NATIONAL ABORTION FEDERATION, Mark I. Evans, M.D., Carolyn Westhoff, M.D., Cassing Hammond, M.D., Marc Heller, M.D., Timothy R.B. Johnson, M.D., Stephen Chasen, M.D., and Gerson Weiss, M.D., Plaintiffs-Appellees, v. Alberto GONZALES, in his capacity as Attorney General of the United States, along with his officers, agents, servants, employees, and successors in office, Defendants-Appellants, 437 F.3d 278

JON O. NEWMAN, Circuit Judge. The issue on this appeal is whether the federal statute prohibiting an abortion method generally medically known as dilation and extraction (“D & X”) and sometimes colloquially and in federal and state statutes called “partial birth abortion” is unconstitutional for lack of an exception permitting the procedure to be used to protect the health of a pregnant woman.

The Government appeals from the August 27, 2004, judgment of the District Court for the Southern District of New York (Richard Conway Casey, District Judge) declaring the statute unconstitutional for lack of a health exception and enjoining its enforcement. See National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436 (S.D.N.Y.2004) (“N.A.F. I”).

Because the Supreme Court has held that a health exception is constitutionally required for any statute prohibiting a method of abortion whenever “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” Stenberg v. Carhart, 530 U.S. 914, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), and because such substantial medical authority indisputably exists with respect to the D & X procedure, we agree with the District Court that the lack of a health exception renders the Act unconstitutional.

We therefore affirm as to the declaration of the Act’s unconstitutionality, but, in view of the Supreme Court’s recent decision in Ayotte v. Planned Parenthood of Northern New England, — U.S.-, 126 S.Ct. 961, — L.Ed.2d-(2006), defer a ruling as to the remedy pending receipt of supplemental briefs. Background Abortion in general. Abortion is the killing of a fetus prior to birth. For centuries abortion has been a matter of intense controversy. Some consider abortion the illegitimate killing of a person.

Others consider abortion a legitimate medical procedure used by a pregnant woman, in consultation with her doctor, to terminate a pregnancy prior to birth. Those on both sides of the controversy acknowledge that the fetus is a living organism, starting as a collection of cells just after conception and developing into a recognizable human form as the time for birth approaches. The destruction of a fetus is a distressing event, whether one views abortion as the killing of a person or a pregnant woman’s personal choice concerning her body.

The challenged statute. ' In 2003, Congress enacted the statute at issue in this case, the Partial-Birth Abortion Ban Act of 2003 (“the Act”), Pub.L. No. 108-105 (2003) (codified at 18 U.S.C. § 1531).

The Act imposes criminal and civil penalties upon those who perform what the Act calls a “partial-birth abortion,” id. § 1531(a), although the medical community usually calls the procedure “dilation and extraction” or “D & X.” The Act defines the procedure by identifying the extent to which a portion of the fetus has emerged from a woman’s body in the course of a vaginal delivery prior to the killing of the fetus: the term “partiaFbirth abortion” means an abortion in which the person performing the abortion— (

A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (

B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus[J 18 U.S.C. § 1531(b)(1). Accompanying the operative portions of the Act are 14 detailed findings, one of which, Finding 14, contains 15 sub-paragraphs. See Pub.L. No. 108-105, § 2, 117 Stat. 1201, 1201-06 (2003), reprinted in 18 U.S.C.A. § 1531, Historical and Statutory Notes, Congressional Findings (2005) (“Findings ”). Especially relevant to the parties’ contentions in this litigation are the following findings: a partial-birth abortion ... is never medically necessary ....

Finding 1. a partial-birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed and is outside the standard of medical care. Finding 5. partial-birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; [and] poses additional health risks to the mother _Finding 14(0).

Other findings, discussed later in this opinion, concern the deference that Congress believes the courts are obliged to give to congressional findings. The District Court decision. The District Court conducted a 16-day bench trial at which distinguished physicians gave fundamentally differing views concerning the D & X procedure and whether or not it might be needed in some circumstances to avoid health risks to the mother. Judge Casey’s comprehensive opinion, including detailed findings of fact and conclusions of law, demonstrate the extreme thoughtfulness and sensitivity with which he approached his decision.

Especially pertinent to the basic issue in this case— whether a health exception is constitutionally required — are two sets of findings made by the District Court. On the one hand, Judge Casey cast substantial doubt on much of the Plaintiffs’ expert opinions. He found that “some” of the reasons advanced for using the D & X procedure were “incoherent,” “other” reasons were “theoretical,” and “many” reasons were “false.” N.A.F. I, 330 F.Supp.2d at 479-80.

On the other hand, accepting the probative force of other portions of the testimony and affidavits of the Plaintiffs’ experts, he found that a significant body of medical opinion — consisting of physicians who expressed their views at trial and before Congress, and medical organizations representing experts in the field — holds that D & E [dilation and evacuation] has safety advantages over induction and that D & X has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances. Id. at 480.

Moreover, after summarizing a division of medical opinion on various aspects of the use and consequences of the D & X procedure, he concluded: Although the Court finds that the Government’s experts offered testimony that was highly credible and reasoned, the Court cannot ignore that the evidence indicates a division of medical opinion exists about the necessity of D & X to preserve women’s health. There is no consensus that D & X is never medically necessary, but there is a significant body of medical opinion that holds the contrary.

The evidence indicates that the same disagreement among experts found by the Supreme Court in Stenberg existed throughout the time that Congress was considering the legislation, despite Congress’s findings to the contrary. Id. at 482. Based on the existence of a “significant body of medical opinion” supporting the view that the D & X procedure is sometimes necessary to avoid a risk to a woman’s health, Judge Casey declared the Act unconstitutional and permanently enjoined its enforcement. See N.A.F. I, 330 F.Supp.2d at 493. Discussion I.

The Constitutionality of the Act Since 1973, the Supreme Court has ruled that some degree of constitutional protection surrounds a woman’s right to choose to have an abortion. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In 1992 the Court modified some aspects of its original analy1 sis in Roe. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (“Casey ”). As explicated in the plurality opinion of Justices O’Connor, Kennedy, and Souter, the Court “reject[ed] the rigid trimester framework of Roe v.

Wade,” id. at 878, 112 S.Ct. 2791; adopted an “undue burden analysis,” id.; “reaffirm[ed]” the “central holding” of Roe that “[rjegardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” id. at 879, 112 S.Ct. 2791; and “reaffirm[ed] 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,’ ” id. (quoting Roe, 410 U.S. at 164-65, 93 S.Ct. 705) (emphasis added).

The state regulations considered in Casey did not concern methods of performing an abortion. Instead, they concerned non-technique matters: assuring the woman’s informed consent, id. at 881-87, 112 S.Ct. 2791 (upheld); spousal notification, id. at 887-98, 112 S.Ct. 2791 (invalidated); parental consent for women under 18, id. at 899-900, 112 S.Ct. 2791 (upheld providing adequate medical bypass exists); and recordkeeping and reporting, id. at 900-01, 112 S.Ct. 2791 (upheld except for reporting of the woman’s reason for not notifying her husband).

In a series of previous decisions, however, the Supreme Court had considered and invalidated state regulations prohibiting or unduly regulating abortion procedures. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (saline amniocentesis); Colautti v. Franklin, 439 U.S. 379, 397-401, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (standard-of-care provision understood to prohibit various procedures without adequate concern for health of the woman); Thornburgh v.

American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-69, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (same). Against this background of precedent, the Supreme Court in 2000 decided the case most pertinent to the pending appeal, Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Sten-berg was a challenge to the constitutionality of Nebraska’s prohibition of partial-birth abortion.

The Nebraska statute defined partial birth abortion as: an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. Neb.Rev.Stat. Ann. § 28-326(9) (Supp.1999). The statute contained an exception to its prohibition where necessary to preserve the life of the mother, id. § 28-328(1), but made no exception for preserving the health of the mother, see Stenberg, 530 U.S. at 930, 120 S.Ct. 2597.

The Supreme Court ruled the Nebraska statute unconstitutional “for at least two independent reasons” — (1) the lack of “any exception ‘for the preservation of the ... health of the mother,’ ” id. (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791), and (2) the imposition of “ ‘an undue burden on a woman’s ability’ to choose a D & E abortion, thereby unduly burdening the right to choose abortion itself,” id. (quoting Casey, 505 U.S. at 874, 112 S.Ct. 2791).

With respect to the requirement of a health exception, Stenberg explained both when such an exception is required and what it must minimally contain: [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. at 938, 112 S.Ct. 2791 (quoting Casey, 505 U.S. at 879, 112 S.Ct. 2791, in turn quoting Roe, 410 U.S. at 165, 93 S.Ct. 705).

In addition to citing Casey and Roe, the Court grounded the constitutional requirement of a health exception on its prior decisions on abortion procedures in Thorn-burgh, Colautti, and Danforth.

The Court recently restated the constitutional requirement of a health exception in government regulation of abortions in Ayotte, a case concerning parental notification pri- or to an abortion for a minor, see Ayotte, 126 S.Ct. at 967 (“[OJur precedents hold[ ] that a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.”) (internal quotation marks omitted) (emphasis added).

Having identified the circumstance under which a statute prohibiting an abortion technique constitutionally requires a health exception, the Court concluded that the record before the district court in Stenberg demonstrated the existence of the requisite “substantial medical authority support[ing] the proposition that banning a particular abortion procedure could endanger women’s health.” Id.

The Court recognized that medical opinion on the matter was divided, but stated: Casey’s words “appropriate medical judgment” must embody the judicial need to tolerate responsible differences of medical opinion — differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here. [T]he division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue.

Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself provides the contrary. Rather, the uncertainty means a significant likelihood that those who believe that D & X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.

Id. at 937, 112 S.Ct. 2791. Thus, the issue here, as it was in Stenberg, is whether there is “substantial medical authority” supporting the proposition that prohibiting the D & X procedure “could endanger women’s health.” 530 U.S. at 938, 120 S.Ct. 2597. Unquestionably such “substantial medical authority” exists. As the District Court recounted, it is abundantly revealed in the evidence presented both to the trial court in this litigation and to the Congress in the hearings that preceded the Act, some of which is referenced in the margin.

We recognize that Congress has made several pertinent findings in support of the Act, including a finding that D & X is never needed to avoid risk to a woman’s health. The parties vigorously contest the deference this Court should give these findings. The Government contends, citing Turner Broadcasting System, Inc. v.

FCC, 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), that we should defer to the findings as long as they are supported by substantial evidence, see Brief for Defendant-Appellant at 37-39, and further maintains that sufficient substantial evidence is reflected in the congressional hearings preceding the Act, see id. at 45-56, and confirmed by the evidence before the District Court, see id. at 56-87.

The Plaintiffs-Appellees contend that Turner does not apply to a case governed by Stenberg, see Brief for Plaintiffs-Appellees at 35-36, nor to a statute curtailing fundamental rights, see id. at 36-37, and that the congressional findings are “patently unreasonable,” id. at 43.

Pointing to evidence in both the congressional hearing and District Court trial records indicating that the D & X procedure is sometimes necessary to protect a woman’s health, the Plaintiffs-Appellees contend that judicial deference is not owed to a finding that purports to reach the conclusion that the procedure is never needed to protect her health. They call our attention, as did the District Court, see N.A.F.

I, 330 F.Supp.2d at 485, to the following excerpt from an opinion then-judge Clarence Thomas wrote for the District of Columbia Circuit: We know of no support ... for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by “finding” that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison that has not been the law. Lamprecht v.

FCC, 958 F.2d 382, 392 n. 2 (D.C.Cir.1992) (citation omitted). We also recognize that the congressional findings include several paragraphs in which Congress asserted its own prerogative to make findings and marshaled case law in support of judicial deference to such findings. See Findings 8-12.

Congress “found” that the United States Congress is entitled to reach its own factual finding — findings that the Supreme Court accords great deference — and to enact legislation based upon these findings as long as it seeks to pursue a legitimate interest within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence. Id. Finding 8.

Congress also found that [tjhere exists substantial record evidence upon which Congress has reached its conclusion that a ban on partial-birth abortion is not required to contain a “health” exception, because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care. Id. Finding 13.

The parties’ opposing contentions concerning deference to the congressional findings and the forcefully expressed views on the matter by the Congress itself raise issues of the utmost gravity as to the proper role of a court considering a constitutional challenge to

an act of Congress. However we might resolve those issues in other contexts where Supreme Court precedents are less clear, we conclude that Roe, Casey, and especially Stenberg provide authoritative guidance that we are bound to follow. Stenberg does not leave it to a legislature (state or federal) to make a finding as to whether a statute prohibiting an abortion procedure constitutionally requires a health exception.

On the contrary, Stenberg leaves it to the challenger of the statute, i.e., the proponent of a required health exception, to point to evidence of “substantial medical authority” that supports the view that the procedure might sometimes be necessary to avoid risk to a woman’s health. In recognizing that Stenberg has left the task of marshaling substantial medical authority in support of a health exception to litigants who challenge a prohibition of an abortion procedure that lacks a health exception, we intend no disrespect to Congress for making its own finding on the matter.

We are making no judgment with respect to the validity of the congressional findings nor assessing whether those findings are supported by substantial evidence. Instead, bound by Supreme Court precedent, we are limiting our inquiry to determining whether the constitutional test for a required health exception, as enunciated by the Supreme Court, has been met. We recognize the strong feelings legitimately held as to whether the D & X procedure should ever be used and whether a statute regulating that procedure should include an exception for risks to the mother’s health.

The question for us, however, is not whether the procedure should be allowed or prohibited as a matter of medical or broader social policy, nor whether if prohibited, a health exception is advisable. Our question, as an intermediate appellate court required to apply relevant constitutional precepts set forth by the Supreme Court, is whether a statute prohibiting the D & X procedure is constitutionally required to have a health exception when substantial medical opinion indicates that the procedure might sometimes be required to avoid risks to the mother’s health if an alternative procedure is used.

Taking our instruction from the Supreme Court’s decision in Stenberg, we answer that question in the affirmative. We also conclude, on a court record and a congressional hearing record even more compelling than the record on which the Supreme Court ruled in Stenberg, that substantial medical opinion does support the view that the procedure might sometimes be necessary to avoid risks to the mother’s health if an alternative procedure is used. The result we are obliged to reach is that the statute is unconstitutional for lack of a health exception.

All of the other courts that have considered statutes prohibiting the D & X procedure have ruled them unconstitutional for lack of a health exception. See Reproductive Health Services of Planned Parenthood of the St. Louis Region v. Nixon, 429 F.3d 803 (8th Cir.2005) (ruling Missouri’s “Infant’s Protection Act” unconstitutional for lack of a health exception); Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005) (ruling the federal Act unconstitutional for lack of a health exception), pet. for cert. filed, No. 05-380, Sept. 23, 2005 74 U.S.L.W 3213 (2005); Richmond Medical Center for Women v.

Hicks, 409 F.3d 619, 622-26 (4th Cir.2005) (ruling Virginia statute prohibiting “partial birth infanticide” unconstitutional for lack of a health exception); Planned Parenthood Federation of America v. Ashcroft, 320 F.Supp.2d 957 (N.D.Cal.2004) (ruling the federal Act unconstitutional for lack of a health exception); WomanCare of Southfield, P.C. v. Granholm, 143 F.Supp.2d 849, 855 (E.D.Mich.2001) (ruling Michigan’s “Infant Protection Act” unconstitutional for lack of a health exception); Summit Medical Assocs., P.C. v.

Siegelman, 130 F.Supp.2d 1307, 1314 (M.D.Ala.2001) (ruling Alabama’s “Partial-Birth Abortion Ban Act of 1997” unconstitutional for lack of a health exception); Daniel v. Underwood, 102 F.Supp.2d 680, 684-85 (S.D.W.Va.2000) (ruling West Virginia’s “Women’s Access to Health Care Act” unconstitutional for lack of a health exception).

We have considered the possibility that the governing force of Stenberg might be altered by the fact that in prohibiting the D & X procedure, Congress identified a concern that does not appear to have been explicitly part of the motivation that prompted the Nebraska statute challenged in Stenberg — an effort to maintain a clear distinction between permissible abortion and impermissible infanticide.

The congressional findings explicitly include the following: The gruesome nature of the partial-birth abortion procedure and its disturbing similarity to the killing of a new-born infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure. Finding 14(

L) Congress ... finds that partial-birth abortion ... blurs the line between abortion and infanticide in the killing of a partially-born child just inches from birth .... Finding 14(0). For two reasons, we do not believe that an asserted interest in not “blur[ring] the line between abortion and infanticide” can alter the binding force of Stenberg.

First, that interest was urged upon the Court in the brief on behalf of Nebraska, see note 6, supra, and was explicitly called to the Court’s attention in the dissenting opinions of Justices Kennedy, see Stenberg, 530 U.S. at 961, 963, 120 S.Ct. 2597, and Thomas, see id. at 982, 983, 995 n. 12, 1002, 1006, 1007, 1020, 120 S.Ct. 2597. Second, Congress has provided explicit guidance on where to draw the line against infanticide.

Congress has defined “child” to include “every infant member of the species homo sapiens who is born alive,” 1 U.S.C. § 8(a), and has defined “born alive” to mean “the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles,” id. § 8(b) (emphasis added). A fetus aborted using the D & X procedure is not “born alive” and is not a “child” as so defined. II.

The Appropriate Remedy Having agreed with the District Court that the Act is unconstitutional for lack of a health exception, we turn to the issue of the appropriate remedy. The District Court declared the Act unconstitutional and enjoined its enforcement. N.A.F. I, 330 F.Supp.2d at 493. In view of the Supreme Court’s recent decision in Ayotte, the issue of remedy requires further consideration. In Ayotte, the Supreme Court considered a New Hampshire statute requiring, subject to some exceptions, parental notification before a doctor could perform an abortion on a minor.

The district court had declared the statute unconstitutional for lack of an exception for the mother’s health and enjoined its enforcement. See Planned Parenthood of Northern New England v. Heed, 296 F.Supp.2d 59, 65-68 (D.N.H.2003). The First Circuit affirmed. See Planned Parenthood of Northern New England v. Heed, 390 F.3d 53, 65 (1st Cir.2004).

The Supreme Court, after restating its view that a statute regulating abortion constitutionally requires an exception for the protection of the mother’s health, see Ayotte, 126 S.Ct. at 967, considered the issue of remedy separately from the unconstitutionality of the statute.

First, the Court noted that it was “understandable” that the trial and appellate courts had invalidated the statute in its entirety “for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw,” id. at 969, referring to the Court’s ruling in Stenberg, concerning the Nebraska statute prohibiting so-called partial birth abortions.

Then, pointing out that the parties in Stenberg “did not ask for, and we did not contemplate, relief more finely drawn,” Ayotte, 126 S.Ct. at 969, and that the parties in Ayotte had recognized “the possibility of a more modest remedy” than total invalidation of the New Hampshire statute, id., the Court considered whether the lack of a health exception required total or only partial invalidation of the statute.

The Court noted its preference “to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact.” Id. at 967 (citations omitted). The Court also emphasized the need for restraint in rewriting laws to conform to constitutional requirements, see id. at 968, and stated that “the touchstone for any decision about remedy is legislative intent,” id.

The Court concluded, “After finding an application or portion of a statute unconstitutional, we must ask: Would the legislature have preferred what is left of its statute to no statute at all?” Id. Deeming that inquiry an “open question” in Ayotte, see id. at 969, the Court remanded “for the lower courts to determine legislative intent in the first instance,” id. In the pending case, it is similarly entirely understandable that Judge Casey, guided by the Supreme Court’s opinion in Stenberg, would declare the Act unconstitutional and enjoin its enforcement.

Although the Appellants do not appear to have been as prescient as the New Hampshire Attorney General in suggesting the possibility of a remedy less than total invalidation of the Act, we conclude that, with the guidance of Ayotte at hand, all parties should now be afforded an opportunity to advise us as to their views concerning an appropriate remedy. We also con-elude that the parties will be aided in framing their submissions concerning the appropriate remedy by the issuance of this opinion, setting forth our ruling that the Act is unconstitutional for lack of an exception to protect the mother’s health.

Finally, we recognize that whether we need to rule on the Appellees’ contentions that the Act imposes an “undue burden,” within the meaning of Casey, on a woman’s right to choose an abortion and is void for vagueness and suffers from unconstitutional overbreadth will likely depend on our decision as to the appropriate remedy, because invalidation of the statute in its entirety would make it unnecessary to consider the Appellees’ other claims of unconstitutionality. We will, therefore, not consider these claims until we make a determination concerning the remedy.

Conclusion Accordingly, we rule that the Act is unconstitutional for lack of a health exception; we defer a ruling as to the appropriate remedy; we direct the parties to submit within 30 days supplemental letter briefs, not to exceed 25 double-spaced pages, setting forth their views concerning the appropriate remedy in light of the ruling we have made; and we direct the Clerk to file this opinion forthwith. . The evolution of the Act in Congress, starting with hearings in 1995, is meticulously recounted in the District Court’s opinion. See N.A.F. I, 330 F.Supp.2d at 443-52. .

As the District Court noted, the Physicians’ Ad Hoc Coalition for Truth has stated that “there is 'no agreement, even among proponents of [the prohibited procedure] as to what to call it.’ ” N.A.F. I, 330 F.Supp.2d at 440 n. 2 (quoting Hearings Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 107th Cong. 236 (letter from Physicians' Ad Hoc Coalition for Truth to the American College of Obstetricians and Gynecologists)). . Stenberg also cited Doe v.

Bolton, 410 U.S. 179, 197, 93 S.Ct 739, 35 L.Ed.2d 201 (1973), Stenberg, 530 U.S. at 931, 120 S.Ct. 2597, but the cited page concerns an invalidated requirement of a hospital's abortion committee, not a particular abortion procedure. .

Among the evidence recounted by the District Court are the following: [N]ine medical associations, including ACOG [American College of Obstetrics and Gynecology], CMA [California Medical Association], PRCH [Physicians for Reproductive Choice and Health], AMWA [American Medical Women’s Association, Inc.], and APHA [American Public Health Association] opposed the Act because, they stated, D & X provides safety advantages for some women. N.A.F. I, 330 F.Supp.2d at 488. Obstetricians and gynecologists who have performed D & X abortions, such as Drs.

Creinin, Koplik, Scommegna, and Darney, submitted letters regarding their views on the need for a health exception. (See, e.g., 141 Cong. Rec. HI 1610 (daily ed. Nov. 1, 1995) (letter from Dr. Creinin); id. (letter from Dr. Koplik); 141 Cong. Rec. S17892 (daily ed. Dec. 4, 1995) (letter from Dr. Scommegna); 149 Cong. Rec. S3600 (statement of Dr. Darney).) Id. at 488-89. [A]s proof of its determination that the mainstream medical community disapproves of the procedure, Congress found that medical schools do not instruct students on partial-birth abortions. Act, § 2(14)(B), 117 Stat. 1204.

Testimony at trial adduced that, contrary to Congress's finding, the procedure is taught at leading medical schools, such as New York University, Columbia, Cornell, Northwestern, and Albert Einstein College of Medicine. (See, e.g., Tr. 1786:23-24, 1812:8-13 (Lockwood); Tr. 752:20-753:25, 897:10-898:10 (West-hog); Tr. 1556:19-25 (Chasen); Tr. 1046:3-11 (Frederiksen); Tr. 2150:3-24 (Sprang).) Id. at 490.

Congress concluded that D & X is a disfavored medical procedure that is not embraced by the medical community, "particularly among physicians who routinely perform other abortion procedures.” Act, §§ 2(2), 13, 14(0), 117 Stat. at 1201, 1203-04, 1206. The face of the congressional record rebuts this finding. First, the record includes the statements of nine associations, including ACOG and APHA, which opposed the ban because they believe that the procedure offers safety advantages and might be medically necessary in the presence of certain maternal-health conditions- and fetal anomalies. (See, e.g., 149 Cong. Rec.

S12921 (statement of ACOG); 149 Cong. Rec. SI 1596-97 (statement of APHA).) Second, the congressional record contains letters from numerous individual physicians — whose practices include performing abortions — stating that maternal health would be jeopardized under the Act. (See, e.g., November 1995 Hearing at 103 (testimony of Dr. Robinson); November 1995 Hearing at 248 (statement of Dr. Hern); 149 Cong. Rec. S3600 (statement of Dr. Darney); March 2003 Hearing at 191-95 (statement of Dr.

Davis).) Third, medical textbooks, which were included in the congressional record, discuss D & X as a medically recognized means to terminate a pregnancy. (See, e.g., June 1995 Hearing at 48-62 (excerpt from Williams Obstetrics).) Id. . The State's brief in Stenberg contended that the State had a compelling interest in “erecting a barrier to infanticide," Stenberg, Brief of Petitioners at 48-49, but cited no explicit reference to this concern in the legislative materials. . The Court's ruling in Stenberg appears not to have been quite as comprehensive as Ayotte characterized it.

The district court in Sten-berg explicitly considered whether to determine the facial validity of the Nebraska statute or to confine its consideration to an "as applied” challenge, see Carhart v. Stenberg, 11 F.Supp.2d 1099, 1119-20 (D.Neb.1998), and decided that it was unnecessary to decide whether the statute was facially invalid, see id. at 1120. Consequently, the district court's order declared the statute unconstitutional only "[a]s applied to Dr. Carhart, his patients and others who are similarly situated,” id. at 1132, and enjoined the defendants from enforcing the statute only "against [Dr.

Car-hart], his patients, and others who are similarly situated to the extent the law has been declared unconstitutional,” id. The Eight Circuit affirmed the judgment of the district court, see Carhart v. Stenberg, 192 F.3d 1142, 1152 (8th Cir.1999), although-stating that it was considering "a challenge to the facial validity of an abortion regulation,” id. at 1149. The Supreme Court affirmed the judgment of the court of appeals. See Stenberg, 530 U.S. at 946, 120 S.Ct. 2597.