MEMORANDUM OPINION
Fоr decision before me today is Plaintiffs’ Renewed Motion for Preliminary Injunction. This motion seeks relief regarding certain specified sections of S.B. 47, the Illinois Abortion Law of 1975, as amended. A preliminary injunction has already been issued concerning major portions of the legislation as the result of the orders issued by Judge Flaum (Memorandum Opinion, November 16, 1979) and the Seventh Circuit Court of Appeals
(Charles v. Carey,
The standard which governs my decisiоn is clear. “To obtain preliminary injunctive relief ..., the plaintiffs must demonstrate
*379
that there is a reasonable likelihood of success on the merits, that they lack an adequate remedy at law, that irreparable harm to the plaintiffs outweighs any harm to the defendants, and that issuance of the injunction would serve the public interest.”
Charles v. Carey,
Plaintiffs argue that these standards are met and a preliminary injunction should issue with regard to the following statutory provisions: sections 2(6), 2(8), 2(9), 3.1(A), 3.1(B)(1)(a), 3.1(B)(1)(b), 3.2(A)(1)(a), 3.5(1), 6(3), 6(7), 10, 11(e), 11(f) and 12. Each shall be discussed in turn.
I. The Definitional Sections: Sections 2(6), 2(8) and 2(9)
Section 2 of the Act sets forth numerous definitions of statutory terms. Plaintiffs first challenge sections 2(8) and 2(9) which define, respectively, “Human being,” and “Fetus.” In full, these sections provide:
(8) “Humаn being” means the individual from fertilization until death.
(9) “Fetus” and “unborn child” each mean a human being from fertilization until birth.
Plaintiffs argue that these two sections incorporate the State’s view of life as beginning at fertilization, a view which the Supreme Court has rejected.
Other statutory sections have been stricken by this Court, the Seventh Circuit Court of Appeals, and the Supreme Court for the reason set forth by plaintiffs. In
Akron
the Court found unconstitutional that subsection of the ordinance which required the attending physician to orally inform a pregnant woman “That the unborn child is a human life from the moment of conception ...”
4
As the Court explained, that “requirement [is] inconsistent with the Court’s holding in
Roe v. Wade
that a State may not adopt one theory of when life begins to justify its regulation of abortions. See 410 U.S. [113, 159-162], [
Likewise, the Sevеnth Circuit ordered that a preliminary injunction be issued as to sections 2(10) and 11(d) of the Illinois law, stating:
... use of the term “abortifacient” in describing certain birth control methods forces the physician to act as the mouthpiece for the State’s theory of life. In this way, section 11(d) is merely a milder version of the “informed consent” provision of section 3.5(2), enjoined by the district court, requiring, among other things, that the patient be told that “[t]hе State ... wants you to know that in its view the child you are carrying is a living human being ...”
Charles v. Carey,
There can be no question that sections 2(8) and 2(9) are written so as to espouse the State’s theory of life. A human being is understood, in common parlance, to be a living person. Thus, to say that an individ *380 ual at fertilization is a human being, is to say that life begins at fertilization, a theory clearly eschewed by the Supreme Court. Further, there can be no reason offered by the State as to why this definition, or its equivalent, is necessary to any constitutional purposes of the Act. Because section 2(9) incorporates the term “human being” into its definition of fetus, it suffers from the same constitutional infirmities. The plaintiffs have shown a reasonable likelihood that section 2(8) and 2(9) are unconstitutional. 5
Plaintiffs next challenge Section 2(6) which defines “abortion”:
(6) "Abortion” means the use of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with intent to cause fetal death.
Plaintiffs argue that because this section incorporates a derivative of the impermissible term “fetus” — “fetal death” — it also must fall.
I cannot agree. My refusal to allow “fetus” to be statutorily defined in terms of a “human being” does not mean that either “fetus” or “fetal death” are terms which cannot be understood, absent statutory definition. The terms, as used in 2(6) are
not
“so devoid of meaning that reasonable persons are deprived the opportunity to conform their conduct to the law.”
Charles v. Carey,
Death has been variously defined as “a permanent cessation of all vital functions,” “the passing or destruction of something inanimate,” and “extinction.” Webster’s New Collegiate Dictionary, 1977 Edition. Whether death in this context is viewed as the destruction of the fetus, or as the extinction of the fetus, or as the permanent cessation of the fetus’ capacity for future development, the plain meaning оf the statute is manifest. The section is not rendered unconstitutionally vague and no injunction shall be entered as to it. 6
II. The Duties of the Physician Who is to Perform the Abortion: Sections 3.1, 3.2(A)(1)(a), and 3.5(1)
Sections 3.1, 3.2(A)(1)(a) and 3.5 set forth certain duties to be fulfilled by the doctor who is to perform an abortion. Section 3.1(A) makes it a class 2 felony for a physician to perform an abortion if he “intentionally and knowingly” ignores the statutory requirement of first determining “in his best clinical judgment, [that] the abortion is necessary.” 7 Section 3.1(B) requires that the physician who is to perform the abortion and the woman upon whom it is to be performed have a private consultation “in a place, at a time and of a duration reasonably sufficient to enable the physician to determine whether, based upon his best clinical judgment, the abortion is nec *381 essary.” The basis for the judgmеnt of necessity is to be recorded on a form by the doctor. § 3.1(B)(1)(b). Exceptions and penalties are also delineated. § 3.1(B)(2)-(3).
Section 3.2 is the “Informed Consent” provision. The Seventh Circuit has specifically upheld the introductory paragraph which states:
(A) No abortion shall be performed except with the voluntary and informed consent of the woman upon whom the abortion is to be performed.
See Charles v. Carey,
Subpart (l)(a) of section 3.2 sets forth the requisites for a finding of “voluntary and informed” consent. As the section originally stood, particular information was to be given to the woman, “by the physician who is to perform the abortion,” “at least 24 hours before the abortion.” The required information included a true copy of her pregnancy test result (§ 3.2(A)(1)(a)); the name of the physician who will рerform the abortion (§ 3.2(A)(l)(a)(i)); the medical risks associated with the particular abortion procedure to be employed (§ 3.2(A)(l)(a)(ii)); the probable gestational age of the fetus at the time the abortion is to be performed (§ 3.2(A)(l)(a)(iii)); and certain printed information, as described in section 3.5 (§ 3.2(A)(l)(a)(iv)). 8 Section 3.5(1) provides for materials describing “public and private agencies and services available to аssist a woman through pregnancy, upon childbirth and while the child is dependent, including reputable adoption agencies.” Section 3.5(2), which has been enjoined, had called for materials describing “the probable anatomical and physiological characteristics of the fetus at the various gestational ages ... including any relevant information on the possibility of fetal survival.” A paragraph was to apрear in the prepared materials which said, in part, “The State of Illinois wants you to know that in its view the child you are carrying is a living human being whose life should be preserved. Illinois strongly encourages you not to have an abortion but to go through to childbirth ...” § 3.5(2).
In addressing the foregoing provisions, plaintiffs first argue that section 3.2(A)(1)(a), regarding “informed consent,” must be enjoined in its entirety. According to plaintiffs, Akron teaches that this approаch should be followed, rather than the clause by clause, subpart by subpart analysis undertaken by this Court and the Seventh Circuit to date.
Plaintiffs’ reading of
Akron
in this issue is eminently correct. As in the instant case, one portion of the Akron city ordinance stated that a woman must be “informed by her attending physician of the following facts ...” § 1870.06(B), — U.S. at-,
Not all of the facts, however, met this fate; indeed, some were deemed “certainly ... not objectionable.”
Id.
at-n. 37,
The statutory structure of section 3.2(A)(1)(a) cannot be distinguished from that of the ordinance before the Supreme Court in Akron. Plaintiffs have therefore *382 succeeded in establishing the likely unconstitutionality of this entire provision.
Using the same analysis, a similar conclusion must be reached regarding section 3.5(1). The Supreme Court reviewed an analogous substantive provision in Akron and implied that section 3.5(1), in another context, would not offend the Constitution. Id. However, the information provided for in section 3.5(1) was intended by the drafters of the Illinois act to be distributed to a woman by the physician who would perform the abortion. The overall scheme, therefore, is unconstitutional, and must be enjоined.
Moreover, although section 3.5(1) could arguably stand on its own and does retain independent meaning, even without the reference to it in section 3.2(A)(l)(a)(iv), it cannot be said with any certainty that the Illinois legislature would have enacted section 3.5(1) entirely separate from the context in which it was originally envisioned. In these circumstances, plaintiffs have established a reasonable likelihood that sectiоn 3.5(1) is unconstitutional.
Id.
at-n. 45,
Plaintiffs next suggest that section 3.1 is infirm because it includes a “same doctor” requirement such as that stricken by the Supreme Court in
Akron.
Plaintiffs note that the Seventh Circuit also expressed some doubts about section 3.1(B)(1)(a) for just this reason.
Charles v. Carey,
Analysis of section 3.1 must begin with the recognition of an important distinction between the attending physician’s judgment that the woman has offered her “informed consent” and his “best clinical judgment [that] the abortion is necessary.”
The Supreme Court has made clear that the physician who is to perform the abortion need not
himself
supply the woman with the information necessary to ensure that her decision is an informed one.
Akron,
— U.S. at-,
However, the Court expressly said that “[i]t remains the primary responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances.”
Id.
at-,
These passages make clear that the attending physician may constitutionally be required to ultimately assure himself that the woman has made an “informed consent,” «ven though the initial steps of informing the woman may be taken by another person, including a non-physician.
Given this, it is hard to understand how it could be unconstitutional for a State to require the physician who is to perform the operation to assure himself that in his own best clinical judgment, the abortion is necessary. If a doctor cannot avoid personally reviewing an area which in relative terms is less complicated and less important, because it can be addressed by a non-physician, he certainly could not avoid review of the more critical and demanding medical judgment that the abortion should be performed. The Akron Court summarized, “[We do not] imply that а physician may abdicate his essential role as the person ultimately responsible for the medical aspects of the decision to perform the abortion.” Id.
Finally, while it is true that the two-doctor concurrence rule was found unconstitutional,
Doe v. Bolton,
For the foregoing reasons, I conclude that plaintiffs have not established a likelihood of proving either section 3.1(A) or 3.1(B)(1)(b) unconstitutiоnal. These provisions merely require the attending physician to himself establish that in his best clinical judgment the abortion is necessary, (§ 3.1(A)) and to then record his basis for that judgment (§ 3.1(B)(1)(b)). 9
Section 3.1(B)(1)(a) presents a different issue. It both requires the performing physician to “consult” with the woman and dictates the procedures which he must go through before making his determination that the abortion should take place. Arguably, these factors run afoul of the
Akron
decision. In the context of “informed consent” provisions, the Supreme Court found favor with a section that “properly [left] the precise nature and amount of this disclosure to the physician’s discretion and ‘medical judgment.’ ”
Akron,
— U.S. at -,
III. Provisions Containing Unconstitutionally Vague Terms: Sections 6(3), 11(f), and 12
Plaintiffs have called to the Court’s аttention several provisions which contain what plaintiffs believe to be unconstitutionally vague terms.
Section 6(3) makes it a Class 1 felony for any person to “use or sell any fetus or premature infant aborted alive for any type of scientific, research, laboratory or other kind of experimentation either prior to or subsequent to any abortion procedure except as necessary to protect or рreserve the life and health of such premature infant aborted alive ...” (emphasis supplied).
Plaintiffs contend, and I agree, that the clause underlined above renders the section void for vagueness. The Seventh Circuit refused to sanction the analogous term “human being aborted alive” found in section 6(2), also a criminal provision. The Court found nothing to assist it in determining the meaning of “aborted alive”: “The meaning of the term ‘alive’ could include only the most minimal of life signs in a nonviable fetus or it could be limited to the capability of sustained survival.”
Charles v. Carey,
The same vagueness problems plague section 12. Pursuant to that provision, a pathologist is required to report any *384 evidence of “live birth” or of “viability.” The first of these terms is vague for the reasons expressed above. The second was found unconstitutionally vague and over-broad in the initiаl preliminary injunction order issued by this Court. Section 12, like section 6(3), carries criminal penalties and cannot be allowed to stand as currently drafted. Plaintiffs have established a reasonable likelihood that section 12 is unconstitutional.
Finally, section 11(f) imposes a criminal penalty for “[a]ny person who intentionally, knowingly or recklessly performs an
abortion procedure
upon a woman who is not pregnant” (emphasis supplied). Plaintiffs assеrt that the clause “abortion procedure” is also unconstitutionally vague. The Seventh Circuit suggested this in its opinion,
Charles v. Carey,
IV. Privacy Guarantees: Section 11(e)
The last provision challenged by plaintiffs in this action is section 11(e). This section requires any doctor who diagnoses a woman as having complications resulting from an abortion to “report the patient’s name ... to the Department [of Public Health, State of Illinois].” Plaintiffs rightfully object that this provision would damage the privacy rights of a woman who has chosen to have an abortion, and could infringe upon her constitutionally protected right to choose to undergo such a procedure.
See Danforth, supra,
V. Conclusion
With respect to those sections оf the law for which plaintiffs have established at least a reasonable likelihood of success on the merits, they also have established that they have no adequate remedy at law and will be irreparably harmed if the preliminary injunction does not issue; that the threatened injury to plaintiffs outweighs the threatened harm a preliminary injunction may inflict on defendants; and that the issuance of a preliminary injunction will serve the public interest.
Accordingly, plaintiffs’ renewed motion for a preliminary injunction is granted with respect to sections 2(8), 2(9), 3.1(B)(1)(a), 3.2(A)(1)(a), 3.5(1), 6(3), 6(7), 11(e), 11(f), and 12. It is denied as to sections 2(6), 3.1(A), 3.1(B)(1)(b), and 10.
It is so ordered.
Notes
. Hereinafter referred to as Charles v. Carey.
. Hereinafter referred to as Akron.
. As the Seventh Circuit explained: "The threshold question whether there is a ‘burden’ or 'direct inference’ in the pregnancy termination decision requires the plaintiff merely to show the requisite degree of interference. If the interference is sufficiently substantial аnd not de minimis, the State has to show the compelling basis for the law, that is, that the burden is not ‘undue’ or unjustifiable.”
. The subsection further provided, "... and that there has been described in detail the anatomical and physiological characteristics of the particular unborn child at the gestational point of development at which the abortion is to be performed, including, but not limited, to appearance, mobility, tactilе sensitivity, including pain, perception or response, brain and heart function, the presence of internal organs and the presence of external members.”
Akron,
— U.S. at-, n. 5,
. Section 6(7) is thus also rendered unconstitutional. Although the thrust of this section may be permissible, in that it apparently attempts to fill what would otherwise be a void in the cited statute, this section must be redrafted. The definition of "human being” is vital to a meaningful comprehension of section 6(7), but no valid definition of that term now remains in the statute.
. For the same reasons, the remaining portions of section 10 also withstand challenge. The only argument currently raised by plaintiffs with regard to these is that the terms "fetal” and "unborn children" are unconstitutionally vague, once section 2(9) is deemed unconstitutional. Because I do not find this argument compelling, and believe the section is not devoid of mеaning, I find that plaintiffs have not established a likelihood of success as to this section. Of course, the preliminary injunction entered previously as to certain subparts of section 10 remains in effect.
. Plaintiffs have previously challenged section 3.1(A) on the grounds that it is unconstitutionally vague and could be interpreted to forbid "elective” abortions. That argument was rejected by both this Court (Memorandum Ppinion, Nov. 16, 1979, pp. 14-15), and the Court of Appeals (
. The following clauses and subparts of section 3.2(A)(1)(a) have already been preliminarily enjoined: "with a true copy of her pregnancy test result”; "by the physician who is to perform her abortion”; "and the woman is provided, at least 24 hours before the abortion”; subpart (iii); and subpart (iv), except to that extent that it incorporates 3.5(1).
. It has been clearly established that records of this type which do not infringe on the woman’s privacy may be required.
See Planned Parenthood of Cent. Mo. v. Danforth,
. The offending language of section 6(3) has withstood attack previously,
see Wynn v. Scott,