In the instant case, we are called upon to determine the legal vitality of several provisions of Utah’s 1991 abortion law against the backdrop of Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. -,
I.
In April 1991, plaintiffs filed a complaint challenging the newly amended Utah Abortion Act, Utah Code Ann. §§ 76-7-301 et seq. In an eight-count amended complaint filed shortly thereafter, plaintiffs alleged several federal and state constitutional violations. Following a period of discovery, defendants filed a Motion to Dismiss and a Motion for Partial Summary Judgment, and the district court orally entered orders vacating trial and granting the motions as to certain causes of action. In Jane L. v. Bangerter,
Casey was argued April 22, 1992, one month before the district court issued Jane L. I and Jane L. II. The Supreme Court decided Casey on June 29,1992. The district court decided the remaining issues in this case on December 17, 1992. Jane L. v. Bangerter,
II.
SEVERABILITY
A. Section 302(3): Post-20 Week Abortion Ban
The district court’s first task after Casey was to determine the constitutionality of section 302 of the Act.
The district court held that section 302(3) was severable from section 302(2). The court further held that section 302(3) did not
Severability is an issue of state law. See Watson v. Buck,
To determine whether the legislature would have passed a statute without its unconstitutional section, courts should examine the interdependence of the statutory provisions. See Stewart,
The substantive intent of the Utah legislature in passing section 302 was clearly to challenge the Roe v. Wade framework and to ban abortion throughout pregnancy, although with a few exceptions. See Utah Women’s Clinic, Inc. v. Leavitt,
The policy and position of the Legislature is to favor childbirth over abortion, and [to regulate abortion] as permitted by the U.S. Constitution....
[L]ives of human beings are to be recognized and protected regardless of their degree of biological development....
Utah has a compelling state interest in the life of the unborn throughout pregnancy....
[A]bortion is not a legitimate or appropriate method of birth control....
[I]t is the policy of the Legislature that, if an abortion is granted, it should be only under very limited circumstances, including danger to the life or physical health of the mother, pregnancies resulting from rape or incest, and cases of severe deformity of the unborn child.
HJ.R.Res. 38, 48th Leg., 1990 Utah Laws 1554-55. The legislature clearly intended to prohibit all abortions, regardless of when they occur during the pregnancy, except in the few specified circumstances.
Sections 302(2) and 302(3) were the operative statutory sections designed to execute this intent. Together they operated as a unified expression of legislative intent to ban most abortions, from conception to birth.
Defendants argue that the legislature intended for all provisions to be severable and that this intent should govern our disposition of the severability issue. They point to the severability clause in the 1991 abortion act, which reads as follows.
If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this part shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.
Utah Code Ann. § 76-7-317. Under Utah law, courts must ask whether the legislature would have passed the statute without the unconstitutional section when determining whether the legislature intended for certain provisions to be severable from others. Defendants argue that the second sentence of section 317, stating that the legislature would have passed each section independent of the unconstitutional part, demands that we sever section 302(3). We disagree.
We confront here potentially conflicting-legislative intents. Substantively, severing 302(3) from 302(2) clearly undermines the legislative purpose to ban most abortions. Structurally, severance seems to have been contemplated and approved by the legislature. Which takes precedence? We conclude that the substantive legislative intent predominates and precludes severability for two reasons.
First, Utah case law resolves conflicts among legislative intentions in favor of the legislature’s overarching substantive intent. Under Utah law, courts can and should ignore severability (or savings) clauses if severance would undermine legislative intent. For example, in Doe v. Rampton,
The Utah Supreme Court similarly ignored a severability clause in Salt Lake City v. International Ass’n of Firefighters,
Second, it is unclear whether our conclusion regarding the severability of section 302(3) actually conflicts with the Utah legislature’s structural intentions. Section 317.2 reads as follows:
If Section 76-7-302 as amended by Senate Bill 23, 1991 Annual General Session, is ever held to be unconstitutional by the United States Supreme Court, Section 76-7-302, as enacted by Chapter 33, Laws of Utah 1974, is reenacted and immediately effective.
Utah Code Ann. § 76-7-317.2. The inclusion of section 317.2 suggests that the legislature contemplated Supreme Court invalidation of the general abortion ban in section 302 and wanted to provide a clear road map to cover this contingency. We interpret section 317.2 as making an exception to the general sever-ability clause specifically for section 302.
In sum, sections 302(2) and 302(3), together, effected the Utah legislature’s purpose of banning abortions throughout pregnancy. Although the legislature included a severability clause, the Utah Supreme Court has repeatedly ignored such clauses in the name of legislative intent. We conclude that severing section 302(3) from section 302(2) would undermine legislative intent. Section 317.2, which provides a specific contingency for the scenario at hand, bolsters this conclusion. The district court held that section 302(2) is unconstitutional, and defendants do not appeal that holding. Section 302(3), as an integral, unseverable post-20 week analog to section 302(2), must also be invalidated. We hold that section 302(3) is not severable from 302(2) and reverse the district court’s contrary holding.
B. Section 315: Serious Medical Emergency Exception
Plaintiffs also argue that Utah Code Ann. § 76-7-315 is not severable from the sections of the abortion statute that the district court invalidated. Section 315 provides:
When due to a serious medical emergency, time does not permit compliance with Section 76-7-302, Subsection 76-7-304(2) or Subsection 76-7-305(2), the provisions of those sections do not apply.
We have held that section 302(3) is invalid. The district court held that the pre-20 week abortion ban in section 302(2) and the spousal notification portion of section 304(2) were unconstitutional, and defendants do not appeal these holdings. We nonetheless conclude that the remainder of section 315 can stand without violating legislative intent. Section 315 provides medical professionals with greater flexibility and discretion when confronting a serious medical emergency. While the invalidation of sections 302(2), 302(3), and part of section 304(2) necessarily reduces the reach of section 315, the remainder of section 304(2) (parental notification) and section 305(2) (informed consent requirements) remain valid and continue to impose requirements that, in the face of a medical emergency, could be quite costly and cumbersome. It would therefore frustrate legislative intent if we concluded that section 315 was invalid in its entirety simply because we invalidated some of the provisions cited therein. We hold that section 315 is severa-ble from the invalidated portions of the statute.
III.
FETAL EXPERIMENTATION BAN
Section 310 provides: “Live unborn children may not be used for experimentation, but when advisable, in the best medical judgment of the physician, may be tested for genetic defects.” Utah Code Ann. § 76-7-
Plaintiffs assert that the fetal experimentation statute should be deemed void for vagueness, contending that the district court’s interpretation of the statute contradicts its plain meaning and legislative history and violates established rules of statutory interpretation. Plaintiffs also reassert their argument that the statute violates their constitutionally protected right to privacy. After a de novo review, Horowitz v. Schneider Nat’l, Inc.,
Vague laws frustrate several principles that have been sturdy pillars of our legal system.
“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law im-permissibly delegates basic policy matters to policemen, judge, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”
Village of Hoffman Estates v. Flipside,
We “indulge a presumption” of constitutionality when reviewing vagueness challenges to state statutes. Id. In a civil context, where the enactment does not implicate constitutional rights, a court should find a statute unconstitutionally vague only if “the enactment is impermissibly vague in all of its applications.” Hoffman Estates,
Section 310 bans “experimentation” on “live unborn children.” “Experimentation” is an ambiguous term that lacks a precise definition. What tests and procedures constitute experimentation? There are at least three possible answers: 1) those procedures that a particular doctor or hospital have not routinely conducted; 2) those procedures performed on one subject that are designed to benefit another subject; and 3) those procedures that facilitate pure research and do not necessarily benefit the subject of experimentation. See Lifchez v. Hartigan,
The Supreme Court recognizes “that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Hoffman Estates,
Defendants argue that the district court cured the statute’s ambiguity and vagueness by interpreting “used for experimentation” as prohibiting only those experiments that do not benefit either mother or fetus. We reject this argument for three reasons. First, the district court rewrote the statute. Second, the district court’s interpretation contradicts the legislative history, thereby violating steadfast rules of statutory interpretation. Finally, even as interpreted by the district court, “used for experimentation” is unconstitutionally vague.
In an effort to cure the fatal ambiguity in the statute, the district court grafted its own meaning onto the statute’s language. We do not understand how “used for experimentation” translates to “tests or medical techniques which are designed solely to increase a researcher’s knowledge and are not intended to provide any therapeutic benefit to the mother or child.” Jane L. II,
In rewriting the statute, the court also contradicted legislative intent. The Utah legislature enacted the fetal experimentation ban in its present form in 1974. The same legislature enacted two choice of method provisions, which were amended in 1991 and are now codified at Utah Code Ann. §§ 76-7-307 and 308.
The district court’s interpretation also violated rules of statutory interpretation. “As a general principle of statutory interpretation, if a statute specifies exceptions to its general application, other exceptions not explicitly mentioned are excluded.” United
Finally, the district court interpreted “used for experimentation” to prohibit only those procedures that provide no benefit to mother or fetus. Although curing some of the imprecision in the term “experimentation,” this construction is not free from ambiguity. What does “benefit” mean? If the mother gains knowledge from a procedure that would facilitate future pregnancies but inevitably terminate the current pregnancy, would the procedure be deemed beneficial to the mother? Does the procedure have to be beneficial to the particular mother and fetus that are its subject? In vitro fertilization exposes and fertilizes several ova to assure that one can be implanted in the mother. The other ova are destroyed. Would this common procedure be proscribed under the statute because some ova are subjected to non-therapeutic experimentation, i.e., of no benefit to the ovum or the mother? Accordingly, we conclude that the district court’s interpretation is itself unconstitutionally vague.
The criminal law must clearly demarcate criminal conduct from permitted action. Section 310 does not do that here. During the course of the proceedings, one doctor testified that he had developed a procedure to cure a fatal abnormality in a fetus. Not only was he unsure whether this treatment constituted experimentation for the purposes of the statute, but he was also reluctant to testify for fear that his actions “could theoretically be considered illegal under the Utah statute that was in effect” when he began the treatment. ApltApp. at 182. Because of the vagaries of the statute, individuals like this doctor may avoid conduct that would not be proscribed in order to avert criminal liability to the detriment of beneficial research. By failing to draw a clear line between proscribed and permitted conduct, section 310 violates established legal principles that provide a crucial backdrop to our criminal legal system. We hold section 310 unconstitutionally vague and reverse the district court’s decision with regard to this claim.
IV.
CHOICE OF METHOD PROVISIONS
Sections 307 and 308 require that a doctor perform a post-viability abortion in a manner that “will give the unborn child the best chance of survival” unless that method would cause “grave damage to the woman’s medical health.” Utah Code Ann. §§ 76-7-307 and 308.
In Thornburgh, the Supreme Court invalidated a Pennsylvania choice of method statute.
Sections 307 and 308 require that the doctor focus on the unborn child’s chances of survival until the risk to the woman’s health becomes grave. In demanding that the woman’s health be in grave danger before prevailing under the choice of method requirements, sections 307 and 308 are significantly more burdensome than the statute in Thornburgh. In Thornburgh, the woman’s health risks outweighed those of the unborn child if the particular “method or technique would present a significantly greater medical risk to the life or health of the pregnant woman.” Id. at 768 n. 13,
Defendants argue that the relevant portions of Thornburgh were uprooted by Casey and cannot legitimately support a decision to hold sections 307 and 308 unconstitutional. Specifically, defendants assert that Thorn-burgh was a progeny of Roe and that Casey's discrediting of some aspects of Roe necessarily discredits Thornburgh. We disagree. While we recognize that Casey rejects Roe’s trimester framework, Thornburgh does not rely decisively on that framework in invalidating the Pennsylvania statute. Casey ad
We also reaffirm .Roe’s holding 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.’
Casey, — U.S. at-,
In invalidating Pennsylvania’s choice of method statute, Thornburgh emphasized that the woman’s health must be the physician’s “paramount consideration.” Thornburgh,
Sections 307 and 308 dictate that the unborn child’s life must take precedence over the woman’s health absent a risk of “grave damage to her medical health.” “Grave damage” is clearly a higher standard than the Supreme Court has articulated. According to Casey, Thornburgh, and Roe, concern for the “preservation” of a woman’s health suffices to elevate her liberty interests decisively above those of the state or the unborn child. By requiring a woman to suffer “grave damage” to her health before her liberty interests predominate, the Utah legislature violated those portions of Roe and Thornburgh that Casey reaffirmed, and unconstitutionally devalued a woman’s privacy rights.
Defendants argue in the alternative that the Court in Thornburgh invalidated the Pennsylvania statute because it required “the mother to bear an increased medical risk in order to save her viable fetus,” Aplee.Br. at 36-37 (quoting Thornburgh,
We hold that sections 307 and 308 impose an undue burden upon a woman’s right to choose to terminate a pregnancy, and we reverse the district court’s disposition of this claim.
V.
Law is a dialectic. Legislatures speak and courts review. In the instant case, the district court violated this separation of powers by ignoring legislative intent with regard to the severability of section 302(3) and rewriting the fetal experimentation ban in section 310. We also hold that the choice of method provisions in sections 307 and 308 unconstitutionally encroach upon the woman’s liberty interests. We therefore REVERSE the district court’s disposition of these claims. We reject plaintiffs’ argument that the serious medical emergency exception, section 315, is not severable from the invalidated portions of the statute and therefore AFFIRM the district court’s decision with regard to that section.
We AFFIRM in part and REVERSE in part.
Notes
. We note in passing that we asked the parties to brief a jurisdictional issue at a preliminary stage of the appellate proceedings. We are satisfied that any jurisdictional problems have been corrected and that appellate jurisdiction is present. The parties do not argue to the contrary.
. Utah Code Ann. § 76-7-302. Circumstances under which abortion authorized.
(1) An abortion may be performed in this state only by a physician licensed to practice medicine under the Utah Medical Practice Act or an osteopathic physician licensed to practice medicine under the Utah Osteopathic Medicine Licensing Act and, if performed 90 days or more after the commencement of the pregnancy as defined by competent medical practices, it shall be performed in a hospital.
(2) An abortion may be performed in this state only under the following circumstances:
(a) in the professional judgment of the pregnant woman’s attending physician, the abortion is necessary to save the pregnant woman's life;
(b) the pregnancy is the result of rape or rape of a child, as defined by Sections 76-5-402 and 76-5-402.1, that was reported to a law enforcement agency prior to the abortion;
(c) the pregnancy is the result of incest, as defined by Subsection 76-5-406(10) or Section 76-7-102, and the incident was reported to a law enforcement agency prior to the abortion;
(d) in the professional judgment of the pregnant woman’s attending physician, to prevent grave damage to the pregnant woman’s medical health; or
(e) in the professional judgment of the pregnant woman's attending physician, to prevent the birth of a child that would be bom with grave defects.
(3) After 20 weeks gestational age, measured from the date of conception, an abortion may be performed only for those purposes and circumstances described in Subsections 2(a), (d), and (e).
(4) The name of a victim reported pursuant to Subsection (b) or (c) is confidential and may not be revealed by law enforcement or any other party except upon approval of the victim. This subsection does not effect or supersede parental notification requirements otherwise provided by law.
. Given our holding that section 302(3) is not severable and is therefore invalid, we need not address plaintiffs’ argument that Utah's post-20 week criminal ban on abortions in section 302(3) is an imperfect proxy for viability and therefore violates the Supreme Court's holding in Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. -,
. Because severability is an issue of state law, the district court in Doe v. Rampton necessarily applied Utah law to determine severability.
. See text of statutes infra at 22-23 n. 6.
. Section 310 is a poorly drafted statute, and we recognize that the second clause is only arguably an exception. However plaintiffs, Aplt.Br. at 40-41, and defendants, Aplee.Br. at 45 n. 18, agree that this clause is an “exception.” We therefore assume that the genetic testing clause constitutes an exception.
. Utah Code Ann. § 76-7-307 provides:
If an abortion is performed when the unborn child is sufficiently developed to have any reasonable possibility of survival outside its mother’s womb, the medical procedure used must be that which, in the best medical judgment of the physician will give the unborn child the best chance of survival. No medical procedure designed to kill or injure that unborn child may be used unless necessary, in the opinion of the woman's physician, to prevent grave damage to her medical health.
Utah Code Ann. § 76-7-308 provides:
Consistent with the purpose of saving the life of the woman or preventing grave damage to the woman’s medical health, the physician performing the abortion must use all of his medi*1503 cal skills to attempt to promote, preserve and maintain the life of any unborn child sufficiently developed to have any reasonable possibility of survival outside of the mother's womb.
. The Pennsylvania statute invalidated in Thorn-burgh read as follows:
"Every person who performs or induces an abortion after an unborn child has been determined to be viable shall exercise that degree of professional skill, care and diligence which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted and the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless, in the good faith judgment of the physician, that method or technique would present a significantly greater medical risk to the life or health of the pregnant woman than would another available method or technique and the physician reports the basis for his judgment.”
Thornburgh v. American College of Obstetricians,
. We recognize that Casey overruled those portions of Thornburgh that deal with informed consent. See Thornburgh,
. Defendants concede that it would be antithetical to legislative intent to assure survival of the unborn child pursuant to sections 307 and 308 when the motivation for the abortion was to prevent “the birth of a child that would be born with grave defects." Utah Code Ann. § 76-7-302(3). Aplee.Br. at 33-34 n. 12.