concurring in part and dissenting in part.
Abortion and its regulation are about as sensitive and contentious as things get in our society. If a court can deal with them in a way that seems credible and reassuring — not to mention just — something has been accomplished. Judge Crabb has subjected Assembly Bill 441 to an insightful and painstaking analysis, which cannot help but be reassuring. The majority has affirmed the bulk of her findings and I agree, in general, with its discussion of the core provisions of AB 441. However, the question whether a doctor’s “reasonable medical judgment” may constitutionally be the standard for determining whether a medical emergency exists remains for me an important and debatable issue. Before attempting to resolve it, I would certify to the Wisconsin Supreme Court the issue whether as a matter of state law scienter would be required for the imposition of civil forfeiture liability under the Act. If state law were construed so that AB 441 contained a subjective element, a serious constitutional issue would be avoided.
AB 441’s medical emergency provision is modeled on the Pennsylvania law that was upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), with two important differences. First, while the Pennsylvania statute — and other statutes modeled on its terms — employ a subjective, “good faith” standard, Wisconsin instead has enacted an objective reasonableness test to evaluate a physician’s decision to bypass the informed consent procedures in emergency situations. Second, the Wisconsin law is enforceable with civil penalties but not by criminal sanctions. In some respects, these modifications of the Pennsylvania model have offsetting effects in the constitutional calculus. The objective reasonableness test argues against constitutionality while the civil nature of the penalties argues for it. As the majority concedes, AB 441 appears to *498be a strict liability statute: a physician who bypasses the informed consent requirements in the belief that an emergency abortion is necessary will be strictly liable in cases where his or her decision is subsequently determined to have been unreasonable. The physician will face forfeiture of between $1,000 and $10,000, a possible civil damages action at the hands of the patient as well as professional disciplinary action. In addition, the statute contains no scienter requirement. Although most of the precedent is in the criminal rather than the civil context, no purely objective standard for physician conduct in the context of emergency abortions has previously been upheld.
Judge Crabb dealt with this issue by observing that there would be “few situations in which a doctor would think that she was making a good faith judgment to perform an emergency abortion but not a reasonable one.” See Karlin v. Foust, 975 F.Supp. 1177, 1222 (W.D.Wis.1997). She also noted that the plaintiff physicians performing abortions are confronted with only a very small number of such emergencies each year. I think that these observations cut to the practical heart of the matter. But we must address the issue in principle as well as in practice. For the plaintiffs here contend, with the support of substantial authority, that the willingness of physicians to engage in an abortion practice will be significantly chilled if they must face the prospect of being second-guessed by a judge or jury on the reasonableness of their evaluation of medical emergencies. Therefore, say the plaintiffs, the proper standard must be good faith.
As I read the majority opinion, it is saying two things about this issue. First, it is saying that the objective reasonableness standard is not vague because of ambiguity (a vice found in the Ohio statute in Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997)). Second, the majority tries to answer the objection that the statute is vague because it exposes the doctor to second-guessing on the issue of reasonableness. The majority holds on this issue that doctors already risk second-guessing on malpractice liability based on alleged unreasonable conduct. Hence, their willingness to engage in an abortion practice will not suffer any incremental chill if one more sanction for unreasonableness is invoked against them. The argument seems to be that one more risk of second-guessing will add nothing to the concern of the physician already suffering other risks of the same kind. Perhaps this analysis might prove pragmatically correct in certain cases but it can be just as easily argued that the threat of an additional penalty — civil forfeiture — based on unreasonableness will lower the temperature of the existing chill a few or many more degrees. Such a deepening chill might particularly occur in the controversial area of abortion. Certainly, there are several cases that strongly suggest the unconstitutionality of a purely objective standard.
In Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), the Court struck down Pennsylvania’s viability-determination provision principally on the ground that its mixed subjective-objective standard was ambiguous. But the Court also stressed that the fate of the Pennsylvania provision was compounded by related concerns: the statute’s strict criminal and civil liability, the absence of a scienter requirement and the uncertainty and probable disagreement surrounding the medical decision. These factors, the Court concluded, could have “a profound chilling effect on the willingness of physicians to perform abortions near the point of viability in the manner indicated by their best medical judgment.” 439 U.S. at 396, 99 S.Ct. 675. While, as I have noted, the Wisconsin statute at issue in the present case does not suffer from the flaw of a mixed and ambiguous standard, if it contains no scienter requirement, it may be tainted with Colautti’s related concerns. For the physician is subject to strict civil and quasi-criminal liability and the deter*499mination whether a medical emergency exists — like the viability determination — is fraught with uncertainty and susceptible to dispute. Thus, the Court’s prophetic words of caution seem apposite to the case at hand.
Our sister circuits that have addressed the issue have emphasized the propriety of a subjective, in contrast to an objective, approach to medical emergencies in the abortion context. In Voinovich, the Sixth Circuit held that a mixed subjective-objective standard without a scienter requirement rendered Ohio’s medical emergency provision unconstitutionally vague. Echoing the Supreme Court, the Sixth Circuit also expressed its disquiet over Ohio’s use of an objective standard without a scienter requirement, a combination which it considered “especially troublesome in the abortion context.” 130 F.3d at 205. The Sixth Circuit concluded: “The objective standard combined with strict liability for even good faith determinations, could have a profound chilling effect on the willingness of physicians to perform abortions, ... when the woman’s health or life is threatened.” Id. (internal quotation and citation omitted). The Third and Eighth Circuits have headed in the same general direction. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682 (3d Cir.1991) (upholding a subjective standard on the ground that no physician practicing in good faith need fear conviction); Fargo Women’s Health Org. v. Schafer, 18 F.3d 526 (8th Cir.1994) (upholding a subjective standard combined with a scienter requirement); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir.1995) (striking down a South Dakota statute that applied strict criminal and civil liability for violation of the medical emergency provision without a scienter requirement). A recent district court case in Alabama reaches the same conclusion. See Summit Medical Assocs., P.C. v. James, 984 F.Supp. 1404 (M.D.Ala.1998).
The majority seeks to dodge the brunt of these authorities by emphasizing that none stands directly for the proposition that an objective standard is unconstitutional per se. This seems an overly technical reading of the case law. While it is one thing to say that these authorities do not directly rule out the majority’s position, it is quite another to suggest that they actually support it. Contrary to the majority’s view, these authorities clearly underscore the desirability of some form of scienter requirement.
The majority opines that there is no need for scienter here because under AB 441 a physician is subject only to financial liability, whether in the form of forfeiture or of an action for damages by the woman on whom the abortion was performed. But I cannot agree with the majority’s pronouncement the forfeiture provision is “qualitatively no different from the threat of civil liability under AB 441.” Ante at 467, AB 441 directs the State to impose a penalty of not less than $1,000 and not more than $10,000 on a physician who violates its terms. The forfeiture provision has certain punitive characteristics: for example, it promotes the traditional aims of punishment — retribution and deterrence — and it has no other readily discernible purpose. See Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997) (listing “useful guideposts” in classifying civil remedies as opposed to criminal penalties). See also Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (“fines, penalties, and forfeitures are readily characterized as sanctions”). It is reasonable to conclude that the forfeiture provision was intended to be punitive and may be aptly characterized as quasi-criminal. The theoretical objections to the imposition of criminal or quasi-criminal liability without a scienter requirement are well known. See, e.g., Staples v. United States, 511 U.S. 600, 605-06, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); Miller, 63 F.3d at 1465-67. Indeed, in the present case, the appellees *500appear to concede that enforcement by way of forfeiture prosecutions under AB 441 may be problematic. See Appellee’s Br. at 29, note 4.
Nor am I persuaded by the majority’s extensive analogy to tort standards that govern in other medical contexts. Just because the unreasonableness of a doctor’s conduct may be put in question in a malpractice suit does not mean that his or her vulnerability to forfeiture liability also based on unreasonableness will not add to the chilling effect. It seems to me that Wisconsin’s use of an objective standard, combined with the strict liability and the arguable absence of a scienter requirement, may place an excessive burden on the medical profession. Under AB 441, a physician who performs an emergency abortion may be liable — even of the action was in good faith on the basis of the doctor’s best medical judgment — if the physician is subsequently deemed to have acted unreasonably.
The use of a purely objective standard for medical emergencies may also complicate the discussion about the absence of an express mental health exception in AB 441. I endorse the majority’s conclusion that “the only logical reading of AB 441 demonstrates that the medical emergency provision requires a physician to be able to exercise some degree of discretion in a pre-viability context when providing the information set forth in the informed consent section of the statute to a woman when the provision of this information would create a significant threat to a woman’s health.” Ante at 489 (note omitted). But if an objective standard without a scienter requirement is applied to a physician’s exercise of discretion under the majority’s view, many of the same problems that I have discussed in connection with emergency abortions may arise. Hence, the imposition of a scienter requirement would be helpful in arriving at a constitutional resolution.
All of the foregoing discussion becomes academic if there is an implied scienter term in the “reasonable medical judgement” provision of AB 441. See State of Wisconsin v. Olson, 175 Wis.2d 628, 498 N.W.2d 661 (1993) (reading a scienter requirement into a traffic statute imposing civil penalties). If, in order to violate the emergency abortion provision and related provisions' — and implicate the forfeiture provisions — a doctor would have to act “knowingly” or “wilfully,” I would see no further constitutional problem. Hence, I. would certify the scienter problem to the Wisconsin Supreme Court in the hope that a possible construction of state law might obviate any need for federal intervention.