First, the person performing the abortion must "vaginally delive[r] a living fetus." §1531(b)(1)(A). The Act does not restrict an abortion procedure involving thedelivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetusis a living organism while within the womb, whether ornot it is viable outside the womb. See, [FONT=JBMMAD+CenturySchoolbook,Itali,Century Schoolbook]e.g., Planned Parenthood[/FONT], 320 F. Supp. 2d, at 971–972. We do not understand this point to be contested by the parties.
Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered "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." §1531(b)(1)(A) (2000 ed., Supp. IV).The Attorney General concedes, and we agree, that if anabortion procedure does not involve the delivery of a livingfetus to one of these "anatomical ‘landmarks’"—where, depending on the presentation, either the fetal head or thefetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05–380, p. 46.
