Full opinion text
DECISION AND ENTRY SUSTAINING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (DOC. # 2); DEFENDANTS, THEIR EMPLOYEES, AGENTS, SERVANTS PRELIMINARILY ENJOINED FROM ENFORCING ANY PROVISION OF SUBSTITUTE HOUSE BILL 351, PENDING FINAL DECISION ON MERITS; CONFERENCE CALL SET FOR THURSDAY, SEPTEMBER 28, 2000, AT 5:00 P.M., TO DETERMINE FURTHER PROCEDURES TO BE FOLLOWED IN THIS LITIGATION RICE, Chief Judge. On December 13, 1995, in an opinion preliminarily enjoining a prior attempt by the State of Ohio to prohibit a means of pregnancy termination known as Dilation and Extraction or “partial birth” abortion, this Court stated: Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of either rational discussion or compromise, as is the ongoing controversy, of which this case is but the latest chapter, over the legality of attempts by the State to regulate abortion — the act of voluntarily terminating a pregnancy, prior to full term. Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051, 1056 (S.D.Ohio 1995) (Rice, J.). Nothing that has ensued, in the almost five years that have elapsed since that observation, has lessened either the stridency of the arguments or the sincerity of those holding opposite, seemingly irreconcilable opinions on this issue. The issue presently before the Court is not whether pregnancy termination by the Dilation and Extraction method, commonly known as the partial birth abortion, is moral or otherwise, or whether the attempt to ban such a procedure is or is not good public policy. This Court’s opinion on the morality of the procedure in question, or on the subject of pregnancy termination in general, is not relevant to its consideration of the facts presented or the applicable law. Nor is the Court’s personal viewpoint on these issues of relevance to or of influence in the decision rendered in this matter. This Court does not sit as a super-legislative body to carry out its own agenda or the morality, the public policy or the will of the people. Rather, this Court’s task is to determine whether Substitute House Bill 351 (“HB 351” or “the Act”), the State of Ohio’s latest effort to ban this procedure, is in accord with our Constitution, as interpreted by the Supreme Court of the United States. For the reasons which follow, the Court concludes that the Plaintiffs have demonstrated a substantial likelihood that it is not. The present case presents a facial challenge to the constitutionality of Ohio HB 351, which was to have become effective on August 18, 2000. The Plaintiffs are the Women’s Medical Professional Corporation (“WMPC”) and Dr. William Mudd Martin Haskell. The Defendants are Ohio Governor Bob Taft, Ohio Attorney General Betty Montgomery and Montgomery County (Ohio) Prosecutor Mathias H. Heck, Jr. The Plaintiffs commenced the present litigation on July 27, 2000, by filing a Complaint for a Temporary Restraining Order (“TRO”) and Preliminary Injunction (Doc. # 1). In their Complaint, the Plaintiffs seek to enjoin the Defendants from enforcing HB 351. With certain exceptions, which will be discussed, infra, HB 351 bans Ohio physicians from performing, or attempting to perform, an abortion procedure identified in the Act as the “partial birth procedure.” The Plaintiffs contend that HB 351 is unconstitutional for a number of reasons. These arguments may be divided into four broad categories. First, the Plaintiffs contend that the Act imposes an unconstitutional “undue burden” on women seeking abortion services in Ohio. Second, they argue that the Act lacks an adequate exception for the health of a woman. Third, they contend that the Act is unconstitutionally vague. Fourth, they assert that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. The Court granted a ten-day TRO on August 17, 2000, prohibiting enforcement of the Act. (Doc. #4). On September 1, 2000, the Court extended the TRO until Tuesday, September 19, 2000. (Doc. # 16). Thereafter, on September 18, 2000, the Court entered a final extension to noon on September 22, 2000. (Doc. # 31). In connection with the Plaintiffs’ request for injunctive relief, the Court held an oral and evidentiary hearing on September 5-6, 2000. During that proceeding, the Court heard testimony from two medical practitioners, Plaintiff Haskell and Ray Paschall, M.D., who testified as an expert witness for the Defendants. The Court also heard testimony from Barbara Brewer, a clinical psychologist who testified as an expert for the Plaintiffs. In addition, the Court admitted into evidence, by stipulation of the parties, testimony from several other individuals who did not attend the September 5-6, 2000, oral and evidentiary hearing. Those individuals include Rein Siiner, M.D., Paula Hillard, M.D., Mary Campbell, M.D., George Goler, M.D., Haynes Robinson, M.D., Raymond Gasser, M.D., Nancy Romer, M.D., Anthony Levatino, M.D., John Doe # 1, M.D., John Doe # 2, M.D., Jane Doe # 1, who was a patient of Plaintiff Haskell, and John Paulson, who is employed by the Ohio Department of Health. The parties have provided the Court with affidavits, declarations and/or deposition testimony from some of the foregoing individuals. Others testified before the Court in the 1995 case of Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995), which involved the same parties but somewhat different issues. The parties have stipulated to the Court’s consideration of extensive excerpts from the testimony and exhibits presented in the 1995 case. The Court has so considered matters from that earlier litigation. Finally, the parties have fully briefed and argued the issues raised in connection with the Plaintiffs’ challenge to the constitutionality of HB 351. The Court heard final arguments on the Plaintiffs’ Motion for a Preliminary Injunction on September 12, 2000. Having reviewed the parties’ respective arguments, the Court turns now to the Plaintiffs’ Motion for a Preliminary Injunction. As a threshold matter, the Court will briefly address three issues that have not been raised by the parties. First, the Court notes that it has federal question jurisdiction under 28 U.S.C. § 1331, because this action involves a federal constitutional challenge to a state statute. Second, the Court finds, and the Defendants have not disputed, that Plaintiff Haskell has standing to bring the present action on behalf of himself and his patients. Given that Plaintiff Haskell intends to continue performing the “partial birth procedure” after HB 351 takes effect, he faces a direct risk of prosecution and, therefore, has standing to seek pre-enforcement review of the Act. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). In addition, “[g]iven the close relationship between Plaintiff Haskell and his patients, and given the. obstacles which prevent pregnant women from challenging this statute, including a desire for privacy and the imminent mootness of their claims, he may also assert third-party standing and raise the rights of his patients.” Voinovich, 911 F.Supp. at 1058 (citing Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion)). Third, based upon the record before it, the Court also concludes, and the Defendants have not disputed, that Plaintiff Haskell has standing to challenge the portion of HB 351 that imposes a post-viability ban on the performance of the “partial birth procedure.” As the Court will explain more fully, infra, the question of whether a fetus is viable “is fraught with uncertainty and susceptible to being subsequently disputed by others.” Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 205 (6th Cir.1997). Plaintiff Haskell has testified that he performs abortions through the twenty-fourth week of pregnancy. (Tr. 9-6-2000 at 56). On the record before it, the Court cannot say that the twenty-fourth week abortions performed by Plaintiff Haskell will fall outside the Act’s definition of post-viability abortions. This is particularly true, given that HB 351 does not employ a presumptive date for the existence of a viable fetus. Rather, the Act defines the term “viable” to mean “the stage of development of a human fetus at which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-sustaining support.” Ohio Rev.Code § 2919.151(A)(6); Ohio Rev.Code § 2901.01(B)(l)(c)(ii). In light of this inherently imprecise standard, the Court is unable to conclude, on the present record, that the abortions performed by Plaintiff Haskell at or near the end of the twenty-fourth week of pregnancy fall outside of the range of abortions proscribed by the post-viability portion of the Act. In reaching this conclusion, the Court recognizes that “[t]he time when viability is achieved may vary with each pregnancy[.]” Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). In addition, the record contains evidence indicating that premature infants at twenty-four weeks of age have maintained life outside the womb in neonatal intensive care. (Tr. 9-5-2000 at 126-127) (noting the existence of “quite a few 24-week deliveries”). As a result, the Court finds that Plaintiff Haskell has standing to challenge the post-viability provisions of HB 351. Given that Plaintiff Haskell has standing to challenge both HB 351’s pre- and post-viability provisions, the Court need not address the standing of Plaintiff WMPC. Carey v. Population Servs. Int’l, 431 U.S. 678, 682, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (recognizing that when at least one plaintiff has standing to challenge all aspects of asserted claims, a court need not determine the standing of other plaintiffs). Having addressed the foregoing threshold issues, the Court turns now to the requirements for obtaining preliminary injunctive relief. When considering whether an injunction is warranted, the Court must consider four factors: (1) the substantial likelihood of the Plaintiffs’ success on the merits; (2) whether the injunction will save the Plaintiffs’ patients from irreparable injury; (3) whether an injunction will harm others; and (4) whether the public interest will be served by issuance of an injunction. International Longshoremen’s Ass’n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir.1991), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 38 (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985)). The Court need not conclude that all four factors support.its decision. Blue Cross and Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 334 (6th Cir.1997). Rather than being “rigid and unbending requirements” that must be satisfied, these factors are intended to guide the Court’s discretion. In re Eagle-Picher Industries, Inc., 963 F.2d 855, 859 (6th Cir.1992). For example, the degree of likelihood of success that is required to issue a preliminary injunction may vary according to the strength of the other factors. In re DeLorean Motor Co., 755 F.2d at 1229. The Court must make specific findings as to each of these factors, unless fewer are dispositive of the issue. International Longshoremen’s Ass’n, 927 F.2d at 903. With the foregoing requirements in mind, the Court will now address each of the four factors, based upon its consideration of the evidence in the record. 1. Likelihood of Success on the Merits Plaintiff WMPC is an Ohio corporation that currently provides, and intends to continuing providing, medical services in Montgomery, Hamilton, and Summit Counties in Ohio. WMPC’s services include the partial birth procedure identified in HB 351. The corporation, which fears criminal and civil liability for its actions after the effective date of this Act, sues on its own behalf and on behalf of physicians, counselors and staff that are employed at its various affiliated locations, as well as on behalf of women who receive medical services, including abortions, at these locations. Plaintiff Haskell, a physician, is the owner of WMPC. Haskell provides abortion services to women who reside throughout Ohio and other states. His patients include women seeking abortion services through the 24th week of pregnancy. Haskell utilizes the partial birth procedure banned by HB 351. He intends to continue providing abortion services in a manner contrary to the Act, after its effective date, thereby exposing himself to criminal prosecution and to civil liability. The Plaintiffs have presented a number of arguments challenging the constitutionality of Ohio’s ban on the partial birth procedure. As noted, supra, those arguments may be divided into four general categories: (1) arguments that HB 351 imposes an “undue burden” on a woman’s right to obtain an abortion; (2) arguments that the Act lacks an adequate exception for a woman’s health; (3) arguments that the Act is unconstitutionally vague; and (4) an argument that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. Before addressing the foregoing issues, the Court will provide a brief overview of the substantive law governing attempts to regulate abortions. In so doing, the Court will also place the present litigation in its historical context by beginning with a review of its decision of nearly five years ago in Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (Rice, J.), as well as the Sixth Circuit’s review of that ruling in Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997). Finally, the Court will analyze the Supreme Court’s recent opinion in Stenberg v. Carhart, — U.S. —, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a Nebraska statute banning “partial birth abortion.” A. Substantive Law Regarding Regulation of Abortion In Voinovich, this Court reviewed the Plaintiffs’ challenge to the constitutionality of a legislative act known as House Bill 135 (“HB 135”), which represented the first attempt by the State of Ohio to ban a particular method of abortion. HB 135 actually created two separate bans. First, it banned an abortion procedure that Plaintiff Haskell referred to, until recently, as a “dilation and extraction” (“D & X”). The ban on the D & X procedure applied both to pre-viability and to post-viability abortions. Voinovich, 911 F.Supp. at 1057. Second, HB 135 banned all post-viability abortions, except when necessary to prevent a woman’s death, or to avoid a serious risk of substantial and irreversible impairment of a major bodily function. Id. Upon review, this Court found a substantial likelihood that both of the foregoing bans were unconstitutional. In reaching this conclusion, the Court first examined the substantive law governing the ability of States to regulate abortions. Among other things, the Court identified the proper analytical framework for reviewing such regulations, noting that the viability of the fetus now operates as a significant line of demarcation: In Planned Parenthood v. Casey, a plurality of the Supreme Court held that viability marks the point at which the State’s interest in protecting the potential life of the fetus outweighs the pregnant woman’s liberty interest in having an abortion, subject only to a medical determination that her own life or health is at risk. 505 U.S. at 868-70, 874-77, 112 S.Ct. at 2816-17, 2819-2821. Before viability, states may not enact regulations which have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. ...” 505 U.S. at 877, 112 S.Ct. at 2820. Such regulations constitute an “undue burden” on a pregnant woman’s right to have an abortion, and are an unconstitutional violation of her liberty interest, as guaranteed by the Fourteenth Amendment to the United States Constitution. Id. at 874-75, 112 S.Ct. at 2819. After viability, however, the State may regulate and proscribe abortions “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 879, 112 S.Ct. at 2821. Therefore, whereas regulations which affect pre-viability abortions are subject to an undue burden analysis, regulations which apply only to post-viability abortions are presumptively valid, unless they have an adverse impact on the life or health of the pregnant woman. Id. at 1059-1060. In Voinovich, this Court also identified the proper standard for reviewing facial challenges to the constitutionality of abortion regulations. Traditionally, a party bringing such a challenge faced the difficult burden of establishing “that no set of circumstances exists under which the [a]ct would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In Casey, however, the Supreme Court stated that a law regulating abortion is unconstitutional on its face if “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S. at 895, 112 S.Ct. 2791. In Voino-vich, this Court concluded that Casey displaced Salerno in the abortion context, introducing a new standard for facial challenges to abortion laws. This Court also determined that the Casey standard applied both to pre-viability and to post-viability abortion regulations. Voinovich, 911 F.Supp. at 1062. Finally, in Voinovieh, this Court recognized that vagueness may render a law regulating abortion unconstitutional. In relevant part, the Court explained: ... When determining whether a statute or regulation is sufficiently vague so as to violate due process, there are several relevant considerations. A statute or regulation may be vague if it fails to give fair warning as to what conduct is prohibited. A statute or regulation may also be vague if it is subject to arbitrary and discriminatory enforcement, due to a failure to provide explicit standards for those who apply the law. Finally, the lack of a mens rea requirement in a statute which imposes criminal liability may indicate that the statute is unconstitutionally vague. A vague law is especially problematic in two situations. First, its potential to cause citizens to “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked,” is of particular concern where the exercise of constitutionally protected rights may be inhibited or “chilled.” Second, a vague law which provides for criminal penalties is troubling because of the severe consequences which may result from violating the law. When determining whether a law is void for vagueness, this Court must examine the challenged law in light of all of the above considerations. Voinovich, 911 F.Supp. at 1063 (citations omitted). With the foregoing standards in mind, this Court concluded in Voinovich that HB 135 was unconstitutional, insofar as it purported to ban the D & X method of abortion, which was defined as “[t]he termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain.” Id. The Court first found the definition of the banned D & X procedure to be unconstitutionally vague, because it could be construed as sweeping within its reach the non-proscribed, most common method of second-trimester abortion known as “dilation and evacuation” (“D & E”). In reaching this conclusion, the Court recognized that the D & E procedure typically involved dismemberment of the fetus by means of suction curettage and the use of forceps, whereas the D & X procedure involved removing all but the head of an intact fetus before compressing the head with suction. Voinovich, 911 F.Supp. at 1066. Regardless of whether the fetus was removed intact or dismembered, however, the Court concluded that in both the D & X procedure and the D & E procedure, “a suction device may be purposely inserted into the skull in order to remove the skull contents, to accomplish the goal of decompressing the fetal head, thereby facilitating its removal from the woman’s body.” Id. at 1067. As a result, this Court held that HB 135 was unconstitutionally vague, because it did not provide physicians with fair warning as to what conduct it permitted and what conduct would expose them to civil and criminal liability. Id. In Voinovieh, this Court found HB 135 to be unconstitutional for a second reason as well. Relying upon Casey, the Court concluded that, insofar as HB 135 imposed a pre-viability ban on the D & X procedure, it constituted an undue burden on a woman’s ability to obtain an abortion. In reaching this conclusion, the Court compared the D & X procedure to other available methods and determined that use of the D & X procedure in the late second trimester of pregnancy appeared “to pose less of a risk” to maternal health than any other method of abortion. Id. at 1070. As a result, the Court reasoned as follows: Because the D & X procedure appears to have the potential of being a safer procedure than all other available abortion procedures, this Court holds that the Plaintiff has demonstrated a substantial likelihood of success of showing that the state is not constitutionally permitted to ban the procedure. If this abortion procedure, which appears to pose less of a risk to maternal health than any other alternative, were banned, and women were forced to use riskier and more deleterious abortion procedures, the ban could have the effect of placing a substantial obstacle in the path of women seeking pre-viability abortions, which would be an undue burden and thus unconstitutional under Casey. Id. at 1070. Finally, in Voinovich, this Court turned to the portion of HB 135 which banned all post-viability abortions, except when necessary to preserve the life or health of the woman. Specifically, HB 135 banned the performance of all post-viability abortions, unless: (1) the physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or [medically necessary to prevent] a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman, [or] (2) the physician determines, in good faith and in the exercise of reasonable medical judgment, after making a determination relative to the viability of the unborn human in conformity with [§ 2919.18(A) ], that the unborn human is not viable. Id. at 1075. HB 135 also obligated a physician to comply with a number of regulations in order to perform a post-viability abortion under the first of the foregoing two exceptions. Those regulations applied absent a “medical emergency,” which the statute defined as: [A] condition that a pregnant woman’s physician determines, in good faith and in the exercise of reasonable medical judgment, so complicates the woman’s pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create. Id. at 1076. Upon review, this Court found the post-viability ban on abortions in HB 135 unconstitutional for several reasons. For present purposes, it is necessary to address only two of them. First, with respect to the medical necessity exception to the post-viability ban, the Court held that the exception was unconstitutional, because it applied only when a woman’s physical health was threatened, and failed to account for situations in which her mental health was at risk. Id. at 1078-1081. Second, with respect to the medical emergency exception to the post-viability abortion regulations, the Court found the statute’s definition of “medical emergency” unconstitutional because, among other things, it lacked a mens rea, or scienter, requirement. Id. at 1081-1087. Absent such a requirement, the Court noted that physicians could face civil and criminal liability even when, in their best medical judgment, a post-viability abortion was required to preserve the life or health of the mother. Id. at 1084. Based on the foregoing reasoning, this Court granted a preliminary injunction on December 13, 1995, prohibiting the enforcement of House Bill 135. Id. at 1094. With the agreement of the parties, the Court later entered a permanent injunction and final judgment in favor of the Plaintiffs, barring enforcement of the legislation, on the record of the proceedings had on the Plaintiffs’ request for a preliminary injunction and the decision rendered thereafter. The Defendants subsequently appealed to the Sixth Circuit Court of Appeals, which affirmed this Court’s entry of a permanent injunction. In so doing, the Sixth Circuit agreed that an abortion law is unconstitutional, on its face, if “ ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.’ ” Voinovich, 130 F.3d at 194 (quoting Casey, 505 U.S. at 895, 112 S.Ct. 2791). The Sixth Circuit also agreed that this standard applies both to pre-viability and to post-viability abortion laws. Id. at 196. In addition, the Sixth Circuit recognized that HB 135’s ban on the D & X procedure encompassed the D & E procedure as well. In relevant part, the court explained: ... [T]he Act’s definition of the D & X procedure encompasses the D & E procedure, because the D & E procedure can also entail suctioning the skull contents of the fetus. The primary distinction between the two procedures is that the D & E procedure results in a dismembered fetus while the D & X procedure results in a relatively intact fetus. More specifically, the D & E procedure involves dismembering the fetus in útero before compressing the skull by means of suction, while the D & X procedure involves removing intact all but the head of the fetus from the uterus and then compressing the skull by means of suction. In both procedures, the fetal head must be compressed, because it is usually too large to pass through a woman’s dilated cervix. In the D & E procedure, this is typically accomplished by either suctioning the intracranial matter or by crushing the skull, while in the D & X procedure it is always accomplished by suctioning the intracranial matter. Voinovich, 130 F.3d at 199 (footnote omitted). Given that the definition of the prohibited abortion method in HB 135 encompassed both the D & E and the D & X procedures, the Sixth Circuit concluded that the statute imposed an undue burden on a woman’s ability to obtain a pre-viability abortion: Because the- definition of the banned procedure includes the D & E procedure, the most common method of abortion in the second trimester, the Act’s prohibition on the D & X procedure has the effect “of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877, 112 S.Ct. at 2820. It does not matter that the D & E procedure typically is not performed late in the second trimester, when use of the D & X procedure is more common, because the State may prosecute physicians who perform the D & E procedure at any time under the Act’s definition of the banned procedure, which contains no temporal limitations. In other words, the definition of the banned procedure in no way limits its application to late second trimester abortions. As in Dan-forth, the Act bans the most commonly used second trimester procedure and therefore is an unconstitutional burden on a woman’s right to choose to have an abortion. Id. at 201 (footnote omitted). With respect to HB 135’s post-viability ban on the D & X procedure, the Sixth Circuit assumed, arguendo, that the legislation was constitutional “[bjecause a State can proscribe all abortions post-viability, when not required for the life and health of the motherf.]” Id. at 202. Nevertheless, the court concluded that the post-viability ban on that procedure could not be severed from the pre-viability ban on the D & X procedure. Id. The Sixth Circuit next agreed that HB 135’s post-viability ban on all abortions was unconstitutional. In reaching this conclusion, the court found both the medical necessity and medical emergency exceptions to be impermissibly vague, because they lacked scienter requirements. Id. at 203. In support, the court recognized that “[t]he determination of whether a medical emergency or necessity exists, like the determination of whether a fetus is viable, is fraught with uncertainty and susceptible to being disputed by others.” Id. at 205. Finally, the Sixth Circuit agreed that HB 135 was unconstitutional, because it failed to allow post-viability abortions in cases involving a serious risk of substantial and irreversible impairment of a pregnant woman’s mental health. Id. at 206. As set forth above, the statute’s medical necessity exception allowed a post-viability abortion to avert a woman’s death or to avoid a “serious risk of the substantial and irreversible impairment of a major bodily function.” HB 135 defined the phrase “serious risk of the substantial and irreversible impairment of a major bodily function” to mean: [A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) Pre-eclampsia; (2) Inevitable abortion; (3) Prematurely ruptured membrane; (4) Diabetes; (5) Multiple sclerosis. Id. at 206. Upon review, the Sixth Circuit determined that the foregoing definition appeared to be limited to physical health risks. The court also noted that the definition was similar to language used in Casey, a case that involved physical health risks. Id. at 207. Although the Supreme Court found the definition in Casey to be constitutional, despite the fact that it was limited to physical health risks, the Sixth Circuit distinguished Casey and concluded that HB 135 could not ban post-viability abortions, without including an exception when termination of the pregnancy was necessary to preserve a woman’s mental health. Id. at 208. Specifically, the Sixth Circuit noted that Casey had involved a regulation that merely delayed a woman’s ability to obtain an abortion, whereas HB 135 banned post-viability abortions. Id. Given that HB 135 prohibited post-viability abortions entirely, the Sixth Circuit reasoned that the exception to the ban was required to encompass “situations where a woman would suffer severe mental or emotional harm if she were unable to obtain an abortion.” Id. at 209. Given that HB 135 lacked such an exception, the court found the statute’s post-viability ban on abortions to be unconstitutional. Three years later, in Stenberg v. Carhart, — U.S. —, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), the Supreme Court reviewed a physician’s facial challenge to the constitutionality of Nebraska’s “partial birth abortion” statute. The law at issue in Carhart provided as follows: No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. Id. at 2604-2605. The statute defined the phrase “partial birth abortion” as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” Id. at 2605. In addition, the phrase “partially delivers vaginally a living unborn child before killing the unborn child” was defined to mean “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.” Id. Upon review, the Supreme Court found the Nebraska statute to be unconstitutional for two reasons. First, it lacked an exception allowing the partial birth procedure to be performed when that procedure was the safest abortion method available. Id. at 2609-13. The Court concluded that such an exception was necessary, because the record demonstrated that, in some cases, the banned procedure was, in fact, safer than any alternative. Second, the Court concluded that the definition of the banned procedure swept in the D & E method of abortion, which is the most commonly used procedure for performing second trimester abortions. Id. at 2613-2617. In reaching the foregoing conclusions, the Carhart Court first reiterated three well-established principles of its abortion-law jurisprudence: (1) “before ‘viability ... the woman has a right to choose to terminate her pregnancy’ (2) “ ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional”; and (3) “ ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” Id. at 2604 (quoting Casey, 505 U.S. at 870, 877, 879, 112 S.Ct. 2791). After recognizing these three principles, the Court applied them to the language of the Nebraska statute, which applied to both pre-viability and to post-viability abortions. As an initial matter, the Court noted that Nebraska’s interest in regulating pre-viability abortions was considerably weaker than its interest in regulating post-viability abortions. Given that Casey required a health exception to validate a post-viability abortion law, the Court reasoned that at least the same exception was required with respect to a pre-viability regulation. In other words, regardless of viability, or the lack thereof, any statute regulating abortion must include an exception “ ‘where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother[.]’ ” Id. at 2609 (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791). According to the Carhart Court, this requirement stems from the well-established principle that a “State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Id. With the foregoing requirements in mind, the Court concluded that Nebraska’s statute was unconstitutional, because it lacked any exception for a woman’s health. Although the statute included an exception covering cases in which a woman’s life was “endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself[,]” the statute did not contain an exception for instances when the banned “partial birth abortion” procedure was safer than any available alternative. In Carhart, the Court held that such an exception was constitutionally mandated. In so ruling, the majority rejected Justice Thomas’ view that an exception is required only in situations where a woman’s pregnancy itself threatens her health: Justice THOMAS says that the cases just cited limit this principle to situations where the pregnancy itself creates a threat to health. See post, at 2651. He is wrong. The cited cases, reaffirmed in Casey, recognize that a State cannot subject women’s health to significant risks both in that context, and also where state regulations force women to use riskier methods of abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks. They make clear that a risk to a women’s health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely. Our holding does not go beyond those cases, as ratified in Casey. Id. at 2609. Having determined that a ban on a particular method of abortion must contain a health exception allowing the banned procedure to be performed if it is safer than any alternative, the Court examined the record to determine whether, in some cases, the “partial birth” procedure, as defined in the Nebraska statute, was the safest means of terminating a pregnancy. Id. at 2610. Before resolving this issue, the Court reviewed the risks associated with various methods of performing an abortion. In conducting its review, the Court found the terms “intact D & E” and “D & X” sufficiently similar to be used interchangeably. Id. at 2608. The Car- hart Court also construed Nebraska’s prohibition of “partial birth abortions” as an attempt to ban these procedures. After reviewing the record, however, the Court found substantial evidence supporting the district court’s conclusion that, in some circumstances, a D & X abortion would be the safest procedure (ie., safer than any available alternative). Id. at 2612. As a result, the Court rejected Nebraska’s argument that a health exception was never “necessary” to preserve the health of women. Id. at 2613. In reaching this conclusion, the Court examined Casey’s use of the phrase “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 2612. The Court reasoned that the phrase cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey’s words “appropriate medical judgment” must embody the judicial need to tolerate responsible differences of medical opinion-differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here. Id. at 2612. Based upon the foregoing interpretation of Casey, the Court reasoned that a health exception must encompass a situation “[wjhere a significant body of medical opinion believes a procedure may bring with ’ it greater safety for some patients and explains the medical reasons supporting that view_” Id. at 2613. Given that Nebraska’s statute lacked such an exception, the Court found it to be unconstitutional. As noted above, the Court also invalidated the partial birth abortion statute for a second reason. In particular, the Court concluded that it imposed an undue burden on a woman’s right to terminate her pregnancy before viability. Stated differently, the Court reasoned that the statute had the “ ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ ” Id. at 2613 (quoting Casey, 505 U.S. at 877, 112 S.Ct. 2791). In reaching this conclusion, the Court held that the statute’s definition of the phrase “partial birth abortion” encompassed both the D & E procedure and the D & X procedure. As set forth above, the relevant statutory language prohibited “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.” Id. After reviewing this language, the Court stated: ... We do not understand how one could distinguish, using this language, between D & E (where a foot or arm is drawn through the cervix) and D & X (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D & E will often involve a physician pulling a “substantial portion” of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus. Indeed D & E involves dismemberment that commonly occurs only when the fetus meets resistance that restricts the motion of the fetus: “The dismemberment occurs between the traction of ... [the] instrument and the counter-traction of the internal os of the cervix.” And these events often do not occur until after a portion of a living fetus has been pulled into the vagina. Even if the statute’s basic aim is to ban D & X, its language makes clear that it also covers a much broader category of procedures. The language does not track the medical differences between D & E and D & X — though it would have been a simple matter, for example, to provide an exception for the performance of D & E and other abortion procedures. Nor does the statute anywhere suggest that its application turns on whether a portion of the fetus’ body is drawn into the vagina as part of a process to extract an intact fetus after collapsing the head as opposed to a process that would dismember the fetus. Thus, the dissenters’ argument that the law was generally intended to bar D & X can be both correct and irrelevant. The relevant question is not whether the legislature wanted to ban D & X; it is whether the law was intended to apply only to D & X. The plain language covers both procedures.... Both procedures can involve the introduction of a “substantial portion” of a still living fetus, through the cervix, into the vagina — the very feature of an abortion that leads Justice THOMAS to characterize such a procedure as involving “partial birth.” Id. at 2613-2614 (citations omitted). In a concurring opinion, Justice O’Con-nor agreed that Nebraska’s ban on partial birth abortions could not be reconciled with Casey and, therefore, was unconstitutional. Id. at 2618 (O’Connor, J., concurring). In reaching this conclusion, Justice O’Connor recognized that several states had enacted more narrowly drawn statutes that banned only the D & X method of abortion. According to Justice O’Con-nor, if a state limited application of its partial birth abortion statute to the D & X procedure and included an adequate exception for the life and health of the mother, such a statute would be constitutional. Id. at 2620. Given that Nebraska’s statute failed to meet these criteria, however, Justice O’Connor joined four other members of the Court and declared the statute unconstitutional. Having reviewed the substantive law that governs the ability of States to regulate abortion, and having examined both Ohio’s prior attempt to regulate abortion through HB 135 and the Supreme Court’s recent pronouncement on “partial birth abortion” in Carhart, the Court turns now to the present litigation, which involves the Plaintiffs’ facial challenge to the constitutionality of HB 351. As a means of analysis, the Court first will review the pertinent language of that statute. B. Substantive Provisions of Stibstitute House Bill S51 HB 351 generally prohibits physicians from performing abortions by using what the Act identifies as a “partial birth procedure.” This prohibition applies to the performance of both pre-viability and post-viability abortions. See Ohio Rev.Code § 2919.151(B) (prohibiting use of the partial birth procedure when the fetus is viable); Ohio Rev.Code § 2919.151(C) (prohibiting use of the partial birth procedure when the fetus is not viable). Specifically, the Act provides that ... no person shall knowingly perform a partial birth procedure on a pregnant woman when the procedure is not necessary in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother’s life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function. Ohio Rev.Code § 2919.151(B) (post-viability) and (C) (pre-viability). HB 351 defines the banned “partial birth procedure” as “the medical procedure that includes all of the following elements in sequence:” (a) intentional dilation of the cervix of a pregnant woman, usually over a sequence of days; (b) in a breach presentation, intentional extraction of at least the lower torso to the navel, but not the entire body, of an intact fetus from the body of the mother, or in a cephalic presentation, intentional extraction of at least the complete head, but not the entire body, of an intact fetus from the body of the mother; (c) intentional partial evacuation of the intracranial contents of the fetus, which procedure the person performing the procedure knows will cause the death of the fetus, intentional compression of the head of the fetus, which procedure the person performing the procedure knows will cause the death of the fetus, or performance of another intentional act that the person performing the procedure knows will cause the death of the fetus; (d)completion of the vaginal delivery of the fetus. Ohio Rev.Code § 2919.151(A)(3). The Act defines “from the body of the mother” to mean “that the portion of the fetus’ body in question is beyond the mother’s vaginal introitus in a vaginal delivery.” Ohio Rev.Code § 2919.151(A)(2). The Act expressly excludes from its reach the “suction curettage procedure of abortion,” the “suction aspiration procedure of abortion,” and the “dilation and evacuation procedure of abortion.” Ohio Rev.Code § 2919.151(F). The Act also provides that the “dilation and evacuation procedure of abortion does not include the dilation and extraction procedure of abortion.” Ohio Rev.Code § 2919.151(A)(1). The phrases “suction curettage procedure of abortion,” “suction aspiration procedure of abortion,” “dilation and evacuation procedure of abortion,” and “dilation and extraction procedure of abortion” are not defined in the Act. As noted, supra, HB 351 also includes an exception for the life and health of the mother. That exception permits the partial birth procedure to be performed when it is ... necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the mother’s life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function. Ohio Rev.Code § 2919.151(B) (post-viability) and (C) (pre-viability). The Act defines the phrase “serious risk of the substantial and irreversible impairment of a major bodily function” to mean “any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev.Code § 2919.151(A)(5). Finally, the ban against the partial birth procedure does not apply to a person “who performs or attempts to perform a legal abortion if the act that causes the death of the fetus is performed prior to the fetus being partially born even though the death of the fetus occurs after it is partially born.” Ohio Rev.Code § 2919.151(G). “Partially born” is defined to mean that, in a breech presentation, “at least the lower torso to the navel, but not the entire body, of an intact fetus” and in a cephalic presentation, “at least the complete head, but not the entire body, of an intact fetus,” has been intentionally extracted from the body of the mother. Ohio Rev.Code § 2919.151(A)(4); Ohio Rev.Code § 2919.151(A)(3)(b). A person who unlawfully performs the “partial birth procedure” is guilty of the crime of “partial birth feticide,” which is second-degree felony. Ohio Rev.Code § 2919.151(D). In addition, such a person may be civilly liable for compensatory and punitive damages. Ohio Rev.Code § 2307.53(B). In support of their Motion for a Preliminary Injunction, the Plaintiffs have asserted several constitutional challenges to the language of HB 351. Having examined the pertinent statutory language, the Court turns now to the merits of the Plaintiffs’ arguments. C. Analysis of Plaintiffs’ Constitutional Challenges to HB 351 As set forth above, the Plaintiffs contend that HB 351 is unconstitutional for numerous reasons. For purposes of ruling on the pending Motion for a Preliminary Injunction, the Court has chosen to structure its analysis as follows. First, the Court will determine whether the Plaintiffs have demonstrated a substantial likelihood of success on their argument that the Act is unconstitutional, insofar as it restricts a woman’s ability to abort a 7ion-viable fetus. In resolving this question, the Court will address two sub-issues: (1) whether HB 351 imposes an undue burden on a woman’s ability to obtain a pre-viability abortion, because it defines the phrase “partial birth procedure” in a way that prohibits the D & E procedure, which is the most commonly used method for performing second-trimester abortions; and (2) whether the Act’s pre-viability ban on the “partial birth procedure” contains an adequate exception for the life of the woman. Second, the Court will determine whether the Plaintiffs have demonstrated a substantial likelihood of success with respect to their argument that HB 351 is unconstitutional, insofar as it restricts a woman’s ability to abort a viable fetus. In resolving this question, the Court again will address two sub-issues: (1) whether the Act’s post-viability ban on the “partial birth procedure” contains a sufficient exception for the health of the woman; and (2) whether the Act contains an adequate scienter requirement. 1. Constitutionality of HB 351 Before Fetal Viability a. Undue Burden on Woman’s Ability to Obtain Pre-viability Abortion The Plaintiffs argue that the definition of a “partial birth procedure” set forth in HB 351 is unconstitutional, because it encompasses a method of abortion known as the D & E procedure, which is the most common abortion procedure used in the second trimester of pregnancy. In response, the Defendants contend that the phrase “partial birth procedure” in HB 351 is narrowly defined and does not include the D & E procedure. Moreover, the Defendants note that the Act expressly excludes the D & E procedure, as well as other common methods of abortion, from its reach. See Ohio Rev.Code § 2919.151(F). In order to resolve this dispute, it is necessary to describe several methods of abortion. This Court previously defined and described those procedures in Voino-vich, based upon largely the same evidence that has been presented herein. For present purposes, however, the Court will once again review the various alternatives available to a woman who chooses to terminate her pregnancy. Suction Curettage/Vacuum Aspiration Approximately 90 percent of all abortions performed in the United States take place during the first trimester of a woman’s pregnancy. During that time, the most common method of abortion is the “suction curettage” or “vacuum aspiration” procedure. (Def. Exh. L at 62-63; Pl. Exh. 18 at 39). This procedure, which may require dilation of the cervix, involves insertion of a cannula (a vacuum tube) into the uterus to evacuate the contents. (Def. Exh. L at 63; Pl. Exh. 18 at 39). The vacuum aspiration method of abortion may be performed through the early second trimester of pregnancy. (Def. Exh. L at 64). Induction!Instillation During the second trimester of pregnancy, some women obtain an abortion through a procedure known as “induction” or “instillation.” (Def. Exh. L at 63-64; Pl. Exh. 18 at 42). This procedure involves the injection of saline into a woman’s uterus to induce labor. It causes cramping and results in the expulsion of the fetus after a period of twenty-four to thirty-six hours. (Pl. Exh. 18 at 42). Although this method of abortion was common in the 1970s, physicians use it less frequently today, because it requires a hospital stay and causes an extended period of pain for the woman. (Pl. Exh. 18 at 42-43; Def. Exh. L at 63-64). Hysterotomy/Hysterectomy Another possible way for a woman to terminate her pregnancy during the second trimester is to undergo a “hysteroto-my.” (Pl. Exh. 26 at 37). This method of abortion is an invasive surgical procedure that requires the use of a general anesthesia. (Id.) It involves the removal “of the pregnant uterus, with the pregnancy intact.” (Id.). The hysterotomy is used only in very rare cases. (Id.). The “hysterectomy” is another rarely used procedure that requires the use of general anesthesia. (Id. at 37-38). It involves an incision into the uterine wall to remove the products of conception. (Id. at 38). Dilation and Evacuation (“D & E”) The most commonly used method of abortion during the second trimester of pregnancy is known as a “dilation and evacuation” (“D & E”) procedure. (Pl. Exh. 18 at 47). This procedure begins with the insertion of laminaria into the cervix in order to achieve dilation. Once the cervix is dilated, the physician removes the contents of the uterus by using both forceps and suction. (Pl. Exh. 22 at 116; Pl. Exh. 26 at 36-37). Typically, a suction curette is first placed through the cervix and into the uterus to remove the amniotic fluid. (Pl. Exh. 30 at 35). This process alone often removes some of all of the fetal tissue, particularly early in the second trimester. (Id.). Whenever some or all of the fetus remains inside the uterus, a physician uses forceps in order to dismember the fetus and to facilitate removal. (Id.). This procedure involves “breaking up of the fetal parts.” (Pl. Exh. 22 at 119; see also Pl. Exh. 24 at 122). The fetus is dismembered “piece by piece” in útero. (Def. Exh. K at 190, 194). The D & E procedure is used in the vast majority of second-trimester abortions, including those involving women who are eighteen to twenty-four weeks pregnant. (PI. Exh. 26 at 63). Dilation and Extraction (“D & X") The Dilation and Extraction (“D & X”) method of abortion is typically used in the late second trimester from the twentieth to twenty-fourth week of pregnancy. The American College of Obstetricians and Gynecologists (“ACOG”) has issued a policy statement which defines the “Intact Dilation and Extraction” procedure as follows: 1. deliberate dilation 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 intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus. (Def.Exh. B). Plaintiff Haskell performs a variation of the D & X procedure described by ACOG. In Voinovich, this Court provided the following review of Haskell’s procedure, which is typically used late in the second trimester, from twenty to twenty-four weeks: 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, Has-kell 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. Voinovich, 911 F.Supp. at 1066 (footnotes omitted). Having reviewed the foregoing procedures, the Court concludes that the primary distinction between the D & E and the D & X is that the D & E involves fetal dismemberment and the D & X results in an intact fetus. (Pl. Exh. 22 at 126). Whereas the traditional D & E involves “the use of forceps and/or crushing instruments for dismemberment of the fetus and removing the fetus in parts,” (Pl. Exh. 26 at 48), the D & X procedure involves “the delivery of the fetus essentially intact.” (Id.). During a 1992 presentation, Plaintiff Haskell himself noted that the D & X procedure “differs from classic D & E in that it does not rely upon dismemberment to remove the fetus.... ” (Tr. 9-6-2000 at 16). This finding is consistent with Voinovich, wherein this Court concluded that [t]he primary distinction between this D & X procedure and the D & E procedure previously described appears to be that, whereas the D & E procedure results in dismemberment and piece-by-piece removal of the fetus from the uterus-and, possibly, in removal of portions of the skull contents by the use of suction after the skull is crushed with forceps or otherwise invaded, and before the head is placed next to the opening to the uterus-the D & X procedure results in a fetus which is removed basically intact except for portions of the skull contents, which are suctioned out after the head is placed next to the opening to the uterus (and after the rest of the fetus is removed from the uterus), and before the fetus is fully removed from the mother’s body. The hallmark of the D & X procedure, therefore, is that the fetus is removed intact, rather than being dismembered prior to removal, as is done in a D & E procedure. In both procedures, the head usually must be decompressed, either by crushing the skull, or by invading the skull and suctioning out its contents. In the D & X procedure, the suctioning is purposeful; in a D & E procedure, the suction may either be purposeful, or, given the inability to clearly see the fetus, even with ultrasound, and the consequent difficulty of knowing whether the surgical instrument is in, or simply near, the skull, it may be accidental. Voinovich, 911 F.Supp. at 1066 (footnote omitted). After reviewing the foregoing descriptions of the various abortion methods, the Court is unpersuaded by the Plaintiffs’ argument that HB 351 imposes an undue burden on a woman’s right to obtain a pre-viability abortion by banning the widely performed D & E procedure. In reaching . this conclusion, the Court notes a critical distinction between HB 351 and HB 135, which represented Ohio’s unsuccessful 1995 attempt to ban D & X abortions. As noted, supra, HB 135 defined the banned D & X procedure as the purposeful insertion of a suction device into the skull of a fetus to remove the brain. Upon review, this Court concluded that the D & X and D & E techniques described above both frequently involved such a process. Consequently, the Court found that HB 135 effectively banned the D & E procedure. Given that the D & E procedure is the most widely used and, by many accounts, the safest method of terminating a pregnancy after the first trimester, the Court held that HB 135’s ban on that procedure was unconstitutional. As the Court has explained, HB 351 takes a different approach. The Act prohibits what it describes as the “partial birth procedure.” Although the phrase “partial birth procedure” is not defined in medical literature, the Act provides its own statutory definition. In particular, the “partial birth procedure” is defined as “the medical procedure that includes all of the following elements in sequence:” (a) intentional dilation of the cervix of a pregnant woman, usually over a sequence of days; (b) in a breach presentation, intentional extraction of at least the lower torso to the navel, but not the entire body, of an intact fetus from the body of the mother, or in a cephalic presentation, intentional extraction of at least the complete head, but not the entire body, of an intact fetus from the body of the mother, (c) intentional partial evacuation of the intracranial contents of the fetus, which procedure the per