United States District Court, N.D. California
June 1, 2004.
PLANNED PARENTHOOD FEDERATION OF AMERICA, et al., Plaintiffs
JOHN ASHCROFT, Attorney General of the United States, in his official capacity, Defendant; CITY AND COUNTY OF SAN FRANCISCO, Plaintiff Intervenor v. JOHN ASHCROFT, Attorney General of the United States, in his official capacity, Defendant
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
I. FACTUAL 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."
1. The Act
The Act defines "partial-birth abortion" as:
an abortion in which a physician deliberately and
intentionally vaginally delivers a living, unborn
child until either the entire baby's head is outside
the body of the mother, or any part of the baby's
trunk past the navel is outside the body of the mother
and only the head remains inside the womb, for the
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"
2. Dr. Haskell and ACOG
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).
3. Trial Testimony
At trial, plaintiffs presented the testimony of a number of physicians
who perform D&E abortions by procedures which they believe might violate
the Act. Several physicians report that occasionally while 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."
II. LEGAL FRAMEWORK
As noted, this case involves an issue similar to that confronted by the
Supreme Court in Stenberg. In 1997, Dr. Leroy Carhart, a medical
doctor who provides late-term abortions, sought a preliminary injunction
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.
II. UNDUE BURDEN
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.
B. Parties' Positions
Plaintiffs claim that, similar to the Nebraska statute in Stenberg, the
Act here poses an undue burden on a woman's decision to have an abortion
prior to viability. Plaintiffs contend that the Act likewise bans other
safe second trimester procedures, including D&E and induction
abortions. They argue that the definition of "partial-birth abortion" in
the Act is so broad that any abortion performed by the two safest, most
common abortion procedures used in the second trimester of pregnancy,
prior to fetal viability D&E and induction could proceed so as to
violate the Act. Accordingly, plaintiffs assert that the Act is
unconstitutional as a matter of law. Moreover, plaintiffs contend that regardless of any interpretation that
the government may advance 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.
Id. at 945-46.
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
ii. Fetal Parts
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
iii. Overt Act
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.
E. Findings of Fact
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").
F. Conclusions of Law
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
A. Parties' Positions
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
B. Legal Standard
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.
IV. HEALTH EXCEPTION
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.
A. Parties' Arguments
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
B. Trial Evidence
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
a. Plaintiffs' Witnesses
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.
b. Government Witnesses
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
c. Expert Qualifications
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. Vol. 8 at 1285:4-14 (Shadigian); Tr. Vol. 9 at
1486:11-1487:5 (Cook). But see Tr. Vol. 7 at 1127:8-1128:12 (Sprang,
opining that no risk in additional passes if ultrasound is used).
In addition, since the fetus undergoes less disarticulation, the risk
of leaving fetal parts in the uterus is diminished, and the procedure is
likely to take less time. Tr. Vol. 1 at 72:7-73:8 (Paul); Tr. Vol. 5 at
799:1-4, 800:13-4, 801:8-21 (Westhoff). The quicker the procedure, the
less time the woman must spend under sedation, which further reduces the
potential for complications caused by anesthesia. Tr. Vol. 1 at
168:19-169:6 (Sheehan). Plaintiffs also argue that a shorter surgical
procedure will decrease the amount of blood loss and the risk of
infection. Tr. Vol. 5 at 799:4 (Westhoff); Tr. Vol. 11 at 1756:15-19
Because the intact D&E procedure results in a fetus that remains
relatively intact after surgery, an autopsy of the fetus for diagnostic
purposes is possible, particularly if the reason for the abortion was due
to fetal anomalies. Such further diagnosis may be helpful for the woman
in planning for future pregnancies. Tr. Vol. 2 at 189:3-20 (Sheehan);
Tr. Vol. 11 at 1757:14-1758:19 (Chasen). Some women also prefer a
surgical procedure that yields a relatively intact fetus for
psychological reasons, so that the mother can hold the fetus and, if
desired, have the fetus receive religious rites. See, e.g., Tr. Vol. 4 at
503:18-504:3; 562:10-22 (Broekhuizen). However, if the intact D&E
procedure destroys the contents of the brain, analysis of the brain tissue
would be impossible. Tr. Vol. 2 at 254:17-25 (Sheehan); Tr. Vol. 3 at
433:9-434:6 (Doe, also noting that brain tissue is not always needed in
autopsies and cannot always be successfully obtained even in
The AMA task force, on which government witness Dr. Sprang served,
concluded that intact D&E "may minimize trauma to the woman's uterus,
cervix, and other vital organs, [and] may be preferred by some
physicians, particularly when the fetus has been diagnosed with
hydrocephaly or other anomalies incompatible with life outside the womb."
Tr. Vol. 7 at 1133:12-1134:8 (Sprang).
3. Overview of Government's Evidence
In contrast, the government took the position that intact D&E is a
dangerous procedure that is less safe than any other second trimester
abortion method, is never medically necessary, and could potentially pose
grave risks to women's health. The government argues that not only is
there no scientific evidence showing that the procedure is safe as a
whole, but the individual elements of the procedure have been shown to be
unsafe as well. See, e.g., Tr. Vol. 7 at 1079:1-1081:5 (Sprang);
Tr. Vol. 8 at 1233:12-1234:3 (Shadigian); Tr. Vol. 9 at 1411:22-1416:1
The government also introduced evidence that in no situation is an
intact D&E medically necessary, since a woman could always undergo
another method of second trimester abortion in any given situation,
including D&E by disarticulation, induction, or hysterotomy or
hysterectomy. See, e.g., Tr. Vol. 7 at 1110:14-1111:9 (Sprang); Tr. Vol.
8 at 1220:16-21 (Shadigian); Tr. Vol. 9 at 1390:3-22 (Cook).
4. Medical Organizations
Numerous medical organizations are divided on their positions regarding
the Act. Among the largest organizations that oppose the Act are AGOG, a
professional membership organization organized in 1951, concerned with
professional practice and education in the health care of women. ACOG has
more than 44,000 members in the United States, Canada, and Mexico. Each
member of ACOG is a board-certified obgyn, and more than 90% of all
board-certified obgyns are members of ACOG. See generally Deposition of
Joanna Cain, M.D. ("Cain Depo").
The California Medical Association ("CMA") also opposes the Act. The
CMA, which advocates for the interests of physicians and their patients,
is California's largest medical association, with more than 30,000
members, comprised of licensed physicians. See generally Deposition of
John Whitelaw, M.D. ("Whitelaw Depo"). Two other associations, the
American Medical Women's Association ("AMWA"), an organization of 10,000
medical professionals, including women physicians, residents, and medical
students, dedicated to advancing women in medicine and improving women's health, and the
American Public Health Association ("APHA"), an organization with
approximately 50,000 members from all public health occupations, including
obstetricians and gynecologists, devoted to advancing and promoting
public health, also oppose the Act. See generally Deposition of Meghan
Kissell ("Kissell Depo"); Deposition of Alan Baker ("Baker Depo").
Among those organizations that supported the Act were the Association
of American Physicians & Surgeons ("AAPS"), which submitted an amicus
brief in support of Nebraska in the Stenberg case. AAPS is a nonprofit
organization dedicated to defending the practice of private medicine. It
submitted the amicus brief on behalf of several other medical
organizations, including ISMS, the Illinois State Medical Society. An
organization co-founded by government witness Dr. Cook to advocate for
the banning of partial-birth abortion, the Physicians' Ad Hoc Coalition
for Truth ("PHACT"), with approximately 400 physician members, also
opposed the Act. See Tr. Vol. 9 at 1361:11-62:14 (Cook).*fn21
The American Medical Association ("AMA"), a national association with
approximately 250,000 physician and medical student members, created to
advocate on behalf of physicians and patient rights, supported the Act
initially, but subsequently withdrew its support because of the criminal
penalties included in the Act.
5. Scientific Studies on Intact D&E
The parties agree that no definitive large-scale studies have been
completed that conclusively show that intact D&E is safe, or that it
is unsafe. Tr. Vol. 1 at 102:9-14 (Paul); Tr. Vol. 3 at 438:5-11, 443:3-9
(Doe); Tr. Vol. 5 at 849:9-12 (Westhoff); Tr. Vol. 6 at 905:19-909:20,
971:14-972:19 (Bowes); Tr. Vol. 8 at 1297:25-1298:12 (Shadigian).
It is the government's position that in the absence of definitive
studies concluding that intact D&E is safe, physicians should not be
permitted to use the technique. See, e.g., Tr. Vol. 8 at 1221:5-12,
1229:2-6, 1232:8-13 (Shadigian). Plaintiffs, on the other hand, take the
position that in the absence of studies concluding that intact D&E is
unsafe, physicians should be able to exercise their own medical judgment to determine if the
procedure is appropriate under the circumstances presented. See, e.g.,
Tr. Vol. 1 at 90:13-17 (Paul); Tr. Vol. 11 at 1828:3-21 (Chasen).
a. Research Methodology
The medical community follows certain epidemiological principles when
evaluating the weight and significance of research results, and all
parties recognized these principles in presenting trial evidence.
In general, "evidence-based medicine is a way of doing medicine that
takes into consideration the scientific information that is available
. . . [I]f there is good evidence that one particular method should be
used, then it is [the physician's] responsibility to use that method, but
where that evidence is lacking or inadequate, then we use our best
clinical judgment to render the safest care possible for our patients."
Tr. Vol 1, 91:5-13 (Paul).
Research methodology is evaluated on a hierarchy. Prospective
randomized trials, where patients are selected before any treatment
begins and randomly placed into treatment groups, yield the most
significant results, since this type of study is considered to be subject
to the least amount of bias. The next most reliable study is a
retrospective cohort study, where records are reviewed after patients
have undergone different types of treatment and the results are
compared. Somewhat less reliable is a retrospective case study series,
where records are reviewed after patients have undergone one specific
type of treatment and the results are reported. Finally, if there is no
study possible or available, doctors should rely on their clinical
judgment and experience in determining what medical methods to use. Tr.
Vol. 1 at 95:17-97:21 (Paul); Tr. Vol. 2 at 253:3-254:2 (Sheehan); Tr.
Vol. 2 at 346:13-348:15 (Drey); Tr. Vol. 6 at 890:15-894:7, 895:25-896:8
(Bowes); cf. Tr. Vol. 8 at 1298:13-1299:3 (Shadigian, stating that
intuitive judgment is of no value in assessing short- and long-term
risks). When studies have been conducted, doctors are encouraged to
incorporate the results into their practice.*fn22
Certain published studies are also subjected to peer review, where
other doctors practicing in the same area will review results and provide
criticism and commentary designed to ensure the accuracy of the results
reported. Tr. Vol. 1 at 97:22-98:6 (Paul); Tr. Vol. 6 at 894:8-895:4
b. Studies on Abortion Safety
The parties agree that abortion in general is a safe procedure, and
that it is in fact safer than carrying a pregnancy to term. Tr. Vol. 1 at
22:11-38:5 (Paul, noting that risk of death from childbirth is 10 times
greater than risk of death in abortion). The parties also agree that
while no published studies comparing the safety of intact D&E to
other methods of abortion exist, various studies have examined individual
aspects of the intact D&E procedure, and others have compared the
safety of D&Es generally with other methods of abortion.
The first large-scale studies on abortion safety took place in the
1970s, through the Joint Program for the Study of Abortion ("JPSA"),
administered through the Centers for Disease Control ("CDC"). The JPSA
study ran from 1971-1979, and included over 250,000 women.*fn23 It
concluded that D&E abortions led to significantly fewer major medical
complications than inductions, which at that time were performed using
saline injections.*fn24 Tr. Vol.1 at 25:18-31:13 (Paul).
The parties agree that the methods of performing both D&E and
induction abortions have changed since the time the JPSA studies were
conducted, and both procedures have become even more safe. Tr. Vol. 1 at 31:14-19 (Paul). Individual
witnesses, though, disagree as to which method between the two is
better. Compare, e.g., Tr. Vol. 5 at 717:24-719:3 (Creinin, noting that
while inductions are safe, they have not improved in safety over the last
20 years); Tr. Vol. 3 at 414:8-14 (Doe, noting anecdotally that
inductions have more complications than D&Es); Tr. Vol. 11 at
1771:22-1772:19 (Chasen, stating that D&Es are still significantly safer
than current induction methods); Tr. Vol. 6 at 946:5-13 (Bowes, agreeing
D&E safer than induction) with Tr. Vol. 7 at 1092:17-1093:7,
1122:14-1123:5 (Sprang, claiming inductions as safe or safer than D&E);
Tr. Vol. 8 at 1229:2-6, 1269:15-1274:25 (Shadigian, claiming inductions
unambiguously safer than D&E).
In terms of abortion mortality, the primary study relied upon is based
on data collected by the CDC between 1972-1987, and includes information
about abortion-related deaths throughout the United States. Exh. 63
(Lawson report). That study concluded that while the risk of death
increases with fetal gestational age, the risks of mortality from D&E
are very low, and comparable to those for induction. Most of the
witnesses agreed that both of those procedures are also significantly
safer than a hysterectomy or hysterotomy. Exh. 63 (table III; listing
D&E as "evacuation," and induction as "instillation"). See also Tr.
Vol. 1 at 32:7-37:7, 82:13-85:11 (Paul); Tr. Vol. 3 at 414:15-415:23
(Doe) (noting risks of hysterotomy and hysterectomy). But see Tr. Vol. 9
at 1517:2-11 (Cook, recommending hysterotomy over D&E).
c. Lack of Published Studies on Intact D&E
The JPSA and CDC studies provide the latest available statistics from
long-term and large-scale studies on abortion safety comparing D&E to
induction. The parties agree that relatively few studies have been
conducted on second trimester abortions generally, and none have been
published on the subject of intact D&E. See, e.g., Tr. Vol. 5 at
719:19-720:3 (Creinin); Tr. Vol. 6 at 905:19-908:20 (Bowes).
Furthermore, the few studies that have been published have not been on
the same scale or held the same authoritative value as the JPSA and CDC results.*fn25
Because there is no significant authoritative data about intact D&E,
while extensive authoritative data about the safety of other methods of
second trimester abortion exists, the government presented evidence that
physicians have a responsibility to use those other methods until such
time that intact D&E is proven to be safe. See, e.g., Tr. Vol. 6 at
922:20-924:6 (Bowes); Tr. Vol. 8 at 1237:3-1239:18, 1257:9-1258:12
Plaintiffs, on the other hand, presented evidence that the study of
abortion poses various methodological difficulties. As an initial
matter, since abortion is so safe in general, a large number of women
would need to be included in any study to make any meaningful findings on
safety. Furthermore, since so few women have second trimester abortions,
a large number of institutions would be required to participate in any
study to ensure that sufficient numbers of women could be included. See
Tr. Vol. 1 at 89:4-90:11 (Paul); Tr. Vol. 5 at 705:4-707:19 (Creinin,
noting that any study would require over 5000 women in each group to be
statistically significant). Plaintiffs note that it is also very
difficult to secure sufficient funding or cooperation for studies
relating to abortion funding, given the controversial nature of the
subject.*fn26 Tr. Vol. 5 at 780:8-13 (Creinin). Even if women who are willing to participate in studies can be
located, there are further problems related to obtaining their consent.
Many women have strong preferences as to which abortion procedures they
wish to undergo, and thus it is difficult to achieve consent for true
randomization of abortion methods, as would be required to conduct a full
prospective study. Tr. Vol. 5 at 703:19-709:24 (Creinin). More
significantly, because doctors cannot tell whether an intact D&E is
feasible until the procedure has begun, it is difficult to control the
number of procedures included in the studies. Tr. Vol. 3 at 441:22-442:9
(Doe). Under these circumstances, plaintiffs conclude that the principles
of evidence-based medicine permit doctors to continue performing intact
D&Es in their best medical judgment, even in the absence of studies on
the topic. Tr. Vol. 1 at 90:13-17 (Paul).
d. Chasen Study
While there are no published studies on the safety of intact D&E, one
study by Dr. Stephen Chasen comparing modern methods of intact D&E with
D&E by disarticulation is currently in press. Exh. 19.*fn27 The parties
strongly dispute the interpretation of Dr. Chasen's findings.
i. Methodology and Results of Study
Dr. Chasen conducted a retrospective cohort study examining the medical
records of 383 women who had second trimester abortions after 20 weeks of
pregnancy at the Cornell Weill Medical Center from 1996 to June 2003. Of
those women, 120 underwent an intact D&E, and 282 underwent a D&E by
disarticulation.*fn28 Exh. 29. See generally Exh. 29, Tr. Vol. 11 at
1735:1-1754:17 (Chasen); see also Vol. 5 at 805:16-811:17, 850:22-864:17
The fetuses of the women who underwent an intact D&E were at a
median of 23 weeks gestation, which was two weeks more advanced than the median gestational
age of the fetuses of the women who underwent a D&E by disarticulation
(21 weeks). The median blood loss suffered by each group was identical
(100 mL), and the median procedure time was identical as well (22
minutes). The blood loss for the D&E by disarticulation group ranged
from 40 mL to 1500 mL, and the procedure time ranged from 6-60 minutes.
The blood loss for the intact D&E group ranged from 20 mL to 1200 mL,
and the procedure time ranged from 6-45 minutes. Exh. 29.
Of the 383 women, 19 suffered complications, with equal frequency in
both groups. However, the six complications observed in the intact
D&E group were considered relatively minor (4 superficial lacerations
and 2 follow-up curettages), and none were major (defined as requiring
admission to an intensive care unit). In the group undergoing D&E by
disarticulation, most injuries were minor, but three major complications
occurred: one amniotic fluid embolus, where amniotic fluid is introduced
into the woman's bloodstream; one case of sepsis, or generalized
infection throughout the woman's system; and one perforated uterus. Exh.
29. Both parties concede that these complications are generally very
rare, and that these results thus cannot be given much weight. Tr. Vol.
11 at 1746:9-1747:10 (Chasen); Tr. Vol. 7 at 1104:7-1105:18 (Sprang).
The study also followed 62 of these women into subsequent pregnancies,
when they obtained their prenatal care at the Cornell Medical Center. Of
these 62 women, only 4 experienced preterm birth, 2 who had undergone a
D&E by disarticulation and 2 who had undergone an intact D&E. The two
women who had undergone intact D&E and subsequently experienced early
labor were both previously considered at high risk for premature labor,
and were able to continue their subsequent pregnancies significantly
longer than their previous ones. Tr. Vol. 5 at 810:21-24 (Westhoff); Tr.
Vol. 11 at 1749:16-1751:17 (Chasen).
The article concludes that intact D&E and D&E by disarticulation are
equally safe procedures, and that the decision of which technique to use
should be left to the performing physician's medical judgment. The
article also concludes that intact D&E does not appear to have adverse
effects on maternal health. Exh. 29. ii. The Parties' Interpretations of the Chasen Study
Plaintiffs interpret this study as indicating not only that intact D&E
is safe, but that it is in fact safer than D&E by disarticulation. For
instance, the women undergoing intact D&E had more advanced
pregnancies, which normally would indicate a higher likelihood of
complications, since abortions become more difficult to perform as
gestational age increases. However, the complication rates were identical
for intact D&Es at 23 weeks gestational age and D&Es by disarticulation
at 21 weeks gestational age, which plaintiffs argue permits the inference
that the intact D&E is in fact safer than D&E by disarticulation. Tr.
Vol. 5 at 808:11-810:9 (Westhoff); Tr. Vol. 11 at 1747:11-1748:18
(Chasen); see also Jr. Vol. 6 at 945:22-946:4 (government witness Bowes,
The government, in contrast, notes that any arguments concerning the
increased safety of the intact D&E due to the shorter time of the
procedure and smaller amounts of blood loss are contradicted by the
findings which show that on average, an intact D&E takes exactly as
much time as a D&E by disarticulation. Tr. Vol. 11 at 1807:2-1811:18
(Chasen, agreeing with these findings).
Plaintiffs emphasized that while the median blood loss and procedure
times were identical for intact D&E and D&E by disarticulation, the
maximum values for these factors were significantly lower for the intact
D&E group. This indicated to certain of plaintiffs' experts that the
most difficult intact D&Es take less time and result in less blood loss
than the most difficult D&E by disarticulation, and therefore they
believed this indicated the greater safety of the intact D&E procedure.
Tr. Vol. 5 at 860:20-862:13 (Westhoff).
The government presented evidence in response that the Chasen study,
while useful as an initial study of intact D&E, was too small in
scale to support any conclusions.*fn29 Tr. Vol. 6 at 915:20-920:25 (Bowes), Tr. Vol. 7 at 1101:8-1108:13 (Sprang). The
government noted, for example, that after peer review of the article, Dr.
Chasen agreed to add language noting that the study's retrospective
nature and the relatively small sample size made it difficult to draw
more generalized conclusions about the safety of the procedure. Tr. Vol.
11 at 1810:12-1814:18 (Chasen). This difficulty applies both to the
findings as to safety, as well as to the findings on subsequent preterm
labor, which the government notes is further flawed in that follow-up
care could be reviewed only for patients who returned to the Cornell
Medical Center. Tr. Vol. 11 at 1793:23-1794:22 (Chasen, on cross); Tr.
Vol. 6 at 919:12-25 (Bowes).
e. Risks of Intact D&E
The government argues that intact D&E is a dangerous procedure that is
less safe than any other second trimester abortion method and that it
poses grave risks to women's health. See, e.g., Tr. Vol. 7 at
1079:1-1081:5 (Sprang). But see Tr. Vol. 6 at 974:21-976:7 (Bowes,
stating that intact D&E does not appear to pose any long-term risks to
women's health). Plaintiffs take a contrary position and refute the risks
asserted by the government. These risks primarily include the following.
i. Cervical Incompetence
The government presented evidence that the use of 25-30 osmotic
dilators could potentially overstretch the cervix and lead to a condition
called "cervical incompetence," a condition where the cervix painlessly
dilates during a subsequent pregnancy and causes either miscarriage or
preterm delivery. Tr. Vol. 7 at 1081:14-1082:8 (Sprang); Tr. Vol. 9 at
1413:4-1415:5 (Cook). In support of this position, the government relies
on an October 2001 study by Dr. Laurence Henriet published in the British
Journal of Obstetrics and Gynaecology, which studied 12,000 women in
France and concluded that abortion increased the risk of preterm
Plaintiffs dispute the methodology of the Henriet study as "awful,"
Tr. Vol. 5 at 755:25 (Creinin), noting that the study was purely
retrospective and based on subjective self-reporting, which could have notably skewed the results, since women who experienced
preterm delivery would be predisposed to recall previous abortions at a
higher rate than those who did not (a phenomenon known as "recall
bias").*fn30 The study also was designed to compare women who had had
abortions to women who had not had abortions. Plaintiffs presented
evidence that these two groups are irrelevant to a study whose aim is to
compare women who have undergone one method of abortion (intact D&E)
with women who have undergone another method of abortion. Tr. Vol. 5 at
780:15-784:2 (Creinin); Tr. Vol. 9 at 1493:22-1496:25 (Cook).
Plaintiffs also question the relevance of the results to the issues at
hand. For instance, 96% of the abortions reported in the study were
performed in the first trimester. Data regarding those abortions does not
relate to the question whether intact D&E abortions in the second
trimester cause cervical incompetence, especially since most first
trimester abortions do not involve the use of osmotic dilators or
prostaglandin drugs but rather mechanical dilators, which are known to
cause more trauma to the cervix. Plaintiffs also note that "preterm
delivery" is different from "cervical incompetence," in that cervical
incompetence can cause preterm delivery, but not all preterm deliveries
are caused by cervical incompetence. Tr. Vol. 5 at 780:15-784:2
(Creinin); Tr. Vol. 7 at 1144:22-1147:7 (Sprang, on cross).
Plaintiffs cite instead a 2002 article by Dr. Robin Kalish from the
American Journal of Obstetrics and Gynecology, which concluded that
second trimester D&Es did not cause an increased risk of miscarriage
or preterm birth. Exh. 17 (study co-authored by Chasen). This paper was a
retrospective case series, which followed 96 women who subsequently
became pregnant after a second trimester D&E. The paper also noted
that increased cervical dilation in the D&E actually decreased the
likelihood of miscarriage or preterm birth in the second trimester,
theorizing that increased dilation reduced the risk of cervical trauma
when removing the fetus. Tr. Vol. 11 at 1726:13-1735:2 (Chasen); see
also Tr. Vol. 4 at 692:3-691:17 (Creinin testimony on study); Exh. 29 (Chasen study discussed above,
similarly concluding no increased risk of preterm birth after intact
D&E). See also Jr. Vol. 8 at 1282:5-1283:17 (Shadigian, admitting use of
serial laminara was "not unsafe").
The government notes in response that the fact that these studies
involved a relatively small number of participants, and followed only a
limited number of women who returned to the same hospital where the
abortion was performed for care in their subsequent pregnancies, might
have skewed the results. See, e.g., Tr. Vol. 6 at 919:8-25 (Bowes); Tr.
Vol. 7 at 1105:20-1106:23 (Sprang).
Plaintiffs also cite the AMA task force's report on second trimester
abortion, which concluded that there was insufficient medical research or
evidence to conclude that dilation increases the risk of cervical
incompetence, and noted that the government's witness Dr. Sprang was a
member of that task force. Tr. Vol. 7 at 1147:8-1148:6 (Sprang). Also,
practitioners report that they have not seen in their practices any
increased incidence of cervical incompetence for subsequent pregnancies
after intact D&E. Tr. Vol. 11 at 1734:2-25 (Chasen).
The government also claimed, and plaintiffs acknowledged, that the
insertion of the laminaria could potentially rupture the amniotic sac,
introduce bacteria from the vagina into the uterus, and increase the risk
of a woman's chance of infection. Tr. Vol. 7 at 1082:19-1085:17
(Sprang); see also Tr. Vol. 4 at 626:3-7 (Broekhuizen). Plaintiffs'
experts, testified, however, they have never encountered this actual
situation except in cases where the amniotic sac had already ruptured,
which predisposes the uterus to infection. See, e.g., Tr. Vol. 11 at
iii. Injuries from Podalic Version
Not all doctors perform a podalic version before commencing D&Es of
any kind, but the doctors who do stated that rotation of the fetus is
naturally effected as part of the procedure when the doctor takes hold of
a fetal extremity and begins the extraction process, for any D&E.
Furthermore, any placental separation that might occur does not pose a problem because the placenta will be removed in the extraction process in
any event, and the risk of amniotic fluid embolus is nonexistent, because
all amniotic fluid is removed from the uterus before a D&E begins. No
doctors who perform podalic version preliminary to an intact D&E
reported any of the complications discussed by the government's witness,
Dr. Sprang. See, e.g., Tr. Vol. 4 at 516:8-518:6 (Broekhuizen); Tr. Vol.
4 at 668:18-678:4 (Creinin, discussing and discounting all purported
risks); Tr. Vol. 5 at 827:19-829:1 (Westhoff). Moreover, plaintiffs note
that Dr. Sprang's citation for these complications comes directly from a
textbook on full-term delivery, where the fetus is significantly larger
than it is in the second trimester, and furthermore, that the references
to the complications were removed in subsequent editions of the
textbook. Tr. Vol. 7 at 1087:24-1089:1 (Sprang, speculating that section
of the text was removed for space considerations).
iv. Injury from Instrumentation
The government also claims that the use of the trocar or scissors to
reduce the size of the fetal head could cause injury to the woman if the
instrument slips, especially when the instruments are used blindly,
without the doctor's being able to see where the instruments are being
inserted. This appears to be based on Dr. Haskell's 1992 description of
the intact D&E procedure. The government also argues that if the fetal
head is crushed with forceps before removal, the sharp ends of the skull
fragments may pose a risk of laceration to the woman. Tr. Vol. 7 at
1089:25-1091:14 (Sprang). But see Tr. Vol. 7 at 1127:8-1128:12 (Sprang,
arguing no risk of laceration or injury if ultrasound is used).
While the plaintiffs concede that laceration by instruments used to
crush the skull or by fragments of fetal bones can pose a risk to women's
health, plaintiffs argue that intact D&E reduces the amount of risk
from such laceration. Tr. Vol. 1 at 110:25-111:17 (Paul); Tr. Vol. 2 at
271:3-16, 273:3-14 (Sheehan), Tr. Vol. 3 at 445:4-446:23 (Doe); Tr. Vol.
4 at 631:18-634:2 (Broekhuizen).
Of the testifying doctors who perform intact D&E by puncturing the
calvarium, none insert the trocar or scissors blindly; rather, they all
visualize the insertion point either directly or through ultrasound. 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). Cf. Tr.
Vol. 7 at 1136:7-14 (Sprang, agreeing that visualization would reduce
risk). Similarly, when fetal bones are crushed, the doctor takes special
care to ensure that the bone fragments are covered with the forceps when
removing them through the cervix.*fn31
Of plaintiffs' experts, only a few testified that they had ever
perforated a uterus while performing a D&E, and the ones who had, had
done so only when performing a D&E by disarticulation. No expert had
perforated a uterus while performing an intact D&E. See Tr. Vol. 1 at
73:13-18, 123:12-125:25 (Paul); Tr. Vol. 2 at 195:3-12 (Sheehan); Tr.
Vol. 5 at 800:5-12 (Westhoff); Tr. Vol. 11 at 1755:24-1756:6 (Chasen).
f. Maternal and Fetal Health Concerns
Finally, plaintiffs presented evidence that for certain women or
certain fetuses, an intact D&E may be the best option for their
particular health situation. See, e.g., Tr. Vol. 11 at 1762:8-25 (Chasen,
noting that intact D&E is the quickest and therefore the safest
procedure for these women); see also Tr. Vol. 6 at 943:4-944:19
(government witness Bowes, testifying that doctors should be allowed to
use their judgment in determining whether any particular procedure is in
a patient's best interest, including intact D&E).
The government presented evidence that even in those circumstances, an
intact D&E is never a physician's only option for terminating the
pregnancy, and thus the procedure is never medically necessary. The
government's position appears to be that induction is almost always a
viable option for terminating a second trimester pregnancy, and in those
rare circumstances when it is not, hysterotomy or hysterectomy would be.
Furthermore, D&E by disarticulation also remains an option for women who
would otherwise seek an intact D&E. See, e.g., Tr. Vol. 7 at
1109:19-1114:9 (Sprang); Tr. Vol. 8 at 1220:16-21 (Shadigian); Tr. Vol. 9
at 1390:3-22, 1411:22-1416:2 (Cook). i. Maternal Health
Women with uterine scars, from previous caesarean operations or other
uterine surgery, cannot be treated with prostaglandins such as
misoprostyl, because the contractions caused by these medications can
cause uterine rupture along the scar. Uterine rupture has serious
implications for a woman's future reproductive health, and can endanger a
woman's life. Accordingly, ACOG strongly discourages the use of
prostaglandins for women with uterine scars, and thus doctors ordinarily
recommend that women with uterine scars undergoing a second trimester
abortion proceed with a D&E. See, e.g., Tr. Vol. 2 at 190:14-20
(Sheehan); Tr. Vol. 3 at 410:20-413:2 (Doe); Tr. Vol. 4 at 506:2-10,
506:25-507:20 (Broekhuizen); Tr. Vol. 5 at 712:9-714:4 (Creinin); Tr.
Vol. 6 at 947:4-13 (Bowes).
The government presented evidence that an induction is still possible
for such women, as long as milder prostaglandins or different labor
inducing drugs are administered and she is well-monitored, but concedes
that a risk of uterine rupture still exists. Tr. Vol. 9 at 1413:9-1436:5
(Cook). But see Tr. Vol. 3 at 434:13-435:10 (Doe, noting that other drugs
are less likely to induce labor successfully); Tr. Vol. 8 at
1285:17-1286:13 (Shadigian, admitting that other drugs may cause uterine
Some pregnant women suffer from bleeding-related disorders that render
the blood loss inherent in a two-day induction procedure risky to their
health. For instance, women with bleeding disorders, on blood-thinning
medications, or suffering from renal disease have a propensity to bleed
excessively, which makes any extended procedure causing blood loss
dangerous. Analogously, pregnant women diagnosed with preeclampsia, a
rare and potentially fatal condition caused by the pregnancy itself,
often lose blood volume as their blood thickens and begins to clot, so
even a slight loss of blood can have drastic effects on their health.
Women with cardiac or pulmonary disease, including asthma, also cannot
tolerate excessive blood loss, because it causes excessive strain on
their systems. See, e.g., Tr. Vol. 1 15:14-17:18 (Paul); Tr. Vol. 3 at
383:17-22, 388:3-390:6 (Doe); Tr. Vol. 8 at 1286:14-1287:11 (Shadigian). Thus, plaintiffs presented evidence that
women with these health considerations who are undergoing second
trimester abortions are better served by the quicker D&E procedure, and
particularly by intact D&E. See, e.g., Tr. Vol. 11 at 1763:1-20
In response, the government presented evidence that with any surgery,
there is the risk of traumatic injury, which could cause extreme blood
loss as well, and that on balance, it is safer to treat such a woman in
the hospital, where her blood loss can be monitored and transfusions can
be given if necessary, than in an outpatient setting where there is not
likely to be emergency care immediately available. Tr. Vol. 9 at
1391:10-20, 1420:22-1428:2 (Cook); see also Tr. Vol. 8 at 1223:8-1224:2
(Shadigian, recommending induction or hysterotomy for preeclampsia). But
see Tr. Vol. 9 at 1477:12-1478:16 (Cook, conceding that intact D&E could
be performed in a hospital setting).
Certain women develop the condition of placenta previa in pregnancy,
where the placenta grows over the cervix and thus blocks the cervical
opening. The parties agree that an induction cannot be performed in this
circumstance because the fetus cannot pass through the blocked opening.
Tr. Vol. 3 at 410:12-19 (Doe); Tr. Vol. 4 at 506:14-24 (Broekhuizen).
Plaintiffs presented evidence that in this circumstance, the placenta
should be removed or pierced in a D&E. Tr. Vol. 11 at 1768:5-21
The government, however, takes the position that a D&E is not
indicated in this circumstance. The government witnesses would instead
recommend that a hysterotomy be performed, even though the hysterotomy is
significantly riskier than a D&E and has serious implications for the
woman's future reproductive health. Tr. Vol. 9 at 1428:3-1429:10 (Cook,
stating that in later gestational ages, hysterotomy or caesarean delivery
is the way to deliver a baby with placenta previa).
Women sometimes develop uterine oramniotic infections during pregnancy,
and if these infections are not treated, they can lead to sepsis, or a
generalized blood infection, which can spread throughout the body. If that happens, the uterus
must be emptied immediately. Plaintiffs presented evidence that an
induction would not be appropriate in that circumstance because the
procedure takes too long and the woman's health could be compromised
while waiting for the fetus to deliver. Tr. Vol. 11 at 1766:19-1767:5
In response, the government presented evidence that if an infection is
present, the D&E surgery could potentially spread the infection if
the uterus were perforated, and that induction would be acceptable as
long as the woman was closely monitored over the two-day period. Tr. Vol.
9 at 1400:12-1401:1, 1429:14-1430:16 (Cook); see also Tr. Vol. 8 at
1224:3-22, 1266:23-1268:10 (Shadigian).
The government witnesses testified that if time was of the essence and
a pregnancy needed to be terminated immediately, an intact D&E would
take too long as well, since the cervix must be prepared over a two day
period, and that a hysterotomy or hysterectomy would be the quickest way
to proceed. Tr. Vol. 8 at 1227:6-12 (Shadigian); Tr. Vol. 9 at
1436:12-1437:12 (Cook). Plaintiffs agreed that D&Es in general require
several hours of cervical preparation, though in certain situations, when
misoprostyl and osmotic dilators are used, the cervix can be dilated in
as little as 90 minutes. See, e.g., Tr. Vol. 1 at 59:9-11 (Paul).
Finally, many women do not wish to undergo inductions, primarily for
psychological and emotional reasons. Some women do not wish to go through
the physical and psychological pain of labor if the pregnancy is to be
terminated, especially if the termination is for medical reasons, and
some women also prefer having a quicker outpatient procedure, rather than
checking into a hospital as is required for an induction. See, e.g., Tr.
Vol. 1 at 91:17-92:1 (Paul), Tr. Vol. 3 at 457:1-458:10 (Doe); Tr. Vol. 4
at 503:22-504:3 (Broekhuizen); Tr. Vol. 5 at 802:11-803:19 (Westhoff),
Tr. Vol. 11 at 1773:23-1776:10 (Chasen). But see Tr. Vol. 8 at
1277:22-1278:3 (Shadigian, stating that labor pains from induction should
not be characterized as "traumatic"). ii. Fetal Anomalies
Fetuses sometimes have anomalies that can create contraindications for
induction. Examples of this include hydrocephaly, ascites, or non-immune
hydrops, where fluid collects in the fetal head, abdomen, or extremities
and grossly distends those portions of the fetal body. In those
circumstances, the fetal body may be so distended that it cannot be
removed from the uterus unless reduced in size. Tr. Vol. 4 at 499:9-22
(Broekhuzien); Tr. Vol. 9 at 1446:16-1447:7 (Cook). These conditions can
be, but are not always, fatal to the fetus. Tr. Vol. 7 at 1114:5-9
(Sprang); Tr. Vol. 9 at 1447:8-1448:5 (Cook).
If a D&E is performed, many doctors will remove all portions of the
fetus from the uterus except for the oversized portion, and then take a
deliberate action to reduce the size of the distended body part so that
it too can be removed. All parties agree that this action could violate
the Act if it caused fetal demise. Plaintiffs argue that this type of
intact D&E is the best way to terminate a pregnancy where these
conditions are present. Tr. Vol. 11 at 1759:8-1760:22 (Chasen).
The government argues that doctors could instead use a hypodermic
needle to aspirate the fluid from the distended body part before the
abortion is performed and proceed with either an induction or D&E by
disarticulation. Tr. Vol. 7 at 1113:21-1114:9 (Sprang); Tr. Vol. 9 at
1446:16-1447:7 (Cook). Plaintiffs rebut this argument by stating that in
some circumstances, fluid would refill the body part before the abortion
could be completed, which would render aspiration fufile, and
furthermore, that there is no reason to subject the woman to an
additional injection and the concomitant risks associated with it when an
intact D&E procedure achieves the same end more efficiently. Tr. Vol. 11
at 1759:23-1762:7 (Chasen).
The government responds by arguing that if an injection is
contraindicated, a hysterotomy or hysterectomy could be performed instead
to terminate the pregnancy. The government also argues that the induction
could be completed to the point at which the fetal body part lodges in
the cervical os, and then "Duhrssen's incisions" of approximately 1-2 cm
in length could be made in the cervix to widen the os sufficiently for
the fetus to pass. Plaintiffs contend that Duhrssen's incisions are
extremely risky to the woman's future fertility, while the government argues that when properly performed, they do not represent any
serious risk. Compare Tr. Vol. 4 at 533:18-534:24 (Broekhuizen, stating
that Duhrssen's incisions not appropriate to use in an induction); Tr.
Vol. 11 at 1787:3-4 (Chasen) with Tr. Vol. 9 at 1509:20-1513:25 (Cook).
6. Fetal Demise
The Act does not proscribe intact D&Es performed after the death of
the fetus. Thus, the government contends that if an intact D&E were ever
necessary, the doctor could simply effect fetal demise before performing
the procedure to escape liability under the Act. See, e.g., Tr. Vol. 7 at
Plaintiffs argue that effecting fetal demise before a D&E is
unnecessary, and doctors should not be required to subject their patients
to an additional medical procedure that poses some risk and no benefit to
the patient solely to protect themselves from liability. Tr. Vol. 2 at
291:5-20 (Drey); Tr. Vol. 5 at 727:22-728:4 (Creinin); Tr. Vol. 5 at
819:20-820:5 (Westhoff). See also Tr. Vol. 2 at 334:19-335:14 (Drey)
(stating that it would be "a very painful decision" for her to begin
using digoxin to avoid liability under the Act because "I wouldn't even
have any idea how to consent a patient if I am giving digoxin for my
benefit as a provider . . . I wouldn't be saying that this is for her
clinical benefit . . . It is for me. I would feel very much forced to do
something to a patient that wasn't for her. That would just really be
awful for me.").
a. Injection Techniques
Fetal demise can be effected in a number of ways, but the methods
primarily discussed at trial were the injection of either digoxin or
potassium chloride ("KCI") through the woman's abdomen and either into
the amniotic fluid ("intra-amniotically") or directly into the fetus'
heart ("intra-cardiac" or "intra-fetal injection"), both of which are
toxic to the fetus.
Digoxin can be administered either intra-amniotically or through an
intra-cardiac injection, while KCI can only be administered
intra-fetally. Tr. Vol. 2 at 295:9-25 (Drey). It is relatively simple to
inject digoxin intra-amniotically, but intra-amniotic injection is not
always effective in causing fetal demise. An intra-cardiac injection of
either KCI or digoxin is virtually 100% effective, but requires more
skill to perform, and thus is typically performed only by maternal-fetal medicine obgyn specialists. Tr. Vol. 2 at 197:15-198:7,
243:25-245:1 (Sheehan); Tr. Vol. 2 at 312:7-24 (Drey); Tr. Vol. 6 at
964:18-968:17 (Bowes); Tr. Vol. 11 at 1780:20-1782:24 (Chasen).
After fetal demise, the fetal tissue rapidly undergoes a number of
physiological changes, so by the time the D&E begins, the tissue is much
softer and will disarticulate more easily (known as tissue
"friability"). Tr. Vol. 2 at 243:16-24 (Sheehan); Tr. Vol. 2 at 341:12-25
(Drey); Tr. Vol. 8 at 1284:19-1285:3 (Shadigian). This process, known as
"maceration," also renders the fetal tissue unusable for autopsy or
diagnostic testing. Tr. Vol. 11 at 1758:7-19, 1781:25-1782:5 (Chasen).
Some doctors effect fetal demise routinely as part of their D&E
practice, while others have only done so upon direct request by the
patient. Some doctors report that some of their patients are strongly
opposed to causing fetal demise before the procedure begins, while other
doctors indicate that their patients strongly prefer that an injection be
given. Compare Tr. Vol. 2 at 196:5-20, 242:12-243:2 (Sheehan, stating
that all patients accept digoxin injection) with Tr. Vol. 2 at 342:9-15
(Drey, stating that some patients find digoxin upsetting); Tr. Vol. 3 at
418:2-15 (Doe, stating that patients generally do not want fetal demise
effected upon discussion); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen,
saying that opinions on this issue differ sharply among his patients).
b. Risks of Procedure
As with any medical procedure, there are risks associated with these
injections, which include bleeding and infection. While these risks are
minimal, they can have significant ramifications for women with certain
medical conditions, such as HIV or hepatitis. The injection itself is
also uncomfortable, and some women experience nausea or vomiting
afterwards. Tr. Vol. 2 at 197:2-14 (Sheehan); Tr. Vol. 2 at 314:14-329:20
(Drey); Tr. Vol. 3 at 417:6-419:19 (Doe); Tr. Vol. 5 at 728:5-19
(Creinin); Tr. Vol. 6 at 968:25-969:6 (Bowes).
After fetal demise is effected, some women will also spontaneously
miscarry the fetus before surgical extraction begins, which can be
distressing, particularly if the woman is not in the hospital at the
time. Tr. Vol. 2 at 198:12-13 (Sheehan); Tr. Vol. 2 at 296:7-22 (Drey). Finally, during the procedure, if the fetus has already died, the
increased friability of the tissue can increase the risk of leaving fetal
parts in the uterus and subsequent infection. Tr. Vol. 2 at 341:23-25
(Drey); Tr. Vol. 5 at 820:6-822:4 (Westhoff, noting that she encountered
this situation shortly after the Act was passed and she was using KCI for
the first time, and believes she may have caused a uterine perforation as
a result of the softened tissue).
c. Scientific Studies
Dr. Drey has conducted two prospective randomized studies on the safety
and efficacy of intra-amniotic injections of digoxin, and has concluded
that while digoxin is generally safe to use, it did not improve the
performance of D&E abortions in any significant way. See generally Tr.
Vol. 2 at 291:5-20 (Drey).
For the safety aspect of the study, Drey followed eight women who
received intra-amniotic digoxin injections before their second trimester
abortions and monitored their reactions to the drug. The study concluded
that digoxin was generally safe for use in women for whom digoxin was not
contraindicated. Exh. 34 (article); Tr. Vol. 2 at 305:4-314:14 (Drey).
Drey and her colleagues then studied the efficacy of the drug in
facilitating D&E abortions. In that study, the doctors followed 126
women, 62 of whom received digoxin injections before their abortions and
64 of whom did not. The doctors performing the abortions could not tell
the differences between the groups, and the study found no benefit to
either the doctors or the women from having the injection. Women who
received digoxin injections reported significantly higher incidents of
vomiting. The report also demonstrated that intra-amniotic injections
failed to cause fetal demise in 8% of the women. Exh. 30 (article); Tr.
Vol. 2 at 314:14-329:20 (Drey).
The article on the efficacy of digoxin concluded that "[digoxin] did
not decrease procedure time, difficulty, or pain compared to placebo,"
and thus recommended its use only when a patient specifically requests
fetal death before the procedure begins. Exh. 30. Accordingly, UCSF
discontinued the routine use of digoxin in second trimester abortions.
Tr. Vol. 2 at 328:24-329:11 (Drey). d. Contraindications
Some women have contraindications for these injections. For example,
women with heart conditions should not receive digoxin injections because
if the digoxin inadvertently enters the woman's bloodstream, it could
cause major heart damage. Women who have low amniotic fluid levels or who
have had a rupture of the amniotic sac cannot be monitored with
ultrasound or receive intra-amniotic injections. Injections are also
contraindicated for morbidly obese women, if the hospital is unable to
provide needles long enough to inject into the woman's uterus. Tr. Vol. 2
at 308:10-3:10:18 (Drey); Tr. Vol. 6 at 964:10-17, 968:21-24 (Bowes);
Tr. Vol. 11 at 1781:10-24 (Chasen).
e. Cutting of Umbilical Cord
The other method of causing fetal demise discussed at trial was the
cutting of the fetal umbilical cord at the beginning of the D&E
extraction procedure, which cuts off the fetal blood and oxygen supply.
The cord is not always accessible to the doctor, though, and once the
cord is cut, it can take up to five to ten minutes for fetal demise to
occur. Tr. Vol. 7 at 1119:12-20 (Sprang); Tr. Vol. 11 at 1782:6-21
7. Fetal Pain
Finally, the government presented testimony on the issue of fetal pain,
in support of the congressional finding that fetuses do feel pain. There
is no consensus of medical opinion on the issue.
The fetus develops the basic elements and connections of a nervous
system by approximately 20 weeks after conception.*fn32 Fetuses at this
age have been observed to respond to outside sensory stimuli such as
sound, light, and smell, and when fetuses undergo stressful stimuli, such
as fetal surgery or fetal blood transfusions, the fetus releases stress
hormones and blood flow to the brain increases, just as it does for
newborn infants and adults. See generally Tr. Vol. 10 at 1570:1-1614:11
(Anand). However, the fact that the fetus responds to stimuli does not
necessarily mean that it feels pain. For the fetus to interpret stimuli
as pain requires not only that the fetus respond to stimuli, but also
that when the stimulus reaches the brain, the brain interprets it as
unpleasant or painful.*fn33 In other words, the fetus must have
developed some form of consciousness to be said to "feel pain." Tr. Vol.
10 at 1626:10-1627:16 (Anand).
The only way that an outside observer can determine whether any entity
feels pain is if the entity communicates distress to the observer. The
parties agree that fetuses are unable to communicate, so it is impossible
to determine conclusively if the stress responses seen in fetuses in fact
translate into an actual pain response, and thus no studies on fetal pain
suffered during abortions have been conducted. Both parties agreed that
as a result, much of the debate on this issue is based on speculation and
inference. Tr. Vol. 10 at 1629:24-1630:24 (Anand).
b. Scientific Debate
i. Early Development of Pain
One group of physicians believe that fetuses feel intense pain starting
as early as 22 weeks Imp. These physicians argue that at this point,
since the entire nervous system has developed and has connected to the
brain, the fetus can be considered to have developed consciousness, and
is thus fully able to feel pain. These physicians argue further that
since the last part of the nervous system to develop is the nervous
system's inhibitory mechanisms, which permit the modulation or blocking
of pain impulses, fetuses at this age feel intense pain, even more so
than infants or adults. Tr. Vol. 10 at 1570:1-1614:11 (Anand); Tr. Vol. 7
at 1120:4-10 (Sprang).
These physicians admit that they have no way of conclusively
determining whether this hypothesis is true, but note that fetuses in
this age range often demonstrate shifting patterns of brain wave activity
in response to stimuli, much like sentient infants and adults do. They
also argue that empirically, fetuses at this age are observed to recoil
from outside stimuli, such as needles, that are introduced into the womb. Tr. Vol. 7 at 1046:23-25
(Sprang); Tr. Vol. 10 at 1583:14-1586:5, 1618:1627:7 (Anand); Tr. Vol. 11
at 1823:16-1824:20 (Chasen).
Physicians who ascribe to this school of thought argue that the process
of intact D&E, where the skull is collapsed, causes the fetus extreme
pain. These doctors also believe that a D&E by dismemberment would be
excruciatingly painful for the fetus, and that even a needle injection of
digoxin or KCI would cause the fetus pain as well. Tr. Vol. 10 at
1605:16-1608:15, 1666:16-1668:7 (Anand).
ii. Later Development of Pain
Other physicians believe that the fetus does not develop full
consciousness until approximately 26 weeks Imp at the earliest, citing a
study conducted by the British Royal College of Obstetricians and
Gynecologists, which indicated that the nervous system was not fully
integrated until that time. These physicians argue that consciousness
cannot be said to be based on an on/off model and instead, should be seen
as existing in gradations, so that fetuses before 26 weeks have
rudimentary consciousness but not the full consciousness which would
enable them to process stimuli as pain. Tr. Vol. 5 at 722:8-727:21
These physicians also believe that fetuses cannot be compared to
infants or even premature infants, since the birth process and the lack
of dependency on the mother makes infants physiologically different from
fetuses in utero. While certain physiological markers may look similar,
it is possible that the fetal brain interprets these markers differently
than it would if the fetus was entirely delivered. Furthermore, these
physicians note that physiological markers such as a rise in stress
hormones may not necessarily be correlated with the sensation of pain
even in adults, so it is impossible to determine what, if anything, the
fetus feels in response to these physiological events. Tr. Vol. 10 at
1614:13-1668:8 (Anand, explaining opposing position).
C. Findings of Fact
Having reviewed the trial evidence, the court finds as follows.
1. Credibility of Witnesses
The court found all of the plaintiffs' experts not only qualified to
testify as experts, but credible witnesses based largely on their vast experience in abortion
However, of the four government witnesses who were qualified as experts
in obgyn, all revealed a strong objection either to abortion in general
or, at a minimum, to the D&E method of abortion. The court finds that
their objections to entirely legal and acceptable abortion procedures
color, to some extent, their opinions on the contested intact D&E
Dr. Sprang testified that he "wouldn't be comfortable actually taking
the life of the fetus." In his "practice, if patients want to have an
abortion, they are referred to abortion providers." Tr. Vol. 7 at
1060:6-7 (Sprang). Dr. Sprang also testified that he felt so strongly
regarding the benefits of induction because it is a more "physiologic"
process with less "instrumentation" to D&E post-20 weeks that he would
not even discuss D&E as an option with his patients. Id. at
1122:20-1123:1. This is in spite of the fact that he admits that post-20
weeks, D&E and induction are comparably safe. Id. at 1124:9-10.
Dr. Shadigian is a member of AAPLOG, the American Association of
Pro-Life Obstetricians and Gynecologists, and likewise, will not
personally perform an abortion on a previable fetus that has not already
died unless "the woman is so sick that the only way she is going to
survive is to have the pregnancy ended." Tr. Vol. 8 at 1210:6-21
(Shadigian). Dr. Bowes similarly testified that he would not personally
perform an abortion even to save the life of one of his patients unless
he believed that there was at least a 50% likelihood that she would die
absent the abortion even if the pregnancy was the result of rape
or incest. Tr. Vol. 6 at 977:1-12 (Bowes).
Additionally, Dr. Cook testified that because of his beliefs, he will
not perform abortions for "elective" reasons. Tr. Vol. 9 at
1353:25-1354:2 (Cook). Like the other government witnesses, Dr. Cook
testified that he strongly prefers inductions because he believes that
they are "more physiologic." Id. at 1513:5-1514:25. However, the strength
of Dr. Cook's preference for induction is not supported by the medical
evidence, and there appear to be several circumstances under which Dr.
Cook would utilize induction, or an even less safe alternative,
hysterotomy, when the medical evidence and literature suggest that the
safest procedure is D&E.*fn34 The court also has some misgivings regarding Dr.
Cook's credibility based on his extremely equivocal and elusive testimony
regarding the medical necessity of D&E under certain circumstances.*fn35
Finally, the court notes that Dr. Anand, the government's expert
witness on the issue of fetal pain, is not an anesthesiologist,
neurologist, obstetrician, or maternal-fetal medicine specialist. Anand
is a pediatrician who has conducted research on pain in general, focusing
primarily on infants. Tr. Vol. 10 at 1540:6-1568:14 (Anand). Thus, Anand's
opinions on fetal pain as they relate to fetal development have been given
no more weight than the testimony of other obstetricians and
maternal-fetal medicine experts, who reviewed the same material and
concluded that fetal consciousness and pain do not exist until at least
26 weeks. See, e.g., Tr. Vol. 3 at 419:20-420:4 (Doe); Tr. Vol. 5 at
2. Findings of Fact Regarding Relevant Abortion Procedures Both D&E
and Induction are Safe Procedures
Both D&E and induction are safe procedures, with extremely low
rates of morbidity (medical complications) and mortality. Between the
two, however, the studies consistently show that D&E is as safe or
even significantly safer than induction, and both procedures are greatly
safer than either hysterotomy or hysterectomy.
Intact D&E is a Variant of the D&E
Intact D&E is not a separate procedure, but rather, simply a variant
of the established D&E technique. While doctors cannot always predict beforehand whether a
D&E abortion will proceed by disarticulation or through an intact
extraction, the record is clear that some doctors may prefer to perform
an intact extraction if at all possible.
Intact D&E v. Induction and Other Abortion
D&E, including intact D&E, presents significant medical benefits over
an induction, hysterotomy, or hysterectomy. A D&E, including an intact
D&E, takes significantly less time than an induction, and to the extent
that up to 10% of inductions require a subsequent D&E to remove
unexpelled fetal parts, surgical procedures are not necessarily avoided
in an induction. Moreover, other benefits to D&E, including intact
D&E, include a reduced exposure to risks and maternal complications
associated with induction abortions, including uterine rupture and
infection, and a decreased risk of blood loss and infection and
complications arising from unexpelled fetal parts.
A D&E, including an intact D&E, also does not require a woman
to undergo labor. For this reason, most women strongly prefer a D&E
abortion. Moreover, the record is clear that some individual women, for
health reasons, cannot undergo an induction abortion. The court finds
that it would be unreasonable to expect women for whom inductions are
contraindicated to put their health at risk by undergoing induction,
hysterotomy, or hysterectomy. While an induction has the benefit that an
intact fetus can be obtained for autopsy or psychological grieving
purposes, an intact D&E can have the same result without requiring
women to undergo induced labor.
Intact D&E v. D&E by Disarticulation
The existing studies show that intact D&Es are at least as safe as
D&Es by disarticulation. Exh. 27 (Chasen report). While the Chasen study
indicates neither that intact D&E is in every circumstance safer than
D&E by disarticulation, nor that intact D&E is in every circumstance
less safe than D&E by disarticulation, and cannot be considered
conclusive on the issue, even the government's expert Dr. Bowes agrees
that such small-scale studies are an important first step in designing
further studies on the issue. Tr. Vol. 6 at 960:23-961:8 (Bowes,
discussing Chasen report). Thus, these preliminary results indicate the
relative safety of intact D&E, and provide valuable information for doctors in
exercising their clinical judgment.
Furthermore, the court finds that it is wholly appropriate for
doctors, in their best medical judgment, to rely on their clinical
judgment and these relatively small-scale retrospective studies in
determining, with their patients, whether they wish to perform intact
D&E abortions just as the government's experts rely on their clinical
judgment (or "intuition") in recommending induction abortions over D&E
abortions, despite the lack of studies indicating that modern induction
abortions are superior to D&Es and despite the fact that D&E remains
overwhelmingly the procedure of choice for women undergoing second
trimester abortions. Cf. Vol. 8 at 1302:15-1303:24 (Shadigian, defending
her position that induction is safest method of late second trimester
Moreover, all of the doctors who actually perform intact D&Es
concluded that in their opinion and clinical judgment, intact D&Es
remain the safest option for certain individual women under certain
individual health circumstances, and are significantly safer for these
women than other abortion techniques, and are thus medically necessary.
See also, e.g., Cain Depo. at 205:14-210:16 (ACOG policy reflecting same
finding). These doctors are all well-respected in their practices, and
their expertise in recommending and performing D&E and intact D&Es is
unassailable. As noted, the court accepts their testimony over that of
the government witnesses, who, while also well-respected and qualified to
provide testimony in general on obgyn practice and safety, do not perform
intact D&Es and who were not qualified to testify as experts on the
The evidence also demonstrates that intact D&E presents significant
safety benefits over D&E by disarticulation under certain circumstances
for the following reasons, including: (1) fewer passes are made with the
forceps and/or other instruments, resulting in a reduced risk of
lacerations to the cervix and/or uterus; (2) since the fetus is removed
either intact or largely intact, there is a reduced risk of inadvertently
leaving fetal parts in the uterus and thus a reduced risk of infection;
(3) because the fetus is removed intact or partially intact, there is a
reduced risk of injury to the woman caused by the removal of bony fetal
fragments; and (4) there may be a reduced operating time, which likewise decreases the
risks associated with blood loss and infection.
Alleged Risks of Intact D&E
There also appears to be little risk from the various elements of an
intact D&E procedure. As an initial matter, not all doctors perform all
four ACOG elements of an intact D&E, so to the extent that certain
doctors do not perform certain elements, the attendant risks are
nonexistent for their patients. In addition, no doctors who actually
perform intact D&Es have reported any of the claimed risks from podalic
version or infection caused by laminaria. Dr. Sprang, who has never
performed an intact D&E, provided testimony that may be more appropriate
in the context of a full-term birth, but it is of limited relevance to an
inquiry into the safety of intact D&E.
The government also has not shown that intact D&E increases a
woman's likelihood of cervical incompetence. While the Kalish and Chasen
studies are not conclusive, they provide strong preliminary evidence that
no correlation between the two exists. The methodological problems with
the Henriet study, as well as the fact that it primarily addresses first
trimester abortions, renders it of limited relevance to this inquiry.
On the question of uterine laceration, plaintiffs admit there is a risk
of injury caused by misplaced instruments or fetal bone fragments from
the collapsed fetal skull. However, it appears that this risk is minimal,
and it does not appear to be any greater than the risk of laceration from
D&Es by disarticulation in general. Furthermore, the physicians who
perform this procedure state that this risk is greatly minimized by the
use of ultrasound guidance and direct visualization.
The evidence shows that there is no medical benefit to causing fetal
demise before beginning a D&E procedure, including intact D&Es,
except potentially as psychological comfort to some, but not all, women.
It does not make the abortion procedure safer, easier, or quicker, and
the injection procedure itself is not without risk.
Furthermore, each method of causing fetal demise has serious drawbacks.
While most doctors can inject digoxin intra-amniotically, this method is
not always effective in causing fetal demise, which would defeat the
purpose for its use and place doctors using this method at risk of
prosecution. While intra-cardiac injection is almost always effective,
not all hospitals and virtually no clinics have access to maternal-fetal
medicine specialists to perform the injection. In addition, a number of
women will be unable to tolerate the injection process.
While cutting the umbilical cord will guarantee fetal demise, it is not
always possible to reach the cord in utero. Also, the doctor performing
the abortion would have to wait five to ten minutes before death occurred
with the woman under sedation and prepared for surgery, which would
almost double the time of the extraction procedure.
The issue of whether fetuses feel pain is unsettled in the scientific
community. However, it appears to be irrelevant to the question of
whether intact D&E should be banned, because it is undisputed that if
a fetus feels pain, the amount is no less and in fact might be greater in
D&E by disarticulation than with the intact D&E method. Tr. Vol.
10 at 1605:16-1608:15, 1666:16-1668:7 (Anand).
Intact D&E May Be Significantly Safer For Some Women Under Certain
In conclusion, the court finds that intact D&E is in fact the safest
medical option for some women in some circumstances and is significantly
safer than induction, hysterotomy, or hysterectomy for terminating a
second trimester pregnancy, and under certain circumstances, also
significantly safer than D&E by disarticulation.
However, plaintiffs have not demonstrated the existence of any
particular situation for these women for whom induction is contraindicated
in which an intact D&E would be a doctor's only option to preserve the
life or health of a woman. The government is correct that for most
women, a D&E by disarticulation could be utilized instead of induction
when contraindications for induction exist. Furthermore, plaintiffs
concede that an intact D&E abortion cannot be guaranteed before the
extraction procedure begins. A woman can request that an intact D&E be
attempted, but the doctor cannot guarantee that it will occur. See,
e.g., Tr. Vol. 2 at 190:5-7 (Sheehan), Tr. Vol. 11 at 1758:2-6 (Chasen).
D. Congressional Findings
In support of the Act, the 108th Congress made numerous findings, which
are discussed in detail below. The first fourteen findings, (1) through
(14), include Congress' interpretation of the United States Supreme
Court's decision in Stenberg, and Congress' analysis regarding (1) why it
believes that it is entitled to make factual findings contrary to those
in Stenberg; (2) the degree of deference that Congress asserts the courts
should accord its factual findings subsequently set forth in section (14)
at (A) through (O); and (3) its ultimate findings regarding the necessity
of a health exception. Sections 14(A) through (O) subsequently detail
Congress' more specific or particular factual findings pertinent to the
issue of a health exception. See Act, § 2(1)-(14); (14)(A)-(O).
1. Congressional Legal "Findings" and Interpretations
As noted, some of the "findings" made by Congress include legal
interpretations of Stenberg and other Supreme Court jurisprudence. There
is no dispute that this court reviews issues of constitutional law de
novo. Accordingly, Congress' legal conclusions and its characterization
of the Supreme Court's holding in Stenberg, and any additional legal
analysis, is not entitled to deference by this court. Nor are any of
Congress' legal conclusions, which may be disguised as factual findings,
entitled to deference by this court. However, to the extent that such
interpretations provided Congress with a framework for its factual
findings, the Court discusses those findings below and notes that many of
Congress' legal interpretations are inaccurate and mischaracterize
Supreme Court precedent.
a. The Congressional Findings Mischaracterize the Stenberg Case in
Specifically, regarding the Stenberg case, Congress, in its findings,
mischaracterizes: (1) the Supreme Court's holding regarding "undue
burden;" (2) the quantity and quality of the evidence supporting the
district court's factual findings; (3) and the Supreme Court's treatment
of the district court's factual findings. See id. at § 2(3), (5)-(8). i. Supreme Court's Holding regarding Undue Burden
First, Congress incorrectly combined the two bases for the Supreme
Court's holding in Stenberg, asserting that the Court concluded that the
Nebraska law in Stenberg posed an undue burden "because it failed to
include an exception for partial-birth abortions deemed necessary to
preserve the `health' of the mother." However, as discussed above, this
was not the basis for the Supreme Court's holding regarding the law's
undue burden on a woman's right to seek an abortion.
Contrary to Congress' assertions, Stenberg's conclusion regarding the
necessity of a health exception was distinct from its undue burden
analysis, and concerned the ban's impact not on abortion procedures as a
whole, but on a smaller group of women: those patients for whom the
banned procedure "may bring with it greater safety." Stenberg, 530 U.S.
at 937, 934 ("the State cannot prohibit a person from obtaining ['a
rarely used'] treatment simply by pointing out that most people do not
need if); see also Planned Parenthood v. Brady, 2003 WL 21383721, at *2
(D.Del. June 9, 2003) ("whether [partial-birth abortion] ban poses an
obstacle to one . . . woman or thousands does not change the
constitutional analysis" of the ban's failure to contain a health
ii. District Court Record and Findings and Supreme Court
Review of Record
Preliminary to Congress' ultimate finding that a health exception is
never medically necessary, Congress also criticized the district court's
findings in Stenberg and the Supreme Court's alleged reliance on those
findings. See Act, § 2(5)-(8). First, Congress second guessed the
Stenberg district court's findings, based not on the evidence compiled
independently by Congress, but instead based on the evidence heard by the
district court. Congress asserted that there was a "dearth of evidence in
the Stenberg trial court record supporting the district court's
findings;" and that none of the witnesses in the Stenberg case
"identified a single circumstance during which a partial-birth abortion
was necessary to preserve the health of a woman." Act, § 2(6); (14)(D).
While this court will not attempt to second guess the findings made by
the district court in Stenberg, which was in a much better position to evaluate the evidence
and the credibility of the evidence before it at the time of the trial,
this court nevertheless notes that the pertinent congressional findings
grossly mischaracterize the state of the trial evidence in Stenberg, as
reflected in the trial court's reported decisions.
Following an evidentiary hearing, the district court in Stenberg held,
based on the evidence before it, that Nebraska's partial-birth abortion
law was likely to be found unconstitutional after a trial on the merits,
and should be preliminarily enjoined. See Carhart v. Stenberg ("Carhart
I"), 972 F. Supp. 507 (D. Neb. 1997).*fn36 Subsequently, after a trial
on the merits, the district court held that the law, as applied to
plaintiff Dr. Carhart and his patients, was unconstitutional because it
posed an undue burden and was unconstitutionally vague. See Carhart v.
Stenberg ("Carhart II"), 11 F. Supp.2d 1099 (D. Neb. 1998).*fn37 In
support, it found that "[intact D&E] significantly obviates health risks
in certain circumstances," a finding that the Supreme Court, in contrast
to Congress, subsequently characterized as supported by "a highly
plausible record-based explanation of why that might be so. . . . "
Stenberg, 530 U.S. at 936-37.
The record that the Stenberg district court had before it included the
Congressional Record that existed to date, an AMA report regarding
late-term abortions, CDC data and reports, a January 1997 ACOG policy
statement regarding intact D&Es, and the testimony of six expert
witnesses, including plaintiffs' witnesses Dr. Carhart, Dr. Jane
Hodgson, the founding fellow of ACOG and an obgyn who had supervised
and/or performed at least 30,000 abortions at that time, Dr. Phillip Stubblefield, chief obgyn at the
Boston Medical Center who regularly performed abortions, Dr. Stanley
Henshaw, a director of research at the Alan Guttmacher Institute, who
held a Ph.D. in sociology and specialized in non-profit research and
writing regarding abortion data; and defense witnesses Dr. Riegel, an
obgyn and infertility expert, and Dr. Frank Boehm, the director of
obstetrics at Vanderbilt Medical Center. Carhart II, 11 F. Supp. at
1116.*fn38 Accordingly, the evidence before the district court in
Stenberg cannot credibly be characterized as a "dearth of evidence."
Additionally, Congress asserted that the Stenberg district court failed
to "identif[y] a single circumstance during which a partial-birth
abortion was necessary to preserve the health of a woman." Act, §
2(14)(D). This assertion is somewhat misleading because at the time of
the trial before the district court in 1998, the Supreme Court had not
enunciated the requirement of a health exception with respect to
partial-birth abortion bans. Therefore, to the extent that Congress
intended to imply that the evidence before the district court was
deficient on this basis, it ignored both the chronology of the Stenberg
case and prior Supreme Court precedent on the issue.
Nevertheless, an examination of the district court record and findings
reflects that Congress' assertion is also factually erroneous. First,
there was record evidence in support of the district court's findings
regarding the safety of intact D&E generally. The district court cited
to substantial record evidence in support of its conclusion that intact
D&E, as applied to Dr. Carhart and his patients, was "the safest
procedure in certain circumstances." Carhart II, 11 F. Supp. at 1122.
Specifically, the district court relied on Dr. Hodgson's "credible"
testimony that the "[intact D&E] procedure [was] `an advance in
technology' because by removing the fetus intact there is `less
instrument manipulation' and greater safety;" the corroborating testimony
of Drs. Carhart and Stubblefield, whose testimony the district court
found "particularly persuasive" given that "[Stubblefield] possessed the
most extensive training, experience, and knowledge about the use and teaching of abortion
procedures;" the testimony received by district courts in two other cases
involving state partial-birth abortion bans, which included the testimony
of at least two experts in the case at hand, Drs. Westhoff and Cook; and
Dr. Haskell's testimony before Congress. See id. at 1107-08, 1116, 1123
(incorporating prior decision).
Moreover, and most importantly, the district court specifically found
based on the trial evidence, and contrary to Congress' assertion
otherwise, that as a result of Nebraska's partial-birth abortion ban,
approximately "10 to 20 women a year . . . could not receive the best care
from Dr. Carhart . . . [and] would be forced against their will to endure
appreciably greater risks to their health and lives than are necessary."
Id. at 1127. In support, the district court found that:
"[a]mong other things, [these women] would suffer a
larger than necessary risk of: (1) longer operating
time; (2) greater blood loss and infection; (3)
complications from bony fragments; (4)
instrument-inflicted damage to the uterus and cervix;
(5) exposure to the most common causes of maternal
mortality (DIC and amniotic fluid embolus); [and] (6)
`horrible complications' arising from retained fetal
Congress also implies that the Supreme Court blindly deferred to the
allegedly erroneous factual findings by the district court, and that the
law regarding judicial standards of review required such blind deference.
See Act, § 2(6)-(8). Specifically, Congress found that:
Despite the dearth of evidence in the Stenberg trial
court record supporting the district court's
findings, the United States Court of Appeals for the
Eighth Circuit and the Supreme Court refused to set
aside the district court's factual findings because,
under the applicable standard of appellate review,
they were not `clearly erroneous.'
. . . .
Thus, in Stenberg, the United States Supreme Court was
required to accept the very questionable findings
issued by the district court judge.
Id. at § 2(6),(7).
Neither is the case. Putting aside Congress' disparaging
characterization of the district court's factual and evidentiary
findings, this court notes that, as a matter of law, the Supreme Court
will not blindly defer to factual findings that are as questionable as
Congress portrays the Stenberg district court's factual findings to have
been. See, e.g., Easley v. Cromartie, 532 U.S. 234 (2001) (reversing district court's determination
that North Carolina's Legislature used race as the "predominant factor"
in drawing Congressional district boundaries). In reviewing a trial
court's findings for "clear error," the Supreme Court "will not reverse a
lower court's finding[s] of fact simply because [it] `would have decided
the case differently.'" Id. at 242 (quoting Anderson v. Bessemer City,
470 U.S. 564, 573 (1985)). However, where a review of the trial court's
findings "leaves [the Court] `with the definite and firm conviction' that
the District Court's key findings are mistaken," it will reverse those
findings. Id. at 242-43 (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)) (noting that although the Court had "given
weight to the fact that the District Court was familiar with [the]
litigation, heard the testimony of each witness, and considered all the
evidence with care," the Court "[nonetheless . . . cannot accept the
District Court's findings as adequate").
Nowhere in the Supreme Court's decision in Stenberg does the Court
imply that there was an inadequacy or insufficiency of relevant evidence
before the district court; nor does the Court imply that it considered
the district court's findings to be "very questionable." As noted, to the
contrary, the Supreme Court approved of the district court's ultimate
finding that intact D&E "significantly obviates health risks in certain
circumstances" as a "highly plausible record-based explanation. . . . "
Stenberg, 530 U.S. at 936-37. Moreover, the Supreme Court clearly
conducted its own review of the record evidence before the district
court, and summarized the evidence in its decision. See id. at 923-30
(noting that "[t]he evidence before the trial court, as supported or
supplemented in the literature, indicates the following").*fn39
2. Congressional Findings Regarding Necessity of a Health Exception
Congress also proffers its interpretation of the law regarding judicial
review in an attempt to justify its ultimate "finding," contrary to the Supreme
Court's decision in Stenberg, that the Act is "not required to contain a
`health' exception . . . because a partial-birth abortion is never
necessary to preserve the health of a woman." Act, § 2(13) (emphasis
Congress interprets the Stenberg Court's requirement that partial-birth
abortion bans contain a health exception "where it is necessary, in
appropriate medical judgment for the preservation of the life of the
mother," as a finding of fact unique to the facts in Stenberg, and,
therefore, susceptible to contrary congressional fact-finding. See id. at
§ 2(4)-(13). Accordingly, Congress "finds" that it is "entitled to reach
its own factual findings [on the issue] findings that the Supreme Court
[is required to] accord great deference and to enact legislation
based upon these findings so long as [Congress] seeks to pursue a
legitimate interest that is within the scope of the Constitution, and
draws reasonable inferences based on substantial evidence." Id. at §
2(8). In support, Congress cites to and discusses several Supreme Court
cases for its assertion that the courts "owe Congress' findings an
additional measure of deference out of respect for its authority to
exercise the legislative power." Id. at § 2(12). Congress' "findings"
then conclude for the courts that its ultimate finding reflects the "very
informed judgment of . . . Congress" and is supported by "substantial
record evidence." Id. at § 2(13).
However, Congress' assertion that the courts are required to defer to
its "factual" findings raises questions regarding: (1) the nature of the
Supreme Court's holding that a health exception was required in the
Stenberg case; and (2) Congress' ability to make factual findings
contrary to the Court's holding.
a. Stenberg Court's Ruling Regarding Necessity of Health Exception
Accordingly, this court examines the Stenberg Court's determination
that the Nebraska statute was unconstitutional because it" lack[ed] any
exception `for the preservation of the . . . health of the mother.'" 530
U.S. at 930 (citing Casey, 505 U.S. at 879).
The Stenberg Court reiterated its prior holdings in Roe and Casey that
"subsequent to viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, 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. at 921 (quoting Casey, 505 U.S. at 879). Noting that
the Nebraska statute, like the Act at issue in this case, applied both
pre and postviability, and that "the State's interest in regulating
abortion previability is considerably weaker than postviability," the
Stenberg Court concluded, that since "a health exception [is required] to
validate even a postviability abortion regulation, it at a minimum
requires the same in respect to previability regulation." Id. at 930.
The Court was clear that a health exception is required regardless of
whether it is the pregnancy itself, an unrelated health condition, or a
"state regulation forc[ing] women to use riskier methods of abortion."
530 U.S. at 931. The court noted:
Our cases have repeatedly invalidated statutes that in
the process of regulating the methods of abortion,
imposed significant health risks. They make clear that
a risk to . . . women's health is the same whether it
happens to arise from regulating a particular method
of abortion, or from barring abortion entirely.
The state of Nebraska, however, asserted that the law did not require a
health exception "unless there is a need for such exception," and that
there was no need for it in the Stenberg case because safe alternatives
were available to women and the ban created no risk to the health of
women, arguments strikingly similar to the congressional findings in this
The Court rejected Nebraska's argument, concluding that, given the
"medically related evidentiary circumstances," the Nebraska statute
required a health exception. Id. at 937. The "medically related
evidentiary circumstances" supporting the Court's determination
included: (1) the district court's findings that were supported by the
record; (2) "a division of opinion among some medical experts over
whether [intact D&E] is generally safer;" and (3) "an absence of
controlled medical studies that would help answer these medical
questions." Id. at 936-37. Accordingly, the district court findings and
record was just one of the three bases upon which the Supreme Court based
its conclusion that a health exception was required.
i. District Court Findings and Record
The Supreme Court found that the district court record "show[ed] that
significant medical authority supports the proposition that in some circumstances,
[intact D&E] would be the safest procedure." Id. at 932. Moreover, the
state of Nebraska failed to rebut the substantial record evidence to this
effect. See id. (noting that "[t]he State fails to demonstrate that
banning [intact D&E] without a health exception may not create
significant health risks for women").
The Court then noted the record findings and evidence supporting a
health exception, and rejected arguments made by Nebraska in support of
its position that no exception was necessary. See id. at 934 ("We find
these eight arguments insufficient to demonstrate that Nebraska's law
needs no health exception."). The specific eight arguments made by the
State that the Stenberg Court rejected almost entirely were:
(1) that the intact D&E procedure is "little-used;"
(2) that the intact D&E procedure is used by
only a "handful of doctors;"
(3) that D&E [by disarticulation] and labor induction
are at all times `safe and alternative procedures;'
(4) that the ban does not increase a woman's risk
of several rare abortion complications;
(5) Amici Association of American Physicians and
Surgeon's ("AAPS") argument that the intact D&E
procedure creates its own special risks;
(6) that there are no medical studies establishing the
safety of the intact D&E procedure or comparing it to
other abortion procedures;
(7) an AMA policy statement that intact D&E is
not "the only appropriate procedure to induce
(8) ACOG's qualification of its statement that intact
D&E "may be the best or most appropriate procedure"
with the fact that ACOG "could identify no
circumstances under which [the intact D&E] procedure
. . . would be the only option to save the life or
preserve the health of the woman."
Id. at 933-937.
The Court found that several of the above arguments advanced by the
State were "beside the point." Id. at 934. First, it held that "[t]he
[intact D&E] procedure's relative rarity is not highly relevant." Id.
The court noted that the health exception was concerned instead with
whether protecting women's health requires an
exception for those infrequent occasions. A rarely
used treatment might be necessary to treat a rarely
occurring disease that could strike anyone the State
cannot prohibit a person from obtaining treatment simply by pointing out that
most people do not need it.
Id. The Court further found that the number of physicians who performed
the procedure was not relevant as there was no way of discerning the
reason behind those numbers. Id.
As for alternative methods, the Supreme Court noted the trial court's
agreement that there were "safe alternatives," but rejected Nebraska's
argument based on the related district court finding that under certain
circumstances, "the [intact D&E] method was significantly safer." Id.
Moreover, regarding complications associated with intact D&E, the
Supreme Court implied that there was a split of opinion, and that the
trial court had relied on testimony contrary to that relied on by the
State, which suggested that intact D&E may eliminate the risk of certain
complications. Id. at 935.
The Court also rejected Amici AAPS's arguments regarding special risks
associated with intact D&E. The Court noted that another Amici, ACOG,
pointed out that the risks highlighted by AAPS are risks generally
associated with all abortion procedures, including the alternatives
advanced by the State, and were not specifically associated with intact
D&E. Id. at 935. Additionally, the court rejected the State's
characterization of ACOG's position, especially in light of ACOG's
contrary position in its amicus brief. Id. at 935-36 (noting that ACOG
asserted that "[intact D&E] presents a variety of potential safety
advantages over other abortion procedures used during the same
Of the eight arguments, the only ones that the Supreme Court did not
reject were Nebraska's assertions regarding the absence of medical
studies and the AMA policy statement. However, it did note that Nebraska
had cited only to the most favorable language in the AMA statement, and
had omitted a portion of the statement. Id. As for the absence of
studies, the Court noted that Nebraska was correct that "[t]here are no
general medical studies documenting [the] comparative safety of the
intact D&E procedure with other abortion procedures." Id. at 935.
ii. Significance of Division of Medical Opinion and Absence
of Medical Studies
Expounding on its holding in Casey, that "the governing standard
requires an exception `where it is necessary, in appropriate medical judgment for the
preservation of the life or health of the mother,'" the Stenberg Court
explained that "necessity" contained in the above phrase "cannot refer to
an absolute necessity or to absolute proof;" nor to "unanimity of medical
opinion." Id. at 937. It found that the necessity or propriety of a
certain procedure depended on the particular circumstances of a
particular case, and its relative health risks and/or benefits. Id.
The court further noted that "[d]octors often differ in their
estimation of comparative health risks and appropriate treatment." Id.
It, therefore, held that Casey requires "the judicial need to tolerate
differences of medical opinion." Id. The Court noted that the division of
medical opinion regarding the safety and propriety of the intact D&E
procedure "involve[d] highly qualified knowledgeable experts on both sides
of the issue" division "of a sort that [the AMA] and [ACOG]'s
statements together indicate are present here." Id.
Accordingly, the Court held that the existence of a division of medical
opinion supported the need for an exception, as opposed to the contrary.
Where a significant body of medical opinion believes a
procedure may bring with it greater safety for some
patients and explains the medical reasons supporting
that view, we cannot say that the presence of a
different view by itself proves the contrary.
Id. The Supreme Court reasoned that such a division of medical opinion
meant that there was a "significant likelihood that those [physicians]
who believe that [intact D&E] is a safer abortion method in certain
circumstances may turn out to be right." Id. Accordingly, this likelihood
justifies a health exception, because to hold otherwise would "place
women at an unnecessary risk of tragic health consequences." Id.
In conclusion, the Stenberg Court held that:
[w]here 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
when the procedure is `necessary, in appropriate
medical judgment, for the preservation of the life
or health of the mother.'
Id. at 938. b. Relationship of Stenberg Health Exception and Related
The dispute as to congressional factfinding regarding the necessity of
a health exception is two-fold: (1) whether the issue is one of fact
susceptible to contrary fact-finding by Congress; and (2) assuming that
the issue is one of fact, the degree of deference that this court is
required to afford congressional findings on the issue.
At this court's request, the parties briefed those issues pertinent to
the deference that this court was required to afford the congressional
findings. The parties disagreed as to the characterization of Stenberg's
health exception and the appropriate standard of deference, as did law
professors in an amicus brief submitted to this court.
i. Plaintiff's Position Regarding Deference to Congressional
Plaintiffs contend that the congressional findings are not really
"findings," but an attempt to evade the constitutional standards set
forth by the Supreme Court in Stenberg. Accordingly, plaintiffs contend
that the "findings" should be reviewed de novo. See, e.g., Dickerson v.
United States, 530 U.S. 428, 432, 437 (2000) (Miranda warnings were a
"constitutional decision of [the Supreme] Court" and may not be
"legislatively supersede[d]" by an Act of Congress); see also United
States v. Morrison, 529 U.S. 598, 615-617 (2000) (striking down Violence
Against Women Act ("VAWA"), concluding that Congress lacked
constitutional power under Commerce Clause and that "the existence of
congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation"); City of Boerne v.
Flores, 521 U.S. 507, 532 (1997) (striking down Religious Freedom
Restoration Act ("RFRA"), enacted by Congress under Section 5 of the 14th
Amendment, "regardless of the state of the legislative record," where Act
was in direct response to a prior Supreme Court decision and sought to
legislatively supersede the legal standards set by the Court in that
prior case). ii. Government's Position Regarding Deference to Congressional
The government, on the other hand, argues that this case is
distinguishable from the cases cited by the plaintiffs because
Stenberg's determination regarding the necessity of a health exception
does not rise to the level of a "constitutional rule," like the Miranda
requirements that Congress sought to overrule in Dickerson, or the
Supreme Court's constitutional interpretation of the RFRA, which Congress
sought to overrule in City of Boerne. Instead, the government contends
that whether a health exception is required is a "factual" issue,
"decided on review of the particular record . . . in the [Stenberg]
The government contends that the Stenberg Court's conclusion regarding
the necessity of a health exception was "inextricably tied to the record
evidence compiled in that specific case" and "did [n]ot suggest that
Congress could not make an independent assessment of the medical
evidence." Accordingly, the government asserts that Congress did not
attempt to overrule a constitutional standard, but instead that its
findings fell within the constitutional parameters articulated by the
Supreme Court in Stenberg and Casey.
Because it asserts that Congress was entitled to make the contrary
factual findings, the government urges this court to apply the standard
of review set forth by the Supreme Court in Turner Broadcasting Sys.,
Inc. v. FCC ("Turner II"). 520 U.S. 180 (1997). In Turner II, the Supreme
Court decided the second of a pair of cases involving the appropriate
standard of judicial deference due congressional findings of fact in
First Amendment free expression cases.
The Supreme Court held in Turner II that the "must-carry" provisions of
the Cable Television Consumer Protection and Competition Act of 1992,
requiring cable television providers to dedicate a portion of their
channels to local broadcast television stations, as challenged by cable
operators and programmers, did not run afoul of the First Amendment. Id.
at 224-25. In so holding, the Court gave substantial deference to
congressional findings in support of the regulation. Those findings
included Congress' ultimate conclusion that the confluence of undue
market influence possessed by cable operators, cable operators' economic interests not to carry broadcast signals, and local
broadcasters' reliance on cable operators for access to viewers,
together, significantly threatened the future viability of local
In according substantial deference to the legislative findings, the
Turner II Court noted that its:
sole obligation is to assure that in formulating its
judgment, Congress has drawn reasonable inferences
based on substantial evidence. As noted in [Turner
I], substantiality is to be measured in this context
by a standard more deferential than we accord to the
judgments of an administrative agency.
Id. at 195.
Accordingly, the government argues that this court should consider the
trial evidence "only to supplement the Congressional record [such] that
the Court may determine whether Congress' judgment was reasonable and
based on substantial evidence." See id. at 196 (examining "first the
evidence before Congress and then the further evidence presented to the
district court on remand to supplement the congressional
iii. Amici's Position Regarding Deference to Congressional
A third and distinct approach regarding the deference to be accorded
the congressional findings was advanced by Amici, a group of law
professors who teach and write in the area of constitutional law. Amici
argue that the necessity of a health exception under Stenberg is not a
pure fact as the government would characterize it, but instead a
constitutional or "legislative" fact. See, e.g., A Woman's Choice v.
Newman, 305 F.3d 684, 688 (7th Cir. 2002) (discussing difference between
legislative and adjudicative facts, and noting that Supreme Court had
suggested "constitutionality must be assessed at the level of legislative
fact, rather than adjudicative fact. . . . [because] only treating the
matter as one of legislative fact produces the nationally uniform
approach that Stenberg demands"); see also Casey, 505 U.S. at 888-893
(ruling that spousal notification requirement placed a substantial
obstacle in the path of women seeking to terminate their pregnancies as a
matter of law).
While the government would like to characterize Stenberg's health
exception as an "adjudicative fact," tried by courts and concerning only the immediate
parties to the dispute," Amici note, in contrast, that legislative facts
"transcend particular cases and must be decided by courts as a matter of
law." March 1, 2004 Amicus brief at 4. According to Amici, the issue here
must be treated as one of legislative fact, because otherwise,
the [government's] proposed standard would create the
prospect that different legislatures could find
different facts predicated on essentially the same
record. . . . Such a result would leave different
jurisdictions with disparate constitutional practices
notwithstanding the fact that the empirical issue is
identical in each of them.
Id. Accordingly, "the necessity of a medical exception must be found at
the level of constitutional fact not amenable to alteration by the
fact-finding of individual legislatures." Id. at 5.
Amici do not agree with plaintiffs that this court should review the
findings de novo simply because they constitute legislative or
constitutional facts. Nor do Amici agree with the standard advocated by
Amici contend that although the Turner standard of deference may apply
to legislative facts under some circumstances, that is not true of a case
in which a fundamental right, as opposed to economic regulation, is
implicated.*fn40 In cases such as this, involving fundamental rights or
liberties, Amici argue that the standard of deference to be applied is a
"hard-look" standard.*fn41 Amici acknowledge that the Supreme Court "has
not specifically articulated the standard it employs," but contend that
"case law makes it clear that the Court stringently reviews proffered
findings of fact when basic liberties are infringed, and the Court does
not hesitate to go well beyond the legislative record in finding facts
regarding the relevant inquiry." March 1, 2004 amicus brief, at 2.
According to Amici, this approach requires "that courts conduct a stringent and broadly-based review of the methods and
principles underlying factual claims that affect the existence of
protection of basic liberties." Id.
iv. Analysis Re: Level of Deference
This court is inclined to agree with Amici regarding both the
characterization of the Supreme Court's requirement of a health exception
in Stenberg as one of "constitutional fact," and the applicable standard
This court's discussion of Stenberg above dispels Congress' and the
government's characterization of the issue as one of pure fact, limited
to the record in that particular case. Instead, as noted, the record was
only one of several "medically related evidentiary circumstances" that
the Supreme Court considered in concluding that a health exception was
required. The other two significant considerations included the state of
medical studies and the division of expert medical opinion on the issue
general evidentiary considerations that were not limited exclusively to
the record in the Stenberg case. See 530 U.S. at 879.
Accordingly, this case appears to be factually closer to those cases
relied on by plaintiffs, including City of Boerne, Dickinson, and
Morrison, in which the Supreme Court held that, as a matter of law,
congressional fact finding was not entitled to deference where Congress
intended to legislatively supersede constitutional standards. However,
this case is, at the same time, not identical to those cases. As the
government has pointed out, those cases involved constitutional "rules."
Here, Stenberg's health exception requirement does not appear to arise to
the level of a constitutional "rule" like Miranda requirements. Instead,
because it is based on "medically related evidentiary circumstances," the
necessity of the exception is, for the reasons explained by Amici, more
appropriately considered an issue of "legislative" or "constitutional"
Assuming that the Supreme Court's holding in Stenberg regarding the
necessity of a health exception is amenable to subsequent legislative
factfinding, this court would be inclined to agree with the "hard look"
standard of deference advanced by Amici. That is, that while this court
does not review congressional findings regarding these types of facts de
novo, as plaintiffs have advocated, the court also does not believe the
standard is one of substantial deference, advocated by the government. See also Newman, 305 F.3d at 688
(noting that with respect to abortion regulations, "constitutionality
must be assessed at the level of legislative fact, rather than
adjudicative fact determined by more than 650 district judges"). "Only
treating the matter as one of legislative fact produces the nationally
uniform approach that Stenberg demands." Id.
This court agrees that the issue of deference in this case is not
clearly established by Supreme Court precedent. Because this case
involves a woman's fundamental right to choose an abortion, the court is
not persuaded that it should afford congressional findings that undermine
that right the same substantial deference utilized by the Supreme Court
in cases involving economic regulation, like Turner II. In Turner II,
regarding the applicability of the standard of substantial deference, the
Supreme Court explicitly noted that:
[The] principle has special significance in cases,
like this one, involving congressional judgments
concerning regulatory schemes of inherent complexity
and assessments about the likely interaction of
industries undergoing rapid economic and technological
change. Though different in degree, the deference to
Congress is in one respect akin to deference owed to
administrative agencies because of their expertise.
520 U.S. at 196 (citing FCC v. National Citizens Comm. for Broadcasting,
436 U.S. 775
, 814 (1978)) (emphasis added).
Nevertheless, while recognizing the importance of the issue, this court
need not articulate the precise degree of deference to be accorded the
congressional findings in this case. That is because, even if this court
were to assume that the findings are entitled to the most stringent
standard of deference advocated by the government and Congress: that of
substantial deference, the court concludes for the reasons set forth
below, that Congress has not drawn reasonable inferences based on
substantial evidence, and its findings are therefore not entitled to
3. Congress' Determination that the Partial-Birth Abortion Procedure
is Never Medically Necessary is not Reasonable and is not Based on
In City of Boerne, the Supreme Court recognized that "[o]ur national
experience teaches that the Constitution is preserved best when each part of the
Government respects both the Constitution and the proper actions and
determinations of the other branches." 521 U.S. at 535-36. In recognition
of this principle and the pertinent congressional findings, this court
believes it necessary to set forth in detail the history of the
congressional proceedings and Congressional Record underlying Congress'
ultimate finding, and to discuss the specific findings made by Congress,
in support of this court's conclusion that Congress' finding regarding
the necessity of a health exception is not entitled to deference.
a. Overview of Congressional Record
In evaluating the congressional findings in this case, it is helpful
first to briefly summarize the record before Congress. The evidence
presented before Congress was qualitatively different than the evidence
presented before this court. While some witnesses testified both before
Congress and the court, the court was presented with much more extensive
medical and scientific evidence on both sides of the issue concerning the
safety and necessity of intact D&Es. Congress, on the other hand,
heard significantly more policy-based arguments.
From 1995 to 2003, the 104th through the 108th Congresses held a total
of six hearings relating to "partial-birth abortion." In addition,
various individuals and organizations submitted numerous policy
statements and letters for inclusion in the Congressional Record.*fn42
i. 104th Congress (1995)
In 1995, Congress held three hearings on intact D&E.
House Judiciary Committee Hearings
The first hearing of the 104th Congress took place before the House
Judiciary Committee on June 15, 1995. Partial-Birth Abortion Hearing
before the Subcomm. on the Constitution of the House Comm. on the
Judiciary, 104th Cong 1st Sess (1995) ("Record Exh. G"). In those
proceedings, various representatives debated the issue of intact D&E
in the context of Dr. Haskell's description of the procedure before the
National Abortion Federation in 1992.
Two physicians, Dr. Pamela Smith and Dr. Robert White, and one nurse,
Mary Ellen Morton, testified in favor of a ban. Dr. Smith, a gynecologist
who does not perform abortions, gave a general overview of the
procedure, and stated that there was no medical need for the procedure,
while Dr. White, a neurosurgeon with no obstetrics training, testified
that he believed that the fetus would feel intense pain during an intact
D&E procedure. Record Exh. G at 38-44, 90 (Smith testimony), 67-71
(White testimony). Morton, a neonatal nurse, presented photographs of
premature infants and testified in a written statement that she believed
that premature infants were identical to fetuses in the second trimester
of pregnancy and that they would feel pain during an intact D&E
procedure. Id. at 76-86.
One physician testified against the ban, Dr. J. Courtland Robinson, an
obgyn with training in public health. Dr. Robinson testified that intact
D&E is a rare procedure, that the ban seemed vague, and that Congress
should not substitute its judgment for those of women and their
physicians. Dr. Robinson did not provide information about how an intact
D&E is performed, and stated that he was unfamiliar with this technique
until a few weeks before testifying. Record Exh. G at 63-67, 88.
One woman, Tammy Watts, who had undergone an intact D&E, also
provided testimony. Watts had discovered 7 months into her pregnancy that
her fetus suffered from trisomy 13, a fatal chromosomal anomaly, and
decided to terminate the pregnancy. Because she had an intact D&E,
Watts was able to see and hold the fetus, and the fetus was autopsied for
future diagnostic purposes. Record Exh. G at 71-76.
The four testifying witnesses were then questioned by various members
of Congress. The witnesses did not provide extensive medical explanations
of the procedure, as the representatives focused mainly on policy issues
in the debate. Record Exh. G at 86-97.
Various statements were also read into the Record, including newspaper
articles on intact D&E, statements from pro-life groups, letters from
pro-life doctors, including Dr. Bowes, letters from the National Abortion
Federation (a pro-choice organization), a copy of Dr. Haskell's article and a written response from Dr. Haskell generally
objecting to mischaracterizations of his article, and statements from
attorneys on the constitutionality of a ban. See, e.g., Exh. G at 4-28,
Senate Judiciary Hearings
The second hearing on intact D&E took place before the Senate
Judiciary Committee on November 19, 1995. Partial Birth Abortion Ban Act
of 1995: Hearing on H.R. 1833 before the Senate Comm. on the Judiciary,
104th Cong. 1st Sess. (1995) ("Record Exh. F").
The first witness to testify was Brenda Pratt Shafer, a nurse who
claimed to have worked in Dr. Haskell's office. Shafer testified that she
observed an intact D&E procedure where a 26-week fetus visibly struggled
during the procedure. Dr. Haskell's office submitted a letter in response
stating that they do not perform intact D&E procedures after 24 weeks
and noting other inconsistencies in Shafer's testimony. Certain senators
also noted that Shafer's deposition testimony had previously been ruled
inadmissible in Ohio's litigation concerning a state ban on intact D&E.
Record Exh. F at 17-21, 205-06.
Next, the Senate heard from the first panel of witnesses, which
included: Dr. Smith and Dr. Robinson, who had previously testified before
the House; Dr. Mary Campbell, Dr. Nancy Romer, Dr. Norig Ellison, and
Helen Alvare. Dr. Smith and Dr. Romer, who supported a ban on intact
D&E, discussed generally the dangers of intact D&E and the lack
of medical necessity for the procedure. Dr. Romer indicated that she had
never performed an intact D&E.
Dr. Campbell, the medical director for the Washington DC Planned
Parenthood affiliate, discussed in general how second trimester abortions
are performed, and Dr. Robinson reiterated his belief that Congress
should not legislate how doctors practice medicine. Dr. Ellison, an
anesthesiologist, offered testimony solely on the issue of whether
anesthetic given to the woman would cause fetal demise, and he testified
that it would not. Alvare offered testimony as a representative of the
Catholic church that intact D&Es were immoral. The witnesses did not
explain matters in great scientific detail, though they were questioned
extensively on policy issues by the committee members and some medical research issues were discussed in that context. Record Exh. F at
The next panel of witnesses consisted of three women, two of whom had
undergone intact D&Es: Coreen Costello, Viki Wilson, and Jeannie
French. Costello was carrying a fetus diagnosed at seven months with a
fatal neurological anomaly and needed to terminate the pregnancy. She had
requested a caesarean but her doctors advised against the risk, and she
could not undergo an induction because the fetus was suffering from
hydrocephaly. She underwent an intact D&E, believed that the fetus
had died before birth, and was able to hold the baby after the procedure.
Wilson testified that her fetus was diagnosed at 36 weeks with an
encephalocoele, where the brain develops outside the fetal skull, and
would not live outside the uterus. Because of the size of the head,
Wilson could not undergo an induction, and thus underwent an intact
D&E. French testified that she gave birth to twins, one of whom was
diagnosed with an encephalocoele and did not survive, and that intact
D&E was not necessary for her. Record Exh. F at 158-168.
The third panel consisted of two law professors who debated the
constitutionality of a ban, Record Exh. F at 169-207, and the remainder
of the hearing materials consist of written statements from various
doctors, medical associations, and pro-life advocacy groups. Id.
House Hearings on Anesthesia
The third and final hearing of the 104th Congress, held on March 21,
1996, focused on the issue of whether anesthesia given to the mother in
an intact D&E would cause fetal demise.*fn43 Effects of Anesthesia
During a Partial-Birth Abortion: Hearing before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 104th Cong. 2nd Sess
(1996) ("Record Exh. E").
In previous hearings, some doctors, patients, and pro-choice advocacy
groups had indicated that they believed that the anesthetic given to a
woman undergoing an intact D&E would be sufficient to cause fetal
demise before the extraction procedure began. Record Exh. E at 1-3. A congressman who is also a doctor, Tom Coburn, testified
that it would not. Id. at 135-136.
Next, a panel of four anesthesiologists provided testimony: Dr.
Ellison, who had testified previously, Dr. David Birnbach, Dr. David
Chestnut, and Dr. Jean Wright. All four doctors testified that anesthetic
given to the mother would not cause fetal demise, and Dr. Wright
testified that beginning around 26 weeks after gestation (28 weeks Imp)
fetuses can feel intense pain. Record Exh. E at 137-150. The panel was
then questioned by various members of Congress. Id. at 291-303.
The final panel consisted of Shafer, who had previously testified
before the Senate; Costello, who had previously testified before the
Senate, Mary-Dorothy Line, who had undergone an intact D&E, and
Alvare, who had previously testified before the Senate. Shafer reiterated
her testimony from the first hearing, as did Costello and Alvare. Line,
who had not previously testified, stated that her fetus had been
diagnosed as hydrocephalic at 22 weeks, and she had undergone an intact
D&E where a needle was used to aspirate the fluid from the fetus'
head. Record Exh. E at 310-335. Members of Congress then questioned the
witnesses. Id. at 335-352.
The remainder of the record of this hearing consists of letters from
advocacy groups and doctors, a letter from President Clinton opposing the
ban, excerpts from previous portions of the Congressional Record before
the Senate Judiciary Committee, medical research articles on fetal pain,
a letter from Dr. Creinin, who testified before this court, stating that
fetuses do not feel pain, and a copy of the order from the Ohio district
court finding the Ohio ban on intact D&E unconstitutional. See, e.g.,
Record Exh. E at 4-134, 151-282, 352-56.
The proposed bill was then passed by both chambers of Congress, and
President Clinton vetoed it on April 10, 1996. 142 Cong. Rec. H3338
(daily ed. Apr. 15, 1996). The Senate was unable to override the veto,
and it was sustained. 142 Cong. Rec. S11389 (daily ed. Sept. 26, 1996).
ii. 105th Congress
New legislation to ban intact D&E was then proposed in the 105th
Congress. The House and Senate Judiciary Committees held a joint hearing on March
11, 1997, on the issue. Partial-Birth Abortion: The Truth: Joint Hearing
on S. 6 and H.R. 929 before the Senate Comm. on the Judiciary and the
Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th
Cong. 1st Sess (1997) ("Record Exh. D").
The first panel to testify at this hearing consisted of members of
various advocacy groups: Renee Chelian, of the National Coalition of
Abortion Providers; Kate Michelman, of NARAL; Helen Alvare, of the
Catholic Church; Gloria Feldt, of Planned Parenthood; Vicki Saporta, of
NAF; and Douglas Johnson, of the National Right to Life Committee. The
witnesses presented primarily policy-based reasons for their positions,
and not medical ones; some statistics on both sides were introduced into
the record, but not discussed. Record Exh. D at 17-66. Members of
Congress then extensively questioned the panel. Id. at 67-119.
The second panel consisted of Dr. Cook, who testified before this
court, and is one of the co-founders of Physicians' Ad-Hoc Coalition for
Truth ("PHACT"), a group opposed to intact D&E; Eileen Sullivan and
Maureen Britell, who underwent intact D&Es; and Whitney Goin, whose
fetus was diagnosed with fetal anomalies but who declined an abortion.
Dr. Cook testified that there was no need for intact D&E but did not
explain the medical reasons for his conclusions. Sullivan's fetus was
diagnosed with a fatal heart anomaly at 26 weeks, and Sullivan decided on
an intact D&E so the fetus could be autopsied to help her in making her
future reproductive decisions. Britell, who was previously active in the
pro-life movement, was pregnant with a fetus diagnosed with anencephaly at
the beginning of her third trimester. When Britell's induction abortion
failed, she underwent an intact D&E so her priest could deliver
religious rites to the fetus. Goin's fetus was diagnosed with abdominal
defects which were not fatal but would require extensive surgery after
birth. Goin declined a second trimester abortion and her child is alive
today. Members of Congress questioned the women and Dr. Cook whether
intact D&E procedures were necessary in their circumstances. Record
Exh. D at 120-135.
The remainder of the record consists of prepared statements by
attorneys on the issue of the constitutionality of the bill, copies of
medical research articles, copies of previous testimony given before Congress on the issue, and letters from advocacy
groups. See, e.g., Record Exh. D at 1-17, 135-142, Record Appendix.
The bill was passed, and President Clinton vetoed it. 143 Cong. Rec.
H8891 (daily ed. Oct. 21, 1997). The Senate was again unable to override
the veto. 144 Cong. Rec. S10564 (daily ed. Sept. 18, 1998).
iii. 106th Congress
No hearings were held in the 106th Congress, but other written
materials were introduced into the Congressional Record, such as letters
from doctors and policy groups.
The Supreme Court decided Stenberg on June 28, 2000, and relied in part
on evidence presented in the Congressional Record up to this point.
iv. 107th Congress
On July 9, 2002, Congress again held a hearing on the issue of intact
D&E. Partial Birth Abortion Ban Act of 2002: Hearing before the
Subcomm. on the Constitution of the House Comm. of the Judiciary, 107th
Cong. 2nd Sess (2002) ("Record Exh. C").
The only panel of witnesses that testified at this hearing consisted of
Dr. Aultman and Dr. Cook, both of whom supported the ban and had
previously testified before Congress; Simon Heller, an attorney on behalf
of the Center for Reproductive Law and Policy who believed the proposed
law to be unconstitutional; and Robert Destro, an attorney who believed
the proposed law to be constitutional. Dr. Aultman testified that the
bill was not vague and that no health exception was needed, and Dr. Cook
testified that intact D&E was not medically necessary. Dr. Aultman also
provided a position paper outlining the medical basis for her opinion.
Heller and Destro presented opposing views on the constitutionality of
the ban. Record Exh. C at 6-28. Members of Congress then questioned the
witnesses. Id. at 28-46.
The record also includes an extensive appendix of materials, which
includes letters from doctors and advocacy groups, statements from
senators, and medical papers on both sides of the issue. Record Exh. C at
v. 108th Congress
The House held its final hearing on this issue on March 25, 2003.
Partial-Birth Abortion Ban Act of 2003: Hearing before the Subcomm. on the Constitution of
the House Comm. on the Judiciary, 108th Cong. 1st Sess (2003) ("Record
Only one panel of witnesses testified at this hearing, consisting of
Dr. Mark Neerhof, who supported a ban, and Simon Heller and Gerard
Bradley, attorneys testifying regarding the constitutionality of the
act. Dr. Neerhof provided an overview of his medical opinion concerning
the lack of necessity for the procedure. The Congressional Findings of
Fact appear to have drawn in significant part from this overview. Record
Exh. B at 6-10. Heller and Bradley discussed the constitutionality of the
act in light of Stenberg, and Bradley's conclusions appear to have been
incorporated into the Congressional Findings of Fact as well. Id. at
10-22. Members of Congress then questioned the witnesses. Id. at 22-35.
The record of this hearing also includes an extensive appendix,
consisting of statements from doctors and policy groups on both sides of
the issue. Record Exh. B at 37-279.
b. Analysis re: Congressional Record
The oral testimony before Congress was heavily weighted in favor of the
Act. As was the case with many of the government's witnesses before this
court, Congress heard disproportionately from physicians opposed to
abortion generally, unless the life of the mother was absolutely
compromised. This court's review of the Congressional Record reflects
that over a period of approximately eight years, Congress entertained
live testimony from a total of eight physicians, six of whom supported
the ban, and two of whom opposed the ban.*fn44 Of those six physicians
who supported the ban, two are related to the instant case: Drs. Cook and
Neerhof. Like the government's witnesses in this case, none of the six
physicians who testified before Congress had ever performed an intact
D&E. Several did not provide abortion services at all; and one was
not even an obgyn.
It is apparent to this court, having heard the testimony of the
thirteen expert witnesses in this case, and having reviewed the deposition testimony of an additional
six expert witnesses, that the oral testimony before Congress was not
only unbalanced, but intentionally polemic. In contrast to the evidence
before Congress, this court heard from eight physicians who have all
performed the banned procedure, and have been instructed in the
procedure, many of whom teach the procedure themselves.
This court cannot evaluate the credibility of those witnesses who
appeared both before this court and also testified or submitted materials
to Congress as they appeared before Congress. However, this court has
made findings regarding those witnesses' credibility, set forth above, as
they appeared before this court. That group includes Drs. Cook, Sprang,
While Dr. Sprang did not testify personally before Congress, he
submitted letters in favor of the ban, and along with Dr. Neerhof, who
testified before Congress in support of a ban, is the co-author of an
article submitted to and cited by Congress in support of its findings.
See Exh. A-55, Sprang & Neerhof, Rationales for Banning Abortions Late
in Pregnancy, 280 Journal of the American Medical Association ("JAMA")
8, at 744-47 (August 26, 1998). Many of the congressional "findings"
mirror substantially the conclusions reached in Dr. Sprang's article.
That article, upon which Congress very obviously relied, and which was
admitted into evidence at trial, was published in 1998, prior to the
Supreme Court's decision in Stenberg, and was considered and implicitly
rejected by the Supreme Court in its decision. See 530 U.S. at 933
(citing to article).
This court finds a number of the conclusions in that article, including
those resembling many of Congress' findings, troublesome and contrary to
the medical evidence presented by both sides to this court. The article
itself constitutes an opinion piece, representing a generally
anti-late-term abortion view. The article was published in the
"Controversies" section of the journal, a section that includes "one
article pro and one article con on an issue." Dr. Sprang himself agreed
that the article was one part of a two-part piece taking opposite
viewpoints on restrictions on late-term abortions. Tr. Vol. 7 at 1020:19-23; 1032:17-19
Unlike other studies that this court admitted into evidence, the
article did not rely on any clinical research or medical studies
conducted by Dr. Sprang. Instead, it was based on his review of the
literature on the issue literature which included non-medical sources
like newspaper articles and weekly periodicals. For that reason, this
court indicated at trial that it found the article itself to be lacking
in trustworthiness. Tr. Vol. 8 at 1340:2-11 (Sprang). Moreover, given
Dr. Sprang's lack of expertise in late-term abortion procedures, and
intact D&E procedures specifically, and the contradictory testimony that
Dr. Sprang gave at trial, the article and many of its conclusions become
even more questionable.
This court shares similar qualification and credibility concerns
regarding Dr. Cook, another government witness, based on his testimony
before this court. Dr. Cook testified before Congress several times and
also submitted written materials to Congress in opposition to the ban
from himself, and from an organization that he co-founded, PHACT.
Congress relied in part on Dr. Cook's testimony for its findings,
testimony which included his opinion regarding two specific medical
situations concerning the necessity of intact D&E.*fn46 Tr. Vol. 9
at 1437:13-20 (Cook).
Both Dr. Bowes, who testified for the government, and Dr. Creinin,
plaintiffs' witness, submitted letters to Congress in support of, and in
opposition to the Act, respectively. However, this court does not have
the same credibility concerns with respect to the government's witness, Dr. Bowes, or plaintiffs' witness, Dr. Creinin.
ii. Medical Organizations
Congress also had before it policy statements and materials from
numerous medical organizations, the majority of which opposed the Act.
Among the medical organizations who submitted materials in opposition to
the Act were ACOG, CMA, AMWA, NAF, APHA, PRCH ("Physicians for
Reproductive Choice and Health"), and ANA ("American Nurses
Association"). Two organizations supporting the bill also submitted
materials: PHACT, co-founded by Dr. Cook, and AAPS. As noted, the AMA,
which supported a ban initially, subsequently withdrew its support.
In the materials submitted before Congress, the two largest medical
organizations, ACOG and AMA, while agreeing in their opposition to the
Act, disagreed regarding their positions on "partial-birth abortion." The
AMA was ethically opposed to "partial-birth abortion," whereas ACOG
believes that there are circumstances during which "partial-birth
abortion" "may be the most appropriate and safest procedure to save the
life or health of a woman." See Record Exh. B, at 146-152 (1997 AMA "Fact
Sheet"); Record Exh. C, at 186 (AMA Statement); id. at 260 (AMA
Policyfinder); id. at 240 (4/00 AGOG "Fact Sheet"); Record Exh. B, at 197
(7/02 ACOG Statement). In recognition of their differences, the AMA and
ACOG submitted to Congress a "Joint Statement," noting that "they were
concerned regarding the negative impact caused by different positions
reached by [the organizations]," and provided goals common to both
organizations. See Record Exh. C, at 220 (AMA/ACOG Joint Statement). One
commonality shared by both ACOG and the AMA was that they opposed any
partial-birth abortion ban that included criminal sanctions. Id.
Congress in its findings, however, chose to disregard the statements by
ACOG and other medical organizations in opposition to the Act, and then
exclusively utilized statements derived directly from 1997 AMA policy
statements in its findings policy statements that the Supreme Court had
before it in Stenberg, but did not rely upon in reaching a contrary conclusion.*fn47 See Stenberg, 530 U.S. at 934-35 (noting 1997 AMA
policy statement asserting that "there does not appear to be any
identified situation in which intact [D&E] is the only appropriate
procedure to induce abortion"). Among the statements that Congress
disregarded was ACOG's amicus brief submitted to the Supreme Court in
Stenberg, and cited by the Supreme Court approvingly in that case,*fn48
and a July 2002 ACOG statement, one of the few new statements submitted
by a medical organization post-Stenberg. See Record Exh. A, at 98 (ACOG
amicus brief); Record Exh. B, at 197 (7/02 ACOG statement). That
statement provides in pertinent part that:
ACOG has concluded that there are circumstances
under which this type of procedure would be the
most appropriate and the safest procedure to save
the life or health of a woman. Only the doctor, in
consultation with the patient, based upon the
woman's particular circumstances, can make this
This bill violates a fundamental principle at the very
heart of the doctor-patient relationship; that the
doctor, in consultation with the patient, based on the
patient's individual circumstances, must choose the
most appropriate method of care for the patient. This
bill removes decision-making about medical
appropriateness from the physician and the patient.
ACOG's members, whatever their beliefs about
abortion, share an interest in opposing laws that
interfere with a physician's ability to exercise his
or her best medical judgment in providing care for
ACOG opposes legislation such as HR 4965 as
inappropriate, ill-advised and dangerous intervention
into medical decision-making. HR 4965 is vague and
broad, with the potential to restrict other techniques
in obstetrics and gynecology. It fails to use
recognized medical terminology and fails to define
explicitly the prohibited medical techniques it
criminalizes. ACOG notes particularly that imposing
criminal penalties for use of a procedure that
includes elements of recognized gynecologic and
obstetric techniques could outlaw use of those
techniques in both abortion and non-abortion
circumstances. Some of these techniques can be
critical to the lives and health of American women.
Record Exh. B, at 197. iii. Congressional Debate
The Act itself and especially the Act's ultimate finding that
"partial-birth abortion is never medically indicated to preserve the
health of the mother," were hotly contested within Congress. See
generally, e.g., Record Exh. A, at 147-154 (dissenting views signed by
fourteen legislators). Dissenting legislators opposed the Act on numerous
grounds, both legal and policy-based, including that: (1) the Act
unconstitutionally omits an exception to protect maternal health; (2)
that the Supreme Court will not defer to erroneous factual and legal
conclusions masked as congressional "findings;" (3) the threat to the
separation of powers; (4) the Act's overbreadth and undue burden on a
woman's right to obtain an abortion; (5) the danger to women's health
posed by the Act's ban on safe abortion procedures; and (6) the
criminalization of doctors and the conflict the Act encourages between
pregnant women and their husbands, or in the case of minors, their
Opponents of the Act argued before Congress that the Act was both
legally unsound and a mischaracterization of abortion procedures.
Opponents contended that:
This bill as written fails every test the Supreme
Court has laid down for what may or may not be a
constitutional regulation on abortion. . . . While .
. . proponents of this bill view all abortion as
tantamount to infanticide, that is not a mainstream
view. This bill attempts to foist a marginal view on
the general public by characterizing this bill as
having to do only with abortions involving healthy,
full-term fetuses. If the proponents of this bill
really want to deal with post-viability abortions in
situations in which a woman's life and health are not
in jeopardy, then they should write a bill dealing
with that issue.
Record Exh. A, at 73-74.
Moreover, Congress debated and ultimately rejected an amendment that
would have added a health exception to the Act. Id. at 27, 65. Arguing in
favor of a health exception, opponents asserted that:
[T]he families that are affected by this bill are
dealing with the tragic circumstances of crisis
pregnancies. In most cases, they have just learned
that their babies will not survive. They are then
confronted by choices that none of us would wish
on any human being. This is the context in which
. . . this legislation comes into play. And any
suggestion to the contrary deceives the American
public about the realities of this issue.
. . . .
Typically, women who must face this decision want
nothing more than to have a child and are devastated to learn that their baby
would not survive outside the womb. In consultation
with their doctors and families, they make difficult
decisions to terminate pregnancies to preserve their
own health, and in many cases to preserve their
ability to have children in the future.
Id. at 69-70.
iv. Comparison with Stenberg Record
In support of its conclusion that "partial-birth abortion" is never
necessary, Congress asserted, and the government has argued, that
following the courts' decisions in Stenberg, Congress had evidence
available to it that was not available at the time Stenberg was decided.
In its findings, Congress stated:
[Overwhelming evidence presented and compiled at
extensive congressional hearings, much of which was
compiled after the district court hearing in
Stenberg, and thus not included in the Stenberg trial
record, demonstrates that a partial-birth abortion is
never necessary to preserve the health of a woman,
poses significant risks to a woman upon whom the
procedure is performed, and is outside the standard of
Act, § 2(5) (emphasis added). However, this court's review of the
Congressional Record reveals that the opposite is true.
Although Congress utilized the Stenberg district court's decision from
July 1998, as the benchmark regarding the status of the medical evidence
on the issue, the real benchmark must be the Supreme Court's decision in
Stenberg, which was issued on June 28, 2000. As noted, the district court
record was just one of the "medically related evidentiary circumstances"
supporting the Supreme Court's determination that a health exception was
required. Stenberg, 530 U.S. at 936-37. The Supreme Court considered also
the division of opinion among medical experts and the state of medical
studies that existed at the time the Supreme Court decided Stenberg
including the Congressional Record to date and numerous amicus briefs
submitted by interested parties. Id. at 933-36.
However, regardless of which benchmark is utilized the Stenberg
district court's decision in 1998, or the Supreme Court's decision in
June 2000 this congressional finding is inaccurate and contrary to the
very record that existed before Congress. The majority of congressional
hearings and evidence were conducted before and collected by the 104th
and 105th Congresses from 1995-1997, prior to both the district court's
and the Supreme Court's decisions. Following the district court's decision in Stenberg in 1998,
Congress held only two hearings on the intact D&E procedure. None of the
testimony received by Congress at those hearings can reasonably be
considered "new" medical evidence not available to the courts at the time
Stenberg was decided.*fn49
Outside of the Stenberg record, which included the amicus briefs
considered by the Supreme Court, several medical organizations, including
ACOG, APHA, PRCH, and AMWA, submitted new materials in opposition to the
Act. PHACT, the organization co-founded by Dr. Cook, also submitted new
material in support of the Act. Additionally, there were numerous letters
from physicians and other interested individuals both in support of and
in opposition to the Act. However, review of these documents and
materials confirms that there was no new medical evidence before
Congress, and that the post-Stenberg submissions simply reiterated the
same arguments and positions that Congress had before it prior to the
courts' decisions in Stenberg.
Accordingly, based on the record before this court and a review of the
Congressional Record, this court finds that at the time that it made its
findings, Congress did not have before it any newmedical evidence or
studies not available to both the district court and Supreme Court in
Stenberg, at the time that the courts issued their decisions.
c. Specific Congressional Findings
As noted, in support of its conclusion that the partial-birth abortion
procedure is never necessary to preserve the health of the mother,
Congress also made numerous other findings at sections 14(A) through
(O). See Act, § 2(14)(A)-(O). These findings include Congress' more
specific or particular factual findings pertinent to its ultimate
conclusion. Many of these findings were also disputed within Congress.*fn50
In support of its argument that this court must defer to Congress'
determination that the procedure is never medically necessary, the
government argues that Congress' finding is reasonable because "numerous
express findings" support its "considered judgment" or ultimate finding
that the procedure is never necessary. However, based on the evidence
before this court, which includes the Congressional Record, and this
court's review of Congress' specific findings in support of its
conclusion, this court finds that Congress' conclusion that the procedure
is never medically necessary is not reasonable and is not based on
The individual findings, which Congress and the government contend
support deference to Congress' ultimate finding, tend to fall into one of
two categories: (1) the findings are factually wrong; or (2) there is a
split in the medical evidence regarding the particular issue, and
Congress has chosen a position. With respect to this latter category,
there are, however, several findings that are legally irrelevant to the
necessity of a health exception, as discussed in this court's conclusions
of law below.
It is noteworthy that all of the government's own witnesses disagreed
with many of the specific congressional findings. In particular, Dr.
Bowes, who had submitted several letters to Congress in support of a ban
and one of the government witnesses whom this court found particularly credible, disagreed not only with particular findings,
but with Congress' ultimate finding that:
Partial-birth abortion remains a disfavored procedure
that is not only unnecessary to preserve the health of
the mother, but, in fact, poses serious risks to the
long-term health of women, and in some circumstances
Act, § (2); see Tr. Vol. 6 at 975: 1-8 (Bowes).*fn51
i. Alleged Consensus of Opinion Regarding Procedure
In support of its ultimate finding, Congress found that "[a] moral,
medical, and ethical consensus exists that the practice of performing a
partial-birth abortion . . . is a gruesome and inhumane procedure that
is never medically necessary and should be prohibited." Act § 2, (1).
This particular finding resembles the assertion in the Sprang/Neerhof
article that "[a]n extraordinary medical consensus has emerged that
intact [D&E] is neither necessary nor the safest method for late-term
abortions," and the article's reference to the procedure as "needlessly
inhumane." Exh. A-55, at 745.
However, the evidence available to Congress in passing the Act in
2003, and currently before this court, very clearly demonstrates the
opposite: that there is no medical or ethical consensus regarding either
the humanity, necessity, or safety of the procedure. Instead, the same
division of opinion among physicians and the relevant ethical groups
exists today as existed when Stenberg was decided. There is no consensus
that intact D&E, which this court has found is a variant of the D&E
procedure, is any less humane than other surgical abortion procedures. Nor
is there a consensus regarding its safety or necessity.
Indeed, Congress' very findings contradict its assertion that there is
a consensus. Congress subsequently noted in its findings that "a
prominent medical association," the AMA, concluded that "there is no consensus among obstetricians about" the use
of intact D&E. See Act, § 2 (14)(C) (citing AMA Fact Sheet 6/97). In
fact, there was no consensus even within the AMA itself regarding the
procedure. See Tr. Vol. 7 at 1163 (Sprang) (agreeing that AMA task force
did not reach a consensus regarding the ethics of intact D&E). As
noted, Congress also had before it a joint statement from the AMA and
ACOG, the two largest medical organizations taking positions on the
issue, which recognized the disagreement among and within the two
organizations. See also Record Exh. A, at 66 (opponents to the Act in
Congress argued that the "medical community does not support banning
partial-birth abortions," and cited to ACOG findings and sixteen medical
organizations in addition to AGOG who oppose a ban).
Moreover, three of the four government witnesses that testified on the
subject recognized that there was no consensus regarding the procedure.
This included Dr. Sprang, who testified contrary to his 1998 article, and
agreed that "there is a variation of opinion" among the medical community
regarding whether intact D&E should be banned. Tr. Vol. 7 at 1170:6
(Sprang); see also id. at 1168:22-1169:1 (also agreeing that there is no
ethical consensus among physicians and professors at Northwestern
University, where he teaches and practices). Another government witness,
Dr. Shadigian, further agreed that "there is no consensus in the medical
community that the procedures banned by the [Act] are not safer for some
women in some circumstances than other available procedures." Tr. Vol. 8
at 1297:18-24 (Shadigian). She testified that "responsible physicians
could reach different conclusions as to the medical appropriateness of
banning the procedures covered by the Act." Id. at 1297:12-17; see also
Tr. Vol. 6 at 960:13-22 (Bowes) (agreeing that "there is a body of
medical opinion which consists of [a] responsible group of physicians
that hold the opinion that intact removal of a fetus during a surgical
abortion may be the safest procedure for some women in some
circumstances"); see also Cain Depo. 37:12-22; 220:14-222:21;
234:20-235:12; Exh. 14 (noting that ACOG's Executive Board reaffirmed the
group's January 1997 policy statement regarding "partial-birth abortion"
and that it remains the policy of ACOG today); Kissell Depo. Exh. 41,
42, 43 (AMWA position); Baker Depo. Exh. 5 (APHA position); Whitelaw Depo. Exh. 70 (CMA); CMA Amicus Brief.
ii. Current Medical Practice Regarding Intact D&E
Additionally, Congress found that "particularly among physicians who
routinely perform other abortion procedures, partial-birth abortion
remains a disfavored procedure . . . [within] the medical community"
and asserted that it "is in fact unrecognized as a valid abortion
procedure by the mainstream medical community." Act, § 2(2); 14(O).
Congress appears to have based this finding on the testimony of a few
physicians who themselves never perform intact D&E procedures. However,
as demonstrated both by the lack of consensus in the medical community as
discussed above, and by twelve of the plaintiffs' witnesses before this
court who routinely perform abortion procedures at highly-respected
institutions, this finding is simply inaccurate. Several of plaintiffs'
witnesses were, in the course of caring for their patients, performing
intact D&E procedures at the time Congress conducted its hearings and
was gathering evidence regarding intact D&Es. See, e.g., Tr. Vol. 2 at
187:15-19 (Sheehan); Tr. Vol. 4 at 584:16-585:3 (Broekhuizen). Had
Congress attempted to obtain an opinion from "physicians who routinely
perform other abortion procedures," it would have learned that this was
Moreover, among the government experts that testified, it is apparent
that it is not just intact D&Es that they disfavor. Those experts who
disfavored intact D&E, which included all of the government's
witnesses, tend to disfavor elective abortion generally and all D&E
procedures, whether intact or by disarticulation.
Among these are Dr. Cook and Dr. Sprang. As noted, Dr. Cook's
preference for induction over D&E, intact or by disarticulation, is so
strong that there are circumstances under which Dr. Cook would utilize
induction, or an even less safe alternative, hysterotomy, when the
medical evidence and literature suggests that the safest procedure is
D&E. See, e.g., Tr. Vol. 6 at 972:6-8 (Bowes) ("in most cases an intact
D&E would be preferable to a hysterotomy").
Dr. Sprang attested that his ethical objections could be extended to
any D&E, and even to an induction abortion in which a fetus was
delivered partially, and having become lodged in the mother's cervix, was subject to demise outside the body of the
mother. Tr. Vol. 7 at 1165:10-15 (Sprang). He asserted that his ethical
objections "were not limited to intact D&E, but to any situation
where the act that killed the fetus occurred outside of the body of the
mother." Id. Dr. Shadigian and Dr. Bowes likewise testified that
they did not find intact D&E any more objectionable than D&E in
general. Tr. Vol. 8 at 1303:25-1304:12 (Shadigian); Tr. Vol. 6 at
iii. Alleged Complications Associated with Intact D&E
Congress further found that intact D&E "poses serious risks to the
long-term health of a woman and in some circumstances, their lives."
Act, § 2(2); 14(A). Again, this finding is very similar to the
Sprang/Neerhof article, which concludes that "intact [D&E] poses serious
medical risks to the mother." Exh. A-55, at 744. The specific risks
listed by Congress mirror those listed in the article:
(1) an alleged risk of cervical incompetence, a
result of cervical dilation making it difficult or
impossible for a woman to successfully carry a
subsequent pregnancy to term;
(2) an increased risk of uterine rupture, abruption,
amniotic fluid embolus, and trauma to the uterus as a
result of converting the fetus to a footling breach
position, a procedure which, according to a leading
obstetrics textbook, "there are very few, if any
indications for other than delivery of a second
(3) a risk of lacerations and secondary hemorrhaging
due to the doctor blindly forcing a sharp instrument
into the base of the unborn child's skull while he or
she is lodged in the birth canal;*fn53 (4) a risk [that the procedure described above in
#3] could result in severe bleeding, bringing with
it the threat of shock, and ultimately resulting
in maternal death.*fn54
See id. at § 2(14)(A).
The risks described above, however, to the extent that they exist, are
not specific to intact D&E, but instead may be present in any D&E, a
procedure whose necessity and safety are not at issue because it is
generally considered both necessary and safe. See, e.g., Jr. Vol. 7 at
1148:4-6 (Sprang) (agreeing with AMA task force that it is unresolved
whether these complications are more likely to result from D&E or intact
D&E than from labor induction techniques). Moreover, this court has
already found, based on medical evidence evidence that was available to
Congress at the time that it made its findings that the government has
not shown that intact D&E increases the likelihood of cervical
incompetence, and that the risk of laceration caused by instrumentation
or fetal bone fragments is minimal and no greater than that associated
with all D&E procedures.
Additionally, the evidence before this court demonstrated that
abruption, the separation of the placenta from the uterus prior to birth,
and amniotic fluid embolus, in which amniotic fluid enters the mother's
blood stream via the placenta, resulting in a potentially lethal maternal
infection, are not risks specific or relevant to an intact D&E. See
Grunebaum Depo 198:11-22; 200:7-201:2; Tr. Vol. 4 at 669:20-671:8
(Creinin) (explaining that in an abortion, "separating the placenta from
the uterus is an innate part of the D&E" and that it is irrelevant to
the procedure when the placenta is removed); id. at 673:5-675:17
(amniotic fluid embolus likewise irrelevant to D&E abortion because
the amniotic fluid is removed at the beginning of the procedure); Tr.
Vol. 5 at 827:19-829:1 (Westhoff). While the parties did not offer
testimony at trial on the issue of whether intact D&E is more likely
to cause maternal death, the court notes that abortion, generally,
remains an extremely safe procedure in terms of mortality. Moreover, none
of the physicians who testified before this court and who perform intact
D&Es have had a patient die as a result of the procedure.*fn55
iv. Comparative Safety of Intact D&E
Congress further found that "[t]here is no credible medical evidence
that partial-birth abortions are safe or are safer than other abortion
procedures." Act. § 2, 14(B). In support Congress asserted that:
(1) No controlled studies of partial-birth abortions
have been conducted nor have any comparative studies
been conducted to demonstrate its safety and efficacy
compared to other abortion methods;*fn56
(2) there have been no articles published in
peer-reviewed journals that establish that
partial-birth abortions are superior in any way to
established abortion procedures;
(3) there are currently no medical schools that
provide instruction on abortions that include the
instruction in partial-birth abortions in their
See id., at § 2, (14)(B).
However, for the reasons discussed above in this court's findings, the
trial evidence in this case demonstrates that the intact D&E procedure
is as safe as D&E, and under some circumstances, is safer.
Even the government's witnesses, including Dr. Sprang, testified that
there is no medical proof that intact D&E is less safe. See Tr. Vol. 7
at 1167:23-24 (Sprang) (agreeing that there is no absolute proof that
intact D&E is less safe than D&E generally); see also Tr. Vol. 9 at
1486:22-1487:5 (Cook) (agreeing that with respect to instrumentation,
"when comparing D&E with intact D&E at the same gestational age, there
appear to be some benefits to intact D&E"); Tr. Vol. 8 at 1293:1-3;
1298:4-7 (Shadigian) (agreeing that "there is no basis in the literature
to prove that [intact D&E] is less safe" and that the necessity of a procedure is not the same thing as its safety).
Government witness Dr. Bowes testified that it has been established
that "overall D&E is a safer procedure than induction." Tr. Vol. 6 at
946:5-7 (Bowes). Moreover, he noted that he was "not aware of any
evidence-based medicine that establishes that the removal of the fetus
intact during the D&E is less safe than a D&E with disarticulation."
Id. at 971:14-17; 972:9-13 (agreeing also that "there is no reliable
medical basis upon which to say that intact removal of a fetus during a
D&E is any more dangerous to a woman than any other abortion method").
Dr. Bowes further agreed that "intuitively, it is safer if the fetus can
be removed with fewer instrumental passes" and generally that, intact
D&E may be safer for this reason. Id. at 944:21-25.
Absence of Controlled Studies or
As was the case at the time the Supreme Court decided Stenberg, there
was a similar absence of studies or peer-reviewed articles at the time
that Congress made its findings regarding the comparative safety of
However, the court notes, based on the Supreme Court's decision in
Stenberg, that the absence of studies does not support Congress'
ultimate finding that the procedure is never necessary or that a health
exception is never necessary. Instead, the Supreme Court specifically
held that the "absence of controlled medical studies that would help
answer these medical questions" was one of the "medically related
evidentiary circumstances," which led it to conclude that the Nebraska
law "requires a health exception." Stenberg, 530 U.S. at 937.
Medical School Instruction/Curriculum
Congress appears to have based its erroneous conclusion that "there are
currently no medical schools that provide instruction on abortions that
include the instruction of partial-birth abortions in their curriculum" on the testimony of one of the witnesses
in the Stenberg case. See Act, § 2(14)(B).
Based on the evidence available to this court, the intact D&E
procedure is taught at several major medical schools, including those that
are a part of New York University, Columbia University, Cornell
University, Albert Einstein College of Medicine, Northwestern
University, UCSF, UCSD, and the University of Pittsburgh, and is
performed at some of the leading medical institutions in the country,
including the hospitals associated with those universities. Tr. Vol. 5 at
795:15-22; 805:1-6; 830:10-832:6 (Westhoff) (the procedure "lies within
the standard of medical care" as it is taught and performed safely at "a
number of . . . university-based abortion services" and is "widely
accepted among academically-based abortion providers"). Moreover, intact
D&E is discussed in authoritative medical texts, including those
authored or co-authored by Drs. Paul and Westhoff. See, e.g. Tr. Vol. 6
at 950:16-24 (Bowes) (agreeing that Dr. Paul's abortion textbook is
authoritative and that Westhoff's reputation was high in the obgyn
Accordingly, because there are circumstances in which intact D&E
may be the safest procedure, contrary to the congressional finding
otherwise, a ban on intact D&E does not promote or advance the health
interest of pregnant women seeking to terminate a pregnancy. The opposite
is true because the Act, as written, may force pregnant women to undergo
a procedure that is less safe under their particular circumstances.
v. Characterization of Intact D&E as "Infanticide"
Congress also found that the ban "will draw a bright line that clearly
distinguishes between abortion and infanticide." Act, § 2 (14)(G). It
found that intact D&E constitutes "the killing of a child that is in
the process, in fact mere inches away from becoming a `person.'" See
id. at § 2 (14)(H). Congress further analogized the procedure to
the "killing of a newborn infant," and asserted that the "vast majority
of babies killed during partial-birth abortions are `alive' until the end of the procedure." See id. at § 2 (14)(L),(M).*fn59
However, what the congressional findings omit, as discussed, is that
the Act applies regardless of gestational age or viability. It is not
disputed in this case that the "newborn infant" or "baby" "mere inches
away from being born," as referred to by Congress, and with respect to
all of the intact D&E procedures at issue in this case, is not viable,
meaning that the fetus would be unable to survive outside of the mother.
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 (Westhof); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).
Congress' grossly misleading and inaccurate language, comparing the
procedure to the "killing of a newborn infant," appears to have been
intentional. Congress was aware that the Act as written applied to
previable fetuses. In fact, as noted in this court's discussion regarding
the Act's undue burden, 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). Moreover, government witness, Dr. Cook, who testified
twice before Congress, testified before this court that he suggested to
Congress limiting the applicability of the law to 20 weeks Imp, and his
advice was ignored. Tr. Vol. 9 at 1529:7-21 (Cook).
Finally, for reasons that this court has already discussed with respect
to the undue burden and overbreadth of the law, a "live" fetus is not the same
as a "viable" fetus. In using the term "live," Congress appears to have
intentionally disregarded the relevant medical distinction.
vi. Fetal Pain
Congress also made findings that, in the course of an intact D&E, the
fetus experiences pain.*fn60 See Act, § 2 (14)(M). This finding appears
to have been based on the testimony of a nurse from Dr. Haskell's office
who claimed that she observed an intact D&E on a 26 week Imp fetus who
visibly showed signs of pain,*fn61 and on the testimony and submissions
of other physicians, including several articles on the subject authored
by Dr. Anand, a government witness before this court.*fn62
For the reasons discussed in this court's findings, there is debate
within the medical community on this issue. Therefore, the position that
Congress has taken is neither incorrect nor entirely unsupported. It is,
however, irrelevant to the question of whether the Act requires a health
exception, as discussed in this court's conclusions of law.
vii. Impact on Medical Profession
Finally, Congress also found that the Act preserves the integrity of
the medical profession. See Act, § 2(14)(G). In support, Congress found
that intact D&E "confuses the medical, legal, and ethical duties of
physicians to preserve and promote life" because the "physician acts directly against the physical life of a child, whom he or
she had just delivered, all but the head, out of the womb, in order to
end that life." Id. at § 2(14)(J). Congress further asserts that the
procedure "appropriates the terminology and techniques used by
obstetricians in the delivery of living children . . . and instead uses
those techniques to end the life of the partially-born child." Id.
Accordingly, Congress found that intact D&E "undermines the public's
perception of the appropriate role of a physician during the delivery
process, and perverts a process during which life is brought into the
world, in order to destroy a partially-born child." Id. at § 2 (14) (K).
Aside from Congress' mischaracterization of the intact D&E procedure,
which is already discussed above and in this court's findings, Congress'
conclusion that the Act would somehow promote the integrity of the
medical profession is not supported by the evidence before Congress or
before this court. In addition to the plaintiffs' witnesses who all
discussed the extraordinarily negative impact that the Act would have and
has had on their relationships with their patients and on their ability
to provide the care that they deem to be in their patients' best
interests, many, if not all, of the government witnesses also testified
contrary to this congressional finding.
Dr. Cook, who testified before Congress, testified at trial that if he
had written the bill, he probably would have written it so that
physicians had greater leeway depending on whether fetal demise had
already occurred. Tr. Vol. 9 at 1524:10-1526:8 (Cook). Moreover, Dr.
Shadigian agreed, testifying that "the decision of whether there is a
threat to the woman's life must be left to the physician's best medical
judgment." Tr. Vol. 8 at 1322:1-4 (Shadigian); see also Tr. Vol. 6 at
944:15-19 (Bowes) (agreeing that regarding a medical exception, "a
physician should be permitted to rely on his or her own best medical
judgment to determine if there is such an emergency").
Further, as noted above, many major medical organizations, including
ACOG, AMWA, and the CMA oppose the Act on this basis alone. The CMA
submitted an amicus brief before this court that was especially
illustrative of the negative impact that the ban will have on the medical
profession. The CMA was persuasive in noting that the Act will likely have
the following adverse consequences:
(1) it will disrupt the informed consent relationship
between physicians and their patients because
physicians are ethically bound to assist the patient
in choosing among safe medical options and providing
the safest care possible consistent with the patients'
(2) because of the ambiguity in the act, it will have
a particularly chilling effect on all abortion
practices since physicians will have difficulty
interpreting what conduct is prohibited by the Act;
(3) the Act's lack of a health exception will
prevent physicians from exercising their best
medical judgment in light of a woman's particular
condition and situation;
(4) the Act could have the effect of placing
physicians in an awkward situation with their staff,
and could result in a conflict of interest very
similar to the nurse who testified before Congress;
(5) the Act's civil liability provisions may force
physicians to violate patients' confidentiality,
requiring the consent of the patients' husband or
parents under certain circumstances; and
(6) the Act could hinder medical advancements in
See generally March 25, 2004 CMA amicus brief.
d. Conclusion Regarding Deference to Congress' Finding that a
Health Exception is Unnecessary
It is apparent to this court, upon examination of the record before
Congress and the evidence presented at trial, that Congress' ultimate
finding that "partial-birth abortion" is never necessary to preserve the
health of the mother is the type of "finding" described by Justice Thomas
in Lamprecht v. FCC.*fn63 In that case, Justice Thomas noted:
We know of no support . . . for the proposition
that if the constitutionality of a statute depends
in part on the existence of certain facts, a court
may not review a legislature's judgment that the
facts exist. If a legislature could make a statute
constitutional simply by "finding" that black is
white or freedom, slavery, judicial review would
be an elaborate farce. At least since Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60
(1803), that has not been the law.
958 F.2d 382, 392 n. 2 (D.C. Cir. 1992).
For all of the reasons discussed above, this court concludes that
Congress' "finding" that the intact D&E procedure is never medically
necessary is unreasonable and is not supported by substantial evidence as was available to Congress at
the time. Accordingly, this court declines to defer to Congress'
"finding." See Turner II, 520 U.S. at 196.
Instead, this court will rely on its own findings set forth above,
based on the evidence before this court, deferring also to the Supreme
Court's decision in Stenberg because:
When the Court has interpreted the Constitution, it
has acted within the province of the Judicial Branch,
which embraces the duty to say what the law is. When
the political branches of the Government act against
the background of judicial interpretation of the
Constitution already issued, it must be understood
that in later cases and controversies the Court will
treat its precedents with the respect due them under
settled principles, including stare decisis, and
contrary expectations must be disappointed.
City of Boerne, 521 U.S. at 534 (citations omitted) (striking down the
RFRA and concluding that it "is the Court's precedent, not RFRA, which
E. Conclusions of Law: A Health Exception is Constitutionally Required
Based on the evidence before this court, and the court's determination
that Congress' ultimate finding that partial-birth abortion is never
necessary to preserve the health of the mother is not entitled to
deference, the court finds that the Act's life exception is
As noted, the Supreme Court was clear in Stenberg that a health
exception is required "[w]here substantial medical authority supports the
proposition that banning a particular abortion procedure could endanger
women's health." 530 U.S. at 938. Under those circumstances, the
Stenberg Court held that "Casey requires the statute to include a health
exception when the procedure is `necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother.'"
Here, the evidence establishes that the Act would ban procedures
performed prior to 24 weeks Imp, which is generally considered
previability. However, based on the Supreme Court's holding in Stenberg,
the necessity of a health exception does not depend on whether the 24
week period is considered pre or postviability. Id. at 931.
Accordingly, to the extent that there is any dispute regarding fetal
viability in accordance with the evidence before this court, the court's
conclusion that a health exception is required does not depend on whether
the procedures at issue are performed pre- or postviability. The Act here excepts only "a partial-birth abortion that is necessary
to save the life of a mother." The court finds, however, that a health
exception is necessary as well because, the three "medically related
evidentiary circumstances" present before the Supreme Court in Stenberg
exist here as well. See id. at 936-37.
First, the record before this court, like the district court's record
in Stenberg, demonstrates that "significant medical authority supports
the proposition that in some circumstances, [intact D&E] is the safest
procedure." Id. at 932. These include the following considerations,
present also in the Stenberg case, that among other maternal and fetal
conditions for some woman, other abortion procedures present "a larger
than necessary risk" of:
(1) a longer operating time; (2) greater blood
loss and infection; (3) complications from bony
fragments; (4) instrument-inflicted damage to the
uterus and cervix; (5) exposure to the most common
causes of maternal mortality (DIC and amniotic
fluid embolus); [and] (6) complications arising
from retained fetal parts.
Carhart II, 11 F. Supp.2d at 1127.
While this court has also found that an intact D&E, under these
circumstances, may not be the only safe option available to preserve the
life or the health of a woman, that finding does not undermine the
necessity of a health exception in this case. As the Supreme Court
explained in Stenberg, such a finding is irrelevant where the evidence
demonstrates that intact D&E is "significantly safer." Stenberg, 530
U.S. at 934. This court has similarly found that intact D&E may be
significantly safer for certain women under the particular circumstances
Second, for the reasons explained above, this court has also found that
there continues to be a division of opinion among highly qualified
experts regarding the necessity or safety of intact D&E. If anything,
since the Supreme Court's decision in Stenberg, the evidence before this
court suggests that the majority of highly-qualified experts on the
subject believe intact D&E to be the safest, most appropriate procedure
under certain circumstances.
Finally, as discussed, there continues to be an absence of controlled
medical studies that provide a definitive answer regarding the safety and
necessity of intact D&E. However, those studies that have been conducted
since the Supreme Court decided Stenberg, including the Chasen study,
provide medical support for the conclusion that intact D&E is a safe, and
sometimes necessary, procedure. While the government has suggested a lack
of diligence or effort on the part of the Act's opponents in conducting
such controlled medical studies, as this court has noted, experts agree
that the Chasen study is the "first step" in conducting even more
comprehensive studies regarding intact D&E.*fn65
The government's interests in protecting potential life and minimizing
potential pain to the fetus do not alter this court's finding regarding
the necessity of a health exception. In Stenberg, the Supreme Court
rejected the same arguments that were made by Nebraska regarding the
state's interests in that case. 530 U.S. at 930-931. The Court recognized
that "subsequent to viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate, and even
proscribe, abortion. . . . " Id. at 931. Nevertheless, it found Nebraska's
argument regarding its interest in the potentiality of life unpersuasive
because, like the Act here, Nebraska's law did not "sav[e] the fetus from
destruction," but instead simply "regulate[d] only a method of performing
abortion." Id. Most significantly, the Supreme Court held that Nebraska's
alleged interests did not "make any difference to the question at hand,
namely, the application of the `health' requirement." Id.
Accordingly, for these reasons, this court does not find that the
government's asserted fetal interests override the necessity of a health
exception to preserve the life and health of the mother.
Nor does this court find that the possibility of inducing fetal demise
prior to performing an intact D&E obviates the need for a health
exception. The government has suggested that physicians and patients can avoid falling within the Act's prohibitions if
fetal demise, by chemical injection or otherwise, is induced prior to the
procedure. However, to read into the Act such a requirement would, for the
reasons discussed in this court's findings, subject women to unnecessary
side effects and risks, however small, without providing any medical
benefit to them. Moreover, there are certain circumstances under which
inducing fetal demise is not possible or effective.
Accordingly, for all the reasons discussed above, this court finds that
the Act's omission of a health exception renders the Act
For all of the reasons discussed above, this court concludes that the
Act is unconstitutional because it (1) poses an undue burden on a woman's
ability to choose a second trimester abortion; (2) is unconstitutionally
vague; and (3) requires a health exception as set forth by the Supreme
Court in Stenberg. Permanent injunctive relief is appropriate given that
plaintiffs have demonstrated that the Act violates their constitutional
rights on the above three bases. See Elrod v. Burns, 427 U.S. 347, 373
(1976); see also Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th
Accordingly, defendant John Ashcroft, in his official capacity as
Attorney General of the United States, and his employees, officers,
agents, attorneys, and successors in office are PERMANENTLY ENJOINED from
enforcing the Partial-Birth Abortion Ban Act of 2003 against plaintiffs
Planned Parenthood Federation of America and Planned Parenthood Golden
Gate, intervenors City and County of San Francisco, their members,
officers, agents, servants, employees, contractors, and those persons in
active concert or participation with those persons listed above. This
order applies to those persons set forth above as they render services in
any facility, including facilities that are not owned or operated by
plaintiffs and/or intervenors.*fn67
The clerk shall close the file.
IT IS SO ORDERED.