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PLANNED PARENTHOOD FEDERATION OF AMERICA v. ASHCROFT

June 1, 2004.

PLANNED PARENTHOOD FEDERATION OF AMERICA, et al., Plaintiffs
v.
JOHN ASHCROFT, Attorney General of the United States, in his official capacity, Defendant; CITY AND COUNTY OF SAN FRANCISCO, Plaintiff Intervenor v. 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 SUPPORT THEREOF
INTRODUCTION
Before this court is the constitutionality of the Partial-Birth Abortion Ban Act of 2003 ("Act"). With the Act, Congress seeks to ban an abortion procedure it 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).

  1. D&E

  A D&E abortion is a surgical procedure, which is performed in two steps: dilation of the cervix and surgical removal of the fetus. See, e.g., Tr. Vol. 1 at 50:10-15 (Paul). About 85-95% of all second trimester abortions performed in the United States are D&Es. Tr. Vol. 1 at 48:24-49:17 (Paul); Trial Exhibit ("Exh.") 7 (table 18) (noting that D&Es make up 95% of all abortions taking place between 16 and 20 weeks of pregnancy, and 85% of all abortions taking place after 20 weeks); Tr. Vol. 5 at 804:2-3 (Westhoff).*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 659:25-660:5 (Creinin).

  The woman then returns to the clinic or hospital the next day, and, if sufficient dilation has been achieved, she is then placed under some form of sedation, and the cervix is prepared for surgery.*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 1721:11-15 (Chasen).

  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 minutes).

  Some doctors, but not all, also give an injection of either digoxin or potassium chloride ("KCI") either directly into the fetus' heart or in the amniotic fluid surrounding the fetus to effect fetal demise before the procedure is commenced. Compare Tr. Vol. 2 at 16-196:6 (Sheehan, who routinely offers digoxin); Tr. Vol. 4 at 561:15-562:22 (Broekhuizen) with Tr. Vol. 2 at 328:24-329:18 (Drey, who only offers digoxin when specifically requested to do so), Tr. Vol. 3 408:7-13, 416:14-419:19 (Doe, who does not routinely effect fetal demise before procedure); Tr. Vol. 5 at 819:20-820:5 (Westhoff); Tr. Vol. 11 at 1780:20-1782:21 (Chasen).

  2. Induction

  The second-most common method of second 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 526:8-527:2 (Broekhuizen).

  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 abortions).

  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" extraction.

  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, estimating 15-20%).

  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 expert witnesses.

  ISSUES

  Plaintiffs contend that the Act is unconstitutional, for the following reasons:
(1) the Act places an undue burden on a woman's right to choose;
(2) the Act is impermissibly vague because it fails to clearly define the prohibited medical procedures, thereby depriving physicians of fair notice and encouraging arbitrary enforcement;
(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
DISCUSSION
I. STANDARD OF REVIEW

  The 108th Congress made numerous findings in support of the Act. The government argues that this court must afford those findings substantial deference, while the plaintiffs, on the other hand, contend that this court need not accord the findings any deference. 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 pregnancy]").

  The court, therefore, discusses first the issues of undue burden and vagueness, setting forth its findings and conclusions on the issues, and subsequently, turns to the necessity of a health exception. In the section regarding the health exception, the court sets forth its findings of fact based on the trial evidence, and then discusses the legislative history of the Act and the record before Congress supporting the congressional findings. The court then provides its conclusion 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

  A. Introduction

  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." Id.

  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 by disarticulation.

  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 landmark."

  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, that:*fn13

  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 1783:15-1786:3 (Chasen).

  4. Plaintiffs' and the government's experts agree that in any D&E or induction, a living fetus may be extracted in a breech presentation until some "part of the fetal trunk past the navel is outside the body of the mother." Tr. Vol. 6 at 945:17-21 (Bowes); Tr. Vol. 8 at 1283:17-20 (Shadigian); Lockwood Depo 235:16-24; Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 1 at 99:16-2; 201:9-16 (Sheehan); Tr. Vol. 2 at 281:22-282:3 (Drey); Tr. Vol. 3 at 405:4-12; 422:3-19 (Doe); Tr. Vol 4 at 521:2-15; 551:19-552:4 (Broekhuizen); Tr. Vols. 4 & 5 at 678:23-679:14; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-823:12 (Westhoff); Tr. Vol. 11 at 1783:15-1786:3 (Chasen).

  5. In a D&E, this may occur under a variety of scenarios, including when:
(A) on an initial pass into the uterus with forceps, the physician disarticulates a small fetal part, which does not cause immediate demise, and then on a subsequent pass, the fetus is brought out of the cervix past the fetal navel;
(B) on an initial pass into the uterus with forceps, the physician brings out a fetal part — either 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 opening; or
(D) the physician extracts the fetus intact until "part of the fetal trunk past the navel is outside the woman's body," but it is not extracted so far that the calvarium lodges at the cervical opening.
Tr. Vol. 1 at 77:9-78:13 (Paul); Tr. Vol. 2 at 201:9-202:1; 272:18-22 (Sheehan); Tr. Vol. 4 at 521:2-15; 551:1-18 (Broekhuizen); Tr. Vols. 4 & 5 at 681:8-16; 784:3-786:18 (Creinin); Tr. Vol. 5 at 822:20-824:2 (Westhoff); Tr. Vol. 11 at 1783:15-1784:20 (Chasen).

  6. In an induction, this may occur because fetal demise may not have occurred by the time the fetus passes through the woman's cervix and vagina, and is outside the body of the woman past the fetal navel. Tr. Vol. 4 at 530:15-533:6 (Broekhuizen); Tr. Vol. 11 at 1784:21-1786:3 (Chasen).

  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 1784:15-1786:3 (Chasen).

  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. at 945-46.

   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 decision.*fn14

   For the reasons stated above, the court finds that the Act is unconstitutional.

  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. . . .
(Emphasis added.)

   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 fetus."

   B. Legal Standard

   The Supreme Court has unambiguously stated that vague laws are unconstitutional:
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 Act.

   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 vagueness).

  
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 not.
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 and Stenberg.

   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 exception.

   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 procedure.

   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 977:1-4.

   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 fetuses.

   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 1052:22-25.

   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. ...


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