Petition for Writ of Certiorari — Miller v. Planned Parenthood of Greater Iowa, Inc.
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No. 991112 DEC 2 31999
OFFICE OF fit LiFRK
In The
Supreme Court of the United States
«
THOMAS MILLER, Attorney General of the
State of Iowa, in his official capacity,
Petitioner,
V.
PLANNED PARENTHOOD OF GREATER IOWA, INC.,
Sue Haskell, D.O.; and Paula R. Mahone, M.D.,
on behalf of themselves and their patients,
Jennifer Niebyl, M.D.; Noelle C. Bowdler, M.D.;
Sonya Erickson, M.D.; Susan Johnson, M.D.; Ann Laros,
M.D.; Ambre Olsen, M.D.; Ingrid Nygaard, M.D.; Joel I.
Sorosky, M.D.; Craig Syrop, M.D.; Bradley J. Van Voorhis,
M.D.; Robert Kretzschmar, M.D.; Veronika E.B. Kolder,
M.D.; and Emma Goldman Clinic for Women, Inc.,
on behalf of its patients, its staff and itself,
Respondents.
¢
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
¢
PETITION FOR WRIT OF CERTIORARI
¢
THomas J. MILLER
Attorney General of Iowa
GorpDon E. ALLEN*
Deputy Attorney General
Mark HuNACEK
Assistant Attorney General
Hoover State Office Building
Des Moines, IA 50319
(515) 281-5166
Attorneys for Petitioner
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
Pet
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QUESTION PRESENTED
Whether the Eighth Circuit’s adoption-of a broad
reading of Iowa’s ban on partial-birth abortions, which
directly conflicts with the narrower construction of simi-
lar statutes given by the Seventh Circuit, violates basic
rules of statutory interpretation, constitutional adjudica-
tion, and federalism, and leads to the erroneous conclu-
sion that the statute imposes an undue burden on
abortions?
il
LIST OF PARTIES
The caption contains the names of all parties in the
Eighth Circuit. The Petitioner, Thomas J. Miller, is the
Attorney General of Iowa. There are no parent or subsid-
iary companies to be listed.
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TABLE OF CONTENTS
Page
Question Presented .........--..:- sees eee eeeeeeees i
ES EAP OPCS ee Tere ere? Lae ete ii
ee kk pc wee kee edn ae sateenese weve iii
Table of Authorities ..... 1... 222. c en encescceccveces Vv
Petition for Writ of Certiorari............---+++-++5: 1
Opinions Below .........----0+seeeeeeeee eee ese ees 1
Jurisdiction. .......... 6c cece cece ee eee eee e eee eees 1
Constitutional and Statutory Provisions Involved... 2
Statement of the Case .............2ccccceccccccens 3
Reasons for Granting the Writ..........------+-+-+--- 5
1. The Eighth Circuit’s Reading of Iowa’s Partial-
Birth Abortion Statute Directly Conflicts With
the Seventh Circuit’s Interpretation of Compa-
rably Worded Statutes Enacted by the States of
Wisconsin and Illinois, and with Established
Principles of Statutory Interpretation and Fed-
ee ok ands Cokp buses bn wees <¥nae 6s 5
A. The Eighth Circuit’s Interpretation of the
Iowa Statute as Prohibiting Common
Methods of Abortion is Squarely In Con-
flict With the Seventh Circuit’s Interpreta-
ES ORI error eee Te tee eee 5
B. The Eighth Circuit’s Interpretation of
Iowa’s Partial-Birth Abortion Statute,
Unlike the Seventh Circuit’s Interpretation
of Comparable Legislation, Violates Basic
Principles of Statutory Interpretation, Con-
stitutional Adjudication and Federalism .. 6
iv
TABLE OF CONTENTS - Continued
Page
C. Properly Construed, the Statute Does Not
Constitute an “Undue Burden” on Abor-
DE Vatu ca eet Ake on rans eeu ta ete eeu 7
ei tl Br a oa eo ie 8
Appendix A
Order of the Eighth Circuit Court of Appeals ...App. 1
Appendix B
Order of the Seventh Circuit Court of Appeals .. App. 7
eee 7 “ KE BSE pC TEP INR at Y
Vv
TABLE OF AUTHORITIES
CASES
Concrete Pipe and Products v. Construction
Laborer’s Pension Trust, 508 U.S. 602 (1993) ....... 6
Evans v. Kelley, 977 F.Supp. 1283 (E.D. Mich. 1997) ..... 3
The Hope Clinic v. Ryan, __ F.3d __, 1999 WL
974098 (7th Cir. 1999)......... ibaa baibaekenes 1, 5, 8
Planned Parenthood of Minnesota v. State of Min-
nesota, 910 F.2d 479 (8th Cir. 1990) ................ 6
Richmond Medical Center for Women v. Gillmore,
Ces & Fo Fe es. eer re yr 6, 7
STATUTES AND CONSTITUTIONAL PROVISIONS
US. Comst. amendment AIV o3 occ svccevscdcssscsses 2
y Bik Cat BY) ) eer rrr rer rrr TT rr rts 1
BE UB: BBE oa ico san ces han ns asec vcuscenieeses 4
lowa Code § 13.207) (2999). «2. ccusccnsccvncesnensenes 5
Iowa Code § 707.8A(1) (1999)......... piaacnen 2
lowa Code 6 707 BAIZ) (1999)... occ cccccsnccvescesnns 2
lowa Code § 708.GA(S) (1999)... 22s cccncccccsvcees 2
MISCELLANEOUS
Statement of Helen Alvare, reprinted in the Par-
tial-birth Abortion Ban Act of 1995: Hearing
Before Senate Committee on the Judiciary, 104
oo me Os. Pereererererrrrrr rey rr 3
Supreme Court Rule 10(a) ...............--+eeeeeeeee 6
1
PETITION FOR WRIT OF CERTIORARI
Iowa Attorney General Thomas Miller respectfully
petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Eighth Circuit
in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Eighth Circuit has not yet been officially reported. It
can be found at 1999 WL 753770. A copy of the opinion is
attached to this Petition as Appendix A.
The opinion of the United States District Court for
the Southern District of Iowa, which the Eighth Circuit
affirmed, is reported at 30 FSupp.2d 1157 (S.D. lowa
1998).
The conflicting opinion of the United States Court of
Appeals for the Seventh Circuit, The Hope Clinic v. Ryan,
has not yet been officially reported. It can be found at
1999 WL 974098. A copy of this opinion is also attached
as Appendix B.
JURISDICTION
The opinion and judgment of the United States Court
of Appeals for the Eighth Circuit was entered on Septem-
ber 24, 1999. Jurisdiction in this Court exists under 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
I. Iowa Code § 707.8A(2) (1999):
A person shall not knowingly perform or
attempt to perform a partial-birth abortion. This
prohibition shall not apply to a partial-birth
abortion that is necessary to save the life of the
mother whose life is endangered by a physical
disorder, physical illness, or a physical injury.
II. Iowa Code § 707.8A(1) (1999):
(c) “Partial-birth abortion” means an abor-
tion in which a person partially vaginally
delivers a living fetus before killing the fetus
and completing the delivery.
(d) “Vaginally delivers a living fetus
before killing the fetus” means deliberately and
intentionally delivering into the vagina a living
fetus or a substantial portion of a living fetus for
the purpose of performing a procedure the per-
son knows will kill the fetus, and then killing
the fetus.
III. Iowa Code § 707.8A(5) (1999):
A person who violates subsection 2 is guilty
of a class “C” felony.
IV. U.S. Const. amendment XIV:
The Fourteenth Amendment provides in
pertinent part: “Nor shall any State deprive any
person of life, liberty, or property without due.
process of law.”
STATEMENT OF THE CASE
The statute declared unconstitutional by the United
States Court of Appeals for the Eighth Circuit constitutes
the Iowa legislature’s reaction to a controversial medical
procedure known as “partial-birth abortion.” This pro-
cedure, known medically as intact dilation and extraction
(D&X) typically involves two days of cervical dilation to
allow the trunk of a fetus to be extracted, followed by feet
_ first extraction of a living, post 20-week human being
from the uterus until the head lodges in the cervical os.
The skull of the fetus is then punctured and the brain is
suctioned out to collapse the head and allow its extrac-
tion. If, prior to suctioning, the skull of the fetus passes
through the os of the cervix, a living child is born.
This procedure, described by one federal court as
“gruesome and inhumane” and “particularly hideous,”
Evans v. Kelley, 977 FSupp. 1283, 1319 n. 38 (E.D. Mich.
1997), has also been described by one observer as “one-
fifth abortion and four-fifths infanticide. It kills a child
when 80% of his or her body is already outside the
womb.” Statement of Helen Alvare, reprinted in the Par-
tial-birth Abortion Ban Act of 1995: Hearing Before Sen-
ate Committee on the Judiciary, 104 Cong. 248 (1995 at
116). A majority of states have passed legislation outlaw-
ing this procedure. Like many other states, the language
in Ilowa’s statute is patterned after language in proposed
federal legislation that was sent to, but vetoed by, Presi-
dent Clinton.
The United States District Court for the Southern
District of lowa permanently enjoined enforcement of the
statute, finding that it was unconstitutionally vague, and
imposed an “undue burden” on women seeking an abor-
tion. Appeal was taken pursuant to 28 U.S.C. § 1291. The
Eighth Circuit Court of Appeals affirmed on the “undue
burden” issue, but did not reach the question of whether
the statute was unconstitutionally vague. Both courts
rejected the Iowa Attorney General’s argument that the
language and legislative history of the statute clearly
implied that it was intended to ban only the controversial
D&X procedure. Instead, the Eighth Circuit Court of
Appeals specifically concluded that “[o]ther abortion pro-
cedures would be prohibited as well, however, and this is
the problem.” The court believed that the statute would
prohibit “the most commonly used method for second-
trimester abortions, the dilation and evacuation pro-
cedure (D&E), as well as, in some circumstances, the
suction-curettage procedure,” and therefore the statute
“places an undue burden on women seeking abortions.”
The Eighth Circuit did not hold that a statute construed
as banning only the D&X procedure would constitute
such “undue burden.”
Bb ed Ae MESH Di SE RLAB ES PERE IS it RI
eB Finns
REASONS FOR GRANTING THE WRIT
I. The Eighth Circuit’s Reading of Iowa’s Partial-Birth
Abortion Statute Directly Conflicts With the Sev-
enth Circuit’s Interpretation of Comparably Worded
Statutes Enacted by the States of Wisconsin and
Illinois, and with Established Principles of Statu-
tory Interpretation and Federalism.
A. The Eighth Circuit’s Interpretation of the Iowa
Statute as Prohibiting Common Methods of
Abortion is Squarely In Conflict With the Sev-
enth Circuit’s Interpretation.
From the very outset of this litigation, the Attorney
General of Iowa has contended that the Iowa legislation
at issue bans only the D&X procedure. As the person who
is statutorily responsible for the supervision of all state
prosecutors, Iowa Code § 13.2(7), the lowa Attorney Gen-
eral assured the district and appellate courts that the
statute applied only to the specific D&X procedure. Nev-
ertheless, the district court, and the Eighth Circuit Court
of Appeals, interpreted the statute more broadly, con-
cluding that it banned standard and otherwise legal abor-
tion procedures such as the D&E method.
In contrast, the United States Court of Appeals for
the Seventh Circuit, interpreting comparably worded
statutes passed by the legislatures of Wisconsin and Illi-
nois, gave those statutes a narrower construction. “For
reasons we have already given, however, we believe that
state courts are entitled to accept the view of both states’
Attorneys’ General that their laws do not forbid, or even
affect the D&E procedure.” The Hope Clinic v. Ryan, __
F.3d __, 1999 WL 974098 (7th Cir. 1999) (en banc).
The existence of a conflict in the circuit courts regard-
ing interpretation of this statute provides a basis for
review by this Court. Supreme Court Rule 10(a). The
necessity for such review is of course heightened by the
fact that a federal court’s declaration of unconstitu-
tionality of a state statute is a matter of serious import.
This issue is ripe for review and is of compelling
national importance, demonstrated by the enactment of
prohibitions in a majority of states, extensive litigation
surrounding those state statutes, and the extensive con-
gressional activity.
B. The Eighth Circuit’s Interpretation of Iowa’s
Partial-Birth Abortion Statute, Unlike the Sev-
enth Circuit’s Interpretation of Comparable
Legislation, Violates Basic Principles of Statu-
tory Interpretation, Constitutional Adjudication
and Federalism.
It is a “cardinal principle” of statutory interpretation
that a court should attempt to find any “fairly possible”
constitutional interpretation of the law, rather than hold
it unconstitutional. Concrete Pipe and Products v. Construc-
tion Laborer’s Pension Trust, 508 U.S. 602, 629 (1993). Con-
sequently, if “a law is susceptible of a reasonable
interpretation which supports its constitutionality, the
court must accord the law that meaning.” Planned Parent-
hood of Minnesota v. State of Minnesota, 910 F.2d 479, 482
(8th Cir. 1990). This principle, which requires a presump-
tion of constitutionality, is “mandated by our federalism.”
Richmond Medical Center for Women v. Gillmore, 144 F.3d
326, 332 (4th Cir. 1998).
oO
EE
In the present case, a narrow and therefore constitu-
tional construction of the statute is, as demonstrated by
the opinion of the Seventh Circuit Court of Appeals in
Hope Clinic, readily available. This is a construction which
is consistent with the literal language of the statute, con-
sistent with the legislative history cf the statute, and
consistent with the Iowa Attorney General’s interpreta-
tion of the statute. See, e.g., Richmond Medical Center for
Women v. Gillmore, 144 F.3d 326, 328 (4th Cir. 1998) (literal
language of the statute “cannot reasonably be read to
prohibit” other abortion techniques such as suction, cur-
ettage and D&E).
Because the Eighth Circuit struck down the statute
without giving it the benefit of a narrow construction (or
an opportunity to be narrowly construed by the Iowa
Supreme Court) it violated the “cardinal principle” that
should have guided it.
C. Properly Construed, the Statute Does Not Con-
stitute an “Undue Burden” on Abortions.
Properly construed as applying only to the D&X
procedure — a procedure that none of the physician plain-
tiffs in this case has ever performed even though the
plaintiffs collectively perform nearly all of the abortions
in lowa —- the statute clearly does not constitute an
“undue burden” to lowa women seeking abortions.
The statute leaves in place methods of abortion
which constitute the vast majority of abortions performed
in Iowa and nationally. The American College of Obstetri-
cians and Gynecologists has reported that a select panel
convened by that group “could identify no circum-
stances” under which the D&X procedure “would be the
only option to save the life or preserve the health of the
woman.” Consistent with this, the Seventh Circuit has
expressly concluded that only “small burdens” are cre-
ated by a prohibition of the D&X procedure, not “undue”
ones. Hope Clinic, App. B at 7. Small burdens are not
unconstitutional.
A ban on a single and rarely-used procedure, consid-
ered by many to be beyond the threshold of acceptance
for a civilized society, can be upheld within well-estab-
lished principles of constitutional law. The Eighth Cir-
cuit’s refusal to accept the limiting construction offered
by the Iowa Attorney General implies the Iowa legisla-
ture intended, improperly, to ban all abortion procedures,
or at least erect ‘undue’ burdens upon them, despite this
Court’s pronouncement on their legality.
¢
CONCLUSION
This Court should grant a writ of certiorari to resolve
the compelling issues presented by this case.
Respectfully submitted,
THomas J. MILLER
Attorney General of lowa
Gorpon E. ALLEN*
Deputy Attorney General
Mark HuNACEK
Assistant Attorney General
Hoover Building
Des Moines, IA 50319
(515) 281-5166 FAX (515) 281-4209
*(Counsel of Record)
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App. 1
APPENDIX A
PLANNED PARENTHOOD OF GREATER IOWA,
INC., Sue Haskell, D.O.; and Paula R. Mahone, M.D.,
on behalf of themselves and their patients,
Appellees,
v.
Thomas MILLER, Attorney General of the State of
Iowa, in his official capacity,
Appellant,
Jennifer Niebyl, M.D.; Noelle C. Bowdler, M.D.;
Sonya Erickson, M.D.; Susan Johnson, M.D.; Ann
Laros, M.D.; Ambre Olsen, M.D.; Ingrid Nygaard,
M.D.; Joel I. Sorosky, M.D.; Craig Syrop, M.D.;
Bradley J. Van Voorhis, M.D.; Robert Kretzschmar,
M.D.; Veronika E.B. Kolder, M.D.; and Emma
Goldman Clinic for Women, Inc., on behalf of its
patients, its staff and itself, Appellees,
v.
Thomas Miller, Attorney General of the State of
Iowa, in his official capacity,
Appellant,
American College of Obstetricians and
Gynecologists, Amicus on Behalf of
Appellees.
No. 99-1372SI.
United States Court of Appeals,
Eighth Circuit.
Submitted July 1, 1999.
Decided Sept. 24, 1999.
Janet Benshoof, Priscilla Smith, Eve C. Gartner, Dara
Klassel, Roger K. Evans, New York, NY, Bruce D. Nestor,
Iowa City, IA, and Mark Lambert, Des Moines, IA,
argued, for Appellees.
App. 2
Gordon E. Allen, Des Moines, IA, argued, for Appel-
lant.
Before WOLLMAN, Chief Judge, RICHARD S.
ARNOLD, Circuit Judge, and MAGNUSON,' District
Judge.
RICHARD S. ARNOLD, Circuit Judge.
The State of Iowa appeals a District Court? decision
holding an Iowa act banning “partial-birth abortion”
unconstitutional. The Court granted summary judgment
in favor of the plaintiffs and permanently enjoined
enforcement of the Act. We recently considered the con-
stitutionality of “partial-birth abortion” bans enacted in
Nebraska and Arkansas, and held both statutes uncon-
stitutional. See Carhart v. Stenberg, 192 F.3d 1142 (8th
Cir.1999); Little Rock Family Planning Services, P.A. v.
Jegley, 192 F.3d 794 (8th Cir.1999). The law which guided
those decisions applies here as well, and leads us to the
same result. For the following reasons, we affirm the
judgment of the District Court.
We consider here only whether the Act banning the
“partial-birth abortion” procedure prohibits, by its plain
language, other abortion procedures as well, creating an
unconstitutional undue burden on women seeking pre-
1 The Hon. Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota, sitting by
designation.
2 The Hon. Robert W. Pratt, United States District Judge for
the Southern District of Iowa.
era Pee ee sD
App. 3
viability abortions. The Act prohibits “partial-birth abor-
tion,” a term commonly understood to refer to a pro-
cedure called a dilation and extraction (D&X), also
sometimes called an intact dilation and extracti6n (intact
D&X), or an intact dilation and evacuation (intact D&E).
The most commonly used definition of the D&X pro-
cedure comes from the American College of Obstetricians
and Gynecologists (ACOG):
deliberate dilatation of the cervix, usually over a
sequence of days; instrumental conversion of
the fetus to a footling breech; breech extraction
of the body excepting the head; and partial
evacuation of the intracranial contents of a liv-
ing fetus to effect vaginal delivery of a dead but
otherwise intact fetus.
ACOG Statement of Policy: Statement on Intact Dila-
tation and Extraction, Jan. 12, 1997. This procedure would
be prohibited under the Iowa Act. Other abortion pro-
cedures would be prohibited as well, however, and this is
the problem. By prohibiting the most commonly used
method for second-trimester abortions, the dilation and
evacuation procedure (D&E), as well as, in some circum-
stances, the suction-curettage procedure, the Act places
an undue burden on women seeking abortions. Under the
applicable Supreme Court precedents, it is our duty to
declare invalid a law which creates such an undue bur-
den.
‘A
lowa’s “partial-birth abortion” ban act provides:
A person shall not knowingly perform or
attempt to perform a partial-birth abortion. This
App. 4
prohibition shall not apply to a partial-birth
abortion that is necessary to save the life of the
mother whose life is endangered by a physical
disorder, physical illness, or physical injury.
Iowa Code Ann. § 707.8A(2) (1999). The Act also
includes the following definitions:
(c) “Partial-birth abortion” means an abortion
in which a person partially vaginally delivers a
living fetus before killing the fetus and complet-
ing the delivery.
(d) “Vaginally delivers a living fetus before
killing the fetus” means deliberately and inten-
_ tionally delivering into the vagina a living fetus
or a substantial portion of a living fetus for the
purpose of performing a procedure the person
knows will kill the fetus, and then killing the
fetus.
Iowa Code Ann. § 707.8A(1). A physician who per-
forms a “partial-birth abortion” is guilty of a class “C”
felony. See id. § 707.8A(5). The physician may also be
subject to civil penalties. See id. § 707.8A(4).
The District Court held the Act unconstitutional
because it was vague; because it imposed an undue bur-
den on women seeking abortions; and because it failed to
provide an adequate health exception for pregnant
women. We agree that the Act creates an undue burden
and therefore hold the Act unconstitutional. Because we
base our holding on undue-burden grounds, we do not
reach the vagueness issue. Nor do we decide whether the
Act fails to provide an adequate health exception.
App. 5
II.
A state may not enact a law which places an undue
burden on a woman’s decision whether to have an abor-
tion of a nonviable fetus. See Planned Parenthood of South-
eastern Pennsylvania v. Casey, 505 U.S. 833, 877, 112 S.Ct.
2791, 120 L.Ed.2d 674 (1992). The District Court held
lowa’s “partial-birth abortion” ban act unconstitutional
because, by, prohibiting the D&E and suction-curettage
procedures, it created an undue burden on women’s right
to choose. We review the District Court’s conclusions of
law de novo. See Planned Parenthood of Greater Iowa v.
Atchison, 126 F.3d 1042, 1048 (8th Cir.1997).
The suction-curettage and D&E procedures are two
of the most commonly used abortion procedures. If the
Act’s scope is broad enough to cover these procedures, an
undue burden is created for women seeking pre-viability
abortions. See Carhart, 192 F.3d 1142, - , 1999 WL 753919
at *7, slip op. at 16. The Act prohibits “deliberately and
intentionally delivering into the vagina a living fetus or a
substantial portion of a living fetus for the purpose of
performing a procedure the person knows will kill the
fetus, and then killing the fetus.” Iowa Code Ann.
§ 707.8A(1)(d) (1999). The Act’s language is almost identi-
cal to the language of the Nebraska statute held uncon-
stitutional in Carhart. The problem with the Nebraska
statute was the term “substantial portion.” See id. at - , *6,
slip op. at 15. That language effectively barred the D&E
procedure, as well as the D&X procedure, because a
substantial portion of a living fetus - such as an arm or a
leg — is brought into the vagina as part of the D&E
procedure. See id. The same reasoning applies to the lowa
Act. By barring a procedure which involves bringing a
App. 6
“substantial portion” of a living fetus into the vagina, for
the purpose of killing the fetus, the Act bars more than
just the D&X procedure. See id. at __, *6-7, slip op. at
15-16. It bars the D&E procedure, and, in some circum-
stances, the suction-curettage procedure as well. See Little
Rock Family Planning, 192 F.3d at 797-798.
The State argues that the Act’s knowledge and intent
requirements limit the scope of the Act. The same argu-
ment was made, unsuccessfully, in both Carhart and Little
Rock Family Planning. See Carhart, 192 F.3d at ____, 1999 WL
at *6-7, slip op. at 15-16; Little Rock Family Planning, 192
F.3d at 798. The argument fares no better here. In a D&E
procedure, and in some suction-curettage procedures, the
physician intends to bring part of a living fetus out of the
uterus into the vagina. This is specifically prohibited by
the Act. The physician does not have to intend to perform
a “partial-birth abortion,” as that phrase has been popu-
larly used, to violate the Act. Simply intending to deliver
a part of the fetus into the vagina, as part of the abortion
procedure, while the fetus is till [sic] intact and living, is
enough. The Act’s ban encompasses more than just the
D&X procedure, and the scienter requirement cannot save
it.
IV.
For the foregoing reasons, we affirm the judgment of the
District Court.
App. 7
APPENDIX B
THE HOPE CLINIC, et al., Plaintiffs-Appellees,
v.
James E. RYAN, Attorney General of Illinois, and
Richard K. Devine, State’s
Attorney of Cook County, Illinois,
Defendants-Appellants.
Dennis D. Christensen, et al.,
Plaintiffs-Appellants,
v.
James E. Doyle, Attorney General of Wisconsin,
and Diane M. Nicks, District
Attorney for Dane County, Wisconsin,
Defendants-Appellees.
Nos. 98-1726, 99-2528, 99-2533.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 22, 1999
Decided Oct. 26, 1999
Lorie A. Chaiten, Sonnenschein, Nath & Rosenthal,
Chicago, IL, Colleen K. Connell (argued), Roger Baldwin
Foundation of ACLU, Inc., Chicago, IL, for Plaintiffs-
Appellees in No. 98-1726.
Simon Heller (argued), Bonnie Scott Jones, Center for
Reproductive Law & Policy, New York, NY, Roger K.
Evans, Planned Parenthood Federation of America, Legal
Action for Reproductive Rights, New York, NY, for Plain-
tiffs-Appellants in Nos. 99-2528, 99-2533.
Joel D. Bertocchi, Solicitor General (argued), Office of
the Attorney General, Chicago, IL, Deborah L. Ahlstrand,
App. 8
Office of the Attorney General, Civil Appeals Division,
Chicago, IL, for Defendants-Appellants in No. 98-1726.
Susan K. Ullman (argued), Office of the Attorney
General, Wisconsin Department of Justice, Madison, WI,
for Defendants-Appellees in Nos. 99-2528, 99-2533.
Richard E. Coleson, Bopp, Coleson & Bostrom, Terre
Haute, IN, for Amicus Curiae.
Before POSNER, Chief Judge, and COFFEY, FLAUM,
EASTERBROOK, MANION, KANNE, ROVNER, DIANE
P. WOOD, and EVANS, Circuit Judges."
EASTERBROOK, Circuit Judge.
We must decide whether state laws prohibiting par-
tial-birth abortions are unconstitutionally vague or
unduly burden women’s rights. Acting without an evi-
dentiary hearing, a district court held the Illinois statute
unconstitutional and entered a permanent injunction.
Hope Clinic v. Ryan, 995 F.Supp. 847 (N.D.II1.1998). But
after a trial, another district court concluded that the
Wisconsin statute is valid. Planned Parenthood of Wisconsin
v. Doyle, 44 F.Supp.2d 975 (W.D.Wis.1999). A panel of this
court earlier had ordered preliminary relief against Wis-
consin’s law, see Planned Parenthood of Wisconsin v. Doyle,
162 F.3d 463 (7th Cir.1998), and plaintiffs say that this
decision, applying Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992), justifies permanent injunctions
against both states’ rules. To ensure consistency, we heard
* Circuit Judge Ripple did not participate in the
consideration or decision of these cases.
App. 9
the appeals en banc. We conclude that both laws can be
applied in a constitutional manner. Whether that will
occur depends on state courts, which alone can settle
questions about the construction of the statutes. To
ensure that physicians are not deterred from performing
other medical procedures while issues wend their way
through state tribunals, we hold that both sets of plain-
tiffs are entitled to injunctive relief that will limit the
statutes’ application to the medical procedure that each
state insists is its sole concern.
Induction, suction curettage, and dilation and evac-
uation (D & E) are the principal methods of performing
abortions in the United States. Prohibiting any one of
these would conflict with the right of abortion recognized
by cases such as Casey, 505 U.S. at 877, 112 S.Ct. 2791
(plurality opinion) (adopting “undue burden” as the con-
stitutional standard), and Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 75-79, 96 S.Ct. 2831, 49
L.Ed.2d 788 (1976) (holding that a state may not forbid
saline amniocentesis, at the time the principal means of
induction). Our cases involve an uncommon procedure
known to the medical community as “intact dilation and
extraction” or just “dilation and extraction (D & X),” and
to the public as “partial-birth abortion.”
Some medical background is essential to understand-
ing the issues. Induction means inducing preterm labor,
which causes the expulsion of the conceptus. Methotrex-
ate or mifepristone (RU-486, now in clinical trials), in
App. 10
combination with misoprostol, can be used for this pur-
pose early in pregnancy; saline amniocentesis and
injected prostaglandins serve the same function in the
second trimester. Suction curettage (vacuum aspiration),
the most common surgical method of abortion early in
pregnancy, refers to evacuation of the uterine cavity; the
embryo or fetus is separated from the placenta either by
scraping or vacuum pressure, then is removed by suction.
When these methods are inappropriate, or do not work,
physicians employ the D & E procedure. To perform a D
& E, the physician dilates the cervix and dismembers the
fetus inside the uterus using forceps. Fetal parts are
removed with forceps or by suction.
A D & X is a variant of a D & E in which the fetus is
removed without dismemberment. The American College
of Obstetricians and Gynecologists (ACOG) defines D &
X as follows: “1. deliberate dilatation of the cervix, usu-
ally over a sequence of days; 2. instrumental conversion
of the fetus to a footling breech; 3. breech extraction of
the body excepting the head; and 4. partial evacuation of
the intracranial contents of a living fetus to effect vaginal
delivery of a dead but otherwise intact fetus.” Martin
Haskell, the physician who developed the D & X pro-
cedure, see Dilation and Extraction for Late Second Tri-
mester Abortion (1992), reprinted in 139 Cong. Rec. E1092
(Apr. 29, 1993), believes that how the head is diminished
in size so that it can pass through the cervix is not
important: mechanically crushing the skull serves the
same end as evacuating its contents, which causes its
collapse. It is this combination of coming so close to
delivering a live child with the death of the fetus by
reducing the size of the skull that not only distinguishes
App. 11
D & X from D & E medically but also causes the adverse
public (and legislative) reaction. Opponents deem the D
& X procedure needlessly cruel and bordering on infan-
ticide, and all three states in this circuit have enacted
statutory restrictions.
The statute in Illinois has three sections with legal
significance:
720 ILCS § 513/5. Definitions
In this Act: “Partial-birth abortion” means an
abortion in which the person performing the
abortion partially vaginally delivers a living
human fetus_or infant before killing the fetus or
infant and completing the delivery. The terms
“fetus” and “infant” are used interchangeably to
refer to the biological offspring of human par-
ents.
720 ILCS § 513/10. Partial-birth abortions pro-
hibited
Any person who knowingly performs a partial-
birth abortion and thereby kills a human fetus
or infant is guilty of a Class 4 felony. This Sec-
tion does not apply to a partial-birth abortion
that is necessary to save the life of a mother
because her life is endangered by a physical
disorder, physical illness, or physical injury,
including a life-endangering condition caused
by or arising from the pregnancy itself, pro-
vided that no other medical procedure would
suffice for that purpose.
720 ILCS § 513/15. Civil action
The maternal grandparents of the fetus or
infant, if the mother has not attained the age of
18 years at the time of the abortion, may in a
App. 12
civil action obtain appropriate relief unless the
pregnancy resulted from the plaintiff’s criminal
conduct or the plaintiff consented to the abor-
tion. The relief shall include money damages for
all injuries, psychological and physical, occa-
sioned by the violation of this Act and statutory
damages equal to 3 times the cost of the partial-
birth abortion.
The Indiana statute defines “partial-birth abortion”
in identical terms. Ind.Code § 16-18-2-267.5. Like Illinois
it forbids partial-birth abortions unless that procedure is
necessary to save the mother’s life, and no other pro-
cedure would suffice. Ind.Code § 16-34-2-1(b). The Indi-
ana statute has never been challenged and has been in
effect since July 1, 1997.
Wisconsin has taken a slightly different approach. Its
statutes provide:
Wis. Stat. § 895.038 Partial-birth abortions; lia-
bility.
(1) In this section:
(a) “Child” has the meaning given in § 940.16
(1)(a).
(b) “Partial-birth abortion” has the meaning
given in § 940.16 (1)(b).
(2) (a) Except as provided in par. (b), any of
the following persons has a claim for appropri-
ate relief against a person who performs a par-
tial-birth abortion:
1. If the person on whom a partial-birth abor-
tion was performed was a minor, the parent of
the minor.
a
App. 13
2. The father of the child aborted by the par-
tial-birth abortion.
(b) A person specified in par. (a) 1. or 2. does
not have a claim under par. (a) if any of the
following apply:
1. The person consented to performance of the
partial-birth abortion.
2. The pregnancy of the woman on whom the
partial-birth abortion was performed was the
result of a sexual assault in violation of
§ 940.225, 944.06, 948.02, 948.025, 948.06 or
948.09 that was committed by the person.
(3) The relief available under sub. (2) shall
include all of the following:
(a) If the abortion was performed in violation
of § 940.16, damages arising out of the perfor-
mance of the partial-birth abortion, including ©
damages for personal injury and emotional and
psychological distress.
(b) Exemplary damages equal to 3 times the
cost of the partial-birth abortion.
(4) Subsection (2) applies even if the mother of
the child aborted by the partial-birth abortion
consented to the performance of the partial-
birth abortion.
Wis. Stat. § 940.16 Partial-birth abortion.
(1) In this section:
(a) “Child” means a human being from the
time of fertilization until it is completely deliv-
ered from a pregnant woman.
(b) “Partial-birth abortion” means an abortion
in which a person partially vaginally delivers a
App. 14
living child, causes the death of the partially
delivered child with the intent to kill the child,
and then completes the delivery of the child.
(2) Except as provided in sub. (3), whoever
intentionally performs a partial-birth abortion is
guilty of a Class A felony.
(3) Subsection (2) does not apply if the partial-
birth abortion is necessary to save the life of a
woman whose life is endangered by a physical
disorder, physical illness or physical injury,
including a life-endangering physical disorder,
physical illness or physical injury caused by or
arising from the pregnancy itself, and if no other
medical procedure would suffice for that pur-
pose.
Wisconsin’s definition of partial-birth abortion is
substantially the same as Illinois’, but the mental-state
elements differ, as do the maximum penalties: Illinois
makes unjustified partial-birth abortion a Class 4 felony,
with a maximum penalty of three years; in Wisconsin the
offense is a Class A felony, for which Wis. Stat. -
§ 939.50(3)(a) provides a penalty of life imprisonment.
Because Wisconsin and Illinois use similar language
to define partial-birth abortions, we illustrate plaintiffs’
concerns with the latter’s statute:
“Partial-birth abortion” means an abortion in
which the person performing the abortion par-
tially vaginally delivers a living human fetus or
infant before killing the fetus or infant and com-
pleting the delivery. The terms “fetus” and
“infant” are used interchangeably to refer to the
biological offspring of human parents.
App. 15
This legal definition is an imperfect match for the
medical definition of D & X. It is easy to see why a
legislature would be chary of the ACOG’s specification:
then any small variation (such as a change in the method
of reducing the head size, or snipping off a toe to defeat
the “otherwise intact” specification) would take the abor-
tion outside the prohibition, even though the reasons
why the technique has been deemed objectionable would
be unaffected. But, as is common with legislation, the
price of avoiding loopholes is generality. Section 513/5
captures the idea, central to the D & X procedure, that an
intact fetus moves from uterus to vagina before death
occurs. But it also uses the words “delivers” and “deliv-
ery,” which many physicians understand to refer to any
removal of fetal material from the uterus. The law might
be read to prohibit the extraction of dismembered parts
tollowing a D & E, or to prohibit abortion by induction if
by chance the fetus survives until it reaches the birth
canal. Moreover, physicians performing a D & E some-
times do not complete the dismemberment inside the
uterus, and some fear that this could lead the procedure
to be characterized as a partial delivery under the statute.
The possibility that § 513/10 might discourage risk-
averse physicians from performing the D & E procedure
led the district court in Illinois to declare that it is too
vague to be enforced, and a similar concern animated our
panel's decision to require preliminary relief against Wis-
consin’s law. Moreover, if these laws needlessly raise the
effective costs of induction, suction curettage, or D & E,
then they would unduly burden the right of abortion,
another concern expressed not only by the district court
in the Illinois case but also by the panel in the Wisconsin
App. 16
case. But after a trial on remand, the district court in
Wisconsin concluded that physicians who perform abor-
tions recognize that the statutory formula, however
vague or broad these words appear to lay eyes, refers to
the D & X procedure alone. The court held that, as so
limited, the statute does not substantially burden any
woman’s right to an abortion, because D & X is never the
only safe procedure.
Litigation elsewhere has produced results mirroring
the divergence between the outcomes in Illinois and Wis-
consin. The sixth circuit held that Ohio’s ban on partial-
birth abortions is unconstitutional, Women’s Medical Pro-
fessional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997), but
the fourth circuit issued a stay preventing interference
with Virginia’s statute. Richmond Medical Center for Women
v. Gilmore, 144 F.3d 326 (4th Cir.1998), motion to vacate
stay denied, 183 F.3d 303. Both of those decisions were
rendered over dissents. A single panel of the eighth cir-
cuit recently held three states’ partial-birth-abortion laws
unconstitutional, but only after first concluding that all
three statutes forbid the D & E procedure. Carhart v.
Stenberg, 192 F.3d 1142 (8th Cir.1999) (Nebraska); Little
Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794
(8th Cir.1999) (Arkansas); Planned Parenthood of Greater
lowa, Inc. v. Miller, __ F.3d __, 1999 WL 753770 (8th
Cir.1999) (lowa).
Plaintiffs would like us to employ the approach of
our panel’s opinion in the Wisconsin case and declare
App. 17
both states’ laws unconstitutional without ado. But differ-
ent statutes have different language, which may be
important. Litigants also have made distinctive argu-
ments - for example, Illinois relies on United States v.
Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697
(1987), for the proposition that, except in first amendment
cases, a law may be held unconstitutional only when “no
set of circumstances exists under which the Act would be
valid.” Moreover, two events since the panel wrote call
for fresh analysis. First, that opinion dealt with prelimi-
nary relief and observed that “the full trial may cast the
facts in a different light”. 162 F.3d at 466. That trial has
been held in Wisconsin, and its results must be consid-
ered. Second, both the panel’s decision in the Wisconsin
case and the district court’s opinion in the Illinois case
conclude that the statute as written is vague. A more
recent decision of the Supreme Court, Chicago v. Morales,
__ U.S. __, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), stresses
that state courts are entitled to construe state laws to
reduce their ambiguity, and that federal courts should
evaluate state laws as they have been construed, not just
as they appear in the statute books. See also, e.g., Parker v.
Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974);
Civil Service Commission v. Letter Carriers, 413 U.S. 548, 93
S.Ct. 2880, 37 L.Ed.2d 796 (1973). This implies that Illinois
and Wisconsin are entitled to interpret their own laws -
that federal courts should not enjoin all application
before enforcement and thus prevent the state courts
from having a chance to save their statutes.
Salerno offers a potential ground for giving the states
that chance. It would be hard to say that every possible
instance of the D & X procedure is protected by the
App. 18
Constitution. Along similar lines are the many cases say-
ing that outside the domain of the first amendment,
vagueness challenges must be assessed “as applied.” See,
e.g., Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct.
1853, 100 L.Ed.2d 372 (1988); Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186,
71 L.Ed.2d 362 (1982). But we are reluctant to rely too
heavily on this approach, because Morales shows that
three Justices believe that this language is too sweeping,
see___ U.S. at__ - __ & n. 22, 119 S.Ct. at 1858-59 & n.
22 (Stevens, J., joined by Souter & Ginsburg, JJ.), and the
Supreme Court has on occasion resolved constitutional
challenges to statutes that do not involve speech without
asking whether every conceivable application would be
unconstitutional. E.g., Romer v. Evans, 517 U.S. 620, 116
S.Ct. 1620, 134 L.Ed.2d 855 (1996); Kolender v. Lawson, 461
U.S. 352, 358-59 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983);
Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed.
1232 (1913). Only one Justice offered any support for
Salerno’s approach in Morales, and he did so in a dissent-
ing opinion. __ U.S. at __ - __, 119 S.Ct. at 1867-72
(Scalia, J., dissenting). Justice Scalia identified many cases
that articulate Salerno’s requirement, and many others
that bypass the inquiry. Courts of appeals are divided on
the question whether Salerno applies to abortion legisla-
tion. Compare Jane L. v. Bangerter, 102 F.3d 1112, 1116
(10th Cir.1996), with Barnes v. Moore, 970 F.2d 12, 14 n. 2
(5th Cir.1992). The safest course for a court of appeals,
when confronted with inconsistent lines of precedent, is
to decide on other grounds if at all possible. Here it is
possible, for we think that the Supreme Courts of Illinois
App. 19
and Wisconsin could read their laws in ways that com-
port with the Constitution.
1. One means of doing this would be to assimilate
the statutory definitions to the medical definition of D &
X, with allowance for different ways of reducing the head
size and other immaterial variations. Both states are con-
cerned about the D & X procedure and did not set out to
forbid any other. The Attorneys General of Illinois and
Wisconsin, the principal defendants, tell us that their
statutes are concerned only with the D & X procedure
and will be enforced only against its use. That assurance
might be enough by itself, in the absence of any contrary
indication from the state judiciary, to resolve immediate
vagueness concerns. See Frisby v. Schultz, 487 U.S. 474,
483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); cf. Arizonans
for Official English v. Arizona, 520 U.S. 43, 76-80, 117 S.Ct.
1055, 137 L.Ed.2d 170 (1997). Although local prosecutors
(States’ Attorneys in Illinois, District Attorneys in Wis-
consin) initiate criminal prosecutions, representatives of
these prosecutors have been named as parties in each
case, and they agree with the Attorneys General. Plain-
tiffs object that this approach would rewrite rather than
interpret the law, but we doubt this. Both medical and
popular literature equate “partial-birth abortion” (the
statutory term) with the D & X procedure. See Janet E.
Gans Epner, Harry S. Jonas & Daniel L. Seckinger, Late-
term Abortion, 280 J. Am. Medical Ass’n 724 (Aug. 26,
1998); M. LeRoy Sprang & Mark G. Neerhof, Rationale for
Banning Abortions Late in Pregnancy, 280 J. Am. Medical
Ass'n 744 (Aug. 26, 1998). The district court in Wisconsin
found that this is the statute’s aim. 44 FSupp.2d at 984
(relying on the Attorney General’s concession). Using a
App. 20
medical definition to supplement a vague lay definition
does not strike us as revisionism or an exercise in decon-
struction.
But if this approach would nonetheless be an exam-
ple of brute force used to save a statute - well, courts do
it all the time. Florida had a law forbidding “the abomi-
nable and detestable crime against nature”. Placement in
the code showed that this crime had something to do
with sex, but what? Did it forbid incest? Necrophilia?
Bestiality? A legal historian might give an answer, but to
lay readers of the statute, and even to most lawyers, the
words are Delphic. The state’s highest court filled in the
blank by saying that the object was sodomy - and the
Supreme Court of the United States rebuffed a charge of
unconstitutional vagueness, given the state court’s pres-
tidigitation. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190,
38 L.Ed.2d 179 (1973). Only if vagueness remains after
judicial interpretation is there a constitutional problem,
the Court held. See also, e.g., United States v. Lanier, 520
U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Rose v.
Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975);
Lanzetta v. New Jersey, 306 U.S. 451, 455-57, 59 S.Ct. 618, 83
L.Ed. 888 (1939); Kolender, 461 U.S. at 355-57, 103 S.Ct.
1855. Federal courts have performed equally dramatic
feats. As written, the Federal Election Campaign Act is
hopelessly vague and overbroad. Buckley v. Valeo, 424 U.S.
1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), saved the bulk of
the statute by adding details. In two recent cases we
predicted that state courts would follow suit with compa-
rable state laws. See Wisconsin Right to Life, Inc. v. Paradise,
138 F.3d 1183 (7th Cir.1998); Brownsburg Area Patrons
Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir.1998). In
App. 21
the latter case, because we were not completely confident
that the state judiciary would follow Buckley's path of
freewheeling interpretation, we certified the issue to the
Supreme Court of Indiana - which responded that it
indeed possesses, and is inclined to use, that power.
Brownsburg Area Patrons Affecting Change v. Baldwin, 714
N.E.2d 135 (Ind.1999).
Relying on Colautti v. Franklin, 439 U.S. 379, 99 S.Ct.
675, 58 L.Ed.2d 596 (1979), the sixth circuit concluded in
Women's Medical Professional Corp. v. Voinovich that any
statute concerning abortion is unconstitutionally vague,
no matter how precise an interpretation state courts even-
tually develop, unless it requires proof that the physician
knows that a given act has been forbidden. If this were
so, then the approach to avoiding vagueness that we have
just sketched would be untenable. But it is not so; never
has the Supreme Court held that all criminal laws (or
even just all criminal !aws affecting abortion) depend on
scienter. Cases we have mentioned already (and more
that we cite later) hold that a statute may be sustained
against a charge of vagueness if, as construed, it gives
reasonable notice of the forbidden conduct. That the
notice does not sink in — that some people close their eyes
(or minds) and thus do not learn of the law’s contents or
appreciate its application to their conduct - does not
prevent a state from enforcing its rules. See United States
v. Wilson, 159 F.3d 280, 288-89 (7th Cir.1998). This subject
received sustained attention in Karlin v. Foust, 188 F.3d
446, 460-64 (7th Cir.1999). For the reasons laid out in
Karlin we respectfully disagree with the sixth circuit's
understanding of this question. See also Note, 112 Harv.
App. 22
L.Rev. 731 (1999) (criticizing Women’s Medical Professional
Corp.).
2. Although the Constitution does not compel states
to ameliorate vagueness problems by using a mental-state
requirement to limit prosecutions to situations in which
the defendant knows that his acts are forbidden, they arv
free to do so. This is the path the Supreme Court took in
Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed.
1495 (1945), and United States v. Kozminski, 487 U.S. 931,
108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), to save 18 U.S.C.
§§ 241 and 242. These companion statutes, the poster
children for a vagueness campaign, make it a crime to
deprive anyone of any constitutional right (or conspire to
do so). These statutes are written entirely in terms that
have been difficult to pin down, such as “under color of
any law” and “rights, privileges, or immunities secured
or protected by the Constitution .. . of the United
States”. Section 242 contains the word “willfully”, and in
Screws the Court read this to mean that a person commits
the offense only if he knows that his acts deprive some-
one of a constitutional right. A person who actually rec-
ognizes his legal obligation can’t complain that he lacked
notice. Many cases since Screws use a knowledge require-
ment to prevent unfair surprise when the statute is vague
or complex. E.g., Cheek v. United States, 498 U.S. 192, 111
S.Ct. 604, 112 L.Ed.2d 617 (1991) (tax laws); Staples v.
United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608
(1994) (gun-control laws).
Both Illinois and Wisconsin put mental-state ele-
ments in their statutes. Attorneys General of both states
contend that under their laws a procedure may be
deemed a “partial-birth abortion” only if at the outset of
ee ee
ee ee Aes weiss
App. 23
the procedure the physician intends to perform all of the
steps that mark the D & X. We think that the Supreme
Courts of both states could go even farther and read the
statutes to require knowledge of the legal rules, and thus
to follow the trail blazed in Screws.
The critical language in Illinois reads: “Any person
who knowingly performs a partial-birth abortion and
thereby kills a human fetus or infant is guilty of a Class 4
felony.” 720 ILCS § 513/10 (emphasis added). If the
Supreme Court of Illinois reads “knowingly” in § 513/10
the same way the Supreme Court of the United States
read “willfully” in § 242, then there is no vagueness
problem with § 513/10. And we can’t see any impedi-
ment to giving “knowingly” such a reading. In context,
the word sounds distinctly like a requirement that the
physician know that the medical procedure being per-
formed is a “partial-birth abortion” and not simply that
the physician know that he is performing particular phys-
ical acts. The most natural reading is one that requires
knowledge of the law’s application to the medical pro-
cedure being performed. Federal courts have been cre-
ative with knowledge requirements as a means of saving
statutes against constitutional infirmity. E.g., United States
v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130
L.Ed.2d 372 (1994). Section 513/10 readily supports a
construction that eliminates all concern about vagueness,
which makes it inappropriate for a federal court to enjoin
its application. (In Morales, the Supreme Court’s most
recent vagueness opinion, the lead opinion stressed that
the statute lacked any mental-state requirement.)
Wisconsin uses the word “intentionally” rather than
the word “knowingly.” Its statute has two intent
App. 24
elements: a partial-birth abortion is defined as one in
which the physician acts with “the intent to kill the
child”, Wis. Stat. § 940.16(1)(b), and the section defining
the offense reads: “[W]hoever intentionally performs a
partial-birth abortion is guilty of a Class A felony.” Wis.
Stat. § 940.16(2). The reference to “intent” in s
§ 940.16(1)(b) must mean “that the actor either has a
purpose to do the thing or cause the result specified, or is
aware that his or her conduct is practically certain to
cause that result.” Wis. Stat. § 939.23(4) (defining “with
intent to”). The reference to “intentionally” in § 940.16(2)
has at least potentially a broader scope. Although
§ 939.23(3) defines “intentionally” as “a purpose to do the
thing or cause the result specified”, a “partial-birth abor-
tion” is neither a thing nor a result; it is a defined legal
term. It is therefore a distinct possibility that the Supreme
Court of Wisconsin will read this reference as equivalent
to “wilfully” or “knowingly” notwithstanding the caution
in § 939.23(5) that criminal intent “does not require proof
of knowledge of the ... scope or meaning of the terms
used in” a statute. The question here is not whether a
physician understands the terms of § 940.16(1)(b) in the
abstract, but whether the physician intends that the plan
of action add up to a “partial-birth abortion.” In cases
such as X-Citement Video, Cheek, and Staples, the Supreme
Court of the United States was exceptionally creative
with statutory allusions to mental states; plaintiffs have
not established that the Supreme Court of Wisconsin
would be unwilling to save its statutes the way the
Supreme Court of the United States saved 18 U.S.C. § 242.
3. Still a third interpretive approach is open to the
state courts. They may elect to apply the statute to its
App. 25
central core of meaning, the D & X, while working out in
common law fashion its outer boundaries. See United
States v. Pitt-Des Moines, Inc., 168 F.3d 976, 986-90 (7th
Cir.1999). This is how the Supreme Court has chosen to
proceed with respect to the Sherman Antitrust Act, 15
U.S.C. §§ 1, 2, a statute much less precise than the partial-
birth-abortion laws. Long before the development of a
body of antitrust rules, or even of a clear distinction
between the domains of the per se rule and the rule of
reason, the Court rebuffed a vagueness challenge,
remarking that “law is full of instances where a man’s
fate depends on his estimating rightly, that is, as the jury
subsequently estimates it, some matter of degree.” Nash,
229 U.S. at 377, 33 S.Ct. 780 (Holmes, J.). The Court took
the same approach in Parker v. Levy for Article 133 of the
Uniform Code of Military Justice, which makes it a crime
for a commissioned officer to engage in “conduct
unbecoming an officer and a gentleman.” That statute,
compared to which § 513/5 and § 940.16(1)(b) are para-
gons of specificity, was sustained against a vagueness
challenge because the military courts had added details
over many years, and the Supreme Court anticipated that |
they would continue to do so as new situations arose.
Letter Carriers applies the same approach to vague provi-
sions of the Hatch Act. Parker cannot be passed off as a
sport of military law; it is just one illustration of the
Proposition that vagueness may be overcome incremen-
tally, as well as by an all-at-once construction. Consider
United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46
L.Ed.2d 228 (1975), a civilian case dealing with 18 U.S.C.
§ 1715, which makes it a crime to mail a firearm capable
App. 26
of being concealed on the person. A Derringer unques-
tionably qualifies, and although larger guns pose tough
questions, the combination of a core meaning plus size as
a metric for adjudication enabled the Court to hold that
borderline cases could be decided later, as they arose.
Notice the difference between this approach and
Salerno. In cases such as Nash, Parker, and Powell, the
Court did not ask simply whether there was one constitu-
tional application. It asked whether there was a core of
meaning that people could grasp. In Nash the common
law of restraint of trade supplied that core; in Parker the
accumulated body of military precedents did so; in Powell
the core comprised handguns. Occasionally the Court
fortifies this approach by combining it with a scienter
requirement, as United States v. United States Gypsum Co.,
438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), did for
the Sherman Act. Illinois and Wisconsin can follow the
same path. For their statutes, the medical definition of the
D & X procedure supplies the core of understandable
application. Indeed, the district court in Wisconsin found
as a matter of fact that physicians who are likely to
perform an abortion already understand that this is the
point of partial-birth-abortion statutes. 44 F.Supp.2d at
978. That finding cannot be set aside as clearly erroneous.
Plaintiffs respond to this core-plus-common-law
approach by contending that a statute is unconstitu-
tionally vague until the interstices have been filled in. But
then all of the cases we have cited were wrongly decided,
for the interstices of antitrust law were not filled in by
1913, nor were all of the gun-mailing issues worked out
before 1975: Powell involved a sawed-off shotgun, not a
pistol. To say that the law cannot be applied to anyone,
_ =—
App. 27
even a person who commits a violation within the core of
the statute, until all issues about its reach have been
resolved would prevent those issues from coming- before
the court to be resolved. How, precisely, are the interpre-
tive wrinkles to be smoothed if the law can’t be invoked?
By advisory opinions? Anyway, there is always a periph-
ery, no matter how many situations judges have evalu-
ated. Resolving each new question moves the area of
uncertainty but can’t abolish it. “Whenever the law draws
a line there will be cases very near each other on opposite
sides. The precise course of the line may be uncertain, but
no one can come near it without knowing that he does so,
if he thinks, and if he does so it is familiar to the criminal
law to make him take the risk.” United States v. Wurzbach,
280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508 (1930)
(Holmes, J.).
Protection for events outside the core is provided by
the principle that surprising and unanticipated applica-
tions of a criminal statute violate the due process clause.
See, e.g., Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697,
12 L.Ed.2d 894 (1964); Marks v. United States, 430 U.S. 188,
196, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Lanier, 520 US. at
266, 117 S.Ct. 1219. Given the assurances made in this
litigation by the Attorneys General of Illinois and Wis-
consin, application of these states’ partial-birth-abortion
statutes to a normal D & E or induction (including one
that began as a D & E but turned out to have elements of
a D & X because of inadvertence or developments during
surgery) would be surprising and constitutionally imper-
missible. Plaintiffs therefore can practice medicine with-
out undue concern on the legal front. The Constitution
provides the assurance they crave - but without the need
App. 28
to prevent application of the state law to the D & X
procedure itself. States have a powerful interest in work-
ing out the details of their criminal laws in their own
courts. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971); Nelson v. Murphy, 44 F.3d 497 (7th
Cir.1995). On remand the district judges should enter
precautionary injunctions, limited to implementing the
conclusion of this paragraph that the state laws may not
be applied to a normal D & E or induction until after the
state has provided additional specificity, by statutory
amendment, regulations, or judicial interpretation (which
could arise either from civil litigation, see Part IV below,
or from criminal prosecutions in which the parties dis-
agree about whether the medical procedure properly may
be labeled a D & X). With that assurance in hand, plain-
tiffs would not face any substantial threat of prosecution.
A skeptic might respond: what’s the basis for an
injunction without a finding of actual constitutional vio-
lation? The basis is the risk that plaintiffs face. See Ex
parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Whenever suit is brought against a statute that has yet to
be enforced, there is a chance that what the federal court
does will be unnecessary or even advisory — for in the
absence of relief the statute might never be enforced in a
way that plaintiffs fear, or that would violate their rights.
Everything depends on probabilities. Plaintiffs believe
that the probability of improper prosecution is so high
that the statutes must be enjoined root and branch. We
think that the probability of improper prosecution is low,
but non-zero; and a prosecution for performing a D & E
not only raises vagueness concerns but also could unduly
burden women’s rights (see Part II] below). That risk can
App. 29
be reduced to a constitutionally acceptable level with a
simple injunction based on Bouie.
Persons who believe that the risk of improper pros-
ecution is so high that all Prosecution under the statute
should be enjoined are poorly situated to contend that the
risk also is so low that the plaintiffs lack Standing under
Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d
675 (1983). When this case began the plaintiffs faced a
real risk and therefore had standing; and no one thinks
that defendants’ representations about their projected
course of enforcement have made the controversy moot.
If as plaintiffs believe the Constitution requires an injunc-
tion against everything Illinois and Wisconsin have
enacted, despite these assurances, then the Constitution
can’t simultaneously forbid an injunction against poten-
tial misuses of state power in the enforcement of these
laws. Article III does not limit a federal court’s choice to
enjoining nothing, or enjoining everything. The path we
choose allows the states to interpret their laws and sup-
ply more concrete rules, see Bellotti v. Baird, 428 US. 132,
146-47, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); the path the
plaintiffs (and our dissenting colleagues) preter would
foreclose now and forever all interpretation by the state
judiciary. By filing suit against a novel and ambiguous
law in federal court, litigants can’t preclude interpreta-
tion by the state judiciary. Our precautionary approach
Preserves the state judiciary’s role while protecting plain-
tiffs’ (and their patients’) legitimate interests in the
interim.
4. In the Wisconsin case our panel expressed con-
cern that even if the probability of unanticipated applica-
tion is low, the penalty is so high (life imprisonment) that
App. 30
physicians would avoid performing the D & E procedure.
162 F.3d at 469. This cannot be said of Illinois, where the
maximum penalty is three years’ imprisonment.
Although the threat of life in prison has a greater poten-
tial to induce caution than does the threat of three years
in prison, the precautionary injunction discussed above
should reduce the risk of improper or unanticipated
application to a trivial level. The right constitutional
objection to a Draconian penalty is not vagueness (a
statute’s scope is equally clear or uncertain whether the
penalty is a $10 fine or 20 years in prison) but a conten-
tion that severe criminal punishment for a medical mis-
understanding would inflict cruel and unusual
punishment. Plaintiffs themselves do not make such an
argument, however; they object to the substance of the
state laws, not to the punishment available on conviction.
The penalty is an afterthought, scarcely mentioned in
their briefs. If Wisconsin should some day impose a
lengthy prison term for a violation of § 940.16(2), then it
will be time to consider arguments based on the eighth
amendment.
5. For the last two years, a natural experiment has
been conducted in the United States. Thirty states enacted
laws forbidding most partial-birth abortions. Judges pro-
hibited the application of these laws in two-thirds of
these states; in the other third the statutes have been in
force. One way to perform a reality check on the district
court’s conclusion in the Wisconsin case that physicians
know that these statutes cover only the D & X is to see
what has happened in the states where the laws have
been permitted to take effect. Vagueness could affect
physicians in either or both of two ways. First, they might
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App. 31
send women seeking second-trimester abortions to other
states that do not regulate partial-birth abortions. The
result would be a decrease in second-trimester abortions
as a percentage of all abortions in the state. Second,
physicians might select a different procedure - princi-
pally substituting induction for a D & E - even though
the replacement was medically inferior. This would pro-
duce a change in the ratio of inductions to D & E pro-
cedures in the affected state.
Indiana supplies a nice test, because its law took
‘effect on July 1, 1997, so it is easy to compare the first six
months of 1997 to the second six. Moreover, Indiana is
surrounded by states that lack an effective prohibition on
partial-birth abortions (because of the Illinois injunction
and the sixth circuit's ruling in Women’s Medical Profes-
sional Corp.), so it was relatively easy for physicians to
send their patients elsewhere. Although the maximum
penalty in Indiana is not steep (an unjustified partial-
birth abortion there is a Class C felony, Ind.Code
§ 16-34-2-7(a), for which the punishment is four years’
imprisonment, Ind.Code § 35-50-2-6(a)), no state or fed-
eral court has construed the Statutory term, so whatever
uncertainty the raw text of the statute engenders is una-
bated.
During 1997 a total of 13,208 abortions were per-
formed in Indiana. (These data come from tables pre-
pared by Indiana’s State Epidemiologist.) During the first
six months, 74 late-second-trimester abortions were per-
formed: 72 by D & E and 2 by intra-uterine prostaglandin
injection. During the second six months (that is, after the
Partial-birth-abortion law took effect), 87 late-second-tri-
mester abortions were performed, all by D & E. Thus
App. 32
physicians did not substitute induction for D & E in order
to reduce risk to themselves. Nor did they avoid the D &
E procedure by sending women to other states. Abortion
by D & E during the first six months represented 1.03% of
all abortions performed in Indiana (72 of 6,950). Abortion
by D & E during the second six months represented
1.39% of all abortions in the state (87 of 6,258). These data
are incompatible with plaintiffs’ a priori belief that the
partial-birth-abortion statutes will discourage the perfor-
mance of the D & E procedure or cause the physician to
substitute an inferior procedure. Perhaps things have
turned out differently in other states, or perhaps physi-
cians behaved differently in 1998 or 1999. We do not
mean to preclude plaintiffs from submitting the data in
Indiana and other states to rigorous analysis. A few pro-
cedures were classified in the tables as “unknown,”
which may mask some effects - though the number of
“unknown” procedures did not change much from the
first to the second half of 1997. Our point is only that a
simple inquiry reinforces the findings of fact made in the
Wisconsin case and implies that partial-birth-abortion
statutes need not have the baleful effects that plaintiffs
foresee.
Ill
Plaintiffs in both cases contend that, even if the stat-
utes are precise enough to be enforced, they create an
undue (and therefore unconstitutional) burden on abor-
tion. The eighth circuit reached this conclusion in Carhart
and its two companion cases, but only after first holding
that the state laws effectively prohibit the D & E pro-
cedure. If we thought that the Illinois or Wisconsin laws
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App. 33
forbade D & E, then Planned Parenthood of Central Missouri
v. Danforth would require us to agree with the eighth
circuit. For reasons we have already given, however, we
believe that state courts are entitled to accept the view of
both states’ Attorneys General that their laws do not
forbid, or even affect, the D & E procedure. The question
we must address, then, is whether a statute limited to D
& X unduly burdens abortion.
One reason why this might be so is that neither
state’s law contains an exception for situations in which
the D & X procedure is necessary to protect the woman’s
health. A second argument is that any prohibition of any
medical procedure unduly burdens a woman’s right to
abortion. The first line of argument finds some support in
Casey, which held that any regulation of abortion must
make an exception for procedures that protect “the
woman's life or health”, 505 U.S. at 846, 112 S.Ct. 279]
(emphasis added), as well as our panel’s decision in the
Wisconsin case, 162 F.3d at 467-68, 470-71. But we do not
think that the plurality in Casey meant this as a universal
rule, one applicable even when the procedure in question
lacks demonstrable health benefits. The point that the
plurality made was that a statute that lacks a “health
exception” may unduly burden the woman’s right to
obtain an abortion before the fetus has reached viability;
when state law offers many safe options to that end, the
regulation of an additional option does not produce an
undue burden.
Section 513/10 of the Illinois statute contains an
exception for “a partial-birth abortion that is necessary to
save the life of a mother because her life is endangered by
a physical disorder, physical illness, or physical injury,
App. 34
including a life-endangering condition caused by or aris-
ing from the pregnancy itself, provided that no other
medical procedure would suffice for that purpose.” It
does not contain a comparable exception for a partial-
birth abortion that promotes the woman’s health. Wiscon-
sin’s law has a similar structure. Both sets of plaintiffs
contend that the lack of an exception for a woman’s
health dooms the statute. Coming from the Illinois plain-
tiffs, this is a weak argument indeed, for none of the
plaintiff physicians or clinics in Illinois uses the D & X,
and none asserts any desire to start. Whether the D & X
procedure sometimes would protect a woman’s health is
therefore immaterial to these physicians and the women
in their care. But several of the plaintiff physicians in the
Wisconsin case do employ the D & X procedure on occa-
sion, so we must consider the merits of the argument.
After a trial, the district court in the Wisconsin case
concluded that the D & X procedure is never necessary
from the perspective of the patient’s health. 44 F.Supp.2d
at 979-82. This conclusion cannot be called clearly erro-
neous; as things transpired, it was not a seriously con-
tested issue. None of the plaintiff physicians in that case
testified to the contrary. The district court summed up:
None of the physicians would state unequivo-
cally that the D & X procedure is safer than the
D & E procedure. Broekhuizen conceded that
further study of the procedures is required.
Smith admitted that he had never encountered a
situation where D & X would have been the best
procedure to use. Haskell, who invented the
procedure, admitted that the D & X procedure is
never medically necessary to save the life or
preserve the health of a woman. Giles agreed.
ee nto a ia Saeco ec eal
App. 35
Id. at 980. The judge added that, although the D & X
procedure has been used for more than a decade, no
published study compares the risks of D & X to those of
D & E. Id. at 979. Some authors believe that the D & X
procedure is more hazardous. See Sprang & Neerhof,
supra, 280 J. Am. Medical Ass’n at 746 (“Intact D & X
(partial-birth abortion) should not be performed because
it is needlessly risky, inhumane, and ethically unaccept-
able.”); Nancy G. Romer, The Medical Facts of Partial-
Birth Abortions, 3 Nexus 57 (1998).
Plaintiffs have not identified any data that undercut
the district court's finding of fact. Their principal medical
reference is the ACOG’s 1997 statement and technical
bulletin on the D & X procedure, which concluded that,
although D & X is never the only medically appropriate
option, choice still should be reserved to the physician.
Although the statement asserts that D & X sometimes
may be the best option, the ACOG did not identify any
concrete circumstance under which this would be so or
provide support for the assertion. Several of the plaintiff
physicians testified to like effect, again without specifics
or data. No published medical study fills the gap. Cf.
Kumho Tire Co. v. Carmichael, 526 U.S. i a |
S.Ct. 1167, 1177-79, 143 L.Ed.2d 238 (1999). Unelaborated
avowals do not demonstrate that a finding of fact reached
after a trial is clearly erroneous. When there is a conflict
in the testimony - and that is the description most favor-
able to the plaintiffs - the finder of fact is entitled to
choose. See Anderson v. Bessemer City, 470 U.S. 564, 105
S.Ct. 1504, 84 L.Ed.2d 518 (1985). We proceed on the
assumption, which appears to be shared by the American
Medical Association, that the D & X is not the best or
—_"
App. 36
safest option in any articulable category of situations. The
ama’s Policy H-5.982 concludes, among other things, that
“there does not appear to be any identified situation in
which intact D & X is the only appropriate procedure to
induce abortion.” The district court in Illinois did not
make contrary findings, or indeed any finding; acting
without a trial or even an evidentiary hearing, it could
not properly have rendered “findings” about disputed
issues. District courts in other circuits have disagreed
with the conclusions the district judge reached in the
Wisconsin case, but this does more to show that the issue
is debatable among reasonable persons than to show that
a particular view is in error.
The question in the end is not what one or another
judge found on a given record; it is whether the state
legislatures exceeded their constitutional powers. Factual
premises underlying legislation normally are not subject
to review by trial courts. FCC v. Beach Communications,
Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211
(1993); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,
463-65, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Vance v.
Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171
(1979); National Paint & Coatings Ass'n v. Chicago, 45 F.3d
1124, 1127 (7th Cir.1995). The district court’s findings, the
statements of medical groups, and the inferences to be
drawn from what has happened in states that have imple-
mented partial-birth-abortion statutes, are informative
rather than conclusive on the question whether the
underpinnings of the legislation are tenable. See Henry P.
Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229
(1985). Although “undue burden” analysis does not map
neatly to the standard classifications (“rational basis,”
een ERR
Ann. 37
“strict scrutiny,” and the like), making it hard to know
the extent to which courts must respect legislative deci-
sions about contestable factual matters, it is significant
that none of the Supreme Court’s decisions in abortion
cases suggests that the same law would be constitutional
in one state, and unconstitutional in another, depending
on a district judge’s resolution of factual disputes. Thus
we treat the findings in the Wisconsin case, like the view
of the ama, not as replacements for legislative conclu-
sions, but as establishing that there is real, and not just
hypothetical, support for a belief that the partial-birth-
abortion laws do not pose hazards to maternal health.
(This is the approach to evaluation of facts when the
constitutional standard prescribes an intermediate level
of analysis. See Craig v. Boren, 429 U.S. 190, 199-204, 97
S.Ct. 451, 50 L.Ed.2d 397 (1976).)
Only if every regulation related to abortions must
contain a case-by-case “health exception” is there a prob-
lem with these laws. Yet Casey did not say that health
effects must be evaluated case by case, rather than pro-
cedure by procedure. Abortions are not havens for junk
science - so that, for example, the state must let any
chiropractor perform an abortion, if the chiropractor
believes that manipulation of the spine is safest for the
woman. Cases such as Mazurek v. Armstrong, 520 U.S. 968,
117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), which held that
States may limit performance of abortions to physicians,
permit laws that regulate by class of procedures (or of
medical providers). Cf. United States v. Rutherford, 442
U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979) (FDA may
ban a generally ineffective drug, even though for a few
people it may be the only cure). Doubtless some nurses
App. 38
are better than some physicians at performing abortions,
so patients’ health would be improved by allowing these
nurses to perform abortions; yet the Court held that
states may provide otherwise. Similarly, Illinois and Wis-
consin concluded that the D & X procedure is not essen-
tial to protect the health of any woman, given the
availability of other procedures. Compilation of addi-
tional information by the medical profession could call
this conclusion into question. As things stand, however,
interference with the operation of the state laws cannot
be justified on the ground that the D & X procedure is
necessary to protect women’s health.
A requirement of a case-by-case “health exception” to
every statute concerning abortion would amount to a rule
that no state may regulate any abortion procedure. For a
physician will use a particular procedure only if in the
physician’s judgment the procedure is superior in some
way -— faster, safer, more likely to work (and thus indi-
rectly safer because an abortion can be achieved with one
procedure rather than two, with cumulative risks), or
perhaps less expensive (and thus again indirectly safer,
because the lower cost brings it within the reach of addi-
tional patients). Can plaintiffs, who object to the vague-
ness of the states’ laws, really welcome a ruling under
which every abortion creates the possibility of a prosecu-
tion in which the state invites a jury to disagree with the
physician’s assessment of the procedure’s safety? A
health exception, where jurors rather than physicians
assessed health, would be an order of magnitude worse
than the ambiguity plaintiffs perceive in the partial-birth-
abortion laws. Perhaps plaintiffs believe that a “heaith
exception” should make the physician’s assessment of
Oe a ES EP Ins & Y
App. 39
health consequences incontestable. That would avoid
vagueness at the price of vitiating the laws. Some physi-
cians are bound to think that a given procedure is safer or
otherwise superior, even if the medical profession as a
whole disagrees. A constitutionally based health excep-
tion for every procedure, coupled with a prohibition
against review of physicians’ beliefs about which pro-
cedures are safest, would amount to a rule that anything
goes. And plaintiffs make this argument explicitly: they
contend that any regulation of any medical procedure
that pertains to abortion is an “undue burden” on
women’s rights.
To the observation that D & X is not an important
procedure — indeed, that it is such a marginal procedure
that few physicians anywhere in the nation (and none in
Illinois) express any interest in performing it — plaintiffs
rejoin that the question is not whether a law creates an
undue burden for women as a group, but only whether it
does so for those women it affects. The affected set here is
women for whom a physician will think that D & X is the
Procedure most likely to succeed, or to entail the least
cost. For these women, plaintiffs contend, the burden is
substantial and therefore “undue.” Moreover, the argu- ,
ment continues, if the states are right - if D & X really is a
procedure that the medical profession abjures — then the
law must be political grandstanding. A restriction
imposed for no better reason than to make a point has no
benefits and therefore must be “undue,” the argument
concludes. On plaintiffs’ approach, if the statutes actually
accomplish something, then the burden is “undue”
because the laws have effects; and if the laws accomplish
nothing, then the burden is “undue” because any cost is
App. 40
excessive when the benefit is zero. Plaintiffs have the
states both coming and going.
But this cannot be a sound understanding of Casey, or
Mazurek would have come out the other way. By plain-
tiffs’ lights, Montana’s statute restricting the performance
of abortions to licensed physicians would have had an
“undue burden” on those women it affected — that is, the
set of women for whom the extra cost of a physician’s
fees made obtaining an abortion impractical or burden-
some. Yet the Court held that a physician-only rule is not
an “undue burden,” as the plurality in Casey used that
phrase. What plaintiffs in our case really argue is not that
limiting the D & X procedure to situations (if there are
any) in which it is necessary to save the woman’s life is
an undue burden, when compared with other burdens
(such as waiting periods, information requirements, par-
ental approval or consultation requirements, and physi-
cian-only rules) that the Court has sustained; it is, rather,
that all “burdens” are “undue” because women should
have unfettered choice among medical procedures. But
then the phrase “undue burden” is simply redundant; the
word “undue” does no work.
It is always difficult for a court of appeals to predict
how Justices of the Supreme Court will apply a phrase
with as much plasticity as “undue burden.” But our best
estimate is that “undue” rather than “burden” is the key
word, and that “undue” means not only “substantial” (a
small cost or inconvenience is not “undue”) but also that
the burden must be undue in relation to the woman’s
interests, rather than undue in relation to the court’s
assessment of society’s interests. Plaintiffs’ (implicit)
argument that every regulation of a medical procedure is
App. 41
“undue” fails because many regulations create small bur-
dens. The physician-only rule was one; a prohibition of D
& X is another. Even for the class of women who seek
late-second-trimester abortions, there is always one or
more other safe methods of abortion in addition to D & X.
Let us return to the natural experiment now under way.
Plaintiffs do not contend that in any of the states where a
partial-birth-abortion law is in effect, even one woman
has been injured or denied an abortion because of the
law.
As for the second branch of plaintiffs’ argument -
that because the partial-birth-abortion laws do not dimin-
ish the number of abortions, they must be condemned as
moralizing rather than utilitarian laws — this calls on
judges to recapitulate Lochner’s methodology. This line
of argument amounts to the contention that Casey so
restricts the states’ power that states are limited to sym-
bolic gestures; and then the states’ very attempt to com-
ply with Casey by refraining from substantially impeding
women’s access to abortion dooms their laws. We do not
read Casey as condemning states to this self-defeating
legislative menu. So long as the law does not harm
women’s legitimate interests, the fact that the law’s
effects are small and justified by moral rather than util-
itarian considerations does not spell unconstitutionality.
IV
One final issue requires attention. The district court
in Illinois read 720 ILCS § 513/15 to establish a parental-
consent requirement, which the court enjoined because it
lacks a judicial-bypass procedure. 995 F.Supp. at 861,
App. 42
relying on a portion of Casey, 505 U.S. at 899-900, 112
S.Ct. 2791, that reaffirmed Hodgson v. Minnesota, 497 U.S.
417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990). But what
§ 513/15 actually provides is different. It reads:
The maternal grandparents of the fetus or
infant, if the mother has not attained the age of
18 years at the time of the abortion, may in a
civil action obtain appropriate relief unless the
pregnancy resulted from the plaintiff’s criminal
conduct or the plaintiff consented to the abor-
tion. The relief shall include money damages for
all injuries, psychological and physical, occa-
sioned by the violation of this Act and statutory
damages equal to 3 times the cost of the partial-
birth abortion. |
Nothing here requires parental consent to a partial-
birth abortion. Section 513/10 forbids most partial-birth
abortions; no one can authorize that procedure in Illinois
unless it is necessary to protect the woman’s life, and
then no parent’s consent is necessary.
Section 513/15 provides civil damages for conduct
that violates § 513/10, and it assigns the right to pursue
these damages to parents if the person who undergoes
the procedure is a minor. A parent who gave consent to
the procedure naturally can’t recover damages, even
though a criminal prosecution remains possible under
§ 513/10 if the mother’s life was not in jeopardy. The
possibility that a parent may consent to an unlawful
procedure (and thus insulate the physician from civil
damages), or consent to a life-saving procedure for which
no consent was necessary in the first place, hardly
implies that a judge also must be empowered to authorize
a violation of § 513/10.
App. 43
Wisconsin’s civil-liability provision, Wis. Stat.
§ 895.038 (2), is entirely derivative from its criminal-
liability provision, and the district court held it valid
because the criminal Provision is valid. Plaintiffs in the
Wisconsin case do not take issue with this approach: they
argue only that § 895.038(2) is unconstitutional because
§ 940.16 is unconstitutional. We therefore do not discuss
§ 895.038(2) further.
Actually, we have said too much already about the
civil-liability provisions. They are enforced in private
litigation; the states’ Attorneys General and local prose-
cutors have nothing to do with civil suits. Relief against
the public officials therefore would be pointless even if
the civil-liability provisions were problematic. See Summit
Medical Associates, P.C. v. Pryor, 180 F.3d 1326 (11th
Cir.1999). There is no controversy between the parties to
this case that can be resolved by a declaration concerning
the civil-liability rules. But see Okpalobi v. Foster, 190 F.3d
337 (5th Cir.1999) (purporting to enjoin a private-civil
damages provision in a suit to which only state officers
were defendants, without mentioning the eleventh cir-
cuit’s conclusion in Summit Medical).
The judgments in both cases are vacated. The cases
are remanded with instructions to enter the precaution-
ary injunctions discussed in Part II.3 of this Opinion, to
dismiss the challenges to the civil-liability provisions for
want of a case or controversy, and otherwise to enter
judgment for the defendants.
VACATED AND REMANDED
App. 44
POSNER, Chief Judge, with whom ILANA DIA-
MOND ROVNER, DIANE P. WOOD, and TERENCE T.
EVANS, Circuit Judges, join, dissenting.
Compromise holds seductive allure for a court faced
with a hot issue, and there is none hotter than the issue of
abcrtion rights. The Illinois and Wisconsin statutes crimi-
nalizing “partial birth” abortion are challenged here both
as being unconstitutionally vague and as unconstitu-
tionally burdening the right of abortion. (These are inde-
pendent grounds; if either is valid, the statutes are
invalid.) The court rejects both challenges yet orders the
district courts to enjoin enforcement of the statutes
against any method of abortion other than the one the
medical community refers to as “intact D & E” (that is,
intact dilation and evacuation) or, more commonly, “D &
X” (dilation and extraction). This is the form of “partial
birth” abortion that gave rise to these statutes, although
they are not limited to it.
The court’s decision is not a real compromise. It
leaves intact the core of the statutory prohibitions, which
unlawfully burden the right of abortion by outlawing the
D & X procedure. The court does toss a bone to the
plaintiffs, but at the cost of expanding federal judicial
power over the states by a method that the Supreme
Court has never countenanced and that violates Article
Ill of the Constitution. It is a bone, incidentally, that the
plaintiffs didn’t ask for; neither side, in either case,
requested this novel form of relief or commented on it in
their briefs. We are taking a leap into the unknown with-
out any input from the parties.
pT PO AN AVE OR lal
App. 45
The “precautionary” injunctions that the court is
directing the district courts to enter will forbid the
enforcement of the statutes outside their core prohibition,
thus placing the federal contempt power behind this
court's interpretation of state statutes. The court does this
while accepting the enforcers’ assurances that they will
not enforce the statutes outside the core, and concludes,
therefore, “that the probability of improper Prosecution is
low.” The states are nevertheless to be enjoined because
the probability, though low, is greater than zero. The
probability of improper prosecution under every criminal
Statute ever written is greater than zero; and so. the
court's decision, should it be followed outside the abor-
tion context — and nothing in the decision suggests a
Principled limitation to that context -— implies a radical
expansion of the power of the federal courts to superin-
tend the enforcement of state statutes. State officials will
be subject to federal contempt sanctions for failing to
abide by a federal court's interpretation of the statutes
that these officials, not federal judges, are charged with
administering.
The court adds that while the probability of improper
enforcement now is low, given the assurances that the
State law enforcement authorities have made in their
briefs in this court and at oral argument, the probability
was high enough when these cases were brought to con-
front the plaintiffs with “a real risk” of being prosecuted
for performing constitutionally privileged abortions. But
if that is so, it means the statutes are unconstitutionally
vague. If the law enforcers’ present assurances are not
enough to moot the case, how can they be enough to
moot the central issue to which those assurances are
App. 46
addressed, the issue the court ducks of whether the stat-
utes are in fact unconstitutionally vague? And if the
present probability of improper enforcement is slight, as
the court believes, what equity do the plaintiffs have to
obtain an injunction?
The court is directing that state statutes be enjoined
that it has not found either violate federal law or create a
significant danger of such violation. This is unprece-
dented, and (on the court’s view of the facts) violates
Article III. If the court is right - I do not think it is, but it
is the premise of the decision - that there is only a “non-
zero” probability that either state statute will be enforced
against any abortion procedure other than the D & X, the
threatened injury is too slight to activate the curative
powers of federal courts. A nonzero probability could be
a probability of one in a thousand, or one in a million. A
probabilistic injury can support standing, e.g., Clinton v.
City of New York, 524 U.S. 417, __ - __, 118 S.Ct. 2091,
2100-01, 141 L.Ed.2d 393 (1998); Walters v. Edgar, 163 F.3d
430, 434 (7th Cir.1998); North Shore Gas Co. v. EPA, 930
F.2d 1239, 1242 (7th Cir.1991), but the probability must be
nontrivial, not merely nonzero. E.g., Murphy v. Hunt, 455
U.S. 478, 482-83, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per
curiam); City of Los Angeles v. Lyons, 461 U.S. 95, 105-07
and n. 8, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Walters v.
Edgar, supra, 163 F.3d at 434-35. Otherwise the federal
courts will be flooded with cases, since few statutes are
altogether free of vagueness; statutes that are too precise
allow loopholes.
Lyons, the choke-hold case, makes the basic point.
The probability that the plaintiff would again be arrested
and subjected to a choke hold was held to be too slight to
App. 47
support standing. But it was no less than the implicit
probability that this court today assigns to the threat of
Prosecution for performing abortions that the state law
enforcement authorities concede are constitutionally priv-
ileged.
Although the injunctions that the court is ordering
ostensibly are temporary, to remain in force only until the
State courts have a chance to clarify the statutes, those
courts are unlikely ever to get that chance, since the
enforcement of the statutes beyond their core prohibition,
which in the court’s view needs no clarification, will be
enjoined. Private civil suits are unaffected, but the provi-
sions for civil enforcement of these Statutes are limited
and cases are unlikely. The Illinois statute authorizes civil
suits only by the parents of a minor who has a “partial
birth” abortion, and the Wisconsin statute by either the
minor’s parent or the fetus’s father. Should a prosecutor
indict a physician for performing a D & X, and the
physician contend that it was really aD & E, the dispute
will be resolved by the district court’s interpreting its
injunction in contempt proceedings. As a Practical matter,
the courts of Illinois and Wisconsin will never have an
Opportunity to explore the outer bounds of these statutes.
The court cites no case that authorizes such injunc-
tions. It relies on cases such as City of Chicago v. Morales,
——~ US. , .. 119 SCR. 16%; 1861, 144 L.Ed.2d 67
(1999), and Village of Hoffman Estates v. The Flipside, Hoff-
man Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71
L.Ed.2d 362 (1982), which hold that if a state statute has
been interpreted by the state’s highest court, the inter-
pretation binds any federal court asked to decide the
meaning of the statute. No case holds, however, that until
App. 48
the statute is construed by the state courts, a claim that it
is unconstitutionally vague is premature. No case denies
the authority of the federal courts to interpret state stat-
utes, which is something we do all the time. No case
holds that until a state statute is construed by the state
courts its operation may be enjoined without a deter-
mination that the statute is unconstitutional. All the cases
or. which the majority relies involve federal courts either
narrowing federal statutes that are fairly susceptible of
being narrowed or accepting as authoritative a narrowing
interpretation of a state statute by a state court. In no case
cited by the majority did a federal court impose its own
narrowing interpretation on a state statute by injunction,
let alone a state statute the language of which defies a
saving interpretation.
Although grounded in a concern with preserving the
prerogative of state courts to interpret state statutes,
today’s decision curtails that prerogative by forbidding
the states to enforce state statutes that the court has not
found to be invalid. The decision is thus internally incon-
sistent (the court both rejects the charge that the statutes
are unconstitutionally vague and, by enjoining their
application outside their small clear core until they are
clarified by the state courts, holds that they are too vague
to provide fair warning —- which means they are uncon-
stitutionally vague, e.g., Bouie v. City of Columbia, 378 U.S.
347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)), as well as
being an evasion of judicial duty, a violation of Article IIL,
and an affront to federalism. The content of the injunc-
tions that the court orders entered, moreover, is not speci-
fied; disputes over it will undoubtedly give rise to further
litigation. And there will be a nice question of whether
App. 49
the plaintiffs can obtain attorneys’ fees on the ground
that they have won something, with the defendants argu-
ing that it is they who have won the case because the
court has both held the challenged statutes to be valid
and accepted the defendants’ assurances that the statutes
will not be enforced beyond their valid scope.
On the merits, the most important issue raised by the
appeals is that of undue burden. (I’ll come back later to
the substantive issue of vagueness, as distinct from the
problems raised by the court’s effort to evade the issue by
means of the “precautionary” injunctions.) To understand
this issue requires understanding the peculiar and ques-
tionable character of these statutes. They do not protect
the lives of fetuses either directly or by seeking to per-
suade a woman to reconsider her decision to seek an
abortion. For the statutes do not forbid the destruction of
any class of fetuses, but merely criminalize a method of
abortion — they thus have less to recommend them than
the antiabortion statutes invalidated in Roe v. Wade, 410
U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). If any fetal
lives are saved by these statutes, it will only be by scaring
physicians away from performing any late-term abor-
tions, an effect Particularly likely in Wisconsin, whose
statute imposes a punishment of life imprisonment for its
violation. In tacit acknowledgment of that statute’s espe-
cially questionable character, the majority opinion invites
an Eighth Amendment challenge should a lengthy prison
sentence ever be imposed on a violator of the statute.
The statutes do not seek to protect the lives or health
of pregnant women, or of anybody else, as by confining
the performance of abortions to licensed physicians, as in
Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 138
App. 50
L.Ed.2d 162 (1997) (per curiam), or to facilities equipped
to deal with emergencies that may arise in the course of
an abortion, particularly a late-term one. A legislature
can ban quacks from practicing medicine without making
an exception for those quacks (and no doubt there are
some) who are abler than the worst physicians. Any
general health regulation is likely to hurt a few people.
But as banning “partial birth” abortions is not intended to
improve the health of women (or anyone, for that matter),
it cannot be defended as a health regulation.
The statutes make no exception for cases in which
pregnancy results from rape or incest, or in which the
fetus is profoundly deformed, no:.viable, or unlikely to
live more than a few hours after birth, or indeed, as I
shall show, in which the woman’s life would be endan-
gered if she carried the fetus to term. The absence of any
such exceptions is particularly surprising because late-
term abortions are much less likely than the much more
common first-trimester abortions to be motivated by con-
siderations merely of convenience rather than of urgency.
A woman who finds herself five months pregnant is
unlikely to decide to have an abortion unless advised by
her physician either that the fetus is profoundly
deformed or that her own health requires that the preg-
nancy be terminated. Indeed, if the fetus has become
viable, she cannot lawfully obtain an abortion unless her
life or health is in danger. Wis. Stat. § 940.15(3); 720 ILCS
510/5(1). These are constitutionally permissible protec-
tions of fetai life. Planned Parenthood of Southeastern Penn-
sylvania v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992). It is incomprehensible to me why
these states, if acting in good faith, were unwilling to
App. 51
write the same health exception into statutes that crimi-
nalize the abortion of nonviable as well as viable fetuses.
The “partial birth” statutes do not distinguish between
fetuses that are viable, in the sense of being sufficiently
developed to be able to Survive outside the mother’s
body, and those that are not. Some fetuses don’t become
viable until 27 weeks or even later, but the “partial birth”
abortion, even defined so narrowly as to cover only the D
& X procedure, is performed from 20 weeks on. A physi-
clan might be convicted of a felony violation of these
Statutes even though the Supreme Court has held that a
State may not prevent the abortion of a nonviable fetus.
Id. at 846, 877, 112 S.Ct. 2791.
The statutes do not outlaw a Particularly cruel or
painful or horrifying mode of abortion. This can be
shown with the aid of a simple example. Suppose that the
fetus is hydrocephalic, so that its head is too large to pass
through the cervix. If the physician performing the abor-
tion crushes the fetus’s skull in the uterus, killing the
fetus while the fetus is still entirely within the uterus, he
is not guilty of violating either of the statutes before us.
But if before crushing the fetus’s skull the Physician turns
the fetus around so that its feet are protruding into the
vagina, he has committed a felony. In both cases, the fetus
is killed by the crushing of its head in the uterus. (The
crushing is necessary to enable the fetus to be removed
through the birth canal without making the woman go
into labor.) From the standpoint of the fetus, and, I
should think, of any rational person, it makes no differ-
ence whether, when the skull is crushed, the fetus is
entirely within the uterus or its feet are outside the
uterus. Yet the position of the feet is the only difference
App. 52
between committing a felony and performing an act that
the states concede is constitutionally privileged.
The tortured efforts of the states’ lawyers to provide
guidance to physicians engaged in performing abortions
— physicians who already are frequent subjects of picket-
ing and other harassment and occasionally of physical
assaults, see, e.g., United States v. Soderna, 82 F.3d 1370 (7th
Cir.1996), and who are now to be threatened with crimi-
nal prosecution and professional defrocking —- make one
thing clear: it is extremely difficult, indeed probably
impossible, to distinguish a “partial birth” abortion from
the methods of abortion that are conceded to be privi-
leged. (This is the key to the statutes’ vagueness, and so a
point to which I'll return.) The principal reason for the
difficulty is that, as my example of the hydrocephalic
fetus suggests, there is no meaningful difference between
the forbidden and the privileged practice. No reason of
policy or morality that would allow the one would forbid
the other. We should consider therefore why any state
would pass such a law. An important part of the answer
is found in Judge Manion’s opinion in Planned Parenthood
of Wisconsin v. Doyle, 162 F.3d 463 (7th. Cir.1998). The
states want to dramatize the ugliness of abortion. “[A]ll
methods [of abortion] are gruesome. But this is the one
method that has been at least partially exposed to the
light of day. . . . The exposure of this procedure has cast a
bright light on the alternative procedures that are equally
gruesome. . . . No doubt when this statute is properly
construed - [so] that it bans only the rarely-used D & X
procedure — it does not appear to accomplish much in the
way of saving babies. But these laws have certainly ele-
vated the public’s concern over the fate of the ‘potential
App. 53
human lives’ that are exposed to abortion.” Id. at 477, 479
(dissenting opinion). From this standpoint, the more a
“partial birth” abortion is like an abortion that is con-
ceded to be constitutionally privileged, the better.
The wave of “partial birth” abortion statutes that
broke over the nation after a description of the D & X
procedure was publicized —- see Martin Haskell, “Dilation
and Extraction for Late Second Trimester Abortion”
(1992), reprinted in 139 Cong. Rec. E1092, 1993 WL
135664 (Apr. 28, 1993), and in The Partial-Birth Abortion
Ban Act of 1995, Hearing before the S. Comm. on the
Judiciary, 104th Cong., Ist Sess. 5 (Nov. 17, 1995) — does
not exhibit the legislative process at its best, whatever
one thinks of abortion rights. Whipped up by activists
who wanted to dramatize the ugliness of abortions and
deter physicians from performing them, the public sup-
port for the laws was also based - as is implicit in Judge
Manion’s defense of the laws — on sheer ignorance of the
medical realities of late-term abortion. The uninformed
thought the D & X procedure gratuitously cruel, akin to
infanticide; they didn’t realize that the only difference
between it and the methods of late-term abortion that are
conceded all round to be constitutionally privileged is
which way the fetus’s feet are pointing. Opposition to the
bills that became these laws was at first muted not only
by ignorance of the character_of a late-term abortion but
also by the fact that few women are likely to be affected
by the laws. Circumstances conspired, as it were, to pro-
duce a set of laws that can fairly be described as irra-
tional.
This is a harsh verdict, but doubt about its soundness
is laid to rest by the absence of any exception for
App. 54
situations in which a “partial birth” abortion is necessary
to protect the pregnant woman’s health. The right of
abortion is unduly burdened by any law that endangers
the woman’s health. Even a law that limits only the right
to abort viable fetuses - a limitation not found in the
statutes challenged in this case - must, to pass constitu-
tional muster, make an exception “for pregnancies which
endanger the woman’s life or health.” Planned Parenthood
of Southeastern Pennsylvania v. Casey, supra, 505 U.S. at 846,
112 S.Ct. 2791 (emphasis added). Immediately the ques-
tion arises why the Wisconsin and Illinois legislatures
didn’t try to come within reach of the cases that permit
states to limit the right of abortion by making an excep-
tion for pregnancies that endanger the woman’s health,
the same exception they have written into their other
abortion statutes. When pressed at argument, the lawyers
for the two states could answer only that the exception is
unnecessary. The lawyers were confident that such an
abortion is never required to preserve a woman’s health.
They may be right, though I think not (more on this
below). But if so, they are right only for today. Tomorrow,
studies may show that, yes, there indeed are cases where
a “partial birth” abortion is necessary to protect the
mother’s health, as many physicians believe. Tomorrow,
then, these two statutes may be unconstitutional even by
the lights of the majority opinion. Why would a state risk
the early obsolescence of its statute by making it wholly
dependent on ever-changing medical opinion, when to
avoid this risk it need only have excepted those “partial
birth” abortions, if any, that are necessary to protect the
woman’s health? If there are few such cases, the excep-
tion will rarely be invoked; if none, never.
App. 55
The answer is that opponents of abortion do not
think there should be an exception for abortions that
endanger a woman’s health. Life, yes, but not health.
These statutes, remember, are not concerned with saving
fetuses, with protecting fetuses from a particularly cruel
death, with protecting the health of women, with protect-
ing viable fetuses, or with increasing the Wisconsin popu-
lation (as intimated, surely not seriously, by Wisconsin’s
counsel). They are concerned with making a statement in
an ongoing war for public opinion, though an incidental
effect may be to discourage some late-term abortions. The
statement is that fetal life is more valuable than women’s
health. .
I do not deny the right of legislatures to enact stat-
utes that are mainly or for that matter entirely designed
as a statement of the legislators’ values. Milner v. Apfel,
148 F.3d 812, 814 (7th Cir.1998). Nothing in the Constitu-
tion forbids legislation so designed. Many statutes are
passed or, more commonly, retained merely for their sym-
bolic or aspirational effect. But if a statute burdens consti-
tutional rights and all that can be said on its behalf is that
it is the vehicle that legislators have chosen for express-
ing their hostility to those rights, the burden is undue.
The statutes before us endanger pregnant women - and
not only pregnant women who want to have an abortion.
There is no exception for women whose physicians tell
them you must have an abortion or die. It is true that if a
“partial birth” abortion is necessary to save the woman’s
life, the statutes permit this. But if her life could be saved
by another type of abortion, even one that threatened her
health — that threatened to sterilize her or to paralyze her
- then the physician would be committing a felony if he
App. 56
performed a “partial birth” abortion. I cannot believe that
my colleagues would think the physician could be pun-
ished in such a case, and I wonder therefore why the
“precautionary” injunctions do not extend to it. The stat-
utes allow a “partial birth” abortion to be performed if
“no other medical procedure would suffice for that pur-
pose” (that is, saving the mother’s life). Wis. Stat.
§ 940.16(3); 720 ILCS 513/10. Could not “would suffice”
be interpreted to mean “would be as good as from the
standpoint of the woman’s health”? Such an interpreta-
tion, no more audacious than the interpretive leaps that
underlie the order to enter “precautionary” injunctions,
would seem compelled by the court’s own reasoning, but
goes unremarked. If the interpretation is rejected, it
would imply that a D & X would be forbidden even if the
only alternative were a hysterectomy. That can’t be right.
The court points out that it is unclear how many
women are endangered by these statutes. The forbidden
procedure is performed only (or almost only) in late-term
abortions, which fortunately are rare; and only in some
unknown fraction of them is a “partial birth” abortion the
medically preferable procedure. But government cannot
without a reason forbid a person to obtain medical treat-
ment and if challenged defend by pointing out that most
people don’t need that treatment. In the context of abor-
tion this principle is implicit in the statement in Planned
Parenthood of Southeastern Pennsylvania v. Casey, supra, 505
U.S. at 878, 112 S.Ct. 2791, that “purpose or effect”
(emphasis added) - and thus purpose alone - “to place a
substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability” condemns an
antiabortion statute. E.g., Okpalobi v. Foster, 190 F.3d at
App. 57
354; Jane L. v. Bangerter, 102 F.3d 1112, 1116-18 (10th
Cir.1996). That is no constitutional novelty; statutes that
burden other constitutional rights besides the right of
abortion have been invalidated on the basis of improper
purpose. E.g., Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct.
2573, 96 L.Ed.2d 510 (1987). The Casey opinion speaks of
placing a substantial obstacle in the path of “a woman,”
not “many women.” Imagine a married woman, preg-
nant, told by her physician that her life depends on her
obtaining an abortion. He tells her it would be better
from the standpoint of minimizing the risk to her of
medical complications from the abortion for her to have a
D & X. But, he adds, unfortunately the law prohibits the
Procedure. It does so not because the procedure kills the
fetus, not because it risks worse complications for the
woman than alternative procedures would do, not
because it is a crueler or more painful or more disgusting
method of terminating a pregnancy, but because the state
wishes to make a statement of Opposition to constitu-
tional doctrine. A legislature may be taken to intend any
consequences of its handiwork that are at once natural,
highly probable, and wholly foreseeable (and foreseen).
Here the intent is to block a woman from seeking an
abortion when her doctor advises her that the best pro-
cedure for her is criminal.
The statutes’ improper purpose is further shown by
the terminology they employ. The Wisconsin statute
defines a fetus from the moment of conception to the
moment of birth as a “child” (thus absurdly implying that
when we are born we are no longer children). The Illinois
Statute defines the fetus, also from the moment of concep-
tion, as an “infant.” If these definitions are sound, all
App. 58
abortion is infanticide, which is not the Supreme Court’s
view. A state cannot be permitted to abrogate federal
constitutional rights by definition. Line drawing is ines-
capable but the line between feticide and infanticide is
birth. Once the baby emerges from the mother’s body, no
possible concern for the mother’s life or health justifies
killing the baby. But as long as the baby remains within
the mother’s body, it poses a potential threat to her life or
health and this threat presents a compelling case (or so at
least the Supreme Court believes) for a right of abortion.
The Wisconsin statute, whose provision for life imprison-
ment already marks it as the crazier one, also allows
either of the fetus’s grandparents to sue in respect of a
“partial birth” abortion. One can imagine a father who
cares more for having a grandchild than he cares for the
health of his daughter threatening to sue in order to block
a “partial birth” abortion, while the mother (who may be
divorced from the father), valuing the situation differ-
ently, sits on the sideline, helpless to protect her daugh-
ter.
In concluding that the challenged statutes do not
pose any threat to women’s health, the court relies
heavily on tendentious fact-findings by the district judge
in the Wisconsin case. He fastened on the fact that a Dr.
Harlan Giles believes that the D & X procedure is rarely,
maybe never, necessary for the protection of the pregnant
woman’s health. The judge brushed aside the contrary
testimony of reputable physicians — more reputable, per-
haps, as we’re about to see, than Dr. Giles. Giles’s testi-
mony is essentially the only basis of the judge’s finding,
and the judge’s finding is the principal basis on which
App. 59
this court, disregarding the contrary findings in the IIli-
nois case, dismisses concerns about the absence of a
health exception. Yet apart from everything else, Judge
Shabaz’s opinion is internally contradictory. He acknowl-
edged that the D & X Procedure, being quicker and easier
to perform on fetuses that are more than 18 weeks old,
has advantages for the woman's health in reducing the
amount of bleeding, the risk of uterine perforations, and
the amount of time that she has to be under anesthesia.
Planned Parenthood v. Doyle, 44 F.Supp.2d 975, 979
(W.D.Wis.1999). Yet without retracting these findings, he
concluded that the procedure is never necessary to pro-
tect the woman’s health.
I daresay reputable physicians can be found who
believe that Surgery is never necessary in a case of pros-
tate cancer, or that all vitamins are worthless, or that no
efforts should be made to resuscitate a person over 80
years old who experiences cardiac arrest, since he is quite
likely to be “revived” to a vegetative state. Dr. Giles may
not even be wholly reputable. Another district judge
rejected his testimony in Opposition to the D & X pro-
cedure because, among other reasons, Giles was “more
focused on the political aspects of the abortion debate
than on the medical questions essential to resolution of
the issues presented in this action. And, Dr. Giles was
evasive when responding to questions directed at crucial
issues in the case. Hence the testimony of Dr. Giles was
neither credible, reliable nor helpful.” Richmond Medical
Center for Women v. Gilmore, 55 F.Supp.2d 441, 450
(E.D.Va.1999) (footnote omitted). Another district judge
criticized Giles - who appears to be a member of that
much-criticized fraternity, the professional expert witness
App. 60
— for pronouncing on an abortion statute with which he
was unfamiliar. Evans v. Kelley, 977 F.Supp. 1283, 1309-10
(E.D.Mich.1997). Another rejected his testimony that the
D & X is “a resurrection of an obstetric method discarded
in the 1960s, which was used to deliver dead fetuses, and
known as craniotomy,” and concluded that Giles’s criti-
cisms of the D & X procedure were “not persuasive.”
Women’s Medical Professional Corp. v. Voinovich, 911
F.Supp. 1051, 1070 (S.D.Ohio 1995), aff’d, 130 F.3d 187
(6th Cir.1997).
Judge Shabaz, his only support the dubious Dr. Giles,
stands alone among district judges who have made fact-
findings concerning the potential benefits of the D & X
procedure for women’s health. See Rhode Island Medical
Society v. Whitehouse, 1999 WL 683846, at *22 (D.R.I.1999)
(contrary testimony is “unbelievable”); Richmond Medical
Center for Women v. Gilmore, supra, at 451; Carhart v. Sten-
berg, 11 F.Supp.2d 1099, 1124-26 (D.Neb.1998), aff’d, 1999
WL 753919 (8th Cir. Sept.24, 1999); A Choice For Women v.
Butterworth, 54 F.Supp.2d 1148, 1153, 1156-57
(S.D.Fla.1998); Hope Clinic v. Ryan, 995 F.Supp. 847, 852
(N.D.I11.1998) (the decision reversed today without
regard for the district judge’s findings); Evans v. Kelley,
supra, 977 F.Supp. at 1296; Women’s Medical Professional
Corp. v. Voinovich, supra, 911 F.Supp. at 1070; see also
Causeway Medical Suite v. Foster, 43 FSupp.2d 604, 608,
613-14 (E.D.La.1999); Planned Parenthood of Central New
Jersey v. Verniero, 41 F.Supp.2d 478, 484-85 (D.N.J.1998). If
this court is to give weight to district judges’ assessment
of the credibility of the physicians who have testified pro
or con the D & X procedure, it ought at least to acknowl-
edge that Judge Shabaz is in a minority of one.
App. 61
In refusing to give any weight to the findings of fact
made by Judge Kocoras in the Hope case, the court seems
to have forgotten that we are reviewing his judgment too.
It is not some unrelated case that we are free to ignore on
the ground that it is based on a different record from any
before us. His findings, made in a Proceeding that
resulted in the issuance of a permanent injunction against
the Illinois statute, are entitled to as much weight as
ludge Shabaz’s, Knapp v. Northwestern University, 101 F.3d
473, 478 (7th Cir.1996); Durasys, Inc. v. Leyba, 992 F.2d
1465, 1471 (7th Cir.1993) - more, really, because they are
not infected by the internal contradiction that weakens
Judge Shabaz’s findings. If those findings justify our
upholding the Wisconsin statute, Judge Kocoras’s should
lead us to invalidate the Illinois statute.
The court denies that Judge Kocoras made findings. I
don’t understand this. It is true that he based his findings
on affidavits rather than on live testimony, but the state
did not challenge the facts contained in the affidavits,
including the facts about the medical advantages of the D
& X procedure. Findings do not lose weight by being
based on uncontested facts; admissions are not weaker
evidence than facts found after vigorous contest. And if it
were true that there were no findings in the Illinois case,
this would call for a remand; it would not entitle us to
plug Judge Shabaz’s findings into a separate litigation
with no common parties. (What kind of transplant is
that?)
Consistent deference to district court fact-findings in
this pair of cases would lead to an inconsistent result -
the upholding of one statute and the condemnation of its
sister. This demonstrates that the constitutional right of
App. 62
abortion cannot be made to depend on whether a particu-
lar district judge finds a particular physician who dis-
agrees with the consensus of medical opinion to be more
credible than the spokesmen for the consensus. The con-
sensus here is found in the statement by the American
College of Obstetricians and Gynecologists (ACOG) that
the D & X procedure “may be the best or most appropri-
ate procedure in a particular circumstance to save the life
or preserve the health of a woman, and only the doctor, in
consultation with the patient, based upon the woman’s
particular circumstances can make this decision.” As
Judge Shabaz himself acknowledged, the procedure
reduces the risk of lacerating the uterus and the cervix
with the sharp instruments used in the standard D & E.
Such lacerations cause trauma and loss of blood. The D &
X also reduces the risk that fetal tissue will remain in the
woman’s body, where it can cause infection. It reduces
the length of time that the woman is under anesthesia.
And it facilitates testing for genetic abnormalities, which
is particularly important to the woman’s decision
whether to become pregnant again. (So much for the
suggestion of Wisconsin’s lawyer that banning the D & X
will lead to more births.) Not all physicians agree with
these points; and ACOG hedged its opinion by noting
that a select panel of physicians had been unable to
identify specific circumstances in which there is no satis-
factory alternative to a D & X. But the team of Dr. Giles
and Judge Shabaz are, with all due respect, not competent
to resolve this medical controversy.
How often the circumstances sketched in the pre-
vious paragraph that led ACOG to recommend retention
of the D & X as a treatment option in late-term abortions
App. 63
will be present is not critical. It is slight consolation to be
told that while the state has forbidden the optimal treat-
ment of your medical problem, that problem happily is
rare. Although we haven’t been told of cases in states that
have enacted laws forbidding “partial birth” abortion
that were not Promptly enjoined in which the conse-
quence has been to endanger women, for all we know
~ women in those states go out of state if they are candi-
dates for a D & X. Cf. Jane L. v. Bangerter, supra, 102 F.3d at
1117. That would be the prudent course. My colleagues in
the majority perform their own Statistical analysis, out-
side the record, in an effort to refute this possibility. I
have no objection to a court's relying on extra-record
evidence to determine the health effects of “partial birth”
abortion. Those effects should indeed be treated as a
legislative fact rather than an adjudicative fact, in order
to avoid inconsistent results arising from the reactions of
different district judges, sheltered by the deferential
“clear error” standard of appellate review of fact-find-
ings, to different records — the inconsistency illustrated
by the different findings of Judges Shabaz and Kocoras in
the two cases before us. Even so, we should hesitate to
play statistician. It is incongruous for this court to brush
aside the findings of district judges in other cases while
bolstering Judge Shabaz’s inadequate findings with extra-
record evidence of its own.
The court tries to shore up Judge Shabaz’s findings
with two medical papers. One of these, however, Nancy
G. Romer, “The Medical Facts of Partial-Birth Abortion,”
3 Nexus: A Journal of Opinion 57 (1998), is not a medical
paper at all. Although the author is an M.D., she is also a
pro-life activist, and the burden of her Paper is that viable
App. 64
fetuses should be saved rather than aborted. This is a
respectable ethical stance but it has nothing to do with
the medical pros and cons of a D & X. The other paper, M.
LeRoy Sprang & Mark G. Neerhoff, “Rationale for Ban-
ning Abortions Late in Pregnancy,” 280 JAMA (Journal of
the American Medical Association) 744 (1998), appears in
a section of JAMA captioned “controversies,” and though
it does point out possible dangers to the woman from the
procedure, the authors are heavy on the ethical issues
involved in abortion. Like Dr. Romer, they come out in
opposition to late-term abortion by any method, and
opine very unscientifically that “partial birth” abortion is
“closer to infanticide than it is to abortion.” Id. at 746.
Another medical article in the same issue of JAMA con-
cludes that the D & X procedure should, as ACOG con-
cluded, be an option for the physician. See David A.
Grimes, “The Continuing Need for Late Abortions,” 280
JAMA (Journal of the American Medical Association) 747
(1998). The court does not cite that article.
No hypothesis has been proposed by either of the
states, or by the amici curiae who have submitted briefs
in support of the Wisconsin statute, as to why physicians
would perform, or the American College of Obstetricians
and Gynecologists support, a method of abortion that
benefits no patient. There has been no suggestion of any
pecuniary incentive that might cause them to engage ina
controversial procedure of this kind.
Apart from performing its own statistical analysis
and bringing to bear so-called medical papers, the court
evinces its queasiness about resting entirely on Judge
Shabaz’s findings by saying that “the question in the end
is not what ane or another judge found on a given
App. 65
record” (the question the court had spent so much time
discussing). “It is enough that there is real, and not just
hypothetical, support for a belief that the partial-birth-
abortion laws do not pose hazards for maternal health.”
This sounds suspiciously like the test for whether a stat-
ute has a rational basis, see, e.g., FCC v. Beach Communica-
tions, Inc., 508 U.S. 307, 315, 113-S.Ct. 2096, 124 L.Ed.2d
211 (1993), and so may explain the court’s one-sided
treatment of the facts (the failure to cite Dr. Grimes’s
Paper, for example). Rational basis is not the issue here.
The issue is whether the Wisconsin and Illinois “partial
birth” statutes impose an undue burden, and specifically
whether they are a threat to maternal health. That is
rightly an issue of legislative fact, meaning that its resolu-
tion is not to be cabined by facts determined in an adjudi-
cative hearing; still it must be resolved in accordance
with the weight of the evidence, including such extra-
record evidence as the consensus of the relevant expert
community, in this case the medical community. It is not
enough to note that there is some evidence in support of
one side of the issue, when there is more evidence on the
other side. In the case the court cites as illustrating the
appropriate scope of review, Craig v. Boren, 429 US. 190,
199-204, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the Supreme
Court critically reviewed statistical evidence underlying
the claimed constitutionality of the challenged statute -
and found it wanting. When one critically reviews the
testimony of Dr. Giles, and the court’s own Statistical
analysis, and the so-called medical Papers, and weighs
them against the evidence that establishes the medical
consensus, it becomes apparent that the court does not
take the standard of Craig seriously.
App. 66
Let me suggest an analogy. Suppose that a legislature
in the South in the 1950s had listened to several “reputa-
ble” cognitive psychologists testify that blacks as a group
are slow learners, and hence that they should be educated
in separate schools. No one would argue that this legisla-
tive finding, because supported by some evidence from
the relevant expert community, would have to be
accepted in deciding the constitutionality of segregated
education. The court, if it thought the issue relevant,
would have to decide whether the finding was correct
before relying on it. Similarly, the Wisconsin and Illinois
legislatures are not entitled to ban an abortion procedure
that the medical community believes may be preferable
from a medical standpoint for some women, simply
because a marginally reputable expert (Dr. Giles) thinks
that the set of women for whom the procedure is prefer-
able is actually zero. That might bear on the legislatures’
good faith (though there is contrary evidence on that too,
as I have pointed out), but it would not decide the issue
of the statutes’ effects on the right of abortion.
Enough said: banning the D & X, the core prohibition
in these statutes, imposes an undue burden on women
who seek to have an abortion, and is therefore uncon-
stitutional. Let me turn now to the alternative ground of
vagueness. Both statutes forbid the partial vaginal deliv-
ery of a living fetus, and this describes many instances of
the D & E method of abortion - which the court acknowl-
edges cannot constitutionally be banned, see also Carhart
v. Stenberg, 192 F.3d 1142 (8th Cir.1999); Little Rock Family
Planning Services, P.A. v. Jegley, 192 F.3d 794 (8th Cir.1999);
Planned Parenthood of Greater Iowa, Inc. v. Miller, __ F.3d
___ (8th Cir.1999) - as well as it does the D & X. Judge
App. 67
Shabaz himself acknowledged that “often” in the course
ofa D & E there is a fetal heartbeat after portions of the
fetus have been delivered into the vagina, 44 FSupp.2d at
977, making the D & E definitionally a “partial birth”
abortion under both statutes. The court's response, as I
noted at the outset of this dissent, is not to hold that the
statutes are unconstitutionally vague, but instead to hold
that they can’t be enforced against any procedure except
the D & X until the Wisconsin and Illinois state courts
have had a chance (the chance that is unlikely ever to
come) to “interpret” their statutes to permit the standard
D & E method even when it results, as it frequently does,
in the partial vaginal delivery of a living fetus.
Putting to one side my objections to the court's pro-
cedure, which I discussed at the outset of this dissent, I
note that the court seems to have bought into the legal-
realist view that a statute means whatever the courts say
it means, despite the Supreme Court’s admonition that a
court “may impose a limiting construction on a statute
only if it is ‘readily susceptible’ to such a construction.”
Reno v. American Civil Liberties Union, 521 U.S. 844, 884,
117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and cases cited
there. If the realists are right, and the contrary intima-
tions of cases such as Reno v. American Civil Liberties
Union can be brushed aside, I wish the court would, as I
suggested earlier, hold that these statutes can be further
narrowed by “precautionary” injunction to make an
exception for cases in which the D & X procedure is
necessary to protect the woman’s health. The interpola-
tion of such an exception would be no greater act of
judicial hubris than narrowing the statute to the D & X
when the draftsmen of the statutes decided not to use
App. 68
that term, preferring a vaguer term intended to be
broader.
The constitutional law of vagueness is obviously in
turmoil and so I shall suggest a lowest common-denomi-
nator approach with which I think few judges will dis-
agree, however much they may disagree about its
application to particular cases. If a criminal statute is so
worded that it is highly likely to condemn a constitu-
tionally privileged act, and if the constitutionally privi-
leged actor could not as a practical matter avoid being
punished for engaging in such an act by raising a defense
in a criminal proceeding, then the statute is enjoinable, in
advance of any prosecutions, as unconstitutionally vague.
For the very existence of such a statute “deter[s] constitu-
tionally protected activity.” Coe v. County of Cook, 162 F.3d
491, 496 (7th Cir.1998), and cases cited there. When vague
statutes prescribe heavy penalties for their violation,
rational people avoid any conduct that might be thought
to fall within the statute’s scope, even if in an error-free
litigation the conduct would be sure to be found constitu-
tionally protected. See, e.g., Village of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., supra, 455 U.S. at 494 n.
6, 102 S.Ct. 1186; Colautti v. Franklin, 439 U.S. 379, 99 S.Ct.
675, 58 L.Ed.2d 596 (1979); Charles v. Daley, 749 F.2d 452,
460 (7th Cir.1984).
When the demanding conditions that I have outlined
are satisfied, the statute is invalid, and the legislature has
to go back to the drawing board. The court cannot rewrite
the statute, or tell the state courts how to rewrite it, and,
in advance of any further interpretation, uphold the
rewritten statute. That procedure, the procedure followed
App. 69
by the court today, in effect nullifies the doctrine of
unconstitutional vagueness.
These statutes are either absurdly (and unlawfully)
overbroad or remarkably vague, and the court’s direction
to issue “precautionary” injunctions is a tacit acknowl-
edgement of its inability to give the statutes a plausible
narrowing interpretation; the confused concessions of the
states’ lawyers at the oral argument were no help in the
endeavor. Although the statutes are addressed to physi-
cians — it is their conduct alone that is regulated - the
language employed is not medical language. Instead of
denoting the victim of illegal abortion as a live fetus, a
fetus with a heartbeat, or a viable fetus (a fetus, remem-
ber, that can survive outside the mother’s body), the
Illinois statutes refers to “a living human fetus or infant,”
terms that the statute explains are “used interchangeably
to refer to the biological offspring of human parents,” 720
ILCS 513/5, whille the Wisconsin statute refers to “a liv-
ing child” or “partially delivered child,” with “child”
defined, as I noted earlier, as “a human being from the
time of fertilization until it is completely delivered from a
pregnant woman.” Wis. Stat. §§ 940.16(1)(a), (b). The use
of such language makes the statutes incurably ambig-
uous. Neither “biological offspring” nor “living” is
defined. At argument the Solicitor General of Illinois was
emphatic that “biological offspring” is a synonym for
“intact fetus,” that is, a fetus (however deformed) before
the physician performing the abortion begins to work on
it. But he retreated from this position when faced with the
hypothetical case of a physician who, intending to per-
form a D & X, removes a limb or other part of the fetus
App. 70
before beginning the procedure. His retraction was con-
sistent with his statement that the Illinois legislature had
tried to make the statute “as broad as possible.” More
extensive dismemberment than merely removing a limb
or two, Wisconsin’s lawyer assured us, would inevitably
kill the fetus before any part of it emerged from the
uterus. She offered no basis for this hopeful bit of medical
advice, and it is wrong. Carhart v. Stenberg, supra, at *4;
Richmond Medical Center for Women v. Gilmore, supra, at
*10. By “killing” the fetus, she evidently meant doing
something to cause its heart to stop beating, although a
fetus is living before it develops a heart. Obviously a one-
day old embryo, like the cells that compose a living
human body, is alive, not “dead.”
In a standard D & E, part or all of the fetus often will
still have a heartbeat, and so be “living,” in the sense of
the word apparently intended by the legislatures, when it
emerges from the uterus. Therefore it is “partially
vaginally delivered,” just as ina D & X. “During the D &
E procedure, the fetus may be removed from the uterus
and brought through the cervix and vagina either intact
or disarticulated. . . . [I]t may happen that part of the
intact fetus will be in the vagina and part in the uterus or
a disarticulated part of the fetus will be in the vagina
while the remainder of the fetus is in the uterus. In either
of these situations, that part of the fetus which remains in
the uterus may still have a heartbeat.” Planned Parenthood
of Central New Jersey v. Verniero, supra, 41 F.Supp.2d at 484.
If the physician then kills the fetus, he would, one would
think, be guilty of having violated these statutes, which
punish the killing of a fetus that has been partially
vaginally delivered.
App. 71
Against this interpretation, the Illinois Solicitor Gen-
eral, discarding settled principles of criminal law for the
sake of a short-term victory, declared that the statute
would not be violated unless the physician had planned
before beginning the abortion to wait until a part of the
fetus had emerged from the uterus and kill the fetus then;
the mere fact that the physician knew it was likely that a
part of the fetus would be outside the uterus at the
moment of death would not show the requisite intent. By
this logic - which the state’s Solicitor General actually
embraced at argument - if you fire a machine gun into a
lighted college dormitory at night, reckoning that you
have only a 10 percent chance of actually killing anyone,
and you do kill one or more of the residents, you are not
guilty of murder, provided you didn’t want to kill anyone
but just wanted to see whether your machine gun was in
working order. The law is otherwise. First-degree murder
in Illinois requires only that “in performing the acts
which cause the death” the defendant “knows that such
acts create a strong probability of death or great bodily
harm.” 720 ILCS 5/9-1; People v. Daniels, 301 Ill. App.3d
87, 234 Ill.Dec. 158, 702 N.E.2d 324, 330-31 (Ill. App.1998);
People v. Mitchell, 234 Ill_App.3d 912, 176 IIl.Dec. 218, 601
N.E.2d 916, 919 (Ill.App.1992); Hennon v. Cooper, 109 F.3d
330, 333-334 (7th Cir.1997). A physician who performs a
standard D & E knowing, as he must, before he begins,
that part of the fetus is quite likely to be outside the
uterus when he kills the fetus, and then kills it after a
part has emerged from the uterus, is guilty of the crime of
partially vaginally delivering a living fetus and then kill-
ing it.
App. 72
The Illinois statute itself, moreover, requires only that
the partial-birth abortion have been performed “know-
ingly.” 720 ILCS 513/10. Under the law of Illinois, a
defendant is deemed to know “the result of his conduct,
described by the statute defining the offerse, when he is
consciously aware that such result is practically certain to
be caused by his conduct.” 720 ILCS 5/4-5(b).
Wisconsin authorizes life imprisonment for perform-
ing a “partial birth” abortion. That is thestate’s heaviest
penalty, the penalty for murder. Wisconsin deems its
statute — as both the penalty and the tse of the term
“child” to denote the fetus reflect — a lav against infan-
ticide. (So does Illinois, by using the term “infant,” but it
is not serious, because the maximum punishment for
killing the “infant” is only three years.) No one would
suppose, in the example of shooting into adormitory, that
if only a one-day-old baby were killed thekiller would be
innocent of murder. If Wisconsin is seriou; in regarding a
fetus that has begun to emerge from tke uterus as “a
living child” who should be protected to the full extent of
the law against murder, it cannot rationaly interpret the
statute to permit the physician to escape punishment by
the plea that when he began the aborton he thought
there was only a 50 percent chance tha he would be
killing “a living child.” It would be like arguing that if a
nurse hit a newborn over the head witha baseball bat,
with all her might, not to kill it but merely to make it stop
crying, and the newborn died, the nurs> could defend
against a charge of first-degree murder by proving that
while she thought it quite possible that the newborn
would die, she didn’t want it to die and thought it had a
50 percent chance of surviving.
App. 73
Any doubts on this score are stilled by Wisconsin's
Statutory definition of intentional. The statute punishes
“intentionally” performing a partial birth abortion, Wis.
Stat. § 940.16(2), and the term means either acting pur-
posely to accomplish the forbidden end or being “aware
that [one’s] conduct is practically certain to cause that
result.” Wis. Stat. § 939.23(3). As glossed by the case law,
the alternative definition is satisfied by conduct carrying
a known high risk of the forbidden result even if that
result is not desired. See State v. Gould, 56 Wis.2d 808, 202
N.W.2d 903, 906 (Wis.1973); State v. McCarter, 36 Wis.2d
608, 153 N.W.2d 527, 529 (Wis.1967); State v. Webster, 196
Wis.2d 308, 538 N.W.2d 810 (Wis.App.1995). In Webster,
where the defendant was convicted of attempted first-
degree murder, it was deemed irrelevant that the jury
might have accepted his testimony “that he precisely
aimed the shotgun at Hood’s armpit, and that the gun
was loaded only with shotshells filled with bird shot.”
538 N.W.2d at 815.
So the state-of-mind requirements of the two statutes
turn out to be the same. They are, moreover, the standard
state of mind requirements for liability for serious crimes.
A criminal defendant acts intentionally, and, even more
clearly, knowingly, “when he knows that that result (here,
a ‘partial birth’ abortion] is practically certain to follow
from his conduct, whatever his desire may be as to that
result.” 1 Wayne R. LaFave & Austin W. Scott, Jr., Sub-
stantive Criminal Law § 3.5, p. 304 (1986); see, e.g., United
States v. United States Gypsum Co., 438 U.S. 422, 444-46, 98
S.Ct. 2864, 57 L.Ed.2d 854 (1978); Smith v. Farley, 59 F.3d
659, 663 (7th Cir.1995); United States v. McAnally, 666 F.2d
1116, 1119 (7th Cir.1981).
App. 74
I have discussed the state of mind requirements of
these statutes at such length in order to make clear how
little mileage the court can get from the cases that it cites,
such as Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031,
89 L.Ed. 1495 (1945), that save vague statutes by narrow
interpretations. Put aside the fact that these were federal
statutes given narrowing interpretations by federal
courts, rather than state statutes given narrowing inter-
pretations by federal courts, and that the Supreme Court
in Bellotti v. Baird, 428 U.S. 132, 146-47, 96 S.Ct. 2857, 49
L.Ed.2d 844 (1976), a decision that is still good law on this
point, held that the proper way to obtain a narrowing
interpretation of a vague state abortion statute is to abs-
tain in favor of the state courts. The point I wish to stress
is that the device used in Screws and many similar cases
to save the statute, that of interpolating a scienter
requirement, is unavailable here. And this for two rea-
sons. The first is that the Wisconsin and Illinois statutes
make clear what the state of mind requirement for guilt
under each statute is, leaving no room for interpolating
such a requirement in the guise of interpretation; and the
second is that the problem with knowing what these
statutes require of a physician is not ignorance of legal
obligation, but ignorance of the factual premises of lia-
bility. The statute challenged in Screws made it a crime to
deprive a person of a constitutional right. The Court held
that the statute could be saved by requiring that the
defendant be shown to have known that he was violating
a constitutional right. It was a realistic requirement
because the set of constitutional rights at any moment is
more or less known and it is a straightforward (though
not always easily answerable) factual question whether
App. 75
the defendant knew that his conduct infringed something
in that set. No one knows what procedures constitute
“partial birth” abortion, and specifically whether many,
perhaps most, D & E’s do, given that the fetus often has a
heartbeat after part of the fetus has emerged from the
uterus. Screws, when he beat his victim to death, knew
that he was committing the assault; the question was
whether he knew that the assault (because he was a
sheriff and his victim an arrestee) violated the Constitu-
tion. Physicians performing late-term abortions in Illinois
and Wisconsin do not know whether they are performing
“partial birth” abortions and thus committing crimes.
The incurable vagueness of these statutes might seem
to be of little moment if a physician prosecuted for infan-
ticide or feticide had a sure defense should the prosecu-
tion stray beyond the narrow path to which the court
today attempts to confine the statute. He could not avoid
prosecution but at least he would know he would be
acquitted, and if he were lucky he would be let out on
bail pending trial and maybe Planned Parenthood would
pay his legal fees. But let us be realistic, and not only
about the possibility of legal error. The physician is not
the real target of the statute; the pregnant woman is. It is
not the physician’s pregnancy that is to be terminated. He
has no incentive to undergo the agony of a criminal
prosecution merely in order to perform an abortion in a
particular way. Better for him either to abandon late-term
abortions altogether, or to be sure to give the fetus a
lethal injection in utero, and wait for it to take effect,
before performing the abortion. The in terrorem effect of
these statutes, especially the Wisconsin statute with its
maximum penalty of life imprisonment, is likely to
App. 76
induce physicians in these states to steer well clear of the
forbidden zone. What physician would be fool enough, or
hero enough, to risk a criminal prosecution in order to
explore the precise meaning and outer bounds of the
precautionary injunctions that this court has ordered the
district courts in these two cases to enter, even if the risk
is small?
And now we can see more clearly one of the fallacies
in the “precautionary” injunction gimmick. It is the exis-
tence of these statutes, because of their extraordinary
breadth and the limited incentive of a physician to test
their scope, not the risk of prosecution, which may
indeed be slight, that burdens those abortion rights that
are conceded to be constitutionally protected. A pecu-
liarity of abortion rights is that they require the assistance
of a third party, the physician, who has a lesser interest in
them than his patient. Because his interest is less, he is
more easily deterred, and this should increase our con-
cern with the deterrent effects of these vague statutes.
It remains only to make clear that in finding these
statutes pernicious and unconstitutional I do not mean to
criticize anyone who believes, whether because of reli-
gious conviction, nonsectarian moral conviction, or sim-
ply a prudential belief that upholding the sacredness of
human life whatever the circumstances is necessary to
prevent us from sliding into barbarism, that abortion is
always wrong and perhaps particularly so in late preg-
nancy, since all methods of late-term abortion are grue-
some. If a woman told by her physician that her fetus will
be a Down's baby or a Tay-Sachs baby or will be born
without arms or legs, or that her own health or even life
will be endangered if she carries the fetus to term,
een
App. 77
decides nevertheless against abortion, I would be the last
to criticize her decision. I might consider her a heroine or
a saint. But what is at stake in these cases is whether the
people who feel that way are entitled to coerce a woman
who feels differently to behave as they would in her
situation. The Constitution as interpreted by the Supreme
Court in decisions that we are not free to palter with
answers this question “no.” We should therefore affirm
the district court’s decision in Hope and reverse the dis-
trict court’s decision in Doyle.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.