Lawall

dissenting:

The court’s refusal to reconsider this case en banc allows a federal court to invalidate, for the second time, a duly enacted Arizona statute regulating abortion. 1 This time around, the court flouts Supreme Court precedent. I respectfully dissent.

It is difficult to imagine a decision more appropriate for en banc reconsideration than this one. First, the case is one of the utmost gravity. Federal courts must act with the greatest circumspection when we override a state’s democratic processes to strike down its enactments as unconstitutional. We are legitimately charged with interpreting and enforcing the supreme law of the land-even at the cost of frustrating the will of electoral majorities-but it has never been doubted that on such occa *1044 sions we must do so with heightened deliberation. Second, the panel’s opinion all but ignores a Supreme Court precedent that compels the conclusion that Arizona’s statute is, in fact, perfectly constitutional. Third, the panel’s opinion introduces, without much deliberation at all, a novel and untenable standard in this circuit for facial attacks upon statutes regulating abortion. This new standard defies Supreme Court…

*1043 ORDER

The opinion filed June 9,1999, is amended as follows:

On slip opinion page 6025 ( 180 F.3d 1022, 1029 ), footnote 8 is amended to read as follows:

On slip opinion page 6025 ( 180 F.3d at 1029 , left-hand column), at the end of the first complete paragraph, add a new sentence: “The Court, however, has never considered a facial challenge to a judicial bypass provision without specific time limits and containing only a general directive to the courts to proceed expeditiously.”

On slip opinion page 6026 ( 180 F.3d at 1029 , right-hand column), at the end of the carryover paragraph (ending with “Hodson has little bearing on the status of § 36-2152(D).”), add a new footnote 9, as follows:

Renumber the remaining footnotes accordingly.-

With the foregoing amendments the panel has voted to deny the petition for rehearing. A judge of the court called for rehearing en banc, but the call failed to receive a majority of the votes cast by the nonrecused active judges of the court. The petition for rehearing and the petition for rehearing en banc are denied.