Hopkins v. Jegley

PRELIMINARY INJUNCTION ORDER

Kristine G. Baker, United States District Judge

Plaintiff, Frederick W. Hopkins, M.D., M.P.H., flies this suit pursuant to 42 U.S.C. § 1983 against defendants Larry Jegley, Prosecuting Attorney for Pulaski *1034 County; Steven L. Cathey, M.D., Chair of the Arkansas State Medical Board; and Robert Breving, Jr., M.D.; Bob Cogburn, J.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges,-D.O.; Marie Holder, Larry D. Lovell; William L. Rutledge, M.D.; John H. Scribner, M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; and John B. Weiss, M.D., as officers and members of the Arkansas State Medical Board -in their official capacities. Dr. Hopkins mounts a constitutional challenge to four acts of the 91st Arkansas General Assembly of 2017, Act 46 (H.B. 1032) (“D & E Mandate”), Act 733 (H.B. 1434) (“Medical Records Mandate”), Act 1018 (H.B.. 2024) (“Local Disclosure Mandate”), and Act 603 (H.B..1666) (“Tissue Disposal Mandate”), to be codified at Arkansas Code. Annotated §§ 20-16-1801 to 1807, 20-16-1801 to 1810, 12-18-108(a)(l), and 20-17-801 to 802, respectively. 1 By its terms, H.B. 1434 takes effect January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, are set to take effect on or about July 30, 2017.

Before the Court is Dr. Hopkins’s motion for preliminary injunction or in the alternative temporary restraining order (Dkt. No. 2). Dr. Hopkins seeks preliminary injunctive relief based on the following claims in his complaint: Count 1 based on the D & E Mandate, Counts III and IV based on the Medical Records Mandate, Counts VI and VIII based on the Local Disclosure Mandate, and Counts X and XI based on the Tissue Disposal Mandate. Dr. Hopkins claims that “[t]hese statutes threaten [him] with criminal penalties and deny and burden [his] patients’ constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care,' and to protect their private medical information.” (Dkt. No. 1, at 3, ¶ 9). He seeks declaratory and injunctive relief “[t]o protect his patients from these constitutional violations, to enforce his. own right to clear legal standards, and to avoid irreparable harm....” (Dkt. No. 1, át 3, ¶ 9). Defendants responded in opposition to the motion (Dkt. No. 23). Dr, Hopkins filed a reply (Dkt. No. 32). Defendants also submitted two notices of supplemental authority (Dkt. Ños. 31, 34).

The Court conducted a hearing on the motion on July 13, 2017. The parties agreed among themselves not to present additional evidence at the hearing but instead to present only argument, and the Court agreed to hear only argument. For the following reasons,, the Court grants Dr. Hopkins’s motion for preliminary injunction.

I. Findings of Fact

1. Dr. Hopkins is a board-certified obstetrician-gynecologist with 25 years of experience in women’s health. He is licensed to practice medicine in Arkansas, as well as other states including California and New Mexico. For over five years, Dr. Hopkins has been both Co-Director of the Family Planning Training Program at Santa Clara Valley Medical Center in Santa Clara, California, and Associate Clinical Professor in obstetrics and gynecology at Stanford University School of Medicine -in Palo Alto, California (Dkt. No. 5, ¶ 1).

2. Earlier in 2017, Dr. Hopkins began providing care at Little Rock Family Plan *1035 ning Services in Little Rock, Arkansas (Dkt. No. 5, ¶ 1).

3. At Little Rock Family Planning Services, Dr, Hopkins provides care that includes medication abortion in the early part of the first trimester and surgical abortion through 21 weeks and six days as measured from the woman’s last menstrual period (“LMP”), which is referred to as “21.6 weeks LMP” (Dkt. No. 5, ¶2; Dkt. No. 6, ¶ 2).

4. Dr. Hopkins provides abortion and miscarriage services for patients from young teenagers to women in their later reproductive years (Dkt. No. 5; ¶ 2).

5. Dr. Hopkins has performed’work in Kenya, Tanzania, and Zimbabwe. As a result of that work, he has seen firsthand the results of denying women access to safe abortion care (Dkt. No.- 5, ¶ 3),

6. There are only two entities providing abortion care in Arkansas: Little Rock Family Planning Services, which provides abortions through 21.6 weeks LMP, and Planned Parenthood Great Plains, which provides only medication abortion through 10 weeks LMP in Little Rock and Fayette-ville, Arkansas (Dkt. No. 5, ¶ 6; Dkt. No. 6, ¶ 2).

7. If hospitals in Arkansas are providing any abortion care, it is in only, rare circumstances (Dkt. No. 5, ¶ 6).

8. Under current Arkansas law, -a woman must first receive state-mandated counseling, in person at the clinic before having an abortion. See Ark. Code Ann. § 20-16-1703 (b)(1), (2). A woman must then wait 48 hours after that state-mandated counseling before she returns to the clinic for her procedure (Dkt.- No. 5, ¶ 7; Dkt. No. 6, ¶ 7).

9. Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care up to 18.0 weeks LMP, the law requires at, least two trips to the clinic (Dkt. No. 6, ¶7).

10. According to Dr. Hopkins, the state-mandated counseling and 48-hour waiting period can result in a delay longer than 48 hours for many patients (Dkt. No. 5, ¶ 7).

11. Women must consider whether they have someone to accompany them to the clinic. The support person’s availability may impact when a woman is able to return, after the mandatory delay, to receive medical care (Dkt; No. 6, ¶ 7). "

12. Little Rock Family Planning Services provides care to women from throughout - Arkansas and from other states (Dkt, No. 5,- at 37; Dkt. No. 6, ¶ 5).

13. Many patients of Little Rock Family Planning Services are low-income. Approximately 30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5).

14. Many patients of Little Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No. 6, ¶ 5).

15. The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little, Rock Family Planning Services. Women must arrange for time off work on multiple days, which can be very difficult given that many are in low-wage jobs and feel that they cannot explain to an employer the reason they need to take time off. For women who already have children, these women , must arrange and often pay for childcare.. These women also must arrange and pay for transportation. In some cases, these women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

16. Patients of Little Rock Family Planning Services seek abortions for a variety of personal, medical, financial,..and family *1036 reasons, including that the woman has one child but believes she cannot parent another; that the woman believes she is too young to be ready to carry a pregnancy or to become a parent; that the woman is pursuing educational or work opportunities; that the woman has a health condition that makes carrying a pregnancy dangerous; that the woman has received a diagnosis of fetal abnormality; that the woman is in an abusive relationship; and that the woman is pregnant as a result of rape or sexual assault (Dkt. No. 6, ¶6).

17. Many patients of Little Rock Family Planning Services are desperate not to disclose the reasons for travel and appointments to seek abortion care (Dkt. No. 6, ¶ 8).

18. Approximately 30% of all women have an abortion at some point in their lives (Dkt. No. 4, ¶ 7).

19. Abortion in the first and second trimester, utilizing current methods, is safer than carrying a pregnancy to term, as to both morbidity and mortality (Dkt. No. 4, ¶ 8; Dkt. No. 32-1, ¶ 5).

20. The first trimester of pregnancy goes to approximately 14 weeks LMP (Dkt. No. 5, ¶ 8).

21. Nationwide, approximately 90% of abortions occur during the first trimester of pregnancy (Dkt. No. 5, ¶ 8).

22. .In Arkansas, approximately 83% of abortions occur during the first trimester of pregnancy (Id.).

23. During the first trimester, there are two methods of abortion (Dkt. No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).

24. As for the first method used during the first trimester, a clinician may use medications to induce an early miscarriage. This method is called early medication abortion. It is generally available only through part of the first trimester of pregnancy, and it is not available in the last weeks of the first trimester of pregnancy. In the most common method of early medication abortion, a woman takes two drugs: first mifepristone and then, the next day, misoprostol. Within 24 to 48 hours of taking the second drug, the woman likely will pass the products of conception, not in a medical facility but in a location that is most comfortable for her, usually her home (Dkt. No. 4, ¶ 11-12; Dkt. No. 5, ¶ 9).

25. Dr. Hopkins does not know the exact timing of the most common method of early medication abortion because he is not with his patient when she passes the products of conception (Dkt. No. 5, ¶ 9).

26. As for the second method used during the second trimester, a clinician may use suction to empty the uterus, which is available through the entire first trimester. This method is called suction or aspiration abortion. The clinician first gently opens the cervix and then inserts a suction cannula into the uterus, and suctions out the embryo (until approximately 10 weeks) or fetus (thereafter) — as well as the placenta, amniotic fluid, and sac, and the other contents of the uterus (Dkt. No. 4, ¶ 13; Dkt. No. 5, ¶ 10).

27. In the second trimester of pregnancy, suction alone generally is not sufficient to complete an abortion, nor is it something physicians can rely on to cause fetal demise to avoid liability under the D & E Mandate in the second trimester (Dkt. No. 32-1, ¶ 5).

28. In the second trimester of pregnancy, beginning at approximately 14.0 weeks LMP, there are two principal methods of abortion (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 11).

29. As for the first method used beginning at approximately 14.0 weeks LMP, in induction abortion, the clinician uses medi *1037 cations to induce labor. This procedure can happen only in a hospital or hospital-like facility, not in a second-trimester outpatient clinic. This procedure can take over 24 hours, and for some patients, this procedure may span multiple days. This procedure entails labor, which can involve pain requiring significant medication or anesthesia, and which may be psychologically challenging for some women. This procedure accounts for a tiny fraction of second-trimester abortions in the nation (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12).

30. Because induction involves an inpatient stay, requiring up to three days of hospitalization, as opposed to an out-patient procedure, there is an enormous cost difference between induction and the outpatient standard dilation and evacuation (“standard D & E”) procedure 2 (Dkt. No. 4, ¶ 14).

31. In some women, an induction abortion fails, and the woman needs intervention in the form of D & E for her safety. This is infrequent, but this does occur (Dkt. No. 4, ¶ 15; Dkt. No. 5, ¶ 12).

32. In approximately 5% to 10% of induction abortions, the woman must undergo an additional surgical procedure to remove a retained placenta. Induction abortion also can cause uterine rupture, which is rare but can be life threatening and can be of particular concern for jvomen who have had multiple previous 'cesarean deliveries (Dkt. No. 4, ¶ 15; Dkt. No. 25-4, ¶ 8).

33. Of women who have abortions performed during the second trimester of pregnancy, 95% of those women in this country choose standard D & E (Dkt. No. 4, ¶ 16).

34. In 2015, the latest year for which statistics are available, there were no induction abortions reported in Arkansas (Dkt. No. 5, ¶ 12).

35. As for the second method used beginning at approximately 14 weeks LMP, because suction instruments alone are generally no longer sufficient to empty the uterus, doctors can use a method with instrumentation called standard D <& E. This involves two steps: dilating the cervix, and then evacuating the uterus with instruments such as forceps. There are several ways to dilate the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13).

36. Typically, during the early weeks of the second trimester of pregnancy, a doctor performing standard D & E uses a combination of medications that open the cervix and manual dilators; then, the same day, the doctor uses forceps to remove the fetus and other contents of the uterus. Because the fetus is larger than the opening of the cervix, the fetal tissue generally comes apart as the physician removes it through the cervix. The reason that the cervical opening is smaller than the fetal parts is that, in general, the doctor dilates only enough to allow the safe passage of instruments and fetal tissue through the cervix (Dkt. No. 4, ¶ 17-18; Dkt. No. 5, ¶ 14).

37. In Arkansas and elsewhere, standard D & E typically is a one-day procedure from 14.0 to 17.6 weeks LMP (Dkt. No. 5, ¶ 15; Dkt. No. 6, ¶ 17).

*1038 ,38. Of 638 D & Es reported in Arkansas in 2015, 407 or 64% took place during these earliest weeks of the second trimester (Dkt. No. 6, ¶ 17).

39. Dr. Hopkins is aware of no physicians, other than those with whom he practices at Little Rock Family Planning Services, who provide second trimester abortion care in the state of Arkansas (Dkt. No. 32-2, ¶ 2).

40. Later in the second trimester, larger instruments require wider cervical dilation. Although some physicians continue to provide standard D & E as. a one-day procedure, starting at 18.0 to 20.0 weeks LMP, it is typical for doctors to add overnight osmotic dilation to the standard D & E protocol. Osmotic dilators are thin sticks of material that swell when they absorb moisture; when placed in a woman’s cervix, they absorb moisture from the woman’s body, expand slowly, and slowly dilate the cervix. Once dilation is sufficient, typically the next day, the doctor proceeds as in earlier standard D & Es, removing the fetus, generally in pieces because it is larger than the cervical opening (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 16).

41. For patients of Little Rock Family Planning Services who have overnight osmotic dilation with the standard D & E protocol, those patients are required to spend that overnight within 30 minutes,of the Clinic so that the doctor is available in the rare instance in which a patient has any problem (Dkt. No. 6, ¶ 18).

42. Through the second trimester, standard D & E is a safe way to provide abortion in an outpatient setting, such as a family planning clinic (Dkt. No,' 5, ¶ 17).

43. Standard D'& E accounts for almost all second-trimester abortions- in the United State's (Dkt. No. 4, ¶ 16; Dkt. No. 5, ¶ 17).

44. Standard D & E accounts for 100% of second trimester abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶ 17).

45. Each year, Little Rock Family Planning Services provides approximately 3,000 abortions, of which approximately 600 or 20% occur during the second trimester (Dkt. No. 6,-¶ 16).

46. Standard D & E procedure has a long-established safety record in this county, with major complications occurring in less than 1% of standard D & E procedures (Dkt. No. 4,¶ 19).

47. Richard A. Wyatt, M.D., an expert for defendants, states that “[b]y the 14th week of pregnancy a living baby has a beating heart and moving limbs, and breathing motions have begun.” (Dkt. No. 25-4, ¶ 4). At this time, and on the record before it, this Court does not equate Dr. Wyatt’s use of “living baby” with viability, as the term viability has been used by courts in the abortion context. See Edwards v. Beck, 8 F.Supp.3d 1091 (E.D. Ark. 2014), aff'd 786 F.3d 1113 (8th Cir. 2015) (examining the term viability in both medical and legal contexts).

48. Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care at 18.0 to 21.6 weeks LMP, the law requires at least three trips to the clinic (Dkt. No. 6, ¶ 7).

49. Starting at 18.0 to 22.0 weeks, some physicians, including Dr.- Hopkins, undertake an additional procedure to try to cause fetal demise before the evacuation phase of a- D & E for most patients, meaning those for whom it is not contraindicated (Dkt. No. 5, ¶ 18).

50. Of the physicians who undertake an additional procedure after 18,0 to 22.0 weeks LMP, the vast majority of physicians inject the drug digoxin into the fetus if possible or, if not, then into, the amniotic *1039 fluid. Injecting digoxin into the amniotic fluid is technically easier, but it is less effective' (Dkt. No. 4, ¶ 21; Dkt. No. 5, ¶ 18).

51. The injections may be through the woman’s abdomen or vaginal wall. These injections generally use an 18- to 22-gauge spinal needle, passed under ultrasound guidance, through the patient’s abdomen, vaginal wall, or vagina and cervix, and then either into the amniotic fluid or the fetus (Dkt. No. 4, ¶ 21, 25; Dkt. No. 5, ¶ 18).

52. There are some women for whom an injection of digoxin may be difficult or impossible. For example, woman may be very obese; may have anatomical variations of the uterine and vaginal anatomy, such as fibroids or a long cervix; and may have fetal positioning that creates' issues. Physicians cited by all parties agree upon this (Dkt. No, 4, ¶27; Dkt No. 5, ¶25¾ Dkt. No. 25-4, ¶ 6; Dkt. No. 32-3, Biggio Cross, at 139; Dkt. No. 25-4, ¶ 6).'

53. These injections also can be dangerous for women with cardiac conditions such as arrhythmias (Dkt. No. 4, ¶27).

54. Even for women who tolerate injections, digoxin will not cause fetal demise in 5% to 10% of all cases in which it is used; physicians cited by all parties agree upon this (Dkt. No. 4, ¶28;- Dkt. No..5, ¶25b; Dkt. No. 32-3, Biggio Cross, at 142).

55. Doctors are not able to know in advance for which women digoxin injection will fail (Dkt. No. 5, ¶ 25c).

56. The failure rate is higher for intram-niotic injections of digoxin. Intramniotic injection would require a skill level similar to that required for amniocentesis. Intram-niotic injections are associated with higher complication rates than intrafetal injection (Dkt. No. 4, ¶ 25; Dkt. No. '32-1, ¶7).'

57., Intrafetal injections of digoxin are more difficult to perform and may be impossible to perform due to fetal position, uterine anatomy and other factors, espe-’ cially the; size of the fetus. The smaller, the fetus, the more difficult intrafetal injection will be. Intrafetal digoxin. injections require additional skill (Dkt. No. 4, ¶28; Dkt. No. 32-1, ¶ 7).

58. Digoxin works very slowly.' Doctors allow 24 hours after the injection for it to work. Even then, it does not always cause fetal demise (Dkt. No. 5j ¶ 18).

59. The transabdominal injection can be painful and emotionally difficult for the patient. The injection poses risks, including infection, which can threaten the patient’s health and future fertility,,and accidental absorption of the drug into the patient’s circulation, which can result' in toxicity and changes to the patient’s EKG (Dkt. No. 4, ¶ 25).

60. Like all medical procedures, the digoxin injection creates risks for the patient. Doctors who nse digoxin believe that practical concerns justify using it.- The main benefit of using digoxin in procedures after 18.0 to 22.0 weeks LMP is to establish compliance with the federal “partial-birth abortion ban” or similar state laws (Dkt. No. 4, IT 23; Dkt. No. 5, ¶ 19).

61. The federal “partial-birth abortion ban” has an intent requirement (Dkt. No. 4, ¶ 23). .

62. The American Congress of Obstetricians and Gynecologists (“ACOG”) concluded: “No evidence currently supports the use of induced fetal demise to increase the safety of second-trimester medical or surgical abortion.” This statement is consistent with the medical literature (Dkt. No. 4, ¶ 22; Am. Coll, of Obstetricians & Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics & Gynecology 1394, 1396, 1406 (2013)).

*1040 63. There is no record evidence of any physician attempting digoxin injections earlier than 18 weeks LMP. Physicians relied upon by both sides agree upon this (Dkt. No. 4, ¶ 26; Dkt. No. 32-3, Biggio Cross, at 143).

64. There are virtually no reported studies, and no studies of record, on using digoxin in the first weeks of the second trimester, when most second trimester abortions are performed. Without studies, doctors do not know the risks, complication rates, or effectiveness of such a procedure. Without this information, doctors cannot counsel patients on the effectiveness or safety of such a procedure (Dkt. No. 4, ¶ 26; Dkt. No. 32-1, ¶6, 9-10; Dkt. No. 32-3, Biggio Cross, at 143-44).

65. There are no reported studies of record on using a second injection of digoxin, or multiple, sequential injections of digoxin, after the first dose fails to bring about fetal demise. Physicians relied upon by both sides agree on this (Dkt. No. 4, ¶ 29; Dkt. No. 23-15, ¶ 6; Dkt. No. 32-3, Biggio Cross, at 142).

66. Using a second injection of digoxin would, at a minimum, delay the abortion procedure, require the patient to make another trip to the clinic, and increase the risk of uterine infection, extramural delivery, or digoxin toxicity (Dkt. No. 4, ¶ 29).

67. In Arkansas, the standard D & E protocol changes in two ways starting at 18.0 weeks LMP for almost all patients (Dkt. No. 5, ¶ 20).

68. First, in Arkansas, a woman at 18.0 weeks LMP receives overnight dilation. This means that the abortion procedure takes two days, rather than one (Dkt. No. 5, ¶ 20).

69. Second, in Arkansas, at the time a woman at 18.0 weeks LMP has placed in her cervix the osmotic dilators, which is the day before the intended evacuation, the woman also receives an injection of digoxin through the vaginal wall. That injection of digoxin is into the fetus or, if not, into the amniotic fluid. With either method of injection, the digoxin may not work effectively (Dkt. No. 5, ¶ 20).

70. The next day, in women 18.0 weeks or later LMP, if the digoxin has not caused fetal demise, Dr. Hopkins currently will take steps with his forceps, such as compressing fetal parts, to ensure fetal demise and to establish compliance with existing laws. These women would already be dilated and, therefore, at risk without care (Dkt. No. 5, ¶¶ 21, 25b).

71. Another substance, potassium chloride (KC1), will cause fetal demise if injected directly into the fetal heart, which is extremely small (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22).

72. Injecting potassium chloride has limitations based on gestational age and anatomy (Dkt. No. 25-4, ¶ 6),

73. The procedure of injecting potassium chloride is very rare, as it carries much more severe risks for the woman, including death if the doctor places the solution in the wrong place, and it requires extensive training generally available only to sub-specialists in high-risk obstetrics, known as maternal-fetal medicine (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. No. 23-15, ¶ 11; Dkt. No. 32-2, ¶3; Dkt. No. 32-3). 3

*1041 74. Injecting potassium chloride is usually done in a hospital, not a clinical, setting. The procedure requires an advanced ultrasound machine that is typically available only in a hospital setting and too expensive for most clinics to afford (Dkt. No. 4, ¶ 31; Dkt. No. 82-2, ¶ 3; Dkt. No. 32-8, Biggio Direct, at 111, Biggio Cross, at 140-41).

75. There are some women for whom injecting potassium chloride is not medically appropriate (Dkt. No. 4, ¶ 31).

76. Neither Dr. Hopkins nor to his knowledge any of the' physicians with whom he practices at Little rock Family Planning Services have the specialized training in the sub-specialty of high-risk obstetrics necessary to safely inject potassium chloride (Dkt. No. 5, ¶ 22).

77. Umbilical cord transection involves the physician rupturing the membranes, inserting a suction tube or other instrument such as forceps into the uterus, and grasping the cord, if possible, to divide it with gentle traction, which will cause demise over the course of up to 5 to 10 minutes (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 8).

78. The success and ease of this procedure depends on placement of the umbilical cord. If the umbilical cord is blocked by the fetus, it would be very difficult and very risky to attempt to reach it (Dkt. No. 4, ¶ 33).

79. Umbilical cord transection is not widely practiced or researched.(Dkt. No. 4, ¶32).

80. There has been only one scientific study on the use of cord transection to cause fetal demise; physicians relied upon by both sides agree on this (Dkt. No. 32-1, ¶ 11; Dkt. No. 32-3, Biggio Cross, at 146).

81. The one scientific study on the use of cord transection has limitations and does not support any conclusion about the safety of the procedure (Dkt. No. 32-1, ¶¶ 12-13).

82. Attempting umbilical cord transection before 16.0 weeks LMP is completely unstudied, and like injections, these procedures are more difficult to perform the éarlier in pregnancy a woman seeks care. Successfully identifying and transecting the cord at early gestations would take additional time and likely multiple passes with forceps (Dkt. No. 32-1, ¶¶ 14-15).

83. There are some women for whom umbilical cord transection is not medically appropriate; physicians relied upon by both parties agree on this (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 12).

84. Mark D. Nichols, M.D., an expert upon whom Dr. Hopkins relies, does not perform umbilical cord transection (Dkt. No. 4, ¶¶ 32-35; Dkt. No. 32-1, ¶¶ 11-15).

85. No physician to which either party cites would require cord transection in their respective practices (Dkt. No. 4, ¶ 34; Dkt. No. 5, 1125d; Dkt. No. 32-3, Biggio Cross, at 144).

86. Joseph R. Biggio, Jr., M.D., an expert upon whom defendants rely, admits that he would not require umbilical cord transection before every abortion because there is no medical benefit to doing so (Dkt. No. 32-2, at 144).

87. The longer a D & E takes and the more instrument passes into the woman’s uterus occur, the higher the risks of uterine perforation and other complications; physicians relied upon by both sides agree on this (Dkt. No. 4, ¶¶ 32-34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-1, ¶¶13, 15; Dkt. No. 23-15, ¶ 8; Dkt. No. 32-3, Biggio Cross, at 144-45; Dkt. No. 25-4, ¶ 6).

88. Delay can push a woman past the point in pregnancy at which she can re *1042 ceive a medication abortion, requiring a woman who prefers that method to.have a procedure with instrumentation that she would otherwise not have, Delay can push a woman from a first-trimester to a second-trimester procedure, or from a one-day to a two-day procedure in the second trimester. Delay can also push a woman past the point at which she can obtain an abortion at Little Rock Family Planning Services and in Arkansas (Dkt. No. 6, ¶ 13).

89. The risks associated with legal abortion utilizing current methods increase as pregnancy progresses, particularly if that delay pushes a woman from the first tri'mester to the second trimester. Studies demonstrate increased risks of-complications, such as bleeding and uterine perforation, associated with abortions perforhied later in pregnancy (Dkt. 'No. 4,' ¶ 10; see also Dkt, No. 25-4, ¶ 7).

90. Delay also means that a woman may pay more for the abortion procedure itself because the procedure becomes more complex as pregnancy advances (Dkt. No. 6, ¶ 14).

91. Doctors at Little Rock Family Planning Services request medical records for only a “tiny fraction” of patients or approximately 25 patients per year (Dkt. No. 6, ¶ 24).

92. The patients for whom doctors at Little Rock Family Planning Services request medical records include patients who have received a diagnosis of fetal anomaly, decided to end the pregnancy, and received a referral to Little Rock Family Planning Services and patients for whom the doctor believes the records could be useful because of a woman’s medical condition (Dkt. No. 6, ¶ 24).

93. For Little Rock Family Planning Services to obtain a patient’s medical records, the patient must first sign a form authorizing Little Rock Family Planning Services to obtain the medical records. That authorization is then sent along with a request to the health care provider. Little Rock Family Planning Services staff then follow-up with a phone call to the health care provider, if necessary (Dkt. No. 6, ¶ 25).

94. Because' Little Rock Family Planning Services typically requests records related to some aspect of the care the patient will receive, and therefore involve a specific request, not a request for the patient’s full medical history, there is no fee charged for the records (Dkt. No. 6, 1f 25).

95. Even with these specific requests for records, it takes time to obtain a patient’s medical records from another health care provider and may take a few hours or up to several weeks (Dkt. No. 6, ¶ 26).

’ 96. When making a request for a patient’s complete medical record, a fee usually is charged for obtaining the records (Dkt. No. 6, ¶ 33).

97. Little ■ Rock Family Planning Services is a well-known abortion provider. Any request for medical records made by Little Rock Family Planning Services, in and of itself, discloses that the patient likely is seeking an abortion. As a result, Little Rock Family Planning Services does not request records without a woman’s prior written consent, and some women specifically request that Little Rock Family Planning Services not seek records from another health care provider because the women do not want that provider to know of the pregnancy and abortion decision (Dkt. No. 6, ¶ 27).

98. Some women have informed Little Rock Family Planning Services that the women fear hostility or harassment from the other health care providers for deciding to seek an abortion (Dkt. No. 6, ¶ 28).

*1043 99. A few years ago, Little Rock Family Planning Services requested a woman’s medical records from another.health care provider and that provider’s wife then reached out to the woman in an effort to dissuade her from having an abortion (Dkt. No. 6,¶28).

100. Little Rock Family Planning Services provides medical care to approximately 3,000 women each year, the majority of whom have had one or more prior pregnancies, during which the women received medical care from one or more providers or received care for a current pregnancy (Dkt. No, 6, ¶ 32).

101. Under Arkansas law, a woman under the age of 18 must obtain the consent of one parent prior to obtaining an abortion or, alternatively, can seek a judicial bypass (Dkt. No. 6, ¶36). See Ark. Code Ann. § 20-16-804 .

102. In 2016, Little Rock Family Planning Services provided abortions to five minors under the age of 14, all five of whom had parental consent, and 69 minors under the age of 17, all of whom except one had parental consent with the one exception having received a judicial bypass (Dkt. No. 6, ¶ 36).

103. The numbers from 2016 are typical for Little Rock Family Planning Services in that the majority of women under the age of 17 have obtained a parent’s consent to seek medical care at Little Rock .Family Planning Services (Dkt. No. 6, ¶ 36).

104. A few minor patients of Little Rock Family Planning Services are married, and those patients’ husbands may or may not be involved in the patients’ decisions to have an abortion (Dkt. No. 6, ¶ 37).

105. Under the Child Maltreatment Act, Little Rock Family Planning Services reports suspected abuse to the Arkansas State Police’s Child Abuse Hotline (Dkt. No. 6, ¶ 38). See Ark. Code Ann. § 12-18-402 (providing that mandated reporters “shall immediately notify the Child Abuse Hotline” if they have reasonable cause to suspect child abuse, and listing reproductive healthcare facility employees and volunteers as mandatory reporters).

106. Under Arkansas law, for women who are 13 years old or younger, Little Rock Family Planning Services' must preserve tissue and have local law enforcement in the jurisdiction in which the minor resides pick it up. Ark. Code.Ann. § 12-18-108(a). Little Rock Family Planning Services sends a form to local law enforcement with information identifying the patient to alert local law enforcement to come pick up the tissue (Dkt. No. 6, ¶ 40); Ark. Code Ann. § 12r18-108(b)(5).

107. Compliance with this law requires, on occasion, Little Rock Family Planning Services to speak by telephone with local law enforcement and local law enforcement’s obligation to comply with the law (Dkt. No. 6, ¶ 41).

108. Local law enforcement do not reliably comply with existing law by picking up the preserved tissue for patients who are 13 or younger ((Dkt. No. 6, ¶41).

109. Local law enforcement can be very small, with as few as two officers, and operate in small communities (Dkt. No. 6, ¶ 45).

110. On occasion, when a Little Rock Family Planning Services representative has spoken to local law enforcement about the existing law, personnel lecture the Little Rock Family Planning Services and “preach[ ] anti-abortion rhetoric, including telling [the representative] that the Clinic is taking a life.” (Dkt. No. 6, ¶ 43).

111. Little Rock Family Planning Services, as a part of its routine .counseling, discusses .with the woman the age of her sexual partner (Dkt..No. 6, ¶ 38).

*1044 112. In general, when a crime has already been reported, law enforcement are involved before the minor visits Little Rock Family Planning Services, and law enforcement call Little Rock Family Planning Services before the minor patient arrives. When an investigation is involved, Little Rock Family Planning Services preserves tissue for law enforcement (Dkt. No. 6, ¶ 39).

113. For patients who are 13 or younger and reside out of state, Little Rock Family Planning Services makes the same efforts to contact the local police department where the minor resides (Dkt. No. 6, ¶ 42).

114. Unlike the State Child Abuse Hotline, which is associated with a unit whose staff have specialized training in child maltreatment and handling these complicated issues, local law enforcement does not have the same kind of specialized unit or training (Dkt. No. 6, ¶ 43).

115. Under an Arkansas law enacted in 2015, Little Rock Family Planning Services obtains each patient’s consent in writing to having the embryonic or fetal tissue from her abortion disposed of within 48 hours (Dkt. No. 6, ¶ 50); See Ark. Code Ann. § 20-17-801 (b).

116. Currently, Little Rock Family Planning Services contracts with a vendor that transports tissue generated at the Clinic out of Arkansas to be disposed of by incineration (Dkt. No. 6, ¶ 49).

117. Currently, a few patients of Little Rock Family Planning Services each year wish to have their tissue cremated and make those arrangements themselves (Dkt. No. 6, ¶ 49).

118. Currently, Little Rock Family Planning Services sends the pregnancy tissue of a few patients to pathology. This may be done when a physician suspects a molar pregnancy or an abnormal growth of fetal tissue that can become a tumor or when the patient received a diagnosed fetal anomaly (Dkt. No. 6, ¶ 53).

119. In a medication abortion, the patient passes the pregnancy tissue at home over a period of hours or days, but she collects and disposes of it as she would during menstruation (Dkt. No. 6, ¶ 52).

120. The record includes affidavits from individual women who describe mental distress resulting from their individual choices to have abortions and an affidavit from one abortion counselor who claims to have witnessed these reactions in other women with whom she has interacted in a post-abortion support group setting (Dkt. No. 25-12; Dkt. No. 25-14; Dkt. No. 25-15; Dkt. No. 25-16).

121. The American Psychiatric Association rejected the notion that abortion causes mental distress (Dkt. No. 32-1, ¶ 16).

122. Individual patients may experience a full range of emotional and psychological responses to having an abortion, but well-designed and rigorous research concludes that there is no evidence that abortion causes mental health problems (Dkt. No. 32-1, ¶¶ 16-18).

123. In Arkansas, 3,771 abortions were performed in 2015 (Dkt. No. 5, Ex. B). Of those, 581 were medication abortion and 3,190 were not. Of the 3,771 total abortions in 2015 in Arkansas, 528 were obtained by married women, and 3,234 were obtained by not married women (Id.). Nine individuals reported “unknown” when asked marital status (Id.). Of the 3,771 total abortions in 2015 in Arkansas, 141 were obtained by individuals below the age of 18 (Id.).

II. Threshold Matters

Defendants filed a motion to dismiss, which first became ripe on July 25, 2017 (Dkt. Nos. 21, 33). In that motion, defen *1045 dants raise several threshold matters upon which this Court must rulé before turning to the merits of this case. The Court must satisfy itself that the parties and these disputes are properly before the Court.

A. Article III Standing

Defendants first contend that Dr. Hopkins purportedly lacks standing to assert challenges to these Acts and that, therefore, the Court should dismiss this action. “Article III, § 2, of the Constitution restricts the federal ‘judicial [p]ower’ to the resolution of ‘Cases’ and ‘Controversies.’ ” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273 , 128 S.Ct. 2531 , 171 L.Ed.2d 424 (2008). Dr. Hopkins has the burden of establishing that he has standing. Id. To demonstrate “Article III” standing, a plaintiff must demonstrate:

(1) [A]n injury in fact (ie., a “concrete and particularized” invasion of a “legally protected interest”); (2) causation (ie.-, ’a “ ‘fairly ... trace[able]’ ” connection be- ■ tween the alleged injury' in fact and the alleged conduct of the defendant); and (3) redressability (ie., it is “ ‘likely1 ” and not “merely ‘speculative’ ” that the plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit).

Id. at 273-74 , 128 S.Ct. 2531 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992)).

In addition to the three “irreducible constitutional minimum” requirements of Article III standing, Lujan, 504 U.S. at 560 , 112 S.Ct. 2130 , courts weigh other “prudential” considerations in determining whether plaintiffs have standing. United States v. Windsor, 570 U.S. 744 , 133 S.Ct. 2675, 2685 , 186 L.Ed.2d 808 (2013) (explaining the distinction between “the jurisdictional requirements of Article III and the prudential limits on its exercise”).

Dr. Hopkins is identified in the complaint as “an experienced, highly credentialed and board-certified obstetrician-gynecologist, and an abortion provider at Little Rock Family Planning Services, the only provider of outpatient, second-trimester abortion care in Arkansas.” (Dkt. No. 1, at 4, ¶ 13). Dr. Hopkins claims that the statutes he challenges “threaten [him] with criminal penalties and deny and burden [his] patients’ constitutionally protected rights to decide to end a pre-viability pregnancy, to make independent decisions related to their pregnancy care, and to protect their private medical information.” (Dkt. No. 1, at 3, ¶ 9). He seeks declaratory and injunctive relief “[t]o protect his patients from these constitutional violations, to enforce his own right to clear legal standards, and to avoid irreparable harm....” (Dkt. No. 1, at 3, ¶ 9).

In their filings, defendants make several arguments challenging standing in this case. As an initial matter, the United States Supreme Court held in Doe v. Bolton, 410 U.S. 179, 188 , 93 S.Ct. 739 , 35 L.Ed.2d 201 (1973), that abortion doctors have first-party standing to challenge laws limiting abortion when, as in Doe and the current case, the doctors are subject to penalties for violation of the laws. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 903-04, 909 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992) (plurality opinion); Planned Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908, 911 (7th Cir. 2015); Planned Parenthood of Greater Tex. Surg. Health Serv. v. Abbott II, 748 F.3d 583, 598 (5th Cir. 2014) (“Abbott II”); Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 794 (7th Cir. 2013); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62 , 96 S.Ct. 2831 , 49 L.Ed.2d 788 (1976). Here, Dr. Hopkins faces criminal penalties under the D & E Mandate, the Medical *1046 Records Mandate, and the Tissue Disposal Mandate. Further,, he.faces licensing penalties under the Medical Records Mandate and the Local Disclosure Mandate, along with licensing penalties for alleged unprofessional conduct that includes criminal conviction under statutes such as the D & E Mandate, the Medical Records Mandate, and the Tissue Disposal Mandate. Defendants assert that Dr, Hopkins alleges that the .Mandates violate -hip personal due process rights. Defendants maintain that Dr. Hopkins lacks standing to , assert these claims, because Dr. Hopkins cannot establish an “injury in fact,” meaning “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 , 99 S.Ct. 2301 , 60 L.Ed.2d 895 (1979). Defendants concede that courts have held, in some circumstances, that a party need not expose himself to arrest or prosecution in order to challenge a criminal statute but that, even there, there must be “a credible threat of prosecution” before a plaintiff has standing to challenge the provision. Babbitt, 442 U.S. at 298 , 99 S.Ct. 2301 .

This Court has rejected nearly identical arguments that the injury was “speculative and conjectural” because- the challenged abortion law had not yet been enforced against the plaintiff physician, including by licensure action. See Edwards v. Beck, 8 F.Supp.3d 1091 (E.D. Ark. 2014), aff'd 786 F.3d 1113 (8th Cir. 2015). The law is well-settled that a plaintiff need not “first expose himself to actual.... prosecution to be entitled to challenge a statute that he claims deters-the exercise of his-constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974). Courts have concurred even in the, abortion context. See, e.g., Danforth, 428 U.S. at 62 , 96 S.Ct. 2831 ; Doe v. Bolton, 410 U.S. at 188 , 93 S.Ct. 739 . Here, Dr. Hopkins’s declaration demonstrates the .impact and threat of these Mandates (Dkt. No. 5, ¶¶ 23-62).

The Court disagrees with defendants’ argument that Clapper v. Amnesty International, 568 U.S. 398 , 133 S.Ct. 1138 , 185 L.Ed.2d 264 (2013), overruled this precedent. In Clapper , the Court determined plaintiffs, who were not directly targeted by the challenged law, relied upon a “highly attenuated chain of possibilities” and harm too speculative to satisfy the Article III injury requirement. Id. at 1144-48. The facts presented here are distinguishable, and Clapper does not control. The Court concludes that, based on controlling precedent and the claims alleged, Dr. Hopkins faces concrete, imminent injuries from enforcement of the challenged Mandates.

Defendants also contend that Dr. Hopkins cannot assert the third-party rights of his hypothetical future patients. They maintain that Dr. Hopkins cannot demonstrate a “close relation” with abortion patients because he is challenging laws that were enacted to protect the .health and safety of those patients. Defendants claim that this presents a conflict of interest between providers and patients, and third-party standing is forbidden if the interests of the litigant and the third-party rights-holder are even “potentially in conflict.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 , 124 S.Ct. 2301 , 159 L.Ed.2d 98 (2004); see also Kowalski v. Tesmer, 543 U.S. 125, 135 , 125 S.Ct. 564 , 160 L.Ed.2d 519 (2004) (Thomas, J., concurring) (noting that third-party standing is disallowed when the litigants “may have very different interests from the individuals whose rights they are raising”); Canfield Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748 (5th Cir. 1988) (“[C]ourts must be sure... that the litigant-and the person whose rights he asserts have interests which- are aligned.”).

*1047 The United States Supreme Court in a plurality opinion in Singleton v. Wulff, 428 U.S. 106 , 96 S.Ct. 2868 , 49 L.Ed.2d 826 (1976), concluded that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision,” Id. at 118 , 96 S.Ct. 2868 . Other courts also have rejected this argument. See Abbott II, 748 F.3d at 589 n.9. See also Whole Woman’s Health v. Hellerstedt, — U.S. -, 136 S.Ct. 2292 , 195 L.Ed.2d 665 (2016) (adjudicating physicians’ and clinics’ 42 U.S.C. § 1983 action against abortion restrictions on behalf of themselves and their patients).

Defendants’ claim regarding a purported conflict of interest could be made with respect to any abortion regulation that purports to advance’ a valid state interest, but courts have repeatedly allowed abortion providers to challenge such laws, determining that the providers’ and women’s interests are aligned and not adverse. See, e.g., Bellotti v. Baird, 443 U.S. 622 , 627 n.5, 99 S.Ct. 3035 , 61 L.Ed.2d 797 (1979) (holding that a physician plaintiff had standing to raise his minor patients’ claims to determine whether a parental consent law should be upheld to protect the alleged vulnerability of minors); Charles v. Carey, 627 F.2d 772 , 779 n.10 (7th Cir. 1980) (rejecting , the state’s claim of conflict of interest in a challenge to a counseling law designed to “protect women from abusive medical practices”). This has not defeated a providers’ standing to challenge contraception .restrictions. See Carey v. Population Servs. Int'l, 431 U.S. 678, 683-84, 690 , 97 S.Ct. 2010 , 52 L.Ed.2d 675 (1977) (granting third-party standing where the government defended a contraception restriction based on its interest in protecting health); Eisenstadt v. Baird, 405 U.S. 438, 445-46, 450 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972) (allowing a plaintiff to raise the rights of others seeking contraception where the government defended a restriction as “regulating the distribution of potentially harmful articles”).

B. Considerations Under 42 U.S.C. § 1983

Defendants also contend that, even if Dr. Hopkins could , avoid these alleged limits on third-party litigation, he still cannot assert third-party rights under 42 U.S.C. § 1983 because, defendants claim, § 1983 extends only to litigants who assert their own rights. Based on this, defendants contend the third-party claims may proceed only under the implied right of action established by the Supremacy Clause, and the claims cannot serve as a basis for attorneys’ fees. See Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 734, 739-40 (5th Cir. 2007); Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 333 (5th Cir. 2005).

There is no language in the statute that supports this argument. See 42 U.S.C. § 1983 (providing in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....”). This Court agrees with the reasoning of the Seventh Circuit Court of Appeals on this point and rejects defendants’ argument regarding standing under § 1983. See Van Hollen, 738 F.3d at 794 95. The Supreme Court has repeatedly allowed abortion providers to raise the rights of their patients in cases brought under § 1983, and this Court will do the same. See e.g., Whole Woman’s Health, 136 S.Ct. *1048 2292 ; Gonzales, 550 U.S. 124 , 127 S.Ct. 1610 ; Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 , 324-25, 126 S.Ct. 961 , 163 L.Ed.2d 812 (2006) (noting that plaintiffs raised patients’ claims in suit under 42 U.S.C. § 1983 ); Bellotti v. Baird, 428 U.S. 132, 136 , 96 S.Ct. 2857 , 49 L.Ed.2d 844 (1976) (same).

C. The Mandates’ Private Rights of Action

Defendants also contend that Dr. Hopkins lacks standing to challenge the Mandates’ private rights of action “because any injury to [Dr.] Hopkins is not ‘fairly traceable’ to the defendants.” (Dkt. No. 22, at 13). Defendants maintain that they possess no authority to enforce the complained-of provisions and, therefore, cannot be sued by Dr. Hopkins in a pre-enforcement challenge to the constitutionality of the particular statutory provisions, citing among other cases Digital Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957-58 (8th Cir. 2015) (Dkt. No. 22, at 13). Defendants further argue that “none of the Acts empower any of the defendants to bring a private right of action for damages against an abortion provider, nor do the defendants have authority to otherwise enforce those provisions. Instead, just like the act at issue in Hutchinson , the challenged provisions of the Acts here provide for enforcement through private actions for damages. Defendants are therefore not the proper parties to sue when claiming that such provisions are unconstitutional.” (Dkt. No. 23, at 22-23).

Dr. Hopkins asserts that, “while it is true that two of the challenged laws — H.B. 1032’s D & E Ban and H.B. 1434’s Medical Records Mandate — create such private rights of action, each of the four laws provides for criminal prosecution and/or civil licensing enforcement by defendants .... There is thus no relevance to defendants’ claim that they are ‘immune from suit challenging the constitutionality of an act when it provided for enforcement only th[r]ough private actions for damages,’ and that in such a suit, ‘a federal court lacks jurisdiction to declare it unconstitutional or to provide any other relief.’ ” (Dkt. No. 32, at 12). See, e.g., Casey, 505 U.S. at 887-88 , 112 S.Ct. 2791 (noting, as to spousal notification law the Court struck down, that “[a] physician who performs an abortion” for a married woman without spousal notice “will have his or her license revoked, and is liable to the husband for damages”). The private rights of action present in the D & E Mandate and the Local Disclosure Mandate do not deprive this Court of jurisdiction to address the constitutionality of the laws.

D. Sovereign Immunity Under The Eleventh Amendment

Dr. Hopkins seeks declaratory and injunctive relief. Defendants move to dismiss all of his claims under the Eleventh Amendment (Dkt. No. 22, at 18). “The Eleventh Amendment confirms the sovereign status of the States by shielding them from suits by individuals absent their consent.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 , 124 S.Ct. 899 , 157 L.Ed.2d 855 (2004) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996)). However, “[t]o ensure the enforcement of federal law ... the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Id. (emphasis added) (citing Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908)). “A state official is amenable to suit to enjoin the enforcement of an unconstitutional state statute only if the officer has ‘some connection with the enforcement of the act.’ ” Digital Recognition Network, 803 F.3d at 960 (citing Ex Parte Young, 209 U.S. at 157 , 28 S.Ct. 441 ).

*1049 To determine whether an action against state officials in their official capacities avoids an Eleventh Amendment bar to suit, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 5 35 U.S. 635 , 645, 122 S.Ct. 1753 , 152 L.Ed.2d 871 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 , 117 S.Ct. 2028 , 138 L.Ed.2d 438 (1997) (O’Connor, J., concurring). In this case, Dr. Hopkins seek declaratory relief declaring the Mandates as unconstitutional “[t]o protect his patients from these constitutional violations, to' enforce his own right to clear legal standards, and to avoid irreparable harm....” (Dkt. No. 1, at 3, ¶ 9). In his complaint, Dr. Hopkins also seeks preliminary and permanent injunctive relief that would enjoin the enforcement of these Mandates. Dr. Hopkins’s prayer for relief “clearly satisfies [the Court’s] ‘straightforward inquiry.’” Verizon Maryland, Inc., 535 U.S. at 645 , 122 S.Ct. 1753 .

Furthermore, defendants, who are sued in their official capacities, are amenable to suit in this action. Dr. Hopkins alleges, and defendants do not dispute, that:

14. Defendant Larry Jegley is the Prosecuting Attorney for Pulaski County, located at 224 South Spring Street, Little Rock, Arkansas. Prosecuting attorneys “shall commence and prosecute all criminal actions in which thé state or any county in his district may be concerned.” Ark. Code Ann. § • 16-21-103. Defendant Jegley is responsible for criminal enforcement of H.B. 1032, H.B. 1566, and H.B. 1343. He and his agents and successors are sued in their official capacities.

15. Defendant Steven L. Cathey, M.D., is the Chair of the Arkansas State Medical Board. Defendants Robert Breving, Jr., M.D.; Bob Cogburn, J.D.; William F. Dudding, M.D.; Omar T. Atiq, M.D.; Veryl D. Hodges, D.O.; Marie Holder, Larry D, Lovell; William L. Rutledge, M.D.; John H. Scribner, - M.D.; Sylvia D. Simon, M.D.; David L. Staggs, M.D.; and John B. Weiss, M.D., are members of the Arkansas State Medical Board. The State Medical Board is responsible for licensing medical professionals under Arkansas law. Ark. Code Ann. § 17-95-410 . The Board and its members are responsible for imposing licensing penalties under H.B. 1434 and H.B. 2024 and imposing licensing penalties for unprofessional conduct, which includes criminal conviction under statutes such as H.B. 1032, H.B. 1566, and H.B. 1434. Ark. Code Ann. §§ 75-95-409 (a)(2)(A), (D). Defendants and their successors in office are sued in their official capacity.

(Dkt. No. 1, at 4-5, ¶¶ 14, 15). Therefore, defendants can be sued for prospective injunctive and declaratory relief in this action, as they have “‘some connection with the enforcement of the act.’ ” Digital Recognition Network, Inc., 803 F.3d at 960 (citing Ex Parte Young, 209 U.S. at 157 , 28 S.Ct 441 ).

III. Facial Versus As-Applied Challenges

Dr. Hopkins brings both facial and as-applied challenges to certain of these Mandates. In regard to facial challenges in general, the majority of courts have adopted a definition of facial challenges as those seeking to have a statute declared unconstitutional in all possible applications. See, e.g., Sabri v. United States, 541 U.S. 600, 609 , 124 S.Ct. 1941 , 158 L.Ed.2d 891 (2004); United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987); Steffel, 415 U.S. at *1050 474 , 94 S.Ct. 1209 . As-applied challenges are construed as an argument that the statute is -unconstitutional as applied to precise plaintiffs. “Each holding carries an important difference in terms of outcome: If a statute is unconstitutional as applied, the State may continue to enforce the statute, in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Se e Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 , 193-94 (6th Cir. 1997), cert. denied, 523 U.S. 1036 , 118 S.Ct. 1347 , 140 L.Ed.2d 496 (1998).

The Supreme Court has made clear that as-applied challenges are preferred. See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 448-451, 128 S.Ct. 1184 , 170 L.Ed.2d 161 (2008) (discussing the' preference for ás-applied challenges as opposed to facial challenges). In Salerno, the Supreme Court stated that a “facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully” and-will only succeed if a litigant can “establish that no set of circumstances exists under which the Act would be valid.” 481 U.S. at 745 , 107 S.Ct. 2095 .

The standard that controls a facial challenge to an abortion statute is somewhat different than that applicable to facial challenges in general. The Eighth Circuit Court of Appeals has recognized that facial challenges to abortion statutes can succeed only if a plaintiff can show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice.to undergo an abortion.” Casey, 505 U.S. at 895 , 112 S.Ct. 2791 . See also Planned Parenthood Minn., N.D., S.D. v. Rounds, 653 F.3d 662, 667-68 (8th Cir. 2011), vacated in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 662 F.3d 1072 (8th Cir. 2011) and in part on reh’g en banc sub nom. Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir. 2012); see also Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 , 733 n.8 (8th Cir. 2008) (“Rounds cases”). In Whole Woman’s Health, the Supreme Court clarified that “cases- in which the provision at issue is relevant” is a narrower category than “all women,” “pregnant women,” or even- “women seeking abortions identified by the State,” 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 895-95 , 112 S.Ct. 2791 ). To sustain a facial challenge and grant a preliminary injunction, this Court must find that the challenged Mandate is an undue burden for a large fraction of women “for whom the provision is an actual rather than an irrelevant restriction.” See id. (discussing this as the “relevant denominator”).

The Eighth Circuit Court of Appeals recognizes that “the ‘large fraction’ standard is in some ways ‘more conceptual than mathematical,’ ” but this Court is required by controlling precedent to conduct this fact finding “to determine whether that number constitutes a ‘large fraction.’ ” Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, No. 16-2234, 864 F.3d 953, 960 , 2017 WL 3197613, *5 (8th Cir. July 28, 2017) (citing Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361 , 374 (6th Cir. 2006)).

To,the extent defendants argue that a different legal standard should apply to facial challenges to abortion statutes, the Court rejects the argument. The Eighth Circuit’s decisions control this Court’s decisions, and the Eighth Circuit has applied this same standard to a facial challenge to an abortion statute since the decision in Gonzales, 550 U.S. at 168 , 127 S.Ct. 1610 . See Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, No. 16-2234, *1051 864 F.3d 953, 960 , 2017 WL 3197613, *5 (8th Cir. July 28, 2017).

“Traditionally, a plaintiffs burden in an as-applied challenge is different’ from that in a facial challenge. In an as-applied challenge, ‘the plaintiff contends that application of the statute in the particular context in'which he-has acted, or in which he proposes to act, would be unconstitutional.’ ” Voinovich, 130 F.3d at 193-94 (quoting Ada v. Guam Soc’y of Obstetricians and Gynecologists, 506 U.S. 1011 , 1012, 113 S.Ct. 633 , 121 L.Ed.2d 564 (1992) (Sca-lia, J., dissenting), denying cert. to 962 F.2d 1366 (9th Cir. 1992)). “Therefore, the constitutional inquiry in an as-applied challenge is limited to the plaintiffs particular situation.” Voinovich, 130 F.3d at 193-94.

IY. Requests For Preliminary Injunctions

The Court turns to examine the factors set forth in Dataphase Systems, Inc. v. C L Systems, Inc., as applied to Dr. Hopkins’s requests for preliminary injunc-tive relief. 640 F.2d 109 (8th Cir. 1981). In deciding a preliminary injunction motion, the Court considers four factors: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the balance of the equities; and (4) the public interest, Grasso Enterprises, LLC v. Express Scripts, Inc., 809 F.3d 1033 , 1035 n.2 (8th Cir. 2016) (citing Dataphase, 640 F.2d at 114 ). Under Dataphase, no one factor is determinative. Id. at 113 .

The Eighth Circuit modifies the Dataphase test when applied to challenges to laws passed through the democratic process. Those laws are entitled to a “higher degree of deference.” Rounds, 530 F.3d at 732 . In such cases, it is never sufficient for the moving party to establish that there is a “fair chance” of success. Instead, the appropriate standard, and threshold showing that must be made by the movant, is “likely to prevail on the merits,” Id. Only if the movant has demonstrated that it is likely to prevail on the merits should the Court consider the remaining factors. Id. The Court will examine Dr. Hopkins’s argument with respect to each of the four challenged laws.

A. The D & E Mandate (Count 1 Based On H.B. 1032, Act 45)

The Court examines whether it should preliminarily enjoin enforcement of the D & E Mandate, which imposes civil liability and a criminal penalty on physicians who “purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless it is necessary to prevent a serious health risk to the pregnant woman,” Ark. Code Ann. § 20-16-1803 (a). Dr, Hopkins seeks a preliminary injunction based , on count one of his complaint, which alleges that the D & E Mandate violates the Due Process Clause of the United States Constitution by placing an undue burden on Dr. Hopkins’s patients’ rights to liberty and privacy. This is a facial challenge.

Under the D & E Mandate, “purposely” is defined as acting “with purpose with respect to a material element of an offense” when, “[i]f the element involves the nature of the conduct of the actor or a result of the conduct of the actor, it is the conscious object of the actor to engage in conduct of that nature or cause such a result,” and “[i]f the element involves the attendant circumstances, the actor is aware of the existence of such circumstances.” Ark. Code Ann. § 20-16-1802 (5).

“Attempt to perform or induce an abortion” is defined as “an act or omission of a statutorily required act, that under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in *1052 the performance or induction of an abortion in this state in violation of this sub-chapter .... ” Ark. Code Ann. § 20-16-1802 (2).

“Dismemberment abortion” is defined as “an abortion performed with the purpose of causing the death of an unborn child that purposely dismembers the living unborn child and extracts one (1) piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two (2) rigid levers, slice, crush, or grasp a portion of the body of the unborn child to cut or tear off a portion of the body of the unborn child.” Ark. Code Ann. § 20-16-1802 (3)(A)(i). It includes “an abortion in which suction is used to extract the body of the unborn child subsequent to the dismemberment of the unborn child....” Ark. Code Ann. §20-16-1802 (3)(A)(ii). It does not include “an abortion that uses suction to dismember the body parts of the unborn child into a collection container.” Ark. Code Ann. § 20-16-1802 (3)(B).

“Unborn child” is defined by the Arkansas legislature as “an individual organism of the species Homo sapiens from fertilization until live birth...-. ” Ark. Code Ann. § 20-16-1802 (7).

“Woman” is defined as “a female human being whether or not she has reached the age of majority.” Ark. Code Ann. § 20-16-1802 (8). “Serious health risk to the pregnant woman” is defined as “a condition that, in a reasonable medical judgment, complicates the medical condition of a pregnant woman to such an extent that the abortion of a pregnancy is necessary to avert, either the death of the pregnant woman or the serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” Ark. Code Ann. § 20-16-1802 (6)(A). It does not include a psychological or emotional condition or “a medical diagnosis that is based on a claim of the pregnant woman or on a presumption that the pregnant woman will engage in conduct that could result in her death or that could cause substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” Ark. Code Ann. § 20-16-1802 (7)(B)(i)-(ii).

If a physician violates the D & E Mandate, the law imposes civil liability, Ark. Code Ann. § 20-16-1804 , as well as the criminal penalties of a Class D felony under Arkansas law, Ark. Code Ann. § 20-16-1805 .

Dr. Hopkins asserts that, if the D & E Mandate goes into effect, he will stop performing standard D & E abortions altogether due to ethical and legal concerns regarding compliance with the law, thereby rendering abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP. The most common method of second trimester abortion is a method with instrumentation called standard D & E. This involves two steps: dilating the cervix, and then evacuating the uterus with instruments such as forceps. There are several ways to dilate the cervix (Dkt. No. 4, ¶ 17; Dkt. No. 5, ¶ 13).

Typically, during the early weeks of the second trimester of pregnancy, a doctor performing standard D & E uses a combination of medications that open the cervix and manual dilators; then, the same day, the doctor uses forceps to remove the fetus and other contents of the uterus. Because the fetus is larger than the opening of the cervix, the fetal tissue generally comes apart as the physician removes it through the cervix. The reason that the cervical opening is smaller than the fetal parts is that, in general, the doctor dilates only enough to allow the safe passage of instruments and fetal tissue through the cervix (Dkt. No. 4, ¶ 17-18; Dkt. No. 5, ¶ 14). In *1053 Arkansas and elsewhere, standard D & E typically is a one-day procedure from 14.0 to 17.6 weeks LMP (Dkt. No. 5, ¶ 15; Dkt. No. 6, ¶ 17). Due to Arkansas’s state mandated counseling laws, this means that generally a woman would be required to make two trips to the clinic for abortion care from 14.0 to 17.6 weeks LMP.

Later in the second trimester, larger instruments require wider cervical dilation. Although some physicians continue to provide standard D & E as a' one-day procedure, starting at 18.0 to 20.0 weeks LMP, it is typical for doctors to add overnight osmotic dilation to the standard D & E protocol. In Arkansas, the standard D & E protocol changes in two ways starting at 18.0 weeks LMP for almost all patients (Dkt. No. 5, ¶20). First, in Arkansas, a woman at 18.0 weeks LMP receives overnight dilation. This means that the abortion procedure takes two days, rather than one (Dkt. No. 5, ¶ 20). Second, in Arkansas, at the time a woman at 18.0 weeks LMP has placed in her cervix the osmotic dilators, which is the day before the intended evacuation, the woman also receives an injection of digoxin through the vaginal wall. That injection of digoxin is into the fetus or, if not, into the amniotic fluid. With either method of injection, the digoxin may not work effectively (Dkt. No. 5, ¶ 20). The next day, in women 18.0 weeks or later LMP, if the digoxin has not caused fetal demise, Dr. Hopkins currently will take steps with his forceps, such as compressing fetal parts, to ensure fetal demise and to establish compliance with existing laws (Dkt. No. 5, ¶ 21).

Osmotic dilators are thin sticks of material that swell when they absorb moisture; when placed in a woman’s cervix, they absorb moisture from the woman’s body, expand slowly, and slowly dilate the cervix. Once dilation is sufficient, typically the next day, the doctor proceeds as in earlier standard D & Es, removing the fetus, generally in pieces because it is larger than the cervical opening (Dkt; No. 4, ¶ 17; Dkt. No. 5, ¶ 16). For patients of Little Rock Family Planning Services, they are required to spend that overnight within 30 minutes of the clinic so that the doctor is available in the rare instance in which a patient has any problem (Dkt. No. 6, ¶ 18).

Given the requirements of Arkansas law regarding mandated state counseling, for patients receiving abortion care at 18.0 to 21.6 weeks LMP, the law requires at least three' trips to the clinic (Dkt. No. 6, ¶ 7). Starting at 18.0 to 22.0 weeks LMP, some physicians, including Dr. Hopkins, undertake an additional procedure to try to cause fetal demise before the evacuation phase of a D & E for most patients, meaning those for whom it is not contraindicated (Dkt. No. 5, ¶ 18).

Through the second trimester, standard D & E is a safe way to provide abortion in an outpatient setting, such as a family planning clinic (Dkt. No. 5, ¶ 17). The standard D & E procedure has a long-established safety record in this county, with major complications occurring in less than 1% of standard D & E procedures (Dkt. No. 4, ¶ 19).

1. Likelihood Of Success On The Merits

To determine whether Dr. Hopkins is likely to succeed on his challenge to the D & E Mandate, this Court applies the undue burden standard. “A statute, which, while furthering [a] valid state interest, has the effect of placing a substantiál obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S.Ct. at 2309 (quoting Casey, 505 U.S. at 877 , 112 S.Ct. 2791 (plurality opinion)). Abortion regulations that “have the purpose or effect of presenting a substantial obstacle to a worn- *1054 an seeking an abortion impose an undue burden on the right.” Id. (quoting Casey, 505 U.S. at 878 , 112 S.Ct. 2791 (plurality opinion)).

a. Applicable Law

Federal constitutional protection of reproductive rights is based on the liberty interest derived from the due process clause of the Fourteenth Amendment. Casey, 505 U.S. at 846 , 112 S.Ct. 2791 (majority opinion). Dr. Hopkins challenges the D & E Mandate on this basis. The United States Supreme Court, when recognizing this right, stated:

We forthwith acknowledge our awareness of the sensitive and emotional.nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, .one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks, to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Roe v. Wade, 410 U.S. 113, 116 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973).

Dr. Hopkins argues that, as a matter of Supreme Court precedent, defendants “cannot criminalize the performance of the most common method of abortion (and. indeed the only method in Arkansas) in the second-trimester, pre-viability stage of pregnancy. See Stenberg v. Carhart, 530 U.S. 914, 945-46 , 120 S.Ct. 2597 , 147 L.Ed.2d 743 (2000); accord Gonzales, 550 U.S. at 150 , 127 S.Ct. 1610 ; Danforth, 428 U.S. at 77-79 , 96 S.Ct. 2831 .” (Dkt. No. 32, at 28). Dr. Hopkins further asserts that, “[t]his is exactly what the D & E Ban does, and it is unconstitutional... Decades of settled law holds that it is per se unconstitutional for the State to criminalize ‘the ... dominant second-trimester abortion method.’ Gonzales, 550 U.S. at 165 , 127 S.Ct. 1610 ; see also id. at 150-54 , 127 S.Ct. 1610 ; Danforth, 428 U.S. at 77-79 , 96 S.Ct. 2831 .” (Dkt. No. 32, at 28). Defendants do not respond to this argument. The Court acknowledges this argument but concludes that, given the circumstances before it in this matter, an undue burden, analysis of the D & E Mandate is warranted. . -

Unless and until Roe is overruled by the United States Supreme Court, to determine whether a state statute is unconstitutional and violates substantive due process rights in this context, the Court applies the “undue burden” standard developed in Casey, 505 U.S. at 876-79 , 112 S.Ct. 2791 (plurality opinion), and Whole Woman’s Health, 136 S.Ct. at 2309-11 .

‘ In Casey , a plurality of the Supreme Court determined that, if a government regulation has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” the regulation is an undue burden on a woman’s right to have an abortion and is unconstitutional. 505 U.S. at 877 , 112 S.Ct. 2791 . The Supreme Court recently reiterated the undue burden standard that “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Whole Woman’s Health, 136 S.Ct. at 2309 (quoting Casey, 505 U.S. at 877 , 112 S.Ct. 2791 (plurality opinion)).

*1055 The Supreme Court in Casey recognized that a woman’s right of privacy extends to the freedom “from unwarranted governmental intrusion so fundamentally affecting a person as the decision whether to bear or beget a child.” 505 U.S. at 896 , 112 S.Ct. 2791 (majority opinion) (quoting Eisenstadt, 40 5 U.S. at 453, 92 S.Ct. 1029 ). “Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” 505 U.S. at 874 , 112 S.Ct. 2791 (citations omitted). See also Stenberg, 530 U.S. at 930 , 120 S.Ct. 2597 ; Mazurek v. Armstrong, 520 U.S. 968, 972-73 , 117 S.Ct. 1865 , 138 L.Ed.2d 162 (1997) (per curiam).

The undue burden analysis requires this Court to “consider the burdens a law imposes on abortion aceess together with the benefits those laws confer.” Whole Woman’s Health, 136 S.Ct. at 2309 . “An undue burden is an unconstitutional burden.” Casey, 505 U.S. at 877 , 112 S.Ct. 2791 . In Casey , the Supreme Court described the “undue burden” test as follows: “[a] finding of an undue burden is a 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.” Id. The Gonzales Court then simplified Casey’s description, settling on the effects test. 550 U.S. at 158 , 127 S.Ct. 1610 . To show an undue burden, Dr. Hopkins must show that “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 , 112 S.Ct. 2791 . A court limits its inquiry to “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 894 , 112 S.Ct. 2791 .

Defendants argue that the Supreme Court has created, two distinct undue burden tests, depending on what interests the state seeks to regulate. Defendants contend that the balancing test of Whole Woman’s Health applies only when “the state’s interest is in.,. a patient’s health or safety” and that the lesser standard of rational basis review applies “when a state regulates to promote respect for unborn life.” (Dkt. No. 23, at 37). The Court rejects defendants’ argument.

At this stage, despite defendants’ arguments to the contrary (Dkt. No. 23, at 38), the Court rejects rational basis review because this standard is inconsistent with controlling precedents that inform the nature of a woman’s right to decide whether to' continue a pregnancy or to abort a nonviable fetus. See Whole Woman’s Health, 136 S.Ct. at 2309-11 ; Casey, 505 U.S. at 834, 851 , 112 S.Ct. 2791 ; Lawrence v. Texas, 539 U.S. 558, 565 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003) (determining that the right to abortion has “real and substantial protection as an exercise of ■ [a woman’s] -liberty under- the Due Process Clause”). In Casey , the Supreme Court examined state statutes purported to advance the state’s interest in fetal life and applied the balancing test later cited in Whole Woman’s Health. Even in Gonzales , which defendants contend supports the use of rational basis review, the Supreme Court did not apply rational basis review to the challenged regulation. See Gonzales, 550 U.S. at 158, 160-161 , 127 S.Ct. 1610 .

When applying the undue burden test, this Court must “weigh[] the asserted benefits against the burdens.” Whole Woman’s Health, 136 S.Ct. at 2310 . There must be “a constitutionally acceptable” reason for regulating abortion, and the abortion regulation must also actually advance that goal in a permissible way. Id. at 2309-10 . The regulation will not be up *1056 held unless the benefits it advances outweigh the burdens it imposes. Id. at 2310 . “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Casey, 505 U.S. at 877 , 112 S.Ct. 2791 .

Defendants also argue that the Court should not engage in a balancing test when conducting the undue burden analysis (Dkt. No. 23, at 38-39). Defendants contend that, if the challenged provision survives the minimal rational basis scrutiny defendants advocate, the provision may be struck only based on the effects and that, in evaluating these effects, the Court may not evaluate the strength of the asserted state interests against these effects. The Court rejects this argument. Other courts that have considered challenges to abortion restrictions based on the state’s asserted interest in potential life since the Supreme Court issued . its decision in Whole Woman’s Health have applied the undue burden test, weighing the extent of the burden against the strength of the state’s justification. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, No. 1:16-cv-01807-TWP-DML, 2017 WL 1197308 (S.D. Ind. March 31, 2017) (applying undue burden balancing test to requirement that women delay abortion by 18 hours after obtaining an ultrasound premised in part on state’s interest in promoting potential life), appeal docketed, No. 17-1883 (7th Cir. Apr. 27, 2017); Whole Woman’s Health v. Hellerstedt, No. A-16-CA-1300-SS, 231 F.Supp.3d 218, 228-30 , 2017 WL 462400, at *7-8 (W.D. Tex. 2017) (applying undue burden test to tissue disposal regulations justified in part on state’s interest in expressing respect for potential life), appeal docketed, No. 17-50154 (5th Cir. Mar. 1, 2017); W. Ala. Women’s Ctr. v. Miller, 217 F.Supp.3d 1313, 1346-47 (M.D. Ala. 2016) (balancing benefits and burdens in assessing D & E ban justified as advancing the state’s interest in respect for life), appeal docketed, No. 16-17296 (11th Cir. Nov. 26, 2016).

Further, under the applicable undue burden standard, although the Court must “review ‘legislative fact finding under a deferential standard,’” Whole Woman’s Health, 136 S.Ct. at 2310 , the court “retains an independent constitutional duty to review [a legislature’s] factual findings where constitutional rights are at stake.... Uncritical deference to [the legislature’s] factual findings in these cases is inappropriate.” Gonzales, 550 U.S. at 165, 167 , 127 S.Ct. 1610 . See also Whole Woman’s Health, 136 S.Ct. at 2310 .

Generally, the state has the burden of demonstrating a link between the legislation it enacts and what it contends are the state’s interests. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 430 , 103 S.Ct. 2481 , 76 L.Ed.2d 687 (1983), overruled on other grounds by Casey, 505 U.S. 833 , 112 S.Ct. 2791 (describing the burden as that of the state). As a part of the Court’s inquiry, the Court may take into account the degree to which the restriction is over-inclusive or under-inclusive, see, e.g., Whole Woman’s Health, 136 S.Ct. at 2315 (discussing over- and under-inclusive scope of the provision), and the existence of alternative, less bur.densome means to achieve the state’s goal, including whether the law more effectively advances the state’s interest compared to prior law, see, e.g., Whole Woman’s Health, 136 S.Ct. at 2311 (noting that prior state law was sufficient to serve asserted interest); Id. at 2314 (“The record contains nothing to suggest that [the challenged provisions] would be more effective than pre-existing [state] law at deterring wrongdoers... from criminal behavior.”).

Dr. Hopkins, who challenges the laws, retains the ultimate burden of prov *1057 ing their unconstitutionality. Mazurek, 520 U.S. at 972 , 117 S.Ct. 1865 (reversing appellate court for enjoining abortion restriction where plaintiffs had not proven that the requirement imposed an undue burden); Casey, 505 U.S. at 884 , 112 S.Ct. 2791 (affirming provision where “there is no evidence on this record” that the restriction would amount to an undue burden).

For Dr. Hopkins’s challenges based on alleged violations of the Due Process Clause, the Court will begin its analysis of the merits by examining each provision and the asserted state justification for each provision. The Court will then examine the alleged undue burden of the provision, and the Court will make findings of fact regarding the fraction of women, if any, for whom the D & E Mandate imposes an undue burden,

b. Analysis Of The D & E Mandate

1. State’s Interests

No legislative findings accompany the D & E Mandate. The Court does not have an explanation, from the legislature of the purpose of the law. Defendants argue that the law advances the interests of regulating medical ethics and promoting respect for the life of an unborn child (Dkt. No. 22, at 20). 4 The Court assumes the legitimacy of these interests. Whole Woman’s Health, 136 S.Ct. at 2310 (assuming that the State had legitimate state interests where the statute did not contain any legislative findings).

2. Burdens Imposed On Women

Dr. Hopkins argues that, although the D & E Mandate does not use recognized medical terminology, it bans standard D & E because it criminalizes the úse of surgical instruments to cause disarticulation or, in the D & E Mandate’s terms, “dismemberment” of a “living” fetus. Ark. Code Ann. § 20-16-1802 (3) (2017). He asserts that the law would force Arkansas women seeking pre-viability abortions to undergo medically unnecessary procedures and subject women to increased health risks. Dr. Hopkins also asserts that, if the D & E Mandate goes into effect, standard D & E abortions essentially will become "unavailable in the State of Arkansas starting at 14.0 weeks LMP due to ethical and legal concerns regarding compliance with the law. :

He maintains that the D & E Mandate “would constitute a significant step backward. ...” (Dkt. No. 3, at 6). Standard D & E was a significant advance over earlier methods of second trimester abortion (Dkt. No. 4, ¶ 19). See also City of Akron, 462 U.S. at 435-36 , 103 S.Ct. 2481 , overruled in part on other grounds by Casey, 505 U.S. 833 , 112 S.Ct. 2791 (“Since [Roe v. Wade was decided], the safety of second trimester abortions has increased dramatically. The principal reason is that the D & E procedure is now widely and successfully used....”) (footnotes omitted).

Starting in the early second trimester, standard D & E is the only procedure that can be performed on an outpatient, ambulatory basis (Dkt. No. 4 ¶ 14; Hopkins 17). See also City of Akron, 462 U.S. at 436 , 103 S.Ct. 2481 . This significantly reduces the expense of a .second trimester abortion (Dkt. No. 4, ¶ 14).

The alternative to standard D & E is an induction procedure, in which physicians use medication to induce labor and deliv-" ery of a non-viable fetus (Dkt. No. 4, ¶ 14). *1058 Induction, must be performed at a facility such as a hospital, not in an outpatient setting, and the patient may be kept for an extended stay because an induction may take 5 hours to 3 days to complete, not the 10 to, 15 minutes it takes to complete a standard D & E (Dkt. No. 4, ¶ 14; Dkt. No. 5, II12). Induction requires a woman to go through labor, which is painful, psychologically challenging for some women, .and medically contraindicated for some, women (Dkt. No. 4, ¶ 14, Dkt. No. 5, ¶12).

If the D & E Mandate were to. take effect, Dr. Hopkins asserts that he would stop performing abortions at approximately 14.0 weeks LMP because, after that point, he would not know whether he would be able to ensure fetal demise before taking actions banned under the D & E Mandate (Dkt. No. 3, at 7; Dkt. No. 5, ¶¶ 23, 26). Under the D & E Mandate, the only D & E that would be legal is one in which a physician successfully induces fetal demise through an additional procedure prior to starting the evacuation phase of D & E (Dkt. No. 3, at 7), Dr. Hopkins claims that, because it is not feasible' or safe for him to induce fetal demise thrdugh 'an additional procedure in every patient prior to starting the evacuation phase of D & E, he would not start any D & E because he may not'be able to complete the procedure without violating the D & E Mandate (Dkt. No. 3, at 7).

Defendants respond that fetal demise can be achieved before standard D & E with one of three procedures: digoxin injections, potassium chloride injections, and umbilical cord transection. 5 The Court’s determination whether the D & E Mandate imposes substantial obstacles to abortion access depends on the feasibility of defendants’ proposed fetal demise methods. For the following reasons, the Court rejects each of defendants’ proposed fetal demise methods.

To thé extent defendants contend that this Court is barred from evaluating the medical evidence concerning both the feasibility and'safety of defendants’ proposed fetal demise méthods, the Court rejects this argument (Dkt. No. 23, at 45-46). Defendants contend that medical disagreement or uncertainty over the impact of the D & E Mandate is for resolution by the legislature alone (Id.). The Court disagrees. As an initial matter, the Court is unconvinced at this stage, based on the record evidence now before it, that defendants’ evidence creates a medical disagreement or uncertainty. Even if it does, as the Supreme Court acknowledged in Casey , “[i]t is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other.... That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty.” 505 U.S. at 851 , 112 S.Ct. 2791 . There is a protected liberty interest at stake here. In Whole Woman’s Health, the Supreme Court rejected a similar argument, holding that the “statement that legislatures, and not courts, must resolve questions of medical uncertainty is... inconsistent with this Court’s ease law.” 136 S.Ct. at 2310 . For these reasons, this Court does not accept at this stage defendants’ argument regarding medical disagreement.

a. Digoxin Injection

When examining digoxin injections, it is important to distinguish between injections before 18.0 weeks LMP and those after 18.0 weeks LMP, based on the record before the Court. Dr, Hopkins asserts that *1059 there is no reasonable or accepted procedure available for a physician providing standard D & E even to attempt fetal demise in a way that might avoid the ban before 18.0 weeks LMP (Dkt. No. 4, ¶ 36; Dkt. No. 5, ¶24). He maintains that all methods proposed by defendants' for inducing fetal demise before standard D & E, including digoxin injection before 18.0 weeks LMP, are virtually untested, have unknown risks and uncertain efficacy, and would be outside the standard of care (Dkt. No. 4, ¶ 26; Dkt. No. 5, ¶¶ 25-26). Any attempts to cause fetal demise prior to 18.0 weeks LMP would mean experimentation and imposing risks with no medical benefit, according to Dr. Hopkins (Dkt. No. 3, at 8).

Starting at 18.0 weeks LMP, during the latter part of the second trimester, a majority of physicians who .attempt to induce fetal demise, including Dr. Hopkins and other physicians ■ at Little Rock Family Planning Services, do so by injecting digoxin either transabdominally or transva-ginally (Dkt. No. 4, ¶ 21; Dkt. No. 5, ¶ 25). Usually, physicians using these injections, including Dr. Hopkins, dcr so to comply with the federal “partial birth. abortion ban” and similar state laws (Dkt. No. 4, ¶23; Dkt. No. 5, ¶ 19). See 18 U.S.C. 1531; Ark. Code Ann. 20-16-1203 (2009). Doing so confers no medical benefit for the woman, as the American College of Obstetricians and Gynecologists (“ACOG”) .has stated: ‘“No evidence currently supports the use of induced fetal demise to increase the safety of second trimester medical or surgical abortion.’ ” (Dkt. No. 4, H,22)(quoting Am. Coll, of Obstetricians & Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics & Gynecology 1394, 1396, 1406 (2013)).

Dr,. Hopkins maintains that this practice does not save the D & E Mandate even for those patients post-18.0 weeks LMP. First, he maintains digoxin injections are not possible for every patient due to anatomical characteristics which may contraindicate these injections (Dkt. No. 3, at 9). Second, in some cases, digoxin fails to cause fetal demise, and Dr. Hopkins or any other physician cannot know before start? ing a procedure the patients in whom it will fail (Dkt. No. 4, ¶ 28;. Dkt. No. 5, ¶ 25e). Dr. Hopkins maintains the proper course when digoxin fails is to complete the abortion without additional delay-(Dkt. No. 4, ¶ 29; Dkt. No. 5,-¶ 25d).

If digoxin does not result in fetal demise after 24 hours, the D & E Mandate could be read to compel a physician to attempt a second injection of digoxin, which is untested and contrary to the standard of care (Dkt. No. 4, ¶ 29; Dkt. No. 5, ¶25⅛. According to Dr. Hopkins, administering a second dose of digoxin and waiting an undetermined amount of time for fetal demise, rather than completing the abortion, would put a patient who is already dilated and whose uterus may have already started to contract at risk of infection or delivery outside the clinic (Dkt. No. 4, ¶29; Dkt. No. 5, ¶ 25b).

Dr. Hopkins would not feel comfortable asserting -that those risks, while real and unacceptable, rise to the very high level of the D & E Mandate’s narrow exception, limited to circumstances “necessary to avert either.,, death... or the serious risk of substantial and irreversible physical impairment of a majority of bodily function.” 20-16-1802(6)(A) — 1803(a). He forms this opinion based on his experience (Dkt. No. 5, ¶ 250.

. In sum, Dr. Hopkins maintains that he would end standard D & E practice if the D & E Mandate takes effect because, although he is a highly trained and experienced obstetrician-gynecologist,. and can attempt digoxin injections to.try to cause fetal demise in most patients beginning at *1060 18.0 weeks LMP, he will not experiment on patients by attempting injections earlier than 18.0 weeks LMP, will not do injections when medically contraindicated, will not do a second injection if the first one fails, and will not start a procedure when he does not know whether he will be able to finish it without violating the ban (Dkt. No. 5, ¶ 24). This would end standard D & E practice starting at 14.0 weeks LMP, which represents 100% of abortion care during that period reported in Arkansas in 2015 (Dkt. No. 4, ¶ 38; Dkt. No. 5, ¶23).

The Court concludes that digoxin injections are not a feasible method of causing fetal demise before a standard D & E. Digoxin injections are experimental for women before 18.0 weeks LMP, and most second trimester abortions in Arkansas are performed before 18.0 weeks LMP. There is no record evidence of any physician attempting digoxin injections earlier than 18.0 weeks LMP (Dkt. No. 4, ¶ 25). There are virtually no reported studies, and no studies of record, on using digoxin in the first weeks of the second trimester, when most second trimester abortions are performed (Dkt. No. 4, ¶ 26; Dkt. No. 32-3, Biggio Cross, at 143-44). Requiring digoxin injections for every patient starting at 14.0 weeks LMP would be requiring a physician to experiment on his patient, without any way to know or counsel her on the effectiveness or safety of the experiment (Dkt. No. 32-1, ¶ 9; Dkt. No. 5, ¶ 24).

Of the physicians who undertake an additional procedure after 18.0 to 22.0 weeks LMP, the vast majority of physicians inject the drug digoxin into the fetus if possible or, if not, then into the amniotic fluid. Injecting digoxin into the amniotic fluid is technically easier, but it is less effective (Dkt. No. 4, ¶ 21; Dkt. No. 5, ■1Í18). The injections may be through the woman’s abdomen or vaginal wall. These injections generally use an 18- to 22-gauge spinal needle, passed under ultra-' sound guidance, through the patient’s abdomen, vaginal wall, or vagina and cervix, and then either into the amniotic fluid or the fetus (Dkt. No. 4, ¶21, 25; Dkt. No. 5, ¶ 18).

There are some women for whom an injection of digoxin may be difficult or impossible. For example, woman may be very obese; may have anatomical variations of the uterine and vaginal anatomy, such as fibroids or a. long cervix; and may have fetal positioning that creates issues. These injections also can be dangerous for women with cardiac conditions such as ar-rhythmias (Dkt. No. 4, ¶27). Even for women who tolerate injections, digoxin will not cause fetal demise in 5% to 10% of all cases in which it is used (Dkt. No. 4, ¶ 28).

The failure rate is higher for intramniotic injections. Intramniotic injections are associated with higher complication- rates than intrafetal injection (Dkt. No. 4, ¶ 25); Intrafetal injections are more difficult to perform and may be'impossible to perform due to fetal position, uterine anatomy and other factors, especially the size of the fetus. The' smaller the fetus, the more difficult intrafetal injection will be (Dkt. No. 4, ¶ 28).

Digoxin works very slowly. Doctors allow 24 hours after the injection for it to work. Even then, it does not always cause fetal demise (Dkt. No. 5, ¶ 18). There is record evidence that the transabdominal injection can be painful and emotionally difficult for the patient. The injection poses risks, including infection, which can threaten the patient’s health and future fertility, and accidental absorption of the drug into the patient’s circulation, which can result in toxicity and changes to the patient’s EKG (Dkt. No. 4, ¶ 25).

Like all medical procedures, the digoxin injection creates risks for the patient. Doctors who use digoxin believe that practical *1061 concerns justify using it. The record evidence is that the main benefit of using digoxin is to establish compliance with the federal “partial-birth abortion ban” or similar state laws (Dkt. No. 4, ¶ 23; Dkt. No. 5, ¶-19). The federal “partial-birth abortion ban” has an intent requirement (Dkt. No. 4, ¶¾).

Based on the record before the Court there are no reported studies of record on using a second injection of digoxin, or multiple, sequential injections of digoxin, after the first dose fails to bring about fetal demise (Dkt. No. 4, ¶ 29). Using a second injection of digoxin would, at a minimum, delay the abortion procedure, require the patient to make another trip to the clinic, and increase the risk of uterine infection, extramural delivery, or digoxin toxicity (Dkt. No.. 4, ¶ 29).

Utilizing a digoxin injection to induce fetal-demise would impose additional logistical obstacles to abortion access. Women undergoing digoxin injections would be required to make an additional trip to the clinic 24 hours prior to their D & E procedure appointment. See Whole Woman’s Health, 136 S.Ct. at 2313 (external factors that affect women’s ability to 'access abortion care — such as increased driving distance — should be considered as an additional burden when conducting the tpdúé burden analysis). If digoxin injections iwere used to induce fetal demise, a woman seeking an abortion would have to meet with a physician at least three times over a minimum of four days for a 10 to 15 minute procedure. First, she would have to receive the counseling mandated by Arkansas law. Second, she would have to return for the digoxin injection. Third, she would have to return after 24 hours for the physician to determine whether fetal demise was achieved. If fetal demise was achieved, the D & E could proceed. However, in 5% to 10% of cases, the first digoxin injection will fail. As a result, additional visits could be required.

The burden of having to make multiple trips for the procedure is especially pronounced for low-income women. The procedure would become time and cost-prohibitive for some women. Faced with this financial and logistical burden, some low income women may delay obtaining an abortion or not have an abortion at all. •Many patients of Little Rock Family Planning Services are low-income. Approximately 30 to 40% of patients obtain financial assistance to pay for their abortion care (Dkt. No. 6, ¶ 5). Many patients of Little Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No, 6, ¶ 5). The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little Rock Family Planning Services. Women must arrange for time off work on multiple days, which can be very difficult given that many are in low-wage jobs and feel that they cannot explain to an employer the reason they need to take time off. For women who already have children, these women must arrange and often pay for childcare. These women also must arrange and pay for transportation. In some cases, these women also have to arrange and pay for a place to stay for multiple nights (Dkt. No. 6, ¶ 8).

Due to the unreliability of the procedure, unknown risks for women before 18.0 weeks LMP, unknown risks associated with injection of a second dose of digoxin if the first fails, increased risks of complications, increased travel burden, and pain and invasiveness of the procedure, the Court concludes that a digoxin injection is not a feasible method of inducing fetal demise before standard D & E in Arkansas.

*1062 b. Potassium Chloride Injection

Another substance, potassium chloride (KOI), will cause fetal demise if injected directly into the fetal heart, which is extremely small (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22). The record evidence is, and there is no credible dispute, that the procedure of injecting potassium chloride is very rare, as it carries much more severe risks for the woman, including death if the doc-tpr places the solution in the wrong place (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. No. 32-2, ¶ 3; Dkt. No. 32-3, Biggio Direct, at 111, Biggio Cross, at 140-41).

The procedure requires extensive training generally available only to sub-specialists in high-risk obstetrics, known as maternal-fetal medicine. (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶ 22; Dkt. .No. 32-2, ¶3; Dkt. No. 32-3, Biggio Direct, at 111, Biggio Cross, at 140-41). Dr. Hopkins and the other doctors with whom he practices at Little Rock Family Planning Services, like the vast majority of obstetrician-gynecologists, do not have this specialized training (Dkt. No. 4, ¶ 31; Dkt. No. 5, ¶22). Contrary to defendants’ suggestion, the Court is unaware of any authority, including in Gonzales , that requires Dr. Hopkins to undertake years of training in the subspe-cialty of maternal fetal medicine to perform abortions (Dkt. No. 23, at 43 (citing Gonzales, 550 U.S. at 163 , 127 S.Ct. 1610 )).

Further, injecting potassium chloride is usually done in a hospital, not a clinical, setting... The procedure requires an advanced ultrasound machine that is typically available only in a hospital setting and too expensive for most clinics. to afford (Dkt. No. 4, ¶ 31; Dkt. No. 32-2, ¶ 3; Dkt. No. 32-3, Biggio Direct, at 111, Biggio Cross, at 140-41). Defendants cite no legal or record support for their argument that Dr. Hopkins or Little Rock Family Planning Services can be required to obtain, or could obtain, such equipment without unduly burdening women who seek abortion (Dkt. No. 23, at 43). See Whole Woman’s Health, 136 S.Ct. at 2318 (examining, in the undue burden context, the costs a current abortion facility would have to incur to meet the regulation’s requirements). The cost also would be prohibitive for women who seek abortion. See Causeway Med. Suite v. Foster, 43 F.Supp.2d 604, 612-13 (E.D. La. 1999) (a ban on “surgical abortion” unless “fetal demise is first induced” imposes an undue burden because it “may force women seeking abortions to accept riskier or costlier abortion procedures.”). Further, defendants cite no legal or record support for their suggestion that over 600 patients seeking a standard D & E each 'year in Arkansas could go to an Arkansas hospital for a potassium chloride injection to terminate their second-trimester pregnancies, equating roughly to 12 patients per week (Dkt. No. 23, at 43).

There also are some women for whom injecting potassium chloride is not medically appropriate (Dkt. No. 4, ¶ 31). Obesity, fetal and uterine positioning, and presence of uterine fibroids may complicate or prevent the administration of these injections.

The Court concludes that potassium chloride injections are not a feasible method of inducing fetal demise before standard D & E procedures. Injecting potassium chloride takes specialized training, and Dr. Hopkins lacks that specialized training. The only subspecialists who are trained to perform the injections are maternal-fetal medicine fellows who go through highly supervised training to specialize in high-risk pregnancies. Further, Dr. Hopkins lacks the costly equipment necessary to perform the procedure on an outpatient basis.

Potassium chloride injections are an unnecessary and potentially harmful medical procedure with no counterbalancing medical benefit for the patient. It is a .technical *1063 ly challenging procedure that carries serious health risks. For all of these reasons, the Court determines potassium chloride injections are an unavailable method for fetal demise for women seeking a standard D & E abortion in the state of Arkansas.

c. Umbilical Cord Transection 6

Umbilical cord transection involves the physician rupturing the membranes, inserting a suction tube or other instrument such as forceps into the uterus, and grasping the cord, if possible, to divide it with gentle traction, which will cause demise over the course of up to 10 minutes (Dkt. No. 4, ¶ 32). The success and ease of this procedure depends on placement of the umbilical cord. If the umbilical cord- is blocked by the fetus, it would be very difficult and very risky to attempt to reach it (Dkt. No. 4, ¶ 33).

The record evidence is that umbilical cord transection is not widely practiced or researched (Dkt. No. 4, ¶ 32). There has been only one scientific study on the use of cord transection to cause fetal demise; the physicians relied upon by the parties agree on this (Dkt. No. 32-1, ¶ 11; Dkt. No. 32-3', Biggio Cross, at 146). The one scientific study on the use of cord transection has limitations and does not support any conclusion about the safety, of the procedure (Dkt. No. 32-1, ¶¶ 12-13).

Attempting umbilical cord transection before 16.0 weeks LMP is completely unstudied, and like injections, these procedures are more difficult to perform the earlier in pregnancy a woman seeks care. Successfully identifying and transecting the cord at early gestations would take additional time and likely multiple passes with forceps (Dkt. No. 32-1, ¶¶ 14-15).

Further, this. procedure exposes the woman to an increased risk of uterine perforation, cervical injury, and bleeding, while it unnecessarily prolongs the D & E procedure (Dkt. No. 4, ¶¶ 32-34). The record evidence is that the longer a D & E takes and- the more instruments passes into thq woman’s uterus occur, the higher the risks of uterine perforation and other complications; physicians relied upon by both sides agree on this (Dkt. No. 4, ¶¶ 32-34; Dkt. No. 5, ¶ 25d; Dkt.' No. 32-1, ¶¶ 13, 15; Dkt. No. 23-15, ¶8; Dkt. No. 32-3, Biggio Cross, at 144-45; Dkt. No. 25-4, ¶ 6), .

There are some women for whom umbilical cord transection is not medically appropriate; physicians relied upon by both sides agree on this (Dkt. No. 4, ¶ 32; Dkt. No. 23-15, ¶ 12).

In seeking to grasp the umbilical cord, physicians will often have no way to avoid grasping fetal tissue instead of, or in addition to, the cord. Doing so would violate the D & E Mandate, according to Dr. Hopkins, and umbilical cord transection ■provides no way- to circumvent the D & E Mandate (Dkt. No. 4, ¶35; -Dkt. No. 5, ¶¶ 25d-25e).

Dr. Nichols, an expert upon whom Dr. Hopkins relies, does not perform umbilical cord transection (Dkt, No. 4, ¶¶ 32-35; Dkt. No, 32-1, ¶¶ 11-15). No physician to which either party cites would require cord transection in their respective practices (Dkt. No. 4, ¶ 34; Dkt. No. 5, ¶ 25d; Dkt. No. 32-3, Biggio Cross, at 144).

This essentially is an experimental procedure that provides no medical benefits to the woman. The Court concludes that because this procedure is difficult, because *1064 this procedure has the potential for serious harm, and due to the lack of sufficient research on the procedure, umbilical cord transection is an unavailable method for fetal demise for women seeking a standard D&E abortion in the state of Arkansas.

For all three of these methods — digoxin, potassium chloride injections, and umbilical cord transection — no evidence currently supports the use of induced fetal demise to increase the safety of second-trimester medical or surgical abortion. This is consistent with the medical literature (Dkt. No. 4, ¶ 22; Am. Coll, of Obstetricians & Gynecologists, Practice Bulletin Number 135: Second Trimester Abortion, 121(6) Obstetrics & Gynecology 1394, 1396, 1406 (2013)).

3. Balancing

In Whole Woman’s Health, the Supreme Court clarified that the undue burden analysis “requires that courts considers the burdens a law imposes on abortion access together with the benefits those laws confer.” 136 S.Ct. at 2309 . The Supreme Court has determined that, to prevail, a plaintiff bringing a facial challenge must demonstrate that “in a large fraction of cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895 , 112 S.Ct. 2791 . The Court assumes the State of Arkansas’s interests are legitimate. The State of Arkansas maintains that its interests are sufficiently strong to justify the burdens the D & E Mandate would impose because, even with the Mandate, women would retain the ability to terminate pregnancy at or after 14.0 weeks LMP.

Defendants’ argument is premised on it being feasible for Dr. Hopkins to utilize one of the three fetal-demise methods examined above: digoxin injection, potassium chloride injection, or umbilical cord tran-section. For the reasons discussed above, the Court concludes that on the current record these proposed methods are not feasible for inducing fetal demise before the standard D&E procedure Dr. Hopkins and other Arkansas abortion providers perform. Danforth, 428 U.S. at 79 , 96 S.Ct. 2831 (striking down an abortion method ban where the alternatives proposed by the state were largely experimental and unavailable to women in the state). Therefore, the Court concludes that the D & E Mandate does not “confer[] benefits sufficient to justify the burdens upon access that [it] imposes.” Whole Woman’s Health, 136 S.Ct. at 2299 .

This Court concludes that, whether this Court weighs the asserted state interests against the effects of the provisions or examines only the effects of the provisions, Dr. Hopkins has carried his burden of demonstrating at this stage of the litigation that he is likely to prevail on the merits and to establish that the challenged D&E Mandate creates an undue burden for a large fraction of women for whom the D&E Mandate is an actual rather than an irrelevant restriction. The record includes sufficient evidence from which Dr. Hopkins satisfies his burden to present evidence of causation that the Mandate’s requirements will lead to this effect. See Whole Woman’s Health, 136 S.Ct. at 2313 .

Further, the Court rejects defendants’ other attempts to salvage the constitutionality of the D & E Mandate. Specifically, for the following reasons, the Court rejects defendants’ arguments premised on a scienter requirement in the D & E Mandate and the health exception in the D & E Mandate.

a. Scienter Requirement

Defendants maintain that there is a scienter requirement in the D&E Mandate, relying on language that prohibits a person from “purposely performing” a dismemberment abortion, meaning that it is *1065 one’s “conscious object... to engage in conduct of that nature.” (Dkt. No. 28, at 9 n.4). Defendants essentially contend that this scienter requirement preserves access to D & E, thereby rendering the D <& E Mandate constitutional. The Court rejects this argument.

There is record evidence that physicians use digoxin to demonstrate a lack of mens rea and thereby avoid liability under the federal and similar state partial-birth abortion bans. See 18 U.S.C. § 1531 (b)(1)(A) (prohibiting a person’s acting “deliberately and intentionally... for the purpose of performing an overt act that the person knows will kill the... fetus.”); Ark. Code Ann. § 20-16-1202 (prohibiting a person’s acting “purposely... for the purpose of performing an overt act that the person knows will kill the... fetus.”). From this, defendants maintain that Dr. Hopkins could comply with the D & E Mandate by injecting women with digoxin before 18.0 weeks LMP, regardless of the effectiveness of those injections because the injection alone would be enough to negate the scienter requirement of the D & E Mandate.

The Court makes no determination on whether the D & E Mandate includes the type of scienter requirement defendants claim. 7 The Court also makes no determination regarding the scope or contours of such a requirement. 8 Even if the D & E Mandate does include the sciehter'requirement defendants advocate there is no record evidence that demonstrates the safety or reliability of injecting women with digoxin earlier than 18.0 weeks LMP. In other words, concluding that the D & E Mandate has a scienter requirement would not resolve this dispute regarding the safety and reliability of using digoxin in D & E procedures before 18.0 weeks LMP. It also would not resolve the safety and feasibility issues associated with potassium chloride injections. Those disputes remain and render digoxin injections before 18.0 weeks LMP and potassium chloride injections not feasible alternatives, even with a scienter requirement.

Moreover, such a scienter requirement also would not save the method of umbilical cord transection for different reasons. Defendants maintain that the scienter requirement allows for separation of fetal tissue if the physician is using forceps to try to grasp and transect the cord (Dkt. No. 23, at 44-45). Dr, Hopkins convincingly argues that this ignores the fact that the experts relied upon by both sides agree that a physician knows that in attempting to reach for the cord, he is likely to grasp fetal tissue instead of or in addition to the cord (Dkt. No. 4, ¶ 35; Dkt. No. 5, ¶ 25e; Dkt. No. 32-3, Biggio Direct, at 125). There is some evidence that the earlier in pregnancy a woman seeks care, the more likely this is to happen (Dkt. No. 32-1, ¶ 15). Having this knowledge, Dr. Hopkins maintains a physician cannot proceed to perform a D & E by umbilical transection and credibly maintain that he did not pur *1066 posely violate the D & E Mandate, given the law’s defined terms and the inability to avoid prosecution through willful blindness. .This Court, at this stage of the proceedings, finds Dr. Hopkins arguments on this point persuasive (Dkt. No. 32, at 42-43).

b. Health Exception

The Court rejects defendants’ argument that “women who need [a D & E] for medical reasons” would still be able to obtain one (Dkt. No, 23, at 45). There is no record evidence to support this assertion. Instead, the record evidence supports Dr. Hopkins’s argument that the health exception is narrow and does not justify defendants’ assertion. Dr. Hopkins maintains that a woman who is already dilated and for whom digoxin has failed needs an abortion “for medical reasons” but that care is not yet “necessary to avert” her “death” or “serious risk of substantial and irreversible” physical harm (Dkt. No. 4, ¶ 25f). The D & E Mandate, even with its health exception, would require that a woman be denied a'D & E abortion until her health condition substantially and inevitably deteriorated' (Dkt. No.'4, ¶ 25f). Further, as Dr. Hopkins argues, the health exception also does not provide an exception for any woman for whom the other fetal demise methods offered by defendants'áre difficult or impossible because of anatomy dr medical contraindication (Dkt. No. 32, at '42)( Nothing in the record contradicts Dr. Hopkins on these points. For'these reasons, the health exception’does not save the D & E Mandate at this stage of the proceeding.

4. Women Effected

To sustain a facial challenge and grant a preliminary injunction, this Court must find that the .challenged D & E Mandate is an undue burden for a large fraction of women for whom the provision is an actual, rather than an irrelevant, restriction. The Court makes that finding here and rejects defendants’ argument that the D & E Mandate is not unconstitutional because it “affects only a small fraction of abortions” (Dkt. No. 23, at 29). Dr. Hopkins maintains that the D & E Mandate impacts all D & Es in Arkansas (Dkt. No. 4, ¶¶ Ú, 16). Under the D & E Mandate, the only D & E that would be legal is one in which a physician successfully.induces fetal demise through an .additional procedure prior to starting the evacuation phase of D & E (Dkt. No. 3, at 7). Dr. Hopkins claims that, because it is,not feasible or safe to induce-fetal demise through an additional procedure-in. every patient prior to starting the evacuation phase of D & E, providers would not start any D & E because they may not be able to complete the procedure without violating the D & E Mandate (Dkt. No. 3, at 7). -

Little Rock Family Planning Services, along with Dr. Hopkins, provides care to women from throughout Arkansas and from other states (Dkt. No. 6, ¶ 5)! Dr. Hopkins is aware of no physicians, other thaij those with whom he practices , at Little Rock' Family Planning Services, who. provide second trimester abortion care (Dkt. No. 32-2, II2). In other words, there are no other providers in Arkansas that could fill this gap in care.

The Court makes the following findings of fact with respect to the fraction of women effected by the D & E Mandate. Little Rock Family Planning Services is the only abortion care provider for women seeking abortion after 10.0 weeks LMP in Arkansas (Dkt. No. 5, ¶ 6; Dkt. No. 6, ¶ 2). Each year, Little Rock Family Planning provides approximately 3,000 abortions, of which approximately 20% occur during the second trimester (Dkt. No. 6, ¶ 16). Standard D & E accounts for 100% of second trimester abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶ 17), Standard D & E accounts for 95% of all second trimester *1067 abortions nationally (Dkt. No. 4, ¶¶ 14-16; Dkt. No. 6, ¶ 17). The vast majority of standard D & Es currently occur from. 14.0 to 18.0 weeks LMP (Dkt. No. 6, ¶¶ 25-26). Of the 638 D & Es reported in Arkansas in 2015, 407 or 64% took place during these earliest weeks of the second trimester (Dkt. No. 6, ¶ 17). .

This Court determines that, if the Court considers the D&E Mandate relevant for Arkansas women who select standard D & E during the early wéeks of the second trimester, it creates an undue burden for a large fraction of these women. In Arkansas in 2015, 407 women had a standard D&E from 14.0 to 18.0 weeks LMP. The D&E Mandate would unduly burden 100% of these women because, if the D & E Mandate goes into effect, standard D&E abortions will no longer be performed in Arkansas due to ethical and legal concerns regarding compliance with the law, thereby rendering abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP.

This Court determines that, even if the Court considers.the D&E Mandate relevant for Arkansas women who select standard D&E throughout the second trimester, it creates an undue burden for a large fraction of these women. In Arkansas in 2015,' 638 women selected standard D&E. If the D&E Mandate goes into effect, standard D&E abortions will no longer be performed in Arkansas due to ethical and legal concerns regarding compliance with the law, thereby rendering abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP. In that case, 100% or all 638 of these women will experience a substantial obstacle to abortion. 9

' The Court determines that it is not appropriate to use as the denominator all Arkansas women who obtained second trimester abortion; the D & E Mandate is only relevant for Arkansas women who elected to have the standard D&E. Regardless, even if the Court considers the D & E Mandate relevant for Arkansas women who select abortion throughout the second trimester, these numbers do not change. In 2015, no Arkansas woman elected to have an induction abortion; all Arkansas women elected to have a standard D&E. 638 women selected standard D & E. If the D & E Mandate goes into effect, standard D&E abortions will no longer be performed in Arkansas due to ethical and legal concerns regarding compliance with the law, thereby rendering abortions essentially unavailable in the State of Arkansas starting at 14.0 weeks LMP. In that case, 100% or all 638 of these women will experience a substantial obstacle to abortion.

Many patients of Little Rock Family Planning Services are low-income. Approximately.30 to 40% of patients obtain financial assistance to pay • for. their abortion care (Dkt. No. 6, ¶5). Many patients of Little. Rock Family Planning Services struggle in their lives and in their efforts to access the medical care they need (Dkt. No. 6, ¶ 5). The time and effort it takes to make the necessary plans to access medical care cause anxiety and stress and cause financial pressure for women seeking care at Little Rock Family Planning Services *1068 (Dkt. No. 6, ¶8). If Little Rock Family-Planning Services no longer performed abortions in Arkansas after 14.0 weeks LMP, financial and logistical issues would burden 30 to 40 % of these women, or 191 to 255, in finding any alternate care out of state. These findings, coupled with the finding that abortions would essentially be unavailable in the State of Arkansas starting at 14.0 weeks LMP if the D & E Mandate takes effect, bolster this Court’s conclusion that if the D & E Mandate takes effect a large fraction of Arkansas women who select abortion throughout the second trimester would experience a substantial obstacle to abortion.

To the extent defendants maintain induction abortion would be an available abortion option in Arkansas if the D & E Mandate were to take effect, the only record evidence before the Court is that there were no induction abortions reported in Arkansas in 2015 (Dkt. No. 5, ¶ 12). Further, an induction abortion requires a hospital or hospital-like facility; it is not performed in a second-trimester outpatient clinic. If hospitals in Arkansas are providing any abortion care, it is in only rare circumstances (Dkt. No. 5, ¶ 6). Induction abortion can take over 24 hours, and for some patients, this procedure may span multiple days. This procedure entails labor, which can involve pain requiring significant medication or anesthesia, and which may be psychologically • challenging for some women (Dkt. No. 4, ¶ 14; Dkt. No. 5, ¶ 12). Because induction involves an in-patient stay, requiring up to three days of hospitalization, as opposed to an out-patient procedure, there is an enormous cost difference between induction and the out-patient standard D & E procedure (Dkt. No. 4, ¶ 14). In some women, an induction abortion fails, and the woman needs intervention in the form of D & E for her safety. This is infrequent, but this does occur (Dkt. No. 4, ¶ 15; Dkt. No. 5, ¶ 12). In approximately 5% to 10% of induction abortions, the woman must undergo an additional surgical procedure to remove a retained placenta. Induction abortion also can cause uterine rupture, which is rare but can be life threatening and can be of particular concern for women who have had multiple previous cesarean deliveries (Dkt. No. 4, ¶ 15; Dkt. No. 25-4, ¶ 8), Controlling precedent does not require the Court to consider this method, but even if it did, for these reasons, the Court rejects induction abortion as a viable alternative second trimester option in Arkansas.

2. Irreparable Harm

Enforcement of the D & E Mandate will inflict irreparable harm on Dr. Hopkins and the fraction of women for whom the Mandate is relevant as there is no adequate remedy at law. It is well-settled that the inability to exercise a constitutional right constitutes irreparable harm. See Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861 , 867 (8th Cir. 1977) (“Planned Parenthood’s showing that the ordinance interfered with the exercise of its constitutional rights and the rights of its patients supports a finding of irreparable injury.”) (citations omitted); accord Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995) (quoting Elrod v. Burns, 427 U.S. 347, 373 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976)).

In the absence of an injunction, the fraction of women for whom the Mandate is relevant would immediately lose the right to obtain a pre-viability abortion anywhere in the State of Arkansas after 14.0 weeks LMP. Therefore, the second requirement for an order preliminarily enjoining enforcement of the D & E Mandate is satisfied.

3. Balancing Of Harms

In the absence of an injunction, the fraction of women for whom the Man *1069 date is relevant would immediately lose the right to obtain a pre-viability abortion anywhere in the State of Arkansas after 14.0 weeks LMP if the D & E Mandate were allowed to take effect. Whereas, if an injunction issues, a likely unconstitutional law passed by Arkansas legislators will not go into effect. The threatened harm to Dr. Hopkins and the fraction of women for whom the Mandate is relevant clearly outweighs whatever damage or harm a proposed injunction may cause the State of Arkansas.

4. Public Interest

It is in the public interest to preserve the status quo and to give the Court an opportunity to evaluate fully the lawfulness of the D & E Mandate without subjecting Dr. Hopkins, or his patients, or the public to any of the law’s potential harms.

The Court notes that the Eleventh Amendment bars relief against an allegedly unconstitutional provision if the named state officials do not have the authority to enforce it. U.S. Const, amend XI; see also Hutchinson, 803 F.3d at 957-58 . Therefore, the preliminary injunction does not extend to the private civil-enforcement provisions under the D & E Mandate.

It is therefore ordered-that Dr. Hopkins’s motion for preliminary injunction is granted to the extent that defendants are preliminarily enjoined from enforcing the provisions of Ark. Code Ann. § 20-16-1803 and Ark. Code Ann. § 20-16-1805 which imposes criminal penalties on a person who violates Ark. Code Ann. § 20-16-1803 (a).

B. Medical Records Mandate (Counts III and IV based H.B. 1434)

Dr. Hopkins seeks a preliminary injunction based on count three, which alleges that the Medical Records Mandate violates the Due Process Clause of the United States Constitution by placing an undue burden on Dr. Hopkins’s patients’ right to liberty and privacy, and count' four, which alleges that the Medical Records Mandate violates the Due Process Clause due to its vagueness.

The Medical Records Mandate subjects physicians to civil liability and criminal penalties for violating the law. It requires:

(b) Before performing an abortion, the physician or other person who is performing the abortion shall:

(1) (A) Ask the pregnant woman if she knows the sex of the unborn child.

(B) If the pregnant .woman knows the sex - of the unborn child, the physician or other person who is performing the abortion shall inform the pregnant woman of the prohibition of abortion as a method of sex selection for children; and

(2) (A) Request the medical records of the pregnant woman relating directly to the entire pregnancy history of the woman.

(B) An abortion shall not be performed until reasonable time and effort is spent to obtain the medical records of the pregnant woman as described in subdivision (b)(2)(A) of this section.

(c) If this section is held invalid as applied to the period of pregnancy prior to viability, then the section shall remain applicable to the period of pregnancy subsequent to viability.

Ark. Code Ann. § 20-16-1804 .

A physician who “knowingly performs or attempts to perform an abortion” prohibited by this law “is guilty of a Class A misdemeanor” under Arkansas law. Ark. Code Ann. § 20-16-1805 . This includes punishment of up to one year in jail, a fíne, or both. Ark. Code Ann. §§ 5-4-201 , 5-4- *1070 401. A physician who violates the law also is subject to civil penalties and professional sanctions, including but not limited to suspension or revocation of his or her medical license for “unprofessional conduct” by the Arkansas State Medical Board. Ark. Code Ann. § 20-16-1806 .

Dr. Hopkins does not challenge the requirement that a physician not perform an abortion knowing that the woman is seeking the abortion solely on the basis of the sex of the embryo or fetus. Ark. Code Ann. § 201-6-1804 (a), (b)(1). Dr. Hopkins is unaware of such a case in Arkansas (Dkt. No. 5, ¶ 30; Dkt. No. 6, ¶ 22). Defendants do not dispute that this type of challenge solely to the Medical Records Mandate is permissible. 10

1. Likelihood. Of Success On The Merits: Due Process Clause

a. Applicable Law

To determine whether Dr. Hopkins is likely to succeed on his challenge to the Medical Records Mandate under the Due Process Clause, this Court applies the undue burden standard. In Whole Woman’s Health, the Supreme Court clarified that this undue burden analysis “requires that courts considers the burdens a law imposes on abortion access together with the benefits those laws confer.” 136 S.Ct. at 2309 . The Supreme Court has determined that, to prevail, a plaintiff bringing a facial challenge must demonstrate that “in a large fraction of cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion,” Casey, 505 U.S. at 895 , 112 S.Ct. 2791 . To sustain a facial challenge and grant a preliminary injunction, this Court must make a finding that the Medical Records Mandate is an undue burden for a large fraction of women for whom the law is relevant.

The law that controls the Court’s evaluation of Dr. Hopkins’s challenge to the Medical Records Mandate under the Due Process Clause is set forth in more detail at Section IV.A.l.a. of this Order,

b. Analysis Of The Medical Records Mandate

1. State’s Interest

The Arkansas legislature included “legislative findings and purpose” when enacting this law. Ark. Code Ann. § 20-16-1802 . The purpose,of the law is to “[b]an abortions performed solely for reasons of sex-selection”- and to “[p]roteet women from the risks inherent in. late-term abortions.” Ark. Code Ann. § 20-16-1802 (b). Dr. Hopkins does not seek a preliminary injunction on or challenge. enforcement of the law with respect .to the ban on abortions performed solely for reasons of sex-selection. Dr. Hopkins does seek a preliminary in *1071 junction challenging enforcement of the Medical Records Mandate,

With respect to maternal health, the Arkansas legislature made the following findings:

(A) It is undisputed that abortion risks to maternal health increase as, gestation increases.

(B) The risk of death for pregnant women at eight (8) weeks’ gestation is one (1) death per one million (1,000,000) and rises to:

(i) One (1) death per twenty-nine thousand (29,000) abortions between sixteen (16) and twenty (20) weeks’ gestation, and

(ii) One (1) death per eleven thousand (11,000) abortions at twenty-one (21) weeks’ gestation or later;

(C) A woman is thirty-five (35) times more likely to die from an abortion performed at twenty (20) weeks’ gestation than she would have been had the abortions been performed in the first trimester;

(D), A woman is ninety-one (91) times more likely to die from an abortion performed at twenty-one (21) weeks’ gestation or later than she would have been had the abortion been performed in the first trimester; and

(E) Because abortions performed solely based on the sex of a child are generally performed later in pregnancy, women undergoing these abortions are unnecessarily exposed to increased health risks, including an exponentially higher risk of death.

Ark. Code Ann. § 20-16-1802 (a)(2).

2. Burdens Imposed On Women

Defendants maintain that the Medical Records Mandate applies only in “situations where the woman .knows the sex” of the embryo or fetus (Dkt. No. 23, at 48-49). When examining the meaning of a criminal statute, the Supreme Court of Arkansas applies these principles:

We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hagar v. State, 341 Ark. 633 , 19 S.W.3d 16 (2000). We also adhere to the basic rule of statutory construction, which is to give effect to -the intent of the legislature. Id. We construe the statute just as it reads, giving the, .words their ordinary and- usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.

Short v. State, 349 Ark. 492 , 79 S.W.3d 313, 315 (2002).

The Supreme Court of Arkansas also explained:

■It is a well-settled principle of statutory construction that statutes-(will) receive a common-sense construction, and, where one word has been erroneously used for another, or a work omitted, and the context affords the means of correct, the proper word will be deemed substituted or supplied.'This is but making the strict letter of the statute yield to the obvious intent of the Legislature.

Henderson v. Russell, 267 Ark. 140 , 589 S.W.2d 565, 568 (1979) (citations omitted).

The Supreme Court of Arkansas stated:

Statutes will not be defeated on account of mistakes, errors or omissions, provided the intent of the General Assembly can be collected from the whole statute. Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154 , 40 S.W.2d *1072 998 (1931). We have often held that the title of an act is not controlling in its construction even though it is a matter to be considered in determining the meaning of a statute which is otherwise ambiguous. Matthews v. Byrd, 187 Ark. 458 , 60 S.W.2d 909 (1933). Likewise, the language used in the title of an act is not controlling but may play a part in explaining ambiguities in the body of the statute. City of Conway v. Summers, 176 Ark. 796 , 4 S.W.2d 19 (1928). We examine the title of an act only for the purpose of shedding light on the intent of the General Assembly. Lyerley v. Manila School District No. 15, 214 Ark. 245 , 215 S.W.2d 733 (1948).

Henderson, 589 S.W.2d at 568 .

In Henderson , acknowledging that controlling law, the Supreme Court of Arkansas reviewed language to determine if an emergency had been defined by the Arkansas legislature such that the emergency clause was effective, accelerating the effective date of the law. The court examined the following:

Where County Officers must have Deputies and employees necessary to carry out the essential activities of County Government, it is hereby found that it is in the best interest of County Government that no person be employed as a Deputy or County Employee who is related by affinity or consanguinity within the third degree to any elected official. Therefore, an emergency is hereby declared to exist and this Ordinance being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.

Henderson, 589 S.W.2d at 569 . The Supreme Court of Arkansas reasoned “[t]here [wa]s simply nothing in the emergency clause to indicate a real emergency existed” and declared “that the emergency clause had failed and the ordinance [would] take effect as it would have had there been no emergency clause.” Id.

Applying those principles here, the Court concludes that Ark. Code Ann. § 20-16-804 (b) should be read as enacted; there is no ambiguity in the language. The portion which is the Medical Records Mandate in subsection (2) is a second, independent requirement from the requirement in subsection (1) of asking the pregnant woman if she knows the “sex of the unborn child.” In other words, as written, the statute requires that “[b]efore performing an abortion, the physician or other person who is performing the abortion shall” comply with both subsection (1) and (2) of § 804(b). In fact, “and” appears at the end of subsection (l)(b) preceding subsection (2). There is no language in the statute as written that limits subsection (2) to instances in which the pregnant woman knows the “sex of the unborn child” or makes subsection (2) dependent upon the woman’s answer to subsection (1) of § 804(b).

Defendants do not argue a mistake, error, or omission in § 804(b). Instead, defendants argue that the Medical Records Mandate says something that it plainly does not (Dkt. No. 23, at 48). If the Court is permitted under Arkansas law and these circumstances to look to the title and legislative findings, the Court finds more persuasive defendants’ argument that the legislature intended something other than what the statute plainly says (Dkt. No. 23, at '49). However, the Court is not convinced that it may look to the title and legislative findings here.

Regardless, at this stage of the proceeding, the Court will consider both interpretations of the Medical Records Mandate. The Court finds as a matter of law that the Medical Records Mandate impermissibly delays or bars most abortions for which *1073 the law is relevant, contains no health exception, and imposes prohibitive requirements on providers.

Based on the record evidence before the Court, obtaining medical records is medically indicated for only a fraction of abortion patients (Dkt. No. 4, ¶ 9; Dkt. No. 5, ¶¶ 33-34; Dkt. No. 6, ¶ 24). The doctors at Little Rock Family Planning Services request medical records for approximately 25 patients per year out of the approximately 3,000 women patients each year (Dkt. No. 6, ¶¶24, 32). The patients for whom doctors at Little Rock Family Planning Services request medical records include patients who have received a diagnosis of fetal anomaly, decided to end the pregnancy, and received a referral to Little Rock Family Planning Services and patients for whom the doctor believes the records could be useful because of a woman’s medical condition (Dkt. No. 6, ¶24).

Even then, a request for only certain records related to a specific medical issue-is appropriate (Dkt. No. 4, ¶ 9; Dkt. No. 5, ¶¶ 33-34; Dkt. No. 6, ¶ 24). For Little Rock Family Planning Services to obtain a patient’s medical records, the patient must first sign a form authorizing Little Rock Family Planning Services to obtain the medical records. That authorization is then sent along with a request to the health care provider. Little Rock Family Planning Services staff then follow-up with a phone call to the health care provider, if necessary (Dkt. No. 6, ¶ 25).

Because Little Rock Family Planning Services typically requests records related to some aspect of the care the patient will receive, and therefore involve a specific request, not a request for the patient’s full medical history, there is no fee charged for the records (Dkt. No. 6, ¶ 25). Even with these specific requests, it takes time to obtain a patient’s medical records from another health care provider and may take a few hours or up to several weeks (Dkt. No. 6, ¶ 26).

When certain records related to a specific medical issue are requested, unless the records áre transmitted and received very quickly, any medical benefit of waiting for the records is outweighed by the fact that delaying abortion care increases the risks associated with the procedure for the patient (Dkt. No. 4, ¶ 9; Dkt. No. 5, ¶ 39).

Attempting to comply with the Medical Records Mandate would mean waiting until Dr. Hopkins had spent an undefined amount of time trying to obtain records. Even for very targeted requests, it may take anywhere from a few hours to several weeks to receive records (Dkt. No. 6, ¶ 26). The types of requests required by the Medical Records Mandate likely will mean delays in receiving records would be even greater (Id.). Federal law allows United States providers 30 days for the initial response to records requests; the actual medical records may follow later; and the patients’ recourse for non-production of records involves review by government officials and/or litigation. 45. C.F.R. § 164.524. Delay would be compounded for patients receiving pregnancy related care outside of Arkansas or outside of the United States, and for patients whose records are in another language and must he translated into English (Dkt. No. 5, ¶ 14; Dkt. No. 6, ¶ 30).

The delay caused by the Medical Records Mandate is not quantified by the law, as-explained in this Court’s discussion regarding the vagueness of this provision. Due to this delay, enforcement of the Medical Records Mandate could cause a woman’s time to obtain abortion care in Arkan-' sas to expire. Currently, Arkansas bans abortions after 21.6 weeks LMP. Ark. Code Ann. § 20-16-1405 (2013) (banning abortion after 20.0 weeks post-fertilization, which is 22.0 weeks LMP). This seems *1074 especially likely given defendants’ contention that the Medical Records Mandate “applies only to potential sex-selection abortions — which, by definition are ,later-term abortions where the.mother knows the sex of the child she is carrying.” (Dkt. No. 23, at 49). If what defendants contend is true, for those women, time is of the, essence in accessing abortion care in Arkansas. Even defendants concede that delay increases the risk to the woman, given the findings of fact of the legislature that “sex-selection abortions are generally performed later in pregnancy and that the risks from abortion to maternal health increase as gestation increases” (Dkt. No. 23, at 49). See Ark. Code Ann. § 20-16-1802 (a)(2) (legislative findings).

' The record evidence is that' delay can push a woman past the point in pregnancy' at which she can receive a medication abortion, requiring a woman who preférs' that method to have a procedure with instrumentation that she' would otherwise not have. Delay can push a woman from a first-trimester to a second-trimester procedure, or from a one-day to a two-day procedure in the second trimester. Delay can also push a woman past the point at which she can obtain an abortion at Little Rock Family Planning Services and in Arkansas (Dkt. No. 6, ¶ 13).

The record evidence is that the risks associated with legal abortion utilizing current methods increase as pregnancy progresses, particularly if that delay pushes, a woman from the first trimester to the second trimester. Studies demonstrate increased risks of complications, such as, bleeding and uterine perforation, associated with abortions performed later in pregnancy (Dkt. No. 4, ¶ 10), The record evidence is that delay also, means that a woman may .pay more for the abortion procedure itself because the procedure becomes more complex as pregnancy advances (Dkt. No. 6, ¶ 14).

This type of delay, and the impact of this delay, erects a substantial obstacle to abortion access. See Schimel, 806 F.3d at 920 (explaining that delay causes women to “forgo first-trimester abortions and instead get second-trimester ones, which are more expensive and present greater health risks. Other women would be unable to obtain any abortion, because the delay would push them past” the point in pregnancy at which abortion care is available), cert. denied, — U.S, -, 136 S.Ct. 2545 , 195 L.Ed.2d 869 (2016). When examining the judicial bypass procedures, which allow minors to obtain abortion care without otherwise mandated parental involvement, the Supreme Court made • clear such procedures are unconstitutional unless they assure an expeditious time frame for completion of the process. See, e.g., Bellotti, 443 U.S. at 644 , 99 S.Ct. 3035 (holding that judicial bypass process for , minors “must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to. provide an effective opportunity for an abortion to be obtained”); Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1110 (5th Cir. 1997) (striking down judicial bypass statute that lacked time limits and. noting that “[sjuch open-ended bypass procedure has never been approved”), overruled on other grounds by Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001).

The Medical Records Mandate’s requirements apply even where abortion is necessary to prevent a serious health risk to the woman; the Medical Records Mandate has no exception to allow physicians to act without the required medical records search in cases where a serious health risk to the woman is present. Although the plain text of the Medical Records Mandate *1075 does not permit a physician to proceed based on health risks to the woman, the State of Arkansas argues such an exception is implicit in the law. The State of Arkansas points to • language in the law that prohibits an abortion “solely on the basis of the sex of the unborn child” and argues that, if an. abortion is needed-for health reasons, the abortion; is not a sex-selection abortion prohibited by the law (Dkt. No. 22, at 35), The Court rejects this argument. As an initial matter, .defendants point to section (a) for this language, not section (b) that includes the Medical Records Mandate. See Ark. Code Ann. § 20-16-1804 . There is no language in section (b) from which the Court could infer this exception. Instead, the language of section (b) requires medical records requests for women’s “entire pregnancy history” and the delay of “reasonable time and effort to obtain the medical records” before any abortion can be performed. Ark. Code Ann. § 20-16-1804 (b), Further, other Arkansas statutes regarding abortion, including some challenged here, specifically include specific health exception language. That language is absent in this Statute. This Court has no legal basis from which to read that language, or such an exception, into the Medical Records'Mandate.

In addition, there is record evidence that compliance with the Medical Records Mandate would drain providers’ resources: the staff, copying, and processing costs of requesting records and attempting to compile all the records for the great majority of patients would be overwhelming (Dkt. No. 6, ¶¶ 24, 32). Little Rock Family Planning Services provides medical care to approximately 3,000 women each year, the majority of whom have had one or more prior pregnancies, during which the women received.medical care from one or more providers or received ■ care for a current pregnancy (Dkt. No. 6, ¶ 32). Each woman would have to gather past information, including identifying her • past providers and the dates she received service, to complete a signed request for each former provider (Dkt. No. 6, ¶ 33). Little Rock Family Planning Services, which provides approximately 3,000 abortions of the 3,800 abortions reported in Arkansas each year cannot process that volume of requests (Dkt. No. 6, ¶¶ 24, 31). As a result, implementation of the Medical Records Mandate will simply shut down care for those patients (Dkt. No. 3, at 34).

The Arkansas Medical Board advises that Arkansas. medical providers can charge per-page copying fees and separate fees for retrieval of records from storage. See Ark. Code Ann. 16-46-106 (2008). The record evidence is that’ when making a request for a patient’s complete medical record, a fee usually is charged for obtaining the records (Dkt. No. 6, ¶ 33).

■At this ■ stage of the proceeding, the Court acknowledges the- evidence in the record that compliance would violate the women’s confidentiality: requesting medical records would disclose the fact of the woman’s pregnancy and her abortion decision to all her previous and current pregnancy related health care providers (Dkt. No. 5, ¶ 38; Dkt. No. 6, ¶ 28). 11 Little Rock *1076 Family Planning Services is a well-known abortion provider. Any request for medical records made by Little Rock Family Planning Services, in and of itself, discloses that the patient likely is seeking an abortion. As a result, Little Rock Family Planning Services does not request records with a woman’s prior written consent, and some women specifically request that Little Rock Family Planning Services not seek records from another health care provider because the woman does not want that provider to know of the pregnancy and abortion decision (Dkt. No. 6, ¶ 27). The record evidence is that some women have informed Little Rock Family Planning Services that the women fear hostility or harassment from their other health care providers for deciding to seek an abortion (Dkt. No. 6, ¶ 28).

Many women do not want that to occur (Dkt. No. 5, ¶38; Dkt. No. 6,.¶28). As a result, this Court concludes that there is record evidence that this violation of confidentiality would further interfere with a woman’s right to decide to end a pregnancy. Bellotti, 443 U.S. at 655 , 99 S.Ct. 3035 . It will cause women to forgo abortion in Arkansas rather than risk disclosure to medical providers who they know oppose abortion' or who are family friends or neighbors (Dkt. No. 6, ¶ 28).

3. Balancing

The burdens imposed by the Medical Records Mandate appear to serve no proper state purpose. See Whole Woman’s Health, 136 S.Ct. at 2318 (an abortion regulation is unconstitutional where it provides “few, if any” medical benefits); Schimel, 806 F.3d at 920 (emphasizing that the “feebler the medical grounds (in this case nonexistent), the likelier” it is that any burden on abortion is disproportionate and therefore undue). The ban on abortions sought based solely on sex, with its enforcement through Ark. Code Ann. 20-16-1804(a), stands on its own. Dr. Hopkins does not challenge this ban. 12 Any aid the Medical Records Mandate might provide for this ban has not' been established by record evidence nor has it been shown by record evidence to outweigh the substantial burdens that the Medical Records Mandate imposes on abortion access for the women for whom the Mandate is relevant. “This necessarily means that the burden to be considered undue is greatly reduced as a requirement as the benefit from the regulation becomes miniscule, if any.” W. Ala. Women’s Ctr., 217 F.Supp.3d at 1321-22.

Here, the Medical Records Mandate requires blanket requests for entire medical histories related to pregnancy care. There is record evidence that such blanket requests will increase the delay in receiving records and the cost of obtaining records (Dkt., No. 6, ¶¶24, 32, 33). These delays may put abortion care out of reach for many of the women for whom this law is relevant, especially given defendants’ contention that the Medical Records Mandate “applies only to potential sex-selection abortions — which by definition are later-term abortions where the mother knows the sex of the child she is carrying.” (Dkt. No. 23, at 49; see also Dkt. No. 6, ¶ 13). Time is of the essence in accessing abortion care in Arkansas, given the limits under Arkansas law on when abortions may be performed. All parties conceded that any delay in receiving abortion care *1077 increases the risk to the woman. See Ark. Code Ann. § 20-16-1802 (a)(2) (legislative findings).

Although defendants state “a patient is always more likely to receive better care when her physician has greater knowledge of her health history,” there is no eviden-tiary support for this statement in' the record before the Court. It is an unsupported statement by defense counsel. In fact, the record evidence before this Court is that the current standard abortion care does not require a physician to obtain medical records for entire medical histories related to pregnancy care for women before providing abortion care (Dkt. No. 5, ¶¶ 31-42; Dkt. No. 6, ¶¶ 24-34). See Whole Woman’s Health, 136 S.Ct. at 2315 (determining, when conducting the undue burden analysis, that “[tjhere [was] considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary”).

From the record evidence before the Court, obtaining medical records is medically indicated for only a fraction of abortion patients (Dkt. No. 4, ¶ 9; Dkt. Ño. 5, ¶¶ 33-34; Dkt. No, 6, ¶ 24). Even then, a request for only certain records related to a specific medical issue is appropriate (Dkt. No. 4, ¶ 9; Dkt. No. 5, ¶¶ 33-34; Dkt. No. 6, ¶ 24). When certain records related to a specific medical issue are requested, unless the records are transmit ted and received very quickly, any medical benefit of waiting for the records is outweighed by the fact that delaying abortion care increases the risks associated with the procedure for the patient (Dkt. No. 4, ¶ 9; Dkt. No. 5, ¶ 39).

Nothing in the Medical Records Mandate explains what a doctor is to do with these records. Defendants in their filings assert that “[mjedical records pertaining to a woman’s past pregnancy history is likely to shed light on whether a woman is seeking a sex-selection abortion. For example, medical records documenting that a woman who had previously been pregnant with two girls and two boys who had abortions of the two girls' would be highly probative of whether or not a woman who was, currently pregnant with-a girl was seeking a sex-selection abortion.” (Dkt. No. 22, at 34-35). This factual assertion that medical records “likely” will provide this information is not supported by any record evidence. Moreover, the Medical Records Mandate does not address this; nothing in the Mandate directs a doctor to use these records to aid in making a determination whether a woman seeks an abortion based solely on gender. That link is not established by the language, of the Medical Records Mandate, nor is it established by any evidence in the record.

Defendants further state “[tjhe discovery that a woman was seeking a sex-selection abortion may indicate that the woman has a need for counseling or is herself the victim of a coercive domestic partner who demands that she abort any child of a particular sex.” (Dkt: No. 23, at 50). Again, there is no support for this in the record. It is another unsupported statement by defense counsel. .

There also is no evidence in the record from defendants to inform this Court on the ease with which a provider like Dr. Hopkins could comply with the Medical Records Mandate, as defendants suggest is possible. Instead, the only evidence in the record is that provided by Dr. Hopkins, which-is based on experience and personal knowledge, and that evidence establishes the substantial burdens of compliance. See Whole Woman’s Health, 136 S.Ct. at 2318 (examining,- when conducting the -undue burden analysis, “the costs that a currently *1078 licensed abortion facility. would have to incur to meet” the challenged regulation). The Court accepts Dr.- Hopkins’s evidence on this point at this stage of the proceeding.

There also is no evidence'in the record to counter the Court’s conclusion that compliance would implicate the women’s confidentiality.

These harms are not dependent on unusual, as-applied circumstances, despite defendants’ contention to the contrary (Dkt. No. 23, at 51). There is no record evidence to support that assertion. That assertion is directly contradicted by the record.

For all of these reasons, this Court concludes at this stage of the proceedings that Dr. Hopkins is likely to succeed in showing that the Medical Records Mandate imposes an undue burden on a large fraction of women for whom the law is relevant. The record includes sufficient evidence from which Dr. Hopkins satisfies his burden to present, evidence of causation that the Mandate’s requirements will lead to this effect. See Whole Woman’s Health, 136 S.Ct. at 2313 . Therefore, at -this stage of the proceeding, the Court determines the Medical Records Mandate is likely unconstitutional.

4. Women Effected

To sustain a facial challenge and grant a preliminary injunction, this Court must find that the challenged Mandate is an undue burden for a large fraction of women for whom the provision is an actual rather than an irrelevant restriction.. Regardless of how the Medical Records Mandate is construed — -whether it effects all 3,000 women in Arkansas seeking an abortion, as Dr. Hopkins, contends, or only those women who know gender when seeking an abortion, as defendants contend, it creates an undue burden for a large fraction of them. The Medical Records Mandate does very little to advance defendants’ interest, for the reasons explained. Compliance with the Medical Records Mandate for these women presents substantial obstacles to abortion care by increasing delays, very possibly putting abortion care out of reach for women late in pregnancy, increasing health risks to women as gestational age advances, increasing costs associated with compliance, and implicating privacy concerns. The vagueness of this Mandate, especially in relation to whom it applies and how long the provider is expected to wait for records, prohibits the Court from deducing fractions of women burdened by the Mandate with any specificity. -

If the Medical Records Mandate is intended to apply to all women seeking an abortion in Arkansas, based on record evidence from 2015 which is the last year for which the Arkansas Department of Health published statistics, it will apply to 3,771 women — all of the women who sought an abortion in Arkansas during that yeár (Dkt. No. 3, at 3 n,l). If the Medical Records Mandate requires providers to seek records for all women before providing abortion, the Mandate will substantially burden all women’s access. If the Medical Records Mandate1 requires providers to seek records only for women who have had prior pregnancies, approximately two-thirds of the women who obtained abortions in 2015 had had one or more previous live births; this equates to-approximately 2,514 women (Dkt. No. 5, ¶ 32). There is record evidence that, of the remaining third, “many” will have had care earlier in their current pregnancy, a previous stillbirth, miscarriage, or abortion, or a previous ectopic or molar pregnancy (Dkt. No. 5, ¶32). The remaining third represents 1,256 women; the Court construes “many” as “a large number of’ which is how the term is commonly defined. Many, The Ox *1079 ford Dictionary (10th ed. 2014). All of these figures represent large fractions of the women effected.

If the Medical Records Mandate is intended to apply only to women who know the sex of the unborn child, those are the women for whom the law is relevant, and the undue burdens created by the Medical Records Mandate will apply to all of those women. The burdens of the Mandate will substantially outweigh its, benefits, .based on the record before this Court for the reasons explained. The Court takes judicial notice that one typical method to determine the sex of an unborn child is through ultrasound and that other, essentially commercial, services are offered to aid women in determining the sex of an unborn child. See F.R.E. 201(b)(2); see also Pam Belluck, Test Can Tell Fetal Sex at 7 Weeks, Study Says, N.Y.TIMES, Aug, 11, 2011, at 1, available at http://www.nytimes.com/ 2011/08/10/health/10birth.html (citing Stephanie Á. Devaney, Glenn E. Palomaki, Joan A. Scott, and Diana W. Bianchi, Noninvasive Fetal Sex Determination Using Cell-Free Fetal DNA: A Systematic Review and Meta ‘Analysis, 306(6) JAMA 627-636 (2011)). ' '

Arkansas law expressly' requires “[a] person authorized to perform abortions under Arkansas law” to perform an abdominal ultrasound for the stated purpose of testing for a heartbeat, and, if a fetal heartbeat is detected during the abdominal ultrasound examination, the physician must inform the pregnant woman in writing that the fetus possesses a heartbeat and the statistical probability of bringing the unborn child to term based on gestational age, . Ark. Code Ann. § 20-16-1303 (a), (b), (c), (d)(1), (d)(2), (e); see Edwards, 8 F.Supp.3d 1091 (examining Ark. Code Ann. §§ 20-16-1301 through 1307, declaring portions of the heartbeat testing and portions of the disclosure requirements constitutional and declaring the ban on abortions when fetal heartbeat is detected and the fetus has. reached twelve weeks’ gestation unconstitutional). These informational disclosures are required regardless of whether the fetus has attained twelve weeks’ gestation. Edwards, 8 F.Supp.3d 1091 . Although a physician would by necessity determine the gestational age of the fetus as part of detérmin-ing the statistical probability of bringing the fetus to term, the Act does not mandate a particular method for determining gestational age. Id. There was evidence of record in Edwards , upon which the court relied, that “[e]arly in pregnancy, abdominal ultrasound does not produce images that are’ sufficiently ’clear to permit accurate gestational dating.' As a result, some other method of gestational dating, such as vaginal ultrasound,’ must be used.” Edwards, 8 F.Supp.3d at 1096 (citing the sworn 'declaration of Jahet Cathey, M.D., board-certified in the speciality of obstetrics and gynecology). 13 These requirements make it much more likely that a woman in Arkansas will know the sex of the unborn child before her abortion.

2. Likelihood Of Success On The Merits: Vagueness

Dr. Hopkins contends that the Medical Records Mandate is void for Vagueness.' Under the Due Process Clause, *1080 “an enactment is void for vagueness if its prohibitions are not clearly defined.” D.C. v. City of St. Louis, 795 F.2d 652 , 653 (8th Cir. 1986) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972)). Due process requires that laws provide fair notice by giving a “person of ordinary intelligence a reasonable opportunity to know what is prohibited, so he may act accordingly.” Id. Due process also demands explicit standards to prevent arbitrary or discriminatory actions by those charged with enforce-taent. Id.

“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that doe

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