Women's Medical Professional Corp. v. Voinovich

DISSENT

BOGGS, Circuit Judge,

dissenting.

In my view, Ohio’s ban on the D & X procedure is constitutional. Therefore, I must dissent from the court’s holding to the contrary. Likewise, I dissent from the majority’s holding that the “medical necessity” and “medical emergency” provisions are unconstitutional because of their lack of a scien-ter requirement. Further, I believe that, to the extent that Casey requires a mental-health component to the required medical emergency exemption, the language in Casey incorporated by the Ohio legislature is sufficiently broad to encompass such a requirement. Because I believe the substance of Ohio’s partial-birth abortion statute passes constitutional muster, I would not address the question whether the Sixth Circuit should now discount, in all abortion cases, the test for facial constitutional challenges stated by the Supreme Court in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).1

I

The regulation of abortions is one of the most controversial issues of our time. Normally, such controversial issues are left to the political arena, with each side fighting to win the electorate over to its view. The *212 Supreme Court has reminded us time and again that, rather than reaching out to strike down statutes that are arguably unconstitutional, the federal courts are to interpret statutes so as to avoid difficult constitutional questions where possible. See, e.g., Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958) (construing ambiguous federal statute to avoid First Amendment problem); Adams Fruit Co. v. Barrett, 494 U.S. 638, 647, 110 S.Ct. 1384, 1389, 108 L.Ed.2d 585 (1990) (construing ambiguous state statute to avoid preemption problem). The reason federal courts should only take up constitutional questions when required to do so is that, in a constitutional democracy, courts ought not to disturb the judgments of the democratically elected branches of government unless the constitutionality of those judgments is clearly in question. See generally Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4 (1996). It appears to me that the majority’s opinion strains to interpret Ohio’s partial-birth abortion statute'so as to make the burden imposed by Ohio’s ban on dilation-and-extraction (“D & X”) abortions, and on most post-viability abortions, appear “undue” in violation of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). As I hope to show, this interpretation is neither correct nor appropriate.

The abortion area, of course, has been largely constitutionalized, as the Supreme Court has made clear in a line of decisions starting with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Some choices, however, remain within the state’s legislative power. These choices have not always been well delineated by the Court, with the result that pro-life advocates continue to seek greater controls on abortion, while pro-choice advocates continue to push for complete constitutional protection of all abortion procedures. This has left us, as the body bound to interpret the Constitution and Supreme Court precedent, squarely in the middle. Our obligation, as an intermediate appellate court, is to apply faithfully the guidance handed down to us, neither unduly expanding, nor capriciously contracting, the leeway properly reserved for democratic choice.

As I read the Supreme Court decisions, two principles relevant to today’s case have been authoritatively decided: (1) a particular method of abortion can be banned, if such a ban does not create an “undue burden” on a woman’s right to choose an abortion, see Casey, 505 U.S. at 880, 112 S.Ct. at 2822; and (2) post-viability abortions can be banned “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. at 879, 112 S.Ct. at 2821 (plurality opinion) (citation omitted).

At oral argument, counsel for the abortionists asserted, with commendable candor, their position that these principles, properly interpreted, pose no barrier to any woman seeking an abortion at any time for any purpose. Their logic is based on the continuing use of language such as “consultation with her doctor” and “appropriate medical judgment.” In their view, the use of this language necessarily implies that any abortion that the mother will request or the doctor will perform must remain available, despite the two principles above. With regard to the first principle, the reasoning is that any statute prohibiting a mother from obtaining her preferred abortion procedure ipso facto places an “undue burden” on her right to choose an abortion.. With regard to principle two, counsel’s logic is that any statute restricting a doctor’s choice of abortion procedure automatically violates Casey’s “appropriate medical judgment” caveat.

But surely this proves too much. If this logic were correct — and it was certainly pressed on the Court at the time of the Casey and Danforth decisions — surely the Court would have said so, rather than setting up a maze that legislatures can in fact never successfully negotiate (despite the Court’s apparent invitation to them to try). To adopt the plaintiffs’ position would be to assume that the Supreme Court is deeply dishonest rather than simply deeply divided. I choose not to believe that, and thus believe that the Court meant what it said in permitting state abortion regulations in certain contexts. We therefore must take it as a given *213 that some post-viability abortions may be banned and that some methods of abortion can be banned generally.

The specific question we must address today thus is not whether Ohio can regulate abortion — clearly it can — but whether Ohio “got it right” in its effort constitutionally to regulate one particularly offensive abortion procedure. To put it differently, did Ohio, in its zeal to implement the political will of its citizens, sweep too broadly in regulating certain categories of abortion procedures, or are the plaintiffs here simply attempting, by a variety of artful stratagems, to prevent the Ohio legislature from exercising any powers over abortion? With respect to the Ohio legislature’s attempt to ban the D & X procedure, I believe that Ohio got it right.

First, while the evidence presented to the district court supports its finding that the D & X procedure may pose less risk to some women in some eases than the available alternative procedures, see Women’s Med. Prof. Corp. v. Voinovich, 911 F.Supp. 1051, 1068-71 (S.D.Ohio 1995), the district court has not found that the other procedures are unsafe or unavailable. Such a finding was crucial to the Supreme Court’s decision in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-77, 96 S.Ct. 2831, 2844-45, 49 L.Ed.2d 788 (1976). In Danforth, the Court struck down a ban on saline injection abortions based on evidence that showed that the saline method was the most commonly used method of abortion and that the proffered alternative method, prostaglan-din suppositories, was not available to women at that time. In this case, by contrast, the district court made no finding that the D & X procedure is commonly used or that there are no other safe alternative methods available to women in Ohio. In fact, it found to the contrary. See Voinovich, 911 F.Supp. at 1068-71.

Second, Danforth must be read in light of the later Casey decision. The Danforth Court relied on Roe’s formalistic trimester framework, under which Missouri’s ban on saline abortions in the second trimester could be upheld only if based on the health interests of the mother. As the majority acknowledges, see supra at 192, Casey did away with the trimester framework, focusing instead on whether the regulation posed an “undue burden” on the woman’s right to choose an abortion. See Casey, 505 U.S. at 880, 112 S.Ct. at 2822. The plurality opinion also emphasized the need to give more weight to a state’s asserted interest in the potentiality of life. See id. at 875, 112 S.Ct. at 2819-20 (“Not all governmental intrusion is necessarily unwarranted; and that brings us to the other basic flaw in the trimester framework: even in Roe’s terms, in practice it undervalues the State’s interest in the potential life within the woman.”). Therefore, given this new framework, a finding that a procedure is simply “safer” in some instances is not sufficient. Rather, the district court would need to have found that the D & X method is the safer procedure in most circumstances, especially when confronted with such a rarely used procedure. See Danforth, 428 U.S. at 76, 96 S.Ct. at 2844-45.

If there is any doubt as to the constitutionality of Ohio’s D & X ban standing by itself, it is resolved by the fact that the Ohio statute provides for an affirmative defense to liability for situations in which all other available abortion procedures pose a greater danger to the mother’s health. It thus eliminates any concern that the law might restrict a woman’s access to the D & X procedure in those actual circumstances where other procedures are not as safe. The fact that this exception is an affirmative defense does not undermine its constitutionality. See Simopoulos v. Virginia, 462 U.S. 506, 510, 103 S.Ct. 2532, 2535-36, 76 L.Ed.2d 755 (1983) (abortion statute was not unconstitutionally applied to a physician on the asserted ground that the state failed to prove the lack of medical necessity for a second-trimester abortion since, under state law, the prosecution was not obligated to prove lack of medical necessity beyond a reasonable doubt until defendant invoked medical necessity as a defense). The majority’s offhand dismissal of the significance of the affirmative defense provision, see supra at 200-01, is especially puzzling given the Supreme Court’s repeated endorsement of criminal statutes placing the burden of raising a particular affirmative defense on the defendant. See, e.g., Engle v. Isaac, 456 *214 U.S. 107, 120-21, and n. 20, 102 S.Ct. 1558, 1568 and n. 20, 71 L.Ed.2d 783 (1982); Mullaney v. Wilbur, 421 U.S. 684, 701-03, nn. 28, 30, 31, 95 S.Ct. 1881, 1891-92, nn. 28, 30, 31, 44 L.Ed.2d 508 (1975).

I believe that the majority, in dismissing the importance of the affirmative defense provision in the statute, has erroneously focused on an extreme case, accepting plaintiffs’ argument that women would be required to bear an increased medical risk because the fear of prosecution will spur physicians to use alternative procedures even when the D & X procedure is the safest method. Such an extreme example, however, obscures the reality that all criminal laws chill conduct that is at the margins of legality. In any event, it is inappropriate for the majority to rely on such an extreme hypothetical case since the evidence shows that the D & X procedure is never medically indicated. The strongest finding the district court could make was that late in the second trimester of pregnancy the D & X procedure “does appear to have the potential of being safer than all other available abortion procedures.” 911 F.Supp. at 1070. As the district court recognized, however, even this finding has never been scientifically proved. Voino-vich, 911 F.Supp. at 1068-69 (“The Court acknowledges that if there were a statistical study, published in a peer review journal, which demonstrated the benefits of the D & X procedure, this would make the asserted benefits more credible.”).

One doctor testified that the D & X procedure is “essentially identical” to a procedure used and abandoned by the medical profession because it posed safety risks to the mother, including perforation of the uterus, injury to the cervix and/or vagina, and infection. Although the district court discounted this testimony because of advances in medicine (e.g., ultrasound), the safety of the D & X procedure nonetheless remains untested and undocumented. The only evidence suggesting that the D & X procedure is safe is an anecdotal report of a single surgeon, which has not been substantiated by other investigators nor even submitted to a peer-reviewed publication. In fact, the American Medical Association has taken a public stand against the procedure, supporting a federal ban on partial-birth abortions. On May 19, the AMA Board of Trustees issued a statement supporting then-pending federal legislation to outlaw the D & X procedure, stating that it “is a procedure which is never the only appropriate procedure and has no history in peer reviewed medical literature or in accepted medical practice development.” This position later received the endorsement of the entire AMA House of Delegates. See 40 American Medical News, No. 25 (July 7, 1997).

The majority concludes in the alternative that the statute is unconstitutionally vague in that it would also effectively ban the more commonly used dilation and evacuation (“D & E”) procedure. I do not believe this is so. Rather, I believe that the plaintiffs are attempting to create ambiguity where there is none. Such is the genius of a vagueness challenge because, in the extreme, words can always be said to be ambiguous. See, e.g., Frederick Schauer, Easy Cases, 58 S. Cal. L.Rev. 399, 420 (1985) (“Ever since Macbeth mistakenly relied on the linguistic precision of the witches’ prophesy, people have been able to construct weird and fanciful instances in which even the clearest language breaks down.”).

Plaintiffs seemed to concede at oral argument that had a different set of words been used in defining the D & X procedure the provision would have had identical effect, but been more difficult to challenge. Counsel, however, could not be pinned down as to any set of words that would, in his view, acceptably define the procedure. I believe this is because any set of words chosen by the Ohio legislature would have been challenged on vagueness grounds. But this type of argument (especially where, as here, the words chosen clearly define a procedure understood by doctors and laymen alike) proves too much.2

*215 I believe that the definition of the D & X procedure makes clear the procedure subject to the ban. Only a procedure in which a physician terminates the pregnancy by “purposely inserting a suction device into the skull of a fetus to remove the brain” is banned by House Bill 135. And there is nothing from the legislative history to suggest that the legislators were attempting to deceive the electorate, the medical community, or the courts by wording the legislation in such a way as covertly to ban most second-trimester abortions through the effective ban of the commonly used D & E procedure. Rather, it appears that the Ohio legislature intended to only ban this one procedure because it believed it to be a particularly heinous method of abortion.

Although the legislature might have been wise to choose language more closely resembling the federal legislation, which is discussed by the majority at footnote 8 of its opinion,3 I believe the language chosen by the Ohio legislature sufficiently defines the procedure to give fair notice as to what is encompassed by the ban. The testimony at the hearing in the district court clearly demonstrates that doctors who perform abortions have no difficulty discerning the conduct prohibited by the statute. Moreover, I believe the D & E procedure does not satisfy the definition of the ban because it does not terminate the pregnancy by purposely inserting a suction device into the fetal skull to excavate the contents of the skull. Rather, any suctioning of the brain is only a byproduct of the abortion procedure already performed, and is neither purposeful nor the means of terminating the pregnancy.

I am, however, in agreement with the majority’s conclusion that the post-viability ban on the D & X procedure causes no constitutional violation. I find the severability issue moot, since, unlike the majority, I believe that the pre-viability ban on the D & X procedure causes no constitutional problem.

II

I also part company with the majority’s holding that the “medical necessity” and “medical emergency” provisions are unconstitutional for their lack of a scienter requirement. I believe that the language the Ohio legislature used “provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will [of the legislature], That there may be marginal eases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.” United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947) (citation omitted). “The mere fact that a penal statute is so framed as to require a jury upon occasion to determine a question of reasonableness is not sufficient to make it too vague to afford a practical guide to permissible conduct.” United States v. Ragen, 314 U.S. 513, 523, 62 S.Ct. 374, 378, 86 L.Ed. 383 (1942). What the majority’s argument fails to recognize is that a defendant subject to criminal liability is afforded considerable constitutional protections, including the requirement that the state prove guilt “beyond a reasonable doubt.” In a close case, the “beyond a reasonable doubt” standard would provide protection against the abuses hypothesized by the majority.

Moreover, I believe that the majority’s reliance on Colautti v. Franklin, 439 U.S. 379, *216 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), for the proposition that a statute without a scienter requirement is vague is misplaced. The Supreme Court in Colautti specifically declined to decide whether “under a properly drafted statute, a finding of bad faith or some other type of scienter would be required before a physician could be held criminally responsible for an erroneous determination of viability.” 439 U.S. at 396, 99 S.Ct. at 686. Rather, the principle invoked by the Court in Colautti simply is that a scienter requirement can mitigate the vagueness of an otherwise vague law — not that the absence of a scienter requirement will “create” vagueness where it does not otherwise exists. See also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). And I do not believe there is anything vague, or even novel, about a statute prescribing a standard including components of good faith and reasonableness. For example, when a defendant raises a claim of self defense, he must show an honest belief that the imminent use of deadly force was necessary and that such belief was reasonable under the circumstances. See, e.g., Thomas v. Arn, 704 F.2d 865, 869 n. 5 (6th Cir.1983).

Even the three-justice plurality in Casey recognized that the “life or health of the mother” exception may be invoked only when necessary “in appropriate medical judgment.” See 505 U.S. at 879, 112 S.Ct. at 2821-22. It is difficult to see how a medical judgment can be deemed “appropriate” if it is, beyond a reasonable doubt, not a reasonable medical judgment. The majority’s position would in essence constitutionalize a rule comparable to that adopted by the Supreme Court in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), for tax cases. In that case, the Court interpreted the tax code to permit a taxpayer to defend against a charge that he willfully failed to pay taxes where he believed, in good faith, that he owed no taxes, even though his belief may have been unreasonable. See id. at 201-02, 111 S.Ct. at 610-11. I do not think the Constitution requires us to create a Cheek-Mike rule and hold that a doctor is exempt from liability simply because he believes, in good faith, that any childbirth not consented to by the mother will seriously damage her health.

Moreover, I am not persuaded by the majority’s language that the lack of scienter is particularly troublesome in the abortion context because of the emotionally charged nature of the subject. See supra at 208-09. Such an argument fails to recognize what the law itself does recognize: that a jury will have to find beyond a reasonable doubt that the doctor failed to act “in good faith [or] in the exercise of reasonable medical judgment” when determining whether a medical emergency existed or whether there was a medical necessity for the abortion. Unlike the majority, I have faith that the jury system will not run amok. “If the jury system is to remain a part of our system of jurisprudence, the courts and litigants must have faith in the inherent honesty of our citizens in performing their duty as jurors....” State v. Sheppard, 165 Ohio St. 293, 135 N.E.2d 340, 343 (1956).

Moreover, even were I to accept the majority’s view that the jury system may fail in the abortion context, I do not believe that simply changing the standard by which the physician is to be judged will cure the problem. If a jury and judge are bent on convicting a physician who performs late-term abortions because of distaste for the act, they will do so, no matter what standard is set out for them to follow. Determining whether a jury’s verdict is supported by the evidence is our task as appellate judges — and, I should think, a task preferable to taking the question out of the hands of juries before they have had a chance to serve their constitutional function.

Ill

Finally, I believe that to the extent Casey requires a medical necessity exemption that includes a mental-health component, see 505 U.S. at 879, 112 S.Ct. at 2821-22, the language in Casey incorporated by the Ohio legislature is sufficiently broad to encompass such a requirement.4 Although the Supreme

*217 Court in Casey deferred to the Pennsylvania appellate court’s construction of the medical emergency provision, which was specifically limited to physical conditions, the definition in Casey, which the Ohio legislature chose to adopt, does not in my opinion exclude a “serious non-temporary” threat that encompasses “severe risks of mental and emotional harm,” language of which the majority would apparently approve. See supra at 209. Such phraseology is nothing more than a rewording of the language already found in Casey. It is hard to distinguish the majority’s preferred “severe non-temporary” construction from the “serious risk of substantial and irreversible” language found in House Bill 135 and in Casey. Likewise, sufficiently severe “mental and emotional harm” can be encompassed by “impairment of a major bodily function.” Although Ohio Rev.Code Ann. § 2919.16(J) specifically mentions only the physical conditions, of “Pre-eclampsia ... Inevitable abortion ... Prematurely ruptured membrane ... Diabetes [and] Multiple sclerosis” in its definition of “a serious risk of the substantial and irreversible impairment of a major bodily function,” this list is non-exhaustive, as the section specifically states that the valid emergency conditions are “not limited to” the list enumerated by the legislature. It is counterintuitive to say that sufficiently severe mental harm is not an impairment of a major bodily function; if anything, it could be seen as an impairment of the most significant bodily function. But again my colleagues reach to construe the statute in its least favorable constitutional light. If the majority is unwilling to follow Justice Brandeis’s advice in Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandéis, J., concurring), that “courts must refrain from passing upon the constitutionality” of a statute “unless obliged to do so,” at a minimum it would be prudent to wait for an authoritative statutory construction from an Ohio court. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

IV

My colleagues begin their opinion by holding that the rule stated in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), will no longer govern facial challenges to abortion statutes in this circuit. See supra at 193-96. In Salerno, the Supreme Court stated that facial challenges to the constitutionality of statutes (as distinct from challenges to particular applications of statutes) can only be sustained upon a showing that there is “no set of circumstances ... under which the [statute] would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. at 2100. Relying on language in Casey (itself a facial challenge) in which the three-Justice plurality noted that “in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion,” 505 U.S. at 895, 112 S.Ct. at 2866, three federal appellate courts have held that Salerno has been effectively overruled and that facial challenges to abortion statutes need only demonstrate that a “large fraction” of statutory applications would be unconstitutional. See Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996), cert. denied sub nom. Leavitt v. Jane L., — U.S. -, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir.1995), cert. denied sub nom. Janklow v. Planned Parenthood, Sioux Falls Clinic, — U.S. -, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996); Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 863 n. 21 (3d Cir.), stay denied, 510 U.S. 1309, 114 S.Ct. 909, 127 L.Ed.2d 352 (1994). On the other hand, one federal appellate court and four Justices of the Supreme Court have stated that Salerno remains the law in the abortion context as elsewhere. See Ada v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Sealia, J., joined by Rehnquist, C.J., and White, J., dissenting from denial of certiorari); Janklow v. Planned Parenthood, Sioux Falls Clinic, — U.S. -, -, 116 S.Ct. 1582, 1584, 134 L.Ed.2d 679 (1996) (Sealia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting from denial of certiorari); Barnes *218 v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.), cert. denied, 506 U.S. 1021, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992).

Because I believe that a proper construction of the Ohio statute at issue compels the conclusion that the statute is constitutional as a substantive matter, I see no reason for our circuit to wade into these cross-currents. Nonetheless, I note briefly a number of potential problems with my colleagues’ resolution of the Salerno issue. First, the Salerno Court rested its holding on the long-recognized proposition that, except in the First Amendment context, facial challenges to statutes are disfavored. See Salerno, 481 U.S. at 745, 107 S.Ct. at 2100 (“The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”). By taking the view that it is unconstitutional for a statute to chill the exercise of abortion rights — the fear of a chilling effect being the basis for the over-breadth doctrine — the majority today may unintentionally be taking the first step along a dangerous path along where, for example, FDA regulation of birth control devices could be subject to a facial challenge because they could chill the right of married couples to obtain and use contraceptive products. Many valid laws regulate conduct that, at the margins, comes close to the boundaries of constitutionally protected activity; only in the First Amendment context has this fact been declared to have constitutional significance.

Second, to the extent that Casey announced a rule to replace Salerno’s requirement of a showing that no possible application of a statute could be constitutional, the rule is that a plaintiff may possibly succeed on a facial challenge by showing that a “large fraction of the cases in which” the challenged statute is relevant are likely to involve statutory applications creating an undue burden on the right to choose abortion. That manifestly cannot be shown here. The district court found that 95 percent of abortions in the United States are performed in the first 15 weeks of pregnancy, a period in which the D & X procedure is not used. See Voino-vich, 911 F.Supp. at 1064. For 95 percent of abortion seekers, therefore, neither the D & X prohibition nor the post-viability abortion prohibition are a problem. Even within the small subgroup of women who seek an abortion sufficiently late in pregnancy to prefer a D & X, the fact that there are other reasonably safe alternatives available in most cases means that the D & X prohibition cannot be said to impose an unconstitutional burden on their right to choose abortion, even though it eliminates one of their several options. The only women whose constitutional rights genuinely seem to be at issue, then, are those few women who seek late second-trimester abortions and for whom D & X is the only safe procedure. Putting aside the fact that the Ohio statute provides an affirmative defense for these women and their doctors, this small subset of women cannot seriously be called a “large fraction” of women affected by the statute. For these reasons, I would leave the question of Salerno’s applicability for another day.

V

The deficiencies that the majority finds in the Ohio statute, and the changes that would apparently be necessary to remedy them in the majority’s view, are matters of nuance, not of basic principle. If the views expressed by Judge Kennedy were accepted law, it seems to me that Ohio could change its language to meet this ruling and still accomplish, in my view, 99 (if not 100) percent of what it reasonably thought it was accomplishing with the words that it did use.

However, clear guidance to state legislatures as to where they permissibly can impose abortion regulations appears not to be the real motivation of plaintiffs nor the likely result of cases such as ours. The post-Case?/ history of abortion litigation in the lower courts is reminiscent of the classic recurring football drama of Charlie Brown and Lucy in the Peanuts comic strip. Lucy repeatedly assures Charlie Brown that he can kick the football, if only this time he gets it just right. Charlie Brown keeps trying, but Lucy never fails to pull the ball away at the last moment. Here, our court’s judgment is that Ohio’s *219 legislators, like poor Charlie Brown, have fallen flat on their backs. I doubt that the lawyers and litigants will ever stop this game. Perhaps the Supreme Court will do so.

VI

For the reasons discussed above, I would reverse the district court’s order as it applies to the D & X provision, as well as to the medical necessity and medical emergency provisions.

. I do not take issue with the conclusions expressed in Part II.E of the majority opinion.

. Allowing such an argument to succeed would, if taken to the extreme, result in all laws being vague. Many perfectly valid criminal laws are less than perfectly specific — hence the rule of lenity, which states that ambiguities in criminal statutes are to be construed in favor of the accused. United States v. R.L.C., 503 U.S. 291, *215 305-13, 112 S.Ct. 1329, 1338-42, 117 L.Ed.2d 559 (1992) (discussing rule of lenity).

. As explained above, I am confident that any language in this area, no matter how clear, will be challenged on vagueness grounds inasmuch as all language is potentially ambiguous. Plaintiffs in a challenge to Michigan legislation banning partial-birth abortions argued that the language in that statute, which mirrors the federal legislation language, is unconstitutionally vague because the statutory language does not provide physicians with adequate clear notice of the specific procedure or procedures proscribed by the law. A federal district court recently found that language unconstitutionally vague, noting that the term “partially vaginally delivers a living fetus” covers “the partial removal of a fetus while its heart is still beating, whether in whole or in part, [and thus] could outlaw conventional dilation and evacuation procedures in which the fetus is evacuated part by part, as well as intact D & E procedures.” Evans v. Kelley, 977 F.Supp. 1283, 1306 (E.D.Mich.1997).

. I say "to the extent" because the part of Casey in which the vitality of Roe and Doe (the cases *217 relied upon by the majority, see supra at 207-09) is discussed drew the votes of only three Justices. See Casey, 505 U.S. at 869-79, 112 S.Ct. at 2816-22.