                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                         ________________________

                         Nos. 98-3245NE, 98-3300NE
                         ________________________

      _____________                     *
                                        *
       No. 98-3245NE                    *
       _____________                    *
                                        *
Leroy H. Carhart, on behalf of himself *
and his patients obtaining abortions,   *
                                        *
             Appellee,                  *
                                        *
       v.                               *
                                        *
                                        *
Donald Stenberg, in his official        *
capacity as Attorney General for        *   On Appeal from the United
the State of Nebraska,                  *   States District Court
                                        *   for the District of
             Appellants,                *   Nebraska.
                                        *
Mike Munch, in his official capacity    *
as County Attorney for Sarpy County, *
and as a representative of all County   *
Attorneys in Nebraska,                  *
                                        *
             Defendant,                 *
                                        *
Gina Dunning, in her official capacity  *
as Director of Regulation and Licensure *
of the Nebraska Department of Health *
and Human Services, and Charles         *
Andrews, M.D., in his official capacity *
as Chief Medical Officer of Nebraska,    *
                                         *
               Appellants,               *
                                         *
       ----------------------            *
                                         *
State of South Carolina; State of Idaho; *
State of Louisiana; State of Ohio; State *
of Pennsylvania; State of Rhode Island; *
State of South Dakota; and               *
State of Utah,                           *
                                         *
               Amici Curiae,             *
                                         *
Family Research Council,                 *
                                         *
               Amicus Curiae.            *
                                         *    On Appeal from the United
       _____________                     *    States District Court
                                         *    for the District of
       No. 98-3300NE                     *    Nebraska.
       _____________                     *
                                         *
Leroy H. Carhart, on behalf of himself *
and his patients obtaining abortions,    *
                                         *
               Appellee,                 *
                                         *
       v.                                *
                                         *
                                         *
Donald Stenberg, in his official         *
capacity as Attorney General for         *
the State of Nebraska,                   *
                                         *
               Appellee,                 *
                                         *

                                        -2-
Mike Munch, in his official capacity     *
as County Attorney for Sarpy County,     *
and as a representative of all County    *
Attorneys in Nebraska,                   *
                                         *
               Appellant,                *
                                         *
Gina Dunning, in her official capacity   *
as Director of Regulation and Licensure *
of the Nebraska Department of Health *
and Human Services; and Charles          *
Andrews, M.D., in his official capacity *
as Chief Medical Officer of Nebraska, *
                                         *
               Appellees,                *
                                         *
       ----------------------            *
                                         *
State of South Carolina; State of Idaho; *
State of Louisiana; State of Ohio; State *
of Pennsylvania; State of Rhode Island; *
State of South Dakota; and               *
State of Utah,                           *
                                         *
               Amici Curiae,             *
                                         *
Family Research Council,                 *
                                         *
               Amicus Curiae.            *
                                    ___________

                            Submitted: April 19, 1999
                                Filed: September 24, 1999
                                 ___________




                                        -3-
Before RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and
      MAGNUSON,2 District Judge.
                              ___________

RICHARD S. ARNOLD, Circuit Judge.


       The State of Nebraska appeals a District Court3 decision holding a Nebraska
statute banning "partial-birth abortion" unconstitutional. The District Court
permanently enjoined enforcement of the statute and awarded attorney's fees and costs
to the plaintiff. The County Attorney, named in the lawsuit in his official capacity and
as a representative of all county attorneys, appeals the portion of the judgment
awarding attorney's fees against him. For the following reasons, we affirm the
judgment of the District Court.

      It is important to have in mind that we deal here with a particular legal question:
the validity, under the Constitution of the United States, of a certain Nebraska law.
The law refers to "partial-birth abortion," but this term, though widely used by
lawmakers and in the popular press, has no fixed medical or legal content. The closest
thing we have to a medical definition comes from the American College of
Obstetricians and Gynecologists (ACOG). The ACOG definition describes a method
of abortion (commonly called dilation and extraction, or D&X) involving extraction,
from the uterus and into the vagina, of all of the body of a fetus except the head,
following which the fetus is killed by extracting the contents of the skull. Thereafter,


        1
            The Hon. Roger L. Wollman became Chief Judge of this Court on April 24,
1999.
        2
        The Hon. Paul A. Magnuson, Chief Judge, United States District Court for the
District of Minnesota, sitting by designation.
        3
      The Hon. Richard G. Kopf, United States District Judge for the District of
Nebraska.

                                          -4-
the dead but otherwise intact fetus is taken from the mother's body. Certainly this
medical description is within the definition of "partial-birth abortion" contained in the
Nebraska statute before us. The difficulty is that the statute covers a great deal more.
It would also prohibit, in many circumstances, the most common method of second-
trimester abortion, called a dilation and evacuation (D&E). Under the controlling
precedents laid down by the Supreme Court, such a prohibition places an undue burden
on the right of women to choose whether to have an abortion. It is therefore our duty
to declare the statute invalid.

                                            I.

      On June 9, 1997, Nebraska's Governor signed into law Legislative Bill 23, a bill
enacted by the Nebraska Legislature prohibiting "partial-birth abortion." The statute
provides:

      No partial-birth abortion shall be performed in this state, unless such
      procedure is necessary to save the life of the mother whose life is
      endangered by a physical disorder, physical illness, or physical injury,
      including a life-endangering physical condition caused by or arising from
      the pregnancy itself.


Neb. Rev. Stat. § 28-328(1) (1998). "Partial-birth abortion" is defined in the statute as:

      an abortion procedure in which the person performing the abortion
      partially delivers vaginally a living unborn child before killing the unborn
      child and completing the delivery. For purposes of this subdivision, the
      term partially delivers vaginally a living unborn child before killing the
      unborn child means deliberately and intentionally delivering into the
      vagina a living unborn child, or a substantial portion thereof, for the
      purpose of performing a procedure that the person performing such
      procedure knows will kill the unborn child and does kill the unborn child.


                                           -5-
Id. § 28-326(9). The intentional and knowing performance of an unlawful "partial-birth
abortion" is a Class III felony. See id. § 28-328(2). A physician who intentionally and
knowingly performs an unlawful "partial-birth abortion" will automatically have his
license to practice medicine in Nebraska suspended and revoked. See id. § 28-328(4).

       Shortly after the passage of LB 23, Dr. LeRoy Carhart filed a complaint
challenging the constitutionality of the statute. In response to the complaint, the
District Court granted a temporary restraining order, followed by a preliminary
injunction, suspending enforcement of the statute. After a trial on the merits, the
District Court issued its final judgment, holding LB 23 unconstitutional, and
permanently enjoining enforcement of LB 23 against Dr. Carhart, his patients, and other
similarly situated individuals.

       Dr. Carhart challenged the constitutionality of LB 23 on two separate grounds.
He argued that LB 23 imposed an undue burden on himself and his patients in two
ways. First, because the D&X procedure is the safest procedure for some women in
certain circumstances, banning that procedure places an undue burden on women
seeking an abortion. Second, because LB 23 prohibits vaginally delivering a
"substantial portion" of a fetus as part of an abortion procedure, the law bans the
dilation and evacuation (D&E) procedure as well. Because the D&E procedure is the
most widely used second-trimester abortion procedure, this ban also places an undue
burden on women seeking to have an abortion. Dr. Carhart also challenged the law as
being vague, arguing that it was unclear what "substantial portion" meant. The District
Court agreed, holding both that the law created an undue burden for Dr. Carhart and
his patients, and that the law was void for vagueness. Carhart v. Stenberg, 11 F. Supp.
2d 1099 (D. Neb. 1998).4


      4
        Because we are holding the law unconstitutional on undue-burden grounds, it
is not necessary for us to discuss the vagueness issue. Nor is it necessary for us to

                                          -6-
                                          II.

       We state the facts as found by the District Court. (The Court's findings are not
clearly erroneous, and we therefore must accept them.) Dr. Carhart operates a family
medical practice with a specialized abortion facility in Bellevue, Nebraska. He is
licensed to practice medicine in Nebraska, as well as in seven other states. Dr. Carhart
performs abortions in a clinic setting from a gestational age of three weeks5 until fetal
viability. The abortion procedures Dr. Carhart performs vary depending on the
gestational age of the fetus as well as on various other medical factors. As we shall
explain, two of the procedures Dr. Carhart performs are directly affected by LB 23's
ban: dilation and evacuation (D&E) and intact dilation and evacuation or dilation and
extraction (D&X).6 Both are procedures for second-trimester abortions. LB 23 affects
not only Dr. Carhart, but any doctor in Nebraska who performs the D&E or the D&X
procedure, as well as that doctor's patients.

       The most common method of abortion during the second trimester is the D&E
procedure. A physician performing a D&E procedure gradually dilates the cervix and
then removes the fetus and other products of conception. A report by the American




discuss whether the law creates an undue burden by prohibiting the D&X procedure.
The basis for our holding is the undue burden created by the ban of the D&E
procedure.
      5
          Gestational age is measured from the first day of the woman's last menstrual
period.
      6
       The District Court's very thorough opinion details other abortion procedures as
well. We see no need to repeat these descriptions and will therefore focus only on the
procedures affected by LB 23.

                                           -7-
Medical Association7 describes the D&E procedure used from thirteen to fifteen weeks'
gestation as follows:

      Osmotic dilators are usually used. Intravenous fluids and an analgesic or
      sedative may be administered. A local anesthetic such as a paracervical
      block may be administered, dilating agents, if used, are removed, and
      instruments are inserted through the cervix into the uterus to remove fetal
      and placental tissue. Because fetal tissue is friable and easily broken, the
      fetus may not be removed intact. The walls of the uterus are scraped with
      a curette to ensure that no tissue remains. In pregnancies beyond 14
      weeks, oxytocin is given intravenously to stimulate the uterus to contract
      and shrink.



Ex. 7, at 8 (footnotes omitted). The AMA report also includes a description of a D&E
procedure used from sixteen to twenty-four weeks' gestation. It includes some
variations from the procedure used from thirteen to fifteen weeks. After the cervix has
been dilated:

      Fetal tissue is extracted through the use of surgical instruments, followed
      by extraction of placental tissue and subsequent curettage. Because the
      fetus is larger at this stage of gestation (particularly the head), and
      because bones are more rigid, dismemberment or other destructive
      procedures are more likely to be required than at earlier gestational ages
      to remove fetal and placental tissue. Some physicians use intrafetal
      potassium chloride or digoxin to induce fetal demise prior to a late D&E
      (after 20 weeks), to facilitate evacuation.




      7
       The parties stipulated to the admission of the American Medical Association's
"Report of the Board of Trustees on Late-Term Abortion" at the preliminary injunction
hearing. The report, which studied late-term abortion techniques, was admitted as
Exhibit 7.

                                          -8-
Id.

       When dismemberment occurs during a D&E procedure, it does not occur in
utero. Prelim. Inj. Tr. 116; Trial Tr. 30-31. Dr. Carhart explained that during the D&E
procedure, the dismemberment occurs after a part of the fetus has been pulled through
the cervix, into the vagina:

       Dr. Carhart: The dismemberment occurs between the traction of . . . my
       instrument and the counter-traction of the internal os of the cervix. . . .

       Counsel:     So the dismemberment occurs after you pulled a part of the
       fetus through the cervix, is that correct?

       A:     Exactly. Because you're using – The cervix has two strictures or
       two rings, the internal os and the external os, and you have – that's what's
       actually doing the dismembering. . . .

       Q:   When we talked before or talked before about a D&E, that is not
       – where there is not intention to do it intact, do you, in that situation,
       dismember the fetus in utero first, then remove portions?

       A:    I don't think so . . . I don't know of any way that one could go in
       and intentionally dismember the fetus in the uterus. If you grab an
       extremity and twist it, you can watch the whole fetus just twist. It takes
       something that restricts the motion of the fetus against what you're doing
       before you're going to get dismemberment.


Prelim. Inj. Tr. 116-17. Dr. Phillip Stubblefield, a witness for the plaintiff, testified that
to dismember the fetus in utero a physician:

       would have to introduce into the uterus something that would cut up the fetus,
       or else put in two forceps and try to dismember the fetus inside the uterus,



                                             -9-
      which would increase considerably your chance that you're going to tear the
      uterus, perforate the uterus, seriously injure the woman. That is not done.

Trial Tr. 31.

       In some circumstances, a physician performing a D&E procedure may attempt
to remove the fetus intact. This procedure, known as an intact dilation and evacuation
(intact D&E) or a dilation and extraction (D&X) can be used in abortions performed
from sixteen to twenty-four weeks' gestation. The AMA report describes the D&X
procedure as:

      deliberate dilatation of the cervix, usually over a sequence of days;
      instrumental conversion of the fetus to a footling breech; breech extraction
      of the body excepting the head; and partial evacuation of the intracranial
      contents of a living fetus to effect vaginal delivery of a dead but otherwise
      intact fetus.


Ex. 7, at 8 (footnotes omitted). The physician generally brings all of the fetus, except
for the head, out of the uterus into the vagina. Trial Tr. 35-36; J.A. 1150. Because the
cervix is not dilated enough to allow the head to pass through, the physician inserts an
instrument into the fetal skull and evacuates the contents, collapsing the skull and
allowing removal of an intact fetus. Trial Tr. 35-36, 716; J.A. 1150.




                                          -10-
       Fetal death8 does not always occur at the same stage of each D&E or D&X
procedure. Prelim. Inj. Tr. 217-18. In both procedures, the physician brings a part of
a living fetus out of the uterus into the vagina.9 In a D&E procedure, fetal demise will
occur after dismemberment. The time it takes for fetal demise to occur can, however,
vary. Id. at 118-19. During a D&X procedure, fetal demise will occur some time after
the physician has evacuated the cranial contents. In either procedure, fetal demise will
generally occur within a matter of minutes, and after part of the fetus has been brought
out of the uterus into the vagina. Id. at 112-13, 118-19.

                                          III.

       The Supreme Court has held that a woman has a constitutional right to choose
whether to terminate a pregnancy. Roe v. Wade, 410 U.S. 113, 153 (1973). Although
a state cannot prohibit a woman from choosing to have an abortion, the state can
promote the interest in potential human life and, after fetal viability,10 "regulate, and
even proscribe, abortion except where it is necessary, in appropriate medical judgment,
for the preservation of the life or health of the mother." Roe, 410 U.S. at 164-65. A


      8
        With the use of ultrasound, a physician can detect a fetal heartbeat to determine
that a fetus is living. Trial Tr. 22-23. No agreed upon definition exists, however, as
to what constitutes fetal demise. Id. Physicians determine the death of adults and
children by measuring brain function. Id. In either a D&E or D&X procedure, any
heartbeat or brain function will cease as the procedure progresses. Prelim. Inj. Tr. 113-
14, 118-19. The parties to this case seem to agree that a living fetus is one whose heart
is beating.
      9
        In some cases the fetus is not alive at this stage. In those cases LB 23 would
not apply because the abortion procedure would not involve the delivery of a "living"
fetus as required by the statute.
      10
         As we understand the record and the legal arguments in this case, no question
is raised with respect to procedures performed on viable fetuses. The applicable legal
standard is therefore the undue-burden rule of Casey.

                                          -11-
state can also enact abortion regulations at the pre-viability stage, so long as there is
no "undue burden" placed on the woman seeking to have an abortion. Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 876 (1992). A
regulation which "has the purpose or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus" creates an undue burden and is
invalid. Id. at 877.

       Several states have enacted statutes seeking to ban "partial-birth abortion." The
precise wording of the statutes, and how far the statutes go in their attempts to regulate
pre-viability abortions, differ from state to state. The results from constitutional
challenges to the statutes, however, have been almost unvarying. In most of the cases
that reached the federal courts, the courts have held the statutes unconstitutional.

       The Sixth Circuit, the first United States Court of Appeals to consider the issue,11
struck down an Ohio statute which attempted to ban the D&X procedure. Women's
Medical Professional Corporation v. Voinovich, 130 F.3d 187, 190 (6th Cir. 1997).


      11
        The Fourth and Seventh Circuits have also heard appeals on this issue. In the
Fourth Circuit, Judge Luttig, sitting as a single judge, granted the State of Virginia's
stay application after a District Court granted a preliminary injunction enjoining
enforcement of the state's partial-birth abortion ban. Richmond Medical Center for
Women v. Gilmore, 144 F.3d 326, 327 (4th Cir. 1998) (Luttig, J., in chambers). On
July 16, 1999, however, after trial on the merits, the District Court struck down the
Virginia statute. Richmond Medical Center for Women v. Gilmore, No. 3:98CV309
(E.D. Va. Jul. 16, 1999).

      The Seventh Circuit reversed a lower court's decision denying Planned
Parenthood of Wisconsin's motion for a preliminary injunction against enforcement of
a Wisconsin statute banning partial-birth abortion. Planned Parenthood of Wisconsin
v. Doyle, 162 F.3d 463, 471 (7th Cir. 1998). After a trial on the merits, the District
Court upheld the constitutionality of the statute. Planned Parenthood of Wisconsin v.
Doyle, 44 F. Supp. 2d 975 (W.D. Wis. 1999).

                                           -12-
The statute specifically banned only the D&X procedure: "No person shall knowingly
perform or attempt to perform a dilation and extraction procedure upon a pregnant
woman." Ohio Rev. Code Ann. § 2919.15(B) (1996). The statute defined dilation and
extraction as "the termination of a human pregnancy by purposely inserting a suction
device into the skull of a fetus to remove the brain." Id. § 2919.15(A). The Court held,
however, that the statutory definition of the prohibited abortion method included both
the D&E and D&X procedures. The D&E procedure sometimes requires a physician
to "compress the head by using suction to remove the intracranial contents."
Voinovich, 130 F.3d at 198. The Court held that because the D&E procedure is the
most common method of second-trimester abortions, the statute created an undue
burden on women seeking second-trimester abortions. Id. at 201. The legislature was
aiming at the D&X procedure, but the language of the statute included a definition
which encompassed the D&E procedure as well.

       A number of district courts have also addressed the constitutionality of state
statutes banning "partial-birth abortion." Only one has upheld such a statute. See
Planned Parenthood of Wisconsin v. Doyle, 44 F. Supp. 2d 975 (W.D. Wis. 1999).
The other district courts faced with the issue have all held the statutes unconstitutional.
See Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999) (partial-
birth abortion act created substantial obstacle in path of women seeking safe abortion
and broad language creating confusion and ambiguity rendered Act unconstitutionally
vague); Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2d 478
(D. N.J. 1998) (partial-birth abortion act void for vagueness because persons of
ordinary intelligence must guess at meaning of phrases such as "partially vaginally
delivers" and "substantial portion"); Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D.
Ky. 1998) (partial-birth abortion act created undue burden because overbroad language
banned procedures necessary to guarantee right to choose to have abortion); Hope
Clinic v. Ryan, 995 F. Supp. 847 (N.D. Ill. 1998) (partial-birth abortion act void for
vagueness because it failed to define conduct proscribed and created undue burden
because it had potential effect of banning most common and safest abortion

                                           -13-
procedures); Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997) (partial-birth
abortion statute vague because ambiguous and susceptible to various interpretations
and overbroad because it would operate as substantial obstacle to woman's right to
choose to have abortion).

                                            IV.

      The District Court in Nebraska joined the majority of the courts that have
considered the issue, holding that the statute enacted by the Nebraska Legislature
attempting to ban "partial-birth abortion" could not withstand constitutional scrutiny.
We review the District Court's conclusions of law de novo. See Planned Parenthood
of Greater Iowa v. Atchison, 126 F.3d 1042, 1048 (8th Cir. 1997).

       In considering a challenge to the facial validity of an abortion regulation, we
follow the standard set out in Casey. See Planned Parenthood, Sioux Falls Clinic v.
Miller, 63 F.3d 1452, 1458 (8th Cir. 1995). If the regulation operates "as a substantial
obstacle to a woman's choice to undergo an abortion 'in a large fraction of the cases in
which [it] is relevant, . . . [i]t is an undue burden, and therefore invalid.' " Id. (quoting
Casey, 505 U.S. at 895).

       The District Court determined that LB 23 created an undue burden because in
many instances it would ban the most common procedure for second-trimester
abortions, the D&E. The State argues that LB 23's ban on partial-birth abortion
prohibits only the D&X procedure, and not the D&E. Under the statute, a person is
prohibited from "deliberately and intentionally delivering into the vagina a living unborn
child, or a substantial portion thereof, for the purpose of performing a procedure that
the person performing such procedure knows will kill the unborn child and does kill the
unborn child." Neb. Rev. Stat. § 28-326(9) (1998). The State argues that the Nebraska
Legislature's intent was to ban only the D&X procedure. The language of the statute,
however, describes a procedure which encompasses more than just D&X.

                                            -14-
        In interpreting the statute, it is our duty to give it a construction, if reasonably
possible, that would avoid constitutional doubts. We cannot, however, twist the words
of the law and give them a meaning they cannot reasonably bear. The crucial problem
is the term "substantial portion," which is nowhere defined in the statute. What the
term means for the purposes of LB 23 has been debated at length, both in the record
before us and on the floor of the Nebraska Legislature. But if "substantial portion"
means an arm or a leg – and surely it must – then the ban created by LB 23
encompasses both the D&E and the D&X procedures. We agree with the District
Court's assessment that "[i]n any sensible and ordinary reading of the word, a leg or
arm is 'substantial.' " Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1129 (D. Neb. 1998).
In the D&E procedure, the physician often inserts forceps into the uterus, grasps a part
of the living fetus, and pulls that part of the fetus through the cervix. That part of the
fetus is commonly an arm or a leg. Prelim. Inj. Tr. 117-18; Trial Tr. 31. LB 23 bars
intentionally bringing a substantial portion of a living fetus into the vagina for purposes
of performing a procedure that will kill the fetus. A physician who brings an arm or a
leg into the vagina as part of the D&E procedure therefore violates the statute.

       The State argues that the statute's scienter requirement limits the statute's scope.
The partial vaginal delivery of a substantial portion of the living fetus must be done
"deliberately and intentionally." The statute applies, according to the State, only to the
deliberate and intentional performance of a "partial-birth abortion." The State defines
the proscribed procedure as involving the intentional "1) partial delivery of a living
fetus vaginally, 2) killing the fetus and 3) completing the delivery." Appellant's Br. 66-
67. But the D&E procedure involves all three of those steps. The physician
intentionally brings a substantial part of the fetus into the vagina, dismembers the fetus,
leading to fetal demise, and completes the delivery. A physician need not set out with
the intent to perform a D&X procedure in order to violate the statute. It is enough that
the physician have the intent to deliver vaginally a substantial portion of a living fetus,
and that occurs in the D&E procedure.


                                           -15-
        Additionally, the person performing the procedure must do so with the purpose
of performing a procedure that the person knows "will kill the unborn child and does
kill the unborn child." Neb. Rev. Stat. § 28-326(9) (1998). In any abortion procedure
the physician performing the procedure does so knowing, and with the purpose, that the
procedure will kill the fetus. The language of LB 23 describes a method of abortion
that includes the D&E procedure, and the intent requirement of the statute does not
work to protect physicians who perform the D&E procedure from violating the statute.
LB 23 not only prohibits the D&X procedure, but the D&E procedure as well.

                                          V.

      Having determined that LB 23 bans the D&E procedure, we turn now to the
question of whether such a ban imposes an undue burden on women seeking second-
trimester abortions.

      In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 79 (1976),
the Supreme Court held unconstitutional a statute proscribing the use of saline
amniocentesis as a method of abortion. Saline amniocentesis was then the most
commonly used procedure for abortions performed after the first trimester. Id. at 78.
By prohibiting the use of the procedure, the statute would effectively inhibit the vast
majority of abortions performed after the first trimester. Id. at 79. Danforth was
decided under the trimester framework of Roe. Although Casey changed that
framework, the ban in Danforth meets the undue-burden standard of Casey. See
Voinovich, 130 F.3d at 201: "An abortion regulation that inhibits the vast majority of
second trimester abortions would clearly have the effect of placing a substantial
obstacle in the path of a woman seeking a pre-viability abortion." LB 23 does not limit
all second-trimester abortions. It does, however, prohibit the most common procedure
for second-trimester abortions and, in doing so, imposes an undue burden on a woman's
right to choose to have an abortion.


                                         -16-
                                           VI.

        In its final argument, the State suggests that Roe and Casey do not apply to LB
23 because Roe and Casey apply only to the "unborn" and do not prohibit states from
protecting partially born human beings. The State argues that "the Supreme Court has
left protection in place for the partially born." Appellant's Br. 71. The State also
suggests that because the partial-birth abortion procedure involves a fetus which is
more outside of the uterus than inside, the fetus is not unborn, sufficiently
distinguishing this case from Roe and Casey. The phrase "partially born" is new to us.
Apparently the State uses it to describe a process in which the fetus is killed when it
is more outside the womb than inside. If we assume that there is such a legal category,
and that, as the State argues, the rule of Roe v. Wade does not apply to it, the argument
is still unavailing on the record before us in this case. As we have explained, the
Nebraska statute is violated when an arm or a leg of a fetus that is still alive is pulled
out of the womb as part of the D&E abortion procedure. In such a situation, although
a substantial part of the fetus, as defined by the Nebraska law, has been extracted from
the uterus, it cannot be said that the fetus as a whole is more outside the uterus than
inside. In addition, we think that the word "born" refers most naturally to a viable
fetus, one that is capable of surviving outside the mother. The Nebraska statute is not
limited to viable fetuses. Indeed, as we have observed, both the proof and the legal
arguments in this case seem to be exclusively about nonviable fetuses. So if there is
a separate legal category for the "partially born," and we express no view on that
question, we do not see how it could be relevant to the present case.

                                          VII.

      Mike Munch, in his official capacity as County Attorney for Sarpy County,
appeals the District Court's award of attorney's fees against him. After the District
Court held LB 23 unconstitutional, Dr. Carhart sought, and was awarded, attorney's
fees, pursuant to 42 U.S.C. § 1988. Section 1988 allows a plaintiff who has brought

                                          -17-
a successful suit under 42 U.S.C. § 1983 to recover, at the court's discretion,
reasonable attorney's fees from the defendant. The statute provides that "the court, in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." 42 U.S.C. § 1988(b) (1994). Because Dr. Carhart
was a prevailing party, the District Court appropriately granted his request for
attorney's fees.

      Mr. Munch is the County Attorney in Sarpy County, the county in which Dr.
Carhart practices medicine. Dr. Carhart named Mr. Munch in the lawsuit in his official
capacity as Sarpy County Attorney and as a representative of all county attorneys in
Nebraska. Mr. Munch agrees that Dr. Carhart was a prevailing party. He argues,
however, that the award of attorney's fees should not apply against him. We review the
award of attorney's fees for an abuse of discretion. See Hatfield v. Hayes, 877 F.2d
717, 719 (8th Cir. 1989).

        A prevailing party in a § 1983 suit "should ordinarily recover an attorney's fee
unless special circumstances would render such an award unjust." Id. According to
Mr. Munch, the special circumstances in this case are that as a government official he
is bound to follow state law and enforce LB 23, and that he did not actively participate
in the lawsuit. The short answer is that governmental officials are not bound to follow
state law when that law is itself unconstitutional. Quite the contrary: in such a case,
they are bound not to follow state law. It is true that a prosecuting attorney may not
know for certain whether a state law is valid or not, and that he may feel obliged to
enforce the law until a determination as to its validity has been made. This, however,
is not a special circumstance justifying the denial of the customary award of fees.
Presumably it will always be true that state officials enforcing a law or otherwise
defending state action will believe, or at least hope, that the law or action in question
will be upheld against a federal constitutional attack. The point of § 1988 is that such
officials proceed at their peril. If in fact they are wrong, and the law they are enforcing
turns out to be invalid, § 1988 puts the financial burden on the state officials. The

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judgment of Congress is that the burden rests more properly on them than on the party
who has been wronged by the application of an invalid law.

       In addition, although Mr. Munch has not had the opportunity to enforce LB 23,
he has made it clear that he would prosecute under the statute. J.A. 646-47. Awarding
fees against officials bound to enforce the law is a "run-of-the-mill occurrence[]."
Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719,
739 (1980). Additionally, Mr. Munch has the discretion to choose when to prosecute.
We find no merit in this argument.

      Mr. Munch's argument that he did not actively participate in the lawsuit and that
he should not, therefore, be responsible for the attorney's fees, is equally without merit.
His role in the proceedings may have been minor, but this does not excuse him from
having to share in the actual costs. He relied on his co-defendants to present their
defense of the constitutionality of LB 23, a statute he has indicated he would enforce,
and he cannot now avoid helping to pay the prevailing party's attorney's fees.

       The District Court did not abuse its discretion in holding Mr. Munch liable,
jointly and severally with the other defendants, for the attorney's fee award. How the
defendants choose to allocate the fees among themselves is entirely up to them.

                                          VIII.

      For the foregoing reasons, we affirm the judgment of the District Court.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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