Appendix — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

Co !

suprgme Court U.S

"@51382mAy 2 2006

No. OFFICE OF THE CLERK

Jn the Supreme Court of the Anited States

ALBERTO R. GONZALES, PETITIONER

Vv.

PLANNED PARENTHOOD FEDERATION OF AMERICA,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

~

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Aitorney General

GREGORY G. KATSAS

Deputy Assistant Attorney

General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

TEAL LUTHY MILLER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A (court of appeals opinion, dated Jan.

BR BIRD cesesecensenssansansanscesnecssensncunsisusnsoumnenbecsnatnstanmeanes la

Appendix B (district court order, dated June 1,

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 04-16621

PLANNED PARENTHOOD FEDERATION OF AMERICA,

INC.; PLANNED PARENTHOOD GOLDEN GATE,

PLAINTIFFS-APPELLEES

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE

UNITED STATES, IN HIS OFFICIAL CAPACITY,

DEFENDANT-APPELLANT

v.

CITY AND COUNTY OF SAN FRANCISCO, PLAINTIFF-

INTERVENOR-APPELLEE

Argued and Submitted Oct. 20, 2005

Filed Jan. 31, 2006

Before REINHARDT, THOMAS, and W. FLETCHER, ~

Circuit Judges.

REINHARDT, Circuit Judge.

This appeal presents a challenge to the constitu-

tionality of the Partial-Birth Abortion Ban Act of 2003,

Pub. L. No. 108-105, 117 Stat. 1201 (codified at 18

U.S.C. § 1531). We, like every other federal court that

has considered the question, conclude that both the

Constitution and the law as established by the Supreme

Court require us to hold the Act unconstitutional.

Unlike the other courts, however, we do so after fully

(la)

2a

considering the Supreme Court’s recent decision in

Ayotte v. Planned Parenthood of N. New England,

— US. —, 126 S. Ct. 961, —— L. Ed. 2d ——

(2006). In light of Ayotte, we conclude that the only

appropriate remedy is to enjoin enforcement of the Act

and we now affirm the district court’s grant of a

permanent injunction.

I. Background

A. Post-First Trimester Abortion Methods

The vast majority of abortions in the United States

are performed during the first trimester.' Approxi-

mately ten percent of abortions are performed during

the second trimester. Only about one percent are

performed after the twentieth week from the woman’s

last menstrual period (“Imp”) and only a small portion

of those after the twenty-fourth week, the earliest time

at which viability begins. In short, only a tiny per-

centage of abortions are performed after viability may

have commenced.

' The first trimester lasts until the thirteenth or fourteenth

weck of pregnancy, measured from the woman’s last menstrual

period (“Imp”). Planned Parenthood Fed’n of Am. v. Ashcroft, 320

F. Supp. 2d 957, 960 (N.D. Cal. 2004); see also Stenberg v. Carhart,

530 U.S. 914, 923, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000) (mea-

suring the first trimester at twelve weeks gestational age, which

equals fourteen weeks Imp after adding the approximately two

weeks between menstruation and conception). The second trimes-

ter lasts until approximately the twenty-seventh week Imp

(twenty-four weeks gestational age), with the third culminating in

birth (typically at forty weeks Imp). Planned Parenthood, 320 F.

Supp. 2d at 960. A fetus is generally understood to have achieved

viability—meaning that there exists a realistic potential for long-

term survival outside the uterus—at twenty-four weeks Imp or

later. /d.

3a

Women seek abortions after the first trimester for

various reasons, including newly discovered fetal

anomalies and maternal health problems that are

created or exacerbated by the pregnancy. This is pri-

marily because ultrasound and amniocentesis—proce-

dures that often detect these medical conditions—

generally are not available until the second trimester.

Because abortions are rarely performed after the

twenty-fourth week lmp and even more rarely after the

second trimester (in both cases almost always for medi-

cal reasons), the Act essentially regulates previability

second trimester abortions.

Nearly all post-first trimester abortions are per-

formed using one of two methods: dilation and evacua-

tion (“D & E”) or induction.” D & E accounts for 85 to

95 percent of such abortions. Unlike induction, which is

a form of “medical” abortion, D & E is a surgical pro-

cedure involving two steps: dilation of the cervix and

surgical removal (evacuation) of the fetus. There are

two forms of D & E, intact and non-intact.’

* Two additional methods are available but are used exceed-

ingly rarely, usually only in an emergency: hysterotomy, which

resembles a caesarean delivery through the abdomen; and hys-

terectomy, which involves complete removal of the woman's uterus

with the fetus inside. Stenberg, 530 U.S. at 987 n.7, 120 S. Ct. 2597.

* Some doctors reject the characterization of intact and non-

intact D & E as-two separate forms of the D & E procedure.

Rather, they believe that there is only a single form which is some-

times performed in a manner that differs from other implementa-

tions, but in a way that is of no medical consequence.

Other doctors choose not to label the intact and non-intact pro--

cedures as forms of D & E for a different linguistic reason. These

doctors reserve the term D & E for the non-intact procedure and

call intact removals “dilation and extractions” (“D & X”). D & X is

4a

The first step of the procedure, cervical dilation, is

the same for both forms of D & E. It is achieved

primarily through the use of osmotic dilators, which are

sponge-like devices that expand the cervix, typically

over a period of twenty-four to forty-eight hours. Some

doctors also use medications known as prostaglandins

in conjunction with the osmotic dilators, though these

drugs sometimes induce labor spontaneously, which

results in partial or complete expulsion. The dilation

process is necessary so that the doctor may insert an

instrument, generally a type of forceps, through the

cervix and into the uterus in order to remove the fetus.

The second step of the procedure, the evacuation

phase, is when the two forms of D & E become differ-

ent.’ When performing a non-iritact D & E, the doctor,

under ultrasound guidance, grasps a fetal extremity

with forceps and attempts to bring the fetus through

the cervix. At this point, the fetus will ordinarily dis-

articulate, or break apart, because of traction from the

cervix, and the doctor must return the instrument to

make multiple passes into the uterus to remove the

remaining parts of the fetus, causing further disarticu-

lation. To complete the removal process, the doctor

evacuates the placenta and any remaining material

the nomenclature used in Stenberg. 530 U.S. at 927, 120 S. Ct.

2597.

The labeling of the procedure is of no consequence to our

analysis; however, for simplicity’s sake we prefer intact and non-

intact D & E. What is relevant, however, is that one could sub-

stitute D & X for intact D & E wherever the latter term appears in

our opinion and nothing would change in any respect.

* In either form of D & E, the removal procedure usually lasts

ten to fifteen minutes, during which the woman receives either

conscious sedation or general anesthesia.

5a

using a suction tube, or cannula, and a spoon-like instru-

ment called a curette.

In an intact D & E, the doctor, rather than using

multiple passes of the forceps to disarticulate and re-

move the fetus, removes the fetus in one pass, without

any disarticulation occurring (i.e., the fetus is “intact”).

An intact D & E proceeds in one of two ways, depend-

ing on the position of the fetus in the uterus. If the

fetus presents head first (a vertex presentation), the

doctor first collapses the head, either by compressing

the skull with forceps or by inserting surgical scissors

into the base of the skull and draining its contents. The

doctor then uses forceps to grasp the fetus and extracts

it through the cervix.’ If the fetus presents feet first (a

breech presentation), the doctor begins by grasping a

lower extremity and pulling it through the cervix, at

which point the head typically becomes lodged in the

cervix. When that occurs, the doctor can either collapse

the head and then remove the fetus or continue pulling

to disarticulate at the neck. (If the doctor uses the

latter option, he will have to use at least one more pass

of the forceps to remove the part of the fetus that

remains, and the procedure is not considered an intact

D& E.)

As the district court found, some doctors prefer to

use the intact form of D & E, whenever possible, be-

cause they believe it offers numerous safety advantages

over non-intact D & E. As the district court also found,

intact D & E may be significantly safer than other D &

E procedures because it involves fewer instrument

passes, a shorter operating time and consequently less

° In some cases, doctors will convert a fetus that presents head

first into the breech position before beginning the evacuation.

6a

bleeding and discomfort for the patient, less likelihood

of retained fetal or placental parts that can cause infec-

tion or hemorrhage, and little or no risk of laceration

from bony fetal parts. Finally, as the district court

found, intact D & E is in fact the safest medical option

for some women in some circumstances. For example,

women with specific health conditions and women who

are carrying fetuses with certain abnormalities benefit

particularly from the availability of the intact D & E

procedure.

According to the American College of Obstetricians

_and Gynecologists (“ACOG”), the safety advantages of-

fered by intact D & E mean that in certain circum-

stances it “may be the best or most appropriate proce-

dure . . . to save the life or preserve the health of a

woman.” Doctors typically decide whether to attempt

an intact D & E based primarily on the amount of

cervical dilation, but they can never predict beforehand

whether they will be able ultimately to remove the

fetus intact. In most cases, intact D & E is not an

option from the outset; in others, although the proce-

° The primary alternative to the D & E procedures is induction,

which comprises approximately 5 percent of abortions performed

between weeks fourteen and twenty and 15 percent of abortions

performed after the twentieth week. Many doctors consider

inductions less safe than D & Es. When employing this procedure,

the doctor starts an IV and uses a prostaglandin suppository (or a

saline injection) to induce uterine contractions and labor. The en-

tire process takes between eight and seventy-two hours, with most

inductions concluding within twenty-four hours. Some inductions

will not completely expel the fetus, requiring the doctor to perform

a D & E to finish the procedure. Although a D & E may be

performed in an outpatient setting, a woman choosing to undergo

induction must be admitted to a hospital.

Ta

dure may start out as an intact removal, during the

course of the procedure it turns into a non-intact D & E.

As explained further below, the government con-

strues the Act as prohibiting intact D & Es but per-

mitting non-intact D & Es, whereas the plaintiffs assert

that it covers both forms of the procedure, as well as

induction. The plaintiffs also contend that even if the

Act banned only intact D & Es, it would still be uncon-

stitutional.

B. The Statute

Enacted in response to the Supreme Court’s decision

in Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147

L. Ed. 2d 743 (2000), which declared a Nebraska statute

regulating “partial-birth abortions” unconstitutional,

the Act subjects any physician who “knowingly per-

forms a partial-birth abortion” to civil and criminal

penalties, including up to two years of incarceration. 18

U.S.C. § 1531(a) (2005). The Act’s definition of “par-

tial-birth abortion” covers an abortion performed by

any doctor who:

(A) deliberately and intentionally vaginally de-

livers a living fetus until, in the case of a head-first

presentation, the entire fetal head is outside the

body of the mother, or, in the case of breech pres-

* Before passing the Act at issue here, Congress passed two

similar bans, in 1996 and 1998, but President Clinton vetoed both

of them and Congress did not override those vetoes. See 142

CONG. REC. H3338 (daily ed. Apr. 15, 1996); 144 CONG. REC.

$10564 (daily ed. Sept. 18, 1998). In support of the earlier legisla-

tion and the Act at issue here, Congress held sporadic hearings on

the issue of “partial-birth abortion,” and received a number of

statements of policy from individuals and organizations that it

included in the Congressional Record.

Sa

entation, any part of the fetal trunk past the navel is

outside the body of the mother, for the purpose of

performing an overt act that the person knows will

kill the partially delivered living fetus; and

(B) performs the overt act, other than completion

of delivery, that kills the partially delivered living

fetus.

18 U.S.C. § 1531(b)(1). Doctors who perform a “partial-

birth abortion” are exempt from criminal liability only

when the procedure is “necessary to save the life of a

mother whose life is endangered by a physical disorder,

physical illness, or physical injury, including a life-

endangering physical condition caused by or arising

from the pregnancy itself.” 18 U.S.C. § 1531(a). The

Act does not contain an exception for abortions that are

necessary to preserve the health of the woman.

Congress made several findings of fact in support of

its determination that the Act’s prohibition did not

require a health exception. Partiai-Birth Abortion Ban

Act § 2(8)-(13). Most significant, Congress found that:

There exists substantial record evidence upon which

Congress has reached its conclusion that a ban on

partial-birth abortion is not required to contain a

‘health’ exception, because the facts indicate that a

partial-birth abortion is never necessary to preserve

the health of a woman, poses serious risks to a

woman’s health, and lies outside the standard of

medical care.

Id. at § 2(13) (emphasis added). Another of Congress’s

central findings was that a “moral, medical and ethical

Ya

consensus” exists that intact D & E is “never medically

necessary and should be prohibited.” /d. at § 2(1).°

C. The Litigation

Directly after President George W. Bush signed the

Act into law on November 5, 2003, the plaintiffs filed

this lawsuit claiming that the Act violates rights guar-

anteed by the U.S. Constitution. The City and County

of San Francisco intervened as a plaintiff. Qn Novem-

ber 6, 2003, the district court issued a temporary in-

junction against enforcement of the Act.” At the gov-

ernment’s request, the district court consolidated the

preliminary injunction hearing and the trial on the

merits. After an approximately three-week trial in

which it heard the testimony of thirteen expert wit-

nesses, the district court found the Act unconstitutional

and entered a permanent injunction against its enforce-

ment. Planned Parenthood Fed’n of Am. v. Ashcroft,

320 F. Supp. 2d 957, 1034-35 (N.D. Cal. 2004).

The district court’s holding rested on its deterr

nation that the Act violated the Constitution in three

respects. First, the district court found the Act uncon-

stitutional because it imposed an undue burden on a

“ Congress also declared that courts must afford great defer-

ence to its findings, under the Supreme Court's holdings in Turner

Broadcasting System, Inc. v. FCC (“Turner IT”), 520 U.S. 180, 117

S. Ct. 1174, 187 L. Ed. 2d 369 (1997), and related cases. Partial-

Birth Abortion Ban Act § 2(8)-(12). The level of deference that

must be applied to Congress's findings is discussed infra in Section

ILL.A.

® In two similar lawsuits, injunctions were also obtained from

federal district courts in New York and Nebraska. See Nat'l

Abortion Fed’n (“NAF”) v. Ashcroft, 330 F. Supp. 2d 436, 442

(S.D.N.Y. 2004); Carhart v. Ashcroft, 287 F. Supp. 2d 1015, 1016

(D. Neb. 2008).

10a

woman’s right to choose to terminate her pregnancy

before viability. The court concluded that the Act’s

definition of “partial-birth abortion” reached all D & E

procedures as well as certain induction abortions. Be-

cause D & E and induction procedures comprise nearly

all post-first trimester abortions, the district court con-

cluded that the Act created a risk of criminal liability

for virtually all abortions performed after the first

trimester, which, the district court found, placed a

substantial obstacle in the path of abortion-seekers. In

the alternative, the court found that the Act created an

undue burden even if construed to apply only to intact

D & Es. It found that the failure to distinguish be-

tween previability and postviability abortions placed a

substantial obstacle in the path of women who seek or

require an intact D & E prior to viability, even under

the unconvincing alternate construction of the statute.

Second, the district court found the Act unconsti-

tutionally vague. The court reasoned that the term

“partial-birth abortion” was not recognized in the medi-

cal community, and the phrases “living fetus,” “deliber-

ately and intentionally,” and “overt act” failed to put

physicians on notice as to what procedures would vio-

late the statute. As a result, the district court found

that the Act deprived physicians of fair notice and

encouraged arbitrary enforcement. The district court

held that the inclusion of scienter requirements did not

remedy the vagueness.

Third, the district court found the Act unconstitu-

tional becauSe it failed to include a health exception.

The court held that as a preliminary matter, it need not

decide the highly disputed issue of the proper standard

of deference applicable to Congress’s findings because,

even under the most deferential standard of review,

lla

Congress’s finding that the prohibited procedures were

never medically necessary to preserve women’s health

was not entitled to controlling deference. Instead, the

court, on the basis of the record before Congress at the

time it passed the Act, the record before the district

court and Supreme Court in Stenberg, and the record

adduced by the parties in the present case, concluded

that the Act’s failure to include a health exception

rendered it unconstitutional.

D. Other Federal Courts’ Treatment of the Act

In addition to the district court, three other federal

courts have reviewed the Act and each has held it

unconstitutional. The Eighth Circuit declared the Act

unconstitutional because it failed to contain an excep-

tion for women’s health as required under Stenberg.

Carhart v. Gonzales, 413 F.3d 791, 803-04 (8th Cir.

2005). The district court in that case also found the

Act unconstitutional because of the lack of a health

exception, as well as because it imposed an undue bur-

den on a woman’s ability to choose a previability, post-

first trimester abortion. Carhart v. Ashcroft, 331 F.

Supp. 2d 805, 809 (D. Neb. 2004)."' Finally, the District

© Because it found the Act unconstitutional on the ground that

it lacked a health exception, the Eighth Circuit declined to reach

the statute’s other potential constitutional infirmities. Carhart,

413 F.3d at 803-04.

'! In addition, the Nebraska district court noted that the law

would be unconstitutionally vague if the government’s “‘specific

intent’ construction” of the statute was not valid. Although the

court accepted the government’s construction, the judge stated, “I

would not be surprised if 1 was reversed on this point. If 1 have

erred by accepting [the government's] construction, and that is a

close question, then the statute is obviously far too vague.” Car-

hart, 331 F. Supp. 2d at 1040.

12a

Court for the Southern District of New York found the

Act unconstitutional because it did not contain a health

exception. Nat'l Abortion Fed’n. (“NAF”) v. Ashcroft,

330 F. Supp. 2d 436, 492-493 (S.D.N.Y. 2004)."* None of

these courts considered separately the question of rem-

edy because under Stenberg, 530 U.S. at 946, 120 S. Ct.

2597, enjoining enforcement of the Act appeared to be

mandatory at the time the decisions were issued.

Ayotte, 1268. Ct. at 969.

ll. Standard of Review

We review an order granting a permanent injunction

for abuse of discretion or application of erroneous legal

principles, Fortyune v. Am. Multi-Cinema, Inc., 364

F.3d 1075, 1079 (9th Cir. 2004), but review determina-

tions underlying such a grant by the standard that

applies-to such determinations. Ting v. AT & T, 319

F.3d 1126, 1134-35 (9th Cir. 2003). As a result, underly-

ing legal rulings are reviewed de novo and underlying

factual findings are reviewed under the clearly errone-

ous standard. /d. The question whether the Act im-

poses an undue burden or is unconstitutionally vague is

a legal issue subject to de novo review. Planned Par-

enthood of S. Ariz. v. Lawall (“Lawall II”), 307 F.3d

783, 786 (9th Cir. 2002).

In analyzing a facial challenge to an abortion statute,

we apply the undue burden standard established in

Planned Parenthood-of Southeastern Pa. v. Casey, 505

U.S. 833, 895, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).

Lawall [1, 307 F.3d at 786. “{Tyhe fact that the statute

is susceptible to some constitutional application will not

' The NAF court also declined to reach the other grounds for

declaring the statute unconstitutional. NAF, 330 F. Supp. 2d at

482-83.

l3a

save it from facial attack. Rather, we must be satisfied

that it will pose an undue burden in only a small frac-

tion of relevant cases.” Planned Parenthood of Idaho

Inc. v. Wasden, 376 F.3d 908, 921 (9th Cir. 2004); see

also Richmond Med. Ctr. for Women v. Hicks, 409 F.3d

619, 627-28 (4th Cir. 2005) (noting the recent Supreme

Court case Sabri v. United States, 541 U.S. 600, 124 S.

Ct. 1941, 158 L. Ed. 2d 891 (2004), makes clear that the

“no set of circumstances” test for facial challenges from

United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095,

95 L. Ed. 2d 697 (1987), “does not apply in the context

of a facia] challenge, like the one here, to a statute

regulating a woman’s access to abortion”). When the

question concerns the existence of an adequate health

exception, “facial challenges may prevail in an even

broader group of cases: those where a law could pre-

clude an abortion where it is necessary, in appropriate

medical judgment, for the preservation of the life or

health of the mother.” Wasden, 376 F.3d at 921 n.10

(citing Stenberg, 530 U.S. at 930, 120 S. Ct. 2597)

(internal quotation marks omitted); see also Carhart,

413 F.3d at 795 (“|I|f the Act fails the Stenberg test, it

must be held facially unconstitutional.”); Women’s Med.

Profl Corp. v. Voinovich, 130 F.3d 187, 196 (6th

Cir.1997) (“[A] post-viability abortion regulation which

threatens the life or health of even a few pregnant

women should be deemed unconstitutional.”), quoted in

Planned Parenthood of Rocky Mountains Serv. v.

Owens, 287 F.3d 910, 919 (10th Cir. 2002).

When determining the remedy for a statute found to

be unconstitutional, we are guided by “three interre-

lated principles”: one, we try to invalidate no more of a

statute than is necessary to remedy the constitutional

violation; two, we are mindful that the limited judicial

l4a

role and our institutional competence prevent us from

rewriting a statute in order to make it constitutional;

and three, any remedy we devise must be faithful to the

legislative intent in enacting the statute. Ayotte, at

967-969.

III. Analysis

We hold that the Act is unconstitutional for three

distinct reasons, each of which is sufficient to justify the

district court’s holding. First, the Act lacks the con-

stitutionally required health exception. Second, it

imposes an undue burden on women’s ability to obtain

previability abortions. Third, it is unconstitutionally

vague, depriving physicians of fair notice of what it

prohibits and encouraging arbitrary enforcement. For

reasons explained in Section IV infra, we conclude that

the appropriate remedy is to enjoin the enforcement of

the Act. We therefore affirm the district court’s issu-

ance of the permanent injunction.

A. The Act Is Unconstitutional Because It Lacks Any

Exception to Preserve the Health of the Mother

We hold that the omission of a health exception from

the Act renders it unconstitutional. In reaching that

conclusion, we first determine whether and in what cir-

cumstances a statute that regulates abortion but lacks a

health exception is constitutional under Stenberg.

Next, we consider the proper standard of review for the

findings Congress made in support of its omission of a

health exception from the Act. Finally, in light of this

analysis, we assess the Act and the congressional find-

ings that bear on its constitutionality.

15a

i. The Standard for Evaluating Abortion Restrictions

that Lack a Health Exception

Our analysis of whether the Act’s lack of a health

exception renders it unconstitutional is controlled by

Stenberg and Casey. Stenberg reaffirms Casey’s hold-

ing that the Constitution requires that any abortion

regulation must contain such an exception if the use of

the otherwise regulated procedure may in some in-

stances be necessary to preserve a woman’s life or

health. Wasden, 376 F.3d at 922; see also Hicks, 409

F.3d at 625. Stenberg holds that an abortion regulation

that fails to contain a health exception is unconstitu-

tional except when there is a medical consensus that no

circumstance exists in which the procedure would be

necessary to preserve a woman’s health. 530 U.S. at

937, 120 S. Ct. 2597. By medical consensus, we do not

mean unanimity or that no single doctor disagrees, but

rather that there is no significant disagreement within

the medical community.

The Stenberg holding implements the health excep-

tion requirement announced in Casey. Casey held that

even when the state’s interest in regulating abortion is

at its height (i.e., postviability), any restriction of an

abortion method must include an exception when that

method “‘is necessary, in appropriate medical judg-

ment, for the preservation of the life or health of the

mother’” in some circumstances. Stenberg, 530 U.S. a

921, 120 S. Ct. 2597 (quoting Casey, 505 U.S. at 879, 112

S. Ct. 2791 (quoting Roe v. Wade, 410 U.S. 113, 1€4-65,

93 S. Ct. 705, 35 L. Ed. 2d 147 (1973))). The Supreme

Court noted that the phrase “necessary, in appropriate

medical judgment” does not require “absolute neces-

sity,” “absolute proof,” or “unanimity of medical opin-

ion” regarding the need for the use of the regulated

l6a

procedure to preserve women’s health in some in-

stances. Stenberg, 530 U.S. at 937, 120 S. Ct. 2597. In

fact, the Court emphasized that, for purposes of Casey’s

requirement that an abortion ban have a health excep-

tion, “division of medical opinion . . . signals the pre-

sence of risk, not its absence,” and thus compels the

inclusion of the exception in the statute. Jd. Because

“uncertainty” or division in the medical community

regarding the need for a health exception “means a

significant likelihood that those who believe that [a

particular type of abortion procedure] is a safer abor-

tion method in certain circumstances |than the alter-

natives| may turn out to be right,” the Court held that

as long as there is a lack of consensus in that com-

munity, any regulation of an abortion method must

contain a health exception. /d. at 937-38, 120 S. Ct.

2597. Without a medical consensus, the Court stated, it

is impossible for a legislative body to determine that “a

health exception is never necessary to preserve the

health of women” and, in such circumstance, any abor-

tion regulation the legislature enacts without a health

exception is unconstitutional. /d. (internal quotation

marks omitted); see also Carhart, 413 F.3d at 796

(“[WJe believe when a lack of consensus exists in the

medical community, the Constitution requires legisla-

tures to err on the side of protecting women’s health by

including a health exception.”). Under the constitu-

tional] rule established in Stenberg, therefore, we must

inquire whether—applying the appropriate degree of

deference to the legislative body’s findings—the legisla-

ture properly concluded that there is consensus in the

medical community that the banned procedure is never

17a

medically necessary to preserve the health of women.

See NAF, 330 F. Supp. 2d at 488."

ii. Identifying and Applying the Appropriate Level of

Deference to Congress’s Factual Findings in the Act

Having identified the inquiry we must undertake in

order to assess the constitutionality of the Act’s lack of

a health exception, we now turn to the level of

deference we must apply to the relevant congressional

findings. Here, Congress omitted a health exception

because it found that “the facts indicate that a partial-

birth abortion is never necessary to preserve the health

of a woman,” Partial-Birth Abortion Ban Act § 2(13),

and that a “moral, medical and ethical consensus” exists

that “partial-birth abortion” is “never medically neces-

sary and should be prohibited.” /d. at § 2(1). Under

Stenberg, the former finding is dependent on the valid-

ity of the latter.

'S The government’s argument that the lack of medical consen-

sus was “only one of four ‘evidentiary circumstances’ bearing on

the question of comparative safety” and not the “dispositive consti-

tutional standard” misconstrues the Stenberg opinion. A careful

reading of Stenberg makes clear that the Court discusses the

“evidentiary circumstances” in the context of Casey’s principle

that an abortion restriction must contain a health exception when

“necessary, in appropriate medical judgment, for the . . . health

of the mother.” As explained above, the requirement that a lack of

medical consensus mandates the inclusion of a health exception is

the direct manifestation of this principle. The “medically related

evidentiary circumstances” are discussed by the Court in explain-

ing its conclusion that there was a lack of medical consensus about

the need for a health exception to the ban contained in the Ne-

braska statute and thus the statute was unconstitutional. The

discussion of these “medically related evidentiary circumstances”

does not establish or imply that “comparative safety,” as deter-

mined by the legislative body, is the standard for assessing an

abortion ban that lacks a health exception.

18a

The government and many of the amici argue that

Congress’s findings of fact in this case should be

evaluated under the standard articulated by the Court

in Turner Broadcasting System v. FCC (“Turner IT”),

520 U.S. 180, 117 S. Ct. 1174, 137 L. Ed. 2d 369 (1997),

and related cases. Under this standard, when review-

ing findings of fact that bear on the constitutionality of

a statute, a reviewing court need only “‘assure that, in

formulating its judgments, Congress has drawn reason-

able inferences based on substantial evidence.” /d. at

195, 117 S. Ct. 1174 (quoting Turner Broad. Sys. v. FCC

(“Turner I”), 512 U.S. 622, 666, 114 S. Ct. 2445, 129 L.

Ed. 2d 497 (1994)). The Court has explained that when

applying the substantial evidence standard, “the possi-

bility of drawing two inconsistent conclusions from the

evidence does not prevent . . . [a] finding from being

supported by substantial evidence.” Turner I1, 520

U.S. at 211, 117 S. Ct. 1174 (internal quotation marks

and citations omitted). The appellants and other amici,

however, strongly argue that Turner does not apply to

evaluations of the Act’s constitutionality.

As an initial matter, we note that the Court’s treat-

ment of the level of deference to be applied to congres-

sional findings that bear on the constitutionality of stat-

utes has been less than clear. In some cases, the Court

has expressly applied the substantial evidence standard

described in Turner and-related decisions. See, e.g.,

McConnell v. FEC, 540 U.S. 98, 165, 124 S. Ct. 619, 157

L. Ed. 2d 491 (2003). In others, the Court, without

mentioning 7'urner or substantial evidence, and without

identifying the standard of review it is applying, has

reviewed congressional findings of fact with considera-

bly less deference. See, e.g., Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 368-72, 121 S. Ct. 955, 148

19a

L. Ed. 2d 866 (2001); United States v. Morrison, 529

U.S. 598, 609-13, 120 S. Ct. 1740, 146 L. Ed. 2d 658

(2000). Considered together, these cases make it diffi-

cult to identify the proper standard to be applied to

congressional findings that bear on the constitutionality

of certain statutes; in fact, they suggest that no single

standard exists.

Fortunately, we need not resolve the question of the

proper standard of review for findings made pursuant

to the Act. -Under even the most deferential level of

review, the one identified as applicable in Congress’s

findings and by the government in its arguments to this

court, we cannot defer to the critical congressional

finding in this case: that there is a consensus in the

medical community that the prohibited procedures are

never necessary to preserve the health of women choos-

ing to terminate their pregnancies. The record before

Congress clearly demonstrates that no such consensus

exists, as do the congressional findings themselves. As

a result, we cannot uphold the finding to the contrary,

even if we apply substantial evidence review.

Although Congress found that “la] moral, medical,

and ethical consensus exists that the practice of per-

forming a partial-birth abortion . . . is never medically

necessary,” Partial-Birth Abortion Ban Act § 2(1), that

finding is directly belied by another of Congress’s

findings and by the record that Congress developed in

support of the legislation. The evidence of the lack of

medical consensus is replete throughout that record

and is confirmed in a significant statutory finding. As

the district court pointed out, “Congress’ |s}| very find-

ings contradict its assertion that there is a consensus.

Congress subsequently noted in its findings that ‘a

prominent medical association,’ the AMA, concluded

20a

that ‘there is no consensus among obstetricians about’

the use of intact D & E.” Planned Parenthood, 320 F.

Supp. 2d at 1025 (citing Partial-Birth Abortion Ban Act

§ 2(14)(C)) (emphasis added). The district court also

noted that “Congress . . . had before it a joint state-

ment from the AMA and ACOG, the two largest medi-

cal organizations taking positions on the issue, which

recognized the disagreement among and within the two

organizations.” /d. at 1025. Furthermore, “nearly half

(22 out of 46) of all individual physicians who expressed

non-conclusory opinions to Congress” stated that the

banned procedures were necessary in at least some cir-

cumstances, as did professors of obstetrics and gynecol-

ogy from many of the nation’s leading medical schools.

Carhart, 331 F. Supp. 2d at 1009; see also Planned

Parenthood, 320 F. Supp. 2d at 1025-26 (describing

other evidence before Congress demonstrating a lack of

medical consensus).

The evidence before Congress at the time it passed

the Act, as well as other evidence presented during liti-

gation, has led every court that has considered the

statute’s constitutionality to conclude that no medical

consensus exists that the abortion procedures outlawed

by the Act are never necessary to preserve the health

of a woman—and we agree. See Carhart, 413 F.3d at

802 (“If one thing is clear from the record in this case, it

is that no consensus exists in the medical community.

The record is rife with disagreement on this point, just

as in Stenberg.”); Carhart, 331 F. Supp. 2d at 1008 (“In

fact, there was no evident consensus in the record that

Congress compiled. There was, however, a substantial

body of medical opinion presented to Congress in

opposition:”); id. at 1009 (“Based upon its own record, it

was unreasonable to find, as Congress cid, that chere

2la

was ‘consensus’ of medica! opinion supporting the ban.

Indeed, a properly respectful review of that record

shows that a substantial body of contrary, responsible

medical opinion was presented to Congress. A reason-

able person could not conclude otherwise.”); NAF’, 330

F. Supp. 2d at 482 (“There is no consensus that [intact

D & E| is never medically necessary, but there is a

significant body of medical opinion that holds the con-

trary.”); Planned Parenthood, 320 F. Supp. 2d at 1025

(“(T he evidence available to Congress in passing the

Act in 2003, and currently before this court, very

clearly demonstrates . . . that there is no medical or

ethical consensus regarding either the humanity, neces-

sity, or safety of the procedure.”).

The government all but admits in its reply brief that

no medical conser us exists regarding the need for the

prohibited procedures to preserve the health of women

in certain circumstances. See Appellant’s Reply Brief

at 25 (admitting that “both sides now concede the exis-

tence of ‘contradictory evidence’ in the congressional

and trial records”). Nonetheless, it argues that the lack

of consensus regarding whether the procedures pro-

hibited by the Act are ever necessary to preserve the

health of women is irrelevant because under Turner

courts must resolve reasonable factual disagreements

in favor of congressional findings. The flaw in the

government’s argument is not the standard of review it

invokes, which may or may not be correct, but the

factual dispute it identifies as relevant. In reviewing

the Act’s lack of a health exception, the dispositive

question is not, as the government asserts, whether

Congress’s finding that the prohibited procedures are

never necessary to preserve the health of a mother

offers a reasonable (or plausible) resolution of a genuine

22a

factual dispute (which incidentally the record shows it

does not). Rather, under Stenberg, it is whether there

is general agreement in the medical community that

there are no circumstances in which the procedure

would be necessary to preserve a woman’s health.

Even the most cursory review of the Act and the

congressional record developed in support of it reveals

that no such medical consensus exists, a fact that the

government essentially concedes in its brief to this

court and that is fully confirmed by the evidence intro-

duced in the district court during trial. Thus, whether

we use Turner's substantial evidence test or a more

rigorous standard, under no circumstances would the

record permit us to uphold a finding that meets the

Stenberg requirement of the absence of a division of

opinion in the medical community.

We conclude that we cannot defer to Congress's find-

ing that the procedures banned by the Act are never

required to preserve the health of women; to the con-

trary, we are compelled to conclude, on the basis of the

record before Congress, of the congressional findings

themselves, and of evidence introduced in the district

court, that a substantial disagreement exists in the

medical community regarding whether those proce-

dures are necessary in certain circumstances for that

purpose. In such circumstance, we are compelled to

hold that a health exception is constitutionally required.

We therefore affirm the district court’s holding that

Congress’s failure to include a health exception in the

statute renders the Act unconstitutional."

' Our conclusion applies whether the Act is construed as ban-

ning only intact D & Es or all D & Es. See section ILI.B infra.

Whenever a procedure is banned that may be necessary to

23a

B. The Act is Unconstitutional Because It Imposes an Un-

due Burden on Women’s Right to Choose a Previability

Abortion

In addition to its lack of a health exception, the Act

suffers from other major deficiencies that lead us to

conclude that it is unconstitutional, including the undue

burden it imposes on a woman’s constitutional right to

choose to have an abortion before the fetus is viable.”

The Constitution guarantees a woman the right to

choose to terminate a previability pregnancy. Stenberg,

530 U.S. at 921, 120 S. Ct. 2597 (quoting Casey, 505 U.S.

at 870, 112 S. Ct. 2791); Tucson Woman’s Clinic v.

Eden, 379 F.3d 531, 539 (9th Cir. 2004) (as amended);

Wasden, 376 F.3d at 921. Although the Constitution

firmly guarantees women that right, the state may seek

to protect its interest in fetal life by regulating the

means by which abortions may be secured, provided the

regulations do not impose an “undue burden” on a

woman’s ability to obtain an abortion. Stenberg, 530

U.S. at 921, 120 S. Ct. 2597; Casey, 505 U.S. at 874, 112

S. Ct. 2791; see also Tucson Woman's Clinic, 379 F.3d

at 539; Wasden, 376 F.3d at 921. An “‘undue burden is

. Shorthand for the conclusion that a state regu-

lation has the purpose or effect of placing a substantial

preserve some women’s health, a statutory exception is required.

Stenberg, 530 U.S. at 934-38, 120 S. Ct. 2597.

'© The question of the constitutionality of statutes that regulate

“partial-birth abortions” is of substantial importance and requires

as prompt an answer as possible. Rather than relying solely on

one ground and reserving the other questions as to the statute's

constitutionality for later adjudication, we deem it best to decide

simultaneously all constitutional issues raised. Moreover, whether

a remedy other than enjoining enforcement of the Act in its en-

urety is appropriate may depend in part on the nature and extent

of the constitutional violations. See Ayotte, at 968.

24a

obstacle in the path of a woman seeking an abortion of a

nonviable fetus.’” Stenberg, 530 U.S. at 921, 120 S. Ct.

2597 (quoting Casey, 505 U.S. at 877, 112 S. Ct. 2791).

In Stenberg, the Court held that a Nebraska statute

regulating so-called “partial-birth abortions” imposed

an undue burden. Without deciding the issue whether a

statute that outlawed only intact D & Es would be

unduly burdensome, the Stenberg court held that an

abortion ban that failed to differentiate in its statutory

language between intact D & Es and non-intact D & Es

unquestionably constituted an undue burden, for the

obvious reason that it would prohibit most second

trimester abortions. Stenberg, 530 U.S. at 938-46, 120

S. Ct. 2597. As part of its analysis, the Stenberg Court

provided legislatures with guidance about how to draft

statutes that would adequately distinguish between the

two forms of D & E. The Court explained that a legis-

lature can make clear that a statute intended to regu-

late only intact D & Es applies to that form of the pro-

cedure only, by using language that “track[s] the

medical differences between” intact and non-intact D &

Es or by providing an express exception for the per-

formance of non-intact D & Es and other abortion

procedures. Stenberg, 530 U.S. at 939, 120 S. Ct. 2597."

‘6 As an example, the Court cited Kansas’s “partial-birth abor-

tion” ban which explicitly exempts the “dilation and evacuation

abortion procedure involving dismemberment of the fetus prior to

removal! from the body of the pregnant woman.” Kan. Stat. Ann.

§ 65-6721(b)(2) (Supp. 1999), cited in Stenberg, 530 U.S. at 989, 120

S. Ct. 2597. The Ohio “partial-birth abortion” ban recently upheld

by the Sixth Circuit also specifically exempts non-intact D & Es in

its statutory language. See Women’s Med. Prof'l Corp. v. Taft, 353

F.3d 486, 452 (6th Cir. 2003) (upholding Ohio Rev. Code Ann.

§ 2919.151 (Anderson 2002)); see also Planned Parenthood of Cent.

NJ. v. Farmer, 220 F.3d 127, 140 (3rd Cir. 2000) (declaring New

25a

In her concurring opinion, Justice O’Connor emphasized

how by employing the latter approach, a legislature

could easily make clear that a statute intended to regu-

late intact D & E was in fact narrowly tailored to reach

only that form of the D & E procedure. Stenberg, 530

U.S. at 950, 120 S. Ct. 2597 (O’Connor, J., concurring).

Citing three state statutes prohibiting intact D & Es

which had “specifically exclud|ed] from their coverage”

other abortion methods,” Justice O’Connor described

the language each statute used, providing legislatures

wishing to prohibit only intact D & Es with a clear

roadmap for how to avoid the problems regarding the

scope of coverage that undid the Nebraska statute. /d.

When drafting the Act, however, Congress deliber-

ately chose not to follow the Court’s guidance. See Sec-

tion IV infra. The Act’s definition of the prohibited

procedures does not attempt to track the medical

differences between intact D & E and other forms of D

& E, nor does it explicitly exclude non-intact D & Es

from its reach. Instead of using either of these ap-

proaches for accomplishing the objective the govern-

ment embraces in its brief—prohibiting only intact D &

Es, Congress defined the prohibited procedure in a way

that a number of doctors have explained includes both

intact and non-intact D & Es, and that we likewise

Jersey’s “partial-birth abortion” ban unconstitutional and stating

that “li]f the Legislature intended to ban only the [intact D & E)

procedure, it could easily have manifested that intent either by

specifically naming that procedure or by setting forth the medical

definition of [intact D & E] utilized by the ACOG”).

'’ In addition to the Kansas statute referenced in the majority

opinion, Justice O’Connor also cited laws enacted by Montana,

Mont. Code Ann. § 50-20-401(3)(c)(ii) (Supp. 1999), and Utah, Utah

Code Ann. § 76-7-310.5(1)(a) (1999). Stenberg, 530 U.S. at 950, 120

5. Ct. 2597 (O’Connor, J., concurring).

26a

conclude bans both forms of the procedure. Because

the Act, like the statute invalided in Stenberg, would

allow prosecutors to pursue physicians who “use [non-

intact] D & E procedures, the most commonly used

method for performing previability second trimester

abortions” and would cause all doctors performing

those procedures to “fear prosecution, conviction, and

imprisonment,” Stenberg, 530 U.S. at 945, 120 S. Ct.

2597, it too is unconstitutional." Neither the differences

the government cites between the language of the Act

and the Nebraska statute nor the scienter

requirements contained in the Act limit its application

to the intact D & E procedure and neither, therefore,

serves to cure the statute’s constitutional infirmity.

i. The ActE ncom passes Non-Intact D & E Procedures

The government offers no explanation for why Con-

gress did not adopt either of the two approaches

outlined by the Court and Justice O’Connor in Stenberg

for legislating a prohibition that is applicable only to the

intact D & E procedure. Rather, it asserts that the

federal statute differs from the Nebraska statute invali-

dated in Stenberg in three significant respects that

collectively make it clear that the Act applies only to

that form of the procedure. It argues that, as a result,

the Act is constitutional although the Nebraska law was

not. The differences in statutory language to which the

government points fall far short, however, of ade-

1S Stenberg held that a regulation that prohibits non-intact D &

Es as well as intact D & Es imposes an undue burden. Stenberg,

530 U.S. at 938, 120 S. Ct. 2597. Because the prohibition here ap-

plies to both, we need not reach the issue whether the Act also

applies to induction procedures. Nor need we decide whether if

the Act applied only to intact D & Es, it would on that basis alone

unduly burden the rights of women.

27a

quately differentiating between the two forms of D &

E, much less of achieving the degree of certainty re-

garding the Act’s scope that Congress could have easily

accomplished had it followed Stenberg, either by track-

ing the medical differences between intact D & E and

other forms of D & E or by specifying that the forms of

D & E other than the intact version are not covered by

the prohibition.

The three differences between the Act and the

Nebraska statute that the government relies on are as

follows. First, the government notes that unlike the

Nebraska statute which applied when the living fetus

or a substantial portion of it was delivered “into the

vagina,” Neb. Rev. Stat. § 28-326(9), the federal Act

applies only when there is a vaginal delivery “outside

the body of the mother,” 18 U.S.C. § 1531(b)(1)(A). The

government argues that because non-intact D & E

generally involves dismemberment of the fetus before

it leaves the mother’s body, the specification that the

Act applies only when a living fetus or a part thereof is

delivered outside the mother’s body makes clear that

the Act does not apply to that procedure. The govern-

ment’s claim is incorrect. As the record demonstrates

and the district court found, in non-intact D & Es, a

doctor may extract a substantial portion of the fetus—

including either a part of the fetal trunk past the navel

or the entire fetal head—to the point where it is outside

the body of the mother before the fetal disarticulation

occurs. Although different from the provision in the

Nebraska statute, the “outside the body of the mother”

provision does not limit the Act’s reach to intact D & Es

and, as a result, does not eliminate the undue burden

the Act imposes.

28a

Second, the Nebraska statute applied only when “a

living unborn child, or a substantial portion thereof” is

delivered for the purpose of performing a prohibited

act, Neb. Rev. Stat. § 28-326(9), whereas the federal

Act states its prohibition applies only when either the

“entire fetal head” or “any part of the fetal trunk past

the navel” of a living fetus is delivered for a similar

purpose, 18 U.S.C. § 1531(b)(1)(A). The government

argues that the use of a “specific anatomic landmark”

addresses the concern the Supreme Court expressed

with the “substantial portion” language of the Ne-

braska statute.” As with the first difference relied

upon by the government, however, the “specific anat-

omic landmark” language makes the Act different from

the Nebraska statute but does not exclude non-intact D

& Es from the Act’s coverage. As the district court

found, intact D & Es are not the only form of D & E in

which the “entire fetal head” or “any part of the fetal

trunk past the navel” of a living fetus may be delivered

prior to the performance of an act banned by the

statute: the “anatomic landmark” specified in the Act

may be reached by doctors performing either intact or

non-intact D & Es.” Accordingly, this second differ-

9 In Stenberg, the Court stated it did not understand how using

the language of the Nebraska statute “one could distinguish . . .

between [non-intact] D & E (where a foot or arm is drawn through

the cervix) and [intact D & E] (where the body up to the head is

drawn through the cervix). Evidence before the trial court makes

clear that [non-intact] D & E will often involve a physician pulling

a ‘substantial portion’ of a still living fetus, say, an arm or leg, into

the vagina prior to the death of the fetus.” 530 U.S. at 939, 120 S.

Ct. 2597.

“" In a non-intact D & E, the presence of “some part of the fetal

trunk past the navel . . . outside the body of the mother” can

occur, for instance, when “on an initial pass into the uterus with

29a

ence from the Nebraska statute, like the first, does not

establish that the Act is applicable only to intact D &

Es.

Third, the Nebraska statute applied when a doctor

“deliberately and intentionally deliver[s] into the

vagina a living unborn child, or a substantial portion

thereof, for the purpose of performing a procedure that

the person performing such procedure knows will kill

the unborn child and does kill the unborn child.” Neb.

Rev. Stat. § 28-326(9) (emphasis added). The federal

statute, however, requires that a doctor “deliberately

and intentionally vaginally deliver| | a living fetus .. .

for the purpose of performing an overt act that the per-

son knows will kill the partially delivered living fetus”

and “perform [ ] the overt act, other than completion of

delivery, that kills the partially delivered living fetus.”

18 U.S.C. § 1531(b)(1)(A), (B). The government argues

that this “overt act” requirement unambiguously estab-

lishes that the Act does not apply to abortion proce-

dures other than intact D & Es. However, this lan-

guage is also not as restrictive as the government

claims. In non-intact D & Es, as well as in the intact

form of the procedure, if the fetus has been brought to

either of the two anatomic landmarks specified in the

Act, a doctor may then, in order to complete the abor-

tion safely, need to perform an “overt act,” other than

forceps, the physician disarticulates a small fetal part, which does

not cause immediate demise, and then on a subsequent pass, the

fetus is brought out of the cervix past the fetal navel” before

further disarticulation occurs or when “on an initial pass into the

uterus with forceps, the physician brings out a fetal part—either

attached to the rest of the fetus, or not—that is ‘part of the fetal

trunk past the navel,’ but the extraction does not cause immediate

demise.” See Planned Parenthood, 320 F. Supp. 2d at 972.

30a

completing delivery, that the physician knows the fetus

cannot survive, if it is still living, and that “kills” the

fetus. The “overt act” that may be performed in a non-

intact D & E includes disarticulating the fetus or com-

pressing the abdomen or other fetal part that is ob-

structing the completion of the uterine evacuation. As

with the other two differences in the statutory lan-

guage that the government claims clearly establish that

the Act applies only to intact D & E, the “overt act”

language does not so restrict the Act’s applicability.

Contrary to the government’s claim, properly con-

strued the Act covers non-intact as well as intact D &

Es. As a result, despite containing some provisions

that are different in form from those in the Nebraska

statute, the Act is sufficiently broad to cause those who

perform non-intact D & E procedures to “fear prosecu-

tion, conviction, and imprisonment.” Stenberg, 530 U.S.

at 945, 120 8. Ct. 2597. The resulting chilling effect on

doctors’ willingness to perform previability post-first

trimester abortions would impese an undue burden on

the constitutional rights of women. /d.*'

ii. The Act’s Scienter Requirements Do Not Cure the Con-

stitutional Infirmity

The government also argues that the Act’s scienter

requirements preclude application of the statute to

physicians who perform non-intact D & E procedures

and that the federal statute should therefore survive

constitutional scrutiny. Although the Act does limit its

reach to those who “knowingly perform a partial-birth

-! We note that the Act’s reference to “living fetus” does not

differentiate it from the Nebraska statute, which used the same

term. Nor does this or any other language in the Act limit its

applicability to viable fetuses. See infra pages 38a-3¥a.

3la

abortion,” 18 U.S.C. § 1531(a) (emphasis added), and

“deliberately and intentionally vaginally deliver|] a

living fetus until, in the case of a head-first presenta-

tion, the entire fetal head is outside the body of the

mother, or, in the case of breech presentation, any part

of the fetal trunk past the navel is outside the body of

the mother,” 18 U.S.C. § 1531(b)(1)(A) (emphasis

added), these scienter requirements do not permit us to

interpret the Act as reaching only the intact D & E

procedure.

The government’s argument about the restrictive

effect of the statute’s scienter requirements depends on

the premise that, once the scienter requirements are

applied, the Act’s description of the prohibited proce-

dure includes only intact D & Es. However, that is

simply not the case. The actions described in the

statute’s definition of the prohibited procedure can be

performed with the requisite intent in both the intact

and the non-intact forms of the D & E procedure. For

instance, the record shows that a doctor performing a

non-intact D & E of a fetus in the breech position may,

in order to minimize the number of disarticulated fetal

parts removed from the woman’s body, “deliberately

and intentionally vaginally deliver] a living fetus until

. the fetal trunk past the navel is outside the body

of the mother” before performing the acts of disarti-

culation. Such an abortion meets all of the require-

ments of the procedure outlawed by the Act—the doc-

tor knowingly, deliberately, and intentionally vaginally

delivers the fetus to the specific anatomic landmark and

does so for the purpose of performing an “overt act |the

disarticulation] that [he] knows will kill the partially

delivered living fetus” and performs that act. See, e.g.,

Brief of Amici Curiae the California Medical Associa-

32a

tion et al. at 22.~ Even with the Act’s scienter require-

ments, therefore, non-intact D & Es readily fall within

the scope of the statute’s description of the banned pro-

cedure. As a result, the inclusion of the scienter

requirements does not resolve the undue burden con-

cerns recognized by the Supreme Court in Stenberg.

iui. Conclusion

The Act’s definition of the prohibited procedure, like

that of the unconstitutional Nebraska statute, covers

both forms of D & E, intact and non-intact. In any

event, it fails to differentiate between the two suffi-

ciently clearly to permit doctors to perform the latter

procedure without fear of prosecution. Because the Act

applies to, or could readily be employed to prosecute,

physicians who “use |non-intact| D & E procedures, the

most commonly used method for performing previabil-

ity second trimester abortions,” Stenberg, 530 U.S. at

945, 120 S. Ct. 2597, it imposes a substantial risk of

criminal hability on almost al) doctors who perform

previability abortions after the first trimester. Thus,

the Act would, at a minimum, create a chilling effect

that “‘placles| a substantial obstacle in the path of a

woman seeking an abortion of a nonviable fetus.” /d.

at 921,120 S. Ct. 2597.% We conclude that, because of

= Because the Act’s definition reaches many non-intact D & E

procee.-cs even if “deliberately and intentionally” modifies not

only -* aginal delivery language but also the language describ-

ing th her steps contained in the Act's definition of “partial-

birth abortion,” it is unnecessary to resolve the parties’ dispute as

to which parts of the procedure as defined by the Act the “deli-

berately and intentionally” requirement applies.

~ We do not reach the question whether the Act would impose

an undue burden if it clearly applied only to intact D & Es,

33a

both the actual and the potential risk to doctors who

perform previability abortions, the Act imposes an “un-

due burden upon a woman’s right to make an abortion

decision,” id. at 946, 120 S. Ct. 2597, and is unconstitu-

tional. :

C. The Act is Unconstitutionally Vague

Besides lacking the required health exception and

imposing an undue burden on a woman’s right to termi-

nate her pregnancy, the Act is also unconstitutionally

vague. It fails to define clearly the medical procedures

it prohibits, depriving doctors of fair notice and en-

couraging arbitrary enforcement. The Act’s scienter

requirements do not cure the statute’s vagueness. We

conclude that the Act’s unconstitutional vagueness con-

stitutes an independent ground for affirming the dis-

trict court’s finding of unconstitutionality.

To survive vagueness review, a statute must “(1) de-

fine the offense with sufficient definiteness that ordi-

nary people can understand what conduct is prohibited;

and (2) establish standards to permit police to enforce

the law in a non-arbitrary, non-discriminatory manner.”

Nunez by Nunez v. City of San Diego, 114 F.3d 935,

940 (9th Cir. 1997) (citing Kolender v. Lawson, 461 U.S.

352, 357, 108 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)). The

need to avoid vagueness is particularly acute when

the statute imposes criminal penalties, see Forbes v.

Napolitano, 236 F.3d 1009, 1011-12 (9th Cir. 2000) (as

amended), or when it implicates constitutionally pro-

tected rights, see Nunez by Nunez, 114 F.3d at 940.

Because this statute both imposes criminal penalties

and implicates a constitutionally protected right, it is

although the question presents at the least a substantial constitu-

tional issue.

34a

subject to heightened vagueness review. Jd. The Act

cannot survive that review.

The government essentially makes three arguments

regarding the vagueness of the Act. First, it asserts

that the statutory scheme as a whole “specifically and

narrowly defines” the single “method of abortion” that

it outlaws (i.e., intact D & E). As we have explained,

Stenberg explicitly described, for the benefit of legis-

lative bodies (and, presumably, the government), two

possible ways to make clear that a prohibition on intact

D & E is applicable only to that form of the procedure.

Congress deliberately declined to adopt either method

and instead drafted statutory language that may best

be understood as also outlawing non-intact D & Es, the

type of procedure most often used to perform post-first

trimester previability abortions. This reading of the

statute was confirmed by the trial testimony of numer-

ous doctors and practitioners offering abortion services.

As the district court noted, “they do not understand

exactly what the Act prohibits.” Planned Parenthood,

320 F. Supp. 2d at 977.% Although we may conclude

following a painstaking legal analysis that the statute

covers both forms of D & E, the language of the statute,

taken as a whole, is not sufficiently clear regarding

what it permits and prohibits to guide the conduct of

“ In citing the testimony of the doctors who testified at trial,

the district court was not treating its vagueness determination as

an “evidentiary question,” as the government claims. Rather, it

used that testimony to help it understand the steps involved in the

different forms of D & E and induction, in order to assess whether

the Act’s language was sufficiently clear, and, in the district

judge’s own words, to “confirm{]” its legal conclusion that the Act

was vague. Planned Parenthood, 320 F. Supp. 2d at 977. This is

an entirely appropriate use of expert testimony by a court as part

of a vagueness inquiry.

35a

those affected by its terms, specifically medical practi-

tioners. As a result, the Act is unconstitutionally

vague, and certainly so if the legislative intent was, as

the government argues, to restrict its scope to intact D

& E.

Second, the government objects to the district court’s

conclusion that the specific terms “partial-birth abor-

tion,” “overt act,” and “living fetus” are “fatally am-

biguous.” As to the term “partial-birth abortion,” the

government challenges the district court’s statement

that the term has “little if any medical significance,”

arguing that it is “‘widely known’ as synonymous with

the medical terms ‘D & X’ and ‘intact D & E.’” The

only citation the government offers to support this

argument is a Sixth Circuit case, Women’s Med. Prof'l

Corp. v. Taft, 353 F.3d 436, 439-40 (6th Cir. 2003), which

considered an Ohio ban on “partial-birth abortion.”

Taft, however, does nothing to bolster the govern-

ment’s argument that the term “partial-birth abortion”

is, in and of itself, sufficiently clear as to the procedures

it encompasses that any vagueness problems with the

statute are cured. In fact, the contrast between the

Ohio statute reviewed in Taft and the federal Act at

issue here illuminates the latter’s vagueness. In Taft,

the Sixth Circuit’s conclusion that the Ohio statute

survived vagueness review did not rest at all on the

proposition that the term “partial-birth abortion” is

“‘widely known’ as synonymous with the medical terms

‘D & X’ and ‘intact D & E.’” Rather, the Sixth Circuit

held the Ohio law was not unconstitutionally vague

because the statute defined the restricted procedures

using “clinical terms” and explicitly stated that it did

not apply to non-intact D & E or other abortion proce-

-

36a

dures besides intact D & E.” Taft, 353 F.3d at 441. The

Sixth Circuit noted that by defining the reach of its

statute’s prohibition in this way, Ohio heeded the Su-

preme Court’s observation in Stenberg that “Nebraska

might have fared better if its description of the pro-

cedure had ‘tracked the medical differences between

[non-intact| D & E and [intact D & E],’ [or] ‘provided an

exception for the performance of |non-intact] D & E

and other abortion procedures.” Taft, 353 F.3d at 452

(quoting Stenberg, 530 U.S. at 939, 120 S. Ct. 2597). By

contrast, Congress chose to ignore Stenberg’s warning

when it enacted the Act, as noted in the previous

section, and failed to follow its clear roadmap—either

by defining the scope of the statute’s prohibition using

clinical terms that track the medical differences

between intact D & E and other forms of D & E or by

delineating expressly which procedures are exempted

from the ban. The Taft decision, therefore, provides no

support for the proposition that the term “partial-birth

abortion” is concrete enough on its own to obviate any

vagueness concerns with a statute that seeks to outlaw

it. The government cites no other case, in this circuit or

any other, that supports its proposition and thus has

offered no justification for its claim that “partial-birth

abortion,” which is not a recognized medical term, is

itself sufficiently clear to overcome the vagueness con-

cerns identified by the district court.

” As the Taft court reported, one provision of the Ohio statute

provided, “This section does not prohibit the suction curettage pro-

cedure of abortion, the suction aspiration procedure of abortion, or

the dilation and evacuation procedure of abortion.” 353 F.4d at

452. Another part of the Ohio statute further clarifies the scope of

its prohibition, stating “‘({djilation and evacuation procedure of

abortion’ does not include the dilation and extraction procedure of

abortion.” /d.

37a

Alternatively, the government argues that “partial-

birth abortion” is an “expressly defined term [in the

statute] . . . and thus cannot itself support a vague-

ness challenge.” However, the mere fact that “partial-

birth abortion” is an “expressly defined term” in the

statute is not enough to survive vagueness review if

that definition is itself vague, as is the case here. See,

e.g., Planned Parenthood of Cent. N.J. v. Farmer, 220

F.3d 127, 136-40 (3d Cir. 2000) (finding a New Jersey

statute outlawing “partial-birth abortion” unconstitu-

tional based on its conclusion that its definition of

“partial-birth abortion” was vague). Although the

federal Act uses somewhat different language from that

used in the statute invalidated in Stenberg, its definition

of “partial-birth abortion” nonetheless “fails to provide

a reasonable opportunity to know what conduct is

prohibited” and “is so indefinite as to allow arbitrary

and discriminatory enforcement.” Tucson Woman’s

Clinic, 379 F.3d at 554. The Act does not “specifically

and narrowly define[}” a single “method of abortion,” as

the government claims; rather, its provisions could

readily be applied to a range of methods of performing

post-first trimester abortions. Furthermore, as dis-

cussed above, Congress chose not to take the simple

steps, suggested by the Court in Stenberg, to cure the

vagueness in its definition of partial-birth abortion. As

a result, doctors who perform non-intact D & E abor-

tions, which the government contends are not intended

to be outlawed by the Act, have good reason to fear

that they will be deemed subject to its prohibitions. At

the least, they cannot be reasonably certain that their

conduct is beyond the reach of the Act’s criminal pro-

visions; nor can they be reasonably assured that the Act

will not be arbitrarily enforced.

38a

The government also objects to the district court’s

characterization of “overt act” as vague. It asserts that

the term itself is not unconstitutionally vague, citing its

use in the Constitution and various federal statutes. It

further claims that by modifying “overt act” with the

phrase “other than completion of delivery,” the statute

makes clear that the term does not apply to “cutting the

umbilical cord” or other “essential aspects of delivery,”

which, it argues, establishes that the statute’s ban does

not encompass induction. While the government

rightly points out that the term “overt act” is not in all

usages unconstitutionally vague, the district court was

correct to hold that in the context of the Act it is, even

when modified by “other than completion of delivery.”

Beyond conclusory statements, the government in no

way refutes the district court’s determination that

“overt act, other than completion of delivery” can plau-

sibly encompass a range of acts involved in non-intact D

& E, including disarticulation and compressing or

decompressing the skull or abdomen or other fetal part

that is obstructing completion of the uterine evacuation

(and in induction, possibly even the cutting of the um-

bilical cord). Because these acts can readily be deemed

covered by the phrase “overt act, other than completion

of delivery,” the phrase does not provide the definitive-

ness about tlie statute’s scope that the government

asserts. The use of the term “overt act” does nothing to

remedy the statute’s failure to provide adequate notice

of what forms of D & E the Act prohibits and to pre-

vent its arbitrary enforcement. See Forbes, 236 F.3d at

1011.

The government additionally challenges the district

court’s conclusion that the term “living fetus” contrib-

utes to the vagueness of the statute. We, like the Third

39a

Circuit, conclude that the use of “living fetus” in a

statute banning “partial-birth abortions” adds to confu-

sion about the scope of the prohibited conduct. Al-

though the term “living fetus” may suggest to some

that the Act’s prohibition is limited to abortions of

viable fetuses, the term has no such meaning. While a

fetus typically is not viable until at least 24 weeks Imp,

it can be “living”—meaning that it has a detectable

heartbeat or pulsating umbilical cord—as early as

seven weeks Imp, well before the end of even the first

trimester. As the Third Circuit noted, “because a fetus

may be ‘living’ as early as seven weeks Imp, use of the

term ‘living’ instead of ‘viable’ indicates that, contrary

to the understanding of a large segment of the public

and the concomitant rhetoric, the Act is in no way

limited to late-term, or even mid-term, abortions. . . .

{[Mjost common abortion procedures will fall within this

limitation.” Farmer, 220 F.3d at 137. Therefore, far

from curing the statute’s vagueness problems, the use

of the term “living fetus” instead-of “viable fetus”

creates additional confusion about the Act’s scope.

Third, the government argues that any unconstitu-

tional vagueness is eliminated by the “narrowing and

mutually reinforcing scienter requirements.” However,

as we explained in the undue burden section, section

III.B supra, the scienter requirements do not restrict

the statute’s reach to doctors who purposely set out to

perform the intact form of the D & E procedure. They

therefore do not remedy the Act’s failure to provide fair

warning of the prohibited conduct; rather, they permit

the Act’s arbitrary and discriminatory enforcement. In

short, as we recently held, a scienter requirement ap-

plied to an element that is itself vague does not cure the

provision’s overall vagueness. See Wasden, 376 F.3d at

40a

933; see also Farmer, 220 F.3d at 138 (“At a minimum,

to limit the scope of a statute to ‘deliberately and inten-

tionally’ performing a certain procedure, the procedure

itself must be identified or readily susceptible of identi-

fication. Here, it is not.” (citations omitted)); Planned

Parenthood of Greater lowa, Inc. v. Miller, 195 F.3d

386, 389 (8th Cir. 1999) (holding that Iowa partial-birth

abortion ban’s inclusion of scienter requirement “cannot

save it” because the Act still “encompasses more than

just the [intact D & E] procedure”); R.J. Med. Soc’y v.

Whitehouse, 66-¥—Supp. 2d 288, 311-12 (D.R.I. 1999)

(holding that scienter requirement could not save

Rhode Island’s partial birth abortion statute because

the “scienter requirement modifies a vague term”).

The scienter requirements, therefore, do nothing to

cure the Act’s vagueness.

Because neither the statute when read as a whole nor

its individual components provide fair warning of the

prohibited conduct to those it regulates and because the

Act permits arbitrary and discriminatory enforcement,

we affirm the district court’s determination that the

Act is unconstitutionally vague.

IV. Remedy

In considering the remedy for a statute found to re-

strict access to abortion in violation of the Constitution,

we are guided by “(tlhree interrelated principles.”

Ayotte, at 967. First, we endeavor to invalidate no

more of a statute than necessary. Jd. Second, “mindful

that our constitutional mandate and institutional com-

petence are limited, we restrain ourselves from ‘re-

writ/ing] state law to conform it to constitutional re-

quirements’ even as we strive to salvage it.” /d. (quot-

ing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,

397, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988)). Third, in

4la

devising the remedy we must be cognizant of legislative

intent “for a court cannot ‘use its remedial powers to

circumvent the intent of the legislature.” Ayotte, at

967 (quoting Califano v. Westcott, 443 U.S. 76, 94, 99 S.

Ct. 2655, 61 L. Ed. 2d 382 (1979) (Powell, J., concurring

in part and dissenting in part)). Applying these princi-

ples to the present case, we conclude that upholding the

permanent injunction against the enforcement of the

statute in its entirety is the only permissible remedy.

We cannot, consistent with the judiciary’s limited role,

devise a narrower injunction that adequately addresses

the various constitutional infirmities in the Act.

Our conclusion is dictated in part by the grounds on

which we hold the Act unconstitutional. We do not

conclude that it is unconstitutional solely due to its lack

of a health exception. Cf. Ayotte, at 965 (“We granted

certiorari to decide whether the courts below erred in

invalidating the Act in its entirety because it lacks an

exception for the preservation of pregnant minors’

health.” (internal citation omitted)). Had our holding on

the statute’s constitutionality rested solely on that

ground, we might have been able to draft a more “finely

drawn” injunction, Ayotte, at 969, prohibiting the Act’s

enforcement only when the banned procedure was

necessary to preserve a woman’s health. Because such

relief would not require us to rewrite substantial

portions of the statute, drafting the injunction would be

within our institutional competence. Nonetheless, in

the case of the Partial-Birth Abortion Ban Act, the

issuance of such an order would not be consistent with

the Ayotte precepts, because in order to do so we would

be required to violate the intent of the legislature and

usurp the policy-making authority of Congress.

42a

Congress did not inadvertently omit a health excep-

tion from the Act. It was not only fully aware of Sten-

berg’s holding that a statute regulating “partial-birth

abortion” requires a health exception, but it adopted

the Act in a deliberate effort to persuade the Court to

reverse that part of its decision.” Congress was ad-

vised repeatedly that if it passed an abortion ban with-

out a health exception, the statute would be declared

unconstitutional,” yet it rejected a number of amend-

*6 Senator Santorum, the lead sponsor of the Act in the Senate,

stated during the floor debate, “We are here because the Supreme

Court defended the indefensible [in Stenberg]. . . . We have

responded to the Supreme Court. I hope the Justices read this

Record because I am talking to you. . . . [TJhere is no reason for a

health exception.” 149 CONG. REC. S3486 (daily ed. Mar. 11, 2003)

(statement of Sen. Santorum); see also 149 CONG. REC. H4933

(daily ed. June 4, 2003) (statement of Rep. Conyers) (“[The Act]

does not add a health exception but instead simply states that the

procedures covered by the bill are not necessary and that their

probation poses no risk to the mother’s health. This declaration

goes directly against the ruling of the Supreme Court in Stenberg.

. . . The ‘findings,’ in effect, are an attempt to overturn Sten-

berg.”). ,

“7 Numerous members of Congress stated during the debate on

the Act that the statute was unconstitutional because it did not

include a health exception. Senator Feinstein, for instance, said,

“What is wrong with [the Act]? . . . To begin with, it is uncon-

stitutional because it lacks a health exception. . . . A review of

the Supreme Court’s abortion decisions and the record makes clear

that any ban on . . . what supporters of the Santorum bill

incorrectly call partial-birth abortion—must include a health ex-

ception.” 149 CONG. REC. S3601 (daily ed. Mar. 12, 2003) (state-

ment of Sen. Feinstein). Arguing in favor an amendment he pro-

posed, Senator Durbin stated one reason to support it was “be-

cause it has a health exception not contained in [the Act], it is more

likely to withstand the constitutional challenge and scrutiny across

the street at the Supreme Court.” 149 Conc. REC. 53481 (daily ed.

Mar. 11, 2003) (statement of Sen. Durbin). See also, e.g., 149 CONG.

43a

ments that would have added such an exception.* It

considered the omission of the exveption to be a critical

REC. $3424 (daily ed. Mar. 11, 2003) (statement of Sen. Murray)

(“[T|he Supreme Court found the State law unconstitutional [in

Stenberg) because it did not contain an exception to protect the

woman’s health. . . . Guess what. The [Act] fails the same

constitutional test.”); 149 CONG. REC. $3576 (daily ed. Mar. 12,

2003) (statement of Sen. Mikulski) (“We are not loophole shopping

when we insist that an exception be made in the case of serious and

debilitating threats to a woman’s physical health. This is what the

Constitution requires. . . .”); 149 CONG. REC. 83561 (daily ed.

Mar. 12, 2003) (statement of Sen. Boxer) (“We have a bill that, if it

passes, makes no exception for the health of the mother. We have

a bill that legal experts say is legally identical] to the law that was

ruled unconstitutional by the Supreme Court.”); 149 CONG. REC.

H4926 (daily ed. June 4, 2€03) (statement of Rep. Nadler) (“The bill

lacks an exception for the health of the woman. | know that some

of my colleagues do not like the constitutional rule that has been in

place and reaffirmed by the Court for 30 years; but that is the

supreme law of the land, and no amount of rhetoric, even if written

into legislation, will change that.”); 149 CONG. REC. H4924 (daily

ed. June 4, 2003) (statement of Rep. Green) (“({In Stenberg,] the

Court ruled that any ban on methods of abortion must provide an

exception for women’s health, and also struck down the Nebraska

law for failing to include such an exception. [The Act] continues to

flout the Supreme Court’s rulings. . . .”); 149 CONG. REC. $3611

(daily ed. Mar. 12, 2003) (statement of Sen. Jeffords); 149 CONG.

Rec. $3604 (daily ed. Mar. 12, 2003) (statement of Sen. Lauten-

berg); 149 CONG. REC. S3584 (daily ed. Mar. 12, 2003) (statement of

Sen. Kennedy); 149 CONG. REC. $3599 (daily ed. Mar. 12, 2003)

(statement of Sen. Cantwell); 149 CONG. REC. H4933 (daily ed.

June 4, 2003) (statement of Rep. Farr); 149 CONG. REC. H4932

(daily ed. June 4, 2003) (statement of Rep. Filner); 149 CONG. REC.

H4927 (daily ed. June 4, 2003) (statement of Rep. Larson); 149

CONG. REC. H4927 (daily ed. June 4, 2003) (statement of Rep.

Lowey).

* The House Judiciary Committee rejected an amendment that

would have added a health exception to the Act. H.R. REP. ‘No.

108-58, at 71-73. In addition, the House itself rejected an

44a

component of the legislation it was enacting. Both of

the Act’s main sponsors, as well as various co-sponsors,

asserted that the purpose of the Act would be wholly

undermined if it contained a health exception and that,

if an exception were included, the statute would be of

little force or effect.” Enacting a “partial-birth

amendment that would have revised the ban by adding a health

exception, among other changes. See 149 CONG. REC. H4948 (daily

ed. June 4, 2003) (rejecting. House Amendment 154). The House

also rejected a motion to recommit the Act to the House Judiciary

Committee with instructions_to add a health exception. See 149

SONG. REC. H4949 (daily ed. June 4, 2003) (rejecting motion). The

Senate rejected two amendments that would have revised the ban

by adding a health exception, among other changes. See 149 CONG.

REC. $3611 (daily ed. Mar. 12, 2003) (rejecting Senate Amendment

261); 149 CONG. REC. $8579 (daily ed. Mar. 12, 2003) (rejecting

Senate Amendment 259). The Senate also rejected a motion to

commit the Act to the Judiciary Committee with instructions to

consider the constitutional issues raised in Stenberg, including

those relating to a health exception. See 149 CONG. REC. S3580

(daily ed. Mar. 12, 2003) (rejecting the motion).

*’ In urging the House Judiciary Committee to defeat a pro-

posed amendment that would have added a health exception to the

Act, Representative Chabot, the sponsor of the Act in the House,

stated, “a health exception, no matter how narrowly drafted, gives

the abortionist unfettered discretion in determining when a

partial-birth abortion may be performed. And abortionists have

demonstrated that they can justify any abortion on this ground.

. It is unlikely then that a law that includes such an exception

as being proposed would ban a single partial-birth abortion or any

other late-term abortion.” H.R. Rep. No. 108-58, at 69 (statement

of Rep. Chabot). Similarly, in arguing against a health exception

amendment on the Senate floor, Senator Santorum, the Act’s main

sponsor in the Senate, asserted, “In practice, of course, health

means anything, so there is no restriction at all.” 149 CONG. REC.

$3607 (daily ed. Mar. 12, 2003) (statement of Sen. Santorum).

Senator Santorum later argued that “health” is a “term—in fact,

the courts have interpreted it to mean anything” and that a health

45a

abortion” ban with no health exception was clearly one

of Congress’s primary motivations in passing the Act.

In light of this legislative history, it would be im-

proper for us to issue an injunction that essentially adds

a health exception to the statute—an exception that

Congress purposefully excluded from the Act. When

Congress deliberately makes a decision to omit a par-

ticular provision from a statute—a decision that it is

aware may well result in the statute’s wholesale invali-

dation—and when it defeats multiple amendments that

would have added that provision to the statute, we

would not be faithful to its legislative intent were we to

devise a remedy that in effect inserts the provision into

the statute contrary to its wishes. Such an action would

be inconsistent with our proper judicial role.

Our inquiry as to whether the legislature would have

“preferred what is left of its statute to no statute at all,”

Ayotte, at 968, does not change our conclusion. Given

the record before us, it is impossible to say that Con-

exception “frankly, swallows up any limitation, restriction on

abortion.” 149 CONG. REC. 83590 (daily ed. Mar. 12, 2003) (state-

ment of Sen. Santorum). A co-sponsor of the Act, Senator

DeWine, argued that because of the way “health of the mother”

has been defined by the Supreme Court, an exception to protect it

would mean “almost any excuse would be enough to justify a late-

term partial-birth abortion. Yet the abortionist would be within

the law because he determined the health of the mother was at

risk.” 149 CONG. REC. S3605 (daily ed. Mar. 12, 2003) (statement of

Sen. DeWine). Representative Sensenbrenner, a co-sponsor of the

Act, made similar comments in arguing against a health exception

amendment. He stated, “Abortionists have demonstrated that

they can and will justify any abortion on the grounds that it, in the

judgment of the attending physician, is necessary to avert serious

adverse health consequences to the woman.” 149 CONG. REC.

H4940 (daily ed. June 4, 2003) (statement of Rep. Sensenbrenner).

46a

gress would have preferred the Act with a health ex-

ception engrafted upon it to no statute at all. The

creation of legislation is a fundamental part of the po-

litical process, to be performed by the elected branches

only. In deciding whether to adopt legislation on highly

controversial issues, elected officials must weigh vari-

ous factors and make informed political judgments.

When, in such cases, it is not possible to achieve the full

legislative goal, the leaders of the battle may prefer to

drop the legislation entirely in order to be able to wage

a more dramatic and emotional campaign in the public

arena. They may conclude that leaving an issue com-

pletely unaddressed will make it easier for them to

achieve their ultimate goals than would a partial resolu-

tion that leaves their “base” discontented and disillu-

sioned. Dropping the proposed legislation (or even hav-

ing it defeated) may be the best way to gain adherents

to the cause, inspire the faithful, raise funds, and possi-

bly even generate support for a constitutional amend-

ment. Conversely, the sponsors of a bill may consider a

partial victory worthless from a political standpoint, as

the sponsors of the Partial-Birth Abortion Ban Act told

their fellow members of Congress here, or they may

just object strongly to such a solution from a moral or

even a religious standpoint. Particularly when an issue

involving moral or religious values is at stake, it is far

from true that the legislative body would always prefer

some of a statute to none at all.

_ Abortion is an issue that causes partisans on both

sides to invoke strongly held fundamental principles

and beliefs. We are prepared to deal with the constitu-

tional issues relating to that subject, but not with the

question how either side would exercise its moral and

other judgments with respect to tactical political deci-

47a

sions. Whether the congressional partisans who sup-

ported the Act would have preferred to have what they

repeatedly and unequivocally deemed to be ineffective

legislation or to do without the statute and preserve the

status quo ante as a political and moral tool is a deter-

mination we are simply unable and unwilling to make.

In any event, we need not rest our decision as to the

appropriate remedy solely on the omission of a health

exception because we have determined that the Act is

unconstitutional on other grounds as well—on the

grounds that it imposes an unaue burden on women

seeking abortions and that it is impermissibly vague.

Along with the omission of the health exception, the

nature of these constitutional errors precludes us from

devising a remedy any narrower than the invalidation

of the entire statute, for a number of reasons. First, in

order to cure the constitutional infirmities, we would in

effect have to strike the principal substantive provision

that is now in the Act and then, akin to writing legis-

lation, adopt new terms with new definitions and new

language creating limitations on the Act’s seope.

Second, creating relief that would limit the Act suffi-

ciently to enable it to pass constitutional muster would

require us to make decisions that are the prerogative of

elected officials and thus would be inconsistent with the

proper distribution of responsibilities between the

legislative and judicial branches. Third, the magnitude

of the change in the Act’s coverage that would be nec-

essary to make the Act even potentially constitutional

would result in a statute that would be fundamentally

different from the one enacted. Fourth, devising nar-

rowing relief of this type would be unfaithful to Con-

gress’s intent in passing the Act.

48a

Our conclusions regarding the undue burden imposed

by the Act and the Act’s impermissible vagueness were

based on our determination that the Act’s definition of

“partial-birth abortion” covers both forms of the D & E

procedure; at the very least, we said, the statute does

not adequately distinguish between those forms. Sig-

nificantly, the two forms of D & E constitute the means

by which the vast majority of post-first trimester pre-

viability abortions are conducted. Remedying the

problem of the Act’s scope is not a simple matter of

striking a portion of the statutory language, however,

or of drafting an injunction that performs that function.

Nor is the existing statutory language susceptible to a

simple limiting construction. In order to remedy the

constitutional problems with the Act’s definition of

“partial-birth abortion,” we would essentially have to

“rewrite (the statutory language] to conform it to con-

stitutional requirements,” a task the Court has cau-

tioned we should not undertake. Ayotte, at 968 (quoting

Am. Booksellers Ass'n, 484 U.S. at 397, 108 S. Ct. 636).

Furthermore, before we could even begin the task of

rewriting the statute so as to arrive at an adequate

injunctive order, we would first have to decide which of

the different methods of performing post-first trimester

previability abortions should be prohibited by the re-

vised Act.” We are not willing to make such choices for

four reasons. First, doctors disagree about the medical

necessity and effects of each of the methods. The

* Induction is the method used to perform most post-first

trimester previability abortions not done by D & Es. Because of

the Act’s failure to differentia‘e between intact and non-intact D &

E, which we held sufficient to create an undue burden, we did not

reach the issue whether the Act’s definition of the prohibited pro-

cedures also encompasses induction, although it might well do so.

49a

decision regarding which of these methods to regulate

is a policy choice that only Congress can make.” Sec-

ond, choosing which methods to regulate would require

us to draw lines between different abortion procedures

with which we are not “intimately familiar,” another

factor cautioning against our attempting to create a

narrow remedy.” Third, determining whether to cover

particular forms or procedures would raise unresolved

constitutional questions that we need not otherwise

decide on this appeal.” For example, neither this court

nor the Supreme Court has previously decided whether

a statute that bans only intact D & E would be constitu-

tional. See note 18 supra. Fourth, even if Congress

would have preferred an injunction that made the con-

troversial policy choices we would be required to make

and even if Congress would have preferred the substan-

tial alteration of the statute to its total invalidation, it is

contrary to the appropriate allocation of legislative and

31 See Denver Union Stock Yard Co. v. Producers Livestock

Mktg. Ass'n, 356 U.S. 282, 289, 78 S. Ct. 738, 2 L. Ed. 2d 771 (1958)

(“{Courts] should guard against the danger of sliding unconsciously

from the narrow confines of law into the more spacious domain of

policy” (internal quotation marks and citations omitted)).

© See United States v. Nat'l Treasury Employees Union, 513

U.S. 454, 479 n.26, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995) (refus-

ing to “rewrite the statute” because, inter alia, “[djrawing a line

between a building and sidewalks with which we are intimately

familiar . . . is a relatively simple matter. In contrast, drawing

one or more lines between categories of speech covered by an

overly broad statute . . . involves a far more serious invasion of

the legislative domain.”).

* See id. at 479, 115 S. Ct. 1003 (rejecting a narrower remedy

than complete invalidation of a statute because, inter alia, creating

it would require the court to choose among policy alternatives that

“would likely raise independent constitutional concerns whose

adjudication is unnecessary to decide this case”).

50a

judicial functions for Congress to have “covered the

waterfront” and left the job of selecting the conduct

that could properly be prohibited to us. As Ayotte reit-

erated, Congress may not “ ‘set a net large enough to

catch all possible offenders, and leave it to the courts to

step inside’ to announce to whom the statute may be

applied.” Slip op. at 8 (quoting United States v. Reese,

92 U.S. 214, 221, 23 L. Ed. 563 (1876)). Here, Congress,

notwithstanding existing Supreme Court law and the

multiple opportunities it was given to limit the Act’s

scope, passed an overly broad ban that it was aware

likely violated the Constitution as construed by the

Court. In so doing, Congress left it to the judiciary to

sort out which parts of the siatuie are constitutional

and which are not. This is precisely what Ayotte re-

minded us Congress may not do. Narrowing the stat-

ute is “quintessentially legislative work” that, if under-

taken by us, would exceed “our constitutional mandate

and institutional competence.” Ayotte, at 968.”

Even if we could, consistent with the judiciary’s

proper role, choose which procedures to prohibit, the

only options that stand a chance of passing constitu-

tional muster would leave us with an Act of a drasti-

cally more limited scope than the current one. Because

the Supreme Court has held that a statutory pro-

hibition that covers both intact and non-intact D & Es is

unconstitutional, Stenberg, 530 U.S. at 938-46, 120 S. Ct.

2597, the only possibly constitutional regulation would

be a prohibition limited to the intact D & E procedure

* A further indication that narrowing would not be faithful to

legislative intent is the absence from the Act of a severability

clause. Ayotte pointed to the presence of such a clause as an indi-

cation that a narrower remedy is consistent with legislative intent.

Slip. op at 9-10.

5la

(and possibly induction). Even assuming that such a

regulation would be constitutional (but see supra note

18), an injunction that so limited the statute would

outlaw only a very small portion of the procedures

prohibited under the existing Act. Such an injunction

would radically change the nature of the statute and

result in a regulatory scheme substantially different

from the one passed by Congress. When a “narrow”

remedy would substantially change the very nature of a

statute, adopting that remedy exceeds the proper

judicial role.”

Finally, we believe that devising a narrow remedy

would riot be “faithful to legislative intent.” Ayotte, at

969. Congress did not unintentionally draft the broad

definition of “partial-birth abortion” that gives rise to

the undue burden and vagueness concerns, nor did it

write the unconstitutionally overbroad language with-

out the benefit of judicial guidance. Instead, Congress

chose not to follow the roadmap the Court provided in

Stenberg. It repeatedly dismissed warnings that the

Act’s overly inclusive scope made it vulnerable to

constitutional challenge.” Even if we could draft a

® See Sloan v. Lemon, 413 U.S. 825, 834, 93 8. Ct. 2982, 37 L.

Ed. 2d 939 (1973) (striking down entire Pennsylvania tuition reim-

bursement statute because to eliminate only unconstitutional ap-

plications “would be to create a program quite different from the

one the legislature actually adopted”), cited in United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738, 758, 160 L. Ed. 2d 621 (2005).

“’ As in the case of the health exception, Congress rejected

repeated warnings of unconstitutionality, this time that the Act’s

language was too broad. It ignored admonitions to follow the

Court’s roadmap by defining the prohibited procedure using the

medical terms for intact D & E. Senator Feinstein, for example,

stated, the Act “attempts to ban a specific medical procedure

which it calls partial-birth abortion. But the bill offers no medical

52a

definition of partial-birth abortion.” She then questioned the Act's

sponsors’ refusal to use such a definition. She asked, “Why

wouldn't the proponents of this bill put in a medically acceptable

definition so that those physicians who were practicing medicine

and may encounter this kind of case would know precisely what is

prohibited? I believe | know the answer. The answer is that the

bill is calculated to cover more than just one procedure. . . . |

believe if the bill becomes law, it would be struck down as uncon-

stitutional.” 149 CONG. REC. 83601 (daily ed. Mar. 12, 2003) (state-

ment of Sen. Feinstein); see also 149 CONG. REC. 83600 (daily ed.

Mar. 12, 2003) (statement of Sen. Feinstein) (“[The Act] is not what

_it purports to be. It supposedly bans one procedure, D & X, but

actually confuses this procedure with another, D & E, the most

commonly used abortion procedure. In fact, its wording is so

vague that it could be construed to criminalize all abortions.”).

Other members of Congress also asserted that the Act's definition

of the Lanned procedure was overly broad and ignored the Court's

guidance in Stenberg. Representative Farr explained, “The defini-

tion of the banned procedure in [the Act] is vague and could be

interpreted to prohibit some of the safest and most common

abortion procedures that are used before viability during the 2nd

trimester. This legislation could have been written using precise,

medical terms. . . .” 149 CONG. REC. H4933 (daily ed. June 4,

2005) (statement of Rep. Farr). Similarly, Senator Boxer stated,

“What we have is the Stenberg case that ruled that the Nebraska

statute Was unconstitutional because it placed an undue burden on

women because the definition is vague und there is no exception to

protect women's health. Lawyers and constitutional experts tell

us that the same problem exists in [the Act].”. 149 CONG. REC.

$3561 (daily ed. Mar. 12, 2004) (statement of Sen. Boxer). Repre-

sentative Conyers stated, “It is unclear what types of procedures

are covered by the legislation. Although some believe the legisla-

tion would apply to an abortion technique known as ‘Dilation and

Extraction’ (D & X), or ‘Intact Dilation and Evacuation,’ it is not

clear the term would be limited to a particular and identifiable

practice. . . . [The Act] could well apply to additional abortion

procedures known as D & E (Dilation and Evacuation), and induc-

tion.” 149 CONG. REC. H4954 (daily ed. June 4, 2005) (statement of

Rep. Conyers). See also, ¢.g., 149 CONG, Rec, $3424 (daily ed. Mar.

dda

remedy that sufficiently restricted the scope of the

statute (which we believe we could not properly do con-

sistent with our limited judicial role), such a narrowing

construction would serve not to cure an error but to

reverse a political judgment that Congress expressly

made. Nor can we say that Congress would have pre-

ferred any such narrowing construction to no statute at

all. For reasons discussed above, we are not capable of

making the judgment that, in the eyes of Congress,

legislation restricted to non-intact D & Es would have

been preferable to no legislation at all. We believe that

a narrow remedy designed to address the undue burden

and vagueness concerns, as well as the health excep-

tion, would likely violate Congress’s intent in passing

the Act.

11, 2003) (statement of Sen. Murray) (“(T}he language is so broad

that it bans other constitutionally protected procedures. The

Supreme Court’s rulings state: ‘Even if the statute’s basic aim is

to ban D & X, its language makes clear it also covers a much

broader category of procedures.’ The bill before us is similarly un-

constitutiona] because it covers too many constitutionally pro-

tected procedures.”); 149 CONG. REC. S3611-12 (daily ed. Mar. 12,

2003) (statement of Sen. Feingold) (“Congress should seek to

regulate abortions only within the constitutional parameters set

forth by the U.S. Supfeme Court. Yet in light of the Supreme

Court’s 2000 decision [in Stenberg], the bill before us today . . . is

unconstitutional on its face. It is so vague and overbroad that it,

too, could unduly burden a woman’s right to choose prior to viabil-

ity."); 149 CONG. REC. 83576 (daily ed. Mar. 12, 2003) (statement of

Sen. Mikulski) (“{[The Act] does not clearly define the procedure it

claims to prohibit. Let me be clear about this. The [Act] is

unconstitutional.”); 149 CONG. REC. 53481 (daily ed. Mar. 11, 2003)

(statement of Sen. Durbin); 149 CONG. Rec. H4934 (daily ed. June

4, 2003) (statement of Rep, Stark); 149 CONG. REC, H4937 (daily

ed, June 4, 2003) (statement of Rep. Jackson Lee).

54a

We are reluctant to invalidate an entire statute.

However, after considering all of the obstacles to our

devising a narrower remedy, we conclude that such is

our obligation. Accordingly, we uphold the district

court’s order permanently enjoining enforcement of the

Act in its entirety.

V. Conclusion

The Act lacks the health exception required of all

abortion regulations in the absence of a medical con-

sensus that the prohibited procedure is never necessary

to preserve women’s health, imposes an undue burden

on a woman’s right to choose a previability abortion,

and is impermissibly vague. For each of these reasons,

independently, we hold that the Act is unconstitutional.

We also hold that, in light of all the circumstances, the

appropriate remedy for the serious constitutional flaws

in the Act is that which the district court elected: to

enjoin the enforcement of the statute in its entirety.

The judgment of the district court is AFFIRMED.

5ba

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

No. C 03-4872 PJH

PLANNED PARENTHOOD FEDERATION OF AMERICA,

ET AL., PLAINTIFFS

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED

STATES, IN HIS OFFICIAL CAPACITY, DEFENDANT

CITY AND COUNTY OF SAN FRANCISCO,

PLAINTIFF INTERVENOR

v.

Joun ASHCROFT, ATTORNEY GENERAL OF THE UNITED

STATES, IN HIS OFFICIAL CAPACITY, DEFENDANT

June 1, 2004

ORDER GRANTING PERMANENT INJUNCTION;

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN

SUPPORT THEREOF

HAMILTON, District Judge.

. INTRODUCTION

Before this court is the constitutionality of the

Partial-Birth Abortion Ban Act of 2003 (“Act”). With

the Act, Congress seeks to ban an abortion procedure it

56a

refers to as “partial-birth abortion.” The Act is very

similar to a prior Nebraska statute banning so-called

“partial-birth abortions,” which the United States Su-

preme Court held unconstitutional. See Stenberg v.

Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743

(2000). Plaintiffs in this case seek an injunction per-

manently enjoining enforcement of the Act. |

For the reasons that follow, this court concludes that

the Act is unconstitutional, and PERMANENTLY EN-

JOINS enforcement of the Act.'

BACKGROUND

I. FACTUAL BACKGROUND

The Act at issue in this case imposes criminal and

civil penalties on “[alny physician who, in or affecting

interstate or foreign commerce, knowingly performs a

partial-birth abortion.” 18 U.S.C. § 1531(a). A brief

summary of the various abortion procedures is set forth

below to aid in an understanding of the Act’s scope and

the procedure or procedures that it prohibits.”

A. Established Abortion Procedure

A full-term pregnancy lasts for approximately 40

weeks, measured from the date of the woman’s last

menstrual period (“Imp”).’ Traditionally, pregnancy is

' The court would like to take this opportunity to express its

appreciation for the high quality of advocacy and the degree of

professionalism and courtesy exhibited by all counsel.

~ In discussing the background regarding abortion procedures

generally, the court relies in part on the testimony of the parties’

experts. The background and qualifications of those experts is set

forth in this court’s findings of fact regarding the necessity of a

medical exception. See fn 16 below.

* All gestational ages in this order are dated from Imp unless

otherwise indicated. Some doctors date gestational age by the

57a

divided into three trimesters, with the first trimester

lasting until about the 13th or 14th week of pregnancy,

the second lasting until about the 27th week, and the

third lasting until birth. See, e.g., Trial Transcript

(“Tr.”) Vol. 1 at 14:2-20 (Paul). A fetus is considered

viable, meaning that it has a realistic chance of long-

term survival outside the uterus, at approximately 24

weeks Imp. Tr. Vol. 1 at 14:21-15:5 (Paul); Tr. Vol. 7 at

1119:23-1120:3 (Sprang), Tr.-Vol. 9 at 1355:18-22 (Cook,

finding viability at 23 weeks).

If a woman chooses to terminate her pregnancy, a

doctor will use different medical techniques depending

on the gestational age of the fetus. Second trimester

abortions, the main subject of this litigation, generally

involve one of two procedures: dilation and evacuation

(“D & E,” or surgical abortion) or induction (which is

also known as a medical abortion, meaning that drugs

are administered to abort the pregnancy).’ Other meth-

ods that are used much more rarely are hysterotomy

(the caesarean removal of the fetus from the uterus)

and hysterectomy. Tr. Vol. 1 at 44:7-47:2, 46:8-46:22

(Paul); Exh. 7 (table 16).

date of conception, which is approximately two weeks after a

woman’s last menstrual period. See Tr. Vol. 10 at 1614:14-23

(Anand).

' As of 2000, first trimester abortions make up approximately

8% of the 1.5 million abortions performed per year in the United

States. Exh. 7 at 31 (“Abortion Surveillance—United States 2000,”

compiled by the Centers for Disease Control; table 16); see also Tr.

Vol. 1 at 38:6-42:24 (Paul). For first trimester abortions, the doctor

will either perform an early medical abortion (up to 9 weeks) or a

vacuum aspiration abortioh (which is also known as dilation and

curettage, or D & C). Tr. Vol. 1 at 43:18-44:6 (Paul). These pro-

cedures are not at issue here.

1. D&E

A D & E abortion is a surgical procedure, which is

performed in two steps: dilation of the cervix and

surgical removal of the fetus. See, e.g., Tr. Vol. 1 at

50:10-15 (Paul). About 85-95% of all second trimester

abortions performed in the United States are D & Es.

Tr. Vol. 1 at 48:24-49:17 (Paul); Trial Exhibit (“Exh.”) 7

(table 18) (noting that D & Es make up 95% of all

abortions taking place between 16 and 20 weeks of

pregnancy, and 85% of all abortions taking place after

20 weeks); Tr. Vol. 5 at 804:2-3 (Westhoff).°

To begin the D & E process, the woman’s cervix is

first dilated with osmotic dilators used either alone or

in conjunction with drugs known as prostaglandins (or

misoprosty]).” This encourages the cervix to expand in

width and shorten in length, as if in preparation for

labor, and will permit the doctor to introduce surgical

instruments into the woman’s uterus. Tr. Vol. 1 at

50:25-62:6 (Paul); Tr. Vol. 1 at 167:5-10 (Sheehan); Tr.

Vol. 3 at 400:18-402:22(Doe); Tr. Vol. 4 at 509:4-511:19

(Broekhuizen); Tr. Vol. 4 at 657:13-662:25 (Creinin); Tr.

Vol. 5 at 811:18-812:20 (Westhoff), Tr. Vol. 11 at 1718:4-

’ Doctors report that women appear to strongly prefer D & E

abortions to inductions for a variety of reasons, including the fact

that a D & E is significantly quicker than an induction, does not

require a hospital stay, and does not require that the. woman go

through labor to end the pregnancy. See, e¢.g., Tr. Vol. 1 at 91:17-

92:1 (Paul), Tr. Vol. 3 at 457:1-458:10 (Doe); Tr. Vol. 4 at 503:22-

504:3 (Broekhuizen); Tr. Vol. 5 at 804:2-5 (Westhoff); Tr. Vol. 11 at

1773:23-1776:10 (Chasen); Tr. Vol. 6 at 946:24-9417:3 (Bowes).

" Sometimes the misoprostyl will result in uterine contractions,

which may result in either the partial or complete delivery of the

fetus before any surgery takes place. See, ¢.g., Tr. Vol. 1 at 59:16-

60:17 (Paul); Tr. Vol. 3 at 405:4-6 (Doe); Tr. Vol. 4 at 511:23-512:25

(Broekhuizen).

59a

1720:10 (Chasen). Doctors need more dilation as

gestational age increases, and generally try to achieve a

minimum of one millimeter of dilation for each week of

gestation (for example, a doctor would try to achieve 20

millimeters, or 2 centimeters, of dilation for a 20 week

fetus). Tr. Vol. 2 at 182:6-14 (Sheehan); Tr. Vol. 3 at

402:3-5 (Doe); Tr. Vol. 4 at 661:22-662:1 (Creinin).’

However, the amount of cervical dilation that can be

achieved is individual to each woman and cannot nec-

essarily be controlled. Tr. Vol. 1 at 55:8-14 (Paul); Tr.

Vol. 2 at 14-15 (Sheehan); Tr. Vol. 3 at 402:10-18 (Doe);

Tr. Vol. 8 at 1285:3-8 (Shadigian); Tr. Vol. 4 at 661:19-21

(Creinin). For instance, women who have previously

undergone childbirth often will achieve greater dilation

in a shorter period of time than women who have not.

Tr. Vol. 1 at 62:2-5 (Paul); Tr. Vol. 2 at 182:20-183:1

(Sheehan); Tr. Vol. 4 at 662:2-9 (Creinin); Tr. Vol. 5 at

812:12-183 (Westhoff); Tr. Vol. 11 at 1723:17-1724:6

(Chasen).

Dilation can take place over a period of time ranging

from 90 minutes up to one or two days, depending on

the practice of the physician. The process can be

accelerated if drugs to induce dilation are administered

along with the placement of laminaria in the cervix. Tr.

Vol. 1 at 55:4-7, 59:9-11 (Paul, using a half to one-day

dilation procedure); Tr. Vol. 1 at 180:21-183:10 (Shee-

han, using a two-day dilation procedure); Tr. Vol. 3 at

401:7-402:22 (Doe, using a one-day dilation procedure);

* By comparison, the vaginal delivery of a full-term fetus re-

quires 10 centimeters of dilation. No doctor would dilate a wo-

man’s cervix to that extent for the purpose of performing a sur-

gical abortion. See Tr. Vol. 4 at 544:17-545:4 (Broekhuizen stating

the maximum dilation he would seek is 6-7 centimeters for an

induction abortion, which requires more dilation than a D & E).

60a

Tr. Vol. 4 at 659:23-24 (Creinin, using a one-day dilation

procedure); Tr. Vol. 5 at 812:6-812:20 (Westhoff, using a

two day-dilation procedure); Tr. Vol. 11 at 1719:10-25

(Chasen, using a two-day dilation procedure). If the

doctor opts to perform dilation over an extended period

of time, the procedure often takes place in an outpatient

setting, so the woman can participate in her usual daily

activities and spend the night at home. See, e.g., Tr.

Vol. 1 at 45:15-19. 60:1-6 (Paul); Tr. Vol. 2 at 181:11-14

(Sheehan); Tr. Vol. 3 at 402:21-22 (Doe); Tr. Vol. 4 at

659:25-660:5 (Creinin).

The woman then returns to the clinic or hospital the

next day, and, if sufficient dilation has been achieved,

she is then placed under some form of sedation, and the

cervix is prepared for surgery.” The doctor will then

place forceps in the uterus, and, usually under ultra-

sound guidance, grasp the fetus with the forceps and

then remove the fetus by pulling it through the cervix

and vagina. This process usually causes the fetus to

disarticulate. It usually takes about 10-15 “passes”

through the uterus to remove the entire fetus. When

the entire fetus has been removed, the doctor then uses

a suction tube, or cannula, to remove the placenta from

the uterus and to ensure that no fetal parts have been

left behind. Tr. Vol. 1 at 62:7-68:21, 69:9-21 (Paul); Tr.

Vol. 2 at 183:15-186:13 (Sheehan); Tr. Vol. 3 at 402:23-

404:12 (Doe); Tr. Vol. 4 at 514:20-526:17 (Broekhuizen);

Tr. Vol. 4 at 663:1-668:4 (Creinin); Tr. Vol. 5 at 812:21-

818:7 (Westhoff). All the testifying experts who per-

* If the doctor believes the cervix has not sufficiently dilated

for the procedure to be performed, the doctor may place more

dilators in the cervix and wait another day before beginning the

surgical portion of the abortion. See, e.g., Tr. Vol. 4 at 518:23-519:2

(Broekhuizen); Tr. Vol. 4 at 660:23-0661:14 (Creinin).

bla

form this procedure use ultrasound to provide visual

guidance for second trimester abortions. Tr. Vol. 1 at

67:6-7 (Paul); Tr. Vol. 1 at 168:6-13 (Sheehan); Tr. Vol. 3

at 403:16-19(Doe); Tr. Vol. 4 at 515:15-24 (Broekhuizen);

Tr. Vol. 4 at 668:13-17 (Creinin); Tr. Vol. 11 at 1721:11-

15 (Chasen).

This process takes between 10-15 minutes on aver-

age, and can take place either in an outpatient setting

or in a hospital. Tr. Vol. 1 at 62:8-9, 73:2-4 (Paul); Tr.

Vol. 2 at 186:12-13 (Sheehan); Tr. Vol. 3 at 407:24-408:1

(Doe); Tr. Vol. 4 at 524:11-14 (Broekhuizen, averaging

10-15 minutes, but noting range of 5 to 40 minutes); Tr.

Vol. 5 at 741:5-742:2 (Creinin, averaging 10-15 minutes,

but noting range of up to 40 minutes).

Some doctors, but not all, also give an injection of

either digoxin or potassium chloride (“KCI”) either

directly into the fetus’ heart or in the amniotic fluid

surrounding the fetus to effect fetal demise before the

procedure is commenced. Compare Tr. Vol. 2 at 16-

196:6 (Sheehan, who routinely offers digoxin); Tr. Vol. 4

at 561:15-562:22 (Broekhuizen) with Tr. Vol. 2 at 328:24-

329:18 (Drey, who only offers digoxin when specifically

requested to do so), Tr. Vol. 3 408:7-13, 416:14-419:19

(Doe, who does not routinely effect fetal demise before

procedure); Tr. Vol. 5 at 819:20-820:5 (Westhoff); Tr.

Vol. 11 at 1780:20-1782:21 (Chasen).

2. Induction

The second-most common method of second tri-

mester abortion is induction. About 5% of all second

trimester abortions from 14-20 weeks are by induction;

after 20 weeks, that percentage increases to 15%. Tr.

Vol. 1 at 48:24-49:17 (Paul); Exh. 7 (table 18).

62a

Since the uterus in the second trimester of pregnancy

- is not inclined to expel the fetus, contractions must

instead be artificially induced through the use of

chemical agents. In an induction, the woman is given

medication to induce labor to expel the fetus. Induc-

tions were previously triggered by saline injections into

the uterus, but the most current medical techniques

now cal] for the administration of misoprosty] or

oxytocin to induce contractions and labor. Tr. Vol. 3 at

409:4-409:21 (Doe); Tr. Vol. 4 at 527:6-529:20 (Broek-

huizen, noting that “We are kind of overriding nature

because .. . there are usually signals at this time that -

suppress uterine activity”); Tr. Vol. 5 at 15:20 (Creinin,

“We have to give very high doses of medicines, much

higher than you would give at term, just because we

are trying to override the fact that the uterus doesn’t

want to do this process. So you have to make the

uterus contract so strongly that it can break apart”);

Tr. Vol. 11 at 1777:12-1778:9 (Chasen); see also Tr. Vol.

6 at 948:3-9, 950:5-15 (Bowes). But see Tr. Vol. 7 at

1093:1-7 (Sprang, testifying induction is more natural);

Tr. Vol. 9 at 1391:21-1392:19 (Cook).

An induction abortion takes anywhere from 6 to 48

hours to complete, and in ten percent of inductions, the

woman must also undergo a D & E to remove unex-

pelled matter from the uterus (usually the placenta):

Tr. Vol. 3 at 409:18-410:9, 414:3-7 (Doe, stating that

most inductions occur within 24 hours and noting com-

plications); Tr. Vol. 4 at 527:6-532:13 (Broekhuizen,

giving range of time as 8 to 72 hours, and discussing

possible complications requiring subsequent D & E);

Tr. Vol. 5 at 715:8-24 (Creinin); Tr. Vol. 8 at 1268:18-21,

1287:19-1289:5 (Shadigian) (stating that most inductions

take place between 4 and 24 hours but can take up to 2

63a

and a half days). Because an induction requires around-

the-clock monitoring for at least 24 hours, these abor-

tions can take place only in a hospital setting. Tr. Vol. 1

at 45:20-46:7 (Paul); Tr. Vol. 4 at 526:8-527:2 (Broek-

huizen).

An induction is more likely to result in the delivery-of

an intact fetus, so when a fetal autopsy might be

needed, doctors will recommend this procedure. Tr.

Vol. 3 at 408:14-409:3 (Doe); Tr. Vol. 9 at 1399:11-1400:4

(Cook). However, if the induction takes too long to

complete, the fetal tissue breaks down and becomes

unuseable for medical study. Tr. Vol. 11 at 1758:7-19

(Chasen).

3. Hysterotomy and Hysterectomy

Two other methods of second trimester abortion are

also available, but are very rarely used. A hystero-

tomy, like a caesarean delivery, involves the surgical

removal of the fetus through an incision in the uterus,

and a hysterectomy involves the removal of the wo-

man’s entire uterus. Tr. Vol. 1 at 46:8-47:2 (Paul); Exh.

7 (table 18, indicating these procedures make up .01% of

all abortions and .07% of all second trimester abortions).

Both of these procedures are considered major sur-

gery and are not recommended except in the case of

extreme emergency. See also, e.g., Tr. Vol. 1 at 82:9-12

(Paul, noting that hysterotomy and hysterectomy are

not really options because of their high rate of mortality

and morbidity); Tr. Vol. 11 at 1767:6-1768:4 (Chasen,

stating that hysterotomy and hysterectomy should only

be used when fetus must be delivered immediately to

save the life or health of the woman); Tr. Vol. 6 at 972:6-

& (Bowes).

64a

B. Contested Abortion Procedure

The government argues that none of these previ-

ously-described procedures (1st trimester abortion pro-

cedures, D & E, induction, hysterotomy, or hysterec-

tomy) are banned by the Act. Rather, the Act prohibits

a specific second trimester abortion technique, which

the Act refers to as “partial-birth abortion.”

I. The Act

The Act defines “partial-birth abortion” as:

an abortion in which a physician deliberately and

intentionally vaginally delivers a living, unborn child

until either the entire baby’s head is outside the

body of the mother, or any part of the baby’s trunk

past the navel is outside the body of the mother and

only the head remains inside the womb, for the pur-

pose of performing an overt act (usually the punc-

turing of the back of the child’s skull and removing

the baby’s brains) that the person knows will kill the

partially delivered infant, performs this act, and

then completes delivery of the dead infant.

Act § 2(1); see also 18 U.S.C. § 1531(b) (statutory

definition). The term “partial-birth abortion,” however,

is neither recognized in the medical literature nor used

by physicians who routinely perform second trimester

abortions. See, e.g., Tr. Vol. 2 at 200:23-201:4 (Sheehan);

Tr. Vol. 3 at 420:23-421:2 (Doe); but see Tr. Vol. 6 at

901:5-19 (Bowes); Tr. Vol. 8 at 1219:28-1220:8 (Shadi-

gian); Tr. Vol. 9 at 1386:7-1387:7 (Cook) (arguing

“partial-birth abortion” is a medically recognized term).

The language of the Act obviously omits any reference

toD & X,D & E, or “intact” extraction.

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2. Dr. Haskell and ACOG

Tue debate over this procedure appears to have been

initiated by a presentation given by Dr. Marvin Haskell

in 1992 before the National Abortion Federation

(“NAF”). See Partial-Birth Abortion Ban Act of 2002:

Hearing on H.R. 4965 before the Subcomm. on the Con-

stitution of the House Comm. on the Judiciary, 107th

Cong. 2nd Sess at 127-34 (2002) (“Record Exh. C”)

(copy of article).” In that presentation, Dr. Haskell

outlined a variant on D & E abortions in which the fetus

was removed either intact or nearly intact rather than

through disarticulation."" To distinguish this variant

from the standard D & E by disarticulation, Dr. Haskell

coined the term “D & X,” or “dilation and extraction.”

Id. at 127.

Dr. Haskell described a procedure in which 1) the

woman’s cervix is dilated through the use of up to 20-30

osmotic dilators over a two-day period; 2) the physician’

inserts forceps into the woman’s uterus and, if the fetus

is not presented in a breech position (feet first), the

physician performs an “internal podalic version” of the

fetus and inverts the fetus so that it is presenting ‘na

breech position; 3) the fetus is extracted irtact through

the cervix and vagina until its head, or calvarium, is

lodged at the cervical opening, or os; and 4) the physi-

cian inserts scissors and a suction cannula into the

fetus’ skull and drains brain tissue from the calvarium,

* The court takes judicial notice of this article's inclusion in the

Congressional Record, but notes also that the article itself was not

introduced into evidence at trial.

While Dr. Haskell first outlined this procedure in 1992, other

physicians testified that they have practiced some version of intact

extraction since the 1970s. Tr. Vol. 2 at 187:15-19 (Sheehan); Tr.

Vol. 4 at 584:16-585:3 (Broekhuizen).

66a

which causes the calvarium to collapse to the point at

which it can be extracted from the uterus. Record Exh.

C at 129-131; see also, e.g., Tr. Vol. 8 at 1219:12-1220:4

(Shadigian), Tr. Vol. 9 at 1386:7-1387:7 (Cook).

In response to the subsequent debate over this pro-

cedure, the American College of Obstetricians and Gyn-

ecologists (““ACOG”) subsequently coined the term

“intact D & X,” which was defined as: 1) deliberate

dilation of the cervix, usually over a sequence of days,

2) internal podalic version of the fetus to a breech

position; 3) breech extraction of the fetus up to the

calvarium, and 4) the extraction of the fetal cranial

contents to permit vaginal delivery of a dead, intact

fetus. Cain Depo. 164:8-166:17; Exh. 3; see also, e.g., Tr.

Vol. 5 at 735:8-736:2 (Creinin).

3. Trial Testimony

At trial, plaintiffs presented the testimony of a

number of physicians who perform D & E abortions by

procedures which they believe might violate the Act.

Several physicians report that occasionally while per-

forming a D & FE, they encounter a situation where they

believe it will be possible to remove the fetus either

intact or largely intact. This occurs when the woman’s

cervix is dilated to such a degree that the fetus can be

extracted up to the head, in either one or two “passes”

with the forceps. The potential for a largely intact

removal cannot be ascertained until the surgical pro-

cedure has already begun, and depends primarily on

how the cervix presents at-the commencement of the

procedure. Tr. Vol. 1 at 67:24-68:1, 71:17-24 (Paul); Tr.

Vol. 2 at 205:16-24, 206:5-13 (Sheehan); Tr. Vol. 3 at

406:24-407:11 (Doe); Tr. Vol. 5 at 784:-786:23 (Creinin);

Tr. Vol. 5 at 815:3-816:22, 818:18-21 (Westhoff).

67a

The number of times this occurs varied per doctor,

but ranged from between 5% to 33% of all D & Es

performed, with most doctors reporting occurrences of

around 5-15% of the time." Tr. Vol. 1 at 71:8-19 (Paul,

estimating 5-10%); Tr. Vol. 2 at 188:13-12 (Sheehan,

reporting approximately 20% the week before); Tr. Vol.

3 at 406:10-16 (Doe, estimating 15-20%).

Notably, since Dr. Haskell’s paper and presentation,

the process has evolved. While some physicians per-

form abortions in this circumstance using the four steps

outlined by ACOG or Dr. Haskell, many others do not.

Some physicians insert up to 25 osmotic dilators over

a two day period (known as “serial dilation”) to increase

the likelihood of an intact D & E, while others simply

proceed as they do for a standard D & E’by disarticula-

tion. Some physicians perform podalic version, while

others do not. Some physicians puncture the calvarium

and suction out the cranial contents, others disarticu-

late the calvarium and crush it with forceps before

extraction, while yet others use forceps to collapse the

calvarium while it is still attached. See, e.g., Tr. Vol. 1

69:22-70:6, 78:25-79:7 (Paul, who collapses the attached

skull with forceps or disarticulates at the neck); Tr. Vol.

2 at 184:15-17, 193:22-24 (Sheehan, who does same, and

does not perform podalic version); Tr. Vol. 3 at 405:19-

406:9 (Doe, who disarticulates calvarium and crushes

with forceps, and sometimes performs podalic version);

Tr. Vol. 4 at 516:8-24, 523:1-524:10, 589:23-590:1, 615:7-

13 (Broekhuizen, who sometimes practices serial dila-

'! Dr. Sheehan and Dr. Creinin reported that an intact D & E

occurred less than 1% of the time, but they were reporting inci-

dents where the entire fetus, including the head, was removed

intact. Tr. Vol. 2 at 271:20-272:8 (Sheehan); Tr. Vol. 4 at 784:19-

786:19 (Creinin).

68a

tion, sometimes performs podalic version when grasp-

ing for fetal part, and punctures calvarium); Tr. Vol. 4

at 668:18-669:19, 680:11-681:1 (Creinin, who performs

podalic version and punctures or disarticulates cal-

varium); Tr. Vol. 5 at 801:22-802:3 (Westhoff, who punc-

tures calvarium); Tr. Vol. 11 at 1718:4-1725:10 (Chasen,

who uses up to 25 dilators, performs podalic version,

and punctures calvarium).

Furthermore, although Dr. Haskell inserted scissors

or trocars by touch, all of the physicians who testified

stated that they could see the insertion point, either

directly or through ultrasound, before any insertions

were made. Tr. Vol. 1 at 67:6-7 (Paul); Tr. Vol. 1 at

168:6-13 (Sheehan); Tr. Vol. 3 at 403:16-19 (Doe); Tr.

Vol. 4 at 632:2-8, 638:18-640:7 (Broekhuizen); Tr. Vol. 4

at 682:14-19 (Creinin); Tr. Vol. 5 at 801:25-802:5, 818:8-

11 (Westhoff); Tr. Vol. 11 at 1722:10-13 (Chasen).

Most significantly, all of the testifying physicians who

have performed intact extractions refer to this proce-

dure as a variant of D & E, and not as an entirely sepa-

rate procedure. See, e.g., Tr. Vol. 1 at 44:14-45:14

(Paul); Tr. Vol. 2 at 188:20-189:2, 205:16-13 (Sheehan);

Tr. Vol. 3 at 406:17-23 (Doe); Tr. Vol. 11 at 1721:16-23,

1723:4-1724:21 (Chasen). The only physicians who re-

ferred to it as a separate procedure were witnesses who

had never performed the procedure. Tr. Vol. 6 at

959:10-960:3 (Bowes); Tr. Vol. 7 at 1034:8-1035:21,

1094:5-8 (Sprang); Tr. Vol. 8 at 1214:3-1215:3, 1232:14-

1233:7 (Shadigian); Tr. Vol. 9 at 1374:4-9, 1380:7-18,

1389:8-13 (Cook). Accordingly, the court will refer to

the procedure throughout this order as “intact D & E.”

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Ill. LEGAL FRAMEWORK

As noted, this case involves an issue similar to that

confronted by the Supreme Court in Stenberg. In 1997,

Dr. Leroy Carhart, a medical doctor who provides late-

term abortions, sought a preliminary injunction enjoin-

ing Nebraska’s “partial-birth abortion” law. Carhart

argued that the state’s ban subjected women seeking

abortions to a significantly greater risk of injury or

death than would be the case if he were permitted to

perform the banned procedure. The United States

District Court for the District of Nebraska granted

Carhart’s request for a permanent injunction, and the

Eighth Circuit affirmed.

The United States Supreme Court subsequently

granted certiorari in 2000. Stenberg, 530 U.S. at 914,

120 S. Ct. 2597. Before evaluating the Nebraska stat-

ute, the Court reiterated the standards for evaluating

abortion regulations and restrictions set forth by the

Court previously in Roe v. Wade, 410 U.S. 113, 93 S. Ct.

705, 35 L. Ed. 2d 147 (1973), and Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 838, 112 S. Ct.

2791, 120 L. Ed. 2d 674 (1992), as follows:

(1) Prior to viability, a woman has a constitutional

right to choose to terminate her pregnancy. /d. at

921, 112 S. Ct. 2791. And, while the state has inter-

ests in protecting the health of the mother and the

potentiality of human life, see id., “[t]he State’s

interest in regulating abortion previability is con-

siderably weaker than postviability.” Jd. at 930, 112

S. Ct. 2791. Prior to viability, a law that places an

“undue burden” on a woman’s decision to terminate

her pregnancy is unconstitutional. /d.-at 921, 112 S.

Ct. 2791.

70a

(2) Subsequent to viability, the state may regulate

and even proscribe abortion “except where it is

necessary, in appropriate medical judgment, for the

preservation of the life or health of the mother.” /d.

(citations omitted).

The Stenberg Court subsequently held that the

Nebraska statute violated the Fourteenth Amendment

on two different bases. First, it concluded that the

Nebraska statute was unconstitutional because it

lacked any exception for the preservation of the health

of the mother. See id. at 930-32, 120 S. Ct. 2597.

Second, it concluded that the state law placed an undue

burden on a woman seeking a previability abortion. See

id. at 945, 120 S. Ct. 2597.

Ill. PROCEDURAL HISTORY

Approximately three years after the Supreme Court

decided Stenberg, the 108th Congress passed the final

version of the Act, which President George W. Bush

signed into law on November 5, 2003. Plaintiffs filed

the instant lawsuit, claiming that the Act violates their

Fifth Amendment due process rights. At or around the

same time that plaintiffs filed their lawsuit with this

court, plaintiffs National Abortion Federation, et al.,

and Dr. Leroy Carhart, plaintiff in the Stenberg case,

and other physicians, filed similar lawsuits challenging

the Act in the United States District Courts for the

Southern District of New York (“New York court”) and

the District of Nebraska (“Nebraska court”), respec-

tively. See National Abortion Federation v. Ashcroft,

No. 03-8695 RCC (S.D.N.Y.); Carhart v. Ashcroft, No.

4:03CV3385 (D. Neb.).

Tla

On November 6, 2003, one day after the President

signed the Act into law, this court issued an injunction

temporarily enjoining enforcement of the Act. The

New York and Nebraska courts also temporarily en-

joined enforcement of the Act.

At the request of the Attorney General (“the govern-

ment”), the hearing on the plaintiffs’ motion for a pre-

liminary injunction was merged with the trial on the

merits, and with the government’s consent, the matter

was continued for approximately 120 days during which

the parties engaged in expedited discovery and trial

preparation. On March 19, 2004, the court extended the

temporary restraining order to a reasonable time after

trial on the merits, for preparation of the instant find-

ings of fact and conclusions of law. Subsequently, on

March 29, 2004, the bench trial in this case commenced,

lasting approximately three weeks.

In addition to the sizeable Congressional Record sub-

mitted by both parties, this court heard testimony from

a total of thirteen expert witnesses, and reviewed the

deposition testimony of an additional six expert wit-

nesses.

ISSUES

Plaintiffs contend that the Act is unconstitutional, for

the following reasons:

(1) the Act places an undue burden on a woman’s

right to choose;

(2) the Act is impermissibly vague because it fails

to clearly define the prohibited medical procedures,

thereby depriving physicians of fair notice and

encouraging arbitrary enforcement;

72a

(5) the Act’s failure to provide an exception for the

health of the mother violates a woman's Fifth

Amendment due process rights‘as set forth by the

Supreme Court in Casey and Stenberg; and

(4) the Act violates a woman’s due process right to

bodily integrity."

DISCUSSION

‘I. STANDARD OF REVIEW

The 108th Congress made numerous findings in

support of the Act. The government argues that this

court must afford those findings substantial deference,

while the plaintiffs, on the other hand, contend that this

court need not accord the findings any deference. How-

ever, the congressional findings, the deference afforded

them, and their interplay with the trial evidence in this

case, are relevant primarily with respect to the issue

regarding the necessity of a health exception, and are

therefore discussed in the context of this court’s

findings and conclusions in that section below.

The other issues involving the construction and valid-

ity of the Act: whether the Act places an undue burden

on a woman’s right to choose, and the alleged vague-

ness of the Act, are issues of law, which this court re-

views de novo. See, e.g., Taylor v. Delatoore, 281 F.3d

$44, 847 (9th Cir. 2002); Free Speech Coalition v. Reno,

198 F.3d 1083, 1090 (9th Cir. 1999) (construction and

constitutionality of statute are issues of law reviewed

de novo). Accordingly, both plaintiffs and the govern-

ment agree that this court “is tasked with indepen-

dently determining . . . the [constitutional] validity of

2 Because the court finds the Act unconstitutional on the three

preceding grounds, it declines to reach thistssue.

75a

the [A}ct.”. See Government’s January 30, 2004 reply

brief at 10; see also March 1, 2004 amicus brief at 8

(“this Court must make an independent legal judgment

regarding whether the applicable law unduly burdens

[a woman’s right to terminate her pregnancy |”).

The court, therefore, discusses first the issues of

undue burden and vagueness, setting forth its findings

and conclusions on the issues, and subsequently, turns

to the necessity of a health exception. In the section

regarding the health exception, the court sets forth its

findings of fact based on the trial evidence, and then

discusses the legislative history of the Act and the

record before Congress supporting the congressional

findings. The court then provides its conclusion regard-

ing the deference to be afforded the congressional

findings, and its conclusions of law, based on the con-

gressional findings and the evidence before this court,

regarding the necessity of a health exception.

Il. UNDUE BURDEN

A. Introduction

In Stenberg, one of the two bases for the Supreme

Court’s holding that the Nebraska statute was uncon-

stitutional was that the Statute “ ‘impose[d] an undue

burden on a woman’s ability to choose a D & E abor-

tion, thereby unduly burdening the right to choose

abortion itself.” Stenberg, 530 U.S. at 930, 120 S. Ct.

2597 (citing Casey, 505 U.S. at 874, 112 S. Ct. 2791).

The Court noted that an undue burden is created by

a law that “has the purpose or effect of placing a sub-

stantial obstacle in the path of a woman seeking an

abortion of a nonviable fetus.” /d. at 921, 120 S. Ct.

2597. It subsequently held that Nebraska’s partial-

birth abortion ban posed an unconstitutional undue

74a

burden on a woman’s decision because the language of

the statute was broad enough that it could be inter-

preted to include a ban on previability D & Es, the most

common second trimester abortion procedure, thereby

unconstitutionally placing an obstacle in the path of a

woman seeking a previability second trimester abor-

tion. Id. at 945, 120 8. Ct. 2597.

B. Parties’ Positions

Plaintiffs claim that, similar to the Nebraska statute

in Stenberg, the Act here poses an undue burden on a

woman’s decision to have an abortion prior to viability.

Plaintiffs contend that the Act likewise bans other safe

second trimester procedures, including D & E and

induction abortions. They argue that the definition of

“partial-birth abortion” in the Act is so broad that any

abortion performed by the two safest, most common

abortion procedures used in the second trimester of

pregnancy, prior to fetal viability—D & E and induction

—could proceed so as to violate the Act. Accordingly,

plaintiffs assert that the Act is unconstitutional as a

matter of law.

Moreover, plaintiffs contend that regardless of any

interpretation that the government may advance re-

garding the procedures banned by the Act, the court

must follow the language of the definition of “partial-

birth abortion” in the Act. Stenberg, 530 U.S. at 942,

120 S. Ct. 2597 (rejecting Nebraska Attorney General’s

suggestion that the term “partial-birth abortion” is

“ordinarily associated with the [intact D & E] proce-

dure” because “[w]hen a statute includes an explicit

definition, we must follow that definition even if it

varies from that term’s ordinary meaning”); see also

Reno v. ACLU, 521 U.S. 844, 884 n.49, 117 S. Ct. 2329,

138 L. Ed. 2d 874 (1997) (federal courts lack the author-

7Tda

ity to rewrite a statute to conform it to constitutional

requirements).

The government, on the other hand, devoted very

little attention to the undue burden issue at trial and in

its pre-trial and post-trial submissions to the court.

That was in spite of this court’s conclusion in its order

temporarily enjoining the Act that “the scope of the Act

may impermissibly encompass [all] D & E procedures

and thus impose an undue burden on a woman’s right to

choose.” See November 7, 2003 Order.

Instead, as it did in its papers in opposition to the

temporary restraining order, the government continues

to mistakenly conflate plaintiffs’ undue burden chal-

lenge with the issue of vagueness. The government’s

position is simply that Congress intended to ban only

intact D & Es, and that the Act is not vague and should

be interpreted to apply only to intact D & E abor-

tions—not to D & Es by disarticulation, inductions, or

other abortion procedures. Therefore, according to the

government, there can be no undue burden.

The government’s approach, however, ignores the

fact that the two issues, while somewhat related, are

nevertheless distinct. The Act may be unduly burden-

some under Casey, yet not unconstitutionally vague.

For example, this court could find that the Act was

sufficiently specific regarding the description of the

conduct that violates the Act; however, at the same

time, the court could conclude that the prohibited con-

duct may be interpreted to encompass other safe sec-

ond trimester abortion procedures besides intact D &

E. Accordingly, the court rejects the government’s

framework for analyzing the undue burden issue.

76a

C. Legal Background

The government misconstrues the test regarding

undue burden, narrowing the inquiry to whether the

regulation poses a “significant threat to the

health of a woman.” However, as the Supreme Court

noted in Stenberg, “[ajn ‘undue burden is . . . short-

hand for the conclusion that a state regulation has the

purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable

fetus.”” 530 U.S. at 921, 120 S. Ct. 2597 (quoting Casey,

505 U.S. at 877, 112 S. Ct. 2791).

The Nebraska statute at issue in Stenberg pro-

scribed:

deliberately and intentionally delivering into the

vagina a living unborn child, or a substantial portion

thereof, for the purpose of performing a procedure

that the person performing such procedure knows

will kill the unborn child.

530 U.S. at 938, 120 S. Ct. 2597 (quoting Neb. Rev. Stat.

Ann. § 28-326(9) (Supp. 1999)).

The state of Nebraska agreed that the statute would

impose an undue burden if it applied to the more

commonly used D & E procedure as well as to the intact

D & E procedure. /d. at 938, 120 S. Ct. 2597. However,

the state argued that the statute’s aim was to ban

intact D & E and that the statute differentiated bet-

ween D & E and intact D & E.

The Supreme Court, however, rejected the state’s

arguments. The Court held that regardless of the stat-

ute’s “aim,” “its language makes clear that [in addition

to intact D & E}, it also covers a much broader category

of procedures.” /d. at 939, 1205S. Ct. 2597. It noted that

77a

“[t}he language [of the statute] does not track the medi-

cal differences between D & E and [intact D & E]

—though it would have been a simple matter . . . to

provide an exception for the performance of D & E and

other abortion procedures.” /d.

Moreover, that the state of Nebraska “generally

intended to bar intact D & E” could be correct, but

according to the Supreme Court was “irrelevant.” /d.

at 939. Instead, the relevant inquiry was “whether the

law was intended to apply only to [intact D & E].” /d.

The Court noted that “even were we to grant the [Neb-

raska] Attorney General’s views [regarding the aim of

the statute] substantial weight, [the Court] would still

have to reject his interpretation [because] it conflicts

with the statutory language.” /d. at 942, 120 S. Ct.

2597.

In holding that the statute constituted an undue

burden, the Court further concluded that:

[U]sing this law some . . . prosecutors . . . may

choose to pursue physicians who use D & E proce-

dures, the most commonly used method for perform-

ing previability second trimester abortions. All

those who perform abortion procedures using that

method must fear prosecution, conviction, and im-

prisonment. The result is an undue burden upon a

woman’s right to make an abortion decision.

. Id. at 945-46, 120 S. Ct. 2597.

D. Stenberg: Comparison of Act’s Language to Ne-

braska Statute

" In contrast to the Nebraska statute in Stenberg, the

Act here forbids:

78a

deliberately and intentionally vaginally deliver{ing]|

a living fetus until, in the case of a head-first

presentation, the entire fetal head is outside the

body of the mother, or, in the case of breech pres-

entation, any part of the fetal trunk past the navel is

outside the body of the mother, for the purpose_of

performing an overt act that the person knows will

kill the partially delivered living fetus.

18 U.S.C. § 1531(b)(1)(A).

The government correctly notes that the language of

the Act differs from the statute in Stenberg in three

respects: 1) the Act requires delivery of the fetus

outside of the mother; 2) the Act specifies the required

protruding fetal parts; and 3) the Act proscribes an

overt act distinct from the completion of the delivery

itself.

i. Location of Delivered Fetus

While the Nebraska statute applied where the living

fetus or a substantial portion thereof was delivered

“into the vagina,” the Act here specifies vaginal deliv-

ery “outside the body of the mother.” Neb. Rev. Stat.

$ 28-326(9); 18 U.S.C. § 1531(b)(1)(A). The government

contends that the constitutional infirmities of the Ne-

braska statute are avoided because D & Es by disarti-

culation, as compared to intact D & Es, are generally

internal dismemberment procedures, and, as the Act

here does not apply to procedures performed internally,

it does not encompass D & Es by disarticulation.

ii. Fetal Parts

In Stenberg, the Nebraska statute required the deli-

very into the vagina of “a living unborn child or sub-

stantial portion thereof.” Neb. Rev. Stat. § 28-326(9).

79a

The Supreme Court took issue with this language,

noting that it could

not understand how one could distinguish, using this

language, between D & E (where a foot or arm is

drawn through the cervix) and [intact D & E]

(where the body up to the head is drawn through

the cervix). Evidence before the trial court makes

clear that D & E will often involve a physician

pulling a “substantial portion” of a living fetus, say,

an arm or leg, into the vagina prior to the death of

the fetus.

Stenberg, 580 U.S. at 988-939, 120 S. Ct. 2597.

The Act, on the other hand, specifies vaginal delivery

of “a living fetus until, in the case of a head-first pre-

sentation, the entire fetal head is outside the body of the

mother or in the case of a breech presentation, any part

of the fetal trunk past the navel is outside the body of

the mother.” 18 U.S.C. § 1531(b)(1)(A). The govern-

ment likewise argues that inclusion of this language

avoids the constitutional infirmities in Stenberg because

the Act provides “a specific anatomic landmark.”

iii. Overt Act

The language of the Act regarding completion of the

abortion also varies somewhat from the Nebraska stat-

ute in Stenberg. In addition to defining the prohibited

procedure, the Act provides that the physician “per-

form{] the overt act, other than completion of delivery,

that kills the partially delivered living fetus.” 18 U.S.C.

§ 1531(b)(1)(B). In comparison, the Nebraska statute

defined the prohibited abortion procedure, and with

respect to completion of the abortion, provided that the

procedure “does kill the unborn child.” Neb. Rev. Stat.

§ 28-326(9).

80a

The government argues that this further distin-

guishes the Act from the statute in Stenberg. It argues

that the language distinguishes intact D & Es from

other procedures because the specific act to kill the

fetus must happen at a particular point and place in

time. According to the government, “the fact that

during the course of a D & E [by disarticulation] or

induction, some ‘overt act’ is taken to kill a living fetus

. does not render D & E or induction unlawful”

because the overt acts characteristic of the other pro-

cedures do not occur under the other requirements

specified by the Act.

E. Findings of Fact

This court concludes, however, based on the findings

set forth below, that despite linguistic differences bet-

ween the Nebraska statute in Stenberg and the Act, the

Act nevertheless poses an undue burden on a woman’s

right to choose an abortion because the Act encom-

passes not enly intact D & E procedures, but other

previability D & E procedures and possibly inductions

as well, in violation of the Supreme Court’s holding.

Specifically, this court finds, based on the evidence

before it, that:”

1. Like the Nebraska statute in Stenberg, the Act

bans abortions performed at any time during a preg-

nancy, regardless of gestational age or fetal viability.

In fact, Congress rejected alternatives and amend-

ments to the Act that would have limited its applicabil-

ity to viable fetuses. See 149 Cong. Rec. 53600 (daily

' As noted previously, the background and qualifications of the

experts relied on by the court for the findings that follow are set

forth in this court’s findings of fact regarding the necessity of

health exception.

Sla 4

ed. March 12, 2003) (statement of Sen. Feinstein); 149

Cong. Rec. H4939 (daily ed. June 4, 2003) (statement of

Rep. Greenwood); 149 Cong. Rec. H4948 (daily ed. June

4, 2003) (statement of Rep. Baldwin).

2. In performing all D & Es, including D & Es by

disarticulation, and inductions, physicians “deliberately

and intentionally” extract the fetus from the woman’s

uterus and through her vagina. Tr. Vol. 1 at 76:19-21

(Paul); Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at

422:3-12 (Doe); Tr. Vol. 5 at 822:0-823:12 (Westhoff).

Extraction of the fetus from the uterus, if brought

through the cervix and vagina (as opposed to through

an incision in the woman’s abdomen); is called a

“vaginal delivery.” Tr. Vol. 1 at 75:20-76:5 (Paul); Tr.

Vol. 3 at 421:6-11 (Doe); Tr. Vol. 5 at 822:20-823:12

(Westhoff).

3. The fetus may still have a detectable heartbeat or

pulsating umbilical cord when the uterine evacuation

begins in any D & E or induction, and may be consi-

dered a “living fetus.” Tr. Vol. 1 at 67:3-11; 76:6-18

(Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at

421:12-18 (Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff);

Tr. Vol. 11 at 1783:15- 1786:3 (Chasen).

4. Plaintiffs’ and the government’s experts agree

that in any D & E or induction, a living fetus may be

extracted in a breech presentation until some “part of

the fetal trunk past the navel is outside the body of the

mother.” Tr. Vol. 6 at 945:17-21 (Bowes); Tr. Vol. 8 at

1283:17-20 (Shadigian); Lockwood Depo 235:16-24; Tr.

Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 1 at 99:16-2; 201:9-16

(Sheehan); Tr. Vol. 2 at 281:22-282:3 (Drey); Tr. Vol. 3

at 405:4-12; 422:3-19 (Doe); Tr. Vol. 4 at 521:2-15; 551:19-

552:4 (Broekhuizen); Tr. Vols. 4 & 5 at 678:23-679:14;

82a

784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-823:12 (West-

hoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).

5. Ina D & E, this may occur under a variety of

scenarios, including when:

(A) on an initial pass into the uterus with forceps,

the physician disarticulates a small fetal part, which

does not cause immediate demise, and then on a

subsequent pass, the fetus is brought out of the

cervix past the fetal navel;

(B) on an initial pass into the uterus with forceps,

the physician brings out a fetal part—either at-

tached to the rest of the fetus, or not—that is “part

of the fetal trunk past the navel,” but the extraction

does not cause immediate demise;

(C) the physician extracts the fetus intact until the

calvarium lodges at the internal cervical opening; or

(D) the physician extracts the fetus intact until

“part of the fetal trunk past the navel is outside the

woman’s body,” but it is not extracted so far that

the calvarium lodges at the cervical opening.

Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 2 at 201:9-202:1;

272:18-22 (Sheehan); Tr. Vol. 4 at 521:2-15; 551:1-18

(Broekhuizen); Tr. Vols. 4 & 5 at 681:8-16; 784:3-786:18

(Creinin); Tr. Vol. 5 at 822:20-824:2 (Westhoff); Tr. Vol.

11 at 1783:15-1784:20 (Chasen).

6. In an induction, this may occur because fetal

demise may not have occurred by the time the fetus

passes through the woman’s cervix and vagina, and is

outside the body of the woman past the fetal navel. Tr.

Vol. 4 at 530:15-533:6 (Broekhuizen); Tr. Vol. 11 at

1784:21-1786:3 (Chasen).

83a

7. Inany D & E or induction, if the fetus has been

brought to the point “where any part of the fetal trunk

past the navel is outside the body of the mother” or

“the entire fetal head is outside the body of the

mother,” a physician may then, in order to complete the

abortion in the safest manner, need to perform an

“overt act,” short of completing delivery, that the phy-

sician knows the fetus cannot survive, if it is still living,

and that “kills” the fetus. Lockwood Depo. 235:17-

236:2; Tr. Vol. 1 at 79:8-16; 60:13-61:6; 69:22-25 (Paul);

Tr. Vol. 3 at 422:3-19 (Doe); Tr. Vol. 4 at 551:19-552:9

(Broekhuizen); Tr. Vol. 4 at 638:10-684:10 (Creinin); Tr.

Vol. 11 at 1783:15-1786:3 (Chasen). This “overt act”

may include disarticulation, cutting the umbilical cord,

or compressing or decompressing the skull or abdomen

or other fetal part that is obstructing completion of the

uterine evacuation. Tr. Vol. 1 at 61:7-15; 70:1-6; 78:25-

79:5 (Paul); Tr. Vol. 2 at 193:5-24; 205:8-15 (Sheehan);

Tr. Vol. 3 at 405:13-22 (Doe); Tr. Vol. 4 at 523:1-524:1

(Broekhuizen); Tr. Vol. 5 at 783:15 (Creinin).

8. The procedures described above are performed by

the testifying physicians only on previable fetuses. Tr.

Vol. 1 at 74:14-80:20 (Paul); Tr. Vol. 2 at 281:15-21

(Drey); Tr. Vol. 3 at 420:9-22 (Doe); Tr. Vol. 4 at 550:18-

552:9 (Broekhuizen); Tr. Vol. 4 at 657:3-8 (Creinin); Tr.

Vol. 5 at 822:9-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-

1786:3 (Chasen).

9. For these reasons, any abortion performed using

the D & E or induction method could proceed so as to

violate the Act when performed in the safest manner.

Tr. Vol. 1 at 92:2-93:4 (Paul); Tr. Vol. 1 at 165:11-21

(Sheehan); Tr. Vol. 2 at 282:20-283:3 (Drey); Tr. Vol. 11

at 1784:15-1786:3 (Chasen).

84a

10. For the same reasons, the Act could also ban the

steps that a physician takes when treating a woman

who presents in the midst of a spontaneous second tri-

mester miscarriage. Tr. Vol. 4 at 555:7-556:11 (Broek-

huizen); Tr. Vol. 4 at 684:11-685:5 (Creinin); Tr. Vol. 5 at

824:4-24 (Westhoff); Tr. Vol. 11 at 1786:4-1787:9

(Chasen).

11. As part of their routine practice, eleven of the

experts who testified before this court, including Drs.

Paul, Sheehan, Doe, Drey, Broekhuizen, Creinin, West-

hoff, Chasen, Hammond, Grunebaum, and Fredriksen,

sometimes perform previability abortions, as described

above, which would violate the act. Tr. Vol. 1 at 74:14-

80:20 (Paul); Tr. Vol. 1 at 165:7-21 (Sheehan); Tr. Vol. 2

at 281:15-21 (Drey); Tr. Vol. 3 at 420:9-22 (Doe); Tr. Vol.

4 at 550:18-552:9 (Broekhuizen); Tr. Vol. 4 at 657:3-8

(Creinin); Tr. Vol. 5 at 822:9-824:2 (Westhoff); Tr. Vol.

1] at 1783:15-1786:3 (Chasen); Exh. 36, Exh. 37, Exh.

38.

12. When beginning a D & E or induction procedure,

a physician cannot predict if the procedure will proceed

in such a manner that it violates the Act, but the phy-

sician knows that is a possibility. Tr. Vol. 1 at 71:17-24

(Paul); Tr. Vol. 2 at 206:1-13 (Sheehan); Tr. Vol. 3 at

420:18-22; 426:5-7 (Doe); Tr. Vol. 4 at 522:4-17 (Broek-

huizen); Tr. Vol. 5 at 786:11-23 (Creinin).

13. Accordingly, because physicians may face crimi-

nal prosecution under the Act for violative procedures,

the nature of which they cannot always predict, the Act

would have a significantly negative impact on their

practice and their relationships with their patients, and

in some circumstances, already has. See, e.g., Tr. Vol. 1

at 74:21-23 (Paul) (“my overriding concern is that if I

continue to practice . . . second trimester abortions in

85a

the way I believe is the safest for women, that I could

be in prison”); /d. at 92:8-13 (“I think [the Act] would

have a tremendous impact on my practice. I would be

forced with a decision I would have never faced before

in medicine and that is as to whether to continue to do

procedures in a way that I think are safest for women

because if I did so, I would risk imprisonment”); /d. at

93:5-12 (Act would undermine fundamental trust that

physician has with patient because it would prevent

them from giving best possible care); Tr. Vol. 4 at 563:3-

16 (Broekhuizen) (the Act would “make it significantly

more difficult to provide . . . medically necessary ser-

vices” and would force him to utilize fetocidal injections

more frequently which “may not really be in the best

interests of the patients”); Tr. Vol. 11 at 1787:10-23

(Chasen) (fear of committing a criminal act may prevent

physicians from giving their full attention while pro-

viding care); Tr. Vol. 5 at 820-¢ “) (Westhoff) (describ-

ing complication that occurred as a result of aD & E

performed utilizing fetocidal injection in attempt to

avoid Act’s coverage); Tr. Vol. 2 at 204:14-205:3 (Shee-

han) (the Act “would really cause a significant disrup-

tion between [me and] the patient”); Lockwood Depo.

68:2-68:16 (criminal penalties included in Act “further

unravel physicians’ social contract with patients”).

F. Conclusions of Law

Accordingly, the court concludes that the definition

of “partial-birth abortion” contained in the Act encom-

passes several second trimester abortion procedures in

addition to intact D & E. Physicians may perform each

element contained in the Act’s definition in any D & E

procedure, and in the course of certain induction abor-

tions and treatment of spontaneous miscarriages as

well. And, because D & E procedures comprise nearly

86a

85-95% of all second trimester abortions, the Act

creates a risk of criminal liability during virtually all

abortions performed after the first trimester, and “has

the effect of placing a substantial obstacle in the path of

a woman seeking an abortion of a nonviable fetus.”

Stenberg, 530 U.S. at 921, 120 S. Ct. 2597 (quoting

Casey, 505 U.S. at 877, 112 S. Ct. 2791). A majority of

the physicians who testified noted that because they

“fear prosecution, conviction, and imprisonment,” the

wide net cast by the Act could have and has already had

the effect of impacting all previability second trimester

abortion services that they provide to their patients.

See id. at 945-46, 112 S. Ct. 2791.

The government’s argument that Congress intended

to ban only the intact D & E procedure is not con-

vincing. First, as the Supreme Court noted in Stenberg

in rejecting a nearly identical argument by the state of

Nebraska, if Congress did not intend to prohibit proce-

dures other than intact D & Es, it would have been

simple for it to exclude other procedures. See Stenberg,

530 U.S. at 939, 120 S. Ct. 2597 (“it would have been a

simple matter, for example, to provide an exception for

the performance of D & E and other abortion proce-

dures”); see also Planned Parenthood of Central New

Jersey v. Farmer, 220 F.3d 127, 140 (8rd Cir. 2000)

(holding New Jersey partial-birth abortion ban uncon-

stitutional, and noting that “lilf the Legislature in-

tended to ban only the [intact D & E| procedure, it

could easily have manifested that intent either by speci-

fically naming that procedure or by setting forth the

medical definition of |intact D & E] utilized by ACOG”);

cf. Women’s Medical Prof'l Corp. v. Taft, 353 F.3d 436,

452-53 (6th Cir. 2003) (holding that Ohio partial-birth

abortion ban did not pose an undue burden because it

87a

“avoided the flaws identified in [Stenberg] by precisely

describing the restricted procedure and explicitly per-

mitting D & E procedures”).

Moreover, it does not appear to this court that Con-

gress simply overlooked the Stenberg Court’s language

to this effect. Instead, it appears that Congress inten-

tionally chose not to explicitly exclude D & Es. The

government presented no evidence to this court that

supported its arguments regarding congressional in-

tent, and the Congressional Record suggests the con-

trary. Within Congress, opponents of the Act pointed

out the potential overbreadth of the Act and proposed

remedies regarding the scope. They noted that:

Medical experts testified just yesterday before the

Constitution Subcommittee that the definition in the

bill could easily be construed to ban the most com-

monly used second trimester procedure.

H.R. Report No. 108-58, at 80 (2003) (“Record Exh. A”).

Congress, however, rejected the related amendments

to narrow the scope of the Act.

However, even if it was Congress’ intent to limit the

ban to intact D & Es, this court, like the Supreme Court

in Stenberg, is “without power to adopt a narrowing

construction of |the statute] unless such a construction

is rea. onable and readily apparent.” 530 U.S. at 944,

120 S. Ct. 2597 (citing Boos v. Barry, 485 U.S. 312, 330,

108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988)). Even if this

court were to accept the government’s argument that

the phrase “partial-birth abortion,” as used by Con-

gress, is commonly associated with the intact D & E

procedure, the use of that phrase does not limit the

scope of the Act to intact D & Es. Instead, the phrase

“partial-birth abortion” is “subject to the statute’s evr-

88a

plicit statutory definition,” which this court is required

to follow even if that definition “varies from the term’s

ordinary meaning.” /d. at 942-43, 120 S. Ct. 2597 (citing

Meese v. Keene, 481 U.S. 465, 484-85, 107 S. Ct. 1862, 95

L. Ed. 2d 415 (1987)); see also Richmond Medical Cen-

ter v. Hicks, 301 F. Supp. 2d 499, 515 (E.D. Va. 2004)

(Virginia law posed an undue burden despite fae‘ . hat it

explicitly excepted from coverage “the dilation and

evacuation abortion procedure involving dismember-

ment of the fetus prior to removal from the

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