to give the fetus a lethal injection in útero, and wait for it to take effect, before performing the abortion. The in terrorem effect of these statutes, especially the Wisconsin statute with its maximum penalty of life imprisonment, is likely to induce physicians in these states to steer well clear of the forbidden zone. What physician would be fool enough, or hero enough, to risk a criminal prosecution in order to explore the precise meaning and outer bounds of the precautionary injunctions that this court has ordered the district courts in these two cases to enter, even if the risk is small?

*890 And now we can see more clearly one of the fallacies in the “precautionary” injunction gimmick. It is the existence of these statutes, because of their extraordinary breadth and the limited incentive of a physician to test their scope, not the risk of prosecution, which may indeed be slight, that burdens those abortion rights that are conceded to be constitutionally protected. A peculiarity of abortion rights is that they require the assistance of a third party, the physician, who has a lesser interest in them than his patient. Because his interest is less, he is more easily deterred, and this should increase our concern with the deterrent effects of these vague statutes.

It remains only to make clear that in finding these statutes pernicious and unconstitutional I do not mean to criticize anyone who believes, whether because of religious conviction, nonsectarian moral ■conviction, or simply a prudential belief that upholding the sacredness of human life whatever the circumstances is necessary to prevent us from sliding into barbarism, that abortion is always wrong and perhaps particularly so in late pregnancy, since all methods of late-term abortion are gruesome. If a woman told by her physician that her fetus will be a Down’s baby or a Tay-Sachs baby or will be born without arms or legs, or that her own health or even life will be endangered if she carries the fetus to term, decides nevertheless against abortion, I would be the last to criticize her decision. I might consider her a heroine or a saint. But what is at stake in these cases is whether the people who feel that way are entitled to coerce a woman who feels differently to behave as they would in her situation. The Constitution as interpreted by the Supreme Court in decisions that we are not free to palter with answers this question “no.” We should therefore affirm the district court’s decision in Hope and reverse the district court’s decision in Doyle.