A Woman's Choice-East Side Women's Clinic v. Scott C. Newman, Prosecuting Attorney for Marion County Indiana, on Behalf of a Class of Prosecutors

EASTERBROOK, Cirсuit Judge. In 1995 Indiana enacted a statute mak ing the woman’s informed consent a condi tion to an abortion. § Ind.Code 16-34-2- 1.1. Even though the text of this law is materially identical to held constitu tional in Planned Parenthood South eastern Pennsylvania v. Casey, 505 U.S. 833, 881-87, 112 120 L.Ed.2d (1992), a federal district court issued a preliminary injunction preventing the stat ute from taking effect. A Woman’s Choice-East Side Women’s Clinic v. New man, 904 F.Supp. (S.D.Ind.1995). years later, Two the district court modified injunction to permit the state to en law, force most of the but blocked en forcement of the requirement infor mation provided “in presence pregnant woman, [by] the physician who is perform abortion, referring phy sician or physician (§ assistant” 16-34- 2-1.1(1)). (1997). See 980 F.Supp. 962 Af- * Judge Ripple took no part in the grant consideration ed to rehearing Judge en banc. Diane Posner, decision Judges of this case. Rov- P. Wood grant voted to rehearing. ner, Wood, Diane P. Evans and Williams vot- performed. tois abortion whom the judge the passed, had years more four ter of a medical emer- in the Except case in- the permanent and made held trial is volun- an abortion consent to gency, as modified junction following the only if tary and informed (2001). F.Supp.2d are met: conditions supplied to be information By requiring (18) (1) hours before eighteen least At wom- the pregnant presence “in the presence in the the and abortion brochure, by printed an”—rather woman, physician the pregnant the obliges statute web site—the or telephone, abortion, the the perform who is clinic trips two to make woman the as- physician or a referring physician (both the cost raises This hospital. or (as 25-27.5-2- IC defined sistant mental) On abortion. anof and financial (as nurse 10), practice advanced laws concerning similar of studies the basis 25-23-1-1(b)), mid- or a in IC defined court Utah, the district Mississippi and 34-18-2-19) to (as in IC defined wife will cost reduce higher concluded del- has been the responsibility whom of abortions number to 13% the by 10% who is physician by the egated these Some in Indiana. performed referring or the abortion perform that do to states will travel orally informed physician forego an will others trips; two require following: woman pregnant abortion; do have some until procedure delay per- (A) physician will of the Indiana The name consequences These trimester. seсond the abortion. forming bur- an “undue creates law that the show pro- proposed (B) nature of the The held. abortion, judge the district on den” or treatment. cedure judge district the time the Although (C) alternatives of and The risks had injunction we permanent entered or treatment. procedure study does Mississippi that the concluded age of (D) gestational probable of Wisconsin’s condemnation not warrant pro- fetus, offer to including an requires (which Pennsylvania’s like law vide: 24- facility and the medical trips to two fe- drawing of a Foust, (i) picture F.3d Karlin wait), see hour tus; Cir.1999), (7th the district 446, 484-88 the Utah data from

judge wrote fetus; (ii) of a dimensions Mississip- analysis of a new study, and result. data, a different require pi on the (iii) information relevant experience thought judge also fe- unborn of an survival potential abor- the demand showing that tus; information when decline did not development. stage of telephone or over paper provided (E) risks associated The medical number in the reduction that the implies to term. fetus carrying the (a cost higher attributable abortions (18) statutory hours reason) (2) before eighteen than to least rather At bad reason). woman (a abortion, pregnant valid information following: orally informed follows: reads as Indiana’s bene- (A) assistance That medical ex- performed not be shall An abortion prenatal available may be fits informed voluntary and cept with care childbirth, neonatal care, upon woman pregnant consent county office family (1) subdivisions has been children. provided. (B) When the litigation That the began, father plaintiffs of the unborn chal lenged not only fetus the requirement is legally required ad assist in vice be delivered in person the support of but the also child. In medical-emergency exception, case of which rape, they the information re- deemed insufficient because it quired lacks details under this clause may be found in the Pennsylvania statute. The omitted. district court certified the medical-emer (C) That adoption alternatives are gency issue to the Supreme Court of available and that adoptive parents Indiana, interpretation, whose see A Wom may legally pay the costs of prenat- an’s Choice-East Side Women’sClinic v. care, al childbirth, and neonatal Newman, 671 (Ind. N.E.2d 104 1996), sat care. isfied thе district judge. See 980 F. Supp. (3) The pregnant woman certifies in at 966. Plaintiffs then dropped objec this writing, before the abortion is per- tion, leaving only the advice requirement formed, that the information required ground contention† as a † comparison, For reproduce we the substantive natives to abortion and that she has a portions of the statute at Casey, issue in 18 Pa. right to review printed materials and § Cons.Stat. 3205: that a copy provided will be to her free of (a)No abortion performed shall charge be or in- she chooses to review it. except duced with the (ii) voluntary and in- Medical assistance may benefits be formed consent upon woman prenatal care, available whom childbirth and performed abortion is to be care, or induced. neonatal and that more detailed in- Except in the case of a medical emergency, formation on the availability of such as- consent to an abortion is voluntary and sistance is contained the printed mate- informed only if and if: published by rials department. (1) At least 24 prior hours (iii) to the abor- The father of the unborn child is tion, physician perform who is to liable to assist support in the child, of her abortion or referring physician has even in instances he where has offered to orally informed the woman of: pay for the abortion. In the rape, case of (i) The nature of proposed proce- may information be omitted. dure or treatment and of those risks (3) A copy of printed materials has alternatives procedure to the or treatment provided been to the pregnant woman if a patient reasonable would consider she chooses to view these materials. material to the decision of whether or (4) pregnant woman certifies in writ- to undergo the abortion. ing, prior abortion, that the infor- (ii) probable gestational age of the mation required provided to be under unborn child at the time the abortion is to (1), paragraphs (2) pro- has been performed. be vided. (iii) The medical risks associated (b) Where a medical emergency compels carrying her child to term. performance abortion, of an physi- (2) At least 24 prior hours to the abor- cian shall woman, inform the prior to the tion, the physician who perform is tо abortion if possible, of the medical indica- abortion or the referring physician, or a tions supporting judgment his that an abor- qualified physician assistant, health care tion is necessaiy to avert her death or to practitioner, technician or social worker avert substantial and irreversible impair- to whom tire responsibility has been dele- ment major bodily function. gated by physician, either has (c) informed ... physician No guilty shall be of vio- pregnant woman that: lating this section for failure to furnish the (i)The department publishes printed required information (a) subsection if he materials which describe the unborn or she demonstrate, can by a preponder- child and agencies list which offer alter- evidence, ance of the that he or she rea-

687 also, e.g., Scheib- See the books. on sions the fact much makes Inc., Laboratories, F.3d 293 Dolby er v. operate allowed never been v. Cir.2002) Brulotte (following (7th v. 1014 States United It relies written. 176, 13 29, 85 S.Ct. 2095, Co., 379 Thys 745, 739, 107 S.Ct. Salerno, 481 U.S. incom- (1964), though even 99 L.Ed.2d (1987), proposition L.Ed.2d more recent cases, rationale of with the patible amendment that, first except Granville, 530 U.S. decisions). v. only Troxel unconstitutional held may law L.Ed.2d under n. exists of circumstances set “no when calling way out (2000), Yet offers us valid.” the Act which “suggestion,” Carhart, in Salerno language 530 U.S. Stenberg judg- (2000), to Salerno’s without not 743 essential approach 2597, L.Ed.2d 147 S.Ct. Salerno, between the incompatibility the ment. Given a mention as much so hold- Stenberg’s language and invalid, pre-enforcement in a Salerno’s held Court must might that that of Salerno language statute the ing, an challenge, courts by the state way. give construed have been applications. proper some least

have at justiciable claim Still, say that a di- irreconcilable us with leaves This the ignore must that we mean not does The Supreme Court. from rectives commenced. has that enforcement fact in lower courts that insisted Justices what is about rely predictions Plaintiffs un- precedents apply hierarchy en- were law if Indiana’s happen likely to incompa- overruled, they seem even less has Indiana Because written. as forced See, e.g., recent decisions. more with tible law implementing from disabled been 20, 3, 118 Khan, 522 U.S. v.Co. Oil State ef- actual about information gathering (1997); Rodri- L.Ed.2d 199 275, 139 S.Ct. the inferences about uncertainty fects, any Ex- v. Quijas Shearson/American de guez how experience states’ on other based 484, S.Ct. 477, 109 Inc., 490 U.S. press, carry over experience that (1989). When 526 L.Ed.2d 104 fa- Indiana’s in resolved must Indiana than rather disregard themselves Justices about This, doubts coupled vor. did a decision—as overrule analy- constitutional predictions role Casey— did plurality Stenberg, and reasons important, sis, to be out turns We pickle. in a appeals courts they put presently. explained departing without Salerno follow cannot reiterated, stated, Karlin Casey Stenberg in both taken approach from may have statute an informed-consent Saler- disregard we cannot Casey; yet terms, written from differ effects principle departing without no principle could effects those an and relieves overruling express only innocuous-appearing demonstrate deci- follow duty to court inferior medical range of allows Indiana while furnishing infor- sonably believed (c) of subsection defense personnel. severely ain resulted would have mation parallel no direct Pennsylvania statute or mental physical effect on adverse law, Supreme but Indiana’s patient. health emergency” "medical has read essentially the requires Pennsylvania thus the same to achieve law proviso in Indiana’s "orally” by Indiana, provided advise same Choice—East Woman’s See A basic effect. the abortion. before 24 hours physician, Newman, N.E.2d 671 Clinic Women’s Side law in Indiana’s than restrictive is more It 1996). side contends (Ind. Neither 24-hour requires a Pennsylvania ways: two statutes between remaining difference Indiana, any and it in18 waiting period versus material. the informa- to deliver physician requires the law actually imposes an undue burden on Parenthood Wisconsin v. Doyle, 44 abortion. But neither decision explained F.Supp.2d 975 (W.D.Wis.1999), affirmed how such arguments factual are to be eval- under the name Hope Clinic v. Ryan, 195 uated: implementation before after?, (7th Cir.1999) (en F.3d 857 banc), remand- using what standards? Normally a court ed, 530 (2000), U.S. 1271 decision on re- say asked to that a have for- mand, (2001) (en banc). F.3d 603 bidden only effects asks whether proper Supreme Court vacated our decision with- outcome is possible; it does not hold a regard out to the district findings; court’s and, if a judge district nonetheless trial — (as it was of thе view we likewise had takes evidence and makes findings, the concluded, 872-73) 195 F.3d at that consti- appellate court will reexamine matters tutionality must be assessed at the level of with a heavy presumption favoring the legislative fact, rather adjudicative law’s constitutional application. See, e.g., fact determined by more than 650 district Vance v. Bradley, 99 judges. Only treating the matter as (1979); L.Ed.2d National legislative produces fact the nationally uni- Paint & Coatings Ass’n v. Chicago, 45 form approach that Stenberg demands. (7th Cir.1995). F.3d 1124 say One may in against This worked the partial-birth-abor- response that these cases deal with ration- tion laws in Stenberg but has worked in review, al-basis while abortion implicates favor of other laws: the Court has it held fundamental rights. But laws regu- constitutional to prevent non-physicians late, itself, not abortion but ancillary issues from performing abortions, see Mazurek v. (such as consent), informed do not affect Armstrong, 968, 520 U.S. 117 1865, fundamental rights unless the ancillary 138 L.Ed.2d (1997), 162 without factual rule creates an undue burden on the un- inquiries into whether other pro- medical derlying right. How does the court handle fessionals could job do the as safely, and factual disputes that bear on whether an how much prices may be elevated aby undue burden has been created? It can- physician-only rule. not simply assume that a fundamental right burdened; has been that begs the Findings based on new evidence could question. produce a new understanding, and thus a different legal outcome;

Stenberg the plurality shows that im- the undue-burden plied this in Casey, standard must be did we in applied at the level Karlin. But if logic, the issue is and to one of whole, legislative the nation as rather rather adjudicative than fact, one state at a time. Nebraska unsound to for- say that, bade use of “intact very dilation records and nature, similar extraction” (D X),& (as method Wisconsin’s law of late-term could be abortion. valid we held Stenberg Karlin) believed that this ban and Indiana’s invalid, law just unacceptable consequences because different because district judges reached would induce physicians to steer different clear of conclusions about the inferences other procedures similar D & X. drawn from the same body of statis- Nebraska’s law therefore was tical held uncon- work. Because the Supreme Court stitutional, as an undue burden has on abor- not made point explicit, however, tion, without the need for a trial. Mean- and because the undue-burden approach while a trial had been Wisconsin, held in does prescribe not a choice between the where the district judge found as a legislative-fact fact adjudicative-fact and ap- that the untoward consequences anticipat- proaches, we think it appropriate to review ed in Stenberg would not occur. Planned the evidence in this record and the infer-

689 warrant); v. Corp. Bose of a absence at the drawn may be properly enees Inc., States, United Union Consumers stage. pre-enforcement 1949, 80 104 S.Ct. 466 U.S. the two- found court district The (factual (1984) disputes L.Ed.2d Mississippi Utah requirement visit first constitutionality under determine per abortions number reduced novo). Cf. de are reviewed amendment 10% com by about in those states formed - Inc., Books, Alameda Angeles v. Los that do states neighboring pared 152 L.Ed.2d U.S.-, also judge visits. multiple require the standard (without discussing per of abortions the number found freely substitute review, Justices' all nine be not declined has Indiana formed district of the for that judgment under to women given advice cause anof significance on the judges appellate 16-34-2-1.1, not neces though § Ind.Code suit). in a constitutional study empirical (because aspect person sarily Monaghan, Constitu P. Henry also asks See enjoined). been Rev. Review, L. Colum. Fact review tional findings, but aside these set us to (1985). 52(a) deferen highly Fed.R.Civ.P. under City, Bessemer tial, Anderson see work empirical that the concluding By 84 L.Ed.2d 564, 105 S.Ct. dis- competently, out carried been had the district say that (1985), we cannot (for of this purposes established judge trict erroneous. clearly findings court’s Mis- dropped abortions litigation) hotly debat were conclusions studies’ Car- those in South compared sissippi, grounds, statistical medical both ed on Mississippi year after olina, during responsibly dealt judge the district but two visits. requiring a statute enacted con, his and and pro arguments with these (and replica- study of The authors hap But what upset. be findings cannot Mississippi Utah) ask how did not Utah, question a and Mississippi pened does study Indiana. with compares review appellate fact on which historical of sorts on the based regression not include necessarily ordаin deferential, not does is income, urbanization, variables, such whether in Indiana —or happen will what clinic, av- abortion to an average distance in Indiana happen likely is what on, that abortion, and so erage price ad That burden.” an “undue amounts Mis- from drawn conclusions might enable law, called sometimes fact and mixture confidence extrapolated to be sissippi fact,” re is issue “constitutional why reason is one That states. other pre in order without deference viewed Mississippi in Karlin held we judge single aof idiosyncrasies vent what predicting basis poor study was effects. far-reaching legal having from jury Wisconsin, we which happen would fact of historical findings Only the Pennsylvania more similar thought 52(a). consid Thus our by Rule sheltered at 485-86. F.3d 188 Mississippi. not is significance the studies’ eration fixed been have shortcoming could That Industries, Inc. Cooper See deferential. First, the authors ways. in one of two Inc., U.S. 532 Group, Tool Leatherman comprehen- a more conducted have (2001) could 674 L.Ed.2d 424, 121 S.Ct. and variables additional study, with sive damages (constitutionality punitive reveal would coefficients regression v. United novo); Ornelas de reviewed Second, done. That effects. States, scholars) (or could other the authors cause for (1996) (probable L.Ed.2d to test states other data gathered de novo is reviewed or seizure search (and, so, how) whether state-specific reveals is successful persuasion, we ob- characteristics affect the results. ‍‌‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌​​‌‍That served in Karlin. In this case the plain- was not done either. What has happened tiffs tried to separate the effect of informa- in Pennsylvania, Wisconsin, and the other tion from the effect of making two visits. states whose informed-consent re- laws Since 1997 Indiana has been able to en- quire two visits? Did Mississippi prove to force portion of its informed-consent be a predictor better of Wisconsin than statute requiring the provision of certain Karlin anticipated, or was the outcome information to women who inquire about Wisconsin dissimilar? This record is silent abortions. Yet the number of abortions on these matters. Mississippi Utah, has not shows, declined. This the district two states with a history of hostility to judge wrote, that the law persuasive lacks abortion very few providers abortion effect; and if a decline in abortions cannot (implying long times), travel may be poor persuasion, attributed to then the cause models for other states. Indianapolis has must lie in some other and impermissible multiple clinics; another in Fort feature of the law. Wayne serves the portion northeastern Yet this assumes what is to proven: state; women in the northwest and that Indiana is like Mississippi Utah, southeast can use not only providers local so that the number of abortions would but just also those across the state lines decline 10% or more if the law were en- Chicago and Louisville. just So as in Kar- forced as written. Maybe what Indiana’s lin application of the Mississippi data experience since 1997 shows (and data) now Utah’s to a different state from Mississippi and Utah differs abe leap of faith. Here is where not experience a substantial de- pre-enforcement nature of this suit cline, with or without multiple visits. Or matters. maybe what it shows is that presenting the Plaintiffs did try to deal with another information in person is critical to its per- problem identified in Karlin: suasive effect. Our education system rests original Mississippi study did not try to on the premise that information delivered separate the raw of a costs two-visit re- orally, with an opportunity give-and- for quirement from the effects of the informa- take, “takes” better than information deliv- provided that was during the first ered exclusively in writing. Otherwise a visit. 188 F.3d at 486-88. Supreme The university would simply mail syllabus a to Court’s first two encounters with in- the freshman class and ask the students to formed-consent statutes treated these laws appear four years later for exams. So the as meddling in the physician-patient rela- fact that advice delivered in writing or tion with no valid purpose, and no effect over the phone is uninfluential need not other than to heap pointless costs on wom- imply that advice delivered in person will en. See Akron v. Akron Center Repro- for be uninfluential. Once again the fact that Health, Inc., ductive 416, 442-49, Indiana has been blocked from enforcing 103 S.Ct. 76 L.Ed.2d (1983); its law as written means that the record Thornburgh v. American College Obste- does not contain evidence needed for accu- tricians and Gynecologists, 476 U.S. rate assessment of that statute’s effects. 759-65, 106 90 L.Ed.2d 779 (1986). Casey overruled both of these de- Then there is an open question what the сisions and held that may states try to 10% reduction reflects. Let us suppose persuade women not to abort their preg- that abortions would decline 10% in nancies. Maybe all the Mississippi study Indiana if that state’s law fully were en- could be under- X also the D & to describe signify? the decline would What forced. procedures other prohibit who stood to many women is possibility One essential) to (and perhaps been have were common an abortion want strongly time) abortions, Stenberg concluded (in late-term money cost by the blocked abortions alto- clinic, forbid or because law would to the multiple visits of women. absent be numbers must substantial woman gether times more an did not forbid abusive likelihood notification The is the greater it discover would feared partner abortions, the Court or but spouse, parent, inter- for those planned thing the same to the woman come what availability to re- notwithstanding likely are husbands whose vene (if Supreme any which to not bypass, emergency violently the notice spond any encompass held spouse). of Indiana estranged from an contact or health woman’s to the threat kind explained: plurality Anoth- 108-09. N.E.2d safety. See is requirement notification spousal all wom- 10% about possibility er num- significant likely prevent thus fence are on abortions en who an abor- obtaining from of women ber carry- ending pregnancy between abortions merely make not It does tion. term, that even so pregnancy ing the expensive more difficult a little former, If the the scales. tips cost modest women, impose obtain; many an deemed might rule a two-visit then must not We obstacle. a substantial latter, the two-visit burden; if the undue sig- fact that ourselves blind burden, for undue be an would not rule fear for of women nificant number or effect purpose “has law that only a chil- of their safety safety and obstacle substantial placing pro- from be deterred likely to dren aof abortion seeking an of a woman path surely as as an abortion curing (Stenberg, U.S. at fetus” nonviable had outlawed Commonwealth added; quoting 2597; emphasis 120 S.Ct. all cases. Casey) plurality opinion This 893-94, 505 U.S. not does record This burden. “undue” any woman suggest does not record judge did (and district permit magni- of that an obstacle faces in Indiana way about make) either an inferencе we have As twice. a clinic visiting tude Mississippi decline for the reason emergency- stressed, law has Indiana’s could shortcoming Perhaps Utah. authoritatively has been clause that bypass changes effects studying rectified physicaf kind of any cover interpreted time or travel outlays out-of-pocket 671 the woman. risk to psychological or close, or open, or clinics change, prices not con- do 108-09. Plaintiffs N.E.2d rec- in this locations, studies but the move falls short interpretation this tend question. address do not ord Casey require Stenberg what Casey 1992, plurality when Since It ac- opportunities. emergency-bypass standard, burden” “undue announced sort how the to see difficult cordingly flunked have of statute only two kinds spousal-notifica- that doomed outcome “intact dilation forbidding a law test: statute. Indiana’s condemn could tion rule X) (D of abor- method & and extraction” re- two-visit say not This is to a law Stenberg) and (the subject of com- a burden not create could quirement her husband notify a woman requiring requirement. spousal-notice (discussed parable an abortion obtaining before court, Casey’s plurali- the district itself). Quoting used language Because Casey 692

ty assumed that “for those women who nia’s statute. See Planned Parenthood of have the resources, fewest financial those Southeastern Pennsylvania v. Casey, 510 travel long distances, must 1309, U.S. those 909, 114 S.Ct. 127 L.Ed.2d 352 (in who have difficulty explaining chambers). their where- Like the third cir- husbands, cuit, abouts to employers, others, decision, whose 14 (1994), F.3d 848 he waiting period disturb, 24-hour declined to ‘particu- be Justice Souter conclud- ” larly ed that Casey burdensome.’ 505 itself U.S. at had resolved the facial challenge to Pennsylvania’s 2791. But it held these consider- law. What re- ations mained was a insufficient to challenge condemn the the law in Pennsyl- appli- cation, on a vania record showing statute. All that the how record in law actually operated in current Pennsylvania. case shows is that these costs are n.& positive and have some so Just something effect— in Indiana. For that the reasons we plurality given, Casey assumed. Like- what transpired in Mississippi wise need Mazurek the Court assumed that a portend what will happen in Indiana. statute preventing nurses and other skilled medical personnel whose training falls more, What is it would be incongruous short of the M.D. from performing abor- to hold Indiana’s informed-consent in- law tions (and would increase expense valid on the basis of studies covering Mis- thus, by the Law Demand, (to sissippi reduce the and Utah that the district number) abortions; judge’s again eyes) this imply was held the ^-constitutionality insufficient to show invalidity Mississippi even on statutes, and Utah while assumption that laws legislative continued to purpose implemented was to curtail Mississippi abortion. and Utah. Relying on Casey, the fifth circuit has allowed Mississippi The record in this case does not show statute, enforce its see Moore, Barnes v. that a two-visit rule operates similarly to a (5th 970 F.2d 12 Cir.1992), and Utah’s spousal-notification rule by facilitating do- statute likewise has been sustained. See mestic violence or even inviting domestic Clinic, Utah Women’s Leavitt, Inc. v. It intimidation. nothing shows except a F.Supp. (D.Utah 1994), decline in the number of abortions in Mis- appeal in pertinent dismissed part lack sissippi and open leaving both the Utah — jurisdiction, (10th Cir.1995). F.3d 564 extent to which other experi- states would No one has asked these courts to hold the ence the same effect and the why reason Mississippi or Utah statute invalid on the the effect occurs. This is not the sort of basis of the local experience; and if these evidence permits an inferior federal laws remain despite enforceable the conse- court depart from the holding of Casey quences demonstrated in record, that an informed-consent law is valid even difficult to why see Indiana’s law should when compliance entails two visits unenforceable even though it is unclear medical provider. If Indiana’s emergency- whether similar effects would occur there. bypass procedure fails to protect Indiana’s Indiana is entitled to an opportunity to women from risks of physical or mental have its law in light evaluated of experi- harm, it will be a failure operation; in it is ence in Indiana. And in the event the not possible to predict failure before the sort of effects that could make the burden whole goes into force. undue —such as women deterred the Justice Souter reached a similar conclu- threat or actuality of violence at the hands sion when denying a request to set aside a of tipped those off by a рreliminary visit— post-Casei/ decision enforcing Pennsylva- come to light Indiana, in then it will be

693 requiring abortionists on demand that nationwide laws informed-consent al the reasonable about to advise reevaluated. must abortion, as the state just to ternatives pre- been has Indiana years For seven pa notify to physicians require may materially a statute enforcing from vented to alternatives and risks about tients Su- by the valid held law to a identical procedures. medical invasive other many in court by this Casey, in preme Turnock, F.2d Ragsdale v. See Barms. in circuit fifth Karlin, by the and J., Cir.1988) (Coffey, dissent (7th 1396-97 (other country in the anywhere court No decade, a than more Accordingly, for ing). Indiana) held has in judge district view authority for been has there since years in law invalid any similar abortion require may legislature a state fore- not does Salerno Although Casey. “with mothers expectant provide to clinics to challenges pre-enforcement all close per to procedure of description a discretion of laws, an abuse abortion possi and risks formed, explanation pre-enforce- a to issue judge a district of alter a and discussion complications, ble law effects while injunction ment make can the woman so natives effects) open are for those (and reasons prior enlightened choice” responsible and Mississippi happened What debate. child. pre-born her life of terminating the effects imply does Utah at 1397. Id. unconstitutional, to be bound are Indiana and Wiscon- (like Pennsylvania this majority so opinion, today’s In and into effect its law put sin) dissenting opinions is entitled embraces panel conse- own by its judged law abortion rejects Ragsdale, Zbaraz and and allows challenge, quences. facial clinics’ informed enforce its of Indiana state REVERSED crit- the dissent Although statute. consent dis- concurring. reversing the Judge, COFFEY, Circuit icizes with “findpng] flaws court trict I. fac- based the court which evidence Judge Wood which findings” findings tual me to requires again — once case This regardless stand” “should believes informed constitutionality of review rec- at the looking court “[w]hether of the context in the legislation consent discretion an abuse novo, under de I ord ago, year’s industry. Seventeen error,” post for clear merely standard, or еnact waiting period a 24-hour stated col- my issue take 715—I was a Assembly Illinois General by the ed burden “undue criticism, for the league’s ensuring means lawful reasonable may be this case applicable standard” a brief time “at least a woman courts appellate only applied uniformly moral, numerous and consider” discuss trial whether inquire independently psychological, economical, practical, social, fact constitutional findings of judge’s reaching “involved factors medical and based the record firmly supported whether decision mature, well-informed See, law. application upon proper v. Zbaraz pregnancy.” not to abort v. Inc. Parenthood Memphis Planned (7th e.g., Cir. F.2d Hartigan, Cir.1999); (6th F.3d Sundquist, 175 I Similarly, dissenting). J., 1985) (Coffey, Casey, Parenthood Planned also see case in another later years three concluded 2791, 120 6, 112 S.Ct. n. 833, 991 empowered the state Illinois dissenting). (Scalia, J., L.Ed.2d abor- discourage childbirth promote Judge Easterbrook succinctly and force- policy is no guarantee of reliability. As fully explains that the trial judge’s conclu- one commentator noted, has JAMA may sion this case involves “leap of faith” send a manuscript out to as many as ten that events which may or may not be reviewers “but it may actually be reviewed occurring in Mississippi and Utah will be by only three, two, or even one. Further- replicated in Indiana. Ante at 690. I more, an article may appear print even add that the judge’s trial factual findings a majority JAMA’s reviewers recom- of in this case are based on a faulty study by mends against publication, provided that biased researchers who operated in a vacu- the editor decides in its D. Mur- favor.” um of speculation. As even the dissent al., ray et It Ain’t Necessarily So 151 recognizes, the “key” piece of evidence (2001) (emphasis supplied). Moreover, the relied upon by the district court was a test for admissibility is not whether an study published in the August 27, 1997 article has been reviewed, or even well Journal the American Medical Associa- of accepted, by one’s peers. According to the tion (“JAMA”), post and was co- Supreme (which Court: “Publication is authored a statistician employed by the but one peer element review) is not of Planned Parenthood-affiliated Alan Gutt- qua sine non admissibility; it of does not machеr Institute. It is most obvious that necessarily reliability, correlate with study fails to shed any light on the in some well-grounded instances but inno- question before us today: Will Indiana’s vative theories will publish- not have been abortion statute cause a decline in abor- ed. propositions, Some moreover, are too tion rates in Indiana? The answer is particular, new, too too limited inter- of ” “no, study is for riddled with flatos published.... est to be publica- The fact of biases, being the most serious (or lack thereof) peer in a reviewed to account failure effects journal thus will relevant, abe but not will result the substantive differences dispositive, assessing consideration in scope between the the “medical emer- validity particular scientific tech- gency” exception in the Mississip- state of nique or methodology in opinion which an pi’s statute as contrasted with the state of premised.” Daubert v. Merrell Dow Indiana’s Thus, statute. logically Inc., Pharm. 593-94, 113 impossible upon study draw Mis- 2786, 125 (1993) L.Ed.2d 469 (empha sissippi’s legislation when predicting the added). sis See Noah, also L. Sanctifying legislation. future Indiana’s effects Review, Peer 59 U. Pitt. Scientific L.Rev. (“At best ... peer editorial A. review manages to filter out obviously I initially reject the notion that we must work.”). sloppy defer to the JAMA study because, accord- ing to the dissenting judge, the study Caution regarding the “peer value of ” “meets any conceivable standard review peer- judicial as a gatekeeper is particu- ” review and published larly “one important in the case abortion- most highly respected journals study in the published related med- George in JAMA. ical Post 713. A party proffer- Lundberg, D. field.” the editor at the time of ing expert testimony must always publication establish of the 1997 study upon relied that it is reliable and relevant to an under- plaintiffs case, publicly standing of the issue before court, stated that religious abortion is “a issue” Clark v. Takata Corp., 192 F.3d 759 n. which should be solely by decided (7th Cir.1999), and peer JAMA’s review ivoman consultation “after loith the father B. per- family, (if possible), her members of adviser, the woman’s religious and haps can- article Moreover, a faulty JAMA JAMA, Lundberg, reliable, physician.” a trust- G.D. as to utilized serve Responsibility, predict- for basis independent Editorial worthy, and and AboHion 1998). 26, legislation the Indiana (Aug. of 740, ing the effects 280 JAMA neither that abor- reаson the additional Lundberg that the for to assert went on this record else in anything police, nor article the business is “not tion decision of greater num- a for the fact Department accounted courts, lawyers, the U.S. of prob- with medical women of Indiana ber Congress Services, the Human Health and situated (as similarly compared lems legisla- States, state various the United the bur- will avoid Mississippi) in women except the anybody individu- tures, else notice-and-waiting provi- of Indiana’s dens vice The executive Id. above.” als named “medical for state’s by qualifying sions Medical Associ- of the American president judge trial exception. emergency” time at one which ation, organization an of Indiana number concluded vast be the voice was considered unable will find themselves who women prac- surgeons and physicians majority of of the notice- a result abortions as obtain Lundberg nation, stated ticing in equivalent will be and-waiting provisions and “inappropriately for terminated who Mississippi of women the number a ma- into JAMA interjecting inexcusably having from foreclosed are supposedly do nothing that has debate jor political percent approximately abortion — ” choosing to by or medicine with science F.Supp.2d See population. relevant college students how study on a publish a However, from even is evident 1175. as ” Presi- in midst of “having sex defined statute, excep- reading of cursory proceedings. impeachment Clinton’s dent notice-and-waiting require- tions to AMA Ballingrud, D. See Defends and scope Chief broad far more ments are (Fla.) Petersburg Firing, St. Editor’s they are than Indiana inclusive more on 1999, Relying 23, at 3B. Times, Feb. at- result, even after As a Mississippi. apparent this JAMA facts, it is notion judge’s trial these accept tempting jaundiced analy- study regression be viewed performed must properly differences a statistician all other eye, for was written have accounted ses for in Indiana out- population editor who female published between 1163-71, de- id. supporters Mississippi, spoken “abortion ”1 obvi- exception Indiana reasonably be mand, cannot breadth thus greater number ously result preju- without impartial classified being excused or bias. dice flaws, for study had obvious parental notice Moreover, noting that morе worth to interview inexplicably failed the author hostility to- exhibited article one JAMA teenage popula- sample representative gener- legislation in consent informed wards responses upon only relied instead tion and August Indeed, study published a JAMA al. visiting Par- teenagers Planned were 14, “requiring parental from enthood concluded According to Wisconsin. clinics obtaining prescribed contra- notification "the only that critic, study showed girls’ use impede adolescent ceptives don't tell around who fool kids types of willingness to and their contraceptive services Ka- surprising.” That’s not it. parents about sexually screening and treatment seek Griffin, Sex Shun Would Girls L. wanza Surveyed on Sex- Girls diseases.” transmitted Sentinel, Aug. Care, J. J., Milw. Services, Aug. Health Wall St. ual-Health at 1A. Many declared critics at D2. 696 requirements, statute’s and thus a lesser As we have pointed above, out because number ‍‌‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌​​‌‍Indiana women be bur- of will the statutory exception is much more ex- by requirements

dened Indiana’s than the pansive in Indiana than Mississippi, a requirements Mississippi greater number of Indiana women will be exempt from Supreme Court of limitation of their Indiana statute its than broadly similarly decision defines situated women in term “medi- Mississip- any pi, cal physical emergency” as and thus I cannot agree or men- that evidence tal of a condition that 10 percent more severe reduction Mississippi’s prolonged regular those than “lesser predicts abortion rate that a similar reduc- normally conditions tion is on associated the horizon in with Indiana. pregnancy,” A Woman’s Choice v. New- I cannot understand the dissent’s at- man, 104, 671 N.E.2d 109 (Ind.1996), tempt enlarge scope Indiana’s of while the Mississippi legislature has nar- emergency exception medical ” by claiming rowly defined “medical emergency “the acknowledges [that] which, “that condition on the basis of Indiana’s law has been construed to have physician’s best clinical judgment, so emergency by-pass provision an that cov- complicates a pregnancy as to necessitate any physical ers kind psychological or of an immediate abortion to avert the death risk to the any provi- woman from of the mother or which a twenty-four- of sions, including presumably ‘presence’ delay hour grave create peril im- оf requirement.” 708, Post at n.2. doing In mediate and irreversible loss major of this, the dissent has mischaracterized the bodily Miss.Code § Ann. 41- function.” majority opinion as well as the Indiana 31(b). Indiana, In an abortion 41— clinic Supreme .Court’s construction the stat- may disregard of the notice-and-waiting re- ute us. We in the quirements majority, before when attending physician, if “the stating that Indiana’s emergency bypass in the judgment her exercise clinical has been encompass “held any light kind all relevant ato wom- factors threat to the safety,” woman’s health, an’s health or or good concludes in life 691, ante at complications referring that medical faith in her Supreme patient’s pregnancy Court’s statement that necessity indicate the the “med- emergency exception ical by therapeutic treatment excuses a wom- abortion” requirement without Newman, delay. supra consent informed significant when hand, On the there other is a in Mississippi threat to her health, time physical 1997 JAMA study, an abor- life mental” but clinic “severe-but-temporary was allowed to waive no- conditions in tice-and-waiting which requirement only medically abortion is not the emergencies necessary “medical to avoid the death treatment are not covered prevent peril exception.” the woman or Newman, immedi- 671 N.E.2d at 111. ate or major bodily irreversible loss “Federal courts must interpret a state Fordice, Pro-Choice Miss. v. functions.” as that state’s courts would con- 645, (Miss.1998). So.2d See strue it.” also Brownsburg Area Patrons Af- Utah Women’s Clinic Leavitt, Inc. v. fecting Change Baldwin, v. 503, 137 F.3d F.Supp. (D.Utah 1994) (7th 1491-93 Cir.1998). In light of Newman’s (similarly interpreting Utah interpretation Code Ann. of the emergency bypass § 76-7-301(2)). Stenberg Carhart, provision, I disagree with Cf. the dissent’s 147 misinterpretation of the legislature’s intent (2000). L.Ed.2d 743 wherein asserts that bypass shall Mis- clinics more eleven emer- alleged when in situations apply much (2) Indiana women sissippi; simple triggered determination gency nearby states clinics access notice-and- easier the 18-hour compliance (3) women; Indiana and Mississippi ex- in turn than which will provisions, waiting to abortion closer (1) live temporari- women, average, a either: to the woman pose More women.2 abusive Mississippi an from than harm of clinics risk ly greater tempo- women—but or Indiana of partner; percent or 99 spouse, than рarent, distress, mental Mississippi women—live emotional of percent of only 85 rary period Newman, supra clinic.3 See an abortion of trauma. or 100 miles anguish, within to were Thus, 67-72). even we at 108-11. (Tr. value, we face study at the JAMA accept ignore I to Furthermore, if were even fact that accept to forced be Supreme Indiana the decision far less burdensome be within will law methodological flaws Indiana’s many and very Mississippi’s. that is evident study, it than JAMA theory disproves study of language analy- an nor support neither Providing law abortion of Indiana’s the effects that found judge the district ruling, his sis Mississippi’s, as same be the not corre- did results Mississippi “the page on the study’s admit of authors final and geography” or with distance at all late study the burdensome of effects of effects that the concluded somehow then greater in “may be legislation abortion equiva- likely “are to Indiana’s relatively abortion have fewer states in law similar of effects to lent other in (Mississippi) than providers” The 1175. at F.Supp.2d 132 Mississippi.” au- to According (Indiana). states realm beyond the finding judge’s trial thors: may best and speculation reasonable providers abortion availability of The Com- credence. unworthy of as classified effect The consider. important also com- like Mississippi is Indiana paring necessitat- statutes delay mandatory theAs of bread. a loaf turnip paring greater may be provider 2 visits to ing Mississippi observes, neither abor- relatively few states in cited evidence any other nor study there Mississippi, In providers. tion population establishes plaintiffs in the providers 8 abortion only were Mississippi demographics per providers 1.3 or 1992 in state entire “urbaniza- in terms similar are Indiana 44 years.... 15 to aged 100,000 women from distance income, average tion, we rates in abortion large decline [T]he price average clinic, the] [or occur abortion may not Mississippi observed evi- there Nor is Ante of abor- availability abortion.” greater with states Mississippi similarity between state within dence both providers tion availability of of their in terms states. neighboring among towards services, attitudes support social evidence 658.) undisputed (Ex. 224 adoption success abortion, respective (1) Indiana that: establishes record Sait performed are abortions of Utah's cent 1992 there establishes record 2. The are providers Indiana, Only abortion City. two Lake providers were nearly City, and 100,000 aged Salt Lake outside per located providers 1.44 City 221). Lake of the Salt (Ex. living outside years. all women abor- miles from than live more area quite also of Utah demographics 3. The 70-72). (Tr. clinic. per- More Indiana's. different and abortion alternative programs, or whether the laws of the state of Indiana countless other factors might allow us will have a similar impact as Mississippi’s equate states two with any degree laws. See id. of confidence.4 For the reasons above, set forth spends dissent several pages argu- apparent that the district court’s reliance ing the proposition that “[o]nly by ignoring upon the (the Mississippi data Henshaw key points such number of women” study) predict the effects of materially in Mississippi “who willingly undertook the different legislation (notice-and- in Indiana burden of seeking an abortion out-of-state, waiting) piles a mountain speculation of where they could have the entire proce- upon a foundation of quicksand. I am dure accomplished visit, in one rather than convinced that the district judge erred staying in-state and enduring the two-visit when he relied on the biased JAMA study burden, can the majority come to re- when searching for a way enjoin to sult does.” Post at 715-16. The dis- Indiana’s abortion-control statute. See senting judge ignores the key fact that General Joiner, Elec. Co. v. 522 U.S. nothing in this record answers the critical 144-45, 118 S.Ct. 139 L.Ed.2d 508 question why of some Mississippi women (1997) (expert studies based on data that left the state to abort their pregnancy. A was “so presented dissimilar to the facts might woman very well think twice about ” litigation in this were irrelevant and in- her momentous decision if she believed admissible); Daubert, 509 591-92, that her identity were to become known (expert studies that fail to within her local community. On the other establish “a valid scientific connection to hand, we are cognizant of the fact that pertinent inquiry” before the court are even a small increase in the might cost inadmissible). irrelevant and dissuade an already vacillating woman liv- near ing the poverty level. Since nothing II. in this distinguishes record “between those incidental [e.g., effects slightly increased A. cost or time delay] the statute which make thе right to choose more inconven- Even if the plaintiffs had somehow been ient or costly and those direct effects able produce to reliable evidence in sup- which actually prevent women from obtain- port of the trial judge’s belief abortion,” ing Schmidt, Eubanks v. 126 Indiana’s abortion rates will decline 10 to F.Supp.2d 451, (W.D.Ky.2000), 13 percent aas result of the state’s in- impossible to know whether “the waiting laws, formed consent Indiana’s statute period, opposed to some other factor or still pass would constitutional scrutiny, for factors, caused the negative abortion trend a law enacted that seeks promote to in Mississippi.” Foust, Karlin v. 188 F.3d legitimate state interest will be deemed (7th Cir.1999). It also is impossi- unless, valid “in a large fraction ble to come to a well-reasoned logical eases in which the relevant, law is it will conclusion based on the record before us operate as a substantial obstacle to a wom- 4. Mississippi, example, for consistently ranks Indiana thoroughly to understand oper- among the lowest states in the nation in terms type ate the of electronic telephonic maze government of (48th funding public for schools (as options the district court suggests), partic- 2000). As a result of this lack of ularly when joined is decision with the life funding, products of these obviously schools or death decision. cannot be as well prepared as their sisters in those impact by its Constitution Casey, abortion.” undergo to an’s choice proper it affects.... conduct whose (emphasis 505 U.S. is inquiry constitutional focus separately I write Accordingly, supplied). restriction, ais the law whom group dis- disagreement my explain is irrele- the law whom group not the still “we contention sent’s course, [the said as we have .... vant Of even Indiana’s enjoin” required ... target real statute’s] Pennsylvania percentage smaller much it blocked who seeking abortions women married popu- 1%” of ‘only’ women—“ Indiana husbands notify their not wish do “right their exercising lation—from qualify do not who intentions at 708. Post choose.” exceptions statutory for one no- Indiana’s determining whether In The unfortunate requirement. notice lawful, we are tice-and-waiting provisions we document conditions yet persisting whether inquire must large that in mean above fraction quali- abortions, unable seeking statute] [the in which the cases to exceptions numerous of any fy for a substantial as relevant, operate will it inconve- and costs added law, will bear undergo to choice a woman’s to obstacle the notice- complying with from niences burden, and an undue It is an abortion. burden- are that so and-waiting provision invalid. therefore effect the direct they that some words, In other (emphasis supplied). Id. of those fraction” “large a preventing of law was Pennsylvania’s held Casey Ca- See obtaining abortions. from women additional imposed it not because invalid 2791; 894-95, 112 S.Ct. at 505 U.S. sey, the state’s of percent one upon burdens of I am 456. Eubanks, at F.Supp.2d 126 effectively it because rather but women mis- dissenting judge that the opinion women “large a prevented of fraction” argues she Casey when interprets women percent one that group within ” of of still “we clear it “Casey made See altogether. obtaining abortions from statute] enjoin [Indiana’s to required if 2791. 895, 112 S.Ct. at id. presump- 1%, number ‘only’ it affected and explain, not did Casey plurality The spousal by the tively notification affected abyss the dark into peer refuse thus we 712. Post at Pennsylvania.” rule determine attempt to in an speculation of enjoining it was stated Casey Court part fractional a point what precisely at law be- notification spousal Pennsylvania’s “large impermissibly becomes group a “significant aor fraction” “large a cause unduly becomes a statute fraction” percent one subgroup a number” can discern I extent “To burdensome. with complying feared tuomen bur- ‘undue content any meaningful pro- from deterred “likely to were law opin- joint in the applied as den’ standard the law because abortion” —not curing an may a State to be ion, appears it upon burdens insubstantial some imposed way a in such regulate Casey, state. women percent Id. incidence.” significantly reduce 894-95,112 S.Ct: 505 However, even J., (Sealia, dissenting). Court: According to some before us the case assuming by the burdened will be of women number the one with not end does analysis incidentally which a law law, is clear it stat- whom upon of women percent obtaining from “some” prevents Legisla- there. begins operates; ute muster. constitutional passes abortions consistency measurеd tion is Indeed, Casey upheld parental a notifica would be burdened spousal notice law despite tion the district judge’s law; undis and the most comment informative s puted that, finding in “some” of the 46 of Justice Stevens and Justice Scalia that percent of cases where minor can neither impermissible are only restrictions they ” requisite obtain the parent “severe, consent of a 920, id. at 2791, nor avail judicial herself of the “significant” bypass lead reductions in abor provisions, rates, “may law act in such way 992, tion id. at I am deprive as to [the right minor] of her opinion that the challenged legisla have an abortion.” Planned Parenthood before us constitutional, even v. Casey, 744 F.Supp. though, as the majority observes, 1356-57 the dis (E.D.Pa.1990) (factual findings 237 trict court concluded that “the ... 255). Though the requirement (both raises the likely cost mental) financial and prevent “some” abortion,” minors exercising ante at and “will right choose, the Court reduce by 10% refused to to 13% the number interfere and ruled that “the one-parent performed abortions in Indiana.” See consent requirement judicial Memphis bypass Parenthood, Planned 175 F.3d procedure are constitutional.” Casey, at 462-63. Okpalobi Foster, Cf. 899, 112 U.S. at (5th S.Ct. 2791. Cir.1999). F.3d The dissenting judge pushes the envel- B. ope and expounds a new theory of law without the citation of case law upholding My belief is further supported by Ca- premise the that a statute is sey unconstitu- ’s forceful statements distinguishing tional if prevents percent it even the between the of of constitutionality mandatory population relevant an obtaining (which informed consent lawful) laws are abortion, post 712, at and stretches the and mandatory spousal notification laws notion of (which substantive due process beyond not). are Although under Casey, reasonable limits. Were we to accept the states may not spousal enact notification dissent’s argument, we believe the Su- laws embodying views that are “repugnant preme Court would have found Pennsylva- to present our understanding of marriage parental nia’s consent statute to be unduly and of the nature rights of the secured by burdensome. But the Court chose not to Constitution,”5 the Casey, 898, 505 U.S. at strike down Pennsylvania statute, and “it does not at all follow I believe it logic defies argue to that one that the State is prohibited from taking percent any of group “large is a fraction” steps to ensure [the that choice to a end of that group. light In of the Justices’ pregnancy] is thoughtful and informed.” repeated use of words such as “a signifi- Id. 112 S.Ct. 2791. It is incumbent cant women,” number of and “many wom- upon the federal judiciary to respect basic en”; its estimate that millions of women principles of federalism give and consider- 5. Although Casey plurality Casey, dismissed the 505 U.S. (Rehn- 112 S.Ct. 2791 father's interests in the life of his unborn C.J., quist, dissenting in part). relevant "By child, important to note that the four providing that a husband usually will know of dissenting Justices were of opinion that spouse's his abortion, intent to have an state legitimate “has pro- interests both in provision makes it likely more that the hus- tecting the interests of the father pro- and in band participate in deciding the fate of tecting fetus, potential life of the and the child, his unborn possibility a might oth- spousal requirement notification is reasonably erwise have been denied him.” Id. related to advancing those state interests.” L.Ed.2d 52, 67, 96 S.Ct. care- legislature’s a state to deference able (1976). rules and “enact to decision fully reasoned encourage [the Assembly to enacted designed General regulations The Indiana effort philosophic notice-and-waiting that there know to woman] Wit- problem. weight great widespread a of arguments to alleviate social and reported hearings continu- at legislative in favor nesses brought to bear can were women Indiana literally hundreds term and full to pregnancy ing long-term regret serious suffering institutions are procedures there emotional, psychological physical, children unwanted adoption allow termi- choice to of their result damage as a state assistance degree certain as a well being prop- without pregnancies nate the child raise chooses mother if the risks, complica- about erly informed Id herself.” procedure. tions, and alternatives reflects record This Newman, 904 Choice A Woman’s full panoply held Assembly General (S.D.Ind.1995).6The in- 1434, 1449 F.Supp. de- floor in extended engaged hearings, according legislature, of the tent amend- numerous bates, and considered Indiana, reduce was to Supreme to en- prior by legislators “ensur[ing] offered ments the risk us law before consent avail- acting thе informed information best receive viola- social, constitutional moral, clear psycho- today. Absent regarding able” nor court district de- relevant tion, federal issues medical neither logical, it take procedure. ever undergo should court ciding whether appellate legislation Newman, at 111. down N.E.2d to strike itself upon leg- disagrees merely because must be the information Included elected democratically enacted islation (1) name of is: patient provided consent Informed representatives. state pro- abortionist; the nature notice-and-waiting periods laws, having and alterna- (3) risks the procedure; posed for upheld, Indiana’s, thus (4) should probable like the procedure; tives (4) has held fetus; the exis- Supreme age gestational will be and decisions important benefits assistance “idea of medical tence they father’s alternatives; and deliberate informed more fol- abortion if support does to assist period responsibility some legal low reflection term. unreasonable, carried particularly child is if the child us of the strike I am convinced important 16-34-2-1.1. § directs Ind.Code where Assembly has General back- of the the Indiana part become information decision lawful a reasonable concerning the made decision” ground bill consent this informed enacting Casey, 505 U.S. when child. or death of life choice woman’s that the to ensure an effort supplied). (emphasis child has of her death life or regarding the Danforth, Parenthood Planned also See girl had not who comparable months who have women for of suicide 6. The risk Pregnancy abortion); Suicides real, had if often After both serious is abortions Study, Linkage Finland, Register al., 1987-94: et B. Garfinkel See reported. under 1996) (con- (Dec. J. 1431-34 British Med. Study A Stress, and Suicide: Depression induced had Finnish cluding that (1986) (finding that in Minnesota Adolescents that of three times risk had suicide abortions ten times girl in Minnesota teenage si%times population and general had un- attempt she suicide likely to more birth). gave women who six previous abortion dergone an been both knowingly and voluntarily made, decision, she is entitled to know whether after extended debate and careful reflec- the abortion procedure is being performed tion. by “a well-trained, qualified surgeon or simply a second-rate surgeon who legislation

This entered will assist women in un- the abortion practice because he was de- derstanding an invasive nied hospital staff privileges by procedure a medical may very well painful peer review committee after questionable psychological, physical, and moral conse- procedures medical quences. inferior surgical The woman undergoing the technique.” Id. at 1552. Such abortion may information very well experience serious is essential to making a responsible psychological deci- disorders and mental health sion. problems in the form of depressive psycho- sis (including suicide) the risk of both be- The woman also will receive information fore, during, and many years following regarding issues, economic such as the fa- her perhaps even for a lifetime. ther’s obligation decision— to contribute to the sup- Added to this mental strain and anguish port child, the availability of medical are the almost endless number of physical benefits and care, child and the right and involved,

risks including trauma, perma- possibility of giving up baby to a loving- nent damage reproductive and other adoptive family. After receiving such in- vital organs, dysfunction of the-cardiovas- formation, it also probable that the best cular or respiratory system, internal bleed- interests of the client would be better ing or hemorrhaging, embolism, and aller- served were she to granted a reason- gic reactions. Other medical factors to be able period of time to reflect upon the considered in making a mature, informed information recently made known to her decision include the type of abortion to be dealing with the possible social psy- performed, the past woman’s medical and chological problems arising from the deci- psychological history, her physical reaction sion. Hopefully, the medical professionals to previous procedures, medical her toler- who meet with the woman will be well- ance for certain medications, the likelihood trained order that they might prepare of contracting a infection, uterine the patient to confront and resolve the chance that placenta and fetus will not possible feelings of anger, fear, dеpression, be completely removed, potential and confusion she may encounter towards future difficulties in bearing children, and herself father, and/or guilt onset of even the possibility of sexual sterility. See and overall withdrawal society, from and Zbaraz, 763 F.2d at 1549-50 J., (Coffey, the all too frequent threat of the taking of dissenting). one’s own life. See id. 1550; at ante at 701, n. 6.

The Indiana statute requires that the name of the abortionist be made known to It also is reasonable for a legisla- state the patient, thus giving her an opportunity ture to have believed that the most effi- to review credentials, the qualifications, cient way to safeguard health, the safety, and experience of the physician, inquiring and well-being of the pregnant woman into whether he is a board-certified gyne- would be to allow her to receive the above- cologist, is accurate his pregnancy term stated information during a face-to-face diagnosis, and is familiar with both the meeting with professionals. medical It procedure and myriad the complications was most unfortunate and inappropriate that may very well arise during the proce- for the court to accept the proposition that dure. See id. at 1550. In making this voluntary consent for an abortion may be information receive this women to tant for 800-phone dialing an patient a insured or the presence her abortionist either in digits number, touching certain physician’s in infor- taking and —trained well-schooled passively then and keypad, nurse, See or mid- telephone. assistant, practice through the licensed mation very well F.Supp. patient might because the wife who person to the personally to talk “want meeting will direct, face-to-face aOnly and procedure may performing” to and doctor patient allow the serve face-to-face personal, benefit understanding of complete a full and have meeting profes- instead of consultation might arise possible problems operating the first time “on the sional procedure. invasive during or after “this is the it is unclear whether table” and meeting is type only This—and this — supposed to be you’re person or the doctor the client whether to determine way Newman, F.Supp. talking to.” conveying isor consent an informed giving Per- 1464-65. procedure. postpone wish any question vital contact is sonal Indeed, in-the-presence the need for an consent, medical it allows the informed by testimo- was underscored requirement to observe opportunity best expert injunction hearing, preliminary at the ny pa- behavior of and nonverbal verbal just recently who had a woman where and her reactions focusing on tient an Indiana procedure at undergone the expres- her facial questions, responses her never saw clinic testified she abortion contact, voice, attitude, eye sions, tone of never began procedure, until he doctor movements, confused or body and posture (for with a -it was face covered saw his oth- patterns countless speech nervous mask), his never learned surgical by tele- that are indiscernible factors er her. spoke he never name because be- incongruities reveal phone may but “[A as follows: The woman testified fe- what she says and patient tween what said, your ‘This is assisting nurse] male United feels or believes. actually Cf. ’ said, have a doctor, my doctor I ‘Does (7th French, 945, 951 F.3d v. States smiled, she giggled And he name?’ Mancillas, 183 Cir.2002); States United And he did he was. I but don’t know Cir.1999). (7th n. 22 F.3d to me. talked He never procedure. result, consultation a face-to-face aAs about some- They talked He talked her. time before a reasonable occurring remember, and it was I can’t even thing, telephone what “may disclose 416-17). (Tr. he over. And left.” a woman whether will mask: interview uncertain, equivocal or the General materials that apprehensive, Some abortion; wheth- pro- whether to about the abortionist Assembly directed additional some woman, might needs wishes she she er in order that vide wishes, information; but she or whether one of making before properly informed difficult, additional to ask some may find it of her entire decisions important most alterna- some other explore question possible minimize as best as to life and tive.” psychologi- physical or for future potential easily accurately or injuries, cal cannot Representa- House In the Indiana media, the dis- other conveyed through this bill stated tives, sponsor the chief The Gen- requires. injunction judge’s trict impor- debates that extensive diming (internal 7-8 Conference at Indiana Catholic States of thе United Curiae Brief Amicus omitted). ellipsis citations Bishops and the Catholic Conference of Assembly eral opinion that it is of even one citation to record, invades essential for the woman to be well-in- legitimate province of the legislative formed among other things, of “proba- and executive branches and places a strait- gestational ble age of the fetus” and also jacket upon power to regulate and given the option of seeing a picture or control practice. result, As a lit- drawing of the fetus and its dimensions. erally thousands Indiana women have 16-34-2-1.1.(1). § Ind.Code ‍‌‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌​​‌‍It is nigh undergone abortions since 1995 without unto impossible to provide a picture or having had the benefit of receiving the drawing pre-born of a child over the tele- necessary information to ensure that their phone unless both the patient and the momentous choice is premised upon the abortion clinic are equipped with expen- wealth of information available to amake sive, highly advanced videoconferencing well-informed and educated life-or-death equipment. Furthermore, any attempt decision. I remain convinced that the trial provide an illustration through the mail judge abused his discretion when depriv- without having first met with the patient ing the sovereign State of Indiana of its for a physical examination may potentially right lawful enforce statute before be misleading and inaccurate. The district us. I can only hope that the number of judge’s refusal to enforce Indiana’s re- may have been quirement of face-to-face meetings be- harmed by the judge’s decision is but few tween the health care provider and the in number.

pregnant woman emasculates the statute and undermines the very intent of the III. legislature. In Indiana, according preamble In my opinion, it anwas abuse of discre- its abortion “[cjhild statute, control birth tion for the district judge to disregard is preferred, encouraged, and accepted controlling legal authority, cast aside the over abortion.” § Ind.Code 16-34-1-1. opinions qualified medical experts and Furthermore, “in America, we respect the the judgment of the people of Indiana as sanctity of human life.” Mellas, Walsh v. represented by the elected members of the (7th F.2d Cir.1988). Pro-life Indiana General Assembly, and declare legislation that fails to pose a substantial that the “in presence” requirement is obstacle for 87 to 90 percent of a state’s not “reasonably likely provide any genu- women, may have the incidental effect ine benefit” to Indiana women. Newnian, reducing demand for abortions 904 F.Supp. at 1465. Not many judges are merely 10 to 13 percent, reasonable, versed in the nuances of practices and sensible, and lawful under the Constitution techniques of profession. medical of the United States and the State of Thus, the judiciary is “ill-equipped to sub- Indiana. Because this is the thrust of stitute [its] views regarding what is medi- Judge Easterbrook’s reasoning, I am cally adequate, proper, or antiseptic” for pleased join opinion. his those of legislature, which acts with the full benefit of evidence received DIANE WOOD, P. Circuit Judge, through debates, hearings, and meetings dissenting. with the people of the state. Ragsdale, In today’s opinion, the majority disre- 841 F.2d at (Coffey, J., dissenting). gards the standards that were established The trial judge’s questionably reasoned Supreme the Court in Planned Parent- ipse dixit, pronounced without the support hood Southeastern Pennsylvania v. of Ca- Casey, invited in Supreme Court 120 that the 833, 112 S.Ct. 505 U.S. sey, that women receive (1992), requirement laws the law’s evaluating L.Ed.2d right to of “the presence” a woman’s advice “in the on certain impose burdens that abortion, the abortion, it aside perform brushes the physician who is seek the findings of fact as- physician careful or a painstakingly referring physician the limit- support 16-34-2-1.1(1)) the (§ court made district amounts to sistant” against it issued injunction preliminary on the ed “undue burden” unconstitutional law, informed consent Indiana’s so-called I affirm the dis- decision. would abortion read- The careful § 16-34-2-1.1. Ind.Code decision. trict court’s opinion will see majority’s of the er disagree- turning Before to the areas fact that the Su- the majority regrets the majority lie between ment the Carhart, Stenberg held Court preme that we me, point out important it is 147 L.Ed.2d 530 U.S. agreement. some areas also share chal- (2000), pre-enforcement First, requirement it is clear that Indiana’s statutes, like the of abortion lenges “in statutory information the to furnish us, Nev- permissible. before presently (instead woman” pregnant of the presence land ertheless, the law of thе Stenberg is materials, of, example, mailing written direction, including must follow its and we conversation, or visit- having telephone stan- of the constitutional its endorsement who neither the refer- ing a doctor Is local first legislation abortion governing dards physician ring physician nor Casey plurality. See by the articulated raises is one that procedure) perform 921, 120 Stenberg, 530 U.S. This is obtaining an abortion. the cost of opaque no means That direction is normally ne- rule “presence” because Supreme accuses the majority mess facility. trips two abortion cessitates view, the Court creating. my In di- “irreconcilable not left us with has notes, I Second, agree, majority appeals courts of put has it rectives” nor ways are both that there unconstitutional most, if At the at 687. “in a Ante pickle.” and constitu- may be in which costs raised field some legislation reviewing we were unconsti- increased cost is ones: an tional (or we speech), to abortion unrelated effect of or purpose it is has tutional if ma- problems be faced with might their con- give up forcing some women regula- abortion As for jority describes. abortion; right to choose stitutional crystal clear. tion, guidance the Court’s furthers genuinely if it constitutional end, concedes In the persuading interest legitimate state’s ought to be which Stenberg governs, when faced to select women not to an present purposes lead enough for pregnancy. an unwanted with grant court’s of the district affirmance injunction. majority that the Third, agree I review for constitutional standard analytical path one follows When than the searching facts is more legislative clear it becomes Casey, outlined That does for historical facts. one we use not abuse its discretion court did district however, mean, may disregard that we re- that one narrow when concluded of historical findings court’s the district to be en- law had of Indiana’s quirement Supreme Court contrary, the To the conclusion, fact. In joined. support deference that we owe emphasized particular in the circum- court found cases. even constitutional findings women, such by Indiana faced stances States, 517 U.S. v. United record See Ornelas expanded factual the basis (1996) 134 L.Ed.2d 911 A finding of an undue burden is a (“a reviewing court should take сare both shorthand for the conclusion that a state to review findings of historical fact only regulation has the purpose or effect of clear error give and to due weight to infer- placing a substantial obstacle the path ences drawn from those by facts resident of a woman seeking an abortion of a judges and local law enforcement offi- nonviable A fetus. statute with pur- this cers”). Were we to rule, abandon that pose is invalid because means chosen many constitutional matters would receive the State to further the interest far less restrained review than we present- potential life must be calculated to in- ly give them: from possible violations of form the woman’s choice, free not hinder Amendment, Fourth to the voluntari- it. And a which, while further- confessions, ness of to the First ing Amend- the interest in potential life or some ment protection accorded to public em- other interest, valid state has the effect ployee speech. of placing a substantial obstacle in the

path of a woman’s choice cannot be con- I sidered a permissible means serving its legitimate ends. Turning now to the way in which we should 877,112 resolve this Id. at appeal, it is useful to S.Ct. 2791. begin with some reminders about what Applying standard, this the Court struck (For Casey held. ease exposition, I down the Pennsylvania spousal statute’s refer to Casey alone rather than to “the consent requirement and the record-keep- Casey standard as endorsed Stenberg,” ing requirement relating spousal notice; since formulation, the latter while more upheld it the statute’s parental consent accurate, is needlessly cumbersome.) (which requirement contained the neces- First, Casey dictates how draw the line sary one-parent judicial bypass provi-

between permissible state regulation and sions), the medical emergency provisions, unconstitutional regulation: the rest of the record-keeping require- ' Numerous forms of ments, state regulation and the “informed consent” re-

might have the quirement. incidental effect of in- Knowing both what failed the creasing the cost or decreasing the avail- new test and passed what gives it litigants ability care, of medical whether for abor- roadmap of the kind of claims that are tion or any othеr procedure. medical likely succeed, and the kind of evidence The fact law which serves a they present. must valid It gives also us con- purpose, one not designed to strike guidance crete on the questions critical the right itself, has the (1) incidental now effect before us: under the Casey test, of making it more difficult or more ex- must the statute create an “undue burden” pensive to procure an abortion for every cannot single woman, or is it enough enough to invalidate it. Only where create an undue burden for some state regulation imposes (2) women; an undue bur- to what extent are we dealing den aon woman’s ability to make with empirical, fact-specific issues, and to decision does the power of the what State extent with “legislative” issues; and reach into the heart of the liberty pro- how must the statute allow for flexible tected the Due Process Clause. compliance with the state’s goals? broader 112 S.Ct. 2791. The opin- question first many women —how ion later elaborates on the undue burden must be affected—is really another way of standard: putting the question about facial chai-

707 2,000,- consulting Ante father: majority putative addresses. that the lenges connection, dis- despite year women a who are the victims of In this at 687. claimers, strong im- is left with the by partners. assaults their male severe ei- majority applying that the pression regu those women—“the victims of As for Salerno, 481 U.S. States ther United physical psychological lar abuse at the (1987), 739, 2095, 95 L.Ed.2d husbands,” 893, id. at hands their essence, it. In very close to something or were different. The S.Ct. matters like the one that a state statute it holds found, based on limited re “[t]he Court now would be unconstitutional before us search that has been conducted with re circumstances” only if was “no set of there spect notifying one’s husband about an it it was which under which valid— abortion, although involving samples too in single mean that not a woman seems to representative,” small to be id. find the law’s burdens toler- Indiana would spousal notification S.Ct. impermissible an back-door able. This is requirement “likely prevent sig yet, it as- of Salerno. Worse application obtaining nificant number of women from question before the answer to the sumes Id. at 2791. abortion.” S.Ct. wants to system whether the Indiana us: Later, point, to underscore the it reiterаt Indiana unduly in will burden put place analysis ed that does not end with “[t]he pertinent part of the women. Since percent upon the one of women whom the force, ma- gone never into statute has Id. at operates; begins statute it there.” that the presumption in the jority indulges 894, 112 2791. S.Ct. But burden at all. this imposes law no juris- in our presumption is found nowhere critical That takes us second implicating laws fun- at least for prudence, in question: whether the reduction abor- Further- rights. damental constitutional is the result of the law’s performed tions more, methodology is inconsistent consequence or the of the persuasive force Casey. with in impermissible placement obstacles to choose. right of a woman’s path Casey spous- addressed the Part V-C of assume, argu- the sake of may One Pennsyl- requirement al notification of the ment, will that fewer women law, also under circumstances vania than did women Mis- forego yet begun. which enforcement had to the studies in the sissippi, according found, The district court had Su- that a may further assume record. One ma- accepted, that vast preme “[t]he in Indiana larger percentage of women their jority of women consult husbands forego an abortion will do so because preg- prior deciding to terminate by the informa- they persuaded were law’s 888,112 2791. nancy. ...” 505 U.S. at contrary to their sis- requirements, tional assume, therefore, can that the spousal We No matter: under Mississippi. ters was not an undue requirement notification those women Casey, our focus must be on burden, burden, for that any kind of who, spousal like those affected women; they are al- majority” “vast Pennsylvania, requirement notification specified. ready doing what because of forego the abortion to consider the But the Court went on burden, persuasion.1 not because of already of women who were not plight fact, along Supreme Court to have reasoned parallel spousal notifi- In panel, Casey requirement deeper than the same lines as cation runs of women finding Were would have concluded mere of an undue burden. 1% imagine I cannot a more resounding re- herself that the patient’s consent is in- pudiation of the approach Salerno than the formed. Our concern is with specific Casey opinion gаve. majority opinion way in which the state wants the informa- in Stenberg makes it clear that this was no tion to be transmitted.2 oversight. accident or We must therefore The majority suggests that Casey has the effect the “in presence” look already answered this question, insofar as requirements on the Indiana upon women it addressed a regulatory regime with a operates: whom the statute the approxi- similar “two visit” rule. But a look at the (as mately 10% the record suggests and as Casey opinion shows that the Court was found) the district court who will no longer writing not so broadly; to the contrary, be able to obtain abortions under the new the great Court took pains not to rule on (Note that regime. the 10% number could informed rules either in consent/two-visit be off by an order of magnitude and we general as a matter of fact or as a matter required enjoin still be part this Instead, of law. it explicitly limited its the law it “only” 1%, affected holding to the record before it. It stated number presumptively affected that there was “no evidence on record spousal notification rule in Pennsylvania.) that requiring a give doctor to the infor- But, majority responds, the Su- provided mation as by the statute would preme Court in Casey upheld something amount practical terms to a substantial almost like exactly the Indiana “in the obstacle to a woman seeking an abortion.” presence” requirement when it added). found that (emphasis Id. There is no reason Pennsylvania’s informed consent rules to treat the phrases “on this record” and passed muster. Informed consent at the practical “in terms” as casual insertions. level, general course, most was not the The Court thought that the waiting period issue either in our case or in Casey; under question one, was a close particularly be- injunction entered, the district court it cause would often translate into a two- every Indiana woman is furnished with the requirement. visit Pennsylvania dis- information the state helpful, deems and trict court had not made the necessary when she up shows for the abortion proce- findings of fact to show that a two-visit dure the doctor can again once assure requirement would to an amount undue forego abortions because of the notifica- any provisions, of its including presum- requirement merely have in chаnged fact ably "presence" requirement. But that "persuaded” their minds—been distinguish —after does not it from Pennsylvania's consultation with their husbands that would statute, which also physician relieved not have occurred but for the notification compliance with the informed consent rules requirement. The Court focused on those demonstrate, "if he or she can by a prepon- persuaded, who were not but who evidence, derance of the that he or she rea- carry instead were forced to pregnancy sonably furnishing believed that the informa- term because risk violence or tion would have severely resulted ain adverse abuse from partner. their male Similarly, physical effect on the or mental health of the this court should focus on those who are not patient.” 3205(c) (1990). § Pa. Cons.Stat. persuaded "presence” require- because The existence of such a statute was not ment, but for requirement whom this is close enough to convince the spousal Court that the equivalent of a flat prohibition on abor- requirement consent permissible. was By the tion. token, same the existence of a safety similar 2. As acknowledges, Indiana’s valve in the enough law has been construed to emergency have an save the "presence” otherwise burdensome provision by-pass any that covers kind of requirement, for the explain I reasons below. physical psychological risk to the woman II that court had because (largely burden test from Roe old trimester applied the Initially, necessary briefly to consid- Wade, 410 U.S. er we mean the term “fact” and what (1973), and had invalidated L.Ed.2d 147 may a fact established. The ma- how sensitive, other, factually less rule for jority explain why tried to how and reasons). any doubt If there could be court, reversing the district even while it whether question on the remaining critical of fact accepts findings such the rec- restricting ruling dropped Mississippi abortions after en- it, from following passage rule, the compared before actment of a two-visit as ord Carolina, in which did not it to rest: those South Casey should set (2) rule; a two-visit the number have conclude Court did not And the District in Indiana has not performed of abortions an obsta- waiting period is such that the given declined because of advice are most fоr the women who cle even pursuant to the statute. Even Hence, on the. record by it. burdened support facts the district though these us, this in the context of before majority finding, argues court’s convinced we are not challenge, facial finding the ultimate of an “undue burden” consti- waiting period 24-hour that the sustained, largely cannot because an undue burden. tutes did not find such a burden Supreme Court rule, Casey in a did this for similar nor 887,112 at S.Ct. 505 U.S. (7th Foust, in court Karlin v. 188 F.3d therefore, follow- Casey, establishes Cir.1999), ma- upon the decision which the (1) we present case: ing guidelines for of its reliance. jority places most With the Indiana law based must evaluate approach I believe this confuses respect, which is operating, whom it is upon those fundamentally inquiries: different two bur- of women who will be say the set in a way concerns the which certain first presence” require- “in dened established, fact must be and the second (2) ment; no evidence before asks, if there were vary logically whether this fact will this re- tending court to show if, properly to case or once from- case notification spousal like the quirement, established, “legislative” it is nature “likely Casey, pre- is rule considered questioned over and that it cannot be such number of women significant vent a again. over ' abortion,” an 505 U.S. at obtaining Casey, preceding discussion as required then we would be S.Ct. clear, focused on the first makes facial chal- Indiana’s rule on this uphold there decided questions. Court those there is evidence that lenge; but since burden” of an “undue the existence much more as reliable —if not is least on the record had not been established Casey which the the evidence on so—than open, how- it. It left the door then before evaluating spousal relied

opinion ever, present more parties for later rules, at what we must look notification in the gaps that would cure the evidence shows, deferring to the dis- that evidence can be point that existed. This record fact, just findings historical trict court’s drug ap- to new analogy illustrated Casey. did in Supreme compa- as the pharmaceutical proval. Suppose Cf. 699,116 Ornelas, 1657. .1 Drug Admin- ny 517 U.S. the Food and approaches application approval for turn before the dis- istration with now to the evidence it Naturally, sub- drug, Alphа. of a new trict court. case, agency. mits information to the supporting compared with the record If, however, court, FDA deems informa- before the Karlin and it has made insufficient, assumptions reject it will about applica- inter-state differences unsupported (and, does not mean that the this record I compa- tion. This suspect, later, unsupportable). again, Once I ny re-apply cannot after conducts discuss the particular evidence in pres- studies or more clinical otherwise cures ent record later. important What is here is the deficiencies the earlier record. to recognize that highly this evidence is fully supported application, Based on pertinent A case. central reason Alpha FDA whether should will decide why treats this as a “failure approved as safe effective the des- proof’ case, does, to the extent it is that situation ignated exactly uses. Our it assumes that studies done Mississippi, have in same. We now this case the “re- Utah, Carolina, or North nothing application” finding whether a rule to do with Indiana. assumption This (here, requires two visits to the clinic mysterious. considering, What we are af- “presence” requirement) Indiana’s consti- all, ter is a simple matter of human reac- there, tutes an undue burden. Are in tions sets of incentives or disincentives: words, other women for whom this rule will a particular measure be seen aas placing has the “effect of a substantial all; so, at disincentive will the obstacle path obstacle in the of ... seeking an inconvenience, be a mere or will it effec- abortion of a nonviable fetus”? 505 U.S. tively particular ban a option? In the field 877,112 at economics, we assume people will In order to answer that question, we in react similar predictable ways to presented must evaluate the evidence in (And incentives. sometimes it takes more so, particular doing this case. Before how- study to ascertain what the incen- ever, it is also useful to note where the are, tive effects a particular measure concept “legislative facts”—on which the if, understood, even once those effects are majority legitimately in applies relies— universal.) presumed to be Consistently case, and where it does Skipping not. with that well-accepted proposition, there question over the crucial way about the in every is reason here to assume that established, which facts must be the ma- Indiana women will react proven incen- jority in treats this case as one which the tives and disincentives in way the same factual record is identical to the record in women from other (e.g., states Mississippi) Karlin and then assumes that if there was have respond. been shown to The Law of nothing a unconstitutional about two-visit Demand is generalized based on assump- in can nothing rule Karlin there uncon- tions about human behavior and rationali- burdens, stitutional here. Burdens are no ty, and there is no reason to waste time matter what state a court considering. trying prove that people in one area are Furthermore, majority, reasons the that is exceptions to these rules. Supreme how the Supreme Court treated efforts to Court relied on the same idea in Stenberg: regulate procedure the late-term abortion faced with high uncertainty about which in Stenberg, issue and thus it must be procedures legal not, were and which were way all relating to treat facts coupled with penalties draconian for an abortion issue. guess, incorrect it was safe to assume that

With all due respect, majority doctors, has all everywhere, would err on the failed to take into significant account dif- side of caution and altogether refuse ferences in the record that compiled perform was in certain kinds late-term abor-

7H between of the differences significance should the Court Maybe tions. factors Indiana that these Mississippi and doctors exception for out carved best, incorporat- At studies might reveal. like attracting gamblers, famous places level of greater at a these variables ing for obvi- City; but Atlantic or Vegas Las are some indicate there detail not. it did reasons ous “pres- for whom Indiana that under acknowledges as there just a problem, rule is not ence” Demand, higher prices Law of Pennsylvania many women were de the number will decrease abortion spous- anticipate any problem not did (as recog manded, appears it also but majority does Surely the notification. al here. nize) question difficult is not the in Indiana every think that woman increase ‍‌‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌​​‌‍the observed whether It is instead states, clinic; all like close to lives two- “presence” caused price sig- rural significant areas Indiana one under a permissible rule is visit far from living people numbers of nificant Los City analysis. See burden undue facility. health services reproductive - Inc., Books, U.S. Alameda Angeles v. Indiana, (There clinics 1728, 1742, 152 L.Ed.2d -, Institute, Fact Sheet: Family see (reduction J., concurring) (Kennedy, Indiana, http://www.hoosier- Abortion step first merely the in demand covering family.org/FactSheetl3.html, regula- aof analysis permissibility miles, 36,000 see square territory of some that de- step is whether crucial tion: the Bureau, County State Census allowable through achieved crease http://quickfacts.cen- at QuickFacts, action). precisely That is governmental That adds sus.gov/qfd/states/18000.html. Casey in identified that the Court issue average for clinic on the to one abortion up where a different point, empirical And, 3,300 miles. square every almost complete on a more possible result unlikely that quite it say, to is needless why me to It unclear best is record. perfect with distributed clinics are these majority on in the judges two to the extent regularity; geographical than the they know better think that panel major cit- around are concentrated clinics all the who heard judge, court district that other Indianapolis, that means like ies evidence, all weighed testimony and will live substan- Indiana in rural women whether question is to the answer what facili- away from nearest distances tial would of Indiana women number a critical majority most, the details At ty.) rule as presence” “in the experience that more Indiana suggest might demands it burden that significant such the burdens can withstand women exercising them from effectively prevent in counterparts their Indiana In- choice. constitutionally protected not, question But the Mississippi could. ex- court’s the district respecting stead as a women example, whether work, majority flaws finds tensive It is clinics. to abortion live closer group the court based on which evidence 60 miles living woman an Indiana whether instance, thinks, It findings. factual cannot in Indiana away from a dime in the record should the evidence (either psy- financially, socially, afford degree of factors like into account taken visits, will rе- two make chologically) to urbanization, average distance Mississippi woman way a spond same at 689. clinics, income levels. Ante in a clinic Mis- away from miles living 60 To did. constraints majority’s sissippi with similar leads to the simply But this the set it clear Casey made legal repeat, misunderstanding about second 41, 51-52, women must consider are those we who U.S. 89 L.Ed.2d (1986) (in law, by the and it context, are burdened found 1% 29 the First Amendment justify enough striking spousal down the requirement no that “a city, before enact- Maybe ordinance, rule. 10% of ing notification the wom- such an [ ] conduct new Mississippi problem en in have that produce studies or independent evidence “only” 3% of women Indiana do. already generated cities, No that by other so quite long matter. The district court was rea- as whatever city evidence the relies upon sonable to find that women Indiana are reasonably believed to be relevant people addresses.”). like all other and that their re- problem city sponses will be the same as those of wom- Ill

en elsewhere. Or could be that the Turning thinks now to the evidence demon- likely women Indiana are more strating that the Indiana “presence” rule persuaded by the “presence” require- burden, indeed constitutes an undue we ment than are women in Mississippi, so find detailed and meticulous findings from the decrease abortions due to the the district court support proposi- requirement could be attributed to the tion. This entirely evidence was compe- constitutionally permissible persuasive support tent the district court’s deci- however, sion; Again, force of the law. all Casey’s discussion of the spousal previous apply: question criticisms is notification rule makes it clear that evi- women in whether more Indiana are dence on undue burden does not have to persuaded than are women Mississippi heightened meet some standard of perfec- (bearing mind there was no evi- tion. To the contrary, the Court there dence before the district court indicating relied on “limited research that has been case). why that should be the It is instead conducted with respect issue [the hand, whether a sufficient number of Indiana there notifying one’s husband about abortion], akin to (something the 1% of Ca- although involving samples sey) persuaded, not so yet and are representative,” too small to be 505 892, among those who will be forced forego 112 S.Ct. to support its conclu- right to choose. spousal sion about notification. majority rejects wholesale zero, the rele- haveWe more than and less than (and of Mississippi perfection, vance studies sever- when it comes to information studies) by implying al other that the dis- about the burden the Indiana statute clearly trict court erred in its places decision that on the women affected the two- Indiana women would react to burdensome visit majority, effect, rule. The in has not requirements two-visit in the way, only same perfection; demanded it also wants a reasons, and for the same Mississippi showing that some number of Indiana context, women did. But even in this significantly larger than the num- offers no reason at all to believe that accepted ber the Court in Casey are undu- idiosyncratic, Indiana women are so ly nor in burdened the law. Every time the my Supreme view could it. The plaintiffs Court has come back with more studies and (as consistently endorsed the use of studies more they information surely here, from other states or experi- areas-—shared done in comparison with the record exactly Karlin), ence is how the “laboratories” in they created in rais- See, ought several states to work. e.g., higher es the bar and tells them to come Theatres, Inc., Playtime Renton v. 475 back another day though this court —even

713 certiorari) tas, J., dissenting of one from denial of that “the biases held specifically has (same). re may avoided or in one case study Illinois next.” Mister v. in the

versed study is a The JAMA time-series and Co., 1427, 1437,n. 832 F.2d Cent. analysis designed to regression assess the Gulf R.R. J.). (7th Cir.1987) (Easterbrook, 3 law Mississippi effect of the on the abor- Mississippi tion and birth rates of resi- evidence, im- case, In we have this first, ways: through dents in two a retro- evidence significant new portantly we have spective analysis of those rates before and Karlin, developed since that has been statute, passage after the and sec- ques- the kinds of precisely which answers ond, comparison through between Mis- plaintiffs future that Karlin directed tions states, sissippi Georgia and two similar on The distinct court relied to address. Carolina, and South neither of which had a “in the conclude that the evidence to “presence” requirement effect part of the law presence” were otherwise similar in relevant time but enough an undue burden impose indeed respects. Regression analy- the relevant that this seeking abortions Indiana women important ses are an tool in much of social enjoined. had to be of the statute part research, science as well as law. See consistently en- Supreme Court 279, 293-94, McCleskey Kemp, v. 481 U.S. of evidence type the use of dorsed (1987) (dis- 95 L.Ed.2d 262 S.Ct. here, analyzed it and has presented cussing their role in Title VII of the Civil light case in “factual context of each sentencing Act cases Rights of 1964 by both the presented all the evidence context); Friday, v. see also Bazemore Bazemore v. and the defendant.” plaintiff (additional 398-401, U.S. at 385, 400, 106 Friday, 478 U.S. S.Ct. regression analyses response conducted (1986). Key among this L.Ed.2d 315 suggestions by to criticisms and the dis (post- was a new evidence before the court confirmed, court, trict all of which ) study in the Journal published Karim strengthened, even some of which (JAMA), Medical Association the American conclusions; study’s original further con journals highly respected of the most analysis cluding multiple-regression field, that meets medical and one every not include conceivable variable need peer-review. standard for any conceivable case; chiding party’s to establish a Pharms., Inc., Dow v. Merrell Daubert utterly because it “failed appeals court of Cf. 579, 113 125 L.Ed.2d 509 U.S. analyses in regression light to examine the (1993); California, record”); Robinson Arling all the evidence in the 660, 9, 1417, 8 L.Ed.2d Housing 667 n. 82 S.Ct. Dev. Heights Metropolitan U.S. ton v. (1962) JAMA); 555, 252, 13, findings in n. (relying Corp., on 429 U.S. 97 S.Ct. jury (discussing 912 n. California, Budd v. 385 U.S. 50 L.Ed.2d 450 se context).3 (1966) (For- L.Ed.2d 138 lection areas, availability politan reviewing the increased for a moment what It is worth study regression changes per capita takes a in- contraceptives, this kind of does. A in (here, collected, dependent the decrease in variable the re- come. Once the data is rates) and tests it variable, abortions or abortion regression on each searcher runs independent against a number of variables. variable, in which shows the effect of independent before variables are chosen The isolation, dependent variable. If on the run; here, example, they regression is meaningful corre- variablе is found to have no opening rates, of new clin- included factors like ics, variable, dependent discard- lation marriage changes in the changes in ed. living population percentage of the in metro- difficulty The here is that there is no its finding. case, As in this once point single independent variable that will made, show was the opponent had to produce “undue only burden.” The way prove concrete evidence on side; the other it was particular part that a of a law is not imposing enough merely to point out alleged an undue on imperfection burden abortion choice is to in the study. Id. (respon- hypothesize might that it constitute an dents un did “not offer a competing theory, burden, due and then let to show alone that no data” to city’s counter the asser- tions). reasonably other related variable satisfac torily explains the drop in abortion rates That exactly what the JAMA study (i.e., phenomenon is being test did. It was tailored to explore ques- ed)' essentially a process of elimination. — (unanswered Karlin) in the record in methodology This is a we have approved whether the decrease in in abortions Mis-

before. See In re Spill Oil by Amoco sissippi was an effect not of the persuasive Cadiz, (7th Cir.1992) 954 F.2d 1279 (per power law, of the but rather of its burden- curiam). case, In that this court endorsed qualities. some And it showed that the use of simple regressions linear as a explanation latter was the correct one. way to draw out all plausible other expla The principal outcome measures in the nations only leaving hypothesized study rates, were birth rates, as a reason for part what of a loss in percentage late abortions, and the per- business was attributable to a massive oil centage of performed abortions outside the spill. Id. at expressed 1320. We satisfac state. The researchers found that the res- tion there way with this of getting “a ident abortion rates declined 12% more grip better on the relation depen Mississippi between than they did South Carolina independent dent and after variables” the passage law, they reaching causation, “an inference of declined 14% more in and of Mississippi they the size of did in Indeed, the effect.” Georgia. Id. Limited to Caucasian adults, prоnouncement latest by the abortions Supreme declined 22% more in Mississippi First Amendment than in matters en South Carolina and study 20% more dorses city of Los Angeles Mississippi than in Georgia. performed at demonstrating aimed Abortions the connection after the be 12-weeks gestation tween its ban mark multiple-use adult increased 39% estab more in Mississippi lishments and than in interest either South reducing Carolina or Georgia. crime—a percentage connection can only abortions performed (but by ruling shown out out-of-state increased 42% clearly some all) more among women in potential other independent Mississippi vari relative to women in South Carolina. ables that could have contributed to the effect on crime. See City Angeles Los JAMA study also showed that - Books, Inc., Alameda supra, the 12-month period after the law took -, (plu L.Ed.2d 670 effect, the total rate of abortions for Mis- rality opinion). Dealing with the nature of sissippi residents decreased approxi- studies, such the plurality concluded that a 16%; mately proportion the of Mississippi party “does not bear the of provid burden residents traveling to other for an states ing evidence that rules out every [other] abortion increased by 37%; about and the theory.” Id. at 1735. study, however number of second trimester in- abortions imperfect, was respected probative for its creased some 40%. The study con- precisely value because of the lack evi cluded that these “suggest statistics presented by dence the other side to rebut Mississippi’s mandatory delay statute was analysis, particularly its thorough its rates mend in decline abortion for a responsible of similar studies conducted evaluation performed in abortions increase and an end, In the its con- Louisiana. Utah The researchers who pregnancy.” later evidence, of this that the “sum clusion was the testified before study the conducted any persua- evidence of the absence differ- .of only salient the court that district effect, convincingly that the and sive shows Georgia, Mississippi, among ence rates reduction predicted was purposes these for Carolina South but from persuasion not from result two-trip re- would had a Mississippi only obstacle a substantial posing restrictions Otherwise, regulat- the laws quirement. ability to obtain abor- women’s were some states in the three ing abortions before, if the even As mentioned sta- tions.” no other the same—and functionally per- who were of women taken relative numbers had events tistically significant are different versus suaded burdened states. in the various place Indiana, study the conclu- Mississippi and it needed realized that The district court significant number of sively reveals that critical, final, question but one to address unduly burdened women in abor- were declines observed of fact: those And requirement. “presence” the in Mis- because women in Mississippi tions or persuaded, who are those women—not forego to persuaded had sissippi been unaffected, contemplating even or not the abortions, declines or were the because on whom the those abortion —are the burdening impermissibly law was new Casey and concentrated under should precisely to seek an right abortion — Stenberg. court by Karlin. mandated inquiry looking at this court is Whether was the explanation that the latter found novo, of discre under an abuse de reasons, record one, amply all for several correct error, standard, merely for clear record. on the evidence based should stand. findings the district court’s First, hypothesis “persuasive power” majority’s speculation nothing find I evidence by the severely undercut was refuting evidence to that comes close were leav- women Mississippi showing City relied. See the court upon which abortions else- to have their the state ing - at-, Angeles, Los more second-trimester having where fact that “Court (disapproving of evidently quite women Those abortions. theo city’s simply replaced Appeals carry their to persuaded been had not analysis its and that ... with its own” ry term; they aborted pregnancy city prove requires “implicitly it outside the they did but pregnancies, plausibly only can theory is and riski- or at a later Mississippi state data”). by disregarding Only explain (And assume certainly we must time. er women the number of key points such trying legislature Mississippi the burden willingly undertook abortion, forego persuade out-of-state, where an abortion seeking travel persuade them than to rather ac procedure entire they could have post- or to procedure out-of-state visit, stay rather in one complished time.) Second, the it to a riskier pone bur enduring two-visit ing in-state Indiana it- from looked at evidence court result it den, majority come can the in abortion changes no that showed self does. alone standing information rates per- court (a part IV effect, only of the stripped take

mitted my necessary to although not Finally, dis- court requirement). The “presence” Casey said noting that it is well, analysis, I worth com- evidence as other cussed finding of an undue explain “[a] that burden is that does not why the state could simply not point have said that at for the conclusion that a state shorthand clinic, checking into previously regulation purpose has the or effect transmitted information must be reiterated placing path a substantial obstacle in person. change from an oral com seeking an of a woman abortion of a nonvi- munication to an “in presence” re 505 U.S. at able fetus” quirement was added a floor amend added). (emphasis con- Representatives ment the House of only part the “effect” siders that dis- was marked scant debate. After some junctive test, perhaps thinking that members of suggested the House that the “purpose” court’s dismissal half presence” “in the requirement was intend binding Supreme Karlin was on the Court. abortion, ed as obstacle to its chief believe, I am under no such illusion. I sponsor stated instead that the concern therefore, appropriate is to take a was that unless the given information was brief at the purpose look Indiana offered person, you “how do know this is the regulation, for this to see if it might either person you’re doctor or the supposed to be help to save statute or condemn it. talking to.... I would think you would want to talk personally to person who “[tjhere The district court found that is may performing that and know ... no evidence tending to show how the ‘in they person are the they indeed that [say the presence’ requirement actually fur- they] are.” A special concern with impos legitimate thers the state’s interests in doctors, tor generally practitioners or with in protecting potential maternal health or being they say they are over the this, life.” It said importantly, after the telephone is problem not a that is sрecific plaintiffs prima had made an extensive to abortion —or at least there were no such showing that the statute furthered facie findings other than a statement that this interest; legitimate neither in the sense of (of possibility talking impostor) to an “is production, burden of the court was con- very dangerous, especially you’re when cerned that nothing Indiana had offered to talking about the symptoms and conse (Indiana contrary. argues strenuously quences of an Literally abortion.” imposed the district court an imper- only other scrap of evidence from leg missible shift the ultimate burden of islature seems to reflect a fear proof, but it is clear from the opin- court’s would receive the they information while ion as a whole that it did no such thing; it were under operating sedation on an table. simply addressing evidentiary vac- But that cannot legislature be what feared, really uum on simple Indiana’s side the face of the reason evidence.) this concern already addressed in plaintiffs’ consent,” Indiana’s law of “informed which Indeed, my legislative search of the his given by persons cannot be already under tory of the Indiana statute reveals no rea See, e.g., anaesthesia. Culbertson v. Mer son whatsoever for imposing two-visit nitz, (Ind.1992) (en 602 N.E.2d requirement for the dissemination of the dorsing the American Medical Associa required information. if Acting as it were tion’s 1992 Code of Medical Ethics review, conducting rational basis ma consent, respect necessary rejecting jority speculates that legisla some Indiana invalid given consent “where patient tor might have thought absorption of incapable unconscious otherwise information effectively occurs more when consenting”). I would surprised so, in person. transmitted Maybe many but Indiana doctors were in the habit of procedures medical for obtaining consent patients; drugged or unconscious li- of their medical risk loss

they they per- did, were they whether

cense surgery, knee

forming appendectomy, removal, an abor-

vasectomy, prostate con- consent of informed The law

tion. spectrum surgeries across the

sistent why given if no reason procedures: ‍‌‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌​‌​‌​‌​‌​‌​‌‌‌‌‌‌‌‌​​‌​​‌‌​​‌‍in the abor- is needed consent

heightened context, accepted this cannot then presence” “in the the reason for

requirement.

V reasons, I believe that these

For all Ca- seriously mis-applied the factual its own It has substituted

sey test. is in

assumptions evidence

record; focus on the women has failed to it prob- create that statute will whom Casey

lems; think that it seems emphasized not serious when

Court it, in the record before evidence lack of dic- Casey result

by implying dis- respectfully I result here.

tates

sent. Young, JONES, Virginia

Edith Eunice al., Plaintiffs-Appellees,

Clark, et COMPA- & SONS

R.R. DONNELLEY Corporation, De-

NY, a Delaware

fendant-Appellant.

No. 01-3271. Appeals,

United States

Seventh Circuit. 4, 2002.

Argued April Sept.

Decided

Case Details

Case Name: A Woman's Choice-East Side Women's Clinic v. Scott C. Newman, Prosecuting Attorney for Marion County Indiana, on Behalf of a Class of Prosecutors

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 28, 2002

Citation: 305 F.3d 684

Docket Number: 01-2107

Court Abbreviation: 7th Cir.