dissenting.
In writing this dissent, there is certainly no intention to rehash or to request reconsideration of the rulings by the Tenth Circuit concerning previous rulings by this court. This court has endeavored faithfully to follow the directives issued on remand. In reassessing attorney’s fees, however, this court respectfully disagrees in at least two particulars with the required awards to be made in furtherance of the rulings of the Honorable Tenth Circuit.
Attorneys Fees Awardable as a Result of Non-Severability of Utah Statutory Restrictions on Posh-Viable Nonr-Therapeutic Abortions
With the exception of determining the constitutionality of pre-viable abortions on demand, perhaps the most significant and important issue presented (in this court’s opinion) was the constitutionality of restrictions imposed by the Utah statute upon post-viable (post-20 week) abortions. The higher court did not reach or rule upon this important issue on the merits. In Planned Parenthood v. Casey, 505 U.S. 833, 870, 112 S.Ct. 2791, 2817, 120 L.Ed.2d 674 (1992), the Supreme Court rejected the trimester framework of Roe v. Wade, and fixed the point of viability as the appropriate line of demarcation wherein the interest of the State in unborn children exceeds the liberty interest of a woman in the abortion choice. Whether the Utah statute imposes an undue burden on the choice to obtain a late (post-20 week) non-therapeutic abortion is the hard but crucial decision which should determine in largest part success or lack of success as to this issue. That determination was not made by the appellate court.
The Tenth Circuit disposed of the issue in a tenuous interpretation of the Utah legislature’s separability clause, striking down the post 20 week section of the statute as not severable. The higher court made it clear that this court erred in giving effect to the explicit language of that severability clause. In this regard the appellate court was able to determine that the Utah legislature’s “overarching substantive intention” was “to ban abortions throughout pregnancy.” The Tenth Circuit ruled that Utah’s restrictions on post-20 week abortions constituted “an integral, unseverable analog” to the ban on pre-viable abortions, and that invalidation of the latter required invalidation of the former. However, when confronted with Utah’s statute concerning the “serious medical emergencies exception,” the higher court rejected plaintiffs’ contention that this provision is not severable from the invalidated sections of Utah’s abortion statutes. The Tenth Circuit ruled that notwithstanding specific reference to the invalidated sections in the “serious medical emergency” section, that section “can stand without violating legislative intent” because other portions of the abortion laws remain valid and “continue to impose *488requirements that in the face of a medical emergency, could be quite costly and cumbersome.” For substantially the same reasons the appellate court ruled that the medical emergency provision was severable, should the post>-20 week provision also have been severed?
Notwithstanding the appellate ruling that the section in question is not severable, and accepting that ruling as this court must as the law of this ease, this judge would not have regarded such as representing a full “win” in the absence of the Tenth Circuit directive concerning assessment of fees.2 This court would have reassessed the level of success as less than the full measure of heightened success as to that issue. Absent a ruling favorable to plaintiffs on the important substantive issue — which was the main focus of briefing and argument as well as the trial court’s opinion on the subject — it is the opinion of this court that the level of success should be fixed at no more than one half— 1.e., 8.75% rather than the full 17.5% which this court assigned to that issue in the qualitative assessment analysis.
For the reasons aforesaid, this judge respectfully dissents from the required award of a full measure of increased attorney’s fees concerning plaintiffs’ success in invalidating the post-20 week abortion provision.
Attorney’s Fees Awardable to Defendants
Plaintiffs alleged and submitted to this court for determination several claims attacking the Utah abortion statute under the Utah Constitution. Utah acceded to the jurisdiction of this court in that neither the Governor nor the Attorney General of Utah as parties objected or claimed the right of dismissal on jurisdictional grounds. At a late stage in the proceeding plaintiffs sought to withdraw the claims by dismissal without prejudice, which was opposed by defendants. Plaintiffs then argued that the claims ought to be dismissed anyway because of lack of jurisdiction in this court since the state’s consent to jurisdiction of the federal court was insufficient under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). It appeared to this court not only that the state’s unqualified consent to having the matter presented for decision in federal court rather than state court removed any impediment to jurisdiction, but that the claim was presented by plaintiffs as a ploy in view of involvement of plaintiffs’ counsel in a previous analogous case, Hodgson v. Minnesota, 1985 WL 6547 (D.Minn. Jan. 23, 1985), in which case the State of Minnesota successfully moved for dismissal of state constitutional claims based upon Pennhurst. It further appeared to this court that counsel for plaintiffs believed from the outset but failed to so advise the court that there was a good argument that this court lacked jurisdiction of the state claims. So, depending on how it appeared to counsel this court finally might rule, the claim of no jurisdiction could be raised as a “trump” and the state claims could be preserved as needs be for further challenge at a later date in state court. This court rejected counsel’s jurisdictional arguments, finding that the state had waived Eleventh Amendment immunity, and proceeded to address the state claims on the merits. Further, this court found that the state claims were brought in bad faith, justifying an award of attorney’s fees in favor of defendants under the inherent power of the court (Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)) and pursuant to 28 U.S.C. § 1927. See Jane L. v. Bangerter (Jane L. IV), 828 F.Supp. at 1554, 1556.
Since this court essentially ruled that the state constitutional claims which corresponded to federal claims were frivolous, the Tenth Circuit’s view that this court was in error in that regard might explain why the higher court directed reversal of any award of attorney’s fees to defendants. The higher court did not specifically address the award of attorney’s fees based on presentation of claims in bad faith.
For the reasons aforesaid, this judge respectfully dissents from the blanket directive not to award any attorney’s fees to defendants, which required reversal even of the *489award based upon presentation of claims in bad faith.
. The Circuit Court regarded its non severability ruling concerning post 20-week abortions as a wholly successful result for plaintiffs and directed this court to “reassess the wins and losses” as to which "plaintiffs have now prevailed.” Jane L. v. Bangerter, 61 F.3d at 1513.