dissenting.
I respectfully dissent. In passing the Partial-Birth Abortion Ban Act of 2003 (the “Act”), Congress sought to prohibit the “gruesome and inhuman procedure” of delivering a fetus into this world only to destroy it as it reaches the threshold of birth. Pub.L. No. 108-105, § 2(1), 117 Stat. 1201, 1201, codified at 18 U.S.C. *297§ 1531. This procedure, Congress found, blurs the line between abortion and infanticide and distorts the ethical duties of physicians. Id. § 2(14)(G), (J), (0), 117 Stat. at 1205-06. Moreover, Congress specifically found that the “partial-birth abortion” procedure — generally referred to as “Dilation and Extraction” or the “D & X” procedure — is “never medically necessary” and in fact “poses serious risks to a woman’s health.” Id. § 2(13), 117 Stat. at 1203-04. It further found that there is “no credible medical evidence” that the procedure is safer than other abortion procedures. Id. § 2(14)(B), 117 Stat. at 1204.
The District Court, in this case, agreed with Congress in many respects. After hearing all of the evidence, the District Court found that the government’s expert witnesses had “reasonably and effectively refuted Plaintiffs’ proffered bases for the opinion that D & X has safety advantages over other second-trimester abortion procedures.” Nat’l Abortion Fed’n v. Ashcroft, 330 F.Supp.2d 436, 479 (S.D.N.Y.2004) (N.A.F.). The District Court found that many of the plaintiffs’ proffered bases are not “credible; rather they are theoretical or false.” Id. at 480.
Nonetheless, the District Court held the Act unconstitutional upon finding a “division of medical opinion,” or a “disagreement in the medical community,” about the purported safety advantages of D & X. See id. at 481-82. According to the District Court, Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), renders irrelevant Congress’s findings— and, indeed, the District Court’s own findings — on the medical necessity of the D & X procedure. The District Court stated that the question is not whether “Congress was reasonable in its finding that D & X is never medically necessary. Instead, the relevant inquiry ... is whether Congress reasonably determined, based on substantial evidence, that there is no significant body of medical opinion believing the procedure to have safety advantages for some women.” N.A.F., 330 F.Supp.2d at 488.
In my view, the District Court’s fundamental error' — which is reflected in the majority’s opinion as well — is to collapse the inquiry into whether a “division of medical opinion” exists and thereby discard any role for congressional findings about the actual necessity of the procedure. Stenberg requires a health exception “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” Stenberg, 530 U.S. at 938, 120 S.Ct. 2597. While a “division of medical opinion” may factor into the presence or absence of “substantial medical authority,” there must be more to the inquiry than simply counting heads. The medical opinion in favor of a particular view — in this case, the advantages of D & X — must be supported by credible medical explanations and evidence. Whether such medical evidence exists is a factual issue, and I believe we owe deference to Congress’s factual findings, supported by the District Court’s own findings, that D & X is never medically necessary and that there is no “credible medical evidence” to the contrary. See Partial-Birth Abortion Ban Act, § 2(1), (13), (14)(B), 117 Stat. at 1201, 1203-04. At least some consideration of and deference to congressional findings is appropriate in the area of abortion, just as it would be on factual matters affecting economic or environmental regulation, campaign finance reform, or the necessity of civil rights measures to remedy discrimination.
In addition, unlike the Nebraska statute at issue in Stenberg, the Act specifically proscribes the destruction of a living fetus that is substantially outside the body of its mother. The Nebraska statute prohibited *298a partial-birth abortion that could have occurred completely within the body of the mother. Congress recognized the controlling nature of the Supreme Court’s decision in Stenberg, and created a more narrow prohibition preventing the destruction of a living fetus that is substantially “outside the body of the mother.” 18 U.S.C. § 1531(b)(1)(A). Moreover, the Act’s prohibition was tailored to address Congress’s particular concern that a “partial-birth abortion” “blurs the line between abortion and infanticide.” Partial-Birth Abortion Act, § 2(14X0), 117 Stat. at 1206. This fundamental distinction requires us to reevaluate whether Stenberg necessarily controls the disposition of this case. Because I do not believe that a woman’s right to terminate her pregnancy under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), or Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), extends to the destruction of a child that is substantially outside of her body, and that the State has a compelling interest in drawing a bright line between abortion and infanticide, I am of the opinion that Stenberg is not dispositive of this case.
I.
I begin by addressing Stenberg’s “substantial medical authority” standard in order to determine whether the existence of “substantial medical authority” supporting the necessity of D & X is a factual issue and, if so, whether Congress’s findings on the issue are entitled to deference.
A.
The Supreme Court explained in Stenberg that a statute must include “an exception ‘where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.’ ” Stenberg, 530 U.S. at 931, 120 S.Ct. 2597 (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791). This “governing standard” prohibits the State from “endanger[ing] a woman’s health when it regulates the methods of abortion.” Id. at 931, 120 S.Ct. 2597. This requirement is not limited to situations where the pregnancy itself endangers the woman’s health, but also includes “where state regulations force women to use riskier methods of abortion.” Id. As the Court stated; “Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks.” Id.
The Court then considered Nebraska’s argument that “the law d[id] not require a health exception unless there is a need for such an exception.” Id. The Court did not dispute the logic of Nebraska’s argument but rather held that the state had failed as a factual matter: “The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart.” Id. at 931 — 32, 120 S.Ct. 2597 (emphasis added). The Court concluded that “[t]he State fails to demonstrate that banning D & X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D & X would be the safest procedure.” Id. at 932, 120 S.Ct. 2597.
The Stenberg majority arrived at this conclusion by examining four “medically related evidentiary circumstances”:
The upshot is a District Court finding that D & X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D & X is generally safer, and an absence of controlled medical studies *299that would help answer these medical questions.
Id. 936-37, 120 S.Ct. 2597. Given the presence of these four “medically related evidentiary circumstances,” the Court determined that the statute required a health exception. Id. at 937, 120 S.Ct. 2597. “In sum,” the Court explained, “Nebraska has not convinced us that a health exception is never medically necessary to preserve the health of women.” Id. at 937-38, 120 S.Ct. 2597 (internal quotations marks omitted). The Stenberg majority then went on to state what has since been interpreted as the “rule” arising out of the case: “[Wjhere substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception when the procedure is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Id. (internal quotation marks omitted); Carhart v. Gonzales, 413 F.3d 791, 796 (8th Cir.2005) (focusing on “substantial medical authority” as the standard for determining the constitutionality of the federal Act), petition for cert. filed, No. 05-380 (Sept. 23, 2005).
The District Court held that the presence of only one of the four evidentiary circumstances — a division of medical authority — requires the statute to contain a health exception. As noted above, the District Court generally agreed that the safety advantages of D & X proffered by the plaintiffs were hypothetical and unsubstantiated, but it found that there is nonetheless “a division of medical authority over the issue of whether D & X is generally safer than the alternatives. The Supreme Court has held that when there is such a division of medical opinion, a health exception is constitutionally required.” N.A.F., 330 F.Supp.2d at 491. This is not the correct standard. In my view, “substantial medical authority” must be determined in light of all four medically related evidentiary circumstances and not simply equivocated to “division of medical opinion,” “however hypothetical or unsubstantiated by scientific evidence” that opinion may be. See id. at 491.
The plaintiffs interpret “substantial medical authority” to mean any medical opinion contending that D & X is necessary to protect women’s health no matter how unsupported or false. To the contrary, Casey’s reference to “appropriate medical judgment” means that courts must tolerate “responsible differences of medical opinion.” Stenberg, 530 U.S. at 937, 120 S.Ct. 2597 (emphasis added). Stenberg is premised on the district court’s belief in Dr. Carhart’s testimony and its finding that “D & X may be the best or most appropriate procedure in a particular circumstance to preserve the health of a woman.” Id. at 932, 120 S.Ct. 2597. Indeed, two of the “medically related eviden-tiary circumstances” were “a district court finding that D & X significantly obviates health risks in certain circumstances” and “a highly plausible record-based explanation of why that might be so.” Id. at 936-37, 120 S.Ct. 2597.11 Although the phrase *300“appropriate medical judgment” must, according to Stenberg, “embody the judicial need to tolerate responsible differences of medical opinion,” id. at 937, 120 S.Ct. 2597, there is no suggestion that there is a judicial need to tolerate medical opinions that are “incoherent,” “theoretical,” “unsubstantiated by scientific evidence,” and “false,” N.A.F., 330 F.Supp.2d at 480. To the contrary, Stenberg states clearly that not only must a “significant body of medical opinion believe[ ] a procedure may bring with it greater safety for some patients,” it must also “explain[ ] the medical reasons supporting that view.” Stenberg, 530 U.S. at 937, 120 S.Ct. 2597. Here, the plaintiffs were unable to “explain[] the medical reasons supporting” the proposition that D & X is medically necessary. N.A.F., 330 F.Supp.2d at 479 (finding that the government “refuted Plaintiffs’ proffered bases for the opinion that D & X-has safety advantages over other second-trimester abortion procedures”). Medical opinions that both Congress and the District Court rejected as false, cannot constitute “appropriate medical judgment.”
In sum, under my reading of Stenberg, the ultimate issue remains the necessity of D & X in preserving women’s health, to be determined based on substantial medical authority. See Stenberg, 530 U.S. at 937-38, 120 S.Ct. 2597. Where there is a division of medical opinion and credible medical explanations supporting both sides of that division, that level of uncertainty indicates a risk to women and requires a health exception. See id. Stenberg, however,. did not set down an immutable ban on the passing of a statute banning D & X without a health exception or suggest that the division of medical opinion alone could require such an exception.12 Cf. Carhart, 413 F.3d at 801 (“This is not to say, however, that because the Supreme Court concluded that ‘substantial medical authority’ *301supported the need for a health exception in 2000, legislatures are forever constitutionally barred from enacting partial-birth abortion bans.”)- Overall, while the necessity of D & X is an issue bounded by legal considerations, the quality and credibility of medical evidence supporting the D & X procedure is still a factual one, and, for the reasons explained below, I would find that Congress is owed deference in its determination that no credible medical evidence— and by implication, no truly substantial medical authority — supports the medical necessity of the D & X procedure.
B.
With respect to Congress’s findings, the District Court inquired into whether “Congress reasonably determined, based on substantial evidence, that there is no significant body of medical opinion believing the [¶] & X] procedure to have safety advantages for some women.” N.A.F., 330 F.Supp.2d at 488. The District Court declared that Congress’s findings on the issue of a consensus were not reasonable, but as explained above, I do not believe that this is the correct inquiry. The majority, meanwhile, expresses that it “intend[s] no disrespect to Congress for making its own finding on the matter,” and it makes “no judgment with respect to the validity of the congressional findings.” Ante at 287. Instead, the majority believes that Stenberg renders Congress’s findings irrelevant, and that the only inquiry is whether the challenger of the statute can demonstrate “substantial medical authority” — i.e., some medical opinion — in support of D & X’s safety advantages.
While I appreciate that the majority intends no disrespect toward Congress, discarding the relevance of Congress’s findings altogether is hardly more respectful than reviewing their validity. Moreover, Stenberg did not discuss the impact of legislative findings, as the Nebraska legislature did not make any findings on the necessity of D & X. See Act of June 9, 1997, §§ 1-3, 1997 Neb. Laws 23 (1997) (amending Neb.Rev.Stat. §§ 28-235 to - 236). Thus, Stenberg should not be interpreted to preclude Congress from conducting its own analysis of whether a health exception is necessary. Now that Congress has made findings, I believe that we are obligated to consider and afford appropriate deference to those findings in determining whether the four evidentiary circumstances creating “substantial medical authority” exist in this case.
1.
A court’s determination concerning the risks inherent in a medical procedure is not an interpretation of the Constitution to which Congress must defer. Whether D & X is necessary to protect women’s health is a question of fact that cannot be decided in a single litigation. As Stenberg left open the possibility that given a different factual record a ban proscribing D & X could be constitutional, Congress was entitled to examine the relevant medical evidence on the subject. Whether D & X is a necessary procedure to protect women’s health is a matter of “legislative fact.” See N.A.F., 330 F.Supp.2d at 485 n. 30; accord Carhart, 413 F.3d at 799; Hope Clinic v. Ryan, 195 F.3d 857, 884 (7th Cir.1999) (en banc) (Posner, J., dissenting), vacated and remanded, 530 U.S. 1271, 120 S.Ct. 2738, 147 L.Ed.2d 1001 (2000). Legislative facts are generally described as “those which have relevance to legal reasoning and the lawmaking process, whether in the formation of a legal principle or ruling by a judge or court or in the enactment of a legislative body” as distinguished from “adjudicatory facts” which “are simply the facts of the particular case.” Fed.R.Evid. 201, advisory committee’s note, quoted in *302Landell v. Sorrell, 382 F.3d 91, 203 (2d Cir.2004) (Winter, J., dissenting), cert. granted, — U.S.-, 126 S.Ct. 35, 162 L.Ed.2d 933 (2005). Legislative facts found by a lower court are not subject to a clearly erroneous standard of review but may be reviewed de novo by an appellate court. See Lockhart v. McCree, 476 U.S. 162, 168 n. 3, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (stating that it was unpersuaded that legislative facts were subject to clearly erroneous review). An appellate court, however, may not disregard legislative facts found by a legislature in the exercise of its lawmaking power:
[T]he government’s burden of justifying its legislative enactment against a facial challenge may be carried by pointing to the enactment itself and its legislative history. These are “legislative facts,” the substance of which cannot be trumped by the fact finding apparatus of a single court. While a party challenging an ordinance can point to other factors not considered by the legislature to demonstrate that the legislature acted irrationally, it cannot subject legislative findings themselves to judicial review under a clearly erroneous standard or otherwise. To do so would ignore the structural separation between legislative bodies and courts and would improperly subordinate one branch to the other.
Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.1995), vacated on other grounds, 517 U.S. 1206, 116 S.Ct. 1821, 134 L.Ed.2d 927 (1996); accord Dunagin v. City of Oxford, 718 F.2d 738, 748 n. 8 (5th Cir.1983) (“In the first place, the issue of whether there is a correlation between advertising and consumption is a legislative and not an adjudicative fact question.... The specific issue here was undoubtedly considered by the Mississippi Legislature when local option and the curtailment of liquor consumption were being studied. Now the issue has moved to the judicial stage. If the legislative decision is not binding at this stage, at least it carries great weight. Certainly it cannot be thrust aside by two experts and a judicial trier of fact.”).
The overarching principle is clear: “When Congress makes findings on essentially factual issues ... those findings are of course entitled to a great deal of deference, inasmuch as Congress is an institution better equipped to amass and evaluate the vast amounts of data bearing on such an issue.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 331 n. 12, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). When deciding constitutional questions, courts “must be particularly careful not to substitute ... [their] own evaluation of the evidence for a reasonable evaluation by the Legislative Branch.” Rostker v. Goldberg, 453 U.S. 57, 68, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). We owe Congress deference not only “out of respect for [its] authority to exercise the legislative power,” but also because Congress possesses an institutional competency over the judiciary, as it “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” Turner v. FCC, 520 U.S. 180, 195-96, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (Turner II); see also United States v. Gainey, 380 U.S. 63, 67, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965) (“[I]n matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.”).
Obviously, the deference owed to Congress is strongest in cases involving rational basis review. As the Supreme Court noted, generally “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not *303reasonably be conceived to be true by the governmental decisionmaker.” See Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); see also Lange-Kesslerv. Dep’t of Educ., 109 F.3d 137,140 (2d Cir.1997) (“A statute regulating a profession is presumed to have a rational basis unless the plaintiff shows that ‘the legislative facts upon which the [statute] is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.’ ” (quoting Vance, 440 U.S. at 111, 99 S.Ct. 939)).
Even in cases not subject to rational basis review, the Supreme Court has required deference to the legislative judgment reached by Congress if it is supported by “substantial evidence.” In Timer v. FCC, cable television operators challenged the constitutionality under the First Amendment of a provision of the Consumer Protection and Competition Act of 1992 that required carriage of local broadcast stations on their cable systems (the “must-carry provisions”). 512 U.S. 622, 630-635, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I). The Court held that the must-carry provisions were subject to the intermediate level of scrutiny “applicable to content-neutral restrictions that impose an incidental burden on speech.” Id. at 662, 114 S.Ct. 2445. After a remand to determine factual issues, the Court upheld the must-carry provisions and deferred to Congress’s determination that must-carry was necessary to protect the economic health of local broadcasters. Turner II, 520 U.S. at 224, 117 S.Ct. 1174. With respect to Congress’s determination that must-carry was necessary, the Court stated, “In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress. Our sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.” Id. at 195, 117 S.Ct. 1174 (internal citations and quotation marks omitted). Moreover, the relevant question for the Court was not “whether Congress, as an objective matter, was correct to determine must-carry [was] necessary,” but rather “whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress.” Id. at 211, 117 S.Ct. 1174. The Court emphasized that the “Constitution gives to Congress the role of weighing conflicting evidence in the legislative process,” id. at 199, 117 S.Ct. 1174, and that it was not for the Court to “reweigh the evidence de novo, ... replace Congress’ factual predictions with [its] own,” or “substitute [its] judgment for the reasonable conclusion of a legislative body,” id. at 211-12, 117 S.Ct. 1174.
Deference to Congress’s legislative conclusions has not been confined to cases involving the First Amendment. In Kat-zenbach v. Morgan, the Supreme Court considered section 4(e) of the Voting Rights Act, which prohibited the enforcement of a New York law requiring the ability to read and write English as a condition of voting. 384 U.S. 641, 643-44, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). The issue was whether Congress could “prohibit the enforcement of the state law by legislating under § 5 of the Fourteenth Amendment” as “appropriate legislation to enforce the Equal Protection Clause.” Id. at 649-50, 86 S.Ct. 1717. In holding that section 4(e) was “appropriate” to enforce the Equal Protection Clause, the Court deferred to Congress’s judgment that the New York law denied the right to vote to large segments of New York’s Puerto Ri-can community:
It was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations— *304the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state restriction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected by the nullification of the English literacy requirement as applied to residents who have successfully completed the sixth grade in a Puerto Rican school. It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.
Id. at 653, 86 S.Ct. 1717 (emphasis added); see also Fullilove v. Klutznick, 448 U.S. 448, 472-73, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (discussing the deference owed to Congress and stating: “[W]e are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to ‘provide for the ... general Welfare of the United States’ .... Here we pass, not on a choice made by a single judge or a school board, but on a considered decision of the Congress and the President. However, in no sense does that render it immune from judicial scrutiny, and it ‘is not to say we “defer” to the judgment of the Congress ... on a constitutional question,’ or that we would hesitate to invoke the Constitution should we determine that Congress has overstepped the bounds of its constitutional power.”).
These principles have also been applied in challenges under the equal protection and due process clauses where the legislation involved medical and scientific judgments. See Marshall v. United States, 414 U.S. 417, 427-30, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) (rejecting equal protection challenge to statute mandating incarceration, as opposed to treatment, for drug addicts with two or more felony convictions, based on Congress’s finding that such individuals were less likely to be rehabilitated); see also Jones v. United States, 463 U.S. 354, 366, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (rejecting due process challenge to scheme providing for indefinite civil commitment to defendants found not guilty by reason of insanity despite the lack of empirical evidence supporting the legislature’s decision); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31-34, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (rejecting due process challenge to statute barring the denial of coal miners’ claims for disability benefits solely on the basis of a chest x-ray that is negative for a particular medical condition).
I recognize that the Supreme Court’s abortion jurisprudence does not involve rational basis review, or even the kind of intermediate scrutiny that led the Turner Court to apply the “substantial evidence” standard to congressional fact-finding. At the same time, there is no reason that the overarching and fundamental principle of deference to congressional factfinding — both as a matter of respect for the lawmaking power and as a matter of institutional competence — should not apply in the context of regulating the methods of abortion. Congress has a legitimate interest in regulating medical techniques of abortion. “[A] state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Indeed, in Roe, the Court not only reaffirmed the State’s “legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient,” but it specifically noted that, because “the risk to the woman increases as *305her pregnancy continues[,] ... the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.” Id. at 150, 93 S.Ct. 705.
In this case, Congress has made specific findings, including that the D & X procedure “is never necessary to preserve the health of a woman” and that it “poses serious risks to a woman’s health.” Partial Birth Abortion Ban Act, § 2(13), 117 Stat. at 1203-04. In making these findings, Congress did not challenge or otherwise dispute that Stenberg controls as a matter of constitutional law. See id. § 2(1)-(7), 117 Stat. at 1201-02. While Congress may not invade the Supreme Court’s province of interpreting the Constitution, it is not so bound by the Court’s determination of facts that have relevance beyond a particular case. Whether a particular medical procedure is safe, necessary, or risky is a question of fact that has a definite answer. Based on Congress’s institutional competence over the judiciary with respect to such legislative facts, I believe that we owe Congress at least some level of deference when it makes these determinations. At a minimum, we should be required to consider those findings and how they may affect the constitutionality of the partial-birth abortion ban. -
2.
Congress made the following relevant findings: (1) D & X was “unnecessary to preserve the health of the mother”; (2) D & X “poses serious risks to the health of a woman undergoing the procedure”; (3) “[tjhere is no credible medical evidence that [¶] & X procedures] are safe or are safer than other abortion procedures”; (4) no expert, including the doctor who invented the procedure, has been able to “identify] a single circumstance during which a partial-birth abortion was necessary to preserve the health of a woman”; and (5) “[a] ban on [¶] & X] will therefore advance the health interests of pregnant women seeking to terminate a pregnancy.” Partial-Birth Abortion Ban Act § 2(2), (14)(A)-(F), 117 Stat. at 1201, 1204-05. In the discussion above, I have focused on the general principle of deference to Congress’s fact-finding, rather than any specific standard of review, because these findings are well supported and worthy of deference under any standard.
The evidence in the congressional record solidly supports Congress’s conclusion that no medical circumstance requires a D & X to protect a woman’s health. Numerous doctors testified before, or provided letters to, Congress that, in their experience, they have never had a patient who required the D & X procedure. See, e.g., The Partialr-Birth AboHion Ban Act of 1995: Hearing on H.R. 1833 Before the House Comm, on the Judiciary, 104th Cong. 109 (1995) (hereinafter “1995 House Hearings ”) (Statement of Dr. Nancy Romer) (“I have never had a patient who required the [¶] & X] procedure for maternal illness or fetal malformations.”); The Partialr-Birth Abortion Ban Act of 2002: Hearing on H.R. J965 Before the Subcomm. on the Const, of the House Comm, on the Judiciary, 107th Cong. 26 (2002) (hereinafter “2002 House Hearings ”) (Statement of Dr. Curtis Cook) (“Never in the more than 10 years that I have been providing perinatal care to women with- complicated pregnancies have I ever experienced a single clinical situation where the late-term abortion procedure being considered before this Committee has ever been required or even considered a superior option clinically to other well-known and readily available medical and surgical options.”); Partial-Birth Abortion Ban Act of 2003: Hearing on H.R. 760 Before the Subcomm. on the Const, of the H. Comm, of the Judiciary, 108th Cong. 107 (2003) (hereinafter “2003 *306House Hearings ”) (Letter from Dr. Byron C. Calhoun) (“In my over 14 years as a Maternal-Fetal Medicine specialist I have never used or needed the [¶] & X] technique to care for my complicated or life threatening conditions that require the termination of a pregnancy.”); id. at 110 (Letter from Dr. T. Murphy Goodwin) (“I have not encountered a case in which what has been described as partial-birth abortion is the only choice, or even the better choice among alternatives, for managing a given complication of pregnancy.”); id. at 117 (Letter from Dr. Lewis Marola) (“Never, ever, in our years of practice have we seen a situation which warrants implementation of [¶] & X].”).
Other sources before Congress confirmed these doctors’ experience, indicating that there are no circumstances in which the D & X procedure would be necessary to preserve the health of the mother. See, e.g., 2002 House Hearings, supra, at 86-87 (Diane, M. Gianelli, Outlawing Abortion Method, American Medical News, Nov. 20, 1995, at 3) (reporting that Dr. Hern, author of Abortion Practice, a “widely used textbook,” “could not imagine a circumstance in which this procedure would be safest”); see also 200S House Hearings, supra, at 7 (Statement of Dr. Mark G. Neerhof) (“None of these risks are medically necessary because other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy.”); id. at 105 (Letter from Dr. Watson Bowes) (stating that based on his experience with high-risk and complicated pregnancies, D & X “is not the only option for terminating these pregnancies in the safest possible manner”); id. at 106 (Letter from Dr. Nathan Hoeldtke) (writing that he could not “imagine” any case where “an intact D & X [would] be medically necessary”); id. at 146 (American Medical Association (“AMA”) Fact Sheet) (“AM’s expert panel, which included a ACOG representative, could not find ‘any’ identified circumstance where [¶] & X] was ‘the only appropriate alternative.’ ”). While the American College of Obstetricians and Gynecologists (“ACOG”) contended that D & X “may be the best or most appropriate procedure” in an unspecified “particular circumstance,” its assertion was wholly speculative; “[a] select panel convened by ACOG could identify no circumstances under which this procedure ... would be the only option to save the life or preserve the health of the woman.” 2003 House Hearings, supra, at 200 (ACOG Statement of Policy).13
Evidence in the congressional record further indicated that, even in an emergency, D & X is not appropriate or medically necessary. See, e.g., 2002 House Hearings, supra, at 8 (Statement of Dr. Kathi Aultman) (“In an emergency situation, when immediate delivery is necessary, D & X would not be used because it would take too long.”); see also 2003 House Hearings, supra, at 97 (Summary of Testimony of Dr. William Cashore Before the Health & Welfare Comm, of the R.I. State S.) (“The 1-8 day period of cervical preparation ... *307belies the ‘emergency’ nature of the procedure.”); id. at 114 (Letter from Dr. Camilla C. Hersh) (“In the event of a truly life threatening complication of pregnancy, the days of delay involved substantially add to the risk of loss of life of the mother.”).
It is undisputed that no peer-reviewed studies or data exists showing that D & X is either safe or safer than other abortion procedures. 2002 House Hearings, supra, at 8 (Statement of Dr. Kathi Aultman) (“There have been no peer reviewed controlled studies that have looked at the benefits and risks of D & X as compared to D & E, Induction, Delivery, or C-Section. We do not have adequate data on its mortality or morbidity.”); id. at 244 (ACOG Policy Statement Regarding Intact Dilation and Extraction) (“ACOG is unaware of any comparative maternal morbidity studies specifically evaluating Intact D & E procedures with other methods of abortion.”); see also H.R.Rep. No. 108-58, at 16 n.80 (2003) (noting that ACOG’s president acknowledged that “[tjhere are no data to say that one of the procedures is safer than the other”). Testimony before Congress also questioned the extent to which D & X procedures had been monitored and had gained acceptance as a legitimate medical practice. See 2003 House Hearings, supra, at 92 (Testimony of Dr. Curtis R. Cook) (“There is no record of these procedures in any medical text, journals, or on-line medical service. There is no known quality assurance, credentialing, or other standard assessment usually associated with newly-described surgical techniques. Neither the CDC nor the Alan Guttmacher Institute have any data on partial-birth abortion .... ”); id. at 146 (AMA Fact Sheet) (“Intact D & X is not an accepted ‘medical practice’ .... It has never been subject to even a minimal amount of the normal medical practice development.”).
The District Court’s own findings support Congress’s findings that D & X is never medically necessary and not safer than other safe abortion procedures. The District Court did “not believe that many of Plaintiffs’ purported reasons for why D & X is medically necessary are credible; rather they are theoretical or false.” N.A.F., 330 F.Supp.2d at 480. Furthermore, it found that “[tjhe Government’s experts, especially, Dr. Clark, demonstrated that some of Plaintiffs’ reasons necessitating D & X are incoherent; other reasons were shown to be merely theoretical.” Id. at 479-80.
The District Court was correct in finding that no evidence supported the necessity of D & X. As an initial matter, the evidence showed that very rarely does preserving a. woman’s health ever require an abortion. See Trial Tr. at 352 (Dr. Gru-nebaum testifying that it was “rare” that pregnancies are terminated because of a serious medical condition); id. at 1743 (Dr. Lockwood testifying that it was rare that maternal health would require an abortion prior to viability); id. at 2315 (Dr. Clark testifying that such situations were “very rare”). The testimony of the government’s witnesses supports the contention that in the rare case where maternal health might require an abortion, D & X was never necessary to preserve the woman’s health. See id. at 1760 (Dr. Lockwood could not think of any circumstance where D & X would be necessary to preserve maternal health); id. at 2311 (Dr. Clark testifying that “[ujnder no circumstances is D & X abortion necessary to preserve the life or health of the mother.... Under no circumstances would the abolition of this procedure in any way jeopardize the life or health of any mother regardless of what medical conditions she may have.”); id. at 2313 (Dr. Clark testifying that “I can’t imagine any medical condition ... in which this D & X procedure might be helpful to *308me, as someone who spent my life caring for critically ill women, in which it might be helpful to me in preserving the life or health or well-being of the mother. I can’t come up with one.”).
Furthermore, the plaintiffs and their experts agreed that they had never encountered a situation where D & X was the only available procedure or where the mother’s health required a D &' X. See id. at 261 (Dr. Grunebaum responding “[absolutely not” to the question of whether D & X is “the only method available for performing abortions in any given circumstance”); id. at 491 (Dr. Johnson testifying that “I don’t believe there is ever a condition where [¶] & X] would be the only procedure that would be available or an option to perform” and agreeing with the government’s statement that there was no “maternal complication that would either require [¶] & X] or make [¶] & X] the only procedure to be performed”); id. at 1369 (Dr. Weiss stating that he could not “think of a circumstance where it would be required to do an [¶] & X] for a maternal health condition”); id. at 1683 (Dr. Chasen agreeing that his study showed that D & X “is rarely used in cases of a maternal medical problem”).
When maternal health requires an abortion, D & E and induction are safe, scientifically established, and appropriate methods. See id. at 541-42 (Dr. Hammond testifying that between 20 and 24 weeks’ gestation both D & E and induction are “very safe method[s] of terminating pregnancy” and that through “nearly 30 years of data ... D & E has repetitively been shown to be a very safe procedure”); id. at 1682-83 (Dr. Chasen agreeing that D & E and induction are safe procedures); id. at 1743 (Dr. Lockwood testifying that induction is a safe and accepted method of abortion at 20 to 24 weeks’ gestation); id. at 1746 (Dr. Lockwood testifying that D & E’s safety has been shown in the scientific and medical literature based on various kinds of studies); id. at 2313 (Dr. Clark testifying that D & E and induction are available methods of abortion in the second trimester that may be used to safely terminate a pregnancy of a woman who is experiencing a maternal medical complication); id. at 2387 (Dr. Clark testifying that D & E “is in fact a documented, incredibly safe procedure in huge numbers of patients” and that “it is very difficult to imagine that there could be any procedure which is safer than [¶] & E]”).
The District Court correctly found that the plaintiffs failed to prove that D & X has safety advantages over D & E. The plaintiffs failed to substantiate that D & X involved fewer instrument passes. The plaintiffs were unable to say how many instrument passes occurred in D & X as opposed to D & E. Multiple instrument passes are common, to both procedures. There was no evidence showing that fewer passes of the forceps increased maternal risk, and the plaintiffs conceded that risk of injury from forceps is very low. See, e.g., Pl.’s Ex. 6 (NAE Fact Sheet explaining that uterine perforation in surgical D & E abortions occurs in “less than 1/2 of 1% of cases”). Plaintiffs failed to establish that D & X reduced the risk of injury from fetal bone fragments. Laceration from bony parts is no more than a “very, very theoretic possibility.” Trial Tr. at 2114-15 (Dr. Sprang).
The plaintiffs failed to establish that D & X lessened the chance of retained fetal parts. As the trial evidence showed, it is an essential part of D & E to ensure that all fetal parts have been removed from the uterus. Performing suction curettage of the uterus at the end of the procedure also helps ensure that all parts have been removed. No evidence supports the assertion that D & X takes less time and in*309volves less blood loss than D & E. Dr. Chasen testified that there was no difference between the two procedures in either procedure time or blood loss. The District Court was correct that the Chasen study fails to support any of the claimed safety advantages of D & X. The Chasen Study found no difference in blood loss or procedure time between D & X and D & E. The two procedures have “similar” complication rates. Dr. Chasen admitted that the study did not prove that D & X is superior to D & E. He also testified that the study could not claim that D & X was “as safe as” D & E.
The study showed that for the small group of women for whom subsequent pregnancy information was available, spontaneous birth occurred in 2 of 17 (11.8%) of the D & X group, and 2 of 45 (4.4%) of the D & E group. Although this difference may be statistically insignificant given the few patients in the study, it was sufficient to signal a cause for concern for some of the experts. The study also showed that the D & X group experienced a higher rate of cervical laceration (2.4%) than the D & E group (.8%). Dr. Sprang derived this number from the data in the Chasen study. While the sample size was too small to be statistically significant, it “tends to show that D & X has the potential to cause more trauma to the cervix.” Trial Tr. at 2125.
In sum, Congress had before it compelling evidence, confirmed by the District Court, that the D & X procedure is -never medically necessary and that there is a lack of credible evidence in support of the procedure. The trial evidence supports Congress’s judgment that no maternal health condition required the use of D & X. Nor is D & X preferable or safer than D & E in any particular circumstance. The alleged safety advantages are wholly unproven and hypothetical, and, to quote the pithy phrase of the District Court, “Intuition does not equate to scientific fact.” Nat’l Abortion Fed’n v. Ashcroft, 330 F.Supp.2d 436, 480 (S.D.N.Y.2004) (N.A.F.).
In the final analysis, at least three of the “medically related evidentiary circumstances” present in Stenberg are wholly absent in this case. The District Court was correct that the government disproved that “D & X significantly obviates health risks in certain circumstances.” Instead of a “highly plausible record-based explanation of why” D & X might obviate health risks, the District Court correctly found that the proposed benefits of D & X were “theoretical,” “hypothetical,” or “false.” Although there are still no definitive studies resolving the issue, the Chasen study failed to prove that D & X obviated any health risk, was “as safe as” D & E, and signaled the possibility of potential health risks-.
Rather than defer to, or even consider, these finding by Congress, the District Court and the majority hold that D & X’s ultimate medical necessity is not the issue — that the issue is simply whether D & X is supported by “substantial medical authority,” which has been equated to a “division of medical opinion.” In my view, the framing of the issue by the District Court and the majority is not required by Stenberg and distorts not only the constitutional balance between Congress and the Court, but also the balance between the interests Of women in terminating their pregnancies and of the State in regulating as “gruesome and inhumane” a procedure as D & X.
II.
For the sake of completeness, I would also reject all of the plaintiffs’ other arguments for holding the statute unconstitutional.
*310The Act does not impose an undue burden on a woman’s right prior to viability to terminate her pregnancy. Specifically, the requirement that the physician “deliberately and intentionally” deliver the living fetus to one of the specified anatomic landmarks “for the purpose of performing an overt act,” 18 U.S.C. § 1531(b) (1)(Á), requires that the physician “consciously desire” to violate the Act. See United States v. Townsend, 987 F.2d 927, 930 (2d Cir.1993) (stating that the terms “deliberately” and “intentionally” are synonyms of the more common mens rea term “purposefully”); see also United States v. Bailey, 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (“[A] person who causes a particular result is said to act purposefully if he consciously desires the result happening from his conduct .... ” (internal quotation marks omitted)). In a D & E, the physician intends to dismember the fetus and remove the pieces and not to deliver the fetus to either of the anatomical landmarks for the purpose of committing an overt act that the fetus cannot survive. See Carhart v. Ashcroft, 331 F.Supp.2d 805, 1033 (D.Neb.2004), aff'd sub nom. Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), petition for cert. filed, No. 05-380 (Sept. 23, 2005). Moreover, if due to complications during a D & E procedure, the fetal head is crushed, disarticulated, or even pierced and suctioned while it is within the mother’s body, the Act is not violated unless the physician began the procedure with a conscious desire to do so. See id. at 1033 (“[UJnless a physician begins a particular abortion with a premeditated and specific intent to perform the abortion in the manner the Act forbids, the physician has not acted in violation of the statute, even if it so happens, as he or she proceeds, that the fetus’s head gets stuck and must be crushed, or its contents removed, to complete the delivery.”).
For the same reason, I would also hold that the act is not vague. See Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (holding that a statute was not vague as it contained the intent requirement that the violation be “knowing”). Finally, the Act’s life exception is constitutional. The word “necessary” in the statute has the same meaning as it does in the phrase “necessary, in appropriate medical judgment, for the preservation of the life ... of the mother.” Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (quoting Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 879, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)); see also Simoppulos v. Virginia, 462 U.S. 506, 510 n. 2, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983) (affirming conviction under abortion statute that contained the same life exception).
III.
I believe that there are important differences between the Nebraska statute at issue in Stenberg and the Act that remove the latter from the ambit of Stenberg’s holding and require a new assessment of the competing interests that the Supreme Court identified in Roe and Casey.
The first significant difference between the two statutes is that the Act proscribes the destruction of the fetus at a location later than the one considered by the Court in Stenberg. The Nebraska statute criminalized “partial-birth abortions” that could have occurred completely within the body of the mother. See Neb.Rev.Stat. Ann. § 28-328(1) (Supp.1999) (prohibiting a physician from “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child *311and does kill the unborn child” (emphasis added)), quoted in Stenberg, 530 U.S. at 922, 120 S.Ct. 2597; see also Carhart v. Stenberg, 11 F.Supp.2d 1099, 1118 (D.Neb.1998) (medical expert testifying that “the phrase ‘delivering into the vagina a living unborn child’ in the definition of ‘partial-birth abortion’ ... mean[s] to ‘pull the fetus [from within the uterus and through the cervix and] down into the vagina,’ but not necessarily outside of the woman’s body’ ”), aff'd, 192 F.3d 1142 (8th Cir.1999), aff'd, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). In this respect, the Nebraska statute impacted not only a woman’s fundamental liberty and autonomy concerning the “decision whether to bear or beget a child,” Casey, 505 U.S. at 851, 112 S.Ct. 2791, but also the very “integrity” of her body, id. at 896, 112 S.Ct. 2791.
The Act has a more narrow scope and prohibits only an “abortion” that occurs when a substantial part of the fetus “is outside the body of the mother.” 18-U.S.C. § 1531(b)(1)(A). Once a fetus is “born,” i.e. crosses the threshold between its mother’s womb and the outside world, it is a “person” and entitled to all constitutional protections. See Lewis v. Thompson, 252 F.3d 567, 585-86 (2d Cir.2001). Although under Roe, a fetus in útero is not a “person” entitled to the protections afforded by the Fourteenth Amendment, Lewis, 252 F.3d at 585, when the fetus leaves the body of its mother, it may not be “deprive[d] ... of life ... without due process of law,” U.S. Const, amend. XIV, § 1. At this point, the mother’s right to privacy, autonomy, and bodily integrity are waning in importance, and the fetus’s increases in strength. Just as viability is the point during the gestation of the fetus when the interest of the State in potential life become paramount, see Casey, 505 U.S. at 869, 112 S.Ct. 2791, birth14 is the point during gestation when the State’s “unqualified interest in the preservation of human life,” Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and the child’s right to life have sufficient force to restrict the privacy and autonomy rights of a woman.
At birth, we are, therefore, confronted with a unique circumstance where we must weigh the relative strength of the mother’s privacy right, specifically her right to terminate her pregnancy in a manner that preserves her own health, against the emerging right of the fetus to live and the *312State’s interest in protecting life. As Stenberg involved the destruction of a fetus while completely internal to the mother’s body, I do not believe that it squarely confronted this issue of the conflict between these interests. Although I acknowledge that no court has held that there is a special constitutional standard of protection for the fetus in the process of being born, a woman’s right to terminate a pregnancy has never extended to the destruction of a child during parturition. See Roe, 410 U.S. at 117 n. 1, 93 S.Ct. 705 (stating that the Texas parturition Statute was “not attacked”). We should consider independently whether providing an unknown number of women a marginal health benefit outweighs both the fetus’s emerging right to life and the State’s interests in protecting actual and potential life.
In addition to vindicating the right to life of those in the process of being born, the State has a compelling interest in protecting the line between abortion and infanticide — the second significant difference from the Nebraska statute. Congress, inter alia, found that partial-birth abortion “blurs the line between abortion and infanticide,” Partial-Birth Abortion Ban § (2)(14)(0), 117 Stat. at 1206, and that failing to prohibit the practice would “coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life,” id. § (2)(14)(N). There is undoubtedly a compelling state interest in preventing the killing of newborns. Infanticide, like suicide, is a “serious public-health problem,” which the State has an interest in “studying, identifying, and treating its causes.” Glucksberg, 521 U.S. at 730, 117 S.Ct. 2258. This horrific crime occurs in the United States and throughout the world with alarming frequency. See, e.g., Amy D. Wills, Neonaticide: the Necessity of Syndrome Evidence When Safe Haven Legislation Falls Short, 77 Temp. L.Rev. 1001, 1004 (2004) (noting that 250 homicides a year involve infants being killed within the first twenty-four hours of life); see also Parents of Dead Infant Sought, Chi. Sun Times, Jan. 16, 2006, at 14 (reporting that a newborn was found dead in a trash bin).
The majority offers the definition in 1 U.S.C. § 8(a) of “born alive” for the proposition that Congress has already drawn “a line” against infanticide. While the statute includes infants that have been “completely] expel[led] or extracted] from his or her mother,” it does not exclude humans at a prior stage of development from the term. Indeed, Congress specifically provided that “[njothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being ‘born alive.’ ” Id. § 8(c). Regardless of whether a partial-birth abortion terminates the life of a statutory “person,” allowing a physician to destroy a child as long as one toe remains within the mother would place society on the path towards condoning infanticide. Preventing the death of an infant in the process of being born safeguards those infants who have been completely separated from their mothers.
I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable.
IV. Conclusion
Congress’s determination that D & X is never medically necessary to protect a woman’s health was well founded and supported by the District Court’s opinion. Additionally, I do not believe that the right to terminate a pregnancy extends to the destruction of a partially born fetus or *313overrides the State’s compelling interest in preventing infanticide. As none of the arguments advanced by the plaintiffs convinces me that the Act is unconstitutional, I do not believe that Ayotte v. Planned Parenthood of N. New England, — U.S. -, 126 S.Ct. 961, — L.Ed.2d - (2006) is applicable. I understand, however, that based on the majority’s finding that the Act is unconstitutional, it is appropriate for the majority to request further briefing from the parties on the proper remedy.
I respectfully dissent.
. Chief Judge Walker in his lucid concurring opinion believes that I have overstated the Stenberg Court’s reliance on the district court's findings. See ante at [6 n. 2]. Although the Supreme Court took notice of facts other than those found by the district court, there can be no doubt that at least two of the four “medically related evidentiary circumstances” that mandated the inclusion of a health exception were based on the lower court's factual findings. See Stenberg, 530 U.S. at 936-37, 120 S.Ct. 2597. It is undeniable that neither of these circumstances are present in the record before this Court, and both are necessary, under Stenberg, for us to hold that the Act requires a health exception.
*300Moreover, it is irrelevant that the text of the Act was introduced prior to the hearings. As discussed infra, it was within Congress’s fact-finding power to determine the benefits and harms that would be caused by enacting a ban on a particular medical procedure, and we owe deference to that determination as it is supported by the Congressional record and the District Court's findings. We are not empowered to review Congress's internal procedures or methods — so long as they are in accord with the Constitution — any more than Congress may dictate the manner in which we write our opinions. U.S. Const, art. I, § 5, cl. 2 ("Each House may determine the Rules of its Proceedings .... see United States v. Ballin, 144 U.S. 1, 5, 12 S.Ct. 507, 36 L.Ed. 321 (1892); see generally Lawrence H. Tribe, American Constitutional Law § 4-13, at 267 (2d.1988) (noting that on matters of "legislative self-governance ... the Constitution expressly makes each house a law unto itself”).
. The Supreme Court's recent decision in Ayotte v. Planned Parenthood of Northern New England affects only the remedial aspect of this case and not the substantive law. See-U.S. -, 126 S.Ct. 961, 964, - L.Ed.2d -(2006) ("We do not revisit our abortion precedents today, but rather address a question of remedy.”). I do not read Ayotte or the majority opinion to stand for the proposition that a statute regardless of its text and purpose must include an explicit health exception.
Ayotte considered whether the judicial bypass provision of a statute that prevented minors' access to any type of abortion without notice to their parents or guardians was constitutionally sufficient to protect the health of the mother. See id. at 964-65. New Hampshire conceded that a very small percentage of pregnant minors would "need immediate abortions to avert serious and often irreversible damage to their health.” Id. at 967. The government, in this case, has not made such a concession. Unlike the New Hampshire statute, see id. at 964-65, the Act does not regulate access to all methods of abortion. As women would have unfettered, immediate access to induction and D & E, methods of abortions that have been proven to be safe, scientifically established, and available, see infra Part I.A.2, there is no requirement that the Act contain a health exception.
. One physician, Dr. Philip Darney, identified a situation where D & X was "critical to providing optimal care" in what he suggested were two "life-threatening circumstances” of bleeding placenta previa and placenta accre-ta. 2003 House Hearings, supra, at 100-01 (Letter from Dr. Phillip D. Darney). His testimony was thoroughly discredited by seven physicians specializing in maternal fetal medicine or high-risk obstetrics. All seven disputed Dr. Darney’s conclusions and some stated that not only was performing a D & X unusual and unnecessary, but also doing so put the patients at serious risk of grave harm. See, e.g., id. at 105 (Letter from Dr. Steve Calvin); id. at 107 (Letter from Dr. Byron C. Calhoun); id. at 109 (Letter from Dr. T. Murphy Goodwin); id. at 111 (Letter from Dr. Susan E. Rutherford).
. Some argue that the removal of a fetus during a D & X is not ''birth.” See Farmer v. Planned Parenthood of Cent. N.J., 220 F.3d 127, 143 (3d Cir.2000). However, "birth” is the "passage of the offspring from the uterus to the outside world.” Dorlands Illustrated Medical Dictionary 207 (27th ed.2000). The removal of a fetus from its mother surgically does not mean that it is not bom, as a fetus removed from its mother via a cesarean section is certainly "born.” Moreover, I disagree with the contention of the Farmer court that the intent of the mother governs whether a child is born or aborted. See Farmer, 220 F.3d at 144. A child born prematurely, even though its mother does not intend it to be born, is not necessarily an abortion. Indeed, the statute that the majority relies on for its definition of a "person” defines "bom alive” to include "any member of the species homo sapiens ... regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.” 1 U.S.C. § 8. If the intent of the mother controls the scope of her right to destroy her offspring, there is no reason why she should not be able to destroy the child after it has completely been separated from her body.
I disagree with Chief Judge Walker that the fact that the Act is not limited to post-viability abortions necessarily vitiates the compelling interest of the State in preventing the procedure to distinguish abortion from infanticide. Once a fetus is born, its viability ceases to be relevant to determining the constitutional protections to which it is entitled.