In this article, the constitutionality of the New Jersey Partial-Birth Abortion Ban Act of 1997 is defended. The law was passed by both houses of the New Jersey legislature in June, 1997, in an attempt to end partial birth abortion, a gruesome procedure in which an intact fetus is partially delivered, feet first, into the vagina before its skull is crushed and its brain matter removed by the attending physician. Although Governor Whitman vetoed the bill, both the Assembly and the Senate overrode the veto, and on December 15, 1997, the measure passed into law.

That day, immediately after the Legislature enacted the ban, Plaintiffs filed a lawsuit against Attorney General Peter Verniero, the New Jersey Board of Medical Examiners, and Len Fishman, Commissioner of the Department of Health and Senior Services. On December 16, 1997, the federal district court in which the complaint was filed entered a temporary restraining order prohibiting Defendants from enforcing the Act. Attorney General Verniero stated that he would not defend the lawsuit, as it was his personal opinion that the Act is unconstitutional. Therefore, on December 22, 1997, the New Jersey Legislature moved to intervene to defend the lawsuit, and has since been arguing on behalf of the law’s constitutionality.

The Act bans "partial-birth abortions." In the "Preliminary Statement" of Plaintiff’s brief, it is claimed that "partial-birth abortion is not a medical term." This assertion is plainly in error; both the American College of Gynecologists and the American Medical Association have a clear conception as to what Partial Birth Abortions are. As these professional medical organizations have developed definitions of this procedure - definitions which resonate consistently with the Act in question - it is obvious that the term is well understood within the medical community. Plaintiffs further assert that "The Legislature’s definition of the prohibited conduct is... broad and imprecise." As will be shown throughout in this article, the Act clearly outlines, in narrow terms, the exact conduct which is to be proscribed. Furthermore, the legislation contains a scienter requirement (a scienter requirement is a provision in the law stating that a particular act cannot be considered a violation of that law unless the person performs the action with the full knowledge that he/she is violating the law) to prevent physicians from being criminally liable for unwittingly violating the law. An exception to the statute which allows a partial birth abortion to occur where the mother’s life is endangered by physical disorder, illness, or injury is another assurance that the Act does not violate any of the protections of the United States Constitution.

Plaintiffs also point out that "numerous states have enacted so-called ‘partial-birth abortion’ bans with language that is substantially similar and in some cases identical to the language in the Act... [and that] Every court to have reached the merits of these challenges has enjoined the ban in whole or in part." Again, this is a fallacious assertion. Some of the cases which Plaintiffs cite are substantially different from the one under consideration today. Furthermore, with regard to those involving similar laws, court in different jurisdictions have handed down differing opinions given virtually the same set of facts .

For example, in Hope Clinic v. Ryan, 977 F. Supp. 1283 the Michigan statute in question was fatally flawed in that it prohibited the "partially vaginally deliver[y]" of a fetus or infant without defining that phrase. Because it did not explain what is meant by "vaginally delivering a human fetus", as the New Jersey law does, the Michigan statute was susceptible to multiple interpretations, and thus impermissibly vague. Planned Parenthood of Alaska v. State is inapplicable to this case because it was an action raised under the Alaska state constitution in state court. It was claimed that the Alaskan law violated the state constitution’s guarantees of due process and the right to privacy, which are explicitly stated in Article I, section 22. Because of the increased level of protection the State of Alaska extends to individual liberty interests, (such as, for example, the explicitly stated right of privacy, not found in the federal Constitution under which this action is initiated) the decision in that case is not readily applicable to this one. Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997), in which the circuit court struck down a Michigan partial-birth abortion statute, is also easily distinguishable from the present case in that the Michigan statute did not contain an explicit scienter requirement. Although the legal definition in Michigan of an abortion requires intent as an element, according to the wording of the statute a physician could be convicted of performing a partial-birth abortion without having the intention of performing that specific procedure. Similarly, Planned Parenthood of Central Missouri v. Danforth is also irrelevant to today’s case, because in that instance the legislature sought to criminalize the use of saline amniocentesis as an abortion procedure, despite the fact that the saline method was the safest, cheapest, and most commonly available method in that part of the country. Such considerations do not apply to the partial-birth abortion method. The law involved in Women’s Medical Professional Corp. v. Voinovich is also relevantly different from New Jersey’s Act. The Ohio statute struck down in this case prohibited physicians from "knowingly inserting a suction device into the skull of the fetus to remove the brain" under any circumstances. Although a component of many partial birth abortions, this is a procedure which also occurs on occasion during constitutionally-protected "dilation and extraction" abortion procedures; thus, the law was struck down. Thus, while Plaintiffs present an impressive list of precedents to the Court, it must be noted not only that none of the cases cited are controlling law in this jurisdiction, but most of them deal with laws or issues relevantly different from the one facing the Court in this case.

Furthermore, Plaintiffs neglect to inform the Court of cases in which laws virtually identical to New Jersey’s were in fact upheld. In Richmond Medical Center v. Gilmore, the Fourth Circuit Court of Appeals upheld a law, containing an explicit scienter requirement, which provided a definition of "partial birth abortion" substantively similar to New Jersey’s. Planned Parenthood of Wisconsin v. Doyle, was a case in which a United States district court upheld another law virtually identical to New Jersey’s. Thus, at best, this Court is presented with conflicting decisions on the same issue, and so is invited to consider not only the precedent involved in this matter, but the legal reasoning as well.

This case is essentially about one thing - the legal definition of the term partial birth abortion. Plaintiffs’ entire case hinges on the argument that the phrase can refer to more than one procedure, whereas the State contends that the term refers only to one specific method of inducing abortion, referred to as the Intact D & X method. If the Court finds it clear that the definition set forth in the statute refers only to Intact D & X’s, then the act cannot be found void for vagueness or overbreadth. Similarly, if the Court accepts this narrow interpretation of the law, then there is no basis for the claim that the law prevents women from obtaining any previability abortions, for under the narrow interpretation they would be able to receive any procedure except for the Intact D & X. Finally, if the Court concurs with the State’s interpretation, then women are not forced to risky abortion procedures, and the lack of a health exception in the law becomes irrelevant, because pregnant women will still be able to receive suction curettage, D & E, and induction procedures, all of which are common, safe, and effective. Thus, in deciding which interpretation to accept, the Court essentially decides the entire case. It must furthermore be noted that a solid stream of precedent, which is explored in this brief, demands that the Court presume the law to be constitutional, strive to read it such that it does not infringe on any rights, and - recognizing that the scienter requirement does much to diminish the potential of arbitrary and capricious enforcement - accept the narrow interpretation.

The Act’s definition of "partial-birth abortion" is explicitly clear, avoiding any ambiguity concerning interpretation or intended enforcement. When the Act is read as intended by the Legislature, according to the plain and common meaning of the words it uses, it is evident that only one particular type of abortion is prohibited, and that it does not potentially ban "all safe, routinely used abortion procedures," as Plaintiffs claim.

There are currently seven ways in which physicians can terminated pregnancies. First, it is possible to do so through the administration of abortificants such as RU 486 or methotrexate. A second method is known alternately as suction curettage or vacuum aspiration. It is used primarily for first trimester abortions. In this procedure, the physician begins by mechanically dilating the cervix. He then removes the embryo/fetus with a tube (or syringe); this tube is attached to a vacuum generator which sucks out the fetal matter (the contents of the uterus). The fetus may come out through the tube whole or dismembered. While the procedure is occurring, there may still be a fetal heartbeat. Following the suction, the physician will then scrape the inner wall of the uterus to ensure that none of the fetus remains

A third method of inducing abortions is known as Dilation and Extraction (D & E). This technique is most often used for second trimester abortions (95% of post-first trimester abortions). Again the physician begins by dilating the cervix, using multiple "intracervical osmotic" dilators, or "laminaria" which absorb moisture and expand slowly in the cervix. When the cervix is dilated, he removes the dilators and ruptures the amniotic sac. With forceps and suction (the use of a "suction curette"), the physician removes the fetus, either intact or in parts, through the cervix. The skull (calvarium) is often too large to pass through the cervix, so it must be crushed with forceps or suction.

The fourth, less common method of performing abortions is called Induction, and is used in only 5% of post-first trimester abortions. It involves the administration of medications to women to induce premature labor. This procedure is inappropriate for some patients, however, and severe metabolic disturbances can result, as well as fatal heart, lung, and kidney conditions. Furthermore, it is more costly, more painful, and longer than a D & E.

Even less commonly used are hysterotomies and hysterectomies. Both methods are very dangerous and rare; and are almost never medically appropriate. A hysterotomy is essentially a pre-term caesarian section where the physician cuts through the uterine wall and removes the fetus through the abdomen. This creates greater risk of uterine rupture than other techniques. In a hysterectomy, the physician removes the entire uterus, thereby rendering the woman sterile. Because of the grave consequences they entail, these procedures are only used in extremely unusual circumstances.

The final method of performing abortions - the one the legislature sought to ban through the Act - is called the Intact Dilation and Extraction (D & X) method, and is a variation of the D & E procedure described above. A physician using this technique, after dilating the cervix, attempts to remove the fetus intact, feet first. He usually must turn the fetus into the "breech" position to do this. He is generally able to remove all of the fetus up to the head, which must be crushed to pass it through the cervix. Thus, physicians performing a D & X intentionally manipulate the fetus to ensure intact removal, and attempt to partially deliver the fetus before ensuring its demise. It is clear that this procedure is easily distinguishable from the other methods described above, and that it is this procedure alone which is prohibited by the Act in question.

1. The Act is not Void for Vagueness

The Act’s ban on partial birth abortions clearly does not violate due process by being void for vagueness. Plaintiffs argue in their brief that the law "‘conditions potential... liability on confusing and ambiguous criteria’ Colautti, 439 U.S. at 394." The applicable rule concerning whether laws should be considered void for vagueness is stated in Connally v. General Const. Co.:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. 269 U.S. 385, 391.

Specifically, plaintiffs offer three main contentions in support of their claim that the law is too vague and does not meet this standard. First, plaintiffs claim that "partial birth abortion" is not a medical term and is not recognized by the medical community. This is clearly fallacious. In a policy statement issued January 12, 1997, the American College of Obstetricians and Gynecologists (ACOG) stated its belief that "the intent of such legislative proposals [to ban partial-birth abortion] is to prohibit a procedure referred to as ‘Intact Dilation and Extraction’ (Intact D & X)." ACGO goes on to describe Intact D & X as involving the following steps:

1. Deliberate dilation of the cervix, usually over a sequence of days;

2. Instrumental conversion of the fetus to a footling breech

3. Breech extraction of the body excepting the head; and

4. Partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Similarly, a Report of the Board of Trustees of the American Medical Association concerning "Late-Term Pregnancy Termination Techniques" states that the AMA "will used the term ‘intact dilation and extraction’ (or intact D & X) to refer to" the procedure described above by the ACOG. It is these "intact D & X" procedures which the legislature was attempting to ban through enacting a partial birth abortion law. It was necessary to define a partial birth abortion as it was in the law, as opposed to using the ACOG’s description of the procedure above. The reason for this, however, is not immediately evident. If, for instance, step 2 of the above procedure were an element of the offense, then a physician who knowingly performed a partial birth abortion on a fetus which was already positioned feet-first within the uterus could not be convicted, because he would not have had to "instrumentally convert" the fetus into a "footling breech". Thus, there is a firm basis for believing that partial birth abortions refer to a specific procedure, that the legislature legitimately and adequately defined the procedure, and that the term is well-understood by the medical community.

Secondly, Plaintiffs argue that the phrase "partial birth abortion", as defined in the law, is ambiguous and subject to multiple interpretations. Again, this is blatantly wrong. It is instructive to first note that nowhere in Plaintiff’s brief do they supply the Court with the standards and presumptions that are supposed to be brought to bear on any vagueness or overbreadth challenge. It is accepted that "as generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson 103 S.Ct. 1855, citing Hoffman Estates v. Flipside, 455 U.S. 489. Ambiguity is to be avoided because "vague laws may trap the innocent by not providing fair warning." Women’s Professional Medical Corp. v. Voinovich 130 F.3d 187. However, it is necessary to note that "state legislatures are presumed by federal courts to have acted constitutionally in making laws." Hartford Fire Ins. Co. v. Lawrence, et al. 740 F.2d 1362 (C.A. 6 (Ohio) 1984). This principle is a consistent theme throughout the case law. "Legislatures are presumed to have acted constitutionally... their statutory classifications will be set aside only if no grounds can be conceived to justify them." McDonald v. Board of Election Com’rs of Chicago. 394 U.S. 802. "Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature’s purpose, to avoid the shoals of vagueness." Buckley v. Valeo 424 U.S. 1. The requirement that, if possible, laws are to be interpreted so as not to violate any constitutional rights is often-acknowledged by the court. "Where activities or enjoyment, natural and often necessary to the well-being of an American citizen... are involved, we will construe narrowly all delegated powers that curtail or dilute them" Kent v. Dulles 357 U.S. 116.

The presence of a scienter requirement pushes the benefit of the doubt even further in favor of upholding the statute. "The scienter requirement significantly diminished the statute’s susceptibility to discriminatory enforcement." U.S. v. Jackson 983 F.2d 757. (this was not the section of the Jackson decision that was deemed by the Court in Casey to be inapplicable to abortion cases). Indeed, in Evans v. Kelley, one of the cases which Plaintiffs proffer as an instance where the Court struck down a partial-birth abortion statute, the Court writes that "the lack of a mens rea or specific intent requirement in a statute which imposes criminal liability also may indicate that the statute is unconstitutionally vague." Going on to quote Colautti v. Franklin 439 U.S. 379, the Court wrote in Evans that "the requirement of specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid... it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware." The resulting heavy presumption in favor of upholding the statute was referred to by the United States Fourth Circuit Court of Appeals in Richmond Medical Center v. Gilmore while reviewing a Virginia partial birth abortion statute. The Circuit Court overturned the district Court’s decision, thereby holding the law constitutional.

Instead of presuming the statute constitutional and indulging the assumption, mandated by our federalism, that the State will, where necessary, construe its statutes so as to ensure their constitutionality, the district court all but presumed the statute unconstitutional and where the slightest ambiguity in the statute’s language arguably existed, assumed... that the State would adopt and enforce a construction of the statute that would render it unconstitutional. Richmond Medical Center v. Gilmore

We urge this Court not to make the same mistake as the Virginia District Court did in interpreting the law so that it is unconstitutional. Thus, it is in the light of the general presumption of the constitutionality of legislative statutes, the requirement to read statutes narrowly when fundamental rights are concerned, the clear guidance offered by the United States Circuit Court of Appeals in the Richmond case, and the presence of a scienter requirement that we must examine the New Jersey Act.

The phrase "partial birth abortion" is defined by the statute as "an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery." Specifically, plaintiffs assert that the phrase "partial birth abortion" can be construed in two ways. They argue that it can be taken to mean an abortion where the intact fetus is delivered feet-first into the mother’s vagina, up to the area around its shoulders (thus, it would be "partially delivered"), before its skull is crushed and its brains evacuated. Alternatively, plaintiffs maintain that the same phrase can be interpreted to refer to abortions where already-detached parts of the fetus are brought into the vagina. It is furthermore alleged that many abortion procedures in addition to Intact D & X, the legality of which remain unquestioned in the light of Supreme Court precedent, would be banned by such an interpretation. However, this second interpretation of the statute goes far beyond the legislature’s clear intention. By examining the common meanings of the words utilized in the statute, it becomes clear that Plaintiff’s argument is defective on three critical grounds.

First, none of the other abortion techniques could reasonably be said to fulfill the criteria set out in the law. For instance, in the suction curettage technique, where the physician essentially evacuates the fetus through a tube, that act cannot reasonably be construed to be "intentionally delivering into the vagina a living fetus." Similarly, with regard to the D & E procedure, plaintiffs maintain that in removing pieces of the fetus with forceps while a heartbeat still exists, a physician may be running afoul of the law. Such unfounded concerns were put to rest by the District Court in Doyle, which clearly stated that "Dismembered body parts are neither a child nor are they living in the ordinary meaning of these words." The Partial-Birth Abortion Act, aptly enough, covers only "partial births - a term readily applied to the partial delivery of an intact child, but hardly applicable to the delivery of dismembered body parts." The Circuit Court in Richmond went on to elaborate that a law identical to New Jersey’s in all relevant portions "does not prohibit the extraction of dismembered body parts, no matter how substantial, [and] does not prohibit the removal of detached fetal parts through the vagina via an enclosed cannula or similar bypass." A batch of detached body parts does not correlate to "a substantial portion of a living fetus." Thus, any interpretations of the law which attempt to equate the removal of dismembered body parts with a "delivery" are faulty.

Secondly, the scienter requirement prevents well-meaning physicians attempting to perform one of the unrestricted abortion procedures from being subject to prosecution. As Plaintiffs make very clear in their brief, once an abortion has begun, the physician is often unclear as to whether or not the fetus is alive at any particular point throughout the procedure. Therefore, in performing for instance a suction curettage or D & E, in which the fetus is generally dismembered, a physician cannot be said to intentionally "deliver a living human fetus" (emphasis added) into the vagina, because as stated above, he does not know whether or not it is living. According to the Court’s decision in Woods, "the physician cannot predict the time of fetal death. Therefore, a physician cannot predict whether fetal death will occur intrauterine, or whether fetal death will occur after part of the fetus has passed through the cervical os [sic]." This point is driven home by the Circuit Court in the Richmond case, which held that for procedures other than the Intact D & X, "no effort is made to determine whether the fetus is or is not living during the procedure... A provider lacking such information, therefore, cannot even be said to be knowingly removing a living fetus, let alone be doing so deliberately and intentionally."

Plaintiff’s brief makes much of the fact that although a physician may be performing a lawful procedure, "complications may arise that bring that procedure under the terms of this Act." This argument is fallacious, on scienter-related grounds, for two reasons. First, if a physician starts out performing one procedure, and by unanticipated circumstances is forced to switch in mid-operation to something that could arguably resemble a partial-birth abortion, it cannot be inferred that he thus possessed the intent to deliberately perform a partial-birth abortion. Secondly, the law explicitly contains an exception to allow the physician to use partial birth abortions in circumstances where the mother’s life is endangered. Thus, if an emergency develops, the physician is held blameless for saving the mother’s life. Whether physicians should perform partial birth abortions solely in the interests of the mother’s health is addressed in the final subpoint of Section B.

Third, the statute clearly requires not only that the physician knowingly deliver a human fetus, or a substantial portion thereof, but that he do so "for the purpose of performing a procedure the physician… knows will kill the fetus" (emphasis added). Thus, when Plaintiffs assert in their brief that the contours of the law envelope many protected procedures because "the physician always deliberately and intentionally delivers the fetus into the vagina," they have omitted a crucial clause - it is not simply entry into the vagina that is problematic, or entry of parts of a fetus that is done incidental to a lawful procedure, but entry for a specific purpose. The state seeks to prohibit abortions in which the physician delivers the fetus’ intact body into the vagina and then kills it there. Even granting the above two points to the Plaintiff, if a physician performing suction curettage, D & E, or induction happens to bring into the vagina parts of the fetus, he is not doing so for the purpose of killing the fetus in that particular location. In these procedures, the physician is not actively setting out to ensure that the pregnancy is terminated in the vagina. Instead, under these circumstances, the presence of fetal body parts in the vagina is merely the accidental consequences of a lawful abortion procedure. Again, as the Court has held in Doyle, "The concern that a doctor might be liable if he or she intends to perform a conventional D&E is wholly and adequately addressed in the law. It will not ensnare physicians who inadvertently violate the law." This point was reaffirmed in the Richmond case, where the Court held that with procedures other than the Intact D & X prohibited by the statute, "the fetus is not brought through the vagina for the purpose of killing it there, but only to complete the removal procedure."

Thus, in responding to Plaintiff’s second charge, that the term "partial birth abortion" is ambiguous and subject to multiple interpretations, we have also rebutted their third claim, that the phrase is overbroad and can be construed to criminalize abortion procedures that are, in fact, constitutionally protected. While we have seen that there are two possible interpretations of the phrase "partially vaginally deliver", it is only the second of these which potentially illegalizes most abortion procedures. However, it is also evident that this second interpretation deviates significantly from what most of us - the "common man" - would consider to be definitions of "human fetus", "deliver", and "living." Furthermore, as we have seen through precedent, the Supreme Court directs us in instances of potential ambiguity, to interpret the statute, if possible, so as to preserve its constitutionality. While the self-evident (or at least self-evident to all but the Plaintiffs) definition of Partial-Birth Abortions, as confirmed by the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association, concerns only Intact D & X’s, the presumptions and standards of legislative interpretation cause us to conclusively accept this definition. It must be recalled that many of the cases to which Plaintiffs look for support for their argument involve substantively different laws and issues than the ones before the Court today. Nevertheless, despite the fact that in the substantively similar Hope Clinic case the Court agreed that a partial birth abortion law similar to the one being considered today "is subject to more than one interpretation", this court would be better served by following the precedents set forth in the Wisconsin and Virginia cases, which upheld virtually identical laws.

2. The Act Does not Violate the Right to Privacy

As indicated in the Preliminary Statement, this entire case is about whether or not a narrow or broad interpretation of the phrase "partial birth abortion", or alternatively "partially vaginally deliver" will be accepted by the Court in the light of the presumption of statutes’ constitutionality, the extra assumption of legitimacy granted by the presence of a scienter requirement, and the decisions by other Courts to uphold substantively similar in at least two cases. It is only after making this determination that the Court can address issues concerning privacy. Plaintiffs have broken down their privacy claim into three subpoints. If the Court accepts the state’s contention that the Intact D & X procedure is the only method banned by the Act, then none of the considerations raised by Plaintiffs apply. The State agrees that, when considering what the Plaintiffs assert to be the legitimate meaning of the Act, a pregnant woman’s right to privacy is indeed violated; such an admission is irrelevant, however, because Plaintiff’s interpretation, discussed at length above, is patently invalid As the Court in Doyle aptly wrote, "All plaintiffs have managed to show is that their broad construction of the Act is likely unconstitutional. However the court is obliged to adopt a narrow construction of a law if such a construction is consistent with the statutory language and would save the law from a declaration of unconstitutionality." Buckley v. Valeo 424 U.S. 1 (1976).

Before responding to Plaintiff’s specific allegations, however, it is instructive to return to Roe and Casey to see exactly what the Supreme Court had to say about a woman’s right to privacy. Plainitff’s brief, quoting liberally from these opinions, seemed to imply that because the Act touched upon the issue of abortions, under these cases it was almost prima facie unconstitutional. Of course, such an analysis is not only incorrect, but is in direct opposition to the Court’s dictates.

The right to privacy, repeatedly brandished by Plaintiffs, guarantees women the choice of whether or not to terminate their pregnancy. The Court has explicitly left room for the State to regulate and prohibit (subject to the conditions analyzed below) specific abortion procedures, such as partial-birth abortions.

Plaintiffs are correct in asserting that, under Casey v. Planned Parenthood, a state cannot "prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." 505 U.S. at 879. However, it is the State’s contention that the Partial Birth Abortion Act under consideration does not even attempt to do this. It is only under Plaintiff’s counter-intuitive interpretation of the law that most, if not all, of the commonly practiced abortion procedures are prohibited by the wording of this Act. As previously stated, it is the state’s position that the Act is narrowly tailored to prohibit only one type of abortion procedure - the Intact D & X, leaving women free to pursue any other abortion method they and their physicians deem appropriate, either pre- or post-viability. If the Court agrees that such an interpretation is consonant with how the common man would understand the statute, then Plaintiff’s contention that the act poses an undue burden by preventing women from obtaining any previability abortions must be rejected.

Again, this subpoint in Plaintiff’s brief is centered around the assumption that the Court will accept Plaintiff’s overly broad interpretation of the law. In support of their argument, Plaintiffs cite the Court’s decisions in Hope Clinic, which held the law in that case to be unconstitutional because it "inhibit[ed] the vast majority of abortion procedures," and Woods, in which the Court ruled that the partial birth abortion ban would "force women away from D & E’s and induction abortions and toward hysterotomy and hysterectomy." Such arguments are valid only if the law in question does indeed criminalize most abortion procedures, as Plaintiffs allege it does. For the reasons specified in Section A of this brief, the State argues that the narrow interpretation of the law is the only legitimate one, and therefore women are not forced away from these common, safe procedures.

Once limited to the confines of the Intact D & X procedure, Plaintiffs have no argument. Nowhere in their brief are they able to prevent clear and convincing evidence that Intact D & X’s are categorically safer than the other methods of abortion. Furthermore, Plaintiff’s physicians are unable to cite even one instance in which an Intact D & X would be the only way to safeguard the health of the mother. Thus, while the State agrees that physicians should generally have the discretion they need to tailor their medical response to the "individual woman’s medical circumstances and overall health, as well as the physician’s skill," (Westhoff Decl. 36), Plaintiffs have failed to produce any evidence that indicates that women would face more than a de minimus amount of danger by resorting to other means of abortion.

Plaintiffs assert that, even accepting the State’s narrow interpretation of the statute, that the law is necessarily constitutional infirm because it does not contain a "health exception" which would allow a physician to perform a partial birth abortion if the health of the woman were imperiled by the pregnancy and no other procedure would present the same exact level of risk. Theoretically, this might be a somewhat compelling claim, but it holds no weight in the real world. The lack of a health exception is not an undue burden under Casey because D&E procedures are found in Evans (a case much-cited by Plaintiffs) to be "the safest method of post first-trimester abortions." Also, as the Court in Doyle tells us, the AMA found "no identified situation in which [intact D&E] is the only appropriate procedure to induce abortion." The ACOG stated it "could identify no circumstances under which [intact D&E’s]... would be the only option to save the life or preserve the health of the woman." Furthermore, Plaintiffs have no produced clear and convincing evidence that the Intact D & X is appreciably safer, under certain circumstances, than other methods of abortion. For instance, in Danforth, the Court based its decision on the fact that "on the basis of the majority of the evidence before it… the maternal mortality rate in childbirth does, indeed, exceed the morality rate where saline amniocentesis is used." 428 U.S. 52 (D. Ariz. 1997). In the absence of such evidence, the Court cannot uphold Plaintiff’s claims. Thus, there does not seem to be any actual population to which the partial birth abortion act would be an undue burden or substantial obstacle to receiving a safe abortion.

Nevertheless, even if the Court does find that requiring women to undergo alternate abortion procedures can, in some instances, increase the degree of danger to their health, this in itself is not necessarily sufficient to render the Act invalid. There are two reasons for this. First, precedent does not prevent states from regulating certain methods of abortion without providing exceptions. It is true that Roe and Casey both allow the state to prohibit post-viability abortions, so long as there are "exceptions for pregnancies which endanger the woman’s life or health." (Casey at 946, see also Roe at 164). Indeed, the Court wrote in Casey "We also reaffirm Roe's holding that, subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Casey at 162, citing Roe at 164-165. However, there is nothing in either this quote, or in any part of either the Roe or Casey decisions which prohibits states from proscribing a certain type of abortion procedure without leaving exceptions for the health of the mother. If the Act were such that the only alternatives left to patients were hysterectomies and hysterotomies, Plaintiffs would have an excellent point. However, as the Act (as seen in Section A) prohibits only the Intact D & X, given the myriad of reasonable and common alternatives to women whose health is endangered by continuing their pregnancy, this Act does not run afoul of the Roe and Casey prohibitions. Secondly, whether the law must be struck down depends on the degree to which the woman’s health is endangered. The quote from Casey above reminds us that in any situation involving abortions, especially post-viability abortions, the state has two legitimate interests to balance - the health of the mother, and the potentiality of human life. There are many examples of state policies which require a small danger to a person’s health to be accepted in the interest of advancing some compelling state interest. For instance, children entering schools are required to undergo certain vaccinations, despite the fact that there is a small chance (in the case of live-virus vaccinations) that they might thereby contract the disease the shots were meant to protect them against. Thus, a small risk to the health of the student is weighed against the state’s interest in preventing epidemics. Similarly, the Court has allowed small infringements on our right to privacy through unwarranted searches of automobiles under certain circumstances, as well as airport luggage, in the interest of preventing crime. Thus, even if Plaintiffs can produce credible evidence - which up until this point they have not - that prohibiting Intact D & X procedures might cause some additional degree of risk to certain women, in light of these example, it is not unreasonable to uphold the law. In balancing the interests of women in avoiding a small degree of additional risk (which is present in most invasive medical procedures) against protecting the sanctity and dignity of potential (and in many cases, by the time the Partial-Birth Abortion is performed, actual) human life against this barbaric and cruel procedure, the legislature came down on the side of human life. The Court justifies this choice, in writing that "the woman's liberty is not so unlimited, however, that, from the outset, the State cannot show its concern for the life of the unborn and, at a later point in fetal development, the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted." Casey. Thus, the act is valid.

For these reasons, Plaintiff’s arguments are fallacious, and the Partial Birth Abortion Ban must be ruled valid.