Full opinion text
OPINION AND ORDER SETTING FORTH THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND GRANTING DECLARATORY AND INJUNCTIVE RELIEF ROSEN, District Judge. I. INTRODUCTION This matter is before the Court pursuant to Fed. R. Civ. Pro. 65 following a trial on the merits of Plaintiffs’ Complaint for injunctive and declaratory relief. At issue is Michigan’s “partial birth abortion” statute, Public Act 273, codified at M.C.L. §§ 333.17016, 333.17516, 333.16221(l) and (m), and 333.16226. Plaintiffs request that the Court enjoin the Michigan statute and declare it unconstitutional on the grounds that it (1) is vague and overbroad; (2) imposes an undue burden on a woman’s right to choose to have an abortion; and (3) under applicable Supreme Court precedent, is otherwise constitutionally insufficient. During the course of a three-day bench trial conducted on May 5-7, 1997, the Court heard testimony from nine witnesses, including Plaintiffs Mark I. Evans, M.D. and Dennis D. Christensen, M.D.; Renee Chelian, the administrator of Plaintiffs Northland Family Planning Clinics; Plaintiffs’ experts Carolyn Westoff, M.D., “Dr. Doe”, and Stanley Henshaw, Ph.D.; Defendants’ experts Harlan R. Giles, M.D. and Curtis Cook, M.D.; and court-appointed expert, Timothy R.B. Johnson, M.D., and received into evidence numerous exhibits. The Court also heard oral argument from counsel. The parties subsequently filed Post-Trial Briefs on June 10, 1997, and the Court permitted amicus curiae briefs to be filed by the American College of Obstetricians and Gynecologists (“ACOG”) and the National Right to Life Committee & Right to Life of Michigan, Inc. on June 13 and 25, 1997, respectively. II. ISSUES PRESENTED Plaintiffs have advanced three arguments for invalidating the Michigan “partial birth abortion” statute. First, Plaintiffs argue that the Michigan statute is unconstitutionally vague. Specifically, Plaintiffs contend that the statute does not provide physicians with adequate clear notice of the specific procedure or procedures proscribed by the law. They also contend that the Act is subject to multiple and confusing interpretations and can be read to encompass a number of abortion procedures, including well-established procedures that are commonly used and accepted in the medical community. Plaintiffs further contend that the Act’s ambiguity is compounded by the absence of any intent requirement. Closely related to this vagueness argument is Plaintiffs’ contention that the statute on its face is unconstitutionally overbroad because it sweeps within its proscription substantially all second-trimester pre-viability abortion procedures which, under existing Supreme Court precedent, are protected by the Constitution. Plaintiffs argue that the Act has the purpose and effect of imposing an undue burden on women seeking post-first-trimester abortions in Michigan because it will push women from safer to riskier procedures, violate their right to bodily integrity, and will otherwise delay or wholly thwart their abortions. Third, Plaintiffs argue that the Act’s single exception “to save the life of a pregnant woman” is constitutionally insufficient because it makes no exception for procedures necessary to protect a woman’s health. Defendants counter that the Act simply prohibits only one particular method of abortion and is not so vague that it can be read to include other, permissible methods of abortion. They further dispute Plaintiffs’ contention that the statute lacks an intent requirement and argue that the Act does contain an intent requirement by implication and by reference. Defendants also contend that the Act does not impose an undue burden on the woman’s right to an abortion since other alternative procedures remain available. With respect to Plaintiffs’ argument that the Act is unconstitutional because it does not contain an exception for the health of the mother, Defendants argue that it is not constitutionally insufficient because the exception in the statute — that a physician may perform a partial birth abortion if the physician “reasonably believes that performing the partial birth abortion is necessary to save the life of a pregnant woman whose life is endangered by physical disorder, physical illness or physical injury” — encompasses both life and health. Having heard the testimony of the witnesses and the oral arguments of counsel, and having reviewed and considered the exhibits submitted at trial, as well as the parties’ post-trial briefs and the amicus curiae briefs of the American College of Obstetricians and Gynecologists and the National Right to Life Committee & Right to Life of Michigan, Inc., the Court makes the following findings of fact and conclusions of law. To the extent that any findings of fact constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law constitute findings of fact, they are so adopted. II. FINDINGS OF FACT A. THE PARTIES 1. Plaintiffs (a)Dr. Mark Evans Plaintiff Mark Evans, M.D., is a board-certified obstetrician/gyneeologist and clinical geneticist. He is affiliated with Wayne State University and Hutzel Hospital in Detroit, Michigan where he is a professor and the vice-chair and vice-chief of Obstetrics and Gynecology. He is also responsible for Hutzel Hospital’s prenatal program and serves as the associate director of Wayne State Medical School’s Center for Molecular Medicine and Genetics and head of the Center for Fetal Diagnosis and Therapy. Dr. Evans’ clinical practice in his various capacities includes providing prenatal genetic counseling and diagnostic services. He also provides fetal therapy, including fetal surgery. He testified that, in the course of his practice, he also delivers babies, performing between 50 and 100 deliveries per year. Dr. Evans also performs abortions at Hutzel Hospital. He testified that he performs approximately 50 abortions annually, approximately 95% of which are performed in the second trimester, between 12 and 24 weeks Imp (i.e., since the woman’s last menstrual period). In approximately half of the second-trimester abortions he performs, Dr. Evans uses the induction method; in the other half, he uses the dilation and evacuation (“D & E”) method. (b) Dr. Dennis Christensen Plaintiff Dennis Christensen, M.D. is a board certified obstetrician and gynecologist. He is an assistant clinical professor at the University of Wisconsin where he teaches abortion procedures. Dr. Christensen is also in private practice in Wisconsin and Michigan. His Wisconsin practice is at the Madison Abortion Clinic in Madison, Wisconsin. He practices in Michigan at the Michiana Abortion Clinic in Niles, Michigan. Dr. Christensen testified that, during the course of his career, he has performed over 60,000 abortions, approximately 85% of which have been first trimester abortions. The remaining 15% — approximately 9,000 abortions — were performed in the second trimester. At the Michiana Abortion Clinic, Dr. Christensen performs abortions for patients who are from seven to twenty weeks pregnant. All but a few of the second trimester abortions Dr. Christensen has performed were done by the D & E method. He has used the intact dilatation and extraction (“intact D & E”) procedure “less than a dozen” times over the course of his career. (c) Northland Family Planning Clinics The three Northland Family Planning Clinic Plaintiffs — Northland Family Planning Clinic in Southfield, Michigan; Northland Family Planning Clinic — West in Westland; and Northland Family Planning Clinic — East in Clinton Township — provide pregnancy terminations, pregnancy testing, and family planning services. In 1996, 4,731 abortions were performed at the three clinics. The Southfield clinic does abortions up to 24 weeks Imp. At the clinics in Westland and Clinton Township, abortions are performed through the sixteenth week, only. Of the 4,731 abortions performed at the clinics in 1996, 90% were first trimester abortions. The remaining were second trimester abortions, 8% being performed between 13 and 16 weeks Imp and 2% between 15 and 20 weeks. Although in the past, second trimester abortions were done at the Northland Clinics using induction methods, the conventional D & E method has been the only method used for second trimester abortions at the North-land clinics since 1988. The intact D & E procedure is not used at any of the clinics. 2. Defendants Defendant Frank J. Kelley is the Attorney General of the State of Michigan. He is responsible for enforcement of Michigan’s “partial birth abortion” statute. Defendant Douglas Mack, M.D. is the chairman of the Michigan Board of Medicine which is charged with disciplining physicians for violating the statute. Defendant Susan Roso, D.O., is the chairperson of the Michigan Board of Osteopathic Medicine which is charged with disciplining doctors of osteopathy for violating the statute. Defendant Kathleen M. Wilbur is the Director of the Michigan Department of Consumer and Industry Services which is responsible for investigating and reporting physicians who are alleged to have violated the statute. Defendant John D. O’Hair is the prosecuting attorney for Wayne County, Michigan. He is responsible for criminal enforcement of the statute in Wayne County. B. WITNESSES In addition to Dr. Evans and Dr. Christensen, the Court heard the testimony of the following witnesses. 1. Plaintiffs’ Witnesses (a) Carolyn Westoff, M.D. Dr. Carolyn Westoff testified as one of Plaintiffs’ expert witnesses. The Court recognized Dr. Westoff as an expert under Fed. R.Evid. 702 to testify both as an obstetrician/gynecologist and as an epidemiologist regarding the relative safety of abortion procedures. Dr. Westoff is a obstetrician and gynecologist licensed to practice medicine in the State of New York. She has been a board-certified obstetrician and gynecologist since 1986. In addition to her medical degree, Dr. Westoff has a master’s degree in epidemiology. Currently, Dr. Westoff is an Associate Professor of Obstetrics and Gynecology and Public Health at Columbia University and an associate attending physician on staff at the Columbia Presbyterian Medical Center. She has published numerous articles in peer-reviewed and other academic journals. Dr. Westoff testified that over the last 20 years, she has performed approximately 1,000 first trimester abortions and 500 second trimester abortions. Her current practice is limited to first trimester abortions which she performs using both vacuum aspiration and medical termination procedures. She testified that of the approximately 1,000 first trimester abortions she has performed, approximately 700 have been done by vacuum aspiration and 300 have been medical terminations. With respect to the 500 second trimester abortions Dr. Westoff has performed, she testified that in approximately 400 cases have been inductions and the remaining 100 were D & Es. With respect- to intact D & Es, Dr. Westoff testified that she never has personally performed an intact D & E, but she has observed the procedure done four or five times. (b) Dr. Doe Dr. Doe testified as Plaintiffs’ expert in dilatation and evacuation procedures. Dr. Doe is a licensed obstetrician/gynecologist in a large metropolitan area. He has been board certified for more than 30 years. Although he had an active gynecology practice in the past, he now has a private practice limited to doing abortions after the first trimester for high-risk women. He also teaches abortion procedures at a medical school which has an affiliation with a municipal hospital. Dr. Doe testified that he performs more than 1,000 second trimester abortions each year. He uses the D & E method almost exclusively, and over the last 15 years, “hundreds” of the abortions he has performed have been intact D & E procedures. (c) Renee Chelian Renee Chelian has been the administrator of the three Northland Family Planning Clinics for more than 20 years. She oversees all clinic operations including setting policies, standards and guidelines; arranging for staff training; setting protocols; overseeing counseling; and assuring compliance with applicable laws and regulations. (d) Stanley Henshaw, Ph.D. Dr. Stanley Henshaw testified as Plaintiffs’ expert in reproductive health epidemiology. Dr. Henshaw is the deputy director of research at the Alan Guttmacher Institute in New York (“AGI”). AGI is a non-profit research corporation that is concerned with issues of reproductive health, including fertility control, family planning, abortion, prenatal care, infertility, and sexually transmitted diseases. During his nearly 20-year affiliation with AGI, Dr. Henshaw has done approximately 20 quantitative studies relating to abortions, primarily concerning accessibility of abortion services, reasons for abortions, and the conditions under which abortion services are provided, and has published more than 50 articles concerning these matters in peer-reviewed journals. 2. Defendants’ Witnesses (a) Harlan Giles, M.D. Dr. Harlan Giles testified as one of Defendants’ expert in the field of high-risk obstetrics, including the termination of pregnancies through abortions. Dr. Giles is a board-certified obstetrician/gynecologist with a sub-specialty board-certification in maternal-fetal medicine. He is a professor at the Medical College of Pennsylvania where he teaches first and second trimester abortion techniques: suction dilatation curettage, inductions and conventional dilatation and evacuation. Dr. Giles also runs high-risk obstetrical clinics in Erie and Altoona, Pennsylvania and he has hospital privileges at several hospitals in the Pittsburgh area where he performs first and second trimester abortions. He testified that for second trimester abortions, he uses the conventional D & E method from 13 to 16 or 17 weeks. Beyond 18 weeks, however, he uses almost exclusively an induction method. (b) Curtis Cook, M.D. Dr. Curtis Cook is a Michigan-licensed obstetrician/gynecologist who testified as Defendants’ second expert in the field of obstetrics and gynecology concerning high-risk pregnancies, including the termination of such pregnancies. Dr. Cook obtained his board certification in obstetrics and gynecology in November 1996. He is affiliated with the Michigan State College of Human Medicine, where he teaches obstetrics and gynecology at various hospital locations. Dr. Cook is a member of the American College of Obstetricians and Gynecologists, the American Association of Pro-Life Obstetricians and Gynecologists (“AAPLOG”) and the Christian Medical and Dental Society. He is also a co-founder of the Physicians Ad Hoc Coalition for Truth (“PHACT”), an organization dedicated to providing information describing “the risk and concerns” of partial-birth abortions. Dr. Cook testified that he has performed less than a dozen abortions involving live fetuses, all by induction. He has never performed a first trimester abortion or a second trimester D & E. 3. Court-Appointed Witness (a) Timothy R.B. Johnson, M.D. Dr. Timothy Johnson was the Court’s appointed expert who provided testimony in obstetrics and gynecology, abortion practice, and the epidemiology of obstetrics and gyneeology. Dr. Johnson is board-certified in obstetrics and gynecology, with a sub-certification in the area of maternal-fetal medicine. Dr. Johnson is the Chair of the Obstetrics and Gynecology Department at the University of Michigan Medical School where he is a professor of Obstetrics and Gynecology and holds an endowed chair. He also has an appointment as a research scientist in the Center for Human Growth and Development and an appointment as professor of Women’s Studies in the College of Literature, Science and the Arts. Dr. Johnson also practices out of the University of Michigan Medical Center. He sees obstetric and high-risk pregnancy patients, and also practices general gynecology. Dr. Johnson has an extensive background in obstetrics and gynecology which pre-dates his U of M Medical Center affiliation. He is the former Director of the Maternal Fetal Medicine Division of the Department of Obstetrics and Gynecology at the Johns Hopkins University School of Medicine. At Johns Hopkins, Dr. Johnson also served as the Director of the Fetal Assessment Center and the Director of Residency Training in the Department of Obstetrics and Gynecology- Prior to his Johns Hopkins affiliation, Dr. Johnson served as the Chief of Obstetrics at the U.S. Air Force Keesler Medical Center. He also served as the Director of the Maternal-Fetal Medicine Fellowship Program of the Uniformed Services University of Health Sciences at Bethesda Naval Hospital, Walter Reed Army Medical Center and the Malcolm Grow U.S. Air Force Medical Center. He has published more than 100 articles in peer-reviewed journals and has co-authored 30 books concerning high-risk pregnancy, fetal assessment and related matters. As part of his current teaching responsibilities at the University of Michigan, Dr. Johnson teaches about the medical aspects of abortion. He also performs abortions in eases in which major congenital malformations are presented, most often in the second trimester. Generally, these abortions are done using induction techniques. He has also performed conventional D & Es, but has not performed an intact D & E. C. THE CHALLENGED STATUTE M.C.L. §§ 333.17016 and 333.17516 contain the substantive statutory provisions of Public Act 273 which ban “partial-birth abortions”. The Act provides as follows: Partial-birth abortions, prohibition; exceptions; definitions (1) Except as otherwise provided in subsection (2), a physician or an individual performing an act, task, or function under the delegatory authority of a physician shall not perform a partial-birth abortion, even if the abortion is otherwise permitted by law. (2) A physician or an individual described in subsection (1) may perform a partial-birth abortion if the physician or other individual reasonably believes that performing the partial-birth abortion is necessary to save the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury and that no other medical procedure will accomplish that purpose. (3) This section does not create a right to abortion. (4) Notwithstanding any other provision of this section, a person shall not perform an abortion that is prohibited by law. (5) As used in this section: (a) “Abortion” means the intentional use of an instrument, drug, or other substance or device to terminate a woman’s pregnancy for a purpose other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus. Abortion does not include a procedure to complete a spontaneous abortion or the use or prescription of a drug or device intended as a contraceptive. (b) “Fetus” means an individual organism of the species homo sapiens at any time before complete delivery. (c) “Partial-birth abortion” means an abortion in which the physician or individual acting under the delegatory authority of the physician performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery. M.C.L.A. §§ 333.17016; 333.17516 (West Supp.1997). The statute’s prohibition against “partial birth abortions” is not limited to post-viability or “late term” abortions, and, as set forth infra, the expert testimony uniformly established that the statute’s language applies to post-first trimester, pre-viability procedures. Public Act 273 also amended Section 16221 of the Public Health Code to include violations of sections 17016 and 17516 among the enumerated grounds for professional disciplinary action, see M.C.L.A. § 333.16221(m) (West Supp.1997). The Act also amended Section 16226 (the disciplinary sanctions provision) to provide as professional disciplinary sanctions for violation of sections 17016 or 17516 “revocation or denial” of a physician’s license to practice medicine. M.C.L.A. § 333.16226© (West Supp.1997). In addition to rendering the doctor subject to professional disciplinary action, a violation of Section 17016 or Section 17516 also carries with it criminal sanctions. M.C.L. § 333.16299 provides: A person who violates or aids or abets another in the violation of this article [Article 15 of the Public Health Code] other than those matters described in sections 16294 and 16296 [unauthorized practice of a health care profession] is guilty of a misdemeanor, punishable as follows: (a) For the first offense, by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both. (b) For the second or subsequent offense, by imprisonment for not less than 90 days nor more than 6 months, or a fine of not less than $200.00 nor more than $500.00, or both. M.C.L.A. § 333.16299. D. LEGISLATIVE HISTORY OF THE STATUTE — H.B. 5889 When the partial-birth abortion legislation was originally introduced in the Michigan House of Representatives on May 21, 1996, subsection (1) of the bill (House Bill 5889) did not have the prefatory “except as provided in subsection (2)” language. Instead, the bill provided a complete prohibition against performing partial birth abortions with no statutory exceptions, and subsection (2) provided an “affirmative defense” as follows: (2) It is an affirmative defense to disciplinary proceedings initiated under this article against a physician or other individual described in subsection (1) for a violation of section 16221(m) that the physician or other individual reasonably believed all of the following: (a) that a medical emergency existed when the partial-birth abortion was performed. (b) no other procedure would resolve the medical emergency. H.B. 5889, as introduced May 21, 1996 (Text available on WESTLAW, MI-BILLS Database). “Medical emergency” was defined in the original version of H.B. 5889 as follows: “Medical emergency” means that condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. Id. The bill was referred to the House Committee on Human Services. The Committee moved to adopt a substitute bill which deleted the “medical emergency” affirmative defense, and recommended that it be replaced with an affirmative defense which provided substantially the same language as what was ultimately adopted as an express exception to the ban: It is an affirmative defense to disciplinary proceedings initiated under this article against a physician or other individual described in subsection (1) for a violation of section 16221(m) that the physician or other individual reasonably believed that performing the partial-birth abortion was necessary to save the life of a pregnant woman whose life was endangered by a physical disorder, physical illness, or physical injury and that no other medical procedure would accomplish that purpose. See Stipulated Legislative History, Plaintiffs’ Ex. 29, pp. 10, 31-34. See also, H.B. 5889, version recommended as substituted from Committee, May 28, 1996 (Text available on WESTLAW, MI-BILLS Database). The Committee’s recommended substitute bill was read to the full House on May 29, 1996, and accepted. 55 Journal of the House, State of Michigan at 1331 (May 29, 1996) (hereafter referred to as “House Journal”), [Plaintiffs’ Ex. 29, p. 12.] After the substitute bill was read, a number of amendments were proposed on the floor of the full House. House Journal at 1331-1343 [Plaintiffs’ Ex. 29, pp. 12-26]. ' Amendments proposed and adopted by the full House include: (1) changing the “disciplinary proceedings” and “affirmative defense” part of the statute to provide the “prohibition” and “exception” language (as it exists in subsections 1 and 2 of the statute as ultimately enacted), House Journal at 1343:(2) adding the provision that the term “abortion” does not include “a procedure to complete a spontaneous abortion”, id. at 1332; and (3) deleting “suspension” from the list of professional disciplinary sanctions available for violation of the Act, leaving only “revocation or denial” of license as sanctions which may be imposed. Id. at 1331. [See Plaintiffs’ Ex. 29, pp. 12-13; 24.] During consideration of the bill by the full House of Representatives, several amendments were proposed and rejected with respect to the definition of “partial-birth abortion”: (1) An amendment limiting the term “partial-birth abortion” (and, hence, the prohibition against it) to abortions “performed at weeks of gestation or later ” was rejected, 56-44. House Journal at 1333-1334; (2) An amendment replacing the “partially vaginally delivers a living fetus before killing the fetus and completing the delivery” language in the definition with “performs a totally intact vaginal delivery of a fetus up to the level of the fetal head followed by an incision into the fetal skull to remove the contents of the skull to complete the procedure ”, was rejected 52^47. Id. at 1334-1335; (3) An amendment replacing the term “partial-birth abortion” throughout the bill with “an intact dilatation and extraction” was rejected. 54-47. Id. at 1339-1340; and (4) An amendment adding a new paragraph to provide “This section does not prohibit medical procedures other than intact dilatation and extraction that may be medically necessary to perform a third trimester abortion ” was rejected. 57-42. Id. at 1338-1339. [See Plaintiffs’ Ex. 29, pp. 14-16; 17-21.] With respect to the single exception to the ban against partial-birth abortions for an abortion “necessary to save the life of a pregnant woman” several amendments were proposed expanding that exception to also cover the “health” of the mother in some form, all of which were rejected: (1) An amendment adding “or necessary to preserve the physical health” of a pregnant woman, was rejected by a vote of 59-43. 55 House Journal at 1333; (2) An amendment adding “or to preserve a pregnant woman’s ability to bear children in the future where there is no possibility that the fetus can be viable outside the womb” was rejected, 56-46. Id. at 1335-1336; (3) An amendment adding “or to prevent damage to the woman’s reproductive system that would result in the inability to bear children” was rejected, 54-44. Id. at 1337-1338; and (4) An amendment replacing the entire exception with the “medical emergency” language as was in the bill when it was initially introduced was rejected, 54-44. Id. at 1342. [See, Plaintiffs’ Ex. 29, pp. 14: 16-19; 23.] The bill ultimately passed in the House upon its third reading (which was held immediately after all proposed amendments were offered and voted upon) on May 29, 1996, by a vote of 63-36. 55 House Journal at 1343-1344. [Plaintiffs’ Ex. 29, pp. 24-25.] It was sent to the Senate which passed the House bill, without any changes on June 6, 1996. See Michigan Bill Tracking, available on WESTLAW, MI-BILLS Database. It was signed into law by the Governor on June 14, 1996, id., to take effect March 31, 1997. E. ABORTION PROCEDURES In order to fully understand the witnesses’ testimony and the parties’ arguments regarding the constitutionality/uneonstitutionality of the statute, an understanding of the various methods for performing abortions is necessary. The various abortion procedures were described by the witnesses who testified at trial. 1. Vacuum Aspiration (also referred to as “suction aspiration”)/dilatation curettage (also referred to as “suction curettage”). In the first trimester of pregnancy, physicians generally perform abortions using the vacuum aspiration or the dilation and curettage (“D & C”) method. It is performed in an office setting by dilating the cervix at the time of the procedure either with mechanical dilators or over time using osmotic dilators, such as laminaria or dilapan. After the cervix is dilated, a plastic cannula is inserted into the uterine cavity and a source of suction is applied so that all the products of conception can be removed from the uterine cavity through the cannula. Dilatation curettage is a similar method that is used in the first trimester of pregnancy. It is a procedure where the cervix is dilated and then the contents of the uterine cavity are scraped using an instrument called a “euret” and then evacuated with suction. Both of these aspiration and curettage procedures can usually be successfully completed without any additional instrumentation until about 13 weeks gestation. Generally, after 12-13 weeks, the fetus becomes too large to remove by the use of suction curettage, although Dr. Giles testified that, in his experience, he has used suction without any additional instrumentation in some eases up to 15 weeks. 2. Dilatation (or dilation) and Evacuation (“D & E”) Generally speaking, , the D & E procedure is the preferred method for second trimester abortions and, both nationally and in Michigan, accounts for approximately 85% of all second trimester abortions past 12 weeks. This procedure is used from 13 weeks Imp and can be done throughout the entire second trimester, although it is not as frequently used after 20 weeks. In performing a D & E, the physician dilates the cervix and then surgically removes the fetus and other products of conception. In this procedure, the physician typically accomplishes the dilation of the cervix using osmotic dilators (“dilateria”), which are small tubes that absorb moisture and expand in the woman’s cervix over several hours or overnight. After the dilateria are inserted, the woman may experience some cramping which can be relieved with mild analgesics, but otherwise, she can go about her regular routine. Depending on the patient, her prior pregnancy/delivery history, and gestational age of the fetus, dilation generally takes five to six hours. In some cases, repeat applications of dilators are called for, and in those cases, the woman returns to the clinic after a few hours for the additional application. In some other cases, the dilateria are left in overnight and the woman returns the next day for the surgical procedure. The surgery is performed after the cervix is dilated. Usually in a 'conventional D & E, the physician removes the dilateria from the cervix, then ruptures the membranes, and dismembers the fetus in the uterine cavity using sharp instruments such as forceps, and suction. He then removes the fetal parts by pulling them out piece by piece through the cervical os. The surgical procedure itself is generally done in the clinic setting and takes approximately 40 minutes to complete. Plaintiffs’, Defendants’ and the Court’s medical experts all testified that from 13-16 weeks Imp, D & E is essentially the only abortion method available because inductions — the next most frequently used second trimester abortion procedure — generally cannot be successfully accomplished. 3. Intact D & E (also referred to as D & X) The intact D & E, or D & X, procedure is a variation of the conventional D & E procedure in which the physician, rather than removing the fetus in parts, removes it from a breech position intact up to the head, and then, if necessary, reduces the size of the head (by collapsing the calvarium using forceps or by evacuating its contents using suction) to remove the intact fetus the rest of the way. The American College of Obstetricians and Gynecologists defines this procedure as including only those instances in which there is (1) a deliberate dilation of the cervix; (2) instrumental conversion of the fetus to a footling breech position; (3) breech extraction of the body of the fetus excepting the head; (4) and partial evacuation of the intracranial contents with suction. [January 12,1997 ACOG Statement of Policy on Intact Dilatation and Extraction, Plaintiffs’ Ex. 4.] 4. Induction/Instillation In Michigan and nationwide, induction abortions account for nearly all of the post-first trimester abortions that are not D & Es. This procedure is generally done only in hospitals. Induction abortion is a medical technique in which the physician essentially induces pre-term labor. There are several means used to induce labor which generally fall into two categories. The physician may introduce the labor-inducing agent' — prostaglandins, saline or urea' — using an intra-amniotic injection. Or, rather than intra-amniotic injection, using one of several forms of prostaglandin as the labor-inducing agent, the doctor may introduce the agent using an intramuscular injection or intravaginal suppository. Additionally, some physicians couple the use of the medical labor-inducing agent with the use of osmotic dilators. As indicated above, using this method, labor is induced. Labor in an induction abortion can last anywhere from six to thirty-six hours, during which time, the woman experiences contractions, pain and other side-effects such as nausea, vomiting and diarrhea, and may, in fact, be bedridden. Inductions are rarely attempted prior to sixteen weeks because prior to that time they are generally unsuccessful. The experts gave several reasons for this. First, the uterus is less sensitive to the medications involved at that early stage of gestation and, therefore, the medications may not cause effective contractions. In addition, at the earlier stages of pregnancy this procedure may take up to three times as long as it normally takes after 16 weeks, and because the maternal tissue layer of the placenta is normally not sufficiently developed prior to 16 weeks, there is a much greater chance that the placenta will remain attached. Consequently, even if labor contractions are caused and the fetus passes, an invasive surgical procedure is still necessary to complete the abortion. 5. Hysterotomy and Hysterectomy Hysterotomy and hysterectomy are also used to terminate pregnancies, but very rarely. The two procedures combined account for far less than one percent of post-first-trimester abortions in Michigan and throughout the country. Hysterotomy is the transabdominal, surgical removal of the fetus from the uterus prior to term (i.e., a preterm caesarean section). Hysterectomy entails the removal of the uterus. Both hysterotomy and hysterectomy are major surgical procedures which carry high risks of mortality and morbidity. F. RELATIVE SAFETY OF SECOND TRIMESTER ABORTION PROCEDURES 1. Conventional D & E vs. Induction Drs. Evans, Westoff, Johnson, Giles and Cook all testified that the D & E procedure is a safe procedure and that, as compared to induction, the two procedures are of comparable safety through the 18th week of pregnancy. Further, according to the American College of Obstetricians and Gynecologists, in the early second trimester, between weeks 13 and 15 of pregnancy, D & E is the safest abortion procedure available, with the lowest rate of maternal mortality, fever, hemorrhage and cervical injury. [ACOG Technical Bulletin No. 109, October 1997, p. 3, Plaintiffs’ Ex. 3. See also, Testimony of Dr. Johnson, 5/6/97, p. 180 (“I think that at 14, 15, 16 weeks, dilatation and evacuation is probably a safer and easier procedure than instillation [induction], which generally is not done at that time. The earlier in gestation, probably the more relative safety is associated with a D & E.”) ] D & Es are associated with a number of potential complications, including uterine perforation, infection, retained products of conception, and tearing of the cervix, but as Drs. Christensen, Johnson, Westoff and Giles testified, these complications are very rare. Dr. Doe testified that a previous caesarean section or previous myomectomy are also complicating factors that can make a D & E difficult in the first half of the second trimester. The only evidence of contraindications for D & Es was Dr. Doe’s testimony that a D & E would be contraindicated for woman with large fibroids in the uterus. Other than that single situation, all of the doctors who testified on this issue are in agreement that there are no absolute contraindications for D & Es. However, the skill level and experience of the physician is an important safety factor. As Dr. Westoff explained, “Doing any kind of D & E procedure does require technical expertise; and if someone is not trained to doing that, that clinician’s patient will be safer with an induction procedure.... ” [Westoff 5/1/97 dep., p. 67.] With respect to inductions, the doctors who testified are in agreement that inductions have safety rates comparable to D & Es from 16 to 18 weeks. Because they do not require the use of instrumentation in the uterus, inductions require less skill on the doctor’s part and present less risk of uterine perforation than do D & Es. However, as Dr. Westoff explained, inductions have higher rates of infection, bleeding, cervical lacerations, amniotic fluid embolus and disseminated intravascular coagulation (“DIC”). [See also, ACOG Technical Bulletin, No. 109, October 1997, p. 3, Plaintiffs’ Ex. 3.] Drs. Johnson, Evans and Westoff testified that inductions are absolutely contraindicated for a woman with a prior classical caesarean scar or prior hysterotomy because of the risk that contractions will cause a fatal uterine rupture. Drs. Johnson, Evans and Westoff are also in agreement that inductions are relatively contraindicated for patients with renal or cardiovascular disease, among other conditions. In these cases, the stress of labor can aggravate the underlying diseases. They also agree that inductions are relatively contraindicated if the fetus has a condition such as severe hydrocephaly which can increase the risk of a vaginal delivery. Dr. Johnson and Dr. Giles also testified that specific induction procedures have their own contraindications. Prostaglandins pose particular risks to women with heart disease, diabetes, and asthma. Dr. Giles also testified that renal disease and serious heart conditions contraindicate saline instillation. Dr. Johnson stated that urea is contraindicated in women with renal failure. With respect to the relative safety of particular induction procedures, although Dr. Giles testified that his preferred induction abortion procedure is saline instillation. Drs. Johnson and Westoff testified that saline instillation is generally no longer used as a medical induction procedure in this country because it is significantly less safe than other induction agents. Consequently, saline instillation is no longer used at the University of Michigan Medical Center as a method of induction. Dr. Johnson further testified that as between saline inductions and conventional D & Es, saline inductions pose a greater risk of hyper osmolar crisis, cardiac failure, septic shock, peritonitis, hemorrhage and water intoxication. However, Dr. Giles and Dr. Johnson were in agreement that the type of induction agent is a matter best decided on a case-by-case basis, based upon the physician’s assessment of the patient and her medical history. In terms of reported complications, in Michigan in 1995, there were only two reported complications out of 3,094 D & E abortions. [Induced Abortions in Michigan 1995, p. 19, Table 10; p. 24, Table 15: p. 25, Table 16, Plaintiffs’ Ex. 8.] The rate of reported complications in the state for induction abortions was 3 out of 61, or 4.92 per 100 abortions. Id. at p. 25, Table 16. As Drs. Evans, Westoff and Johnson testified, where induction is contraindicated, D & E is the preferred, if not the only, safe method of abortion. 2. Conventional D & E vs. Intact D & E Comparing a conventional D & E to an intact D & E, Drs. Westoff, Doe, Evans, Christensen, Johnson and Cook all agree that intact procedures reduce risks associated with conventional D & Es. The intact procedure reduces the risk of uterine perforation and cervical lacerations because, removing the fetus intact, rather than in pieces, entails less instrumentation of the uterus and minimizes the passage of bony fetal fragments through the cervix and vagina. Removing the fetus intact also reduces the risk of a free-floating head, an uncommon, but significant complication of a conventional D & E. And, as Dr. Westoff testified, removing the fetus intact is often quicker than dismembering it, the woman has less operative time, which means less risk of hemorrhage, less total bleeding and less risk of infection. Further, as Dr. Evans opined, the intact procedure would be superior to a conventional dismemberment procedure for a woman for whom induction is contraindicated and who has a presumed fetal abnormality for which a fetal autopsy would be very instructive. 3. D & Es vs. Hysterotomy and Hysterectomy Hysterectomy and hysterotomy are major surgical procedures and carry higher risks of mortality and morbidity than both D & Es and inductions. The only evidence to the contrary — Dr. Cook’s testimony that a D & E is riskier than a hysterotomy after 20 weeks — is not borne out by epidemiological studies which show that the mortality rate for D & E after 20 weeks is 11.9 per 100,000, while the mortality rate for a hysterotomy after 20 weeks is 274 per 100,000. See, e.g., Hershel W. Lawson, et al, Abortion Mortality, United States, 1972 through 1987, 171 Am. J. Obstet. Gynecol. 1365, 1368, Table III (November 1994). The damage to the uterus from a hysterotomy is permanent. Dr. Evans testified that a woman who has had a previous hysterotomy runs a 15-20% risk of uterine rupture if she tries to labor and deliver vaginally. If the rupture occurs, there is a 50% chance that the baby would die. There is also a significant risk of death for the woman, especially because the sear might rupture even before the onset of any recognizable labor, when she would not yet be in a hospital. Because of the risk of uterine rupture, a woman who has had a hysterotomy must deliver any future children by caesarean section, a procedure carrying significantly higher risks of maternal morbidity and mortality than vaginal delivery. G. AVAILABILITY OF SECOND TRIMESTER ABORTIONS IN MICHIGAN Nearly all D & Es in Michigan are performed in non-hospital facilities. Dr. Henshaw testified that only 12 hospitals in Michigan provide abortions after the first trimester. Most of these hospitals are in the Detroit metropolitan area. Dr. Henshaw also testified that most hospitals in Michigan that provide abortions after the first trimester do not allow a woman to self-refer for an abortion. To obtain an abortion at a hospital, the woman must make arrangements with a physician with privileges at the particular institution. By contrast, all inductions in Michigan are performed in hospitals or hospital-like facilities. Because they are performed in hospitals or hospital-like settings, inductions are more expensive than D & Es performed in outpatient facilities. With respect to the cost of abortions, the cost of a D & E increases as pregnancy advances. Comparing costs of D & Es and inductions, the cost of a D & E does not approach the cost of a hospital induction until 22 to 24 weeks. Hysterotomy and hysterectomy, because they require hospitalization, are far more expensive than D & Es and inductions. H. TESTIMONY REGARDING THE MICHIGAN STATUTE As set forth above, the Michigan “partial birth abortion” statute makes it a crime for a physician to perform a “partial birth abortion” except when “necessary to save the life of pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury and no other medical procedure will accomplish that purpose”. “Partial birth abortion” is defined in the statute as “an abortion in which the physician ... partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” The statute’s prohibition against “partial birth abortions” is not limited to post-viability, or “late term” abortions. At trial, Drs. Evans, Christensen, Johnson, Giles and Cook were specifically asked for their understanding of the statute. There appears to be agreement among all of the doctors who testified that the term “partial birth abortion” is not a medical term; it is not a part of any standard accepted medical lexicon and is not a term found in the medical literature. The doctors were also unanimous in their understanding of the meaning of the term “living” as used in the statute’s definition of a “partial birth abortion”: A living fetus means a fetus having a heartbeat. The doctors also are in agreement that a heartbeat is diseernable by 5 to 7 weeks of pregnancy. Further, the doctors agree that a “living fetus” does not mean a “viable” fetus. To be viable means being capable of surviving outside the uterus, albeit with medical assistance. However, the doctors differed widely as to what procedures they thought the statute prohibits. Some of the doctors thought the Act could reach conventional D & Es, intact D & Es and some inductions. Dr. Evans thought it could reach even suction procedures. Another doctor, Dr. Cook, thought it reached only intact D & Es where the head was extracted after the skull was either crushed with forceps or its contents evacuated with suction. Dr. Evans testified that he understands “partially vaginally delivering] a living fetus” as used in the statute’s definition as meaning “when part of the fetus has been delivered through the cervix and part of it is still inside [the uterus].” [5/5/97 Tr. pp. 140-141.] With respect to the term “delivers” as used in the statute, Dr. Evans testified that obstetricians and gynecologists do not merely use that term to mean “delivering a full fetus or a full baby “[Anything you bring out of the uterus, we deliver out of the uterus.” Id. at 141 (emphasis added). Dr. Evans testified that, in his mind, the term “partial birth abortion”, is vague and ambiguous because as it is defined in the statute, it does not merely refer to a single, discrete medical procedure, but rather, it can be read to cover essentially all abortion procedures used, except hysterotomy and hysterectomy. Therefore, he stated that he cannot know what procedure or procedures are banned. Dr. Evans explained why he believes the statute’s definition of “partial birth abortion” can be read to cover conventional D & Es: [W]hen I’m intending to do a routine D & E, as I said, I will grasp up to reach part of the fetus and I will pull the fetus down. Very commonly, for example, if I get a leg, part of that leg will protrude into the vaginal cavity, then be disarticulated and the hemorrhaging then causes the death of the fetus. So even a routine D & E would fall under this category, as I interpret it. [Dr. Evans Testimony, 5/7/97 pp. 137-138.] He further explained why he believes the statute could be interpreted as also banning inductions, which, because of the size of the fetal head, by necessity have to become D & Es: [I]f I were doing an induction and the fetus was delivered breech.... And ... the fetal head is - trapped, which is essentially analogous to what we said with the D & E before.... ... The head is by far and away the biggest part of the fetus at that stage of pregnancy. So it is very reasonable and common for the body to deliver up the level of the head and at that point, the dilatation is not sufficient for the head to pass.... And you either then have a choice of decompressing the head to make the head smaller or continuing with the labor process until the dilation is sufficient for the head to pass out intact. And that may take a short period of time or it may take a long period of time. Id. at 149-50. Dr. Evans explained that there are instances where it would be riskier, when the fetal head is stuck, to make the woman continue with a prolonged period of labor, such as when the patient has an infection or a patient who, despite having had a previous cesarean section, really wanted to have an induction abortion as opposed to a D & E, but six hours more of labor would seriously increase the risk of uterine rupture. Id. at 150. He believes, however, under his interpretation of the statute, that if he were to then reduce the calvarium to complete the abortion, he could be prosecuted for violating the statute. Similarly, Dr. Evans, (who testified that he has never intentionally performed an “intact D & E”) testified that when he sets out to perform a conventional D & E, that procedure sometimes develops into an intact D & E: I do not go into the operating room intending to perform intact dilation and extraction procedures but there have been times when I have gone into the operating room with the intent to perform a regular D & E where I have done what could be construed to be an intact D & E____ We may have tried to bring the fetus out and then the head gets stuck, I may have reduced the calvarium. And I have done that both in the operating room, while intending to do a D & E, and for patients who we have been inducing. ... Id at 191. Thus, he explained that, even if the statute is deemed to cover only “intact D & Es” (as argued by Defendants), as he reads the statute, he would be subject to prosecution under the Act because the statute does not proscribe only intentionally performing an intact D & E: [I]f the law were interpreted as only prohibiting ... the deliberate intent, before you started the procedure, of ... dilating [with] the intention of extracting the whole fetus and then crushing the head, then I would know what would be prohibited. And if I were assured by the court that nothing else other than that would be criminally culpable, okay, then I think we’d be on safer ground than we are now. Id at 192. Dr. Christensen also testified that as he interprets the statute, the procedures that he performs, which are exclusively conventional D & Es, could be viewed as being in violation of the Act. He explained: [T]he language of the definition [in the statute] is so broad [as] to basically include any abortion procedure where the fetus is partially removed into the vagina. And that is what I do when we do the D & E procedures. * * * * * * [I]n the course of removing the fetus [in a conventional D & E], it usually does not come out intact, so I would consider, you know, when we fragment the fetus, we are partially removing it at some stage during the procedure. [5/6/97 Tr. p. 14-17.] He explained that he believes that “partially vaginally deliver” under the statute can be read to mean “[e]ither part of the fetus has been removed or the whole fetus has been partially removed. I think you can interpret it both ways.” With respect to the “killing” portion of the statute’s definition (i.e., “partially vaginally delivers a living fetus before killing the fetus”), Dr. Christensen testified that “[his] reading of the statute is that anything you do that terminates the signs of life of the fetus when it’s partially out of the woman violates the statute.” Id at 66. He went on to explain that he did not read the statute as requiring a separate “killing” step after “partially removing” the fetus: “My interpretation of the statute is [that] in partially removing [the fetus] you have done that [i.e., killed the fetus].....I don’t read [the statute] as necessarily defining two steps. I read it as having two things happen, not necessarily separate.... [O]nce I have partially removed the fetus from the uterus, that is an act that I have committed that has killed the fetus.” Id at 66-68. The Court’s expert, Dr. Johnson, also testified that the statute’s definition of partial birth abortion “is not entirely clear to me as a physician in terms of what it means.” [5/6/97 Tr. p. 194.] He explained his confusion: [T]he part that’s problematic for me is the part that reads “partially vaginally delivers a living fetus before killing the fetus.” That phrase to me, it’s not entirely clear to me what that phrase means, whether it encompasses what has been described by the American College of Ob-Gyn as intact dilatation and extractions or whether that includes what has generally been called traditional D & Es. And the reason that I have problems with it ... has to do with “partially vaginally delivers.” When we talk about a delivery in medicine, we use the term “delivery” fairly broadly. So that I would, in my practice, say “I delivered the baby.” But we would also say “I delivered the ovary into the incision” or “I delivered the uterus into the womb.” And so that “delivery”, at least as I think of it, doesn’t necessarily mean delivery of an intact, whole fetus. And so the concern I have is whether or not this terminology includes traditional D & Es or whether it only includes what has been described as intact dilatation and extractions .... [So], it’s fair to say that I personally don’t right now know exactly what acts are considered under that [statutory definition], [5/6/97 Tr. pp. 194-195 (some quotation marks added) ]. Explaining why he was not clear whether the statute covered only intact D & Es, or conventional, fragmented D & Es, as well, Dr. Johnson said: [I]f you start off with a living fetus and then you partially deliver that fetus, as nearly as I understand the English language, that means you deliver a part of that fetus. So, that means you could deliver a part of it intact or a part of it not intact, at least as I understand the English language and the use of adverbs like this.... So, I think that “partially” describes the delivery process. And I don’t see anywhere here — it starts off with a living fetus and I start delivering that fetus. And from a medical point of view, that could mean either intact, that could mean parts of it, at least the way I read the law. Id. at 219. Dr. Johnson further testified that even if the statute was narrowed by a court to include only intact D & Es, he read nothing in the Act that told him that to violate the statute, a doctor has to actually intend to perform an intact D & E as opposed to unintentionally performing an intact D & E: “As I see it, if one does the [intact] procedure, then one is violating the statute”, regardless of whether or not the physician ever intended to do so. Id. at 197. Defendants’ expert, Dr. Giles, conceded that some doctors could interpret the phrase “partially vaginally deliver” in the statute’s definition to cover the evacuation of a dismembered portion of the fetus, as done in a conventional D & E. [5/7/97 Tr. p. 169.] However, he testified that that was not the way he read the definition; he read “partially vaginally deliver” to mean the partial removal of an intact fetus. Id. He admitted, however, that the reason he understood “partially vaginally deliver” to mean a partial removal of an intact fetus was based principally on what he knew about the Ohio partial birth abortion statute and his participation as a witness in a lawsuit challenging that statute. Id. Dr. Giles testified that he believed that the Michigan statute prohibited only a vaginal delivery of an intact fetus with the intent of killing the fetus before delivery is completed. [5/7/97 Tr. pp. 162-163.] Therefore, he opined that where a doctor is performing a conventional D & E and manages to pull the fetus out intact up to the head, compressing the skull with forceps, with the knowledge that the compression might kill the fetus, would not be violating the statute because “the intent to kill the fetus would not be there”. Id. “However, when the Court asked Dr. Giles to review the statute and the doctor found no intent to kill” requirement, he admitted, that he could understand how some doctors might interpret the statute as covering the conventional D & E scenario discussed above: A [by Dr. Giles]: I can understand how some might interpret [the statute] that way. From my standpoint, using forceps to deliver the fetal head is not synonymous with killing the fetus.... THE COURT: If the fetus is killed in doing that, as you testified could well happen, would you not violate the statute? A: Inadvertently, you might. Id. at 163. Dr. Cook also testified that he read the statute as covering only the intentional killing of a partially delivered intact fetus and, therefore, he did not understand the statute to also cover conventional D & Es where the fetus is delivered dismembered. [5/7/97 Tr. p. 251.] However, he admitted that some physicians could read the statute to cover conventional D & Es: A [by Dr. Cook]: ... I read being “partially vaginally delivered” as meaning [delivering] part of the intact and whole fetus____ THE COURT: ... Would your opinion change or be affected if I told you that the legislature defeated a number of amendments which would have included the word “intact” or which would have conveyed the idea that the statute was triggered only when the fetus was intact? A: I guess I would answer no, because I read this as meaning the fetus intact. When they say “partially vaginally delivers a living fetus”, to me that means an intact fetus.... THE COURT: Do you believe that some physicians could read it that way, however? A: I suppose they could. That was not my reading of it, but I suppose it’s possible. Id. at 250-51. The doctors also testified regarding possible means to avoid prosecution under the statute by insuring fetal demise before beginning an abortion. The evidence at trial established that physicians can, and sometimes do, attempt to cause fetal demise before beginning an abortion procedure. However, in Dr. Johnson’s opinion, to require a physician in order to comply with the law to have to do “an additional procedure to insure that the fetus is dead ... has potential risks to the mother, whatever those risks are, however small they are, from a medical point of view ... is unacceptable.” [5/7/97 Tr. p. 210.] The most common method of attempting to ensure fetal demise is to attempt a transabdominal injection of an agent such as potassium chloride or digoxin into the fetus or amniotic cavity. [5/6/97 Tr., pp. 186-87 (Testimony of Dr. Johnson). See also, pp. 42-43 (Testimony of Dr. Christensen) and 5/7/97 Tr. p. 194 (Testimony of Dr. Giles).] However, any effort to inject potassium chloride or digoxin or another agent into the amniotic cavity or fetus presents a risk of amniocentesis, hemorrhage, infection, or uterine necroses. [5/6/97 Tr. p. 43 (Dr. Christensen); and p. 187 (Dr. Johnson). See also, 5/5/97 Tr. p. 167 (Testimony of Dr. Evans).] Moreover, many physicians do not have the appropriate skills to perform fetal injections. [5/6/97 Tr. p. 187 (Dr. Johnson).] Furthermore, it may be impossible to inject the fetus in some circumstances, such as where the patient is obese, or has fibroids blocking the anterior wall of the uterus [5/5/97 Tr. p. 84 (Testimony of Dr. Doe); 5/6/97 Tr. pp. 189-90 (Testimony of Dr. Johnson).] Similarly, attempting to inject the umbilical cord transabdominally in order to ensure fetal demise, requires skill that only a very small percentage of physicians have. [5/5/97 Tr. p. 18 (Testimony of Dr. Evans).] Fetal demise could also be attempted by transcervical injection of a toxic agent. However, as Dr. Johnson testified, that probably would be less effective than other techniques. Dr. Johnson further explained that one of the problems with a transcervical injection is once the membranes are ruptured, the amniotic fluid is gone. Therefore, instilling urea or anything else would not necessarily insure that the fetus were dead, and that might have significant maternal side effects. The doctors also were questioned about ensuring fetal demise by cutting the umbilical cord before beginning an abortion procedure. However, as Dr. Westoff testified, the cord is often nowhere near the cervix as one begins a D & E and it is not possible to reach it at the time the procedure is be initiated. Dr. Evans further testified that, if the fetus is