The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING PERMANENT
INJUNCTION; FINDINGS OF FACT
AND CONCLUSIONS OF LAW IN
Before this court is the constitutionality of the Partial-Birth
Abortion Ban Act of 2003 ("Act"). With the Act, Congress seeks to ban an
abortion procedure it refers to as "partial-birth abortion." The Act is
very similar to a prior Nebraska statute banning so-called "partial-birth
abortions," which the United States Supreme Court held unconstitutional.
See Stenberg v. Carhart, 530 U.S. 914 (2000). Plaintiffs in this
case seek an injunction permanently enjoining enforcement of the Act.
For the reasons that follow, this court concludes that the Act is
unconstitutional, and PERMANENTLY ENJOINS enforcement of the Act.*fn1 [EDITOR'S NOTE: THIS PAGE CONTAINED TABLE OF CONTENTS] BACKGROUND
The Act at issue in this case imposes criminal and civil penalties on
"[a]ny physician who, in or affecting interstate or foreign commerce,
knowingly performs a partial-birth abortion." 18 U.S.C. § 1531 (a). A
brief summary of the various abortion procedures is set forth below to
aid in an understanding of the Act's scope and the procedure or
procedures that it prohibits.*fn2
A. Established Abortion Procedure
A full-term pregnancy lasts for approximately 40 weeks, measured from
the date of the woman's last menstrual period ("Imp").*fn3
Traditionally, pregnancy is divided into three trimesters, with the first
trimester lasting until about the 13th or 14th week of pregnancy, the
second lasting until about the 27th week, and the third lasting until
birth. See, e.g., Trial Transcript ("Jr.") Vol. 1 at 14:2-20 (Paul). A
fetus is considered viable, meaning that it has a realistic chance of
long-term survival outside the uterus, at approximately 24 weeks Imp.
Tr. Vol. 1 at 14:21-15:5 (Paul); Tr. Vol. 7 at 1119:23-1120:3 (Sprang),
Tr. Vol. 9 at 1355:18-22 (Cook, finding viability at 23 weeks).
If a woman chooses to terminate her pregnancy, a doctor will use
different medical techniques depending on the gestational age of the
fetus. Second trimester abortions, the main subject of this litigation,
generally involve one of two procedures: dilation and evacuation
("D&E," or surgical abortion) or induction (which is also known as a
medical abortion, meaning that drugs are administered to abort the
pregnancy).*fn4 Other methods that are used much more rarely are hysterotomy (the caesarean removal of the fetus from
the uterus) and hysterectomy. Tr. Vol. 1 at 44:7-47:2, 46:8-46:22
(Paul); Exh. 7 (table 16).
A D&E abortion is a surgical procedure, which is performed in two
steps: dilation of the cervix and surgical removal of the fetus. See,
e.g., Tr. Vol. 1 at 50:10-15 (Paul). About 85-95% of all second trimester
abortions performed in the United States are D&Es. Tr. Vol. 1 at
48:24-49:17 (Paul); Trial Exhibit ("Exh.") 7 (table 18) (noting that
D&Es make up 95% of all abortions taking place between 16 and 20 weeks
of pregnancy, and 85% of all abortions taking place after 20 weeks); Tr.
Vol. 5 at 804:2-3 (Westhoff).*fn5
To begin the D&E process, the woman's cervix is first dilated with
osmotic dilators used either alone or in conjunction with drugs known as
prostaglandins (or misoprostyl).*fn6 This encourages the cervix to
expand in width and shorten in length, as if in preparation for labor,
and will permit the doctor to introduce surgical instruments into the
woman's uterus. Tr. Vol. 1 at 50:25-62:6 (Paul); Tr. Vol. 1 at 167:5-10
(Sheehan); Tr. Vol. 3 at 400:18-402:22 (Doe); Tr. Vol. 4 at 509:4-511:19
(Broekhuizen); Tr. Vol. 4 at 657:13-662:25 (Creinin); Tr. Vol. 5 at
811:18-812:20 (Westhoff), Tr. Vol. 11 at 1718:4-1720:10 (Chasen). Doctors
need more dilation as gestational age increases, and generally try to
achieve a minimum of one millimeter of dilation for each week of
gestation (for example, a doctor would try to achieve 20 millimeters, or
2 centimeters, of dilation for a 20 week fetus). Tr. Vol. 2 at 182:6-14 (Sheehan); Tr. Vol. 3 at 402:3-5 (Doe); Tr. Vol. 4 at 661:22-662:1
(Creinin).*fn7 However, the amount of cervical dilation that can be
achieved is individual to each woman and cannot necessarily be
controlled. Tr. Vol. 1 at 55:8-14 (Paul); Tr. Vol. 2 at 14-15 (Sheehan);
Tr. Vol. 3 at 402:10-18 (Doe); Tr. Vol. 8 at 1283:3-8 (Shadigian); Tr.
Vol. 4 at 661:19-21 (Creinin). For instance, women who have previously
undergone childbirth often will achieve greater dilation in a shorter
period of time than women who have not. Tr. Vol. 1 at 62:2-5 (Paul); Tr.
Vol. 2 at 182:20-183:1 (Sheehan); Tr. Vol. 4 at 662:2-9 (Creinin); Tr.
Vol. 5 at 812:12-13 (Westhoff); Tr. Vol. 11 at 1723:17-1724:6 (Chasen).
Dilation can take place over a period of time ranging from 90 minutes
up to one or two days, depending on the practice of the physician. The
process can be accelerated if drugs to induce dilation are administered
along with the placement of laminaria in the cervix. Tr. Vol. 1 at
55:4-7, 59:9-11 (Paul, using a half to one-day dilation procedure); Tr.
Vol. 1 at 180:21-183:10 (Sheehan, using a two-day dilation procedure);
Tr. Vol. 3 at 401:7-402:22 (Doe, using a one-day dilation procedure);
Tr. Vol. 4 at 659:23-24 (Creinin, using a one-day dilation procedure);
Tr. Vol. 5 at 812:6-812:20 (Westhoff, using a two day-dilation
procedure); Tr. Vol. 11 at 1719:10-25 (Chasen, using a two-day dilation
procedure). If the doctor opts to perform dilation over an extended period
of time, the procedure often takes place in an outpatient setting, so the
woman can participate in her usual daily activities and spend the night
at home. See, e.g., Tr. Vol 1 at 45:15-19, 60:1-6 (Paul); Tr. Vol. 2 at
181:11-14 (Sheehan); Tr. Vol. 3 at 402:21-22 (Doe); Tr. Vol. 4 at
The woman then returns to the clinic or hospital the next day, and, if
sufficient dilation has been achieved, she is then placed under some form
of sedation, and the cervix is prepared for surgery.*fn8 The doctor will
then place forceps in the uterus, and, usually under ultrasound guidance, grasp the fetus with the forceps and then remove the
fetus by pulling it through the cervix and vagina. This process usually
causes the fetus to disarticulate. It usually takes about 10-15 "passes"
through the uterus to remove the entire fetus. When the entire fetus has
been removed, the doctor then uses a suction tube, or cannula, to remove
the placenta from the uterus and to ensure that no fetal parts have been
left behind. Tr. Vol. 1 at 62:7-68:21, 69:9-21 (Paul); Tr. Vol. 2 at
183:15-186:13 (Sheehan); Tr. Vol. 3 at 402:23-404:12 (Doe); Tr. Vol. 4 at
514:20-526:17 (Broekhuizen); Tr. Vol. 4 at 663:1-668:4 (Creinin); Tr.
Vol. 5 at 812:21-818:7 (Westhoff). All the testifying experts who perform
this procedure use ultrasound to provide visual guidance for second
trimester abortions. Tr. Vol. 1 at 67:6-7 (Paul); Tr. Vol. 1 at 168:6-13
(Sheehan); Tr. Vol. 3 at 403:16-19 (Doe); Tr. Vol. 4 at 515:15-24
(Broekhuizen); Tr. Vol. 4 at 668:13-17 (Creinin); Tr. Vol. 11 at
This process takes between 10-15 minutes on average, and can take place
either in an outpatient setting or in a hospital. Tr. Vol. 1 at 62:8-9,
73:2-4 (Paul); Tr. Vol. 2 at 186:12-13 (Sheehan); Tr. Vol. 3 at
407:24-408:1 (Doe); Tr. Vol. 4 at 524:11-14 (Broekhuizen, averaging 10-15
minutes, but noting range of 5 to 40 minutes); Tr. Vol. 5 at 741:5-742:2
(Creinin, averaging 10-15 minutes, but noting range of up to 40
Some doctors, but not all, also give an injection of either digoxin or
potassium chloride ("KCI") either directly into the fetus' heart or in the
amniotic fluid surrounding the fetus to effect fetal demise before the
procedure is commenced. Compare Tr. Vol. 2 at 16-196:6 (Sheehan, who
routinely offers digoxin); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen)
with Tr. Vol. 2 at 328:24-329:18 (Drey, who only offers digoxin when
specifically requested to do so), Tr. Vol. 3 408:7-13, 416:14-419:19
(Doe, who does not routinely effect fetal demise before procedure); Tr.
Vol. 5 at 819:20-820:5 (Westhoff); Tr. Vol. 11 at 1780:20-1782:21
The second-most common method of second trimester abortion is
induction. About 5% of all second trimester abortions from 14-20 weeks
are by induction; after 20 weeks, that percentage increases to 15%. Tr. Vol. 1 at 48:24-49:17 (Paul); Exh.
7 (table 18).
Since the uterus in the second trimester of pregnancy is not inclined
to expel the fetus, contractions must instead be artificially induced
through the use of chemical agents. In an induction, the woman is given
medication to induce labor to expel the fetus. Inductions were previously
triggered by saline injections into the uterus, but the most current
medical techniques now call for the administration of misoprostyl or
oxytocin to induce contractions and labor. Tr. Vol. 3 at 409:4-409:21
(Doe); Tr. Vol. 4 at 527:6-529:20 (Broekhuizen, noting that "We are kind
of overriding nature because . . . there are usually signals at this time
that suppress uterine activity"); Tr. Vol. 5 at 15:20 (Creinin, "We have
to give very high doses of medicines, much higher than you would give at
term, just because we are trying to override the fact that the uterus
doesn't want to do this process. So you have to make the uterus contract
so strongly that it can break a part"); Tr. Vol. 11 at 1777:12-1778:9
(Chasen); see also Tr. Vol. 6 at 948:3-9, 950:5-15 (Bowes). But see Tr.
Vol. 7 at 1093:1-7 (Sprang, testifying induction is more natural); Tr.
Vol. 9 at 1391:21-1392:19 (Cook).
An induction abortion takes anywhere from 6 to 48 hours to complete,
and in ten percent of inductions, the woman must also undergo a D&E to
remove unexpelled matter from the uterus (usually the placenta). Tr.
Vol. 3 at 409:18-410:9, 414:3-7 (Doe, stating that most inductions occur
within 24 hours and noting complications); Tr. Vol. 4 at 527:6-532:13
(Broekhuizen, giving range of time as 8 to 72 hours, and discussing
possible complications requiring subsequent D&E); Tr. Vol. 5 at 715:8-24
(Creinin); Tr. Vol. 8 at 1268:18-21, 1287:19-1289:5 (Shadigian) (stating
that most inductions take place between 4 and 24 hours but can take up to
2 and a half days). Because an induction requires around-the-clock
monitoring for at least 24 hours, these abortions can take place only in
a hospital setting. Tr. Vol. 1 at 45:20-46:7 (Paul); Tr. Vol. 4 at
An induction is more likely to result in the delivery of an intact
fetus, so when a fetal autopsy might be needed, doctors will recommend
this procedure. Tr. Vol. 3 at 408:14-409:3 (Doe); Tr. Vol. 9 at
1399:11-1400:4 (Cook). However, if the induction takes too long to
complete, the fetal tissue breaks down and becomes unuseable for medical
study. Tr. Vol. 11 at 1758:7-19(Chasen).
3. Hysterotomy and Hysterectomy
Two other methods of second trimester abortion are also available, but
are very rarely used. A hysterotomy, like a caesarean delivery, involves
the surgical removal of the fetus through an incision in the uterus, and
a hysterectomy involves the removal of the woman's entire uterus. Tr.
Vol. 1 at 46:8-47:2 (Paul); Exh. 7 (table 18, indicating these procedures
make up .01% of all abortions and .07% of all second trimester
Both of these procedures are considered major surgery and are not
recommended except in the case of extreme emergency. See also, e.g., Tr.
Vol. 1 at 82:9-12 (Paul, noting that hysterotomy and hysterectomy are not
really options because of their high rate of mortality and morbidity);
Tr. Vol. 11 at 1767:6-1768:4 (Chasen, stating that hysterotomy and
hysterectomy should only be used when fetus must be delivered immediately
to save the life or health of the woman); Tr. Vol. 6 at 972:6-8 (Bowes).
B. Contested Abortion Procedure
The government argues that none of these previously-described
procedures (1st trimester abortion procedures, D&E, induction,
hysterotomy, or hysterectomy) are banned by the Act. Rather, the Act
prohibits a specific second trimester abortion technique, which the Act
refers to as "partial-birth abortion."
The Act defines "partial-birth abortion" as:
an abortion in which a physician deliberately and
intentionally vaginally delivers a living, unborn
child until either the entire baby's head is outside
the body of the mother, or any part of the baby's
trunk past the navel is outside the body of the mother
and only the head remains inside the womb, for the
purpose of performing an overt act (usually the
puncturing of the back of the child's skull and
removing the baby's brains) that the person knows will
kill the partially delivered infant, performs this
act, and then completes delivery of the dead infant.
Act § 2(1); See also 18 U.S.C. § 1531(b) (statutory definition). The term
"partial-birth abortion," however, is neither recognized in the medical
literature nor used by physicians who routinely perform second trimester
abortions. See, e.g., Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at
420:23-421:2 (Doe); but see Tr. Vol. 6 at 901:5-19 (Bowes); Tr. Vol. 8 at 1219:23-1220:8 (Shadigian); Tr. Vol. 9 at 1386:7-1387:7 (Cook) (arguing
"partial-birth abortion" is a medically recognized term). The language of
the Act obviously omits any reference to D&X, D&E, or "intact"
The debate over this procedure appears to have been initiated by a
presentation given by Dr. Marvin Haskell in 1992 before the National
Abortion Federation ("NAF"). See Partial-Birth Abortion Ban Act of 2002:
Hearing on H.R. 4965 before the Subcomm. on the Constitution of the House
Comm. on the Judiciary, 107th Cong. 2nd Sess at 127-34 (2002) ("Record
Exh. C") (copy of article).*fn9 In that presentation, Dr. Haskell
outlined a variant on D&E abortions in which the fetus was removed
either intact or nearly intact rather than through disarticulation.*fn10
To distinguish this variant from the standard D&E by disarticulation,
Dr. Haskell coined the term "D&X," or "dilation and extraction."
Id. at 127.
Dr. Haskell described a procedure in which 1) the woman's cervix is
dilated through the use of up to 20-30 osmotic dilators over a two-day
period; 2) the physician inserts forceps into the woman's uterus and, if
the fetus is not presented in a breech position (feet first), the
physician performs an "internal podalic version" of the fetus and inverts
the fetus so that it is presenting in a breech position; 3) the fetus is
extracted intact through the cervix and vagina until its head, or
calvarium, is lodged at the cervical opening, or os; and 4) the physician
inserts scissors and a suction cannula into the fetus' skull and drains
brain tissue from the calvarium, which causes the calvarium to collapse
to the point at which it can be extracted from the uterus. Record Exh. C
at 129-131; see also, e.g., Tr. Vol. 8 at 1219:12-1220:4 (Shadigian),
Tr. Vol. 9 at 1386:7-1387:7 (Cook).
In response to the subsequent debate over this procedure, the American
College of Obstetricians and Gynecologists ("ACOG") subsequently coined
the term "intact D&X," which was defined as: 1) deliberate dilation of the cervix, usually over
a sequence of days, 2) internal podalic version of the fetus to a breech
position; 3) breech extraction of the fetus up to the calvarium, and 4)
the extraction of the fetal cranial contents to permit vaginal delivery
of a dead, intact fetus. Cain Depo. 164:8-166:17; Exh. 3; see also,
e.g., Tr. Vol. 5 at 735:8-736:2 (Creinin).
At trial, plaintiffs presented the testimony of a number of physicians
who perform D&E abortions by procedures which they believe might violate
the Act. Several physicians report that occasionally while performing a
D&E, they encounter a situation where they believe it will be possible
to remove the fetus either intact or largely intact. This occurs when the
woman's cervix is dilated to such a degree that the fetus can be
extracted up to the head, in either one or two "passes" with the
forceps. The potential for a largely intact removal cannot be ascertained
until the surgical procedure has already begun, and depends primarily on
how the cervix presents at the commencement of the procedure. Tr. Vol. 1
at 67:24-68:1, 71:17-24 (Paul); Tr. Vol. 2 at 205:16-24, 206:5-13
(Sheehan); Tr. Vol. 3 at 406:24-407:*fn11 (Doe); Tr. Vol. 5 at
784:-786:23 (Creinin); Tr. Vol. 5 at 815:3-816:22, 818:18-21(Westhoff).
The number of times this occurs varied per doctor, but ranged from
between 5% to 33% of all D&Es performed, with most doctors reporting
occurrences of around 5-15% of the time.11 Tr. Vol. 1 at 71:8-19 (Paul,
estimating 5-10%); Tr. Vol. 2 at 188:13-12 (Sheehan, reporting
approximately 20% the week before); Tr. Vol. 3 at 406:10-16 (Doe,
Notably, since Dr. Haskell's paper and presentation, the process has
evolved. While some physicians perform abortions in this circumstance
using the four steps outlined by AGOG or Dr. Haskell, many others do not.
Some physicians insert up to 25 osmotic dilators over a two day period
(known as "serial dilation") to increase the likelihood of an intact D&E, while
others simply proceed as they do for a standard D&E by disarticulation.
Some physicians perform podalic version, while others do not. Some
physicians puncture the calvarium and suction out the cranial contents,
others disarticulate the calvarium and crush it with forceps before
extraction, while yet others use forceps to collapse the calvarium while
it is still attached. See, e.g., Jr. Vol. 1 69:22-70:6, 78:25-79:7
(Paul, who collapses the attached skull with forceps or disarticulates at
the neck); Tr. Vol. 2 at 184:15-17, 193:22-24 (Sheehan, who does same,
and does not perform podalic version); Tr. Vol. 3 at 405:19-406:9 (Doe,
who disarticulates calvarium and crushes with forceps, and sometimes
performs podalic version); Tr. Vol. 4 at 516:8-24, 523:1-524:10,
589:23-590:1, 615:7-13 (Broekhuizen, who sometimes practices serial
dilation, sometimes performs podalic version when grasping for fetal
part, and punctures calvarium); Tr. Vol. 4 at 668:18-669:19, 680:11-681:1
(Creinin, who performs podalic version and punctures or disarticulates
calvarium); Tr. Vol. 5 at 801:22-802:3 (Westhoff, who punctures
calvarium); Tr. Vol. 11 at 1718:4-1725:10 (Chasen, who uses up to 25
dilators, performs podalic version, and punctures calvarium).
Furthermore, although Dr. Haskell inserted scissors or trocars by
touch, all of the physicians who testified stated that they could see the
insertion point, either directly or through ultrasound, before any
insertions were made. Tr. Vol. 1 at 67:6-7 (Paul); Tr. Vol. 1 at 168:6-13
(Sheehan); Tr. Vol. 3 at 403:16-19 (Doe); Tr. Vol. 4 at 632:2-8,
638:18-640:7 (Broekhuizen); Tr. Vol. 4 at 682:14-19 (Creinin); Tr. Vol. 5
at 801:25-802:5, 818:8-11 (Westhoff); Tr. Vol. 11 at 1722:10-13 (Chasen).
Most significantly, all of the testifying physicians who have performed
intact extractions refer to this procedure as a variant of D&E, and not
as an entirely separate procedure. See, e.g., Tr. Vol 1 at 44:14-45:14
(Paul); Tr. Vol. 2 at 188:20-189:2, 205:16-13 (Sheehan); Tr. Vol. 3 at
406:17-23 (Doe); Tr. Vol. 11 at 1721:16-23, 1723:4-1724:21 (Chasen). The
only physicians who referred to it as a separate procedure were witnesses
who had never performed the procedure. Tr. Vol. 6 at 959:10-960:3
(Bowes); Tr. Vol. 7 at 1034:8-1035:21, 1094:5-8 (Sprang); Tr. Vol. 8 at
1214:3-1215:3, 1232:14-1233:7 (Shadigian); Tr. Vol. 9 at 1374:4-9, 1380:7-18, 1389:8-13 (Cook). Accordingly, the court will
refer to the procedure throughout this order as "intact D&E."
As noted, this case involves an issue similar to that confronted by the
Supreme Court in Stenberg. In 1997, Dr. Leroy Carhart, a medical
doctor who provides late-term abortions, sought a preliminary injunction
enjoining Nebraska's "partial-birth abortion" law. Carhart argued that
the state's ban subjected women seeking abortions to a significantly
greater risk of injury or death than would be the case if he were
permitted to perform the banned procedure. The United States District
Court for the District of Nebraska granted Carhart's request for a
permanent injunction, and the Eighth Circuit affirmed.
The United States Supreme Court subsequently granted certiorari in
2000. Stenberg, 530 U.S. at 914. Before evaluating the Nebraska statute,
the Court reiterated the standards for evaluating abortion regulations
and restrictions set forth by the Court previously in Roe v. Wade,
410 U.S. 113
(1973), and Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833(1992), as follows:
(1) Prior to viability, a woman has a constitutional
right to choose to terminate her pregnancy. Id. at
921. And, while the state has interests in
protecting the health of the mother and the
potentiality of human life, see id., "[t]he
State's interest in regulating abortion
previability is considerably weaker than
postviability." Id. at 930. Prior to viability, a
law that places an "undue burden" on a woman's
decision to terminate her pregnancy is
unconstitutional. Id. at 921.
(2) Subsequent to viability, the state may regulate
and even proscribe abortion "except where it is
necessary, in appropriate medical judgment, for
the preservation of the life or health of the
mother." Id. (citations omitted).
The Stenberg Court subsequently held that the Nebraska statute violated
the Fourteenth Amendment on two different bases. First, it concluded that
the Nebraska statute was unconstitutional because it lacked any exception
for the preservation of the health of the mother. See id. at 930-32.
Second, it concluded that the state law placed an undue burden on a woman
seeking a previability abortion. See id. at 945. III. PROCEDURAL HISTORY
Approximately three years after the Supreme Court decided Stenberg, the
108th Congress passed the final version of the Act, which President
George W. Bush signed into law on November 5, 2003. Plaintiffs filed the
instant lawsuit, claiming that the Act violates their Fifth Amendment due
process rights. At or around the same time that plaintiffs filed their
lawsuit with this court, plaintiffs National Abortion Federation, et
al., and Dr. Leroy Carhart, plaintiff in the Stenberg case, and other
physicians, filed similar lawsuits challenging the Act in the United
States District Courts for the Southern District of New York ("New York
court") and the District of Nebraska ("Nebraska court"), respectively.
See National Abortion Federation v. Ashcroft, No. 03-8695 RCC
(S.D.N.Y.); Carhart v. Ashcroft, No. 4:03CV3385 (D. Neb.).
On November 6, 2003, one day after the President signed the Act into
law, this court issued an injunction temporarily enjoining enforcement of
the Act. The New York and Nebraska courts also temporarily enjoined
enforcement of the Act.
At the request of the Attorney General ("the government"), the hearing
on the plaintiffs' motion for a preliminary injunction was merged with
the trial on the merits, and with the government's consent, the matter
was continued for approximately 120 days during which the parties engaged
in expedited discovery and trial preparation. On March 19, 2004, the
court extended the temporary restraining order to a reasonable time after
trial on the merits, for preparation of the instant findings of fact and
conclusions of law. Subsequently, on March 29, 2004, the bench trial in
this case commenced, lasting approximately three weeks.
In addition to the sizeable Congressional Record submitted by both
parties, this court heard testimony from a total of thirteen expert
witnesses, and reviewed the deposition testimony of an additional six
Plaintiffs contend that the Act is unconstitutional, for the following
(1) the Act places an undue burden on a woman's
right to choose;
(2) the Act is impermissibly vague because it
fails to clearly define the prohibited medical
procedures, thereby depriving physicians of fair
notice and encouraging arbitrary enforcement;
(3) the Act's failure to provide an exception for the
health of the mother violates a woman's Fifth
Amendment due process rights as set forth by the
Supreme Court in Casey and Stenberg; and
(4) the Act violates a woman's due process right
to bodily integrity.*fn12
I. STANDARD OF REVIEW
The 108th Congress made numerous findings in support of the Act. The
government argues that this court must afford those findings substantial
deference, while the plaintiffs, on the other hand, contend that this
court need not accord the findings any deference. However, the
congressional findings, the deference afforded them, and their interplay
with the trial evidence in this case, are relevant primarily with respect
to the issue regarding the necessity of a health exception, and are
therefore discussed in the context of this court's findings and
conclusions in that section below.
The other issues involving the construction and validity of the Act:
whether the Act places an undue burden on a woman's right to choose, and
the alleged vagueness of the Act, are issues of law, which this court
reviews de novo. See, e.g., Taylor v. Delatoore, 281 F.3d 844, 847 (9th
Cir. 2002); Free Speech Coalition v. Reno, 198 F.3d 1083, 1090 (9th Cir.
1999) (construction and constitutionality of statute are issues of law
reviewed de novo). Accordingly, both plaintiffs and the government agree
that this court "is tasked with independently determining . . . the
[constitutional] validity of the [A]ct." See Government's January 30,
2004 reply brief at 10; see also March 1, 2004 amicus brief at 8 ("this
Court must make an independent legal judgment regarding whether the
applicable law unduly burdens [a woman's right to terminate her
The court, therefore, discusses first the issues of undue burden and
vagueness, setting forth its findings and conclusions on the issues, and
subsequently, turns to the necessity of a health exception. In the section regarding the health exception,
the court sets forth its findings of fact based on the trial evidence,
and then discusses the legislative history of the Act and the record
before Congress supporting the congressional findings. The court then
provides its conclusion regarding the deference to be afforded the
congressional findings, and its conclusions of law, based on the
congressional findings and the evidence before this court, regarding the
necessity of a health exception.
In Stenberg, one of the two bases for the Supreme Court's holding that
the Nebraska statute was unconstitutional was that the statute
"`impose[d] an undue burden on a woman's ability to choose a D&E
abortion, thereby unduly burdening the right to choose abortion itself."
Stenberg, 530 U.S. at 930 (citing Casey, 505 U.S. at 874).
The Court noted that an undue burden is created by a law that "has the
purpose or effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus." Id. at 921. It subsequently
held that Nebraska's partial-birth abortion ban posed an unconstitutional
undue burden on a woman's decision because the language of the statute
was broad enough that it could be interpreted to include a ban on
previability D&Es, the most common second trimester abortion procedure,
thereby unconstitutionally placing an obstacle in the path of a woman
seeking a previability second trimester abortion. Id. at 945.
Plaintiffs claim that, similar to the Nebraska statute in Stenberg, the
Act here poses an undue burden on a woman's decision to have an abortion
prior to viability. Plaintiffs contend that the Act likewise bans other
safe second trimester procedures, including D&E and induction
abortions. They argue that the definition of "partial-birth abortion" in
the Act is so broad that any abortion performed by the two safest, most
common abortion procedures used in the second trimester of pregnancy,
prior to fetal viability D&E and induction could proceed so as to
violate the Act. Accordingly, plaintiffs assert that the Act is
unconstitutional as a matter of law. Moreover, plaintiffs contend that regardless of any interpretation that
the government may advance regarding the procedures banned by the Act,
the court must follow the language of the definition of "partial-birth
abortion" in the Act. Stenberg, 530 U.S. at 942 (rejecting Nebraska
Attorney General's suggestion that the term "partial-birth abortion" is
"ordinarily associated with the [intact D&E] procedure" because "[w]hen
a statute includes an explicit definition, we must follow that definition
even if it varies from that term's ordinary meaning"); see also Reno v.
ACLU, 521 U.S. 844, 884 n.49 (1997) (federal courts lack the authority to
rewrite a statute to conform it to constitutional requirements).
The government, on the other hand, devoted very little attention to the
undue burden issue at trial and in its pre-trial and post-trial
submissions to the court. That was in spite of this court's conclusion in
its order temporarily enjoining the Act that "the scope of the Act may
impermissibly encompass [all] D&E procedures and thus impose an undue
burden on a woman's right to choose." See November 7, 2003 Order.
Instead, as it did in its papers in opposition to the temporary
restraining order, the government continues to mistakenly conflate
plaintiffs' undue burden challenge with the issue of vagueness. The
government's position is simply that Congress intended to ban only intact
D&Es, and that the Act is not vague and should be interpreted to apply
only to intact D&E abortions not to D&Es by disarticulation,
inductions, or other abortion procedures. Therefore, according to the
government, there can be no undue burden.
The government's approach, however, ignores the fact that the two
issues, while somewhat related, are nevertheless distinct. The Act may be
unduly burdensome under Casey, yet not unconstitutionally vague.
For example, this court could find that the Act was sufficiently specific
regarding the description of the conduct that violates the Act; however,
at the same time, the court could conclude that the prohibited conduct
may be interpreted to encompass other safe second trimester abortion
procedures besides intact D&E. Accordingly, the court rejects the
government's framework for analyzing the undue burden issue. C. Legal Background
The government misconstrues the test regarding undue burden, narrowing
the inquiry to whether the regulation poses a "significant threat to the
. . . health of a woman." However, as the Supreme Court noted in
Stenberg, "[a]n `undue burden is . . . shorthand for the conclusion that
a state regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable
fetus.'" 530 U.S. at 921 (quoting Casey, 505 U.S. at 877).
The Nebraska statute at issue in Stenberg proscribed:
deliberately and intentionally delivering into the
vagina a living unborn child, or a substantial portion
thereof, for the purpose of performing a procedure
that the person performing such procedure knows will
kill the unborn child.
530 U.S. at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999)).
The state of Nebraska agreed that the statute would impose an undue
burden if it applied to the more commonly used D&E procedure as well as
to the intact D&E procedure. Id. at 938. However, the state argued that
the statute's aim was to ban intact D&E and that the statute
differentiated between D&E and intact D&E.
The Supreme Court, however, rejected the state's arguments. The Court
held that regardless of the statute's "aim," "its language makes clear
that [in addition to intact D&E], it also covers a much broader category
of procedures." Id. at 939. It noted that "[t]he language [of the
statute] does not track the medical differences between D&E and [intact
D&E] though it would have been a simple matter . . . to provide an
exception for the performance of D&E and other abortion procedures."
Moreover, that the state of Nebraska "generally intended to bar intact
D&E" could be correct, but according to the Supreme Court was
"irrelevant." Id. at 939. Instead, the relevant inquiry was "whether the
law was intended to apply only to [intact D&E]." Id. The Court noted
that "even were we to grant the [Nebraska] Attorney General's views
[regarding the aim of the statute] substantial weight, [the Court] would
still have to reject his interpretation [because] it conflicts with the
statutory language." Id. at 942.
In holding that the statute constituted an undue burden, the Court
further concluded that: [U]sing this law some . . . prosecutors . . . may
choose to pursue physicians who use D&E procedures,
the most commonly used method for performing
previability second trimester abortions. All those who
perform abortion procedures using that method must
fear prosecution, conviction, and imprisonment. The
result is an undue burden upon a woman's right to make
an abortion decision.
D. Stenberg: Comparison of Act's Language to Nebraska Statute
In contrast to the Nebraska statute in Stenberg, the Act here forbids:
deliberately and intentionally vaginally deliver[ing]
a living fetus until, in the case of a head-first
presentation, the entire fetal head is outside the
body of the mother, or, in the case of breech
presentation, any part of the fetal trunk past the
navel is outside the body of the mother, for the
purpose of performing an overt act that the person
knows will kill the partially delivered living fetus.
18 U.S.C. § 1531(b)(1)(A).
The government correctly notes that the language of the Act differs
from the statute in Stenberg in three respects: 1) the Act requires
delivery of the fetus outside of the mother; 2) the Act specifies the
required protruding fetal parts; and 3) the Act proscribes an overt act
distinct from the completion of the delivery itself.
i. Location of Delivered Fetus
While the Nebraska statute applied where the living fetus or a
substantial portion thereof was delivered "into the vagina," the Act here
specifies vaginal delivery "outside the body of the mother." Neb. Rev.
Stat. § 28-326(9); 18 U.S.C. § 1531(b)(1)(A). The government contends
that the constitutional infirmities of the Nebraska statute are avoided
because D&Es by disarticulation, as compared to intact D&Es, are
generally internal dismemberment procedures, and, as the Act here does
not apply to procedures performed internally, it does not encompass D&Es
In Stenberg, the Nebraska statute required the delivery into the vagina
of "a living unborn child or substantial portion thereof." Neb. Rev.
Stat. § 28-326(9). The Supreme Court took issue with this language,
noting that it could
not understand how one could distinguish, using this
language, between D&E (where a foot or arm is drawn
through the cervix) and [intact D&E] (where the body up to the head is drawn through the cervix).
Evidence before the trial court makes clear that D&E
will often involve a physiqian pulling a "substantial
portion" of a living fetus, say, an arm or leg, into
the vagina prior to the death of the fetus.
Stenberg, 530 U.S. at 938-39.
The Act, on the other hand, specifies vaginal delivery of "a living
fetus until, in the case of a head-first presentation, the entire fetal
head is outside the body of the mother or in the case of a breech
presentation, any part of the fetal trunk past the navel is outside the
body of the mother." 18 U.S.C. § 1531(b)(1)(A). The government likewise
argues that inclusion of this language avoids the constitutional
infirmities in Stenberg because the Act provides "a specific anatomic
The language of the Act regarding completion of the abortion also
varies somewhat from the Nebraska statute in Stenberg. In addition to
defining the prohibited procedure, the Act provides that the physician
"perform the overt act, other than completion of delivery, that kills
the partially delivered living fetus." 18 U.S.C. § 1531(b)(1)(B). In
comparison, the Nebraska statute defined the prohibited abortion
procedure, and with respect to completion of the abortion, provided that
the procedure "does kill the unborn child." Neb. Rev. Stat. § 28-326(9).
The government argues that this further distinguishes the Act from the
statute in Stenberg. It argues that the language distinguishes intact
D&Es from other procedures because the specific act to kill the fetus
must happen at a particular point and place in time. According to the
government, "the fact that during the course of a D&E [by
disarticulation] or induction, some `overt act' is taken to kill a living
fetus . . . does not render D&E or induction unlawful" because the overt
acts characteristic of the other procedures do not occur under the other
requirements specified by the Act.
This court concludes, however, based on the findings set forth below,
that despite linguistic differences between the Nebraska statute in
Stenberg and the Act, the Act nevertheless poses an undue burden
on a woman's right to choose an abortion because the Act encompasses not only intact D&E procedures, but other previability
D&E procedures and possibly inductions as well, in violation of the
Supreme Court's holding.
Specifically, this court finds, based on the evidence before it,
1. Like the Nebraska statute in Stenberg, the Act bans abortions
performed at any time during a pregnancy, regardless of gestational age or
fetal viability. In fact, Congress rejected alternatives and amendments
to the Act that would have limited its applicability to viable fetuses.
See 149 Cong. Rec. S3600 (daily ed. March 12, 2003) (statement of Sen.
Feinstein); 149 Cong. Rec. H4939 (daily ed. June 4, 2003) (statement of
Rep. Greenwood); 149 Cong. Rec. H4948 (daily ed. June 4, 2003) (statement
of Rep. Baldwin).
2. In performing all D&Es, including D&Es by disarticulation,
and inductions, physicians "deliberately and intentionally" extract the
fetus from the woman's uterus and through her vagina. Tr. Vol. 1 at
76:19-21 (Paul); Tr. Vol. 2 at 200:23-201:4 (Sheehan); Tr. Vol. 3 at
422:3-12 (Doe); Tr. Vol. 5 at 822:0-823:12 (Westhoff). Extraction of the
fetus from the uterus, if brought through the cervix and vagina (as
opposed to through an incision in the woman's abdomen), is called a
"vaginal delivery." Tr. Vol. 1 at 75:20-76:5 (Paul); Tr. Vol. 3 at
421:6-11 (Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff).
3. The fetus may still have a detectable heartbeat or pulsating
umbilical cord when the uterine evacuation begins in any D&E or
induction, and may be considered a "living fetus." Tr. Vol.1 at 67:3-11;
76:6-18 (Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at 421:12-18
(Doe); Tr. Vol 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at
4. Plaintiffs' and the government's experts agree that in any D&E
or induction, a living fetus may be extracted in a breech presentation
until some "part of the fetal trunk past the navel is outside the body of
the mother." Tr. Vol. 6 at 945:17-21 (Bowes); Tr. Vol. 8 at 1283:17-20
(Shadigian); Lockwood Depo 235:16-24; Tr. Vol. 1 at 77:9-78:13 (Paul);
Tr. Vol. 1 at 99:16-2; 201:9-16 (Sheehan); Tr. Vol. 2 at 281:22-282:3 (Drey); Tr.
Vol. 3 at 405:4-12; 422:3-19 (Doe); Tr. Vol 4 at 521:2-15; 551:19-552:4
(Broekhuizen); Tr. Vols. 4 & 5 at 678:23-679:14; 784:3-786:18
(Creinin); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at
5. In a D&E, this may occur under a variety of scenarios, including
(A) on an initial pass into the uterus with forceps,
the physician disarticulates a small fetal part, which
does not cause immediate demise, and then on a
subsequent pass, the fetus is brought out of the
cervix past the fetal navel;
(B) on an initial pass into the uterus with forceps,
the physician brings out a fetal part either
attached to the rest of the fetus, or not that is
"part of the fetal trunk past the navel," but the
extraction does not cause immediate demise;
(C) the physician extracts the fetus intact until
the calvarium lodges at the internal cervical
(D) the physician extracts the fetus intact until
"part of the fetal trunk past the navel is outside
the woman's body," but it is not extracted so far
that the calvarium lodges at the cervical opening.
Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 2 at 201:9-202:1; 272:18-22
(Sheehan); Tr. Vol. 4 at 521:2-15; 551:1-18 (Broekhuizen); Tr. Vols. 4
& 5 at 681:8-16; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-824:2
(Westhoff); Tr. Vol. 11 at 1783:15-1784:20 (Chasen).
6. In an induction, this may occur because fetal demise may not have
occurred by the time the fetus passes through the woman's cervix and
vagina, and is outside the body of the woman past the fetal navel. Tr.
Vol. 4 at 530:15-533:6 (Broekhuizen); Tr. Vol. 11 at 1784:21-1786:3
7. In any D&E or induction, if the fetus has been brought to the
point "where any part of the fetal trunk past the navel is outside the
body of the mother" or "the entire fetal head is outside the body of the
mother," a physician may then, in order to complete the abortion in the
safest manner, need to perform an "overt act," short of completing
delivery, that the physician knows the fetus cannot survive, if it is
still living, and that "kills" the fetus. Lockwood Depo. 235:17-236:2; Tr. Vol. 1 at 79:8-16; 60:13-61:6; 69:22-25 (Paul); Tr.
Vol. 3 at 422:3-19 (Doe); Tr. Vol. 4 at 551:19-552:9 (Broekhuizen); Tr.
Vol. 4 at 638:10-684:10 (Creinin); Tr. Vol. 11 at 1783:15-1786:3
(Chasen). This "overt act" may include disarticulation, cutting the
umbilical cord, or compressing or decompressing the skull or abdomen or
other fetal part that is obstructing completion of the uterine
evacuation. Tr. Vol. 1 at 61:7-15; 70:1-6; 78:25-79:5 (Paul); Tr. Vol. 2
at 193:5-24; 205:8-15 (Sheehan); Tr. Vol. 3 at 405:13-22 (Doe); Tr. Vol.
4 at 523:1-524:1 (Broekhuizen); Tr. Vol. 5 at 783:15 (Creinin).
8. The procedures described above are performed by the testifying
physicians only on previable fetuses. Tr. Vol. 1 at 74:14-80:20 (Paul);
Tr. Vol. 2 at 281:15-21 (Drey); Tr. Vol. 3 at 420:9-22 (Doe); Tr. Vol. 4
at 550:18-552:9 (Broekhuizen); Tr. Vol. 4 at 657:3-8 (Creinin); Tr. Vol.
5 at 822:9-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
9. For these reasons, any abortion performed using the D&E or
induction method could proceed so as to violate the Act when performed in
the safest manner. Tr. Vol. 1 at 92:2-93:4 (Paul); Tr. Vol. 1 at
165:11-21 (Sheehan); Tr. Vol. 2 at 282:20-283:3 (Drey); Tr. Vol. 11 at
10. For the same reasons, the Act could also ban the steps that a
physician takes when treating a woman who presents in the midst of a
spontaneous second trimester miscarriage. Tr. Vol. 4 at 555:7-556:11
(Broekhuizen); Tr. Vol. 4 at 684:11-685:5 (Creinin); Tr. Vol. 5 at
824:4-24 (Westhoff); Tr. Vol. 11 at 1786:4-1787:9 (Chasen).
11. As part of their routine practice, eleven of the experts who
testified before this court, including Drs. Paul, Sheehan, Doe, Drey,
Broekhuizen, Creinin, Westhoff, Chasen, Hammond, Grunebaum, and
Fredriksen, sometimes perform previability abortions, as described
above, which would violate the act. Tr. Vol. 1 at 74:14-80:20 (Paul);
Tr. Vol. 1 at 165:7-21 (Sheehan); Tr. Vol. 2 at 281:15-21 (Drey); Tr.
Vol. 3 at 420:9-22 (Doe); Tr. Vol. 4 at 550:18-552:9 (Broekhuizen); Tr.
Vol. 4 at 657:3-8 (Creinin); Tr. Vol. 5 at 822:9-824:2 (Westhoff); Tr.
Vol. 11 at 1783:15-1786:3 (Chasen); Exh. 36, Exh. 37, Exh. 38.
12. When beginning a D&E or induction procedure, a physician cannot
predict if the procedure will proceed in such a manner that it violates
the Act, but the physician knows that is a possibility. Tr. Vol. 1 at 71:17-24 (Paul); Tr. Vol. 2 at 206:1-13
(Sheehan); Tr. Vol. 3 at 420:18-22; 426:5-7 (Doe); Tr. Vol. 4 at 522:4-17
(Broekhuizen); Tr. Vol. 5 at 786:11-23 (Creinin).
13. Accordingly, because physicians may face criminal prosecution under
the Act for violative procedures, the nature of which they cannot always
predict, the Act would have a significantly negative impact on their
practice and their relationships with their patients, and in some
circumstances, already has. See, e.g., Tr. Vol. 1 at 74:21-23 (Paul) ("my
overriding concern is that if I continue to practice . . . second
trimester abortions in the way I believe is the safest for women, that I
could be in prison"); id. at 92:8-13 ("I think [the Act] would have a
tremendous impact on my practice. I would be forced with a decision I
would have never faced before in medicine and that is as to whether to
continue to do procedures in a way that I think are safest for women
because if I did so, I would risk imprisonment"); id. at 93:5-12 (Act
would undermine fundamental trust that physician has with patient because
it would prevent them from giving best possible care); Tr. Vol. 4 at
563:3-16 (Broekhuizen) (the Act would "make it significantly more
difficult to provide . . . medically necessary services" and would force
him to utilize fetocidal injections more frequently which "may not really
be in the best interests of the patients"); Tr. Vol. 11 at 1787:10-23
(Chasen) (fear of committing a criminal act may prevent physicians from
giving their full attention while providing care); Tr. Vol. 5 at 820:6-20
(Westhoff) (describing complication that occurred as a result of a D&E
performed utilizing fetocidal injection in attempt to avoid Act's
coverage); Tr. Vol. 2 at 204:14-205:3 (Sheehan) (the Act "would really
cause a significant disruption between [me and] the patient"); Lockwood
Depo. 68:2-68:16 (criminal penalties included in Act "further unravel
physicians' social contract with patients").
Accordingly, the court concludes that the definition of "partial-birth
abortion" contained in the Act encompasses several second trimester
abortion procedures in addition to intact D&E. Physicians may perform
each element contained in the Act's definition in any D&E procedure, and
in the course of certain induction abortions and treatment of spontaneous miscarriages as well. And, because D&E procedures comprise nearly 85-95%
of all second trimester abortions, the Act creates a risk of criminal
liability during virtually all abortions performed after the first
trimester, and "has the effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus." Stenberg, 530
U.S. at 921 (quoting Casey, 505 U.S. at 877). A majority of the
physicians who testified noted that because they "fear prosecution,
conviction, and imprisonment," the wide net cast by the Act could have
and has already had the effect of impacting all previability second
trimester abortion services that they provide to their patients. See id.
The government's argument that Congress intended to ban only the intact
D&E procedure is not convincing. First, as the Supreme Court noted in
Stenberg in rejecting a nearly identical argument by the state of
Nebraska, if Congress did not intend to prohibit procedures other than
intact D&Es, it would have been simple for it to exclude other
procedures. See Stenberg, 530 U.S. at 939 ("it would have been a simple
matter, for example, to provide an exception for the performance of D&E
and other abortion procedures"); see also Planned Parenthood of Central
New Jersey v. Farmer, 220 F.3d 127, 140 (3rd Cir. 2000) (holding New
Jersey partial-birth abortion ban unconstitutional, and noting that "[i]f
the Legislature intended to ban only the [intact D&E] procedure, it
could easily have manifested that intent either by specifically naming
that procedure or by setting forth the medical definition of [intact
D&E] utilized by AGOG"); cf. Women's Medical Prof'l Corp. v. Taft,
353 F.3d 436, 452-53 (6th Cir. 2003) (holding that Ohio partial-birth
abortion ban did not pose an undue burden because it "avoided the flaws
identified in [Stenberg] by precisely describing the restricted procedure
and explicitly permitting D&E procedures").
Moreover, it does not appear to this court that Congress simply
overlooked the Stenberg Court's language to this effect. Instead, it
appears that Congress intentionally chose not to explicitly exclude
D&Es. The government presented no evidence to this court that supported
its arguments regarding congressional intent, and the Congressional
Record suggests the contrary. Within Congress, opponents of the Act
pointed out the potential overbreadth of the Act and proposed remedies
regarding the scope. They noted that: Medical experts testified just yesterday before
the Constitution Subcommittee that the definition
in the bill could easily be construed to ban the
most commonly used second trimester procedure.
H.R. Report No. 108-58, at 80 (2003) ("Record Exh. A"). Congress,
however, rejected the related amendments to narrow the scope of the Act.
However, even if it was Congress' intent to limit the ban to intact
D&Es, this court, like the Supreme Court in Stenberg, is "without power
to adopt a narrowing construction of [the statute] unless such a
construction is reasonable and readily apparent." 530 U.S. at 944 (citing
Boos v. Berry, 485 U.S. 312, 330 (1972)). Even if this court were to
accept the government's argument that the phrase "partial-birth
abortion," as used by Congress, is commonly associated with the intact
D&E procedure, the use of that phrase does not limit the scope of the
Act to intact D&Es. Instead, the phrase "partial-birth abortion" is
"subject to the statute's explicit statutory definition," which this
court is required to follow even if that definition "varies from the
term's ordinary meaning." Id. at 942-43 (citing Meese v. Keene,
481 U.S. 465, 484-85 (1987)); see also Richmond Medical Center v. Hicks,
301 F. Supp.2d 499, 515 (E.D. Va. 2004) (Virginia law posed an undue
burden despite fact that it explicitly excepted from coverage "the
dilation and evacuation abortion procedure involving dismemberment of the
fetus prior to removal from the body of the mother where plain language
of the Act [nevertheless] ban[ned] pre-viability D&Es and would cause
those who perform such D&Es to fear prosecution, conviction, and
imprisonment"). Here, for the reasons discussed above, the Act's
statutory definition casts a net wider than intact D&Es, and may include
other previability abortion procedures, including D&Es by
disarticulation, inductions, and treatment of spontaneous miscarriages.
However, even if this court were to find that linguistic differences in
the Act make it less likely that the Act encompasses D&E by
disarticulation procedures as did the Nebraska statute in Stenberg, this
court nevertheless concludes that the Act is unduly burdensome because,
even assuming that the Act covers only the intact D&E procedure, the Act
does not distinguish between previability and postviability in violation
of Roe and Casey. See Stenberg, 530 U.S. at 930 (the government's
"interest in regulating abortion previability is considerably weaker than postviability"). To the extent that a woman
seeks or requires an intact D&E abortion prior to viability, this Act
would undoubtedly place a substantial obstacle in her path and
For the reasons stated above, the court finds that the Act is
III. CONSTITUTIONAL VAGUENESS
Plaintiffs next challenge the Act on the ground that it is void for
vagueness, in violation of the Due Process Clause, because the Act fails
to clearly define the prohibited medical procedures and does not use
terminology that is recognized in the medical community. Therefore,
according to plaintiffs, it deprives physicians of fair notice and
encourages arbitrary enforcement.*fn15
The government, however, contends that the inclusion of scienter
requirements in the Act mitigates any possible vagueness. See, e.g.,
Village of Hoffman Estates, 455 U.S. 489
, 499 (1982); Colauitti v.
Franklin, 439 U.S. 379
, 395 n. 13 (1979). It cites to three statutory
phrases in the Act that it contends constitute scienter requirements.
These phrases appear in § 1531(a), and in § 1531(b)(1)(A) (defining
partial-birth abortion), and provide in pertinent part:
(a) Any physician who, in or affecting interstate or
foreign commerce, knowingly performs a partial-birth
abortion and thereby kills a human fetus shall be
fined under this title or imprisoned not more than 2
years, or both. . . .
(b) As used in this section
(1) the term "partial-birth abortion" means an
abortion in which the person performing the
abortion (A) deliberately and intentionally vaginally
delivers a living fetus until, in the case of a
head-first presentation, the entire fetal head is
outside the body of the mother, or, in the case of a
breech presentation, any part of the fetal trunk
past the navel is outside the body of the mother,
for the purpose of performing an overt act that the
person knows will kill the partially delivered
fetus. . . .
The government contends that the inclusion of these scienter
requirements as emphasized above remedies any vagueness. It claims that
because of the scienter requirements, "the Act does not criminalize
situations, during a D&E [by disarticulation], in which a living fetus
may be delivered, by happenstance, intact or even [in] cases where the
partial delivery of the intact fetus is intentional or for see able, but
only procedures where the provider deliberately delivers the fetus both
in the manner described by the Act and with a specific intent from the
outset to perform an overt act that the provider knows will kill the
The Supreme Court has unambiguously stated that vague laws are
It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions
are not clearly defined. Vague laws offend several
important values. First, because we assume that man is
free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws
may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is
to be prevented, laws must provide explicit standards
for those who apply them.
Grayned v. City of Rockford, 408 U.S. 104
, 108 (1972). Accordingly, to
avoid unconstitutional vagueness, the Act must (1) define the offense
with sufficient definiteness that ordinary people can understand what
conduct is prohibited; and (2) establish standards such that enforcement
may be conducted in a non-arbitrary, non-discriminatory manner. Nunez v.
City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997).
"The need for definiteness is greater when the ordinance imposes
criminal penalties on individual behavior or implicates constitutionally
protected rights than when it regulates the economic behavior of
businesses." Id. (quoting Village of Hoffman Estates, 455 U.S. at 494).
Moreover, if the Act does not provide sufficient "standards to prevent
arbitrary enforcement," it "would be impermissibly vague even if it did
not reach a substantial amount of constitutionally protected conduct, because it would subject people to the risk of
arbitrary deprivation of their liberty." Forbes v. Napolitano,
236 F.3d 1009, 1011-1012 (9th Cir. 2000) (citing City of Chicago v.
Morales, 527 U.S. 41, 42 (1999)). "Regardless of what type of conduct the
criminal statute targets, the arbitrary deprivation of liberty is itself
offensive to the Constitution's due process guarantee." Id. at 1012
(citing Smith v. Goguen, 415 U.S. 566, 575(1972)).
C. Findings of Fact and Conclusions of Law
As plaintiffs note, several of the terms in the Act are ambiguous,
including "partial-birth abortion," "overt act," "deliberately and
intentionally," and "living fetus." The trial testimony of numerous
physicians confirmed that, as physicians and practitioners providing
abortion services, they do not understand exactly what the Act
prohibits. See, e.g., Tr. Vol. 1 at 76:7-82:12 (Paul); Tr. Vol. 4 at
557:4-13 (Broekhuizen); Tr. Vol. 11 at 1787:10-23 (Chasen); Tr. Vol. 5 at
820:6-20 (Westhoff); Tr. Vol. 2 at 200:23-202:3 (Sheehan).
As many of the physicians testified before this court, the term
"partial-birth abortion" has little if any medical significance in and of
itself. See, e.g., Tr. Vol. 3 at 420:23-421:2 (Doe); Grunebaum Depo. at
214:1-7. Dissenting legislators within Congress made the same
observation, arguing that:
This legislation is overly vague. It is unclear
exactly, which procedures we would ban. me term
`partial-birth abortion' has no legal or medical
meaning. It is a term invented for political
purposes. The findings and actual operative clauses of
the bill are inconsistent in their definitions, and in
both cases are overly vague.
Record Exh. A, at 80.
Additionally, the Act's use of the term "living fetus" adds to the
vagueness of the statute, since, the term "living fetus" is not pertinent
to the framework set forth by the Supreme Court in Roe and Casey, and
does not pertain to viability. As set forth above in the court's findings
regarding undue burden, a previable fetus may nonetheless be "living" if
it has a detectable heartbeat or pulsating umbilical cord. Tr. Vol. 1 at
67:3-11; 76:6-18 (Paul); Tr. Vol. 2 at 201:5-8 (Sheehan); Tr. Vol. 3 at
421:12-18 (Doe); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at
1783:15-1786:3 (Chasen). Moreover, as noted by the Third Circuit,
"because a fetus may be `living' as early as seven weeks Imp, use of the term `living'
instead of `viable' indicates that, contrary to the understanding of the
public and the concomitant rhetoric, the Act is in no way limited to
late-term, or even mid-term, abortions." Farmer, 220 F.3d at 137
(holding state partial-birth abortion ban unconstitutionally vague,
asserting that "the term `living human fetus' adds little to the Act's
constitutional certainty because it does not draw the line at viability,
as the Supreme Court has done").
Nor does the requirement of an "overt act" sufficiently narrow the
scope of the Act to give notice of the type of abortion procedure
prohibited. Again, as set forth above in the court's findings regarding
undue burden, the "overt act" may be interpreted to comprise many acts,
performed not only in the process of an intact D&E, but in the course of
a D&E by disarticulation or induction as well, including disarticulation
of the calvarium, cutting the umbilical cord, or compressing or
decompressing the skull or abdomen or other fetal part that is
obstructing completion of the uterine evacuation. Tr. Vol. 1 at 61:7-15;
70:1-6; 78:25-79:5 (Paul); Tr. Vol. 2 at 193:5-24; 205:8-15 (Sheehan);
Tr. Vol. 3 at 405:13-22 (Doe); Tr. Vol. 4 at 523:1-524:1 (Broekhuizen);
Tr. Vol. 11 at 1783:15-1786:3 (Chasen). Accordingly, the term "overt act"
cuts such a wide swath that it cannot possibly be considered sufficient
to put physicians on notice of what type of "overt" act violates the
This court further concludes that the Act's vagueness and
unconstitutional breadth cannot be cured by the alleged scienter
requirements. First, the requirement that the physician "knowingly
perform" a "partial-birth abortion," as defined by the Act, is of no help
to the government. As plaintiffs have argued and the trial evidence has
demonstrated, as part of their routine medical practice, a physician
performing a D&E, by disarticulation or intact, or an induction abortion
in the safest, most medically appropriate manner, "knows" that the
procedure may proceed in such a manner that the physician may have to
engage in procedures proscribed by the Act. See Tr. Vol. 1 at 74:14-80:20
(Paul); Tr. Vol. 1 at 165:7-21 (Sheehan); Tr. Vol. 2 at 281:15-21
(Drey); Tr. Vol. 3 at 420:9-22 (Doe); Tr. Vol. 4 at 550:18-552:9
(Broekhuizen); Tr. Vol. 4 at 657:3-8 (Creinin); Tr. Vol. 5 at 822:9-824:2
(Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen). Nor can the fact that the Act requires that a physician "deliberately
and intentionally vaginally deliver a living fetus" cure the
unconstitutional vagueness. The parties dispute whether the phrase
modifies only the vaginal delivery or the additional steps contained in
the Act's definition of "partial-birth abortion." However, this court
need not resolve that dispute, because, as the Third Circuit held in
Farmer, this scienter requirement does nothing to ameliorate the
vagueness of Act. See Farmer, 220 F.3d at 138 (rejecting state's argument
that scienter requirement specifying "deliberate and intentional
[delivery] into the vagina of a living fetus" cured unconstitutional
At a minimum, to limit the scope of a statute to
`deliberately and intentionally' performing a certain
procedure, the procedure itself must be identified or
readily susceptible of identification. Here it is
Id. (citations omitted); see also Planned Parenthood of Greater Iowa,
Inc. v. Miller, 195 F.3d 386
, 389 (8th Cir. 1999) (Iowa partial-birth
abortion ban's inclusion of scienter requirement did not save Act because
Act still "encompasse[d] more than just the [intact D&E] procedure").
This same analysis applies to the Act's requirement that the procedure
be "for the purpose" of performing "an overt act that the [physician]
knows will kill the partially delivered fetus." Insofar as the court has
already concluded that the Act's definition may encompass many second
trimester abortions and that the terms "partial-birth abortion" and
"overt act" are ambiguous, the inclusion of a scienter requirement cannot
cure the vagueness and save the Act.
As noted previously, the government also argues that this court should
narrow the construction of the statute to eliminate any doubts about the
Act's unconstitutionality. This court rejects that argument for the
reasons set forth above in the court's conclusions of law regarding the
undue burden posed by the Act.
Accordingly, the court finds that the Act is unconstitutional on this
ground as well.
Separate and apart from the undue burden and vagueness analyses,
Stenberg also holds that "where substantial medical authority supports
the proposition that banning a particular abortion procedure could
endanger women's health, Casey requires the statute to include a health exception where the procedure is `necessary, in
appropriate medical judgment, for the preservation of the life or health
of the mother.'" Stenberg, 530 U.S. at 938 (citing Casey, 505 U.S. at
879). The Act, by contrast, excepts only "a partial-birth abortion that
is necessary to save the life of a mother," and omits the health
exception and the "appropriate medical judgment" requirements of Casey
Although the court has already found that the Act is unconstitutional
because it poses an undue burden and because it is vague, given the time
and resources expended by the parties and this court, and the extensive
evidence presented on the issue, the court is compelled to reach the
issue regarding a health exception.
Plaintiffs contend that Stenberg requires a health not just life
exception under the circumstances, and that the congressional findings on
the issue are not entitled to any deference. In support, plaintiffs
assert that the intact D&E procedure, is a safe, if not a safer, option
for pregnancy termination than other abortion procedures, and is
necessary to preserve the health of certain women under certain
circumstances. Additionally, plaintiffs also argue that the Act's life
exception is constitutionally inadequate because it does not allow a
physician to determine, in his or her best medical judgment, whether the
intact D&E procedure is necessary to preserve a woman's life.
The government, however, argues that the Act's life exception is
constitutionally adequate because Congress has concluded that the
procedure is never medically necessary, and that this court must defer to
Congress' finding. The government, therefore, contends that the evidence
before this court is relevant only in determining the degree of deference
afforded Congress' finding regarding the necessity of a health
At the outset, this court recognizes that Congress has made a finding
pertinent to the trial evidence before this court, and that in affording
the appropriate level of deference to Congress' finding, the evidence
before this court may play a limited role in resolution of this issue.
Nevertheless, the court, prior to determining the degree of deference to
be accorded the congressional findings, summarizes in significant detail and
finds as follows regarding the extensive evidence presented by both
parties before this court.
1. Witnesses' Background and Qualifications
Plaintiffs presented trial testimony from eight expert witnesses in
opposition to the Act, several of whom also provided testimony in the New
York case. Plaintiffs' testifying experts included: Drs. Maureen Paul,
Katharine Sheehan, Carolyn Westhoff, Fredrik Broekhuizen, John Doe,
Mitchell Creinin, Eleanor Drey, and Stephen Chasen.*fn16 Plaintiffs' expert witnesses all currently practice and/or teach in the
area of obstetrics and gynecology ("obgyn"), and all were qualified as
experts in that area and in abortion practice. Additionally, three of the
eight were also qualified as experts in maternal-fetal medicine; two were
qualified as experts in epidemiology; and one taught epidemiology jointly
with his medical practice. All eight have performed intact D&Es during
the course of their practices, with varying frequencies, and all of those
experts who teach in the area of abortion practice teach the intact D&E
variant. Of plaintiffs' witnesses asked to quantify the number of
abortions they had performed, all answered in the thousands. See, e.g.,
Tr. Vol. 1 at 160:5-14 (Sheehan, estimating 30,000); Tr. Vol. 5 at
732:10-12 (Creinin, estimating 5,000). Moreover, all eight opine that
enforcement of the Act would significantly affect their patients and
practices, and could subject them to prosecution under the Act. Six of
plaintiffs' experts have never previously testified in any case involving
a ban on abortion. None of plaintiffs' experts testified before or was
consulted by Congress with respect to the drafting of the Act or the
findings supporting the Act.*fn17
Plaintiffs also submitted the deposition testimony of five experts: one
who is an expert in perinatal and gynecological pathology, and four of
whom are experts in obgyn and abortion practice, including intact
D&E. Three of the four are also experts in maternal-fetal medicine.
The government presented trial testimony from five expert witnesses.
Several of these witnesses practice and teach in obgyn; and four of the
five were, therefore qualified as experts in that area. Two of those four
were also qualified as experts in maternal-fetal medicine, and one was qualified as an expert in medical literature. Three of the four
were qualified as experts in pregnancy termination. However, none had
performed the intact D&E procedure at issue in this case. Moreover, none
had been instructed regarding the procedure or had personally observed
the procedure being performed.
All four witnesses had testified previously in support of state law
restrictions on abortion, or had offered testimony before Congress in
support of the Act, or both. The government's fifth testifying expert,
Dr. Anand, was qualified as an expert in the areas of pharmacology of
anesthetic drugs, fetal neurobiology, and fetal pain.
The government also introduced deposition testimony from one expert
witness, an expert in obgyn, maternal-fetal medicine, and abortion
practice, with the caveat that he has never performed an intact D&E
The four government witnesses qualified as experts in obgyn included
Drs. Leroy Sprang, Curtis Cook, Watson Bowes, and Elizabeth Shadigian.
Dr. Sprang, an associate clinical professor at Northwestern University
and a practicing obgyn for approximately twenty eight years, testified
that he had never performed any abortion procedure on a fetus post-17
weeks Imp, that he had performed fewer than twenty D&Es by
disarticulation in his twenty eight years of practice, all of which were
on demised fetuses, and that he had never been instructed regarding, had
never taught, performed, or even observed an intact D&E procedure. Tr.
Vol. 7 at 1033:17-18; 1034:1-1038:4 (Sprang). He further testified that
his knowledge regarding intact D&E was based exclusively on his
conversations with other physicians,*fn18 his review of medical
literature, and his involvement in this litigation and other litigation in which he was required to read other expert
reports and related documents. Id. at 1045:2-1052:4. The court also notes
that Dr. Sprang has never conducted clinical research in the area of
abortion. Id. at 1029:3-7.
Like Dr. Sprang, while Dr. Cook possesses expertise generally in obgyn
and maternal-fetal medicine, he also lacks expertise regarding the intact
D&E procedure in particular. Dr. Cook has never performed, personally
observed, supervised, received instruction in, or taught the intact D&E
procedure.*fn19 Tr. Vol. 9 at 1380:7-1381:7 (Cook). Dr. Cook also lacks
expertise in post-20 week D&Es generally. Id. at 1365:15-22. He has
performed only three to five D&Es by disarticulation in his career,
limited to cases where fetal demise had already occurred. Id. at
1364:14-25. Moreover, in terms of his observation of D&Es by
disarticulation, Dr. Cook testified that he generally observes the
procedure prior to 18 weeks gestation. Id.
The same is true of Dr. Bowes, an emeritus professor of obgyn at the
University of North Carolina/ Chapel Hill, retired from his clinical
practice. He is board-certified in obgyn and maternal-fetal medicine. Tr.
Vol. 6 at 875:1-879:7 (Bowes). Dr. Bowes has never performed an intact
D&E; and he has only performed 2-3 D&Es by disarticulation on fetuses
that had not already died at the time of the procedure. Id. at
978:8-983:23. Those D&Es were performed to save the mother's life, as
Dr. Bowes believes that abortion generally is warranted only when there
are severe medical complications that threaten a mother's life. Id. at
Likewise, Dr. Elizabeth Shadigian, an obgyn and a clinical associate
professor of obgyn at the University of Michigan, testified that she has
never performed an intact D&E, and has never supervised, observed,
been instructed in, or taught the procedure. Tr. Vol. 8 at 1214:3-1215:3 (Shadigian).*fn20 Of the abortions that she has performed
on fetuses prior to demise, all have been induction abortions under
circumstances of severe maternal complications. In her career, all of the
D&Es by disarticulation that she has performed have been on demised
Accordingly, this court found that the government's experts lacked the
background, experience, and instruction to qualify as experts regarding
the technique of the intact D&E procedure. Instead, the court allowed
the government's experts to testify only regarding their opinions on the
safety of the procedure, based upon their review of the literature. The
court noted that if it were to qualify the government's witnesses, who
did not "appear to have any personal experience with late-term abortion
procedures at issue here," it would mean that any obgyn would be
considered an expert on late-term abortions. See Tr. Vol. 7 at
Overall, while the government's witnesses are eminently qualified as
obgyn practitioners, the court finds that the government's witnesses lack
the qualifications, experience, and knowledge possessed by plaintiffs'
witnesses with respect to late-term abortion procedures generally, and
intact D&E in particular.
2. Overview of Plaintiffs' Evidence
Plaintiffs presented evidence that intact D&E is at least as safe as
D&E by disarticulation, and under some circumstances safer, because the
procedure is quicker and requires fewer passes with the forceps.
Plaintiffs also presented evidence that common sense and sound medical
judgment indicate that fewer passes reduce the risk of uterine
perforation and cervical lacerations from instruments and/or fetal bone
fragments. Tr. Vol. 1 at 70:10-17 (Paul); Tr. Vol. 1 at 166:13-167:2, 169:7-13, Tr. Vol. 2 at
186:14-187:16 (Sheehan); Tr. Vol. 3 at 399:18-400:217, 407:12-20 (Doe);
Tr. Vol. 5 at 798:12-804:5 (Westhoff); Tr. Vol. 11 at 1755:5-1756:19
(Chasen). Certain of defendants' witnesses agreed. Tr. Vol. 6 at
944:20-945:21 (Bowes); Tr. ...