Full opinion text
MEMORANDUM AND ORDER KOPF, District Judge. Because the State of Nebraska has imposed an undue burden on Dr. Carhart and his patients by adopting and threatening to enforce a vague “partial-birth” abortion law, I shall declare the law unconstitutional as applied to Dr. Carhart and his patients. I will also permanently enjoin enforcement of Nebraska’s law against the doctor and his patients (and those who are similarly situated). However, I do not reach the question of whether the law is facially invalid. Pursuant to Federal Rule of Civil Procedure 52(a), my reasons for this decision are set forth below. I. FINDINGS OF FACT A. The Parties 1. Plaintiff LeRoy Carhart, M.D., practices medicine and surgery in Nebraska and performs abortions in Bellevue, Sarpy County, Nebraska. (Filing 1, CompL, at 3; Filing 9, Stenberg and Thomas Answer, at 2; Ex. 16, Carhart Curriculum Vitae, at 1, 5.) 2. Carhart received his Doctorate of Medicine in 1973; completed his internship at Malcolm Grow USAF Hospital at Andrews Air Force Base, Maryland, in 1974; and completed his general surgery residency at Hah-nemann Medical College and Hospital in Philadelphia, Pennsylvania, and Atlantic City Medical Center in Atlantic City, New Jersey, in 1978. Carhart is a retired lieutenant colonel in the United States Air Force who served as chief of general surgery, chief of emergency medicine, and chairman of the department of surgery at Offutt Air Force Base in Nebraska from 1978 to 1985. As part of his duties at Offutt, Carhart supervised 20 to 25 other physicians, including obstetricians and gynecologists. (Tr. 193:26-194:5.) Carhart has been an assistant professor in the surgery departments of both Creighton University School of Medicine and the University of Nebraska Medical Center. (Ex. 16, Carhart Curriculum Vitae, at 2-4.) Since 1985 Carhart has operated a general medical practice with a specialized abortion facility. (Tr. 82:14-21.) He performs 800 abortions each year. (Tr. 83:3.) Carhart has never attempted to become certified by a medical specialty board and currently has no hospital privileges. (Tr. 139:2-25.) He is licensed to practice medicine in eight states. (Ex. 16, Carhart Curriculum Vitae, at 5.) 3. Defendant Don Stenberg is attorney general of the State of Nebraska. Defendant Gina Dunning is director of the Nebraska Department of Health and Human Services Regulation and Licensure. (Filing 1, Compl., at 3-4; Filing 9, Stenberg Answer, at 2; Order on Final Pretrial Conf. at 2.) Defendant Mike Munch is the elected county attorney for Sarpy County, Nebraska, and is responsible for the enforcement of criminal law within Sarpy County. (Filing 1, Compl., at 3 — 4; Filing 11, Munch Answer, at 1.) Defendant Charles Andrews, M.D., is the Chief Medical Officer for Nebraska who has disciplinary authority over medical license holders in Nebraska, pursuant to Neb.Rev.Stat. § 81-3201 (Michie Supp.1997). B. Legislative Bill 23 4. On June 3, 1997, the Nebraska Unicameral passed Legislative Bill 23 (“LB 23”) with an emergency clause making it effective upon the governor’s signature on June 9, 1997. (Ex. 6.) On August 14, 1997, I enjoined Defendants from enforcing LB 23 against Dr. Carhart “regarding his performance of D & X abortions on nonviable fetuses.” (Filing 19 at 58.) 5. Legislative Bill 23 prohibits “partial-birth abortions” in the State of Nebraska “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.” LB 23 § 3(1), codified at Neb.Rev.Stat. § 28-328(1) (Michie 1997). 6. Legislative Bill 23 defines “partial-birth abortion” as follows: Partial-birth abortion means 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. LB 23 § 2(9), codified at Neb.Rev.Stat. § 28-326(9) (Michie 1997). 7. Legislative Bill 23 makes the “intentional and knowing performance of an unlawful partial-birth abortion” a Class III felony, as well as grounds for automatic suspension and revocation of an attending physician’s license to practice medicine in Nebraska. LB 23 § 3(2) & (4), codified at Neb.Rev.Stat. § 28-328(4) & (5) (Michie 1997). 8. “Partial-birth abortion” is not a recognized medical term. (Tr. 88:18-89:6, Carhart Test.; Tr. 216:3-13, Hodgson Test.) C. Abortion Procedures 9. Carhart performs abortions in a clinic setting from a gestational age of 3 weeks until fetal viability, with gestational age being measured from the first day of a woman’s last menstrual period, as verified by ultrasound. (Tr. 83:9-84:5; 141:20-22.) Of the 800 women on whom Carhart performed abortions in 1996, 200 were past their 14th week of pregnancy. (Tr. 88:1-3; 186:14-24.) As far as he knows, Carhart is the only abortion provider in Nebraska who performs elective abortions past 16 weeks’ gestation. (Tr. 132:10-18.) 10. If a woman wants an abortion after viability and the abortion is not medically indicated, Carhart refers the patient elsewhere. (Tr. 87:13-22.) If a patient comes to him for an abortion and “there is any concern of fetal viability,” Carhart does not use his own judgment to determine viability, but instead insists on a specific referral from the patient’s physician identifying fetal flaws, stating that the fetus is not viable, and stating that the patient needs an abortion. (Tr. 174:4-16.) 11. Carhart performs abortions on patients whose health, rather than life, would be preserved by having an abortion, such as those with severe renal disease, severe diabetes that has required hospitalization, and hyperemesis gravidarum, a condition characterized by constant vomiting throughout pregnancy such that the pregnant woman loses a good portion of her body weight. Carhart has also performed abortions on patients who indicated that if abortion had not been an option for them, they would have considered attempting a self-induced abortion or suicide. (Tr. 133:16-134:11.) 12. Carhart selects the abortion procedure he will use on various patients based on gestational age and other medical factors. (Tr. 84:6-12.) 13. The parties have stipulated to the admission of Exhibit 7, which is a portion of the American Medical Association’s (AMA’s) “Report of the Board of Trustees on Late-Term Abortion.” The board of trustees prepared and submitted the report to the AMA’s board of delegates in May, 1997, in response to the passage of a 1996 resolution by the delegates calling for the AMA to conduct a study of late-term pregnancy termination techniques. (Filing 13 ¶ 2; Tr. 326:7-327:16.) Hereinafter, Exhibit 7 shall be referred to as the “AMA report.” 14. The parties have also stipulated to the admission of Exhibit 24, which is a January, 1997, statement of policy issued by the American College of Obstetricians and Gynecologists Executive Board on “intact dilatation and extraction.” 1. Suction Curettage or Vacuum Aspiration 15. The AMA report indicates that suction curettage, or vacuum aspiration, is the most common means of inducing abortion from the 6th through the 12th week of gestation. (Ex. 7, at 7:29-30.) The AMA report describes this procedure as follows: Prior to the procedure a pelvic examination is done to determine the size and position of the uterus. A speculum is used to visualize the cervix, a local anesthetic such as a paracervical block is administered, and the cervix is then dilated using rigid dilators (e.g., the Pratt dilator). Osmotic dilators may be used prior to the procedure. Once the cervix is sufficiently dilated, a suction tube is inserted and rotated inside the uterus to loosen and remove the contents. The suction tube may be attached to a suction machine or syringe. A curette may be used to scrape the endometrium, thereby ensuring the removal of any remaining tissue. These procedures are typically performed on an outpatient basis. (Ex. 7, at 7:31-37 (footnotes omitted).) 16. Carhart uses curettage with vacuum aspiration from approximately the 12th through the 15th week of gestation. Carhart stated that “[a]t about the 12th or 13th week, we usually use curettage with vacuum aspiration up through the 15th, 16th week, after that 16th week, generally, it’s a dilation and evacuation procedure.” (Tr. 84:20-23.) At another point, Carhart stated that the “14th to 15th week” was the latest he would use the curettage with vacuum aspiration procedure. (Tr. 93:12-14.) While Carhart attempts to use curettage with vacuum aspiration in the 14th and 15th weeks of gestation, “[m]ost of the time by the 15th week, it doesn’t work,” and he must “use a mechanical forcep to actually grasp the fetus and remove it.” (Tr. 93:14-17.) 17. Carhart uses ultrasound while conducting the vacuum aspiration procedure. Ultrasound is “an adaption of the sonar developed by the Navy in the 1930’s to find the different densities of substances, usually in comparison with a known substance.” (Tr. 93:22-25, Carhart Test.) Ultrasound is used to display a picture of fetal tissue and cartilage on a television screen. (Tr. 94:1-5, Car-hart Test.) 18. When the vacuum aspiration procedure is used, a fetus can come through the suction tube, or cannula, intact or dismembered. Carhart uses cannulas ranging from 5 to 16 millimeters. (Tr. 95:10-24; 96:2-8.) If the tube becomes clogged during this procedure, Carhart must remove the tube to “de-clog” it, at which time the uterus will expel its contents into the vaginal cavity. (Tr. 155:18-20.) 19. The fetus is not dead before Carhart begins the vacuum aspiration procedure, and the entire fetus comes through the cannula alive in many instances. (Tr. 96:15-18; 97:16-17.) 2. Dilation and Evacuation (D & E) 20. According to the AMA report, the most common procedure for inducing abortion early in the second trimester of pregnancy, or in the 13th through 15th weeks of gestation, is dilation and evacuation, or D & E. (Ex. 7, at 8:1-10.) The AMA report describes the D & E procedure at 13 through 15 weeks’ gestation as follows: Ultrasonography is used prior to the procedure to confirm gestational age, because the underestimation of gestational age can have serious consequences during a D & E procedure. D & E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. 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 8:10-19 (footnotes omitted).) 21.According to the AMA report, the D & E procedure is also used from 16 to 24 weeks’ gestation, with the following variations: Dilation and evacuation procedures performed in the mid- to late-seeond-trimester involve the preoperative use of laminaria or osmotic dilators (rather than surgical dilators) which are inserted in the endocer-vical canal in order to dilate the cervix. The procedure is usually performed under local anesthesia, using sedation and para-cervical block. Intracervical vasopression is often used to minimize bleeding, and high dose oxytocin is administered intravenously prior to the procedure. 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 intrafe-tal potassium chloride or digoxin to induce fetal demise prior to a late D & E (after 20 weeks), to facilitate evacuation. (Ex. 7, at 8:28-38 (footnotes omitted).) 22. Carhart uses the D & E procedure “after that 16th week” of gestation, combined with prostaglandin to aid in cervical dilation and other medication to cause the uterus to contract. (Tr. 84:24-85:16.) 23. Carhart’s method of mechanically removing the fetus from the uterus during D & E involves using ultrasound in order to observe the fetus and the surrounding area; using vacuum aspiration or forceps to rupture the membranes; and then grasping a portion of the fetus in order to bring it out of the uterus with long-handled forceps. (Tr. 100:1-14.) After the membranes are ruptured and the uterus begins to contract, a fetal extremity will often prolapse through the cervical os such that Carhart must dismember the extremity. He then attempts to bring the feet or skull down, dismembering the remaining arm or other extremities in the process. (Tr. 110:6-9; 118:9-12.) 24. When Carhart performs a D & E, he inserts an instrument inside the uterus, grabs a portion of the fetus, pulls it through the cervical os, and dismembers various fetal parts by the traction created between the instrument and the cervical os. (Tr. 116:2-10.) The tearing of fetal parts from the fetal body is accomplished by means of traction at the cervical os. Dr. Carhart described the procedure in response to counsel’s questions as follows: Q When you are doing a D & E that involves dismemberment, where does the dismemberment occur; in other words, do you insert instruments into the uterus and dismember the fetus inside the uterus, or do you dismember it in some other way? A Well, we insert one instrument inside the uterus, grab a portion of the fetus and pull it through the cervical os. The dismemberment occurs between the traction of ... my instrument and the counter-traction of the internal os of the cervix. I suppose you could put two instruments in the uterus and try to dismember it. I think that would be very dangerous. Q 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. It’s like who is pulling the cat’s tail. If you are holding it and the cat’s pulling it, something has to pull the other way. Otherwise, if you drag a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction. 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 útero 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. Q When you pull out a piece of the fetus, let’s say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, is the fetus alive? A Very often, yes, sir. (Tr. 116:2-117:13.) 25.Carhart’s description of this procedure is consistent with that of Dr. Jane Hodgson, founding fellow of the American College of Obstetrics and Gynecology, past president of the Minnesota Ob/Gyn Society, and author of 50 to 100 published articles on abortion. (Tr. 196:16-24; 197:11-13; Ex. 14, Hodgson Curriculum Vitae, at 2.) 26. Through the 19th week of gestation, ultrasound confirms, by indicating a fetal heartbeat, that the fetus is “invariably” alive when Carhart performs a D & E, and via ultrasound Carhart has observed fetal heart activity with “extensive parts of the fetus removed.” (Tr. 100:15-22; 109:4-23; 110:12-14; 119:2-9; 195:9-11.) Dr. Hodgson also testified that the fetus may still have a heartbeat while extremities are being removed. (Tr. 211:4-7.) 3. Intact Dilation and Evacuation (Intact D & E or D & X) a. The Procedure 27. In an effort to minimize perforation of the uterus or cervix by instruments used during a D & E or from piercing caused by fetal parts, some physicians use “a form of D & E that has been referred to in the popular press as intact dilation and extraction (D & X).” (Ex. 7, at 8:40-42.) 28. For any abortion “over 15 weeks[’]” gestation, Carhart intends and prefers to remove the fetus intact by using the intact D & E procedure, although it is “usually the 19th- and 18th- and early 20-week fetuses that come out intact.” (Tr. 100:9-10; 101:3-5; 184:1-23.) 29. Citing the American College of Obstetricians and Gynecologists’ (ACOG) January, 1997, statement on intact dilation and extraction, the AMA report describes the intact D & X as “deliberate dilation 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 8:42-46; Ex. 24.) 30. In contrast to the AMA’s and ACOG’s description of the intact D & E or D & X procedure, Carhart does not perform instrumental conversion of the fetus to a footling breech, but removes the fetus headfirst or feet first, depending on how the fetus is positioned. (Tr. 102:19-24; 111:3-6; 156:18-157:19.) Carhart prefers the feet-first presentation because less dilation is required and “that’s the absolute safest scenario.” (Tr. 192:18-193:2.) 31. When Carhart performs this procedure, he drains the amniotic fluid before beginning the evacuation procedure in order to avoid amniotic fluid embolus, which he views as a serious and common cause of maternal death or complications. (Tr. 102:1-6.) If possible, Carhart then attempts to grasp and divide the umbilical cord of the fetus, which is the structure that transports arterial and venous blood between the fetus and the placenta, giving the fetus its only source of oxygen. If he divides the cord, the fetus will usually die within 6 to 10 minutes. (Tr. 111:11-20; 189:20-24.) There are instances in which Carhart cannot divide the cord because he is unable to reach it due to fetal position or spontaneous protrusion of a fetal part through the cervical os, preventing access to the cord. (Tr. 111:21 — 25; 190:17-25.) 32. If Carhart succeeds in dividing the umbilical cord, he does not wait for fetal death to occur before continuing the procedure because once the membranes have been ruptured and drugs administered to induce contractions, each minute of delay causes maternal blood loss. (Tr. 190:2-16.) 33. When the fetus is presented feet first, Carhart, using forceps, pulls the feet of the living fetus from the uterus into the vaginal cavity and then pulls the remainder of the fetus, except the head, into the vaginal cavity to a point where the base of the fetal skull is lodged in the uterine side of the cervical canal. (Tr. 110:19-22; 112:2-12.) At that point, the size of the head will not permit him to pull it through the cervical canal into the vaginal cavity. To decompress the fetal skull and evacuate the contents in order to pull it through the cervical canal, Carhart uses an instrument to either tear or perforate the skull to allow insertion of a cannula and removal of the cranial contents. Sometimes he will crush the skull rather than pierce it in order to reduce the size of the skull. (Tr. 104:2-6; 112:13-16.) Brain death occurs sometime during this two- to three-second reduction procedure, but fetal heart function may continue for several seconds or minutes after the fetus’s skull is decompressed. (Tr. 112:17-113:7.) 34. While he intends to remove the fetus intact for any abortion performed past 15 weeks’ gestation, only about 5 or 10 percent of the fetuses Carhart aborts are delivered totally intact due to softness of the fetal tissue such that it is easily fragmented. Car-hart normally cannot perform this procedure before the 16th week of gestation because the fetal body parts tear apart during the process. (Tr. 115:9-18; 184:10-19.) 35. Some patients have requested that Carhart perform an intact D & E for personal reasons, and some physicians have asked to have the fetus as intact as possible for genetic study when the entirety of fetal deformities is unknown. (Tr. 123:9-25.) b. Fetal Death 36. After the 20th week of gestation, Car-hart attempts to induce fetal death 48 to 72 hours before beginning the abortion procedure with an ultrasound-guided intracardiac fetal injection of digoxin and lidocaine, both of which reduce and stop cardiac activity. (Tr. 119:10-25.) Carhart attempts to inject the drugs through the mid-line of the maternal abdomen where there are fewer blood vessels and he is less likely to encounter colon or small bowel contents. (Tr. 186:14-23.) Carhart attempts to inject the fetal thoracic cavity or heart, whereupon fetal death will occur within 15 to 20 minutes, but sometimes is able to inject only the amniotic sac, causing fetal death approximately 24 hours later. (Tr. 187:1-6.) 37. Carhart attempts to induce fetal death in this manner to achieve softness and compression of the fetal tissue and skull and to provide mental comfort to his patients. (Tr. 120:2-19.) 38. Carhart does not attempt to induce fetal demise in this manner during the 16- to 20-week time frame because the waiting time between the injection and performance of the procedure is only 12 to 24 hours, and not much fetal tissue change occurs; Carhart finds that many of his patients in the earlier stages of pregnancy are more apprehensive of the fetal injection; and in the earlier stages of pregnancy, the uterus is smaller and the risks of the needle penetrating the bowel and of missing the fetus and injecting the medication into maternal circulation are greater. (Tr. 120:20-122:3; 188:2-11.) Furthermore, Carhart sees patients for whom digoxin and lidocaine are medically contraindicated during any part of their pregnancy, such as those who have seizure disorders, heart disease, or who are already taking either medication such that an injection would exceed the maximum recommended dosage. (Tr. 122:20-123:4.) 39. Dr. Hodgson testified that in all forms of abortion, the point at which fetal demise occurs is “extremely variable.” (Tr. 217:17-18.) In her opinion, lack of fetal heartbeat is the best available measure for determining fetal demise, and fetal death by that measurement can be quite protracted. (Tr. 219:16-25.) c. Benefits of the Intact D & E or D & X 40. The AMA report states that “[t]his procedure may minimize trauma to the woman’s uterus, cervix, and other vital organs. Intact D & X may be preferred by some physicians, particularly when the fetus has been diagnosed with hydrocephaly or other anomalies incompatible with life outside the womb.” (Ex. 7, at 8:46-49.) 41. Carhart’s intent to remove the fetus intact for any abortion performed past 15 weeks’ gestation is aimed at reducing the chances of maternal complications or death. (Tr. 100:9-10; 101:7-102:6; 124:16-125:2.) Intact removal of the fetus lowers maternal complications by preventing sharp fragments, such as pieces of long bone or skull fragments, from passing through the cervical os without some kind of covering or protection. When the fetus is removed intact, its bones are covered by fetal tissue, causing less trauma to the cervix. (Tr. 101:3-16; 131:1-7.) 42. Carhart also stated that intact removal of the fetus minimizes the risk of damage to maternal structures from repeated use of instrumentation in the uterine cavity. (Tr. 107:18-108:13; 131:1-23.) The more times Carhart must enter the uterus with an instrument, the more the complication rate multiplies. (Tr. 179:13-22.) The intact D & E or D & X procedure involves fewer insertions of forceps or other foreign objects into the uterus than a D & E resulting in dismemberment of the fetus. (Tr. 179:23-180:2.) 43. Performing the intact D & E or D & X procedure also allows a more accurate assessment of whether the uterine cavity has been emptied. Fetal and placental debris remaining in the uterus — as is possible with a D & E involving dismemberment — can cause infection, greater bleeding, and risk of absorption of the fetal tissue into the maternal bloodstream, as explained in more detail below. (Tr. 165:4-10; 183:4-24.) 44. Dr. Hodgson described leaving fetal parts in the uterus as a potentially “horrible complication” that can cause infection and often results in perforation of the uterine wall by bony splinters. (Tr. 211:19-24.) 45. Carhart’s method of intact removal of the fetus and evacuation of the contents of the fetus’s brain when it is reachable through the cervical os directly outside the uterus also helps prevent “disseminated intravascu-lar coagulopathy” (DIC), that is, the absorption into the mother’s bloodstream of fetal brain, skin, and blood tissue through the blood sinuses or cavities in the uterine wall, thereby causing the mother’s own coagulation factors to stop working. According to Carhart, DIC is another cause of maternal death or complications, with the risk of such a complication being less than 1 in 1,000. (Tr. 101:16-25; 102:7-14; 158:13-159:14.) Compression of the fetal skull also enables Carhart to obtain as little cervical dilation as possible in order to reduce other maternal complications, such as incompetent cervix, at a later date. (Tr. 103:2-17.) 46. In Carhart’s opinion, performing an intact D & E is much safer than performing a D & E that does not result in removal of an intact fetus. (Tr. 108:14-18.) Although she has not intentionally performed an intact D & E, Dr. Hodgson believes the procedure is a technological advance that has received favorable reports from those who are performing the procedure. (Tr. 212:8-22.) Dr. Hodgson believes the D & X procedure is “an advance in technology” because by removing the fetus intact there is “less instrument manipulation,” which means, “of course, the higher your safety.” (Tr. 212:4-22.) d. Number of Intact D & Es or D & Xs Performed by Carhart in Which Fetal Life Could Not be Terminated Before Delivery 47. In 1996, Carhart had 180 to 190 patients with a live fetus in útero for whom it was medically inadvisable to inject digoxin and lidocaine to terminate the life of the fetus and on whom he began what he intended to be an intact D & E. (Tr. 189:1-12.) Of those 180 or 190 patients, Carhart removed approximately 20 fetuses intact, and 10 of those 20 presented themselves feet first. (Tr. 191:10-22.) 4. The Haskell D & X 48. In Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (WMPC I), aff'd, 130 F.3d 187 (6th Cir.1997) (WMPC II), cert. denied, — U.S. -, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998), the court considered the constitutionality of an Ohio law banning the use of the so-called “Dilation and Extraction” (D & X) procedure. One of the plaintiffs, Dr. Martin Haskell, used a method of abor: tion from 20 to 24 weeks’ gestation characterized by various parties in this case as the D & X procedure and performed as follows: On the first and second days of the procedure, Dr. Haskell inserts dilators into the patient’s cervix. On the third day, the dilators are removed and the patient’s membranes are ruptured. Then, with the guidance of ultrasound, Haskell inserts forceps into the uterus, grasps a lower extremity, and pulls it into the vagina. With his fingers, Haskell then delivers the other lower extremity, the torso, shoulders, and the upper extremities. The skull, which is too big to be delivered, lodges in the internal cervical os. Haskell uses his fingers to push the anterior cervical lip out of the way, then presses a pair of scissors against the base of the fetal skull. He then forces the scissors into the base of the skull, spreads them to enlarge the opening, removes the scissors, inserts a suction catheter, and evacuates the skull contents. With the head decompressed, he then removes the fetus completely from the patient. Id. at 1066 (footnotes omitted). Dr. Haskell routinely cuts the umbilical cord before penetrating the skull with scissors. Id. at 1066 n. 17. 5. Labor Induction 49. Labor induction, an alternative to D & E and what has been described above as the intact D & E or D & X, may also be used to induce abortion during the 16th to 24th week of gestation. Labor may be induced by use of hypertonic solutions such as urea or saline, or prostaglandin. (Ex. 7, at 9:1-4.) 50. The use of saline to induce labor requires insertion of a needle through the abdomen and injection of the amniotic sac with a concentrated salt solution, which causes fetal demise and induces uterine contractions. Over a period of several hours, the uterine contractions cause dilation of the cervix and expulsion of the contents of the uterus. (Ex. 7, at 9:5-8.) 51. Urea is a nitrogen-based solution that causes fetal demise when injected into the amniotic sac and is typically followed by administration of prostaglandin to induce uterine contractions which will expel the contents of the uterus. (Ex. 7, at 9:8-12.) 52. Carhart does not perform saline or prostaglandin induction, and he does not perform inductions at all during the second trimester of pregnancy because he believes induction is medically contraindicated as a method of abortion. (Tr. 86:2-7; 125:3— 126:1; 126:18-19.) Carhart believes induction during the second trimester is too uncontrolled — that is, the procedure can take over a week to complete; women have reactions to the drugs used during the procedure; and a segment of the population cannot undergo induction because of medical conditions such as hypertension, heart disease, or diabetes. (Tr. 125:6-126:1.) Carhart is aware of other physicians in Nebraska who perform abortions by induction, but only for maternally or fetally indicated abortions. (Tr. 126:2-4; 132:1-9.) 53. According to Stanley K. Henshaw, deputy director of research- at the Alan Gutt-macher Institute (AGI) in New York, statistical studies with which he is familiar indicate that abortions by induction are performed primarily in a hospital setting. (Tr. 74:20-25; 76:20-22.) The Centers for Disease Control and Prevention (CDG) recognizes the accuracy of the data AGI collects. (Tr. 46:8-21.) 6. Hysterotomy and Hysterectomy 54. Other abortion procedures available, but not routinely used, dining 16 to 24 weeks’ gestation are hysterectomy and hys-terotomy. According to the AMA report, “maternal mortality and morbidity associated with these procedures are significantly greater than those associated with other procedures used to induce abortion.” (Ex. 7, at 9:14-16.) 55. Hysterotomy is major surgery and must be performed in a hospital setting. General anesthesia or anesthesia administered by epidural or spinal injection is necessary. The procedure consists of surgical delivery of the fetus through an incision in the abdomen and uterine wall, after which the fetus is removed, the umbilical cord cut, and the placenta removed. (Ex. 7, at 9:16-20.) 56. Hysterectomy “is appropriate in cases in which there is a preexisting pathology, such as large leiomyomas or carcinoma in situ of the cervix.” (Ex. 7, at 9:20-22.) 57. Carhart does not perform hysteroto-my or hysterectomy as methods of abortion, but he is aware of other physicians in Nebraska who perform abortions by these methods when an abortion is maternally or fetally indicated. (Tr. 86:2-9; ' 127:17-23; 132:1-9.) D. Dr. Stubblefield 58. Dr. Phillip Stubblefield testified on behalf of the plaintiff regarding his experience teaching and performing abortions, the various available methods of abortion, and the risks involved with these abortion methods. (Tr.2d 6:20-91:17.) Dr. Stubblefield is currently a professor and Chairman of the Department of Obstetrics and Gynecology at the Boston University School of Medicine, as well as Chief of Obstetrics and Gynecology at the Boston Medical Center. He received his B.A. from Harvard College in 1962 and his M.D. from Harvard Medical School in 1966. Dr. Stubblefield was an intern in surgery at the University of Michigan Hospital from 1966 to 1967, and a resident in obstetrics and gynecology at the Boston Hospital for Women from 1970 to 1973. He was certified by the American Board of Obstetrics and Gynecology in 1975 and has held numerous academic appointments from 1971 to the present. Dr. Stubblefield has published extensively in the areas of voluntary control of human fertility and the prevention of premature birth, has served on five editorial boards for medical journals, and has held a myriad of positions in professional societies. (Ex. 29, Stubblefield Curriculum Vitae.) 59. Since 1973 Dr. Stubblefield has performed, taught, and supervised abortions on a regular basis, including vacuum curettage, D & E, and labor induction. (Tr.2d 10:11— 11:11; 13:7-20.) In his current position, he performs, supervises, or assists in 10 to 20 abortions per month. (Tr.2d 65:2-20.) When Dr. Stubblefield served as the Chief of Obstetrics and Gynecology at the Maine Medical Center from 1988 to 1994, he primarily practiced and taught the D & E procedure through 22 1/2 weeks of gestation. (Tr.2d 13:21-14:9.) 60. With regard to the various abortion procedures discussed in section (C) of this memorandum, Dr. Stubblefield testified that: a.Suction Curettage or Vacuum Aspiration: The suction tube (cannula) used to vacuum the pregnancy tissue from the uterine cavity is approximately 10 inches long and extends from within the woman’s uterus to outside the woman’s body. The fetus generally comes out of the uterus in fragments, but “it can come out intact,” as when the physician overestimates the size of the uterus and uses a larger cannula than is necessary. (Tr.2d 19:11-20:21.) At the beginning of this procedure, the fetus is living, so fragments of a fetus, such as a leg or head, “can ... come out while the fetus is still living,” and the fetal heartbeat can continue after a portion of the fetus has been removed. (Tr.2d 20:22-21:19; 23:8-11.) If an intact fetus comes through the cannula, the fetus can remain living outside the woman’s uterus for a short time. (Tr.2d 21:11-22:5.) While Dr. Stubblefield is not aware of an “agreed upon” definition of a “living” fetus where pregnancy termination is concerned, a beating heart is something that can be “objectively attest[ed] to” such that when “[w]e have an intact fetus with a heart beating, then the fetus is clearly alive.” (Tr.2d 22:16-23:4; 68:10-23.) “[Wlherewe have an abortion in process ... no one, to my knowledge, has tried to formally address what is living or not living in that context.” (Tr.2d 69:2-5.) b. Dilation and Evacuation (D & E): Due to the risk of uterine tearing and perforation, dismembering a fetus in útero is “not done .” Instead, fetal pieces are removed from the uterus at the time they are detached from the rest of the fetus. (Tr.2d 30:7-31:11.) As with the suction curettage method, the fetus is living at the beginning of the D & E procedure; legs and arms can be removed from the fetus and uterus while the rest of the fetus remains in the uterus; and the remainder of the fetus left in the uterus could be “alive” for some amount of time. (Tr.2d 31:12-32:4.) It would be possible to perform the entire D & E procedure during ultrasound monitoring so that fetal heartbeat could be detected. (Tr.2d 23:12-21; 32:2-4.) The risks of performing a D & E are trauma to the uterus and cervix, such as laceration and tearing caused by dilation or “pushing an instrument through ... the wall of the uterus,” resulting in injury to the bowel, bladder, or other nearby organs; extensive blood loss in situations where the uterus “does not contract well”; and “rare, very serious complications” like amniotic fluid embolism, disseminated intravascular coagulopathy, and infection caused by retained pregnancy tissue. (Tr.2d 32:5-33:20.) c. Intact Dilation and Evacuation (Intact D & E or D & X): Physicians who perform surgical abortions after 20 weeks of gestation modify the D & E procedure “to make it easier to perform and safer for the pregnant woman” since at this gestational age the fetus is larger and more rigid because “[t]he bones are now ossified and are no longer soft cartilage.” (Tr.2d 34:17-24.) (i) One modification of the D & E is the intact D & E, which involves administering successive sets of laminaria dilators and medication that causes the uterus to contract. Then depending on how the fetus presents, either through procedures as performed, if the fetus is presenting head first, which is probably more often the case, one can insert an instrument into the fetal skull and allow the brain content to come out. The head then collapses, and one then can pull the whole fetus out of the uterus immediately, and then reach up and pull the placenta out, and the procedure is done very quickly with very little blood loss, very little risk to the mother of perforation. (Tr.2d 35:1-23.) Dr. Stubblefield has used the intact D & E procedure with head compression in a case where the fetus was already dead before the procedure began. (Tr.2d 39:19-40:1.) Dr. Stubblefield described the case in which he used this procedure: This was a patient referred to us who had a rare, awful complication of an amniocentesis done for genetic indications. We had an amniocentesis done outside of our center to diagnose Downs Syndrome for which she was at risk because of advanced age, and in retrospect, we know that the needle went through the intestine of the mother. The patient presented to another hospital about 48 hours after the amniocentesis in advanced infection, very severe infection with a lung disease and kidney disease resulting. She was transferred to our facility, and we were faced with the difficult situation of trying to stabilize this woman with advanced sepsis and then evacuate the uterus which was the source of the infection, and this is the case where I personally did a variation of intact D & E. We, in the intensive care unit, started intravenous Oxytocin to make the uterus contract, put several laminaria tents into the cervix to cause it to dilate, and then about five hours later moved her to the operating room, removed the laminaria, and I was relieved to see the cervix had dilated quite a bit, and the fetal head was presenting. I was able to just put an instrument called a t[e]naculum which is the sharp end on the fetal head, piercing it, and the brain tissue came out, and the fetus then came out and the placenta came out. The fetus had died a little bit before that. The mother got somewhat better after our procedure but was still seriously ill the next day, and we determined that her only chance of survival lay in us removing the uterus, so we did extract it the following day. Indeed, there was an ‘ abscess, a collection of pus within the wall of the uterus where the needle had entered the uterus, and it had gone through the bowel. The woman did survive. She was in intensive care ... for six weeks but did survive, so certainly, her fertility was at risk, and she lost it. (Tr.2d 44:13-46:6.) This method of the intact D & E procedure — a “recent development” — involves less use of instruments than the “standard D & E involving fragmentation.” (Tr.2d 40:2-23.) “It makes sense to think that doing the [intact D & E] would make it easier to evacuate the uterus without as many insertions of the instruments, and that ..., theoretically, would be safer. It would be a while before we have the data to compare to say how important that really is, but [the success rate of this procedure, as reported in presentations by physicians who perform the procedure, demonstrate] a very impressive record for a late abortion procedure.” (Tr.2d 40:23^41:6.) “If there are less manipulations within the uterus, less fetal tissue within the uterus less, specifically brain tissue within the uterus that enter the mother’s circulation, [there is] less risk of’ the “rare but devastating complications of the blood clotting abnormality, the DIC and the still less common amniotic fluid embolism.” (Tr.2d 61:13-62:4.) Dr. Stubblefield noted that the risk of leaving pregnancy tissue in the uterus is possible during the intact D & E procedure because a portion of the placenta could be left behind, but he has no reason to believe that the intact D & E procedure is less safe than the standard D & E procedure or labor induction at equal gestational ages. (Tr.2d 41:7-42:12; 62:13-23.) In fact, at advanced gestational ages, the intact D & E poses less risk of lacerating the cervix with skull or long bone pieces than does the standard D & E, which involves piece-by-piece removal of the fetus. Dr. Stubblefield stated that “the surgeon ... whose goal is to perform an intact D & E often finds that he cannot, that the anatomy is just such that he cannot do it without avulsing pieces of the fetus.” (Tr.2d 39:15-18.) (ii) The alternative modification to the D & E “is the one which, in the lay press, has been called a partial-birth abortion.” (Tr.2d 35:24-25.) Dr. Stubblefield described this procedure as follows: [T]he fetus is either presenting by the breech, that is, feet first or one converts it to a breech by reaching up with fingers or instruments, locating the feet, pulling them down, then pulls feet down, arms down, and then with traction so that the head is now just above the cervical opening, inserts an instrument, scissors into the skull, and lets the brain tissue come out or aspirates it with a cannula, and the head collapses, and the fetus is delivered. This is a technique that’s evolved fairly recently. (Tr.2d 35:25-36:9.) While it is always possible to injure “anybody doing fairly simple things,” Dr. Stubblefield believes this procedure, as it has been described to him, allows the operator to view the base of the fetal skull at the upper end of the cervical canal such that “[fit’s possible with direct vision to slide the instrument up between the operator’s fingers to enter the fetal head.” (Tr.2d 43:2-10.) Thus, this procedure is not “particularly risky to the maternal health.” (Tr.2d 90:6-91:2; Ct.’s Ex. 1.) Dr. Stubblefield has not performed this procedure himself, nor has he viewed anyone else perform it. (Tr.2d 91:11-15.) Dr. Stubblefield agrees with the January, 1997, statement of policy issued by the American College of Obstetricians and Gynecologists Executive Board on “intact dilatation and extraction” (Ex. 24), which states that the intact D & X “may be the best or most appropriate procedure” in some cases. (Tr.2d 49:1-6.) As far as safety of the D & X procedure is concerned, Dr. Stubblefield is not aware of any medical studies which compare the safety of the intact D & X to other abortion procedures or conclude that the D & X procedure is safer than other abortion procedures. (Tr.2d 75:11-14; 77:22-25.) In “every area of practice,” it is not appropriate to do such safety comparisons until a surgical procedure has been perfected “to the point where it’s useful.” (Tr.2d 75:18-76:1.) Further, the medical acceptance of surgical procedures is not always achieved by orderly and controlled testing; for instance, “[ojpen heart surgery was not tested in a randomized, controlled way. People figured out how to do it. Patients lived, they kept doing it, got better at it.” (Tr.2d 78:10-20.) Dr. Stubblefield has added a description of the D & X procedure to a chapter he regularly writes and revises for Dr. Nichols’s Textbook of Gynecologic Surgery, and he plans to teach the procedure at the teaching hospital with which he is currently affiliated. (Tr.2d 74:6-11; 80:11-81:12.) (iii) Dr. Stubblefield became aware of the above-described D & E variations in 1995 at a presentation by Dr. McMahon at a National Abortion Federation meeting. He also became familiar with these methods through a similar presentation by Dr. Haskell. (Tr.2d 70:7-25.) Dr. Stubblefield views these techniques as safe methods of abortion and he plans to use both methods himself. (Tr.2d 44:3-10.) He testified that head compression, as used in the intact D & E and D & X methods, is necessary because the fetal head is much larger than the cervix, which is only minimally dilated in order to lessen the risk of infection and bleeding. (Tr.2d 63:2-22.) d. Labor Induction: The other procedure available “later in pregnancy” that does not involve the use of instruments inside the uterus is labor induction. The modern method of inducing labor is to administer prostaglandins intramuscularly or directly into the vagina, where they are absorbed into the system, causing labor to begin. With use of prostaglandins, the average abortion takes 15 to 16 hours, with some women aborting more quickly and others taking “much longer.” The labor-induction process is a hospital procedure that involves “[s]trong uterine contractions, labor pains” for the woman seeking the abortion. (Tr.2d 37:14-38:17.) Labor-induction procedures are not always successful, and in such cases, a D & E is then characteristically performed after the failed labor induction. (Tr.2d 43:11-44:2.) If a woman seeking an abortion has a fetus with severe hydrocephalus, or water on the brain, the fetus’ head will be “tremendously distended and swollen,” so labor induction will not work. “The woman is not going to be able to expel that fetus until the fetus dies and the head begins to be depressed unless you decompress the head yourself.” (Tr.2d 52:2-13.) Further, use of prostaglandins to induce labor is contraindicated in women with severe heart disease. (Tr.2d 52:14-24.) e. Hysterotomy and Hysterectomy: Because these major surgical procedures pose a “risk to the mother [that is] many-fold greater” than other abortion techniques such as the vacuum curettage, D & E, or labor induction, these procedures are only used as an abortion method in exceptional circumstances, as when cervical carcinoma is found in a woman with an advanced pregnancy and a hysterectomy would “take care of both things at the same time.” (Tr.2d 46:20-47:22.) 61. Dr. Stubblefield has observed a variety of reasons a woman may seek an abortion after 16 weeks’ gestation, including a woman’s delay in seeking an abortion due to her youth or other barriers; “[w]omen who are finally deciding to leave their abusive spouse”; and development of a serious maternal or fetal disease or malformation which was previously unknown. (Tr.2d 50:2-51:11.) 62. Geneticists and internal medicine specialists have requested that Dr. Stubblefield provide intact aborted fetuses to them “so that it’s easy for the pathologist to examine the fetus and confirm the diagnosis” in cases of fetal malformation. (Tr.2d 51:12 — 20.). In the past, Dr. Stubblefield has declined such requests because he felt that “in [his] hands, the D & E procedure was safer and easier on the woman than going through labor induction.- Now that [the intact D & E] is available, were I in this circumstance now, I-think I would try to provide the intact D & E.” (Tr.2d 51:21-52:1.) 63. Dr. Stubblefield opined that the “only way ... to avoid” delivering into the vagina a “living unborn child, or a substantial portion thereof,” as stated in LB 23, is to either (1) perform a “significantly riskier” abdominal operation, such as hysterotomy or hysterectomy, so that “nothing is delivered into the vagina” or (2) cause fetal demise prior, to beginning any abortion procedure in every case. (Tr.2d 56:16-23; 57:3-8.) With the latter option, one would perform an amniocentesis in an attempt to inject the fetus with potassium chloride or digoxin to stop the fetus’ heart. The risks of such an injection are traversing the bowel and carrying bacteria from the bowel into the uterus, thereby causing a rapidly progressing infection, as in the case Dr. Stubblefield described above; spearing a blood vessel and causing significant bleeding; and inappropriate injection of the substances into the mother’s bloodstream, causing danger to her. While causing fetal demise by injection is commonly done after 20 weeks’ gestation in order to cause decomposition and softening of the fetus so it can be easily removed with instruments, “to [cause fetal demise] at eight weeks would be ridiculous. It would be hard to do, take great skill to do it. You couldn’t do it predictably without injuring the mother.” (Tr.2d 58:10-24.) E. Dr. Riegel 64. Defendants presented Dr. Christopher Riegel, an obstetrician, gynecologist, and infertility specialist from Dallas, Texas, as an expert witness to challenge the testimony presented by Drs. Carhart, Hodgson, and Stubblefield, discussed in detail above. Dr. Riegel received his medical degree from the University of Texas in 1987 and completed a one-year internship in pediatrics at Children’s Medical Center in Dallas in 1988 and a four-year internship and residency in obstetrics and gynecology at Parkland Hospital at the University of Texas before entering private practice in 1992. Dr. Riegel became board-certified in obstetrics and gynecology in 1995. (Tr. 232:13-234:9.) 65. Dr. Riegel does not perform abortions due to moral objections and claims to be familiar with abortion procedures, risks, complications, and contraindications only from reading technical bulletins and textbooks and by becoming, during his service as chief resident in labor and delivery, “acquainted with what goes on” in medically indicated induction abortions of fetuses having malformations incompatible with life. His experience consists of attending at abortions that were already in progress when he arrived to complete the procedure. (Tr. 236:7-8; 238:12-239:8; 274:15-20; 275:16-22; 277:4-17.) Dr. Riegel has never observed a D & E abortion because he has “chose[n] not to be associated with them.” (Tr. 276:11-20; 276:23-277:3.) Dr. Riegel testified that the intact D & E or D & X procedure is not medically recognized and in fact “does not exist.” (Tr. 295:17-297:25.) 66. Dr. Riegel testified it is generally medically accepted that a fetus is dead if its heart stops beating (Tr. 236:14-20); injection of potassium chloride or digoxin into the heart of a fetus to cause fetal demise is generally done at 19 weeks’ gestation or more (Tr. 244:8-245:4); in the hands of a skilled operator, the risk of perforating the maternal bowel or injecting the mother with digoxin or potassium chloride during such a procedure is “inconsequential” (Tr. 245:9-22); the risk of complications for a mother with a preexisting seizure or heart disorder from using such an injection to cause fetal demise is nonexistent, “rare,” “low,” or “minuscule” (Tr. 247:22-249:22); there is no maternal medical advantage to injecting a substance into a fetus while it is in the uterus in order to kill the fetus before removing it (Tr. 250:3-22); there is no maternal medical advantage to partially delivering the fetus alive, killing it, and then completing delivery, with the latter scenario involving the “blind” use of a sharp instrument in the vagina accompanied by risk of damage to the urethra, bladder, vaginal wall, cervix, and uterus (Tr. 255:13-18; 256:6-257:24; 292:4-5); no type of fetal tissue or amniotic fluid should enter the mother’s bloodstream (Tr. 259:4-9); beginning at 16 weeks’ gestation, Dr. Riegel uses induction instead of D & E to remove dead fetuses from the uterus, and if the patient has heart disease, diabetes, renal disease, or a prior Cesarean section, he refers her to a high-risk obstetrician (Tr. 264:17-19; 266:1-24; 272:13-15; 293:15-23); since 1988 Dr. Riegel has delivered by induction 10 to 20 demised fetuses at 16 weeks’ gestation or later (Tr. 303:24-304:5); and in his geographical area of practice, it is generally accepted that amniocentesis at 13 to 18 weeks’ gestation is performed only by high-risk obstetricians (Tr. 279:24-25; 284:25-285:5). 67. With regard to induction by prosta-glandin injection, a process which requires hospitalization, Dr. Riegel described the side effects of nausea, vomiting, diarrhea, and fever that accompany the injections the patient receives every three hours and the 8- to 36-hour time frame the induction procedure requires. (Tr. 306:5-307:23.) F. Dr. Boehm 68. Defendants’ witness Dr. Frank Boehm received his B.A. and M.D. from Vanderbilt University in Tennessee in 1962 and 1965, respectively. He completed a surgery internship and obstetrics-gynecology residency at Yale-New Haven Hospital in Connecticut, as well as a six-month fellowship in surgery and oncology at City of Hope in Duarte, California. Dr. Boehm has had numerous academic and professional appointments; has served as an editorial consultant for seven medical journals; and has authored numerous articles, book chapters, books, ab-' stracts, and presentations dealing with various issues in obstetrics and gynecology. Dr. Boehm is board-certified in obstetrics and gynecology and maternal fetal medicine, and he has practiced in those areas since 1966. He is a fellow of the American College of Obstetricians and Gynecologists, and is currently a professor of obstetrics and gynecology at the Vanderbilt University School of Medicine and Director of Obstetrics for the hospital. (Ex. 23, Boehm Curriculum Vitae; Ex. 32, Dep. of Dr. Boehm, at 3:1-3.) 69. In the past 25 years, Dr. Boehm has performed well over 100, but less than 1,000 abortions, with a focus on second-trimester, congenital-anomaly abortions involving serious malformations in the fetus. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 8:8 — 9:4.) Dr. Boehm does not perform abortions after 22 weeks and six days of gestation. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 13:21— 14:11.) Dr. Boehm has performed the suction D & C, the D & E, labor-induction, and hysterotomy methods of abortion. He has not performed the intact D & E or D & X procedure, nor has he been present when other physicians have performed those procedures. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 15:16-16:16.) He has not performed a D & E abortion in 10 to 15 years. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 48:3-7.) In his current position, Dr. Boehm teaches the suction and sharp D & C, the prostaglandin abortion, and the hysterotomy as part of Vanderbilt’s residency program. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 13:9-20.) 70.Dr. Boehm is not familiar with any studies that have evaluated the trauma to a woman’s uterus, cervix, or other vital organs when the intact D & E or D & X procedures are used. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 16:8-17:8; 19:12-22.) Without data evaluating safety of the D & X procedure compared to other abortion procedures, Dr. Boehm does not believe the intact D & X abortion procedure is safer than other abortion procedures. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 23:22-24:17; 32:10-21.) Specifically, Dr. Boehm opined that choice of abortion technique does not to “any significant]” degree affect the risk of developing disseminated intravascular coagulopathy (DIC), and that amniotic fluid embolus can occur “any time you are manipulating intrauterine cavity” — as would be the case when performing a D & C, D & E, Cesarean section, or labor and delivery — so selection of abortion method does not affect the risk of developing this condition. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 33:10-34:10; 34:11-35:15.) Dr. Boehm also testified as follows with regard to maternal safety when an entire fetus is removed intact during a D & E procedure: Q. [Wjould it be reasonable to conclude that by removing [a fetus] in one piece, there is less risk of leaving fetal tissue behind? A. Sure. Q. And would it be reasonable to conclude that there’s less risk of sharp fetal fragments puncturing the uterus? A. Sure. Q. And therefore would it be reasonable to conclude that removing the fetus intact might be safer for the woman? A. Might be. Q. But you’d need a good study to determine whether it really was? A. I think that’s a reasonable statement. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 45:1-46:1.) 71. Dr. Boehm believes there are safe alternatives to the intact' D & E or D & X procedure, but “[h]ow safe [these procedures are] compared to other procedures is something that we really don’t know because no one has ever done any research on partial birth abortion and compared it to other procedures. ... So it’s all theory.... there are safe alternatives that have set some moral ánd ethical guidelines and work[] within a framework that I think is healthy for — more mentally healthy for the health care providers as well as for the patient.” (Ex. 32, Dep. of Dr. Boehm, at 27:7-22.) 72. In response to plaintiffs counsel’s question about abortion techniques that were commonly used shortly after Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), in comparison to those used now, Dr. Boehm testified that the medical community no longer uses saline abortions because “[w]e have better techniques and techniques that are not associated with as high an incidence of problems.... I don’t think anyone has compared saline with intravaginal prosta-glandin which is what’s used today, but I would think it’s safer from what — this would be anecdotal experience over years of performing both, that the saline was not as safe as the intravaginal prostaglandin procedure.” Although there were no statistical studies comparing the relative safety of these procedures, Dr. Boehm testified that he felt “comfortable making that transition” from one procedure to another. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 73:9-74:17.) 73. Dr. Boehm believes that the procedure contemplated by LB 23, and by a similar Tennessee law, “represents a departure from what is morally and ethically acceptable by the medical profession and especially those of us who agree with prochoice and who perform abortions.” (Ex. 27, Videotaped Dep. of Dr. Boehm, at 32:4-9.) Dr. Boehm believes that legislative bills like LB 23 are “about as close as we can hope for in demonstrating to the public that the medical profession and the states are willing to state certain moral and ethiefal] frameworks of how we offer and administer the process of abortion.” Because there “is no medical need” for the procedure banned by LB 23 and “there are safe alternatives,” it is Dr. Boehm’s opinion that “such a procedure should be banned so as to comfort the general public in this country that abortions are not in the hands of callous .extremists.” (Ex. 27, Videotaped Dep. of Dr. Boehm, at 66:23-68:1; Ex. 25 at 2.) 74. Dr. Boehm testified that he understands the definition of “partial-birth abortion” as used in LB 23, and he believes a ban on such procedure would not pose an adverse' medical risk to the health of any woman seeking an abortion because there are safe alternatives to such a procedure, such as labor induction. (Ex. 27, Videotaped Dep. of Dr. Boehm, at 25:8-26:7.) Dr. Boehm testified that a prostaglandin induction abortion takes approximately 24 hours, and involves “[contractions, cramps which we give epidurals for to reduce discomfort. They’re in a labor bed. They have a