Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. The plaintiffs are Virginia physicians, medical clinics, and non-profit corporations (the “plaintiffs”) offering reproductive health services and obstetrical and gynecological medical services, including abortions, to women in Charlottesville, Falls Church, Newport News, Norfolk, Richmond, and Roanoke, Virginia, and neighboring counties. The geographic area in which they offer abortion services encompasses a large segment of Virginia’s population. The individual and institutional plaintiffs brought this action on their own behalf and on behalf of their patients seeking abortions. The defendants are the Governor of Virginia and the Commonwealth Attorneys for the County of Albemarle, the County of Fairfax, the City of Newport News, the City of Norfolk, the City of Richmond, and the County of Roanoke. The Governor is responsible for ensuring that the laws of Virginia are faithfully executed and the Commonwealth Attorneys are responsible for enforcing Virginia’s criminal statutes. The plaintiffs filed this civil rights action, pursuant to. 28 U.S.C. §§ 1381,1343(a)(3) and (4), 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202, seeking a declaration that Chapters 448 and 579 of the 1998 Acts of the General Assembly, Va.Code § 18.2-74.2 (the “Act”), offend the Constitution of the United States in several ways. In particular, the plaintiffs assert that the Act violates a woman’s right to privacy under the Due Process Clause of the Fourteenth Amendment and is void for vagueness. They allege also that the Act violates the Equal Protection Clause of the Fourteenth Amendment. The Act, which was passed by the General Assembly in the winter of 1998, and signed by the Governor on April 13, 1998, is scheduled to take effect on July 1,1998. At this time, the plaintiffs seek preliminary injunctive relief. For the reasons set forth below, the motion for a preliminary injunction is granted. STATEMENT OF FACTS A. The Statute The Act adds certain provisions “relating to partial birth abortions” to Virginia’s extant abortion regulatory statutes. See 1998 Va. Acts ch. 448. Section 18.2-74.2(A) is entitled “Partial Birth Abortion Prohibited.” Its substantive provisions are that: A. Notwithstanding the provisions of §§ 18.2-72, 18.2-73 and 18.2-7Í, a physician shall not knowingly perform a partial birth abortion that is not necessary to save the life of a mother. A violation of this section shall be punishable as a Class I misdemeanor. Section 18.2-74.2(D) defines “partial birth abortion” to mean: an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery. The statute does not define the terms “deliver,” “living fetus,” or “a substantial portion thereof.” The term “partial birth abortion” is a -term coined by legislators, anti-abortion activists, and the media. It has no accepted medical meaning. The American College of Obstetricians and Gynecologists (“ACOG”) has issued a statement of policy to put some form and content to this otherwise medically unrecognized term. To that end, ACOG has equated the term “partial birth abortion” with a medical procedure known as “intact dilatation and extraction,” which is also referred to as “Intact D & X.” According to the ACOG statement of policy, an Intact D & X contains all four of the following elements: 1. Deliberate dilatation of the cervix, usually over a sequence of days; 2. Instrumental conversion of the fetus to a footling breech; 3. Breech extraction of the body excepting the head; and 4. Partial evacuation of the intra cranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus. (Amended Compl.Ex. B). According to ACOG, any procedure which does not contain all four elements in sequence is not an Intact D & X. That part of Virginia’s criminal code which defines when and under what circumstances an abortion can be performed lawfully has been in effect since 1975 and is consistent with controlling Supreme Court authority respecting the regulation and proscription of abortion. The first provision in that statutory scheme is Va.Code § 18.2-71, which makes performance of an abortion a felony unless the abortion is otherwise permitted by ensuing code sections. Under Va.Code § 18.2-72, it is lawful to perform an abortion during the first trimester of pregnancy, the only limitation being that it must be performed by a licensed physician. Under Va. Code § 18.2-73, it is lawful to perform an abortion during the second trimester of pregnancy, the only limitations being that the abortion be performed by a licensed physician in a hospital licensed by the State. Under Va.Code § 18.2-74, it is lawful to perform an abortion after the second trimester of pregnancy if: (i) the abortion is performed in a licensed hospital; (ii) the attending physician and two consulting physicians certify that the “continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman”; and (iii) life support measures are available for the product of the abortion in the event of evidence of viability. The Act now under challenge, to be codified at Va.Code § 18.2-74.2, prohibits a doctor from knowingly performing a “partial birth abortion” that is not necessary to save the life of the mother, notwithstanding the fact that first and second trimester abortions are otherwise readily available with obviously non-burdensome restrictions and that even third trimester abortions are available if necessary to save the life of the mother or to protect her physical or mental health from substantial, irreparable injury. Thus, it is no understatement to assert that the Act will alter rather well-settled Virginia law respecting the performance and receipt of abortion procedures. The plaintiffs apprehend that the statute is so broad as to encompass two key methods of abortion now performed by the plaintiffs. The parties agree that so-called “medical abortions,” which are performed by the administration of drugs during the first 49 to 53 days after the last menstrual period, are not covered by the Act. The plaintiffs also argue that the statute is so vaguely worded as to have the same effect. Finally, they contend that the Act offends the controlling principles that: (i) the State may not, before fetal viability, constitutionally impose an undue burden on a woman’s decision to have an abortion; and (ii) that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Planned Parenthood of South eastern Pa. v. Casey, 505 U.S. 833, 878, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). They also argue that, in failing to provide a maternal health exception, the Act violates the rule in Casey regulating such an exception after viability. These challenges to the Act can be assessed only in the context of the record respecting the various means of performing abortions and the means used by the physicians and clinics who are plaintiffs in this action. B. Abortion Methods There are several undisputed facts which are of significance in understanding abortion methods and the issues presented by the Act. First, it is undisputed that the purpose of an abortion is to terminate a pregnancy and that the abortion procedure kills the fetus. Nor is it disputed that the plaintiff physicians and the employees of the institutional plaintiffs who perform abortions do so with the knowledge and intent that, in terminating the pregnancy, the fetus will be killed. Also, it is undisputed that, in most medically acceptable methods of abortions, the fetus is removed from the uterus, through the cervical canal and cervical os, into and through the vagina, either intact or in parts. In some methods of abortion in the first and second trimester, the fetus is brought from the uterus to the vagina in a syringe or through a cannula. There is no dispute that the term “viability” means “the time at which there is, a realistic possibility of maintaining and nourishing a life outside the womb.” Casey, 505 U.S. at 870, 112 S.Ct. 2791. The parties are in agreement that, generally, viability occurs between 23 and 25 weeks Imp. Also, it is agreed that, in medical parlance, sustained cardiac activity over a period of time at a set rate evinces the existence of life in the fetus; that this occurs usually at 10 weeks Imp; that fetal tissue may be alive in some sense of the word before 10 weeks Imp; and that “life” in the fetus and viability are different concepts. With these facts in mind, it is now appropriate to describe the basic methods of abortion. The most reliable evidence on the methods of abortion came from Dr. Hausk-necht, Dr. Jones, and Dr. Fitzhugh, each of whom is board certified in obsetretics and gynecology, a member of ACOG, a teacher of medicine, including abortion, at respected facilities, and an expert in the area of abortions. Dr. Hausknecht has performed approximately 5,000 abortions. Drs. Fitzhugh and Jones have performed approximately 100,000 and 30,000 abortions, respectively. Drs. Hausknecht and Fitzhugh also are medical directors of abortion clinics. 1. Medical Abortions At the very earliest stage of pregnancy, e.g., 49 to 53 days Imp, Drs. Fitzhugh and Jones use medications to induce abortions in a small percentage of their patients, estimated to be at approximately 1%. 2. Suction Curettage: The Most Common First Trimester Method Generally, the method of abortion used through approximately 13 weeks Imp is known as suction curettage or vacuum aspiration. In this procedure, the doctor mechanically dilates the cervix with metal rods and removes the embryo or the fetus by means of negative suction.. To do this, the physician inserts a tube or cannula, which is attached to a vacuum generator, through the vagina into the uterus. Suction curettage can be used on occasion as late as 15 weeks Imp. As is true with all methods of abortions, different physicians use different techniques and methods. For example, for abortions between 8 to 10 weeks Imp through the 13th week Imp, Dr. Fitzhugh often finds it necessary to use forceps to grasp part of the fetus and 'remove it from the uterus. Of course, when this.occurs, the removed parts pass into and through the vagina via the cannula. It is undisputed that most often the fetus has cardiac activity and hence is living at the outset of the suction curettage procedure but that generally no effort is made to determine whether the fetus is or is not living. However, the fetus unquestionably is killed when removed from the uterus or during the suction curettage procedure. 11 FEDERAL SUPPLEMENT, 2d SERIES During the first trimester, the fetal tissue is soft, and because the suction is powerful, suction curettage often results in the removal of fetal parts (such as a limb, the head, or the body) without removal of the entire fetus. If this occurs, the part of the fetus remaining in the uterus can be living because fetal tissue would not necessarily die upon removal of a limb. At approximately 13 to 15 weeks Imp, suction curettage tends to become less efficacious because the fetal tissue is stronger. Consequently, suction curettage becomes a much slower procedure, thereby resulting in greater maternal blood loss. In that regard, it is generally accepted as a medical proposition that the safety of an abortion is a function of the speed at which the procedure can be performed because the risk of complication and death during any abortion procedure increases with the amount of time consumed by the procedure. 3. Dilatation and Evacuation (“D & E”): The Most Common Second Trimester Method The second trimester begins at approximately the 13th week Imp. Currently, most abortions in the second trimester are accomplished by using the dilatation and evacuation (“D & E”) method. D & E is an accepted and widely used method of abortion from 13 to 20 or 21 weeks Imp. D & E abortions account for approximately 96% of post-first trimester abortions nationally. As explained in Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 198 (6th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998): The suction curettage procedure alone is no longer feasible at this point in a woman’s pregnancy, because the fetus is too large to remove by use of suction only. In the D & E procedure, the physician inserts laminaria into the pregnant woman’s cervix in order to dilate the cervix; laminaria takes about one to two days to accomplish dilation. Once the woman’s cervix is dilated, a suction curette of larger diameter than that used in the suction curettage procedure is placed through the cervix and into the uterus. With the suction curette, the physician can remove some or all of the fetal tissue. However, the torso and the head of the fetus often cannot be removed using the suction curette. Therefore, the D & E procedure typically entails dismembering the fetus, beginning with the extremities, by means of suction curettage and forceps. The most difficult part of the D & E procedure is the removal of the fetal head from the woman’s uterus, because it is often too large to fit through the partially dilated cervix. In Virginia, second trimester abortions must be accomplished in hospitals. The procedure begins with a medical evaluation and an ultrasound examination. On the day before the procedure, the process of dilation begins by inserting osmodic dilators, such as laminaria, one of which is seaweed. By absorbing moisture from the surrounding cervical tissue, the dilators expand and thereby expand the cervix. The next step is to take the patient, on the following day, to the operating room. A spaculum is inserted into the vagina, the dilators are removed and the fetus and other products of conception are removed by using a combination of suction curettage and forceps. Often, the skull (cal-varium) is too large to pass through the cervix whole and the physician must compress it to complete the abortion. As a general proposition, the fetus is removed in parts, but often it can be removed intact. Dr. Fitzhugh generally attempts to pull the umbilical cord out first and severs it while it is in the vagina. This, of course, kills the fetus. Sometimes while performing a D & E abortion, Dr. Fitzhugh will extract a limb fimn the cervix into the vagina and pulls the limb from the torso. This procedure also ultimately kills the fetus. Indeed, these two techniques are deliberately attempted by Dr. Fitzhugh in performing, D & E abortions from 13 to 21 weeks Imp. Also, on occasion during a D & E abortion, part of the fetus will spontaeously prolapse from the cervical os into the vagina after the physician ruptures the amniotic membrane. At this point, the fetus still has a heartbeat. 4.The Induction Method The only safe and routinely performed alternative to D & E after approximately 15 weeks is the induction abortion which accounts for approximately 4% of post-first trimester abortions nationwide. In this form of abortion, the physician induces labor by using one of several chemicals. The chemical can be injected into the amniotic sack, the vagina, the cervix, a vein, or a muscle. Although in this method of abortion labor is induced before term, an induction abortion involves the same physiological stress, emotional stress, medical complications, and risks as does labor and delivery at term. 5.Surgical Alternatives: Hysterotomy and Hysterectomy It is also possible to terminate pregnancy by using a hysterotomy or a hysterectomy, both of which are surgical procedures. A hysterotomy is a cesarean section accomplished before term; however, it involves even more blood loss and other damage than does a cesarean section because the uterus is thicker than at term. A hysterectomy is the removal of a uterus and, of course, leaves a woman permanently sterile. Unsurprisingly, these procedures are rarely used as abortion methods largely because of the associated rates of maternal mortality and morbidity which are many times greater than either D & E or induction. 6.The Intact Dilatation and Extraction (“D & X”) Method Much of the evidence in this record relates to a method of abortion described earlier as the Intact D & X, sometimes referred to as an Intact D & E. Hereafter, this opinion will use the term “D & X.” Although Dr. Jones testified that, in one form or another, D & X abortions have been known in this country for at least 100 years, and in civilizations outside of this country for more than 1,000 years, the procedure assumed great prominence in this country by virtue of a presentation made by Dr. Martin Haskell, an Ohio obstetrician, in September 1992. As a general proposition, D & X is a variant of D & E but “differs from classic D & E in that it [¶] & X] does not rely upon dismemberment to remove the fetus.” (Defs.’ Mem. Law Opp’n Pis.’ Mot. T.R.O. and Prelim. Inj. Ex. 23, at 1 (“Defs.’ Mem.”).) Dr. Haskell “.coined the term dilation and extraction or D & X to distinguish it from dismemberment-type D & E’s.” (Id.) According to Dr. Haskell, “most surgeons find dismemberment at twenty weeks and beyond to be difficult due to the toughness of fetal tissues at this stage of development.” (Id. at 2.) The D & X procedure takes place over three days.- The first day involves evaluation and ultrasound testing and the placement of dilators. The next day, the patient is placed in an operating room where the dilating materials are removed and additional dilation is placed in the cervical canal. The operation occurs on the third day.- The dilators are removed; a drug is administered intramuscu-larly; the physician pulls a lower extremity into the vagina and then uses his fingers to deliver the lower extremity and then the torso followed by the shoulders and the upper extremities. At that point, the skull is lodged at the internal cervical os. Usually the dilation is insufficient for the skull to pass through. At that point, the surgeon slides his or her fingers along the back of the fetus; uses a pair of blunt curved scissors to rupture the base of the skull; and uses a suction catheter to evacuate the contents of the skull and then applies traction to the fetus to remove it from the patient. . As mentioned earlier, the ACOG described the procedure slightly differently, but generally in the same fashion. (Pis.’ Mem. Supp. Mot. T.R.O. and Prelim. Inj. Ex. B (“Pis.’ Mem.”).) The AMA describes essentially the same procedure as an Intact D & E. (Defs.’ Mem. Ex. 20.) 7. Relative Safety of The Various Methods It is generally accepted that abortion carries a lesser risk of mortality and morbidity than does carrying a pregnancy to term. It is also not disputed that generally the D & E abortion is the safest method of abortion for second trimester fetuses. Induction of labor carries higher risks to the patient than does D & E. Nor is it disputed that hysterotomy and hysterectomy carry far greater risks than an abortion by D & E. DISCUSSION A. Standing Before addressing the merits of the action, it is necessary to resolve the defendants’ argument that the plaintiffs lack standing to bring this action. Of course, the plaintiffs’ constitutional challenge to the Act must present a “case or controversy” before the Court has jurisdiction. U.S. Const. Art. Ill, § 2. To that end, the plaintiffs must establish that: (1) they personally have suffered some actual or threatened injury as a result of the allegedly illegal conduct; (2) the injury fairly can be traced to the challenged action; and (3) the injury is likely to be redressed by a favorable decision by the federal court. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Or, as the Supreme Court has explained: “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see also Doe v. Duling, 782 F.2d 1202, 1205 (4th Cir.1986). The Supreme Court has emphasized, however, that “ ‘[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (quoting Pennsylvania v. West Va., 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923)). It is not necessary, therefore, for the plaintiffs to expose themselves first to potential arrest or prosecution before proceeding with a challenge to the statute in federal court. See id. 442 U.S. at 298, 99 S.Ct. 2301. For example, in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Supreme Court held that: (i) physicians challenging the constitutionality of state abortion statutes had standing “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution”; and (ii) the plaintiff physicians “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Id. at 188, 93 S.Ct. 739. In sum, to fulfill the standing requirement in challenging the constitutionality of a criminal statute, the plaintiff must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and that “there exists a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298, 99 S.Ct. 2301. A credible threat must be more than merely imaginary or speculative, and must be both real and immediate, not conjectural or hypothetical. See id. at 298, 99 S.Ct. 2301; O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The defendants argue that the plaintiffs cannot establish an actual or threatened injury as a result of their conduct because none of the physicians or clinics perform the D & X procedure. And, it is undisputed that none of the plaintiffs perform the D & X procedure. The defendants then point to the various affidavits from the Commonwealth Attorney defendants, and the opinion of the Attorney General, for the proposition that the only prosecutions under this statute will be taken against physicians and hospitals who perform the D & X procedure. Thus, the defendants contend that there is no “real and immediate” threat of prosecution, but only a conjectural and speculative fear of prosecution that is insufficient to provide the plaintiffs with standing in this action. That argument is, however, wrong. The plaintiffs, through the physicians’ affidavits and sworn testimony, allege that they fear prosecution for the performance of their abortion services, including the D & E procedure. The plaintiffs assert that the Act is written so broadly and vaguely that a prosecutor could interpret the Act to include the procedures these physicians perform such as the suction curettage and D & E, as the plaintiffs perform them. Hence, the plaintiffs fear prosecution and the loss of their medical license to practice if they continue performing abortions in their normal course of practice. {See Jones Decl. ¶¶ 25,27.) The plaintiffs’ affidavits and the hearing testimony explain that, in performing a D & E, a physician may intentionally “deliver” a still-attached fetal limb into the vaginal canal before the limb is detached, or that, on occasion, the fetus may be removed through the cervix intact, which would constitute a “substantial” portion of the fetus. {See Fitzhugh Decl. ¶¶ 12, 23; deProsse Decl. ¶¶ 28, 71; Hausknecht Decl. ¶ 17.) At the hearing, Dr. Fitzhugh testified that there are circumstances in performing D & E’s where the cervix is dilated to a greater capacity, so that all the physician needs to do is grasp the fetus, remove it through the vagina, and then separate the umbilical cord and remove the placenta.' {See Hearing Tr. at 128.) Further, Dr. Jones testified that, in performing a suction curettage, the intact fetus may come through the cannula, which is inserted in the vagina. {Id. at 164). Thus, the evidence shows that the procedures, as performed by plaintiffs, can fall within the Act. Moreover, contrary to the defendants’ argument, the threat of prosecution is not rendered hypothetical or speculative because of the Attorney General’s opinion or the Commonwealth Attorneys’ affidavits. First, the Supreme Court has made it clear that the Attorney General does not bind the state courts or local law enforcement authorities, and that an Attorney General’s interpretation of a state statute is not “authoritative.” Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 395, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). The Supreme Court also has made clear that it is no defense to a constitutional vagueness challenge to a statute “to say that a prosecutor’s sense of fairness and the Constitution would prevent a successful ... prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. The hazard of being prosecuted ... nevertheless remains-Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.” Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964); see also Keyishian v. Board of Regents, 385 U.S. 589, 599, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (“It is no answer to say that the statute would not be applied in such a case.”). The same principles have equal force here. The Commonwealth Attorneys’ affidavits eschewing prosecution of the plaintiffs for performing so-called “conventional D & E” procedures or suction curettage methods constitute no more than a “ ‘qualified, equivocal and discretionary present intention not to prosecute’ ” those procedures. United Food and Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 429 (8th Cir.1988) (quoting district court finding). Moreover, although the defendants disclaim their current intent not to prosecute these physicians for the procedures which they perform, the defendants clearly did not disavow that they will enforce the Act. In fact, each Commonwealth Attorney specifically articulated an intent to enforce it. The only barrier to prosecution is the defendants’ understanding of the medical procedures which the plaintiffs perform. That is no real barrier because the record makes clear that the defendants misunderstand what the plaintiffs actually do in performing what the Commonwealth Attorneys consider to be “suction curettage and conventional D & E procedures,” Finally, the present intention of the Commonwealth Attorneys not to prosecute for these procedures is subject to change because nothing binds the Commonwealth Attorneys to their current personal interpretation of the statute. Nor should they be so bound. An analogous circumstance was presented in Summit Medical Associates v. James, 984 F.Supp. 1404 (M.D.Ala.1998), where the district court considered the effect of the Alabama attorney general’s letter to the district attorneys outlining how the partial-birth abortion statute was to be construed for enforcement purposes. See id. at 1430. The district court noted that neither the current attorney general, nor any of the successor attorneys general, were bound to the construction of the statute set forth in the letter and thus concluded that “the attorney general is free to change his mind at any time regarding how the statute is to be construed for purposes of prosecuting potential violators.” Id. see also American Booksellers, 484 U.S. at 395, 108 S.Ct. 636 (“[A]s the Attorney General does not bind the state courts or local law enforcement authorities, we are unable to accept her interpretation of the law as authoritative.”). Similarly, the Attorney General’s letter here which asserts that “conventional D & E’s” are not subject to prosecution under the Act is not binding on him or on the Commonwealth Attorneys who are charged with the enforcement of the statute. The defendants argue, however, that unlike Summit Medical, the record here contains sworn affidavits from the Commonwealth Attorneys stating their interpretation of the statute and their belief that the Act is inapplicable to the physicians’ current practices. Those assurances, which reflect a “discretionary present intention not to prosecute,” United Food, 857 F.2d at 429, do not deprive the plaintiffs of standing. Those assurances are especially vulnerable to change in the context of a criminal abortion statute, given the “unquestionable political nature of decisions regarding how, when, and against whom to enforce such statutes, as well as the acute sensitivity of these decisions to the force and direction of the prevailing winds of public opinion.” Summit Medical, 984 F.Supp. at 1431. Moreover, the stated views of the Commonwealth Attorneys respecting interpretation of the statute is particularly subject to change because their assurances in this case are premised on a misunderstanding of how the plaintiffs perform the suction curettage and the D & E procedures. The record establishes that the plaintiffs have asserted “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and that, “there exists a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298, 99 S.Ct. 2301. For the foregoing reasons, the plaintiffs have established standing. B. Motion for Preliminary Injunctive Relief The grant of interim injunctive relief is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied ‘only in [the] limited circumstances’ which clearly demand it.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1991) (citation omitted). In this circuit, the decision whether to exercise this power is controlled by the hardship balancing test which involves the application of four factors: (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest. Id. at 812 (citations omitted). It is the plaintiffs’ responsibility to establish that each of the four factors warrants the exercise of the extraordinary power of injunction. First, the plaintiffs must make a “clear showing of irreparable harm as a condition for the grant of a preliminary injunction,” and, the irreparable harm “must be ‘neither remote nor speculative, but actual and imminent.’ ” Id. (citations omitted). Unless the plaintiffs prove irreparable injury, the analysis never proceeds further. Under the balancing of hardships tests, the second step is to consider the likelihood of harm to the defendants from the grant of injunctive relief and then to balance the likelihood of irreparable harm to the plaintiffs from failing to grant such relief against the likelihood of harm to the defendant if it is granted. Id. The third step involves the consideration of success on the merits. In that regard: If, after balancing those two factors [ie., irreparable harm to plaintiff against harm to the defendant], the balance tips decidedly’ in favor of the plaintiff, a preliminary injunction will be granted if ‘the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.’ As the balance tips away from the plaintiff, a stronger showing on the merits is required. Id. at 812-13 (citations omitted) (emphasis added). In other words, if the balance of harm strongly favors the plaintiffs, it is not required that the plaintiffs make a strong showing of likelihood of success on the merits. This is because the hardship balancing test is a “sliding scale” approach and “the more the balance of irreparable harm inclines in the plaintiffs favor, the smaller the likelihood of prevailing on the merits'he need show in order to get the injunction.” Id. at 813 (citations omitted). Therefore, the party seeking an injunction can meet its burden by showing a combination of probable success and the possibility of irreparable injury or by showing that serious legal questions are raised on the merits and that the balance of hardships is decidedly in his favor. However, the judge ought to require “ ‘a fairly clear-cut probability of success if he did not find that the harm to the plaintiff outweighed harm to the defendant to a significant degree.’ ” Id. (citations omitted) (emphasis in original). Of course, any injunction must be narrowly tailored to fit the circumstances of a particular case and must be no more restrictive than necessary. Finally, as explained below, when considering the exercise of federal preliminary in-junctive power over State statutes must accord a full measure of respect to the citizens of the State and to their laws and institutions. 1. Irreparable Harm to Plaintiffs The plaintiffs and their patients will suffer irreparable injury absent an injunction. First, Dr. Fitzhugh and Dr. Jones perform abortion procedures which come within the interpretation of the Act advanced by the defendants, and which are not excluded from prosecution by the interpretation of the Act proffered by the defendants. Thus, as of July 1, the physicians would face irreparable harm through the threat of criminal prosecution for exercising what they consider to be safe medical judgment in the treatment of their patients and for performing abortions which, under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Casey they are permitted to perform. Second, harm would befall their patients because thé specter of criminal prosecution will east a chill on the physicians’ practice of medicine to such an extent that he would be required to rely on procedures which are medically less safe, or to refer patients out-of-state for the method of abortion which is safest and in their best interests. a. Irreparable Injury: Risk of Prosecution The defendants argue that the plaintiffs cannot suffer irreparable harm because the abortion procedures which they perform are not within the scope of the Act, and thus, that they cannot show they are subject to a threat of criminal prosecution. In sum, the position is that: (1) the plaintiffs do not perform the D & X procedure that is purportedly the only procedure banned by the Act; (2) the Commonwealth Attorneys and Attorney General have issued statements which they interpret to provide that the Act covers the D & X procedure; and (3) the Commonwealth Attorneys and Attorney General have stated that physicians who perform suction curettage abortions, drug-induced abortions, induction abortions, and so-called “conventional D & E” abortions (as the Commonwealth Attorneys define that term) will not be prosecuted under the Act. (Defs.’ Mem. Ex. 1, at 2; Exs. 2-7, ¶ 5.) A comparison of the Commonwealth Attorneys’ definitions of a “conventional D & E” abortion with the description of the D & E procedure as performed by the plaintiffs leads to the conclusion that the plaintiffs’ method of performing a D & E could be prosecuted under the terms of the Act. The Commonwealth Attorneys all define “conventional D & E” as: an abortion procedure technique in which “the physician [after dilating the cervix and removing the dilators] then ruptures the membranes, and dismembers the fetus in the uterine cavity using sharp instruments such as forceps, and suction [and] then removes the fetal parts by pulling them out piece by piece through the cervical os.” (Id. Exs. 2-7 ¶ 4(d) (quoting Evans v. Kelley, 977 F.Supp. 1283, 1293 (E.D.Mich.1997))). The Attorney General, in his opinion letter, uses the same definition for the “conventional D & E.” (See id. Ex. 1, at 1.) In order to circumvent the undisputed fact that the suction curettage and the D & E methods often involve retraction of fetal limbs into the vagina, the Attorney General and the Commonwealth Attorneys have added the interpretive gloss that a conventional D & E “is not transformed into a partial birth abortion within the meaning of the Act by an incidental protrusion of some part of the fetus from the cervical os before fetal death has occurred.” (Id. Exs. 2-7, ¶ 5(d).) The plaintiffs’ descriptions of the performance of their D & E procedures is materially different from the definitions of that procedure used by the Commonwealth Attorney and Attorney General to define criminally proscribed conduct of medical procedures. Specifically, Dr. Fitzhugh avers that, although he often performs D & E procedures by disjoining the fetus and removing it from the uterus and into the vagina, there are occasions when he is performing this procedure that “the fetus comes through the cervix intact.” Indeed, Dr. Fitzhugh would prefer this result because it is safer for his patients. Dr. Hausknecht confirmed that generally it is considered medically more advantageous to the woman’s health to remove an intact fetus, rather then dismembering the fetus in útero, because this reduces the risk of uterine perforation or .infection from having instruments inside the uterus. On the occasions when the fetus comes through the cervix intact and is delivered into the vagina, the intact fetus clearly constitutes more than “incidental protrusion” of a limb and, therefore, the interpretive gloss on the definition offered by the Commonwealth Attorneys and Attorney, General would not remove this conduct from the Act’s proscriptive reach. In addition, the procedure, as performed on occasion by Drs. Fitzhugh and Jones, would not seem to fit the definition of a “conventional D & E” posited by the defendants in which the D & E consists of dismemberment of the fetus inside the uterus, followed by removal “piece by piece.” Because the D & E procedure, as performed by the plaintiffs, does not fall within the definition of a procedure that the defendants assert would not be prosecuted, it is quite possible, if not likely, that the plaintiffs could be prosecuted under the Act. Certainly, the Commonwealth Attorneys’ affidavits and the Attorney General’s interpretation do not foreclose the potential criminal prosecution for performance of this variant of the D & E procedure. If Dr. Fitzhugh and Dr. Jones were subject to criminal prosecution under the Act, they would be forced to choose between performing abortions as they currently perform them with the best interest and safety of their patients in mind, and changing their practices, and, therefore, depriving the patients of their right to receive the safest method of abortion. {See Fitzhugh Decl. ¶ 33; Jones Decl. ¶ 27.) Given the evidence that it is considered “safer” for the physician to be able to withdraw an intact fetus in conducting a conventional D & E because to do so reduces the number of instruments in the uterus and thus lowers the possibility of uterine perforation, hemorrhaging, and infection, the Act’s “chill” on the physician’s ability to perform the medically appropriate method of abortion in this manner would result in a less safe performance of an abortion for the patient. That clearly constitutes irreparable injury. {See Jones Decl. ¶27 (“As a physician, I feel that Virginia’s ‘partial birth abortion’ law puts me in the untenable position of deciding procedures based on whether or not they may be prosecuted, instead of whether they will best protect the health and well being of my patients.”).) The defendants argue that the plaintiffs cannot, as a matter of law, sustain any irreparable injury because the Commonwealth Attorneys have sworn they will not prosecute the performance of abortions by suction curettage or by “conventional D & E” procedures. Those affidavits are a statement of current intent, and are not binding on the Commonwealth Attorneys who subscribed to the definitions and descriptions of these abortion procedures set forth in their affidavits. Of course, the interpretation of the law by those charged with enforcing it is entitled to consideration. But, that interpretation is not binding. See American Booksellers, 484 U.S. at 395, 108 S.Ct. 636; United Food, 857 F.2d at 429; Summit Medical, 984 F.Supp. at 1430. Moreover, the Commonwealth Attorneys, after reading the testimony and evidence in this case, could change their views about which procedures should be prosecuted under the Act, which they are free to do, because these affidavits are non-binding and would not estop the Commonwealth Attorney from pursuing prosecutions. Indeed, the sovereign is not readily subject to estoppel under Virginia law. See Halberstam v. Cmwlth. of Virginia, 251 Va. 248, 252, 467 S.E.2d 783, 785 (1996); Virginia v. Allstate Bonding Co., 246 Va. 189, 194, 435 S.E.2d 396, 399 (1993). Thus, the physicians who perform otherwise lawful abortions in Virginia will suffer irreparable harm because they will be constrained to alter their medical advice to, and their medical care of, their patients, contrary to their best professional medical judgments. Absent a preliminary injunction, the Act will thus chill the plaintiffs’ ability to provide safe medical care for their patients who choose, or who are required for medical reasons to obtain, constitutionally protected abortions. See Brancazio v. Underwood, No. 2:98-0495 (S.D.W.Va. June 11,1998); Little Rock Family Planning v. Jegley, No. LR-C-97-581 (W.D.Ark. July 31, 1997); Carhart v. Stenberg, 972 F.Supp. 507, 531 (D.Neb.1997); Planned Parhenthood of Central New Jersey v. Verniero, No. 97-6170 (D.N.J.Decl.16, 1997); Planned Parenthood of Alaska v. Alaska, No. 3AN-97-06019 (Alaska Super.Ct. Mar. 13, 1998); Intermountain Planned Parenthood v. Montana, No. BDV 97-477 (Mont. First Judicial Dist. Ct., Lewis and Clark County Oct. 1,1997) (similarly concluding that, absent injunctive relief, the partial birth abortion act would chill a physicians’ abilities to provide safe medical care for their patients because of the threat of prosecution and other potential liability). Second, the patients of these physicians will suffer irreparable injury because they stand to be denied appropriate medical care either because physicians will choose not to treat them at all, or because the physicians will be forced to resort to less safe medical procedures which expose the patients to a greater degree of risk to their health. Dr. Fitzhugh has averred that the threat of criminal prosecution for the procedures he performs under the Act may force him to stop performing abortions altogether. In that eventuality, his patients would be forced to obtain care out-of-state, in which case many women could refuse to have abortions at all because of the travel costs and burdens, while other women would be delayed in having the abortion while they attempted to ascertain whether the procedure could be performed and worked out the necessary arrangements for travel. Because any delay in abortion increases the risk of the procedure and of harm to the life and health of the woman, a patient faced with these choices will suffer irreparable harm. {See Fitzhugh Deck ¶ 30.) Dr. Jones considers himself to be in “the impossible position of deciding procedures based on whether or not they may be prosecuted, instead of whether they will best protect the health and well-being of my patients.” (Jones Deel. ¶27.) Also, he fears that continued use of his current procedures poses this risk. {See id.) Any physician in this circumstance would be warranted in adjusting medical treatment to protect against prosecution and the ensuing risk of the loss of the right to practice medicine. Other courts have imposed temporary restraining orders or preliminary injunctions on similar “partial birth abortion acts” upon finding that the ban would force women to suffer irreparable harm either because other abortion methods are not as safe for their health, or because other abortions methods are unavailable to them. See Brancazio v. Underwood, No. 2:98-0495 (S.D.W.Va. June 11, 1998); Little Rock Family Planning v. Jegley, No. LR-C-97-581 (W .D.Ark. July 31, 1997); Carhart, 972 F.Supp. at 531; Planned Parenthood of Central N.J. v. Verniero, No. 97-6170 (D.N.J.Decl.16, 1997); Women’s Med. Prof'l Corp. v. Voinovich, 911 F.Supp. 1051, 1092 (S.D.Ohio 1995), aff'd, 130 F.3d 187 (6th Cir.1997); Planned Parenthood of Alaska v. Alaska, No. 3AN-97-06019 (Alaska Super.Ct. Mar. 13, 1998); Intermountain Planned Parenthood v. Montana, No. BDV 97-477 (Mont. First Judicial Dist. Ct., Lewis and Clark Coúnty Oct. 1, 1997). For the foregoing reasons, the plaintiffs have satisfied the obligation to show immediate irreparable injury within the rule of Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977) and Direx Israel. 2. Likelihood of Harm to the Defendants It is now necessary to balance the irreparable harm to the plaintiffs and their patients against the harm to the defendants if the requested relief is. granted. The Supreme Court, in Roe and Casey, has delineated the State’s two interests in regulating abortion: (1) the State’s interest in potential life; and (2) the State’s interest in protecting maternal health. See Casey, 505 U.S. at 877-78, 112 S.Ct. 2791; Roe, 410 U.S. at 164-65, 93 S.Ct. 705. The defendants argue that the State will suffer irreparable harm if the Act is enjoined because the State’s interests that are served by the Act would be frustrated. The defendants identify five such interests: (1) protecting the individual lives of children who have been partially born; (2) protecting the dignity of human life and society’s respect for human life; (3) preserving the integrity of the health care profession; (4) preventing cruelty to living beings; and (5) protecting the lives and health of women. A State has a “profound interest in potential life,” Casey, 505 U.S. at 878, 112 S.Ct. 2791; Roe, 410 U.S. at 162, 93 S.Ct. 705, but that interest is counterbalanced by a woman’s constitutional liberty interest to terminate her pregnancy. See Casey, 505 U.S. at 869-70, 112 S.Ct. 2791. As the Supreme Court held in Casey, the woman’s liberty interest outweighs the State’s interest in potential life at the previability stage in such a way and to such a degree that until viability, a State may only regulate abortion to the extent it does not impose an “undue burden” on a-woman’s right to terminate her pregnancy. See id. at 874, 112 S.Ct. 2791. There is no doubt that preserving the integrity of the health care profession is a legitimate objective of State government. Nonetheless, that objective plays no significant role in the carefully constructed calculus governing abortion rights which the Supreme Court established in Roe and Casey and their progeny. Clearly, the protection of maternal health is a legitimate State concern in that equation. And, although the State has offered affidavits to show that the D & X procedure can pose threats to maternal health, the record contains significant evidence to the contrary. Considering that the plaintiffs do not perform D & X abortions, the evidence on that issue, on both sides, does not address a harm that will be sustained, if at all, before the case can be resolved on its merits. However, because the Act, as worded and as sometimes interpreted by counsel for the defendants and them expert, Dr. Aultman, includes “more than” the D & X procedure and because the only “more than” shown by the record is suction curettage and the D & E as performed by plaintiffs, the safety of these procedures for the mother’s health is highly relevant. Significantly, there is no evidence that those procedures pose such a risk. In any event, because Virginia’s extensive abortion regulatory scheme (Va.Code Ann. §§ 18.2-71, -72, -73, and -74) will remain in effect until a decision on the merits in this case, the risk of maternal harm is at best theoretical. ■ As to the State’s proffered interests in fetal life, the arguments of the defendants are based on the premise that neither Roe nor Casey is controlling of the interests around which those decisions are centered. However, those decisions are controlling and a federal district court may not avoid their impact, anymore than can the State or the plaintiffs. Those decisions have drawn a line at viability and, on either side of it, have put the legitimate interests to be served by virtue of that placement. Hence, the perceived harms to the State’s interest in fetal life are not sufficient to tip the balance of hardship in the State’s favor or even to significantly even the scales. To the contrary, when the harm to the defendants is balanced against the plaintiffs’ irreparable injury absent the grant of an injunction, the balance “tips decidedly” in favor of the plaintiffs, and thus, this Court should grant a preliminary injunction if “ ‘the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberated investigation.’ ” Rum Creek Coal Sales v. Caperton, 926 F.2d 353, 359 (4th Cir.1991) (citations omitted). That issue will be assessed now. 3. Likelihood of Success on the Merits The plaintiffs allege that they are likely to succeed on the merits of their claim that the Act is unconstitutional for two reasons: (1) the Act deprives them of due process because it is unconstitutionally vague; and (2) the Act unconstitutionally imposes an “undue burden” on a woman’s right to have an abortion because it fails to provide an adequate exception for when a banned procedure is best to preserve a woman’s life and because it forecloses the safest method of abortion, a. Void for Vagueness When considering a challenge to a criminal statute under the void for vagueness doctrine, it must be determined: (1) whether the penal statute defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) whether the criminal offense is described in a manner that does not encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The void-for-vagueness doctrine embodies the cardinal principle of due process that a criminal statute must provide adequate notice to a person of ordinary intelligence that his contemplated conduct is legal because “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). For that reason, where “a statute imposes criminal penalties, the standard of certainty [that due process requires] is higher.” Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855. More importantly, the standard of certainty is particularly strict “where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights.” Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), overruled in part on other grounds, Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). Vagueness standards cannot be mechanically applied because “[t]he degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depends in part on the nature of the enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In the view of one leading constitutional scholar, “[V]agueness occurs when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork.” Laurence H. Tribe, Constitutional Law § 12-31, at 1033 (2d ed.1988). Moreover, “[t]he Court will generally strike down an ordinance for vagueness only if the actual activity proscribed is vaguely defined.” Id. at 1034 n. 9. The rationale for these fundamental precepts is found in the now-familiar explanation of the Supreme Court that: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (footnotes omitted). And, “the requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values ... and permits meaningful judicial review.” Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). These established principles must guide the assessment of the plaintiffs’ vagueness challenge to the Act. However, it is equally important that the analysis be conducted mindful of the principles of federalism which are at the core of our constitutional government. Fealty to that important principle requires that the plaintiffs here must demonstrate the existence of real, rather than fabricated, vagueness in the statute which they seek preliminarily to enjoin. That is especially important where a federal court is called upon to forestall, even for a brief period, what the people of a State have wrought by their duly elected officials. See Planned Parenthood of the Blue Ridge v. Camblos, 116 F.3d 707, 721 (4th Cir.), stay denied, 125 F.3d 884 (4th Cir.1997). Here the plaintiffs predicate their vagueness challenge on the defined term “partial birth abortion” and on several of its constituent terms “living fetus,” “or a substantial portion thereof,” and “deliver.” Each will be assessed in turn. (i) Partial Birth Abortion The plaintiffs assert that the defined term “partial birth abortion” as a whole is so vague and general as to include most D & E abortions as they are performed generally and by the plaintiffs. Although the defendants argue that the definition of “partial birth abortion” is perfectly clear, their reasoning is not imbued with clarity or consistency. The premise of the defendants’ argument initially was that “partial birth abortion” simply referred to the D & X procedure. The affidavits filed by the Commonwealth Attorneys and by their medical experts conclude that: (1) the Act prohibits the procedure known as D & X; (2) they “do not consider” the Act to prohibit suction curettage abortions, drug-induced abortions, or “conventional D & E abortions”; and (3) in their view, a “conventional D & E abortion,” such as the procedure the plaintiffs perform, is not transformed into a partial birth abortion within the meaning of the Act by an incidental protrusion of some part of the fetus from the cervical os before fetal death has occurred. (Defs.’ Mem. Ex. 7, ¶ 5.) The. interpretation of the prosecuting attorneys is a factor to be considered in assessing the vagueness of a statute. See Forsyth County v. The Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). In their affidavits, the Commonwealth Attorneys, as did the Attorney General in his April 30 letter, take the position that the Act does not apply to any abortion procedure other than the one the General Assembly “intended” to proscribe: the D & X procedure. Nonetheless, the defendants themselves, even in making this seemingly straightforward assertion, demonstrate confusion over the procedure, or procedures, which they think is or are “clearly” banned. For example, throughout the defendants’ opposition papers, they argue alternatively that the Act will ban “certain procedures,” but at other times they say it bans only the “partial birth abortion procedure.” At times, the defendants claim that the term “partial birth abortion” only applies to the “D & X procedure,” yet on other occasions, the Attorney General, and the defendants’ expert witness at the hearing, Dr. Aultman, emphatically asserted that the “D & X procedure” is only one example of a procedure which is prohibited by the Act. Although not dispositive of the vagueness question, it is significant that the term “partial birth abortion” lacks any- medical meaning, and that no such term' has even been used in any medical text or medical journal. It is also significant that, in their affidavits and pleadings, the defendants do not define the D & X procedure with terminology drawn from the Act’s definition of the term “partial birth abortion.” For example, in the Attorney General’s April 30 letter to Senator Newman, he states that the D & X procedure is one which “involves delivering all but the head of the intact living fetus into the vagina, followed by ‘partial evacuation of the intracranial contents with suction’ so as to cause death and compress the skull before completion of the delivery.” (Defs.’ Mem. Ex. 1, at 2 n. 5 (quoting Evans, 977 F.Supp. at 1293).) The Commonwealth Attorneys adopt a similar definition of the allegedly “banned” procedure, stating that an intact D & E “means an abortion procedure or technique ‘in which the physician, rather than removing the fetus in parts, removes it from a breech position intact up to the head, and then, if necessary, reduces the size of the head (by collapsing the calvarium using forceps or by evacuating it contents using suction) to remove the intact fetus the rest of the way.)’ ” (Id. Exs. 2-7, ¶4(6) (quoting Evans, 977 F.Supp. at 1293). The language used by the Attorney General and the Commonwealth Attorneys does not appear in the Act. Interestingly, although the defendants repeatedly cite to the fact that a similar proscription on partial birth abortions in the 1997 federal bill was approved by the American Medical Association (“AMA”), even the terms used in the AMA’s definition of a partial birth abortion are not reflected in the Act. The AMA report defines the D & X procedure to be comprised of the following elements: “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.” (Defs.’ Mem. Ex. 20.) This definition is essentially the same as the description approved by the ACOG to describe the D & X procedure. (See Amended Compl. Ex. B.) Neither does the Act contain the material terms used in the descriptions of the procedure which appear in the affidavits filed by the defendants. For instance, the declarants define a D & X as an abortion procedure in which: the physician, rather than removing the fetus in parts, removes it from [in] a breech position intact up to the head (in some cases the physician may not manipulate the fetus into a breech as the fetus may present buttocks first), and then, if necessary, reduces the size of the head (by collapsing the calvarium using forceps or by evacuating its contents using