concurring in the denial of rehearing en banc.
I concur in the court’s denial of rehearing en banc. The panel decision, Richmond Medical Center for Women v. Hicks, 409 F.3d 619 (2005), holds that the Commonwealth of Virginia’s latest statute criminalizing “partial birth abortion” is unconstitutional on its face because it lacks an exception to protect a woman’s health. The decision is mandated by Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), which holds that any statute banning “partial birth abortion,” specifically the intact D&E/D&X procedure, must contain a health exception in order to be constitutional.
In Carhart the Supreme Court, in striking down a Nebraska ban on “partial birth abortion,” based its holding on longstanding precedent and a thoroughgoing analysis of all available medical information. The Court began by recognizing the established standard from Roe v. Wade, 410 U.S. 113, 164-65, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a standard reiterated by the plurality opinion in Planned Parenthood v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992): “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.” Carhart, 530 U.S. at 930, 120 S.Ct. 2597 (internal quotation marks and citation omitted). The Carhart Court applied this standard by examining medical opinion and information regarding the intact D&E/D&X procedure from a broad range of sources. The Court drew both from the record and sources outside the record, including medical textbooks and journals covering abortion, the factual records developed in other “partial birth *163abortion” cases, and amicus briefs (with citations to medical authority) submitted by medical organizations. Based on all of this information, the Court determined that substantial medical authority supports the proposition that the intact D&E/D&X procedure offers significant health and safety advantages in certain circumstances. See id. at 934-38, 120 S.Ct. 2597. This determination led the Carhart Court to establish as a per se constitutional rule the health exception requirement for any statute outlawing “partial birth abortion.” Id. at 938, 120 S.Ct. 2597 (holding that “a statute that altogether forbids [the intact D&E/JD&X” procedure necessarily “creates a significant health risk” and “consequently must contain a health exception”). As Virginia acknowledges, its statute criminalizes “the D&X procedure, or what is sometimes referred to as an ‘intact D&E.’ ” Reply Br. of Appellants at 2; see also id. at 3 (identifying “[t]he central issue in this case” as “whether [Virginia] may prevent use of the D&X or intact D&E” procedure). Because the Virginia statute lacks a health exception, it is unconstitutional on its face. See Carhart, 530 U.S. at 938, 120 S.Ct. 2597; see also Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 1948-49, 158 L.Ed.2d 891 (2004) (recognizing the validity of facial challenges to statutes regulating abortion procedures).