Planned Parenthood v. Gonzales , 435 F.3d 1163 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLANNED PARENTHOOD 
FEDERATION OF AMERICA, INC.;
PLANNED PARENTHOOD GOLDEN
GATE,
Plaintiffs-Appellees,
v.
No. 04-16621
ALBERTO R. GONZALES, Attorney
General of the United States, in  D.C. No.
CV-03-04872-PJH
his official capacity,
Defendant-Appellant, OPINION
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-intervenor-
Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted
October 20, 2005—San Francisco, California
Filed January 31, 2006
Before: Stephen Reinhardt, Sidney R. Thomas, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Reinhardt
1299
PLANNED PARENTHOOD v. GONZALES 1303
COUNSEL
Peter D. Keisler, Kevin V. Ryan, Gregory G. Katsas (argued),
Marleigh D. Dover, Catherine Y. Hancock, Teal Luthy Miller,
Jeffrey A. Wadsworth, U.S. Department of Justice, Washing-
ton DC, for the defendant-appellant.
Eve C. Gartner (argued), Roger K. Evans, Mimi Liu, Planned
Parenthood Federation of America, Inc., New York, New
York; Helene Krasnoff, Planned Parenthood Federation of
America, Inc., Washington DC; Beth H. Parker, Teresa
Federer, Rachel Sommovilla, Bingham McCutchen LLP, San
Francisco, California, for the plaintiffs-appellees.
1304 PLANNED PARENTHOOD v. GONZALES
Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Walter M.
Weber, American Center for Law and Justice, Washington
D.C., for amici curiae American Center of Law and Justice
and various members of Congress in support of defendant-
appellant.
Steven W. Fitschen, The National Legal Foundation, Virginia
Beach, Virginia, for amicus curiae The National Legal Foun-
dation in support of defendant-appellant.
James Bopp, Jr., Thomas J. Marzen, Richard E. Coleson,
Bopp, Coleson & Bostrom, Terre Haute, Indiana, for amicus
curiae Horatio R. Storer Foundation, Inc. in support of
defendant-appellant.
Julie Shotzbarger, Thomas More Law Center, Ann Arbor,
Michigan, for amicus curiae Thomas More Law Center in
support of defendant-appellant.
Teresa S. Collett, University of St. Thomas School of Law,
Minneapolis, Minnesota, for amici curiae the Christian Medi-
cal and Dental Society and the Catholic Medical Association
in support of defendant-appellant.
James Joseph Lynch Jr., Brad Dacus, James Griffiths, Pacific
Justice Institute, Sacramento, California, for amici curiae
Margie Riley and Laurette Elsburry in support of defendant-
appellant.
Dennis J. Herrera, Joanne C. Hoeper, Aleeta Van Runkle,
Kathleen S. Morris, Office of the City Attorney, San Fran-
cisco, California, for the plaintiff/intervenor-appellee.
Kurt G. Calia, Gregory M. Lipper, Kimberly S. McNish, Cov-
ington & Burling, Washington, DC; David M. Jolley, Coving-
ton & Burling, San Francisco, California; Margaret C.
Crosby, American Civil Liberties Union Foundation of North-
ern California, Inc., San Francisco, California; Susan Friets-
PLANNED PARENTHOOD v. GONZALES 1305
che, Stacey I. Young, Women’s Law Project, Pittsburgh,
Pennsylvania; David S. Cohen, Women’s Law Project, Phila-
delphia, Pennsylvania, for amici curiae the California Medical
Association, Association of Reproductive Health Profession-
als, Physicians for Reproductive Choice and Health, and
seventy-five individual physicians in support of plaintiffs-
appellees.
OPINION
REINHARDT, Circuit Judge:
This appeal presents a challenge to the constitutionality of
the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-
105, 117 Stat. 1201 (codified at 18 U.S.C. § 1531). We, like
every other federal court that has considered the question,
conclude that both the Constitution and the law as established
by the Supreme Court require us to hold the Act unconstitu-
tional. Unlike the other courts, however, we do so after fully
considering the Supreme Court’s recent decision in Ayotte v.
Planned Parenthood of N. New England, No. 04-1144 (U.S.
Jan. 18, 2006). In light of Ayotte, we conclude that the only
appropriate remedy is to enjoin enforcement of the Act and
we now affirm the district court’s grant of a permanent
injunction.
I. Background
A. Post-First Trimester Abortion Methods
The vast majority of abortions in the United States are per-
formed during the first trimester.1 Approximately ten percent
1
The first trimester lasts until the thirteenth or fourteenth week of preg-
nancy, measured from the woman’s last menstrual period (“lmp”).
Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F. Supp. 2d 957, 960
1306 PLANNED PARENTHOOD v. GONZALES
of abortions are performed during the second trimester. Only
about one percent are performed after the twentieth week
from the woman’s last menstrual period (“lmp”) and only a
small portion of those after the twenty-fourth week, the earli-
est time at which viability begins. In short, only a tiny per-
centage of abortions are performed after viability may have
commenced.
Women seek abortions after the first trimester for various
reasons, including newly discovered fetal anomalies and
maternal health problems that are created or exacerbated by
the pregnancy. This is primarily because ultrasound and
amniocentesis — procedures that often detect these medical
conditions — generally are not available until the second tri-
mester. Because abortions are rarely performed after the
twenty-fourth week lmp and even more rarely after the second
trimester (in both cases almost always for medical reasons),
the Act essentially regulates previability second trimester
abortions.
Nearly all post-first trimester abortions are performed using
one of two methods: dilation and evacuation (“D&E”) or induc-
tion.2 D&E accounts for 85 to 95 percent of such abortions.
(N.D. Cal. 2004); see also Stenberg v. Carhart, 530 U.S. 914, 923 (2000)
(measuring the first trimester at twelve weeks gestational age, which
equals fourteen weeks lmp after adding the approximately two weeks
between menstruation and conception). The second trimester lasts until
approximately the twenty-seventh week lmp (twenty-four weeks gesta-
tional age), with the third culminating in birth (typically at forty weeks
lmp). Planned Parenthood, 320 F. Supp. 2d at 960. A fetus is generally
understood to have achieved viability—meaning that there exists a realis-
tic potential for long-term survival outside the uterus—at twenty-four
weeks lmp or later. Id.
2
Two additional methods are available but are used exceedingly rarely,
usually only in an emergency: hysterotomy, which resembles a caesarean
delivery through the abdomen; and hysterectomy, which involves com-
plete removal of the woman’s uterus with the fetus inside. Stenberg, 530
U.S. at 987 n.7.
PLANNED PARENTHOOD v. GONZALES 1307
Unlike induction, which is a form of “medical” abortion,
D&E is a surgical procedure involving two steps: dilation of
the cervix and surgical removal (evacuation) of the fetus.
There are two forms of D&E, intact and non-intact.3
The first step of the procedure, cervical dilation, is the same
for both forms of D&E. It is achieved primarily through the
use of osmotic dilators, which are sponge-like devices that
expand the cervix, typically over a period of twenty-four to
forty-eight hours. Some doctors also use medications known
as prostaglandins in conjunction with the osmotic dilators,
though these drugs sometimes induce labor spontaneously,
which results in partial or complete expulsion. The dilation
process is necessary so that the doctor may insert an instru-
ment, generally a type of forceps, through the cervix and into
the uterus in order to remove the fetus.
The second step of the procedure, the evacuation phase, is
when the two forms of D&E become different.4 When per-
forming a non-intact D&E, the doctor, under ultrasound guid-
3
Some doctors reject the characterization of intact and non-intact D&E
as two separate forms of the D&E procedure. Rather, they believe that
there is only a single form which is sometimes performed in a manner that
differs from other implementations, but in a way that is of no medical con-
sequence.
Other doctors choose not to label the intact and non-intact procedures
as forms of D&E for a different linguistic reason. These doctors reserve
the term D&E for the non-intact procedure and call intact removals “dila-
tion and extractions” (“D&X”). D&X is the nomenclature used in Sten-
berg. 530 U.S. at 927.
The labeling of the procedure is of no consequence to our analysis;
however, for simplicity’s sake we prefer intact and non-intact D&E. What
is relevant, however, is that one could substitute D&X for intact D&E
wherever the latter term appears in our opinion and nothing would change
in any respect.
4
In either form of D&E, the removal procedure usually lasts ten to fif-
teen minutes, during which the woman receives either conscious sedation
or general anesthesia.
1308 PLANNED PARENTHOOD v. GONZALES
ance, grasps a fetal extremity with forceps and attempts to
bring the fetus through the cervix. At this point, the fetus will
ordinarily disarticulate, or break apart, because of traction
from the cervix, and the doctor must return the instrument to
make multiple passes into the uterus to remove the remaining
parts of the fetus, causing further disarticulation. To complete
the removal process, the doctor evacuates the placenta and
any remaining material using a suction tube, or cannula, and
a spoon-like instrument called a curette.
In an intact D&E, the doctor, rather than using multiple
passes of the forceps to disarticulate and remove the fetus,
removes the fetus in one pass, without any disarticulation
occurring (i.e., the fetus is “intact”). An intact D&E proceeds
in one of two ways, depending on the position of the fetus in
the uterus. If the fetus presents head first (a vertex presenta-
tion), the doctor first collapses the head, either by compress-
ing the skull with forceps or by inserting surgical scissors into
the base of the skull and draining its contents. The doctor then
uses forceps to grasp the fetus and extracts it through the cervix.5
If the fetus presents feet first (a breech presentation), the doc-
tor begins by grasping a lower extremity and pulling it
through the cervix, at which point the head typically becomes
lodged in the cervix. When that occurs, the doctor can either
collapse the head and then remove the fetus or continue pull-
ing to disarticulate at the neck. (If the doctor uses the latter
option, he will have to use at least one more pass of the for-
ceps to remove the part of the fetus that remains, and the pro-
cedure is not considered an intact D&E.)
As the district court found, some doctors prefer to use the
intact form of D&E, whenever possible, because they believe
it offers numerous safety advantages over non-intact D&E. As
the district court also found, intact D&E may be significantly
safer than other D&E procedures because it involves fewer
5
In some cases, doctors will convert a fetus that presents head first into
the breech position before beginning the evacuation.
PLANNED PARENTHOOD v. GONZALES 1309
instrument passes, a shorter operating time and consequently
less bleeding and discomfort for the patient, less likelihood of
retained fetal or placental parts that can cause infection or
hemorrhage, and little or no risk of laceration from bony fetal
parts. Finally, as the district court found, intact D&E is in fact
the safest medical option for some women in some circum-
stances. For example, women with specific health conditions
and women who are carrying fetuses with certain abnormali-
ties benefit particularly from the availability of the intact
D&E procedure.
According to the American College of Obstetricians and
Gynecologists (“ACOG”), the safety advantages offered by
intact D&E mean that in certain circumstances it “may be the
best or most appropriate procedure . . . to save the life or pre-
serve the health of a woman.”6 Doctors typically decide
whether to attempt an intact D&E based primarily on the
amount of cervical dilation, but they can never predict before-
hand whether they will be able ultimately to remove the fetus
intact. In most cases, intact D&E is not an option from the
outset; in others, although the procedure may start out as an
intact removal, during the course of the procedure it turns into
a non-intact D&E.
As explained further below, the government construes the
Act as prohibiting intact D&Es but permitting non-intact
6
The primary alternative to the D&E procedures is induction, which
comprises approximately 5 percent of abortions performed between weeks
fourteen and twenty and 15 percent of abortions performed after the twen-
tieth week. Many doctors consider inductions less safe than D&Es. When
employing this procedure, the doctor starts an IV and uses a prostaglandin
suppository (or a saline injection) to induce uterine contractions and labor.
The entire process takes between eight and seventy-two hours, with most
inductions concluding within twenty-four hours. Some inductions will not
completely expel the fetus, requiring the doctor to perform a D&E to fin-
ish the procedure. Although a D&E may be performed in an outpatient set-
ting, a woman choosing to undergo induction must be admitted to a
hospital.
1310 PLANNED PARENTHOOD v. GONZALES
D&Es, whereas the plaintiffs assert that it covers both forms
of the procedure, as well as induction. The plaintiffs also con-
tend that even if the Act banned only intact D&Es, it would
still be unconstitutional.
B. The Statute
Enacted in response to the Supreme Court’s decision in
Stenberg v. Carhart, 530 U.S. 914 (2000), which declared a
Nebraska statute regulating “partial-birth abortions” unconsti-
tutional, the Act subjects any physician who “knowingly per-
forms a partial-birth abortion” to civil and criminal penalties,
including up to two years of incarceration. 18 U.S.C.
§ 1531(a) (2005).7 The Act’s definition of “partial-birth abor-
tion” covers an abortion performed by any doctor who:
(A) deliberately and intentionally vaginally delivers
a living fetus until, in the case of a head-first presen-
tation, the entire fetal head is outside the body of the
mother, or, in the case of breech presentation, any
part of the fetal trunk past the navel is outside the
body of the mother, for the purpose of performing an
overt act that the person knows will kill the partially
delivered living fetus; and
(B) performs the overt act, other than completion of
delivery, that kills the partially delivered living fetus.
18 U.S.C. § 1531(b)(1). Doctors who perform a “partial-birth
abortion” are exempt from criminal liability only when the
7
Before passing the Act at issue here, Congress passed two similar bans,
in 1996 and 1998, but President Clinton vetoed both of them and Congress
did not override those vetoes. See 142 CONG. REC. H3338 (daily ed. Apr.
15, 1996); 144 CONG. REC. S10564 (daily ed. Sept. 18, 1998). In support
of the earlier legislation and the Act at issue here, Congress held sporadic
hearings on the issue of “partial-birth abortion,” and received a number of
statements of policy from individuals and organizations that it included in
the Congressional Record.
PLANNED PARENTHOOD v. GONZALES 1311
procedure is “necessary to save the life of a mother whose life
is endangered by a physical disorder, physical illness, or
physical injury, including a life-endangering physical condi-
tion caused by or arising from the pregnancy itself.” 18
U.S.C. § 1531(a). The Act does not contain an exception for
abortions that are necessary to preserve the health of the
woman.
Congress made several findings of fact in support of its
determination that the Act’s prohibition did not require a
health exception. Partial-Birth Abortion Ban Act § 2(8)-(13).
Most significant, Congress found that:
There exists substantial record evidence upon which
Congress has reached its conclusion that a ban on
partial-birth abortion is not required to contain a
‘health’ exception, because the facts indicate that a
partial-birth abortion is never necessary to preserve
the health of a woman, poses serious risks to a
woman’s health, and lies outside the standard of
medical care.
Id. at § 2(13) (emphasis added). Another of Congress’s cen-
tral findings was that a “moral, medical and ethical consen-
sus” exists that intact D&E is “never medically necessary and
should be prohibited.” Id. at § 2(1).8
C. The Litigation
Directly after President George W. Bush signed the Act
into law on November 5, 2003, the plaintiffs filed this lawsuit
claiming that the Act violates rights guaranteed by the U.S.
8
Congress also declared that courts must afford great deference to its
findings, under the Supreme Court’s holdings in Turner Broadcasting Sys-
tem, Inc. v. FCC (“Turner II”), 520 U.S. 180 (1997), and related cases.
Partial-Birth Abortion Ban Act §2(8)-(12). The level of deference that
must be applied to Congress’s findings is discussed infra in Section III.A.
1312 PLANNED PARENTHOOD v. GONZALES
Constitution. The City and County of San Francisco inter-
vened as a plaintiff. On November 6, 2003, the district court
issued a temporary injunction against enforcement of the Act.9
At the government’s request, the district court consolidated
the preliminary injunction hearing and the trial on the merits.
After an approximately three-week trial in which it heard the
testimony of thirteen expert witnesses, the district court found
the Act unconstitutional and entered a permanent injunction
against its enforcement. Planned Parenthood Fed’n of Am. v.
Ashcroft, 320 F. Supp. 2d 957, 1034-35 (N.D. Cal. 2004).
The district court’s holding rested on its determination that
the Act violated the Constitution in three respects. First, the
district court found the Act unconstitutional because it
imposed an undue burden on a woman’s right to choose to
terminate her pregnancy before viability. The court concluded
that the Act’s definition of “partial-birth abortion” reached all
D&E procedures as well as certain induction abortions.
Because D&E and induction procedures comprise nearly all
post-first trimester abortions, the district court concluded that
the Act created a risk of criminal liability for virtually all
abortions performed after the first trimester, which, the dis-
trict court found, placed a substantial obstacle in the path of
abortion-seekers. In the alternative, the court found that the
Act created an undue burden even if construed to apply only
to intact D&Es. It found that the failure to distinguish
between previability and postviability abortions placed a sub-
stantial obstacle in the path of women who seek or require an
intact D&E prior to viability, even under the unconvincing
alternate construction of the statute.
Second, the district court found the Act unconstitutionally
vague. The court reasoned that the term “partial-birth abor-
9
In two similar lawsuits, injunctions were also obtained from federal
district courts in New York and Nebraska. See Nat’l Abortion Fed’n
(“NAF”) v. Ashcroft, 330 F. Supp. 2d 436, 442 (S.D.N.Y. 2004); Carhart
v. Ashcroft, 287 F. Supp. 2d 1015, 1016 (D. Neb. 2003).
PLANNED PARENTHOOD v. GONZALES 1313
tion” was not recognized in the medical community, and the
phrases “living fetus,” “deliberately and intentionally,” and
“overt act” failed to put physicians on notice as to what proce-
dures would violate the statute. As a result, the district court
found that the Act deprived physicians of fair notice and
encouraged arbitrary enforcement. The district court held that
the inclusion of scienter requirements did not remedy the
vagueness.
Third, the district court found the Act unconstitutional
because it failed to include a health exception. The court held
that as a preliminary matter, it need not decide the highly dis-
puted issue of the proper standard of deference applicable to
Congress’s findings because, even under the most deferential
standard of review, Congress’s finding that the prohibited
procedures were never medically necessary to preserve
women’s health was not entitled to controlling deference.
Instead, the court, on the basis of the record before Congress
at the time it passed the Act, the record before the district
court and Supreme Court in Stenberg, and the record adduced
by the parties in the present case, concluded that the Act’s
failure to include a health exception rendered it unconstitu-
tional.
D. Other Federal Courts’ Treatment of the Act
In addition to the district court, three other federal courts
have reviewed the Act and each has held it unconstitutional.
The Eighth Circuit declared the Act unconstitutional because
it failed to contain an exception for women’s health as
required under Stenberg. Carhart v. Gonzales, 413 F.3d 791,
803-04 (8th Cir. 2005).10 The district court in that case also
found the Act unconstitutional because of the lack of a health
exception, as well as because it imposed an undue burden on
10
Because it found the Act unconstitutional on the ground that it lacked
a health exception, the Eighth Circuit declined to reach the statute’s other
potential constitutional infirmities. Carhart, 413 F.3d at 803-04.
1314 PLANNED PARENTHOOD v. GONZALES
a woman’s ability to choose a previability, post-first trimester
abortion. Carhart v. Ashcroft, 331 F. Supp. 2d 805, 809 (D.
Neb. 2004).11 Finally, the District Court for the Southern Dis-
trict of New York found the Act unconstitutional because it
did not contain a health exception. Nat’l Abortion Fed’n.
(“NAF”) v. Ashcroft, 330 F. Supp. 2d 436, 492-493 (S.D.N.Y.
2004).12 None of these courts considered separately the ques-
tion of remedy because under Stenberg, 530 U.S. at 946,
enjoining enforcement of the Act appeared to be mandatory
at the time the decisions were issued. Ayotte, slip op. at 9.
II. Standard of Review
We review an order granting a permanent injunction for
abuse of discretion or application of erroneous legal princi-
ples, Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075,
1079 (9th Cir. 2004), but review determinations underlying
such a grant by the standard that applies to such determina-
tions. Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir. 2003).
As a result, underlying legal rulings are reviewed de novo and
underlying factual findings are reviewed under the clearly
erroneous standard. Id. The question whether the Act imposes
an undue burden or is unconstitutionally vague is a legal issue
subject to de novo review. Planned Parenthood of S. Ariz. v.
Lawall (“Lawall II”), 307 F.3d 783, 786 (9th Cir. 2002).
In analyzing a facial challenge to an abortion statute, we
apply the undue burden standard established in Planned Par-
enthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895
11
In addition, the Nebraska district court noted that the law would be
unconstitutionally vague if the government’s “ ‘specific intent’ construc-
tion” of the statute was not valid. Although the court accepted the govern-
ment’s construction, the judge stated, “I would not be surprised if I was
reversed on this point. If I have erred by accepting [the government’s]
construction, and that is a close question, then the statute is obviously far
too vague.” Carhart, 331 F. Supp. 2d at 1040.
12
The NAF court also declined to reach the other grounds for declaring
the statute unconstitutional. NAF, 330 F. Supp. 2d at 482-83.
PLANNED PARENTHOOD v. GONZALES 1315
(1992). Lawall II, 307 F.3d at 786. “[T]he fact that the statute
is susceptible to some constitutional application will not save
it from facial attack. Rather, we must be satisfied that it will
pose an undue burden in only a small fraction of relevant
cases.” Planned Parenthood of Idaho Inc. v. Wasden, 376
F.3d 908, 921 (9th Cir. 2004); see also Richmond Med. Ctr.
for Women v. Hicks, 409 F.3d 619, 627-28 (4th Cir. 2005)
(noting the recent Supreme Court case Sabri v. United States,
541 U.S. 600 (2004), makes clear that the “no set of circum-
stances” test for facial challenges from United States v.
Salerno, 481 U.S. 739 (1987), “does not apply in the context
of a facial challenge, like the one here, to a statute regulating
a woman’s access to abortion”). When the question concerns
the existence of an adequate health exception, “facial chal-
lenges may prevail in an even broader group of cases: those
where a law could preclude an abortion where it is necessary,
in appropriate medical judgment, for the preservation of the
life or health of the mother.” Wasden, 376 F.3d at 921 n.10
(citing Stenberg, 530 U.S. at 930) (internal quotation marks
omitted); see also Carhart, 413 F.3d at 795 (“[I]f the Act fails
the Stenberg test, it must be held facially unconstitutional.”);
Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 196
(6th Cir. 1997) (“[A] post-viability abortion regulation which
threatens the life or health of even a few pregnant women
should be deemed unconstitutional.”), quoted in Planned Par-
enthood of Rocky Mountain Serv. v. Owens, 287 F.3d 910,
919 (10th Cir. 2002).
When determining the remedy for a statute found to be
unconstitutional, we are guided by “three interrelated princi-
ples”: one, we try to invalidate no more of a statute than is
necessary to remedy the constitutional violation; two, we are
mindful that the limited judicial role and our institutional
competence prevent us from rewriting a statute in order to
make it constitutional; and three, any remedy we devise must
be faithful to the legislative intent in enacting the statute.
Ayotte, slip op. at 6-10.
1316 PLANNED PARENTHOOD v. GONZALES
III. Analysis
We hold that the Act is unconstitutional for three distinct
reasons, each of which is sufficient to justify the district
court’s holding. First, the Act lacks the constitutionally
required health exception. Second, it imposes an undue bur-
den on women’s ability to obtain previability abortions. Third,
it is unconstitutionally vague, depriving physicians of fair
notice of what it prohibits and encouraging arbitrary enforce-
ment. For reasons explained in Section IV infra, we conclude
that the appropriate remedy is to enjoin the enforcement of the
Act. We therefore affirm the district court’s issuance of the
permanent injunction.
A. The Act Is Unconstitutional Because It Lacks Any Excep-
tion to Preserve the Health of the Mother
We hold that the omission of a health exception from the
Act renders it unconstitutional. In reaching that conclusion,
we first determine whether and in what circumstances a stat-
ute that regulates abortion but lacks a health exception is con-
stitutional under Stenberg. Next, we consider the proper
standard of review for the findings Congress made in support
of its omission of a health exception from the Act. Finally, in
light of this analysis, we assess the Act and the congressional
findings that bear on its constitutionality.
i. The Standard for Evaluating Abortion Restrictions that
Lack a Health Exception
[1] Our analysis of whether the Act’s lack of a health
exception renders it unconstitutional is controlled by Stenberg
and Casey. Stenberg reaffirms Casey’s holding that the Con-
stitution requires that any abortion regulation must contain
such an exception if the use of the otherwise regulated proce-
dure may in some instances be necessary to preserve a
woman’s life or health. Wasden, 376 F.3d at 922; see also
Hicks, 409 F.3d at 625. Stenberg holds that an abortion regu-
PLANNED PARENTHOOD v. GONZALES 1317
lation that fails to contain a health exception is unconstitu-
tional except when there is a medical consensus that no
circumstance exists in which the procedure would be neces-
sary to preserve a woman’s health. 530 U.S. at 937. By medi-
cal consensus, we do not mean unanimity or that no single
doctor disagrees, but rather that there is no significant dis-
agreement within the medical community.
The Stenberg holding implements the health exception
requirement announced in Casey. Casey held that even when
the state’s interest in regulating abortion is at its height (i.e.,
postviability), any restriction of an abortion method must
include an exception when that method “ ‘is necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother’ ” in some circumstances. Stenberg,
530 U.S. at 921 (quoting Casey, 505 U.S. at 879 (quoting Roe
v. Wade, 410 U.S. 113, 164-65 (1973))). The Supreme Court
noted that the phrase “necessary, in appropriate medical judg-
ment” does not require “absolute necessity,” “absolute proof,”
or “unanimity of medical opinion” regarding the need for the
use of the regulated procedure to preserve women’s health in
some instances. Stenberg, 530 U.S. at 937. In fact, the Court
emphasized that, for purposes of Casey’s requirement that an
abortion ban have a health exception, “division of medical
opinion . . . signals the presence of risk, not its absence,” and
thus compels the inclusion of the exception in the statute. Id.
Because “uncertainty” or division in the medical community
regarding the need for a health exception “means a significant
likelihood that those who believe that [a particular type of
abortion procedure] is a safer abortion method in certain cir-
cumstances [than the alternatives] may turn out to be right,”
the Court held that as long as there is a lack of consensus in
that community, any regulation of an abortion method must
contain a health exception. Id. at 937-38. Without a medical
consensus, the Court stated, it is impossible for a legislative
body to determine that “a health exception is never necessary
to preserve the health of women” and, in such circumstance,
any abortion regulation the legislature enacts without a health
1318 PLANNED PARENTHOOD v. GONZALES
exception is unconstitutional. Id. (internal quotation marks
omitted); see also Carhart, 413 F.3d at 796 (“[W]e believe
when a lack of consensus exists in the medical community,
the Constitution requires legislatures to err on the side of pro-
tecting women’s health by including a health exception.”).
Under the constitutional rule established in Stenberg, there-
fore, we must inquire whether — applying the appropriate
degree of deference to the legislative body’s findings — the
legislature properly concluded that there is consensus in the
medical community that the banned procedure is never medi-
cally necessary to preserve the health of women. See NAF,
330 F. Supp. 2d at 488.13
ii. Identifying and Applying the Appropriate Level of
Deference to Congress’s Factual Findings in the Act
Having identified the inquiry we must undertake in order to
assess the constitutionality of the Act’s lack of a health excep-
tion, we now turn to the level of deference we must apply to
the relevant congressional findings. Here, Congress omitted a
health exception because it found that “the facts indicate that
a partial-birth abortion is never necessary to preserve the
13
The government’s argument that the lack of medical consensus was
“only one of four ‘evidentiary circumstances’ bearing on the question of
comparative safety” and not the “dispositive constitutional standard” mis-
construes the Stenberg opinion. A careful reading of Stenberg makes clear
that the Court discusses the “evidentiary circumstances” in the context of
Casey’s principle that an abortion restriction must contain a health excep-
tion when “necessary, in appropriate medical judgment, for the . . . health
of the mother.” As explained above, the requirement that a lack of medical
consensus mandates the inclusion of a health exception is the direct mani-
festation of this principle. The “medically related evidentiary circum-
stances” are discussed by the Court in explaining its conclusion that there
was a lack of medical consensus about the need for a health exception to
the ban contained in the Nebraska statute and thus the statute was uncon-
stitutional. The discussion of these “medically related evidentiary circum-
stances” does not establish or imply that “comparative safety,” as
determined by the legislative body, is the standard for assessing an abor-
tion ban that lacks a health exception.
PLANNED PARENTHOOD v. GONZALES 1319
health of a woman,” Partial-Birth Abortion Ban Act § 2(13),
and that a “moral, medical and ethical consensus” exists that
“partial-birth abortion” is “never medically necessary and
should be prohibited.” Id. at § 2(1). Under Stenberg, the for-
mer finding is dependent on the validity of the latter.
The government and many of the amici argue that Con-
gress’s findings of fact in this case should be evaluated under
the standard articulated by the Court in Turner Broadcasting
System v. FCC (“Turner II”), 520 U.S. 180 (1997), and
related cases. Under this standard, when reviewing findings of
fact that bear on the constitutionality of a statute, a reviewing
court need only “ ‘assure that, in formulating its judgments,
Congress has drawn reasonable inferences based on substan-
tial evidence.’ ” Id. at 195 (quoting Turner Broad. Sys. v.
FCC (“Turner I”), 512 U.S. 622, 666 (1994)). The Court has
explained that when applying the substantial evidence stan-
dard, “the possibility of drawing two inconsistent conclusions
from the evidence does not prevent . . . [a] finding from being
supported by substantial evidence.” Turner II, 520 U.S. at 211
(internal quotation marks and citations omitted). The appel-
lants and other amici, however, strongly argue that Turner
does not apply to evaluations of the Act’s constitutionality.
As an initial matter, we note that the Court’s treatment of
the level of deference to be applied to congressional findings
that bear on the constitutionality of statutes has been less than
clear. In some cases, the Court has expressly applied the sub-
stantial evidence standard described in Turner and related
decisions. See, e.g., McConnell v. FEC, 540 U.S. 93, 165
(2003). In others, the Court, without mentioning Turner or
substantial evidence, and without identifying the standard of
review it is applying, has reviewed congressional findings of
fact with considerably less deference. See, e.g., Bd. of Trust-
ees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368-72 (2001);
United States v. Morrison, 529 U.S. 598, 609-13 (2000). Con-
sidered together, these cases make it difficult to identify the
proper standard to be applied to congressional findings that
1320 PLANNED PARENTHOOD v. GONZALES
bear on the constitutionality of certain statutes; in fact, they
suggest that no single standard exists.
Fortunately, we need not resolve the question of the proper
standard of review for findings made pursuant to the Act.
Under even the most deferential level of review, the one iden-
tified as applicable in Congress’s findings and by the govern-
ment in its arguments to this court, we cannot defer to the
critical congressional finding in this case: that there is a con-
sensus in the medical community that the prohibited proce-
dures are never necessary to preserve the health of women
choosing to terminate their pregnancies. The record before
Congress clearly demonstrates that no such consensus exists,
as do the congressional findings themselves. As a result, we
cannot uphold the finding to the contrary, even if we apply
substantial evidence review.
Although Congress found that “[a] moral, medical, and eth-
ical consensus exists that the practice of performing a partial-
birth abortion . . . is never medically necessary,” Partial-Birth
Abortion Ban Act § 2(1), that finding is directly belied by
another of Congress’s findings and by the record that Con-
gress developed in support of the legislation. The evidence of
the lack of medical consensus is replete throughout that
record and is confirmed in a significant statutory finding. As
the district court pointed out, “Congress’[s] very findings con-
tradict its assertion that there is a consensus. Congress subse-
quently noted in its findings that ‘a prominent medical
association,’ the AMA, concluded that ‘there is no consensus
among obstetricians about’ the use of intact D&E.” Planned
Parenthood, 320 F. Supp. 2d at 1025 (citing Partial-Birth
Abortion Ban Act § 2(14)(C)) (emphasis added). The district
court also noted that “Congress . . . had before it a joint state-
ment from the AMA and ACOG, the two largest medical
organizations taking positions on the issue, which recognized
the disagreement among and within the two organizations.”
Id. at 1025. Furthermore, “nearly half (22 out of 46) of all
individual physicians who expressed non-conclusory opinions
PLANNED PARENTHOOD v. GONZALES 1321
to Congress” stated that the banned procedures were neces-
sary in at least some circumstances, as did professors of
obstetrics and gynecology from many of the nation’s leading
medical schools. Carhart, 331 F. Supp. 2d at 1009; see also
Planned Parenthood, 320 F. Supp. 2d at 1025-26 (describing
other evidence before Congress demonstrating a lack of medi-
cal consensus).
[2] The evidence before Congress at the time it passed the
Act, as well as other evidence presented during litigation, has
led every court that has considered the statute’s constitutional-
ity to conclude that no medical consensus exists that the abor-
tion procedures outlawed by the Act are never necessary to
preserve the health of a woman — and we agree. See Carhart,
413 F.3d at 802 (“If one thing is clear from the record in this
case, it is that no consensus exists in the medical community.
The record is rife with disagreement on this point, just as in
Stenberg.”); Carhart, 331 F. Supp. 2d at 1008 (“In fact, there
was no evident consensus in the record that Congress com-
piled. There was, however, a substantial body of medical
opinion presented to Congress in opposition.”); id. at 1009
(“Based upon its own record, it was unreasonable to find, as
Congress did, that there was ‘consensus’ of medical opinion
supporting the ban. Indeed, a properly respectful review of
that record shows that a substantial body of contrary, respon-
sible medical opinion was presented to Congress. A reason-
able person could not conclude otherwise.”); NAF, 330 F.
Supp. 2d at 482 (“There is no consensus that [intact D&E] is
never medically necessary, but there is a significant body of
medical opinion that holds the contrary.”); Planned Parent-
hood, 320 F. Supp. 2d at 1025 (“[T]he evidence available to
Congress in passing the Act in 2003, and currently before this
court, very clearly demonstrates . . . that there is no medical
or ethical consensus regarding either the humanity, necessity,
or safety of the procedure.”).
The government all but admits in its reply brief that no
medical consensus exists regarding the need for the prohibited
1322 PLANNED PARENTHOOD v. GONZALES
procedures to preserve the health of women in certain circum-
stances. See Appellant’s Reply Brief at 25 (admitting that
“both sides now concede the existence of ‘contradictory evi-
dence’ in the congressional and trial records”). Nonetheless,
it argues that the lack of consensus regarding whether the pro-
cedures prohibited by the Act are ever necessary to preserve
the health of women is irrelevant because under Turner courts
must resolve reasonable factual disagreements in favor of
congressional findings. The flaw in the government’s argu-
ment is not the standard of review it invokes, which may or
may not be correct, but the factual dispute it identifies as rele-
vant. In reviewing the Act’s lack of a health exception, the
dispositive question is not, as the government asserts, whether
Congress’s finding that the prohibited procedures are never
necessary to preserve the health of a mother offers a reason-
able (or plausible) resolution of a genuine factual dispute
(which incidentally the record shows it does not). Rather,
under Stenberg, it is whether there is general agreement in the
medical community that there are no circumstances in which
the procedure would be necessary to preserve a woman’s
health.
Even the most cursory review of the Act and the congres-
sional record developed in support of it reveals that no such
medical consensus exists, a fact that the government essen-
tially concedes in its brief to this court and that is fully con-
firmed by the evidence introduced in the district court during
trial. Thus, whether we use Turner’s substantial evidence test
or a more rigorous standard, under no circumstances would
the record permit us to uphold a finding that meets the Sten-
berg requirement of the absence of a division of opinion in
the medical community.
[3] We conclude that we cannot defer to Congress’s finding
that the procedures banned by the Act are never required to
preserve the health of women; to the contrary, we are com-
pelled to conclude, on the basis of the record before Congress,
of the congressional findings themselves, and of evidence
PLANNED PARENTHOOD v. GONZALES 1323
introduced in the district court, that a substantial disagreement
exists in the medical community regarding whether those pro-
cedures are necessary in certain circumstances for that pur-
pose. In such circumstance, we are compelled to hold that a
health exception is constitutionally required. We therefore
affirm the district court’s holding that Congress’s failure to
include a health exception in the statute renders the Act unconsti-
tutional.14
B. The Act is Unconstitutional Because It Imposes an Undue
Burden on Women’s Right to Choose a Previability Abortion
[4] In addition to its lack of a health exception, the Act suf-
fers from other major deficiencies that lead us to conclude
that it is unconstitutional, including the undue burden it
imposes on a woman’s constitutional right to choose to have
an abortion before the fetus is viable.15 The Constitution guar-
antees a woman the right to choose to terminate a previability
pregnancy. Stenberg, 530 U.S. at 921 (quoting Casey, 505
U.S. at 870); Tucson Woman’s Clinic v. Eden, 379 F.3d 531,
539 (9th Cir. 2004) (as amended); Wasden, 376 F.3d at 921.
Although the Constitution firmly guarantees women that
right, the state may seek to protect its interest in fetal life by
regulating the means by which abortions may be secured, pro-
vided the regulations do not impose an “undue burden” on a
woman’s ability to obtain an abortion. Stenberg, 530 U.S. at
14
Our conclusion applies whether the Act is construed as banning only
intact D&Es or all D&Es. See section III.B infra. Whenever a procedure
is banned that may be necessary to preserve some women’s health, a statu-
tory exception is required. Stenberg, 530 U.S. at 934-38.
15
The question of the constitutionality of statutes that regulate “partial-
birth abortions” is of substantial importance and requires as prompt an
answer as possible. Rather than relying solely on one ground and reserving
the other questions as to the statute’s constitutionality for later adjudica-
tion, we deem it best to decide simultaneously all constitutional issues
raised. Moreover, whether a remedy other than enjoining enforcement of
the Act in its entirety is appropriate may depend in part on the nature and
extent of the constitutional violations. See Ayotte, slip op. at 7.
1324 PLANNED PARENTHOOD v. GONZALES
921; Casey, 505 U.S. at 874; see also Tucson Woman’s
Clinic, 379 F.3d at 539; Wasden, 376 F.3d at 921. An
“ ‘undue burden is . . . shorthand for the conclusion that a
state regulation has the purpose or effect of placing a substan-
tial obstacle in the path of a woman seeking an abortion of a
nonviable fetus.’ ” Stenberg, 530 U.S. at 921 (quoting Casey,
505 U.S. at 877).
[5] In Stenberg, the Court held that a Nebraska statute regu-
lating so-called “partial-birth abortions” imposed an undue
burden. Without deciding the issue whether a statute that out-
lawed only intact D&Es would be unduly burdensome, the
Stenberg court held that an abortion ban that failed to differ-
entiate in its statutory language between intact D&Es and
non-intact D&Es unquestionably constituted an undue burden,
for the obvious reason that it would prohibit most second tri-
mester abortions. Stenberg, 530 U.S. at 938-46. As part of its
analysis, the Stenberg Court provided legislatures with guid-
ance about how to draft statutes that would adequately distin-
guish between the two forms of D&E. The Court explained
that a legislature can make clear that a statute intended to reg-
ulate only intact D&Es applies to that form of the procedure
only, by using language that “track[s] the medical differences
between” intact and non-intact D&Es or by providing an
express exception for the performance of non-intact D&Es
and other abortion procedures. Stenberg, 530 U.S. at 939.16 In
16
As an example, the Court cited Kansas’s “partial-birth abortion” ban
which explicitly exempts the “dilation and evacuation abortion procedure
involving dismemberment of the fetus prior to removal from the body of
the pregnant woman.” Kan. Stat. Ann. § 65-6721(b)(2) (Supp. 1999), cited
in Stenberg, 530 U.S. at 939. The Ohio “partial-birth abortion” ban
recently upheld by the Sixth Circuit also specifically exempts non-intact
D&Es in its statutory language. See Women’s Med. Prof’l Corp. v. Taft,
353 F.3d 436, 452 (6th Cir. 2003) (upholding Ohio Rev. Code Ann.
§ 2919.151 (Anderson 2002)); see also Planned Parenthood of Cent. N.J.
v. Farmer, 220 F.3d 127, 140 (3rd Cir. 2000) (declaring New Jersey’s
“partial-birth abortion” ban unconstitutional and stating that “[i]f the Leg-
islature intended to ban only the [intact D&E] procedure, it could easily
have manifested that intent either by specifically naming that procedure or
by setting forth the medical definition of [intact D&E] utilized by the
ACOG”).
PLANNED PARENTHOOD v. GONZALES 1325
her concurring opinion, Justice O’Connor emphasized how by
employing the latter approach, a legislature could easily make
clear that a statute intended to regulate intact D&E was in fact
narrowly tailored to reach only that form of the D&E proce-
dure. Stenberg, 530 U.S. at 950 (O’Connor, J., concurring).
Citing three state statutes prohibiting intact D&Es which had
“specifically exclud[ed] from their coverage” other abortion
methods,17 Justice O’Connor described the language each stat-
ute used, providing legislatures wishing to prohibit only intact
D&Es with a clear roadmap for how to avoid the problems
regarding the scope of coverage that undid the Nebraska stat-
ute. Id.
When drafting the Act, however, Congress deliberately
chose not to follow the Court’s guidance. See Section IV
infra. The Act’s definition of the prohibited procedures does
not attempt to track the medical differences between intact
D&E and other forms of D&E, nor does it explicitly exclude
non-intact D&Es from its reach. Instead of using either of
these approaches for accomplishing the objective the govern-
ment embraces in its brief — prohibiting only intact D&Es,
Congress defined the prohibited procedure in a way that a
number of doctors have explained includes both intact and
non-intact D&Es, and that we likewise conclude bans both
forms of the procedure. Because the Act, like the statute
invalided in Stenberg, would allow prosecutors to pursue phy-
sicians who “use [non-intact] D&E procedures, the most com-
monly used method for performing previability second
trimester abortions” and would cause all doctors performing
those procedures to “fear prosecution, conviction, and impris-
onment,” Stenberg, 530 U.S. at 945, it too is unconstitutional.18
17
In addition to the Kansas statute referenced in the majority opinion,
Justice O’Connor also cited laws enacted by Montana, Mont. Code Ann.
§ 50-20-401(3)(c)(ii) (Supp. 1999), and Utah, Utah Code Ann. § 76-7-
310.5(1)(a) (1999). Stenberg, 530 U.S. at 950 (O’Connor, J., concurring).
18
Stenberg held that a regulation that prohibits non-intact D&Es as well
as intact D&Es imposes an undue burden. Stenberg, 530 U.S. at 938.
Because the prohibition here applies to both, we need not reach the issue
whether the Act also applies to induction procedures. Nor need we decide
whether if the Act applied only to intact D&Es, it would on that basis
alone unduly burden the rights of women.
1326 PLANNED PARENTHOOD v. GONZALES
Neither the differences the government cites between the lan-
guage of the Act and the Nebraska statute nor the scienter
requirements contained in the Act limit its application to the
intact D&E procedure and neither, therefore, serves to cure
the statute’s constitutional infirmity.
i. The Act Encompasses Non-Intact D&E Procedures
The government offers no explanation for why Congress
did not adopt either of the two approaches outlined by the
Court and Justice O’Connor in Stenberg for legislating a pro-
hibition that is applicable only to the intact D&E procedure.
Rather, it asserts that the federal statute differs from the
Nebraska statute invalidated in Stenberg in three significant
respects that collectively make it clear that the Act applies
only to that form of the procedure. It argues that, as a result,
the Act is constitutional although the Nebraska law was not.
The differences in statutory language to which the govern-
ment points fall far short, however, of adequately differentiat-
ing between the two forms of D&E, much less of achieving
the degree of certainty regarding the Act’s scope that Con-
gress could have easily accomplished had it followed Sten-
berg, either by tracking the medical differences between
intact D&E and other forms of D&E or by specifying that the
forms of D&E other than the intact version are not covered by
the prohibition.
The three differences between the Act and the Nebraska
statute that the government relies on are as follows. First, the
government notes that unlike the Nebraska statute which
applied when the living fetus or a substantial portion of it was
delivered “into the vagina,” Neb. Rev. Stat. § 28-326(9), the
federal Act applies only when there is a vaginal delivery “out-
side the body of the mother,” 18 U.S.C. § 1531(b)(1)(A). The
government argues that because non-intact D&E generally
involves dismemberment of the fetus before it leaves the
mother’s body, the specification that the Act applies only
when a living fetus or a part thereof is delivered outside the
PLANNED PARENTHOOD v. GONZALES 1327
mother’s body makes clear that the Act does not apply to that
procedure. The government’s claim is incorrect. As the record
demonstrates and the district court found, in non-intact D&Es,
a doctor may extract a substantial portion of the fetus —
including either a part of the fetal trunk past the navel or the
entire fetal head — to the point where it is outside the body
of the mother before the fetal disarticulation occurs. Although
different from the provision in the Nebraska statute, the “out-
side the body of the mother” provision does not limit the
Act’s reach to intact D&Es and, as a result, does not eliminate
the undue burden the Act imposes.
Second, the Nebraska statute applied only when “a living
unborn child, or a substantial portion thereof” is delivered for
the purpose of performing a prohibited act, Neb. Rev. Stat.
§ 28-326(9), whereas the federal Act states its prohibition
applies only when either the “entire fetal head” or “any part
of the fetal trunk past the navel” of a living fetus is delivered
for a similar purpose, 18 U.S.C. § 1531(b)(1)(A). The govern-
ment argues that the use of a “specific anatomic landmark”
addresses the concern the Supreme Court expressed with the
“substantial portion” language of the Nebraska statute.19 As
with the first difference relied upon by the government, how-
ever, the “specific anatomic landmark” language makes the
Act different from the Nebraska statute but does not exclude
non-intact D&Es from the Act’s coverage. As the district
court found, intact D&Es are not the only form of D&E in
which the “entire fetal head” or “any part of the fetal trunk
past the navel” of a living fetus may be delivered prior to the
performance of an act banned by the statute: the “anatomic
19
In Stenberg, the Court stated it did not understand how using the lan-
guage of the Nebraska statute “one could distinguish . . . between [non-
intact] D&E (where a foot or arm is drawn through the cervix) and [intact
D&E] (where the body up to the head is drawn through the cervix). Evi-
dence before the trial court makes clear that [non-intact] D&E will often
involve a physician pulling a ‘substantial portion’ of a still living fetus,
say, an arm or leg, into the vagina prior to the death of the fetus.” 530 U.S.
at 939.
1328 PLANNED PARENTHOOD v. GONZALES
landmark” specified in the Act may be reached by doctors
performing either intact or non-intact D&Es.20 Accordingly,
this second difference from the Nebraska statute, like the first,
does not establish that the Act is applicable only to intact
D&Es.
Third, the Nebraska statute applied when a doctor “deliber-
ately and intentionally deliver[s] into the vagina a living
unborn child, or a substantial portion thereof, for the purpose
of performing a procedure that the person performing such
procedure knows will kill the unborn child and does kill the
unborn child.” Neb. Rev. Stat. § 28-326(9) (emphasis added).
The federal statute, however, requires that a doctor “deliber-
ately and intentionally vaginally deliver[ ] a living fetus . . .
for the purpose of performing an overt act that the person
knows will kill the partially delivered living fetus” and “per-
form[ ] the overt act, other than completion of delivery, that
kills the partially delivered living fetus.” 18 U.S.C.
§ 1531(b)(1)(A), (B). The government argues that this “overt
act” requirement unambiguously establishes that the Act does
not apply to abortion procedures other than intact D&Es.
However, this language is also not as restrictive as the gov-
ernment claims. In non-intact D&Es, as well as in the intact
form of the procedure, if the fetus has been brought to either
of the two anatomic landmarks specified in the Act, a doctor
may then, in order to complete the abortion safely, need to
perform an “overt act,” other than completing delivery, that
the physician knows the fetus cannot survive, if it is still liv-
20
In a non-intact D&E, the presence of “some part of the fetal trunk past
the navel . . . outside the body of the mother” can occur, for instance,
when “on an initial pass into the uterus with forceps, the physician disar-
ticulates a small fetal part, which does not cause immediate demise, and
then on a subsequent pass, the fetus is brought out of the cervix past the
fetal navel” before further disarticulation occurs or when “on an initial
pass into the uterus with forceps, the physician brings out a fetal part —
either attached to the rest of the fetus, or not — that is ‘part of the fetal
trunk past the navel,’ but the extraction does not cause immediate
demise.” See Planned Parenthood, 320 F. Supp. 2d at 972.
PLANNED PARENTHOOD v. GONZALES 1329
ing, and that “kills” the fetus. The “overt act” that may be per-
formed in a non-intact D&E includes disarticulating the fetus
or compressing the abdomen or other fetal part that is
obstructing the completion of the uterine evacuation. As with
the other two differences in the statutory language that the
government claims clearly establish that the Act applies only
to intact D&E, the “overt act” language does not so restrict
the Act’s applicability.
[6] Contrary to the government’s claim, properly construed
the Act covers non-intact as well as intact D&Es. As a result,
despite containing some provisions that are different in form
from those in the Nebraska statute, the Act is sufficiently
broad to cause those who perform non-intact D&E procedures
to “fear prosecution, conviction, and imprisonment.” Sten-
berg, 530 U.S. at 945. The resulting chilling effect on doctors’
willingness to perform previability post-first trimester abor-
tions would impose an undue burden on the constitutional
rights of women. Id.21
ii. The Act’s Scienter Requirements Do Not Cure the Consti-
tutional Infirmity
The government also argues that the Act’s scienter require-
ments preclude application of the statute to physicians who
perform non-intact D&E procedures and that the federal stat-
ute should therefore survive constitutional scrutiny. Although
the Act does limit its reach to those who “knowingly perform
a partial-birth abortion,” 18 U.S.C.§ 1531(a) (emphasis
added), and “deliberately and intentionally vaginally deliv-
er[ ] a living fetus until, in the case of a head-first presenta-
tion, the entire fetal head is outside the body of the mother,
or, in the case of breech presentation, any part of the fetal
21
We note that the Act’s reference to “living fetus” does not differenti-
ate it from the Nebraska statute, which used the same term. Nor does this
or any other language in the Act limit its applicability to viable fetuses.
See infra pages 1336-37.
1330 PLANNED PARENTHOOD v. GONZALES
trunk past the navel is outside the body of the mother,” 18
U.S.C. § 1531(b)(1)(A) (emphasis added), these scienter
requirements do not permit us to interpret the Act as reaching
only the intact D&E procedure.
[7] The government’s argument about the restrictive effect
of the statute’s scienter requirements depends on the premise
that, once the scienter requirements are applied, the Act’s
description of the prohibited procedure includes only intact
D&Es. However, that is simply not the case. The actions
described in the statute’s definition of the prohibited proce-
dure can be performed with the requisite intent in both the
intact and the non-intact forms of the D&E procedure. For
instance, the record shows that a doctor performing a non-
intact D&E of a fetus in the breech position may, in order to
minimize the number of disarticulated fetal parts removed
from the woman’s body, “deliberately and intentionally vagi-
nally deliver[ ] a living fetus until . . . the fetal trunk past the
navel is outside the body of the mother” before performing
the acts of disarticulation. Such an abortion meets all of the
requirements of the procedure outlawed by the Act — the
doctor knowingly, deliberately, and intentionally vaginally
delivers the fetus to the specific anatomic landmark and does
so for the purpose of performing an “overt act [the disarticula-
tion] that [he] knows will kill the partially delivered living
fetus” and performs that act. See, e.g., Brief of Amici Curiae
the California Medical Association et al. at 22.22 Even with
the Act’s scienter requirements, therefore, non-intact D&Es
readily fall within the scope of the statute’s description of the
banned procedure. As a result, the inclusion of the scienter
requirements does not resolve the undue burden concerns rec-
ognized by the Supreme Court in Stenberg.
22
Because the Act’s definition reaches many non-intact D&E proce-
dures even if “deliberately and intentionally” modifies not only the vaginal
delivery language but also the language describing the other steps con-
tained in the Act’s definition of “partial-birth abortion,” it is unnecessary
to resolve the parties’ dispute as to which parts of the procedure as defined
by the Act the “deliberately and intentionally” requirement applies.
PLANNED PARENTHOOD v. GONZALES 1331
iii. Conclusion
[8] The Act’s definition of the prohibited procedure, like
that of the unconstitutional Nebraska statute, covers both
forms of D&E, intact and non-intact. In any event, it fails to
differentiate between the two sufficiently clearly to permit
doctors to perform the latter procedure without fear of prose-
cution. Because the Act applies to, or could readily be
employed to prosecute, physicians who “use [non-intact]
D&E procedures, the most commonly used method for per-
forming previability second trimester abortions,” Stenberg,
530 U.S. at 945, it imposes a substantial risk of criminal lia-
bility on almost all doctors who perform previability abortions
after the first trimester. Thus, the Act would, at a minimum,
create a chilling effect that “ ‘plac[es] a substantial obstacle
in the path of a woman seeking an abortion of a nonviable
fetus.’ ” Id. at 921.23 We conclude that, because of both the
actual and the potential risk to doctors who perform previa-
bility abortions, the Act imposes an “undue burden upon a
woman’s right to make an abortion decision,” id. at 946, and
is unconstitutional.
C. The Act is Unconstitutionally Vague
Besides lacking the required health exception and imposing
an undue burden on a woman’s right to terminate her preg-
nancy, the Act is also unconstitutionally vague. It fails to
define clearly the medical procedures it prohibits, depriving
doctors of fair notice and encouraging arbitrary enforcement.
The Act’s scienter requirements do not cure the statute’s
vagueness. We conclude that the Act’s unconstitutional
vagueness constitutes an independent ground for affirming the
district court’s finding of unconstitutionality.
23
We do not reach the question whether the Act would impose an undue
burden if it clearly applied only to intact D&Es, although the question
presents at the least a substantial constitutional issue.
1332 PLANNED PARENTHOOD v. GONZALES
[9] To survive vagueness review, a statute must “(1) define
the offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited; and (2) establish
standards to permit police to enforce the law in a non-
arbitrary, non-discriminatory manner.” Nunez by Nunez v.
City of San Diego, 114 F.3d 935, 940 (9th Cir. 1997) (citing
Kolender v. Lawson, 461 U.S. 352, 357 (1983)). The need to
avoid vagueness is particularly acute when the statute imposes
criminal penalties, see Forbes v. Napolitano, 236 F.3d 1009,
1011-12 (9th Cir. 2000) (as amended), or when it implicates
constitutionally protected rights, see Nunez by Nunez, 114
F.3d at 940. Because this statute both imposes criminal penal-
ties and implicates a constitutionally protected right, it is sub-
ject to heightened vagueness review. Id. The Act cannot
survive that review.
[10] The government essentially makes three arguments
regarding the vagueness of the Act. First, it asserts that the
statutory scheme as a whole “specifically and narrowly
defines” the single “method of abortion” that it outlaws (i.e.,
intact D&E). As we have explained, Stenberg explicitly
described, for the benefit of legislative bodies (and, presum-
ably, the government), two possible ways to make clear that
a prohibition on intact D&E is applicable only to that form of
the procedure. Congress deliberately declined to adopt either
method and instead drafted statutory language that may best
be understood as also outlawing non-intact D&Es, the type of
procedure most often used to perform post-first trimester pre-
viability abortions. This reading of the statute was confirmed
by the trial testimony of numerous doctors and practitioners
offering abortion services. As the district court noted, “they
do not understand exactly what the Act prohibits.” Planned
Parenthood, 320 F. Supp. 2d at 977.24 Although we may con-
24
In citing the testimony of the doctors who testified at trial, the district
court was not treating its vagueness determination as an “evidentiary ques-
tion,” as the government claims. Rather, it used that testimony to help it
understand the steps involved in the different forms of D&E and induc-
PLANNED PARENTHOOD v. GONZALES 1333
clude following a painstaking legal analysis that the statute
covers both forms of D&E, the language of the statute, taken
as a whole, is not sufficiently clear regarding what it permits
and prohibits to guide the conduct of those affected by it
terms, specifically medical practitioners. As a result, the Act
is unconstitutionally vague, and certainly so if the legislative
intent was, as the government argues, to restrict its scope to
intact D&E.
Second, the government objects to the district court’s con-
clusion that the specific terms “partial-birth abortion,” “overt
act,” and “living fetus” are “fatally ambiguous.” As to the
term “partial-birth abortion,” the government challenges the
district court’s statement that the term has “little if any medi-
cal significance,” arguing that it is “ ‘widely known’ as syn-
onymous with the medical terms ‘D&X’ and ‘intact D&E.’ ”
The only citation the government offers to support this argu-
ment is a Sixth Circuit case, Women’s Med. Prof’l Corp. v.
Taft, 353 F.3d 436, 439-40 (6th Cir. 2003), which considered
an Ohio ban on “partial-birth abortion.” Taft, however, does
nothing to bolster the government’s argument that the term
“partial-birth abortion” is, in and of itself, sufficiently clear as
to the procedures it encompasses that any vagueness problems
with the statute are cured. In fact, the contrast between the
Ohio statute reviewed in Taft and the federal Act at issue here
illuminates the latter’s vagueness. In Taft, the Sixth Circuit’s
conclusion that the Ohio statute survived vagueness review
did not rest at all on the proposition that the term “partial-
birth abortion” is “ ‘widely known’ as synonymous with the
medical terms ‘D&X’ and ‘intact D&E.’ ” Rather, the Sixth
Circuit held the Ohio law was not unconstitutionally vague
tion, in order to assess whether the Act’s language was sufficiently clear,
and, in the district judge’s own words, to “confirm[ ]” its legal conclusion
that the Act was vague. Planned Parenthood, 320 F. Supp. 2d at 977. This
is an entirely appropriate use of expert testimony by a court as part of a
vagueness inquiry.
1334 PLANNED PARENTHOOD v. GONZALES
because the statute defined the restricted procedures using
“clinical terms” and explicitly stated that it did not apply to
non-intact D&E or other abortion procedures besides intact
D&E.25 Taft, 353 F.3d at 441. The Sixth Circuit noted that by
defining the reach of its statute’s prohibition in this way, Ohio
heeded the Supreme Court’s observation in Stenberg that
“Nebraska might have fared better if its description of the pro-
cedure had ‘tracked the medical differences between [non-
intact] D&E and [intact D&E],’ [or] ‘provided an exception
for the performance of [non-intact] D&E and other abortion
procedures.’ ” Taft, 353 F.3d at 452 (quoting Stenberg, 530
U.S. at 939). By contrast, Congress chose to ignore Sten-
berg’s warning when it enacted the Act, as noted in the previ-
ous section, and failed to follow its clear roadmap — either
by defining the scope of the statute’s prohibition using clini-
cal terms that track the medical differences between intact
D&E and other forms of D&E or by delineating expressly
which procedures are exempted from the ban. The Taft deci-
sion, therefore, provides no support for the proposition that
the term “partial-birth abortion” is concrete enough on its own
to obviate any vagueness concerns with a statute that seeks to
outlaw it. The government cites no other case, in this circuit
or any other, that supports its proposition and thus has offered
no justification for its claim that “partial-birth abortion,”
which is not a recognized medical term, is itself sufficiently
clear to overcome the vagueness concerns identified by the
district court.
[11] Alternatively, the government argues that “partial-
birth abortion” is an “expressly defined term [in the statute]
. . . and thus cannot itself support a vagueness challenge.”
25
As the Taft court reported, one provision of the Ohio statute provided,
“This section does not prohibit the suction curettage procedure of abor-
tion, the suction aspiration procedure of abortion, or the dilation and evac-
uation procedure of abortion.” 353 F.3d at 452. Another part of the Ohio
statute further clarifies the scope of its prohibition, stating “ ‘[d]ilation and
evacuation procedure of abortion’ does not include the dilation and extrac-
tion procedure of abortion.” Id.
PLANNED PARENTHOOD v. GONZALES 1335
However, the mere fact that “partial-birth abortion” is an “ex-
pressly defined term” in the statute is not enough to survive
vagueness review if that definition is itself vague, as is the
case here. See, e.g., Planned Parenthood of Cent. N.J. v. Far-
mer, 220 F.3d 127, 136-40 (3d Cir. 2000) (finding a New Jer-
sey statute outlawing “partial-birth abortion” unconstitutional
based on its conclusion that its definition of “partial-birth
abortion” was vague). Although the federal Act uses some-
what different language from that used in the statute invali-
dated in Stenberg, its definition of “partial-birth abortion”
nonetheless “fails to provide a reasonable opportunity to
know what conduct is prohibited” and “is so indefinite as to
allow arbitrary and discriminatory enforcement.” Tucson
Woman’s Clinic, 379 F.3d at 554. The Act does not “specifi-
cally and narrowly define[ ]” a single “method of abortion,”
as the government claims; rather, its provisions could readily
be applied to a range of methods of performing post-first tri-
mester abortions. Furthermore, as discussed above, Congress
chose not to take the simple steps, suggested by the Court in
Stenberg, to cure the vagueness in its definition of partial-
birth abortion. As a result, doctors who perform non-intact
D&E abortions, which the government contends are not
intended to be outlawed by the Act, have good reason to fear
that they will be deemed subject to its prohibitions. At the
least, they cannot be reasonably certain that their conduct is
beyond the reach of the Act’s criminal provisions; nor can
they be reasonably assured that the Act will not be arbitrarily
enforced.
[12] The government also objects to the district court’s
characterization of “overt act” as vague. It asserts that the
term itself is not unconstitutionally vague, citing its use in the
Constitution and various federal statutes. It further claims that
by modifying “overt act” with the phrase “other than comple-
tion of delivery,” the statute makes clear that the term does
not apply to “cutting the umbilical cord” or other “essential
aspects of delivery,” which, it argues, establishes that the stat-
ute’s ban does not encompass induction. While the govern-
1336 PLANNED PARENTHOOD v. GONZALES
ment rightly points out that the term “overt act” is not in all
usages unconstitutionally vague, the district court was correct
to hold that in the context of the Act it is, even when modified
by “other than completion of delivery.” Beyond conclusory
statements, the government in no way refutes the district
court’s determination that “overt act, other than completion of
delivery” can plausibly encompass a range of acts involved in
non-intact D&E, including disarticulation and compressing or
decompressing the skull or abdomen or other fetal part that is
obstructing completion of the uterine evacuation (and in
induction, possibly even the cutting of the umbilical cord).
Because these acts can readily be deemed covered by the
phrase “overt act, other than completion of delivery,” the
phrase does not provide the definitiveness about the statute’s
scope that the government asserts. The use of the term “overt
act” does nothing to remedy the statute’s failure to provide
adequate notice of what forms of D&E the Act prohibits and
to prevent its arbitrary enforcement. See Forbes, 236 F.3d at
1011.
[13] The government additionally challenges the district
court’s conclusion that the term “living fetus” contributes to
the vagueness of the statute. We, like the Third Circuit, con-
clude that the use of “living fetus” in a statute banning
“partial-birth abortions” adds to confusion about the scope of
the prohibited conduct. Although the term “living fetus” may
suggest to some that the Act’s prohibition is limited to abor-
tions of viable fetuses, the term has no such meaning. While
a fetus typically is not viable until at least 24 weeks lmp, it
can be “living” — meaning that it has a detectable heartbeat
or pulsating umbilical cord — as early as seven weeks lmp,
well before the end of even the first trimester. As the Third
Circuit noted, “because a fetus may be ‘living’ as early as
seven weeks lmp, use of the term ‘living’ instead of ‘viable’
indicates that, contrary to the understanding of a large seg-
ment of the public and the concomitant rhetoric, the Act is in
no way limited to late-term, or even mid-term, abortions. . . .
[M]ost common abortion procedures will fall within this limi-
PLANNED PARENTHOOD v. GONZALES 1337
tation.” Farmer, 220 F.3d at 137. Therefore, far from curing
the statute’s vagueness problems, the use of the term “living
fetus” instead of “viable fetus” creates additional confusion
about the Act’s scope.
[14] Third, the government argues that any unconstitutional
vagueness is eliminated by the “narrowing and mutually rein-
forcing scienter requirements.” However, as we explained in
the undue burden section, section III.B supra, the scienter
requirements do not restrict the statute’s reach to doctors who
purposely set out to perform the intact form of the D&E pro-
cedure. They therefore do not remedy the Act’s failure to pro-
vide fair warning of the prohibited conduct; rather, they
permit the Act’s arbitrary and discriminatory enforcement. In
short, as we recently held, a scienter requirement applied to
an element that is itself vague does not cure the provision’s
overall vagueness. See Wasden, 376 F.3d at 933; see also
Farmer, 220 F.3d at 138 (“At a minimum, to limit the scope
of a statute to ‘deliberately and intentionally’ performing a
certain procedure, the procedure itself must be identified or
readily susceptible of identification. Here, it is not.” (citations
omitted)); Planned Parenthood of Greater Iowa, Inc. v. Mil-
ler, 195 F.3d 386, 389 (8th Cir. 1999) (holding that Iowa
partial-birth abortion ban’s inclusion of scienter requirement
“cannot save it” because the Act still “encompasses more than
just the [intact D&E] procedure”); R.I. Med. Soc’y v. White-
house, 66 F. Supp. 2d 288, 311-12 (D.R.I. 1999) (holding that
scienter requirement could not save Rhode Island’s partial
birth abortion statute because the “scienter requirement modi-
fies a vague term”). The scienter requirements, therefore, do
nothing to cure the Act’s vagueness.
[15] Because neither the statute when read as a whole nor
its individual components provide fair warning of the prohib-
ited conduct to those it regulates and because the Act permits
arbitrary and discriminatory enforcement, we affirm the dis-
trict court’s determination that the Act is unconstitutionally
vague.
1338 PLANNED PARENTHOOD v. GONZALES
IV. Remedy
In considering the remedy for a statute found to restrict
access to abortion in violation of the Constitution, we are
guided by “[t]hree interrelated principles.” Ayotte, slip op. at
7. First, we endeavor to invalidate no more of a statute than
necessary. Id. Second, “mindful that our constitutional man-
date and institutional competence are limited, we restrain our-
selves from ‘rewrit[ing] state law to conform it to
constitutional requirements’ even as we strive to salvage it.”
Id. (quoting Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
397 (1988)). Third, in devising the remedy we must be cogni-
zant of legislative intent “for a court cannot ‘use its remedial
powers to circumvent the intent of the legislature.’ ” Ayotte,
slip op. at 8 (quoting Califano v. Westcott, 443 U.S. 76, 94
(1979) (Powell, J., concurring in part and dissenting in part)).
Applying these principles to the present case, we conclude
that upholding the permanent injunction against the enforce-
ment of the statute in its entirety is the only permissible rem-
edy. We cannot, consistent with the judiciary’s limited role,
devise a narrower injunction that adequately addresses the
various constitutional infirmities in the Act.
Our conclusion is dictated in part by the grounds on which
we hold the Act unconstitutional. We do not conclude that it
is unconstitutional solely due to its lack of a health exception.
Cf. Ayotte, slip op. at 4 (“We granted certiorari to decide
whether the courts below erred in invalidating the Act in its
entirety because it lacks an exception for the preservation of
pregnant minors’ health.” (internal citation omitted)). Had our
holding on the statute’s constitutionality rested solely on that
ground, we might have been able to draft a more “finely
drawn” injunction, Ayotte, slip op. at 9, prohibiting the Act’s
enforcement only when the banned procedure was necessary
to preserve a woman’s health. Because such relief would not
require us to rewrite substantial portions of the statute, draft-
ing the injunction would be within our institutional compe-
tence. Nonetheless, in the case of the Partial-Birth Abortion
PLANNED PARENTHOOD v. GONZALES 1339
Ban Act, the issuance of such an order would not be consis-
tent with the Ayotte precepts, because in order to do so we
would be required to violate the intent of the legislature and
usurp the policy-making authority of Congress.
[16] Congress did not inadvertently omit a health exception
from the Act. It was not only fully aware of Stenberg’s hold-
ing that a statute regulating “partial-birth abortion” requires a
health exception, but it adopted the Act in a deliberate effort
to persuade the Court to reverse that part of its decision.26
Congress was advised repeatedly that if it passed an abortion
ban without a health exception, the statute would be declared
unconstitutional,27 yet it rejected a number of amendments
26
Senator Santorum, the lead sponsor of the Act in the Senate, stated
during the floor debate, “We are here because the Supreme Court
defended the indefensible [in Stenberg]. . . . We have responded to the
Supreme Court. I hope the Justices read this Record because I am talking
to you. . . . [T]here is no reason for a health exception” 149 CONG. REC.
S3486 (daily ed. Mar. 11, 2003) (statement of Sen. Santorum); see also
149 CONG. REC. H4933 (daily ed. June 4, 2003) (statement of Rep. Con-
yers) (“[The Act] does not add a health exception but instead simply states
that the procedures covered by the bill are not necessary and that their pro-
bation poses no risk to the mother’s health. This declaration goes directly
against the ruling of the Supreme Court in Stenberg . . . . The ‘findings,’
in effect, are an attempt to overturn Stenberg.”).
27
Numerous members of Congress stated during the debate on the Act
that the statute was unconstitutional because it did not include a health
exception. Senator Feinstein, for instance, said, “What is wrong with [the
Act]? . . . To begin with, it is unconstitutional because it lacks a health
exception. . . . A review of the Supreme Court’s abortion decisions and the
record makes clear that any ban on . . . what supporters of the Santorum
bill incorrectly call partial-birth abortion — must include a health excep-
tion.” 149 CONG. REC. S3601 (daily ed. Mar. 12, 2003) (statement of Sen.
Feinstein). Arguing in favor an amendment he proposed, Senator Durbin
stated one reason to support it was “because it has a health exception not
contained in [the Act], it is more likely to withstand the constitutional
challenge and scrutiny across the street at the Supreme Court.” 149 CONG.
REC. S3481 (daily ed. Mar. 11, 2003) (statement of Sen. Durbin). See also,
e.g., 149 CONG. REC. S3424 (daily ed. Mar. 11, 2003) (statement of Sen.
Murray) (“[T]he Supreme Court found the State law unconstitutional [in
1340 PLANNED PARENTHOOD v. GONZALES
that would have added such an exception.28 It considered the
Stenberg] because it did not contain an exception to protect the woman’s
health. . . . Guess what. The [Act] fails the same constitutional test.”); 149
CONG. REC. S3576 (daily ed. Mar. 12, 2003) (statement of Sen. Mikulski)
(“We are not loophole shopping when we insist that an exception be made
in the case of serious and debilitating threats to a woman’s physical health.
This is what the Constitution requires . . . .”); 149 CONG. REC. S3561
(daily ed. Mar. 12, 2003) (statement of Sen. Boxer) (“We have a bill that,
if it passes, makes no exception for the health of the mother. We have a
bill that legal experts say is legally identical to the law that was ruled
unconstitutional by the Supreme Court.”); 149 CONG. REC. H4926 (daily
ed. June 4, 2003) (statement of Rep. Nadler) (“The bill lacks an exception
for the health of the woman. I know that some of my colleagues do not
like the constitutional rule that has been in place and reaffirmed by the
Court for 30 years; but that is the supreme law of the land, and no amount
of rhetoric, even if written into legislation, will change that.”); 149 CONG.
REC. H4924 (daily ed. June 4, 2003) (statement of Rep. Green) (“[In Sten-
berg,] the Court ruled that any ban on methods of abortion must provide
an exception for women’s health, and also struck down the Nebraska law
for failing to include such an exception. [The Act] continues to flout the
Supreme Court’s rulings . . . .”); 149 CONG. REC. S3611 (daily ed. Mar.
12, 2003) (statement of Sen. Jeffords); 149 CONG. REC. S3604 (daily ed.
Mar. 12, 2003) (statement of Sen. Lautenberg); 149 CONG. REC. S3584
(daily ed. Mar. 12, 2003) (statement of Sen. Kennedy); 149 CONG. REC.
S3599 (daily ed. Mar. 12, 2003) (statement of Sen. Cantwell); 149 CONG.
REC. H4933 (daily ed. June 4, 2003) (statement of Rep. Farr); 149 CONG.
REC. H4932 (daily ed. June 4, 2003) (statement of Rep. Filner); 149 CONG.
REC. H4927 (daily ed. June 4, 2003) (statement of Rep. Larson); 149
CONG. REC. H4927 (daily ed. June 4, 2003) (statement of Rep. Lowey).
28
The House Judiciary Committee rejected an amendment that would
have added a health exception to the Act. H.R. REP. NO. 108-58, at 71-73.
In addition, the House itself rejected an amendment that would have
revised the ban by adding a health exception, among other changes. See
149 CONG. REC. H4948 (daily ed. June 4, 2003) (rejecting House Amend-
ment 154). The House also rejected a motion to recommit the Act to the
House Judiciary Committee with instructions to add a health exception.
See 149 CONG. REC. H4949 (daily ed. June 4, 2003) (rejecting motion).
The Senate rejected two amendments that would have revised the ban by
adding a health exception, among other changes. See 149 CONG. REC.
S3611 (daily ed. Mar. 12, 2003) (rejecting Senate Amendment 261); 149
CONG. REC. S3579 (daily ed. Mar. 12, 2003) (rejecting Senate Amendment
259). The Senate also rejected a motion to commit the Act to the Judiciary
Committee with instructions to consider the constitutional issues raised in
Stenberg, including those relating to a health exception. See 149 CONG.
REC. S3580 (daily ed. Mar. 12, 2003) (rejecting the motion).
PLANNED PARENTHOOD v. GONZALES 1341
omission of the exception to be a critical component of the
legislation it was enacting. Both of the Act’s main sponsors,
as well as various co-sponsors, asserted that the purpose of
the Act would be wholly undermined if it contained a health
exception and that, if an exception were included, the statute
would be of little force or effect.29 Enacting a “partial-birth
abortion” ban with no health exception was clearly one of
Congress’s primary motivations in passing the Act.
In light of this legislative history, it would be improper for
us to issue an injunction that essentially adds a health excep-
29
In urging the House Judiciary Committee to defeat a proposed amend-
ment that would have added a health exception to the Act, Representative
Chabot, the sponsor of the Act in the House, stated, “a health exception,
no matter how narrowly drafted, gives the abortionist unfettered discretion
in determining when a partial-birth abortion may be performed. And abor-
tionists have demonstrated that they can justify any abortion on this
ground . . . . It is unlikely then that a law that includes such an exception
as being proposed would ban a single partial-birth abortion or any other
late-term abortion.” H.R. REP. NO. 108-58, at 69 (statement of Rep. Cha-
bot). Similarly, in arguing against a health exception amendment on the
Senate floor, Senator Santorum, the Act’s main sponsor in the Senate,
asserted, “In practice, of course, health means anything, so there is no
restriction at all.” 149 CONG. REC. S3607 (daily ed. Mar. 12, 2003) (state-
ment of Sen. Santorum). Senator Santorum later argued that “health” is a
“term — in fact, the courts have interpreted it to mean anything” and that
a health exception “frankly, swallows up any limitation, restriction on
abortion.” 149 CONG. REC. S3590 (daily ed. Mar. 12, 2003) (statement of
Sen. Santorum). A co-sponsor of the Act, Senator DeWine, argued that
because of the way “health of the mother” has been defined by the
Supreme Court, an exception to protect it would mean “almost any excuse
would be enough to justify a late-term partial-birth abortion. Yet the abor-
tionist would be within the law because he determined the health of the
mother was at risk.” 149 CONG. REC. S3605 (daily ed. Mar. 12, 2003)
(statement of Sen. DeWine). Representative Sensenbrenner, a co-sponsor
of the Act, made similar comments in arguing against a health exception
amendment. He stated, “Abortionists have demonstrated that they can and
will justify any abortion on the grounds that it, in the judgment of the
attending physician, is necessary to avert serious adverse health conse-
quences to the woman.” 149 CONG. REC. H4940 (daily ed. June 4, 2003)
(statement of Rep. Sensenbrenner).
1342 PLANNED PARENTHOOD v. GONZALES
tion to the statute — an exception that Congress purposefully
excluded from the Act. When Congress deliberately makes a
decision to omit a particular provision from a statute — a
decision that it is aware may well result in the statute’s whole-
sale invalidation — and when it defeats multiple amendments
that would have added that provision to the statute, we would
not be faithful to its legislative intent were we to devise a
remedy that in effect inserts the provision into the statute con-
trary to its wishes. Such an action would be inconsistent with
our proper judicial role.
Our inquiry as to whether the legislature would have “pre-
ferred what is left of its statute to no statute at all,” Ayotte,
slip op. at 8, does not change our conclusion. Given the record
before us, it is impossible to say that Congress would have
preferred the Act with a health exception engrafted upon it to
no statute at all. The creation of legislation is a fundamental
part of the political process, to be performed by the elected
branches only. In deciding whether to adopt legislation on
highly controversial issues, elected officials must weigh vari-
ous factors and make informed political judgments. When, in
such cases, it is not possible to achieve the full legislative
goal, the leaders of the battle may prefer to drop the legisla-
tion entirely in order to be able to wage a more dramatic and
emotional campaign in the public arena. They may conclude
that leaving an issue completely unaddressed will make it eas-
ier for them to achieve their ultimate goals than would a par-
tial resolution that leaves their “base” discontented and
disillusioned. Dropping the proposed legislation (or even hav-
ing it defeated) may be the best way to gain adherents to the
cause, inspire the faithful, raise funds, and possibly even gen-
erate support for a constitutional amendment. Conversely, the
sponsors of a bill may consider a partial victory worthless
from a political standpoint, as the sponsors of the Partial-Birth
Abortion Ban Act told their fellow members of Congress
here, or they may just object strongly to such a solution from
a moral or even a religious standpoint. Particularly when an
issue involving moral or religious values is at stake, it is far
PLANNED PARENTHOOD v. GONZALES 1343
from true that the legislative body would always prefer some
of a statute to none at all.
Abortion is an issue that causes partisans on both sides to
invoke strongly held fundamental principles and beliefs. We
are prepared to deal with the constitutional issues relating to
that subject, but not with the question how either side would
exercise its moral and other judgments with respect to tactical
political decisions. Whether the congressional partisans who
supported the Act would have preferred to have what they
repeatedly and unequivocally deemed to be ineffective legis-
lation or to do without the statute and preserve the status quo
ante as a political and moral tool is a determination we are
simply unable and unwilling to make.
[17] In any event, we need not rest our decision as to the
appropriate remedy solely on the omission of a health excep-
tion because we have determined that the Act is unconstitu-
tional on other grounds as well — on the grounds that it
imposes an undue burden on women seeking abortions and
that it is impermissibly vague. Along with the omission of the
health exception, the nature of these constitutional errors pre-
cludes us from devising a remedy any narrower than the
invalidation of the entire statute, for a number of reasons.
First, in order to cure the constitutional infirmities, we would
in effect have to strike the principal substantive provision that
is now in the Act and then, akin to writing legislation, adopt
new terms with new definitions and new language creating
limitations on the Act’s scope. Second, creating relief that
would limit the Act sufficiently to enable it to pass constitu-
tional muster would require us to make decisions that are the
prerogative of elected officials and thus would be inconsistent
with the proper distribution of responsibilities between the
legislative and judicial branches. Third, the magnitude of the
change in the Act’s coverage that would be necessary to make
the Act even potentially constitutional would result in a stat-
ute that would be fundamentally different from the one
1344 PLANNED PARENTHOOD v. GONZALES
enacted. Fourth, devising narrowing relief of this type would
be unfaithful to Congress’s intent in passing the Act.
Our conclusions regarding the undue burden imposed by
the Act and the Act’s impermissible vagueness were based on
our determination that the Act’s definition of “partial-birth
abortion” covers both forms of the D&E procedure; at the
very least, we said, the statute does not adequately distinguish
between those forms. Significantly, the two forms of D&E
constitute the means by which the vast majority of post-first
trimester previability abortions are conducted. Remedying the
problem of the Act’s scope is not a simple matter of striking
a portion of the statutory language, however, or of drafting an
injunction that performs that function. Nor is the existing stat-
utory language susceptible to a simple limiting construction.
In order to remedy the constitutional problems with the Act’s
definition of “partial-birth abortion,” we would essentially
have to “rewrite [the statutory language] to conform it to con-
stitutional requirements,” a task the Court has cautioned we
should not undertake. Ayotte, slip op. at 7 (quoting Am. Book-
sellers Ass’n, 484 U.S. at 397).
Furthermore, before we could even begin the task of rewrit-
ing the statute so as to arrive at an adequate injunctive order,
we would first have to decide which of the different methods
of performing post-first trimester previability abortions should
be prohibited by the revised Act.30 We are not willing to make
such choices for four reasons. First, doctors disagree about the
medical necessity and effects of each of the methods. The
decision regarding which of these methods to regulate is a
policy choice that only Congress can make.31 Second, choos-
30
Induction is the method used to perform most post-first trimester pre-
viability abortions not done by D&Es. Because of the Act’s failure to dif-
ferentiate between intact and non-intact D&E, which we held sufficient to
create an undue burden, we did not reach the issue whether the Act’s defi-
nition of the prohibited procedures also encompasses induction, although
it might well do so.
31
See Denver Union Stock Yard Co. v. Producers Livestock Mktg. Ass’n,
356 U.S. 282, 289 (1958) (“[Courts] should guard against the danger of
sliding unconsciously from the narrow confines of law into the more spa-
cious domain of policy” (internal quotation marks and citations omitted)).
PLANNED PARENTHOOD v. GONZALES 1345
ing which methods to regulate would require us to draw lines
between different abortion procedures with which we are not
“intimately familiar,” another factor cautioning against our
attempting to create a narrow remedy.32 Third, determining
whether to cover particular forms or procedures would raise
unresolved constitutional questions that we need not other-
wise decide on this appeal.33 For example, neither this court
nor the Supreme Court has previously decided whether a stat-
ute that bans only intact D&E would be constitutional. See
note 18 supra. Fourth, even if Congress would have preferred
an injunction that made the controversial policy choices we
would be required to make and even if Congress would have
preferred the substantial alteration of the statute to its total
invalidation, it is contrary to the appropriate allocation of leg-
islative and judicial functions for Congress to have “covered
the waterfront” and left the job of selecting the conduct that
could properly be prohibited to us. As Ayotte reiterated, Con-
gress may not “ ‘set a net large enough to catch all possible
offenders, and leave it to the courts to step inside’ to
announce to whom the statute may be applied.” Slip op. at 8
(quoting United States v. Reese, 92 U.S. 214, 221 (1876)).
Here, Congress, notwithstanding existing Supreme Court law
and the multiple opportunities it was given to limit the Act’s
scope, passed an overly broad ban that it was aware likely
violated the Constitution as construed by the Court. In so
doing, Congress left it to the judiciary to sort out which parts
32
See United States v. Nat’l Treasury Employees Union, 513 U.S. 454,
479 n.26 (1995) (refusing to “rewrite the statute” because, inter alia,
“[d]rawing a line between a building and sidewalks with which we are
intimately familiar . . . is a relatively simple matter. In contrast, drawing
one or more lines between categories of speech covered by an overly
broad statute . . . involves a far more serious invasion of the legislative
domain.”).
33
See id. at 479 (rejecting a narrower remedy than complete invalidation
of a statute because, inter alia, creating it would require the court to
choose among policy alternatives that “would likely raise independent
constitutional concerns whose adjudication is unnecessary to decide this
case”).
1346 PLANNED PARENTHOOD v. GONZALES
of the statute are constitutional and which are not. This is pre-
cisely what Ayotte reminded us Congress may not do. Nar-
rowing the statute is “quintessentially legislative work” that,
if undertaken by us, would exceed “our constitutional man-
date and institutional competence.” Ayotte, slip op. at 7.34
Even if we could, consistent with the judiciary’s proper
role, choose which procedures to prohibit, the only options
that stand a chance of passing constitutional muster would
leave us with an Act of a drastically more limited scope than
the current one. Because the Supreme Court has held that a
statutory prohibition that covers both intact and non-intact
D&Es is unconstitutional, Stenberg, 530 U.S. at 938-46, the
only possibly constitutional regulation would be a prohibition
limited to the intact D&E procedure (and possibly induction).
Even assuming that such a regulation would be constitutional
(but see supra note 18), an injunction that so limited the stat-
ute would outlaw only a very small portion of the procedures
prohibited under the existing Act. Such an injunction would
radically change the nature of the statute and result in a regu-
latory scheme substantially different from the one passed by
Congress. When a “narrow” remedy would substantially
change the very nature of a statute, adopting that remedy
exceeds the proper judicial role.35
[18] Finally, we believe that devising a narrow remedy
would not be “faithful to legislative intent.” Ayotte, slip op. at
9. Congress did not unintentionally draft the broad definition
of “partial-birth abortion” that gives rise to the undue burden
34
A further indication that narrowing would not be faithful to legislative
intent is the absence from the Act of a severability clause. Ayotte pointed
to the presence of such a clause as an indication that a narrower remedy
is consistent with legislative intent. Slip. op at 9-10.
35
See Sloan v. Lemon, 413 U.S. 825, 834 (1973) (striking down entire
Pennsylvania tuition reimbursement statute because to eliminate only
unconstitutional applications “would be to create a program quite different
from the one the legislature actually adopted”), cited in United States v.
Booker, 125 S. Ct. 738, 758 (2005).
PLANNED PARENTHOOD v. GONZALES 1347
and vagueness concerns, nor did it write the unconstitution-
ally overbroad language without the benefit of judicial guid-
ance. Instead, Congress chose not to follow the roadmap the
Court provided in Stenberg. It repeatedly dismissed warnings
that the Act’s overly inclusive scope made it vulnerable to
constitutional challenge.36 Even if we could draft a remedy
36
As in the case of the health exception, Congress rejected repeated
warnings of unconstitutionality, this time that the Act’s language was too
broad. It ignored admonitions to follow the Court’s roadmap by defining
the prohibited procedure using the medical terms for intact D&E. Senator
Feinstein, for example, stated, the Act “attempts to ban a specific medical
procedure which it calls partial-birth abortion. But the bill offers no medi-
cal definition of partial-birth abortion.” She then questioned the Act’s
sponsors’ refusal to use such a definition. She asked, “Why wouldn’t the
proponents of this bill put in a medically acceptable definition so that
those physicians who were practicing medicine and may encounter this
kind of case would know precisely what is prohibited? I believe I know
the answer. The answer is that the bill is calculated to cover more than just
one procedure. . . . I believe if the bill becomes law, it would be struck
down as unconstitutional.”) 149 CONG. REC. S3601 (daily ed. Mar. 12,
2003) (statement of Sen. Feinstein); see also 149 CONG. REC. S3600 (daily
ed. Mar. 12, 2003) (statement of Sen. Feinstein) (“[The Act] is not what
it purports to be. It supposedly bans one procedure, D&X, but actually
confuses this procedure with another, D&E, the most commonly used
abortion procedure. In fact, its wording is so vague that it could be con-
strued to criminalize all abortions.”). Other members of Congress also
asserted that the Act’s definition of the banned procedure was overly
broad and ignored the Court’s guidance in Stenberg. Representative Farr
explained, “The definition of the banned procedure in [the Act] is vague
and could be interpreted to prohibit some of the safest and most common
abortion procedures that are used before viability during the 2nd trimester.
This legislation could have been written using precise, medical terms
. . . .”) 149 CONG. REC. H4933 (daily ed. June 4, 2003) (statement of Rep.
Farr). Similarly, Senator Boxer stated, “What we have is the Stenberg case
that ruled that the Nebraska statute was unconstitutional because it placed
an undue burden on women because the definition is vague and there is
no exception to protect women’s health. Lawyers and constitutional
experts tell us that the same problem exists in [the Act].” 149 CONG. REC.
S3561 (daily ed. Mar. 12, 2003) (statement of Sen. Boxer). Representative
Conyers stated, “It is unclear what types of procedures are covered by the
legislation. Although some believe the legislation would apply to an abor-
tion technique known as ‘Dilation and Extraction’ (D & X), or ‘Intact
Dilation and Evacuation,’ it is not clear the term would be limited to a par-
1348 PLANNED PARENTHOOD v. GONZALES
that sufficiently restricted the scope of the statute (which we
believe we could not properly do consistent with our limited
judicial role), such a narrowing construction would serve not
to cure an error but to reverse a political judgment that Con-
gress expressly made. Nor can we say that Congress would
have preferred any such narrowing construction to no statute
at all. For reasons discussed above, we are not capable of
making the judgment that, in the eyes of Congress, legislation
restricted to non-intact D&Es would have been preferable to
no legislation at all. We believe that a narrow remedy
designed to address the undue burden and vagueness con-
cerns, as well as the health exception, would likely violate
Congress’s intent in passing the Act.
[19] We are reluctant to invalidate an entire statute. How-
ever, after considering all of the obstacles to our devising a
narrower remedy, we conclude that such is our obligation.
ticular and identifiable practice. . . . [The Act] could well apply to addi-
tional abortion procedures known as D & E (Dilation and Evacuation), and
induction.” 149 CONG. REC. H4934 (daily ed. June 4, 2003) (statement of
Rep. Conyers). See also, e.g., 149 CONG. REC. S3424 (daily ed. Mar. 11,
2003) (statement of Sen. Murray) (“[T]he language is so broad that it bans
other constitutionally protected procedures. The Supreme Court’s rulings
state: ‘Even if the statute’s basic aim is to ban D&X, its language makes
clear it also covers a much broader category of procedures.’ The bill
before us is similarly unconstitutional because it covers too many constitu-
tionally protected procedures.”); 149 CONG. REC. S3611-12 (daily ed. Mar.
12, 2003) (statement of Sen. Feingold) (“Congress should seek to regulate
abortions only within the constitutional parameters set forth by the U.S.
Supreme Court. Yet in light of the Supreme Court’s 2000 decision [in
Stenberg], the bill before us today . . . is unconstitutional on its face. It is
so vague and overbroad that it, too, could unduly burden a woman’s right
to choose prior to viability.”); 149 CONG. REC. S3576 (daily ed. Mar. 12,
2003) (statement of Sen. Mikulski) (“[The Act] does not clearly define the
procedure it claims to prohibit. Let me be clear about this. The [Act] is
unconstitutional.”); 149 CONG. REC. S3481 (daily ed. Mar. 11, 2003)
(statement of Sen. Durbin); 149 CONG. REC. H4934 (daily ed. June 4,
2003) (statement of Rep. Stark); 149 CONG. REC. H4937 (daily ed. June 4,
2003) (statement of Rep. Jackson Lee).
PLANNED PARENTHOOD v. GONZALES 1349
Accordingly, we uphold the district court’s order permanently
enjoining enforcement of the Act in its entirety.
V. Conclusion
The Act lacks the health exception required of all abortion
regulations in the absence of a medical consensus that the pro-
hibited procedure is never necessary to preserve women’s
health, imposes an undue burden on a woman’s right to
choose a previability abortion, and is impermissibly vague.
For each of these reasons, independently, we hold that the Act
is unconstitutional. We also hold that, in light of all the cir-
cumstances, the appropriate remedy for the serious constitu-
tional flaws in the Act is that which the district court elected:
to enjoin the enforcement of the statute in its entirety. The
judgment of the district court is AFFIRMED.