*1 CENTER FOR MEDICAL RICHMOND Fitzhugh, M.D.,

WOMEN; G. William themselves, staffs, their

on behalf Plaintiffs-Appel patients,

and their

lees, HICKS, capacity in his official

David M. Attorney for the

as Commonwealth Kizer,

City Richmond; A. Wade capacity

his official Common Attorney County of

wealth for

Henrico, Defendants-Appellants. Foundation, R. In-

Horatio Storer

corporated, Support- Amicus

ing Appellants,

Physicians Reproductive For Choice Cullins, Health;

And E. Vice Vanessa Affairs, Medical

President for

Planned Parenthood Federation Forty-Two Phy-

America; Individual

sicians, Appellees. Supporting Amici 03-1821,

Nos. 04-1255. Appeals,

United States Court

Fourth Circuit. 26, 2004.

Argued: Oct. Decided: June Thro, Eugene Deputy State So- William

licitor, Attorney General Office Richmond, Virginia, Appel- for Virginia, lants. Novak, Reproduc- for

Suzanne Center York, Policy, tive Law and New New York, Appellees.

Jerry Kilgore, Attorney General W. Jagdmann, Dep- Virginia, Judith Williams General, Johnson, E. uty Attorney David General, M. Ma- Attorney Edward Deputy General, con, Attorney Assistant Senior Attorney Stuchell, Assistant James C. Meredith, General, Anthony Assistant P. Richmond, General, Virginia, Attorney Appellants. *2 alive, Smith, Reproduc- completely but who has been

Priscilla J. Center York, mother, Policy, New New expelled tive Law extracted or from its York, (ii) Appellees. infant, kill re- does such occurs gardless whether death before Jr., Coleson, E. Bopp, James Richard expulsion or after or from its extraction Marzen, Gallant, Jeffrey P. Thomas J. completed. mother has been Haute, Bostrom, Terre Bopp, Coleson Indiana, Supporting Appel- for Amicus 18.2-71.1(B). § “human phrase Id. The lants. infant defined who has been born alive” is as Cohen, Law Project,

David S. Women’s product conception of human that has Pennsylvania; Philadelphia, Susan Frietsche, substantially Stacey Young, completely I. Women’s Law been or ex- Project, Pittsburgh, Pennsylvania, mother, for Am- pelled or extracted from its re- Supporting Appellees. ici gardless pregnancy, of the duration of expulsion which after such or extraction MICHAEL, NIEMEYER, Before any breathes or shows other evidence of MOTZ, Judges. Circuit heart, beating pulsa- life such cord, tion of the umbilical or definite opinion. published Judge Affirmed muscles, voluntary movement of wheth- majority opinion, wrote the in MICHAEL er or not the umbilical cord has been cut joined. Judge Judge MOTZ placenta or the is attached. dissenting opinion. NIEMEYER wrote a 18.2-71.1(0). § Id. The Act defines the OPINION phrase “substantially expelled or extracted MICHAEL, Judge. Circuit (i) mother” as when “the in- [the] body fant’s entire head is outside the challenge This case involves a facial un- the mother” the case of a headfirst Virgi- der the Fourteenth Amendment to a (ii) attempts presentation, “any part nia statute that to when of the criminalize abortion,” “partial birth which the statute trunk past infant’s the navel is outside the “partial terms birth infanticide.” a body of the mother” the case of breech summary judgment order the district court 18.2-71.1(D). § presentation. Id. declared the statute invalid for several rea- Act provides following exception to the sons. affirm We because lacks an ex- general prohibition: ception protect to woman’s health. prohibit This section shall not the use that, physician any procedure

I. judgment, reasonable medical is neces- mother, sary prevent the death of the A. long every so as the takes Chapters 961 and 963 of the 2003 medically step, reasonable consistent Virginia Assembly Acts of the General procedure, preserve with such' the life (“the Act”) it a 4 felony make Class for a procedure and health of the infant. A person knowingly perform “partial birth necessary pre- shall not be deemed § infanticide.” Ann. A Va.Code 18.2-71.1. complet- vent the death of the mother if felony in punishable by Class is delivery ing living infant prison up years term of to ten and a fine prevent the death of the mother. $100,000. § toup Id. 18.2-10. The Act 18.2-71.1(E). “partial defines birth infanticide” as § Id. The Act’s ban of cer- (i) any procedures provide tain abortion does not deliberate act is intended to kill a human infant who has been born for instances in which an fetus, D E necessary, proceeds an intact & one banned otherwise judgment, pre- ways. In the case of a vertex appropriate of two Indeed, the Vir- a woman’s health. serve physician collapses presentation, Assembly rejected proposed ginia General extracts the en- fetal calvarium then *3 provided that would amendments through the cervix. In the case tire for some circum- statutory exception presentation, of a breech health was at when a woman’s stances cervix, trunk pulls through the fetal Hicks, v. Richmond Med. Ctr. risk. See calvarium, collapses the fetal and then (E.D.Va.2004). F.Supp.2d through completes extraction of the fetus to include a Assembly failed The General prohibited the cervix. A second variation an earlier exception 'though even (D by the Act is the dilation and extraction banning late-term abor- Virginia statute X) procedure, & which is similar to the down because it lacked tions was struck D extraction variant of the intact & breech when continuation exception for instances respects except E in all material a threat to woman’s pregnancy poses of a repositioning intentional of the involves the Med. Ctr. health. See Richmond Because presentation. fetus to breech (4th Gilmore, 224 F.3d Women procedures D E D X the intact & and & Cir.2000). House of Dele- The similar, they so are often referred to are amendments rejected proposed also gates interchangeably.. variation.prohib- A third prohibi- Act’s have limited the Act the D & E in ited involves Hicks, postviability abortions. See tion outside of which fetal disarticulation occurs F.Supp.2d at 502. body. gener- the woman’s Disarticulation challenged Act this case excludes The (the ally beyond occurs the cervical os following “partial definition cervix) portion, opening, lower or of the infanticide”: birth against a result of traction the cervix. (i) curettage proce- the suction abortion However,-disarticulation may occur outside (ii) dure, aspiration the suction body there is little or of the woman’s when (iii) and evacua- procedure, the dilation space between the cervical os and the (D E) no in- ] tion &[ (the canal) (disarticula- vaginal- introitus vaginal volving [ dismemberment tion) removal from prior prolapses (emerges) of the fetus ] when the cervical os (iv) mother, com- body (The [and] Act vaginal introitus. outside delivery living of a human infant pleting certain criminalizes the treatment of also any severing the umbilical cord incomplete miscarriages.) completely deliv- infant who has been Fitzhugh, M.D. is a William G. Plaintiff ered. gynecolo- certified obstetrician and board 18.2-71.1(B). By § except- Ann. Va.Code practice is licensed to medicine gist who E only a variant of the D & ing single Fitzhugh Virginia. performs abortions disarticula- involving fetal procedure, he twenty pregnancy; weeks of through from the woman’s prior tion to removal any postviabili- not perform therefore does D E body, prohibits Act all other & of the abortions he ty abortions. Some statutory meeting variations definition intact D & Es and performs, particularly prohib- infanticide.” One “partial birth oc- D & Es which fetal disarticulation E, D ited variant is the intact body, pro- of the woman’s curs outside and in involve disarticulation does Fitzhugh performs Act. Dr. by the hibited from the uterus which the fetus is removed premises abortions on the of these rather than through pass the cervix in one some Medical Center plaintiff Depending presentation on the Richmond several. (RMCW) Di- preservation Women where he is Medical lacks an for the of a rector. Summary judgment woman’s health. “shall rendered forthwith” when the

B. proffered “show[s] evidence there is Act was scheduled to take effect on genuine any no issue as to material fact 18, 2003, July 2003. On June RMCW moving party and that the is entitled to a Fitzhugh complaint against and Dr. filed a judgment as a matter of law.” Fed. (“the Attorneys two Commonwealth’s 56(c). judg R.Civ.P. We conclude that the Commonwealth”) in the United States Dis- ment of the district court must be affirmed trict for the Eastern District of Court [Supreme] because “the un Virginia, challenging the Act’s constitution- *4 equivocally Stenberg v. held [in ality seeking declaratory injunc- 914, 2597, 530 147 U.S. 120 S.Ct. L.Ed.2d tive relief to block its enforcement. The (2000) any partial-birth 743 ban on ] court granted plaintiffs’ motion for a abortion an exception must include for the injunction preliminary against enforcement health of the mother in order to be consti 1, July of the Act on 2003. After the tutional.” Richmond Med. Ctr. Wom for parties in engaged discovery, plaintiffs (4th Gilmore, 376, en v. 219 F.3d summary filed a judgment motion for Cir.2000) J., (Luttig, concurring). 25, 4, 2004, September February 2003. On granted summary the district court judg- In Carhart the Court concluded ment to plaintiffs, declaring the Act statutory Nebraska’s ban on certain permanently enjoin- unconstitutional and procedures, including abortion the intact D Hicks, ing its enforcement. See 301 & X& violated the federal procedure, E/D at F.Supp.2d 517-18. The court held the independent Constitution for “at least two facially Act invalid under the Fourteenth reasons.” 530 at U.S. 120 S.Ct. 2597. independent Amendment for several rea- (1) imposed The statute “an undue burden (1) exception sons: it lacks an to protect a ability on a woman’s D E choose a & (2) health, places woman’s it an undue abortion, thereby unduly burdening the burden on a right woman’s to decide to (2) right to choose abortion itself’ and (3) abortion, have an exception its life is “any exception preservation lacked for the (4) inadequate, it bans—in the absence of a health of the mother.” Id. compelling state interest —other gyne- safe (internal omitted). Thus, quotation marks cological procedures such as those used lack exception of a health pro alone (5) certain miscarriage presentations, and vides a sufficient basis for invalidating re it unconstitutionally vague. Id. at 513- right strictions on a woman’s to have an 17. In its awarding summary judg- order opinion abortion. The explained Carhart ment, the district court struck certain evi- governing requires “the standard Commonwealth, proffered by dence exception necessary, appro ‘where it is specifically, complete testimony of one priate judgment preserva expert, testimony selected of another ex- mother,’ tion of the life or health of the pert, and several exhibits and other docu- this Court has made clear that may a State ments. The appeals. Commonwealth

promote endanger but not a woman’s II. regulates health when it the methods of (quot abortion.” Id. at 931 120 S.Ct. 2597 argues The Commonwealth that the dis- ing Planned Casey, trict Parenthood v. granted summary court erred when it 833, 879, judgment plaintiffs ground to the on the U.S. S.Ct. 120 L.Ed.2d (1992)). Thus, the Act is unconstitutional because it a state cannot force and amniotic coagulation intravascular abortion that to use methods women embolus), possibility their health than fluid eliminates greater risks present id., methods, arising from retained regardless complications serious see available other tissue, viability, risk of em reached fetal and eliminates the the fetus has of whether (“Since into the woman’s at 120 S.Ct. bolism cerebral tissue see id. 932, 935, in order to exception a health blood stream. Id. requires law regu- Third, postviability even a the risk of cervical validate 2597. reduces lation, requires the same injury involving it at a minimum nonviable circumstances regulation.”)-. previability fetuses, hydrocephaly, respect such as fetuses with of the fetal calvarium because reduction contended of Nebraska The State through pass allows a smaller diameter to X D & & the intact Carhart E/D cervix. Id. the woman’s procedure could be outlawed Fourth, X D & & intact E/D necessary. no health special mitigate can risks disagreed after con- Supreme Court faced women with uterine scars prior wide-ranging review of medical ducting a by induction would be for whom abortion D evaluating the intact & authority E/D Id. These factors especially dangerous. review, course of procedure. X *5 any statute led tüe Court to hold the district court supplemented the Court D X proce the intact & & prohibiting E/D significant from record with information necessarily significant “creates dure Extra-record array of medical sources. because “substantial medical health risk” included by the Court considered sources utility authority” procedure’s confirms .the journals relating to textbooks and medical health. Id. at safeguarding women’s abortion, obstetrics, the gynecology; and 938, Any such statute S.Ct. 2597. developed prior “partial factual records excep contain health [therefore] “must cases; and amicus briefs abortion” birth fact that the Nebraska tion.” Id. The (with authority) citations to. sub- here —contained an the Act statute —like organizations. mitted on behalf medical had no protect woman’s life exception 923-29, 932-36, 120 S.Ct. 2597. at See id. holding that a free bearing the Court’s available, information on all of the Based standing exception is constitutional health medi- concluded that substantial the Court 921-22, 120 id. at S.Ct. ly required. See authority supports proposition the cal 2597. procedure X offers intact D & & the E/D argues that the differences The dissent safety advantages health significant Nebraska statute the Act the between of late-term methods over alternative exempt the Act from Car- sufficient to (and the important), most First abortion. 629-31, 638- at holding. post See hart’s permits X procedure intact D & &. E/D the two fetus, argument fails because 39. This cervix in one pass through with, key begin To similarities. laws 927, at rather than Id. pass several. Act, law, applied Nebraska like operating reduces 2597. It therefore S.Ct. Car- postviability. as well previability as trauma, time, loss, exposure to anes- blood “aggravates that this hart makes clear infection; it also thesia, and the risk presented” because problem constitutional (1) the risk of instrument-inflicted reduces regulating (2) a state’s “interest cervix and to the damage uterus than considerably weaker previability is fragments. bone injury sharp fetal 930, Second, 530 U.S. postviability.” 2597. Id. at S.Ct. only Fitzhugh performs (Again, most common prevents the procedure abortions.) addition, (disseminated In previability mortality causes of maternal Act criminalizes some of the same medical medical the fetus will often be procedures (specifically, D “substantially expelled intact & & or extracted” from E/D Xs) criminalized, body, that Nebraska had and the woman’s and the fetus will often procedures these same were the focus of show some “evidence of life” at the time Court’s attention Carhart. Admit- act” commits “deliberate tedly, law in scope Nebraska’s was broader that is “intended to” “does” terminate than the one pregnancy. § we consider here: the Ne- Ann. Va.Code 18.2- (D). 71.1(B),- (C), prohibit braska law was read to both D gets & The dissent no- by D Es disarticulation and intact & where contending killing is the “[i]t E/D Xs, fetus, & see id. at where- of the procedure,” not the abortion 631; Act purports except the former that is outlawed the Act. Post at reach, § from its see Ann. post (arguing Va.Code 18.2- see also at 645 n. 5 71.1(B). event, any Carhart Court’s Nebraska found “[t]he unconstitu- analysis exception require- of the health tional materially Carhart differs exclusively ment dealt application with its from the statute” because “the D procedure. the intact & & X proscribed See former certain abortion proce- E/D 930-38, U.S. 120 S.Ct. 2597. Car- dures only while the latter bans the de- fetuses”). hart applied thus the health living re- struction of Whatever quirement only criminalize, a subcategory might else the Act it most proscribed by total conduct certainly the Nebraska criminalizes the intact D & E/D Specifically, statute. the Court addressed X procedure. As the Carhart Court (and question of whether a exception explained I), part as we note in (or skull) was constitutionally required in con- fetal calvarium collapsed dur- text of Nebraska’s attempt to criminalize D ing procedure, the intact & & X E/D *6 the intact D procedure. 927-28, & & X 2597, Jus- U.S. at 120 during S.Ct. and E/D tice highlighted O’Connor the procedure, Court’s fo- this which results the demise by explaining cus if fetus, that a statute “limited of the the may not be “com- application D to the & & X pletely [intact E/]D extracted expelled” or from the procedure and an exception included body, § woman’s Va.Code Ann. 18.2- mother, 71.1(B). ... health of the question Fitzhugh performs Dr. very this presented quite procedure, be different.” Id. Act, which would violate the 950, (O’Connor, at J., 120 2597 S.Ct. con- the dissent acknowledges. post See at added); curring) (emphasis see also id. at 636-38. 948, (O’Connor, J., 120 S.Ct. 2597 concur- It is also undisputed that the Act makes

ring) (explaining that lack of “[t]his provision no for those situations health exception necessarily renders the D the intact & X “is E/D&. unconstitutional”). statute necessary, in appropriate judg medical

Indeed, it disputed ment, is not in this case preservation for the that the Act—like the Nebraska statute in health of the mother.” Casey, 505 at U.S. prohibits 879, (internal D the intact & 112 & S.Ct. 2791 quotation E/D Carhart — procedure. omitted). X Reply See Br. Appellants marks enough This alone is 2 (explaining that the Act “does not affirm the judgment district court’s invali allow the D procedure, & X dating because, or what is again, any the Act statute sometimes referred to as an D ‘intact & prohibiting the D X proce & & intact E/D ”);E’ id. at (identifying 3 central dure necessarily “[t]he significant “creates a issue in this case” as [Virginia] “whether health risk” and therefore “must contain a may prevent use of the D & X or intact D exception.” health 530 U.S. E” procedure). 938, 120 & In the course of this S.Ct. 2597.

625 se constitutional per as a requirement tion argues that sum The Commonwealth based on substantial is rule. rule This because improper judgment mary (from array broad authority medical medi substantial present did not plaintiffs sources) by recognized that authority proposition for the cal authority Court, medical body and particu in this needed exception is health every reproduced not have does concluded court district lar statute. to a birth challenge “partial subsequent point. beside the otherwise, except but lacking a health abortion” See, Planned Parenthood e.g., ion.1 excep the health established For Carhart "a smaller reduction allows cause calvarium presented medi- plaintiffs nevertheless 1. The cervix, through re- pass thus summary judgment record diameter authority cal also injury,” while ducing that considered risk cervical strikingly similar to that is example, surgi- greater For allowing in Carhart. retain Supreme Court al., Paul, deProsse Fitzhugh control); Dr. and Charles Dr. Maureen et both cal A Clini- testified, on their (the expert) based plaintiffs’ Surgical cian’s Guide To Abortion Medical And gy- and experience in obstetrics lengthy (1999) (noting physicians own often 133-35 sources, that necology and on other collapse calvari- compress the fetal must procedures & X abortion D cervix). the intact & E/D through the to facilitate removal um most safest and Act are the prohibited contrast, proffered the Commonwealth In women. medically appropriate for some proceedings summary judgment in the Giles, expert, testi- a defense Dr. Harlan Even expert (physician) witnesses testimony two (1) & X as & D fied E/D intact opinion no maternal who offered repre- Fitzhugh’s declaration described in necessary In addi exception is here. medically pro- appropriate” "safe sents a and tion, proffered supporting the Commonwealth cedure; (2) be allowed physicians should Congressional Record materials from & D flexibility perform the intact E/D testimony of included the committee OB/ do otherwise they think to procedure if X The district court excluded professor. GYN l.A. endanger health." the woman’s "would por testimony expert’s selected all of one 483, 522. other's, concluding it was tions of addition, was submitted an amicus brief under Kumho inadmissible unreliable and large group of of a court on behalf to this Carmichael, U.S. Co. v. Tire 3,400), (over including Physicians physicians (1999), Dau L.Ed.2d S.Ct. (PRCH), Reproductive Choice Health Pharmaceuticals, Inc., 509 Dow bert v. Merrell reproduc- expertise in the field who 125 L.Ed.2d U.S. procedures. and abortion health care tive Hicks, (1993). at 511-12. F.Supp.2d See *7 & D & agree that the intact amici E/D These Congressional Record The materials from proce- accepted medical procedure is an X hearsay. See as inadmissible were excluded Br. of available. often the safest dure that is de without if we assumed id. at 512. Even 9, They 12-23. et al. Curiae PRCH Amici its dis abused ciding district court that the their own opinions on base their medical excluding the Commonwealth's cretion' training, professional experience and clinical evidence, of the consideration opinion as variety medical sources they of cite change The not our-result. evidence would See, e.g., Stephen T. Chasen support. further in would at most evidence Commonwealth’s 's. al., 20 and Evacuation et Dilation on opinion of medical division dicate some Techniques, Operative Comparison Weeks: of “banning intact [the question whether 1180, (2004) Gyn. 1183 & Am. J. 190 Ob. endanger procedure could X]& D & E/D & X and D E D & (finding that intact E/D 938, U.S. at 530 women’s health.” procedures are both safe by disarticulation emphasized in As the Court 2597. 120 S.Ct. al- be recommending that physicians opinion” is Carhart, "unanimity of medical procedure is best to decide lowed required because “intraoperative patient any given based most opinion ... at division Grimes; Continuing factors”); A. David signals the uncertainty, a factor 747, means Abortions, 748 280 JAMA Late Need for risk, Where not its absence.... presence -of & X (1998) D & (explaining that intact E/D opinion be- body medical significant presence of especially useful "may be greater may bring with it procedure anomalies, lieves hydrocephalus,” be- such fetal 626

Heed, (1st Cir.2004) (ex 53, 390 F.3d croft, 957, (N.D.Cal. 59 F.Supp.2d 320 1013 plaining parental 2004) that even a notification (noting that Carhart dispels charac statute “must contain a exception health in terization of the health exception inquiry order to survive challenge”), constitutional fact, “as one pure limited to the record granted cert. sub nom. Ayotte v. Planned case”); particular WomanCare, [the] — Parenthood, U.S. -, 2294, 125 S.Ct. Granholm, P.C. 849, v. F.Supp.2d — L.Ed.2d - (2005); Planned Parent (E.D.Mich.2001) (invalidating “partial birth Wasden, (9th 908, hood v. 376 F.3d abortion” statute because “there are no Cir.2004) (characterizing health exception genuine fact, of material issues with re per as “a requirement”), se constitutional spect to the lack a health exception -U.S. denied, 1694, cert. -, the statute” and because the (Mar. 28, 2005); 161 L.Ed.2d 524 Women’s Court’s decision in Carhart is “control Med. Corp. Taft, 436, v. 353 F.3d Prof'l ling”); Summit Med. Siegel Assocs. v. (6th Cir.2003) 444-45 (explaining that Ca man, 1307, 130 F.Supp.2d. 1309, 1314 sey and require Carhart excep health (M.D.Ala.2001) (invalidating “partial birth tion); A Woman’s Choice-E. Side Wom abortion” statute “on the pleadings” and Newman, en’s 684, Clinic 305 F.3d 688 concluding that it was unconstitutional un (7th Cir.2002) (noting that Carhart Court “[f|or der Carhart its lack of a health- was “of the view [the] constitu alone”); exception Underwood, Daniel v. tionality laws [of regulating abortion] must (S.D.W.Va. 102 F.Supp.2d 681, 684 fact, assessed at the level of legislative 2000) (concluding that the state’s “ban on adjudicative rather than fact determined ‘partial-birth provide abortion’ fails to an by more than judges. Only district exception for preservation treating the matter legislative as one of health of the woman and therefore violates fact produces nationally ap uniform the United States Constitution” and ex proach demands.”); [Carhart ] plaining that “compels Carhart con th[is] Owens, Planned Parenthood v. 287 F.3d clusion”). (10th Cir.2002) (explaining that sum, already established, Carhart has Carhart requires “state regula based on substantial medical authority, tions provide [to] pro for the that a statute prohibiting the intact D- & tection of pregnant women”); the health of & X necessarily E/D Reproductive Health Servs. Planned “creates a Nixon, significant health risk” Parenthood v. F.Supp.2d (W.D.Mo.2004) “must 994-95 contain excep- [therefore] a health (invalidating “par tial birth tion.” abortion” 530 U.S. at “[b]ecause there genuine are no issues of Because the material Act lacks a exception, fact as to presence of a health excep it is unconstitutional on its face. tion, *8 Court, requires [which pursuant the] III. Carhart, v. Stenberg [to] conclude that unconstitutional”); [statute] The Commonwealth argues also Planned Parenthood Fed’n Am. v. Ash that the district court erred failing in safety patients some explains for certain may circumstances turn out to be view, supporting reasons so, that right. we If then the of a absence health say presence cannot that the exception of a different place will women at an unneces- Rather, by proves

view contrary. itself sary tragic risk of consequences. If the uncertainty significant means a they likeli- wrong, simply will hood that those who believe that [intact D turn out to have unnecessary. been E/|D 937, & X is a safer abortion method in Id. at 120 S.Ct. 2597.

627 Edwards, 27, F.2d T v. 974 pare Sojourner reviewing for standard proper apply Cir.1992) (5th (applying Casey’s undue alleging overbreadth. 30 challenges facial Salerno), Commonwealth, the court reference burden test without According to Moore, 12, 14 set forth the standard & n. 970 F.2d applied have with Barnes v. should Salerno, 739, curiam) (5th Cir.1992) 481 U.S. v. (per (applying States United 2 in (1987). 2095, L.Ed.2d 697 95 107 S.Ct. attack on an abortion to a facial Salerno that “[a] said There, Supreme Court regulation). is, Act legislative to a challenge

facial Second, contrary to the Common challenge course, difficult the most question of Saler suggestion, wealth’s challenger successfully, since mount context applicability the abortion no ’s circumstances no set of establish that must squarely confronted has not been be valid.” Act would which the exists under that claims court. The Commonwealth plaintiffs 2095. The Id. at (4th Hunt, F.3d 254 Cir. Manning v. 119 approach is proper that the counter 1997), that Salerno survived Ca we “ruled Carhart, Supreme Court used parties at 15. The sey.” Appellants Br. of applying Saler- the Court—without where however, not asked Manning, had us test—held circumstances” “no set of ’sno improp that the District Court “to decide banning certain statute the Nebraska re for erly applied the Salerno standard was unconstitutional procedures we challenges,” facial therefore view of a health ex- it lacked face because on its properly the issue not concluded 930-38, at 530 U.S. ception. See n. 119 F.3d at 268 Manning, us. before conclude, for the fol- 2597. We 120 Moreover, v. Cam in Planned Parenthood reasons, gov- not that Salerno does lowing (4th Cir.1998) blos, n. 359 1 155 F.3d regulat- challenge to a facial ern (en banc), specifically de full court our ing abortion. apply Salerno to decide whether clined Court First, Supreme in Carhart There, abortion. we regulating to statutes of Salerno so much as mention “without suggestion] “Manning [’s characterized chal invalid, in pre-enforcement ... held remains the the Salerno standard might statute that lenge, an abortion until standard governing [constitutional] at least some [had] as “dic holds otherwise” explicitly Newman, F.3d at 687. 305 applications.” Later, in n. 14. Greenville Id. at 381 ta.” similarly Earlier, Casey had the Court 222 F.3d 157 Bryant, v. Women’s Clinic result, As a seven disregarded Salerno. Cir.2000) (Greenville I), de (4th again we does Salerno have concluded circuits holding that question, clined to resolve to abortion challenges govern facial regula of a South Carolina aspects various 58-59; Heed, at 390 F.3d regulations. See licensing establishing standards tion 687; Par Newman, Planned at 305 F.3d under were constitutional abortion clinics (3d Farmer, 142 F.3d v. enthood standard Casey or Salerno either the Lawall, Cir.2000); Parenthood Planned id. challenge. See reviewing a facial (9th Cir.1999), amend 1022, 1027 F.3d regulation issue (concluding (1999); Med. F.3d 1042 Women’s by 193 ed apply stan [the when we “[e]ven survived Voinovich, F.3d Corp. v. Prof'l stan Casey,] a less deferential dard (6th Cir.1997); Bangerter, L. v. Jane ”). in Salerno articulated dard than that (10th Cir.1996); 1112, F.3d *9 v. Commis Women’s Clinic In Greenville Miller, 63 F.3d Parenthood Planned Cir.2002) (Green (4th sioner, F.3d 357 317 Cir.1995). (8th Fifth Only the 1452, 1458 aspects of II), further we addressed ville otherwise, but even suggested has Circuit Carolina to the South challenge the facial inconsistent. Com- circuit’s cases 628

abortion clinic licensing standards. We These questions are difficult and sensitive there, used the only Salerno test but in the sure, to be but give that does not context of reviewing a claim regu- that the dissent free license to accuse us of “tarring latory scheme allowed for the standardless [liberty] with political the color of ideolo- delegation of medical licensing authority to 645, gy,” post at “asserting] vacuously parties third violation of Yick Wo v. doing we are what Supreme Court Hopkins, 356, 1064, 118 U.S. 6 S.Ct. 30 commands,” 645, post deciding at this case (1886). II, L.Ed. 220 See Greenville 317 “personal convenience,” based on post at 361-63; J., F.3d at id. at 372 & n. 4 (King, 646, disregarding “the mind’s sense of dissenting). right,” 645-46, post at and “disconnecting Third, the recent case of Sabri v. Unit- our accepted norms,” from law moral post States, 600, ed 1941, 541 124 U.S. S.Ct. at 645. No matter what the says, dissent 1948-49, (2004), 158 L.Ed.2d 891 puts the simple truth is that we affirm the issue to rest recognizing the appropri- district court’s order striking down the Act ateness of facial challenges alleging over- for a single reason: the “lack of a health breadth in regulation abortion. exception necessarily renders the un- [Act] Sabri recognized Carhart, 948, constitutional.” 530 U.S. at facial appropriate attacks are only “lim- (O’Connor, 120 J., S.Ct. concurring). settings” ited include challenges to laws restricting abortion. Id. at 1949. In A woman’s interest in protecting her rejecting a criminal defendant’s facial chal- health is at the core of her “constitutional lenge to a statute, bribery federal liberty ... to have some freedom to termi- Court noted that facial challenges are to nate pregnancy.” Casey, her 505 U.S. at be discouraged “they because judg- invite 869, 112 2791. S.Ct. enduring princi- This ments fact-poor records” and “call for ple the dissent ignores either or relaxing requirements familiar of stand- —which ing.” recognized Id. at minimizes—was Nevertheless, Roe v. Wade, Court stated “recognized had the case in which the Supreme validity of facial attacks alleging over- Court struck down a Texas abortion stat- breadth ... in relatively few settings,” ute except[ed] “that criminality only and these challenges include to abortion a life-saving procedure on behalf of the regulations. Carhart). Id. (citing Thus, 113, 164, mother.” 410 705, U.S. 93 S.Ct. Sabri makes clear that Salerno’s “no set (1973). 35 L.Ed.2d 147 The Roe opinion of circumstances” standard apply does not recognized also that a state has an “inter- in the context of facial challenge, like the est in the potentiality of human life.” Id. here, one to a statute regulating a wom- But even when this interest is at high- an’s access to abortion. est point (subsequent to viability), a state may proscribe regulate only if IV. it provides an exception for instances As said, Justice O’Connor has is- “[t]he “where it necessary, is in appropriate med- sue of abortion one of the most conten- judgment, ical for the preservation of the tious and controversial in contemporary ... 165, health of the mother.” Id. at American society. presents It extraordi- S.Ct. 705. This principle constitutional narily difficult questions that involve ” was expressly reaffirmed the Court ‘virtually points irreconcilable of view.’ Carhart, 846, Casey, 879, 505 U.S. at S.Ct. U.S. (O’Connor, J., concurring) (quoting opinion reinforced U.S. Court, 2597). id. at 120 S.Ct. 2597. *10 injunc- the permanent affirm likewise Supreme We as did acknowledge,

We Act.2 of the against enforcement of tion and women Casey, “[m]en Court sup- disagree, and we can conscience good AFFIRMED disagree, about always shall pose some implications NIEMEYER, dissenting. spiritual Judge, moral and Circuit profound U.S. pregnancy.” terminating of enacted Virginia The Commonwealth if “abortion But even 112 S.Ct. it a criminal offense making a law principles most basic to our offensive [is] born infant who has been kill a “human to control our cannot morality ... alive, completely not been has but who apply to decision,” obligation is for our mother.” expelled extracted or personal lib- definition Supreme Court’s 18.2-71.1(B). The statute §Ann. Va.Code own moral mandate our “not to erty, has only a live fetus that protect applies today to Thus, we are bound Id. code.” halfway into the world— been delivered rule constitutional Carhart’s apply head is out- i.e., infant’s entire either “the must abortion” birth any “partial ban on or, for a mother” body of the side protect woman’s exception an include infant’s “any part of the delivery, breech by the forewarned have been health. We body of the navel is-outside past trunk' paid be cost will that “[s]ome Court 18.2-71.1(D). § In en- Id. the mother.” a con- implements or approves who anyone Virginia fo- provision, this narrow acting unpopular, it is where stitutional decision of infants life preserving cused on to work undermine refuses or who Nebraska law from the distinguishing its price force its reversal. or to decision as struck down unconstitutional statute ostracism, may it criticism or may be 914, 120 530 U.S. Stenberg v. 867, 112 2791. The S.Ct. violence.” Id. (2000), L.Ed.2d 743 extra “[a]n warned that further 'methods. array of abortion prohibited those who themselves paid by will be price be- the differences recognizing Without when results of the decision’s disapprove Virgi- and the statute tween the Nebraska terms, but of constitutional viewed outside taking into account without nia statute it, accept be- struggle to who nevertheless court, ma- panel before the .facts Id. at rule of law.” they respect the cause per se to create reads jority Carhart words have 867-68, 2791. These any ban requires constitutional rule climate, and today’s resonance special lan- to contain partial-birth on critical us remind they serve to mother, the health of guage protecting follow obligation our importance law, the of the scope regardless faithfully decisions facts, actual and the of the relevant nature Court. extend- exception. By so for a health need rule, the per se applying ing Carhart V. down mechanically strikes majority not con- Act does Because the unconstitutional, with- Virginia statute when circumstances tain an analysis. further out neces- procedures the banned addition, down to strike health, we a woman’s sary preserve majority challenge, the aon facial de- judgment order summary affirm our estab- disregard necessary to it found its face. unconstitutional claring the Act reason, same For this ing it down. its lack of Act is invalid for 2. Because the the Common- consider unnecessary us to to address the we decline exception, arguments. wealth’s other grounds for strik- alternative district court’s *11 lished reviewing standard for facial chal- Deferring momentarily the discussion of lenges of abortion laws in favor of a more whether per Carharb created se constitu- liberal standard of review. tional rule that statutes like the Nebraska statute must exception, health bold, The majority’s opinion is a new law Virginia sufficiently statute is different that, essence, constitutionalizes infanti- from the Nebraska any statute that would- cide of gruesome a most nature. The per se apply rule does not to it. The plaintiff Dr. William Fitzhugh, an abortion- statute in provided Carharb par- that “[n]o ist, sought, through lawsuit, this to protect tial birth abortion performed shall be ability his to perform by abortions crush- state,” this except to save the life of the ing infants’ skulls or dismembering their Carharb, mother. 530 U.S. at they limbs when away are inches from S.Ct. 2597 (quoting § Neb.Rev.Stat. 28- being fully delivered alive injury without 328(1)) (internal omitted). quotation marks the infant or to words, the mother. In his Supreme The Court read the Nebraska “My job any given patient is to termi- prohibit statute to an array of abortion pregnancy, nate that which means that I mebhods that included “dilation both don’t want a By live expanding birth.” (“D E”) evacuation” & and “dilation and extent, abortion rights to majority this (“D X”). extraction” & See id. at unnecessarily distances our jurisprudence S.Ct. 2597. D generally & E refers to from that of Supreme Court and from destruction of the fetus in the uterus and general norms of morality. I profoundly removal of destroyed and even dis- dissent today’s decision. fetus, membered while D X generally & I delivery refers to of the fetus into the vagina in whole or in part and then de- By casting holding Carharb’s in the it, stroying generally by sucking out the general most terms —that a may State contents of the skull by fetus’ crushing prohibit partial birth abortions without Important skull. us, to the case before providing an exception for the health of Supreme Court scope summarized the the mother —the majority rejects Virgi- of the by Nebraska stating law that it “of nia’s contention plaintiffs that the in this course, directly does not further an inter- case present did not “substantial medical est ‘in potentiality of human life’ authority for the proposition that a health saving the fetus in question from destruc- exception is needed in particular stat- tion, as it regulates only a method of per- ute.” majority reasons that “Carharb forming abortion.” Id. at established the exception require- 2597 (Supreme emphasis). Court’s per ment as a rule,” se constitutional ante and accordingly holds that “[b]e- Unlike statute, the Nebraska Virgi- cause the Act lacks a health exception, it is nia protects statute itself, face,” unconstitutional on its ante at 626. prohibiting its destruction when it has gross application This of Carharb fails to been delivered alive into the world or at take into account the nature of the Ne- halfway least into the world. Also in con- braska statute under consideration in Car- trast statute, the Nebraska only harb, the factual findings on which prohibited abortion procedures, Virgi- Supreme opinion, based and the nia excepts statute from its coverage vari- reach of Court’s actual hold- ous abortion prohibited by methods ing. Nebraska statute1 and limits itself pro- portion The relevant curettage suction proce- 00 dure, statutory excludes from the coverage (ii) the aspiration suction X intact D & statute bans the killing ginia E/D by prohibiting the fetus tecting *12 (or “the fetal born because calvarium procedure has been infant who a “human of skull) completely proce- during not been alive, collapsed [that] has is who but its mother expelled simplistic or a at Such extracted Ante dure.” occurs before death of whether regardless proce- and abortion the statute view of from its expulsion or extraction after or the Common- account for fails to dures Va.Code completed.” been has mother fetal crushing the that wealth’s evidence 18.2-71.1(B). Yet, only by it is § Ann. neither to terminate necessary skull is the is statute Virginia that the assuming delivery nor to intact after an pregnancy the statute that the Nebraska as same of safety advantages purported the obtain Virginia the down to strike majority is able procedure. X D & & the intact E/D analysis. using per its se statute incorrect relying on the In addition to characterizes majority repeatedly The Virginia statute is that assumption the banning abortion as Virginia statute Carhart, at issue to the statute identical “intact D & including the E/D procedures, depends on the analysis also majority’s 623-24, see also at ante procedure,” X& creat- that Carhart unsupportable premise and, 620-21, 624-25, rely- 619-20, ante at Correctly rule. per se constitutional ed characterization, analogizes the ing on that a “state holds that noting that Carhart Ne- to the unconstitutional statute Virginia of to use methods statute, Court women force which the cannot braska to their proce- greater risks present abortion that prohibit interpreted abortion methods,” ma- analogy, the ante employing the By other dures. health than available prohibit- that affirm jority argue 622-23, goes is thus able on to majority at the safest might sometimes ing what assess- opinion without the district.court’s “in- procedure birth abortion partial ing whether —the procedure” Virginia X D & & tact E/D of riskier methods to use fact force women — to obtain a safe right a woman’s infringes de- to Virginia’s In response abortion. 623-25. Ante at abortion. not did this case plaintiffs that the fense however, authority if overlooks, “substantial majority present is destroyed exception dur- deliberately a health is not the proposition the fetus statute,” X procedure,” ante D & particular an “intact in this ing needed E/D proce- complete not be to a consid- and it need that such majority states statute, Nebraska’s unlike dure, es- “Carhart irrelevant because eration procedure. statute, prohibit does requirement the health tablishes fetus, not the abor- killing of It is the rule,” at 625. ante se constitutional per concern of Vir- that is the procedure, tion however, indicates Nothing prohibiting And while ginia’s statute. con- creating a se per Court a woman’s increases procedure safe stat- every or abortion rule stitutional banning risks, one has contended no targets meth- ute, of regardless whether an intact after of a destruction fetus or of the life ods mother’s health implicates the delivery interest, contain must state other some this distinction than address all. Rather protection for the provides clause that the Vir- majority asserts directly, and sever- living delivery human infant of a (iii) and evacuation procedure, dilation any infant who cord ing the umbilical involving dismember- delivered. completely been has prior to removal from the fetus ment of 18.2-71.1(B). § mother, (iv) Ann. completing Va.Code body [and] the mother’s health. To read Carhart so question below; in the trial court superficially protection loses focus of the the findings and support evidence being implemented there. As the Carhart Carhart. said, “We shall not revisit those 931-32, Id. at 120 S.Ct. 2597. That the legal principles [providing protection basic Supreme Court did not per create a se rule to the right Rather, mother’s to choose]. is further fortified its statement apply we them to the circumstances holding, which inherently precludes such a *13 921, case.” 530 U.S. at 120 S.Ct. 2597 conclusion: added). (emphasis And, course, upshot The is a District finding Court Court thus rendered holding on the that D X significantly obviates health underlying principle being implemented: circumstances, risks in certain a highly that a State cannot “interfere with a wom- plausible record-based explanation an’s choice undergo proce- abortion why so, might that be a opin- division of dure continuing her pregnancy would if ion among some medical experts over constitute a threat to her health.” D safer, whether & X generally is Planned Parenthood v. Casey, 505 U.S. an absence of controlled studies medical 833, 880, 2791, 112 S.Ct. 120 L.Ed.2d 674 that help would answer these medical (1992) added) (emphasis (citing Roe v. questions. Given these medically relat- Wade, 113, 164, 410 705, U.S. S.Ct. circumstances, ed evidentiary (1973)). we be- L.Ed.2d 147 lieve the requires a law health exception. Moreover, in CarhaH there a full 936-37, Id. at 120 S.Ct. 2597 (emphasis trial in which the district court made find added). ings of fact and then how considered

Nebraska statute and the Constitution ap Quite apart from considering the actual plied to those facts. In explicitly declining nature Supreme holding Court’s to conduct facial statute, a review of the Carhart, majority elects rely on five the district court found unprepared itself circuit court cases it support contends to conclude that the law was unconstitu its conclusion that Carhart a per created se “regardless tional of how it might be ap rule. See ante at 625-27. Even without plied to a particular plaintiff,” because conducting analysis a full of those nonbind- such an inquiry would many entail too ing decisions for their faithfulness to Car- “unknown” factual circumstances. Car hart, it readily apparent becomes that the hart v. Stenberg, 11 F.Supp.2d 1119- support each provides nil or little. (D.Neb.1998). Supreme The Court Only one of the five circuit court cases upon drew the district findings, court’s as by cited majority stands the propo well texts,” as “related medical applied sition that Carhart per a established se established preexisting jurispru constitutional rule that obviated the need dence to Carhart, that record. See to examine authority in abortion 923-29, U.S. at 2597. Indeed cases. See Heed, Planned v. Parenthood responding to argument, Nebraska’s like (1st Cir.2004) 390 F.3d Virginia’s here, (invalidating that “safe alternatives re parental a main notification law due to its lack available” and that a “ban a health exception), create no granted risk to the cert. women,” health sub nom. — Ayotte responded, Parenthood, Planned not as the ma U.S. — - jority suggests -, here applying per a se L.Ed.2d rule, but noting, (2005). Yet, holding of that case—that The problem for Nebraska is all statutes “regulating abortion must con parties strongly contested this factual tain a health exception in order to survive majority’s opin- from hardly portion omitted challenge,” id.—can constitutional clar- ion). half of the sentence The second interpretation faithful considered understanding Car- majority’s court’s ifies the even under exception rule require se health per created hart does reading, expansive only those laws. but regulations, all abortion partial birth only for health. endanger a woman’s might any con- providing avoids majority why the And, explains clarification pre- citations of its the remainder text necessary to ex- deemed Tenth Circuit reveals inspection closer sumably because in the record contained evidence amine the estab- treating Carhart that —far genuine no [was] “there finding that before rule —the constitutional se lishing per [stat- fact the material directly as to have issue cases court only circuit ability pregnant infringe[d] found ute] question addressed Id. at only after health.” necessary their protect to be women to by the *14 introduced considering evidence 120 S.Ct. Side Choice—East In A Woman’s

parties. court circuit cases remaining. two The 684, Newman, F.3d 305 v. Clinic Women’s Parenthood majority the cited —Planned did Cir.2002), Circuit (7th the Seventh 688 (9th Cir. Wasden, 908 376 F.3d v. Court Supreme the observe indeed 2004), Medical and Women’s Professional a necessity of the treated previously had Cir.2003)— (6th 436 Taft, 353 F.3d Corp. v. legislative a question as exception health proposition the not similarly do stand why it explain on to fact, then but went them. Was- cites majority the for which following that approach: not was a of whether question the den addressed not has the Because adequate provi “must contain regulation however, and explicit, point made this preg her terminate for a woman sion approach undue-burden the because life or to her a threat poses nancy if a between choice prescribe does 922, not the distinct health,” at 376 F.3d adjudicative-fact legislative-fact abortion by partial-birth raised question, appropriate think it we approaches, that regulates bans, a statute whether this record the evidence review but aspect some may be properly inferences from terminat a woman prevent does not stage. pre-enforcement at the drawn a health must contain pregnancy ing her Id. at 688-89. did address And, while exception. Taft sen- truncation majority’s ban, particular partial-birth opin- the Tenth Circuit’s it lifts tence already contained at issue there Owens, 287 v. Parenthood in Planned ion argued party neither exception, health Cir.2002), similarly creates (10th F.3d 910 unnecessary. was exception a health treats circuit that that misimpression only question, 444-45. The F.3d 353 rule. se constitutional per Carhart in the affirma answered court by the quoted full, sentence Read ex health the statute’s tive, whether was state “Thus, current states: majority Id. adequate, constitutionally ception regulations state abortion law is that at 450. protec- for the provide must scant recognizing support Perhaps women pregnant of the health tion cir our sister among per se rule for its might otherwise regulations where those citing a.hand resorts cuits, majority their ability protect their infringe district randomly selected apparently 918, ful of Id. at an abortion.” through health A at 625-27. ante See opinions. court to the added (emphasis 2597 thorough more survey 2000) of the case law re (examining evidence submitted roughly veals a split even between district the parties before concluding that West courts that interpret Carhart to have es Virginia’s partial birth abortion ban “cre per tablished se rule and those that significant ate[d] health risk” and there interpret Carhart require a health ex fore provide had to a health exception). In only if ception the record demonstrates short, majority’s ten-case-long string regulation might issue endan cite disguise cannot the fact ger a woman’s health. Compare Repro weight of authority does not support ductive Health Servs. Planned Parent interpretation of Carhart. Nixon, hood v. F.Supp.2d (W.D.Mo.2004)(striking down a state par II

tial birth abortion ban for lack of a exception without examining evidence in In addition to its mechanical application record); WomanCare, v. P.C. Gran per rule, of a se which the majority unjust holm, F.Supp.2d 854-55 ifiably creates, the majority ignores also (E.D.Mich.2001) (same); Summit Med. this circuit’s existing standard for facial Assocs. Siegelman, F.Supp.2d challenges of abortion statutes.' See (M.D.Ala.2001) (relying on Carhart’s Greenville Women’s Clinic v. Commis factual findings to strike down a-state par (“Greenville sioner II”), Women’s Clinic tial ban), birth abortion with Carhart v. (4th 317 F.3d Cir.2002); Green Ashcroft, 331 *15 (D.Neb.2004) F.Supp.2d 805 ville (“Green Women’s Clinic v. Bryant (striking down the Federal Partial-Birth ville I”), Women’s 222 157, Clinic F.3d Abortion Ban Act of in 2003 269-page a (4th 165 Cir.2000); Hunt, Manning v. 119 opinion, in which the court weighed the 254, (4th Cir.1997). F.3d 268-69 It finds presented evidence during the course of a that our “standard trial); does not two-week in apply the Nat'l Abortion Fed’n v. context Ashcroft, of a facial 436, 442, challenge 330 F.Supp.2d to a stat 482 (S.D.N.Y.2004) ute (finding regulating a the woman’s Federal Par access to abor tial-Birth Abortion Ban tion.” Ante at unconstitutional 628. In attempting to limit for lack a health of or distinguish because the our rule apply and one that evidence adduced during a sixteen-day is more liberal its purposes, majori the bench trial demonstrated that signifi “a ty unapologetically violates the well-estab body cant of opinion” medical supported lished that panel rule one of this may court proposition the that the ban would endan not overrule another. See United States v. ger a woman’s health); Planned Parent Prince-Oyibo, 494, (4th 320 F.3d 498 Cir. hood Fed’n Am. Ashcroft, v. 320 of 2003); Scotts Co. v. United Corp., Indus. 957, F.Supp.2d (N.D.Cal. 1012-13, 1033 (4th 315 Cir.2002). F.3d 271 n. 2004) (holding that “Stenberg’s health ex The standard articulated ception the Su requirement does not appear to preme Court in Salerno, United arise to States v. the level of a constitutional ‘rule’ 481 U.S. like requirements” Miranda S.Ct. 95 L.Ed.2d finding it 697 (1987), for facial necessary to challenges examine the of statutes record before provides: determining “A facial “significant challenge whether legisla a authority is, supports course, tive act of proposition that in the most difficult cases, some [intact challenge D & is to mount E] the safest successfully, since the (internal procedure” quotation challenger marks and must establish that no set of -omitted)); citation Underwood, Daniel v. circumstances exists under which the Act 102 F.Supp.2d 680, (S.D.W.Va. 684-85 would be 745, 107 valid.” Id. 2095; at was therefore Salerno at 268-69. Id. Sullivan, U.S. also Rust see (1991) applied explicitly we that 1759, 114L.Ed.2d standard 183, 111 S.Ct. will fail standard challenge finding of that Manning, facial that (explaining in such rejecting ruling be necessary “can construed to our act if an was of set applied can be the statute. challenge [it] that of manner plaintiffs facial consti infringing upon without individuals that this majority conclude can How This stan rights”). tutionally protected baffling. our court of not a decision was we fact stems dard comfort has found apparently majority over actu power judicial exercising courts sentence of one portion quoting review cases, super-legislatures not al indicated opinion footnote of And the abstract. acts in ing legislative to facial of Salerno applicability stan the Salerno applied has circuit this “not was regulations challenges statutes reviews to facial dard itBut the court.” before properly [then] over been that have not three cases explana- relied on even that not have could Supreme Court by either turned reading further without tory statement Greenville See sitting en banc. court noting After the footnote. into 362; II, F.3d Clinic Women’s challenged not review was standard I, 222 F.3d Clinic Women’s Greenville was and therefore challengers the statute’s To at 268-69. 119 F.3d 165; Manning, us, rec- we nonetheless placed before not thereby this standard applying avoid apply a standard had to that we ognized constitution uphold being required on in foot- further we said And review. statute, infanticide ality 4: note bind turns aside unjustifiably majority moment, that can most theAt court. of this ing precedents indicated three Justices is that said Manning, we First, explains application Sal- [overrule desire to issue issue, “the because not decide did specif- Until ]. erno Ante at 627. us.” before properly *16 is so, though, this ically does district reviewed Manning, we In standard Salerno apply to bound claim that plaintiffs denial court’s in the applied repeatedly Act to has been challenged North Carolina’s facially re- regulations other Consent of abortion Judicial context Parental Require Abortion. Court. by the Unemancipated Minor’s an viewed said, review, “Because we our conducting added). (emphasis at 268 n. Id. carry challenge, appellants is a facial clear, Manning not holding in Were and forth burden,” then set heavy we apparently majority however, —and Manning, standard. the Salerno cited we de- not because it was concludes district noted at 268. We F.3d not that was on a standard the case cided standard the Salerno applied had court decision parties by the challenged —our did to the challengers that the I, ques- put the Clinic Women’s Greenville standard to thát take not holding There, discussing the rest. tion applied Sal- we Accordingly, appeal. we stated: length, some Manning at of holding: in our standard erno observation that the believe we While succeed, Appellants Thus, in order holding court’s part was Manning of no set under to show required nec- of Salerno application because applied Act be can the circumstances in that case ruling essary to undue bur- is not an a manner that the observation dictum, we add mi- unemancipated pregnant on an den necessary to is test the Salerno logic of abortion. right to obtain nor’s show deference to legislatures, particu- 317 F.3d at 359. We then held directly larly in light of the limitation imposed by and explicitly, clarifying that which was Article III of the Constitution that the our principal holding in Greenville Wom- judiciary only act in cases and I, contro- en’s Clinic the Salerno standard Const, versies. Ill, See U.S. art. § 2. applies to the facial challenge of an abor- explain below, weAs when the abortion regulation: tion clinics are confronted with Salerno’s re- We begin by emphasizing, as we did in quirement that no set of circumstances [Greenville ], Women’s I Clinic that the exists under which Regulation 61-12 challenge to Regulation 61-12 [South valid, fail, would be they if fob no other Carolina’s regulation] fa- n reason, impact because the on the cial one and therefore “the most diffi- Greenville Women’s Clinic is so modest. cult challenge to mount successfully, added). since the challenger F.3d at 165 (emphasis must establish that notWe only no set held that Manning did circumstances decide exists under proper which the Act apply, standard to would be but valid.” again we United applied Salerno, States v. standard U.S. Greenville Wom- (1987). en’s Clinic I. majority L.Ed.2d 697 insists that we To show rendered an the necessary alternative ruling respect under to legisla- departments, more liberal tive particularly standard. But a light closer read- ing of Article Ill’s judicial Greenville Women’s limitation Clinic I power reveals (and we cases controversies, rendered our principal we there- require fore binding) evidence—as holding opposed speculation— under the Salerno standard. sufficient hypothetical Our to rebut regulation’s application pre- sumptive more liberal Yet, standard constitutionality. served only to in this record, underscore we only find speculation. inherent weakness of the plaintiffs’ claims. See id. Id. at 362.

Finally, seeking to distinguish Green Had the majority conducted its review ville II, Women’s Clinic the majority under the only standard legally estab states that used the “[w]e Salerno test lished in our circuit for facial review of there, but only in the context of reviewing statutes, it would have it found a claim that the regulatory scheme allowed self compelled, in view of the record in this for the delegation standardless case, that conclude infanticide *17 licensing authority to third in parties viola statute is constitutional. To its achieve tion of Yick Wo Hopkins, 118 U.S. 6 contrary ruling, the majority trampled not (1886).” 30 L.Ed. 220 at Ante only precedents the establishing the appli 627. The case, in review that though, was cability. of the Salerno standard but also a continuation of the begun review in the precedents establishing that panel one I, Greenville Women’s Clinic and sowe may our court not overrule another. stated: See Prince-Oyibo, 498; at F.3d Scotts Co., appeal

This 315 F.3d at continues 271 n. 2. our review of the facial constitutional challenges by made Ill abortion clinics in South to Carolina Regulation 61-12 of the South Carolina The underlying principles guaranteeing Department of Health and Environmen- a woman’s right conditional choose Control, tal establishing standards for abortion were not altered by the holding licensing abortion clinics. Carhart, as the Carhart expressly Court Fitzhugh”), have “Dr. individually as 2597. or 921, 120 S.Ct. U.S. noted. See a similar to create record attempted the at hand keep nature it is useful And that Recognizing con Carhart. when created in in Carhart that right applied the only abor- in this case. statute addresses Virginia statute Virginia the sidering the has a live fetus in which procedures tion fetus, has a “woman viability of Before from emerged completely substantially or preg- her to terminate to choose right coverage its excepts its and mother unduly burdens if a statute nancy,” and by proscribed procedures range broad Id. decision, it is unconstitutional. that Carhart, Dr. Fitz- statute the Nebraska marks (citation quotation internal procedures two State, complains about pro- hugh still omitted). the viability, After prohibited potential improperly interest he contends legitimate its tecting First, correct- proscribe, even he life, may “regulate, by Virginia statute. necessary, in killing it is prohibits except where the statute abortion ly asserts for judgment, through medical appropriate fully it is delivered after the fetus health of life or of the preservation As intact, head first. sometimes the cervix (citation quota- and internal Id. mother.” testified, “In such circum- Fitzhugh Dr. omitted). tion marks calva- stances, collapse might I need (skull) com- in order to the fetus Carhart, statute was rium Nebraska In that an pro- Arguing of abortion range procedure.” prohibit plete found to at various by doctors safest abortion employed delivery is often the cedures intact con- various and for growth method, Fitzhugh of fetal stages Dr. contends at the by the doctor confronted ditions from ban- prohibits Constitution Taking conducted. is the abortion time in these fetus the destruction ning and related record the factual into account exception. a health without circumstances conclud- texts, medical Second, claims that Fitzhugh Dr. authority medical ed, substantial “where ability limits his impermissibly also banning a proposition supports involving a feet- complete an endan- could procedure particular of the the head delivery where first “highly is a and there health” women’s ger cervix. in the woman’s lodged becomes why for explanation record-based plausible scenario, Fitzhugh states Dr. such “re- so,” the Constitution might skull, collapses fetus’ crushes the he a health ex- to include the statute quires com- contents, and then sucking out necessary, where ception cor- fetus. He delivery of the pletes judgment, appropriate pro- by performing rectly states that health of life or preservation the statute violate he would cedure 530 U.S. mother.” body had its feet after killing the fetus (citation quota- internal cervix. through the woman’s come omitted). marks tion first scenario Fitzhugh’s Dr. Under us, Fitzhugh and case before In the *18 statute, moth- the Virginia the objecting to Women, Center Medical the Richmond all. at play into brought is not health founder, owner, er’s and he is the of which into delivered fetus is live intact (referred collectively The director2 "to was founded for Women Center Medical in obstetrics Fitzhugh board certified is services,” operates and it practice, provide abortion part his and as gynecology, and Roanoke, which at abor- and second-trimester in Richmond performs over clinics he and Richmond abortions. hospitals first-trimester year perform in physicians each tions Virginia. The Richmond County, Henrico vagina beyond, or it whether is de- statute had to have a exception.3 stroyed after reaching that stage does not The district court reasoned that prohib- affect the mother’s health. As Dr. Charles iting deliveries, intact the doctor had to deProsse, Dr. Fitzhugh’s expert witness, destroy dismember or the fetus inside the testified: mother comply statute, with the

Q. And when presented [the comes fetus] out a greater health risk to the intact,

largely does that mean that mother than would an intact delivery. The you’re able to remove the fetus doctor’s sharp instruments, sharp fetal completely from the woman without fragments, as well as “uterine perfor- any parts disarticulating? ation,” were far riskier to the mother than A. Occasionally that can be. the intact delivery. But the district Q. inAnd court’s assumption instance hap- where that that the statute prohib-

pens, I you take it its intact engage wouldn’t deliveries of live fetuses finds no any other act to kill the fetus basis Virginia statute. The district other than removing it and place court applied CarhaH without recognizing it you place where you tissues the distinction between the stat- Nebraska is that removing; correct? ute and Virginia statute. A. Correct. In contrast to the statute issue in Dr. Fitzhugh could not think of any threat CarhaH, fairly which was construed as to the mother’s scenario, health under this banning deliveries, intact the statute here candidly recognized he that his de- cannot be so construed. Specifically, the struction of the fetus at stage would CarhaH statute prohibiting any “partial preserve not be to health, the mother’s but abortion,” birth banned ] “deliberate! rather to complete the abortion procedure. and intentional[ ] deliver[y] into vagina As he testified: a living, [of] unborn ... child pur ” Q. And the health benefit [to the moth- pose of performing er] is the termination of the preg- knowingly would result in the death of the nancy, not necessarily the death of child. The procedure regard was banned fetus; is that correct? In other less of where within the mother the fetus words—let phrase me way— was destroyed or how it destroyed. termination of the pregnancy go- 530 U.S. at ing to eliminate the health concern (quoting (em § 28-328(9)) Neb.Rev.Stat. with respect to the [mother’s] condi- added). phasis statute this case you tions that just described, bans any “deliberate act intended to whether or not what is removed is kill a human infant who has been born or dead; alive is that correct? alive, but who has not been completely

A. My job ultimate any given pa- extracted expelled mother, from its tient is to terminate that pregnancy, ... does kill such infant.” Va.Code which means I that don’t want a live 18.2-71.1(B). §Ann. words, In other birth. CarhaH statute banned delivery part The district court assumed that of a partial the Vir- birth procedure, ginia prohibits statute intact deliveries of whereas statute does not ban live fetuses —as did Nebraska part if delivery the intact fetus is not reviewed the CarhaH case—and destroyed. there- It bans only killing part fore concluded that under CarhaH the such procedure. The distinction is im- *19 3. The majority adopts now the argu- same ment. See ante at 623-24. advanced Thus, scenario under neither of question the makes it because portant the constitu- challenge to Fitzhugh by Dr. safety ad- intact deliveries

whether he dem- has statute of tionality involving dismem- deliveries vantages- ovér exception. a health for the need case, the onstrated in irrelevant berment about, in- say nothing has be statute could Fitzhugh’s position if Dr. Even the when deliveries intact permits, deed to the a risk demonstrate understood But destroyed. deliberately not life, fetus his health, to her and not mother’s the health (focusing 622-23 ante of opinion see the a risk and on such opinion deliveries). only The of intact advantages mark- differ by Virginia presented doctors delivery is intact in an question relevant a that demonstrates edly. The record endan- would be health a woman’s whether fact exists as material of issue genuine from physician the by prohibiting gered in authority substantial whether that has been killing a fetus intentionally barring that proposition supports fact the still alive. and is so delivered crushing the or collapsing from physicians of a the health endanger fetal skull would Fitzhugh’s second Dr. us to brings That circumstances, summary In these that woman. statute: to the objecting scenario granted. be cannot judgment the involving an abortion during fetus, the fetal skull delivery the breach some evidence Fitzhugh present did Dr. mother’s the lodged becomes crushing sometimes physician a prohibiting that by the to kill cervix, forcing him that head becomes collapsing a fetal or the preserve so crushing its skull endan- cervix would in the mother’s lodged of the mother. health life, health. perhaps the ger mother’s Fitzhugh by Dr. advanced evidence when The first that noted be It must .5% approximately that lodged in establishes becomes the fetus head and his Fitzhugh Dr. D E& abortions cervix, poses the condition mother’s lodged the skull becomes perform, clinics life, and abate mother’s to the threat places This cervix. to crush woman’s risk, Fitzhugh prefers Dr. Fitz- Dr. according to risk it. life at woman’s remove then of the fetus. skull de- Dr. Charles according to And hugh. As he testified: witness, the Prosse, Fitzhugh’s expert if me with you agree would Q. So skull. the fetal compress” “must com- did not you had you the—if scenario delivery plete Virginia, presented evidence The the head [where you just described substantially different however, painted know, you said lodged] you the Common- According to picture.4 — oth- or whatever the skull collapsing testimony, prohibitions wealth’s woman’s er means —that endanger woman’s life would you agree Do risk? be at would alter- equally safe there because that? with covered circumstances in the natives testi- First, Dr. Giles Yes sir. Harlan A. the statute. supports authority no medical statute, fied added). (Emphasis necessary to proposition pro- from its however, makes Similarly, Dr. fetal skull. lodged crush death prevent “to scriptions clini- “is no there 18.2-71.1(E). testified Seeds John §Ann. Va.Code mother.” of that some accordingly Even, infra, consider excluded though district court Virginia's presentation evidence, to describe evidence I Virginia's significant amount picture. V, factual a different improperly, see Part it did so conclude *20 cal [he scenario imagine could] where a IV physician would have to resort a proce- The district court advanced three addi- dure that violated [the statute].” grounds tional for striking Virginia’s down statute, which majority did not address Moreover, Virginia introduced evidence because of its ruling that Virginia stat- showing that equally safe alternatives exist ute per se unconstitutional for failing to for completing an abortion during which include a maternal health exception. Be- the fetal skull has lodged become in the my cause ruling would-be mother’s cervix. Dr. Giles testified that narrow statute need not contain such an the cervix will often dilate naturally I exception, will address these additional expel the skull if given sufficient time. He grounds three advanced the district testified that the can lightly also court, in order. (as crush) compress opposed to the skull using forceps without intending to kill the A fetus to remove from the cervix. Final- First, in holding Virginia statute un- ly, he noted that certain muscle relaxants constitutional, the district court relied on can be used to increase cervical dilation “ Carhart’s holding that a statute that ‘im- and thereby dislodge skull. Dr. Giles poses an undue burden on a woman’s abili- indeed provided testimony that crushing ty’ to choose a D E& abortion ... unduly skull, the fetal preferred by Dr. Fitz- the right burden[s] to choose abortion it- hugh, actually increases the risk to a wom- self.” See U.S. at an’s health due to fragmentation bony S.Ct. 2597 (quoting Casey, 505 U.S. at parts and maternal Similarly, tears. Virgi- 2791). The district court identi- provided nia the testimony of Dr. Mark fied two scenarios physician, given Neerhof before Repre- the House of who perform intends to E, a D & would sentatives Judiciary Committee, in which violate the statute. The first scenario oc- he stated that injecting scissors into the curs when a woman’s cervix is aligned so fetal skull to subjects crush it the woman closely with her vagina that during the to the risk of lacerations to her cervix and procedure, gets cervix pulled uterus and could result in severe bleeding, her vagina. outside Dr. Fitzhugh estimat- shock, and maternal death. ed that he sees such an anatomical config-

Dr. uration Fitzhugh’s only approximately response one-third of to this his con- tradicting second-trimester evidence argue patients. is to He unless claims that in circumstances, such proves that no medical dismem- authority berment of the supports fetus Dr. occurs on Fitzhugh’s assertion, the outside body woman’s Fitzhugh must win and the therefore would statute must not fall within the be statute’s stricken. Dr. for D forgets, Fitzhugh howev- & E procedures er, generally. that he See Va.Code bears the burden proving 18.2-71.1(B) § Ann. (excepting substantial from the medical authority supports statute’s ban the D & E procedure his proposition “involv- that the requires ing dismemberment of the prior maternal exception, and when ques- mother”). removal the body of tions of fact about this proposition exist, the district precluded court is from enter- As an matter, initial the district court ing summary judgment. The issue must erred resolving, on summary judgment, trial, reserved for as was done in Car- the factual question of whether such a hart. scenario actually ever occurs. Dr. Fitz- *21 so procedure D E the & deProsse, excepts statute admitted expert, Dr. own hugh’s the is such before long performed mentions as it is literature no medical Moreover, body. both See Va. the mother’s scenario. removed from an anatomical (B)(iii) doubts similar expressed (excepting experts § Ann. 18.2—71.1 Code. that a possibility the questioned even procedure and E ban D & statute’s a from the her emerge beyond could cervix woman’s pri- the fetus “involving dismemberment Dr. procedure. D & E during vagina moth- body of the from the or to removal his overall based on Seeds testified er”). to expect “would he eiqierience, clinical on a also relied second district court The the cervix to pull to woman’s be able uncon- find the statute to factual scenario the ... unless introitus vaginal level intends to physician stitutional —when as ligaments extremely elastic had woman involving D E dismember- a & perform full-term, vaginal de- multiple, a result body, inside the woman’s of the fetus ment much using too [he] or unless liveries through the prolapses instead but the fetus similarly and testified Dr. Giles force.” lodged becomes and its skull cervix intact about, seen, read had never that he noted found The court cervix. in the woman’s occurring a situation such heard about or then have would physician By disregard- procedure. D E during a & abor- complete skull Fitz- crush Dr. fetus’ accepting testimony and ing this - so, expose tion, himself by doing a basic violated but court the district hugh’s, judg- Be- summary entering liability the statute. under requirement to criminal dispute genuine no there be not know before ment —that physician could cause fact. material far D & E how procedure beginning the con- the court prolapse, the fetus would Moreover, misconstrued the court unconstitutionally the statute cluded that that it it so to construe or chose statute creating a right the abortion in the fac burdens be found unconstitutional could every time he This for the to exist. it found dilemma circumstances tual At ex rel. procedure. States D & E United performs See was error. Hudson Delaware

torney General district court’s with problem Co., 213 U.S. it had resolve is that conclusion (1909) “a when (holding that L.Ed. 836 the material about major disagreement constructions, two susceptible of is summary on a motion case facts consti doubtful grave and of which by one respect with explained As judgment. by the other arise questions tutional exception, a maternal the need for avoided, duty our questions which such whether III, the question supra Part latter”). Fitzhugh ex adopt the is to crushed must fetus’ skull he de circumstances plained lodged become the head has when point occurs scribed, dismemberment by the materials not resolved the cervix the fetus’ E results a D & during genuine parties, submitted cervix, Dr. de- through the passing Virgi- remains. material fact dispute of the dismemberment explained Prosse equally safe showing that evidence nia’s a few centimeters actually occur might exist, including alternatives safer even The district cervix. the woman’s outside skull, cervi- using compressing the gently as ex the statute to construe court chose relaxants, waiting for muscle cal only when D E the & cepting ignored further, cannot be cervix to dilate inside occurs the dismemberment summary in the by the court (or or resolved carefully more body. Read mother’s procedure. judgment questions), avoid constitutional so B press any confusion over the meaning of the question, Dr. Fitzhugh answered the The district court struck down the stat- *22 question in the negative, without hesi- ute also because it denies a woman a right tation. to choose appropriate medical treatment

when she is suffering from an incomplete sum, In none of the grounds additional miscarriage. In the case of a miscarriage, by advanced the district court to find the however, the cause of the fetus’ demise is statute unconstitutional has merit. natural, and the doctor is upon called to treat the mother and assist the natural V process. In no ordinary sense can it be Finally, I Virginia’s address contention said that the physician in a engages “delib- that the district court stacked the factual erate act ... is intended to kill a against deck improperly excluding human who infant has born been alive.” from consideration material evidence that (See 71.1(B). § Va.Code Ann. Even 18.2— would supported and, the statute Dr. Fitzhugh’s expert, deProsse, Dr. testi- more importantly, placed any factfinding fied that the physician’s in treating intent by the district court deeper in doubt. an incomplete miscarriage would be to particular, Virginia contends the dis- treat the mother “preserve and the health (1) trict court erred in striking the testimo- mother,” of the not to kill the fetus. ny Virginia’s of expert, Giles; Dr. Harlan (2) striking portions of the testimony of

C expert, Seeds; other Dr. John Finally, district court found the stat (3) and excluding testimony given before ute vagueness unconstitutional on grounds the United House Representa- States for failing give to physicians fair notice of tives Committee the Judiciary during what prohibits. conduct it A statute is hearings on the federal partial-birth abor- unconstitutionally vague if it pro to “fail[s] tion ban. I address these in order. vide the kind notice that will enable ordinary to people understand what con A duct it prohibits.” Chicago Morales, 56, 527 41, U.S. Virginia proffered S.Ct. the testimony of Dr. (1999). L.Ed.2d 67 Giles, an obstetrician and gynecologist spe- cializing in maternal and medicine, fetal to Here, the district court found terms support parts several defense, of its includ- mother,” such as “from its body “from the ing proposition equally safe alter- mother,” of the body “outside the any natives to mother,” banned “involving dismemberment of statute exist. The district court struck all prior to removal body from the of Dr. testimony Giles’ finding it to mother” unconstitutionally vague. But “unreliable because it [was] conclusion is inconsistent unsupportable. only Not is it incoherent.” In particular, hard imagine person how a district normal court found that Dr. intelligence Giles’ testimony would not con- understand words, cerning those everyday use of forceps but the record dem- to dislodge a onstrates that fetal head Fitzhugh experience and his himself did using medi- not find ambiguous. them cation For example, achieve cervical during dilation D when asked whether it & E procedures be medically testimony contradicted advisable for him to “start that Dr. dismembering given Giles had in prior lawsuit. fetus, part of the fetus that is The district court relied primarily on this already woman,” out aof rather than ex- inconsistency to disqualify Dr. Giles. the rebut- Specifically, Dr. Giles’ method. un course well-established

It is of “consti- that it would testified Pharmaceuti tal witness Dow v. Merrell Daubert der for a malpractice Inc., tute medical cals, 509 U.S. S.Ct. (1993), Tire Co. v. couple Kumho hours ‘just up wait’

L.Ed.2d 137, 119 Carmichael, 526 U.S. cervix to contract the uterus (1999), court has a district fetal lodged 143 L.Ed.2d own to remove dilate on its all any and to “ensure obligation D E where during previability head only rele is not testimony scientific any type is under sedation.” the woman Daubert, U.S. at *23 vant, but reliable.” added). specifically Dr. Giles (Emphasis the Su Although 113 S.Ct. however, that he testimony, in his stated Tire considered in Kumho preme Court 20 min- than 10 to not wait longer would testimony expert’s inconsistency of an if the were cervical woman utes for dilation expert, certifying in not factor as a Finally, the anesthetic. general a under case in that concern overriding Court’s expert Fitzhugh’s own testimony of Dr. used unreliability the method deProsse, Dr. witness, indicated Dr. Tire, 526 U.S. expert. Kumho by not be a breach method would Giles’ contrast, here, the 1167. In care, providing evidence standard con testimony in Dr. Giles’ inconsistencies testimony of conflicted with directly main reason the district court’s stituted Dr. de- witness. Fitzhugh’s rebuttal Dr. inconsistencies, howev the exclusion. wait could Prosse testified that testimony given er, between were a fetal head after long as hours as testimony case and in this Dr. Giles a risk of creating lodged without became earlier case. in an Dr. Giles given by infection. any dif reasons for exploring Without its supported court Finally, the district explanation, allowing for an ference or Dr. testimony to strike decision incorrectly placed itself court district not Dr. Giles could noting Giles factfinder, weighing credi role of support to literature any medical point witness. bility of the muscle relaxants theory that cervical his its de- supported court also The district a fetal head dislodge be used could with testimony Dr. to exclude Giles’ cision E proce- a D & during lodged had become Dr. Giles method that one conclusion on basis Dr. Giles Disqualifying dure. an abortion completing advocated Dr. Fitz- troubling because particularly lodged in the fetus’ head became which the support similarly failed to experts hugh’s fe- awhile for the waiting mother’s cervix— with documented opinions of their several below on its own—fell expel tus’ head chose the court authority, yet true, of care. If accepted standard Dr. deProsse example, For rely them. the conclusion might justify finding such E procedure D & the intact testified methods unreliable that Dr. Giles’ (also extrac- dilation and as the described Yet, to Tire. meaning of Kumho within the safety has ad- procedure) D & X tion or pro- Dr. Giles’ conclusion that reach its D Es and vantages over conventional malprac- constitute methods posed could but he procedures, other abortion testimony of a tice, on the the court relied support- literature any medical not recall only as identified that had been witness Similarly, Dr. de- ing proposition. (because could the witness witness rebuttal that, wom- on a depending testified Prosse conflict testify on direct due not might anatomy, her cervix an’s individual interest). Moreover, if the even rebuttal at times witness’, introitus vaginal her be outside properly consid- testimony was Yet, knew Dr. deProsse E. during a D & question into directly call ered, it did of no medical literature documenting that is unreliable. But as an expert, OBGYN anatomical configuration. Notwithstand- Dr. obviously Seeds knows more about the ing the lack of sup- medical literature to anatomy, female pregnancy, and birth than port Dr. however, testimony, deProsse’s fact, average juror. Seeds, the district court considered and relied on an expert medicine, may maternal/fetal it. rejection The court’s of Dr. Giles’testi- actually qhalified be more to render an mony for that reason created a double opinion than Dr. experts, Fitzhugh’s nei- standard and was an abuse of discretion. ther of expertise whom has in maternal/fe- tal medicine. aAs medicine maternal/fetal B specialist, Dr. Seeds has extensive training The district court also portions struck in the management of high-risk pregnan- the testimony expert other cies, highly which makes him qualified to witness, Seeds, Dr. John based on the speak to possible complications occurring district finding court’s that Dr. Seeds was during pregnancy that could necessitate an expert on neither abortions nor D E& *24 procedures types by banned procedures. Virginia relied on Dr. Seeds’ statute. testimony for expert his opinions on The exclusion of Dr. testimony Seeds’ whether the health by concerns raised highly so irregular that it is difficult for appellees medically were legitimate, me to conceive of the for motive the dis whether a would ever have to trict ruling. any event, court’s In I think resort to a procedure that violated the it clear that the district court abused its statute, and whether any there exists safer testimony. discretion in excluding Dr. Seeds’ alternative performing means for abortions than any procedure that would violate the C addition,

statute. Dr. Seeds answered

general questions about the female anato- Finally, the my. district parts court excluded of the Congressional Record for the feder- Again, the district court abused its dis- abortion, partial-birth al ban as evidence cretion in excluding the of Dr. testimony that such a ban would not endanger a Seeds, particularly with his credentials. woman’s health. This exclusion covered Dr. Seeds is board-certified the fields of all parts of Congressional Record, in- (“OBGYN”) obstetrics and gynecology cluding the House Report Committee medicine. He maternal/fetal is current- the congressional testimony of Dr. Mark ly the chair of the department OBGYN Neerhof, an professor OBGYN at North- the Medical College of Virginia, Virginia University western Spe- Medical School. Commonwealth University. He does not cifically, the district court found that currently perform abortions, but he is fa- report “political” was miliar “untrustworthy” with the procedures performed by and that Dr. physicians other Neerhofs statement his was department. As hearsay. chairman of the department, OBGYN Seeds testified that he would obligated feel Although it was within the district

to advise his staff professionally if the court’s discretion to conclude .the Con- statute would implicate the staffs abortion gressional Report unreliable, the dis- practices any way. again applied court trict a double standard

The district court concluded solely from such reach particular, conclusion. In the fact that Dr. Seeds does not perform the repeatedly court relied on hearsay abortions that testimony in his this matter statements made College American narrowly drafted and fits thus statute is Gynecologists of Obstetricians exceptions recognized Car- within by Dr. (“ACOG”), presented were 530 U.S. hart. See difference no relevant I can see Fitzhugh. (“[I]t have been a simple S.Ct. 2597 testimony before Dr. Neerhofs

between matter, excep- example, provide If statements. the ACOG Congress and D & E and performance tion its dis- to exercise court chose district id. at procedures”); other abortion testimony, it then such to exclude cretion (O’Connor, J., concurring) 120 S.Ct. 2597 If the board. so across have done should (“[Sjome have enacted stat- other States facts, legislative them as to include it chose by specifi- narrowly tailored more utes Its uniformly. so have done then it should coverage excluding from their cally is, however, I only, ruling against abortion, such as common methods of most of dis- submit, and an abuse unexplainable aspiration proce- D E and vacuum the & cretion. dures”). goal. Virginia’s specific This was VI sovereignty Virginia’s It is an affront to majority today by the made choice its stat- strike down to extend Carhart to in- partial-birth strike down liberty protected by ute the name by the compelled is not ques- fanticide make us It should Constitution. Constitution, by any Supreme nor if liberty, or we understand tion whether such, stands majority opinion As case. do, tarring we are with the we whether amounts to reasoning and own on its that tarred ideology political color of *25 disconnecting our law in step momentous when immoral ages of other national ideals In gratu- moral norms. com- accepted by ideological from imposed laws were law, majori- Virginia’s itously rejecting no cover to provides It us assert mands. liberty law that strange doing what ty vacuously announces that we are Su- guarantees The truth re- by the Constitution commands. protected preme doing destroy her live fetus that we are all to see right open mains woman law, fully I halfway or as have required by it has been delivered not what is after detail, we but what majority opinion in some The demonstrated the world. into nothing less. will.5 stands must, authority pro- finds judicial infanti- As it partial-birth its

Virginia enacted pillars, supporting infants reason as statute, focusing the life of cess and on cide formulaically and world, alone applied but halfway fully into reason or delivered wring re- context can regard to them- without procedures on abortion than rather carefully reason- the most even sults that Indeed, legal vari- accepted selves. At unacceptable. finds ing decisionmaker over employed procedures “normal” ous decisionmaking lies judicial depths America. abortions 95% only the latter bans procedures while [my] ‘'mandating] suggesting that I am In Virgi- living With this uphold fetuses. I code” as write the destruction moral own statute, majority pre- difference, suggested ante at that we nia’s I material has, in Car- Supreme Court that the prece- sumes hart, can, Supreme Court with consistent "my violates protected conduct deeply dent, Virginia's held accommodate my address and that I should code” moral Carhart, offending position without moral Supreme Court’s decision objections of the Car- beyond the bounds going that in uncon- found Nebraska statute The Carhart. Virginia stat- holding to down strike hart however, differs materi- stitutional ute, only statute but also trample we statute, signifi- most ally it rests. grounds which the moral proscribed certain cantly that the former demanding bedrock accountability to the side of the body woman’s when there is right, mind’s sense of and this bedrock space little or no between the cervical os guides or perhaps even vetoes whatever (the vaginal introitus vaginal absurdities reason might deliver. canal) or when the cervical os prolapses (emerges) vaginal outside the opinions we introitus. today, issue we speak Ante at 621. legal illegal and the ways to dis- member the legs arms and of human fetus- I too have shuddered and must turn away. legal es and the illegal ways to.crush Can we not see that our discussions and budding doctors, human head. The the law we make in striking Virgi- down course, given They choice: can insert prohibition nia’s are unfit for the laws of a scissors into the base of the neck and suck people liberty? I wonder with befuddle- matter, out they the brain or can crush the ment, fear, sadness, how we can so Indeed, tender skull with forceps. some of joyfully celebrate child, the birth of a so these procedures legal remain under Virgi- zealously protect an infant and a mother statute, nia’s but the statute prohibit does who pregnant, reverently so wonder the destruction of a halfway fully about how human begins, life grows, and delivered from its body. mother’s develops, and at the same time write to Fitzhugh complained of this proscription strike down preserve a law to a right to though because—even killing the infant destroy a partially born infant. If the could not affect the mother’s health at that disconnect is explained by personal con- stage could not complete job. his He —he venience, then we must reason that all said, “I don’t want a live birth.” The morality is personal, without majority commonality complaint redresses his with the and source. product of such ruling today. chaos is unfathomable. Even majority’s opinion, however, seems have shuddered at discussing the destruction,

nuances of fetal un- employing

common and clinical if they words as

dull the moral context:

In the case of a vertex presentation, the

physician collapses the fetal calvarium

and then the entire extracts fetus through the cervix. the case of a Ricardo WELCH, Jr., Antonio breech presentation, pulls Plaintiff-Appellant, cervix, fetal trunk through the col- lapses calvarium, the fetal and then com- pletes UNITED America, extraction STATES through the cervix. Ante at Defendant-Appellee. 621.

A third involves the & E in which fetal disar- ^[*] variation ^[*] D ^[*] prohibited ^[*] by the Act % $ United States No. 04-1863. of Appeals, Fourth Circuit. ticulation occurs outside of the woman’s body. Disarticulation generally occurs Argued March 2005. (the beyond the cervical os por- lower May Decided tion, cervix) or opening, of the as a result of traction against the cervix.

However, may disarticulation occur out-