Hope Clinic v. Ryan

195 F.3d 857, 1999 U.S. App. LEXIS 26925, 1999 WL 974098

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 26, 1999
• Docket: Nos. 98-1726, 99-2528, 99-2533
• Status: Published

Opinions

EASTERBROOK, Circuit Judge.

We must decide whether state laws prohibiting partial-birth abortions are unconstitutionally vague or unduly burden women’s rights. Acting without an evidentiary hearing, a district court held the Illinois statute unconstitutional and entered a permanent injunction. Hope Clinic v. Ryan, 995 F.Supp. 847 (N.D.Ill.1998). But after a trial, another district court concluded that the Wisconsin statute is valid. Planned Parenthood of Wisconsin v. Doyle, 44 F.Supp.2d 975 (W.D.Wis.1999). A panel of this court earlier had ordered preliminary relief against Wisconsin’s law, see Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463 (7th Cir.1998), and plaintiffs say that this decision, applying Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), justifies permanent injunctions against both states’ rules. To ensure consistency, we heard the appeals en banc. We conclude that both laws can be applied in a constitutional manner. Whether that will occur depends on state courts, which alone can settle questions about the construction of the statutes. To ensure that physicians are not deterred from performing other medical procedures while issues wend their way through state tribunals, we hold that both sets of plaintiffs are entitled to injunctive relief that will limit the statutes’ application to the medical procedure that each state insists is its sole concern.

I

Induction, suction curettage, and dilation and evacuation (d&e) are the principal methods of performing abortions in the United States. Prohibiting any one of these would conflict with the right of abortion recognized by cases such as Casey, 505 U.S. at 877, 112 S.Ct. 2791 (plurality opinion) (adopting “undue burden” as the constitutional standard), and Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (holding that a state may not forbid saline amniocentesis, at the time the principal means of induction). Our cases involve an uncommon procedure known to the medical community as “intact dilation and extraction” or just “dilation and extraction (d&x),” and to the public as “partial-birth abortion.”

Some medical background is essential to understanding the issues. Induction means inducing preterm labor, which causes the expulsion of the conceptus. Methotrexate or mifepristone (Ru-486, now in clinical trials), in combination with misoprostol, can be used for this purpose early in pregnancy; saline amniocentesis and injected prostaglandins serve the same function in the second trimester. Suction curettage (vacuum aspiration), the most common surgical method of abortion early in pregnancy, refers to evacuation of the uterine cavity; the embryo or fetus is separated from the placenta either by scraping or vacuum pressure, then is removed by suction. When these methods are inappropriate, or do not work, physicians employ the d&e procedure. To perform a d&e, the physician dilates the cervix and dismembers the fetus inside the uterus using forceps. Fetal parts are removed with forceps or by suction.

A d&x is a variant of a d&e in which the fetus is removed without dismemberment. The American College of Obstetricians and Gynecologists (acog) defines d&x as follows: “1. deliberate dilatation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.” Martin Haskell, the physician who developed the d&x procedure, see Dilation and Extraction for Late Second Trimester Abortion (1992), reprinted in 139 Cong. Rec, e1092 (Apr. 29, 1993), believes that how the head is diminished in size so that it can pass through the cervix is not important: mechanically crushing the skull serves the same end as evacuating its contents, which causes its collapse. It is this combination of coming so close to delivering a live child with the death of the fetus by reducing the size of the skull that not only distinguishes n&x from d&e medically but also causes the adverse public (and legislative) reaction. Opponents deem the d&x procedure needlessly cruel and bordering on infanticide, and all three states in this circuit have enacted statutory restrictions.

The statute in Illinois has three sections with legal significance:

720 ILCS § 513/5. Definitions

In this Act: “Partial-birth abortion” means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery. The terms “fetus” and “infant” are used interchangeably to refer to the biological offspring of human parents.

720 ILCS § 513/10. Partial-birth abortions prohibited

Any person who knowingly performs a partial-birth abortion and thereby kills a human fetus or infant is guilty of a Class 4 felony. This Section does not apply to a partial-birth abortion that is necessary to save the life of a mother because her life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, provided that no other medical procedure would suffice for that purpose.

720 ILCS § 513/15. Civil action

The maternal grandparents of the fetus or infant, if the mother has not attained the age of 18 years at the time of the abortion, may in a civil action obtain appropriate relief unless the pregnancy resulted from the plaintiffs criminal conduct or the plaintiff consented to the abortion. The relief shall include money damages for all injuries, psychological and physical, occasioned by the violation of this Act and statutory damages equal to 3 times the cost of the partial-birth abortion.

The Indiana statute defines “partial-birth abortion” in identical terms. Ind.Code § 16-18-2-267.5. Like Illinois it forbids partial-birth abortions unless that procedure is necessary to save the mother’s life, and no other procedure would suffice. Ind.Code § 16-34-2-l(b). The Indiana statute has never been challenged and has been in effect since July 1,1997.

Wisconsin has taken a slightly different approach. Its statutes provide:

Wis. Stat. § 895.038 Partial-birth abortions; liability.

(1) In this section:

(a) “Child” has the meaning given in § 940.16(l)(a).

(b) “Partial-birth abortion” has the meaning given in § 940.16(l)(b).

(2) (a) Except as provided in par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:

1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.

2. The father of the child aborted by the partial-birth abortion.

(b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

1. The person consented to performance of the partial-birth abortion.

2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of § 940.225, 944.06, 948.02, 948.025, 948.06 or 948.09 that was committed by the person.

(3) The relief available under sub. (2) shall include all of the following:

(a) If the abortion was performed in violation of § 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.

(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.

(4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion. Wis. Stat. § 940.16 Partial-birth abortion.

(1) In this section:

(a) “Child” means a human being from the time of fertilization until it is completely delivered from a pregnant woman.

(b) “Partial-birth abortion” means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.

(2) Except as provided in sub. (3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.

(3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.

Wisconsin’s definition of partial-birth abortion is substantially the same as Illinois’, but the mental-state elements differ, as do the maximum penalties: Illinois makes unjustified partial-birth abortion a Class 4 felony, with a maximum penalty of three years; in Wisconsin the offense is a Class A felony, for which Wis. Stat. § 939.50(3)(a) provides a penalty of life imprisonment.

Because Wisconsin and Illinois use similar language to define partial-birth abortions, we illustrate plaintiffs’ concerns with the latter’s statute:

“Partial-birth abortion” means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus or infant before killing the fetus or infant and completing the delivery. The terms “fetus” and “infant” are used interchangeably to refer to the biological offspring of human parents.

This legal definition is an imperfect match for the medical definition of d&x. It is easy to see why a legislature would be chary of the acog’s specification: then any small variation (such as a change in the method of reducing the head size, or snipping off a toe to defeat the “otherwise intact” specification) would take the abortion outside the prohibition, even though the reasons why the technique has been deemed objectionable would be unaffected. But, as is common with legislation, the price of avoiding loopholes is generality. Section 513/5 captures the idea, central to the d&x procedure, that an intact fetus moves from uterus to vagina before death occurs. But it also uses the words “delivers” and “delivery,” which many physicians understand to refer to any removal of fetal material from the uterus. The law might be read to prohibit the extraction of dismembered parts following a d&e, or to prohibit abortion by induction if by chance the fetus survives until it reaches the birth canal. Moreover, physicians performing a d&e sometimes do not complete the dismemberment inside the uterus, and some fear that this could lead the procedure to be characterized as a partial delivery under the statute.

The possibility that § 513/10 might discourage risk-averse physicians from performing the d&e procedure led the district court in Illinois to declare that it is too vague to be enforced, and a similar concern animated our panel’s decision to require preliminary relief against Wisconsin’s law. Moreover, if these laws needlessly raise the effective costs of induction, suction curettage, or d&e, then they would unduly burden the right of abortion, another concern expressed not only by the district court in the Illinois case but also by the panel in the Wisconsin case. But after a trial on remand, the district court in Wisconsin concluded that physicians who perform abortions recognize that the statutory formula, however vague or broad these words appear to lay eyes, refers to the d&x procedure alone. The court held that, as so limited, the statute does not substantially burden any woman’s right to an abortion, because d&x is never the only safe procedure.

Litigation elsewhere has produced results mirroring the divergence between the outcomes in Illinois and Wisconsin. The sixth circuit held that Ohio’s ban on partial-birth abortions is unconstitutional, Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997), but the fourth circuit issued a stay preventing interference with Virginia’s statute. Richmond Medical Center for Women v. Gilmore, 144 F.3d 326 (4th Cir.1998), motion to vacate stay denied, 183 F.3d 303. Both of those decisions were rendered over dissents. A single panel of the eighth circuit recently held three states’ partial-birth-abortion laws unconstitutional, but only after first concluding that all three statutes forbid the d&e procedure. Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999) (Nebraska); Little Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794 (8th Cir.1999) (Arkansas); Planned Parenthood of Greater Iowa, Inc. v. Miller, 195 F.3d 386 (8th Cir.1999) (Iowa).

II

Plaintiffs would like us to employ the approach of our panel’s opinion in the Wisconsin case and declare both states’ laws unconstitutional without ado. But different statutes have different language, which may be important. Litigants also have made distinctive arguments—for example, Illinois relies on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for the proposition that, except in first amendment cases, a law may be held unconstitutional only when “no set of circumstances exists under which the Act would be valid.” Moreover, two events since the panel wrote call for fresh analysis. First, that opinion dealt with preliminary relief and observed that “the full trial may cast the facts in a different light”. 162 F.3d at 466. That trial has been held in Wisconsin, and its results must be considered. Second, both the panel’s decision in the Wisconsin case and the district court’s opinion in the Illinois case conclude that the statute as written is vague. A more recent decision of the Supreme Court, Chicago v. Morales, — U.S. -, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), stresses that state courts are entitled to construe state laws to reduce their ambiguity, and that federal courts should evaluate state laws as they have been construed, not just as they appear in the statute books. See also, e.g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Civil Service Commission v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). This implies that Illinois and Wisconsin are entitled to interpret their own laws—that federal courts should not enjoin all application before enforcement and thus prevent the state courts from having a chance to save their statutes.

Salerno offers a potential ground for giving the states that chance. It would be hard to say that every possible instance of the d&x procedure is protected by the Constitution. Along similar lines are the many cases saying that outside the domain of the first amendment, vagueness challenges must be assessed “as applied.” See, e.g., Maynard v. Cartwright, 486 U.S. , 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). But we are reluctant to rely too heavily on this approach, because Morales shows that three Justices believe that this language is too sweeping, see — U.S. at - & n. 22, 119 S.Ct. at 1858-59 & n. 22 (Stevens, J., joined by Souter & Ginsburg, JJ.), and the Supreme Court has on occasion resolved constitutional challenges to statutes that do not involve speech without asking whether every conceivable application would be unconstitutional. E.g., Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); Kolender v. Lawson, 461 U.S. 352, 358-59 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913). Only one Justice offered any support for Salerno’s approach in Morales, and he did so in a dissenting opinion. — U.S. at -, 119 S.Ct. at 1867-72 (Scalia, J., dissenting). Justice Scalia identified many cases that articulate Salerno’s requirement, and many others that bypass the inquiry. Courts of appeals are divided on the question whether Salerno applies to abortion legislation. Compare Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996), with Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992). The safest course for a court of appeals, when confronted with inconsistent lines of precedent, is to decide on other grounds if at all possible. Here it is possible, for we think that the Supreme Courts of Illinois and Wisconsin could read their laws in ways that comport with the Constitution.

1. One means of doing this would be to assimilate the statutory definitions to the medical definition of d&x, with allowance for different ways of reducing the head size and other immaterial variations. Both states are concerned about the d&x procedure and did not set out to forbid any other. The Attorneys General of Illinois and Wisconsin, the principal defendants, tell us that their statutes are concerned only with the d&x procedure and will be enforced only against its use. That assurance might be enough by itself, in the absence of any contrary indication from the state judiciary, to resolve immediate vagueness concerns. See Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 76-80, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Although local prosecutors (States’ Attorneys in Illinois, District Attorneys in Wisconsin) initiate criminal prosecutions, representatives of these prosecutors have been named as parties in each ease, and they agree with the Attorneys General. Plaintiffs object that this approach would rewrite rather than interpret the law, but we doubt this. Both medical and popular literature equate “partial-birth abortion” (the statutory term) with the d&x procedure. See Janet E. Gans Epner, Harry S. Jonas & Daniel L. Seckinger, Late-term Abortion, 280 J. Am. Medical Ass’n 724 (Aug. 26, 1998); M. LeRoy Sprang & Mark G. Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 J. Am. Medical Ass’n 744 (Aug. 26, 1998). The district court in Wisconsin found that this is the statute’s aim. 44 F.Supp.2d at 984 (relying on the' Attorney General’s concession). Using a medical definition to supplement a vague lay definition does not strike us as revisionism or an exercise in deconstruction.

But if this approach would nonetheless be an example of brute force used to save a statute — well, courts do it all the time. Florida had a law forbidding “the abominable and detestable crime against nature”. Placement in the code showed that this crime had something to do with sex, but what? Did it forbid incest? Necrophilia? Bestiality? A legal historian might give an answer, but to lay readers of the statute, and even to most lawyers, the words are Delphic. The state’s highest court filled in the blank by saying that the object was sodomy — and the Supreme Court of the United States rebuffed a charge of unconstitutional vagueness, given the state court’s prestidigitation. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). Only if vagueness remains after judicial interpretation is there a constitutional problem, the Court held. See also, e.g., United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Lanzetta v. New Jersey, 306 U.S. 451, 455-57, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Kolender, 461 U.S. at 355-57, 103 S.Ct. 1855. Federal courts have performed equally dramatic feats. As written, the Federal Election Campaign Act is hopelessly vague and overbroad. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), saved the bulk of the statute by adding details. In two recent cases we predicted that state courts would follow suit with comparable state laws. See Wisconsin Right to Life, Inc. v. Paradise, 138 F.3d 1183 (7th Cir.1998); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir.1998). In the latter case, because we were not completely confident that the state judiciary would follow Buckley’s path of freewheeling interpretation, we certified the issue to the Supreme Court of Indiana— which responded that it indeed possesses, and is inclined to use, that power. Brownsburg Area Patrons Affecting Change v. Baldwin, 714 N.E.2d 135 (Ind.1999).

Relying on Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979), the sixth circuit concluded in Women’s Medical Professional Corp. v. Voino-vich that any statute concerning abortion is unconstitutionally vague, no matter how precise an interpretation state courts eventually develop, unless it requires proof that the physician knows that a given act has been forbidden. If this were so, then the approach to avoiding vagueness that we have just sketched would be untenable. But it is not so; never has the Supreme Court held that all criminal laws (or even just all criminal laws affecting abortion) depend on scienter. Cases we have mentioned already (and more that we cite later) hold that a statute may be sustained against a charge of vagueness if, as construed, it gives reasonable notice of the forbidden conduct. That the notice does not sink in—that some people close then-eyes (or minds) and thus do not learn of the law’s contents or appreciate its application to their conduct—does not prevent a state from enforcing its rules. See United States v. Wilson, 159 F.3d 280, 288-89 (7th Cir.1998). This subject received sustained attention in Karlin v. Foust, 188 F.3d 446, 460-64 (7th Cir.1999). For the reasons laid out in Karlin we respectfully disagree with the sixth circuit’s understanding of this question. See also Note, 112 Harv. L.Rev. 731 (1999) (criticizing Women’s Medical Professional Corp.).

2. Although the Constitution does not compel states to ameliorate vagueness problems by using a mental-state requirement to limit prosecutions to situations in which the defendant knows that his acts are forbidden, they are free to do so. This is the path the Supreme Court took in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), and United States v. Kozminski, 487 U.S. 931, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988), to save 18 U.S.C. §§ 241 and 242. These companion statutes, the poster children for a vagueness campaign, make it a crime to deprive anyone of any constitutional right (or conspire to do so). These statutes are written entirely in terms that have been difficult to pin down, such as “under color of any law” and “rights, privileges, or immunities secured or protected by the Constitution ... of the United States”. Section 242 contains the word “willfully”, and in Screws the Court read this to mean that a person commits the offense only if he knows that his acts deprive someone of a constitutional right. A person who actually recognizes his legal obligation can’t complain that he lacked notice. Many cases since Screws use a knowledge requirement to prevent unfair surprise when the statute is vague or complex. E.g., Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (tax laws); Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (gun-control laws).

Both Illinois and Wisconsin put mental-state elements in their statutes. Attorneys General of both states contend that under their laws a procedure may be deemed a “partial-birth abortion” only if at the outset of the procedure the physician intends to perform all of the steps that mark the d&x. We think that the Supreme Courts of both states could go even farther and read the statutes to require knowledge of the legal rules, and thus to follow the trail blazed in Screws.

The critical language in Illinois reads: “Any person who knowingly performs a partial-birth abortion and thereby kills a human fetus or infant is guilty of a Class 4 felony.” 720 ILCS § 513/10 (emphasis added). If the Supreme Court of Illinois reads “knowingly” in § 513/10 the same way the Supreme Court of the United States read “willfully” in § 242, then there is no vagueness problem with § 513/10. And we can’t see any impediment to giving “knowingly” such a reading. In context, the word sounds distinctly like a requirement that the physician know that the medical procedure being performed is a “partial-birth abortion” and not simply that the physician know that he is performing particular physical acts. The most natural reading is one that requires knowledge of the law’s application to the medical procedure being performed. Federal courts have been creative with knowledge requirements as a means of saving statutes against constitutional infirmity. E.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). Section 513/10 readily supports a construction that eliminates all concern about vagueness, which makes it inappropriate for a federal court to enjoin its application. (In Morales, the Supreme Court’s most recent vagueness opinion, the lead opinion stressed that the statute lacked any mental-state requirement.)

Wisconsin uses the word “intentionally” rather than the word “knowingly.” Its statute has two intent elements: a partial-birth abortion is defined as one in which the physician acts with “the intent to kill the child”, Wis. Stat. § 940.16(1)(b), and the section defining the offense reads: “[Wjhoever intentionally performs a partial-birth abortion is guilty of a Class A felony.” Wis. Stat. § 940.16(2). The reference to “intent” in § 940.16(1)(b) must mean “that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.” Wis. Stat. § 939.23(4) (defining “with intent to”). The reference to “intentionally” in § 940.16(2) has at least potentially a broader scope. Although § 939.23(3) defines “intentionally” as “a purpose to do the thing or cause the result specified”, a “partial-birth abortion” is neither a thing nor a result; it is a defined legal term. It is therefore a distinct possibility that the Supreme Court of Wisconsin will read this reference as equivalent to “wilfully” or “knowingly” notwithstanding the caution in § 939.23(5) that criminal intent “does not require proof of knowledge of the ... scope or meaning of the terms used in” a statute. The question here is not whether a physician understands the terms of § 940.16(1)(b) in the abstract, but whether the physician intends that the plan of action add up to a “partial-birth abortion.” In cases such as X-Citement Video, Cheek, and Staples, the Supreme Court of the United States was exceptionally creative with statutory allusions to mental states; plaintiffs have not established that the Supreme Court of Wisconsin would be unwilling to save its statutes the way the Supreme Court of the United States saved 18 U.S.C. § 242.

3. Still a third interpretive approach is open to the state courts. They may elect to apply the statute to its central core of meaning, the d&x, while working out in common law fashion its outer boundaries. See United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 986-90 (7th Cir.1999). This is how the Supreme Court has chosen to proceed with respect to the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2, a statute much less precise than the partial-birth-abortion laws. Long before the development of a body of antitrust rules, or even of a clear distinction between the domains of the per se rule and the rule of reason, the Court rebuffed a vagueness challenge, remarking that “law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” Nash, 229 U.S. at 377, 33 S.Ct. 780 (Holmes, J.). The Court took the same approach in Parker v. Levy for Article 133 of the Uniform Code of Military Justice, which makes it a crime for a commissioned officer to engage in “conduct unbecoming an officer and a gentleman.” That statute, compared to which § 513/5 and § 940.16(1)(b) are paragons of specificity, was sustained against a vagueness challenge because the military courts had added details over many years, and the Supreme Court anticipated that they would continue to do so as new situations arose. Letter Carriers applies the same approach to vague provisions of the Hatch Act. Parker cannot be passed off as a sport of military law; it is just one illustration of the proposition that vagueness may be overcome incrementally, as well as by an all-at-once construction. Consider United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975), a civilian case dealing with 18 U.S.C. § 1715, which makes it a crime to mail a firearm capable of being concealed on the person. A Derringer unquestionably qualifies, and although larger guns pose tough questions, the combination of a core meaning plus size as a metric for adjudication enabled the Court to hold that borderline cases could be decided later, as they arose.

Notice the difference between this approach and Salerno. In eases such as Nash, Parker, and Powell, the Court did not ask simply whether there was one constitutional application. It asked whether there was a core of meaning that people could grasp. In Nash the common law of restraint of trade supplied that core; in Parker the accumulated body of military precedents did so; in Powell the core comprised handguns. Occasionally the Court fortifies this approach by combining it with a scienter requirement, as United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), did for the Sherman Act. Illinois and Wisconsin can follow the same path. For their statutes, the medical definition of the d&x procedure supplies the core of understandable application. Indeed, the district court in Wisconsin found as a matter of fact that physicians who are likely to perform an abortion already understand that this is the point of partial-birth-abortion statutes. 44 F.Supp.2d at 978. That finding cannot be set aside as clearly erroneous.

Plaintiffs respond to this core-plus-common-law approach by contending that a statute is unconstitutionally vague until the interstices have been filled in. But then all of the cases we have cited were wrongly decided, for the interstices of antitrust law were not filled in by 1913, nor were all of the gun-mailing issues worked out before 1975: Powell involved a sawed-off shotgun, not a pistol. To say that the law cannot be applied to anyone, even a person who commits a violation within the core of the statute, until all issues about its reach have been resolved would prevent those issues from coming before the court to be resolved. How, precisely, are the interpretive wrinkles to be smoothed if the law can’t be invoked? By advisory opinions? Anyway, there is always a periphery, no matter how many situations judges have evaluated. Resolving each new question moves the area of uncertainty but can’t abolish it. ‘Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.” United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508 (1930) (Holmes, J.).

Protection for events outside the core is provided by the principle that surprising and unanticipated applications of a criminal statute violate the due process clause. See, e.g., Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); Marks v. United States, 430 U.S. 188, 196, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Lanier, 520 U.S. at 266, 117 S.Ct. 1219. Given the assurances made in this litigation by the Attorneys General of Illinois and Wisconsin, application of these states’ partial-birth-abortion statutes to a normal d&e or induction (including one that began as a d&e but turned out to have elements of a d&x because of inadvertence or developments during surgery) would be surprising and constitutionally impermissible. Plaintiffs therefore can practice medicine without undue concern on the legal front. The Constitution provides the assurance they crave—but without the need to prevent application of the state law to the d&x procedure itself. States have a powerful interest in working out the details of their criminal laws in their own courts. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Nelson v. Murphy, 44 F.3d 497 (7th Cir.1995). On remand the district judges should enter precautionary injunctions, limited to implementing the conclusion of this paragraph that the state laws may not be applied to a normal d&e or induction until after the state has provided additional specificity, by statutory amendment, regulations, or judicial interpretation (which could arise either from civil litigation, see Part IV below, or from criminal prosecutions in which the parties disagree about whether the medical procedure properly may be labeled a d&x). With that assurance in hand, plaintiffs would not face any substantial threat of prosecution.

A skeptic might respond: what’s the basis for an injunction without a finding of actual constitutional violation? The basis is the risk that plaintiffs face. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Whenever suit is brought against a statute that has yet to be enforced, there is a chance that what the federal court does will be unnecessary or even advisory—for in the absence of relief the statute might never be enforced in a way that plaintiffs fear, or that would violate their rights. Everything depends on probabilities. Plaintiffs believe that the probability of improper prosecution is so high that the statutes must be enjoined root and branch. We think that the probability of improper prosecution is low, but non-zero; and a prosecution for performing a d&e not only raises vagueness concerns but also could unduly burden women’s rights (see Part III below). That risk can be reduced to a constitutionally acceptable level with a simple injunction based on Bouie.

Persons who believe that the risk of improper prosecution is so high that all prosecution under the statute should be enjoined are poorly situated to contend that the risk also is so low that the plaintiffs lack standing under Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). When this case began the plaintiffs faced a real risk and therefore had standing; and no one thinks that defendants’ representations about their projected course of enforcement have made the controversy moot. If as plaintiffs believe the Constitution requires an injunction against everything Illinois and Wisconsin have enacted, despite these assurances, then the Constitution can’t simultaneously forbid an injunction against potential misuses of state power in the enforcement of these laws. Article III does not limit a federal court’s choice to enjoining nothing, or enjoining everything. The path we choose allows the states to interpret their laws and supply more concrete rules, see Bellotti v. Baird, 428 U.S. , 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); the path the plaintiffs (and our dissenting colleagues) prefer would foreclose now and forever all interpretation by the state judiciary. By filing suit against a novel and ambiguous law in federal court, litigants can’t preclude interpretation by the state judiciary. Our precautionary approach preserves the state judiciary’s role while protecting plaintiffs’ (and their patients’) legitimate interests in the interim.

4. In the Wisconsin case our panel expressed concern that even if the probability of unanticipated application is low, the penalty is so high (life imprisonment) that physicians would avoid performing the d&e procedure. 162 F.3d at 469. This cannot be said of Illinois, where the maximum penalty is three years’ imprisonment. Although the threat of life in prison has a greater potential to induce caution than does the threat of three years in prison, the precautionary injunction discussed above should reduce the risk of improper or unanticipated application to a trivial level. The right constitutional objection to a Draconian penalty is not vagueness (a statute’s scope is equally clear or uncertain whether the penalty is a $10 fine or 20 years in prison) but a contention that severe criminal punishment for a medical misunderstanding would inflict cruel and unusual punishment. Plaintiffs themselves do not make such an argument, however; they object to the substance of the state laws, not to the punishment available on conviction. The penalty is an afterthought, scarcely mentioned in their briefs. If Wisconsin should some day impose a lengthy prison term for a violation of § 940.16(2), then it will be time to consider arguments based on the eighth amendment.

5. For the last two years, a natural experiment has been conducted in the United States. Thirty states enacted laws forbidding most partial-birth abortions. Judges prohibited the application of these laws in two-thirds of these states; in the other third the statutes have been in force. One way to perform a reality check on the district court’s conclusion in the Wisconsin case that physicians know that these statutes cover only the D&x is to see what has happened in the states where the laws have been permitted to take effect. Vagueness could affect physicians in either or both of two ways. First, they might send women seeking second-trimester abortions to other states that do not regulate partial-birth abortions. The result would be a decrease in second-trimester abortions as a percentage of all abortions in the state. Second, physicians might select a different procedure — principally substituting induction for a d&e — even though the replacement was medically inferior. This would produce a change in the ratio of inductions to d&e procedures in the affected state.

Indiana supplies a nice test, because its law took effect on July 1,1997, so it is easy to compare the first six months of 1997 to the second six. Moreover, Indiana is surrounded by states that lack an effective prohibition on partial-birth abortions (because of the Illinois injunction and the sixth circuit’s ruling in Women’s Medical Professional Corp.), so it was relatively easy for physicians to send their patients elsewhere. Although the maximum penalty in Indiana is not steep (an unjustified partial-birth abortion there is a Class C felony, Ind.Code § 16-34-2-7(a), for which the punishment is four years’ imprisonment, Ind.Code § 35-50-2-6(a)), no state or federal court has construed the statutory term, so whatever uncertainty the raw text of the statute engenders is unabated.

During 1997 a total of 13,208 abortions were performed in Indiana. (These data come from tables prepared by Indiana’s State Epidemiologist.) During the first six months, 74 late-second-trimester abortions were performed: 72 by d&e and 2 by intra-uterine prostaglandin injection. During the second six months (that is, after the partial-birth-abortion law took effect), 87 late-second-trimester abortions were performed, all by d&e. Thus physi-dans did not substitute induction for d&e in order to reduce risk to themselves. Nor did they avoid the d&e procedure by sending women to other states. Abortion by d&e during the first six months represented 1.03% of all abortions performed in Indiana (72 of 6,950). Abortion by d&e during the second six months represented 1.39% of all abortions in the state (87 of 6,258). These data are incompatible with plaintiffs’ a priori belief that the partial-birth-abortion statutes will discourage the performance of the d&e procedure or cause the physician to substitute an inferior procedure. Perhaps things have turned out differently in other states, or perhaps physicians behaved differently in 1998 or 1999. We do not mean to preclude plaintiffs from ’submitting the data in Indiana and other states to rigorous analysis. A few procedures were classified in the tables as “unknown,” which may mask some effects— though the number of “unknown” procedures did not change much from the first to the second half of 1997. Our point is only that a simple inquiry reinforces the findings of fact made in the Wisconsin case and implies that partial-birth-abortion statutes need not have the baleful effects that plaintiffs foresee.

III

Plaintiffs in both cases contend that, even if the statutes are precise enough to be enforced, they create an undue (and therefore unconstitutional) burden on abortion. The eighth circuit reached this conclusion in Carhart and its two companion cases, but only after first holding that the state laws effectively prohibit the d&e procedure. If we thought that the Illinois or Wisconsin laws forbade d&e, then Planned Parenthood of Central Missouri v. Danforth would require us to agree with the eighth circuit. For reasons we have already given, however, we believe that state courts are entitled to accept the view of both states’ Attorneys General that their laws do not forbid, or even affect, the d&e procedure. The question we must address, then, is whether a statute limited to d&x unduly burdens abortion.

One reason why this might be so is that neither state’s law contains an exception for situations in which the d&x procedure is necessary to protect the woman’s health. A second argument is that any prohibition of any medical procedure unduly burdens a woman’s right to abortion. The first line of argument finds some support in Casey, which held that any regulation of abortion must make an exception for procedures that protect “the woman’s life or health”, 505 U.S. at 846, 112 S.Ct. 2791 (emphasis added), as well as our panel’s decision in the Wisconsin case, 162 F.3d at 467-68, 470-71. But we do not think that the plurality in Casey meant this as a universal rule, one applicable even when the procedure in question lacks demonstrable health benefits. The point that the plurality made was that a statute that lacks a “health exception” may unduly burden the woman’s right to obtain an abortion before the fetus has reached viability; when state law offers many safe options to that end, the regulation of an additional option does not produce an undue burden.

Section 513/10 of the Illinois statute contains an exception for “a partial-birth abortion that is necessary to save the life of a mother because her life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering condition caused by or arising from the pregnancy itself, provided that no other medical procedure would suffice for that purpose.” It does not contain a comparable exception for a partial-birth abortion that promotes the woman’s health. Wisconsin’s law has a similar structure. Both sets of plaintiffs contend that the lack of an exception for a woman’s health dooms the statute. Coming from the Illinois plaintiffs, this is a weak argument indeed, for none of the plaintiff physicians or clinics in Illinois uses the d&x, and none asserts any desire to start. Whether the d&x procedure sometimes would protect a woman’s health is therefore immaterial to these physicians and the women in their care. But several of the plaintiff physicians in the Wisconsin case do employ the d&x procedure on occasion, so we must consider the merits of the argument.

After a trial, the district court in the Wisconsin case concluded that the d&x procedure is never necessary from the perspective of the patient’s health. 44 F.Supp.2d at 979-82. This conclusion cannot be called clearly erroneous; as things transpired, it was not a seriously contested issue. None of the plaintiff physicians in that case testified to the contrary. The district court summed up:

None of the physicians would state unequivocally that the d&x procedure is safer than the d&e procedure. Broek-huizen conceded that further study of the procedures is required. Smith admitted that he had never encountered a situation where d&x would have been the best procedure to use. Haskell, who invented the procedure, admitted that the d&x procedure is never medically necessary to save the life or preserve the health of a woman. Giles agreed.

Id. at 980. The judge added that, although the d&x procedure has been used for more than a decade, no published study compares the risks of d&x to those of d&e. Id. at 979. Some authors believe that the d&x procedure is more hazardous. See Sprang & Neerhof, supra, 280 J. Am. Medical Ass’n at 746 (“Intact d&x (partial-birth abortion) should not be performed because it is needlessly risky, inhumane, and ethically unacceptable.”); Nancy G. Romer, The Medical Facts of Partial-Birth Abortions, 3 Nexus 57 (1998).

Plaintiffs have not identified any data that undercut the district court’s finding of fact. Their principal medical reference is the aoog’s 1997 statement and technical bulletin on the d&x procedure, which concluded that, although d&x is never the only medically appropriate option, choice still should be reserved to the physician. Although the statement asserts that d&x sometimes may be the best option, the acog did not identify any concrete circumstance under which this would be so or provide support for the assertion. Several of the plaintiff physicians testified to like effect, again without specifics or data. No published medical study fills the gap. Cf. Kumho Tire Co. v. Carmichael, 526 U.S. 137, -, 119 S.Ct. 1167, 1177-79, 143 L.Ed.2d 238 (1999). Unela-borated avowals do not demonstrate that a finding of fact reached after a trial is clearly erroneous. When there is a conflict in the testimony—and that is the description most favorable to the plaintiffs— the finder of fact is entitled to choose. See Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We' proceed on the assumption, which appears to be shared by the American Medical Association, that the d&x is not the best or safest option in any articulable category of situations. The ama’s Policy h-5.982 concludes, among other things, that “there does not appear to be any identified situation in which intact d&x is the only appropriate procedure to induce abortion.” The district court in Illinois did not make contrary findings, or indeed any finding; acting without a trial or even an evidentiary hearing, it could not properly have rendered “findings” about disputed issues. District courts in other circuits have disagreed with the conclusions the district judge reached in the Wisconsin case, but this does more to show that the issue is debatable among reasonable persons than to show that a particular view is in error.

The question in the end is not what one or another judge found on a given record; it is whether the state legislatures exceeded their constitutional powers. Factual premises underlying legislation normally are not subject to review by trial courts. FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463-65, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124, 1127 (7th Cir.1995). The district court’s findings, the statements of medical groups, and the inferences to be drawn from what has happened in states that have implemented partial-birth-abortion statutes, are informative rather than conclusive on the question whether the underpinnings of the legislation are tenable. See Henry P. Monaghan, Constitutional Fact Review, 85 Colum.L.Rev. 229 (1985). Although “undue burden” analysis does not map neatly to the standard classifications (“rational basis,” “strict scrutiny,” and the like), making it hard to know the extent to which courts must respect legislative decisions about contestable factual matters, it is significant that none of the Supreme Court’s decisions in abortion cases suggests that the same law would be constitutional in one state, and unconstitutional in another, depending on a district judge’s resolution of factual disputes. Thus we treat the findings in the Wisconsin case, like the view of the ama, not as replacements for legislative conclusions, but as establishing that there is real, and not just hypothetical, support for a belief that the partial-birth-abortion laws do not pose hazards to maternal health. (This is the approach to evaluation of facts when the constitutional standard prescribes an intermediate level of analysis. See Craig v. Boren, 429 U.S. 190, 199-204, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).)

Only if every regulation related to abortions must contain a case-by-case “health exception” is there a problem with these laws. Yet Casey did not say that health effects must be evaluated case by case, rather than procedure by procedure. Abortions are not havens for junk science—so that, for example, the state must let any chiropractor perform an abortion, if the chiropractor believes that manipulation of the spine is safest for the woman. Cases such as Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), which held that states may limit performance of abortions to physicians, permit laws that regulate by class of procedures (or of medical providers). Cf. United States v. Rutherford, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979) (pda may ban a generally ineffective drug, even though for a few people it may be the only cure). Doubtless some nurses are better than some physicians at performing abortions, so patients’ health would be improved by allowing these nurses to perform abortions; yet the Court held that states may provide otherwise. Similarly, Illinois and Wisconsin concluded that the d&x procedure is not essential to protect the health of any woman, given the availability of other procedures. Compilation of additional information by the medical profession could call this conclusion into question. As things stand, however, interference with the operation of the state laws cannot be justified on the ground that the d&x procedure is necessary to protect women’s health.

A requirement of a case-by-case “health exception” to every statute concerning abortion would amount to a rule that no state may regulate any abortion procedure. For a physician will use a particular procedure only if in the physician’s judgment the procedure is superior in some way—faster, safer, more likely to work (and thus indirectly safer because an abortion can be achieved with one procedure rather than two, with cumulative risks), or perhaps less expensive (and thus again indirectly safer, because the lower cost brings it within the reach of additional patients). Can plaintiffs, who object to the vagueness of the states’ laws, really welcome a ruling under which every abortion creates the possibility of a prosecution in which the state invites a jury to disagree with the physician’s assessment of the procedure’s safety? A health exception, where jurors rather than physicians assessed health, would be an order of magnitude worse than the ambiguity plaintiffs perceive in the partial-birth-abortion laws. Perhaps plaintiffs believe that a “health exception” should make the physician’s assessment of health consequences incontestable. That would avoid vagueness at the price of vitiating the laws. Some physicians are bound to think that a given procedure is safer or otherwise superior, even if the medical profession as a whole disagrees. A constitutionally based health exception for every procedure, coupled with a prohibition against review of physicians’ beliefs about which procedures are safest, would amount to a rule that ány-thing goes. And plaintiffs make this argument explicitly: they contend that any regulation of any medical procedure that pertains to abortion is an “undue burden” on women’s rights.

To the observation that d&x is not an important procedure—indeed, that it is such a marginal procedure that few physicians anywhere in the nation (and none in Illinois) express any interest in performing it—plaintiffs rejoin that the question is not whether a law creates an undue burden for women as a group, but only whether it does so for those women it affects. The affected set here is women for whom a physician will think that d&x is the procedure most likely to succeed, or to entail the least cost. For these women, plaintiffs contend, the burden is substantial and therefore “undue.” Moreover, the argument continues, if the states are right—if d&x really is a procedure that the medical profession abjures—then the law must be political grandstanding. A restriction imposed for no better reason than to make a point has no benefits and therefore must be “undue,” the argument concludes. On plaintiffs’ approach, if the statutes actually accomplish something, then the burden is “undue” because the laws have effects; and if the laws accomplish nothing, then the burden is “undue” because any cost is excessive when the benefit is zero. Plaintiffs have the states both coming and going.

But this cannot be a sound understanding of Casey, or Mazurek would have come out the other way. By plaintiffs’ lights, Montana’s statute restricting the performance of abortions to licensed physicians would have had an “undue burden” on those women it affected—that is, the set of women for whom the extra cost of a physician’s fees made obtaining an abortion impractical or burdensome. Yet the Court held that a physician-only rule is not an “undue burden,” as the plurality in Casey used that phrase. What plaintiffs in our case really argue is not that limiting the d&x procedure to situations (if there are any) in which it is necessary to save the woman’s life is an undue burden, when compared with other burdens (such as waiting periods, information requirements, parental approval or consultation requirements, and physician-only rules) that the Court has sustained; it is, rather, that all “burdens” are “undue” because women should have unfettered choice among medical procedures. But then the phrase “undue burden” is simply redundant; the word “undue” does no work.

It is always difficult for a court of appeals to predict how Justices of the Supreme Court will apply a phrase with as much plasticity as “undue burden.” But our best estimate is that “undue” rather than “burden” is the key word, and that “undue” means not only “substantial” (a small cost or inconvenience is not “undue”) but also that the burden must be undue in relation to the woman’s interests, rather than undue in relation to the court’s assessment of society’s interests. Plaintiffs’ (implicit) argument that every regulation of a medical procedure is “undue” fails because many regulations create small burdens. The physician-only rule was one; a prohibition of d&x is another. Even for the class of women who seek late-second-trimester abortions, there is always one or more other safe methods of abortion in addition to d&x. Let us return to the natural experiment now under way. Plaintiffs do not contend that in any of the states where a partial-birth-abortion law is in effect, even one woman has been injured or denied an abortion because of the law.

As for the second branch of plaintiffs’ argument—that because the partial-birth-abortion laws do not diminish the number of abortions, they must be condemned as moralizing rather than utilitarian laws— this calls on judges to recapitulate Lo-chner’s methodology. This line of argument amounts to the contention that Casey so restricts the states’ power that states are limited to symbolic gestures; and then the states’ very attempt to comply with Casey by refraining from substantially impeding women’s access to abortion dooms their laws. We do not read Casey as condemning states to this self-defeating legislative menu. So long as the law does not harm women’s legitimate interests, the fact that the law’s effects are small and justified by moral rather than utilitarian considerations does not spell unconstitutionality.

IV

One final issue requires attention. The district court in Illinois read 720 ILCS § 513/15 to establish a parental-consent requirement, which the court enjoined because it lacks a judicial-bypass procedure. 995 F.Supp. at 861, relying on a portion of Casey, 505 U.S. at 899-900, 112 S.Ct. 2791, that reaffirmed Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990). But what § 513/15 actually provides is different. It reads:

The maternal grandparents of the fetus or infant, if the mother has not attained the age of 18 years at the time of the abortion, may in a civil action obtain appropriate relief unless the pregnancy resulted from the plaintiffs criminal conduct or the plaintiff consented to the abortion. The relief shall include money damages for all injuries, psychological and physical, occasioned by the violation of this Act and statutory damages equal to 3 times the cost of the partial-birth abortion.

Nothing here requires parental consent to a partial-birth abortion. Section 513/10 forbids most partial-birth abortions; no one can authorize that procedure in Illinois unless it is necessary to protect the woman’s life, and then no parent’s consent is necessary.

Section 513/15 provides civil damages for conduct that violates § 513/10, and it assigns the right to pursue these damages to parents if the person who undergoes the procedure is a minor. A parent who gave consent to the procedure naturally can’t recover damages, even though a criminal prosecution remains possible under § 513/10 if the mother’s life was not in jeopardy. The possibility that a parent may consent to an unlawful procedure (and thus insulate the physician from civil damages), or consent to a life-saving procedure for which no consent was necessary in the first place, hardly implies that a judge also must be empowered to authorize a violation of § 513/10.

Wisconsin’s civil-liability provision, Wis. Stat. § 895.038(2), is entirely derivative from its criminal-liability provision, and the district court held it valid because the criminal provision is valid. Plaintiffs. in the Wisconsin case do not take issue with this approach: they argue only that § 895.038(2) is unconstitutional because § 940.16 is unconstitutional. We therefore do not discuss § 895.038(2) further.

Actually, we have said too much already about the civil-liability provisions. They are enforced in private litigation; the states’ Attorneys General and local prosecutors have nothing to do with civil suits. Relief against the public officials therefore would be pointless even if the civil-liability provisions were problematic. See Summit Medical Associates, P.C. v. Pryor, 180 F.3d 1326 (11th Cir.1999). There is no controversy between the parties to this case that can be resolved by a declaration concerning the civil-liability rules. But see Okpalobi v. Foster, 190 F.3d 337 (5th Cir.1999) (purporting to enjoin a private-civil-damages provision in a suit to which only state officers were defendants, without mentioning the eleventh circuit’s conclusion in Summit Medical).

The judgments in both cases are vacated. The cases are remanded with instructions to enter the precautionary injunctions discussed in Part II.3 of this opinion, to dismiss the challenges to the civil-liability provisions for want of a case or controversy, and otherwise to enter judgment for the defendants.

VACATED AND REMANDED