Indiana, Mississippi and South Dakota all enacted partial-birth abortion bans that became effective on July 1, 1997. See IND. CODE ANN. § 16-18-2-267.5 (West Supp. 2005) (defining offense); § 16-34-2-1(b) (West Supp. 2005) (prohibition); MISS. CODE ANN. § 41-41-71 et seq. (1999); S.D. CODIFIED LAWS § 34-23A-27 et seq. (Michie Supp. 2003). None of these statutes, prior to Stenberg, was construed by any state or federal court.
A comparison of official abortion reporting statistics from these States for the first half of 1997, when none of their statutes was in effect, to statistics for the second half of 1997, when all three were in effect, leaves no doubt that respondents' expressed fears that the federal Act would "chill" physicians from performing dismemberment D&Es and inductions are baseless. That comparison also shows that respondents' professed inability to understand what the Act forbids is more contrived than genuine. Review of these statistics enables this Court "to perform a reality check" on respondents' assertion that they would not be able to perform conventional second-trimester abortion procedures if the Act were allowed to go into effect. Hope Clinic v. Ryan, 195 F.3d 857, 870 (7th Cir. 1999) (en banc), vacated and remanded with directions, 530 U.S. 1271 (2000), on remand, 249 F.3d 603 (7th Cir. 2001) (en banc).
The Indiana State Department of Health reported that 13,208 abortions were performed in 1997, of which 12,429 were suction curettage, 87 sharp curettage, 159 dilation and evacuation (D&E), and two intra-uterine prostaglandin instillation. See Appendix A-2. The statistics reflect that 54.71% of the dilation and evacuation procedures (87 of 159) were performed in the second half of the year (when the Indiana partial-birth abortion act was in effect). As these statistics show, the partial-birth abortion act did not prevent physicians in Indiana from performing dismember-ment D&Es.
"These data," the Seventh Circuit noted, "are incom-patible 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." Hope Clinic, 195 F.3d at 871. In the eighteen months after the Indiana partial-birth abortion statute took effect (July 1, 1997 through December 31, 1998), there were 286 D&Es, while in the eighteen months before the statute took effect (January 1, 1996, through June 30, 1997), there were 263 D&Es. See Appendix A-2 and INDIANA TERMINATED PREGNANCY REPORT 1996 (Jan. 1998) at 20 (Table 20), INDIANA NATALITY, INDUCED TERMINATION OF PREGNANCY, AND MARRIAGE REPORT[:] STATE, COUNTY, AND CITY DATA 1998 at 84 (Table 18). This certainly does not suggest that physicians in Indiana were deterred or discouraged from performing dismemberment D&Es by the enactment of the partial-birth abortion statute.
Official abortion reporting statistics from other States confirm the Seventh Circuit's sense that "partial-birth abortion statutes need not have [and, in fact, did not have] the baleful effect the [respondents] foresee." Hope Clinic, 195 F.3d at 817.