      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2   Women’s Med. Prof’l, et al. v. Taft, et al.       No. 01-4124
   ELECTRONIC CITATION: 2003 FED App. 0446P (6th Cir.)
               File Name: 03a0446p.06                        Before: RYAN and BATCHELDER, Circuit Judges;
                                                                       TARNOW, District Judge.*
UNITED STATES COURT OF APPEALS                                                 _________________
             FOR THE SIXTH CIRCUIT                                                  COUNSEL
               _________________
                                                         ARGUED:        Stephen P. Carney, OFFICE OF THE
WOMEN ’S MEDICAL                 X                       ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
                                  -                      Appellants. Alphonse A. Gerhardstein, LAUFMAN &
PROFESSIONAL                                             GERHARDSTEIN, Cincinnati, Ohio, for Appellees.
CORPORATION ; MART IN             -
                                  -  No. 01-4124         ON BRIEF: Stephen P. Carney, Anne Berry Strait, Karl
HASKELL , MD,                     -                      William Schedler, OFFICE OF THE ATTORNEY
          Plaintiffs-Appellees, >                        GENERAL OF OHIO, Columbus, Ohio, for Appellants.
                                  ,                      Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN
                                  -                      & GERHARDSTEIN, Cincinnati, Ohio, David C. Greer,
           v.                     -                      BIESER, GREER & LANDIS, Dayton, Ohio, for Appellees.
                                  -                      Eric D. Miller, UNITED STATES DEPARTMENT OF
BOB TAFT , Governor; BETTY        -                      JUSTICE, Washington, D.C., A. Stephen Hut, Jr., Kimberly
D. MONTGO MERY , Attorney         -                      A. Parker, WILMER, CUTLER & PICKERING,
                                  -                      Washington, D.C., Jennifer Dalven, AMERICAN CIVIL
General; MATHIAS H. HECK ,
                                  -                      LIBERTIES UNION FOUNDATION, New York, New York,
JR.,                              -                      for Amici Curiae.
      Defendants-Appellants. -
                                  -                        RYAN, J., delivered the opinion of the court, in which
                                 N                       BATCHELDER, J., joined. TARNOW, D. J. (pp. 30-54),
      Appeal from the United States District Court       delivered a separate dissenting opinion.
      for the Southern District of Ohio at Dayton.
     No. 00-00368—Walter H. Rice, District Judge.                              _________________

                Argued: April 29, 2003                                             OPINION
                                                                               _________________
       Decided and Filed: December 17, 2003                RYAN, Circuit Judge. For the second time in six years, we
                                                         must decide whether an Ohio statute that restricts partial birth
                                                         abortions violates the Fourteenth Amendment of the United

                                                             *
                                                              The Honorable Arthur J. Tarnow, United States District Judge for
                                                         the Eastern District of Michigan, sitting by designation.

                           1
No. 01-4124    Women’s Med. Prof’l, et al. v. Taft, et al. 3      4   Women’s Med. Prof’l, et al. v. Taft, et al.   No. 01-4124

States Constitution. In Women’s Med. Prof’l Corp. v.              law that banned all partial birth abortions before and after
Voinovich, 130 F.3d 187 (6th Cir. 1997), we held, inter alia,     viability. The Court held the law unconstitutional on two
that Ohio’s first attempt to restrict partial birth abortions     grounds. First, Nebraska’s ban lacked a “health exception”
violated the Fourteenth Amendment because it imposed an           that would permit doctors to perform the banned abortion
“undue burden” on “a woman’s right to choose to have an           method when necessary to protect the mother’s health. Id. at
abortion.” Id. at 200-03.                                         937-38. Second, Nebraska’s ban imposed an “undue burden”
                                                                  on the abortion right by restricting the commonly performed
   The plaintiffs claim that Ohio’s new partial birth abortion    dilation and evacuation (D & E) method of abortion. Id. at
statute, Ohio Rev. Code Ann. § 2919.15.1 (Anderson 2002)          938-40.
(the Act), is likewise unconstitutional, because: (1) it does
not contain an adequate health exception; and (2) it imposes        Almost immediately after Carhart was decided, the
an “undue burden” upon a woman seeking to abort a non-            plaintiffs who prevailed in Voinovich brought a facial
viable fetus, in that the description of the banned abortion      challenge to the constitutionality of the present statute. They
method encompasses the concededly lawful dilation and             challenged the Act on several grounds, the principal claims
evacuation (D & E) abortion procedure.                            being: (1) the Act’s health exception is constitutionally
                                                                  inadequate, and (2) the Act imposes an “undue burden” on the
  As set forth in detail below, we reject both claims, and hold   abortion right by restricting the commonly performed dilation
that Ohio’s new statute does not violate the Constitution in      and evacuation (D & E) abortion method. The district court
any respect. We shall therefore reverse the district court’s      agreed with the plaintiffs’ first claim and held that the Act’s
judgment.                                                         health exception was constitutionally inadequate. In the
                                                                  district court’s view, Carhart requires states to permit a
                              I.                                  partial birth abortion whenever a physician believes it to be
                                                                  “simply the safest” available procedure. On the basis of this
                    INTRODUCTION                                  reading of Carhart, the district court invalidated the Act and
                                                                  entered a permanent injunction against its enforcement. The
   After our decision in Voinovich, Ohio’s General Assembly       district court declined to address the plaintiffs’ undue burden
enacted the present statute, Ohio Rev. Code Ann. § 2919.15.1      claim at the permanent injunction stage, but both parties urge
(the Act). The Act restricts partial birth abortions, but it      us to reach that issue on appeal.
differs significantly from the law struck down in Voinovich in
that the Act specifically excludes the “dilation and                For the reasons set forth below, we hold that the Act
evacuation” (D & E) method from its reach. Ohio Rev. Code         conforms in all respects to the requirements of the Fourteenth
Ann. § 2919.15.1(F). The Act also contains a “health              Amendment in the abortion legislation context, as those
exception” which permits the partial birth abortion method        requirements were announced in Planned Parenthood v.
before and after viability, when necessary to protect the         Casey, 505 U.S. 833 (1992), and subsequently applied in
mother’s health. Ohio Rev. Code Ann. § 2919.15.1(B), (C).         Stenberg v. Carhart, 530 U.S. 914 (2000). We therefore
                                                                  REVERSE the district court’s judgment and VACATE the
  Shortly before the Act’s effective date, the United States      injunction preventing enforcement of the Act.
Supreme Court decided Stenberg v. Carhart, 530 U.S. 914
(2000), a case concerning the constitutionality of a Nebraska
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             II. FACTUAL BACKGROUND                                 may occur prior to dismemberment. See Carhart, 530 U.S. at
                                                                    925-26; Women’s Med., 162 F. Supp. 2d at 946. The process
                          A. Parties                                continues until the entire dead fetus has been removed, piece-
                                                                    by-piece, from the woman’s uterus.
   The plaintiffs are the Women’s Medical Professional
Corporation (WMPC), an Ohio corporation providing                               2. Dilation and extraction – D & X
abortion services in Ohio, and Dr. Martin Haskell, the
physician who owns and operates WMPC. They perform                    In the abortion procedure now widely known as partial
procedures prohibited by the Act and fear civil and criminal        birth abortion and also commonly referred to as dilation and
liability as a result. The defendants are various officers of the   extraction, or “D & X,” and sometimes called “intact D & E”
State of Ohio sued in their official capacities.                    or “intact D & X,” see Carhart, 530 U.S. at 927-28; ACOG
                                                                    Statement of Policy (1997), the physician removes the dead
           B. Late Term Abortion Procedures                         fetus whole and “‘intact,’ i.e., in one pass, rather than in
                                                                    several passes.” Carhart, 530 U.S. at 927. Dr. Haskell
  A clear understanding of our resolution of the issues             claims to have coined the clinical term “dilation and
presented requires an equally clear understanding of two            extraction” in 1992 in order to distinguish the intact abortion
procedures used to put to death fetuses that have advanced to       procedure from the more common “dismemberment-type D
the later stages of the second trimester of the mother’s            & E” abortion method.
pregnancy. The labels we use to describe each of these
procedures, while not perfectly precise, have a generally             The physician initiates the D & X or partial birth abortion
understood meaning, regularly relied upon by courts, litigants,     procedure by dilating a woman’s cervix, but to a greater
medical experts, and legislatures operating in this field of law.   degree than in the traditional D & E procedure. Women’s
And we reject the efforts by the parties and amici to fortify       Med., 162 F. Supp. 2d at 946. Once the physician achieves
their arguments by the use of labels and descriptive language       sufficient dilation, the manner in which the abortion proceeds
obviously employed for revulsive or obfuscating effect.             depends upon the presentation of the fetus. Although some
                                                                    doctors take the fetus as it presents, Dr. Haskell maneuvers
           1. Dilation and evacuation – D & E                       the fetus to a feet-first position (breech presentation) before
                                                                    proceeding. Carhart, at 927-28; Women’s Med., 162 F. Supp.
   As performed late in the second trimester, the abortion          2d at 946. In a breech extraction, the physician partially
procedure commonly referred to as dilation and evacuation,          delivers the fetus through the mother’s cervix up to a point
or “D & E,” begins with dilation of a woman’s cervix.               that allows the physician to access the fetus’s head, which is
Carhart, 530 U.S. at 925; Women’s Med. Prof’l Corp. v. Taft,        inside the mother, while stabilizing the fetus’s body, which is
162 F. Supp. 2d 929, 946 (S.D. Oh. 2001). Once sufficient           outside the mother. Then, in order to collapse the fetus’s
dilation is achieved, the physician reaches into the woman’s        skull (so that it will pass easily through the cervix), the
uterus with an instrument, grasps an extremity of the fetus,        physician “forces a pair of scissors into the base of the skull,
and pulls. Carhart, 530 U.S. at 925-26; Women’s Med., 162           enlarges the opening and evacuates the contents with a
F. Supp. 2d at 946. When the fetus lodges in the cervix, the        suction catheter.” Women’s Med., 162 F. Supp. 2d at 946.
traction between the grasping instrument and the cervix             The abortion concludes with the removal, in a single pass, of
causes dismemberment and eventual death, although death             the fetus’s intact, dead body. Carhart, 530 U.S. at 927. If the
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fetus presents head first (a cephalic presentation), the doctor     The Act defines “partial birth procedure” as “the medical
first collapses the fetus’s exposed skull by “breaching and       procedure that includes all of the following elements in
compressing the [head] with the forceps’ jaws, inserting a        sequence”:
finger . . . , or piercing the [head] with a sharp instrument,
such as a tenaculum or a large-bore needle.” W. Martin                 (a) Intentional dilation of the cervix of a pregnant
Haskell, MD, et al., Surgical Abortion After the First                woman, usually over a sequence of days;
Trimester, in A Clinician’s Guide to Medical and Surgical
Abortion, 135 (Maureen Paul, MD, et al., eds. 1999). The                 (b) In a breech presentation, intentional extraction of
doctor then suctions out the fetus’s skull contents, if               at least the lower torso to the navel, but not the entire
necessary, id., and completes the delivery of the fetus from          body, of an intact fetus from the body of the mother, or
the mother’s body, whole and intact, in a single pass.                in a cephalic presentation, intentional extraction of at
Carhart, 530 U.S. at 927.                                             least the complete head, but not the entire body, of an
                                                                      intact fetus from the body of the mother;
  We now turn to an examination of the Ohio statute.
                                                                        (c) Intentional partial evacuation of the intracranial
    C. Statutory Provisions – Ohio Rev. Code Ann.                     contents of the fetus, which procedure the person
                     § 2919.15.1                                      performing the procedure knows will cause the death of
                                                                      the fetus, intentional compression of the head of the
  The Act makes it a second-degree felony to commit the               fetus, which procedure the person performing the
crime of “partial birth feticide.” Ohio Rev. Code Ann.                procedure knows will cause the death of the fetus, or
§ 2919.15.1(D). A person commits partial birth feticide by            performance of another intentional act that the person
violating either Ohio Rev. Code Ann. § 2919.15.1(B), which            performing the procedure knows will cause the death of
applies after viability, or Ohio Rev. Code Ann.                       the fetus;
§ 2919.15.1(C), which applies before viability. Both
provisions use identical language to identify the crime:                (d) Completion of the vaginal delivery of the fetus.

  When the fetus that is the subject of the procedure is [or      Ohio Rev. Code Ann. § 2919.15.1(A)(3).
  “is not”] viable, no person shall knowingly perform a
  partial birth procedure on a pregnant woman when the               In Carhart, 530 U.S. at 937-38, the Court held the
  procedure is not necessary, in reasonable medical               Nebraska statute unconstitutional, in part, because it
  judgment, to preserve the life or health of the mother as       contained no exception at all to protect the mother’s health.
  a result of the mother’s life or health being endangered        In contrast, Ohio’s statute contains a detailed health exception
  by a serious risk of the substantial and irreversible           that permits the partial birth procedure, both before and after
  impairment of a major bodily function.                          viability, when “necessary, in reasonable medical judgment,
                                                                  to preserve the life or health of the mother as a result of the
Ohio Rev. Code Ann. § 2919.15.1(B), (C).                          mother’s life or health being endangered by a serious risk of
                                                                  the substantial and irreversible impairment of a major bodily
                                                                  function.” Ohio Rev. Code Ann. § 2919.15.1(B), (C). The
                                                                  Act defines “serious risk of the substantial and irreversible
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 9       10 Women’s Med. Prof’l, et al. v. Taft, et al.      No. 01-4124

impairment of a major bodily function” to mean “any                 Sess. (Ohio 2000). The Act also attempts to “further[] the
medically diagnosed condition that so complicates the               state interest in preventing unnecessary cruelty.” Id. at § 3(D).
pregnancy of the woman as to directly or indirectly cause the
substantial and irreversible impairment of a major bodily                          D. District Court Proceedings
function.” Ohio Rev. Code Ann. § 2919.15.1(A)(5).
                                                                       On July 27, 2000, soon after the Supreme Court’s decision
   The Act also identifies three specific abortion procedures       in Carhart, the plaintiffs filed a complaint seeking a
that remain legal: “the suction curettage procedure of              temporary restraining order and preliminary injunction to
abortion, the suction aspiration procedure of abortion, [and]       prevent the defendants from enforcing the Act. The plaintiffs
the dilation and evacuation procedure of abortion.” Ohio            challenged the Act on four grounds: (1) the Act imposes an
Rev. Code Ann. § 2919.15.1(F). According to Ohio Rev.               undue burden by sweeping in D & E abortions performed
Code Ann. § 2919.15.1(A)(1), the “‘[d]ilation and evacuation        during the second trimester; (2) the Act’s “health exception”
procedure of abortion’ does not include the dilation and            is inadequate; (3) the Act lacks adequate scienter standards;
extraction procedure of abortion.” Thus, the Act, using the         and (4) the Act unconstitutionally permits third-party civil
clinical term coined by Dr. Haskell, gives clear guidance           suits against physicians who violate its terms. The district
about which abortion procedures may be performed without            court issued two lengthy rulings, one at the preliminary
restriction. The Act also declares that its prohibition “does       injunction stage, Women’s Med. Prof’l Corp. v. Taft, 114 F.
not apply to any person who performs or attempts to perform         Supp. 2d 664 (S.D. Oh. 2000), and another at the permanent
a legal abortion if the act that causes the death of the fetus is   injunction stage. Women’s Med. Prof’l Corp. v. Taft, 162 F.
performed prior to the fetus being partially born even though       Supp. 2d 929 (S.D. Oh. 2001).
the death of the fetus occurs after it is partially born.” Ohio
Rev. Code Ann. § 2919.15.1(G). “Partially born” is defined            In its preliminary injunction ruling, the court rejected the
to mean “that the portion of the body of an intact fetus            plaintiffs’ undue burden claim. Women’s Med., 114 F. Supp.
described in division (A)(3)(b) of this section has been            2d at 683. Although the court declined to rule on the issue at
intentionally extracted from the body of the mother.” Ohio          the permanent injunction stage, Women’s Med., 162 F. Supp.
Rev. Code Ann. § 2919.15.1(A)(4). And, as the Act explains,         2d at 937, both parties urge us to reach this issue on appeal.
“‘[f]rom the body of the mother’ means that the portion of the      Also, in both rulings, the district court held that the Act’s pre-
fetus’ body in question is beyond the mother’s vaginal              viability health exception was too narrow because it did not
introitus in a vaginal delivery.” Ohio Rev. Code Ann.               permit the partial birth procedure “‘to be performed in cases
§ 2919.15.1(A)(2).                                                  where the medical evidence shows that it is simply the safest
                                                                    method of abortion.’” Women’s Med., 162 F. Supp. 2d at 940
  Finally, the Act expresses the legislature’s purpose. In          (emphasis added) (quoting Women’s Med., 114 F. Supp. 2d at
summary, the Ohio General Assembly intended “to prevent             688). For the same reason, the court struck down the Act’s
the unnecessary death of fetuses when they are substantially        post-viability health exception as applied to women in
outside the body of the mother,” in pursuit of Ohio’s “interest     medical need of a post-viability abortion. Women’s Med.,
in maintaining a strong public policy against infanticide,          162 F. Supp. 2d at 961-62. Ohio appeals these components
regardless of the life expectancy or state of development of        of the district court’s judgment.
the child.” H.B. 351, § 3(A), (B), 123rd Gen. Assem., Reg.
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 11     12 Women’s Med. Prof’l, et al. v. Taft, et al.      No. 01-4124

  With respect to the plaintiffs’ “scienter” claim, the district   jointly by Justices O’Connor, Kennedy, and Souter, the Court
court concluded that it would be unconstitutional for an           reaffirmed what it called the “essential holding” of Roe v.
abortion law to impose strict liability regarding a                Wade, 410 U.S. 113 (1973). Casey, 505 U.S. at 845-46.
determination of viability or the applicability of the health      While preserving for women the right to choose an abortion,
exception. Women’s Med., 114 F. Supp. 2d at 699; Women’s           the Court rejected the “rigid trimester” approach from Roe
Med., 162 F. Supp. 2d at 936. Nevertheless, the court              and replaced it with a constitutional line drawn at viability.
preserved the Act’s constitutionality by importing a               Id. at 870-74. The Court held that a state may regulate
“recklessness” scienter requirement pursuant to Ohio law.          abortion before viability as long as it does not impose an
Women’s Med., 114 F. Supp. 2d at 700, 703-04; Women’s              “undue burden” on a woman’s right to terminate her
Med., 162 F. Supp. 2d at 936. Neither party appeals this           pregnancy. Id. at 876. A state may regulate and even prohibit
aspect of the judgment.                                            abortion after viability “‘except where it is necessary, in
                                                                   appropriate medical judgment, for the preservation of the life
  Finally, at the permanent injunction stage, the district court   or health of the mother.’” Id. at 879 (quoting Roe, 410 U.S.
held that the plaintiffs lacked standing to challenge the          at 164-65).
constitutionality of the Act’s third-party civil suit provision.
Women’s Med., 162 F. Supp. 2d at 967. The plaintiffs do not           In Carhart, 530 U.S. 914, a majority of the Supreme Court
appeal this part of the decision.                                  applied Casey’s requirements to a Nebraska statute that
                                                                   attempted to ban partial birth abortions. The Court struck
                      III. ANALYSIS                                down Nebraska’s ban for two reasons: (1) it lacked a
                                                                   maternal health exception, id. at 937-38; and (2) it defined the
  Our standard of review is that stated in our earlier decision    banned procedure so broadly and vaguely that it swept in the
in Voinovich, 130 F.3d 187:                                        most common method for performing late term abortions, the
                                                                   dilation and evacuation (D & E) procedure, id. at 939-40. In
    This court reviews questions of law de novo. . . .             contrast, the statute before us contains a maternal health
  While we normally review questions of fact for clear             exception, defines the banned procedure narrowly, and
  error, see Fed. R. Civ. P. 52, an appellate court is to          explicitly excludes from its ban the dilation and evacuation
  conduct an independent review of the record when                 (D & E) procedure. We must decide whether the Act is
  constitutional facts are at issue.                               sufficiently protective and specific to satisfy constitutional
                                                                   requirements.
Id. at 192 (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6
(1964)).                                                             It bears emphasis, as an initial matter, that while we must
                                                                   protect the abortion right against unwarranted state intrusion,
  Our analysis begins, as it must, with the Supreme Court’s        we are not empowered to ignore or undervalue the
decisions in Casey, 505 U.S. 833, and Carhart, 530 U.S. 914.       governmental interests this statute embodies. An essential
These two cases establish the governing standards for the          feature of the jointly authored opinion in Casey is the
“undue burden” and “health exception” issues we must decide        reaffirmation of the “substantial state interest in potential life
today. In Casey, 505 U.S. 833, the Supreme Court evaluated         throughout pregnancy.” 505 U.S. at 876. As Casey
the constitutionality of a Pennsylvania statute that imposed a     recognizes, the Court’s prior decisions, beginning with Roe,
variety of restrictions on abortion. In an opinion authored        410 U.S. 113, had enforced a rigid framework that
No. 01-4124      Women’s Med. Prof’l, et al. v. Taft, et al. 13        14 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

“sometimes contradicted the State’s permissible exercise of            longer applies to abortion legislation. Casey, 505 U.S. at 871-
its powers.” 505 U.S. at 872. Casey thus attempts to restore           77. Indeed, even in the less deferential realm of strict
a balance of interests between women seeking abortions and             scrutiny, the Supreme Court recently has shown, in an
states seeking to regulate abortions by reasserting the                altogether different context to be sure, considerable deference
importance of the states’ interests and emphasizing that the           to states attempting to balance competing, high-order
abortion right is not infringed merely because a law makes it          interests. Cf. Grutter v. Bollinger, 123 S. Ct. 2325, 2339,
“more difficult or more expensive” to exercise. Id. at 873-74.         2346 (2003). Therefore, while the Act cannot stand if it
                                                                       impermissibly infringes on the abortion right, we will not
  Along similar lines, although Carhart invalidates                    assume that it violates the Fourteenth Amendment merely
Nebraska’s partial birth abortion ban, it does so only after           because it reflects interests in preventing unnecessary death
acknowledging the legitimate relationship between the                  and cruelty to partially born children, maintaining a strong
interest in protecting fetal life and the more subtle interests        public policy against infanticide, and preserving the integrity
motivating the Nebraska legislature’s decision to ban partial          of the medical profession. We turn now to the specific
birth abortions: that is, showing concern for fetal life;              challenges raised by the plaintiffs.
preventing cruelty to partially born infants; and preserving the
integrity of the medical profession. 530 U.S. at 930-31.                           A. Adequacy of Health Exception
Likewise, in this case, Ohio grounds its ban on three interests:
preventing the unnecessary death of fetuses when they are                 Unlike the Nebraska statute invalidated in Carhart, partly
substantially outside the mother’s body; maintaining a strong          because it did not have a health exception, the Ohio Act
public policy against infanticide; and preventing unnecessary          contains a detailed health exception that applies both before
cruelty. H.B. 351, § 3, 123rd Gen. Assem., Reg. Sess. (Ohio            and after viability. Sections 2919.15.1(B) and (C) permit the
2000). These interests bear a striking resemblance to those            partial birth procedure when it is “necessary, in reasonable
implicitly accepted in Carhart, 530 U.S. at 930-31, and also           medical judgment, to preserve the life or health of the mother
reflect the long-recognized interests in protecting what Roe           as a result of the mother’s life or health being endangered by
called “potential life,” Roe, 410 U.S. at 154, and showing             a serious risk of the substantial and irreversible impairment of
“concern for the life of the unborn,” Casey, 505 U.S. at 869.          a major bodily function.”            Ohio Rev. Code Ann.
                                                                       § 2919.15.1(B), (C). The Act defines “serious risk of the
  Ohio’s expression of these important and legitimate                  substantial and irreversible impairment of a major bodily
interests warrants a measure of deference, rather than the             function” to mean “any medically diagnosed condition that so
virtual assumption of unconstitutionality that has led federal         complicates the pregnancy of the woman as to directly or
courts, thus far, to invalidate the efforts of at least 20 states to   indirectly cause the substantial and irreversible impairment of
exercise the limited sovereign authority to regulate abortions         a major bodily function.”            Ohio Rev. Code Ann.
and abortion methods. Ordinarily, it is only in legislation            § 2919.15.1(A)(5).
properly subject to strict scrutiny that a presumption of
unconstitutionality applies. Cf. Lac Vieux Desert Band of                The plaintiffs contend that this exception is constitutionally
Lake Superior Chippewa Indians v. Michigan Gaming                      inadequate because, they argue, a valid health exception must
Control Bd., 276 F.3d 876, 879 (6th Cir.), cert. denied, 536           give physicians the discretion to use the partial birth
U.S. 923 (2002); Richland Bookmark, Inc. v. Nichols, 137               procedure in any and every circumstance in which a particular
F.3d 435, 439 (6th Cir. 1998). Strict scrutiny, of course, no          physician deems the procedure preferable to other readily
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 15     16 Women’s Med. Prof’l, et al. v. Taft, et al.     No. 01-4124

available and more widely used procedures, such as the             Pennsylvania statute, beginning with the provision that
dilation and evacuation (D & E) procedure. The plaintiffs          exempted women from compliance with the various
insist that the Constitution bars Ohio from enacting a health      regulations in the event of a “medical emergency.” Id. at 879-
exception that permits the partial birth procedure only when       80. Pennsylvania defined a “medical emergency” as:
necessary to prevent “serious risk[s]” involving “medically
diagnosed condition[s]” that complicate a woman’s                      that condition which, on the basis of the physician’s
pregnancy. Ohio Rev. Code Ann. § 2919.15.1(A)(5). In the             good faith clinical judgment, so complicates the medical
plaintiffs’ view, to satisfy the Fourteenth Amendment, a             condition of a pregnant woman as to necessitate the
health exception must make the partial birth abortion method         immediate abortion of her pregnancy to avert her death
available whenever any physician deems it “simply safer”             or for which a delay will create serious risk of substantial
than using alternative methods. Ohio responds that a valid           and irreversible impairment of a major bodily function.
health exception need only permit the partial birth procedure
when necessary to prevent significant, as opposed to               Id. at 879 (internal quotation marks and citation omitted).
negligible, health risks, and that its maternal health exception
meets and exceeds this standard. We agree, and therefore              The plaintiffs in Casey challenged this definition as being
hold that Ohio’s maternal health exception is valid because it     too narrow, because “it forecloses the possibility of an
permits the partial birth procedure when necessary to prevent      immediate abortion despite some significant health risks.” Id.
significant health risks. The Fourteenth Amendment, as             at 880. Thus, the pertinent interpretive question in Casey was
applied in Casey and Carhart, requires nothing more.               whether the definition of “medical emergency” encompassed
                                                                   certain specified “conditions [that] could lead to an illness
   As we have said, in Casey, 505 U.S. 833, the Supreme            with substantial and irreversible consequences.” Id. These
Court evaluated the constitutionality of a Pennsylvania statute    “conditions” included physical, pregnancy-related conditions
that imposed a variety of restrictions on abortion. The Court      such as preeclampsia, inevitable abortion, and premature
preserved the right to choose an abortion but rejected the         ruptured membrane. Id. The Court focused on the fact that,
“rigid trimester” approach from Roe and replaced it with a         at the appellate level, the Third Circuit had construed the term
constitutional line drawn at viability. Id. at 870-74. Before      “serious risk” to mean “‘that compliance with
viability, the Court held, a state may regulate abortion as long   [Pennsylvania’s] abortion regulations would not in any way
as it does not impose an “undue burden” on a woman’s right         pose a significant threat to the life or health of a woman.’” Id.
to terminate her pregnancy. Id. at 876. After viability, a state   (quoting Planned Parenthood v. Casey, 947 F.2d 682, 701
may regulate and even prohibit abortion “‘except where it is       (3d Cir. 1991)). Based on this narrowing construction, the
necessary, in appropriate medical judgment, for the                Court held that “the medical emergency definition imposes no
preservation of the life or health of the mother.’” Id. at 879     undue burden on a woman’s abortion right.” Casey, 505 U.S.
(quoting Roe, 410 U.S. at 164-65).                                 at 880. The Third Circuit also had expressed its view that the
                                                                   wording of Pennsylvania’s medical emergency exception was
  According to Casey, an “undue burden” exists when “a             “carefully chosen to prevent negligible risks to life or health
state regulation has the purpose or effect of placing a            or significant risks of only transient health problems from
substantial obstacle in the path of a woman seeking an             serving as an excuse for noncompliance.”                Planned
abortion of a nonviable fetus.” 505 U.S. at 877 (emphasis          Parenthood v. Casey, 947 F.2d at 701 (3d Cir. 1991).
added). The Court applied its “undue burden” standard to the
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 17       18 Women’s Med. Prof’l, et al. v. Taft, et al.      No. 01-4124

  In Carhart, 530 U.S. 914, the Court applied Casey to               except when the procedure is necessary to prevent a
Nebraska’s attempted ban of the partial birth abortion method.       significant health risk. Casey specifically endorses a
The majority opinion, by Justice Breyer, held the law                “medical emergency” exception that, based on the Third
unconstitutional for two reasons. First, the law contained no        Circuit’s narrowing construction, excused compliance with
maternal health exception at all. Id. at 930-38. Second, the         the various regulations in any situation involving a
law’s definition of “partial birth abortion” encompassed the         “‘significant threat to the life or health of a woman.’” 505
widely used D & E method as well as D & X, thereby                   U.S. at 880 (citation omitted). Carhart, in requiring a health
imposing an undue burden on a woman’s pre-viability right            exception without identifying its specific content, relies
to choose an abortion. Id. at 938-46.                                heavily on medical evidence and lower court findings
                                                                     indicating that D & X might be “significantly safer in certain
   Carhart’s first holding, of primary significance here, is that    circumstances,” 530 U.S. at 934 (emphasis omitted), that D &
a statute banning D & X “must contain a health exception”            X “significantly obviates health risks in certain
because “a statute that altogether forbids D & X creates a           circumstances,” id. at 936, that a complete D & X ban would
significant health risk.” Id. at 938. Nebraska sought to             “create significant health risks,” id. at 932, and that “a statute
persuade the Court that its omission of a maternal health            that altogether forbids D & X creates a significant health
exception did not render the ban unconstitutional because a          risk,” id. at 938. In our view, the Court does not use this
partial birth abortion is never necessary to protect a woman’s       terminology loosely; rather, this language demonstrates the
health. Id. at 931-32. Nebraska faced a difficult task on this       Court’s attentiveness to the limited number of situations
point, as its burden was “to demonstrate that banning D & X          involving a real medical need for D & X. We cannot
without a health exception may not create significant heath          conclude that the Court meant by this to require that a state’s
risks for women.” Id. at 932. The Court concluded that               health exception recognize marginal or insignificant risks
Nebraska failed to carry that burden. Id. at 937-38. Thus,           generalized to the entire population of women seeking late
based on the “medically related evidentiary circumstances” in        second-trimester abortions.
the case, id. at 937, the Court rejected Nebraska’s absolute
claim that D & X is never safer than other abortion                     Our holding finds further support in the familiar phrase,
procedures.                                                          “necessary, in appropriate medical judgment, for the
                                                                     preservation of the life or health of the mother,” recited first
  The case before us involves a different type of absolute           in Roe, 410 U.S. at 164-65, retained in Casey, 505 U.S. at
position, taken not by the state but by physicians who               879, and relied on in Carhart, 530 U.S. at 931. Although
routinely perform the restricted procedure. They urge us to          Carhart cautions that the term “necessary” does not “refer to
endorse their view that D & X is always safer than other             an absolute necessity or to absolute proof,” 530 U.S. at 937,
methods used during the late second trimester. Stated                the word cannot be emptied entirely of its distinctive meaning
differently, the plaintiffs believe that a health exception, to be   by being equated with “desirable.” As used in Roe, 410 U.S.
constitutional, must give physicians complete freedom to             at 164-65, and developed in Carhart, 530 U.S. at 937, it at
perform abortions using the D & X procedure whenever they            least denotes some measure of compulsion; a “necessary”
wish to do so. We disagree.                                          medical procedure surely is not the same thing as an
                                                                     “optional” or “preferable” one. In our view, the “significant
  Taken together, Casey and Carhart stand for the                    risk” threshold captures this distinction without violating
proposition that states may restrict an abortion procedure           Carhart’s admonition against unrealistic standards of proof.
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 19      20 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

   Additionally, merely as a “straightforward application” of       abortion methods. For support, they rely heavily on a single
Casey, id. at 938, Carhart must be understood in light of the       dictum from Carhart: “a State may promote but not endanger
doctrinal shift wrought by Casey. In adopting the “undue            a woman’s health when it regulates the methods of abortion.”
burden” standard in Casey, the Court believed it had found          Id. at 931 (citing Thornburgh v. Am. Coll. of Obstetricians
“the appropriate means of reconciling the State’s interest with     and Gynecologists, 476 U.S. 747, 768-69 (1986); Colautti v.
the woman’s constitutionally protected liberty.” Casey, 505         Franklin, 439 U.S. 379, 400 (1979); Planned Parenthood of
U.S. at 876. Before Casey, the Court admitted, its decisions        Central Mo. v. Danforth, 428 U.S. 52, 76-79 (1976); Doe v.
had “undervalue[d] the State’s interest in the potential life       Bolton, 410 U.S. 179, 197 (1973)). To the extent one might
within the woman.” Id. at 875. By rejecting Roe’s rigid             read this phrase as authority for the plaintiffs’ absolute view,
trimester framework in favor of the undue burden standard,          Carhart’s next paragraph proves that reading to be wrong:
the Court endeavored to protect women from unwarranted
interference with the abortion right while allowing states to         The cited cases, reaffirmed in Casey, recognize that a
express, meaningfully, their “concern for the life of the             State cannot subject women’s health to significant risks
unborn,” id. at 869, and even their “preference for normal            both in [the context of health threats created by
childbirth,” id. at 872 (internal quotation marks and citations       pregnancy], and also where state regulations force
omitted). Accordingly, a state’s regulation of abortion before        women to use riskier methods of abortion. Our cases
viability may not have “the purpose or effect of placing a            have repeatedly invalidated statutes that in the process of
substantial obstacle in the path of a woman seeking an                regulating the methods of abortion, imposed significant
abortion.” Id. at 877.                                                health risks. They make clear that a risk to a women’s
                                                                      [sic] health is the same whether it happens to arise from
   While the majority opinion in Carhart does not employ the          regulating a particular method of abortion, or from
undue burden standard explicitly in connection with the               barring abortion entirely. Our holding does not go
health exception issue, its analysis reflects Casey’s                 beyond those cases, as ratified in Casey.
acknowledgment of the importance of reconciling profound
state interests and personal rights. For example, in Carhart,       Carhart, 530 U.S. at 931 (emphasis added and omitted). Not
the Court explains that, “[b]y no means must a State grant          only does this passage clarify the preceding dictum, it also
physicians ‘unfettered discretion’ in their selection of abortion   firmly recasts the Court’s previous decisions in the
methods.” 530 U.S. at 938 (citation omitted). The Court             “significant health risk” mold. Therefore, we think the
assures its dissenting members that it would not prohibit a         plaintiffs greatly exaggerate the significance of the isolated
state “from proscribing an abortion procedure whenever a            phrase quoted above and ignore Carhart’s self-professed
particular physician deems the procedure preferable.” Id. In        limitations. Most importantly, Carhart cautions that it neither
a broader sense, even by focusing on the need for a health          extends nor departs from Casey. Id. at 931, 938. Moreover,
exception, the Court invites state regulation of abortion           because Nebraska made an absolute, negative claim about the
methods. If it were otherwise, the Court would have held, in        relative safety of D & X, the Court needed only to satisfy
a straightforward fashion, that states may not interfere at all     itself that the evidence indicated that a maternal health
with medical discretion when abortions are involved.                exception might be necessary in some circumstances. For
                                                                    these reasons, Carhart’s narrow holding regarding the basic
   The plaintiffs mistakenly believe that Carhart requires that     need for a health exception should not be mistaken for a broad
states give physicians unfettered discretion in the choice of       decision that would clash with Casey’s express endorsement
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 21              22 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

of a health exception triggered only by “‘significant threat[s]                   The question remains whether Ohio’s maternal health
to the life or health of a woman.’” Casey, 505 U.S. at 880                     exception achieves what Casey and Carhart require. Before
(citation omitted).                                                            examining the Act’s provisions, we pause to recognize our
                                                                               duty to “resort[]” to “every reasonable construction . . . in
  Despite the plaintiffs’ stated fears, our decision does not                  order to save a statute from unconstitutionality.” Edward J.
conflict with our earlier holding in Voinovich, 130 F.3d 187.                  DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
In Voinovich, we struck down, among other provisions,                          Trades Council, 485 U.S. 568, 575 (1988) (internal quotation
Ohio’s post-viability ban of all abortions because the statute                 marks and citation omitted); see also Frisby v. Schultz, 487
did not allow a post-viability abortion “where necessary to                    U.S. 474, 483 (1988); NLRB v. Jones & Laughlin Steel Corp.,
prevent a serious non-temporary threat to a pregnant woman’s                   301 U.S. 1, 30 (1937); Buchman v. Bd. of Educ., 652 N.E.2d
mental health.” Id. at 209. To reach this result, we                           952, 960 (Ohio 1995). In addition, statutes restricting
distinguished Casey on the ground that it involved regulations                 abortion no longer warrant strict scrutiny, Casey, 505 U.S. at
that merely delayed abortions, not a law that banned abortions                 871-77, and the attendant presumption against
outright. Id. at 208. The plaintiffs contend that the same                     constitutionality. Moreover, we cannot ignore the difficulty
distinction applies here, because the Act is a “ban,” not                      of legislating against a backdrop of constitutional standards
simply a “regulation.”1 Apart from the patent superficiality                   that invite state regulation with one hand while barring it with
of this argument, the plaintiffs fail to appreciate that we                    the other. Compounding this difficulty in the abortion
limited our holding in Voinovich to “serious[,] non-                           context are the unique rules governing facial challenges,
temporary” and “severe[,] irreversible” threats to mental                      under which “even a few” unconstitutional applications may
health. Id. at 209 (some emphasis added). And we did so                        doom a state’s attempt to regulate the practice. Voinovich,
precisely because “[t]he State’s substantial interest in                       130 F.3d at 196; see also Casey, 505 U.S. at 894-95. And
potential life must be reconciled with the woman’s                             finally, we suffer from a serious institutional disability in a
constitutional right to protect her own life and health.” Id. at               case in which vitally important issues turn on medical facts,
209-10. Now, in continuing respect for the constitutional                      yet the record consists mainly of the conflicting opinions of
validity of maintaining this difficult balance, we conclude that               highly interested, even ideologically motivated, experts. All
Casey and Carhart require a maternal heath exception that                      these considerations compel us, if possible, to interpret Ohio’s
permits the banned procedure when necessary to prevent a                       maternal health exception in a manner that will “avoid
significant health risk.                                                       constitutional difficulties.” Frisby, 487 U.S. at 483.
                                                                                  To repeat, the Act permits the partial birth procedure when
                                                                               “necessary, in reasonable medical judgment, to preserve the
    1                                                                          life or health of the mother as a result of the mother’s life or
       The Ohio statute we are reviewing here restricts only one procedure,    health being endangered by a serious risk of the substantial
and does not purport to ban all post-viability abortions. Hence, contrary
to the dissent’s reasoning, dissent at Section II., our holding in Voinovich   and irreversible impairment of a major bodily function.”
regarding the lack of a mental health exception does not apply. Even if        Ohio Rev. Code Ann. § 2919.15.1(B), (C). The Act defines
it did, a plaintiff would have to d emo nstrate that she would suffer severe   “serious risk of the substantial and irreversible impairment of
and irreversible mental harm from being limited to a D & E procedure           a major bodily function” to mean “any medically diagnosed
when she or her physician might prefer a D & X . The dissent thus              condition that so complicates the pregnancy of the woman as
misunderstands the issue and overlooks the fact that there is no evidence
in the record that such mental harm is even p ossible, let alone likely.       to directly or indirectly cause the substantial and irreversible
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 23      24 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

impairment of a major bodily function.” Ohio Rev. Code              concern for maternal health, we will neither assume that Ohio
Ann. § 2919.15.1(A)(5).                                             intended to expose women to significant health risks nor
                                                                    strain to read the Act into unconstitutionality when it is our
   In our view, this exception allows physicians to perform the     duty to do otherwise.
partial birth procedure whenever the procedure is necessary
to protect the mother from significant health risks, including        In notable contrast to the plaintiffs in Casey, 505 U.S. at
those which embody comparative safety concerns. To be               880, the plaintiffs here do not even attempt to identify any
sure, Ohio’s health exception, like other “exceptions,” does        specific medical circumstance that demonstrates the
not always apply. Its terms clearly exclude negligible risks,       inadequacy of Ohio’s maternal health exception. Instead,
trivial complications, and circumstances having nothing to do       along with amicus American College of Obstetricians and
with the health of the particular patient. Thus, consistent with    Gynecologists, they assert the much broader claim that states
Carhart, 530 U.S. at 938, the exception does not apply when         may not regulate among safe abortion techniques. However,
the choice of methods is dictated purely by the preference of       if taken to its next logical step—not even its logical
an individual physician. But when a woman’s actual medical          “extreme”—this proposition would prevent states from
condition makes the partial birth procedure necessary to            restricting a procedure in which a fully intact, near-viable
prevent a significant health risk, the health exception applies.    infant is delivered alive and then killed, or allowed to expire,
Likewise, the exception is triggered when other procedures,         completely outside the mother. Indeed, one of the plaintiffs’
relative to the partial birth procedure, would expose a woman       experts, Dr. Cassing Hammond, confirmed at trial that he
to significant risks. Contrary to the dissent’s suggestion, the     would prefer, if possible, to “remove the fetus totally intact
Act does not require a preexisting complication that threatens      every time and bring about its demise after it had been
a pregnant woman’s health. Rather, through its use of the           delivered.” While the plaintiffs may disagree, we believe that
prospective terms “endangered” and “risk,” the Act makes            the Constitution would not prevent a state from regulating
clear that the exception applies if a pregnant woman’s              such a practice when safe alternatives exist.
circumstances are such that her physician, in reasonable
medical judgment, believes that failure to use the partial birth      We therefore hold that the Act’s health exception
procedure will lead to a complication causing substantial or        adequately protects maternal health. Because states face
irreversible impairment of a major bodily function.                 greater constitutional obstacles when regulating abortion
                                                                    before viability, we have focused our analysis on the Act’s
    This understanding of the Act’s maternal health exception       pre-viability effect. As the Supreme Court has explained,
flows naturally from its close resemblance to the exception         “subsequent to viability, the State in promoting its interest in
upheld in Casey, 505 U.S. at 880, and from Carhart’s                the potentiality of human life may, if it chooses, regulate, and
admonition that physicians are not entitled to “unfettered          even proscribe, abortion except where it is necessary, in
discretion in their selection of abortion methods,” Carhart,        appropriate medical judgment, for the preservation of the life
530 U.S. at 938 (internal quotation marks and citation              or health of the mother.” Roe, 410 U.S. at 164-65. Given
omitted). At the same time, the Act’s health exception is           Ohio’s authority to prohibit abortion after viability, we need
tethered to the developing state of medical knowledge, giving       not consider separately the identically worded health
it the flexibility needed to “tolerate responsible differences of   exception for post-viability abortions. Ohio Rev. Code Ann.
medical opinion.” Id. at 937. Moreover, because the Act,            § 2919.15.1(B). Our decision to uphold the Act’s maternal
unlike the law struck down in Carhart, evinces an undeniable
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 25     26 Women’s Med. Prof’l, et al. v. Taft, et al.     No. 01-4124

health exception applies with equal force to both components         fetus, which procedure the person performing the
of the statute.                                                      procedure knows will cause the death of the fetus, or
                                                                     performance of another intentional act that the person
       B. Definition of “Partial Birth Procedure”                    performing the procedure knows will cause the death of
                                                                     the fetus;
  In its permanent injunction ruling, Women’s Med., 162 F.
Supp. 2d at 937-38, the district court did not address the issue       (d) Completion of the vaginal delivery of the fetus.
whether the Act imposes an undue burden on the pre-viability
abortion right by defining the “partial birth procedure” so as     Ohio Rev. Code Ann. § 2919.15.1(A)(3).
to sweep in the commonly used D & E procedure. In the
preliminary injunction ruling, however, the district court           The plaintiffs contend, primarily, that subsection (b)
considered the question and held, in Ohio’s favor, that the Act    renders the description unconstitutional because it includes
does not unduly burden the abortion right. Women’s Med.,           procedures involving “intentional extraction of at least the
114 F. Supp. 2d at 683. Both parties ask us to reach the issue.    lower torso to the navel.”           Ohio Rev. Code Ann.
And so, because we operate here with the benefit of full           § 2919.15.1(A)(3)(b) (emphasis added). According to the
briefing by the parties, a fully developed factual record, and     plaintiffs, many traditional D & E procedures involve intact
a district court ruling, albeit one made at the preliminary        extraction to the navel. Ohio responds that the Act draws an
injunction stage, we see no reason to reserve decision.            unmistakable distinction between the partial birth procedure
                                                                   and the traditional D & E. The question, then, is whether the
  We begin with the statute itself, and then examine the           Act’s description of the partial birth procedure encompasses
plaintiffs’ claim that its terms violate the Fourteenth            the commonly used D & E procedure and therefore imposes
Amendment. The Act defines “partial birth procedure” as            an undue burden on a mother’s right to abort a non-viable
“the medical procedure that includes all of the following          fetus.
elements in sequence”:
                                                                      Carhart’s second holding is that Nebraska’s law is
   (a) Intentional dilation of the cervix of a pregnant            unconstitutional because it could apply to the D & E
  woman, usually over a sequence of days;                          procedure, in that its terms prohibit procedures involving the
                                                                   delivery of “‘a substantial portion’” of a living fetus. 530
     (b) In a breech presentation, intentional extraction of       U.S. at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp.
  at least the lower torso to the navel, but not the entire        1999)). Because, Carhart holds, “a substantial portion” fails
  body, of an intact fetus from the body of the mother, or         to distinguish “between D & E (where a foot or arm is drawn
  in a cephalic presentation, intentional extraction of at         through the cervix) and D & X (where the body up to the head
  least the complete head, but not the entire body, of an          is drawn through the cervix),” Carhart , 530 U.S. at 938-39,
  intact fetus from the body of the mother;                        the law “has the ‘effect of placing a substantial obstacle in the
                                                                   path of a woman seeking an abortion of a nonviable fetus,’”
    (c) Intentional partial evacuation of the intracranial         id. at 938 (quoting Casey, 505 U.S. at 877). Thus, the
  contents of the fetus, which procedure the person                vagueness of the phrase “substantial portion” rendered
  performing the procedure knows will cause the death of           Nebraska’s law susceptible to application against physicians
  the fetus, intentional compression of the head of the            performing D & E procedures as well as D & X procedures.
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 27     28 Women’s Med. Prof’l, et al. v. Taft, et al.     No. 01-4124

The Court notes, however, that Nebraska might have fared           “it would have been a simple matter . . . [for Nebraska] to
better if its description of the procedure had “track[ed] the      provide an exception for the performance of D & E and other
medical differences between D & E and D & X,” “provide[d]          abortion procedures,” 530 U.S. at 939, the Ohio General
an exception for the performance of D & E and other abortion       Assembly saw the need to secure, by means of an explicit
procedures,” or focused on the distinction between intact          exception, the continued availability of traditional D & E
extraction and dismemberment. Carhart, 530 U.S. at 939.            abortion procedures.
As we shall discuss, infra, the Ohio legislature, with
remarkable prescience (given that the Act was written and            Although the plaintiffs criticize the Act’s failure to define
adopted prior to Carhart), has done precisely what the             “dilation and evacuation,” courts have explained repeatedly
Carhart Court thought the Nebraska legislation fatally failed      that the principal distinction between D & X and D & E is
to do.                                                             intactness: D & X maximizes intactness and D & E requires
                                                                   dismemberment prior to removal of the fetus. See, e.g., id. at
   Along similar lines, in Voinovich, we invalidated Ohio’s        927, 939; Voinovich, 130 F.3d at 199; Hope Clinic v. Ryan,
previous attempt to ban partial birth abortions on the ground      195 F.3d 857, 861 (7th Cir. 1999), vacated, 530 U.S. 1271
that the statute imposed an undue burden by defining D & X         (2000). The plaintiffs’ criticism is even more remarkable
as “‘the termination of a human pregnancy by purposely             because at the preliminary injunction hearing in this case, Dr.
inserting a suction device into the skull of a fetus to remove     Haskell confirmed that he actually “coined the term ‘dilation
the brain.’” 130 F.3d at 198-201 (quoting Ohio Rev. Code           and extraction’ or ‘D&X’ to distinguish it from the
Ann. § 2919.15(A) (repealed 2000)). Although Ohio’s law            dismemberment-type D&E.” (Emphasis added.) From its
was not vague in this respect, it clearly failed to distinguish    inception, then, the label “dilation and extraction,” or “D &
between D & E and D & X, since D & E procedures                    X,” has been intended to allow physicians, much less
sometimes require suction removal of a fetus’s skull contents.     legislators, to distinguish between intact abortion procedures
Voinovich, 130 F.3d at 199. We also pointed out that Ohio’s        and those procedures that require dismemberment prior to
statute excluded the suction curettage and suction aspiration      removal of the fetus. The Act invokes this well-established
procedures, but not the D & E procedure. Id. at 200.               distinction by excluding D & E in section 2919.15.1(F) and
                                                                   separating D & X from D & E in section 2919.15.1(A)(1).
  As we have said, in the present statute, the Ohio General        Accordingly, regardless of whether a procedure involves
Assembly avoided the flaws identified in Carhart by                “intentional extraction of at least the lower torso to the navel,”
precisely describing the restricted procedure and explicitly       Ohio Rev. Code Ann. § 2919.15.1(A)(3)(b), it is not
permitting D & E procedures. The Act provides: “This               prohibited by the Act if it requires dismemberment of the
section does not prohibit the suction curettage procedure of       fetus prior to removal of the fetal parts “in several passes,”
abortion, the suction aspiration procedure of abortion, or the     Carhart, 530 U.S. at 927. Moreover, the Act does not
dilation and evacuation procedure of abortion.” Ohio Rev.          prohibit all intact abortion procedures. The sequential
Code Ann. § 2919.15.1(F) (emphasis added). A separate              description contained in section 2919.15.1(3) ensures that the
provision clarifies that the phrase, “‘[d]ilation and evacuation   law, in the case of a breech presentation, applies only if the
procedure of abortion’ does not include the dilation and           intentional act causing the fetus’s death occurs after intact
extraction procedure of abortion.” Ohio Rev. Code Ann.             extraction to the navel. In the case of a cephalic presentation,
§ 2919.15.1(A)(1). Thus, even though the Act was drafted           there is no question that the Act does not restrict the D & E
without the benefit of Carhart’s subsequent observation that       method.
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 29     30 Women’s Med. Prof’l, et al. v. Taft, et al.            No. 01-4124

   In contrast to the situation in Carhart, 530 U.S. at 940-45,                            ________________
Ohio does not urge us to replace a vague, offending, statutory
phrase like “substantial portion” with a conflicting phrase like                               DISSENT
“body up to the head.” The Act, as written, carefully                                      ________________
describes the restricted procedure and explicitly excludes
other procedures; our interpretation gives meaning to the             TARNOW, District Judge, dissenting. The Court must
restriction and the exclusion. We therefore have no difficulty     determine whether Ohio’s Substitute House Bill 351
fulfilling our twin obligations to “give effect, if possible, to   (“HB 351”) provides a constitutionally adequate exception for
every clause and word of a statute,” Moskal v. United States,      the health of pregnant women in light of its ban on intact
498 U.S. 103, 109-10 (1990) (internal quotation marks and          abortion procedures.1, 2 The adequacy of that exception must
citations omitted), and to construe statutes, when possible, so    be judged according to the constitutional requirement that
as to “avoid constitutional difficulties.” Frisby, 487 U.S. at     abortion regulations allow exceptions when “necessary, in
483.                                                               appropriate medical judgment, for the preservation of the life
                                                                   or health of the mother.” See Roe v. Wade, 410 U.S. 113,
  Accordingly, because the Act does not restrict the most          164-165 (1973); Planned Parenthood of S.E. Pa. v. Casey,
commonly used procedure for second trimester abortions and         505 U.S. 833, 879 (1992). For reasons summarized
because the statute provides an exception for significant          immediately below and discussed in the following sections,
health risks, we conclude that it does not impose an undue         I conclude that HB 351 forces some women to use riskier
burden on a woman’s right to abort a non-viable fetus.             methods of abortion and thus fails to meet this requirement in
                                                                   both its pre- and post-viability contexts. See Stenberg v.
                    IV. CONCLUSION                                 Carhart, 530 U.S. 914, 931 (2000).
  For the foregoing reasons, we REVERSE the district                 The facial challenge here presents two central questions:
court’s judgment and VACATE the permanent injunction               1) What is the constitutional standard for judging the
preventing enforcement of the Act.                                 adequacy of a health exception to preserve a woman’s health
                                                                   where a particular method of abortion has been banned? and


                                                                       1
                                                                         The parties have also asked the Court to determine whether HB 351
                                                                   sweeps within its ban the “D&E” proc edure, thereby placing an undue
                                                                   burden on women who seek an abortion before the fetus attains viab ility.
                                                                   For the reasons stated by the district court in its preliminary injunction
                                                                   ruling, I agree that HB 351 d oes not sweep the D&E procedure within its
                                                                   reach. See Women’s Med. Prof’l Corp. v. Taft, 114 F. Supp. 2d 664, 683-
                                                                   85 (S.D. Ohio 2 000).

                                                                       2
                                                                         I will use the terms “intact procedure” and “intact method”
                                                                   interchangeably, each signifying what is entailed by the terms “D&X”
                                                                   method, “intact D&E” method, as well as the “partial birth procedure”
                                                                   defined in HB 35 1, Ohio Rev. Cod e Ann. § 2919 .151(A)(3).
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 31               32 Women’s Med. Prof’l, et al. v. Taft, et al.   No. 01-4124

2) Does the specific language of the HB 351’s health                            pregnancy.” Ohio Rev. Code Ann. § 2919.151(B) (post-
exception comport with this constitutional standard?                            viability) and (C) (pre-viability); Ohio Rev. Code Ann.
                                                                                § 2919.151(A)(5) (statutory definition). Thus it does not
  The majority concludes that a ban on the intact method is                     allow the intact procedure for a healthy woman. When the
constitutional as long it contains a health exception allowing                  fetus has not yet attained viability, a healthy woman, like any
the procedure “when necessary to prevent significant, as                        woman, has a constitutional right to obtain an abortion
opposed to negligible, health risks.” Majority Slip Opinion at                  without being forced to use a riskier procedure. See Carhart,
15. Further, they conclude that HB 351’s health exception                       530 U.S. at 931. Because the record shows that the intact
meets this standard.                                                            method may entail significantly less risk than other methods,
                                                                                HB 351’s pre-viability ban is unconstitutional.
  In terms of the degree of risk to be considered, I agree that
a health exception is not constitutionally required for truly                      HB 351’s failure to address comparative health risks
negligible health risks. However, when a state bans a method                    extends also to women for whom a continuing pregnancy or
of abortion, it is required to permit an exception whenever a                   bearing a child would impose a risk of severe and irreversible
woman faces any risk to her health that is more than                            mental harm. As Ohio stated in the proceedings below,
negligible.3 See Carhart, 530 U.S. at 931; Casey, 505 U.S. at                   HB 351’s health exception encompasses only risks to a
880.                                                                            woman’s physical health. This admission comports with the
                                                                                language of the health exception requiring a risk of
   But more important to this case, as to a relevant source of                  impairment to “a major bodily function.” Ohio Rev. Code
risk, the Supreme Court has instructed that “a State cannot                     Ann. § 2919.151(B) (post-viability) and (C) (pre-viability);
subject women’s health to significant risks . . . where state                   Ohio Rev. Code Ann. § 2919.151(A)(5) (statutory definition)
regulations force women to use riskier methods of abortion.”                    (emphasis added). However, the Supreme Court has made
Carhart, 530 U.S. at 931. Thus, where a woman has a right to                    clear that a woman’s mental health must be considered a part
an abortion, the state must allow an exception for her to                       of her overall health when a state regulates abortion. See Doe
receive a banned method of abortion when it offers a non-                       v. Bolton, 410 U.S. 179, 191-192 (1973). In accord with this
negligible safety advantage over other methods.                                 principle, this Court has stated that a health exception must
                                                                                encompass a risk of a serious and irreversible harm to the
   As to whether HB 351’s health exception meets this                           woman’s mental health. Women’s Med. Prof’l Corp. v.
standard, the majority offers a construction that is at odds                    Voinovich, 130 F.3d 187, 209 (6th Cir. 1997), cert. denied,
with the plain wording of the statute. In fact, HB 351 allows                   523 U.S. 1026 (1998). Under HB 351, a woman facing a risk
an exception only when a woman is endangered by a                               of severe and irreversible harm to her mental health would not
“medically diagnosed condition that . . . complicates the                       have access to the intact procedure and would thus be
                                                                                compelled to face the greater physical risks that attend other
                                                                                methods of abortion. This result violates Carhart’s instruction
    3                                                                           that a woman may not be forced to use riskier methods of
      Thus, the word “significant,” as in the phrase “significant risk,”
must be taken to mean “non-negligible.” In fact, “negligible risks” and         abortion. See Carhart, 530 U.S. at 931. Because HB 351 fails
“trivial complications,” see Majority Slip O pinion at 23 , are irrelevant to   to encompass these risks both before and after fetal viability,
this case. I will therefore use and interpret the word “risk” to mean “non-     it is unconstitutional in both contexts.
negligib le risk.” Likewise, I will use and interpret the wo rd “riskier” to
mean “riskier b y a non-negligible amo unt.”
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 33             34 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

  For these reasons, I believe the district court’s decision                  Carhart. In striking down a Nebraska statute prohibiting the
should be affirmed. Thus, I respectfully dissent.                             intact procedure without any exception for the pregnant
                                                                              woman’s health, the Court reaffirmed and explained its
I. HB 351’s Pre-Viability Ban is Unconstitutional Because                     rationale behind the preservation standard.
   It Forces Healthy Women to Use Riskier Methods of
   Abortion                                                                     [T]he governing standard requires an exception “where
                                                                                it is necessary, in appropriate medical judgment for the
  A. The Constitution forbids regulations that force                            preservation of the life or health of the mother,” for this
     women to use riskier methods of abortion                                   Court has made clear that a State may promote but not
                                                                                endanger a woman’s health when it regulates the
  In Roe, the Supreme Court held that “subsequent to                            methods of abortion.
viability, the State in promoting its interest in the potentiality
of human life may, if it chooses, regulate, and even proscribe,               Carhart, 530 U.S. at 931 (citing Casey, 505 U.S. at 879;
abortion except where it is necessary, in appropriate medical                 Thornburgh, 476 U.S. at 768-769; Colautti, 439 U.S. at 400;
judgment, for the preservation of the life or health of the                   Danforth, 428 U.S. at 76-79; Doe, 410 U.S. at 197).
mother.” 410 U.S. at 164-165.4 That holding has been
consistently reiterated. See, e.g., Casey, 505 U.S. at 879;                     Carhart also reaffirmed that the relevant dangers to a
Carhart, 530 U.S. at 930. Further, because the State’s interest               woman’s health are not limited to those created by the
in regulating abortion before fetal viability is much weaker,                 pregnancy itself.
“the law . . . at a minimum requires the same in respect to
previability regulation.” Carhart, 530 U.S. at 930 (citing                      [A] State cannot subject women’s health to significant
Casey, 505 U.S. at 880; Harris v. McRae, 448 U.S. 297, 316                      risks both [where the pregnancy itself creates a threat to
(1980)).                                                                        health], and also where state regulations force women to
                                                                                use riskier methods of abortion. Our cases have
  The meaning of the critical phrase “necessary, in                             repeatedly invalidated statutes that in the process of
appropriate medical judgment, for the preservation of the life                  regulating the methods of abortion, imposed significant
or health of the mother” has been clarified by a long line of                   health risks. They make clear that a risk to a women’s
Supreme Court cases, including Carhart, Thornburgh v.                           [sic] health is the same whether it happens to arise from
American College of Obstetricians & Gynecologists, 476 U.S.                     regulating a particular method of abortion, or from
747 (1986) (overruled in part by Casey, 505 U.S. at 870),                       barring abortion entirely.
Colautti v. Franklin, 439 U.S. 379 (1979), and Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52                       Id. at 931 (emphasis in original). It is clear then that where a
(1976). The case that is both most recent and relevant is                     constitutional right to an abortion exists, a state may not
                                                                              “force women to use riskier methods.” In short, the
                                                                              comparative risks between methods are of constitutional
    4
      Mo difying Roe, Casey held that prior to fetal viability, a woman has
                                                                              import, just as are risks stemming from a woman’s immediate
a right to an abortion without an “undue burden” from the state. 505 U.S.     medical condition.
at 874-78. In addition, Casey reaffirmed the “substantial state interest in
potential life throughout pregnancy.” Id. at 876. These central principles
also inform the discussion of the ad equacy of H B 3 51’s health exception.
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 35               36 Women’s Med. Prof’l, et al. v. Taft, et al.              No. 01-4124

  The Court also found that the comparative risks at issue for                    Further, given the Supreme Court’s instruction that the
a ban on the intact procedure are not negligible.                               health preservation standard does not require an “absolute
                                                                                necessity” for the medical procedure nor does it require
  The State fails to demonstrate that banning D & X                             “unanimity of medical opinion,” health risks may be assessed
  without a health exception may not create significant                         as being significant because “[d]octors often differ in their
  health risks for women, because the record shows that                         estimation of comparative health risks.” Carhart, 530 U.S. at
  significant medical authority supports the proposition                        937.
  that in some circumstances, D & X would be the safest
  procedure.                                                                      Where a significant body of medical opinion believes a
                                                                                  procedure may bring with it greater safety for some
Id. at 932. Thus, the Court states that because significant                       patients and explains the medical reasons supporting that
medical authority shows the D&X procedure to be the safest                        view, we cannot say that the presence of a different view
method in some circumstances, banning the procedure will                          by itself proves the contrary. Rather, the uncertainty
necessarily create significant health risks for some women.                       means a significant likelihood that those who believe that
This conclusion follows from factual findings accepted by the                     D & X is a safer abortion method in certain
Court regarding the safety advantages of the intact procedure.                    circumstances may turn out to be right. If so, then the
See id. at 932. Moreover, it also follows from the fact that a                    absence of a health exception will place women at an
woman who seeks an abortion at the relatively late stage of                       unnecessary risk of tragic health consequences.
fetal development where the D&X procedure becomes
relevant will necessarily face significant health risks. In short,              Id. Thus, in this context where the attendant health risks of
the serious risk inherent to late term procedures means that                    abortion are already significant, and doctors reasonably
the safety advantages offered by the intact method are not                      disagree as to comparative safety of available methods, a
negligible. This fact supports the standard allowing a woman                    “safer abortion method in certain circumstances” will help
to receive the safest procedure, and renders irrelevant the                     diminish the risk of “tragic health consequences.” With these
majority’s discussion of “marginal or insignificant risks.”                     principles and findings, the Court instructs that the intact
Majority Slip Opinion at 18.5                                                   procedure must be permitted when it may be the safer
                                                                                procedure for the woman.6
    5
      In its focus on “negligible risks” and “trivial complications,” see
Majority Slip O pinion at 23 , the majority miscasts the plaintiffs’
argum ents and the district court’s ruling. Neither contend that a health
exception must accommodate negligible risks. The district court states          procedure, this is not a case abo ut negligible risks. See id. at 941-952.
“the plain language of HB 351 does not allow the ‘partial birth procedure’          6
to be performed when it is simply safer than alternative methods of                   In further support of this conclusion, it should be noted that the
abortion, and that is what Carh art requires.” Wom en’s Med. P rof’l Corp.      Court found irrelevant or unpersu asive N ebraska’s co ntention that “safe
v. Taft, 162 F. Supp. 2d 929, 940-41 (2001). The district court does not        alternatives remain available” d espite the ban. See C arhart, 530 U.S. at
use the phrase “simply safer” in isolation to mean “an iota safer.” Rather,     931-32. Further, the Court cited as relevant the conclusion of a panel of
the court uses the word “simply” to mod ify the whole phrase “safer than        the American College of Obstetricians and Gynecologists that the intact
alternative methods o f abortion.” As this context makes clear, the court       procedure “may be the best or most appropriate procedure in a particular
refers to the source of risk, not the degree of risk. Indeed, in acco rd with   circumstance to save the life or preserve the health of a woman.” Id. at
the district court’s findings about the comparative safety of the intact        932.
No. 01-4124    Women’s Med. Prof’l, et al. v. Taft, et al. 37     38 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

  Carhart’s underlying rationale that “a State may promote           Carhart and its antecedents make clear that when a woman
but not endanger a woman's health when it regulates the           holds a constitutional right to obtain an abortion, the state
methods of abortion” is not dicta, as the majority suggests.      may not force her to use riskier methods of abortion. Carhart,
See Majority Slip Opinion at 20. This principle in fact lies at   530 U.S. at 931. In light of the rights outlined in Roe and
the core of a line of cases leading up to Carhart. For example,   Casey, therefore, a woman must be permitted to choose the
in Danforth, the Supreme Court invalidated a ban on saline        safest available method when the fetus is not viable and also
induction abortions because the record demonstrated its safety    at any time the woman’s health is endangered by a continuing
advantage over other available methods. The ban was held          pregnancy. This is the relevant meaning of the Supreme
unconstitutional in part because it “force[d] a woman and her     Court’s pronouncement that “a State may promote but not
physician to terminate her pregnancy by methods more              endanger a woman’s health when it regulates the methods of
dangerous to her health than the method outlawed.” Danforth,      abortion.” This is what is required in a state’s constitutional
428 U.S. at 78-79.                                                obligation to ensure the “preservation of the life or health” of
                                                                  the woman.
  Later, in Thornburgh, the Court examined a Pennsylvania
law concerning post-viability abortions that required the           B. The facts of this case and others show that other
physician to choose an abortion procedure that “would                  methods of abortion may be riskier than the intact
provide the best opportunity for the unborn child to be                method and that causing fetal demise in advance
aborted alive” unless that method “would present a                     may add significant risk to the intact method
significantly greater medical risk to the life of health of the
pregnant woman” than another available method. 18 Pa.                Given the foregoing constitutional standard, it is necessary
Cons. Stat. § 3210(b) (1982). The Court found the statute         to consider whether “a significant body of medical opinion
unconstitutional because it required the pregnant woman “to       believes [that the intact procedure] may bring with it greater
bear an increased medical risk in order to save her viable        safety for some patients, and explains the medical reasons
fetus.” Thornburgh, 476 U.S. at 769.                              supporting that view.” Carhart, 530 U.S. at 937. This inquiry
                                                                  is relevant to HB 351’s pre- and post-viability bans because
   Thornburgh’s holding accords with the Court’s earlier          the intact procedure is performed in both contexts. See
decision in Colautti, where the Court expressed its concern       Women’s Med. Prof’l Corp. v. Taft, 114 F. Supp. 2d at 668
over a similar provision in Pennsylvania’s Abortion Control       (granting preliminary injunction). The medical processes
Act that required physicians aborting potentially viable          entailed by the common methods of abortion, including their
fetuses to use a technique to maximize the fetus’s chance for     risks and benefits, have been extensively detailed by the
survival. The Court invalidated the provision on grounds of       district court below and others. See Women’s Med. Prof’l
vagueness because it could be read to “require[] the physician    Corp. v. Taft, 162 F. Supp. 2d 929, 941-952 (S.D. Ohio 2001)
to make a ‘trade-off’ between the woman's health and              (granting permanent injunction); see also, e.g., Carhart, 530
additional percentage points of fetal survival.” Colautti, 439    U.S. at 932-933, 935-936.
U.S. at 400. Thus, far from being dicta, the principle that “a
State may promote but not endanger a woman's health when            These sources demonstrate that the intact procedure may in
it regulates the methods of abortion” has in fact guided the      fact present numerous safety advantages over other methods.
decisions of the Supreme Court for more than twenty years.        See Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d at
                                                                  947, 950, 951, 954 (finding that the intact method may be
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 39     40 Women’s Med. Prof’l, et al. v. Taft, et al.           No. 01-4124

safer than other methods); see also Carhart, 530 U.S. at 932-      hemorrhage and infection; and 4) an additional surgical
33 (citing numerous cases where the intact procedure was           procedure to remove a remaining placenta. See id. at 948,
found to be the safest or most appropriate procedure). For the     949, 950.
purposes here, these safety advantages may be summarized.
                                                                      As compared to hysterectomy or hysterotomy, the district
   As compared to the D&E method, the district court found         court noted the obvious fact that the intact procedure was
that the intact method may be safer. See Women’s Med. Prof’l       generally far less traumatic than those major surgical
Corp. v. Taft, 162 F. Supp. 2d at 949-50. This conclusion was      procedures. See id. at 942; see also Planned Parenthood of
based on evidence showing that the intact procedure may            Cent. New Jersey v. Farmer, 220 F.3d 127, 145 (3rd Cir.
have a lower risk of: 1) infection; 2) trauma to the cervix and    2000) (finding that these procedures have an “enhanced risk
uterus from an increased number of passes of instruments into      of morbidity and mortality to the woman due to the incidence
the uterus; and, 3) a complication known as disseminated           of hemorrhage” and that hysterectomy leaves a woman
intravascular coagulation (“DIC”), a blood clotting disorder       sterile).
that may be fatal. See id. at 948, 949, 949-50; see also
Danforth, 428 U.S. at 96 (presenting background and risks of          It is clear then that the intact procedure may be significantly
DIC); Carhart, 530 U.S. at 932 (quoting district court’s           safer in some circumstances than other available methods of
finding that D&E helps prevent DIC, which is among the two         abortion.7 But because HB 351 does not in effect ban the
most common causes of maternal death, Carhart v. Stenberg,         intact procedure when the delivered fetus is already dead, see
11 F. Supp. 2d 1099, 1126 (D. Neb. 1998), aff’d, 192 F.3d          Ohio Rev. Code Ann. § 2919.151(A)(3)(b) and (c), the safety
1142 (8th Cir. 1999), aff’d, 530 U.S. 914 (2000)). The intact      of procedures used to cause fetal demise must also be
procedure may also cause less blood loss and require a shorter     examined to determine whether they present non-negligible
duration of general anesthesia, which carries its own attendant    risk. The district court found that ensuring fetal death, both by
health risks including the risk of death. See Women’s Med.         injection of a feticidal agent such as digoxin and by severing
Prof’l Corp. v. Taft, 162 F. Supp. 2d at 948. Further, the         the umbilical cord, increased the risk to the woman. See
intact procedure reduces the possibility of leaving fetal tissue   Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d at 957,
inside the uterus. See id. at 950. The Court in Carhart            958.
similarly noted this danger, citing the complications that may
arise from remaining bony fragments and retained fetal parts.        As to the digoxin injection, various experts testified at the
530 U.S. at 932.                                                   district court that various complications may arise from its
                                                                   use, including: 1) amniotic embolism, which may be fatal;
  The district court also found the intact procedure to be safer   2) bleeding and injury to the bowel; 3) piercing of other
than the induction/instillation method of abortion. See            internal structures such as blood vessels and the uterus;
Women’s Med. Prof’l Corp., 162 F. Supp. 2d at 951. The             4) arrhythmia possibly leading to cardiac arrest for women
Court heard evidence that induction/instillation may present       with preexisting cardiac problems; 5) vomiting; 6) vaginal
the following comparative disadvantages: 1) a protracted
induction time averaging 19 hours, as compared to 15
minutes, not including the dilation period, for the intact             7
procedure; 2) the use of a labor inducing agent known to                 Contrary to the majority’s assertion, neither Plaintiffs nor the ir
                                                                   expert doctors make the assertion that the intact proc edure is “always
cause nausea, vomiting, and diarrhea; 3) an increased risk of      safer.” Majority Slip Opinion at 17.
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 41      42 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

bleeding; and, 7) other injury to the uterus requiring                C. HB 351 does not allow an exception to its ban on
hospitalization. See id. at 956-57; see also Carhart, 530 U.S.           the intact procedure when the woman does not
at 932 (quoting district court’s finding that amniotic                   have a “medically diagnosed condition that . . .
embolism is the other of the two most common causes of                   complicates the pregnancy,” even if the intact
maternal death, 11 F. Supp. 2d at 1126). Other courts have               procedure is safer than other methods
found similar risks. For example, in Evans v. Kelley, 977 F.
Supp. 1283 (E.D. Mich. 1997), the court found that                     Given that it is unconstitutional for a state to “force women
“injections have serious potential health risks” including          to use riskier methods of abortion” and the fact that the intact
those of hemorrhage, infection, and uterine necrosis. Id. at        method may be a safer procedure for some women, it must be
1301. The Evans court also found that many physicians do            determined whether HB 351 allows an exception to its ban
not have the appropriate skills to perform the injection and        when the intact procedure is safer than other available
that some women have conditions that make the injection             procedures. As the following shows, it does not.
impossible. Id.
                                                                       HB 351 permits the “partial birth procedure” only when it
   As to severing the umbilical cord, the district court found      is “necessary, in reasonable medical judgment, to preserve the
that the passing of sharp instruments into the uterus increases     life or health of the mother as a result of the mother's life or
the risk of uterine perforation as the physician locates and        health being endangered by a serious risk of the substantial
severs an umbilical cord that does not spontaneously present        and irreversible impairment of a major bodily function.” Ohio
itself. See Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp.         Rev. Code Ann. § 2919.151(B) (post-viability) and (C) (pre-
2d at 957. This finding is consistent with those of other           viability). HB 351 defines the “serious risk of the substantial
courts. See Carhart v. Stenberg, 11 F. Supp. 2d 1099 at 1123        and irreversible impairment of a major bodily function” to
(“Cutting the umbilical cord and waiting for the fetus to die       mean “any medically diagnosed condition that so complicates
before completing the D & X procedure carries appreciable           the pregnancy of the woman as to directly or indirectly cause
maternal risks, no maternal benefits, and is not always             the substantial and irreversible impairment of a major bodily
possible.”); Planned Parenthood of Cent. New Jersey v.              function.” Ohio Rev. Code Ann. § 2919.151(A)(5).
Verniero, 41 F. Supp. 2d 478, 500 (D.N.J. 1998) (finding risk
of uterine perforation and hemorrhage from passing of sharp            Thus, HB 351’s health exception will not apply when a
instruments into the uterus and generally that “[h]ealth risks      woman who seeks the intact method is not endangered by a
to women would be significantly increased if physicians are         “medically diagnosed condition that . . . complicates the
required to ensure fetal demise in utero”), aff’d, 220 F.3d 127     pregnancy.” Id. In limiting its exception to pre-existing
(3rd Cir. 2000).                                                    physical conditions, HB 351 fails to contemplate the
                                                                    increased risks imposed on a woman by other methods of
  On these findings, it is clear then that requiring fetal demise   abortion. No exception would be permitted for a woman who
before completion of the intact procedure may present               is healthy, even if the intact procedure would likely avert
additional risks of serious health consequences for some            highly serious health risks.
women.
                                                                       The majority and defendants assert that “the exception is
                                                                    triggered when other procedures, relative to the partial birth
                                                                    procedure, would expose a woman to significant risks.”
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 43     44 Women’s Med. Prof’l, et al. v. Taft, et al.              No. 01-4124

Majority Slip Opinion at 23. However, their reading conflicts        2) substantial medical evidence shows that intact
with the plain language of the statute stating that a woman             procedure may pose a lesser risk to some women;
may not receive the intact method unless she is endangered by
a “medically diagnosed condition that . . . complicates the          3) the common methods of causing fetal demise may
pregnancy.” Ohio Rev. Code Ann. § 2919.151(A)(5). Because               add significant risk to an abortion procedure and
an abortion ends a pregnancy, it is not possible to characterize        offer no benefit to the pregnant woman; and,
a health consequence of abortion as a “medically diagnosed
condition that . . . complicates the pregnancy.” This language       4) HB 351 does not permit a health exception for the
excludes the prospective risks of other methods of abortion,            intact procedure when it poses less risk to a pregnant
thus violating Carhart’s instruction. The majority ignores this         woman who does not have a medically diagnosed
part of the statute and offers a plainly unreasonable                   condition that complicates the pregnancy.
interpretation of the statute’s clear language.
                                                                      Taken together, these findings and conclusions show that
   As noted in Carhart, the clear statutory definition is          HB 351’s pre-viability ban is unconstitutional because it does
controlling. See Carhart, 530 U.S. at 942 (stating that            not allow an exception for a woman who faces heightened
“[w]hen a statute includes an explicit definition, we must         risks from other methods but who does not have a medically
follow that definition”). Likewise, the Court in Colautti noted    diagnosed condition complicating the pregnancy. In the pre-
that “[a]s a rule, a definition which declares what a term         viability context, the exception’s limiting conditions render it
means . . . excludes any meaning that is not stated.” 439 U.S.     unconstitutionally narrow.8 HB 351’s pre-viability ban fails
at 392-93 n.10 (quotation and citation omitted). Despite our       to offer the protection necessary to ensure the “preservation
duty to attempt to construe statutes to preserve their             of the life or health” of the pregnant woman and is therefore
constitutionality, see Frisby v. Schultz, 487 U.S. 474, 483        unconstitutional.
(1988), such is not possible here in light of the statute’s
unambiguous wording.
                                                                       8
  D. HB 351’s pre-viability ban fails to provide a                       In the post-viability context, the state may proscribe abortion
     constitutionally adequate exception to preserve the           altogether, except where the woman’s health is thre atened by a continuing
     health of a woman who does not have a medically               pregnancy. See Roe, 410 U.S. at 164 -165 ; Casey, 505 U.S. at 879 (199 2).
                                                                   Thus, the state may limit exceptions to cases where the wom an has a
     diagnosed condition that complicates the pregnancy            medically diagnosed condition that complicates the pregnancy, as
                                                                   HB 351’s health exception does. In light of our duty to offer reasonable
  The foregoing establishes the following:                         statutory constructions to preserve constitutionality, I believe that the
                                                                   post-viability health exception may be read to apply when the woman has
  1) it is unconstitutional for a state to maintain                a physical condition that complicates the pregnancy and the intact
     regulations that “force women to use riskier methods          procedure would be the safest method of abortion. In such a case,
     of abortion” when a woman has a constitutional                HB 351’s post-viability ban would not violate Carh art’s prohibition of
                                                                   abortion regulations that force women to use riskier methods of abortion.
     right to abortion, viz.,                                      Nonetheless, as discussed in the follow ing sectio n, both the pre- and post-
        a) when the fetus is not viable; and,                      viability bans are unconstitutional b ecause the ex ception fails to apply
        b) whenever a continuing pregnancy would                   when the woma n faces a serious risk to her mental health from a
             threaten the woman’s life or health;                  continuing pregnancy and the intact procedure would be the safest method
                                                                   of abortion.
No. 01-4124    Women’s Med. Prof’l, et al. v. Taft, et al. 45   46 Women’s Med. Prof’l, et al. v. Taft, et al.     No. 01-4124

II. HB 351’s Pre- and Post-viability Bans Are                      This Court has specifically held so, stating that in the post-
    Unconstitutional Because They Force Women Facing            viability context, a maternal health exception must encompass
    Severe and Irreversible Harm to Their Mental Health         a risk of severe and irreversible harm to the woman’s mental
    to Use Riskier Methods of Abortion                          health. Voinovich, 130 F.3d at 209-210. The Court stated:
   As discussed above, HB 351’s pre-viability ban is              The State’s substantial interest in potential life must be
unconstitutional because it forces a woman who does not have      reconciled with the woman's constitutional right to
a “medically diagnosed condition that . . . complicates the       protect her own life and health. We believe that in order
pregnancy” to use riskier methods of abortion. But there is       to reconcile these important interests, the Constitution
another circumstance in which HB 351 would force a woman          requires that if the State chooses to proscribe post-
to use riskier methods of abortion, viz. when a continuing        viability abortions, it must provide a health exception
pregnancy or bearing a child would present a risk of severe       that includes situations where a woman is faced with the
and irreversible harm to the woman’s mental health. Because       risk of severe psychological or emotional injury which
HB 351 limits its exception to risks from pre-existing            may be irreversible.
physical conditions, it fails to allow an exception where the
risks are to the woman’s mental health. As discussed below,     Id. at 210. The Voinovich court also found that the health
this failure renders HB 351 unconstitutional in both its pre-   exception at issue there unconstitutionally limited “the
and post-viability contexts.                                    physician’s discretion to determine whether an abortion is
                                                                necessary to preserve the woman's health, because it limits the
  A. Both the Supreme Court and this Court have                 physician's consideration to physical health conditions.” Id.
     recognized that a woman’s mental health must be            (citing Colautti, 439 U.S. at 387). Thus, it must be determined
     preserved as part of her overall health                    whether some women face risks of severe and irreversible
                                                                harm to their mental health and whether HB 351’s health
  Since the day Roe was decided, the Supreme Court has          exception would encompasses such risks.
recognized the emotional and psychological aspects of a
woman’s overall health. To determine whether an abortion is       B. The facts of this case show that some women face a
medically “necessary,” the Court in Doe stated that “medical         risk of severe and irreversible mental harm from a
judgment may be exercised in the light of all                        continuing pregnancy or bearing a child
factors—physical, emotional, psychological, familial, and the
woman's age—relevant to the well- being of the patient. All       The record makes clear the factual bases for concern over
these factors may relate to health.” Doe, 410 U.S. at 191-192   the mental health conditions of some pregnant women.
(emphasis added). Decided on the same day and meant “to be      Plaintiffs’ psychological expert testified that certain women
read together,” id. at 165, Doe and Roe indicate that a         face very significant mental health risks from a continuing
woman’s mental health, in addition to her physical health,      pregnancy or bearing a child. Women who may face such risk
must be considered in assessing whether an exception to an      include victims of rape, incest, and other kinds of abuse, and
abortion regulation actually preserves the health of the        those with severe emotional disorders such as severe
pregnant woman.                                                 depression, obsessive-compulsive disorder, and manic-
                                                                depressive illness. See J.A. at 954, 957-58, 973-77; see also
                                                                Women’s Med. Prof’l Corp. v. Voinovich, 911 F. Supp. 1051,
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 47               48 Women’s Med. Prof’l, et al. v. Taft, et al.             No. 01-4124

1078-1081 (S.D. Ohio 1995) (listing examples of relevant                        exception will apply only if all of the following conditions are
psychological harms), aff’d, 130 F.3d 187 (6th Cir. 1997).                      met:
Thus, although the district court did not make detailed
findings on risks to mental health in this case,9 the record                      1) there is a danger to the pregnant woman’s life or
clearly shows that some women face very serious mental                               health;
health risks from a continuing pregnancy. See Voinovich, 130
F.3d at 192 (“[A]n appellate court is to conduct an                               2) the danger arises from a medically diagnosed
independent review of the record when constitutional facts are                       condition;
at issue.”) (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6
(1964)).                                                                          3) the medically diagnosed condition complicates the
                                                                                     pregnancy;
  C. HB 351 does not allow an exception to its ban on
     the intact procedure when the woman faces a risk                             4) the complication directly or indirectly causes a
     of severe and irreversible harm to her mental                                   substantial and irreversible impairment; and,
     health, even if the intact procedure is safer than
     other methods                                                                5) the impairment is of a major bodily function.

   HB 351 will permit the intact procedure only when it is                         As to whether the exception would apply for a woman
“necessary, in reasonable medical judgment, to preserve the                     facing a risk of severe and irreversible mental harm, it is clear
life or health of the mother as a result of the mother's life or                that the first four of the five conditions would be met.10
health being endangered by” a “medically diagnosed                              However, the fifth condition that the impairment be of “a
condition that so complicates the pregnancy of the woman as                     major bodily function” does not appear to be met when the
to directly or indirectly cause the substantial and irreversible                serious risk is purely to the woman’s mental health. Indeed,
impairment of a major bodily function.” Ohio Rev. Code                          in considering the substantially similar health exception in
Ann. § 2919.151(B) (post-viability) and (C) (pre-viability),                    Voinovich,11 this Court stated that “[o]n its face, this
incorporating Ohio Rev. Code Ann. § 2919.151(A)(5)                              definition appears to be limited to physical health risks, as
(statutory definition). By its plain wording, then, the                         opposed to mental health risks.” Voinovich, 130 F.3d at 206.
                                                                                The same is true here. In fact, the defendants have admitted

                                                                                    10
                                                                                       As to the third condition, I assume that severe mental health risks,
    9                                                                           like physica l health risks, may be “medically d iagnosed” by a doctor,
      In granting a preliminary injunction, the district court found a
substantial likelihood that HB 351 was uncon stitutional because it failed      psychiatrist, or other mental health professional. The first, second, and
to enco mpa ss risks of severe and irreversible harm to a wo man’s mental       fourth conditions ob viously apply in this context.
health. See 114 F. Supp. 2d at 696. In granting the permanent injunction,           11
however, the district court chose not to reach the issue concerning an                 The relevant provision in Voinovich proscribed all post-viability
exception for mental health risks because the court found HB 351 to be          abortions except where “a physician determines, in good faith and in the
unco nstitutional in both the pre - and p ost-viab ility contexts. See 162 F.   exercise of reasonable medical judgment, that the abortion is necessary to
Supp. 2d at 962 , n.31. Nonetheless, this Court may affirm the district         prevent the death of the pregnant woman or a serious risk of the
court’s judgment on any basis supported by the record . See Andrews v.          substantial and irreversible impairment of a major bodily function of the
Oh io, 104 F.3d 80 3, 808 (6th Cir.1997).                                       pregnant woman.” Ohio Rev. Co de Ann. 2919 .17(A)(1) (1996 ).
No. 01-4124        Women’s Med. Prof’l, et al. v. Taft, et al. 49             50 Women’s Med. Prof’l, et al. v. Taft, et al.    No. 01-4124

that the exception is limited to physical health risks. Women’s               health. As the district court stated in granting the preliminary
Med. Prof’l Corp. v. Taft, 911 F. Supp. at 960. The Ohio                      injunction:
defendants admitted the same with respect to the highly
similar provision in Voinovich. 130 F.3d at 206-207.12 Thus,                    Given that a State cannot prohibit a woman from
the health exception cannot be understood to encompass                          aborting a viable fetus to preserve her own psychological
mental health risks and conditions, regardless of their nature                  or emotional health, it follows naturally from Carhart
or severity.                                                                    that she cannot be deprived of the safest method of doing
                                                                                so. Indeed, just as a woman who is suffering from a
   A woman facing a risk of severe and irreversible mental                      serious physical health condition must be permitted to
harm would not be permitted to receive the intact procedure.                    undergo the safest abortion procedure available, a woman
While the woman would still be able to receive an abortion by                   who is suffering from a mental health condition of the
another method, she would nonetheless be compelled to face                      type described by this Court in Voinovich is entitled to no
the comparative risks that HB 351 unconstitutionally fails to                   less.
encompass. See Dissenting Slip Opinion at 33-45. Thus, no
exception would extend to a woman who faces a severe and                      114 F. Supp. 2d at 695-96 (emphasis in original) (footnote
irreversible risk to her mental health from a continuing                      omitted). Further in contravention of Voinovich, HB 351
pregnancy, even when the intact procedure would carry                         admits no discretion to the physician on this issue. See 130
significantly less physical risk than other procedures.13                     F.3d at 210.

  D. HB 351’s pre- and post-viability bans fail to                              Contrary to the majority’s assertion, the issue is not
     provide a constitutionally adequate exception to                         whether the woman “would suffer severe and irreversible
     preserve the health of a woman who faces a risk of                       mental harm from being limited to a D & E procedure when
     severe and irreversible harm to her mental health                        she or her physician might prefer a D & X.” Majority Slip
                                                                              Opinion at 21 n.1. Rather, once it is established that a
   The foregoing establishes that HB 351 is unconstitutional                  continuing pregnancy or bearing a child would pose a risk of
because it fails to encompass comparative physical risks and                  severe and irreversible mental harm, the issue is whether the
risks of severe and irreversible harm to a woman’s mental                     woman will be permitted to obtain an abortion by the means
                                                                              that presents the least risk to her physical health. Carhart
                                                                              requires such an exception, but none is afforded by HB 351.
    12
      As in Voinovich, this admission forecloses the argument that
mental health is a compone nt of the “major bod ily function” of the brain.      In short, HB 351 does not provide what is explicitly
See Voinovich, 130 F.3d at 209 n.20 (citing A Wo man ’s Choice-East Side      required by Carhart and Voinovich. Its health exception fails
Women's Clinic v. Newman, 671 N .E.2d 104 (Ind.19 96)).                       to heed the Supreme Court’s longstanding recognition of the
    13                                                                        importance of mental health to a woman’s overall health.
        In light of the serious physical and mental harms for which HB 351    Though Voinovich held that a woman’s mental health must be
fails to account, it cannot be said that this case is about the mere
“preferences” of doctors. See Majority Slip O pinion at 14 -15. P laintiffs   considered with respect to a post-viability ban, that holding
have not argued “that a health exception, to be constitutional, must give     also applies in the pre-viability context because “the law . . .
physicians complete freedom to perform abortions using the D & X              at a minimum requires [preservation of the woman’s health]
procedure whe never they wish to do so.” Id. at 17. Plaintiffs do not seek    in respect to previability regulation.” Carhart, 530 U.S. at
a standardless exception.
No. 01-4124       Women’s Med. Prof’l, et al. v. Taft, et al. 51            52 Women’s Med. Prof’l, et al. v. Taft, et al.   No. 01-4124

930. The majority’s contrary assertion is unavailing. See                      In Casey, one of the main regulations at issue delayed the
Majority Slip Opinion at 21 n.1. Indeed, it would be illogical              legal provision of an abortion until 24 hours after a woman
to force a woman–for example, a woman impregnated by rape                   had given her informed consent. 18 Pa. Cons. Stat. § 3205
or incest–to wait until the fetus attained viability before                 (1990). It is obvious that requiring a 24-hour delay imposes
recognizing the risk to her mental health from a continuing                 a far lesser restriction and risk on a woman than a ban on a
pregnancy or giving birth. Thus, in both the pre- and post-                 method of abortion. Unlike the regulations at issue in Casey,
viability contexts, HB 351 is unconstitutional because it                   a ban with an overly narrow health exception does not have
forces women confronting the risk of severe and irreversible                a mere “incidental effect of increasing the cost or decreasing
mental harm to use riskier methods of abortion. See Carhart,                the availability of medical care.” Casey, 505 U.S. at 874.
530 U.S. at 931.                                                            Further, HB 351’s ban is not a “structural mechanism,” id. at
                                                                            877, that asks a woman to stop and think about her choice; it
III. The Health Exception Approved in Casey Is                              is a ban whose narrow exception substantively forecloses a
     Constitutionally Inadequate for HB 351                                 woman’s right in some circumstances to receive the type of
                                                                            procedure that is safest for her. Unlike HB 351, Casey’s
   In an attempt to save the constitutionality of HB 351, the               regulations did not “force women to use riskier methods of
defendants make much of the similarity between the                          abortion.” Carhart, 530 U.S. at 931. This is the crucial
provisions of HB 351’s health exception and the health                      distinction between the regulations at issue in Casey and the
exception to the general abortion regulations at issue in                   regulations in Carhart, where Court underscored its
Casey.14 In essence, they argue that the health exception must              longstanding concern regarding state regulations that ban a
be constitutionally adequate because its provisions mirror                  method of abortion: “Our cases have repeatedly invalidated
those approved in Casey, as construed broadly by the Third                  statutes that in the process of regulating the methods of
Circuit. See 947 F.2d 682, 701 (1991). However, Ohio’s                      abortion, imposed significant health risks.” Id. (emphasis in
attempt to import the provisions of Pennsylvania’s health                   original).
exception into HB 351 fails because the Ohio law is very
different in nature. As this Court noted in Voinovich, there is                Another important distinction between the regulations in
an important difference between regulations such those as in                Casey and Carhart likewise arises from the different
Casey that merely delay abortions and those at issue here and               circumstances in which their respective exceptions might
in Voinovich that ban some abortions. See 130 F.3d at 208.                  become relevant. In Casey’s relevant context, when a
                                                                            woman’s health condition is such that she needs an abortion
                                                                            to be performed within only 24 hours of seeking one, her need
    14
      The statute in Casey allowed exceptions to its regulations in cases   will almost certainly be severe enough to trigger the “medical
of “medical emergency,” defined as:                                         emergency” exception. However, in the unframed context of
                                                                            HB 351’s narrowly excepted ban, no passing of time would
    [t]hat condition which, on the basis o f the physic ian's good faith
    clinical judgment, so complicates the m edical condition o f a          allow the woman to obtain the intact procedure, even though
    pregnant woman as to necessitate the immediate abortion of her          it might be a significantly less risky procedure than other
    pregnancy to avert her death or for which a delay will create           available methods.
    serious risk of substantial and irreversible impairm ent of a major
    bodily function.                                                          This fatal flaw itself derives from the forced fit of
    18 Pa. Co ns. Stat. § 3203 (1990).
                                                                            Pennsylvania’s exception unto Ohio’s ban of the intact
No. 01-4124     Women’s Med. Prof’l, et al. v. Taft, et al. 53      54 Women’s Med. Prof’l, et al. v. Taft, et al.   No. 01-4124

procedure. The health exception in both sets of regulations         pregnancy or bearing a child would cause serious and
would be triggered only by a “condition” that “complicates          irreversible harm to her mental health.
the pregnancy.” For a general 24-hour waiting period, one
may understand the rationale behind the exception’s specific          HB 351’s pre- and post-viability bans on the intact method
requirement that a medically diagnosed condition necessitate,       do not contain a constitutionally adequate exception to
in effect, an immediate abortion. However, as imported into         preserve the health of the woman. For the foregoing reasons,
HB 351, the requirements of Pennsylvania’s health exception         the judgment of the district court should be affirmed.
fail to account for the risks the state may create when a
method of abortion is banned. This is unsurprising given that
Pennsylvania’s exception did not contemplate a ban.
   Finally, it should be noted that the general abortion
regulations at issue in Casey were ostensibly intended to
provide a benefit to the pregnant woman by informing her and
promoting her considered choice. See Casey, 505 U.S. at 885
(“[I]mportant decisions will be more informed and deliberate
if they follow some period of reflection.”). Here, the ban on
the intact procedure provides no benefit to the woman. It
serves only to deny the woman a medical option and violates
Carhart’s instruction that a state may not “force women to
use riskier methods of abortion.” Carhart, 530 U.S. at 931.
  In sum, Casey’s very different regulatory context makes the
Pennsylvania health exception an inapposite and
unconstitutional fit for HB 351.
                       CONCLUSION
  This case is about the health interests of pregnant women
and the state’s “substantial interest in potential life.” Casey,
505 U.S. at 876. With its narrowly excepted ban, HB 351
unconstitutionally compromises the former by forcing women
to use riskier methods of abortion. In particular, HB 351
imposes significant risks in the pre-viability context by failing
to permit the intact procedure when it may avert health risks
for a woman who does not have a medically diagnosed
condition that complicates the pregnancy. Further, in both the
pre- and post-viability contexts, HB 351 imposes significant
physical risks upon a woman for whom a continuing
