Women's Medical v. Taft

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124 ELECTRONIC CITATION: 2003 FED App. 0446P (6th Cir.) File Name: 03a0446p.06 Before: RYAN and BATCHELDER, Circuit Judges; TARNOW, District Judge.* UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT COUNSEL _________________ ARGUED: Stephen P. Carney, OFFICE OF THE WOMEN ’S MEDICAL X ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for - Appellants. Alphonse A. Gerhardstein, LAUFMAN & PROFESSIONAL GERHARDSTEIN, Cincinnati, Ohio, for Appellees. CORPORATION ; MART IN - - No. 01-4124 ON BRIEF: Stephen P. Carney, Anne Berry Strait, Karl HASKELL , MD, - William Schedler, OFFICE OF THE ATTORNEY Plaintiffs-Appellees, > GENERAL OF OHIO, Columbus, Ohio, for Appellants. , Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN - & GERHARDSTEIN, Cincinnati, Ohio, David C. Greer, v. - BIESER, GREER & LANDIS, Dayton, Ohio, for Appellees. - Eric D. Miller, UNITED STATES DEPARTMENT OF BOB TAFT , Governor; BETTY - JUSTICE, Washington, D.C., A. Stephen Hut, Jr., Kimberly D. MONTGO MERY , Attorney - A. Parker, WILMER, CUTLER & PICKERING, - Washington, D.C., Jennifer Dalven, AMERICAN CIVIL General; MATHIAS H. HECK , - LIBERTIES UNION FOUNDATION, New York, New York, JR., - for Amici Curiae. Defendants-Appellants. - - RYAN, J., delivered the opinion of the court, in which N BATCHELDER, J., joined. TARNOW, D. J. (pp. 30-54), Appeal from the United States District Court delivered a separate dissenting opinion. for the Southern District of Ohio at Dayton. No. 00-00368—Walter H. Rice, District Judge. _________________

Argued: April 29, 2003 OPINION _________________ Decided and Filed: December 17, 2003 RYAN, Circuit Judge. For the second time in six years, we must decide whether an Ohio statute that restricts partial birth abortions violates the Fourteenth Amendment of the United

* The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation.

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States Constitution. In Women’s Med. Prof’l Corp. v. law that banned all partial birth abortions before and after Voinovich, 130 F.3d 187 (6th Cir. 1997), we held, inter alia, viability. The Court held the law unconstitutional on two that Ohio’s first attempt to restrict partial birth abortions grounds. First, Nebraska’s ban lacked a “health exception” violated the Fourteenth Amendment because it imposed an that would permit doctors to perform the banned abortion “undue burden” on “a woman’s right to choose to have an method when necessary to protect the mother’s health. Id. at abortion.” Id. at 200-03. 937-38. Second, Nebraska’s ban imposed an “undue burden” on the abortion right by restricting the commonly performed The plaintiffs claim that Ohio’s new partial birth abortion dilation and evacuation (D & E) method of abortion. Id. at statute, Ohio Rev. Code Ann. § 2919.15.1 (Anderson 2002) 938-40. (the Act), is likewise unconstitutional, because: (1) it does not contain an adequate health exception; and (2) it imposes Almost immediately after Carhart was decided, the an “undue burden” upon a woman seeking to abort a non- plaintiffs who prevailed in Voinovich brought a facial viable fetus, in that the description of the banned abortion challenge to the constitutionality of the present statute. They method encompasses the concededly lawful dilation and challenged the Act on several grounds, the principal claims evacuation (D & E) abortion procedure. being: (1) the Act’s health exception is constitutionally inadequate, and (2) the Act imposes an “undue burden” on the As set forth in detail below, we reject both claims, and hold abortion right by restricting the commonly performed dilation that Ohio’s new statute does not violate the Constitution in and evacuation (D & E) abortion method. The district court any respect. We shall therefore reverse the district court’s agreed with the plaintiffs’ first claim and held that the Act’s judgment. health exception was constitutionally inadequate. In the district court’s view, Carhart requires states to permit a I. partial birth abortion whenever a physician believes it to be “simply the safest” available procedure. On the basis of this INTRODUCTION reading of Carhart, the district court invalidated the Act and entered a permanent injunction against its enforcement. The After our decision in Voinovich, Ohio’s General Assembly district court declined to address the plaintiffs’ undue burden enacted the present statute, Ohio Rev. Code Ann. § 2919.15.1 claim at the permanent injunction stage, but both parties urge (the Act). The Act restricts partial birth abortions, but it us to reach that issue on appeal. differs significantly from the law struck down in Voinovich in that the Act specifically excludes the “dilation and For the reasons set forth below, we hold that the Act evacuation” (D & E) method from its reach. Ohio Rev. Code conforms in all respects to the requirements of the Fourteenth Ann. § 2919.15.1(F). The Act also contains a “health Amendment in the abortion legislation context, as those exception” which permits the partial birth abortion method requirements were announced in Planned Parenthood v. before and after viability, when necessary to protect the Casey, 505 U.S. 833 (1992), and subsequently applied in mother’s health. Ohio Rev. Code Ann. § 2919.15.1(B), (C). Stenberg v. Carhart, 530 U.S. 914 (2000). We therefore REVERSE the district court’s judgment and VACATE the Shortly before the Act’s effective date, the United States injunction preventing enforcement of the Act. Supreme Court decided Stenberg v. Carhart, 530 U.S. 914 (2000), a case concerning the constitutionality of a Nebraska

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II. FACTUAL BACKGROUND may occur prior to dismemberment. See Carhart, 530 U.S. at 925-26; Women’s Med., 162 F. Supp. 2d at 946. The process A. Parties continues until the entire dead fetus has been removed, piece- by-piece, from the woman’s uterus. The plaintiffs are the Women’s Medical Professional Corporation (WMPC), an Ohio corporation providing 2. Dilation and extraction – D & X abortion services in Ohio, and Dr. Martin Haskell, the physician who owns and operates WMPC. They perform In the abortion procedure now widely known as partial procedures prohibited by the Act and fear civil and criminal birth abortion and also commonly referred to as dilation and liability as a result. The defendants are various officers of the extraction, or “D & X,” and sometimes called “intact D & E” State of Ohio sued in their official capacities. or “intact D & X,” see Carhart, 530 U.S. at 927-28; ACOG Statement of Policy (1997), the physician removes the dead B. Late Term Abortion Procedures fetus whole and “‘intact,’ i.e., in one pass, rather than in several passes.” Carhart, 530 U.S. at 927. Dr. Haskell A clear understanding of our resolution of the issues claims to have coined the clinical term “dilation and presented requires an equally clear understanding of two extraction” in 1992 in order to distinguish the intact abortion procedures used to put to death fetuses that have advanced to procedure from the more common “dismemberment-type D the later stages of the second trimester of the mother’s & E” abortion method. pregnancy. The labels we use to describe each of these procedures, while not perfectly precise, have a generally The physician initiates the D & X or partial birth abortion understood meaning, regularly relied upon by courts, litigants, procedure by dilating a woman’s cervix, but to a greater medical experts, and legislatures operating in this field of law. degree than in the traditional D & E procedure. Women’s And we reject the efforts by the parties and amici to fortify Med., 162 F. Supp. 2d at 946. Once the physician achieves their arguments by the use of labels and descriptive language sufficient dilation, the manner in which the abortion proceeds obviously employed for revulsive or obfuscating effect. depends upon the presentation of the fetus. Although some doctors take the fetus as it presents, Dr. Haskell maneuvers 1. Dilation and evacuation – D & E the fetus to a feet-first position (breech presentation) before proceeding. Carhart, at 927-28; Women’s Med., 162 F. Supp. As performed late in the second trimester, the abortion 2d at 946. In a breech extraction, the physician partially procedure commonly referred to as dilation and evacuation, delivers the fetus through the mother’s cervix up to a point or “D & E,” begins with dilation of a woman’s cervix. that allows the physician to access the fetus’s head, which is Carhart, 530 U.S. at 925; Women’s Med. Prof’l Corp. v. Taft, inside the mother, while stabilizing the fetus’s body, which is 162 F. Supp. 2d 929, 946 (S.D. Oh. 2001). Once sufficient outside the mother. Then, in order to collapse the fetus’s dilation is achieved, the physician reaches into the woman’s skull (so that it will pass easily through the cervix), the uterus with an instrument, grasps an extremity of the fetus, physician “forces a pair of scissors into the base of the skull, and pulls. Carhart, 530 U.S. at 925-26; Women’s Med., 162 enlarges the opening and evacuates the contents with a F. Supp. 2d at 946. When the fetus lodges in the cervix, the suction catheter.” Women’s Med., 162 F. Supp. 2d at 946. traction between the grasping instrument and the cervix The abortion concludes with the removal, in a single pass, of causes dismemberment and eventual death, although death the fetus’s intact, dead body. Carhart, 530 U.S. at 927. If the

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fetus presents head first (a cephalic presentation), the doctor The Act defines “partial birth procedure” as “the medical first collapses the fetus’s exposed skull by “breaching and procedure that includes all of the following elements in compressing the [head] with the forceps’ jaws, inserting a sequence”: finger . . . , or piercing the [head] with a sharp instrument, such as a tenaculum or a large-bore needle.” W. Martin (a) Intentional dilation of the cervix of a pregnant Haskell, MD, et al., Surgical Abortion After the First woman, usually over a sequence of days; Trimester, in A Clinician’s Guide to Medical and Surgical Abortion, 135 (Maureen Paul, MD, et al., eds. 1999). The (b) In a breech presentation, intentional extraction of doctor then suctions out the fetus’s skull contents, if at least the lower torso to the navel, but not the entire necessary, id., and completes the delivery of the fetus from body, of an intact fetus from the body of the mother, or the mother’s body, whole and intact, in a single pass. in a cephalic presentation, intentional extraction of at Carhart, 530 U.S. at 927. least the complete head, but not the entire body, of an intact fetus from the body of the mother; We now turn to an examination of the Ohio statute. (c) Intentional partial evacuation of the intracranial C. Statutory Provisions – Ohio Rev. Code Ann. contents of the fetus, which procedure the person § 2919.15.1 performing the procedure knows will cause the death of the fetus, intentional compression of the head of the The Act makes it a second-degree felony to commit the fetus, which procedure the person performing the crime of “partial birth feticide.” Ohio Rev. Code Ann. procedure knows will cause the death of the fetus, or § 2919.15.1(D). A person commits partial birth feticide by performance of another intentional act that the person violating either Ohio Rev. Code Ann. § 2919.15.1(B), which performing the procedure knows will cause the death of applies after viability, or Ohio Rev. Code Ann. the fetus; § 2919.15.1(C), which applies before viability. Both provisions use identical language to identify the crime: (d) Completion of the vaginal delivery of the fetus.

When the fetus that is the subject of the procedure is [or Ohio Rev. Code Ann. § 2919.15.1(A)(3). “is not”] viable, no person shall knowingly perform a partial birth procedure on a pregnant woman when the In Carhart, 530 U.S. at 937-38, the Court held the procedure is not necessary, in reasonable medical Nebraska statute unconstitutional, in part, because it judgment, to preserve the life or health of the mother as contained no exception at all to protect the mother’s health. a result of the mother’s life or health being endangered In contrast, Ohio’s statute contains a detailed health exception by a serious risk of the substantial and irreversible that permits the partial birth procedure, both before and after impairment of a major bodily function. viability, when “necessary, in reasonable medical judgment, to preserve the life or health of the mother as a result of the Ohio Rev. Code Ann. § 2919.15.1(B), (C). mother’s life or health being endangered by a serious risk of the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code Ann. § 2919.15.1(B), (C). The Act defines “serious risk of the substantial and irreversible

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impairment of a major bodily function” to mean “any Sess. (Ohio 2000). The Act also attempts to “further[] the medically diagnosed condition that so complicates the state interest in preventing unnecessary cruelty.” Id. at § 3(D). pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily D. District Court Proceedings function.” Ohio Rev. Code Ann. § 2919.15.1(A)(5). On July 27, 2000, soon after the Supreme Court’s decision The Act also identifies three specific abortion procedures in Carhart, the plaintiffs filed a complaint seeking a that remain legal: “the suction curettage procedure of temporary restraining order and preliminary injunction to abortion, the suction aspiration procedure of abortion, [and] prevent the defendants from enforcing the Act. The plaintiffs the dilation and evacuation procedure of abortion.” Ohio challenged the Act on four grounds: (1) the Act imposes an Rev. Code Ann. § 2919.15.1(F). According to Ohio Rev. undue burden by sweeping in D & E abortions performed Code Ann. § 2919.15.1(A)(1), the “‘[d]ilation and evacuation during the second trimester; (2) the Act’s “health exception” procedure of abortion’ does not include the dilation and is inadequate; (3) the Act lacks adequate scienter standards; extraction procedure of abortion.” Thus, the Act, using the and (4) the Act unconstitutionally permits third-party civil clinical term coined by Dr. Haskell, gives clear guidance suits against physicians who violate its terms. The district about which abortion procedures may be performed without court issued two lengthy rulings, one at the preliminary restriction. The Act also declares that its prohibition “does injunction stage, Women’s Med. Prof’l Corp. v. Taft, 114 F. not apply to any person who performs or attempts to perform Supp. 2d 664 (S.D. Oh. 2000), and another at the permanent a legal abortion if the act that causes the death of the fetus is injunction stage. Women’s Med. Prof’l Corp. v. Taft, 162 F. performed prior to the fetus being partially born even though Supp. 2d 929 (S.D. Oh. 2001). the death of the fetus occurs after it is partially born.” Ohio Rev. Code Ann. § 2919.15.1(G). “Partially born” is defined In its preliminary injunction ruling, the court rejected the to mean “that the portion of the body of an intact fetus plaintiffs’ undue burden claim. Women’s Med., 114 F. Supp. described in division (A)(3)(b) of this section has been 2d at 683. Although the court declined to rule on the issue at intentionally extracted from the body of the mother.” Ohio the permanent injunction stage, Women’s Med., 162 F. Supp. Rev. Code Ann. § 2919.15.1(A)(4). And, as the Act explains, 2d at 937, both parties urge us to reach this issue on appeal. “‘[f]rom the body of the mother’ means that the portion of the Also, in both rulings, the district court held that the Act’s pre- fetus’ body in question is beyond the mother’s vaginal viability health exception was too narrow because it did not introitus in a vaginal delivery.” Ohio Rev. Code Ann. permit the partial birth procedure “‘to be performed in cases § 2919.15.1(A)(2). where the medical evidence shows that it is simply the safest method of abortion.’” Women’s Med., 162 F. Supp. 2d at 940 Finally, the Act expresses the legislature’s purpose. In (emphasis added) (quoting Women’s Med., 114 F. Supp. 2d at summary, the Ohio General Assembly intended “to prevent 688). For the same reason, the court struck down the Act’s the unnecessary death of fetuses when they are substantially post-viability health exception as applied to women in outside the body of the mother,” in pursuit of Ohio’s “interest medical need of a post-viability abortion. Women’s Med., in maintaining a strong public policy against infanticide, 162 F. Supp. 2d at 961-62. Ohio appeals these components regardless of the life expectancy or state of development of of the district court’s judgment. the child.” H.B. 351, § 3(A), (B), 123rd Gen. Assem., Reg.

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With respect to the plaintiffs’ “scienter” claim, the district jointly by Justices O’Connor, Kennedy, and Souter, the Court court concluded that it would be unconstitutional for an reaffirmed what it called the “essential holding” of Roe v. abortion law to impose strict liability regarding a Wade, 410 U.S. 113 (1973). Casey, 505 U.S. at 845-46. determination of viability or the applicability of the health While preserving for women the right to choose an abortion, exception. Women’s Med., 114 F. Supp. 2d at 699; Women’s the Court rejected the “rigid trimester” approach from Roe Med., 162 F. Supp. 2d at 936. Nevertheless, the court and replaced it with a constitutional line drawn at viability. preserved the Act’s constitutionality by importing a Id. at 870-74. The Court held that a state may regulate “recklessness” scienter requirement pursuant to Ohio law. abortion before viability as long as it does not impose an Women’s Med., 114 F. Supp. 2d at 700, 703-04; Women’s “undue burden” on a woman’s right to terminate her Med., 162 F. Supp. 2d at 936. Neither party appeals this pregnancy. Id. at 876. A state may regulate and even prohibit aspect of the judgment. abortion after viability “‘except where it is necessary, in appropriate medical judgment, for the preservation of the life Finally, at the permanent injunction stage, the district court or health of the mother.’” Id. at 879 (quoting Roe, 410 U.S. held that the plaintiffs lacked standing to challenge the at 164-65). constitutionality of the Act’s third-party civil suit provision. Women’s Med., 162 F. Supp. 2d at 967. The plaintiffs do not In Carhart, 530 U.S. 914, a majority of the Supreme Court appeal this part of the decision. applied Casey’s requirements to a Nebraska statute that attempted to ban partial birth abortions. The Court struck III. ANALYSIS down Nebraska’s ban for two reasons: (1) it lacked a maternal health exception, id. at 937-38; and (2) it defined the Our standard of review is that stated in our earlier decision banned procedure so broadly and vaguely that it swept in the in Voinovich, 130 F.3d 187: most common method for performing late term abortions, the dilation and evacuation (D & E) procedure, id. at 939-40. In This court reviews questions of law de novo. . . . contrast, the statute before us contains a maternal health While we normally review questions of fact for clear exception, defines the banned procedure narrowly, and error, see Fed. R. Civ. P. 52, an appellate court is to explicitly excludes from its ban the dilation and evacuation conduct an independent review of the record when (D & E) procedure. We must decide whether the Act is constitutional facts are at issue. sufficiently protective and specific to satisfy constitutional requirements. Id. at 192 (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6 (1964)). It bears emphasis, as an initial matter, that while we must protect the abortion right against unwarranted state intrusion, Our analysis begins, as it must, with the Supreme Court’s we are not empowered to ignore or undervalue the decisions in Casey, 505 U.S. 833, and Carhart, 530 U.S. 914. governmental interests this statute embodies. An essential These two cases establish the governing standards for the feature of the jointly authored opinion in Casey is the “undue burden” and “health exception” issues we must decide reaffirmation of the “substantial state interest in potential life today. In Casey, 505 U.S. 833, the Supreme Court evaluated throughout pregnancy.” 505 U.S. at 876. As Casey the constitutionality of a Pennsylvania statute that imposed a recognizes, the Court’s prior decisions, beginning with Roe, variety of restrictions on abortion. In an opinion authored 410 U.S. 113, had enforced a rigid framework that

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“sometimes contradicted the State’s permissible exercise of longer applies to abortion legislation. Casey, 505 U.S. at 871- its powers.” 505 U.S. at 872. Casey thus attempts to restore 77. Indeed, even in the less deferential realm of strict a balance of interests between women seeking abortions and scrutiny, the Supreme Court recently has shown, in an states seeking to regulate abortions by reasserting the altogether different context to be sure, considerable deference importance of the states’ interests and emphasizing that the to states attempting to balance competing, high-order abortion right is not infringed merely because a law makes it interests. Cf. Grutter v. Bollinger, 123 S. Ct. 2325, 2339, “more difficult or more expensive” to exercise. Id. at 873-74. 2346 (2003). Therefore, while the Act cannot stand if it impermissibly infringes on the abortion right, we will not Along similar lines, although Carhart invalidates assume that it violates the Fourteenth Amendment merely Nebraska’s partial birth abortion ban, it does so only after because it reflects interests in preventing unnecessary death acknowledging the legitimate relationship between the and cruelty to partially born children, maintaining a strong interest in protecting fetal life and the more subtle interests public policy against infanticide, and preserving the integrity motivating the Nebraska legislature’s decision to ban partial of the medical profession. We turn now to the specific birth abortions: that is, showing concern for fetal life; challenges raised by the plaintiffs. preventing cruelty to partially born infants; and preserving the integrity of the medical profession. 530 U.S. at 930-31. A. Adequacy of Health Exception Likewise, in this case, Ohio grounds its ban on three interests: preventing the unnecessary death of fetuses when they are Unlike the Nebraska statute invalidated in Carhart, partly substantially outside the mother’s body; maintaining a strong because it did not have a health exception, the Ohio Act public policy against infanticide; and preventing unnecessary contains a detailed health exception that applies both before cruelty. H.B. 351, § 3, 123rd Gen. Assem., Reg. Sess. (Ohio and after viability. Sections 2919.15.1(B) and (C) permit the 2000). These interests bear a striking resemblance to those partial birth procedure when it is “necessary, in reasonable implicitly accepted in Carhart, 530 U.S. at 930-31, and also medical judgment, to preserve the life or health of the mother reflect the long-recognized interests in protecting what Roe as a result of the mother’s life or health being endangered by called “potential life,” Roe, 410 U.S. at 154, and showing a serious risk of the substantial and irreversible impairment of “concern for the life of the unborn,” Casey, 505 U.S. at 869. a major bodily function.” Ohio Rev. Code Ann. § 2919.15.1(B), (C). The Act defines “serious risk of the Ohio’s expression of these important and legitimate substantial and irreversible impairment of a major bodily interests warrants a measure of deference, rather than the function” to mean “any medically diagnosed condition that so virtual assumption of unconstitutionality that has led federal complicates the pregnancy of the woman as to directly or courts, thus far, to invalidate the efforts of at least 20 states to indirectly cause the substantial and irreversible impairment of exercise the limited sovereign authority to regulate abortions a major bodily function.” Ohio Rev. Code Ann. and abortion methods. Ordinarily, it is only in legislation § 2919.15.1(A)(5). properly subject to strict scrutiny that a presumption of unconstitutionality applies. Cf. Lac Vieux Desert Band of The plaintiffs contend that this exception is constitutionally Lake Superior Chippewa Indians v. Michigan Gaming inadequate because, they argue, a valid health exception must Control Bd., 276 F.3d 876, 879 (6th Cir.), cert. denied, 536 give physicians the discretion to use the partial birth U.S. 923 (2002); Richland Bookmark, Inc. v. Nichols, 137 procedure in any and every circumstance in which a particular F.3d 435, 439 (6th Cir. 1998). Strict scrutiny, of course, no physician deems the procedure preferable to other readily

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available and more widely used procedures, such as the Pennsylvania statute, beginning with the provision that dilation and evacuation (D & E) procedure. The plaintiffs exempted women from compliance with the various insist that the Constitution bars Ohio from enacting a health regulations in the event of a “medical emergency.” Id. at 879- exception that permits the partial birth procedure only when 80. Pennsylvania defined a “medical emergency” as: necessary to prevent “serious risk[s]” involving “medically diagnosed condition[s]” that complicate a woman’s that condition which, on the basis of the physician’s pregnancy. Ohio Rev. Code Ann. § 2919.15.1(A)(5). In the good faith clinical judgment, so complicates the medical plaintiffs’ view, to satisfy the Fourteenth Amendment, a condition of a pregnant woman as to necessitate the health exception must make the partial birth abortion method immediate abortion of her pregnancy to avert her death available whenever any physician deems it “simply safer” or for which a delay will create serious risk of substantial than using alternative methods. Ohio responds that a valid and irreversible impairment of a major bodily function. health exception need only permit the partial birth procedure when necessary to prevent significant, as opposed to Id. at 879 (internal quotation marks and citation omitted). negligible, health risks, and that its maternal health exception meets and exceeds this standard. We agree, and therefore The plaintiffs in Casey challenged this definition as being hold that Ohio’s maternal health exception is valid because it too narrow, because “it forecloses the possibility of an permits the partial birth procedure when necessary to prevent immediate abortion despite some significant health risks.” Id. significant health risks. The Fourteenth Amendment, as at 880. Thus, the pertinent interpretive question in Casey was applied in Casey and Carhart, requires nothing more. whether the definition of “medical emergency” encompassed certain specified “conditions [that] could lead to an illness As we have said, in Casey, 505 U.S. 833, the Supreme with substantial and irreversible consequences.” Id. These Court evaluated the constitutionality of a Pennsylvania statute “conditions” included physical, pregnancy-related conditions that imposed a variety of restrictions on abortion. The Court such as preeclampsia, inevitable abortion, and premature preserved the right to choose an abortion but rejected the ruptured membrane. Id. The Court focused on the fact that, “rigid trimester” approach from Roe and replaced it with a at the appellate level, the Third Circuit had construed the term constitutional line drawn at viability. Id. at 870-74. Before “serious risk” to mean “‘that compliance with viability, the Court held, a state may regulate abortion as long [Pennsylvania’s] abortion regulations would not in any way as it does not impose an “undue burden” on a woman’s right pose a significant threat to the life or health of a woman.’” Id. to terminate her pregnancy. Id. at 876. After viability, a state (quoting Planned Parenthood v. Casey, 947 F.2d 682, 701 may regulate and even prohibit abortion “‘except where it is (3d Cir. 1991)). Based on this narrowing construction, the necessary, in appropriate medical judgment, for the Court held that “the medical emergency definition imposes no preservation of the life or health of the mother.’” Id. at 879 undue burden on a woman’s abortion right.” Casey, 505 U.S. (quoting Roe, 410 U.S. at 164-65). at 880. The Third Circuit also had expressed its view that the wording of Pennsylvania’s medical emergency exception was According to Casey, an “undue burden” exists when “a “carefully chosen to prevent negligible risks to life or health state regulation has the purpose or effect of placing a or significant risks of only transient health problems from substantial obstacle in the path of a woman seeking an serving as an excuse for noncompliance.” Planned abortion of a nonviable fetus.” 505 U.S. at 877 (emphasis Parenthood v. Casey, 947 F.2d at 701 (3d Cir. 1991). added). The Court applied its “undue burden” standard to the

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In Carhart, 530 U.S. 914, the Court applied Casey to except when the procedure is necessary to prevent a Nebraska’s attempted ban of the partial birth abortion method. significant health risk. Casey specifically endorses a The majority opinion, by Justice Breyer, held the law “medical emergency” exception that, based on the Third unconstitutional for two reasons. First, the law contained no Circuit’s narrowing construction, excused compliance with maternal health exception at all. Id. at 930-38. Second, the the various regulations in any situation involving a law’s definition of “partial birth abortion” encompassed the “‘significant threat to the life or health of a woman.’” 505 widely used D & E method as well as D & X, thereby U.S. at 880 (citation omitted). Carhart, in requiring a health imposing an undue burden on a woman’s pre-viability right exception without identifying its specific content, relies to choose an abortion. Id. at 938-46. heavily on medical evidence and lower court findings indicating that D & X might be “significantly safer in certain Carhart’s first holding, of primary significance here, is that circumstances,” 530 U.S. at 934 (emphasis omitted), that D & a statute banning D & X “must contain a health exception” X “significantly obviates health risks in certain because “a statute that altogether forbids D & X creates a circumstances,” id. at 936, that a complete D & X ban would significant health risk.” Id. at 938. Nebraska sought to “create significant health risks,” id. at 932, and that “a statute persuade the Court that its omission of a maternal health that altogether forbids D & X creates a significant health exception did not render the ban unconstitutional because a risk,” id. at 938. In our view, the Court does not use this partial birth abortion is never necessary to protect a woman’s terminology loosely; rather, this language demonstrates the health. Id. at 931-32. Nebraska faced a difficult task on this Court’s attentiveness to the limited number of situations point, as its burden was “to demonstrate that banning D & X involving a real medical need for D & X. We cannot without a health exception may not create significant heath conclude that the Court meant by this to require that a state’s risks for women.” Id. at 932. The Court concluded that health exception recognize marginal or insignificant risks Nebraska failed to carry that burden. Id. at 937-38. Thus, generalized to the entire population of women seeking late based on the “medically related evidentiary circumstances” in second-trimester abortions. the case, id. at 937, the Court rejected Nebraska’s absolute claim that D & X is never safer than other abortion Our holding finds further support in the familiar phrase, procedures. “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” recited first The case before us involves a different type of absolute in Roe, 410 U.S. at 164-65, retained in Casey, 505 U.S. at position, taken not by the state but by physicians who 879, and relied on in Carhart, 530 U.S. at 931. Although routinely perform the restricted procedure. They urge us to Carhart cautions that the term “necessary” does not “refer to endorse their view that D & X is always safer than other an absolute necessity or to absolute proof,” 530 U.S. at 937, methods used during the late second trimester. Stated the word cannot be emptied entirely of its distinctive meaning differently, the plaintiffs believe that a health exception, to be by being equated with “desirable.” As used in Roe, 410 U.S. constitutional, must give physicians complete freedom to at 164-65, and developed in Carhart, 530 U.S. at 937, it at perform abortions using the D & X procedure whenever they least denotes some measure of compulsion; a “necessary” wish to do so. We disagree. medical procedure surely is not the same thing as an “optional” or “preferable” one. In our view, the “significant Taken together, Casey and Carhart stand for the risk” threshold captures this distinction without violating proposition that states may restrict an abortion procedure Carhart’s admonition against unrealistic standards of proof.

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Additionally, merely as a “straightforward application” of abortion methods. For support, they rely heavily on a single Casey, id. at 938, Carhart must be understood in light of the dictum from Carhart: “a State may promote but not endanger doctrinal shift wrought by Casey. In adopting the “undue a woman’s health when it regulates the methods of abortion.” burden” standard in Casey, the Court believed it had found Id. at 931 (citing Thornburgh v. Am. Coll. of Obstetricians “the appropriate means of reconciling the State’s interest with and Gynecologists, 476 U.S. 747, 768-69 (1986); Colautti v. the woman’s constitutionally protected liberty.” Casey, 505 Franklin, 439 U.S. 379, 400 (1979); Planned Parenthood of U.S. at 876. Before Casey, the Court admitted, its decisions Central Mo. v. Danforth, 428 U.S. 52, 76-79 (1976); Doe v. had “undervalue[d] the State’s interest in the potential life Bolton, 410 U.S. 179, 197 (1973)). To the extent one might within the woman.” Id. at 875. By rejecting Roe’s rigid read this phrase as authority for the plaintiffs’ absolute view, trimester framework in favor of the undue burden standard, Carhart’s next paragraph proves that reading to be wrong: the Court endeavored to protect women from unwarranted interference with the abortion right while allowing states to The cited cases, reaffirmed in Casey, recognize that a express, meaningfully, their “concern for the life of the State cannot subject women’s health to significant risks unborn,” id. at 869, and even their “preference for normal both in [the context of health threats created by childbirth,” id. at 872 (internal quotation marks and citations pregnancy], and also where state regulations force omitted). Accordingly, a state’s regulation of abortion before women to use riskier methods of abortion. Our cases viability may not have “the purpose or effect of placing a have repeatedly invalidated statutes that in the process of substantial obstacle in the path of a woman seeking an regulating the methods of abortion, imposed significant abortion.” Id. at 877. health risks. They make clear that a risk to a women’s [sic] health is the same whether it happens to arise from While the majority opinion in Carhart does not employ the regulating a particular method of abortion, or from undue burden standard explicitly in connection with the barring abortion entirely. Our holding does not go health exception issue, its analysis reflects Casey’s beyond those cases, as ratified in Casey. acknowledgment of the importance of reconciling profound state interests and personal rights. For example, in Carhart, Carhart, 530 U.S. at 931 (emphasis added and omitted). Not the Court explains that, “[b]y no means must a State grant only does this passage clarify the preceding dictum, it also physicians ‘unfettered discretion’ in their selection of abortion firmly recasts the Court’s previous decisions in the methods.” 530 U.S. at 938 (citation omitted). The Court “significant health risk” mold. Therefore, we think the assures its dissenting members that it would not prohibit a plaintiffs greatly exaggerate the significance of the isolated state “from proscribing an abortion procedure whenever a phrase quoted above and ignore Carhart’s self-professed particular physician deems the procedure preferable.” Id. In limitations. Most importantly, Carhart cautions that it neither a broader sense, even by focusing on the need for a health extends nor departs from Casey. Id. at 931, 938. Moreover, exception, the Court invites state regulation of abortion because Nebraska made an absolute, negative claim about the methods. If it were otherwise, the Court would have held, in relative safety of D & X, the Court needed only to satisfy a straightforward fashion, that states may not interfere at all itself that the evidence indicated that a maternal health with medical discretion when abortions are involved. exception might be necessary in some circumstances. For these reasons, Carhart’s narrow holding regarding the basic The plaintiffs mistakenly believe that Carhart requires that need for a health exception should not be mistaken for a broad states give physicians unfettered discretion in the choice of decision that would clash with Casey’s express endorsement

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of a health exception triggered only by “‘significant threat[s] The question remains whether Ohio’s maternal health to the life or health of a woman.’” Casey, 505 U.S. at 880 exception achieves what Casey and Carhart require. Before (citation omitted). examining the Act’s provisions, we pause to recognize our duty to “resort[]” to “every reasonable construction . . . in Despite the plaintiffs’ stated fears, our decision does not order to save a statute from unconstitutionality.” Edward J. conflict with our earlier holding in Voinovich, 130 F.3d 187. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. In Voinovich, we struck down, among other provisions, Trades Council, 485 U.S. 568, 575 (1988) (internal quotation Ohio’s post-viability ban of all abortions because the statute marks and citation omitted); see also Frisby v. Schultz, 487 did not allow a post-viability abortion “where necessary to U.S. 474, 483 (1988); NLRB v. Jones & Laughlin Steel Corp., prevent a serious non-temporary threat to a pregnant woman’s 301 U.S. 1, 30 (1937); Buchman v. Bd. of Educ., 652 N.E.2d mental health.” Id. at 209. To reach this result, we 952, 960 (Ohio 1995). In addition, statutes restricting distinguished Casey on the ground that it involved regulations abortion no longer warrant strict scrutiny, Casey, 505 U.S. at that merely delayed abortions, not a law that banned abortions 871-77, and the attendant presumption against outright. Id. at 208. The plaintiffs contend that the same constitutionality. Moreover, we cannot ignore the difficulty distinction applies here, because the Act is a “ban,” not of legislating against a backdrop of constitutional standards simply a “regulation.”1 Apart from the patent superficiality that invite state regulation with one hand while barring it with of this argument, the plaintiffs fail to appreciate that we the other. Compounding this difficulty in the abortion limited our holding in Voinovich to “serious[,] non- context are the unique rules governing facial challenges, temporary” and “severe[,] irreversible” threats to mental under which “even a few” unconstitutional applications may health. Id. at 209 (some emphasis added). And we did so doom a state’s attempt to regulate the practice. Voinovich, precisely because “[t]he State’s substantial interest in 130 F.3d at 196; see also Casey, 505 U.S. at 894-95. And potential life must be reconciled with the woman’s finally, we suffer from a serious institutional disability in a constitutional right to protect her own life and health.” Id. at case in which vitally important issues turn on medical facts, 209-10. Now, in continuing respect for the constitutional yet the record consists mainly of the conflicting opinions of validity of maintaining this difficult balance, we conclude that highly interested, even ideologically motivated, experts. All Casey and Carhart require a maternal heath exception that these considerations compel us, if possible, to interpret Ohio’s permits the banned procedure when necessary to prevent a maternal health exception in a manner that will “avoid significant health risk. constitutional difficulties.” Frisby, 487 U.S. at 483. To repeat, the Act permits the partial birth procedure when “necessary, in reasonable medical judgment, to preserve the 1 life or health of the mother as a result of the mother’s life or The Ohio statute we are reviewing here restricts only one procedure, health being endangered by a serious risk of the substantial and does not purport to ban all post-viability abortions. Hence, contrary to the dissent’s reasoning, dissent at Section II., our holding in Voinovich and irreversible impairment of a major bodily function.” regarding the lack of a mental health exception does not apply. Even if Ohio Rev. Code Ann. § 2919.15.1(B), (C). The Act defines it did, a plaintiff would have to d emo nstrate that she would suffer severe “serious risk of the substantial and irreversible impairment of and irreversible mental harm from being limited to a D & E procedure a major bodily function” to mean “any medically diagnosed when she or her physician might prefer a D & X . The dissent thus condition that so complicates the pregnancy of the woman as misunderstands the issue and overlooks the fact that there is no evidence in the record that such mental harm is even p ossible, let alone likely. to directly or indirectly cause the substantial and irreversible

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impairment of a major bodily function.” Ohio Rev. Code concern for maternal health, we will neither assume that Ohio Ann. § 2919.15.1(A)(5). intended to expose women to significant health risks nor strain to read the Act into unconstitutionality when it is our In our view, this exception allows physicians to perform the duty to do otherwise. partial birth procedure whenever the procedure is necessary to protect the mother from significant health risks, including In notable contrast to the plaintiffs in Casey, 505 U.S. at those which embody comparative safety concerns. To be 880, the plaintiffs here do not even attempt to identify any sure, Ohio’s health exception, like other “exceptions,” does specific medical circumstance that demonstrates the not always apply. Its terms clearly exclude negligible risks, inadequacy of Ohio’s maternal health exception. Instead, trivial complications, and circumstances having nothing to do along with amicus American College of Obstetricians and with the health of the particular patient. Thus, consistent with Gynecologists, they assert the much broader claim that states Carhart, 530 U.S. at 938, the exception does not apply when may not regulate among safe abortion techniques. However, the choice of methods is dictated purely by the preference of if taken to its next logical step—not even its logical an individual physician. But when a woman’s actual medical “extreme”—this proposition would prevent states from condition makes the partial birth procedure necessary to restricting a procedure in which a fully intact, near-viable prevent a significant health risk, the health exception applies. infant is delivered alive and then killed, or allowed to expire, Likewise, the exception is triggered when other procedures, completely outside the mother. Indeed, one of the plaintiffs’ relative to the partial birth procedure, would expose a woman experts, Dr. Cassing Hammond, confirmed at trial that he to significant risks. Contrary to the dissent’s suggestion, the would prefer, if possible, to “remove the fetus totally intact Act does not require a preexisting complication that threatens every time and bring about its demise after it had been a pregnant woman’s health. Rather, through its use of the delivered.” While the plaintiffs may disagree, we believe that prospective terms “endangered” and “risk,” the Act makes the Constitution would not prevent a state from regulating clear that the exception applies if a pregnant woman’s such a practice when safe alternatives exist. circumstances are such that her physician, in reasonable medical judgment, believes that failure to use the partial birth We therefore hold that the Act’s health exception procedure will lead to a complication causing substantial or adequately protects maternal health. Because states face irreversible impairment of a major bodily function. greater constitutional obstacles when regulating abortion before viability, we have focused our analysis on the Act’s This understanding of the Act’s maternal health exception pre-viability effect. As the Supreme Court has explained, flows naturally from its close resemblance to the exception “subsequent to viability, the State in promoting its interest in upheld in Casey, 505 U.S. at 880, and from Carhart’s the potentiality of human life may, if it chooses, regulate, and admonition that physicians are not entitled to “unfettered even proscribe, abortion except where it is necessary, in discretion in their selection of abortion methods,” Carhart, appropriate medical judgment, for the preservation of the life 530 U.S. at 938 (internal quotation marks and citation or health of the mother.” Roe, 410 U.S. at 164-65. Given omitted). At the same time, the Act’s health exception is Ohio’s authority to prohibit abortion after viability, we need tethered to the developing state of medical knowledge, giving not consider separately the identically worded health it the flexibility needed to “tolerate responsible differences of exception for post-viability abortions. Ohio Rev. Code Ann. medical opinion.” Id. at 937. Moreover, because the Act, § 2919.15.1(B). Our decision to uphold the Act’s maternal unlike the law struck down in Carhart, evinces an undeniable

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health exception applies with equal force to both components fetus, which procedure the person performing the of the statute. procedure knows will cause the death of the fetus, or performance of another intentional act that the person B. Definition of “Partial Birth Procedure” performing the procedure knows will cause the death of the fetus; In its permanent injunction ruling, Women’s Med., 162 F. Supp. 2d at 937-38, the district court did not address the issue (d) Completion of the vaginal delivery of the fetus. whether the Act imposes an undue burden on the pre-viability abortion right by defining the “partial birth procedure” so as Ohio Rev. Code Ann. § 2919.15.1(A)(3). to sweep in the commonly used D & E procedure. In the preliminary injunction ruling, however, the district court The plaintiffs contend, primarily, that subsection (b) considered the question and held, in Ohio’s favor, that the Act renders the description unconstitutional because it includes does not unduly burden the abortion right. Women’s Med., procedures involving “intentional extraction of at least the 114 F. Supp. 2d at 683. Both parties ask us to reach the issue. lower torso to the navel.” Ohio Rev. Code Ann. And so, because we operate here with the benefit of full § 2919.15.1(A)(3)(b) (emphasis added). According to the briefing by the parties, a fully developed factual record, and plaintiffs, many traditional D & E procedures involve intact a district court ruling, albeit one made at the preliminary extraction to the navel. Ohio responds that the Act draws an injunction stage, we see no reason to reserve decision. unmistakable distinction between the partial birth procedure and the traditional D & E. The question, then, is whether the We begin with the statute itself, and then examine the Act’s description of the partial birth procedure encompasses plaintiffs’ claim that its terms violate the Fourteenth the commonly used D & E procedure and therefore imposes Amendment. The Act defines “partial birth procedure” as an undue burden on a mother’s right to abort a non-viable “the medical procedure that includes all of the following fetus. elements in sequence”: Carhart’s second holding is that Nebraska’s law is (a) Intentional dilation of the cervix of a pregnant unconstitutional because it could apply to the D & E woman, usually over a sequence of days; procedure, in that its terms prohibit procedures involving the delivery of “‘a substantial portion’” of a living fetus. 530 (b) In a breech presentation, intentional extraction of U.S. at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp. at least the lower torso to the navel, but not the entire 1999)). Because, Carhart holds, “a substantial portion” fails body, of an intact fetus from the body of the mother, or to distinguish “between D & E (where a foot or arm is drawn in a cephalic presentation, intentional extraction of at through the cervix) and D & X (where the body up to the head least the complete head, but not the entire body, of an is drawn through the cervix),” Carhart , 530 U.S. at 938-39, intact fetus from the body of the mother; the law “has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,’” (c) Intentional partial evacuation of the intracranial id. at 938 (quoting Casey, 505 U.S. at 877). Thus, the contents of the fetus, which procedure the person vagueness of the phrase “substantial portion” rendered performing the procedure knows will cause the death of Nebraska’s law susceptible to application against physicians the fetus, intentional compression of the head of the performing D & E procedures as well as D & X procedures.

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The Court notes, however, that Nebraska might have fared “it would have been a simple matter . . . [for Nebraska] to better if its description of the procedure had “track[ed] the provide an exception for the performance of D & E and other medical differences between D & E and D & X,” “provide[d] abortion procedures,” 530 U.S. at 939, the Ohio General an exception for the performance of D & E and other abortion Assembly saw the need to secure, by means of an explicit procedures,” or focused on the distinction between intact exception, the continued availability of traditional D & E extraction and dismemberment. Carhart, 530 U.S. at 939. abortion procedures. As we shall discuss, infra, the Ohio legislature, with remarkable prescience (given that the Act was written and Although the plaintiffs criticize the Act’s failure to define adopted prior to Carhart), has done precisely what the “dilation and evacuation,” courts have explained repeatedly Carhart Court thought the Nebraska legislation fatally failed that the principal distinction between D & X and D & E is to do. intactness: D & X maximizes intactness and D & E requires dismemberment prior to removal of the fetus. See, e.g., id. at Along similar lines, in Voinovich, we invalidated Ohio’s 927, 939; Voinovich, 130 F.3d at 199; Hope Clinic v. Ryan, previous attempt to ban partial birth abortions on the ground 195 F.3d 857, 861 (7th Cir. 1999), vacated, 530 U.S. 1271 that the statute imposed an undue burden by defining D & X (2000). The plaintiffs’ criticism is even more remarkable as “‘the termination of a human pregnancy by purposely because at the preliminary injunction hearing in this case, Dr. inserting a suction device into the skull of a fetus to remove Haskell confirmed that he actually “coined the term ‘dilation the brain.’” 130 F.3d at 198-201 (quoting Ohio Rev. Code and extraction’ or ‘D&X’ to distinguish it from the Ann. § 2919.15(A) (repealed 2000)). Although Ohio’s law dismemberment-type D&E.” (Emphasis added.) From its was not vague in this respect, it clearly failed to distinguish inception, then, the label “dilation and extraction,” or “D & between D & E and D & X, since D & E procedures X,” has been intended to allow physicians, much less sometimes require suction removal of a fetus’s skull contents. legislators, to distinguish between intact abortion procedures Voinovich, 130 F.3d at 199. We also pointed out that Ohio’s and those procedures that require dismemberment prior to statute excluded the suction curettage and suction aspiration removal of the fetus. The Act invokes this well-established procedures, but not the D & E procedure. Id. at 200. distinction by excluding D & E in section 2919.15.1(F) and separating D & X from D & E in section 2919.15.1(A)(1). As we have said, in the present statute, the Ohio General Accordingly, regardless of whether a procedure involves Assembly avoided the flaws identified in Carhart by “intentional extraction of at least the lower torso to the navel,” precisely describing the restricted procedure and explicitly Ohio Rev. Code Ann. § 2919.15.1(A)(3)(b), it is not permitting D & E procedures. The Act provides: “This prohibited by the Act if it requires dismemberment of the section does not prohibit the suction curettage procedure of fetus prior to removal of the fetal parts “in several passes,” abortion, the suction aspiration procedure of abortion, or the Carhart, 530 U.S. at 927. Moreover, the Act does not dilation and evacuation procedure of abortion.” Ohio Rev. prohibit all intact abortion procedures. The sequential Code Ann. § 2919.15.1(F) (emphasis added). A separate description contained in section 2919.15.1(3) ensures that the provision clarifies that the phrase, “‘[d]ilation and evacuation law, in the case of a breech presentation, applies only if the procedure of abortion’ does not include the dilation and intentional act causing the fetus’s death occurs after intact extraction procedure of abortion.” Ohio Rev. Code Ann. extraction to the navel. In the case of a cephalic presentation, § 2919.15.1(A)(1). Thus, even though the Act was drafted there is no question that the Act does not restrict the D & E without the benefit of Carhart’s subsequent observation that method.

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In contrast to the situation in Carhart, 530 U.S. at 940-45, ________________ Ohio does not urge us to replace a vague, offending, statutory phrase like “substantial portion” with a conflicting phrase like DISSENT “body up to the head.” The Act, as written, carefully ________________ describes the restricted procedure and explicitly excludes other procedures; our interpretation gives meaning to the TARNOW, District Judge, dissenting. The Court must restriction and the exclusion. We therefore have no difficulty determine whether Ohio’s Substitute House Bill 351 fulfilling our twin obligations to “give effect, if possible, to (“HB 351”) provides a constitutionally adequate exception for every clause and word of a statute,” Moskal v. United States, the health of pregnant women in light of its ban on intact 498 U.S. 103, 109-10 (1990) (internal quotation marks and abortion procedures.1, 2 The adequacy of that exception must citations omitted), and to construe statutes, when possible, so be judged according to the constitutional requirement that as to “avoid constitutional difficulties.” Frisby, 487 U.S. at abortion regulations allow exceptions when “necessary, in 483. appropriate medical judgment, for the preservation of the life or health of the mother.” See Roe v. Wade, 410 U.S. 113, Accordingly, because the Act does not restrict the most 164-165 (1973); Planned Parenthood of S.E. Pa. v. Casey, commonly used procedure for second trimester abortions and 505 U.S. 833, 879 (1992). For reasons summarized because the statute provides an exception for significant immediately below and discussed in the following sections, health risks, we conclude that it does not impose an undue I conclude that HB 351 forces some women to use riskier burden on a woman’s right to abort a non-viable fetus. methods of abortion and thus fails to meet this requirement in both its pre- and post-viability contexts. See Stenberg v. IV. CONCLUSION Carhart, 530 U.S. 914, 931 (2000). For the foregoing reasons, we REVERSE the district The facial challenge here presents two central questions: court’s judgment and VACATE the permanent injunction 1) What is the constitutional standard for judging the preventing enforcement of the Act. adequacy of a health exception to preserve a woman’s health where a particular method of abortion has been banned? and

1 The parties have also asked the Court to determine whether HB 351 sweeps within its ban the “D&E” proc edure, thereby placing an undue burden on women who seek an abortion before the fetus attains viab ility. For the reasons stated by the district court in its preliminary injunction ruling, I agree that HB 351 d oes not sweep the D&E procedure within its reach. See Women’s Med. Prof’l Corp. v. Taft, 114 F. Supp. 2d 664, 683- 85 (S.D. Ohio 2 000).

2 I will use the terms “intact procedure” and “intact method” interchangeably, each signifying what is entailed by the terms “D&X” method, “intact D&E” method, as well as the “partial birth procedure” defined in HB 35 1, Ohio Rev. Cod e Ann. § 2919 .151(A)(3).

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2) Does the specific language of the HB 351’s health pregnancy.” Ohio Rev. Code Ann. § 2919.151(B) (post- exception comport with this constitutional standard? viability) and (C) (pre-viability); Ohio Rev. Code Ann. § 2919.151(A)(5) (statutory definition). Thus it does not The majority concludes that a ban on the intact method is allow the intact procedure for a healthy woman. When the constitutional as long it contains a health exception allowing fetus has not yet attained viability, a healthy woman, like any the procedure “when necessary to prevent significant, as woman, has a constitutional right to obtain an abortion opposed to negligible, health risks.” Majority Slip Opinion at without being forced to use a riskier procedure. See Carhart, 15. Further, they conclude that HB 351’s health exception 530 U.S. at 931. Because the record shows that the intact meets this standard. method may entail significantly less risk than other methods, HB 351’s pre-viability ban is unconstitutional. In terms of the degree of risk to be considered, I agree that a health exception is not constitutionally required for truly HB 351’s failure to address comparative health risks negligible health risks. However, when a state bans a method extends also to women for whom a continuing pregnancy or of abortion, it is required to permit an exception whenever a bearing a child would impose a risk of severe and irreversible woman faces any risk to her health that is more than mental harm. As Ohio stated in the proceedings below, negligible.3 See Carhart, 530 U.S. at 931; Casey, 505 U.S. at HB 351’s health exception encompasses only risks to a 880. woman’s physical health. This admission comports with the language of the health exception requiring a risk of But more important to this case, as to a relevant source of impairment to “a major bodily function.” Ohio Rev. Code risk, the Supreme Court has instructed that “a State cannot Ann. § 2919.151(B) (post-viability) and (C) (pre-viability); subject women’s health to significant risks . . . where state Ohio Rev. Code Ann. § 2919.151(A)(5) (statutory definition) regulations force women to use riskier methods of abortion.” (emphasis added). However, the Supreme Court has made Carhart, 530 U.S. at 931. Thus, where a woman has a right to clear that a woman’s mental health must be considered a part an abortion, the state must allow an exception for her to of her overall health when a state regulates abortion. See Doe receive a banned method of abortion when it offers a non- v. Bolton, 410 U.S. 179, 191-192 (1973). In accord with this negligible safety advantage over other methods. principle, this Court has stated that a health exception must encompass a risk of a serious and irreversible harm to the As to whether HB 351’s health exception meets this woman’s mental health. Women’s Med. Prof’l Corp. v. standard, the majority offers a construction that is at odds Voinovich, 130 F.3d 187, 209 (6th Cir. 1997), cert. denied, with the plain wording of the statute. In fact, HB 351 allows 523 U.S. 1026 (1998). Under HB 351, a woman facing a risk an exception only when a woman is endangered by a of severe and irreversible harm to her mental health would not “medically diagnosed condition that . . . complicates the have access to the intact procedure and would thus be compelled to face the greater physical risks that attend other methods of abortion. This result violates Carhart’s instruction 3 that a woman may not be forced to use riskier methods of Thus, the word “significant,” as in the phrase “significant risk,” must be taken to mean “non-negligible.” In fact, “negligible risks” and abortion. See Carhart, 530 U.S. at 931. Because HB 351 fails “trivial complications,” see Majority Slip O pinion at 23 , are irrelevant to to encompass these risks both before and after fetal viability, this case. I will therefore use and interpret the word “risk” to mean “non- it is unconstitutional in both contexts. negligib le risk.” Likewise, I will use and interpret the wo rd “riskier” to mean “riskier b y a non-negligible amo unt.”

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For these reasons, I believe the district court’s decision Carhart. In striking down a Nebraska statute prohibiting the should be affirmed. Thus, I respectfully dissent. intact procedure without any exception for the pregnant woman’s health, the Court reaffirmed and explained its I. HB 351’s Pre-Viability Ban is Unconstitutional Because rationale behind the preservation standard. It Forces Healthy Women to Use Riskier Methods of Abortion [T]he governing standard requires an exception “where it is necessary, in appropriate medical judgment for the A. The Constitution forbids regulations that force preservation of the life or health of the mother,” for this women to use riskier methods of abortion Court has made clear that a State may promote but not endanger a woman’s health when it regulates the In Roe, the Supreme Court held that “subsequent to methods of abortion. viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, Carhart, 530 U.S. at 931 (citing Casey, 505 U.S. at 879; abortion except where it is necessary, in appropriate medical Thornburgh, 476 U.S. at 768-769; Colautti, 439 U.S. at 400; judgment, for the preservation of the life or health of the Danforth, 428 U.S. at 76-79; Doe, 410 U.S. at 197). mother.” 410 U.S. at 164-165.4 That holding has been consistently reiterated. See, e.g., Casey, 505 U.S. at 879; Carhart also reaffirmed that the relevant dangers to a Carhart, 530 U.S. at 930. Further, because the State’s interest woman’s health are not limited to those created by the in regulating abortion before fetal viability is much weaker, pregnancy itself. “the law . . . at a minimum requires the same in respect to previability regulation.” Carhart, 530 U.S. at 930 (citing [A] State cannot subject women’s health to significant Casey, 505 U.S. at 880; Harris v. McRae, 448 U.S. 297, 316 risks both [where the pregnancy itself creates a threat to (1980)). health], and also where state regulations force women to use riskier methods of abortion. Our cases have The meaning of the critical phrase “necessary, in repeatedly invalidated statutes that in the process of appropriate medical judgment, for the preservation of the life regulating the methods of abortion, imposed significant or health of the mother” has been clarified by a long line of health risks. They make clear that a risk to a women’s Supreme Court cases, including Carhart, Thornburgh v. [sic] health is the same whether it happens to arise from American College of Obstetricians & Gynecologists, 476 U.S. regulating a particular method of abortion, or from 747 (1986) (overruled in part by Casey, 505 U.S. at 870), barring abortion entirely. Colautti v. Franklin, 439 U.S. 379 (1979), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 Id. at 931 (emphasis in original). It is clear then that where a (1976). The case that is both most recent and relevant is constitutional right to an abortion exists, a state may not “force women to use riskier methods.” In short, the comparative risks between methods are of constitutional 4 Mo difying Roe, Casey held that prior to fetal viability, a woman has import, just as are risks stemming from a woman’s immediate a right to an abortion without an “undue burden” from the state. 505 U.S. medical condition. at 874-78. In addition, Casey reaffirmed the “substantial state interest in potential life throughout pregnancy.” Id. at 876. These central principles also inform the discussion of the ad equacy of H B 3 51’s health exception.

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The Court also found that the comparative risks at issue for Further, given the Supreme Court’s instruction that the a ban on the intact procedure are not negligible. health preservation standard does not require an “absolute necessity” for the medical procedure nor does it require The State fails to demonstrate that banning D & X “unanimity of medical opinion,” health risks may be assessed without a health exception may not create significant as being significant because “[d]octors often differ in their health risks for women, because the record shows that estimation of comparative health risks.” Carhart, 530 U.S. at significant medical authority supports the proposition 937. that in some circumstances, D & X would be the safest procedure. Where a significant body of medical opinion believes a procedure may bring with it greater safety for some Id. at 932. Thus, the Court states that because significant patients and explains the medical reasons supporting that medical authority shows the D&X procedure to be the safest view, we cannot say that the presence of a different view method in some circumstances, banning the procedure will by itself proves the contrary. Rather, the uncertainty necessarily create significant health risks for some women. means a significant likelihood that those who believe that This conclusion follows from factual findings accepted by the D & X is a safer abortion method in certain Court regarding the safety advantages of the intact procedure. circumstances may turn out to be right. If so, then the See id. at 932. Moreover, it also follows from the fact that a absence of a health exception will place women at an woman who seeks an abortion at the relatively late stage of unnecessary risk of tragic health consequences. fetal development where the D&X procedure becomes relevant will necessarily face significant health risks. In short, Id. Thus, in this context where the attendant health risks of the serious risk inherent to late term procedures means that abortion are already significant, and doctors reasonably the safety advantages offered by the intact method are not disagree as to comparative safety of available methods, a negligible. This fact supports the standard allowing a woman “safer abortion method in certain circumstances” will help to receive the safest procedure, and renders irrelevant the diminish the risk of “tragic health consequences.” With these majority’s discussion of “marginal or insignificant risks.” principles and findings, the Court instructs that the intact Majority Slip Opinion at 18.5 procedure must be permitted when it may be the safer procedure for the woman.6 5 In its focus on “negligible risks” and “trivial complications,” see Majority Slip O pinion at 23 , the majority miscasts the plaintiffs’ argum ents and the district court’s ruling. Neither contend that a health exception must accommodate negligible risks. The district court states procedure, this is not a case abo ut negligible risks. See id. at 941-952. “the plain language of HB 351 does not allow the ‘partial birth procedure’ 6 to be performed when it is simply safer than alternative methods of In further support of this conclusion, it should be noted that the abortion, and that is what Carh art requires.” Wom en’s Med. P rof’l Corp. Court found irrelevant or unpersu asive N ebraska’s co ntention that “safe v. Taft, 162 F. Supp. 2d 929, 940-41 (2001). The district court does not alternatives remain available” d espite the ban. See C arhart, 530 U.S. at use the phrase “simply safer” in isolation to mean “an iota safer.” Rather, 931-32. Further, the Court cited as relevant the conclusion of a panel of the court uses the word “simply” to mod ify the whole phrase “safer than the American College of Obstetricians and Gynecologists that the intact alternative methods o f abortion.” As this context makes clear, the court procedure “may be the best or most appropriate procedure in a particular refers to the source of risk, not the degree of risk. Indeed, in acco rd with circumstance to save the life or preserve the health of a woman.” Id. at the district court’s findings about the comparative safety of the intact 932.

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Carhart’s underlying rationale that “a State may promote Carhart and its antecedents make clear that when a woman but not endanger a woman's health when it regulates the holds a constitutional right to obtain an abortion, the state methods of abortion” is not dicta, as the majority suggests. may not force her to use riskier methods of abortion. Carhart, See Majority Slip Opinion at 20. This principle in fact lies at 530 U.S. at 931. In light of the rights outlined in Roe and the core of a line of cases leading up to Carhart. For example, Casey, therefore, a woman must be permitted to choose the in Danforth, the Supreme Court invalidated a ban on saline safest available method when the fetus is not viable and also induction abortions because the record demonstrated its safety at any time the woman’s health is endangered by a continuing advantage over other available methods. The ban was held pregnancy. This is the relevant meaning of the Supreme unconstitutional in part because it “force[d] a woman and her Court’s pronouncement that “a State may promote but not physician to terminate her pregnancy by methods more endanger a woman’s health when it regulates the methods of dangerous to her health than the method outlawed.” Danforth, abortion.” This is what is required in a state’s constitutional 428 U.S. at 78-79. obligation to ensure the “preservation of the life or health” of the woman. Later, in Thornburgh, the Court examined a Pennsylvania law concerning post-viability abortions that required the B. The facts of this case and others show that other physician to choose an abortion procedure that “would methods of abortion may be riskier than the intact provide the best opportunity for the unborn child to be method and that causing fetal demise in advance aborted alive” unless that method “would present a may add significant risk to the intact method significantly greater medical risk to the life of health of the pregnant woman” than another available method. 18 Pa. Given the foregoing constitutional standard, it is necessary Cons. Stat. § 3210(b) (1982). The Court found the statute to consider whether “a significant body of medical opinion unconstitutional because it required the pregnant woman “to believes [that the intact procedure] may bring with it greater bear an increased medical risk in order to save her viable safety for some patients, and explains the medical reasons fetus.” Thornburgh, 476 U.S. at 769. supporting that view.” Carhart, 530 U.S. at 937. This inquiry is relevant to HB 351’s pre- and post-viability bans because Thornburgh’s holding accords with the Court’s earlier the intact procedure is performed in both contexts. See decision in Colautti, where the Court expressed its concern Women’s Med. Prof’l Corp. v. Taft, 114 F. Supp. 2d at 668 over a similar provision in Pennsylvania’s Abortion Control (granting preliminary injunction). The medical processes Act that required physicians aborting potentially viable entailed by the common methods of abortion, including their fetuses to use a technique to maximize the fetus’s chance for risks and benefits, have been extensively detailed by the survival. The Court invalidated the provision on grounds of district court below and others. See Women’s Med. Prof’l vagueness because it could be read to “require[] the physician Corp. v. Taft, 162 F. Supp. 2d 929, 941-952 (S.D. Ohio 2001) to make a ‘trade-off’ between the woman's health and (granting permanent injunction); see also, e.g., Carhart, 530 additional percentage points of fetal survival.” Colautti, 439 U.S. at 932-933, 935-936. U.S. at 400. Thus, far from being dicta, the principle that “a State may promote but not endanger a woman's health when These sources demonstrate that the intact procedure may in it regulates the methods of abortion” has in fact guided the fact present numerous safety advantages over other methods. decisions of the Supreme Court for more than twenty years. See Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d at 947, 950, 951, 954 (finding that the intact method may be

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safer than other methods); see also Carhart, 530 U.S. at 932- hemorrhage and infection; and 4) an additional surgical 33 (citing numerous cases where the intact procedure was procedure to remove a remaining placenta. See id. at 948, found to be the safest or most appropriate procedure). For the 949, 950. purposes here, these safety advantages may be summarized. As compared to hysterectomy or hysterotomy, the district As compared to the D&E method, the district court found court noted the obvious fact that the intact procedure was that the intact method may be safer. See Women’s Med. Prof’l generally far less traumatic than those major surgical Corp. v. Taft, 162 F. Supp. 2d at 949-50. This conclusion was procedures. See id. at 942; see also Planned Parenthood of based on evidence showing that the intact procedure may Cent. New Jersey v. Farmer, 220 F.3d 127, 145 (3rd Cir. have a lower risk of: 1) infection; 2) trauma to the cervix and 2000) (finding that these procedures have an “enhanced risk uterus from an increased number of passes of instruments into of morbidity and mortality to the woman due to the incidence the uterus; and, 3) a complication known as disseminated of hemorrhage” and that hysterectomy leaves a woman intravascular coagulation (“DIC”), a blood clotting disorder sterile). that may be fatal. See id. at 948, 949, 949-50; see also Danforth, 428 U.S. at 96 (presenting background and risks of It is clear then that the intact procedure may be significantly DIC); Carhart, 530 U.S. at 932 (quoting district court’s safer in some circumstances than other available methods of finding that D&E helps prevent DIC, which is among the two abortion.7 But because HB 351 does not in effect ban the most common causes of maternal death, Carhart v. Stenberg, intact procedure when the delivered fetus is already dead, see 11 F. Supp. 2d 1099, 1126 (D. Neb. 1998), aff’d, 192 F.3d Ohio Rev. Code Ann. § 2919.151(A)(3)(b) and (c), the safety 1142 (8th Cir. 1999), aff’d, 530 U.S. 914 (2000)). The intact of procedures used to cause fetal demise must also be procedure may also cause less blood loss and require a shorter examined to determine whether they present non-negligible duration of general anesthesia, which carries its own attendant risk. The district court found that ensuring fetal death, both by health risks including the risk of death. See Women’s Med. injection of a feticidal agent such as digoxin and by severing Prof’l Corp. v. Taft, 162 F. Supp. 2d at 948. Further, the the umbilical cord, increased the risk to the woman. See intact procedure reduces the possibility of leaving fetal tissue Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d at 957, inside the uterus. See id. at 950. The Court in Carhart 958. similarly noted this danger, citing the complications that may arise from remaining bony fragments and retained fetal parts. As to the digoxin injection, various experts testified at the 530 U.S. at 932. district court that various complications may arise from its use, including: 1) amniotic embolism, which may be fatal; The district court also found the intact procedure to be safer 2) bleeding and injury to the bowel; 3) piercing of other than the induction/instillation method of abortion. See internal structures such as blood vessels and the uterus; Women’s Med. Prof’l Corp., 162 F. Supp. 2d at 951. The 4) arrhythmia possibly leading to cardiac arrest for women Court heard evidence that induction/instillation may present with preexisting cardiac problems; 5) vomiting; 6) vaginal the following comparative disadvantages: 1) a protracted induction time averaging 19 hours, as compared to 15 minutes, not including the dilation period, for the intact 7 procedure; 2) the use of a labor inducing agent known to Contrary to the majority’s assertion, neither Plaintiffs nor the ir expert doctors make the assertion that the intact proc edure is “always cause nausea, vomiting, and diarrhea; 3) an increased risk of safer.” Majority Slip Opinion at 17.

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bleeding; and, 7) other injury to the uterus requiring C. HB 351 does not allow an exception to its ban on hospitalization. See id. at 956-57; see also Carhart, 530 U.S. the intact procedure when the woman does not at 932 (quoting district court’s finding that amniotic have a “medically diagnosed condition that . . . embolism is the other of the two most common causes of complicates the pregnancy,” even if the intact maternal death, 11 F. Supp. 2d at 1126). Other courts have procedure is safer than other methods found similar risks. For example, in Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997), the court found that Given that it is unconstitutional for a state to “force women “injections have serious potential health risks” including to use riskier methods of abortion” and the fact that the intact those of hemorrhage, infection, and uterine necrosis. Id. at method may be a safer procedure for some women, it must be 1301. The Evans court also found that many physicians do determined whether HB 351 allows an exception to its ban not have the appropriate skills to perform the injection and when the intact procedure is safer than other available that some women have conditions that make the injection procedures. As the following shows, it does not. impossible. Id. HB 351 permits the “partial birth procedure” only when it As to severing the umbilical cord, the district court found is “necessary, in reasonable medical judgment, to preserve the that the passing of sharp instruments into the uterus increases life or health of the mother as a result of the mother's life or the risk of uterine perforation as the physician locates and health being endangered by a serious risk of the substantial severs an umbilical cord that does not spontaneously present and irreversible impairment of a major bodily function.” Ohio itself. See Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. Rev. Code Ann. § 2919.151(B) (post-viability) and (C) (pre- 2d at 957. This finding is consistent with those of other viability). HB 351 defines the “serious risk of the substantial courts. See Carhart v. Stenberg, 11 F. Supp. 2d 1099 at 1123 and irreversible impairment of a major bodily function” to (“Cutting the umbilical cord and waiting for the fetus to die mean “any medically diagnosed condition that so complicates before completing the D & X procedure carries appreciable the pregnancy of the woman as to directly or indirectly cause maternal risks, no maternal benefits, and is not always the substantial and irreversible impairment of a major bodily possible.”); Planned Parenthood of Cent. New Jersey v. function.” Ohio Rev. Code Ann. § 2919.151(A)(5). Verniero, 41 F. Supp. 2d 478, 500 (D.N.J. 1998) (finding risk of uterine perforation and hemorrhage from passing of sharp Thus, HB 351’s health exception will not apply when a instruments into the uterus and generally that “[h]ealth risks woman who seeks the intact method is not endangered by a to women would be significantly increased if physicians are “medically diagnosed condition that . . . complicates the required to ensure fetal demise in utero”), aff’d, 220 F.3d 127 pregnancy.” Id. In limiting its exception to pre-existing (3rd Cir. 2000). physical conditions, HB 351 fails to contemplate the increased risks imposed on a woman by other methods of On these findings, it is clear then that requiring fetal demise abortion. No exception would be permitted for a woman who before completion of the intact procedure may present is healthy, even if the intact procedure would likely avert additional risks of serious health consequences for some highly serious health risks. women. The majority and defendants assert that “the exception is triggered when other procedures, relative to the partial birth procedure, would expose a woman to significant risks.”

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Majority Slip Opinion at 23. However, their reading conflicts 2) substantial medical evidence shows that intact with the plain language of the statute stating that a woman procedure may pose a lesser risk to some women; may not receive the intact method unless she is endangered by a “medically diagnosed condition that . . . complicates the 3) the common methods of causing fetal demise may pregnancy.” Ohio Rev. Code Ann. § 2919.151(A)(5). Because add significant risk to an abortion procedure and an abortion ends a pregnancy, it is not possible to characterize offer no benefit to the pregnant woman; and, a health consequence of abortion as a “medically diagnosed condition that . . . complicates the pregnancy.” This language 4) HB 351 does not permit a health exception for the excludes the prospective risks of other methods of abortion, intact procedure when it poses less risk to a pregnant thus violating Carhart’s instruction. The majority ignores this woman who does not have a medically diagnosed part of the statute and offers a plainly unreasonable condition that complicates the pregnancy. interpretation of the statute’s clear language. Taken together, these findings and conclusions show that As noted in Carhart, the clear statutory definition is HB 351’s pre-viability ban is unconstitutional because it does controlling. See Carhart, 530 U.S. at 942 (stating that not allow an exception for a woman who faces heightened “[w]hen a statute includes an explicit definition, we must risks from other methods but who does not have a medically follow that definition”). Likewise, the Court in Colautti noted diagnosed condition complicating the pregnancy. In the pre- that “[a]s a rule, a definition which declares what a term viability context, the exception’s limiting conditions render it means . . . excludes any meaning that is not stated.” 439 U.S. unconstitutionally narrow.8 HB 351’s pre-viability ban fails at 392-93 n.10 (quotation and citation omitted). Despite our to offer the protection necessary to ensure the “preservation duty to attempt to construe statutes to preserve their of the life or health” of the pregnant woman and is therefore constitutionality, see Frisby v. Schultz, 487 U.S. 474, 483 unconstitutional. (1988), such is not possible here in light of the statute’s unambiguous wording. 8 D. HB 351’s pre-viability ban fails to provide a In the post-viability context, the state may proscribe abortion constitutionally adequate exception to preserve the altogether, except where the woman’s health is thre atened by a continuing health of a woman who does not have a medically pregnancy. See Roe, 410 U.S. at 164 -165 ; Casey, 505 U.S. at 879 (199 2). Thus, the state may limit exceptions to cases where the wom an has a diagnosed condition that complicates the pregnancy medically diagnosed condition that complicates the pregnancy, as HB 351’s health exception does. In light of our duty to offer reasonable The foregoing establishes the following: statutory constructions to preserve constitutionality, I believe that the post-viability health exception may be read to apply when the woman has 1) it is unconstitutional for a state to maintain a physical condition that complicates the pregnancy and the intact regulations that “force women to use riskier methods procedure would be the safest method of abortion. In such a case, of abortion” when a woman has a constitutional HB 351’s post-viability ban would not violate Carh art’s prohibition of abortion regulations that force women to use riskier methods of abortion. right to abortion, viz., Nonetheless, as discussed in the follow ing sectio n, both the pre- and post- a) when the fetus is not viable; and, viability bans are unconstitutional b ecause the ex ception fails to apply b) whenever a continuing pregnancy would when the woma n faces a serious risk to her mental health from a threaten the woman’s life or health; continuing pregnancy and the intact procedure would be the safest method of abortion.

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II. HB 351’s Pre- and Post-viability Bans Are This Court has specifically held so, stating that in the post- Unconstitutional Because They Force Women Facing viability context, a maternal health exception must encompass Severe and Irreversible Harm to Their Mental Health a risk of severe and irreversible harm to the woman’s mental to Use Riskier Methods of Abortion health. Voinovich, 130 F.3d at 209-210. The Court stated: As discussed above, HB 351’s pre-viability ban is The State’s substantial interest in potential life must be unconstitutional because it forces a woman who does not have reconciled with the woman's constitutional right to a “medically diagnosed condition that . . . complicates the protect her own life and health. We believe that in order pregnancy” to use riskier methods of abortion. But there is to reconcile these important interests, the Constitution another circumstance in which HB 351 would force a woman requires that if the State chooses to proscribe post- to use riskier methods of abortion, viz. when a continuing viability abortions, it must provide a health exception pregnancy or bearing a child would present a risk of severe that includes situations where a woman is faced with the and irreversible harm to the woman’s mental health. Because risk of severe psychological or emotional injury which HB 351 limits its exception to risks from pre-existing may be irreversible. physical conditions, it fails to allow an exception where the risks are to the woman’s mental health. As discussed below, Id. at 210. The Voinovich court also found that the health this failure renders HB 351 unconstitutional in both its pre- exception at issue there unconstitutionally limited “the and post-viability contexts. physician’s discretion to determine whether an abortion is necessary to preserve the woman's health, because it limits the A. Both the Supreme Court and this Court have physician's consideration to physical health conditions.” Id. recognized that a woman’s mental health must be (citing Colautti, 439 U.S. at 387). Thus, it must be determined preserved as part of her overall health whether some women face risks of severe and irreversible harm to their mental health and whether HB 351’s health Since the day Roe was decided, the Supreme Court has exception would encompasses such risks. recognized the emotional and psychological aspects of a woman’s overall health. To determine whether an abortion is B. The facts of this case show that some women face a medically “necessary,” the Court in Doe stated that “medical risk of severe and irreversible mental harm from a judgment may be exercised in the light of all continuing pregnancy or bearing a child factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well- being of the patient. All The record makes clear the factual bases for concern over these factors may relate to health.” Doe, 410 U.S. at 191-192 the mental health conditions of some pregnant women. (emphasis added). Decided on the same day and meant “to be Plaintiffs’ psychological expert testified that certain women read together,” id. at 165, Doe and Roe indicate that a face very significant mental health risks from a continuing woman’s mental health, in addition to her physical health, pregnancy or bearing a child. Women who may face such risk must be considered in assessing whether an exception to an include victims of rape, incest, and other kinds of abuse, and abortion regulation actually preserves the health of the those with severe emotional disorders such as severe pregnant woman. depression, obsessive-compulsive disorder, and manic- depressive illness. See J.A. at 954, 957-58, 973-77; see also Women’s Med. Prof’l Corp. v. Voinovich, 911 F. Supp. 1051,

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1078-1081 (S.D. Ohio 1995) (listing examples of relevant exception will apply only if all of the following conditions are psychological harms), aff’d, 130 F.3d 187 (6th Cir. 1997). met: Thus, although the district court did not make detailed findings on risks to mental health in this case,9 the record 1) there is a danger to the pregnant woman’s life or clearly shows that some women face very serious mental health; health risks from a continuing pregnancy. See Voinovich, 130 F.3d at 192 (“[A]n appellate court is to conduct an 2) the danger arises from a medically diagnosed independent review of the record when constitutional facts are condition; at issue.”) (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6 (1964)). 3) the medically diagnosed condition complicates the pregnancy; C. HB 351 does not allow an exception to its ban on the intact procedure when the woman faces a risk 4) the complication directly or indirectly causes a of severe and irreversible harm to her mental substantial and irreversible impairment; and, health, even if the intact procedure is safer than other methods 5) the impairment is of a major bodily function.

HB 351 will permit the intact procedure only when it is As to whether the exception would apply for a woman “necessary, in reasonable medical judgment, to preserve the facing a risk of severe and irreversible mental harm, it is clear life or health of the mother as a result of the mother's life or that the first four of the five conditions would be met.10 health being endangered by” a “medically diagnosed However, the fifth condition that the impairment be of “a condition that so complicates the pregnancy of the woman as major bodily function” does not appear to be met when the to directly or indirectly cause the substantial and irreversible serious risk is purely to the woman’s mental health. Indeed, impairment of a major bodily function.” Ohio Rev. Code in considering the substantially similar health exception in Ann. § 2919.151(B) (post-viability) and (C) (pre-viability), Voinovich,11 this Court stated that “[o]n its face, this incorporating Ohio Rev. Code Ann. § 2919.151(A)(5) definition appears to be limited to physical health risks, as (statutory definition). By its plain wording, then, the opposed to mental health risks.” Voinovich, 130 F.3d at 206. The same is true here. In fact, the defendants have admitted

10 As to the third condition, I assume that severe mental health risks, 9 like physica l health risks, may be “medically d iagnosed” by a doctor, In granting a preliminary injunction, the district court found a substantial likelihood that HB 351 was uncon stitutional because it failed psychiatrist, or other mental health professional. The first, second, and to enco mpa ss risks of severe and irreversible harm to a wo man’s mental fourth conditions ob viously apply in this context. health. See 114 F. Supp. 2d at 696. In granting the permanent injunction, 11 however, the district court chose not to reach the issue concerning an The relevant provision in Voinovich proscribed all post-viability exception for mental health risks because the court found HB 351 to be abortions except where “a physician determines, in good faith and in the unco nstitutional in both the pre - and p ost-viab ility contexts. See 162 F. exercise of reasonable medical judgment, that the abortion is necessary to Supp. 2d at 962 , n.31. Nonetheless, this Court may affirm the district prevent the death of the pregnant woman or a serious risk of the court’s judgment on any basis supported by the record . See Andrews v. substantial and irreversible impairment of a major bodily function of the Oh io, 104 F.3d 80 3, 808 (6th Cir.1997). pregnant woman.” Ohio Rev. Co de Ann. 2919 .17(A)(1) (1996 ).

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that the exception is limited to physical health risks. Women’s health. As the district court stated in granting the preliminary Med. Prof’l Corp. v. Taft, 911 F. Supp. at 960. The Ohio injunction: defendants admitted the same with respect to the highly similar provision in Voinovich. 130 F.3d at 206-207.12 Thus, Given that a State cannot prohibit a woman from the health exception cannot be understood to encompass aborting a viable fetus to preserve her own psychological mental health risks and conditions, regardless of their nature or emotional health, it follows naturally from Carhart or severity. that she cannot be deprived of the safest method of doing so. Indeed, just as a woman who is suffering from a A woman facing a risk of severe and irreversible mental serious physical health condition must be permitted to harm would not be permitted to receive the intact procedure. undergo the safest abortion procedure available, a woman While the woman would still be able to receive an abortion by who is suffering from a mental health condition of the another method, she would nonetheless be compelled to face type described by this Court in Voinovich is entitled to no the comparative risks that HB 351 unconstitutionally fails to less. encompass. See Dissenting Slip Opinion at 33-45. Thus, no exception would extend to a woman who faces a severe and 114 F. Supp. 2d at 695-96 (emphasis in original) (footnote irreversible risk to her mental health from a continuing omitted). Further in contravention of Voinovich, HB 351 pregnancy, even when the intact procedure would carry admits no discretion to the physician on this issue. See 130 significantly less physical risk than other procedures.13 F.3d at 210.

D. HB 351’s pre- and post-viability bans fail to Contrary to the majority’s assertion, the issue is not provide a constitutionally adequate exception to whether the woman “would suffer severe and irreversible preserve the health of a woman who faces a risk of mental harm from being limited to a D & E procedure when severe and irreversible harm to her mental health she or her physician might prefer a D & X.” Majority Slip Opinion at 21 n.1. Rather, once it is established that a The foregoing establishes that HB 351 is unconstitutional continuing pregnancy or bearing a child would pose a risk of because it fails to encompass comparative physical risks and severe and irreversible mental harm, the issue is whether the risks of severe and irreversible harm to a woman’s mental woman will be permitted to obtain an abortion by the means that presents the least risk to her physical health. Carhart requires such an exception, but none is afforded by HB 351. 12 As in Voinovich, this admission forecloses the argument that mental health is a compone nt of the “major bod ily function” of the brain. In short, HB 351 does not provide what is explicitly See Voinovich, 130 F.3d at 209 n.20 (citing A Wo man ’s Choice-East Side required by Carhart and Voinovich. Its health exception fails Women's Clinic v. Newman, 671 N .E.2d 104 (Ind.19 96)). to heed the Supreme Court’s longstanding recognition of the 13 importance of mental health to a woman’s overall health. In light of the serious physical and mental harms for which HB 351 Though Voinovich held that a woman’s mental health must be fails to account, it cannot be said that this case is about the mere “preferences” of doctors. See Majority Slip O pinion at 14 -15. P laintiffs considered with respect to a post-viability ban, that holding have not argued “that a health exception, to be constitutional, must give also applies in the pre-viability context because “the law . . . physicians complete freedom to perform abortions using the D & X at a minimum requires [preservation of the woman’s health] procedure whe never they wish to do so.” Id. at 17. Plaintiffs do not seek in respect to previability regulation.” Carhart, 530 U.S. at a standardless exception.

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930. The majority’s contrary assertion is unavailing. See In Casey, one of the main regulations at issue delayed the Majority Slip Opinion at 21 n.1. Indeed, it would be illogical legal provision of an abortion until 24 hours after a woman to force a woman–for example, a woman impregnated by rape had given her informed consent. 18 Pa. Cons. Stat. § 3205 or incest–to wait until the fetus attained viability before (1990). It is obvious that requiring a 24-hour delay imposes recognizing the risk to her mental health from a continuing a far lesser restriction and risk on a woman than a ban on a pregnancy or giving birth. Thus, in both the pre- and post- method of abortion. Unlike the regulations at issue in Casey, viability contexts, HB 351 is unconstitutional because it a ban with an overly narrow health exception does not have forces women confronting the risk of severe and irreversible a mere “incidental effect of increasing the cost or decreasing mental harm to use riskier methods of abortion. See Carhart, the availability of medical care.” Casey, 505 U.S. at 874. 530 U.S. at 931. Further, HB 351’s ban is not a “structural mechanism,” id. at 877, that asks a woman to stop and think about her choice; it III. The Health Exception Approved in Casey Is is a ban whose narrow exception substantively forecloses a Constitutionally Inadequate for HB 351 woman’s right in some circumstances to receive the type of procedure that is safest for her. Unlike HB 351, Casey’s In an attempt to save the constitutionality of HB 351, the regulations did not “force women to use riskier methods of defendants make much of the similarity between the abortion.” Carhart, 530 U.S. at 931. This is the crucial provisions of HB 351’s health exception and the health distinction between the regulations at issue in Casey and the exception to the general abortion regulations at issue in regulations in Carhart, where Court underscored its Casey.14 In essence, they argue that the health exception must longstanding concern regarding state regulations that ban a be constitutionally adequate because its provisions mirror method of abortion: “Our cases have repeatedly invalidated those approved in Casey, as construed broadly by the Third statutes that in the process of regulating the methods of Circuit. See 947 F.2d 682, 701 (1991). However, Ohio’s abortion, imposed significant health risks.” Id. (emphasis in attempt to import the provisions of Pennsylvania’s health original). exception into HB 351 fails because the Ohio law is very different in nature. As this Court noted in Voinovich, there is Another important distinction between the regulations in an important difference between regulations such those as in Casey and Carhart likewise arises from the different Casey that merely delay abortions and those at issue here and circumstances in which their respective exceptions might in Voinovich that ban some abortions. See 130 F.3d at 208. become relevant. In Casey’s relevant context, when a woman’s health condition is such that she needs an abortion to be performed within only 24 hours of seeking one, her need 14 The statute in Casey allowed exceptions to its regulations in cases will almost certainly be severe enough to trigger the “medical of “medical emergency,” defined as: emergency” exception. However, in the unframed context of HB 351’s narrowly excepted ban, no passing of time would [t]hat condition which, on the basis o f the physic ian's good faith clinical judgment, so complicates the m edical condition o f a allow the woman to obtain the intact procedure, even though pregnant woman as to necessitate the immediate abortion of her it might be a significantly less risky procedure than other pregnancy to avert her death or for which a delay will create available methods. serious risk of substantial and irreversible impairm ent of a major bodily function. This fatal flaw itself derives from the forced fit of 18 Pa. Co ns. Stat. § 3203 (1990). Pennsylvania’s exception unto Ohio’s ban of the intact

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procedure. The health exception in both sets of regulations pregnancy or bearing a child would cause serious and would be triggered only by a “condition” that “complicates irreversible harm to her mental health. the pregnancy.” For a general 24-hour waiting period, one may understand the rationale behind the exception’s specific HB 351’s pre- and post-viability bans on the intact method requirement that a medically diagnosed condition necessitate, do not contain a constitutionally adequate exception to in effect, an immediate abortion. However, as imported into preserve the health of the woman. For the foregoing reasons, HB 351, the requirements of Pennsylvania’s health exception the judgment of the district court should be affirmed. fail to account for the risks the state may create when a method of abortion is banned. This is unsurprising given that Pennsylvania’s exception did not contemplate a ban. Finally, it should be noted that the general abortion regulations at issue in Casey were ostensibly intended to provide a benefit to the pregnant woman by informing her and promoting her considered choice. See Casey, 505 U.S. at 885 (“[I]mportant decisions will be more informed and deliberate if they follow some period of reflection.”). Here, the ban on the intact procedure provides no benefit to the woman. It serves only to deny the woman a medical option and violates Carhart’s instruction that a state may not “force women to use riskier methods of abortion.” Carhart, 530 U.S. at 931. In sum, Casey’s very different regulatory context makes the Pennsylvania health exception an inapposite and unconstitutional fit for HB 351. CONCLUSION This case is about the health interests of pregnant women and the state’s “substantial interest in potential life.” Casey, 505 U.S. at 876. With its narrowly excepted ban, HB 351 unconstitutionally compromises the former by forcing women to use riskier methods of abortion. In particular, HB 351 imposes significant risks in the pre-viability context by failing to permit the intact procedure when it may avert health risks for a woman who does not have a medically diagnosed condition that complicates the pregnancy. Further, in both the pre- and post-viability contexts, HB 351 imposes significant physical risks upon a woman for whom a continuing