In the
United States Court of Appeals
For the Seventh Circuit

Nos. 98-2043 & 98-2262

Elizabeth Karlin, M.D.; Planned Parenthood
of Wisconsin, Inc.; Gary T. Prohaska, M.D.;
and Summit Women’s Health Organization,
on behalf of themselves and their patients
seeking abortions,

Plaintiffs-Appellants, Cross-Appellees,

v.

C. William Foust, in his official
capacity as District
Attorney for Dane County and a representative of
the class of all district attorneys in Wisconsin;
James E. Doyle, in his official capacity as Attorney
General of Wisconsin; et al.,

Defendants-Appellees,

and

E. Michael McCann, in his official capacity as
District Attorney for Milwaukee County,

Defendant-Appellee, Cross-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 96 C 374--Barbara B. Crabb, Judge.


On Petition for Rehearing
and Petition for Rehearing En Banc


Submitted August 23, 1999--Decided December 30, 1999


  Before Cudahy, Coffey and Kanne, Circuit Judges.

  On consideration of the petition for rehearing,
all the judges on the panel voted to deny the
petition for rehearing. It is, therefore, ORDERED
that the petition for rehearing is DENIED.

  A vote was requested on the petition for rehearing
en banc. Chief Judge Posner, and Circuit Judges
Rovner, Diane P. Wood, Evans and Williams voted to
grant rehearing en banc; Circuit Judges Coffey,
Flaum, Easterbrook, Manion and Kanne voted to deny
rehearing en banc. Circuit Judge Ripple took no
part in the consideration or decision of this case.


  The vote for en banc review failed to obtain a
majority of the judges in regular active service,
as required by the Federal Rule of Appellate
Procedure 35(a), and en banc review cannot be
granted. It is, therefore, further ORDERED that the
petition for rehearing en banc is DENIED.

  Judge Diane P. Wood dissented from the denial
of rehearing en banc and filed an opinion which
was joined by Chief Judge Posner, Judge Rovner,
Judge Evans and Judge Williams.



  DIANE P. WOOD, Circuit Judge, with whom POSNER,
Chief Judge, and ROVNER, EVANS and WILLIAMS, Circuit
Judges, join, dissenting from denial of rehearing
en banc. On October 26, 1999, this court sitting
en banc issued its opinion in two cases dealing
with the constitutionality of the Wisconsin and
Illinois laws regulating what in lay terms is
known as "partial birth abortion." See The Hope
Clinic v. Ryan and Christensen v. Doyle, 1999 WL
974098 (7th Cir. Oct. 26, 1999) ("Hope Clinic").
The approach the majority in those cases took
toward the scienter requirement that must apply
in order to save the statutes from vagueness is
fundamentally inconsistent with the panel’s
opinion in the present case. Such inconsistency
is never desirable, but it is especially
regrettable in an area as sensitive as abortion.
Because we will not be rehearing this case en
banc, district judges and later panels of this
court will have no idea when a subjective
scienter standard is constitutionally required,
when an objective standard suffices, or whether
a given statute must be construed to impose one
or the other kind of requirement. This does no
favor to anyone or anything, least of all to the
orderly development of the law in this circuit.
I therefore dissent from the decision by the
equally divided court not to rehear this case en
banc.

  I begin with the proposition that, without the
benefit of some kind of knowledge standard, both
the partial-birth abortion statutes at issue in
Hope Clinic and the emergency procedure exception
to the Wisconsin "informed consent" statute fail
the constitutional vagueness test. As the panel
in the present case noted, vagueness exists when
the prohibitions of the laws are not clearly
defined, see Grayned v. City of Rockford, 408
U.S. 104, 108 (1972), because (a) they do not
provide fair warning of what is prohibited, and
(b) they do not contain an explicit and
ascertainable standard to prevent enforcers of
the law from engaging in arbitrary and
discriminatory enforcement. See Karlin v. Foust,
188 F.3d 446, 458-59 (1999).

  In Hope Clinic, the majority fended off the
argument that the Wisconsin and Illinois partial-
birth abortion statutes were unconstitutionally
vague by advising that the state courts might
construe the statutes in one of three related
ways (each of which in its view would save their
constitutionality)--using "brute force," see 1999
WL 974098 at *6, a rigorous implicit scienter
requirement, or a "core-plus-common-law," see id.
at *10, approach. But while there were three
alternatives, the basic point of Hope Clinic is
that at least one of these methods is
unquestionably necessary to save the statutes.
Since the Karlin panel avoided a foray into
possible saving constructions of "medical
emergency," only the Hope Clinic majority’s
scienter alternative is relevant to an analysis
of Assembly Bill 441 ("AB 441"), codified at Wis.
Stat. sec. 253.10. Hope Clinic upheld the
partial-birth abortion statutes by assuming that
the state courts would impose liability only for
acts that physicians subjectively knew were in
violation of the law and which they intentionally
performed in defiance of that knowledge. It did
this by reading into both state laws a very
specific mental state requirement, under which
the physician in question must "know that the
medical procedure being performed is a ’partial-
birth abortion’ and not simply that the physician
know that he is performing particular acts." Id.
at *8. To drive the point home, the majority
explained further that "[t]he question here is
not whether a physician understands the terms of
[the Wisconsin statute] in the abstract, but
whether the physician intends that the plan of
action add up to a ’partial-birth abortion.’" Id.
(emphasis added). Both this language and the
majority’s explicit reliance on the Supreme
Court’s decisions in Screws v. United States, 325
U.S. 91 (1945), Staples v. United States, 511
U.S. 600 (1994), and United States v. X-Citement
Video, Inc., 513 U.S. 64 (1994), make it clear
that a scienter requirement that could (in the
majority’s view) save the partial birth abortion
statutes from unconstitutional vagueness would
necessarily be both strict and subjective.

  I continue to believe that the approach of the
majority in Hope Clinic does nothing to cure the
vagueness inherent in the two partial-birth
abortion statutes. No matter how often the word
scienter is uttered, a doctor will still need to
know whether the procedure she is setting out to
perform will be illegal under the statutory
definition or not, and in my view, this will be
impossible given the way these laws are worded.
Nonetheless, even if one subscribed
wholeheartedly to the majority’s approach in Hope
Clinic, Karlin still cries out for en banc
attention. In Karlin, the physician plaintiffs
raised a vagueness challenge to a different part
of the Wisconsin abortion laws, the sections
dealing with informed consent. See AB 441. The
district court upheld the law in large part, and
I do not take issue here with most of its rulings
and the panel’s opinion treatment of those
rulings. My concern focuses on the first point
discussed in the panel’s opinion, which is
whether "AB 441’s ’medical emergency’ is
unconstitutionally vague because it relies on an
objective standard for evaluating a physician’s
decision to perform an emergency abortion."
Karlin, 188 F.3d at 458. When the exception,
codified at sec. 253.10(3)(f), applies,
physicians are relieved of their ordinary
statutory responsibilities to observe a 24-hour
waiting period and to furnish certain information
before performing the chosen procedure. The
statute defines "medical emergency" as follows:

[A] condition, in a physician’s reasonable
medical judgment, that so complicates the medical
condition of a pregnant woman as to necessitate
the immediate abortion of her pregnancy to avert
her death or for which a 24-hour delay in
performance or inducement of an abortion will
create serious risk of substantial and
irreversible impairment of one or more of the
woman’s major bodily functions.

Id. sec. 253.10(2)(d).

  The terms used in this statute are every bit as
uncertain as the terms used in the partial-birth
abortion statutes. The criteria that entitle the
physician to forego the 24-hour waiting period
and provision of the required information include
(1) a "serious risk" of (2) "substantial and
irreversible impairment" of a (3) "major" bodily
function. Ascertaining whether any of these is
present in a particular case requires the
exercise of sophisticated medical judgment.
Today’s serious risk may become manageable
tomorrow; impairments that are believed to be
irreversible today may turn out to be treatable
tomorrow; the level and treatability of risk may
depend on whether the patient is in an isolated
rural facility or in a sophisticated urban
teaching hospital. While it is possible for a
physician to exercise her subjective best
judgment on each of these points, they do not
lend themselves to objective precision. Put
another way, they are far too vague to serve as
the supporting criteria for an objective standard
of liability.
  Addressing only the "fair warning" aspect of
the vagueness analysis, the Karlin panel has
concluded that AB 441 passes muster; it pays
little or no attention to the risk of arbitrary
enforcement, finding paradoxically that if
someone can define ex post what would have been
reasonable under the circumstances, that is
enough to create an explicit and ascertainable
standard to govern the physician’s actions ex
ante. There are many problems with this approach,
beginning with the fundamental assumption that
underlies this section of the opinion, namely,
that the state statute actually creates an
objective standard for evaluating the physician’s
decision. Karlin, 188 F.3d at 459. The panel
accepts as a given that the phrase "reasonable
medical judgment" must refer to an objective
standard, and then it tackles the question
whether an unvarnished objective standard is
constitutionally permissible in this context.
Perhaps it is correct to do so; words are not
infinitely malleable, and courts sensitive to
their role as interpreters of law rather than
drafters must take what legislatures have given
them. If, however, there were any basis in
Wisconsin law for thinking that the Wisconsin
Supreme Court might interpret the statute as
including a subjective standard, then it should
certainly be given the opportunity to do so, as
Judge Cudahy argued in his dissenting opinion.
Few would disagree that, in the light of Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992), the statute would be more
difficult to criticize if there were a subjective
element in AB 441 that had to be satisfied before
liability could be found. In other areas of the
law unencumbered by a statutory "reasonableness"
criterion, it is common to find a dual objective
and subjective test. For example, both subjective
awareness of risk and objectively unreasonable
conditions must be demonstrated in order to raise
a successful Eighth Amendment challenge, see
Farmer v. Brennan, 511 U.S. 825, 846 (1994); both
objective and subjective hostility are also
required before a plaintiff may prevail on a
sexual harassment claim, see Harris v. Forklift
Sys., 510 U.S. 17, 22 (1993). It is important to
recognize that the panel’s interpretation of the
Wisconsin statute is nothing more than a federal
court’s guess at what the state law means; it is
not binding on the Wisconsin courts. Without
ruling out the possibility of a different
interpretation, however, I proceed on the same
basis as that of the panel, namely, that AB 441
requires the exclusive use of an objective
standard.

  The "medical emergency" provision of AB 441
requires, by definition, a prompt judgment by the
attending physician that the woman requires
urgent attention--as the statute puts it, she has
a medical condition that "necessitate[s] the
immediate abortion of her pregnancy to avert her
death or for which a 24-hour delay will create a
serious risk of substantial and irreversible
impairment of one or more of the woman’s major
bodily functions." sec. 253.10(2)(d). If a
physician making this kind of on-the-spot
judgment turns out in hindsight to have been
wrong--that is, if a calm after-the-fact review
indicates that the 24-hour delay would have made
no difference, or that only a minor bodily
function would have been impaired, or that any
impairment might have been reversible--she faces
a forfeiture penalty of anywhere from $1,000 to
$10,000, see sec. 253.10(5). On top of that, she
may be liable to the woman for compensatory
damages, punitive damages, and attorneys’ fees.
sec. 253.10(6). Last, and potentially most
importantly, she may be subject to professional
discipline, including revocation of her license.
sec. 448.02(3)(a).

  The panel brushes off this penalty structure
with the observation that physicians are
accustomed to plying their trade under the shadow
of traditional tort law, which subjects their
actions to the objective standard of
reasonableness. This fact, it implies, means that
a physician has fair warning before the fact that
her emergency judgments either will or will not
pass the statutory reasonableness test. In my
view, however, the analogy to tort law is not
helpful here. In order to be liable in tort, it
does not matter if a particular individual knew
that his actions were reasonable or not; the law
simply allocates risk as between a wrongdoer and
a victim according to objective principles (i.e.
strict liability, negligence, gross negligence).
Fair warning is crucial for a statute that draws
a line between constitutionally protected
conduct, such as free speech or the right to
choose an abortion, and unprotected behavior. The
informed consent statute draws such a line, and
worse, as Judge Cudahy pointed out, its
forfeiture provision imposes quasi-criminal
penalties for those who cross the line. Unlike
medical malpractice, which is a risk that any
prudent doctor will purchase insurance to cover,
criminal violations and their equivalents are
uninsurable. Cieslewicz v. Mutual Service
Casualty Ins. Co., 267 N.W.2d 595, 599 (Wis.
1978), quoting Northwestern Nat’l Casualty Co. v.
McNulty, 307 F.2d 432 (5th Cir. 1962). See also
Michael A. Jaffe, M.D. v. Cranford Ins. Co., 168
Cal. App. 3d 930, 935 n.9 (1985). To the extent
the doctor is genuinely uncertain about whether
the woman’s condition is a statutory "emergency,"
this statute leaves her in an impossible
position. If she performs the procedure and in
hindsight a jury decides that the situation was
not urgent enough, she faces uninsurable quasi-
criminal penalties, civil liability, and the loss
of her license. If she fails to perform the
procedure and the emergency was genuine, her
patient is either dead or irreversibly harmed--
either of which might lead to a malpractice
action, which insurance would normally cover.
Note, however, that in the absence of this
statute there would be no risk of liability if
she performed the abortion successfully, but
acted more promptly than was strictly necessary.

  Faced with the same problem in Hope Clinic, the
majority chose to save the partial-birth sections
of the Wisconsin and Illinois statutes by
following the assertion of the two Attorneys
General that they would be construed to cover
only those cases in which the performing
physician intends to perform the D&X procedure.
To quote from the majority’s opinion, 1999 WL
974098 at *8, "under [the Wisconsin and Illinois]
laws a procedure may be deemed a ’partial-birth
abortion’ only if at the outset of the procedure
the physician intends to perform all of the steps
that mark the D&X." Not only must the physician
have this subjective intent, but, according to
Hope Clinic, no liability can result unless the
physician also has actual knowledge of the legal
rules in question. Id. Without such knowledge and
intent, even if an objective assessment after-
the-fact reveals that the statutory elements of
the partial-birth abortion statutes were
satisfied, the physician has not violated the law
because the necessary scienter was missing.

  The majority held that its highly subjective
scienter test saved the two partial-birth
abortion statutes from unconstitutional
vagueness. Physicians performing procedures that
may literally seem to meet the statutory criteria
(e.g., in Illinois, the person performing the
abortion "partially vaginally delivers a living
human fetus or infant before killing the fetus or
infant and completing the delivery," 720 ILCS
sec. 513/5, or in Wisconsin, it is an abortion
"in which a person partially vaginally delivers
a living child, causes the death of the partially
delivered child with the intent to kill the
child, and then completes the delivery of the
child," Wis. Stat. sec. 940.16(1)(b)), cannot
violate the law unless they plan on doing so--
that is, unless they set out intending to perform
a D&X procedure.

  This is precisely the standard that the
physicians in Karlin argued was necessary to give
them fair warning of what is prohibited and to
forestall arbitrary enforcement decisions that
would chill their patients’ exercise of
constitutionally protected rights. In the face of
the vague language of AB 441’s emergency
exception, the panel here holds that it is not
enough for the physician to believe that the
woman faces either death or serious and
irreversible impairment of a major bodily
function. The highest degree of good faith in the
world will not save the Karlin physician, if
after-the-fact a committee of doctors, a judge,
or a jury decides that the woman had not "really"
been facing such a crisis. Emergencies like those
contemplated in AB 441 are stressful times for
everyone, and the objective standard the majority
has adopted gives physicians inadequate notice of
what is permissible, and will deter them from
performing necessary abortions even if that is
what they believe the patient needs.

  The Hope Clinic majority rejected exactly the
kind of objective standard that the Karlin panel
has adopted, because it recognized that doctors
could not be forced to perform the late-term
abortion procedure first and only learn later
whether some outsider thought it fit the
statutory definition. Indeed, the strongest
evidence that the court today is making a mistake
by refusing to rehear Karlin comes from the Hope
Clinic majority opinion itself, where the court
is explaining why it rejected the need for a
health exception to the partial-birth abortion
laws:

Can plaintiffs, who object to the vagueness of
the states’ laws, really welcome a ruling under
which every abortion creates the possibility of
a prosecution in which the state invites the jury
to disagree with the physician’s assessment of
the procedure’s safety? A health exception, where
jurors rather than physicians assessed health,
would be an order of magnitude worse than the
ambiguity plaintiffs perceive in the partial-
birth abortion laws.

1999 WL 974098 at *16. Exactly so. After-the-fact
assessments of the physician’s personal judgment
would be an intolerable burden indeed, but that
is what the Hope Clinic majority rejected on
behalf of the en banc court, and it is what the
Karlin majority has permitted.

  The only remaining question is whether the Hope
Clinic opinion has, in effect, endorsed the
Karlin outcome, either specifically or generally.
Aside from one minor point, the answer is no.
There is an incidental paragraph in Hope Clinic
that mentions the Karlin opinion, but it does not
focus even indirectly on the different paths the
two opinions have taken on the question whether
an objective standard can save a statute from
unconstitutional vagueness. Instead, the Hope
Clinic majority cites Karlin for the commonplace
point that a statute may be sustained against a
charge of vagueness if, as construed, it gives
reasonable notice of the forbidden conduct, even
if some people do not pay attention to the
notice. Id. at *7. In so doing, the Hope Clinic
majority expresses disapproval of the Sixth
Circuit’s opinion in Women’s Medical Professional
Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997).
If the Sixth Circuit really meant to say that a
statute never gives fair warning, even if the
person to whom it is addressed is, figuratively
speaking, wearing earplugs and playing loud
music, then I agree it went too far. That is
because the question whether a statute gives fair
warning is a legal one, which is answered when
the court interprets the statute. In Hope Clinic,
of course, the majority went much further to
avoid the vagueness challenge, when it found that
the doctor who blocked out whatever notice the
Wisconsin and Illinois statutes gave and
inadvertently performed a D&X not intending to
violate the law is off the hook. But even putting
that point to one side, the fact remains that the
brief mention of Karlin in the Hope Clinic
opinion does not reconcile the scienter standards
the two cases have adopted. The next abortion
case that reaches this court--not to mention the
next vagueness challenge in any other area--will
find little guidance in either Hope Clinic or the
present case, which this equally divided court is
allowing to stand. With the ink hardly dry on
Hope Clinic, I believe we have an institutional
responsibility to provide better guidance to the
people who live in the Seventh Circuit, to
lawyers, and to the district judges. I therefore
respectfully dissent from the decision not to
rehear this case en banc.
