retained products of conception, hemorrhage and cervical injury. Another advantage of D&Es over induction procedures is that D&Es can be performed in the earliest weeks of the second-trimester while inductions are generally not effective until the sixteenth week LMP. Thus, inductions require a woman to delay her abortion, thereby increasing the risks involved. On the other hand, inductions have a lower rate of uterine perforation than the rate of such perforations when D&E procedures are used.
D. Hysterotomy and Hysterectomy
Many years ago, hysterotomy and hysterectomy were used to terminate second-trimester pregnancies. A hysterotomy is essentially a pre-term caesarian section. The physician makes an incision in the uterine wall and removes the fetus, through the abdomen. Women who have had hysterotomies are at significantly greater risk of uterine rupture in subsequent pregnancies. Uterine rupture can be associated with catastrophic bleeding. Hysterectomy is the removal of the uterus and renders the woman sterile. Hysterectomy entails greater surgical risk and prolonged recovery time. Both procedures entail major abdominal surgery with risks far greater than the other abortion methods described. The mortality rate associated with hysterotomy and hysterectomy is more than seven times that associated with instillation abortion and more than ten times that associated with D&E procedures. The experts agree that these two procedures are almost never medically appropriate.
IV. LEGAL STANDARD FOR INJUNCTIVE RELIEF
Plaintiffs seek a preliminary and permanent injunction from this court to prevent defendants from enforcing HB 382, the Partial-Birth Abortion Ban Act. This court must consider four traditional criteria in deciding whether to grant preliminary injunctive relief: (1) whether the plaintiffs have a reasonable likelihood of success on the merits; (2) whether the plaintiffs have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (3) whether the injury to the plaintiffs from denying injunctive relief outweighs the harm to the defendants from granting the injunction; and (4) whether the public interest will be served by granting the injunction. Plummer v. American Institute of Certified Public Accountants, 97 F.3d 220, 229 (7th Cir. 1996) (citing N.L.R.B. v. Electro-Voice, Inc., 83 F.3d 1559, 1567 (7th Cir. 1996), cert. denied, U.S. , 117 S. Ct. 683, 136 L. Ed. 2d 606 (1997)).
The standard for a permanent injunction is essentially the same as for a preliminary injunction except that in seeking a permanent injunction, a plaintiff must prove actual success on the merits rather than a likelihood of success on the merits. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396, 1404 n.12, 94 L. Ed. 2d 542 (1987). Moreover, a permanent injunction is not provisional in nature but rather, it is a final judgment. Plummer, 97 F.3d at 229 (citing Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273, 275 (7th Cir. 1992)). With these principles in mind, we begin our substantive review of the statute.
As stated above, plaintiffs must show actual success on the merits of their claim that HB 382 is unconstitutional. Plaintiffs offer three reasons for declaring the statute unconstitutional: (1) the statute is vague; (2) the statute unduly burdens the constitutional rights of women seeking abortions; and (3) the statute impermissibly requires third-party consent from the parents of a minor seeking an abortion.
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222 (1972). Due process demands that statutes give fair warning as to the conduct that is prohibited. Id. Without such warning as to the meaning of a statute, people will "steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Id. at 109 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1322-23, 12 L. Ed. 2d 377 (1964)). A statute, therefore, is void for vagueness if people of "ordinary intelligence" are forced to guess at the meaning of the statute and differ as to its application. See Grayned, 408 U.S. at 108; Smith v. Goguen, 415 U.S. 566, 574, 94 S. Ct. 1242, 1248, 39 L. Ed. 2d 605 (1974). Moreover, a statute is void for vagueness if it "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application." Grayned, 408 U.S. at 109, 92 S. Ct. at 2299.
Perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362 (1982); Colautti v. Franklin, 439 U.S. 379, 391, 99 S. Ct. 675, 683, 58 L. Ed. 2d 596 (1979). Moreover, the standard of certainty that due process requires is higher when a statute imposes criminal penalties. Kolender v. Lawson, 461 U.S. 352, 358 n.8, 103 S. Ct. 1855, 1859 n.8, 75 L. Ed. 2d 903 (1983). Failure to satisfy the more stringent standard in cases where constitutional rights or criminal penalties are involved necessitates a finding that the law is unconstitutionally vague. Evans v. Kelley, 977 F. Supp. 1283, 1304 (E.D. Mich. 1997) (citing Kolender, supra). This is true even though the law could conceivably have some constitutional applications. Colautti, 439 U.S. at 391, 99 S. Ct. at 683; Kolender, 461 U.S. at 358, 103 S. Ct. at 1859. With these principles in mind, we review HB 382.
HB 382 bans "partial-birth abortions". A "partial-birth abortion" is defined as an abortion in which the physician "partially vaginally delivers" a "living" fetus before killing the fetus and completing the delivery. The phrase "partially vaginally delivers" is not defined in the statute. The term "living" is also not defined in the statute. Because persons of ordinary intelligence are forced to guess as to the meaning of the phrase "partially vaginally delivers" and the term "living," the court must find the statute void for vagueness. The statute simply does not provide fair notice to individuals who are subject to the statute as to the conduct that is prohibited.
The phrase "partially vaginally delivers" is subject to more than one interpretation. The term "deliver" or "delivery" is given a broad meaning in obstetrics. Anything that is removed from the uterus, whether it is a fetus, a fetal part, or a baby, is "delivered." Thus, in every abortion procedure, except hysterotomy and hysterectomy, a fetus or a fetal part is "delivered." Given this broad meaning of the term "delivery," the phrase "partially vaginally delivers" can encompass two distinct situations. On the one hand, "partially vaginally delivers" may describe a situation where an intact fetus is delivered in part through the uterus. On the other hand, "partially vaginally delivers" may describe a situation where part of a fetus is delivered through the uterus. See Ginsberg Affidavit, P 16; Hammond Declaration, P 27; Zbaraz Affidavit, P 15.
The term "living" also has more than one meaning and may be interpreted differently by people of "ordinary intelligence". One dictionary defines "living" as "possessing life; alive." THE AMERICAN HERITAGE DICTIONARY 737 (2d College ed. 1982). The term "life" is defined as "the property or quality that distinguishes living organisms from dead organisms ... manifested in functions such as metabolism, growth, response to stimuli, and reproduction." Id. at 728. The term "life" can also signify "the interval of time between birth and death." Id. Physicians define the term "living" as "having a heartbeat." The physicians' definition, therefore, extends the dictionary definition to a time before birth. As such, their definition encompasses situations where fetal parts have been "delivered" but the remaining part continues to have a heartbeat. Without a clear definition in the statute as to the meaning of the term "living," a physician cannot know whether her conduct falls within the statute's reach.
In almost every abortion procedure, with the exception of hysterotomy and hysterectomy, either a delivery of a partial fetus or a partial delivery of an intact fetus may occur. In a suction curettage procedure, a tube is inserted in the uterus and fetal parts are evacuated through the cervix and into the vaginal canal. While these parts are being evacuated, other parts of the fetus remain in the uterus. These remaining parts may be "living" if there is a heartbeat. When this happens, the physician may have "partially vaginally delivered" a "living" fetus. In D&E procedures, the physician removes the fetus with forceps and suction curettage. In so doing, a physician may "deliver" or "partially deliver" an intact, living fetus or a part of a "living" fetus that continues to have a heartbeat. In either instance, the physician may have performed a "partial-birth abortion" as defined in HB 382. Frederiksen Decl. P 50; Ginsberg Aff. P 17; Hammond Decl. P 27; Zbaraz Aff. P 15. When beginning a suction curettage procedure or a D&E procedure, a physician cannot predict whether a part of a fetus or an intact fetus will be "delivered," or whether a part of the fetus with a heartbeat will remain in the uterus.
The phrase "partially vaginally delivers" may also encompass some cases of induction and cases where a woman spontaneously aborts her fetus. In some cases of induction, the umbilical cord becomes entangled and must be cut by the physician in order to complete the delivery. In those rare instances when the fetus is still "alive," cutting the cord may cause its death within six to ten minutes. In completing the delivery during this time period, the physician may have "partially vaginally delivered" a living fetus. Hammond Decl. P 28; Zbaraz Aff. P 16; Ginsberg Aff. P 18. In addition, in cases where a woman spontaneously aborts, it may be in her best interests for the physician to complete the abortion. Again, part of the "living" fetus may remain in the cervical os while other fetal parts are "delivered" by the physician. Hammond Declaration, PP 30-33.
The phrase "partially vaginally delivers" is undefined, ambiguous and subject to more than one interpretation. Likewise, the terms "living" and "delivery" are undefined and subject to more than one interpretation. The law's drafters may have intended to define these terms in a way that differs from the medical definition of such terms. Physicians cannot determine whether the legislature intended to ban a specific practice or entire abortion procedures. As such, they will steer far wider of the unlawful zone and refuse to perform many abortion procedures even if those procedures are not proscribed by the statute. Defendants argue that common-sense dictates that the legislature intended to proscribe situations in which an intact, living fetus is partially or entirely brought out of the uterus and into the birth canal. However, when people of ordinary intelligence are confused as to the statute's meaning and differ as to the interpretation of the statute, common-sense dictates that the statute is unclear and ill-defined.
This is especially the case when the people whose conduct is directly implicated by the statute cannot discern the statute's meaning and its application.
Our decision that the Partial-Birth Abortion Ban Act is void for vagueness finds support in this circuit. In Charles v. Carey, 627 F.2d 772, 790-91 (7th Cir. 1980), the Seventh Circuit held that an abortion statute was void for vagueness because it left terms undefined yet subjected physicians to stiff criminal penalties. The challenged statute expanded the definition of term "individual" in the Illinois Criminal Code to include "any human being aborted alive." Thus, any person who killed an "individual" or a "human being aborted alive" could be guilty of murder under the Illinois Criminal Code. The Seventh Circuit enjoined the statute because it found that the phrase "any human being aborted alive" failed to give fair notice of the conduct that was forbidden. The court explained:
The meaning of the term "alive" could include only the most minimal of life signs in a nonviable fetus or it could be limited to the capability of sustained survival. The lack of a precise definition leaves physicians uninformed as to their duties toward the fetus and could deter them from performing abortions for fear of being singled out for prosecution for murder under this ambiguous standard.
627 F.2d at 791. Likewise, in the statute before this court, the term "living" could describe the most minimal life signs in a nonviable fetus, such as having a heartbeat, or it could mean capable of sustained survival. However, the court, and more importantly, the physicians, have no way of knowing whether the legislature intended the statute to apply to the former situation rather than the latter.
District courts in other circuits that have been confronted with similar "partial-birth abortion statutes" have found the language of the statute, or lack thereof, ambiguous and susceptible to more than one interpretation. For example, in Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997), the court declared the partial-birth abortion statute at issue void for vagueness. The statute in Evans defined "partial-birth abortion" as an abortion in which the physician "partially vaginally delivers a living fetus before killing the fetus and completing the delivery." Similarly, in Planned Parenthood of Southern Arizona, Inc. v. Woods, 982 F. Supp. 1369, 1997 U.S. Dist. LEXIS 17226 (D. Ariz. 1997), the district court held the partial-birth abortion statute unconstitutionally vague because its definition was ambiguous and susceptible to different interpretations. Like HB 382, the Arizona law defined "partial-birth abortion" as a procedure in which a physician "partially vaginally delivers a living fetus."
Because the constitutional rights of women are directly affected by the interpretation of the statute taken by physicians who perform abortion procedures, defendants must meet a higher standard of certainty to avoid a vagueness problem. A higher standard of certainty is also required because criminal penalties are imposed by the statute. Defendants have failed to meet such a standard. The statute, laden with undefined terms, fails to define with any certainty the conduct that is proscribed. Without such definitions to guide persons as to the prohibited conduct, the law "furnishes a convenient tool for 'harsh and discriminatory enforcement by ... prosecuting officials'," Papachristou v. City of Jacksonville, 405 U.S. 156, 170, 92 S. Ct. 839, 847, 31 L. Ed. 2d 110 (1972) (quoting Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 742, 84 L. Ed. 1093 (1940)), and gives law enforcement officers, courts and jurors "unfettered freedom" to "engage in arbitrary and discriminatory enforcement." Id. As such, the court finds that the statute is void for vagueness. This holding, in turn, renders the entire statute unconstitutional as the remainder of the statute depends upon the vague provisions for its meaning.
B. Undue Burden
Plaintiffs also contend that HB 382 is unconstitutional because it imposes an undue burden on the constitutional rights of women seeking abortions. In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), the Supreme Court reaffirmed the central holding of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), that a woman has a constitutional right to terminate her pregnancy before viability and the State may not prohibit any woman from making that ultimate decision. The Court also reaffirmed 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, 505 U.S. at 879, 112 S. Ct. at 2821 (quoting Roe, 410 U.S. 113 at 164-65, 93 S. Ct. at 732).
The plurality, however, rejected Roe 's rigid trimester framework because they believed it undervalued the State's interest in life. Under the trimester framework, almost all abortion regulations were prohibited during the first trimester of pregnancy. During the second trimester, regulations were permitted to protect the woman's health, but not to further the State's interest in potential life. During the third trimester, laws regulating or prohibiting abortion were allowed provided that the life or health of the mother was not at stake. Instead of this framework, the plurality in Casey drew the line at viability and recognized the State's interest in promoting life even in the earliest stages of pregnancy. The Court declared: "Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause." 505 U.S. 833 at 874, 112 S. Ct. at 2819. In the Court's view, "the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected right." 505 U.S. at 876, 112 S. Ct. at 2820.
The Court clarified that a state regulation imposes an undue burden when it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. 505 U.S. at 877, 112 S. Ct. at 2820. "A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it." Id. Moreover, the Court stated that state regulations that promote the health or safety of a woman seeking an abortion are valid, unless they have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.
Applying these principles, we review the challenged legislation. HB 382 proscribes "partial-birth abortions" except in cases where it is necessary to save the life of the mother because her life is endangered by a physical disorder, a physical illness, or a physical injury, including a life-endangering condition caused by the pregnancy itself, "provided that no other medical procedure would suffice for that purpose." There is no exception to the ban when the woman's health is endangered, when the woman suffers from conditions or illnesses other than those enumerated, such as mental conditions or disorders, or when the woman's health is endangered by the pregnancy itself or is compromised by the alternative abortion procedure. Significantly, the Act does not distinguish between abortions that are performed before viability and after viability.
For two reasons, the court finds that HB 382 imposes an undue burden on a woman's constitutional right to choose to terminate her pregnancy before viability. First, the statute, as written, has the potential effect of banning the most common and safest abortion procedures. It does so without regard for the viability of the fetus. Second, the statute does not permit a physician to use the prohibited procedure when it is necessary to protect the woman's health, whether mental or physical, or when an alternative abortion procedure would compromise the woman's health. As such, HB 382 is clearly unconstitutional.
HB 382 has the potential effect of banning the most common and safest abortion procedures. It prohibits physicians from "knowingly" performing a partial-birth abortion. Although "knowingly" is not defined by the statute, it generally means "consciously" or when a person "acts with awareness of the nature of his conduct." BLACK'S LAW DICTIONARY 872 (6th ed. 1990). Thus, a physician acts "knowingly" when she is aware that her conduct may fall within the statute's reach. In virtually every abortion procedure, except hysterotomy and hysterectomy, a physician may "knowingly" violate HB 382. As explained before, in suction curettage, D&E, and induction procedures, a physician is aware that she may deliver a partial "living" fetus or partially deliver an intact fetus. Although the physician does not know in advance whether one of these two scenarios will in fact occur, she will have violated the statute when such a delivery occurs. To ensure that her conduct does not fall within the statute's reach, the physician will probably stop performing such procedures.
The affidavits and declarations submitted by the plaintiff-physicians supports this conclusion. All of the physicians stated in their affidavits and declarations that if HB 382 goes into effect, they and their colleagues will most likely stop performing abortions because they "know" that during any abortion procedure, except hysterotomy and hysterectomy, a part of a "living" fetus may be delivered or an intact fetus may be partially delivered. Although they cannot predict in advance whether this will happen, they will stop performing abortions to avoid criminal and civil punishment. See Ginsberg Aff. P 17 ("a doctor cannot predict whether such a circumstance will arise, but there is always a possibility that it will."); Streicher Aff. P 5; Frederiksen Decl. P 5; Hammond Decl. PP 27, 28. Dr. Zbaraz states that "because physicians cannot predict the precise course of events that will occur in a given abortion procedure," it is his belief that "the mere performance of a procedure deemed after the fact to fall within HB 382's definition" could subject him to criminal penalties. This risk of prosecution "would cause [him] to stop providing abortions." Zbaraz Aff. P 17. Likewise, Dr. Frederiksen states that because "the course of surgery and obstetrical practice is unpredictable," a physician cannot adhere to a rigid plan, but must adapt quickly and proceed in a way that may not have been intended at the outset of the procedure. Frederiksen Decl. P 52. In her opinion, "HB 382 leaves physicians to fear that virtually any abortion could subject them to criminal liability." Id. at P 53. Because the standard in HB 382 effectively chills physicians from performing most abortion procedures, the statute is an undue burden on a woman's constitutional right to seek an abortion before viability.
Moreover, physicians who want to continue performing abortion procedures will have to do so at an increased cost or an increased risk to the patient. See Streicher Aff. P 5; Frederiksen Decl. P 5. According to Dr. Zbaraz, if physicians stop performing suction curettage, D&E and induction procedures, they will be limited to performing hysterotomies, hysterectomies and induction procedures that ensure the demise of the fetus in utero. Zbaraz Aff. P 21. The mortality rate associated with hysterotomy and hysterectomy is more than ten times that associated with a D&E procedure and more than seven times that associated with instillation abortion. Moreover, the mortality rate of induction procedures is almost twice that of D&E procedures. Serious complications, including fatal heart, liver and kidney problems, can result from performing inductions, hysterotomies and hysterectomies. Hysterectomies also render a woman sterile. Thus, the health risk to women will be significantly higher if D&E and suction curettage procedures are prohibited and only hysterotomy, hysterectomy, and induction procedures are available.
Further, because these procedures require hospital stays and expensive equipment, the cost of abortion procedures to patients will significantly increase. Ginsberg Aff. P 23. Whereas D&E procedures cost from $ 350 to $ 700, inductions and other procedures that require hospital stays cost from $ 1000 to $ 3000. Frederiksen Decl. P 54. Such procedures often require expensive ultrasound equipment, costing in excess of $ 30,000. Because HB 382 will significantly increase the cost of abortion procedures, it places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. Such an undue burden on her constitutional rights is unconstitutional.
Alternatively, a physician could avoid the reach of HB 382 by assuring the demise of the fetus in utero. To do so, a physician would have to inject the fetus prior to beginning the abortion procedure with a substance to trigger cardiac arrest. Zbaraz Aff. P 23, Ginsberg Aff. P 24. However, only a few physicians are trained to perform such injections and they require the use of highly sophisticated ultrasound machinery. Hammond Decl. P 40; Ginsberg Aff. P 24. These injections are also contraindicated for some women, such as those who have heart conditions. They also carry a risk of puncturing the bowel, veins or arteries. Zbaraz Aff. P 23. A punctured bowel can result in a serious infection and possibly death. Punctured veins or arteries can cause internal bleeding. Another way to ensure fetal demise is to attempt to cut the umbilical cord while the fetus is in utero. Depending on the location of the cord within the uterus, searching for the cord with an instrument or suction tube can cause uterine perforation and other complications. Hammond Decl. P 42. On the other hand, suction curettage and D&E procedures have significantly lowered the risk and improved the overall quality of second trimester abortion procedures. Zbaraz Aff. P 21; Ginsberg Aff. P 21. Hysterotomy, hysterectomy and induction procedures that ensure fetal demise cannot be regarded as effective substitutes for suction curettage and D&E procedures.
In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), the Supreme Court found unconstitutional a provision of a Missouri abortion statute that prohibited the use of saline amniocentesis, an abortion procedure used after the first 12 weeks of pregnancy. The appellants in Danforth argued that this proscription would effectively preclude abortions after the first trimester because 70% of all abortions performed after the first trimester used the proscribed procedure. Moreover, they stressed that hysterotomy and hysterectomy were significantly more dangerous, and another safer alternative, prostaglandin installation, was not widely used. The Court relied upon these arguments in finding the proscription unconstitutional. The Court stated:
The State ... would prohibit the use of a method which the record shows is the one most commonly used nationally by physicians after the first trimester and which is safer, with respect to maternal mortality, than even the continuation of pregnancy until normal childbirth. Moreover, ... it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed.
428 U.S. at 78-79, 96 S. Ct. at 2845. The Court found that the ban on the procedure was not "a reasonable regulation for the protection of maternal health." Rather, it was "an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks." Id. The Court, therefore, held that the ban on the procedure was unconstitutional. See also Wynn v. Scott, 449 F. Supp. 1302, 1325-26 (N.D.Ill. 1978) (finding a statute's proscription of an abortion procedure unconstitutional where alternative procedures available were not as safe and were contraindicated for certain women), aff'd sub nom. Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979).
Other circuit and district courts that have reviewed similar partial-birth abortion statutes have found that the effect of such statutes would be to prevent many women from obtaining safe abortions. See, e.g., Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 1997 U.S. App. LEXIS 32232 (6th Cir. 1997); Evans v. Kelley, 977 F. Supp. 1283 (E.D. Mich. 1997); Planned Parenthood of Southern Arizona, Inc. v. Woods, 982 F. Supp. 1369, 1997 U.S. Dist. LEXIS 17226 (D.Ariz. 1997); Carhart v. Stenberg, 972 F. Supp. 507 (D. Neb. 1997). Under Carey and Danforth, this effect is unconstitutional and renders the statute invalid. Because HB 382 has the effect of inhibiting the vast majority of abortion procedures and would significantly increase the health risks for a woman seeking an abortion of a nonviable fetus, the court finds the statute unconstitutional.
Defendants contend that there are applications of HB 382 that would unquestionably be constitutional. For example, they argue that a physician who aborts a viable, full-term, partially-born child for no compelling reason relating to maternal health would be subject to prosecution under the statute. Under these circumstances, they claim that the statute would operate constitutionally. Defendants ask that we apply the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987), which was decided five years before the Supreme Court's decision in Casey. Under Salerno, to make a facial challenge to a statute, "the challenger must establish that no set of circumstances exists under which the Act would be valid." Id. The fact that the statute "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id.
It appears, however, that the plurality in Casey abandoned the Salerno rule in cases dealing with abortion. The plurality in Casey rejected the State's argument that although the spousal consent provision at issue imposed a burden on some women, it imposed almost no burden on the vast majority of women seeking abortions. 505 U.S. at 894, 112 S. Ct. at 2829. Circumstances, therefore, existed where the statute operated within constitutional bounds. In rejecting this argument, the plurality stated:
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.... The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.