Full opinion text
MEMORANDUM OPINION MYRON H. THOMPSON, Chief Judge. The plaintiffs, Aabama-based providers of abortion services, challenge the constitutionality of two recently-enacted Aabama abortion statutes under the fourteenth amendment to the United States Constitution, as enforced through 42 U.S.C.A. § 1983 (West 1994). The first challenged statute is the Aabama Partial-Birth Abortion Ban Act of 1997, 1975 Aa.Code § 26-23-1 to 26-23-6 (Law.Co-op.Supp.1997), which took effect on August 1, 1997, and proscribes what it terms “partial-birth abortions,” except under certain medical emergency circumstances. The second statute, the Aabama Abortion of Viable Unborn Child Act, 1975 Aa.Code §§ 26-22-1 to 26-22^1 (Law.Co-op.Supp.1997), took effect on August 12, 1997, and proscribes abortions performed after the fetus has achieved “viability.” The plaintiffs seek declaratory and injunctive relief and have named as defendants the Governor of the State of Aabama, the Attorney General of the State of Aabama, and the Montgomery District Attorney, in her official capacity and as a representative of the class of district attorneys for the State of Aabama. The jurisdiction of the court has been properly invoked pursuant to 28 U.S.C.A. §§ 1331 and 1343(a)(3) (West 1994). This lawsuit is currently before the court on a motion to dismiss filed by the governor on September 4, 1997, and on a motion to dismiss filed by the attorney general and Montgomery district attorney (collectively, “the attorney general defendants”), also on September 4, 1997. A hearing was held on the motions on November 24, 1997. For the reasons that follow, the court will deny the governor’s motion in its entirety, will grant the attorney general defendants’ motion in part and deny it in part, and will certify certain pertinent questions of state law to the Aabama Supreme Court. I. LEGAL STANDARD FOR MOTION TO DISMISS In considering a defendant’s motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court accepts the plaintiffs’ factual allegations as true, Jackson v. Okaloosa County, 21 F.3d 1531, 1534 (11th Cir.1994); Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir.1990), and construes the complaint liberally in the plaintiffs’ favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The action may not be dismissed unless “it appears to a certainty,” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that the plaintiffs can offer no set of facts supporting the relief requested. Scheuer, supra; Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). II. BACKGROUND The facts of this case, as alleged by the plaintiffs, are as follows. The Alabama Partial-Birth Abortion Ban Act of 1997 prohibits any physician from “knowingly” performing a “partial-birth abortion.” 1975 Ala.Code § 26-23-3 (Law.Co-op.Supp.1997). Such an abortion is defined in the statute as “an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.” § 26-23-2(3). Neither the term “partial-birth abortion,” nor the foregoing definition, is generally accepted in the medical community. ' The partial-birth abortion statute provides only a single exception to its ban, which applies where the abortion “is necessary to save the life of the mother.” § 26-23-4. The act contains no similar exception to preserve the mental or physical health of the pregnant woman. The partial-birth abortion statute carries criminal penalties, namely conviction of a Class C felony punishable by a fine of not more than $5,000 and imprisonment for up to ten years, and triggers the possibility of license revocation under Alabama law. § 26-23-3; see also 1975 Ala.Code §§ 13A-5-6 & 13A-5-11 (Michie 1994); 1975 Ala.Code § 34-24-360(4) (Michie 1991). It also creates a civil cause of action against the physician, which may be brought by the “father” of the fetus, if married to the woman who underwent the abortion, or the “maternal grandparents” of the fetus, if the woman was a minor at the time. 1975 Ala.Code § 26-23-5 (Law.Co-op.Supp.1997). On August 1, 1997, the day upon which the partial-birth abortion statute took effect, the Alabama attorney general forwarded a letter to four Alabama district attorneys instructing them that for purposes of prosecutions brought under the act, “a physician partially delivers a living fetus before killing the fetus [as proscribed by the act] when the physician deliberately and intentionally delivers into the vagina a viable fetus, or a substantial portion of the viable fetus, for the purpose of performing a procedure the physician knows will Mil the fetus, and Mils the fetus.” (Emphasis added.) In the letter, the attorney general stated that his instructions to the district attorneys were given pursuant to 1975 Ala.Code § 36-15-14 (Miehie 1991), which provides in pertinent part as -follows: “The attorney general ... may at any time he sees proper, either before or after indictment, superintend and direct the prosecution of any criminal case in any of the courts of this state.” The second challenged act, the Alabama Abortion of Viable Unborn Child Act, prohibits any person from “intentionally, knowingly, or recklessly” performing or inducing an abortion “when the unborn child is viable.” 1975 Ala.Code § 26-22-3(a) (Law.Co-op. Supp.1997). However, such a post-viability’ abortion may be performed where a physician “reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.” § 26—22—3(b)(1). “Viable and viability” are defined in the act as follows: “The stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.” § 26-22-2(9). The post-viability abortion statute also imposes five additional procedural requirements upon a physician performing a post-viability abortion in the limited medical emergency circumstances under which such an abortion is permitted. § 26-22-3(b)(l) & (c)(l)-(5). These requirements are waived where the physician, in his or her reasonable medical judgment, determines that the nature of the medical emergency prevents compliance. § 26-22-3(c). Pursuant to the post-viability abortion statute, all physicians performing abortions after the nineteenth week of pregnancy must make a good-faith medical judgment as to whether the fetus is viable. §§ 26-22-2(9) & 26-22-4. However, the plaintiffs allege, the act does not specify the point at which the pregnancy begins for purposes of determining whether the pregnancy is in its nineteenth week. The post-viability abortion statute imposes criminal penalties against the person who intentionally, knowingly, or recklessly performs or induces a post-viability abortion. §§ 26-22-3(a) & (d). Specifically, that person has committed a Class A felony, punishable by imprisonment from ten to 99 years and fines up to $20,000. § 26—22—3(d); see also 1975 Ala.Code §§ 13A-5-2, 13A-5-6(a)(1), & 13A-5-ll(a)(l) (Michie 1994). The act also criminalizes, as a Class C felony, punishable by imprisonment from one year and one day to ten years and fines up to $5,000, the failure to comply with the procedural requirements for post-viability abortions set forth in § 26-22-3(c)(l) to (5). 1975 Ala.Code § 26-22-3(d) (Law.Co-op.Supp. 1997); see also 1975 Ala.Code §§ 13A-5-2, 13A-5-6(a)(3), & 13A-5-ll(a)(l) (Michie 1994). Four plaintiffs have brought this lawsuit. They all allege that they perform abortions in the state of Alabama. Plaintiff Summit Medical Associates, P.C. provides abortions through 24 weeks of pregnancy, measured from the time of the woman’s last menstrual period, or “Imp”; plaintiff William Knorr, M.D., performs abortions at Summit Medical, and intends to perform such abortions through 24 weeks Imp; plaintiff New Woman, All Women Health Care provides abortions through 20 weeks Imp; and plaintiff Beacon Women’s Center provides abortions through 18 weeks Imp. All plaintiffs perform abortions through approximately 13 weeks Imp that they allege may fall within the proscription of the partial-birth abortion statute, and each intends to continue performing such abortions despite the existence of the act, in order to provide the best possible care for patients. Summit Medical and Dr. Knorr perform abortions through 24$ weeks Imp that they allege may fall within the proscription of the post-viability abortion statute, and both intend to continue performing such abortions despite the existence of the act, in order to provide the best possible care for patients. As a consequence of these intentions, all plaintiffs allege that they fear prosecution under either or both acts. According to the latest data from Alabama, compiled in 1995, 89% of the 14,221 abortions performed in the state were performed through the first 13 weeks Imp, 9.7% were performed from 14 through 24 weeks Imp, and less than 1% were performed after week 19 Imp, with none reported to have been performed past 24 weeks Imp. It is not known at what stage 0.88% of abortions in the state were performed. Numerous reasons underlie the decision to perform an abortion after 13 weeks Imp (that is, after the first trimester). These include health problems arising during pregnancy, diagnosis of fetal anomalies, either severe or fatal, and lack of patient resources at an earlier date. Requiring that a woman travel out of state for an abortion procedure introduces time delays and expense that may preclude the woman from actually obtaining a desired abortion, as well as an attendant increase in risk. Additionally, any delay imposed on a woman seeking an abortion increases both the risks to her, and the costs of the procedure. Several methods are used to effect post-first-trimester abortions. These include: suction curretage (in limited circumstances); both traditional and intact dilation and evacuation (D&E); induction methods using saline, urea, or prostaglandins; hysterotomy; and hysterectomy. The vast majority of abortions performed after 13 weeks Imp employ traditional and intact D&E, while induction methods account for a small minority of such abortions. Hysterotomy and hysterectomy are rarely employed in Alabama as abortion techniques. The most appropriate procedure to use in a given case depends on a multitude of factors, including the woman’s health, any medical contraindications, physician skill, the woman’s prior surgical history and desire to preserve fertility, the need to remove the fetus intact, the assessment of alternative risks, cost factors, and location. According to the plaintiffs’ allegations, the methods most often employed in traditional and intact D&E procedures may fall within the strictures of the partial-birth abortion act, because parts of the fetus sometimes pass into the vaginal canal. Moreover, the main alternative to the D&E procedures, the induction method, also may fall within the act’s proscription because the fetus may partially emerge during the procedure while still “living.” The hysterotomy and hysterectomy procedures are major surgical procedures that are more dangerous than their counterparts, and rarely medically appropriate. These techniques do not appear, according to the plaintiffs, to fall within the proscription of the partial-birth abortion statute. III. THE GOVERNOR’S MOTION TO DISMISS In his motion to dismiss this lawsuit, the governor urges this court to recognize that the “United States Constitution does not address the subject of abortion” and further urges this court to comply with the oath of office taken by all federal judges to be bound to that Constitution by ignoring any Supreme Court precedents holding to the contrary. According to the governor, the Supreme Court, as “a chief ‘protector’ of the abortion industry in America,” has run roughshod over the Constitution in its abortion jurisprudence, and has, in the absence of a national consensus, “assumed the power to amend the Constitution itself’ to create abortion rights that otherwise do not exist. Consequently, the governor contends, for this court to abide by the Supreme Court’s abortion decisions would be tantamount to an abdication of its duty to uphold “the Constitution as written and as legally amended under the authority of the ‘people of the United States’ alone.” As the plaintiffs correctly observe, the governor asks this court to contravene long-established principles of Anglo-American law by urging it to disregard plainly controlling Supreme Court precedent. The Eleventh Circuit Court of Appeals underscored these fundamental principles in Jaffree v. Wallace, 705 F.2d 1526, 1532-33 (11th Cir.1983), aff'd, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), when it reversed an Alabama district court that “chose to disregard Supreme Court precedent” in an establishment clause case. In a section of its opinion entitled “Precedent,” the Eleventh Circuit explained the governing principles as follows: “Under our form of government and long established law and custom, the Supreme Court is the ultimate authority on the interpretation of our Constitution and laws; its interpretations may not be disregard-ed____• Federal district courts and circuit courts are bound to adhere to the controlling decisions of the Supreme Court. Justice Rehnquist emphasized the importance of precedent when he observed that ‘unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.’ [Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556.] See also, Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983).... Judicial precedence serves as the foundation of our federal judicial system. Adherence to it results in stability and predictability. If the Supreme Court errs, no other court may correct it.” Id. at 1532-33. The court further emphasized that Supreme Court precedent is to be adhered to even where the pertinent issues are subject to political debate, stating that “While many may disagree on the subject of prayer in public schools, our Constitution provides that the Supreme Court is the final arbiter of constitutional disputes.” Id. at 1536. It cannot seriously be disputed that these bedrock principles apply with equal force to the Supreme Court’s abortion jurisprudence, despite the sharp differences in public opinion that surround this politically-charged issue. For without these governing principles, embodied in the notion of the “rule of law”, judges would be at liberty to pick and choose which Supreme Court decisions they wished to follow, with the result that no one would ever know what law applied to the citizenry of this country at any given time: chaos and anarchy would reign. The federal judicial system can no more operate under a scheme in which lower court judges could freely pick and choose higher court precedent than the governor could govern under a scheme in which state citizens to whom he is beholden could freely pick and. choose the laws with which they would comply. It may be that Supreme Court abortion jurisprudence is “wrong,” but the avenue for redress is to convince the Supreme Court itself to change its precedent or, failing that, to convince the people of the Country to amend the Constitution. This court, therefore, will adhere to the controlling Supreme Court decisions pertaining to the regulation and proscription of abortions. Notwithstanding any allegations by the governor or the other defendants that these decisions are based on faulty premises or are otherwise infirm, this court refuses to disregard binding Supreme Court precedent, for it is that Court’s prerogative alone to overrule one of its own precedents. See State Oil Co. v. Khan, — U.S.-,-, 118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997). Accordingly, the court will deny the governor’s motion to dismiss. IV. ATTORNEY GENERAL DEFENDANTS’ JURISDICTIONAL CHALLENGES In addition to arguing that the plaintiffs have failed to state any claim in their complaint upon which relief may be granted, the attorney general defendants have raised a number of challenges to this court’s authority to exercise jurisdiction over the plaintiffs’ claims. It is to these challenges, which implicate numerous complex questions of federal jurisdiction, that the court must first devote its attention. Careful parsing of the briefs filed by the attorney general defendants reveals that they attempt to erect three distinct sets of jurisdictional hurdles to the bringing of this lawsuit in federal district court: first, that the plaintiffs’ claims are barred by the eleventh amendment of the United States Constitution, which immunizes all of the named defendants from suit; second, that the court must abstain from hearing the plaintiffs’ claims in view of various principles of comity and equity; and, third, that none of the plaintiffs’ claims is justiciable because none satisfies the case-or-controversy requirements imposed by Article III of the United States Constitution. Unfortunately, but understandably, given the complexity of the issues involved and the opacity of the pertinent case law, the attorney general defendants in their briefs conflate, rather than treat as analytically distinct, the myriad issues raised by their various jurisdictional challenges. The plaintiffs, too, fail to address all of these issues in an organized fashion. For the sake of clarity, and to ensure that it fully and properly resolves each of the attorney general defendants’ challenges, the court will address them separately and systematically. First, it will determine whether, as the attorney general defendants contend, all of the plaintiffs’ claims are barred by the eleventh amendment, so that the entire lawsuit must be dismissed. Next, the court will ascertain whether the suit as a whole, or any subset of the plaintiffs’ claims, must be dismissed for lack of an Article III case or controversy. To resolve this issue, the court will address whether the plaintiffs enjoy standing to bring their various claims, as well as whether any of these claims has been rendered moot, and hence non-justiciable, in light of the defendants’ post-filing actions. Finally, the court will determine whether any of the abstention doctrines, grounded on considerations of comity between the state and federal judicial systems, and on principles that govern federal courts sitting in equity, counsels dismissal of any of the plaintiffs’ claims, or a stay pending resolution by the Alabama Supreme Court of any issues raised by these claims. As explained more fully below, with respect to the majority of the plaintiffs’ claims for declaratory relief, the court rejects all of the foregoing arguments proffered by the attorney general defendants, and will proceed to address whether the plaintiffs’ complaint should be dismissed for failure to state a claim upon which relief may be granted. However, the court will dismiss all claims for injunctive relief, because the plaintiffs have not satisfied the heavy burden required to establish a right to such relief under pertinent Supreme Court jurisprudence. Additionally, the court will certify, to the Aabama Supreme Court, questions of statutory construction pertinent to some of the plaintiffs’ claims. A. Eleventh Amendment Immunity The attorney general defendants base their first challenge to the plaintiffs’ right to bring this lawsuit on the eleventh amendment of the United States Constitution, which provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Eleventh amendment sovereign immunity has been held to apply to suits brought by citizens against their own state, and is likewise applicable to cases in which the court’s jurisdiction is grounded on the existence of a federal question. See Seminole Tribe v. Florida, 517 U.S. 44, 68-74, 116 S.Ct. 1114, 1130-32, 134 L.Ed.2d 252 (1996). Here, it is undisputed that citizens of Alabama have sued Alabama state officials pursuant to the fourteenth amendment of the United States Constitution, and that the state has not waived its eleventh amendment sovereign immunity and thereby consented to suit. Consequently, as the parties recognize, the lawsuit must be dismissed, unless it falls within a longstanding—and still vital—exception to eleventh amendment immunity, first articulated by the Supreme Court in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), for actions seeking declaratory and injunctive relief against state officials for alleged violations of federal law. The Court has explained this exception, commonly referred to as the Ex parte Young doctrine, as follows: “The theory of Young was that an unconstitutional statute is void, and therefore does not ‘impart to [the official] any immunity from responsibility to the supreme authority of the United States.’ Young also held that the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law. We have refused to extend the reasoning of Young, however, to claims for retrospective relief.” Green v. Mansour, 474 U.S. 64, 68,106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985) (internal citations omitted). The Supreme Court has characterized the “authority-stripping” theory of Ex parte Young as a “fiction,” because it creates an imaginary distinction between the state and its officers, deeming that the officers act without the state’s authority when enforcing state laws in derogation of the Constitution. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 114 n. 25, 104 S.Ct. 900, 915 n. 25, 79 L.Ed.2d 67 (1984). The parties are correct to observe that no defendant in the handful of challenges to partial-birth abortion statutes initiated in other federal district courts has attempted to evade suit on the basis of eleventh amendment immunity, and thus this issue is one of first impression in the partial-birth abortion arena. Moreover, the court is aware of only three decisions addressing general abortion statutes in which such a defense was raised. See Jane L. v. Bangerter, 794 F.Supp. 1528, 1530-31 (D.Utah 1992) (finding that the State of Utah had expressly and voluntarily waived its eleventh amendment immunity in a challenge to an abortion statute); Guam Society of Obstetricians and Gynecologists v. Ada, 776 F.Supp. 1422, (D.Guam 1990) (holding that the eleventh amendment did not bar injunctive relief against enforcement of an abortion statute by the governor and attorney general of Guam), aff'd, 962 F.2d 1366 (9th Cir.1992); Akron Center for Reproductive Health v. Rosen, 633 F.Supp. 1123, 1128-30 (N.D.Ohio 1986) (holding that the state governor and attorney general were not proper parties in a constitutional challenge to an abortion statute, because enforcement of the challenged statute was clearly delegated to the prosecuting attorneys of the state, two of whom were found to be proper defendants in the action), ajfd sub nom., Akron Center for Reproductive Health v. Slaby, 854 F.2d 852 (6th Cir.1988), rev’d on other grounds sub nom., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). Not surprisingly, the parties vigorously contest whether the Ex parte Young doctrine applies to this suit. The attorney general defendants, predictably, assert that the plaintiffs’ broad claims for relief may not be squeezed and contorted to fit within the extremely narrow confines carved out for the doctrine by applicable Supreme Court jurisprudence. The plaintiffs, by contrast, assert that the attorney general defendants, by misconstruing the pertinent case law, seek unduly to constrain the Ex parte Young doctrine in clear contravention of long-settled Supreme Court precedent. The dispute surrounding this question, once stripped of all irrelevant rhetoric pertaining to the distinct issues of justiciability and abstention, which will be taken up below, may be distilled to two primary issues. First, the attorney general defendants argue, and the plaintiffs vigorously contest, that although the plaintiffs seek relief that is purely prospective, and so arguably falls within the purview of the Ex parte Young doctrine, the specific relief sought is sufficiently intrusive and connected to the state itself that the “fiction” worked by that doctrine should play no role here. The second primary argument proffered by the attorney general defendants in support of their eleventh amendment immunity claim is grounded on the Ex parte Young doctrine’s requirement that the challenged conduct of the state officials be “ongoing” or “continuing,” and not merely “threatened,” for the exception to apply. The attorney general defendants contend that the plaintiffs face, at most, a speculative threat of prosecution under the statutes, and that consequently their claims do not qualify for the Ex parte Young exception. As explained more fully below, the court rejects both of these arguments, and holds that the plaintiffs’ claims for declaratory and injunctive relief against the Alabama state officials fall squarely within the Ex parte Young doctrine as currently interpreted and applied by the Supreme Court. In support of the their first argument regarding eleventh amendment immunity, the attorney general defendants rely primarily on the Supreme Court’s recent decision in Idaho v. Coeur d’Alene Tribe of Idaho, — U.S.-, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). In that case, the Court was confronted with the question of whether an eleventh amendment bar prevented a federal district court from adjudicating the Coeur d’Alene tribe’s claims for declaratory and in-junctive relief against the State of Idaho concerning the submerged lands and bed of Lake Coeur d’Alene, as well as various associated elements of the lake’s water system. — U.S. at -, 117 S.Ct. at 2040. The relief sought by the tribe, characterized by the Court as “far-reaching and invasive,” included declaratory relief to establish its entitlement to occupy and use the submerged lands, and injunctive relief to prohibit the state from regulating, or permitting or taking any action in violation of, the Tribe’s exclusive rights of use and occupancy, quiet enjoyment and other ownership interest in the submerged lands. Id., — U.S. at-,-, 117 S.Ct. at 2032, 2040. The majority, while recognizing that “An allegation of an on-going violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction,” refused to apply the exception under the “particular and specific circumstances” of the case. Id. at-,-, 117 S.Ct. at 2040, 2043. In reaching its decision, the Court emphasized that the extensive relief sought by the tribe, at least in functional terms, was tantamount to a quiet title suit, which all agreed would be barred by the eleventh amendment absent waiver by the state. The Court explained: “It is common ground between the parties, at this stage of the litigation, that the Tribe could not maintain a quiet title suit against Idaho in federal court, absent the State’s consent. The Eleventh Amendment would bar it. Despite this prohibition, the declaratory and injunctive relief the Tribe seeks is close to the functional equivalent of quiet title in that substantially all benefits of ownership and control would shift from the State to the Tribe.” Id. at -, 117 S.Ct. at 2040. Thus, the Court was plainly concerned that permitting the tribe to pursue the suit in federal court would constitute an impermissible affront to the state’s sovereignty, and that such concerns must be given weight even where the plaintiffs’ claims formally are limited to declaratory and injunctive relief. Despite the attorney general defendants’ efforts to characterize the instant ease as one raising such a conflict between the plaintiffs’ claims for extensive relief and fundamental elements of state sovereignty, the court concludes that the holding in Coeur d’Alene is inapplicable to the facts presented here. The plaintiffs’ desired relief, though it effectively would wipe two recently-enacted state statutes off the books, cannot be said to be as far-reaching or intrusive as that sought in Coeur d’Alene; here, unlike in Coeur d’Al-ene, the state’s sovereign interest in exercising its authority over the challenged arena (certain forms of abortion) would not be so fundamentally diminished or eliminated because the state would be free to enact new, appropriate legislation if the relief sought were to be granted. By contrast, were the tribe in Coeur d’Alene to prevail on its claims in federal court, Idaho would have irretrievably lost, for all time, practically its entire power to regulate the disputed submerged lands. On this point, the Supreme Court was emphatic: “The suit seeks, in effect, a determination that the lands in question are not even within the regulatory jurisdiction of the State. The requested injunctive relief would bar the State’s principal officers from exercising their governmental powers and authority over the disputed lands and waters. The suit would diminish, even extinguish, the State’s control over a vast reach of lands and waters long deemed by the State to be an integral part of its territory. To pass this off as a judgment causing little or no offense to Idaho’s sovereign authority and its standing in the Union would be to ignore the realities of the relief the Tribe demands.” — U.S. at-, 117 S.Ct. at 2040. Simply stated, the plaintiffs here, unlike the Coeur d’Alene tribe, do not seek relief that is tantamount to relief that they are barred from obtaining from the state absent waiver of eleventh amendment immunity. The foregoing conclusion is not undermined by the holdings in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), where the Supreme Court refused to apply the Ex parte Young doctrine despite the absence in the complaints in question of any claims for retroactive or monetary relief. Those cases, like Coeur d Aleñe, presented the Court with circumstances in which the plaintiffs’ claims, although couched in terms of injunctive or declaratory relief, would have had an effect on the states akin to a request for monetary damages or restitution. See Green, 474 U.S. at 73, 106 S.Ct. at 428 (holding that the eleventh amendment barred a claim for declaratory relief because issuance of such a judgment would have had “much the same effect as a full-fledged award of damages or restitution by the federal court”); Edelman, 415 U.S. at 665-66, 94 S.Ct. at 1356-57 (holding that relief labeled “equitable” in nature may fall outside the Ex parte Young doctrine, and hence be barred by the eleventh amendment, where the funds to satisfy the award must inevitably come from the state’s general revenues). It is difficult to imagine how the equitable relief sought by the plaintiffs in this action could have even a slight impact on Alabama’s coffers, for the plaintiffs request neither compensatory damages nor retrospective relief of any type. Rather, in terms of the nature of the relief sought by the plaintiffs, this ease conforms to the prototypical one in which the Ex parte Young exception applies, where state officials are sued in their official capacities for prospective relief calculated to prohibit them from enforcing an allegedly unconstitutional state law. The second issue that the court must address in relation to the attorney general defendants’ eleventh amendment immunity argument concerns the assertion that the Ex parte Young exception is inapplicable here because the plaintiffs have failed to allege that the defendants are engaged in the requisite ‘ongoing or continuing’ violation of the Constitution or of federal law. According to the attorney general defendants, because the plaintiffs assert, at most, an extremely remote threat that prosecutions would be brought under the two challenged acts, they cannot possibly have alleged a constitutional violation that is ‘ongoing or continuing’ in nature. The defendants correctly observe that the Supreme Court has employed the terms ‘ongoing’ and ‘continuing’ to describe constitutional and federal law violations that trigger the Ex parte Young exception. See, e.g., Coeur d’Alene, — U.S. at-, 117 S.Ct. at 2043 (“Where a plaintiff seeks prospective relief to end a state officer’s ongoing violation of federal law, such a claim can ordinarily proceed in federal court.”); Green, 474 U.S. at 67-68, 106 S.Ct. at 425-426 (“[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”). Importantly, however, the attorney general defendants misconstrue the Supreme Court’s use of those terms when they assert that the plaintiffs cannot satisfy the “ongoing or continuing” violation requirement because the challenged statutes are so freshly minted, and because no citizen has yet been targeted for prosecution. Specifically, the attorney general defendants fail to recognize that Ex parte Young itself addressed, and the doctrine it spawned applies to, situations in which prosecutions under a disputed state law are merely threatened, rather than underway or complete. See, e.g., Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. at 454 (in pre enforcement challenge brought against state railroad ratesetting scheme, Court holds that “If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in this person to the consequences of his individual conduct, the state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.”); Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 1218, 39 L.Ed.2d 505 (1974) (characterizing Ex parte Young as “holding that state officials who threaten to enforce an unconstitutional state statute may be enjoined by a federal court of equity”) (emphasis added). In fact, the Supreme Court, in Papasan v. Attain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986), explained that in this context the term “ongoing” is used in contradistinction to “cases in which federal law has been violated at one time or over a period of time in the past.” (Emphasis added). In the latter situation, of course, compensatory relief would be implicated, and so recourse to Ex parte Young would be unavailing. See id. For a violation of federal rights to be considered “ongoing,” then, does not require that a prosecution under the challenged state statute be in progress, but rather that the alleged violation of federal rights not have taken place only in the past, such that only retrospective relief may be obtained. Here, the plaintiffs contend that they face a continuing threat of prosecution and civil liability under the two disputed acts, and that as a consequence they are unable to freely exercise their asserted constitutional rights without fear of arrest, prosecution or being haled into court pursuant to the acts’ civil provisions. Moreover, both the governor and the attorney general have indicated that they intend to prosecute violators under the two abortion statutes. Accordingly, the court rejects the attorney general defendants’ contention that application of the Ex parte Young doctrine is inappropriate on these facts because there are no “ongoing” prosecutions pending or contemplated against the plaintiffs. It bears noting that in proffering these arguments regarding the absence of a pending prosecution the attorney general defendants conflate the considerations underlying the eleventh amendment immunity issue with those raised by both their Article III challenge to the justiciability of the plaintiffs’ claims and their contention that the court should abstain from hearing this lawsuit under principles of equity and comity. The court does recognize, of course, that the absence of a legitimate threat of prosecution under the challenged acts would derail the plaintiffs’ suit on grounds of lack of an Article III case or controversy. However, the court will not address these issues in the context of determining whether the eleventh amendment imposes a bar to this action, for they enjoy no relevance here. Rather, the court will reserve consideration of these issues until after the eleventh amendment question has been resolved, when it turns to questions of justiciability. In so doing, the court endeavors to avoid contributing to the general confusion and inconsistent reasoning that plagues much of the existing jurisprudence in this complex area of federal jurisdictional law. The attorney general defendants also devote substantial space in their briefs to an argument that the Alabama state courts offer an adequate forum for the plaintiffs to vindicate their asserted fourteenth amendment rights, and so the Ex parte Young doctrine should not be applied to ensure a federal forum. This argument is inapt, however, because the attorney general defendants apparently proffer it on the mistaken assumption that this court’s determination of the eleventh amendment immunity issue is governed by the case-by-case, balancing of state and federal interests approach espoused by Justice Kennedy in Parts II-B, II-C, and II-D of the principal opinion in Coeur d’Alene. An integral part of Justice Kennedy’s approach, upon which the attorney general defendants place heavy reliance, is that courts should inquire into whether there are “special factors counselling hesitation” in exercising jurisdiction over claims against state officials in federal court. See Coeur d’Alene, U.S. at-, 117 S.Ct. at 2039 (quoting Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 396, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971)). However, as the attorney general defendants themselves acknowledge, Justice Kennedy’s approach in Parts II-B, II-C, and II-D of the principal opinion, including his injection of the Bivens-based inquiry into the Ex parte Young context, was shared by only one other member of the Court, Chief Justice Rehnquist; it was not only not adopted by a majority of the Justices, it was subject to express criticism by the seven remaining Justices. See Coeur d’Alene, U.S. at -, 117 S.Ct. at 2047 (O’Connor, J., joined by Scalia and Thomas, JJ., concurring) (“the principal opinion replaces a straightforward inquiry into whether a complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective with a vague balancing test that purports to account for a ‘broad’ range of unspecified factors”); — U.S. at -n. 6,---, 117 S.Ct. at 2051 n. 6, 2055-58 (Souter, J., joined by Stevens, Ginsburg and Breyer, JJ., dissenting) (rejecting the principal opinion’s balancing approach and its consideration of the adequacy of available state remedies in determining whether the Ex parte Young doctrine may be invoked). Thus, the attorney general defendants’ assertions regarding the adequacy of the forum provided by the Alabama state courts for the adjudication of the constitutional issues raised by the plaintiffs’ claims play no role in the court’s analysis of the eleventh amendment immunity question. As Justice O’Connor stated in Coeur d’Alene'. Ex parte Young is “applied ‘[e]ven if there is a prompt and effective remedy in a state forum. When a plaintiff seeks prospective relief to end an ongoing violation of federal rights, ordinarily the Eleventh Amendment poses no bar.’ ” Id., — U.S. at-, 117 S.Ct. at 2045 (O’Connor, J., joined by Scalia and Thomas, JJ., concurring) (citations omitted). This action, therefore, falls squarely within the well-established boundaries of the Ex parte Young doctrine, and the court is not persuaded otherwise by the fact that Alabama state courts stand ready and able to hear the plaintiffs’ claims. Moreover, to the extent that the attorney general defendants take the position that the plaintiffs must await a state criminal prosecution to secure their desired relief, their argument flies in the face of one of the central rationales underlying the Ex parte Young decision. In that case, the Supreme Court emphasized that those challenging the state criminal laws at issue faced heavy sanctions, including fines and imprisonment, if they opted to pursue their claims by disobeying the disputed laws and inviting state criminal prosecutions. The court reasoned: “It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.” 209 U.S. at 147, 28 S.Ct. at 448. In the case at bar, the plaintiffs also face significant criminal sanctions for violation of the two challenged acts. Thus, no matter how faithfully the Alabama state courts would apply Supreme Court abortion jurisprudence in resolving an attack on the disputed statutes during a criminal proceeding, the court is not dissuaded from applying the Ex parte Young doctrine here. A state court criminal prosecution, with its attendant risk of heavy sanctions, simply is not an adequate forum for the vindication of the plaintiffs’ constitutional rights. For the foregoing reasons, the court rejects the attorney general defendants’ contention that the plaintiffs’ claims against them and the governor are precluded by the eleventh amendment to the United States Constitution. B. Article III Case-or-Controversy Requirement Because the court has concluded that the eleventh1 amendment does not bar this lawsuit from federal court, it must next address whether it may exercise jurisdiction over the plaintiffs’ claims in view of a second constitutional barrier, the ease-or-controversy requirement imposed by Article III. “Article III of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversies.’ The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity ‘to adjudge the legal rights of litigants in actual controversies.’” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982) (quoting Liverpool, N.Y. & P.S.S. Co. v. Emigration Com’rs, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)) (citations omitted). “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. Ill’s requirements.” Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986). The attorney general defendants contend that this threshold requirement has not been satisfied here, on two grounds. First, they argue that the plaintiffs do not enjoy standing to bring their claims for declaratory and injunctive relief in federal court. Second, they contend that any case or controversy between the parties has been rendered moot as a result of the attorney general’s directive to four district attorneys that they refrain from pursuing prosecutions under the partial birth abortion statute except under limited circumstances. The court will take up these two arguments in turn below. i. Standing A party must have standing to bring a lawsuit, for without it a federal court may not exercise jurisdiction to decide the underlying case. See Brooks v, Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1375 (11th Cir.1997) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”). Standing encompasses both “constitutional requirements” imposed by Article III, and “prudential considerations.” Valley Forge, 454 U.S. at 471, 102 S.Ct. at 757; see Brooks, 116 F.3d at 1375. To satisfy the constitutional mandates, a plaintiff must establish that: (1) she personally has suffered some actual or threatened injury as a result of the allegedly illegal conduct; (2) the injury fairly can be traced to the challenged action; and (3) the injury is likely to be redressed by a favorable decision by the federal court. See Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. The prudential considerations governing the standing determination, on the other hand, include: (1) the principle that federal courts should avoid deciding generalized grievances presenting abstract questions of wide public significance; (2) the requirement that the plaintiffs claims fall within the zone of interests protected by the statute or constitutional guarantee at issue; and (3) the requirement that a plaintiff assert her own legal rights and interest, rather than the rights of third parties. See Church v. City of Huntsville, 30 F.3d 1332, 1335-36 (11th Cir. 1994). The attorney general defendants proffer three primary arguments in support of their contention that the plaintiffs lack standing to bring this lawsuit in federal district court. First, with respect to both challenged statutes, the attorney general defendants argue that none of the plaintiffs has satisfied the first constitutional standing requirement recited above because none is able to establish the existence of any actual or threatened injury. Second, regarding the post-viability abortion statute, the attorney general defendants assert that none of the plaintiffs enjoys standing to bring this lawsuit because none engages in the specific conduct proscribed by the act. Finally, regarding the partial-birth abortion ban act, the attorney general defendants contend that none of the abortion clinic plaintiffs has standing because application of that act is explicitly limited to “physicians” or “any other individuals,” and does not encompass entities such as hospitals or clinics. Resolution of the issues raised by the first attack on the plaintiffs’ standing, that they have established no actual or threatened injury, is governed by Supreme Court decisions that have addressed other challenges to the constitutionality of state criminal statutes. In one such decision, Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979), the Supreme Court explained that “A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” However, the Supreme Court emphasized that a legitimate threat of injury is sufficient to navigate the shoals of standing: “But ‘one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Id. (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). Nor does one who asserts that a criminal statute deters the exercise of her constitutional rights need first expose herself to actual arrest or prosecution before proceeding with her claim in federal court. Id., 442 U.S. at 298, 99 S.Ct. at 2309. See also Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973) (physicians challenging constitutionality of abortion statutes have standing “despite the fact that the record does not disclose that any of them has been prosecuted, or threatened with prosecution____ They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”) Accordingly, the Court held in Babbitt that the standing requirement may be satisfied “[w]hen the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” 442 U.S. at 298, 99 S.Ct. at 2309. The record before the court establishes that the plaintiffs have indeed alleged their intention to continue to conduct abortion operations, which the Supreme Court arguably has sheathed in a constitutionally-protected mantle, and which the plaintiffs assert to be proscribed by the two challenged statutes. Thus, the question before the court is whether the plaintiffs have succeeded in alleging that they do in fact face a “credible threat of prosecution” under the two abortion statutes at issue here. A credible threat, of course, must be more than merely imaginary or speculative, see Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309, but must be both “real and immediate, not conjectural or hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). It is also important to note that the court looks to the plaintiffs’ allegations in determining the standing issue, for while it is true that the plaintiffs must demonstrate an immediate threatened injury as a prerequisite to obtaining preliminary injunctive relief, they need only allege such injury to establish their standing. See Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). Applying the foregoing principles to the facts presented here, the court has no difficulty concluding that the plaintiffs have indeed made sufficient allegations of a credible threat of prosecution to establish their standing to bring this lawsuit. As was the case in Bolton, the plaintiffs here challenge vital statutes of recent vintage, and there is nothing in the record to suggest that the state authorities will refrain from bringing prosecutions under them to the full extent permitted by the statutes’ provisions. Although, as discussed more fully below, the Alabama attorney general has instructed four district attorneys to pursue prosecutions under the partial-birth abortion enactment only under particular circumstances, the court is unaware of any evidence to suggest that the plaintiffs do not risk prosecution under either challenged act for performing certain of their abortion procedures, especially in view of the plaintiffs’ allegations concerning the vagueness of, and broad net cast by, the statutes. Simply stated, the two challenged abortion acts are vital enactments that the state shows no indication of ignoring, and that, if the plaintiffs’ allegations are accepted as true, specifically target procedures that the plaintiffs provide to their patients on an ongoing basis. Thus, the court concludes that the plaintiffs have indeed alleged that they face a sufficiently credible threat of enforcement to establish their standing to sue. The attorney general defendants dispute that the alleged threat to the plaintiffs is sufficiently direct and immediate to imbue them with standing, citing Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), and a Fourth Circuit decision, Doe v. Duling, 782 F.2d 1202, 1208 (1986), to argue that the plaintiffs must show more to establish standing than the fact that state officials “stand ready to perform their general duty to enforce laws.” Examination of the factual contexts presented in Ullman and Duling, however, reveals that these cases are a far cry from the instant dispute with respect to the immediacy of the threat that the plaintiffs allegedly face. For instance, in Ullman, the plaintiffs sought to challenge in federal district court a Connecticut statute enacted in 1879 that purported to prohibit the rendering of medical advice on the use of contraceptives. That hoary statute had never, with a single possible exception, been used to prosecute any physicians. Similarly, the Virginia statutes •under attack in Duling, which proscribed “fornication and cohabitation,” had never been used as a basis for arrests or prosecution, except in the limited contexts of prostitution or non-private behavior, which were not at issue in the suit. The unmarried plaintiffs in Duling, claiming to be fearful of prosecution under the statutes for cohabitat-ing or engaging in sexual intercourse, sought declaratory and injunctive relief. In both cases, the courts refused to hold that the plaintiffs had established standing, because of the remoteness of the possibility that they would ever be prosecuted under the challenged statutes. Ullman and Duling may best be characterized as unusual cases in which the plaintiffs sought to wipe disfavored, and allegedly anachronistic, laws off the books. In fact, the Supreme Court in Bolton distinguished the live abortion statute at issue in that case from the statute challenged in Ullman, tersely observing that the former was “recent and not moribund.” Bolton, 410 U.S. at 188, 93 S.Ct. at 746. Likewise, this court notes that the two acts at issue in the instant dispute are far from moribund, and the plaintiffs’ objective is not merely to expunge allegedly obsolete laws from the state’s books. Rather, the plaintiffs here challenge newly-minted laws bearing directly on their professional activities and the source of their livelihood. As a result, the holdings in Ullman and Duling have little to say in the present context. Nor do the Supreme Court decisions in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), O’Shea v. Littleton, supra, or City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), resuscitate the defendants’ argument. In each of these cases, the Court’s holding that the plaintiffs lacked standing stemmed primarily from the fact that future unconstitutional injury to the plaintiffs was far too conjectural, being subject to contingencies that were, at best, only remotely possible, to be sufficiently real and immediate. For instance, in Golden, the plaintiff sought a declaratory judgment invalidating a statute that prohibited the distribution of anonymous handbills pertaining to election campaigns. Under the particular circumstances of the case, the only possible threatened prosecution would have revolved around the plaintiffs’ distribution of handbills concerning a single congressional candidate, who had been appointed to the Supreme Court of New York for a 14-year term, and henee would be unlikely to run for Congress again. The Court held that, given this scenario, it was “wholly conjectural” that any future prosecutions would be advanced against the plaintiff, and that, as a consequence, he did not have standing to sue for declaratory relief. Similarly, in both Lyons and O’Shea, any future recurrences of the putative threatened injury against the plaintiffs hinged upon two speculative events: first, that the plaintiffs would proceed to violate an unchallenged criminal law; and, second, that, in the course of the defendants’ response to that violation (in Lyons, the defendant city’s police officers’ use of control holds during arrest; and in O’Shea, the defendant county magistrate and circuit court judge’s setting of bond, sentencing and jury fee-setting), they would subject the plaintiffs to the allegedly unconstitutional practices. No such remote and unlikely contingencies exist here, where the plaintiffs allege that they, by pursuing the very activities upon which their careers or businesses are based, will act in a manner that subjects them to prosecution under the allegedly unconstitutional statutes. Unlike the plaintiff in Lyons, the plaintiffs here need not base the threat of a potential justiciable injury on “incredible assertion[s]” regarding the conduct of third parties. 461 U.S. at 105-06,103 S.Ct. at 1667. Having found that the plaintiffs have alleged a sufficiently credible threat of injury to confer standing upon them, the court must next address the other, more straightforward challenges to the plaintiffs’ standing raised by the attorney general defendants. As stated, the attorney general defendants assert that, with respect to the post-viability abortion statute, none of the plaintiffs can satisfy the ease-or-controversy requirement because they do not perform the proscribed types of abortion procedures. In support of this argument, the attorney general defendants place great emphasis on the Sixth Circuit’s decision in Akron Ctr. for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (6th Cir.1981), rev’d in part on other grounds, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), which concerned a statute, like the post-viability abortion statute at issue here, that proscribed abortions after “viability,” except where necessary to prevent impairment of the pregnant woman’s health or her death. The Akron ordinance, however, unlike the statute addressed here, established a presumption of viability at 24 weeks after Imp (that is, the start of the third trimester of pregnancy) Akron Ctr. for Reproductive Health, Inc. v. City of Akron, 479 P.Supp. 1172, 1185 (N.D.Ohio 1979). The Sixth Circuit affirmed the district court’s holding that physician-plaintiffs who were not performing abortions beyond the first trimester (which ends at approximately 12 weeks after Imp), and who expressed no intention to perform such abortions, lacked standing in their own right to challenge the ordinance at issue. Akron, 651 F.2d at 1210-11. Moreover, the court rejected the plaintiffs’ argument that they enjoyed third-party standing on behalf of those patients they counseled regarding post-first trimester abortions, again because they entertained no intent to themselves perform the abortions. Id. Plainly, the Akron court’s holding was a consequence of the undisputed fact that abortions carried out before the end of the first trimester, which constituted the limit beyond which the Akron plaintiff's did not perform abortions, take place well before the presumptive point (the start of the third trimester) at which the city ordinance proscribed abortion procedures. Here, by contrast, Alabama’s post-viability abortion statute, while prohibiting all abortions performed after the fetus has reached “viability,” does not explicitly define that critical juncture in terms of a point in time, nor does it set forth a presumption regarding when viability commences. Rather, the act defines “viable and viability” broadly as follows: “The stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.” 1975 Ala.Code § 26-22-2(9) (Law.Co-op. Supp.1997). Additionally, Alabama’s post-viability abortion statute, unlike the Akron ordinance, prescribes viability testing prior to abortions that are performed after 19 weeks of pregnancy. § 26-22-4. As the attorney general defendants concede, plaintiffs Summit Medical and Dr. Knorr have alleged that they perform abortions as late as 24 weeks Imp. Thus