Full opinion text
MEMORANDUM AND ORDER KOPF, Chief Judge. Again and again the uterus contracts as the cervix opens up. The tiny passageway that once allowed the entrance of a single file of sperm now must widen to about four inches to accommodate a baby’s head. Human births are far more dangerous than those of other mammals or even other primates. The human brain is three to four times bigger than an ape’s brain. And the pelvis is narrower to allow us to walk upright. A human baby has to go through considerable contortions to make it through the narrow opening. Sometimes, there simply is not enough room. Like giving birth to a child, when a woman ends her pregnancy during or after the second trimester, she confronts a serious problem. Her cervix will frequently be too small to allow the skull of the human fetus to pass through it. Although terminating a pregnancy in America is safer than childbirth, this “skull-is-too-large” difficulty makes the abortion of a human fetus, like the birth of a human baby, potentially very dangerous to both the life and health of the woman. Our elected representatives have decided that it is never necessary to use a specific surgical technique — “partial-birth abortion” — to deal with this concern during an abortion. On the contrary, they have banned the procedure. After giving Congress the respectful consideration it is always due, I find and conclude that the ban is unreasonable and not supported by substantial evidence. In truth, “partial-birth abortions,” which are medically known as “intact D & E” or “D & X” procedures, are sometimes necessary to preserve the health of a woman seeking an abortion. While the procedure is infrequently used as a relative matter, when it is needed, the health of women frequently hangs in the balance. Four examples, out of many, illustrate this point: * During the 17th week of gestation, before many physicians are comfortable inducing fetal death by injection prior to beginning a surgical abortion, one of Mr. Ashcroft’s expert witnesses conceded that it would be consistent with the standard of care at the University of Michigan Medical School, where she practices, to crush the skull of the living fetus when the body was delivered intact outside the cervix and into the vaginal cavity if the skull was trapped by the cervix and the woman was hemorrhaging. (Tr. 1598-1602, Test.Dr. Shadigian.) * Another of Mr. Ashcroft’s expert witnesses, the head of obstetrics and gynecology at Yale, testified on direct examination, and confirmed again on cross-examination, that there are “compelling enough arguments as to [the banned technique’s] safety, that I certainly would not want to prohibit its use in my institution.” (Tr. 1706 & 1763, Test. Dr. Lockwood.) * Another physician, Dr. Phillip D. Dar-ney, the Chief of Obstetrics and Gynecology at San Francisco General Hospital, a major metropolitan hospital that performs 2,000 abortions a year, provided Congress with two very specific examples of abortions at 20 weeks and after (one case presenting with a bleeding placenta previa and clotting disorder and the other with a risk of massive hemorrhage) “in which the ‘intact D & E’ technique was critical to providing optimal eare[,]” and was the “safest technique of pregnancy termination” in those situations. (Ct.’s Ex. 9, Letter to Sen. Feinstein from Dr. Damey, at 100-01.) * Still another doctor, who had served on the committee of physicians designated by the American College of Obstetricians and Gynecologists (ACOG) to look into this issue and who holds certifications in biomedical ethics, obstetrics and gynecology, and gynecologic oncology, Dr. Joanna M. Cain, testified that in the case “of cancer of the placenta often diagnosed in the second trimester,” where “the least amount of instrumentation possible of the uterine wall is desirable[,] ... it is much safer for the woman to have an intact D & X to remove the molar pregnancy.” (Pis.’ Ex. 115, Dep. Dr. Cain, at 177.) Therefore, I declare the “Partial-Birth Abortion Ban Act of 2003” unconstitutional because it does not allow, and instead prohibits, the use of the procedure when necessary to preserve the health of a woman. In addition, I decide that the ban fails as a result of other constitutional imperfections. As a result, I will also permanently enjoin enforcement of the ban. Importantly, however, because the evidence was sparse regarding postviability, I do not decide whether the law is unconstitutional when the fetus is indisputably viable. AN APOLOGY In advance, I apologize for the length of this opinion. I am well aware that appellate judges have plenty to do and that long-winded opinions from district judges are seldom helpful. That admitted, this case is unique. As might be expected, the two-week trial presented numerous live witnesses and hundreds of exhibits. That evidence includes a record developed by Congress over many years. Because the parties have also submitted the testimony and evidence presented in two other similar cases, this record is bloated by that additional information. Lastly, and most importantly, since I decide the constitutionality of an Act of Congress that explicitly found a prior decision of this court to be factually unsound, and that law addresses one of the most contentious issues confronting this nation, respect for our national legislature requires more than the usual attention to detail. Nonetheless, I pity the poor appellate judge who has to slog through this thing. I am truly sorry. TABLE OF CONTENTS An Apology.809 T Fíip+r . .814 A. Background. t-H 00 1. Statement of the Case and the Parties . rH CO 2. The Act. i — l CO 3. The Congressional Findings Set Forth in the Law r-i 00 B. The Congressional Record . C3 C3 CO 1995 House Hearings. 1C 03 CO Martin Haskell, M.D. LO <M CO Pamela Smith, M.D. t-C3 00 J. Courtland Robinson, M.D. C-C3 00 Robert J. White, M.D. CO CM 00 Watson A. Bowes, Jr., M.D. 00 C3 CO James McMahon, M.D. CO <M CO 1995 Senate Hearings . Martin Haskell, M.D. Mary Campbell, M.D. Norig Ellison, M.D. Dru Elaine Carlson, M.D. Nancy G. Romer, M.D. Pamela E. Smith, M.D. Warren Martin Hern, M.D. ..-.’. Fall of 1995 Senate Debate. CO James R. Schreiber, M.D. CO David W. Cromer, M.D. GO Laurence I. Burd, M.D. CO Antonio Scommegna, M.D. CO Donald M. Sherline, M.D. CO Samuel Edwin, M.D. GO L. Laurie Scott, M.D. CO Margaret Nordel, M.D. CO Karen E. Shinn, D.O. CO 1996 House Hearings. Mary Campbell, M.D. William K. Rashbaum, M.D. Herbert C. Jones, M.D. David J. Birnbach, M.D. David H. Chestnut, M.D. Jean A. Wright, M.D. Mitchell Creinin, M.D. 1996 Senate Debate Albert W. Corcoran, M.D. OO CO SO 1997 Joint Hearings. 00 4^ Edward J. Sondik, Ph.D. OO Curtis Cook, M.D. OO 4^ Sheila Lynn Kuzmic, M.D. OO May of 1997 Senate Debate. 00 K David Grimes, M.D. 00 £=*• H C. Everett Koop, M.D. 00 ►£»- M 2002 House Hearings. <M ^ CO Kathi Aultman, M.D. 03 00 American Medical Association (AMA) CO ^ CO American College of Obstetricians and Gynecologists (ACOG) CO Ttf 00 March 10,2003 Senate Debate. 00 4^ 4^ Natalie E. Roche, M.D. and Gerson Weiss, M.D. 00 4^ 4^ March 11, 2003 Senate Debate. 1C 00 Lome A. Phillips, Ph.D. 1C 00 March 13,2003 Senate Debate. 1C oo Felicia H. Stewart, M.D. 1C oo 2003 House Hearings. Mark Neerhof, D.O. Phillip D. Darney, M.D. Daniel J. Wechter, M.D. Watson A. Bowes, Jr., M.D. Steve Calvin, M.D. Nathan Hoeldtke, M.D. Byron C. Calhoun, M.D. T. Murphy Goodwin, M.D. .-.-. Susan E. Rutherford, M.D. Camilla C. Hersh, M.D. Lewis J. Marola, M.D. Vanessa Cullins, M.D. Anne R. Davis, M.D. 2003 House Report. iO oo C. Medical Evidence Presented at Trial . 1. The Procedures. a. Mechanics. i. Plaintiff Dr. Leroy Carhart. ii. Plaintiff Dr. William G. Fitzhugh .. iii. Plaintiff Dr. William H. Knorr .... iv. Plaintiff Dr. Jill L. Vibhakar. v. Dr. Doe. vi. Dr. Stephen T. Chasen. vii. Dr. Fredrik Francois Broekhuizen . viii. Dr. Marilynn Frederiksen. ix. Dr. Mitchell Creinin. x. Dr. Maureen Paul. xi. Dr. Caroline Westhoff. xii. Dr. Cassing Hammond. xiii. Dr. Watson A. Bowes, Jr. xiv. Dr. M. Leroy Sprang. Dr. Curtis Cook. xv. Dr. Elizabeth Shadigian. xvi. Dr. Steven Clark. xvii. Dr. Charles Lockwood. xviii. ACOG. xix. b. Indications and Contraindications. Maternal Indications and Contraindications. i. Fetal Indications.•.. ii. (a) Types of Anomalies . (b) Pathological Testing. (c) Physicians’ Practices in Fetal-Anomaly Cases c. Inducing Fetal Demise. d. Fetal Pain. e. Viability. 2. Comparative Safety and Necessity of Procedures a. Witnesses’ Experience . i. Risk of Abortion Procedures Generally. Dilation. n. D & E by Dismemberment. iii. IntactD&E . iv. Induction. v. vi. Hysterotomy and Hysterectomy. Types of Studies. Studies. McMahon. i. Chasen. ii. Grimes. iii. Autry. iv. Paul.■. V. Elchlal. vi. Drey. vii. Shulman . viii. Abortion Surveillance Statistics . ix. Studies Referenced by Dr. Frederiksen. X. Studies Referenced by Dr. Creinin. xi. Studies Referenced by Dr. Paul. xii. Studies Referenced by Dr. Hammond. xiii. d. Existence of Medical Debate Regarding Safety and Necessity of Abortion Procedures. i. Generally. ii. Medical Ethics. iii. Medical Necessity. iv. Safety . 3. Development of Surgical Techniques. a. Surgical Procedures Generally. b. Teaching of Surgical Procedures. c. Institutional D & X Instruction. 4. The Act’s Effect on the Medical Community. 5. Group Statements Regarding Act. a. ACOG. b. APHA . c. AMWA. 6. Enforcement of the Act. a. The Field Guidance Document. b. Prospective Enforcement. TT T lAOT A. Because it Contains No Health Exception, the Ban Is Unconstitutional... .1004 1. A Statute Restricting a Particular Abortion Method Must Provide an Exception for the Health of the Woman Where Substantial Medical Authority Establishes That Banning That Procedure Could Significantly Endanger the Woman’s Health.1004 2. When Banning “Partial-Birth Abortion,” Congressional Findings That a Health Exception Is Unnecessary Are Not Entitled to Deference When Those Findings Are Unreasonable and Not Supported by Substantial Evidence.1005 3. The Congressional Record Proves That There Is a Substantial Body of Medical Opinion Supporting Use of the Banned Procedure to Preserve the Health of Women and There Is No Contrary “Consensus.”.1008 4. The Congressional Record Contradicts the Main Congressional Findings Regarding the Need for and Safety of the Banned Procedure and Establishes That Use of the Banned Procedure Is Necessary to Preserve the Health of Women under Certain Circumstances. In Particular, “Partial-Birth Abortions” Provide Women with Significant Health Benefits in Certain Circumstances .1009 5. The Trial Record Confirms That There Is a Substantial Body of Medical Opinion Supporting Use of the Banned Procedure to Preserve the Health of Women and There Is No Contrary “Consensus.”.1012 6. The Trial Record Contradicts the Main Congressional Findings Regarding the Need for and Safety of the Banned Procedure and Establishes That Use of the Banned Procedure Is Necessary to Preserve the Health of Women under Certain Circumstances. In Particular, “Partial-Birth Abortions” Provide Women with Significant Health Benefits.1015 a. The Trial Evidence Proves That Congress Erred When it Found the Banned Procedure Poses Serious Risk to the Health of Women.1018 b. The Trial Evidence Proves That Congress Erred When it Found That There Was No Credible Medical Evidence That Partial-Birth Abortions Are Safe or Safer than Other Abortion Procedures and Partial-Birth Abortion Is Never Necessary to Preserve the Health of Women.1024 7.It Is Not Possible in Every Case to Safely Kill the Nonviable Fetus Prior to an Abortion Without Sacrificing the Health of the Woman. In Any Event, Prior to Viability, the Issue of Fetal Pain Is Legally Irrelevant.1027 B. Because the Ban Reaches the D & E Abortion Method Used by Physicians like Dr. Carhart, the Law Is an Undue Burden and Unconstitutional .1030 1. The “Specific Intent” Limiting Construction Makes the Law Inapplicable to Induction Abortions, Treatment of Spontaneous Abortions, and Certain D & E Abortions.1032 2. Despite the “Specific Intent” Limiting Construction, the Law Applies to Certain D & E Abortions.1034 C. If the Government’s “Specific Intent” Construction of the Statute Is Improper, Then the Law Is Unconstitutional Because it Is Too Vague, Otherwise, the Statute Is Not Impermissibly Vague. 1037 1. The “ Specific Intent” Limiting Construction Saves the Statute from Vagueness.1038 2. Alternatively, If the “Specific Intent” Limiting Construction Is Improper, the Ban Is Void for Vagueness.1039 3. On this Record, Words like “Living,” “Overt Act,” “Past the Navel,” “Deliberately and Intentionally,” and “In or Affecting Interstate Commerce” Are Not Impermissibly Vague.1040 D. The Ban’s “Life” Exception Must Be Construed to Mean That a Doctor May Perform a “Partial-Birth Abortion” If “Necessary” in His or Her Own Professional Judgment to Save the Life of the Woman, and When So Construed the Law’s “Life” Exception Is Constitutional.1041 E. Whether Described as “Facial” or Whether Described as “Applied,” the Invalidation of this Abortion-Regulating Statute Does Not Extend to Situations Where the Fetus Is Indisputably Viable. The Ruling Should Also Be Limited in Scope So as Not to Unnecessarily Interfere with the Decisions of Other Courts .1042 1. This Decision Does Not Invalidate the Ban Where the Fetus Is Indisputably Viable.1042 2. My Decision Must Be Tailored to Avoid Conflicts with Other Courts.... 1047 III. Conclusion 1048 Appendix I .Appendix I, Page 1 of 4 Appendix II.Appendix II, Page 1 of 5 Appendix III.Appendix III, Page 1 of 8 Appendix IV. Appendix IV, Page 1 of 10 I. FACTS First, I give the background of this case. Second, I provide a summary of the congressional record regarding information provided by doctors, medical organizations, and statisticians. Third, I describe the medical evidence presented to me at trial. A. BACKGROUND I first give a brief statement of the case and describe the parties. Next I set forth the law banning the procedure. After that, I reproduce the Congressional “Findings” which were published as a part of the law banning “partial-birth abortion.” 1. STATEMENT OF THE CASE AND THE PARTIES This is a challenge by four physicians to a law enacted by Congress in 2003 purporting to ban “partial-birth abortion.” These physicians claim that the law is unconstitutional for four reasons. First, they claim that the law is invalid because it lacks an exception which would permit use of the banned procedure in order to preserve the health of women. Second, the doctors contend that the law bans other types of abortion procedures, not just “partial-birth abortion.” Third, the physicians claim this criminal law is vague. Finally, the plaintiffs contend that the exception permitting a doctor to perform the banned procedure when necessary to preserve the life of the woman is too narrow. Plaintiff LeRoy Carhart, M.D., practices medicine and surgery and performs abortions in Nebraska. While on active duty with the United States Air Force, Dr. Car-hart received his Doctorate of Medicine from Hahnemann Medical College in 1973; completed his internship at Malcolm Grow USAF Hospital at Andrews Air Force Base, Maryland, in 1974; and completed his general surgery residency at Hahne-mann Medical College and Hospital in Philadelphia, Pennsylvania, and Atlantic City Medical Center in Atlantic City, New Jersey, in 1978. Carhart is a retired lieutenant colonel in the United States Air Force who served as Chief of General Surgery, Chief of Emergency Medicine, and Chairman of the Department of Surgery at Offutt Air Force Base in Nebraska from 1978 to 1985. Dr. Carhart was an assistant professor from 1978 to 1986 in the surgery department of the Creighton University School of Medicine and an assistant professor in the University of Nebraska Medical Center Department of Surgery from 1982 to 1997. Since 1985, Dr. Carhart has operated the Bellevue Health and Emergency Center. He began performing abortions in an Omaha, Nebraska, clinic in 1988, and at his Bellevue clinic in 1992. He performs approximately 1,400 abortions each year in Nebraska. Dr. Carhart has never attempted to become certified by a medical specialty board. He is licensed to practice medicine in eight states. (Tr. 582-94, Test. Dr. Carhart; Ex. 111.) Plaintiff William G. Fitzhugh, M.D., M.P.H., has practiced obstetrics and gynecology in Virginia and has served as faculty at the Medical College of Virginia since 1975. Dr. Fitzhugh received his medical degree in 1966 from the Medical College of Virginia in Richmond, Virginia, and completed a “straight medicine” internship at the Indiana University Medical Center in 1967. He then entered active duty with the United States Ah’ Force, during which he finished his obstetrics and gynecology residency in 1972 at the Medical College of Virginia and received a master’s degree in public health from the Johns Hopkins University School of Public Health in 1975. During his military tenure he was a flight surgeon for one year and Assistant Chief of the Obstetrics and Gynecology Department at the Malcolm Grow Medical Center, Andrews Air Force Base, for three years. Dr. Fitzhugh’s practice includes obstetrics and gynecology in Richmond, Virginia, and performing abortions in three Virginia cities. He estimates that he performs 70 first-trimester abortions and 5 to 7 second-trimester abortions per week. He is a fellow of the American College of Obstetrics and Gynecology and a diplómate of the American Board of Obstetrics and Gynecology. (Tr. 203-12, Test. Dr. Fitzhugh; Ex. 92.) Plaintiff William H. Knorr, M.D., is a board-certified obstetrician and gynecologist practicing in New York. He attended medical school from 1975 to 1979 at the Universidad Autonoma de Guadalajara in Mexico, after which he completed an additional year of clinical training at the New York Medical College in order to practice in the United States. Dr. Rnorr’s internship included rotations in surgery, neonatal intensive care, and obstetrics and gynecology at three different New York hospitals. Dr. Knorr is board-certified and is currently licensed to practice medicine in Alabama, South Carolina, and New York. He practices at three privately owned clinics in New York, and he owns an abortion clinic in Savannah, Georgia. Dr. Knorr estimates that he performed between 5,000 and 6,000 abortions in 2003, and 12 to 15 percent of those were second-trimester abortions. (Tr. 495-501, Test. Dr. Knorr; Ex. 98.) Plaintiff Jill L. Vibhakar, M.D., received her medical degree from the University of Iowa College of Medicine in 1995 and was a resident in obstetrics and gynecology at the Beth Israel Medical Center in New York from 1995 to 1999. She was licensed to practice medicine in Iowa in 1999; has served as an assistant professor of clinical obstetrics and gynecology at the University of Iowa College of Medicine since 1999; and was certified by the American Board of Obstetrics and Gynecology in 2002. Dr. Vibhakar is a fellow of the American College of Obstetricians and Gynecologists. (Tr. 306-08, Test. Dr. Vibhakar; Ex. 102.) Fifty to seventy-five percent of Dr. Vi-bhakar’s time is spent doing didactic and clinical teaching at the University of Iowa, with the remainder of her time being spent performing a full range of obstetrical and gynecological services, including treating women with high-risk pregnancies. Dr. Vibhakar sees private obstetrics and gynecology patients at the University of Iowa and has a variety of clinical assignments such as supervising labor and delivery, working in the ambulatory surgical center, performing outpatient procedures, and staffing the Veterans Administration Medical Center Gynecology Clinic. She also practices at the Emma Goldman Clinic, an independent, nonprofit women’s clinic in Iowa City. Dr. Vibhakar estimates that she delivers between 50 and 75 babies per year; performs 1 to 3 abortions per month at the University of Iowa; and performed 264 second-trimester abortions at the Emma Goldman Clinic between 2001 and 2003. (Tr. 308-13, Test. Dr. Vibhakar; Ex. 102.) Defendant John Ashcroft is sued in his official capacity as Attorney General of the United States of America, as are his employees, agents, and successors in office. Defendant Ashcroft is charged with enforcing the challenged provision of the Act. (Filing 29, Suppl. Compl.) 2. THE ACT The Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531, provides as follows: (a)Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a 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. This subsection takes effect 1 day after the enactment. (b) As used in this section— (1) the term “partial-birth abortion” means an abortion in which the person performing the abortion— (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and (2) the term “physician” means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. (c)(1) The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiffs criminal conduct or the plaintiff consented to the abortion. (2)Such relief shall include— (A) money damages for all injuries, psychological and physical, occasioned by the violation of this section; and (B) statutory damages equal to three times the cost of the partial-birth abortion. (d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose 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. (2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place. (e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section. 3. THE CONGRESSIONAL FINDINGS SET FORTH IN THE LAW The Congressional Findings accompanying the Act provide as follows: The Congress finds and declares the following: (1) A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion — an abortion in which a physician deliberately and intentionally vaginally delivers a living, unborn child’s body until either the entire baby’s head is outside the body of the mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered infant, performs this act, and then completes delivery of the dead infant — is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. (2) Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least 27 States banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses. (3) In Stenberg v. Carhart, 530 U.S. 914, 932, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), the United States Supreme Court opined “that significant medical authority supports the proposition that in some circumstances, [partial-birth abortion] would be the safest procedure” for pregnant women who wish to undergo an abortion. Thus, the Court struck down the State of Nebraska’s ban on partial-birth abortion procedures, concluding that it placed an ‘undue burden’ on women seeking abortions because it failed to include an exception for partial-birth abortions deemed necessary to preserve the ‘health’ of the mother. (4) In reaching this conclusion, the Court deferred to the Federal district court’s factual findings that the partial-birth abortion procedure was statistically and medically as safe as, and in many circumstances safer than, alternative abortion procedures. (5) However, substantial evidence presented at the Stenberg trial and overwhelming evidence presented and compiled at extensive congressional hearings, much of which was compiled after the district court hearing in Stenberg, and thus not included in the Stenberg trial record, demonstrates that a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed and is outside the standard of medical care. (6) Despite the dearth of evidence in the Stenberg trial court record supporting the district court’s findings, the United States Court of Appeals for the Eighth Circuit and the Supreme Court refused to set aside the district court’s factual findings because, under the applicable standard of appellate review, they were not “clearly erroneous”. A finding of fact is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”. Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Under this standard, “if the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently”. Id. at 574, 105 S.Ct. 1504. (7) Thus, in Stenberg, the United States Supreme Court was required to accept the very questionable findings issued by the district court judge — the effect of which was to render null and void the reasoned factual findings and policy determinations of the United States Congress and at least 27 State legislatures. (8) However, under well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the “clearly erroneous” standard. Rather, the United States Congress is entitled to reach its own factual findings — findings that the Supreme Court accords great deference— and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence. (9) In Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Supreme Court articulated its highly deferential review of congressional factual findings when it addressed the constitutionality of section 4(e) of the Voting Rights Act of 1965 [42 U.S.C.A. § 1973b(e) ]. Regarding Congress’ factual determination that section 4(e) [42 U.S.C.A. § 1973b(e) ] would assist the Puerto Rican community in “gaining nondiscriminatory treatment in public services,” the Court stated that “[i]t was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations * * *. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) [42 U.S.C.A. § 1973b(e) ] in the application in question in this case.”. Id. at 653, 86 S.Ct. 1717. (10) Katzenbach’s highly deferential review of Congress’ factual conclusions was relied upon by the United States District Court for the District of Columbia when it upheld the “bail-out” provisions of the Voting Rights Act of 1965 (42 U.S.C. § 1973c), stating that “congressional fact finding, to which we are inclined to pay great deference, strengthens the inference that, in those jurisdictions covered by the Act, state actions discriminatory in effect are discriminatory in purpose”. City of Rome, Georgia v. U.S., 472 F.Supp. 221 (D.D.C. 1979) aff'd City of Rome v. U.S., 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). (11)The Court continued its practice of deferring to congressional factual findings in reviewing the constitutionality of the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992 [Pub.L. 102-385, Oct. 5, 1992, 106 Stat. 1460; see Tables for complete classification]. See Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Turner II). At issue in the Turner cases was Congress’ legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be “seriously jeopardized”. The Turner I Court recognized that as an institution, “Congress is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon an issue as complex and dynamic as that presented here”, 512 U.S. at 665-66, 114 S.Ct. 2445. Although the Court recognized that “the deference afforded to legislative findings does ‘not foreclose our independent judgment of the facts bearing on an issue of constitutional law,”’ its “obligation to exercise independent judgment when First Amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace Congress’ factual predictions with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” Id. at 666, 114 S.Ct. 2445. (12) Three years later in Turner II, the Court upheld the ‘must-carry’ provisions based upon Congress’ findings, stating the Court’s “sole obligation is ‘to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.’ ” 520 U.S. at 195, 117 S.Ct. 1174. Citing its ruling in Turner I, the Court reiterated that “[w]e owe Congress’ findings deference in part because the institution ‘is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon’ legislative questions,” id. at 195, 117 S.Ct. 1174, and added “that it ‘owe[d] Congress’ findings an additional measure of deference out of respect for its authority to exercise the legislative power.” Id. at 196, 117 S.Ct. 1174. (13) There exists substantial record evidence upon which Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a ‘health’ exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care. Congress was informed by extensive hearings held during the 104th, 105th, 107th, and 108th Congresses and passed a ban on partial-birth abortion in the 104th, 105th, and 106th Congresses. These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care, and should, therefore, be banned. (14) Pursuant to the testimony received during extensive legislative hearings during the 104th, 105th, 107th, and 108th Congresses, Congress finds and declares that: (A) Partial-birth abortion poses serious risks to the health of a woman undergoing the procedure. Those risks include, among other things: An increase in a woman’s risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid em-bolus, and trauma to the uterus as a result of converting the child to a footling breech position, a procedure which, according to a leading obstetrics textbook, “there are very few, if any, indications for * * * other than for delivery of a second twin”; and a risk of lacerations and secondary hemorrhaging due to the doctor blindly forcing a sharp instrument into the base of the unborn child’s skull while he or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death. (B) There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial-birth abortions in their curriculum. (C) A prominent medical association has concluded that partial-birth abortion is “not an accepted medical practice”, that it has “never been subject to even a minimal amount of the normal medical practice development,” that “the relative advantages and disadvantages of the procedure in specific circumstances remain unknown,” and that “there is no consensus among obstetricians about its use”. The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is “ethically wrong,” and “is never the only appropriate procedure”. (D) Neither the plaintiff in Stenberg v. Carhart, nor the experts who testified on his behalf, have identified a single circumstance during which a partial-birth abortion was necessary to preserve the health of a woman. (E) The physician credited with developing the partial-birth abortion procedure has testified that he has never encountered a situation where a partial-birth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman. (F) A ban on the partial-birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy. (G) In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life. (H) Based upon Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a governmental interest in protecting the life of a child during the delivery process arises by virtue of the fact that during a partial-birth abortion, labor is induced and the birth process has begun. This distinction was recognized in Roe when the Court noted, without comment, that the Texas parturition statute, which prohibited one from killing a child “in a state of being born and before actual birth,” was not under attack. This interest becomes compelling as the child emerges from the maternal body. A child that is completely born is a full, legal person entitled to constitutional protections afforded a “person” under the United States Constitution. Partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a “person”. Thus, the government has a heightened interest in protecting the life of the partially-born child. (I) This, too, has not gone unnoticed in the medical community, where a prominent medical association has recognized that partial-birth abortions are “ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside of the womb”. According to this medical association, the “ ‘partial birth’ gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body”. (J) Partial-birth abortion also confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life. Partial-birth abortion thus appropriates the terminology and techniques used by obstetricians in the delivery of living children — obstetricians who preserve and protect the life of the mother and the child — and instead uses those techniques to end the life of the partially-born child. (K) Thus, by aborting a child in the manner that purposefully seeks to kill the child after he or she has begun the process of birth, partial-birth abortion undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world, in order to destroy a partially-born child. (L) The gruesome and inhumane nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure. (M) The vast majority of babies killed during partial-birth abortions are alive until the end of the procedure. It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain. (N) Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life. Thus, Congress has a compelling interest in acting — indeed it must act — to prohibit this inhumane procedure. (O) For these reasons, Congress finds that partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned. Pub.L. No. 108-105, § 2, Nov. 5, 2003, 117 Stat. 1201. B. THE CONGRESSIONAL RECORD A focused summary of the congressional record is appropriate. By way of an introduction, I state the intended purpose of this summary. Next, I describe the limits of this summary. Lastly, I describe the method I used to prepare the summary. After that, I provide the summary in a narrative and tabular form. The primary aim of the summary is to catalogue the informed and serious medical opinions of physicians providing information to Congress regarding the need for and relative safety of the banned procedure for pregnant women. The overview is not intended to summarize other medical questions (like medical ethics) or the views of other interested persons or groups (like patients and nurses). Nor is the summary intended to address non-medical opinions (like legal arguments or the morality of abortion), even if the person who expressed such a non-medical view was a doctor. To be both frank and critical, the otherwise lengthy record contains remarkably little substantive information from physicians on either side regarding the need for and safety of the banned procedure insofar as the health of pregnant women is concerned. In fact, the record contains only a few statements of physicians who appeared to have extensive and current surgical experience performing abortions. Still further, and very troubling, the number of physicians who actually appeared before Congress and testified on any medical subject (as contrasted with doctors who submitted unsworn letters or statements) was small. In this regard, and excluding anesthesiologists and other physicians who testified primarily about fetal pain, during the several years Congress considered this matter, only seven doctors who dealt primarily with women’s health issues actually appeared before Congress to give live testimony. Two opposed the ban, and five supported it. As we shall see, while the two who opposed the ban had relevant abortion experience, the five who supported it had no such experience. Interestingly, there is a fair amount of medical information from doctors about whether pain medications given to the pregnant woman during the banned procedure cause fetal death, whether fetuses are physiologically capable of receiving the stimuli that would cause a pain response in human beings, and whether human fetuses perceive pain in the same sense that human beings perceive pain. While these fetal-anesthesia questions are not directly pertinent to the case-dispositive legal questions, for the sake of completeness, I have nevertheless included a summary of them. I should also make four things clear regarding this summary. That is: * I did not consider certain portions of the record sufficiently helpful or trustworthy so as to warrant inclusion in the summary. For example, I attempted to avoid cumulative materials, and although I carefully reviewed them, I did not summarize statements or letters from physicians which are conclusory in nature or which state primarily legal or moral views. Nor have I summarized partial transcripts of judicial hearings or trials purporting to describe the views of a doctor unless it appeared that all of the doctor’s testimony on the pertinent subject was included in the congressional record at that spot. In that same vein, and as contrasted with scientific papers or statements clearly subscribed to by a physician, in most cases, and with one exception regarding Dr. Hern, I have not summarized media or third-party accounts inserted into the record purporting to quote or describe the views of a physician. Furthermore, I have summarized only the statements of the two leading national medical associations — that is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) — regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry. I did not summarize the policy views of these or other associations. To be precise, and seeking to avoid a cumulative and redundant description of the record, I have not recounted the views of other national or state medical organizations (like the American Medical Women’s Association or the California Medical Association). For the same reason, I have not recounted the views of affiliates of medical associations (like the state sections of ACOG). Similarly, and also because they were primarily formed to lobby for or against abortion legislation, I have not summarized “form” letters bearing multiple signatures from groups of physicians, such as “Physicians’ Ad Hoc Coalition for the Truth” (which supported the ban) or “Physi-dans for Reproductive Choice and Health” (which opposed the ban). * Redundant statements by the same physicians are generally not summarized more than once even if the physician appeared at, or submitted information to, several different congressional hearings. * Senator Frist, Congressman Weldon, and Congressman Burgess supported the ban and spoke in favor of it in the floor debates. (Def.’s Ex. 517, at S3457-59 (statement of Sen. Frist); Def.’s Ex. 520, at H4918 (statement of Rep. Burgess); Def.’s Ex. 520, at H4938 (statement of Rep. Weldon); Def.’s Ex. 523, at S12947-48 (statement of Sen. Frist).) They were trained as physicians. However, because these men were acting as members of Congress and were properly pursuing their political duties, as contrasted with independent doctors giving their views to Congress on purely medical questions, I will not further summarize the views of these physician-legislators regarding the ban. * Because of the imprecise method Congress uses to index and record information, it is difficult, at best, to locate in this record each pertinent utterance of a physician. For example, and as described more fully later, critical information submitted by one of the doctors who pioneered use of the banned procedure (Dr. McMahon) was not indexed in the pertinent congressional record as being from a physician. Therefore, and although I have spent a great deal of time reviewing the congressional record, I may have overlooked the views of a physician. If so, it was inadvertent. There are seven three-ring notebooks that comprise the bulk of the legislative record. At the beginning of the case, Mr. Ashcroft’s able counsel provided me with these books and represented that they contained most of the congressional record pertinent to this case. Those books have been received in evidence as Court’s Exhibits 4 through 10. Later, during the trial, the parties agreed that I should also consider certain floor debates that had not been included in the notebooks. Those debates appear in Defendant’s Exhibits 502 through 523, which were also received in evidence. Following the trial, and during a period in which I allowed the parties to expand their record, they agreed to admission into evidence of Defendant’s Exhibits 893 through 902, which added indexes and additional floor debates to the trial record. These exhibits (Ct.’s Exs. 4-10, Def.’s Ex. 502-523, and Def.’s Exs. 893-902) form the basis for the summary. Regarding the congressional record which was received in evidence, Appendix I to this opinion gives the exhibit number, a corresponding citation in Bluebook form to the record which comprises the exhibit, and, when available, a Westlaw citation to the record which comprises the exhibit. Thus, the congressional record presented to me can more easily be located by the reader in a library or online by reference to Appendix I. In most instances, the reference to a “page” in the summary pertains to the printed page number of the record (typically, but not always, found on the top of the page) that is summarized. Sometimes, and particularly when a printed page number is not available, a typewritten page number will be referenced. Once again, in order to avoid a cumulative presentation, not every page in the record where a doctor may have expressed some view is referred to in this summary. The “date” reference in the summary pertains to the date of the hearing, debate or the issuance of the report, and not necessarily the date of a doctor’s statement. The “name” reference in the summary pertains to the physician or, infrequently, to a record keeper or to more generalized information. The foregoing explained, I proceed next to the summary. First, I present a narrative summary. In Appendix II to this opinion, I also provide a tabular summary for quick reference. Court’s Exhibit 4; “1995 House Hearings”; Page: 15-21; Date: June 15, 1995; Name: Martin Haskell, M.D. Dr. Haskell performed abortions in an outpatient clinic setting, and he claimed to be one of the first doctors to use a variant of the procedure that the legislation would ban. He did not testify, but a copy of his professional paper entitled “Dilation and Extraction for Late Second Trimester Abortion” presented to the National Abortion Federation Risk Management Seminar on September 13, 1992, was added to the record. There are handwritten notations and underlining on the article that are not from Dr. Haskell. The paper contains a description of the “how, when, where, what, and why” of Dr. Haskell’s procedure. In particular, Dr. Haskell described the procedure, giving the following details: DESCRIPTION OF DILATION AND EXTRACTION METHOD Dilation and extraction takes place over three days. In a nutshell, D & X can be described as follows: Dilation MORE DILATION Real-time ultrasound visualization Version (as needed) Intact extraction Fetal skull decompression Removal Clean-up Recovery Day 1 — Dilation The patient is evaluated with an ultrasound, hemoglobin and Rh. Hadlock scales are used to interpret all ultrasound measurements. In the operating room, the cervix is prepped, anesthetized and dilated to 9-11 mm. Five, six or seven large Dilapan hydroscopic dilators are placed in the cervix. The patient goes home or to a motel overnight. Day 2 — More Dilation The patient returns to the operating room where the previous day’s Dilapan are removed. The cervix is scrubbed and anesthetized. Between 15 and 25 Dilapan are placed in the cervical canal. The patient returns home or to a motel overnight. Day S — The Operation The patient returns to the operating room where the previous day’s Dilapan are removed. The surgical assistant administers 10 IU Pitocin intramuscularly. The cervix is scrubbed, anesthetized and grasped with a tenaculum. The membranes are ruptured, if they are not already. The surgical assistant places an ultrasound probe on the patient’s abdomen and scans the fetus, located the lower extremities. This scan provides the surgeon information about the orientation of the fetus and approximate location of the lower extremities. The tranducer is then held in position over the lower extremities. The surgeon introduces a large grasping forceps, such as a Bierer or Hern, through the vaginal and cervical canals into the corpus of the uterus. Based upon his knowledge of fetal orientation, he moves the tip of the instrument carefully towards the fetal lower extremities. When the instrument appears on the sonogram screen, the surgeon is able to open and close its jaws to firmly and reliably grasp a lower extremity. The surgeon then applies firm traction to the instrument causing a version of the fetus (if necessary) and pulls the extremity into the vagina. By observing the movement of the lower extremity and version of the fetus on the ultrasound screen, the surgeon is assured that his instrument has not inappropriately grasped a maternal structure. With a lower extremity in the vagina, the surgeon uses his fingers to deliver the opposite lower extremity, then the torso, the shoulders and the upper extremities. The skull lodges at the internal cervical os. Usually there is not enough dilation for it to pass through. The fetus is oriented dorsum or spine up. At this point, the right-handed surgeon slides the fingers of the left hand along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down). Next he slides the tip of the middle finger along the spine towards the skull while applying traction to the shoulders and lower extremities. The middle finger lifts and pushes the anterior cervical lip out of the way. While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. Reassessing proper placement of the closed scissors tip and safe elevation of the cervix, the surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient. The surgeon finally removes the placenta with forceps and scrapes the uterine walls with a large Evans and a 14 mm suction curette. The procedure ends. Recovery Patients are observed a minimum of 2 hours following surgery. A pad check and vital signs are performed every 30 minutes. Patients with minimal bleeding after 30 minutes are encouraged to walk about the building or outside between checks. Intravenous fluids, pitocin and antibiotics are available for the exceptional times they are needed. (Id. at 17-19.) Note that Haskell only caused a “version” of the fetus “if necessary.” (Id. at 18.) In other words, if the fetus presented “feet-first” in the uterus, then manipulation of the fetus to a “feet-first” presentation in the uterus was not needed. In that case, and using a single pass into the uterus, the fetal body was pulled “feet first” through the cervix until the skull, which is normally too large to pass, lodges against the interior portion of the cervical canal. In the paper, Haskell stated that he had “performed over 700 of these procedures with a low rate of complications.” (Id. at 15.) Haskell ended his paper by stating: “In conclusion, Dilation and Extraction is an alternative method for achieving late second trimester abortions to 26 weeks. It can be used in the third trimester. Among its advantages are that it is a quick, surgical outpatient method that can be performed on a scheduled basis under local anesthesia. Among its disadvantages are that it requires a high degree of surgical skill, and may not be appropriate for a few patients.” (Id. at 21.) The copied article (at this point in the record) does not contain Dr. Haskell’s footnotes. Court’s Exhibit 4; “1995 House Hearings”; Page: 39-62; Date: June 15, 1995; Name: Pamela Smith, M.D. Dr. Smith did not claim to do abortions. At the time she testified, she was the Director of Medical Education at Mt. Sinai Hospital. She was board-certified in obstetrics and gynecology. She testified as the president-elect of the American Association of Pro-Life Obstetricians and Gynecologists. She stated that the “partial-birth abortion” procedure is like an intentional breech delivery and that type of delivery is dangerous. She also stated that: “Although the defenders of this technique proclaim that it is safe, they have not substantiated these claims.” (Id. at 43.) Dr. Smith concluded: Today, partial-birth abortions are being heralded by some as safer alternatives to D & E. But “advances” in this type of technology do not solve the problem ... they only compound it. In part because of its similarity to obstetrical techniques that are designed to save a baby’s life and not to destroy it, this procedure produces a moral dilemma that is even more acute than that encountered in dismemberment techniques. The baby is literally inches from being declared a legal person by every state in the union. The urgency and seriousness of these matters therefore require appropriate legislative action. (Id. at 44.) Attached to Dr. Smith’s presentation are letters from Watson Bowes, M.D., a fetal and maternal medical health professor (see below for his summary), stating that he believed the fetus is alive at the time the banned procedure is performed and attesting to the accuracy of certain drawings. (Id. at 46-47.) Also attached to Dr. Smith’s presentation is a copy of Chapter 25 from Williams Obstetrics entitled “Techniques for Breech Delivery.” (Id. at 48-62.) The textbook chapter does not pertain to abortion. Court’s Exhibit 4; “1995 House Hearings”; Page: 63-67; Date: June 15, 1995; Name: J. Courtland Robinson, M.D. Dr. Robinson had been performing abortions, including second-trimester abortions, for about 40 years. A former medical missionary in Korea, Dr. Robinson was a full-time faculty member at Johns Hopkins University School of Medicine Department of Gynecology and Obstetrics and held a joint appointment with the Johns Hopkins School of Hygiene and Public Health. Dr. Robinson acknowledged that during a standard D & E abortion, an intact fetus is sometimes removed, but “[i]n no case is pain induced to the fetus.” (Id. at 66.) Dr. Robinson stated that the legislation would ban standard D & E abortions because doctors “would not undertake [such] a surgery if they were legally prohibited from completing it in the safest and most effective way, according to their professional judgment.” (Id. at 66.) The implication of that statement is that sometimes it is necessary to deliver the fetus intact to perform the safest method of abortion. Dr. Robinson concluded that the law would interfere with his obligation to select “the most appropriate surgical technique — using my expertise, developed over years of experience and training, to determine what method is safest .... ” (Id. at 67.) Court’s Exhibit 4; “1995 House Hearings”; Page: 67-71; Date: June 15, 1995; Name: Robert J. White, M.D. Dr. White did not perform abortions. He was an “academic neurosurgeon” and a professor of surgery at the Case Western Reserve University. (Id. at 69.) The doctor was of the opinion that a fetus subjected to the banned procedure at 20 weeks of gestation and beyond is sufficiently advanced in neurostructural organizational development to feel pain. Later in the hearing, an article entitled “Neonatal Pain Management,” authored by Constance S. Houck, M.D. (whose background is not included with the article), was added to the record. (Id. at 81.) As pertinent here, this journal article states that “[tjhere is substantial evidence to show that development of the physiologic mechanisms and pathways for pain perception takes place during late fetal and neonatal life[,]” and that “[cjutaneous sensory perception ... spreads to include all cutaneous and mucous surfaces by the 20th week.” (Id.) Court