Women’s Medical Professional Corporation; Mart in Haskell, Md v. BOB TAFT, Governor; BETTY D. MONTGOMERY, Attorney General; MATHIAS H. HECK, JR.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0446P (6th Cir.)
File Name: 03a0446p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WOMEN’S MEDICAL
PROFESSIONAL
CORPORATION; MART IN
HASKELL, MD,
Plaintiffs-Appellees,
v.
BOB TAFT, Governor; BETTY
D. MONTGOMERY, Attorney
General; MATHIAS H. HECK,
JR.,
Defendants-Appellants.
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No. 01-4124
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 00-00368—Walter H. Rice, District Judge.
Argued: April 29, 2003
Decided and Filed: December 17, 2003
2 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
*The Honorable Arthur J. Tarnow, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Before: RYAN and BATCHELDER, Circuit Judges;
TARNOW, District Judge.*
_________________
COUNSEL
ARGUED: Stephen P. Carney, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellants. Alphonse A. Gerhardstein, LAUFMAN &
GERHARDSTEIN, Cincinnati, Ohio, for Appellees.
ON BRIEF: Stephen P. Carney, Anne Berry Strait, Karl
William Schedler, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Appellants.
Alphonse A. Gerhardstein, Jennifer L. Branch, LAUFMAN
& GERHARDSTEIN, Cincinnati, Ohio, David C. Greer,
BIESER, GREER & LANDIS, Dayton, Ohio, for Appellees.
Eric D. Miller, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., A. Stephen Hut, Jr., Kimberly
A. Parker, WILMER, CUTLER & PICKERING,
Washington, D.C., Jennifer Dalven, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York,
for Amici Curiae.
RYAN, J., delivered the opinion of the court, in which
BATCHELDER, J., joined. TARNOW, D. J. (pp. 30-54),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
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

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 3
States Constitution. In Women’s Med. Prof’l Corp. v.
Voinovich, 130 F.3d 187 (6th Cir. 1997), we held, inter alia,
that Ohio’s first attempt to restrict partial birth abortions
violated the Fourteenth Amendment because it imposed an
“undue burden” on “a woman’s right to choose to have an
abortion.” Id. at 200-03.
The plaintiffs claim that Ohio’s new partial birth abortion
statute, Ohio Rev. Code Ann. § 2919.15.1 (Anderson 2002)
(the Act), is likewise unconstitutional, because: (1) it does
not contain an adequate health exception; and (2) it imposes
an “undue burden” upon a woman seeking to abort a non-
viable fetus, in that the description of the banned abortion
method encompasses the concededly lawful dilation and
evacuation (D & E) abortion procedure.
As set forth in detail below, we reject both claims, and hold
that Ohio’s new statute does not violate the Constitution in
any respect. We shall therefore reverse the district court’s
judgment.
I.
INTRODUCTION
After our decision in Voinovich, Ohio’s General Assembly
enacted the present statute, Ohio Rev. Code Ann. § 2919.15.1
(the Act). The Act restricts partial birth abortions, but it
differs significantly from the law struck down in Voinovich in
that the Act specifically excludes the “dilation and
evacuation” (D & E) method from its reach. Ohio Rev. Code
Ann. § 2919.15.1(F). The Act also contains a “health
exception” which permits the partial birth abortion method
before and after viability, when necessary to protect the
mother’s health. Ohio Rev. Code Ann. § 2919.15.1(B), (C).
Shortly before the Act’s effective date, the United States
Supreme Court decided Stenberg v. Carhart, 530 U.S. 914
(2000), a case concerning the constitutionality of a Nebraska
4 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
law that banned all partial birth abortions before and after
viability. The Court held the law unconstitutional on two
grounds. First, Nebraska’s ban lacked a “health exception”
that would permit doctors to perform the banned abortion
method when necessary to protect the mother’s health. Id. at
937-38. Second, Nebraska’s ban imposed an “undue burden”
on the abortion right by restricting the commonly performed
dilation and evacuation (D & E) method of abortion. Id. at
938-40.
Almost immediately after Carhart was decided, the
plaintiffs who prevailed in Voinovich brought a facial
challenge to the constitutionality of the present statute. They
challenged the Act on several grounds, the principal claims
being: (1) the Act’s health exception is constitutionally
inadequate, and (2) the Act imposes an “undue burden” on the
abortion right by restricting the commonly performed dilation
and evacuation (D & E) abortion method. The district court
agreed with the plaintiffs’ first claim and held that the Act’s
health exception was constitutionally inadequate. In the
district court’s view, Carhart requires states to permit a
partial birth abortion whenever a physician believes it to be
“simply the safest” available procedure. On the basis of this
reading of Carhart, the district court invalidated the Act and
entered a permanent injunction against its enforcement. The
district court declined to address the plaintiffs’ undue burden
claim at the permanent injunction stage, but both parties urge
us to reach that issue on appeal.
For the reasons set forth below, we hold that the Act
conforms in all respects to the requirements of the Fourteenth
Amendment in the abortion legislation context, as those
requirements were announced in Planned Parenthood v.
Casey, 505 U.S. 833 (1992), and subsequently applied in
Stenberg v. Carhart, 530 U.S. 914 (2000). We therefore
REVERSE the district court’s judgment and VACATE the
injunction preventing enforcement of the Act.

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 5
II. FACTUAL BACKGROUND
A. Parties
The plaintiffs are the Women’s Medical Professional
Corporation (WMPC), an Ohio corporation providing
abortion services in Ohio, and Dr. Martin Haskell, the
physician who owns and operates WMPC. They perform
procedures prohibited by the Act and fear civil and criminal
liability as a result. The defendants are various officers of the
State of Ohio sued in their official capacities.
B. Late Term Abortion Procedures
A clear understanding of our resolution of the issues
presented requires an equally clear understanding of two
procedures used to put to death fetuses that have advanced to
the later stages of the second trimester of the mother’s
pregnancy. The labels we use to describe each of these
procedures, while not perfectly precise, have a generally
understood meaning, regularly relied upon by courts, litigants,
medical experts, and legislatures operating in this field of law.
And we reject the efforts by the parties and amici to fortify
their arguments by the use of labels and descriptive language
obviously employed for revulsive or obfuscating effect.
1. Dilation and evacuation – D & E
As performed late in the second trimester, the abortion
procedure commonly referred to as dilation and evacuation,
or “D & E,” begins with dilation of a woman’s cervix.
Carhart, 530 U.S. at 925; Women’s Med. Prof’l Corp. v. Taft,
162 F. Supp. 2d 929, 946 (S.D. Oh. 2001). Once sufficient
dilation is achieved, the physician reaches into the woman’s
uterus with an instrument, grasps an extremity of the fetus,
and pulls. Carhart, 530 U.S. at 925-26; Women’s Med., 162
F. Supp. 2d at 946. When the fetus lodges in the cervix, the
traction between the grasping instrument and the cervix
causes dismemberment and eventual death, although death
6 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
may occur prior to dismemberment. See Carhart, 530 U.S. at
925-26; Women’s Med., 162 F. Supp. 2d at 946. The process
continues until the entire dead fetus has been removed, piece-
by-piece, from the woman’s uterus.
2. Dilation and extraction – D & X
In the abortion procedure now widely known as partial
birth abortion and also commonly referred to as dilation and
extraction, or “D & X,” and sometimes called “intact D & E”
or “intact D & X,” see Carhart, 530 U.S. at 927-28; ACOG
Statement of Policy (1997), the physician removes the dead
fetus whole and “‘intact,’ i.e., in one pass, rather than in
several passes.” Carhart, 530 U.S. at 927. Dr. Haskell
claims to have coined the clinical term “dilation and
extraction” in 1992 in order to distinguish the intact abortion
procedure from the more common “dismemberment-type D
& E” abortion method.
The physician initiates the D & X or partial birth abortion
procedure by dilating a woman’s cervix, but to a greater
degree than in the traditional D & E procedure. Women’s
Med., 162 F. Supp. 2d at 946. Once the physician achieves
sufficient dilation, the manner in which the abortion proceeds
depends upon the presentation of the fetus. Although some
doctors take the fetus as it presents, Dr. Haskell maneuvers
the fetus to a feet-first position (breech presentation) before
proceeding. Carhart, at 927-28; Women’s Med., 162 F. Supp.
2d at 946. In a breech extraction, the physician partially
delivers the fetus through the mother’s cervix up to a point
that allows the physician to access the fetus’s head, which is
inside the mother, while stabilizing the fetus’s body, which is
outside the mother. Then, in order to collapse the fetus’s
skull (so that it will pass easily through the cervix), the
physician “forces a pair of scissors into the base of the skull,
enlarges the opening and evacuates the contents with a
suction catheter.” Women’s Med., 162 F. Supp. 2d at 946.
The abortion concludes with the removal, in a single pass, of
the fetus’s intact, dead body. Carhart, 530 U.S. at 927. If the

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 7
fetus presents head first (a cephalic presentation), the doctor
first collapses the fetus’s exposed skull by “breaching and
compressing the [head] with the forceps’ jaws, inserting a
finger . . . , or piercing the [head] with a sharp instrument,
such as a tenaculum or a large-bore needle.” W. Martin
Haskell, MD, et al., Surgical Abortion After the First
Trimester, in A Clinician’s Guide to Medical and Surgical
Abortion, 135 (Maureen Paul, MD, et al., eds. 1999). The
doctor then suctions out the fetus’s skull contents, if
necessary, id., and completes the delivery of the fetus from
the mother’s body, whole and intact, in a single pass.
Carhart, 530 U.S. at 927.
We now turn to an examination of the Ohio statute.
C. Statutory Provisions – Ohio Rev. Code Ann.
§ 2919.15.1
The Act makes it a second-degree felony to commit the
crime of “partial birth feticide.” Ohio Rev. Code Ann.
§ 2919.15.1(D). A person commits partial birth feticide by
violating either Ohio Rev. Code Ann. § 2919.15.1(B), which
applies after viability, or Ohio Rev. Code Ann.
§ 2919.15.1(C), which applies before viability. Both
provisions use identical language to identify the crime:
When the fetus that is the subject of the procedure is [or
“is not”] viable, no person shall knowingly perform a
partial birth procedure on a pregnant woman when the
procedure is not necessary, in reasonable medical
judgment, to preserve the life or health of the mother as
a result of the 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).
8 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
The Act defines “partial birth procedure” as “the medical
procedure that includes all of the following elements in
sequence”:
(a) Intentional dilation of the cervix of a pregnant
woman, usually over a sequence of days;
(b) In a breech presentation, intentional extraction of
at least the lower torso to the navel, but not the entire
body, of an intact fetus from the body of the mother, or
in a cephalic presentation, intentional extraction of at
least the complete head, but not the entire body, of an
intact fetus from the body of the mother;
(c) Intentional partial evacuation of the intracranial
contents of the fetus, which procedure the person
performing the procedure knows will cause the death of
the fetus, intentional compression of the head of the
fetus, which procedure the person performing the
procedure knows will cause the death of the fetus, or
performance of another intentional act that the person
performing the procedure knows will cause the death of
the fetus;
(d) Completion of the vaginal delivery of the fetus.
Ohio Rev. Code Ann. § 2919.15.1(A)(3).
In Carhart, 530 U.S. at 937-38, the Court held the
Nebraska statute unconstitutional, in part, because it
contained no exception at all to protect the mother’s health.
In contrast, Ohio’s statute contains a detailed health exception
that permits the partial birth procedure, both before and after
viability, when “necessary, in reasonable medical judgment,
to preserve the life or health of the mother as a result of the
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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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 9
impairment of a major bodily function” to mean “any
medically diagnosed condition that so complicates the
pregnancy of the woman as to directly or indirectly cause the
substantial and irreversible impairment of a major bodily
function.” Ohio Rev. Code Ann. § 2919.15.1(A)(5).
The Act also identifies three specific abortion procedures
that remain legal: “the suction curettage procedure of
abortion, the suction aspiration procedure of abortion, [and]
the dilation and evacuation procedure of abortion.” Ohio
Rev. Code Ann. § 2919.15.1(F). According to Ohio Rev.
Code Ann. § 2919.15.1(A)(1), the “‘[d]ilation and evacuation
procedure of abortion’ does not include the dilation and
extraction procedure of abortion.” Thus, the Act, using the
clinical term coined by Dr. Haskell, gives clear guidance
about which abortion procedures may be performed without
restriction. The Act also declares that its prohibition “does
not apply to any person who performs or attempts to perform
a legal abortion if the act that causes the death of the fetus is
performed prior to the fetus being partially born even though
the death of the fetus occurs after it is partially born.” Ohio
Rev. Code Ann. § 2919.15.1(G). “Partially born” is defined
to mean “that the portion of the body of an intact fetus
described in division (A)(3)(b) of this section has been
intentionally extracted from the body of the mother.” Ohio
Rev. Code Ann. § 2919.15.1(A)(4). And, as the Act explains,
“‘[f]rom the body of the mother’ means that the portion of the
fetus’ body in question is beyond the mother’s vaginal
introitus in a vaginal delivery.” Ohio Rev. Code Ann.
§ 2919.15.1(A)(2).
Finally, the Act expresses the legislature’s purpose. In
summary, the Ohio General Assembly intended “to prevent
the unnecessary death of fetuses when they are substantially
outside the body of the mother,” in pursuit of Ohio’s “interest
in maintaining a strong public policy against infanticide,
regardless of the life expectancy or state of development of
the child.” H.B. 351, § 3(A), (B), 123rd Gen. Assem., Reg.
10 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
Sess. (Ohio 2000). The Act also attempts to “further[] the
state interest in preventing unnecessary cruelty.” Id. at § 3(D).
D. District Court Proceedings
On July 27, 2000, soon after the Supreme Court’s decision
in Carhart, the plaintiffs filed a complaint seeking a
temporary restraining order and preliminary injunction to
prevent the defendants from enforcing the Act. The plaintiffs
challenged the Act on four grounds: (1) the Act imposes an
undue burden by sweeping in D & E abortions performed
during the second trimester; (2) the Act’s “health exception”
is inadequate; (3) the Act lacks adequate scienter standards;
and (4) the Act unconstitutionally permits third-party civil
suits against physicians who violate its terms. The district
court issued two lengthy rulings, one at the preliminary
injunction stage, Women’s Med. Prof’l Corp. v. Taft, 114 F.
Supp. 2d 664 (S.D. Oh. 2000), and another at the permanent
injunction stage. Women’s Med. Prof’l Corp. v. Taft, 162 F.
Supp. 2d 929 (S.D. Oh. 2001).
In its preliminary injunction ruling, the court rejected the
plaintiffs’ undue burden claim. Women’s Med., 114 F. Supp.
2d at 683. Although the court declined to rule on the issue at
the permanent injunction stage, Women’s Med., 162 F. Supp.
2d at 937, both parties urge us to reach this issue on appeal.
Also, in both rulings, the district court held that the Act’s pre-
viability health exception was too narrow because it did not
permit the partial birth procedure “‘to be performed in cases
where the medical evidence shows that it is simply the safest
method of abortion.’” Women’s Med., 162 F. Supp. 2d at 940
(emphasis added) (quoting Women’s Med., 114 F. Supp. 2d at
688). For the same reason, the court struck down the Act’s
post-viability health exception as applied to women in
medical need of a post-viability abortion. Women’s Med.,
162 F. Supp. 2d at 961-62. Ohio appeals these components
of the district court’s judgment.

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 11
With respect to the plaintiffs’ “scienter” claim, the district
court concluded that it would be unconstitutional for an
abortion law to impose strict liability regarding a
determination of viability or the applicability of the health
exception. Women’s Med., 114 F. Supp. 2d at 699; Women’s
Med., 162 F. Supp. 2d at 936. Nevertheless, the court
preserved the Act’s constitutionality by importing a
“recklessness” scienter requirement pursuant to Ohio law.
Women’s Med., 114 F. Supp. 2d at 700, 703-04; Women’s
Med., 162 F. Supp. 2d at 936. Neither party appeals this
aspect of the judgment.
Finally, at the permanent injunction stage, the district court
held that the plaintiffs lacked standing to challenge the
constitutionality of the Act’s third-party civil suit provision.
Women’s Med., 162 F. Supp. 2d at 967. The plaintiffs do not
appeal this part of the decision.
III. ANALYSIS
Our standard of review is that stated in our earlier decision
in Voinovich, 130 F.3d 187:
This court reviews questions of law de novo. . . .
While we normally review questions of fact for clear
error, see Fed. R. Civ. P. 52, an appellate court is to
conduct an independent review of the record when
constitutional facts are at issue.
Id. at 192 (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6
(1964)).
Our analysis begins, as it must, with the Supreme Court’s
decisions in Casey, 505 U.S. 833, and Carhart, 530 U.S. 914.
These two cases establish the governing standards for the
“undue burden” and “health exception” issues we must decide
today. In Casey, 505 U.S. 833, the Supreme Court evaluated
the constitutionality of a Pennsylvania statute that imposed a
variety of restrictions on abortion. In an opinion authored
12 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
jointly by Justices O’Connor, Kennedy, and Souter, the Court
reaffirmed what it called the “essential holding” of Roe v.
Wade, 410 U.S. 113 (1973). Casey, 505 U.S. at 845-46.
While preserving for women the right to choose an abortion,
the Court rejected the “rigid trimester” approach from Roe
and replaced it with a constitutional line drawn at viability.
Id. at 870-74. The Court held that a state may regulate
abortion before viability as long as it does not impose an
“undue burden” on a woman’s right to terminate her
pregnancy. Id. at 876. A state may regulate and even prohibit
abortion after viability “‘except where it is necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother.’” Id. at 879 (quoting Roe, 410 U.S.
at 164-65).
In Carhart, 530 U.S. 914, a majority of the Supreme Court
applied Casey’s requirements to a Nebraska statute that
attempted to ban partial birth abortions. The Court struck
down Nebraska’s ban for two reasons: (1) it lacked a
maternal health exception, id. at 937-38; and (2) it defined the
banned procedure so broadly and vaguely that it swept in the
most common method for performing late term abortions, the
dilation and evacuation (D & E) procedure, id. at 939-40. In
contrast, the statute before us contains a maternal health
exception, defines the banned procedure narrowly, and
explicitly excludes from its ban the dilation and evacuation
(D & E) procedure. We must decide whether the Act is
sufficiently protective and specific to satisfy constitutional
requirements.
It bears emphasis, as an initial matter, that while we must
protect the abortion right against unwarranted state intrusion,
we are not empowered to ignore or undervalue the
governmental interests this statute embodies. An essential
feature of the jointly authored opinion in Casey is the
reaffirmation of the “substantial state interest in potential life
throughout pregnancy.” 505 U.S. at 876. As Casey
recognizes, the Court’s prior decisions, beginning with Roe,
410 U.S. 113, had enforced a rigid framework that

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 13
“sometimes contradicted the State’s permissible exercise of
its powers.” 505 U.S. at 872. Casey thus attempts to restore
a balance of interests between women seeking abortions and
states seeking to regulate abortions by reasserting the
importance of the states’ interests and emphasizing that the
abortion right is not infringed merely because a law makes it
“more difficult or more expensive” to exercise. Id. at 873-74.
Along similar lines, although Carhart invalidates
Nebraska’s partial birth abortion ban, it does so only after
acknowledging the legitimate relationship between the
interest in protecting fetal life and the more subtle interests
motivating the Nebraska legislature’s decision to ban partial
birth abortions: that is, showing concern for fetal life;
preventing cruelty to partially born infants; and preserving the
integrity of the medical profession. 530 U.S. at 930-31.
Likewise, in this case, Ohio grounds its ban on three interests:
preventing the unnecessary death of fetuses when they are
substantially outside the mother’s body; maintaining a strong
public policy against infanticide; and preventing unnecessary
cruelty. H.B. 351, § 3, 123rd Gen. Assem., Reg. Sess. (Ohio
2000). These interests bear a striking resemblance to those
implicitly accepted in Carhart, 530 U.S. at 930-31, and also
reflect the long-recognized interests in protecting what Roe
called “potential life,” Roe, 410 U.S. at 154, and showing
“concern for the life of the unborn,” Casey, 505 U.S. at 869.
Ohio’s expression of these important and legitimate
interests warrants a measure of deference, rather than the
virtual assumption of unconstitutionality that has led federal
courts, thus far, to invalidate the efforts of at least 20 states to
exercise the limited sovereign authority to regulate abortions
and abortion methods. Ordinarily, it is only in legislation
properly subject to strict scrutiny that a presumption of
unconstitutionality applies. Cf. Lac Vieux Desert Band of
Lake Superior Chippewa Indians v. Michigan Gaming
Control Bd., 276 F.3d 876, 879 (6th Cir.), cert. denied, 536
U.S. 923 (2002); Richland Bookmark, Inc. v. Nichols, 137
F.3d 435, 439 (6th Cir. 1998). Strict scrutiny, of course, no
14 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
longer applies to abortion legislation. Casey, 505 U.S. at 871-
77. Indeed, even in the less deferential realm of strict
scrutiny, the Supreme Court recently has shown, in an
altogether different context to be sure, considerable deference
to states attempting to balance competing, high-order
interests. Cf. Grutter v. Bollinger, 123 S. Ct. 2325, 2339,
2346 (2003). Therefore, while the Act cannot stand if it
impermissibly infringes on the abortion right, we will not
assume that it violates the Fourteenth Amendment merely
because it reflects interests in preventing unnecessary death
and cruelty to partially born children, maintaining a strong
public policy against infanticide, and preserving the integrity
of the medical profession. We turn now to the specific
challenges raised by the plaintiffs.
A. Adequacy of Health Exception
Unlike the Nebraska statute invalidated in Carhart, partly
because it did not have a health exception, the Ohio Act
contains a detailed health exception that applies both before
and after viability. Sections 2919.15.1(B) and (C) permit the
partial birth procedure when it is “necessary, in reasonable
medical judgment, to preserve the life or health of the mother
as a result of the 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 impairment of a major bodily
function” to mean “any medically diagnosed condition that so
complicates the pregnancy of the woman as to directly or
indirectly cause the substantial and irreversible impairment of
a major bodily function.” Ohio Rev. Code Ann.
§ 2919.15.1(A)(5).
The plaintiffs contend that this exception is constitutionally
inadequate because, they argue, a valid health exception must
give physicians the discretion to use the partial birth
procedure in any and every circumstance in which a particular
physician deems the procedure preferable to other readily

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available and more widely used procedures, such as the
dilation and evacuation (D & E) procedure. The plaintiffs
insist that the Constitution bars Ohio from enacting a health
exception that permits the partial birth procedure only when
necessary to prevent “serious risk[s]” involving “medically
diagnosed condition[s]” that complicate a woman’s
pregnancy. Ohio Rev. Code Ann. § 2919.15.1(A)(5). In the
plaintiffs’ view, to satisfy the Fourteenth Amendment, a
health exception must make the partial birth abortion method
available whenever any physician deems it “simply safer”
than using alternative methods. Ohio responds that a valid
health exception need only permit the partial birth procedure
when necessary to prevent significant, as opposed to
negligible, health risks, and that its maternal health exception
meets and exceeds this standard. We agree, and therefore
hold that Ohio’s maternal health exception is valid because it
permits the partial birth procedure when necessary to prevent
significant health risks. The Fourteenth Amendment, as
applied in Casey and Carhart, requires nothing more.
As we have said, in Casey, 505 U.S. 833, the Supreme
Court evaluated the constitutionality of a Pennsylvania statute
that imposed a variety of restrictions on abortion. The Court
preserved the right to choose an abortion but rejected the
“rigid trimester” approach from Roe and replaced it with a
constitutional line drawn at viability. Id. at 870-74. Before
viability, the Court held, a state may regulate abortion as long
as it does not impose an “undue burden” on a woman’s right
to terminate her pregnancy. Id. at 876. After viability, a state
may regulate and even prohibit abortion “‘except where it is
necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.’” Id. at 879
(quoting Roe, 410 U.S. at 164-65).
According to Casey, an “undue burden” exists when “a
state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” 505 U.S. at 877 (emphasis
added). The Court applied its “undue burden” standard to the
16 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
Pennsylvania statute, beginning with the provision that
exempted women from compliance with the various
regulations in the event of a “medical emergency.” Id. at 879-
80. Pennsylvania defined a “medical emergency” as:
that condition which, on the basis of the physician’s
good faith clinical judgment, so complicates the medical
condition of a pregnant woman as to necessitate the
immediate abortion of her pregnancy to avert her death
or for which a delay will create serious risk of substantial
and irreversible impairment of a major bodily function.
Id. at 879 (internal quotation marks and citation omitted).
The plaintiffs in Casey challenged this definition as being
too narrow, because “it forecloses the possibility of an
immediate abortion despite some significant health risks.” Id.
at 880. Thus, the pertinent interpretive question in Casey was
whether the definition of “medical emergency” encompassed
certain specified “conditions [that] could lead to an illness
with substantial and irreversible consequences.” Id. These
“conditions” included physical, pregnancy-related conditions
such as preeclampsia, inevitable abortion, and premature
ruptured membrane. Id. The Court focused on the fact that,
at the appellate level, the Third Circuit had construed the term
“serious risk” to mean “‘that compliance with
[Pennsylvania’s] abortion regulations would not in any way
pose a significant threat to the life or health of a woman.’” Id.
(quoting Planned Parenthood v. Casey, 947 F.2d 682, 701
(3d Cir. 1991)). Based on this narrowing construction, the
Court held that “the medical emergency definition imposes no
undue burden on a woman’s abortion right.” Casey, 505 U.S.
at 880. The Third Circuit also had expressed its view that the
wording of Pennsylvania’s medical emergency exception was
“carefully chosen to prevent negligible risks to life or health
or significant risks of only transient health problems from
serving as an excuse for noncompliance.” Planned
Parenthood v. Casey, 947 F.2d at 701 (3d Cir. 1991).

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In Carhart, 530 U.S. 914, the Court applied Casey to
Nebraska’s attempted ban of the partial birth abortion method.
The majority opinion, by Justice Breyer, held the law
unconstitutional for two reasons. First, the law contained no
maternal health exception at all. Id. at 930-38. Second, the
law’s definition of “partial birth abortion” encompassed the
widely used D & E method as well as D & X, thereby
imposing an undue burden on a woman’s pre-viability right
to choose an abortion. Id. at 938-46.
Carhart’s first holding, of primary significance here, is that
a statute banning D & X “must contain a health exception”
because “a statute that altogether forbids D & X creates a
significant health risk.” Id. at 938. Nebraska sought to
persuade the Court that its omission of a maternal health
exception did not render the ban unconstitutional because a
partial birth abortion is never necessary to protect a woman’s
health. Id. at 931-32. Nebraska faced a difficult task on this
point, as its burden was “to demonstrate that banning D & X
without a health exception may not create significant heath
risks for women.” Id. at 932. The Court concluded that
Nebraska failed to carry that burden. Id. at 937-38. Thus,
based on the “medically related evidentiary circumstances” in
the case, id. at 937, the Court rejected Nebraska’s absolute
claim that D & X is never safer than other abortion
procedures.
The case before us involves a different type of absolute
position, taken not by the state but by physicians who
routinely perform the restricted procedure. They urge us to
endorse their view that D & X is always safer than other
methods used during the late second trimester. Stated
differently, the plaintiffs believe that a health exception, to be
constitutional, must give physicians complete freedom to
perform abortions using the D & X procedure whenever they
wish to do so. We disagree.
Taken together, Casey and Carhart stand for the
proposition that states may restrict an abortion procedure
18 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
except when the procedure is necessary to prevent a
significant health risk. Casey specifically endorses a
“medical emergency” exception that, based on the Third
Circuit’s narrowing construction, excused compliance with
the various regulations in any situation involving a
“‘significant threat to the life or health of a woman.’” 505
U.S. at 880 (citation omitted). Carhart, in requiring a health
exception without identifying its specific content, relies
heavily on medical evidence and lower court findings
indicating that D & X might be “significantly safer in certain
circumstances,” 530 U.S. at 934 (emphasis omitted), that D &
X “significantly obviates health risks in certain
circumstances,” id. at 936, that a complete D & X ban would
“create significant health risks,” id. at 932, and that “a statute
that altogether forbids D & X creates a significant health
risk,” id. at 938. In our view, the Court does not use this
terminology loosely; rather, this language demonstrates the
Court’s attentiveness to the limited number of situations
involving a real medical need for D & X. We cannot
conclude that the Court meant by this to require that a state’s
health exception recognize marginal or insignificant risks
generalized to the entire population of women seeking late
second-trimester abortions.
Our holding finds further support in the familiar phrase,
“necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother,” recited first
in Roe, 410 U.S. at 164-65, retained in Casey, 505 U.S. at
879, and relied on in Carhart, 530 U.S. at 931. Although
Carhart cautions that the term “necessary” does not “refer to
an absolute necessity or to absolute proof,” 530 U.S. at 937,
the word cannot be emptied entirely of its distinctive meaning
by being equated with “desirable.” As used in Roe, 410 U.S.
at 164-65, and developed in Carhart, 530 U.S. at 937, it at
least denotes some measure of compulsion; a “necessary”
medical procedure surely is not the same thing as an
“optional” or “preferable” one. In our view, the “significant
risk” threshold captures this distinction without violating
Carhart’s admonition against unrealistic standards of proof.

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Additionally, merely as a “straightforward application” of
Casey, id. at 938, Carhart must be understood in light of the
doctrinal shift wrought by Casey. In adopting the “undue
burden” standard in Casey, the Court believed it had found
“the appropriate means of reconciling the State’s interest with
the woman’s constitutionally protected liberty.” Casey, 505
U.S. at 876. Before Casey, the Court admitted, its decisions
had “undervalue[d] the State’s interest in the potential life
within the woman.” Id. at 875. By rejecting Roe’s rigid
trimester framework in favor of the undue burden standard,
the Court endeavored to protect women from unwarranted
interference with the abortion right while allowing states to
express, meaningfully, their “concern for the life of the
unborn,” id. at 869, and even their “preference for normal
childbirth,” id. at 872 (internal quotation marks and citations
omitted). Accordingly, a state’s regulation of abortion before
viability may not have “the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an
abortion.” Id. at 877.
While the majority opinion in Carhart does not employ the
undue burden standard explicitly in connection with the
health exception issue, its analysis reflects Casey’s
acknowledgment of the importance of reconciling profound
state interests and personal rights. For example, in Carhart,
the Court explains that, “[b]y no means must a State grant
physicians ‘unfettered discretion’ in their selection of abortion
methods.” 530 U.S. at 938 (citation omitted). The Court
assures its dissenting members that it would not prohibit a
state “from proscribing an abortion procedure whenever a
particular physician deems the procedure preferable.” Id. In
a broader sense, even by focusing on the need for a health
exception, the Court invites state regulation of abortion
methods. If it were otherwise, the Court would have held, in
a straightforward fashion, that states may not interfere at all
with medical discretion when abortions are involved.
The plaintiffs mistakenly believe that Carhart requires that
states give physicians unfettered discretion in the choice of
20 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
abortion methods. For support, they rely heavily on a single
dictum from Carhart: “a State may promote but not endanger
a woman’s health when it regulates the methods of abortion.”
Id. at 931 (citing Thornburgh v. Am. Coll. of Obstetricians
and Gynecologists, 476 U.S. 747, 768-69 (1986); Colautti v.
Franklin, 439 U.S. 379, 400 (1979); Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 76-79 (1976); Doe v.
Bolton, 410 U.S. 179, 197 (1973)). To the extent one might
read this phrase as authority for the plaintiffs’ absolute view,
Carhart’s next paragraph proves that reading to be wrong:
The cited cases, reaffirmed in Casey, recognize that a
State cannot subject women’s health to significant risks
both in [the context of health threats created by
pregnancy], and also where state regulations force
women to use riskier methods of abortion. Our cases
have repeatedly invalidated statutes that in the process of
regulating the methods of abortion, imposed significant
health risks. They make clear that a risk to a women’s
[sic] health is the same whether it happens to arise from
regulating a particular method of abortion, or from
barring abortion entirely. Our holding does not go
beyond those cases, as ratified in Casey.
Carhart, 530 U.S. at 931 (emphasis added and omitted). Not
only does this passage clarify the preceding dictum, it also
firmly recasts the Court’s previous decisions in the
“significant health risk” mold. Therefore, we think the
plaintiffs greatly exaggerate the significance of the isolated
phrase quoted above and ignore Carhart’s self-professed
limitations. Most importantly, Carhart cautions that it neither
extends nor departs from Casey. Id. at 931, 938. Moreover,
because Nebraska made an absolute, negative claim about the
relative safety of D & X, the Court needed only to satisfy
itself that the evidence indicated that a maternal health
exception might be necessary in some circumstances. For
these reasons, Carhart’s narrow holding regarding the basic
need for a health exception should not be mistaken for a broad
decision that would clash with Casey’s express endorsement

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1The Ohio statute we are reviewing here restricts only one procedure,
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
regarding the lack of a mental health exception does not apply. Even if
it did, a plaintiff would have to d emo nstrate that she would suffer severe
and irreversible mental harm from being limited to a D & E procedure
when she or her physician might prefer a D & X . The dissent thus
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.
of a health exception triggered only by “‘significant threat[s]
to the life or health of a woman.’” Casey, 505 U.S. at 880
(citation omitted).
Despite the plaintiffs’ stated fears, our decision does not
conflict with our earlier holding in Voinovich, 130 F.3d 187.
In Voinovich, we struck down, among other provisions,
Ohio’s post-viability ban of all abortions because the statute
did not allow a post-viability abortion “where necessary to
prevent a serious non-temporary threat to a pregnant woman’s
mental health.” Id. at 209. To reach this result, we
distinguished Casey on the ground that it involved regulations
that merely delayed abortions, not a law that banned abortions
outright. Id. at 208. The plaintiffs contend that the same
distinction applies here, because the Act is a “ban,” not
simply a “regulation.”1 Apart from the patent superficiality
of this argument, the plaintiffs fail to appreciate that we
limited our holding in Voinovich to “serious[,] non-
temporary” and “severe[,] irreversible” threats to mental
health. Id. at 209 (some emphasis added). And we did so
precisely because “[t]he State’s substantial interest in
potential life must be reconciled with the woman’s
constitutional right to protect her own life and health.” Id. at
209-10. Now, in continuing respect for the constitutional
validity of maintaining this difficult balance, we conclude that
Casey and Carhart require a maternal heath exception that
permits the banned procedure when necessary to prevent a
significant health risk.
22 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
The question remains whether Ohio’s maternal health
exception achieves what Casey and Carhart require. Before
examining the Act’s provisions, we pause to recognize our
duty to “resort[]” to “every reasonable construction . . . in
order to save a statute from unconstitutionality.” Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988) (internal quotation
marks and citation omitted); see also Frisby v. Schultz, 487
U.S. 474, 483 (1988); NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 30 (1937); Buchman v. Bd. of Educ., 652 N.E.2d
952, 960 (Ohio 1995). In addition, statutes restricting
abortion no longer warrant strict scrutiny, Casey, 505 U.S. at
871-77, and the attendant presumption against
constitutionality. Moreover, we cannot ignore the difficulty
of legislating against a backdrop of constitutional standards
that invite state regulation with one hand while barring it with
the other. Compounding this difficulty in the abortion
context are the unique rules governing facial challenges,
under which “even a few” unconstitutional applications may
doom a state’s attempt to regulate the practice. Voinovich,
130 F.3d at 196; see also Casey, 505 U.S. at 894-95. And
finally, we suffer from a serious institutional disability in a
case in which vitally important issues turn on medical facts,
yet the record consists mainly of the conflicting opinions of
highly interested, even ideologically motivated, experts. All
these considerations compel us, if possible, to interpret Ohio’s
maternal health exception in a manner that will “avoid
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
life or health of the mother as a result of the 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 impairment of
a major bodily function” to mean “any medically diagnosed
condition that so complicates the pregnancy of the woman as
to directly or indirectly cause the substantial and irreversible

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 23
impairment of a major bodily function.” Ohio Rev. Code
Ann. § 2919.15.1(A)(5).
In our view, this exception allows physicians to perform the
partial birth procedure whenever the procedure is necessary
to protect the mother from significant health risks, including
those which embody comparative safety concerns. To be
sure, Ohio’s health exception, like other “exceptions,” does
not always apply. Its terms clearly exclude negligible risks,
trivial complications, and circumstances having nothing to do
with the health of the particular patient. Thus, consistent with
Carhart, 530 U.S. at 938, the exception does not apply when
the choice of methods is dictated purely by the preference of
an individual physician. But when a woman’s actual medical
condition makes the partial birth procedure necessary to
prevent a significant health risk, the health exception applies.
Likewise, the exception is triggered when other procedures,
relative to the partial birth procedure, would expose a woman
to significant risks. Contrary to the dissent’s suggestion, the
Act does not require a preexisting complication that threatens
a pregnant woman’s health. Rather, through its use of the
prospective terms “endangered” and “risk,” the Act makes
clear that the exception applies if a pregnant woman’s
circumstances are such that her physician, in reasonable
medical judgment, believes that failure to use the partial birth
procedure will lead to a complication causing substantial or
irreversible impairment of a major bodily function.
This understanding of the Act’s maternal health exception
flows naturally from its close resemblance to the exception
upheld in Casey, 505 U.S. at 880, and from Carhart’s
admonition that physicians are not entitled to “unfettered
discretion in their selection of abortion methods,” Carhart,
530 U.S. at 938 (internal quotation marks and citation
omitted). At the same time, the Act’s health exception is
tethered to the developing state of medical knowledge, giving
it the flexibility needed to “tolerate responsible differences of
medical opinion.” Id. at 937. Moreover, because the Act,
unlike the law struck down in Carhart, evinces an undeniable
24 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
concern for maternal health, we will neither assume that Ohio
intended to expose women to significant health risks nor
strain to read the Act into unconstitutionality when it is our
duty to do otherwise.
In notable contrast to the plaintiffs in Casey, 505 U.S. at
880, the plaintiffs here do not even attempt to identify any
specific medical circumstance that demonstrates the
inadequacy of Ohio’s maternal health exception. Instead,
along with amicus American College of Obstetricians and
Gynecologists, they assert the much broader claim that states
may not regulate among safe abortion techniques. However,
if taken to its next logical step—not even its logical
“extreme”—this proposition would prevent states from
restricting a procedure in which a fully intact, near-viable
infant is delivered alive and then killed, or allowed to expire,
completely outside the mother. Indeed, one of the plaintiffs’
experts, Dr. Cassing Hammond, confirmed at trial that he
would prefer, if possible, to “remove the fetus totally intact
every time and bring about its demise after it had been
delivered.” While the plaintiffs may disagree, we believe that
the Constitution would not prevent a state from regulating
such a practice when safe alternatives exist.
We therefore hold that the Act’s health exception
adequately protects maternal health. Because states face
greater constitutional obstacles when regulating abortion
before viability, we have focused our analysis on the Act’s
pre-viability effect. As the Supreme Court has explained,
“subsequent to viability, the State in promoting its interest in
the potentiality of human life may, if it chooses, regulate, and
even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother.” Roe, 410 U.S. at 164-65. Given
Ohio’s authority to prohibit abortion after viability, we need
not consider separately the identically worded health
exception for post-viability abortions. Ohio Rev. Code Ann.
§ 2919.15.1(B). Our decision to uphold the Act’s maternal

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 25
health exception applies with equal force to both components
of the statute.
B. Definition of “Partial Birth Procedure”
In its permanent injunction ruling, Women’s Med., 162 F.
Supp. 2d at 937-38, the district court did not address the issue
whether the Act imposes an undue burden on the pre-viability
abortion right by defining the “partial birth procedure” so as
to sweep in the commonly used D & E procedure. In the
preliminary injunction ruling, however, the district court
considered the question and held, in Ohio’s favor, that the Act
does not unduly burden the abortion right. Women’s Med.,
114 F. Supp. 2d at 683. Both parties ask us to reach the issue.
And so, because we operate here with the benefit of full
briefing by the parties, a fully developed factual record, and
a district court ruling, albeit one made at the preliminary
injunction stage, we see no reason to reserve decision.
We begin with the statute itself, and then examine the
plaintiffs’ claim that its terms violate the Fourteenth
Amendment. The Act defines “partial birth procedure” as
“the medical procedure that includes all of the following
elements in sequence”:
(a) Intentional dilation of the cervix of a pregnant
woman, usually over a sequence of days;
(b) In a breech presentation, intentional extraction of
at least the lower torso to the navel, but not the entire
body, of an intact fetus from the body of the mother, or
in a cephalic presentation, intentional extraction of at
least the complete head, but not the entire body, of an
intact fetus from the body of the mother;
(c) Intentional partial evacuation of the intracranial
contents of the fetus, which procedure the person
performing the procedure knows will cause the death of
the fetus, intentional compression of the head of the
26 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
fetus, which procedure the person performing the
procedure knows will cause the death of the fetus, or
performance of another intentional act that the person
performing the procedure knows will cause the death of
the fetus;
(d) Completion of the vaginal delivery of the fetus.
Ohio Rev. Code Ann. § 2919.15.1(A)(3).
The plaintiffs contend, primarily, that subsection (b)
renders the description unconstitutional because it includes
procedures involving “intentional extraction of at least the
lower torso to the navel.” Ohio Rev. Code Ann.
§ 2919.15.1(A)(3)(b) (emphasis added). According to the
plaintiffs, many traditional D & E procedures involve intact
extraction to the navel. Ohio responds that the Act draws an
unmistakable distinction between the partial birth procedure
and the traditional D & E. The question, then, is whether the
Act’s description of the partial birth procedure encompasses
the commonly used D & E procedure and therefore imposes
an undue burden on a mother’s right to abort a non-viable
fetus.
Carhart’s second holding is that Nebraska’s law is
unconstitutional because it could apply to the D & E
procedure, in that its terms prohibit procedures involving the
delivery of “‘a substantial portion’” of a living fetus. 530
U.S. at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp.
1999)). Because, Carhart holds, “a substantial portion” fails
to distinguish “between D & E (where a foot or arm is drawn
through the cervix) and D & X (where the body up to the head
is drawn through the cervix),” Carhart , 530 U.S. at 938-39,
the law “has the ‘effect of placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus,’”
id. at 938 (quoting Casey, 505 U.S. at 877). Thus, the
vagueness of the phrase “substantial portion” rendered
Nebraska’s law susceptible to application against physicians
performing D & E procedures as well as D & X procedures.

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The Court notes, however, that Nebraska might have fared
better if its description of the procedure had “track[ed] the
medical differences between D & E and D & X,” “provide[d]
an exception for the performance of D & E and other abortion
procedures,” or focused on the distinction between intact
extraction and dismemberment. Carhart, 530 U.S. at 939.
As we shall discuss, infra, the Ohio legislature, with
remarkable prescience (given that the Act was written and
adopted prior to Carhart), has done precisely what the
Carhart Court thought the Nebraska legislation fatally failed
to do.
Along similar lines, in Voinovich, we invalidated Ohio’s
previous attempt to ban partial birth abortions on the ground
that the statute imposed an undue burden by defining D & X
as “‘the termination of a human pregnancy by purposely
inserting a suction device into the skull of a fetus to remove
the brain.’” 130 F.3d at 198-201 (quoting Ohio Rev. Code
Ann. § 2919.15(A) (repealed 2000)). Although Ohio’s law
was not vague in this respect, it clearly failed to distinguish
between D & E and D & X, since D & E procedures
sometimes require suction removal of a fetus’s skull contents.
Voinovich, 130 F.3d at 199. We also pointed out that Ohio’s
statute excluded the suction curettage and suction aspiration
procedures, but not the D & E procedure. Id. at 200.
As we have said, in the present statute, the Ohio General
Assembly avoided the flaws identified in Carhart by
precisely describing the restricted procedure and explicitly
permitting D & E procedures. The Act provides: “This
section does not prohibit the suction curettage procedure of
abortion, the suction aspiration procedure of abortion, or the
dilation and evacuation procedure of abortion.” Ohio Rev.
Code Ann. § 2919.15.1(F) (emphasis added). A separate
provision clarifies that the phrase, “‘[d]ilation and evacuation
procedure of abortion’ does not include the dilation and
extraction procedure of abortion.” Ohio Rev. Code Ann.
§ 2919.15.1(A)(1). Thus, even though the Act was drafted
without the benefit of Carhart’s subsequent observation that
28 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
“it would have been a simple matter . . . [for Nebraska] to
provide an exception for the performance of D & E and other
abortion procedures,” 530 U.S. at 939, the Ohio General
Assembly saw the need to secure, by means of an explicit
exception, the continued availability of traditional D & E
abortion procedures.
Although the plaintiffs criticize the Act’s failure to define
“dilation and evacuation,” courts have explained repeatedly
that the principal distinction between D & X and D & E is
intactness: D & X maximizes intactness and D & E requires
dismemberment prior to removal of the fetus. See, e.g., id. at
927, 939; Voinovich, 130 F.3d at 199; Hope Clinic v. Ryan,
195 F.3d 857, 861 (7th Cir. 1999), vacated, 530 U.S. 1271
(2000). The plaintiffs’ criticism is even more remarkable
because at the preliminary injunction hearing in this case, Dr.
Haskell confirmed that he actually “coined the term ‘dilation
and extraction’ or ‘D&X’ to distinguish it from the
dismemberment-type D&E.” (Emphasis added.) From its
inception, then, the label “dilation and extraction,” or “D &
X,” has been intended to allow physicians, much less
legislators, to distinguish between intact abortion procedures
and those procedures that require dismemberment prior to
removal of the fetus. The Act invokes this well-established
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).
Accordingly, regardless of whether a procedure involves
“intentional extraction of at least the lower torso to the navel,”
Ohio Rev. Code Ann. § 2919.15.1(A)(3)(b), it is not
prohibited by the Act if it requires dismemberment of the
fetus prior to removal of the fetal parts “in several passes,”
Carhart, 530 U.S. at 927. Moreover, the Act does not
prohibit all intact abortion procedures. The sequential
description contained in section 2919.15.1(3) ensures that the
law, in the case of a breech presentation, applies only if the
intentional act causing the fetus’s death occurs after intact
extraction to the navel. In the case of a cephalic presentation,
there is no question that the Act does not restrict the D & E
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
“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
restriction and the exclusion. We therefore have no difficulty
fulfilling our twin obligations to “give effect, if possible, to
every clause and word of a statute,” Moskal v. United States,
498 U.S. 103, 109-10 (1990) (internal quotation marks and
citations omitted), and to construe statutes, when possible, so
as to “avoid constitutional difficulties.” Frisby, 487 U.S. at
483.
Accordingly, because the Act does not restrict the most
commonly used procedure for second trimester abortions and
because the statute provides an exception for significant
health risks, we conclude that it does not impose an undue
burden on a woman’s right to abort a non-viable fetus.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s judgment and VACATE the permanent injunction
preventing enforcement of the Act.
30 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
1The 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).
2I 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).
________________
DISSENT
________________
TARNOW, District Judge, dissenting. The Court must
determine whether Ohio’s Substitute House Bill 351
(“HB 351”) provides a constitutionally adequate exception for
the health of pregnant women in light of its ban on intact
abortion procedures.1, 2 The adequacy of that exception must
be judged according to the constitutional requirement that
abortion regulations allow exceptions when “necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother.” See Roe v. Wade, 410 U.S. 113,
164-165 (1973); Planned Parenthood of S.E. Pa. v. Casey,
505 U.S. 833, 879 (1992). For reasons summarized
immediately below and discussed in the following sections,
I conclude that HB 351 forces some women to use riskier
methods of abortion and thus fails to meet this requirement in
both its pre- and post-viability contexts. See Stenberg v.
Carhart, 530 U.S. 914, 931 (2000).
The facial challenge here presents two central questions:
1) What is the constitutional standard for judging the
adequacy of a health exception to preserve a woman’s health
where a particular method of abortion has been banned? and

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 31
3Thus, the word “significant,” as in the phrase “significant risk,”
must be taken to mean “non-negligible.” In fact, “negligible risks” and
“trivial complications,” see Majority Slip O pinion at 23 , are irrelevant to
this case. I will therefore use and interpret the word “risk” to mean “non-
negligib le risk.” Likewise, I will use and interpret the wo rd “riskier” to
mean “riskier b y a non-negligible amo unt.”
2) Does the specific language of the HB 351’s health
exception comport with this constitutional standard?
The majority concludes that a ban on the intact method is
constitutional as long it contains a health exception allowing
the procedure “when necessary to prevent significant, as
opposed to negligible, health risks.” Majority Slip Opinion at
15. Further, they conclude that HB 351’s health exception
meets this standard.
In terms of the degree of risk to be considered, I agree that
a health exception is not constitutionally required for truly
negligible health risks. However, when a state bans a method
of abortion, it is required to permit an exception whenever a
woman faces any risk to her health that is more than
negligible.3 See Carhart, 530 U.S. at 931; Casey, 505 U.S. at
880.
But more important to this case, as to a relevant source of
risk, the Supreme Court has instructed that “a State cannot
subject women’s health to significant risks . . . where state
regulations force women to use riskier methods of abortion.”
Carhart, 530 U.S. at 931. Thus, where a woman has a right to
an abortion, the state must allow an exception for her to
receive a banned method of abortion when it offers a non-
negligible safety advantage over other methods.
As to whether HB 351’s health exception meets this
standard, the majority offers a construction that is at odds
with the plain wording of the statute. In fact, HB 351 allows
an exception only when a woman is endangered by a
“medically diagnosed condition that . . . complicates the
32 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
pregnancy.” Ohio Rev. Code Ann. § 2919.151(B) (post-
viability) and (C) (pre-viability); Ohio Rev. Code Ann.
§ 2919.151(A)(5) (statutory definition). Thus it does not
allow the intact procedure for a healthy woman. When the
fetus has not yet attained viability, a healthy woman, like any
woman, has a constitutional right to obtain an abortion
without being forced to use a riskier procedure. See Carhart,
530 U.S. at 931. Because the record shows that the intact
method may entail significantly less risk than other methods,
HB 351’s pre-viability ban is unconstitutional.
HB 351’s failure to address comparative health risks
extends also to women for whom a continuing pregnancy or
bearing a child would impose a risk of severe and irreversible
mental harm. As Ohio stated in the proceedings below,
HB 351’s health exception encompasses only risks to a
woman’s physical health. This admission comports with the
language of the health exception requiring a risk of
impairment to “a major bodily function.” Ohio Rev. Code
Ann. § 2919.151(B) (post-viability) and (C) (pre-viability);
Ohio Rev. Code Ann. § 2919.151(A)(5) (statutory definition)
(emphasis added). However, the Supreme Court has made
clear that a woman’s mental health must be considered a part
of her overall health when a state regulates abortion. See Doe
v. Bolton, 410 U.S. 179, 191-192 (1973). In accord with this
principle, this Court has stated that a health exception must
encompass a risk of a serious and irreversible harm to the
woman’s mental health. Women’s Med. Prof’l Corp. v.
Voinovich, 130 F.3d 187, 209 (6th Cir. 1997), cert. denied,
523 U.S. 1026 (1998). Under HB 351, a woman facing a risk
of severe and irreversible harm to her mental health would not
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
that a woman may not be forced to use riskier methods of
abortion. See Carhart, 530 U.S. at 931. Because HB 351 fails
to encompass these risks both before and after fetal viability,
it is unconstitutional in both contexts.

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4Mo difying Roe, Casey held that prior to fetal viability, a woman has
a right to an abortion without an “undue burden” from the state. 505 U.S.
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.
For these reasons, I believe the district court’s decision
should be affirmed. Thus, I respectfully dissent.
I. HB 351’s Pre-Viability Ban is Unconstitutional Because
It Forces Healthy Women to Use Riskier Methods of
Abortion
A. The Constitution forbids regulations that force
women to use riskier methods of abortion
In Roe, the Supreme Court held that “subsequent to
viability, the State in promoting its interest in the potentiality
of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother.” 410 U.S. at 164-165.4 That holding has been
consistently reiterated. See, e.g., Casey, 505 U.S. at 879;
Carhart, 530 U.S. at 930. Further, because the State’s interest
in regulating abortion before fetal viability is much weaker,
“the law . . . at a minimum requires the same in respect to
previability regulation.” Carhart, 530 U.S. at 930 (citing
Casey, 505 U.S. at 880; Harris v. McRae, 448 U.S. 297, 316
(1980)).
The meaning of the critical phrase “necessary, in
appropriate medical judgment, for the preservation of the life
or health of the mother” has been clarified by a long line of
Supreme Court cases, including Carhart, Thornburgh v.
American College of Obstetricians & Gynecologists, 476 U.S.
747 (1986) (overruled in part by Casey, 505 U.S. at 870),
Colautti v. Franklin, 439 U.S. 379 (1979), and Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52
(1976). The case that is both most recent and relevant is
34 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
Carhart. In striking down a Nebraska statute prohibiting the
intact procedure without any exception for the pregnant
woman’s health, the Court reaffirmed and explained its
rationale behind the preservation standard.
[T]he governing standard requires an exception “where
it is necessary, in appropriate medical judgment for the
preservation of the life or health of the mother,” for this
Court has made clear that a State may promote but not
endanger a woman’s health when it regulates the
methods of abortion.
Carhart, 530 U.S. at 931 (citing Casey, 505 U.S. at 879;
Thornburgh, 476 U.S. at 768-769; Colautti, 439 U.S. at 400;
Danforth, 428 U.S. at 76-79; Doe, 410 U.S. at 197).
Carhart also reaffirmed that the relevant dangers to a
woman’s health are not limited to those created by the
pregnancy itself.
[A] State cannot subject women’s health to significant
risks both [where the pregnancy itself creates a threat to
health], and also where state regulations force women to
use riskier methods of abortion. Our cases have
repeatedly invalidated statutes that in the process of
regulating the methods of abortion, imposed significant
health risks. They make clear that a risk to a women’s
[sic] health is the same whether it happens to arise from
regulating a particular method of abortion, or from
barring abortion entirely.
Id. at 931 (emphasis in original). It is clear then that where a
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
import, just as are risks stemming from a woman’s immediate
medical condition.

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 35
5In 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
“the plain language of HB 351 does not allow the ‘partial birth procedure’
to be performed when it is simply safer than alternative methods of
abortion, and that is what Carh art requires.” Wom en’s Med. P rof’l Corp.
v. Taft, 162 F. Supp. 2d 929, 940-41 (2001). The district court does not
use the phrase “simply safer” in isolation to mean “an iota safer.” Rather,
the court uses the word “simply” to mod ify the whole phrase “safer than
alternative methods o f abortion.” As this context makes clear, the court
refers to the source of risk, not the degree of risk. Indeed, in acco rd with
the district court’s findings about the comparative safety of the intact
The Court also found that the comparative risks at issue for
a ban on the intact procedure are not negligible.
The State fails to demonstrate that banning D & X
without a health exception may not create significant
health risks for women, because the record shows that
significant medical authority supports the proposition
that in some circumstances, D & X would be the safest
procedure.
Id. at 932. Thus, the Court states that because significant
medical authority shows the D&X procedure to be the safest
method in some circumstances, banning the procedure will
necessarily create significant health risks for some women.
This conclusion follows from factual findings accepted by the
Court regarding the safety advantages of the intact procedure.
See id. at 932. Moreover, it also follows from the fact that a
woman who seeks an abortion at the relatively late stage of
fetal development where the D&X procedure becomes
relevant will necessarily face significant health risks. In short,
the serious risk inherent to late term procedures means that
the safety advantages offered by the intact method are not
negligible. This fact supports the standard allowing a woman
to receive the safest procedure, and renders irrelevant the
majority’s discussion of “marginal or insignificant risks.”
Majority Slip Opinion at 18.5
36 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
procedure, this is not a case abo ut negligible risks. See id. at 941-952.
6In further support of this conclusion, it should be noted that the
Court found irrelevant or unpersuasive N ebraska’s co ntention that “safe
alternatives remain available” d espite the ban. See Carhart, 530 U.S. at
931-32. Further, the Court cited as relevant the conclusion of a panel of
the American College of Obstetricians and Gynecologists that the intact
procedure “may be the best or most appropriate procedure in a particular
circumstance to save the life or preserve the health of a woman.” Id. at
932.
Further, given the Supreme Court’s instruction that the
health preservation standard does not require an “absolute
necessity” for the medical procedure nor does it require
“unanimity of medical opinion,” health risks may be assessed
as being significant because “[d]octors often differ in their
estimation of comparative health risks.” Carhart, 530 U.S. at
937.
Where a significant body of medical opinion believes a
procedure may bring with it greater safety for some
patients and explains the medical reasons supporting that
view, we cannot say that the presence of a different view
by itself proves the contrary. Rather, the uncertainty
means a significant likelihood that those who believe that
D & X is a safer abortion method in certain
circumstances may turn out to be right. If so, then the
absence of a health exception will place women at an
unnecessary risk of tragic health consequences.
Id. Thus, in this context where the attendant health risks of
abortion are already significant, and doctors reasonably
disagree as to comparative safety of available methods, a
“safer abortion method in certain circumstances” will help
diminish the risk of “tragic health consequences.” With these
principles and findings, the Court instructs that the intact
procedure must be permitted when it may be the safer
procedure for the woman.6

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Carhart’s underlying rationale that “a State may promote
but not endanger a woman's health when it regulates the
methods of abortion” is not dicta, as the majority suggests.
See Majority Slip Opinion at 20. This principle in fact lies at
the core of a line of cases leading up to Carhart. For example,
in Danforth, the Supreme Court invalidated a ban on saline
induction abortions because the record demonstrated its safety
advantage over other available methods. The ban was held
unconstitutional in part because it “force[d] a woman and her
physician to terminate her pregnancy by methods more
dangerous to her health than the method outlawed.” Danforth,
428 U.S. at 78-79.
Later, in Thornburgh, the Court examined a Pennsylvania
law concerning post-viability abortions that required the
physician to choose an abortion procedure that “would
provide the best opportunity for the unborn child to be
aborted alive” unless that method “would present a
significantly greater medical risk to the life of health of the
pregnant woman” than another available method. 18 Pa.
Cons. Stat. § 3210(b) (1982). The Court found the statute
unconstitutional because it required the pregnant woman “to
bear an increased medical risk in order to save her viable
fetus.” Thornburgh, 476 U.S. at 769.
Thornburgh’s holding accords with the Court’s earlier
decision in Colautti, where the Court expressed its concern
over a similar provision in Pennsylvania’s Abortion Control
Act that required physicians aborting potentially viable
fetuses to use a technique to maximize the fetus’s chance for
survival. The Court invalidated the provision on grounds of
vagueness because it could be read to “require[] the physician
to make a ‘trade-off’ between the woman's health and
additional percentage points of fetal survival.” Colautti, 439
U.S. at 400. Thus, far from being dicta, the principle that “a
State may promote but not endanger a woman's health when
it regulates the methods of abortion” has in fact guided the
decisions of the Supreme Court for more than twenty years.
38 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
Carhart and its antecedents make clear that when a woman
holds a constitutional right to obtain an abortion, the state
may not force her to use riskier methods of abortion. Carhart,
530 U.S. at 931. In light of the rights outlined in Roe and
Casey, therefore, a woman must be permitted to choose the
safest available method when the fetus is not viable and also
at any time the woman’s health is endangered by a continuing
pregnancy. This is the relevant meaning of the Supreme
Court’s pronouncement that “a State may promote but not
endanger a woman’s health when it regulates the methods of
abortion.” This is what is required in a state’s constitutional
obligation to ensure the “preservation of the life or health” of
the woman.
B. The facts of this case and others show that other
methods of abortion may be riskier than the intact
method and that causing fetal demise in advance
may add significant risk to the intact method
Given the foregoing constitutional standard, it is necessary
to consider whether “a significant body of medical opinion
believes [that the intact procedure] may bring with it greater
safety for some patients, and explains the medical reasons
supporting that view.” Carhart, 530 U.S. at 937. This inquiry
is relevant to HB 351’s pre- and post-viability bans because
the intact procedure is performed in both contexts. See
Women’s Med. Prof’l Corp. v. Taft, 114 F. Supp. 2d at 668
(granting preliminary injunction). The medical processes
entailed by the common methods of abortion, including their
risks and benefits, have been extensively detailed by the
district court below and others. See Women’s Med. Prof’l
Corp. v. Taft, 162 F. Supp. 2d 929, 941-952 (S.D. Ohio 2001)
(granting permanent injunction); see also, e.g., Carhart, 530
U.S. at 932-933, 935-936.
These sources demonstrate that the intact procedure may in
fact present numerous safety advantages over other methods.
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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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 39
safer than other methods); see also Carhart, 530 U.S. at 932-
33 (citing numerous cases where the intact procedure was
found to be the safest or most appropriate procedure). For the
purposes here, these safety advantages may be summarized.
As compared to the D&E method, the district court found
that the intact method may be safer. See Women’s Med. Prof’l
Corp. v. Taft, 162 F. Supp. 2d at 949-50. This conclusion was
based on evidence showing that the intact procedure may
have a lower risk of: 1) infection; 2) trauma to the cervix and
uterus from an increased number of passes of instruments into
the uterus; and, 3) a complication known as disseminated
intravascular coagulation (“DIC”), a blood clotting disorder
that may be fatal. See id. at 948, 949, 949-50; see also
Danforth, 428 U.S. at 96 (presenting background and risks of
DIC); Carhart, 530 U.S. at 932 (quoting district court’s
finding that D&E helps prevent DIC, which is among the two
most common causes of maternal death, Carhart v. Stenberg,
11 F. Supp. 2d 1099, 1126 (D. Neb. 1998), aff’d, 192 F.3d
1142 (8th Cir. 1999), aff’d, 530 U.S. 914 (2000)). The intact
procedure may also cause less blood loss and require a shorter
duration of general anesthesia, which carries its own attendant
health risks including the risk of death. See Women’s Med.
Prof’l Corp. v. Taft, 162 F. Supp. 2d at 948. Further, the
intact procedure reduces the possibility of leaving fetal tissue
inside the uterus. See id. at 950. The Court in Carhart
similarly noted this danger, citing the complications that may
arise from remaining bony fragments and retained fetal parts.
530 U.S. at 932.
The district court also found the intact procedure to be safer
than the induction/instillation method of abortion. See
Women’s Med. Prof’l Corp., 162 F. Supp. 2d at 951. The
Court heard evidence that induction/instillation may present
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
procedure; 2) the use of a labor inducing agent known to
cause nausea, vomiting, and diarrhea; 3) an increased risk of
40 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
7Contrary to the majority’s assertion, neither Plaintiffs nor their
expert doctors make the assertion that the intact procedure is “always
safer.” Majority Slip Opinion at 17.
hemorrhage and infection; and 4) an additional surgical
procedure to remove a remaining placenta. See id. at 948,
949, 950.
As compared to hysterectomy or hysterotomy, the district
court noted the obvious fact that the intact procedure was
generally far less traumatic than those major surgical
procedures. See id. at 942; see also Planned Parenthood of
Cent. New Jersey v. Farmer, 220 F.3d 127, 145 (3rd Cir.
2000) (finding that these procedures have an “enhanced risk
of morbidity and mortality to the woman due to the incidence
of hemorrhage” and that hysterectomy leaves a woman
sterile).
It is clear then that the intact procedure may be significantly
safer in some circumstances than other available methods of
abortion.7 But because HB 351 does not in effect ban the
intact procedure when the delivered fetus is already dead, see
Ohio Rev. Code Ann. § 2919.151(A)(3)(b) and (c), the safety
of procedures used to cause fetal demise must also be
examined to determine whether they present non-negligible
risk. The district court found that ensuring fetal death, both by
injection of a feticidal agent such as digoxin and by severing
the umbilical cord, increased the risk to the woman. See
Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp. 2d at 957,
958.
As to the digoxin injection, various experts testified at the
district court that various complications may arise from its
use, including: 1) amniotic embolism, which may be fatal;
2) bleeding and injury to the bowel; 3) piercing of other
internal structures such as blood vessels and the uterus;
4) arrhythmia possibly leading to cardiac arrest for women
with preexisting cardiac problems; 5) vomiting; 6) vaginal

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 41
bleeding; and, 7) other injury to the uterus requiring
hospitalization. See id. at 956-57; see also Carhart, 530 U.S.
at 932 (quoting district court’s finding that amniotic
embolism is the other of the two most common causes of
maternal death, 11 F. Supp. 2d at 1126). Other courts have
found similar risks. For example, in Evans v. Kelley, 977 F.
Supp. 1283 (E.D. Mich. 1997), the court found that
“injections have serious potential health risks” including
those of hemorrhage, infection, and uterine necrosis. Id. at
1301. The Evans court also found that many physicians do
not have the appropriate skills to perform the injection and
that some women have conditions that make the injection
impossible. Id.
As to severing the umbilical cord, the district court found
that the passing of sharp instruments into the uterus increases
the risk of uterine perforation as the physician locates and
severs an umbilical cord that does not spontaneously present
itself. See Women’s Med. Prof’l Corp. v. Taft, 162 F. Supp.
2d at 957. This finding is consistent with those of other
courts. See Carhart v. Stenberg, 11 F. Supp. 2d 1099 at 1123
(“Cutting the umbilical cord and waiting for the fetus to die
before completing the D & X procedure carries appreciable
maternal risks, no maternal benefits, and is not always
possible.”); Planned Parenthood of Cent. New Jersey v.
Verniero, 41 F. Supp. 2d 478, 500 (D.N.J. 1998) (finding risk
of uterine perforation and hemorrhage from passing of sharp
instruments into the uterus and generally that “[h]ealth risks
to women would be significantly increased if physicians are
required to ensure fetal demise in utero”), aff’d, 220 F.3d 127
(3rd Cir. 2000).
On these findings, it is clear then that requiring fetal demise
before completion of the intact procedure may present
additional risks of serious health consequences for some
women.
42 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
C. HB 351 does not allow an exception to its ban on
the intact procedure when the woman does not
have a “medically diagnosed condition that . . .
complicates the pregnancy,” even if the intact
procedure is safer than other methods
Given that it is unconstitutional for a state to “force women
to use riskier methods of abortion” and the fact that the intact
method may be a safer procedure for some women, it must be
determined whether HB 351 allows an exception to its ban
when the intact procedure is safer than other available
procedures. As the following shows, it does not.
HB 351 permits the “partial birth procedure” only when it
is “necessary, in reasonable medical judgment, to preserve the
life or health of the mother as a result of the 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. § 2919.151(B) (post-viability) and (C) (pre-
viability). HB 351 defines the “serious risk of the substantial
and irreversible impairment of a major bodily function” to
mean “any medically diagnosed condition that so complicates
the pregnancy of the woman as to directly or indirectly cause
the substantial and irreversible impairment of a major bodily
function.” Ohio Rev. Code Ann. § 2919.151(A)(5).
Thus, HB 351’s health exception will not apply when a
woman who seeks the intact method is not endangered by a
“medically diagnosed condition that . . . complicates the
pregnancy.” Id. In limiting its exception to pre-existing
physical conditions, HB 351 fails to contemplate the
increased risks imposed on a woman by other methods of
abortion. No exception would be permitted for a woman who
is healthy, even if the intact procedure would likely avert
highly serious health risks.
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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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 43
Majority Slip Opinion at 23. However, their reading conflicts
with the plain language of the statute stating that a woman
may not receive the intact method unless she is endangered by
a “medically diagnosed condition that . . . complicates the
pregnancy.” Ohio Rev. Code Ann. § 2919.151(A)(5). Because
an abortion ends a pregnancy, it is not possible to characterize
a health consequence of abortion as a “medically diagnosed
condition that . . . complicates the pregnancy.” This language
excludes the prospective risks of other methods of abortion,
thus violating Carhart’s instruction. The majority ignores this
part of the statute and offers a plainly unreasonable
interpretation of the statute’s clear language.
As noted in Carhart, the clear statutory definition is
controlling. See Carhart, 530 U.S. at 942 (stating that
“[w]hen a statute includes an explicit definition, we must
follow that definition”). Likewise, the Court in Colautti noted
that “[a]s a rule, a definition which declares what a term
means . . . excludes any meaning that is not stated.” 439 U.S.
at 392-93 n.10 (quotation and citation omitted). Despite our
duty to attempt to construe statutes to preserve their
constitutionality, see Frisby v. Schultz, 487 U.S. 474, 483
(1988), such is not possible here in light of the statute’s
unambiguous wording.
D. HB 351’s pre-viability ban fails to provide a
constitutionally adequate exception to preserve the
health of a woman who does not have a medically
diagnosed condition that complicates the pregnancy
The foregoing establishes the following:
1) it is unconstitutional for a state to maintain
regulations that “force women to use riskier methods
of abortion” when a woman has a constitutional
right to abortion, viz.,
a) when the fetus is not viable; and,
b) whenever a continuing pregnancy would
threaten the woman’s life or health;
44 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
8In the post-viability context, the state may proscribe abortion
altogether, except where the woman’s health is thre atened by a continuing
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
medically diagnosed condition that complicates the pregnancy, as
HB 351’s health exception does. In light of our duty to offer reasonable
statutory constructions to preserve constitutionality, I believe that the
post-viability health exception may be read to apply when the woman has
a physical condition that complicates the pregnancy and the intact
procedure would be the safest method of abortion. In such a case,
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.
Nonetheless, as discussed in the following sectio n, both the pre- and post-
viability bans are unconstitutional b ecause the exception fails to apply
when the woman faces a serious risk to her mental health from a
continuing pregnancy and the intact procedure would be the safest method
of abortion.
2) substantial medical evidence shows that intact
procedure may pose a lesser risk to some women;
3) the common methods of causing fetal demise may
add significant risk to an abortion procedure and
offer no benefit to the pregnant woman; and,
4) HB 351 does not permit a health exception for the
intact procedure when it poses less risk to a pregnant
woman who does not have a medically diagnosed
condition that complicates the pregnancy.
Taken together, these findings and conclusions show that
HB 351’s pre-viability ban is unconstitutional because it does
not allow an exception for a woman who faces heightened
risks from other methods but who does not have a medically
diagnosed condition complicating the pregnancy. In the pre-
viability context, the exception’s limiting conditions render it
unconstitutionally narrow.8 HB 351’s pre-viability ban fails
to offer the protection necessary to ensure the “preservation
of the life or health” of the pregnant woman and is therefore
unconstitutional.

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 45
II. HB 351’s Pre- and Post-viability Bans Are
Unconstitutional Because They Force Women Facing
Severe and Irreversible Harm to Their Mental Health
to Use Riskier Methods of Abortion
As discussed above, HB 351’s pre-viability ban is
unconstitutional because it forces a woman who does not have
a “medically diagnosed condition that . . . complicates the
pregnancy” to use riskier methods of abortion. But there is
another circumstance in which HB 351 would force a woman
to use riskier methods of abortion, viz. when a continuing
pregnancy or bearing a child would present a risk of severe
and irreversible harm to the woman’s mental health. Because
HB 351 limits its exception to risks from pre-existing
physical conditions, it fails to allow an exception where the
risks are to the woman’s mental health. As discussed below,
this failure renders HB 351 unconstitutional in both its pre-
and post-viability contexts.
A. Both the Supreme Court and this Court have
recognized that a woman’s mental health must be
preserved as part of her overall health
Since the day Roe was decided, the Supreme Court has
recognized the emotional and psychological aspects of a
woman’s overall health. To determine whether an abortion is
medically “necessary,” the Court in Doe stated that “medical
judgment may be exercised in the light of all
factors—physical, emotional, psychological, familial, and the
woman's age—relevant to the well- being of the patient. All
these factors may relate to health.” Doe, 410 U.S. at 191-192
(emphasis added). Decided on the same day and meant “to be
read together,” id. at 165, Doe and Roe indicate that a
woman’s mental health, in addition to her physical health,
must be considered in assessing whether an exception to an
abortion regulation actually preserves the health of the
pregnant woman.
46 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
This Court has specifically held so, stating that in the post-
viability context, a maternal health exception must encompass
a risk of severe and irreversible harm to the woman’s mental
health. Voinovich, 130 F.3d at 209-210. The Court stated:
The State’s substantial interest in potential life must be
reconciled with the woman's constitutional right to
protect her own life and health. We believe that in order
to reconcile these important interests, the Constitution
requires that if the State chooses to proscribe post-
viability abortions, it must provide a health exception
that includes situations where a woman is faced with the
risk of severe psychological or emotional injury which
may be irreversible.
Id. at 210. The Voinovich court also found that the health
exception at issue there unconstitutionally limited “the
physician’s discretion to determine whether an abortion is
necessary to preserve the woman's health, because it limits the
physician's consideration to physical health conditions.” Id.
(citing Colautti, 439 U.S. at 387). Thus, it must be determined
whether some women face risks of severe and irreversible
harm to their mental health and whether HB 351’s health
exception would encompasses such risks.
B. The facts of this case show that some women face a
risk of severe and irreversible mental harm from a
continuing pregnancy or bearing a child
The record makes clear the factual bases for concern over
the mental health conditions of some pregnant women.
Plaintiffs’ psychological expert testified that certain women
face very significant mental health risks from a continuing
pregnancy or bearing a child. Women who may face such risk
include victims of rape, incest, and other kinds of abuse, and
those with severe emotional disorders such as severe
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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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 47
9In granting a preliminary injunction, the district court found a
substantial likelihood that HB 351 was unconstitutional because it failed
to enco mpa ss risks of severe and irreversible harm to a wo man’s mental
health. See 114 F. Supp. 2d at 696. In granting the permanent injunction,
however, the district court chose not to reach the issue concerning an
exception for mental health risks because the court found HB 351 to be
unco nstitutional in both the pre- and p ost-viab ility contexts. See 162 F.
Supp. 2d at 962 , n.31. Nonetheless, this Court may affirm the district
court’s judgment on any basis supported by the record . See Andrews v.
Oh io, 104 F.3d 80 3, 808 (6th Cir.1997).
1078-1081 (S.D. Ohio 1995) (listing examples of relevant
psychological harms), aff’d, 130 F.3d 187 (6th Cir. 1997).
Thus, although the district court did not make detailed
findings on risks to mental health in this case,9 the record
clearly shows that some women face very serious mental
health risks from a continuing pregnancy. See Voinovich, 130
F.3d at 192 (“[A]n appellate court is to conduct an
independent review of the record when constitutional facts are
at issue.”) (citing Jacobellis v. Ohio, 378 U.S. 184, 190 & n.6
(1964)).
C. HB 351 does not allow an exception to its ban on
the intact procedure when the woman faces a risk
of severe and irreversible harm to her mental
health, even if the intact procedure is safer than
other methods
HB 351 will permit the intact procedure only when it is
“necessary, in reasonable medical judgment, to preserve the
life or health of the mother as a result of the mother's life or
health being endangered by” a “medically diagnosed
condition that so complicates the pregnancy of the woman as
to directly or indirectly cause the substantial and irreversible
impairment of a major bodily function.” Ohio Rev. Code
Ann. § 2919.151(B) (post-viability) and (C) (pre-viability),
incorporating Ohio Rev. Code Ann. § 2919.151(A)(5)
(statutory definition). By its plain wording, then, the
48 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
10As to the third condition, I assume that severe mental health risks,
like physical health risks, may be “medically diagnosed” by a doctor,
psychiatrist, or other mental health professional. The first, second, and
fourth conditions ob viously apply in this context.
11The relevant provision in Voinovich proscribed all post-viability
abortions except where “a physician determines, in good faith and in the
exercise of reasonable medical judgment, that the abortion is necessary to
prevent the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily function of the
pregnant woman.” Ohio Rev. Co de Ann. 2919 .17(A)(1) (1996 ).
exception will apply only if all of the following conditions are
met:
1) there is a danger to the pregnant woman’s life or
health;
2) the danger arises from a medically diagnosed
condition;
3) the medically diagnosed condition complicates the
pregnancy;
4) the complication directly or indirectly causes a
substantial and irreversible impairment; and,
5) the impairment is of a major bodily function.
As to whether the exception would apply for a woman
facing a risk of severe and irreversible mental harm, it is clear
that the first four of the five conditions would be met.10
However, the fifth condition that the impairment be of “a
major bodily function” does not appear to be met when the
serious risk is purely to the woman’s mental health. Indeed,
in considering the substantially similar health exception in
Voinovich,11 this Court stated that “[o]n its face, this
definition appears to be limited to physical health risks, as
opposed to mental health risks.” Voinovich, 130 F.3d at 206.
The same is true here. In fact, the defendants have admitted

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 49
12As in Voinovich, this admission forecloses the argument that
mental health is a compone nt of the “major bod ily function” of the brain.
See Voinovich, 130 F.3d at 209 n.20 (citing A Wo man ’s Choice-East Side
Women's Clinic v. Newman, 671 N .E.2d 104 (Ind.19 96)).
13In light of the serious physical and mental harms for which HB 351
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
have not argued “that a health exception, to be constitutional, must give
physicians complete freedom to perform abortions using the D & X
procedure whenever they wish to do so.” Id. at 17. Plaintiffs do not seek
a standardless exception.
that the exception is limited to physical health risks. Women’s
Med. Prof’l Corp. v. Taft, 911 F. Supp. at 960. The Ohio
defendants admitted the same with respect to the highly
similar provision in Voinovich. 130 F.3d at 206-207.12 Thus,
the health exception cannot be understood to encompass
mental health risks and conditions, regardless of their nature
or severity.
A woman facing a risk of severe and irreversible mental
harm would not be permitted to receive the intact procedure.
While the woman would still be able to receive an abortion by
another method, she would nonetheless be compelled to face
the comparative risks that HB 351 unconstitutionally fails to
encompass. See Dissenting Slip Opinion at 33-45. Thus, no
exception would extend to a woman who faces a severe and
irreversible risk to her mental health from a continuing
pregnancy, even when the intact procedure would carry
significantly less physical risk than other procedures.13
D. HB 351’s pre- and post-viability bans fail to
provide a constitutionally adequate exception to
preserve the health of a woman who faces a risk of
severe and irreversible harm to her mental health
The foregoing establishes that HB 351 is unconstitutional
because it fails to encompass comparative physical risks and
risks of severe and irreversible harm to a woman’s mental
50 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
health. As the district court stated in granting the preliminary
injunction:
Given that a State cannot prohibit a woman from
aborting a viable fetus to preserve her own psychological
or emotional health, it follows naturally from Carhart
that she cannot be deprived of the safest method of doing
so. Indeed, just as a woman who is suffering from a
serious physical health condition must be permitted to
undergo the safest abortion procedure available, a woman
who is suffering from a mental health condition of the
type described by this Court in Voinovich is entitled to no
less.
114 F. Supp. 2d at 695-96 (emphasis in original) (footnote
omitted). Further in contravention of Voinovich, HB 351
admits no discretion to the physician on this issue. See 130
F.3d at 210.
Contrary to the majority’s assertion, the issue is not
whether the woman “would suffer severe and irreversible
mental harm from being limited to a D & E procedure when
she or her physician might prefer a D & X.” Majority Slip
Opinion at 21 n.1. Rather, once it is established that a
continuing pregnancy or bearing a child would pose a risk of
severe and irreversible mental harm, the issue is whether the
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.
In short, HB 351 does not provide what is explicitly
required by Carhart and Voinovich. Its health exception fails
to heed the Supreme Court’s longstanding recognition of the
importance of mental health to a woman’s overall health.
Though Voinovich held that a woman’s mental health must be
considered with respect to a post-viability ban, that holding
also applies in the pre-viability context because “the law . . .
at a minimum requires [preservation of the woman’s health]
in respect to previability regulation.” Carhart, 530 U.S. at

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 51
14The statute in Casey allowed exceptions to its regulations in cases
of “medical emergency,” defined as:
[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
pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create
serious risk of substantial and irreversible impairm ent of a major
bodily function.
18 Pa. Co ns. Stat. § 3203 (1990).
930. The majority’s contrary assertion is unavailing. See
Majority Slip Opinion at 21 n.1. Indeed, it would be illogical
to force a woman–for example, a woman impregnated by rape
or incest–to wait until the fetus attained viability before
recognizing the risk to her mental health from a continuing
pregnancy or giving birth. Thus, in both the pre- and post-
viability contexts, HB 351 is unconstitutional because it
forces women confronting the risk of severe and irreversible
mental harm to use riskier methods of abortion. See Carhart,
530 U.S. at 931.
III. The Health Exception Approved in Casey Is
Constitutionally Inadequate for HB 351
In an attempt to save the constitutionality of HB 351, the
defendants make much of the similarity between the
provisions of HB 351’s health exception and the health
exception to the general abortion regulations at issue in
Casey.14 In essence, they argue that the health exception must
be constitutionally adequate because its provisions mirror
those approved in Casey, as construed broadly by the Third
Circuit. See 947 F.2d 682, 701 (1991). However, Ohio’s
attempt to import the provisions of Pennsylvania’s health
exception into HB 351 fails because the Ohio law is very
different in nature. As this Court noted in Voinovich, there is
an important difference between regulations such those as in
Casey that merely delay abortions and those at issue here and
in Voinovich that ban some abortions. See 130 F.3d at 208.
52 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
In Casey, one of the main regulations at issue delayed the
legal provision of an abortion until 24 hours after a woman
had given her informed consent. 18 Pa. Cons. Stat. § 3205
(1990). It is obvious that requiring a 24-hour delay imposes
a far lesser restriction and risk on a woman than a ban on a
method of abortion. Unlike the regulations at issue in Casey,
a ban with an overly narrow health exception does not have
a mere “incidental effect of increasing the cost or decreasing
the availability of medical care.” Casey, 505 U.S. at 874.
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
is a ban whose narrow exception substantively forecloses a
woman’s right in some circumstances to receive the type of
procedure that is safest for her. Unlike HB 351, Casey’s
regulations did not “force women to use riskier methods of
abortion.” Carhart, 530 U.S. at 931. This is the crucial
distinction between the regulations at issue in Casey and the
regulations in Carhart, where Court underscored its
longstanding concern regarding state regulations that ban a
method of abortion: “Our cases have repeatedly invalidated
statutes that in the process of regulating the methods of
abortion, imposed significant health risks.” Id. (emphasis in
original).
Another important distinction between the regulations in
Casey and Carhart likewise arises from the different
circumstances in which their respective exceptions might
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
will almost certainly be severe enough to trigger the “medical
emergency” exception. However, in the unframed context of
HB 351’s narrowly excepted ban, no passing of time would
allow the woman to obtain the intact procedure, even though
it might be a significantly less risky procedure than other
available methods.
This fatal flaw itself derives from the forced fit of
Pennsylvania’s exception unto Ohio’s ban of the intact

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No. 01-4124 Women’s Med. Prof’l, et al. v. Taft, et al. 53
procedure. The health exception in both sets of regulations
would be triggered only by a “condition” that “complicates
the pregnancy.” For a general 24-hour waiting period, one
may understand the rationale behind the exception’s specific
requirement that a medically diagnosed condition necessitate,
in effect, an immediate abortion. However, as imported into
HB 351, the requirements of Pennsylvania’s health exception
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
54 Women’s Med. Prof’l, et al. v. Taft, et al. No. 01-4124
pregnancy or bearing a child would cause serious and
irreversible harm to her mental health.
HB 351’s pre- and post-viability bans on the intact method
do not contain a constitutionally adequate exception to
preserve the health of the woman. For the foregoing reasons,
the judgment of the district court should be affirmed.

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