Full opinion text
DECISION AND ENTRY PERMANENTLY ENJOINING DEFENDANTS FROM ENFORCING PROVISIONS OF SUBSTITUTE HOUSE BILL 351 WHICH PROHIBIT PRE-VIABILITY AND POST-VIABILITY PERFORMANCE OF PARTIAL BIRTH PROCEDURE; PLAINTIFFS’ CHALLENGE TO CONSTITUTIONALITY OF CIVIL LIABILITY PROVISION OF SUBSTITUTE HOUSE BILL 351 DISMISSED FOR LACK OF STANDING; JUDGMENT TO BE ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANTS; TERMINATION ENTRY RICE, Chief Judge. This case presents a facial challenge to the constitutionality of Substitute House Bill 351 (“HB 351” or “the Act”), which was to have become effective in August, 2000. The Plaintiffs are the Women’s Medical Professional Corporation (“WMPC”) and Dr. 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, seeking declaratory relief regarding the constitutionality of HB 351 and seeking to enjoin the Defendants from enforcing the Act, which, with certain exceptions, bans Ohio physicians from performing, or attempting to perform, an abortion procedure identified 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 categories. First, the Plaintiffs contend that the Act imposes an unconstitutional “undue burden” on certain women seeking abortion services in Ohio. Second, they argue that the Act lacks an adequate exception allowing the “partial birth procedure” to be performed when it is necessary to preserve a woman’s health. Third, they contend that the Act is unconstitutionally vague and lacks adequate scienter standards. Fourth, they assert that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. The Court granted a ten-day Temporary Restraining Order (“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). With respect to the Plaintiffs’ request for preliminary 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 provided the Court with affidavits, declarations and/or deposition testimony from some of the foregoing individuals. Others testified before the Court in a 1995 case, Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (Rice, J.), which involved the same parties but somewhat different issues. The parties stipulated to the Court’s consideration of extensive excerpts from the testimony and exhibits presented in the 1995 case. After considering the foregoing eviden-tiary materials, the Court entered a Preliminary Injunction on September 22, 2000, enjoining the Defendants from enforcing HB 351, pending a final decision on the merits. See Women’s Medical Profes sional Corp. v. Taft, 114 F.Supp.2d 664 (S.D.Ohio 2000) (Rice, J.). Thereafter, on January 9-11, 2001, the Court conducted a full oral and evidentiary hearing on the merits of the Plaintiffs’ request for permanent injunctive and declaratory relief. (See Minutes, Doc. #44; Hearing Transcripts, Doc. # 45-47). A number of witnesses testified at the January, 2001, hearing, including Dr. Siiner, Rebecca Jackson, M.D., Morton P. Hibbert, M.D., Plaintiff Haskell, Cassing Hammond, M.D., LeRoy Sprang, M.D., Charles A.C. Ballard, M.D., and clinical psychologist Barbara Brewer. In conjunction with the January, 2001, hearing, the parties also provided the Court with a joint stipulation of exhibits, which includes, inter alia, numerous expert reports, medical journal articles, and a transcript of the deposition of Phillip Ney, M.D. (See Stipulation, Doc. #48). Following the January, 2001, oral and evi-dentiary hearing, the parties submitted post-hearing Memoranda and proposed findings of fact and conclusions of law. (Doc. #49-51, 54-55). The Court then heard final arguments on April 3, 2001. (See Minutes, Doc. # 56). Having reviewed all of the testimony and exhibits submitted in connection with both the September, 2000, and January, 2001, hearings, the Court now concludes, for the reasons to follow, that HB 351 is unconstitutional on its face, insofar as it bans the pre-viability and post-viability performance, or attempted performance, of the “partial birth procedure.” In particular, the Court finds that, in both the pre-viability and post-viability context, the Act lacks adequate exceptions allowing the “partial birth procedure” to be performed when it is necessary to preserve a woman’s health. Accordingly, based on the reasoning and citation of authority set forth, infra, the Court will enter a declaratory judgment and will permanently enjoin the Defendants from enforcing HB 351’s ban on the “partial birth procedure.” Insofar as the Act provides certain third parties with a cause of action for monetary damages against physicians who perform the “partial birth procedure,” however, the Court concludes, for the reasons to follow, that the Plaintiffs lack standing to challenge that portion of the Act. In particular, with respect to the civil liability provision, the Plaintiffs have not demonstrated the existence of a justiciable “case or controversy” with the Defendants in this litigation. Consequently, the Plaintiffs are not entitled to declaratory or injunctive relief with respect to the civil liability component of HB 351. I. Analysis Plaintiff WMPC is an Ohio corporation that currently provides, and intends to continue providing, medical services in Montgomery, Hamilton and Summit Counties, 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 members who 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 approximately 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. Before turning to the merits of this litigation, the Court pauses briefly to address three threshold issues that it previously resolved in its preliminary injunction ruling. 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. See Women’s Medical Professional Corp., 114 F.Supp.2d at 667. Second, the Court concludes, for the reasons set forth in its prior ruling, that Plaintiff Haskell has standing to pursue the present action on behalf of himself and his patients. Id. at 667-68. Third, the Court finds, again for the reasons set forth in its prior ruling, that Plaintiff Haskell has standing to challenge HB 351’s pre-viability and post-viability ban on the performance of the “partial birth procedure.” Id. at 668. Having made the foregoing findings, the Court turns now to the merits of this litigation. In so doing, the Court will presume a degree of familiarity with its preliminary injunction ruling in this case. Therein, the Court provided a lengthy review of the substantive law governing the regulation of abortion, with particular emphasis placed on three cases: (1) this Court’s ruling more than five years ago in Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995) (Rice, J.); (2) the Sixth Circuit’s affirmance of that ruling in Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997); and (3) the Supreme Court’s recent opinion in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which struck down a Nebraska statute banning “partial birth abortion.” See Women’s Medical Professional Corp., 114 F.Supp.2d at 669-78 (reviewing the substantive law governing attempts to regulate the performance of abortions). For purposes of addressing the Plaintiffs’ arguments, the Court will focus primarily upon the Supreme Court’s ruling in Carhart, which sets forth the legal principles that are dispositive of key issues in this litigation. As noted, supra, the Plaintiffs’ arguments may be divided into four categories. First, they contend that HB 351 imposes an unconstitutional “undue burden” on certain women seeking abortion services in Ohio. Second, they argue that the Act lacks an adequate exception allowing the “partial birth procedure” to be performed when it is necessary to preserve a woman’s health. Third, they contend that the Act is unconstitutionally vague and lacks adequate scienter standards. Fourth, they assert that the Act unconstitutionally permits third-party civil suits against physicians who violate its terms. As a means of analysis, the Court first will review the substantive provisions of HB 351. The Court then will address the foregoing issues in an order that best facilitates its review. A. Substantive Provisions of HB S51 HB 351 generally prohibits physicians from performing abortions by using what the Act identifies as the “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 a four-step “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 on 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 face civil liability for compensatory and punitive damages. Ohio Rev.Code § 2307.53(B). The express intent of the Ohio General Assembly in enacting HB 351 is “to prevent the unnecessary death of fetuses when they are substantially outside the body of the mother.” See Am. Sub. H.B. 351 at Section 3(A). This intent is based in part on Ohio’s asserted interest in “maintaining a strong public policy against infanticide, regardless of the life expectancy or stage of development of the child.” Id. at Section 3(B). According to the Ohio General Assembly, the Act “also furthers the state interest in preventing unnecessary cruelty” to a fetus. Regardless of the ability of a fetus to experience pain, HB 351 expresses the General Assembly’s belief that “[t]he indignity of being partially delivered before being deliberately killed is also a form of cruelty that should not be unnecessarily inflicted upon any being of human origin.” Id. at Section 3(D). B. Analysis of Plaintiffs’ Constitutional Challenges to HB 851 Having reviewed the substantive provisions of HB 351, the Court turns now to the specific constitutional challenges advanced by the Plaintiffs. 1. Vagueness and Scienter Challenges to HB351 In their Complaint, the Plaintiffs allege that HB 351 is unconstitutionally vague and that it lacks adequate scienter standards. (Doc. # 1 at ¶ 60-67). In their most recent Memoranda, the Plaintiffs fail to address the Court’s rejection of these “vagueness” and “scienter” arguments at the preliminary injunction stage. (See Doc. # 51, 55). Although the Plaintiffs have not waived these issues in the permanent injunction context, they merely incorporate by reference the same legal arguments that the Court had previously rejected. (Doc. #51 at 1). Given the Plaintiffs’ failure to present any new law or argument with respect to their “vagueness” challenge to the constitutionality of HB 351, or with respect to their challenge to the adequacy of the Act’s “scienter” standards, the Court remains convinced, for the reasons set forth in its preliminary injunction ruling, that HB 351 is not unconstitutionally vague and that it contains adequate scienter standards. See Women’s Medical Professional Corp., 114 F.Supp.2d at 685 n. 25, 697-704. Accordingly, the Plaintiffs are not entitled to declaratory or injunctive relief on those grounds. 2. Constitutionality of Ban on “Partial Birth Procedure” Before Fetal Viability The Plaintiffs’ Complaint also alleges that HB 351 unconstitutionally restricts the ability of women to obtain a pre-viability abortion. According to the Plaintiffs, the Act does so in two ways. First, it imposes an “undue burden” on women who seek to terminate a pregnancy prior to fetal viability. Second, it lacks an adequate exception allowing the “partial birth procedure” to be performed when it is necessary to preserve a woman’s health. (Doc. # 1). In the preliminary injunction context, the Court rejected the Plaintiffs’ first argument, finding no substantial likelihood that HB 351 imposes an undue burden on a woman’s ability to obtain a pre-viability abortion. In particular, the preliminary injunction evidence failed to persuade the Court that the Act likely imposes an undue burden by sweeping within its reach not only the “partial birth procedure” but also the commonly performed dilation and evacuation (“D & E”) method of abortion. With respect to the Plaintiffs’ second argument, however, the Court did find a substantial likelihood that the Act’s health exception is unconstitutionally narrow. In the permanent injunction context, the Plaintiffs now challenge the Court’s preliminary conclusion regarding the undue burden issue, and the Defendants contest the Court’s finding that the Act’s health exception is likely too narrow. After reviewing the full record on the merits, however, the Court continues to believe that, in the pre-viability context, HB 351’s health exception is unconstitutional, on its face, in light of the Supreme Court’s recent ruling in Carhart. As a result, the Court need not revisit its prior determination that the Plaintiffs failed to show a substantial likelihood of success on the merits regarding the undue burden issue. With respect to women who seek to obtain a pre-viability abortion, HB 351’s unconstitutionally narrow health exception, alone, renders the Act’s ban on the “partial birth procedure” fatally defective. Consequently, the Court will not, because it need not, decide whether the Act is also unconstitutional, in the pre-viability context, on the alternative basis that it imposes an undue burden by banning the commonly performed D & E method of abortion. See Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 145-46 (3rd Cir.2000) (declining to address alternative argument regarding constitutionality of health exception in a New Jersey statute banning “partial birth abortions” after declaring statute unconstitutional for another reason); Harris v. Champion, 15 F.3d 1538, 1568 (10th Cir.1994) (noting that “once the court determines that a [constitutional] violation has occurred that warrants ... relief, it need not address the other constitutional issues”); Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 534-35 (5th Cir.1978) (same); see also Consolidated Edison Co. of New York, Inc. v. Pataki, 117 F.Supp.2d 257, 270 n. 6 (N.D.N.Y.2000) (declining to address alternative constitutional claims in the permanent injunction context after finding statute unconstitutional on equal protection and bill of attainder grounds). Instead, the Court will turn directly to an analysis of HB 351’s health exception, an issue which is dispositive of the Plaintiffs’ pre-viability challenge to the constitutionality of the Act. In analyzing the health exception, the Court begins with a detailed review of its preliminary injunction ruling. Therein, the Court addressed the constitutionality of the Act’s pre-viability health exception as follows: In a second argument, the Plaintiffs contend that HB 351 is unconstitutional, insofar as it prohibits the pre-viability performance of the “partial birth procedure,” because it lacks an adequate exception for the health of the woman. Although HB 351 generally prohibits a woman from undergoing the “partial birth procedure,” it does provide an exception when either her life or health is at risk. Specifically, the Act prohibits the partial birth procedure, unless 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(C). 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). In support of their Motion for a Preliminary Injunction, the Plaintiffs contend that the foregoing exception is unconstitutional because, among other things, it is limited to a medically diagnosed condition that complicates a woman’s pregnancy. They insist that the Act’s health and life exception must allow the “partial birth procedure” not only when a medically diagnosed condition makes that method of abortion necessary, but also when that procedure is simply safer than any other alternative. In particular, they contend that “a health and life exception may not be limited only to those conditions that relate to pregnancy [or the pregnancy itself], but must instead be encompassing of all possible conditions that could potentially threaten the overall health or life of a woman, including the choice of abortion procedure.” (Doc. #2 at 21) (emphasis added). In response, the Defendants essentially advance two arguments. First, they contend that the State of Ohio is not required to grant physicians unfettered discretion to choose their favorite abortion procedure. Second, they assert that the health exception in HB 351 is constitutional, because it covers “any medically diagnosed condition,” and not just complications of the pregnancy itself. (See, e.g., Doc. # 12 at 16-20, 24-25). Upon review, the Court finds the Supreme Court’s recent ruling in Carharb to be dispositive. As noted, supra, the Carharb Court reaffirmed the principle that a “State may promote but not endanger a woman’s health when it regulates the methods of abortion.” Carhart, 120 S.Ct. at 2609. As a result, a statute regulating a method of abortion must include an exception “ Svhere it is necessary in appropriate medical judgment for the preservation of the life or health of the mother[.]’ ” Id. (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791, 120 L.Ed.2d 674). As this Court has explained, the Carharb majority expressly rejected the proposition that a health exception need only cover situations in which a woman’s pregnancy itself creates a threat to her health. Id. Rather, the Court explained: [o]ur 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.... Id. The Carharb Court also adopted a broad reading of the phrase “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 2612. As noted, supra, 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.... Id. at 2612. In light of Carharb, the Court finds the Defendants’ two arguments to be unpersuasive. With respect to the Defendants’ argument that physicians do not enjoy “unfettered discretion” to select their abortion method of choice, the Court does not disagree. See id. at 2613. Indeed, if the record supports the proposition that the banned “partial birth procedure” is never “safer” than other alternatives, then the State of Ohio may, quite obviously, ban that procedure, without providing an exception for circumstances in which it is safer than other methods of abortion. However, if substantial medical authority supports the proposition that banning the partial birth procedure could endanger women’s health by subjecting them to more risky procedures, then Carharb requires HB 351 to include a health exception allowing the procedure to be performed in such cases. Id. at 2612-2613. With respect to the Defendants’ alternative argument' that the health exception in HB 351 is constitutional, because it covers “any medically diagnosed condition,” and not just complications of the pregnancy, their argument simply misses the point. The Defendants appear to suggest that the Act would allow the “partial birth procedure” to be performed when any health condition complicates a woman’s pregnancy, regardless of whether the pregnancy caused the health condition. For example, the Court perceives the Defendants’ argument to be that HB 351 would permit a “partial birth procedure” if (a) pre-ec-lampsia or some other complication of pregnancy endangered her health, and if (b) a form of cancer wholly unrelated to the pregnancy endangered her health. Although the Defendants’ argument may be true, it fails to address Carhart’s recognition that any prohibition against a particular method of abortion must include an exception allowing the banned procedure to be performed “when it may bring with it greater safety for some patients[.]” Carhart, 120 S.Ct. at 2613. Having rejected the Defendants’ arguments, the Court next must review HB 351 to determine whether its health exception does permit the “partial birth procedure” to be performed when it is safer than any alternative. As noted above, the Act allows the banned “partial birth procedure” to be performed only if a woman’s life or health is endangered by a “serious risk of the substantial and irreversible impairment of a major bodily function,” which means 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) (emphasis added). A plain reading of the foregoing language reveals that it lacks the health exception discussed in Carhart. The Act allows the “partial birth procedure” to be performed whenever a medically diagnosed condition so complicates a woman’s pregnancy that it threatens the substantial and irreversible impairment of a major bodily function. Notably absent from HB 351 is language allowing the “partial birth procedure” to be performed in cases where the medical evidence shows that it is simply the safest method of abortion. In light of this omission, the critical issue is whether the record contains medical evidence to support the proposition that the “partial birth procedure” may provide greater safety for some women. Carhart, 120 S.Ct. at 2613.... Women’s Medical Professional Corp., 114 F.Supp.2d at 685-88 (footnotes omitted). In the permanent injunction context, the Defendants once again assert that the pre-viability health exception in HB 351 satisfies the requirements of Carhart. Although they deny that the “partial birth procedure” is ever “safer” than alternative methods of abortion, they argue that the Act’s health exception would allow the banned procedure to be performed if that were the case. (Doc. # 49 at 30-33). Specifically, they insist that “even if the evidence presented at trial could lead to the conclusion that, in some specific circumstance, the partial birth procedure might be safer [than available alternatives], ... H.B. 351 is constitutional because the health exception included in the law would allow it to be performed when necessary, in reasonable medical judgment, to preserve the mother’s life or health. That is all the Carhart Court said is required.” (Id. at 30-31). Upon review, the Court finds the foregoing argument to be unpersuasive. As the Court explained at length in its preliminary injunction ruling, the plain language of HB 351 does not allow the “partial birth procedure” to be performed when it is simply safer than alternative methods of abortion, and that is what Carhart requires. See, e.g., Carhart, 530 U.S. at 937, 120 S.Ct. 2597 (recognizing that a particular method of abortion must be allowed “[w]here a significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view ... ”). The Court does not quarrel with the Defendants’ observation that the Act allows the banned procedure when it is necessary, in reasonable medical judgment, to preserve a woman’s life or health. The Defendants fail to recognize, however, that this exception only applies when a woman’s life or health is endangered by a “serious risk of the substantial and irreversible impairment of a major bodily function.” Ohio Rev.Code § 2919.151(C). 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) (emphasis added). In other words, the Act only allows the “partial birth procedure” to be performed to preserve a woman’s health if her health is placed at risk by some medically diagnosed condition. Contrary to the Defendants’ assertion, nothing in the Act allows the “partial birth procedure” to be performed when the medical evidence simply shows that it may be the safest method of abortion. As a result, the Act fails to conform with Carhart’s recognition that any prohibition against a particular method of abortion must include an exception allowing the banned procedure to be performed “when it may bring with it greater safety for some patients[.]” Carhart, 530 U.S. at 937, 120 S.Ct. 2597. Consequently, as the Court noted in its preliminary injunction ruling, the critical issue is whether the medical evidence supports the proposition that, in some cases, the “partial birth procedure” may be the safest method of pregnancy termination. Women’s Medical Professional Corp., 114 F.Supp.2d at 688. In its preliminary injunction ruling, the Court reviewed the evidence then before it and concluded that, in some cases, the “partial birth procedure” did appear to provide greater safety than other methods of abortion. In reaching this conclusion, the Court reasoned as follows: In support of their Motion for a Pre- . liminary Injunction, the Plaintiffs argue at length that the D & X method of abortion frequently poses less health risks than the traditional D & E, which involves dismemberment, and the other procedures discussed, supra. Based upon its review of the record, the Court finds this argument to be persuasive. In Voinovich, this Court had the opportunity to compare the D & X [the banned procedure] to the D & E and other methods of abortion and concluded that the D & X involved less risk to maternal health than other second trimester procedures: After viewing all of the evidence, and hearing all of the testimony, this Court finds that use of the D & X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D & E procedure, because it is less invasive-that is, it does not require sharp instruments to be inserted into the uterus with the same frequency or extent- and does not pose the same degree of risk of uterine and cervical lacerations, due to the reduced use of forceps in the uterus, and due to the removal of any need to crush the skull and remove it in pieces, which can injure maternal tissue. This Court also finds that the D & X procedure appears to pose less of a risk to maternal health than the use of induction procedures, which require the woman to go through labor, pose additional risks resulting from the injection of fluids into the mother, and cannot be used for every woman needing an abortion. Finally, the Court finds that the D & X procedure appears to pose less of a risk to maternal health than either a hysterotomy or a hysterectomy, both of which are major, traumatic surger-' ies. Voinovich, 911 F.Supp. at 1070. After considering largely the same evidence in the present case, the Court reaches the same conclusion herein. The safety advantages of the D & X over other methods of abortion are both intuitive and well supported by the record. The evidence persuades the Court that the D & X procedure appears to have a number of health and safety advantages over the D & E. Since the D & X method involves the extraction of an intact fetus, it requires fewer instruments to be inserted into the uterus. This results in a lower risk of infection, less blood loss, and a smaller chance of causing trauma to the cervix. (Tr. 9-5-2000 at 39-40; PI. Exh. 32 at ¶ 10-11; Def. Exh. L at 72, 76-78). It also reduces the possibility of a physician leaving fetal tissue inside the uterus. (Def. Exh. L at 78). Likewise, the D & X procedure appears to have health and safety advantages over the other abortion techniques. Unlike induction/instillation, the D & X procedure does not require the injection of a saline-type fluid, which may lead to serious medical complications, including amniotic fluid embolus or disseminated intravascular coagulation. (PI. Exh. 20 at 25). In addition, unlike induction/instillation, the D & X procedure does not require a woman to undergo an extended period of labor. (PI. Exh. 18 at 42; PI. Exh. 20 at 25). The D & X method of abortion is also much less traumatic than a hystero-tomy or a hysterectomy, both of which are major surgical procedures. (PL Exh. 18 at 46; PI. Exh. 20 at 23). Finally, the American College of Obstetricians and Gynecologists has recognized that the D & X procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.... ” (Def.Exh.B). In short, the Court concludes, as it did in Voinovich, that the D & X procedure appears to have a number of health and safety advantages over other methods of abortion, including the widely performed D & E procedure. As the parties have recognized, however, this conclusion does not completely resolve the issue before the Court. While the D & X procedure, which involves delivery of an intact fetus, may have various health and safety advantages over the D & E, which involves dismemberment, the Defendants properly note that HB 351 does not prohibit a physician from partially delivering an intact fetus. Rather, it prohibits the partial delivery of a living, intact fetus. As set forth above, step ttvo in the sequential four-step “partial birth procedure” banned by HB 351 requires, “in a breech 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[.]” Ohio Rev.Code § 2919.151(A)(3)(b). Although the foregoing language does not specify that the fetus must be alive, step three requires “intentional partial evacuation of the in-tracranial 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 [.]” Ohio Rev.Code § 2919.151(A)(3)(c). Read together, steps two and three demonstrate that the intact fetus must be alive when it is extracted from the body of the mother to the point proscribed by § 2919.151(A)(3)(b). As a result, if a physician delivered an intact, but dead, fetus from the body of the mother, the physician would not violate the Act. Consequently, the Court next must determine whether the record contains medical evidence to support the proposition that performing the “partial birth procedure,” which requires the partial delivery of a live fetus, may provide greater safety for some women than requiring a doctor to abort an intact, but dead, fetus. In opposition to the Plaintiffs’ Motion for a Preliminary Injunction, the Defendants have identified two ways that a doctor could cause fetal demise before performing a D & X, and thereby avoid liability under the Act. First, the Defendants have suggested that a doctor might inject a substance known as digoxin into the fetus in útero. This procedure, which involves an injection through a woman’s abdomen, causes the fetus to die within thirty minutes or less. (Tr. 9-6-2000 at 40; Def. Exh. L at 27). Second, the Defendants contend that a doctor might sever the umbilical cord at the outset of a D & X procedure and wait for the fetus to die before removing it intact. Plaintiff Haskell testified that he routinely severs the umbilical cord near the beginning of a D & X abortion. (Tr. 9-6-2000 at 32-34). He also confirmed that he could sever the umbilical cord and wait for fetal demise before even starting the D & X procedure, thereby avoiding liability under HB 351. (Id. at 34-35). According to Haskell, severing the umbilical cord would cause the fetus to die within approximately fifteen to thirty minutes. (Id.). Upon review, however, the Court finds that neither of the foregoing options provides any benefit to a woman, and both options involve some increased risk to her health. Aside from the pain associated with the injection, the use of digoxin to cause fetal demise has been acknowledged to involve some health risks to a pregnant woman. Dr. Nancy Romer, a witness for the Defendants, testified that digoxin may cause arrhythmia if it is inadvertently injected into a woman’s bloodstream. (Def. Exh. L at 29-30, 94). Likewise, Plaintiff Haskell testified that the risks of a digoxin injection include the possibility of puncturing a blood vessel that continues to bleed internally, or puncturing “a loop of a valve that could get in the way of the needle.” (Tr. 9-5-2000 at 73). The option of severing the umbilical cord and waiting up to thirty minutes for the fetus to die before performing a D & X abortion also increases the risk to a woman’s health. The record reveals that, following dilation (which usually occurs over one or two days), the D & X procedure itself generally takes no more than twenty minutes to complete. (PI. Exh. 32 at ¶ 12; PI. Exh. 20 at 33). As a result, requiring a physician to cut the umbilical cord and to wait up to thirty minutes before proceeding further would more than double the length of the procedure, without providing any benefit to the woman. Although Plaintiff Haskell typically performs the D & X procedure with local anesthesia (Tr. 9-5-2000 at 29; Tr. 9-6-2000 at 54), he noted that some doctors use general anesthesia. (Tr. 9-5-2000 at 29). In fact, Dr. John Doe, who is one of four doctors in Ohio utilizing the D & X procedure (Tr. 9-5-2000 at 59), has explained that he uses general anesthesia to perform it. (PI. Exh. 30 at 44, 81). Dr. Doe has testified, and the Court finds, that the risk to a woman’s health is generally greater the longer she is under general anesthesia. (Pl.Ex. 30 at 44). The Court also notes that the use of general anesthesia is associated with various risks, including the possibility of aspiration and vomiting, which may cause a woman to stop breathing. (PL Exh. 18 at 46). Consequently, the Court finds, based on the evidence before it, that the risk of harm to a woman’s health increases the longer she remains under general anesthesia. In light of the risks identified above, the Court concludes that the “partial birth procedure,” which involves the partial delivery of a live fetus, may provide greater safety for some women than requiring a physician to ensure fetal demise before performing an abortion. Indeed, the evidence in the record supports the proposition that banning the “partial birth procedure” could endanger women’s health by subjecting them to more risky procedures. As a result, the State of Ohio cannot ban the “partial birth procedure,” without providing a health exception for circumstances in which that procedure is safer than requiring a physician to inject digoxin or to cut the umbilical cord and to wait up to thirty minutes to guarantee that the fetus is dead. Carhart, 120 S.Ct. at 2609 (recognizing that “a State may promote but not endanger a woman’s health when it regulates the methods of abortion”). Given that the health exception in HB 351 does not account for such circumstances, the Court concludes that the Plaintiffs have demonstrated a substantial likelihood of success with respect to their argument that the Act is unconstitutional under Car-hart, insofar as it limits a woman’s ability to obtain a pre-viability abortion. This conclusion is consistent with case law from other jurisdictions. For example, in Carhart itself, the district court rejected an argument that Nebraska’s ban on “partial birth abortions” did not impose an undue burden, because physicians could ensure fetal demise before performing the procedure. Carhart v. Stenberg, 972 F.Supp. 507, 527-528 (D.Neb.1997). In so doing, the district court specifically discussed, and rejected, the options of causing fetal demise in útero with an injection or cutting the umbilical cord and awaiting fetal demise before continuing with an abortion. The district court concluded that both options resulted in appreciable maternal health risks without a corresponding benefit to the woman. Id.; see also Evans v. Kelley, 977 F.Supp. 1283, 1301 (E.D.Mich.1997) (discussing the use of digoxin and the possibility of severing the umbilical cord and concluding that any attempt to ensure fetal demise before beginning an abortion would require additional procedures with potential health risks and no benefit to the woman); Planned Parenthood of Central New Jersey v. Vemiero, 41 F.Supp.2d 478, 500 (D.N.J.1998) (recognizing that requiring a physician to ensure fetal demise by injecting digoxin or severing the umbilical cord would involve increased risks to the woman and would result in an undue burden), aff'd 220 F.3d 127 (3rd Cir.2000). Based on the reasoning and citation of authority set forth above, the Plaintiffs have shown a substantial likelihood of success with respect to their argument that HB 351 is unconstitutional, insofar as it prohibits a woman from undergoing a pre-viability “partial birth procedure.” Women’s Medical Professional Corp., 114 F.Supp.2d at 688-92 (footnotes omitted). In the permanent injunction context, the Plaintiffs do not object to the foregoing analysis. On the other hand, the Defendants argue that the additional evidence presented at the full hearing on the merits demonstrates that the banned “partial birth procedure” is not safer than the two primary alternatives, namely an abortion by induction or a D & E abortion. In order to address the Defendants’ argument, the Court will first review the process involved in performing: (1) the “partial birth procedure,” which is substantially similar to the “D & X” or “intact D & E” method of abortion performed by Plaintiff Haskell; (2) the traditional dismemberment-type D & E method of abortion; and (3) the induction method of abortion. As defined by HB 351, and as previously indicated, the banned “partial birth procedure” involves a four-step “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 foregoing definition of the “partial birth procedure” is substantially similar to Plaintiff Haskell’s chosen method of providing abortion services in the mid-to-late second trimester of pregnancy. When performing his procedure, Haskell begins by dilating a woman’s cervix slightly with a metal dilator in order to insert small seaweed stalks known as “laminaria.” (Haskell testimony, Doc. # 20 at 28). The lamina-ria cause additional dilation. (Id. at 28-29). Haskell frequently replaces them over a period of one or two days to achieve even greater dilation when terminating pregnancies at 20 weeks of gestational age and beyond. (Haskell testimony, Doc. # 46 at 296-98, 302). He also sometimes uses “Cytotec,” which is the brand name for a prostaglandin called misoprostol, to assist with dilation and softening of the cervix. (Id. at 307-08). Once he is satisfied that sufficient dilation has been achieved, Has-kell manually converts the fetus to a breech presentation, if necessary. (Has-kell testimony, Doc. # 20 at 45). He then typically injects a local anesthesia and inserts forceps into the uterus to grasp a fetal extremity and to pull it into the vagina. (Id. at 29, 35). With adequate dilation, he is capable of extracting the fetus intact up to the skull, which ordinarily lodges in the internal cervical os. (Id. at 45). At that point, Haskell forces a pair of scissors into the base of the skull, enlarges the opening and evacuates the contents with a suction catheter. This process results in decompression of the head, allowing Haskell to remove the fetus completely from the body. (Id. at 45-46). In contrast to the foregoing procedure, the traditional D & E method of abortion involves less dilation and results in the removal of a fetus that is not intact. This method of abortion begins with the insertion of laminaria into the cervix to achieve dilation. (Hammond testimony, Doc. # 46 at 455; Jackson testimony, Doc. #45 at 173). After a degree of dilation is achieved, a paracervical pain blocker is administered. (Hammond testimony, Doc. #46 at 377). A suction device is then placed through the cervix and into the uterus to remove amniotic fluid. (Id.; Jackson testimony, Doc. # 45 at 174). The physician then uses forceps or some other grasping instrument to remove the fetus piece by piece. (Hammond testimony, Doc. # 46 at 378; Jackson testimony, Doc. # 45 at 174; Ballard testimony, Doc. # 47 at 665-66). Once the physician grasps an extremity, he begins pulling it through the cervix and the vagina. (Hammond testimony, Doc. # 46 at 378). During the D & E procedure, dismemberment tends to occur when some portion of the fetus lodges against the internal cervical os. (Id. at 379; Jackson testimony, Doc. # 45 at 175). The dismemberment or “disarticulation” is a result of resistance or traction that occurs when an extremity or another part of the fetus lodges against the os. (Hammond testimony, Doc. # 46 at 379). A key distinction between the “partial birth procedure,” which is analogous to Haskell’s procedure, and a traditional D & E, which involves dismemberment of the fetus, is the amount of dilation required to perform the respective techniques. (Sprang testimony, Doc. # 47 at 505; Ballard testimony, Doc. # 47 at 666). Because the “partial birth procedure” involves the intact extraction of a fetus, it requires a greater degree of dilation than the D & E method of abortion, which results in dismemberment when fetal parts lodge against the internal cervical os. (Sprang testimony, Doc. # 47 at 505). The third method of abortion sometimes used during the mid-to-late second trimester of pregnancy involves the induction of labor. This process typically includes the use of a prostaglandin such as Cytotec to cause uterine contractions and, eventually, the expulsion of the fetus. (Id. at 539; Ballard testimony, Doc. #47 at 667). During this process, which may take more than 12 hours to complete, the patient is able to be medicated for comfort. (Sprang testimony, Doc. # 47 at 540-41). Having reviewed the foregoing procedures, the Court now will assess their relative risks in order to determine whether, in the words of Carhart, “a significant body of medical opinion believes [that the ‘partial birth procedure’] may bring with it greater safety for some patients, and explains the medical reasons supporting that view[.]” Carhart, 530 U.S. at 937, 120 S.Ct. 2597. If so, then the State of Ohio must allow the “partial birth procedure” to be performed when it may provide greater safety for a woman than alternative methods of pregnancy termination. Id. at 937-38, 120 S.Ct. 2597. As set forth, supra, however, the pre-viability health exception in HB 351 does not allow the “partial birth procedure” to be performed in cases where the medical evidence suggests that it may be the safest method of abortion. Consequently, the critical issue is whether the record contains credible medical evidence to support the proposition that the “partial birth procedure” may provide greater safety for some women. See Carhart, 530 U.S. at 937, 120 S.Ct. 2597. If so, then the pre-viability health exception in HB 351 is unconstitutionally narrow. After reviewing all of the documentary evidence and hearing all of the testimony, the Court finds that the record does support such a proposition. During the January, 2001, full hearing on the merits in this case, Dr. LeRoy Sprang, a witness for the Defendants, testified that he is unaware of any medical circumstances under which the D & X procedure would be “the only available option to provide termination of [a] pregnancy.” (Sprang testimony, Doc. #47 at 500). The issue, however, is not whether the D & X is ever the only available alternative. Rather, the proper inquiry is whether the D & X or “partial birth procedure” is ever the safest alternative. The Court harbors no doubt that a physician always could perform some procedure other than the D & X or “partial birth procedure.” Under Carhart, however, the State of Ohio cannot ban the “partial birth procedure” in cases where it may offer comparative safety advantages for women, regardless of the availability of other acceptable procedures. Notably, Dr. Sprang also testified that he does not believe the D & X procedure is ever any safer than other available methods of pregnancy termination. (Id. at 501). When comparing the relative safety of the D & E and D & X procedures, Dr. Sprang expressed his opinion that the D & X is “more risky.” (Id. at 520). At a minimum, he believes that the two procedures “are equally risky[.]” (Id.). In reaching this conclusion, Dr. Sprang indicated that the additional dilation required for an intact procedure increases the risk of trauma to the cervix. (Id. at 504-06). He also testified that the repeated insertion of laminaria into the cervix, as is typically required for an intact procedure, heightens the risk of infection. (Id. at 507-08, 548-49). In addition, the doctor expressed his belief that Plaintiff Haskell’s performance of the podalic version, which is sometimes required in his variant of the D & X, may cause complications such as a uterine rupture or amniotic fluid embolus. (Id. at 511-12). Finally, Dr. Sprang stated that the use of a sharp instrument to puncture the fetal skull, as Plaintiff Has-kell does when performing an intact abortion, involves a risk that is not present with the D & E, which involves dismemberment. (Id. at 610). Another defense witness, Dr. Charles Ballard, indicated that he could not envision any circumstances under which the “partial birth procedure” “would be the preferred means [of terminating a pregnancy] as opposed to the other available means of abortion.... ” (Ballard testimony, Doc. #47 at 679). Dr. Ballard also identified what he perceives as several health risks associated with the D & X or “partial birth procedure.” First, as noted above, the D & X procedure requires increased dilation, which he believes heightens the risk of cervical incompetence and the resulting loss of future pregnancies. (Id. at 679, 735). Second, Dr. Ballard expressed his belief that performing the “po~ dalic version,” the process of rotating a fetus in order to perform the D & X or “partial birth procedure,” increases the risk of a physician rupturing a woman’s uterus. (Id. at 680-81, 731). Third, according to Dr. Ballard, the use of serial laminaria to achieve the additional dilation required for the “partial birth procedure” increases the risk of infection. (Id. at 683). Finally, Dr. Ballard pointed out the risk of a live birth when a D & X abortion is performed. (Id. at 670). Dr. Ballard also agreed, however, that in the absence of controlled studies, which do not exist, the relative advantages and disadvantages of the intact procedure in specific circumstances remain unknown. (Id. at 718-19). In contrast to the foregoing testimony, other witnesses at the January, 2001, full hearing on the merits testified that the D & X or “partial birth procedure” may provide health and safety advantages for some women. Dr. Rein Siiner, a witness for the Plaintiffs, testified that he has performed approximately 300 induction abortions, and that the average time required to complete the procedure is 19 hours. (Siiner testimony, Doc. #45 at 25). By comparison, after achieving proper dilation, Dr. Siiner is capable of evacuating the uterus within 15 minutes and sending a woman home within one hour of performing his “intact D & E” procedure. (Id.). In addition, Dr. Siiner stated that elective, labor-induction abortions are not permitted at the Ohio hospital where he has privileges, and they are significantly more expensive than his intact method of terminating a pregnancy. (Id. at 24). Dr. Siiner also testified that Cytotee, the most common agent for inducing labor, has been known to cause nausea, vomiting and diarrhea. (Id. at 25-26). Concerning the relative advantages of his intact procedure over the dismemberment D & E, Dr. Siiner expressed his belief that the intact method results in less uterine and cervical injury, less blood loss and a decreased incidence of a complication known as disseminated intravascular coagulation or “DIC.” (Id. at 31, 37-38, 40-41). He also noted that his intact procedure is quicker than a dismemberment D & E, reducing the time that a patient is under general anesthesia. Plaintiff Haskell also testified about the relative advantages of his intact procedure. In so doing, he expressed his belief that, for some women, “it would be safer to extract the fetus to the navel as opposed to disarticulating the fetus prior to that point.” (Haskell testimony, Doc. #46 at 323). In support of this position, Plaintiff Haskell explained that extracting an intact fetus results in fewer instrument passes into a woman’s body, which is advantageous from a safety standpoint. (Id. at 323, 326). According to Haskell, “[fit’s a well established axiom in the circles of physicians doing D & E’s that the less instrumentation, the better, and the more intactness means that there’s less instrumentation.” (Id. at 326). Another witness for the Plaintiffs, Dr. Cassing Hammond, expressed his belief that the induction method of abortion may be riskier than either the D & X or the D & E. (Hammond testimony, Doc. #46 at 391-97). As an initial matter, Dr. Hammond noted that the time required to complete an induction abortion is long and unpredictable. Even when using Cytotec, he “routinely [has] patients who choose a labor induction and they will sit on the labor floor for twenty-four, forty-eight [or even] seventy-two hours.” (Id. at 393). This drawn-out process may be “emotionally draining” for women who are aborting a pregnancy due to fetal anomalies. (Id.). According to Dr. Hammond, “[fit’s much harder for those patients to actually go through that procedure, even though it may sound more aesthetic to a layperson, than coming in, getting the cervix prepped, and undergoing what would be about a typically twenty-minute procedure after which they are done and which has, at the very least, similar profiles if not better safety profiles to the induction of labor.” (Id. at 393-94). In other words, even though an induction procedure may seem more appealing to a woman than a D & E or a D & X abortion, Dr. Hammond believes that, in reality, it is not. In addition, the doctor testified that “[t]here’s also some data suggesting that the risk of hemorrhage and infection may be higher in some of those patients who are getting induced[,] depending on the agent [used.]” (Id. at 394). Finally, Dr. Hammond noted that “about fifteen to thirty percent of patients who get induction terminations may eventually wind up with a surgical termination to evacuate the placenta, so they kind of wind up with the worst of both worlds.” (Id.). In other words, “[t]hey come in, they undergo sometimes a very long termination, and then they still have to have somebody ... come in and eventually do [a surgical procedure] to reach in and take the afterbirth out since it has not come out.” (Id.). Nevertheless, Dr. Hammond recognized that an induction abortion could be the most appropriate procedure for some women. (Id. at 395). He lacks the data, however, to determine who might benefit from an induction abortion, and he believes that whether induction is preferable to other methods of pregnancy termination “is ultimately a decision that doctors make in concert with a patient....” (Id. at 392). In addition, based on the evidence submitted in the preliminary injunction phase of this case, the Court itself noted several apparent health and safety advantages of an intact abortion as opposed to a