Full opinion text
DECISION AND ENTRY GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION (DOC. # 2); DEFENDANTS, EMPLOYEES, AGENTS, SERVANTS PRELIMINARILY ENJOINED FROM ENFORCING ANY PROVISION OF HOUSE BILL 135, PENDING A FINAL DECISION ON THE MERITS; CONFERENCE CALL SET TO DETERMINE FURTHER PROCEDURES TO BE FOLLOWED IN THIS LITIGATION RICE, District Judge. Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of either rational discussion or compromise, as is the ongoing controversy, of which this case is but the latest chapter, over the legality of attempts by the State to regulate abortion — the act of voluntarily terminating a pregnancy, prior to full term. Over the course of six days of hearings, this Court has heard testimony from a number of medical practitioners, each expert in the field in which he or she testified. This Court believes that, regardless of the personal opinions of these professionals, whether pro-choice or pro-life, each testified, not in accordance with those personal opinions, but rather on the basis of his or her medical opinion. So, too, has this Court endeavored to put aside its personal opinion on the issues herein, in order to render an opinion which it believes is mandated by the present state of the law. This case presents a challenge to the constitutionality of House Bill 135, which was enacted by the Ohio General Assembly on August 16, 1995, and was to have become effective on November 14, 1995. After hearing two days of testimony, this Court granted a ten-day Temporary Restraining Order on November 13, 1995, which was extended for an additional ten days, and was set to expire today, on December 13, 1995. Following four additional days of testimony, the Court now issues a preliminary injunction which enjoins enforcement of the three major portions of the Act: the ban on the use of the Dilation and Extraction (“D & X”) abortion procedure; the ban on the performance of post-viability abortions, and the viability testing requirement. During the effective period of this preliminary injunction, no part of House Bill 135 may be enforced, as there is no part which appears to be either constitutional, or severable, from the remainder of the Act. This Act creates two separate bans, and a separate requirement with regard to post-viability abortions. First, the Act bans the use of the Dilation and Extraction (“D & X”) procedure in all abortions, including those performed before viability. O.R.C. § 2919.15(B). Physicians who are criminally prosecuted or sued civilly for violating this ban may assert, as an affirmative defense, that all other available abortion procedures would pose a greater risk to the health of the pregnant woman. § 2919.15(C); § 2307.51(C). Second, the Act bans all post-viability abortions, except where necessary to prevent the pregnant woman’s death, or to avoid a serious risk of substantial and irreversible impairment to a major bodily function. § 2919.17(A). For purposes of the post-viability ban only, any unborn child of at least 24 weeks is presumed to be viable. § 2919.17(C). Third, the Act also imposes a viability testing requirement before an abortion may be performed after the 22nd week of pregnancy. § 2919.18. Unless a medical emergency exists, any physician intending to perform a post-viability abortion must meet several requirements. The Act creates civil and criminal liability for violations of the D & X ban or the post-viability ban, and criminal liability for violations of the viability testing requirement. Plaintiff Women’s Medical Professional Corporation (“WMPC”) operates climes and provides abortion services in Montgomery, Hamilton, and Summit Counties (Doc. # 1, ¶5). Plaintiff Haskell, a doctor affiliated with Plaintiff WMPC, formerly performed abortions after the 24th week, but no longer does so; he uses the D & X procedure for abortions during the 21st to 24th week of gestation (Id., ¶ 6). On October 27, 1995, Plaintiffs filed this suit for declaratory and injunctive relief from all provisions of the Act, on their own behalf and on behalf of their patients. Plaintiffs allege that this Act imposes an undue burden on the rights of their patients to choose an abortion, and, further, that the Act’s provisions are unconstitutionally vague and fail to give physicians fair warning as to what actions will incur criminal and civil liability. Accordingly, they seek to enjoin the Act as a violation of Plaintiffs’ rights to privacy, liberty, and due process, as guaranteed by the Fourteenth Amendment to the United States Constitution. I. Jurisdiction, Ripeness, Standing, Preliminary Injunction Standard Before addressing the merits of Plaintiffs’ request for a preliminary injunction, this Court must address three issues relating to its jurisdiction over this action. First, because this case involves a challenge to the constitutionality of a state statute under the United States Constitution, federal question jurisdiction is proper under 28 U.S.C. § 1331. Second, even though Plaintiff Haskell has not yet been prosecuted for violating the Act, this case is ripe for decision because a doctor facing criminal penalties for performing abortions may sue for pre-en-forcement review of the relevant statute. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973). Third, Plaintiff Haskell has the necessary standing to raise both his own rights and the rights of his patients. Because Plaintiff Haskell has asserted that he intends to continue performing the D & X procedure after this law takes effect, he is at direct risk of prosecution, and has standing to seek pre-enforcement review of this statute. Doe, 410 U.S. at 188, 93 S.Ct. at 745-46. Given the close relationship between Plaintiff Haskell and his patients, and given the obstacles which prevent pregnant women from challenging this statute, including a desire for privacy and the imminent mootness of their claims, he may also assert third-party standing and raise the rights of his patients. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion) (allowing two doctors to sue for declaratory and injunctive relief from state statute taking away Medicaid funding for abortions), cited with approval in Planned Parenthood Ass’n v. Cincinnati, 822 F.2d 1390, 1396 (6th Cir.1987). It is also noteworthy that in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), an action for declaratory and injunctive relief from a state statute restricting the right to abortion was brought by similar plaintiffs: abortion clinics and a doctor. Based on the foregoing authority, Plaintiff Haskell has standing to bring this action, and to assert both his own rights and the rights of his patients. Although Defendants have argued that the Plaintiff must show that a particular woman will be impacted by the Act in order to have standing to raise her rights, this Court agrees with Plaintiff Haskell’s argument that such a showing is unnecessary. It is sufficient that Plaintiff Haskell has alleged that he-regularly has patients upon whom he performs the procedure, and that he will have such in the future. Plaintiff Haskell also has standing to challenge the provisions of the Act which ban post-viability abortions, codified at O.R.C. § 2919.17, and the viability testing requirement in O.R.C. § 2919.18. Defendants have argued that he lacks standing to challenge these provisions, because he only performs the D & X procedure up through the 24th week of pregnancy (Defendant’s Memorandum in Opposition, Doc. # 11, p. 27, 34). The ban on post-viability abortions, however, imposes a rebuttable presumption of viability at 24 weeks, O.R.C. § 2919.17(C), which will apply to Plaintiff Haskell. If, in certain cases, he is unable to rebut the presumption of viability, the remaining provisions relating to the ban on post-viability abortions will also apply to him. In addition, Plaintiff Haskell will have to satisfy the viability testing requirement for any patients he treats who are in or beyond their twenty-second week of pregnancy. Therefore, Plaintiff Haskell also has standing to challenge these provisions of House Bill 135. Plaintiff WMPC sues on behalf of its physicians who are employed at its various affiliated locations, and on behalf of women who receive medical services, including abortions, at these locations. This Court does not now reach the issue of whether Plaintiff WMPC has standing to bring this action, due to an inadequately developed factual record. This issue need not be reached at this time, because Plaintiffs Haskell’s standing is sufficient to allow this action to go forward. Accordingly, the remainder of this opinion will use “Plaintiff’ in the singular, in reference to Plaintiff Haskell. This Court now turns to the merits of Plaintiffs Motion for a Preliminary Injunction. When considering whether a preliminary injunction is proper, this Court must consider four factors: (1) the substantial likelihood of the Plaintiffs success on the merits; (2) whether the injunction will save the Plaintiffs patients from irreparable injury; (3) whether the injunction would harm others; and (4) whether the public interest would be served by issuance of the injunction. International Longshoremen’s Ass’n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir.1991), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 38 (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985)). This Court need not conclude that all four factors support its decision. Chrysler Corp. v. Franklin Mint Corp., 1994 WL 378144, at * 2, 1994 U.S.App. LEXIS 18389, at *4 (6th Cir.1994). Rather than being “rigid and unbending requirements” that must be satisfied, these factors are intended to guide this Court’s discretion in balancing the equities. In re Eagle-Picher Industries, Inc., 963 F.2d 855, 859 (6th Cir.1992). For example, the degree of likelihood-of success which is required to issue a preliminary injunction may vary according to the strength of the other factors. In re DeLorean Motor Co., 755 F.2d at 1229. This Court must make specific findings as to each of these factors, unless fewer are dispositive of the issue. International Longshoremen’s Ass’n, 927 F.2d at 903. II. Plaintiff’s Substantial Likelihood of Success on the Merits Plaintiff has asserted a number of arguments attacking the constitutionality of the D & X ban, the post-viability ban, and the viability testing requirement. Many of these arguments can be divided into two categories: first, those that assert that the Act either imposes an undue burden on a woman’s right to an abortion, or jeopardizes the pregnant woman’s health, and is thus unconstitutional under Casey; second, those that assert that the Act is unconstitutionally vague. Before addressing these arguments, this Court will briefly set forth the relevant law to be applied to each of these categories. This Court will then consider each of the three challenged statutory provisions in turn. A. Standards for Challenging Abortion Regulations 1. The Substantive Law In Planned Parenthood v. Casey, a plurality of the Supreme Court held that viability marks the point at which the State’s interest in protecting the potential life of the fetus outweighs the pregnant woman’s liberty interest in having an abortion, subject only to a medical determination that her own life or health is at risk. 505 U.S. at 868-70, 874-77, 112 S.Ct. at 2816-17, 2819-2821. Before viability, states may not enact regulations which have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.... ” 505 U.S. at 877, 112 S.Ct. at 2820. Such regulations constitute an “undue burden” on a pregnant woman’s right to have an abortion, and are an unconstitutional violation of her liberty interest, as guaranteed by the Fourteenth Amendment to the United States Constitution. Id. at 874-75, 112 S.Ct. at 2819. After viability, however, the State may regulate and proscribe abortions “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 879, 112 S.Ct. at 2821; Therefore, whereas regulations which affect pre-viability abortions are subject to an undue burden analysis, regulations which apply only to post-viability abortions are presumptively valid, unless they have an adverse impact on the life or health of the pregnant woman. It has been suggested that “strict scrutiny” should be applied to the medical necessity exception to the ban on post-viability abortions, codified at O.R.C. § 2919.17(A)(1). In the opinion of this Court, a strict scrutiny approach would be improper in this specific situation, because it might allow a state, in some circumstances, to proscribe a post-viability abortion even where such an abortion is necessary to preserve the life or health of the mother. For example, in a situation where the mother is terminally ill, and is only expected to five for a maximum of six months following the post-viability abortion that saves her life, a state might attempt to argue that its interest in the fetus’s life was actually more compelling than the mother’s compelling interest in her own life, and that this interest should allow it to forbid an abortion in that circumstance. This would force courts to decide when, and under what circumstances, an unborn child’s life becomes more important, and more worthy of protection, than the life of its mother. In the opinion of this Court, this inquiry is beyond the realm of legal jurisprudence, and must be left to the discretion of the individuals involved. Neither the legislature, nor the courts, has either the legal or the moral authority to balance the interests and the lives involved, and to make this decision. Therefore, this Court holds that although a state may ban most abortions subsequent to viability, it may not take away a pregnant woman’s right, as recognized in Casey, to have a post-viability abortion which is necessary to preserve her life or health. A strict scrutiny analysis could have the effect of narrowing this exception, and should not be applied. Instead, any regulation which impinges upon or narrows this exception, must be declared to be unconstitutional. 2. Standard for Reviewing Facial Challenges to Abortion Regulations There is some dispute as to the proper showing which Plaintiff must make in order to succeed in bringing this facial challenge. Before the Supreme Court’s decision in Casey, a plaintiff bringing a facial challenge to a statute imposing restrictions on abortion faced the difficult burden of establishing “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), fal lowed, by Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991) (applying Salerno to facial challenge to regulations prohibiting facilities which receive federal funds from counseling, referring, or advocating abortion as a method of family planning); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 2980-81, 111 L.Ed.2d 405 (1990) (applying Salerno to facial challenge to judicial bypass procedure for minors seeking abortions); cited in Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410 (1989) (O’Con-nor, J., concurring) (applying Salerno to facial challenge to state law prohibiting use of public facilities to perform abortions except where necessary to save the mother’s life). In Casey, however, the plurality employed a more relaxed standard in striking down the Pennsylvania spousal notification provision: the law was held to be invalid because “in a large fraction of the cases in which [it] 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. at 2830. Moreover, when examining the informed consent provision, the plurality specifically examined the record, and the facts contained therein, which related to the application of the challenged provision to specific persons and in specific circumstances. Id. at 885-98, 112 S.Ct. at 2825-31. This appeared to signal a new approach to evaluating facial challenges to pre-viability abortion regulations. Since Casey, a split has developed among the Circuits as to whether the Casey approach has replaced the Salerno standard. The Third and Eighth Circuits, joined by district courts in the Seventh (Indiana) and Tenth Circuits (Utah), have concluded that Casey did replace Salerno. Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458 (8th Cir.1995) (“we choose to follow what the Supreme Court actually did ... and apply the undue burden test”); Casey v. Planned Parenthood, 14 F.3d 848, 863 n. 21 (3rd Cir.1994) (“the Court has ... set a new standard for facial challenges to pre-viability abortion laws”); A Woman’s Choice-East Side Women’s Clinic v. Newman, 904 F.Supp. 1434, 1448 (S.D.Ind.1995) (memorandum opinion on motion for preliminary injunction) (“this court believes that Casey effectively displaced Salerno’s application to abortion laws”); Utah Women’s Clinic v. Leavitt, 844 F.Supp. 1482, 1489 (D.Utah 1994) (“to bring a facial challenge in good faith, one must reasonably believe that the statute is incapable of being applied constitutionally in a large fraction of the cases in which it is relevant.”). The Fifth Circuit has disagreed, and continues to apply the Salerno standard when evaluating restrictions on abortion. Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992) (“we do not interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes”). The Supreme Court, itself, appears to be split on this issue. Compare Fargo Women’ Health Org. v. Schafer, 507 U.S. 1013, 113 S.Ct. 1668, 123 L.Ed.2d 285 (1993) (O’Con-nor, concurring with denial of application for stay and injunction) (stating that the Casey approach should be followed by lower courts), with Ada v. Guam Society of Obstetricians and Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, dissenting from denial of petition for writ of certiorari) (stating that Court did not change the Salerno standard in Casey). Not surprisingly, whereas Plaintiff has urged this Court to adopt the Casey approach, Defendants have vigorously argued that the Salerno standard should be employed. Because the Sixth Circuit is silent on the issue of whether Salerno should apply to pre-viability abortion regulations, it is a matter of first impression in this Circuit. This Court concludes that for purposes of evaluating the ban on the D & X procedure, which is used in the weeks preceding viability, this Court will follow the approach actually undertaken in Casey, and employed by courts in the Third, Seventh, Eighth, and Tenth Circuits, and ask whether, “in a large fraction of the cases in which [the ban] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” This Court makes this decision for two reasons. First, because Casey did not require that every married woman be subject to physical abuse in striking down the spousal notification requirement, the plaintiffs in that case did not have to show that “no set of circumstances exist under which the law would be invalid” in order to successfully challenge it. Second, it seems that it would be impossible, as a practical matter, to evaluate whether a regulation will create an undue burden on the right to an abortion, without examining specific facts in the record, and evaluating the likely impact that a regulation will have on the specific group of women who are affected by it. For these reasons, this Court declines to apply Salerno to the challenged pre-viability regulations in this case. Although this Court has concluded that it will not apply Salerno to the previability regulations in House Bill 135, the issue of whether Salerno should apply to the post-viability regulations in House Bill 135 is a separate issue. For purposes of evaluating the ban on post-viability abortions, therefore, this Court must likewise consider whether it is bound to apply the more restrictive Salerno standard. Whether the Salerno standard for facial challenges should apply to post-viability regulations appears to be an issue of first impression before this, or any, Court. Casey is not dispositive, because the approach in that case is specifically designed to evaluate whether a law restricting access to pre-via-bility abortions would impose an “undue burden” on a large fraction of the relevant population; it does not evaluate whether a law restricting access to post-viability abortions is invalid simply because it may jeopardize the life or health of a few (or many) pregnant women who need such an abortion. Indeed, none of the cases cited above which followed the new Casey approach involved restrictions on post-viability abortions. Thus, this appears to be an issue of first impression in this, or any, Court. After, careful consideration of the interests involved, this Court concludes that the Salerno requirement that the plaintiff must show that “no set of circumstances exists under which the law would be valid,” should not apply to facial challenges to post-viability abortion regulations which may unconstitutionally threaten the life or health of even a few pregnant women. The Court so holds for three reasons. First, the cases which have applied Salerno have not involved laws which threaten to inflict, unconstitutionally, such severe and irreparable harm. Second, because the Supreme Court signalled in Casey that an unconstitutional infringement of the liberty interests of some, but not all, pregnant women, is sufficient to justify application of a lesser standard where a pre-viability abortion is concerned, there is no reason why the Court would not similarly apply a lesser standard where a law threatens to deprive some, but not all, pregnant women of their greater constitutional interest in their own life and health. Finally, and most importantly, it would be unconscionable to hold that a pregnant woman — or her estate — may not challenge a post-viability regulation until after she is unconstitutionally deprived of her life or health. Therefore, this Court will allow Plaintiff to facially challenge this post-viability ban, even though he has not shown that “no set of circumstances” exists under which the ban would be valid. B. Standard for Vagueness Challenges In addition to arguing that this Act is unconstitutional under Casey, Plaintiff argues that the Act is unconstitutionally vague. When determining whether a statute or regulation is sufficiently vague so as to violate due process, there are several relevant considerations. A statute or regulation may be vague if it fails to give fair warning as to what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly”), cited in Fleming v. United States Dept. of Agriculture, 713 F.2d 179, 184 (6th Cir.1983). A statute or regulation may also be vague if it is subject to arbitrary and discriminatory enforcement, due to a failure to provide explicit standards for those who apply the law. Id. Finally, the lack of a mens rea requirement in a statute which imposes criminal liability may indicate that the statute is unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979) (“Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than ‘a trap for those who act in good faith.’ ”). A vague law is especially problematic in two situations. First, its potential to cause citizens to “‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked,” Id. (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322-23, 12 L.Ed.2d 377 (1964)), is of particular concern where the exercise of constitutionally protected rights may be inhibited or “chilled.” Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (applying to the right to an abortion); Baggett, 377 U.S. at 372, 84 S.Ct. at 1322-23 (applying to First Amendment rights). Second, a vague law which provides for criminal penalties is troubling because of the severe consequences which may result from violating the law. Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). When determining whether a law is void for vagueness, this Court must examine the challenged law in light of all of the above considerations. This Court now turns to Plaintiffs arguments challenging the constitutionality of the D & X ban, the post-viability ban, and the viability testing requirement, for purposes of gauging whether the likelihood of Plaintiffs success on the merits of these arguments is substantial. C. Ban on Use of the D & X Procedure 1. Vagueness of the Definition of D & X House Bill 135 bans the performance or attempted performance of any abortion, pre-viability or post-viability, by use of the Dilation and Extraction (“D & X”) procedure, which is defined as follows: [T]he termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. ‘Dilation and extraction procedure’ does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion. O.R.C. § 2919.15(A). Plaintiff argues that this definition is unconstitutionally vague, because it does not adequately distinguish the D & X procedure from a different procedure known as the Dilation and Evacuation (“D & E”) procedure. Plaintiff further argues that this vagueness will chill physicians from performing abortions by use of the D & E method, which is the most common method used in the early to mid-second trimester. Defendants dispute this, arguing that the definition does not include or describe the D & E procedure, and so is not vague; further, Defendants argue that the D & E procedure is included in the definition of suction curettage, and so is excepted from the ban. In order to address this vagueness argument, it is necessary to define and describe the various methods of abortion, based on the testimony in this ease. When the procedures are described in detail, it becomes apparent that the statutory definition of the Dilation and Extraction procedure could be construed to include the more widespread Dilation and Evacuation (“D & E”) procedure. It also becomes apparent that the D & E method is not included in any definition of suction curettage: although a D & E procedure does include suction curettage, it also includes additional steps, such as dismemberment, and additional instruments, such as forceps. Furthermore, suction curettage is a first-trimester procedure, whereas D & E is a second-trimester procedure. Accordingly, Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of a D & X procedure is unconstitutionally vague. a. suction curettage!aspiration Suction curettage and suction aspiration (also known as vacuum aspiration) are common methods of first-trimester abortions, and the terms are used interchangeably (Tr., 12/6, at 13, 115). In a suction curettage procedure, the doctor mechanically dilates the opening to the uterus by the use of metal rods, inserts a vacuum apparatus into the uterus, and removes the products of conception by the use of negative suction (Tr., 12/5, at 33). There is no need to dilate the patient’s cervix in the days before the procedure is performed (Id.). Suction curettage/aspiration can sometimes be performed up to the 15th week of pregnancy, but is typically a first-trimester procedure (Id.). Approximately ninety-five percent of the abortions which are performed in this country are performed during the first fifteen weeks of pregnancy (Tr., 12/6, at 13). b. Dilation & Evaluation (D & E) In the second trimester, the fetus becomes too large to remove by use of suction curettage (Tr., 12/5, at 33-34). At that point, the most common abortion method is a Dilation and Evacuation (D & E) procedure; indeed, it is the only procedure which can be used from the thirteenth to sixteenth weeks of pregnancy (Tr., 11/8, at 51). Instead of using metal rods to dilate the cervix over a short period of time, the doctor inserts laminaria into the cervix during the one-to-two day period prior to the procedure, in order to slowly dilate the cervix. Then, a suction curette with a larger diameter is placed through the cervix, and the doctor removes some, or all, of the fetal tissue. Frequently, however, the torso and the head cannot be removed in this manner (Tr., 12/5, at 35). The procedure typically results, therefore, in a dismemberment of the fetus, beginning with the extremities. This dismemberment is accomplished both by use of the suction curettage, and by the use of forceps (Id.). Removing the head of the fetus from the uterus is typically the most difficult part of the D & E procedure, in part because the head is often too large to fit through the partially dilated cervix. It is important to remove the head as quickly as possible, because fetal neurologic tissue can negatively affect the mother’s ability to clot, and lead to greater bleeding (Tr., 12/6, at 32). Physicians have developed different methods of decompressing the head, in order to remove it. Dr. Anthony Levatino testified that when he performed D & E abortions, he preferred to grasp the fetal head with a clamp, crush it, and remove it in pieces along with the skull contents (Tr., 12/7, at 190). Because he decompressed the skull by crushing it, he found it unnecessary to decompress the skull by purposely inserting a suction device into the skull and removing some of its contents (Id. at 192). Dr. Paula Hillard testified that when the skull is too large to remove intact, she grasps the skull and suctions out its contents with a cannula — which may enter the skull — in order to decompress it and facilitate its removal (Tr., 11/8, at 77). She has never performed the procedure utilized by Dr. Haskell (Id. at 49). Dr. Doe Number One testified that because the use of forceps can cause trauma to the mother’s uterus, his preference is to collapse the head by the use of suction, prior to its removal. By making a small incision at the base of the skull and inserting a suction device into the brain — while the head is still within the uterus, and no longer attached to the body — he can collapse the head and easily remove it, without the use of forceps (Tr., 12/5, at 43). This method decreases injury to the cervix and uterus, and reduces operating room time, blood loss, and anesthesia time (Id. at 44). Dr. Doe describes his procedure as a D & E, and collapses the head by the use of suction even in procedures performed from 15 to 18 weeks. Although he does not always collapse the head in this fashion, Dr. Doe Number One testified that the two procedures — D & E with collapse, and D & E without collapse — are on a continuum (Id. at 72). He has never performed the procedure utilized by Dr. Haskell (Id. at 84). Dr. Mary Campbell has not performed second-trimester abortions, but has read about and observed various second-trimester methods, in preparation for setting up a second-trimester practice at her clinic. In describing the D & E procedure, she testified that the fetal skull is generally not intact following dismemberment of the body — the jaw is often removed with the neck — and “the edges of the fetal skull are sharp enough to lacerate the maternal uterine [blood] vessels ...” (Tr., 12/6, at 35). The goal is therefore to place the suction cannula into the skull in order to remove its contents and make it smaller, thereby allowing it to be removed intact, in order to minimize lacerations (Id. at 33). In addition, removing the head intact is advantageous because it ensures that no parts of the skull are left behind in the woman’s uterus (Id. at 35). Dr. Harlan Giles, who performs D & E abortions up to the twentieth week of pregnancy, testified that he had never seen an instance in which the fetal head was too large to be removed without being crushed or somehow decompressed, but he admitted that such an occurrence was possible (Tr., 11/13, at 269-70; Tr., 12/8, at 41). The D & E procedure appears to be preferable to other available procedures before the twentieth week; at thirteen to sixteen weeks, it is the only available procedure. The main alternative to a D & E procedure after sixteen weeks is an induction or instillation method, which involves either the injection of saline, urea, or prostaglandins into the amniotic cavity, or, the insertion of vaginal prostaglandin suppositories. These procedures result in labor, and are further described below. The D & E procedure appears to be less painful for the mother than induction procedures, because it does not require labor, and because the cervix is dilated slowly with laminaria rather than being dilated more forcefully by uterine contractions. In addition, the D & E procedure takes less time, generally between ten and twenty minutes, as opposed to twelve to thirty-six hours. Because the uterus is not under pressure over a long period of time, there is less of a risk of forcing fluids or fetal proteins into the maternal circulation (Tr., 12/6, at 31). Finally, there is a reduced risk of retained products of conception, infection, hemorrhage, and cervical injury (Id. at 39). Although the D & E procedure appears to have a lower rate of complications than other methods of abortion in the early to mid-second trimester, it can be equally risky at later periods, when the fetus is larger. One serious complication of later D & Es is caused by the use of forceps, which results in uterine and cervical injuries, and increased blood loss (Tr., 12/5, at 41). c. Dilation and Extraction (D & X) In this section, the Court will describe Dr. Haskell’s specific method of abortion, which has been described by various parties as either an “intact D & E,” a “brain suction procedure,” or a “Dilation and Extraction” procedure. It is typically used late in the second trimester, from twenty to twenty-four weeks. Plaintiff Haskell described his procedure in a paper presented at the National Abortion Federation Conference in 1992 (Defendant’s Exhibit A). The following description is taken from that paper. On the first and second days of the procedure, Dr. Haskell inserts dilators into the patient’s cervix. On the third day, the dilators are removed and the patient’s membranes are ruptured. Then, with the guidance of ultrasound, Haskell inserts forceps into the uterus, grasps a lower extremity, and pulls it into the vagina. With his fingers, Haskell then delivers the other lower extremity, the torso, shoulders, and the upper extremities. The skull, which is too big to be delivered, lodges in the internal cervical os. Haskell uses his fingers to push the anterior cervical lip out of the way, then presses a pair of scissors against the base of the fetal skull. He then forces the scissors into the base of the skull, spreads them to enlarge the opening, removes the scissors, inserts a suction catheter, and evacuates the skull contents. With the head decompressed, he then removes the fetus completely from the patient. The primary distinction between this D & X procedure and the D & E procedure previously described appears to be that, whereas the D & E procedure results in dismemberment and piece-by-piece removal of the fetus from the uterus — and, possibly, in removal of portions of the skull contents by the use of suction after the skull is crushed with forceps or otherwise invaded, and before the head is placed next to the opening to the uterus — the D & X procedure results in a fetus which is removed basically intact except for portions of the skull contents, which are suctioned out after the head is placed next to the opening to the uterus (and after the rest of the fetus is removed from the uterus), and before the fetus is fully removed from the mother’s body. The hallmark of the D & X procedure, therefore, is that the fetus is removed intact, rather than being dismembered prior to removal, as is done in a D & E procedure. In both procedures, the head usually must be decompressed, either by crushing the skull, or by invading the skull and suctioning out its contents. In the D & X procedure, the suctioning is purposeful; in a D & E procedure, the suction may either be purposeful, or, given the inability to clearly see the fetus, even with ultrasound, and the consequent difficulty of knowing whether the surgical instrument is in, or simply near, the skull, it may be accidental. The testimony indicates that the D & X procedure may be considered to be a variant of the D & E technique. Indeed, doctors who use the procedure may not know which procedure they will perform until they encounter particular surgical variables and circumstances after they begin the procedure to terminate the pregnancy. The doctor may intend to do a D & X in eases where the patient has requested an intact fetus for purposes of genetic testing, or, perhaps, where a patient has a history of Cesarean sections and a uterine scar, and thus is more vulnerable to uterine injury (TV., 12/1, at 89). Based on the testimony of various physicians, this Court further finds that in both the D & E and the D & X procedures, a suction device may be purposely inserted into the skull in order to remove the skull contents, to accomplish the goal of decompressing the fetal head, thereby facilitating its removal from the woman’s body. Because the statutory definition of the prohibited “Dilation and Extraction Procedure” thereby appears to encompass the purportedly allowable D & E procedure as well, Plaintiff has demonstrated a substantial likelihood of success of showing that this definition is unconstitutionally vague, as it does not provide physicians with fair warning as to what conduct is permitted, and as to what conduct will expose them to criminal and civil liability. 2. Constitutionality of Banning the Specific Abortion Procedure at Issue As far as this Court is aware, only one case has considered the propriety of a ban on a specific abortion procedure. In Planned Parenthood of Missouri v. Dan-forth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court struck down a ban on the second-trimester abortion method of saline amniocentisis. The Court reasoned that, because the method was commonly used and was safer than other available methods, it failed to serve the stated purpose of protecting maternal health. The Court concluded that, given that there were no safe, available alternatives to the banned method, the ban was “an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority” of second trimester abortions. Accordingly the ban was held to be unconstitutional. Id. at 75-79, 96 S.Ct. at 2844-46. The reasoning in Danforth suggests that a state may act to prohibit a method of abortion, if there are safe and available alternatives. This reading comports with Casey, which dictates that if a ban on a specific method were to place a substantial obstacle in the path of a woman seeking a pre-viability abortion — for example, if there were no safe and available alternative method of abortion — the ban would be an undue burden and therefore unconstitutional. The issue before this Court, therefore, is whether, in Ohio, there are safe and available alternatives to the D & X procedure, which is typically performed during the twentieth to twenty-fourth weeks of pregnancy, such that there would be no undue burden if the procedure were banned. a. D & E Procedure Due to the larger size of the fetus in the mid to late-second trimester, when the fetus is not necessarily viable, the D & E is no longer the procedure of choice to perform an abortion. Therefore, in considering the safest method of abortion at this stage of pregnancy, this Court will compare the D & X procedure — which is typically performed from the twentieth to the twenty-fourth weeks of pregnancy — to other available procedures. b.Instillation/Induction Procedures The main alternative to the D & X procedure, in the late second trimester, is the use of an induction method of abortion. Induction methods are also known as “instillation” methods. In one type of induction method, the physician injects some substance — typically saline, or a combination of a prostaglan-din and urea — into the amniotic cavity of the woman. In another type, the physician places prostaglandin suppositories into the patient’s vagina. In both cases, the end result is labor: the substances cause the uterus to contract, resulting in the eventual expulsion of the fetus. This labor typically lasts between twelve and twenty-four hours (Tr., 12/6, at 25), but may last as long as thirty-six hours (Id. at 118). The evidence suggests that induction methods were more frequently used in the 1970s, when the D & E procedure was just being developed. Also, induction procedures are more often used by less skilled physicians (Id. at 22). Finally, they must be performed in a hospital environment, and so cannot be done on an outpatient basis. There appear to be two advantages which induction methods have over the D & E procedure: they require less skill to perform, and they do not involve the placement of any sharp instruments into the uterus (Id. at 29). One obvious disadvantage of the induction method is that it results in labor, with all of its potential complications. These may include: fear, lack of control, mild to severe abdominal pain, nausea, and diarrhea, and extreme discomfort, over a lengthy period of time. The substances used, especially saline, may result in mild side effects — vomiting, diarrhea, and high fever — or in severe maternal complications. The fluids which are introduced may be forced into the maternal circulation, leading either to amniotic fluid embolus, which is generally fatal, or to disseminated intravascular coagulation (DIC), in which the clotting factors in the blood are used up, and bleeding cannot be stopped. Induction methods can also thin out the lower uterus to the point that the fetus comes through the uterine wall instead of through the vagina (Tr., 12/6, at 25-26). In addition, induction methods cannot be performed on women who have an active pelvic infection, or who are carrying dead fetuses (Id. at 26), and probably should not be performed on women who had previously had Cesarean sections, given the possibility of rupturing the uterine scar (Id. at 28). Finally, induction methods may be ineffective in cases where the fetus is lying with its head on one side and its feet on the other, because there is no pressure against the cervix (Id. at 27), and the fetus will not be expelled from the uterus. c.Hysterectomy/Hysterotomy Another alternative to the D & X is a hysterotomy, which is essentially a Cesarean section performed before term, although it is potentially more dangerous because the uterus is thicker than it is at the end of term, and the incision causes more bleeding and may make future pregnancies more difficult. A more extreme alternative is a hysterectomy, which removes the uterus completely. Both of these methods entail the risks associated with major surgical procedures, and are rarely used today. d.D & X Procedure Before discussing the apparent benefits and risks of the D & X procedure, it is necessary to address Defendant’s arguments that the procedure has no measurable benefits, for the reason that no peer review journal has published any studies measuring these benefits. The Court acknowledges that if there were a statistical study, published in a peer review journal, which demonstrated the benefits of the D & X procedure, this would make the asserted benefits more credible. Nevertheless, the lack of a study in a peer review journal does not, ipso facto, mean that there are no benefits, or no risks. Indeed, in this situation, there are a number of factors which help to explain the lack of such a statistical study. First, the D & X procedure is relatively new — it apparently was first described in 1992 — and it will take time for other practitioners to begin using and evaluating the procedure. Second, given the security concerns which must be considered by doctors who perform abortions, physicians who use the D & X procedure may be understandably reluctant to publicly acknowledge that they use this procedure, and may be even more reluctant to participate in a study and publish the results. Finally, as was testified to by Dr. Mary Campbell, funding for studies of abortion methods was cut drastically in the early 1980s, and there have been no large-scale abortion studies since that time (Tr., 12/6, at 74, 76). Given these obstacles to performing and publishing statistically valid studies on new abortion methods, this Court is not persuaded that the absence of a study on D & X abortions in the medical literature means that the procedure has no benefits. Dr. George Goler, the Ohio Section Chief of the American College of Obstetricians and Gynecologists, testified that he views Dr. Haskell’s procedure as an improvement over the traditional D & E procedure, because it causes less trauma to the maternal tissues (by avoiding the break up of bones, and the possible laceration caused by their raw edges), less blood loss, and results in an intact fetus that can be studied for genetic reasons (Tr., 12/6, at 126). Dr. Haynes Robinson, a pathologist and geneticist, testified that it is sometimes desirable to obtain an intact fetus in order to confirm the presence of fetal anomalies, and to predict their likely recurrence in future pregnancies (Tr., 12/5, at 118). Although an intact fetus can be obtained following an induction or instillation procedure — and such a method might be preferable where the brain needs to be studied intact — the use of various substances to induce labor can cause autolysis, or the breaking down of tissue, which may make the fetal tissue less useful for such studies (Tr., 12/6, at 34). A further advantage over induction or instillation procedures is that the D & X procedure takes far less time — ten to twenty minutes — than the twelve to thirty-six hours in which a woman must be in labor following an induction or instillation procedure. Plaintiff Haskell testified that, in approximately 1,000 D & E procedures performed after the twentieth week of pregnancy, two patients had serious complications (Tr., 11/8, at 149). In approximately 1,000 D & X procedures performed after the twentieth week of pregnancy, there were no serious complications (Id. at 150-51). Although this is anecdotal, not statistical, evidence, this Court finds that it is both uncontradicted and plausible. Dr. Levatino, who has performed D & E but not D & X abortions, predicted that the D & X procedure would have greater complications than the induction methods, because there is an increased possibility of perforating the patient’s uterus when the abortion is performed in the late second trimester (Tr., 12/7, at 198, 205). This testimony appears, however, to have been based less on his analysis of the specific procedure than on his estimate of the risks of performing late-term D & E abortions, generally. As noted earlier, the D & E procedure can be risky in the late-second trimester, because the fetus is larger and more difficult to dismember, and the use of forceps in the uterus becomes more dangerous. The D & X procedure mitigates this risk by delivering the fetus intact — except for a decompression of the head after it has been placed next to the opening to the uterus — and thus would not appear to bear an increased risk of uterine perforation. Although forceps are still used, their use appears to be minimized. Dr. Giles testified that the procedure is not new, but is rather a resurrection of an obstetric method discarded in the 1960s, which was used to deliver dead fetuses, and known as craniotomy (Tr., 12/8, at 18-23). His criticisms of the D & X procedure on this ground are not persuasive. First, the reason for the abandonment of the craniotomy procedure— which required the use of sharp instruments, and caused uterine lacerations and perforations — does not appear to be relevant to the D & X procedure, which reduces the risk of uterine lacerations (in comparison to the D & E procedure) by delivering all but the head of the fetus intact, which is then decompressed by the use of scissors and suction. Second, unlike the situation in the 1960s, ultrasound can now be utilized to help to avoid injury when sharp instruments are introduced into the uterus. Finally, in regard to the availability of the D & X procedure, it can be performed on an outpatient basis, and does not require hospitalization. Although the procedure requires three separate visits to the clinic, the insertion of laminaria on days one and two takes less than an hour (Tr., 12/5, at 22), and the D & X procedure itself, which is performed on the third day, requires a total time of less than two hours (Id.). At least three doctors in Ohio perform some variation of the D & X procedure: Plaintiff Haskell (Tr., 11/8, at 109-10); Dr. John Doe Number One (Tr., 12/5, at 43); and Dr. John Doe Number Two (Tr., 12/7, at 47-48). e. Conclusion After viewing all of the evidence, and hearing all of the testimony, this Court finds that use of the D & X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D & E procedure, because it is less invasive — that is, it does not require sharp instruments to be inserted into the uterus with the same frequency or extent — and does not pose the same degree of risk of uterine and cervical lacerations, due to the reduced use of forceps in the uterus, and due to the removal of any need to crush the skull and remove it in pieces, which can injure maternal tissue. This Court also finds that the D & X procedure appears to pose less of a risk to maternal health than the use of induction procedures, which require the woman to go through labor, pose additional risks resulting from the injection of fluids into the mother, and cannot be used for every woman needing an abortion. Finally, the Court finds that the D & X procedure appears to pose less of a risk to maternal health than either a hysterotomy or a hysterectomy, both of which are major, traumatic surgeries. Because the D & X procedure appears to have the potential of being a safer procedure than all other available abortion procedures, this Court holds that the Plaintiff has demonstrated a substantial likelihood of success of showing that the state is not constitutionally permitted to ban the procedure. If this abortion procedure, which appears to pose less of a risk to maternal health than any other alternative, were banned, and women were forced to use riskier and more deleterious abortion procedures, the ban could have the effect of placing a substantial obstacle in the path of women seeking pre-viability abortions, which would be an undue burden and thus unconstitutional under Casey. Even if induction procedures were as safe as the D & X procedure — and this Court does not find, on the evidence, that they are as safe — the requirement that a pregnant woman be hospitalized in order to undergo an induction procedure may also have a negative impact on the practical availability of abortions for women seeking pre-viability abortions. First, hospitals may refuse to allow induction procedures on an elective basis, including those situations in which a woman wishes to abort a fetus with severe anomalies. Second, it may be psychologically daunting to undergo the induction procedure in the hospital environment. These practical problems may discourage women in their second trimester from exercising their right of seeking elective, pre-viability abortions, or make it practically impossible to do so, thereby amounting to an undue burden on the right to seek a pre-viability abortion. In contrast, the D & X procedure can be performed on an outpatient basis within a much shorter period of time, and is not limited by either of these practical problems. For both of these reasons — because the D & X procedure appears to be the safest method of terminating a pregnancy in the late second trimester, and because the D & X procedure is more available than induction methods, which require the woman to be hospitalized — this Court holds that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the D & X procedure is -unconstitutional under Dan-forth and Casey. 3. Legitimacy of the State’s Asserted Interest in Banning the D & X Procedure Next, this Court turns to the state’s asserted interest in enacting the ban on the D & X procedure, and to the constitutional legitimacy of that interest. The Ohio General Assembly declared that its intent in banning the D & X procedure was: “to prevent the unnecessary use of a specific procedure used in performing an abortion. This intent is based on a state interest in preventing unnecessary cruelty to the human fetus.” House Bill 135, Sec. 3 (emphasis added). In Casey, the Supreme Court recognized two specific interests which the state has in regulating abortions prior to viability. First, “to promote the State’s profound interest in potential life throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and [these] will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion.” 505 U.S. at 878, 112 S.Ct. at 2821. Second, “the State may enact regulations to further the health or safety of a woman seeking an abortion.” Id. Neither of these interests, however, justify regulations which impose an undue burden on the right to seek a pre-viability abortion. Because Casey only specifically mentioned these two interests, Plaintiff argues that any other interest — such as that of preventing unnecessary cruelty to the fetus during the abortion — is neither proper nor legitimate. Defendants argue that the interest is justified by the “State’s profound interest in potential life throughout pregnancy,” and that it would be contrary to logic and common sense to hold that this interest is not legitimate. The State further argues that if it is permitted to impose regulations which prevent cruelty to animals, then surely, it should be permitted to impose regulations which prevent cruelty to fetuses. Again, this appears to be an issue of first impression before this, or any, Court. To this Court’s knowledge, no abortion regulation has heretofore been justified by an interest in preventing unnecessary cruelty to the fetus. Moreover, this Court has no precedent to directly guide and inform its decision. There are, however, a few observations which help its analysis. First, and foremost, this Court is mindful of Casey’s strong recognition of the State’s interest in potential life throughout the pregnancy. Second, although Casey only specifically delineated a few interests which the state has which justify regulation, nowhere in the opinion did the Court hold that no other state interest could justify regulations on pre-viability abortions. These observations, taken together, suggest that the state may impose regulations which vindicate its interest in the potential life of the fetus, based on interests other than those of persuading the woman to choose childbirth over abortion, or of protecting her health and safety. Finally, the Court agrees with Defendants that it would be contrary to all logic and common sense, to hold that a state has no interest in preventing unnecessary cruelty to fetuses. Assuming arguendo that the interest is legitimate, however, Casey is clear in holding that regulations enacted to further legitimate interests may not impose an undue burden on the right to seek a pre-viability abortion. Because Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on D & X abortions would impose an undue burden on the right, the legitimacy of the state’s interest, no matter how legitimate or compelling, will, in all likelihood, once the merits of this litigation are determined, not save the ban from being unconstitutional. Although the Court need not, at this point, address the testimony concerning the cruelty of the D & X procedure — given that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the procedure is an undue burden and therefore is unconstitutional — it is in the public interest to discuss the issue of cruelty. Therefore, this Court now turns to the relevant testimony. Defendants called two experts to testify to the pain felt by the fetus during the D & X procedure. Dr. Joseph Conomy is a professor of clinical neurology at Case Western Reserve University, and is involved in the issue of medical ethics. He has studied the formation of the nervous system, and has worked on problems of the nervous system in fetuses and newborn infants. In regard to fetal neurology, Dr. Conomy testified that, at the age of twenty to twenty-four weeks, many of the neural pathways which transmit pain to the brain are established, although the cortical projections from the lower level of the brain, the thalamus, are not yet established (Tr., 11/13, at 301). It is his opinion, therefore, that pain can be transmitted to at least the lower levels of the brain at that age {Id. at 302). Dr. Conomy further testified that fetuses at the age of twenty to twenty-four weeks respond to nurturing stimuli, such as stroking the face, and noxious stimuli, such as pricking the skin, in different ways. Nurturing stimuli may cause a turning of the head, or pursing of the lips. Noxious stimuli will cause flexion and withdrawal (Id. at 300-302). In reference to the D & X procedure, Dr. Conomy testified that it is his opinion that the procedure would prompt an unpleasura-ble stimulus to the fetus (Id. at 303). He also testified, however, that it would be “speculative” to try to “get inside the mind of a fetus, if there is one.” (Id. at 301). Indeed, Dr. Conomy specifically refused to testify that a fetus can feel pain: although the fetus does “exhibit a class of responses that are characteristic of reflex response to obnoxious stimulation.... feeling is very much beyond that because it involves perception, designation, locality, and things that are far too speculative for me to assure you that a fetus feels.” (Id. at 305). Thus, although Dr. Conomy testified that a fetus at the age of twenty to twenty-four weeks may physically respond to noxious stimuli, he did not testify that the fetus has a conscious, mindful awareness of the pain it is experiencing. Finally, Dr. Conomy testified that a fetus who is aborted by the D & E procedure, which involves dismemberment, might experience as much discomfort as a fetus who is aborted by the D & X procedure (Id. at 307). Defendants’ second expert was Dr. Robert White, who is a professor of neurosurgery at Case Western Reserve University. He has been the director of a brain research laboratory for thirty years, b