197 F.3d 876 (7th Cir. 1999)
The Hope Clinic, et al., Plaintiffs-Appellees,v.James R. Ryan, Attorney General of Illinois,  and Richard K. Devine, State's Attorney  of Cook County, Illinois, Defendants-Appellants.
No. 98-1726

Dennis D. Christensen, et al.,    Plaintiffs-Appellants, v. James E. Doyle, Attorney General of Wisconsin,  and Diane M. Nicks, District Attorney  for Dane County, Wisconsin, Defendants-Appellees.
Nos. 99-2528 & 99-2533
United States Court of Appeals  For the Seventh Circuit  Chicago, Illinois  60604
November 30, 1999
Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 97 C 8702--Charles P. Kocoras, Judge
Appeals from the United States District Court  for the Western District of Wisconsin.  No. 98-C-0305-S--John C. Shabaz, Chief Judge.

Order

1
The motions for stays of mandate are denied by an equally divided court. By majority vote, pursuant to Fed. R. App. P. 41(b), the court has determined that the mandates will issue on December 1, 1999.


2
Circuit Judge Ripple did not participate in the consideration or decision of these cases.


3
DIANE P. WOOD, Circuit Judge, with whom POSNER, Chief Judge, and ROVNER, EVANS, and WILLIAMS, Circuit Judges, join, dissenting from the order denying the stay of  the mandate.


4
Displaying a regrettable disregard for the importance of the issues implicated in these two cases, the split in views about their proper disposition not only within this court but around the country, and the inadequacy of the injunctions that the opinion in these cases contemplates, five  members of this court have voted to deny  plaintiffs' motions for a stay of the mandates  pending the Supreme Court's consideration of their  petitions for certiorari. Five other members of the  court have voted to grant the requested stay. The  even split means that there is no majority in favor  of the stay, which means in turn that the mandates  will issue on the date specified in the order being  issued today. The insistence of five members of the  court on immediate implementation of the decision  does nothing to assist the orderly presentation of  fundamental constitutional questions to the highest  court in our country. Furthermore, as I explain  briefly below, the "precautionary injunctions" that  the majority's merits opinion directs the district  courts to enter (which of course have not yet been  drafted, nor tested in any court of law) are by  design insufficient to prevent irreparable harm  while the plaintiffs pursue their remedies in the  Supreme Court. I therefore dissent from the court's  decision to deny the requested stay of the  mandates.


5
By asserting that the planned "precautionary  injunctions" will be enough to forestall  irreparable harm, those who think the stays should  be denied have assumed the answer to some of the  very questions that will be put before the Supreme  Court in the petitions for certiorari. In so doing,  they have misunderstood the perspective we should  adopt at this final stage of proceedings in the  court of appeals. When we consider a stay of our  mandate to allow the Supreme Court to act, we are  no longer acting as a single circuit. The question  is instead how the views of this circuit's judges  correspond to the views expressed by other courts  around the country. That is the context in which we  should measure the risk of irreparable harm, and  from that standpoint, it is considerable. We are  dealing, after all, with matters of life and death,  as they relate to a woman's exercise of a  constitutional right the Supreme Court has  repeatedly recognized. See, e.g., Planned  Parenthood of Southeastern Pennsylvania v. Casey,  505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113  (1973). Even the stay opponents cannot dispute the  fact that the circuits are divided on the question  whether statutes like the Illinois and Wisconsin  laws are constitutional. The "precautionary"  injunctions that the district courts are expected  to enter on remand from this court will do nothing  to ameliorate much of that risk. The contemplated  injunctions will not add a "health" exception to  the Wisconsin and Illinois statutes, and apart from  the one doctor on whom the merits majority relied,  a great number of respectable physicians (including  the American College of Obstetricians and  Gynecologists, or ACOG) believe that a health  exception is necessary. If the majority's medical  prediction turns out to be wrong and ACOG is right,  some women in this region of the country may find  their health permanently impaired even with the  "precautionary" injunctions in place.


6
There is another problem as well with the  "precautionary" injunctions, which is the fact that  they do not even exist right now. For reasons  explained in its merits opinion, the majority  thinks that there is enough danger of improper  enforcement of both statutes to warrant the  extraordinary step of directing the issuance of the  injunctions. But that process may take weeks, or  even months, leaving a legal void in the meantime  during which the states will be utterly  unconstrained. Even if the Attorneys General  themselves can be counted on not to abuse their  position during this lacuna, the same cannot be  said for all prosecutors. Law enforcement in both  states is decentralized, carried out by local  prosecutors who are independently elected  officials. Particularly during the time period  while local prosecutors are not legally compelled  to decipher whatever precautionary injunction is  entered, some may decide to prosecute abortion  providers who perform D&E procedures that literally  conform to the statutory definition of a  "partial-birth abortion," which the majority  concedes are constitutionally protected. No doubt  the probability of such prosecutions is small, but,  given the fact that we are talking about a total of  174 independent county prosecutors in the two  states, it is just as real as the risk (also  assumed by the majority to be small) that led to  the precautionary injunctions to begin with.


7
In addition, as Chief Judge Posner's opinion  dissenting on the merits clearly explains, there  are many who will be unable to draw a sensible line  between the D&E procedure that the "precautionary"  injunctions, once drafted, will allegedly find some  way to protect, and the D&X procedure that they  will permit the states to prohibit (on pain of life  imprisonment in Wisconsin, it is worth remembering,  lesser imprisonment in Illinois, and potential loss  of professional license in both places). Saying  that the line can be drawn is not the same thing as  drawing it, no matter what scienter standards the  majority has articulated. The doctors, who have  little personally to gain from donning a legal hat  and guessing how close to the line they dare go,  and everything to lose, will inevitably take a  conservative approach that will burden the  constitutional rights of their patients. This is  the rationale that underlay the positions of the  Sixth and Eighth Circuits. See Carhart v. Stenberg,  1999 192 F.3d 1142, 1149-52 (8th Cir. Sept. 24, 1999);  Little Rock Family Planning Services, P.A. v.  Jegley, 192 F.3d 794, 797 (8th Cir. Sept. 24,  1999); Women's Medical Professional Corp. v.  Voinovich, 130 F.3d 187, 197-200 (6th Cir. 1997).  Indeed, the Eighth Circuit thought it so clear that  wording essentially identical to that found in our  two statutes prohibited the D&E procedure that it  seems not to have found the statutes before it  vague at all, which is why it proceeded to the  undue burden analysis. See Planned Parenthood of  Greater Iowa, Inc. v. Miller, 195 F.3d 386, 388 (8th Cir. Sept. 24, 1999).


8
In my view, the only responsible action this  court can take from the standpoint of its national  responsibility and role is to stay the mandates  pending the Supreme Court's disposition of the  petitions for certiorari. I note in this connection  that counsel for the Attorney General of Wisconsin,  in her response to the plaintiffs' motion, informed  this court on November 18, 1999, that the  defendants-appellees in Christensen do not oppose  the requested stay. Although that notification  reached the court after its November 17, 1999,  order denying the stay, it is now properly before  us, and it tells us in plain language that  Wisconsin believes that the orderly course of  proceedings--which, it is worth recalling, is a  different question from the merits--will be  furthered, or at least not harmed, by the stay.  Should the Supreme Court decide not to hear these  cases, implementation of the majority's conclusions  will be delayed by at most four to six months. If,  however, the Court grants the petitions in these  cases, or grants in one of the other pending cases  and holds these on its docket, that means it has  concluded that the cases are indeed of  extraordinary national importance. The lack of harm  from a grant of the requested stay (recall that  both state laws have been on hold throughout the  pendency of this litigation), the risk of  irreparable injury to both women and their doctors  from its denial, and our responsibility to preserve  the status quo for the Supreme Court, all  demonstrate how ill-advised the action by this  equally divided court truly is. I respectfully  dissent from the denial of the motions for the stay  of the mandates.

