Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. This action calls into question the constitutionality of the Virginia statute, Va.Code Ann. § 18.2-74.2 (the “Act”), which proscribes as criminal so-called “partial birth abortions,” interpreted by the Commonwealth to mean the abortion procedure known as intact dilation and extraction and all potential variants thereof. The Commonwealth defends the Act first by arguing that the procedures which it proscribes are not really abortions, but rather “infanticide” and, on that rationale, argues that the constitutionality of the Act is not to be measured against the decisions of the Supreme Court of the United States which define the constitutional parameters of state abortion laws. See 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). Alternatively, the Commonwealth asks the Court to disregard Roe and Casey by applying them in a fashion that has been rejected by eighteen of the nineteen decisions to have addressed partial birth abortion statutes in other States. As will be seen, these defenses of the Act ignore the fundamental fact that the Supreme Court is the ultimate authority on the interpretation of our Constitution and laws, and thus its decisions control the determination whether a State abortion law is repugnant to the United States Constitution. Under our form of government, all lower federal courts must adhere to the Supreme Court’s controlling decisions. And, that is true even where, as here, the State law touches, on deeply-held ■ moral beliefs or implicates the twin concerns of federalism and comity. Plaintiffs, Virginia physicians, medical clinics, and nonprofit corporations offering reproductive health services and obstetrical and gynecological medical services, including abortions, brought this action against the defendants, the Governor of Virginia and six Commonwealth’s Attorneys, seeking preliminary and permanent injunctive relief and a declaration that the Act offends the Constitution of the United States in several ways. The individual and institutional plaintiffs brought this action on their own behalf and on behalf of their patients seeking abortions. Before the Act took effect on July 1, 1998, the Plaintiffs sought preliminary in-junctive relief, which the Court granted. See Richmond Medical Center for Women v. Gilmore, 11 F.Supp.2d 795 (E.D.Va.1998). A judge of the United States Court of Appeals for the Fourth Circuit stayed the preliminary injunction order pursuant to Fed.R.App.P. 8. See Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir.1998). . A panel of the Court of Appeals then denied, without opinion, the Plaintiffs’ motion to vacate that stay, and the parties subsequently convened for a two-day bench trial on the Act’s constitutional merits. The parties have agreed that the record shall be comprised of the transcript of that hearing and that of the hearing on the preliminary injunction, certain exhibits and affidavits presented at both hearings and certain deposition testimony. Upon review of the complete record and, for the reasons set forth more fully below, the Court finds that the Plaintiffs have standing to maintain this action; that, on the merits, the Act infringes upon the fundamental abortion right recognized in Roe, as reaffirmed and refined in Casey; and, finally, that the Act is impermissibly vague in violation of the Fourteenth Amendment’s Due Process Clause. I. STATEMENT OF FACTS A. THE PARTIES Plaintiff William G. Fitzhugh, M.D., is a physician licensed to practice medicine in Virginia and is board-certified in obstetrics and gynecology. He is the Medical Director of the Plaintiff Richmond Medical Center for Women, and he is an associate professor of obstetrics and gynecology at the Medical College of Virginia, Virginia Commonwealth University, in Richmond, where he instructs residents, medical students, and interns. Dr. Fitzhugh performs abortions as late as twenty weeks of pregnancy, as measured from the first day of the woman’s last menstrual period (“Imp”). He first began providing abortions early in his residency, in 1969, and, he estimates that, since then, he may have performed as many as 100,000 abortion procedures. (P.I.Tr. at 108-09.) Dr. Fitzhugh primarily performs abortions by the medical, suction curettage, and the dilation and evacuation methods, though he is familiar with all commonly employed techniques. Plaintiff Herbert C. Jones, M.D., is a physician licensed to practice medicine in Virginia. Like Dr. Fitzhugh, Dr. Jones is board-certified in obstetrics and gynecology. Dr. Jones maintains a private office in Charlottesville, Virginia, where he performs abortions; he also works as a consultant and Medical Director for the Planned Parenthood of Roanoke, Richmond, and Falls Church, Virginia. In addition, Dr. Jones teaches abortion procedures to residents at the University of Virginia School of Medicine, where he is a Clinical Assistant Professor of Obstetrics and Gynecology. He is the former chief of Obstetrics/Gynecology at, and presently is on the staff of, the Martha Jefferson Hospital in Charlottesville. Dr. Jones estimates that he has performed nearly 30,000 abortions in his career. He presently performs abortions up to twenty weeks Imp, most often using the medical induction, suction curettage, and dilation and evacuation techniques. (P.I.Tr. at 154-55.) The institutional plaintiffs, Richmond Medical Center for Women, Hillcrest Clinic, Ltd., Virginia League for Planned Parenthood, and Planned Parenthood of the Blue Ridge, all provide first-trimester abortions and other reproductive health services and obstetrical and gynecological medical services to women around the Commonwealth. In addition, Plaintiff Hillcrest Clinic refers women seeking abortions after the first trimester to providers in Richmond and locations outside Virginia. Defendant Jim Gilmore is the Governor of Virginia and is responsible for ensuring that the laws of Virginia are faithfully executed. He is sued in his official capacity. The other six defendants are Commonwealth’s Attorneys for the County of Albemarle, the County of Fairfax, the City of Newport News, the City of Norfolk, the City of Richmond, and the County of Roanoke. They are responsible for prosecuting violations of Virginia’s criminal statutes, and they, too, are sued in their official capacity. The Plaintiffs contend that the Act, by virtue of its overly broad language, offends the controlling principles that: (i) a State may not, before fetal viability, constitutionally impose an undue burden on a-woman’s decision to have an abortion; and (ii) that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U.S. at 833, 112 S.Ct. 2791. In addition, Plaintiffs contend that the Act violates the rule in Casey by prohibiting post-viability abortions even when necessary to protect maternal health. Plaintiffs also argue that the Act is, for several reasons, void for vagueness. Finally, the Plaintiffs contend that .the Act runs afoul of the Equal Protection Clause because it discriminates. based on sex without being substantially related to the achievement of an important governmental objective. See United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). B. THE CHALLENGED ACT The Act, which went into effect on July 1, 1998, added certain provisions “relating to partial birth abortions” to Virginia’s extant abortion regulatory statutes. See 1998 Va.Acts ch. 448 & 579. Section 18.2-74.2(A), which is entitled “Partial birth abortion prohibited,” provides that “Mot-withstanding the provisions of §§ 18.2-72, 18.2-73 and 18.2-74, a physician shall not knowingly perform a partial birth abortion that is not necessary to save the life of a mother.” Section 18.2-74.2(D) defines “partial birth abortion” to mean: an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery. A physician who violates Section 18.2-74.2(A) is guilty of a Class I misdemeanor, which is punishable by a maximum term of imprisonment of 1 year, a fine of not more than $2,500, or both. See Va.Code Ann. § 18.2-11 (Michie 1996). A physician convicted of violating the Act also is at risk of forfeiting the privilege of practicing medicine. See id. §§ 54.1-2914 to -2915. Several aspects of the Act are implicated in the Plaintiffs’ challenge and thus must be kept in mind as the analysis of the claims proceeds. First, the Act criminalizes the providing of abortions by reference to whether the fetus is “living,” not whether it is “viable.” And, the Act defines only one circumstance exempt from its partial birth abortion ban: where the procedure is “necessary to save the life of a mother.” Id. § 18.2-74.2(A). Furthermore, although the Act does require as a prerequisite to criminal liability that the physician at all times act “knowingly,” and although it purports to criminalize only conduct that is, at least in part, “deliberate[ ] and intentional ]” (a mens rea previously unknown to the Virginia Code), the Act leaves undefined every constituent term in its definition of “partial birth abortion,” such as the terms “delivers ... into the vagina,” “living fetus,” “substantial portion thereof,” “procedure,” “kills,” and “completes the delivery.” Many, if not all, of these terms have no generally accepted meaning in abortion practice. Indeed, the term “partial birth abortion,” itself has no accepted medical meaning. Rather, it is a term coined by legislators, anti-abortion activists, and the media. The American College of Obstetricians and Gynecologists (“ACOG”) has issued a statement of policy to put some medical form and content to this otherwise medically unrecognized term. To that end, ACOG has equated the term “partial birth abortion” with a medical procedure developed by an Ohio physician, Dr. Martin Haskell, known as “intact dilatation and extraction” and also referred to as “Intact D & X” or just “D & X.” According to the ACOG statement of policy, a D & X contains all four of the following elements performed in the following sequence: 1. Deliberate dilatation of the cervix, usually over a sequence of days; 2. Instrumental conversion of the fetus to a footling breech; 8. Breech extraction of the body excepting the head; and 4. Partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus. (Pis.’ Ex. 2.) According to ACOG, any procedure which does not contain all four of the above elements in sequence is not a D & X because these elements otherwise “are part of established obstetric techniques.” (Id.) Rather than drafting the Act with similar precision, the Virginia General Assembly chose language that, according to the Defendants, was intended to, and would, encompass not only the ACOG and Haskell descriptions, “but variations of the D & X procedure, including those that may be as-yet unidentified and/or ■ uninvented.” (Statement of the Commonwealth on the Construction of Virginia Code Section 18.2-74.2 at 4) (hereinafter “Stmnt.Comm.”). In this endeavor, the Virginia legislature was not acting entirely without guidance because both HB1154 and SB552 — identical bills the adoption of which resulted in the Act — were modeled after the federal Partial Birth Abortion Ban Act of 1997, H.R.1122, 105th Cong. (1997), which defined “partial birth abortion” as “an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” That proposed legislation, in turn, was viewed by its supporters in Congress as an improvement upon its predecessor, the Partial Birth Abortion Ban Act of 1995, H.R. 1833, 104th Cong. (1995), in large part because of a Senate amendment to the 1997 bill that further defined the phrase “vaginally delivers a living fetus before killing the fetus” as meaning “deliberately and intentionally delivers into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician knows will kill the fetus, and kills the fetus.” Id. Senator Rick Santorum, the federal statute’s principal sponsor in the Senate, explained that the purpose of the amendment was “to tighten up the language on what we mean by partial-birth abortion.... We have tightened up the language with mens rea, to use the legal term. That directs the mental state — as to what the doctor was doing when he was delivering the baby for the purpose of a live birth and is not doing an abortion.” 143 Cong.Rec. S4671 (daily ed. May 19, 1997) (statement of Sen. Santo-rum). With this change the federal statute received the endorsement of the American Medical Association (AMA), (Defs.’ Ex. P, Attach. ' C, Letter from P. John Seward, M.D., Executive Vice President, AMA, to the Hon. Rick Santorum, United States Senate (May 19, 1997)), though in lending its support, the AMA’s Board of Trustees did not supplant an earlier statement respecting partial birth abortion legislation: “The AMA recommends that the procedure not be used unless alternative procedures pose materially greater risk to the woman. The physician must, however, retain the discretion to make that judgment, acting within standards of good medical practice and in the best interest of the patient.” (Defs.’ Ex. P, Attach. A, Board of Trustees Report 26, at 15 (1997)) (hereinafter “AMA Report”)., Nor did the final version of the 1997 federal legislation win the endorsement of ACOG — the organization representing physicians who would be impacted most directly — which maintained that: An intact D & X ... may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous. (Pis.’ Ex. 2) (emphasis in original). The Partial Birth Abortion Ban Act of 1997 passed both houses of Congress but ultimately met with demise by way of presidential veto on October 9,1997. Virginia’s General Assembly followed in the footsteps of Congress. The Act now under challenge, though slightly different in structure, is nearly identical in all relevant respects to the 1997 federal statute. In fact, the Governor and the sponsors of Virginia HB1154 and SB552 expressly linked Virginia’s ban of “partial birth abortions” to the federal legislation. Accordingly, the Commonwealth now argues that the federal legislative history, which, on its face, purportedly demonstrates an intent to ban just the D & X procedure and nothing more, is a helpful resource in resolving any ambiguity in the Act. The federal statute, however, was directed only at the D & X procedure. Its legislative history therefore is of marginal utility in assessing the Act, which the Defendants say is considerably broader because it proscribes all present and future variants of the D & X. In any event, it is the record made in this action respecting the various methods of performing abortions (generally and by the Plaintiffs specifically) which controls the assessment of the Act. To that record, this analysis now turns. C. ABORTION METHODS 1. General Abortion Terminology and Practice There are several undisputed facts which are of significance in understanding abortion methods and the issues presented by the Act. First, it is undisputed that the purpose of an abortion is to terminate a pregnancy and that all abortion procedures Mil the fetus. Nor is it disputed that the plaintiff physicians and the employees of the institutional plaintiffs who perform abortions do so with the knowledge and intent that, in terminating the pregnancy, the fetus will be MUed. Also, it is undisputed that, in most medically acceptable methods of abortions, the fetus is removed from the uterus, through the cervical canal and cervical os, into and through the vagina, either intact or in parts. In some methods of abortion performed during the first and second trimester, the fetus is brought from the uterus to the vagina in a syringe or through a cannula. There is no dispute that the term “viability” means “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.” Casey, 505 U.S. at 870, 112 S.Ct. 2791. And, the parties are in agreement that, generally, viability occurs between 23 and 25 weeks Imp. Also, it is agreed that, in medical parlance, sustained cardiac activity over a period of time at a set rate evinces the existence of life in the fetus; that this event occurs usually at ten weeks Imp; and that fetal tissue may be alive in some sense of the word before ten weeks Imp. Thus, the undisputed record is that fetal “life” and fetal “viability” are entirely different states of fetal existence. With these undisputed facts in mind, it is now appropriate to describe the basic methods of abortion. At the preliminary injunction hearing, the most reliable evidence about the methods of abortion came from Dr. Hausknecht, Dr. Jones, and Dr. Fitzhugh, each of whom is: (i) board-certified in obstetrics and gynecology; (ii) a member of ACOG; (iii) a teacher of medicine, including abortion, at respected medical facilities; and (iv) an expert in the area of abortions. Dr. Hausknecht has performed approximately 5,000 abortions and, as previously stated, Drs. Fitzhugh and Jones have performed many tens of thousands of abortions. These three witnesses have more, and more current, experience than the witnesses whose testimony the Defendants presented by affidavit at the preliminary injunction hearing. And, Dr. Kathi Aultman, who testified in person, was not current on the medical aspects of abortion; indeed, she last performed an abortion in 1982. At the subsequent bench trial, the Plaintiffs presented considerably more detailed evidence about abortion practices and methods in testimony given by Dr. Fitz-hugh and Dr. Charles A. deProsse and the videotaped deposition of Dr. Phillip G. Stubblefield. Dr. Fitzhugh testified in greater detail on abortion methods in general and on his practice in particular, and again the Court found his testimony to be fully credible and reliable. Dr. deProsse, a retired faculty member of the University of Iowa College of Medicine, also presented testimony about abortion methods and practices which was thoroughly credible and reliable. Dr. deProsse is a member of ACOG, he is board-certified in obstetrics and gynecology, he has published peer-reviewed articles relating to obstetrics and gynecology, and he estimates having performed more than 20,000 abortions. (Tr. at 112.) Dr. Stubblefield, who also is board-certified in obstetrics and gynecology, is a Professor and Chairman of the Department of Obstetrics and Gynecology at the Boston University School of Medicine, where he supervises and takes part in performing between 1,500 and 2,000 abortions per year. (Pis.’ Ex. 4A at 10.) He is also presently the Chief of Obstetrics and Gynecology at the Boston Medical Center. Dr. Stubblefield’s extensive experience with various abortion methods at gestational ages through twenty-three and one-half weeks Imp, as well as his publication of several articles in peer reviewed journals, many relating to abortion, renders his testimony a particularly helpful and reliable source of evidence. The evidence from the Defendants at the bench trial included the testimony of Dr. Harlan R. Giles, as well as the deposition testimony of Drs. Watson Bowes, Frank H. Boehm, and John Bruchalski. As a general proposition, the record at trial showed that the Defendants’ witnesses were less current, and less experienced, on the topics of abortion and abortion procedures. For those and the following reasons, the Court finds their testimony to be materially less credible and reliable on the key issues of abortion methods, practice and medicine than the testimony offered by the Plaintiffs’ witnesses. Dr. Bruchalski, for example, did not consider himself an expert on abortion by virtue of the fact that he has not performed one since 1988 and, as he candidly admitted, an expert on abortion is “[s]ome-one who performs many of them.” (Defs.’ Ex. L at 17.) And, Drs. Bowes and Boehm, though accomplished physicians and academics, exhibited similar deficiencies in experience, particularly when it came to the dilation and evacuation method of abortion, the mode of abortion directly implicated in assessing the Plaintiffs’ overbreadth challenge to the Act. Only once has Dr. Bowes taken part in a D & E procedure on a living fetus, and that was over two years ago and in a supervisory capacity. (Defs.’ Ex. J-2 at 12.) And, Dr. Boehm personally has performed only one D & E abortion in the past ten years, although that was in July 1998. (Defs.’ Ex. K-2 at 18-20.) The other witness presented by the Defendants, Dr. Giles, has significantly more practical experience in abortion methods than do the Defendants’ other witnesses. Dr. Giles also is a researcher and teacher. He estimates having performed several thousand abortions over a twenty-five year career. However, Dr. Giles performs considerably fewer abortions by the D & E method than other physicians with similar practices because he prefers the induction technique. (Tr. at 324-25, 332, 372, 379). Furthermore, the Court found Dr. Giles to be more focused on the political aspects of the abortion debate than on.the medical questions essential to resolution of the issues presented in this action. And,. Dr. Giles was evasive when responding to questions directed at crucial issues in the case. Hence, the testimony of Dr. Giles was neither credible, reliable nor helpful. Consequently, the following explanation of abortion methods and practices generally, and as practiced by the Plaintiffs, is drawn primarily from the testimony of Dr. Fitzhugh, Dr. Jones, Dr. deProsse, Dr. Hausknecht and Dr. Stubblefield whom the Court, as finder of fact, has determined to have offered the most current, credible and rehable evidence on the topic of abortion methods and practices. And, as to the practices of Dr. Fitzhugh and Dr. Jones, there is no evidence which impeaches, in the slightest, their version of their practice of abortion medicine. 2. Specific Abortion Techniques Resolution of the legal issues presented here requires an understanding of the several abortion methods and the relative safety of each. As presented by the record, the methods are: (1) medical abortion; (2) suction curettage; (3) dilation and evacuation, or D & E; (4) intact dilation and extraction, or D & X; (5) induction, including instillation; and (6) surgical alternatives of hysterectomy or hysterotomy. a. Medical Abortions At the very earliest stage of pregnancy, e.g., 49 to 53 days Imp, Drs. Fitzhugh and Jones use medications to induce abortions in a small percentage of their patients, estimated to be at approximately one percent. The Plaintiffs do not contend that the Act interferes with ■ their ability to provide, or their patients to receive, these types of abortion procedures. b. Suction Curettage The most common method of abortion used through the .first trimester (approximately thirteen weeks Imp) is known as suction curettage or vacuum aspiration. In this procedure, the doctor mechanically dilates the cervix with metal rods until there is enough dilation to insert a plastic tube or cannula. (Pis.’ Ex. 4A at 30-31.) The appropriate degree of dilation depends on how far along the pregnancy is. (id. at 31) Once the dilation is complete, the physician inserts the cannula through the vagina, through the cervix, and into the uterus. (Id.) The end of the cannula is connected by tubing to an electric vacuum pump that creates negative suction. (Id.) The physician rotates the cannula around the uterus, pulling it slightly in and out, so to evacuate the uterine content and remove the embryo or fetus by means of negative suction. (Id.) Upon complete removal of all of the products of conception with the cannula, the physician explores the uterine cavity either with the cannula or a dull curette to check for remaining pregnancy-related tissue. (Tr. at 133.) This final step is performed to prevent infection. (P.I.Tr. at 27.) Generally, the entire procedure is only three to five minutes in duration. (Pis.’ Ex. 4A at 34.) Suction curettage can be used on occasion as late as fifteen weeks Imp. The physician knows at the outset of a suction curettage abortion that the procedure will kill the fetus. (Tr. at 132; P.I.Tr. at 22.) And, the fetus unquestionably is killed during the suction curettage procedure. Application of the vacuum quickly disrupts the fetus and placenta into small pieces in útero, resulting in the products of conception moving piecemeal in a stream through the cannula and plastic tubing. (Pis.’ Ex. 4A at 33.) The removed parts pass into, and through, the vagina by way of the cannula. It is quite likely that, after fetal parts start to become disarticulated and begin to be suctioned out of the uterus and into the vagina during the suction curettage, the portion of the fetus remaining in the uterus is still living (in the sense that it has a heartbeat). (P.I.Tr. at 35-37.) That is because fetal death does not usually follow immediately from disarticulation but, instead, may take a matter of minutes. (Tr. at 131; Pis.’ Ex. 4A at 35.) And, on occasion, the fetus comes out of the uterus entirely intact during a suction curettage procedure. This generally is the product of happenstance, occurring when the physician has misjudged the duration of the pregnancy and used a cannula large in diameter relative to the unexpectedly small fetal size. (Pis.’ Ex. 4A at 34.) Although suction curettage is used through the first trimester, as the pregnancy progresses, the physician must increase the diameter of the cannula to aehieve the intended result and this, in turn, requires greater dilation of the cervix. (Id. at 34, 36.) Also, by approximately thirteen weeks Imp, the fetal tissue is stronger and, consequently, suction curettage tends to become less efficacious because it is a slower procedure resulting in greater maternal blood loss and because the fetus is too large to remove by suction alone. For those reasons, starting around twelve weeks Imp, the primary utility of the suction curettage — its speed — generally is considered to be outweighed by the risks of tearing the cervix during dilation and of increased maternal blood loss. (Id. at 36-37.) Therefore, at this stage of gestation, physicians generally combine traditional suction curettage with the use of forceps to remove the products of conception. (Id.) The use of forceps is a defining characteristic of the D & E procedure. (Tr. at 50; Pis.’ Ex. 4A at 36.) c. Dilation & Evacuation (D & E) The second trimester begins at approximately the thirteenth week Imp. Currently, most abortions in the second trimester are accomplished by using the D & E method. D & E is an accepted and widely used method of abortion from about 13 to 20 or 21 weeks Imp. D & E abortions account for approximately ninety-five percent of post-first trimester abortions nationally. Because the pregnancy is further along, a physician performing a D & E ■ must dilate the cervix more widely than is done for suction curettage. This is accomplished by inserting osmotic dilators such as laminaria through the vagina and into the cervical canal. (Tr. at 137-38; Pis.’ Ex. 4A at 39-40.) The dilation process typically lasts several hours, and may go on overnight. (Pis.’ Ex. 4A at 40.) When the cervix is sufficiently dilated and the dilators have been removed, the physician uses suction to rupture the amniotic sac and then uses a combination of forceps and suction to remove the fetus and other products of conception. (Tr. at 138-44; Pis.’ Ex. 4A at 40-41.) Usually, the physician removes the fetus in parts, but sometimes the fetus is removed largely intact. (Tr. at 151-53.) The dismemberment may occur in útero, or it may occur in the vagina. (P.I.Tr. at 51.) When the physician assesses that the uterus is empty, he reinserts the vacuum and checks to be sure no tissue remains in the cavity. (Pis.’ Ex. 4A at 41.) At the start of the D & E procedure, the physician is reasonably certain that the fetus is alive, and he sets out to perform a procedure that he knows will bring about fetal demise. (Tr. at 148, 150.) In fact, during the D & E abortion, the physician knowingly performs a number of distinct acts that the physician knows will cause fetal demise. (Tr. at 152.) These distinguishing features are most pronounced during the later stages of gestation, e.g., 18 to 20 weeks, when the pre-viability D & E procedure no longer is a close variant of the suction curettage method. At that stage of gestation, the initial application of suction removes only amniotic fluid and membranes, perhaps part of the placenta, and, in one-third to about one-half of the cases, the umbilical cord. (Tr. at 51-53, 140-45; Pis.’ Ex. 4A at 44; P.I.Tr. at 160-69.) This alone does not kill the fetus; but, in the 30% to 50% of the cases when the suction brings the cord into the vagina, the physician, acting deliberately and intentionally, will detach the cord, an act that inevitably causes fetal death, albeit not always at the moment of detachment. (Tr. at 52, 140-41, 145.) In any event, at the later stages of gestation, the initial suction is unable to complete the abortion without further instrumentation. The physician, therefore, must then reach into the uterus with forceps and avulse into the vagina, and then out of the body, pieces of the still-living fetus, such as the extremities, parts of the trunk, and the head. (Pis.’ Ex. 4A at 44.) The order in which the physician removes these parts depends on whether the fetus is presenting head first or feet first. (Id. at 45.) More' commonly, at 18-20 weeks Imp, the fetus presents feet first. (Pis.’ Ex. 4A at 45, 47.) Thus, in the usual case, the physician reaches into the uterus with the forceps, grasps either or both extremities, and pulls downwardly. (Pis.’ Ex. 4A at 47.) The overarching goal of that deliberately and intentionally performed act is to bring as much of the fetus as possible into the vagina with one grasp because physicians generally recognize that the risks attendant to D & E, which include, inter alia, the possibility of inserting an instrument in a way that perforates the uterus and the risks of infection, are vastly reduced by avoiding unnecessary passes into the uterus with the forceps and by completing the procedure as expeditiously as possible. (Tr. at 145, 153-55; Pis.’ Ex. 4A at 40, 55, 57; P.I.Tr. at 51.) At times during this process, the physician may remove an intact fetus, and this can require compressing the cranium so that it passes through the dilated cervix. (Tr. at 152; Pis.’ Ex. 4A at 45, 53.) Intact removal of a previable fetus, by definition, kills the fetus. (Pis.’ Ex. 4A at 48.) The act of compressing or crushing the skull to achieve intact delivery also has the effect of causing fetal death, but not immediately. (Tr. at 147.) Physicians know that these circumstances can and do occur not infrequently, and, in the case of an intact fetus, the physician deliberately and intentionally performs these procedures knowing and intending that fetal demise inevitably will ensue. More often it is the case that intact delivery does not occur because of insufficient dilation and/or because part of the fetal body or head becomes lodged against the uterine wall, as a result of which the head or an extremity detaches. (P.I.Tr. at 56.) At the time the part detaches, it is not unusual that the fetal extremities or body may already be outside of the uterus and in the vagina. (Pis.’ Ex. 4A at 48.) And, of course, the physician knows that disarticulation of the fetal leg (or other body part), standing alone, will kill the fetus, although it may take several minutes because (in the case of a disarticulated extremity) the mechanism for causing death is excessive blood loss. (Tr. at 55-56, 58-59, 141, 145, 147; Pis.’ Ex. 4A at 48.) Thus, in this technique, the physician deliberately and intentionally delivers the fetus or a fetal part into the vagina for the purpose of performing one of these acts with the intent to abort the pregnancy, i.e., to kill the fetus. And, death then ensues. At later gestational periods, the D & Es performed by Drs. Jones and Fitzhugh comport \yith these general descriptions, though as is the case with any abortion procedure, every physician uses personal variations in performing the abortion. For example, Dr. Jones starts with suction, and, although he has an express preference for suction procedures, he resorts to forceps early on in a procedure at 18-20 weeks. (P.I.Tr. at 162.) Dr. Fitzhugh also starts with suction, and in approximately one-third of the procedures, he is able to remove the umbilical cord with suction before resorting to forceps. After he brings the umbilical cord into the vagina Dr. Fitzhugh severs it, an act that he knows will inevitably, although not always immediately, result in fetal death. (Tr. at 52-54.) Other times, Dr. Fitzhugh is unable to bring down even the umbilical cord with suction. Then he inserts the forceps and grasps: “[Y]ou pull on whatever part you have, and you’ll either have a part or, in a rare instance, you will have the whole thing.” (Tr. at 54.) Dr. Fitzhugh has removed an intact fetus during a D & E, but most often he grasps a fetal part, such as the umbilical cord or an extremity, pulls it into the vagina, and then avulses it, which he knows will cause fetal demise. (Tr. at 55-57, 59, 64, 89, 107.) Once Dr. Fitzhugh has finished extracting the fetal parts he uses suction to remove whatever tissue or fluid remains in the uterus. (Tr. at 55, 61.) d. Intact Dilation and Extraction (“D &X”) Much of the evidence in this record relates to a method of abortion described earlier as the D & X, a procedure that assumed great prominence in this country by virtue of a presentation made by Dr. Martin Haskell, an Ohio obstetrician, in September 1992. Dr. Haskell was a plaintiff in Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051 (S.D.Ohio 1995), aff'd, 130 F.3d 187 (6th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998), where the district court described the D & X procedure as follows: On the first and second days of the procedure, Dr. Haskell inserts dilators into the patient’s cervix. On the third day, the dilators are removed and the patient’s membranes are ruptured. Then, with the guidance of ultrasound, Haskell inserts forceps into the uterus, grasps a lower extremity, and pulls it into the vagina. With his fingers, Has-kell then delivers the other lower extremity, the torso, shoulders, and the upper extremities. The skull, which is too big to be delivered, lodges in the internal cervical os. Haskell uses his fingers to push the anterior cervical lip out.of the way, then presses a pair of scissors against the base of the fetal skull. He then forces the scissors into the base of the skull, spreads them to enlarge the opening, removes the scissors, inserts a suction catheter, and evacuates the skull contents. With the head decompressed, he then , removes the fetus completely from the patient. Id. at 1066 (footnotes omitted). As mentioned earlier, ACOG described the procedure slightly differently, but generally in the same fashion. (Pis.’ Ex. 2.) The AMA describes essentially the same procedure as an Intact D & X. The Defendants argue that the Act targets “the D & X procedure, including potential variations, thereof.” (Defs.’ Post-Tr.Br. at 10.) As' a general proposition, the D & X is a variation of the common D & E procedure. (AMA Report at 8; P.I.Tr. at 94.) Any or all of the steps that occur during the D & X procedure can occur during a D & E procedure. (Pis.’ Ex. 2; P.I.Tr. at 94.) The D & X has not been the subject of clinical trials or peer-reviewed studies, and it is not taught in medical schools. Consequently, not a great deal is known about its relative safety. There is evidence that the length of dilation required to complete a D & X abortion is dangerous and can result in an “incompetent cervix,” i.e., a cervix that is weakened as a result of excessive dilation with the effect being that future pregnancies may miscarry in the second trimester or deliver prematurely. (Tr. at 358.) There is also evidence, however, that some physicians use the D & X procedure to minimize uterine perforation caused by fetal parts or medical instruments, that the procedure may be helpful to women who for mental health reasons desire an intact fetus, and that the procedure may be particularly helpful where an intact fetus is desirable for diagnostic purposes. (Tr. at 62-63; Pis.’ Ex. 4A at 55, 57, 62, 65; P.I.Tr. at 80.) e. Induction The only routinely performed alternative to D & E after approximately fifteen weeks Imp is the induction abortion which accounts for approximately four percent of post-first trimester abortions nationwide. In this form of abortion, the physician induces labor by using one or a combination of several chemicals. The chemicals are most often introduced by vaginal suppositories or amniocentesis, which involves injecting a variety of substances into the amniotic sack. (Tr. at 331.) Labor lasts anywhere from ten to thirty hours, generally resulting in the delivery of an intact fetus. (Pis’. Ex. 4A at 61.) Dr. Giles testified that, at least in the case of induction achieved by injecting hy-pertonic saline, the injection of the solution itself causes fetal death before delivery. (Tr. at 332.) Other testimony showed, however, that some physicians perform pre-viability inductions in which they know, or have reason to believe, that the fetus is living when it is delivered into the vagina. (Tr. at 134; Pis.’ Ex. 4A at 60.) In those instances, the physicians also know that the fetus will not survive outside the womb because it is too immature. (Tr. at 134; Pis.’ Ex. 4A at 60.) Of course, the induction abortion in fact does kill the fetus; and, the physician knows that fact and intends that result. It is undisputed that, during an induction abortion, complications may arise that necessitate resorting to the D & E method to empty the uterine cavity. In any of these situations, fetal death may occur while the fetus is partially or entirely in the vagina. For example, as Dr. Stubble-field explained: [Y]ou may have hemorrhage, active bleeding, and the solution is to evacuate the uterus, basically do a D & E, not wait for further bleeding. Or sometimes with labor induction abortion infection can develop and get to be quite severe, and again the best treatment is to terminate the pregnancy with the D & E rather than waiting further for the pregnancy to come out on its own. (Pis.’ Ex. 4A at 67.) In other instances, it is necessary to convert an induction abortion to a D & E procedure because the fetal head has become trapped in the cervix after the extremities and torso have passed through the cervix into the vagina. (Tr. at 135, 333.) Upon that infrequent, but not rare, occurrence, one common technique used to complete the abortion entails the use of crushing forceps to decrease the diameter of the fetal skull and facilitate delivery. (Tr. at 136, 334.) Crushing the skull, of course, is an act that the physician knows will kill the fetus, just as it does when performed in the context of a D & E or a D «fe X. (Tr. at 136.) Although induction generally is considered a safe alternative to the D & E, an induction abortion involves different maternal consequences, such as physiological stress, emotional stress, medical complications, and risks similar to labor and delivery at term. (Pis.’ Ex. 4A at 61, 66-67; P.I.Tr. at 130.) The statistical evidence available from the Center for Disease Control (CDC) shows that the D & E method has a lower complication rate than induction and, when measured up to twenty-weeks Imp, a lower maternal mortality rate. (Tr. at 336; Defs.’ Ex. K-2 at 95; AMA Report at 10; P.I.Tr. at 100.) For these reasons, the induction method is not considered appropriate for all women. Cardiovascular disease, for example, is a contraindication for induction. (Pis.’ Ex. 4A at 67.) Conditions like a hysterotomy scar or marked obesity also counsel against the induction method. (Tr. at 155.) And, some physicians elect the D & E method rather than labor induction methods for second-trimester abortions because D & E has a lower mortality rate, it takes less time, it is less expensive, it can be done on an outpatient basis, and it takes less of a psychological toll on women because it does not imitate labor. (AMA Report at 11.) f. Surgical Alternatives: Hysterotomy and Hysterectomy It is also possible to terminate pregnancy by using a hysterotomy or a hysterectomy, both of which are surgical procedures and entail the risks of major surgery. A hysterotomy is a cesarean section accomplished before term; however, it involves even more blood loss and other damage than does a cesarean section because the uterus is thicker than at term. A hysterectomy is the removal of a uterus and, of course, the procedure leaves a woman permanently sterile. Unsurprisingly, these procedures are rarely used as abortion methods largely because of the associated rates of maternal mortality and morbidity which are many times greater than either D & E or induction. The foregoing facts respecting the methods of abortion and their relative safety have been proved by the record evidence. Much of that record is not even in dispute and, on that which is disputed, the Plaintiffs have met their burden. Against these findings, the legal issues will be addressed. II. STANDING A. BASIC PRINCIPLES Article III of the Constitution defines federal judicial power in terms of “[clases” and “[c]ontroversies.” U.S. Const. Art. Ill, § 2. By virtue of that requirement, plaintiffs who invoke federal jurisdiction first must demonstrate their standing — that is, plaintiffs must demonstrate that they are the proper parties to bring a particular matter to a federal court for adjudication. To that end, the Plaintiffs here must establish that: (1) they personally have suffered some actual or threatened injury as a result of the allegedly unconstitutional statute; (2) the actual or threatened injury fairly can be traced to the challenged statute; and (3) the actual or threatened injury is likely to be redressed by a favorable decision by the federal court. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In the context of a pre-enforcement review of newly-enacted and potentially unconstitutional criminal legislation, the focal point of the standing inquiry is the first element; and, in that respect, “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see also Doe v. Duling, 782 F.2d 1202, 1205 (4th Cir.1986). 1. Law of the Case As a threshold matter, the Commonwealth argues that the opinion of Judge Luttig staying this Court’s order of preliminary injunction, see Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir.1998) (the “Stay Opinion”), is the law of the case which bars consideration of the Plaintiffs’ standing. On the basis of a limited record, the Stay Opinion initially observed that the Act cannot reasonably be interpreted to reach either the suction curettage or “conventional” D & E methods of abortion, and, then later held that the Plaintiffs had not established “the likelihood that they will ultimately be held to have standing to pursue their action.” Id. at 332. Apparently applying a truncated version of the Fourth Circuit’s test for the issuance of a stay, see Long v. Robinson, 432 F.2d 977 (4th Cir.1970), the Stay Opinion therefore stayed enforcement of this Court’s preliminary injunction. One month later, a panel, comprised of Judge Luttig, Judge Widener and Judge Murnaghan, voted, over the dissent of Judge Murnaghan, to deny, without opinion, the Plaintiffs’ motion to vacate the stay. The Stay Opinion, issued in that procedural posture and under those circumstances, is not law of the case. That doctrine is “an essentially equitable doctrine of judicial procedure” that applies to legal questions actually or implicitly decided. Sejman v. Warner-Lambert Co., 845 F.2d 66, 68-69 (4th Cir.1988). When a decision of an appellate court establishes “the law of the case,” it “must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal” unless some exception applies. Id. at 69 (quoting EEOC v. International Longshoremen’s Assoc., 623 F.2d 1054 (5th Cir.1980)); see also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“[L]aw of the case is an amorphous concept ... [that] directs a court’s discretion, ... [but] does not limit the tribunal’s power.”). That the law of the case doctrine is ill-suited for application to a stay order issued pursuant to Fed. R.App.P. 8 — even one left in place by a panel on a motion to vacate — is clear. Most circuits to have considered the issue, including the Fourth Circuit, have concluded that decisions rendered by panels on motions, especially on jurisdictional issues, are tentative rulings only and are not the law of the case. See, e.g., Law v. National Collegiate Athletic Ass’n, 134 F.3d 1025, 1028 n. 3 (10th Cir.1998); CNF Constructors, Inc. v. Donohoe Construction Co., 57 F.3d 395, 398 n. 1 (4th Cir.1995); American Federation of Grain Millers, Local 24 v. Cargill Inc., 15 F.3d 726, 727 (7th Cir.1994). Where, as here, it is an inferior court that faces a prior panel ruling on a motion, there may indeed be situations in which that principle is not fully applicable. But, that is not so where the prior determination that is argued to be the “law of the case” involved not a decision on the merits, but rather the more narrow issue of reasonable likelihood of success at one point early in the litigation. See Gilmore, 144 F.3d at 332; cf. United Elec. Radio & Machine Workers v. 163 Pleasant St. Corp., 987 F.2d 39, 47-48 (1st Cir.1993) (district court erred in dismissing case on jurisdictional grounds after previous appellate panel had held that plaintiffs’ initial jurisdictional showing was insufficient to support district court’s preliminary injunction); Daniel v. Underwood, No. 2:98-0495, slip. op. at 8 (S.D.W.Va. Nov. 5, 1998) (noting that the Stay Opinion “was not a decision on the merits of that case; and therefore, the decision is not binding on this Court”). Even if the Stay Opinion qualified as the law of the case, subsequent consideration of the Plaintiffs’ standing in this action is not foreclosed. One exception to that doctrine is when “a subsequent trial produces substantially different evidence”; another is when “the prior decision was clearly erroneous and would work manifest injustice.” Sejman, 845 F.2d at 69 (quoting International Longshoremen’s Assoc., 623 F.2d at 1054). In this case, the Stay Opinion was confined to the record as it existed on June 30, 1998. Citing extensively the decision in Planned Parenthood v. Doyle, 9 F.Supp.2d 1033 (W.D.Wis.1998), a case in which the district court refused to preliminarily enjoin Wisconsin’s “partial birth abortion” statute, and which the Seventh Circuit already had stayed and which it subsequently reversed, see Planned Parenthood v. Doyle, 162 F.3d 463 (7th Cir.1998), the Stay Opinion determined that, on the limited record then available, the Plaintiffs had not established a reasonable likelihood of prevailing on the issue of their standing. See Gilmore, 144 F.3d at 328, 329, 330. It cannot be seriously disputed that the ensuing bench trial presented additional evidence concerning abortion practice both in general and as performed by these Plaintiffs. In particular, the evidence at trial supplemented substantially the preliminary injunction record in showing that some commonly performed D & E abortions are not “conventional D & Es” at all, as that term is used by the Defendants and apparently as it was used in the Stay Opinion. As will be seen, the complete record establishes that the Act applies to D & E procedures. Without doubt, then, the “law of the ease” doctrine cannot be said to preclude consideration of the Plaintiffs’ standing. See Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) (Holmes, J.) (law of the case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power”). 2. The Established Law of Standing: Actual and Threatened Injury The Defendants next argue that the Plaintiffs cannot establish an actual or threatened injury because none of the physicians or clinics perform the D & X procedure. And, it is undisputed that none of the Plaintiffs currently perform the D & X procedure. The Defendants then supplement this standing argument with affidavits from the Commonwealth’s Attorney Defendants, and with the opinions of the Attorney General and the Governor, which are said to prove that the only prosecutions under the Act will be against physicians and hospitals performing the D & X procedure. Of course, at the same time, the Defendants argue that the Act applies to more than the D & X because it covers all variants, present and future, of that procedure. Nonetheless, from these two points of departure, the Defendants assert that there is no aetual or threatened injury because there is no “real and immediate” threat of prosecution, but only a conjectural and speculative fear of prosecution that is insufficient to provide standing in this action. The Defendants’ standing argument fundamentally misapprehends the applicable inquiry and the rather settled precedent on this topic in the Supreme Court’s jurisprudence on standing, particularly in abortion cases. Where, as here, there is a pre-enforcement challenge to a criminal statute on constitutional grounds, two related, injuries must be considered. First, there is the injury inherent in the threat of arrest and prosecution. On that point, the Supreme Court has explained repeatedly that “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional' rights.” Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); see Babbitt, 442 U.S. at 297, 99 S.Ct. 2301; Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d.201 (1973). Second, in limited circumstances, litigants are entitled to predicate injury on the existence of a statute which results in more than a “subjective” chill on the exercise of constitutionally-protected rights, even though not blossoming into an arrest and prosecution. See Meese v. Keene, 481 U.S. 465, 472-73, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987); New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 13 (1st Cir.1996). To be sure, the second type of injury generally has its genesis, and thus is most often considered cognizable, in the First Amendment context, where the “over-breadth” vehicle of constitutional attack is available to a litigant that has demonstrated some first-party “injury.” See, e.g., Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 508, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (White, J., concurring); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, overbreadth analysis also pervades fundamental rights cases involving abortion. Indeed, the decision in Roe v. Wade employed an overbreadth approach. See Ada v. Guam Society of Obstetricians and Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from denial of petition for writ of certiorari) (citing Roe, 410 U.S. at 164, 93 S.Ct. 705). And, in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on other grounds, Casey, 505 U.S. at 833, 112 S.Ct. 2791, the Supreme Court, in describing the constitutional shortcomings in the Pennsylvania statute that imposed various procedural hurdles before women seeking abortions, seemingly applied an overbreadth approach. See id. at 768-69, 106 S.Ct. 2169 (explaining that the Court “consistently has refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities. Pennsylvania’s reporting requirements ... pose an unacceptable danger of deterring the exercise of [abortion] right[s], and must be invalidated”) (citations omitted). Most recently, the Supreme Court in Casey enunciated the “undue burden” test for assessing the constitutionality of an abortion regulation, which asks whether “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” 505 U.S. at 895, 112 S.Ct. 2791. In concluding that some potentially valid applications of an abortion regulation would not save a statute with a significant number of invalid applications, the Casey approach is virtually indistinguishable from the traditional overbreadth inquiry. See Eubanks v. Stengel, 28 F.Supp.2d 1024, 1030 (W.D.Ky.1998); Evans v. Kelley, 977 F.Supp. 1283, 1311-314 (E.D.Mich.1997); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan.L.Rev. 235, 2771-77 (1994). Accordingly, just as standing may be predicated on the tendency that a criminal statute may have to chill constitutionally protected speech, so too does an “actual injury” exist when a plaintiff challenging an abortion regulation demonstrates a chilling effect on his practice, which in turn impacts the fundamental right to choose an abortion before viability without undue interference from the state. Cf. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 427, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (explaining that the abortion right requires that the physician be given room to exercise judgment, “both assisting the woman in the decisionmaking process and implementing her decision should she choose abortion”), overruled in part on other grounds, Casey, 505 U.S. at 882, 112 S.Ct. 2791. Both sorts of injury are, of course, related because both hinge on the existence of a credible threat that the challenged law will be enforced against the plaintiffs. In the context of a pre-enforcement challenge- to a criminal statute, the standard set forth in the Supreme Court’s decision in Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), incorporates and recognizes both types of injury. Babbitt held that, to satisfy Article Ill’s requirement of “injury,” the plaintiff must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,” and that “there exists a credible threat of prosecution thereunder.” Id. at 298, 99 S.Ct. 2301. A credible threat must be both real and immediate, not merely conjectural or hypothetical. See id. at 298, 99 S.Ct. 2301; O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The Supreme Court has emphasized, however, that “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (quoting Pennsylvania v. West Va., 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923)). And, the Court’s decisions teach that the existence of a criminal law aimed specifically at one group of citizens, the enforcement of which has not been disavowed by the state, creates an injury that “is certainly impending” in the form of a fear of prosecution and/or a constitutionally-suspect chilling effect. See, e.g., Virginia v. American Booksellers Assn., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (holding that booksellers had standing to bring a pre-enforcement challenge to a statute making it unlawful to knowingly display sexually explicit material in a manner accessible to juveniles because the law was aimed directly at the booksellers); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (high school science teacher challenging the constitutionality of 1928 criminal law prohibiting the teaching of evolution found to have standing without any record of prosecutions under the law because the teacher was directly affected by the law). These basic principles were applied to assess the standing of.those who provide abortion services in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). There, the Supreme Court held that physicians had standing to challenge a statute regulating abortion “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes.” Id. at 188, 93 S.Ct. 739. The Court explained, with a rationale that applies with equal force here, that: The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Id. Since Doe, the Supreme Court consistently has adhered to this principle and has held time and time again that a cognizable injury presents itself when a physician against whom an abortion statute operates lodges a constitutional attack against its enforcement. See, e.g., Colautti v. Franklin, 439 U.S, 379, 383 n. 3, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 62, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); see also Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). These decisions recognize that, in the parlance of Babbitt, the abortion provider is engaged in conduct “affected with a constitutional interest, but proscribed by a statute,” and, therefore, a statute regulating abortion practice poses “a credible threat of prosecution.” Under this formulation, the Plaintiffs have standing to challenge the Act. All of them perform first trimester abortions, and Drs. Fitzhugh and Jones provide abortions to women well into their second trimester of pregnancy. The record establishes that the Plaintiffs engage in conduct which is “sheathed in a constitutionally-protec