ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to Federal Rule of Civil Procedure 65(a) by Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“PPINK”). (Filing No. 6.) PPINK filed this suit against the Commissioner of the Indiana Department of Health, and the prosecutors of Marion County, Lake County, Monroe County, and Tippecanoe County (collectively, “the State”), all in their official capacities. PPINK maintains that a provision- of Indiana House Enrolled Act No. 1337 (“HEA 1337”), which went into effect on July 1, 2016, creates ah undue burden on a woman’s right to choose to have an abortion and is therefore unconstitutional. It seeks to enjoin this provision during the pendency of this' litigation. The parties submitted evidence; and the Court held a hearing on PPlNK’s motion.
The provision challenged by PPINK is found in Indiana Code § 16-34-2-l.l(a)(5). Prior to the enactment of this provision, women in Indiana were required to have an ultrasound before having an abortion, but they could have it on the same day as the abortion. Women were also required to have an informed-consent appointment at least eighteen hours prior to an abortion, during which they received state-mandated information regarding pregnancy and abortion.- The provision challenged by PPINK (hereinafter, “the ultrasound law” or ‘“the new ultrasound law”) now requires a woman to have an ultrasound at least eighteen hours prior to an abortion and at the same: time she receives the informed-consent information otherwise required by the statute. The new ultrasound law combined two previously existing requirements—the ultrasound requirement and the eighteen-hour informed consent requirement.
For the reasons explained below, PPINK is likely to succeed on the merits of its challenge to the new ultrasound law because it'creates an undue burden on a woman’s right to choose to terminate her pregnancy. “To determine whether the burden imposed by the statute is undue (excessive), the court must weigh the burden's against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interests.” Planned Parenthood of Wisconsin, Inc. v. Schimel,
Accordingly, PPINK’s motion for a preliminary injunction is GRANTED. (Filing No. 6).
I. LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc.,
II. BACKGROUND
PPINK operated twenty-three health centers in Indiana on the date this action commenced, but financial considerations have required PPINK to close and consolidate several of its'health centers. When this process is complete, PPINK will operate seventeen health centers across Indiana. Four of PPINK’s seventeen health centers offer abortions services. Three of the health centers, located in Bloomington, Merrillville, and Indianapolis, offer both surgical and medication abortion services. The health center in Lafayette provides only medication abortions. The only providers of non-medically indicated abortion services in Indiana that are not affiliated with PPINK are located in Indianapolis.
PPINK performs surgical abortions through the first trimester of pregnancy, which is thirteen weeks and six days after the first day of a woman’s last menstrual period. Medication abortions are available up to nine weeks after the first day of a woman’s last menstrual period. The only providers of abortion services in Indiana after the first trimester are hospitals or surgical centers that generally provide abortions only when the abortion is medically indicated because of fetal abnormality or a threat to the woman’s health. Abortions at these locations are rare: in 2015, only 27 out of the 7,957 abortions performed in Indiana occurred in a hospital or surgical center.
The Indiana legislature enacted HEA 1337, which went into effect on July 1, 2016. This Act created several new provi
Indiana Code § 16-34-2-l.l(a) provides that “[a]n abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed.” Consent to an abortion is “voluntary and informed” if the information set forth in the statute is provided to the patient at least eighteen hours prior to the abortion. See id. For example, the mandated information includes the nature of the proposed procedure; scientific information regarding the risks of and alternatives to the procedure; notification “[t]hat human physical life begins when a human ovum is fertilized by a human sperm”; the probable gestational age of the fetus at the time the abortion is to be performed, including a picture of the fetus and other information about the fetus at its current stage of development; notice that a fetus can feel pain at or before twenty weeks; and information regarding alternatives to abortion and other support services available. Ind. Code § 16-34-2-l.l(a)(l)-(2).
Prior to the enactment of the new ultrasound law, the statute also provided that “[b]efore an abortion is performed, the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone,” unless the woman elected in writing to not view the ultrasound or listen to the fetal heart tone. Ind. Code § 16-34-2-1.1 (repealed). The new ultrasound law changed the timing, but not the substance, of this requirement. It provides:
At least eighteen (18) hours before an abortion is performed and at the same time that the pregnant woman receives the information required by subdivision (1), the provider shall perform, and the pregnant woman shall view,' the fetal-ultrasound imaging and hear the auscultation of the fetal heart tone if the fetal heart tone is audible unless the pregnant woman certifies in writing, on a form developed by the state department, before the abortion is performed, that the pregnant woman:
(A) does not want to view the fetal ultrasound imaging; and
(B) does not want to listen to the auscultation of the fetal heart tone if the fetal heart tone is audible."
Ind. Code § 16-34-2-l.l(a)(5).
Before the new ultrasound law, PPINK provided the state-mandated information to its patients at least eighteen hours prior to the abortion during an informed-consent appointment, which were offered at any of PPINK’s seventeen health centers across the state. This allowed women who live a long distance from one of the four health centers that offer abortion services to make only one lengthy trip in order to obtain an abortion. These women would typically have an ultrasound on the day of the abortion and would at that time be offered the opportunity to view the ultrasound image and listen to the auscultation fetal heart tone, as required by law. The physician who would perform the abortion would interpret the ultrasound and answer any questions the woman might have.
The new ultrasound law required PPINK to change its practices, given that ultrasounds must now occur during the informed-consent appointment, yet ultrasounds were only available at the four PPINK health centers that offer abortion
III. DISCUSSION
To obtain a preliminary injunction, PPINK must establish the following four factors: “[1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.” Grace Schools,
A. Likelihood of Success on the Merits
The parties acknowledge .that the propriety of issuing a preliminary injunction rests almost entirely on whether' PPINK has a likelihood of success on the 'merits of its claim. The importance- of this factor has led the parties to vigorously dispute both the proper legal test and how that legal test should apply to the evidence presented. The Court’s analysis of these disputes begins with an overview of the constitutionally protected right for a .woman to choose to terminate her pregnancy, before turning to the parties’ disputes regarding the legal standard and its application.
The Supreme Court has long held that “[i]t is a constitutional liberty of the woman to have some- frеedom to terminate her pregnancy.” Planned Parenthood v. Casey,
From the recognition that no rights are absolute follows the necessity of a legal test to determine whether a particular regulation that incidéntally affects the exercise of a right is constitutional. In the context of abortion regulations, the undue
Both the Supreme Court and the Seventh Circuit have made clear that applying the undue burden test requires balancing: “The rule announced in Casey ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309; see Schimel,
Also important when conducting the required balancing is the extent to which the Court defers to legislative findings or, instead, independently evaluates the evidence presented by the parties. The Supreme Court has made .clear that courts should do the latter: “when determining the constitutionality of laws regulating abortion procedures, [the Supreme Court] has placed considerable weight upon evidence and argument presented in judicial proceedings.” Whole Woman’s Health,
1. The Proper Legal Standard
, • PPINK maintains that this Court need only apply the undue burden test outlined above, which requires weighing the burdens imposed by the new ultrasound law against the benefits to the State’s asserted interest. The State takes issue with courts balancing the burdens against the benefits of an abortion regulation in cases such as this one where the State’s primary asserted interest is promoting fetal life. It argues that the Court should simply apply Casey, not the Supreme Court’s recent decision in Whole Woman’s .Health, because the' balancing in Whole Woman’s Health “applies only to abortion restrictions designed to protect maternal health.” (Filing No. 35 at 15). This is true, the State says, because the asserted state interest, in Whole Woman’s Health was to protect maternal health, and the standards applied in, that case are limited to that context; that type of balancing “is a poor fit for this type of regulation” because “the two sides’ interests [here] are fundamentally at odds with one another. PPINK’s goal -is to help the woman carry out her decision to terminate her pregnancy and
The Court agrees with PPINK. The premise of the State’s argument—that different standards are applied in Casey and Whole Woman’s Health—is belied by those decisions. Not once in Whole Woman’s Health did the Supreme Court suggest that different versions of the undue burden test apply depending on the State’s asserted interest, or even that different versions of the test exist at all. Instead, the Supreme Court in the introduction of Whole Woman’s Health explicitly stated that it was applying Casey’s undue burden test. See Whole Woman’s Health,
Three additional considerations place this question beyond dispute. First, the State points to the fact that the Supreme Court in Whole Woman’s Health focuses on whether the regulations at issue benefit women’s health. But the Supreme Court did so only because that was the state’s interest that Texas argued that the challenged regulations furthered—not because it is the only context in which balancing is appropriate. This is evident because, when the legal standard is set out in Whole Woman’s Health, it is not set forth in terms limiting it to laws justified on the basis of maternal health; it is often stated in general terms such that it clearly applies regardless of whether the state’s interest is promoting women’s health or otherwise. See id. at 2309 (“The rule announced in Casey ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”). The Seventh Circuit has similarly stated the balancing test in general terms. See Schimel,
Second, the Supreme Court in Casey applied the undue burden standard when evaluating both provisions justified as promoting women’s health and those justified as promoting fetal life, but it did not at all suggest that the undue burden test applies differently to those provisions. See Casey,
For all of these reasons, the State’s position that the balancing set forth in Whole Woman’s Health that requires weighing the burdens and benefits of the challenged law applies only to abortion regulations justified as promoting women’s health is based on the false premise that the undue burden test changes based on the State’s asserted- justification for the law. The Supreme Court and the Seventh Circuit have only discussed the undue burden test as a singular test, and this Court’s application of that test is directed by how these courts have explicated and applied that test. It is to the application -of the undue burden test that the Court now turns.-
2. Whether the New Ultrasound Law Creates an Undue Burden
In Whole Woman’s Health, the Supreme Court concluded that the district -court “applied the correct legal standard” when it “considered the evidence in the record— including expert evidence, presented in stipulations, depositions, and testimony”— and it “then weighed the asserted benefits against the burdens,”
a. Burdens
PPINK maintains that the new ultrasound law is burdensome because it requires women seeking an abortion who live significant distances from one of the six PPINK health centers that provide ultrasounds during the informed-consent appointments to make two lengthy trips to have an abortion—one for the informed-consent appointment and a second for the abortion itself. In order to evaluate the burdens imposed by the new ultrasound law, the Court must first define the group of women whose burdens' must be analyzed. ■ ■
“The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Casey,
It is unsurprising that the financial burdens discussed below disproportionately impact PPINK’s low-income patients, who constitute a significant portion of PPINK’s patients receiving abortion services. Poverty experts generally use 200% of the Federal Poverty Line (“FPL”) as an approximation of the income necessary to survive on one’s own. (Filing No. 24-2 at 4.) Many experts describe those at or below 100% of the FPL as “poor,” and individuals between 100% and 200% of the FPL as “low-income.” (Filing No. 24-2 at 4.) Statistics from the 2016 fiscal year reveal the following regarding PPINK’s patient’s income levels relative to the FPL:
Income Range Percent of Patients
Unknown 22%
0-100% FPL 37%
101-150% FPL 11%
151-200% FPL 8%
201-250 %FPL 5%
251%+FPL 16%
(Filing No. 24-1 at 14). The income levels of PPINK’s patients are similar to national statistics, which reflect that approximately 75% of abortion patients have incomes at or below 200% FPL, and 49% had incomes at or below 100% FPL. (Filing No. 24-2 at 5.)
Having set forth the relevant group, PPINK’s evidence regarding the.burdens faced by this group due to the new ultrasound law are discussed in four .overlapping categories: (1) increased travel distances; (2) delays in obtaining abortion services; (3) expert testimony; and (4) specific women who have reported adverse effects from the ultrasound law. The State’s challenge, if any, to this evidence is discussed аnd evaluated in conjunction with each category.
i. Increased Travel Distance to Informed-Consent Appointments
Lengthy Travel. Many women will have to travel hundreds of miles to their informed-consent appointments now that PPINK can only offer these appointments at six, rather than seventeen, of their health centers. Such travel is especially difficult for low-income women who do not have access to a car. For example, women from Allen • County—which contains. Fort Wayne, the second .most populous city in Indiana—have to travel approximately 174 miles roundtrip, for their informed-consent appointment, assuming that they can get
The State suggests that PPINK could avoid requiring its patients to undertake additional lengthy travel by simply accepting ultrasounds from other healthcare providers, which it currently does not permit. (Filing No. 35 at 32.) The State also contends that PPINK could mitigate the burdens caused by lengthy travel by simply making different business decisions, such as buying less expensive ultrasound machines so that more health centers can offer the informed-consent appointment. (Filing No. 35 at 33.) These arguments are two of the State’s primary attempts to undermine PPINK’s evidence of burdens and are addressed in turn.
There are two difficulties with the State’s position as to PPINK’s pre-existing policies. First, the undue burden inquiry does not contemplate re-examining every pre-existing policy or practice of abortion providers to see if they could further mitigаte burdens imposed by a new abortion regulation. The Seventh Circuit’s analysis in Schimel illustrates this. When assessing the burdens imposed, the Seventh Circuit accepted Planned Parenthood’s policies and then evaluated how the challenged law burdened the right to choose to have an abortion given those polices. It did not •suggest that Planned Parenthood had an obligation to change its policies to lessen the burden..
For example,' the Seventh Circuit noted that Planned Parenthood in Wisconsin performs abortions for women who have been pregnant up to eighteen weeks and six days. See Schimel,
Accordingly, PPINK is correct that undue burden inquiry asks, “given the reality of how PPINK provides its abortion services, ... is [there] an undue burden on its patients.” (Filing No. 38 at 13.) The State has not pointed to any case in which a court suggested that burdens created by a new abortion regulation were undermined based on the abortion provider’s failure to change a pre-existing policy, and therefore the Court will not re-examine each preexisting PPINK policy and determine whether, if it were changed, it would miti
Second, even if this were a proper consideration, the State’s suggested policy change is not a feasible one. To support its position regarding PPINK’s failure to accept ultrasounds from other medical providers, the State points to the deposition testimony of PPINK’s medical director Dr. John Stutsman that he would not necessarily decline to permit outside ultrasounds, but that is PPINK’s national policy. (Filing No. 35-4 at 27.) But as PPINK points out, the new ultrasound law requires that the ultrasound be provided “at the same time that the pregnant woman receives” the other mandated informed-consent information, see Ind. Code § 16—34—2—1.1(a)(5), and there is no evidence to suggest that a woman could receive that information at a non-PPINK hospital or healthcare facility. This is especially true given that, at the time of the ultrasound, the law requires the patient to provide the name of the physician performing the abortion, the physician’s license number, and a telephone number at which they can be reached at any time. Ind. Code § 16-34-2-1.1(a)(1)(A). There is no evidence that an abortion patient could provide such information if she was not at a PPINK health center. Thus, the State’s suggestion that PPINK could simply change its policy and begin accepting ultrasounds from other providers—even if it were a proper consideration—is not an available method to mitigate the lengthy travel that is now necessary for many women in Indiana.
Like the State’s position with regards to PPINK’s pre-existing policies, its contention that PPINK could make different business decisions to mitigate the burdens caused by the new ultrasound law is unpersuasive. As an initial matter, the State has again failed to point to a case in which a court has discounted burdens imposed by a new ultrasound regulation because the abortion provider could have made better or different financial choices.
To the extent this is a proper consideration at all, the State has failed to show that PPINK’s business decisions are in any way causing the burdens at issue. For example, the State argues that PPINK could purchase cheaper ultrasound machines and therefore have them available at more than six health centers. (Filing No. 35 at 33-34.) PPINK’s ultrasound machines cost $25,000.00, and the State presents evidence that high-quality, portable ultrasound machines are available for as little as $4,250.00 to $8,500.00. (Filing No. 35-1 at 6). In response, PPINK’s Director of Abortion Services, Forest Beeley, explains why PPINK purchases the $25,000.00 machine from GE Healthcare. Specifically, she notes that this ultrasound machine comes with an extended warranty that cheaper machines do not have, and the contract with GE Healthcare includes planned maintenance, replacement parts, software updates, support, and a guaranteed 24-hour response time if there are issues, among other benefits. (Filing No. 38-1 at 3-4.) Moreover, the ultrasound machine integrates with PPINK’s electronic record system, which is critical for when the ultrasound and abortion appointments occur at different health centers. (Filing No. 38-1 at 4.) Given all of these additional services and features that are in PPINK’s view “essential,” Ms. Beeley testifies that these ultrasound machines are the most economical available. (Filing No. 38-1 at 4.) Thus, while the State has pointed to a very specific purchase by PPINK and suggested they could make a better purchase decision, the evidence reveals that PPINK is making the most economical decision available for its needs.
Moreover, given all the evidence presented, the Court credits the attestation of PPINK’s President and CEO, Betty Cock-
Finally, to the extent the State argues that PPINK is simply failing to shift more resources toward abortion services, this also doеs not undermine PPINK’s evidence of burdens. As a general matter, if the State could simply point out ways in which PPINK could allocate its resources differently to mitigate burdens imposed by the new ultrasound law, PPINK would never be able to make a successful undue burden challenge, given that only 7% of its patients receive abortion services. (See Filing No. 35-5 at 35 (noting that only 7% of PPINK patients receive abortion services)). This leaves all of the resources it dedicates to the healthcare needs of the other 93% of its patients, which of course could be dedicated to abortion services. But this would essentially mean that no organization could challenge an abortion regulation as an undue burden unless it is dedicating 100% of its resources to abortions.
Moreover, if the State believes that PPINK could offer more abortion services than it does, it is the State’s obligation to present specific evidence, not just a general assertion, that this is so. See Whole Woman’s Health,
For these reasons, the State has failed to undermine PPINK’s significant evidence of burden of increased travel due to the new ultrasound law. The State’s contentions that PPINK’s pre-existing policies and business decisions could further mitigate these burdens constitutes either an improper inquiry generally or are otherwise unpersuasive. ■
Absence from Employment. Because the new ultrasound law now forces many women to travel significant distances for their informed-consent appointment, these women must now take an additional day'away from, work in order to have an abortion. However, many low-income women do not have employment that pays them for days during which they do not work. (Filing No. 24-1 at 15.) The new ultrasound law thus requires these women to lose an additional day’s wages, which adds yet another financial cost. Many of these, same .women feel unаble to take this additional time off work due to fear of losing their jobs for taking off two days in a short time period. (See Filing No. 24-1 at 15.) As- seen in the examples and expert testimony addressed below, this is yet another factor that makes the new ultrasound law burdensome for low-income women.
Child Care Expenses. PPINK’s policy prohibits children from being present during an ultrasound, which means the new ultrasound law prevents women from bringing their children to the informed-consent appointment when they used to be able to do so. Therefore, women that must travel long distances to their informed-consent appointments must now bear the additional expense of child care for an additional day. It is also not uncommon for women to delay scheduling an appointment because they cannot arrange childcare, which they now must do on two occasions
The State points out that PPINK’s policy regarding children’s presence during an ultrasound is its choice. The State presents the declaration of Dr. Christina Fuchs who testifies that such a policy is not required and that she frequently performs ultrasounds with children in the room simply by appropriately covering the mother with a sheet. (Filing No. 35-1 at 6.) PPINK disagrees; it notes that it is a Planned Parenthood -policy to not allow children at the ultrasound appointment because there is “a pretty serious risk of distraction.” (Filing No. 35-5 at 26.) . ,
The State is again asking- PPINK to change its pre-existing ■ policy that is in place because PPINK believes that children are distracting to both the doctor and the patient during an important ultrasound procedure; indeed, it is this very procedure that the State' contends will lead women to reflect and change their minds about having an abortion. Yet, the State suggests PPINK should change- a policy that facilitates a woman’s ability -to focus on the procedure to lessen the burden created by the new ultrasound law. This is perplexing given that the State’s asserted goal is to promote fetal life by encouraging women to reflect on thе ultrasound image. But in any event, as discussed above regarding PPINK’s ultrasound policy, burdens are not evaluated by hypothesizing all of the ways in which abortion providers could change their pre-existing policies to mitigate the burdens imposed by a new abortion regulation. Thus the State’s suggestion that. PPINK simply change its current policy does not undermine PPINK’s evidence that childcare concerns present a burden for women, especially low-income women, who now have to travel long distances to their informed-consent appointments.
Keeping Abortions Confidential from Abusive Partners. Some women who seek abortions from PPINK are in abusive relationships and fear for their safety if their partner were to discover that they were pregnant or that they wanted an abortion. (See Filing No. 24-1 at 17-18.) PPINK is aware that some of its patients face this problem, and: one national study showed that 13.8% of women who had an abortion had been in an abusive relationship within a year before the abortion. (Filing No. 24-1 at 17-18.) For women in such relationships, it can be very difficult-to arrange another lengthy day of travel and have it remain confidential. (See Filing No. .24-1 at 17-18.) This, like the employment and childcare difficulties discussed above, is yet another burden caused by the ultrasound law.
ii. Delays in Abortion Services
Decrease in Health Center Availability. All informed-consent appointments are now scheduled at six PPINK health centers rather than seventeen. To accommodate the demand on these centers, PPINK often double-books appointments. This, of course, causes women to wait much longer for their appointments when both women scheduled for an appointment show up, which exacerbates the problems caused by lengthy travel time—lost wages, childcare expenses, and confidentiality concerns. Moreover, there is no guarantee that women can be scheduled for an informed-consent appointment at the PPINK health center nearest them, so the travel distances may be even farthеr for some women. (See Filing No. 24-1 at 9-10.) PPINK is currently asking staff to stay as late as necessary to complete all of the appointments, which is an unsustainable solution for the organization. (Filing No. 24-1 at 11.) Because abortion services are only a small percentage of the health services provided by PPINK, at some point in the
As to concerns'regarding the availability of the nearest health center, the State points out that 'PPINK’s' President and CEO, Ms. Cockrum, admitted during her deposition that she is uncertain how many women are unable to travel to the health center closest to them, and her statement that some women are unable to do so is “anecdotal.” (Filing No. 35-5 at 31.) But even discounting this aspect of the availability of the nearest health center, the fact that the health centers have to double-book appointments—which can cause patients to wait for their appointment for a significant time—exacerbates the problems discussed above associated with significant travel, in that it makes an already lengthy trip potentially much longer.
Delays Prevent Women from Obtaining an Abortion within the Limited Time-frame. The latest date a woman can obtain a surgical abortion at a PPINK health center is thirteen weeks and six days after her most recent menstrual period. In the 2016 fiscal year, 22.2% of women who had an abortion at! a PPINK health center were between eleven weeks and thirteen weeks; six days pregnant, which is to say at most three weeks from the deadline. When medication abortions are excluded from these statistics, the percentage of surgical abortions occurring in the three weeks • before the deadline increases to 34.3%. (Filing No. 24-1 at .7-8.) This is caused by a variety of factors, including a lack of rеcognition of pregnancy for several weeks and low-income women’s difficulty amassing the funds and making the necessary logistical arrangements to have an abortion. (See Filing No. 24-1 at 7-8.)
Prior-to the new ultrasound law, PPINK could usually accommodate a woman who sought an abortion close to the deadline by scheduling her for an informed-consent appointment at her local PPINK health center and then, the next day, an abortion. Due to the fact that many women now have to make two separate, lengthy trips to obtain an abortion and the delays caused by overburdened health centers, this is no longer possible, and some of these. women will no. longer be able to obtain an abortion within the required timeframe. (See Filing No. 24-1 at 12.)
This is especially true .given that physicians are only available at the four health centers offering abortion services at limited times: Indianapolis (3 days/week); Bloomington (1 day/week); Merrillville (1.5 days/week); and Lafayette (1 day/week). (Filing No. .24-1 at 6.) With such limited availability, it is .evident that even short delays scheduling the informed-consent appointment could significantly delay the abortion appointment such that women will be unable to obtain an abortion within the thirteen week, six day timeframe. ■ -
iii. Expert Testimony
. PPINK’s expert in-gender studies, poverty, , and low-wage labor markets, Dr. Jane Collins; provides extensive evidence regarding how the increased expenses imposed by the new ultrasound law, for myriad reasons, burden low-income women in Indiana who seek an abortion. She. concludes, that the new ultrasound law will cause some low-income women to “delay their abortions as they attempt to come up with the necessary money and make the logistical arrangements,” and this will ultimately cause some of. those women to be unable “to obtain an abortion at all.” (Filing No. 24-2 at 3.) Her conclusion is based on an analysis of low-income families’ budgets and -the. additional costs, associated with the new ultrasound law for--women
For example, Dr. Collins demonstrates how, for a woman living in Fort Wayne, Indiana seeking an abortion who has children and would lose wages for a day away from work, the additional expense caused by the new ultrasound law would be between $219.00 and $247.00. (Filing No. 24-2 at 18.) While these additional costs can be absorbed by a middle-class family, many low-income families have a discretionary monthly budget of approximately $40.00, and additional expenses of over $200.00 represents approximately a quarter of their entire monthly budget for all of life’s necessities. (Filing No. 24-2 at 19.)
Notably, these are expenses in addition to the costs of the abortion itself—namely, $410.00 for the abortion and $100.00 for the ultrasound. (Filing No. 24-1 at 8; Filing No. 35-5 at 35.) Dr. Collins explains that, to cover the costs associated with abortions, low-income women often have to go to great lengths. For example, one survey revealed that one-third of women delayed or stopped paying basic bills in order to afford the cost of an abortion. (Filing No. 24-2 at 21.) Other women—50% as reported in one study—have to borrow the money from family and friends. (Filing No. 24-2 at 20.) For women faced with the already high costs of an abortion and a lack of means to afford them, the additional expenses of lengthy travel, lost wages, and child care created by the new ultrasound law create a significant burden.
The State attempts to undermine Dr. Collins’s evidence, primarily via reliance on evidence from their expert sociologist Dr. Anne Hendershot. She attests that “Dr. Collins provides no concrete sociological evidence demonstrating that low-incоme women will be deterred from getting abortions due to the Ultrasound Law.” (Filing No. 35-3 at 3.) This is true to the extent that Dr. Collins did not conduct specific sociological studies on how the new ultrasound law has impacted access to abortion in Indiana. Dr. Collins’s analysis instead rests on extrapolations from existing data and reasonable assumptions therefrom. But that does not make Dr. Collins’s examples and conclusions unpersuasive. Although she did not conduct a study of low-income women in Indiana who have had an abortion, her thorough analysis of the costs imposed by the new ultrasound law appears well-grounded in the available data regarding the costs of transportation, lost wages, and child care. This is especially true given that the State fails to take issue with any specific portion of Dr. Collins’s predicate facts or overall analysis.
The only specific evidence presented by Dr. Hendershot that is in any way contrary to Dr. Collins’s analysis and conclusion is Dr. Hendershot’s statement that “[i]t is clear that the difficulties low-income women may face in accessing abortion services have not deterred women who are intent on terminating their pregnancies.” (Filing No. 35-3 at 3.) She bases this conclusion on studies from 2014 that show “as incidence of abortion has declined throughout the United States, the number of low-income women obtaining abortions continues to climb—demonstrating that low-income women are not deterred from accessing these services.” (Filing No. 35-3 at 3.)
To ■ summarize, Dr. Collins’s , analysis demonstrates how burdens that may seem less significant to wealthier women can pose significant hurdles for low-income women who seek abortions. Based on her analysis, especially given its congruence with the other evidence regarding burdens discussed herein, the Court finds credible and persuasive her ultimate conclusion that “as a result of the [new ultrasound law], a significant number of poor and low-income women [in Indiana] will no longer be able to obtain the abortions they seek or will be delayed in doing so.” (Filing No. 24-2 at 23.)
iv. Specific Examples
During the one-month period from the time that the new ultrasound law went into effect, July 1, 2016 and on August 1, 2016, PPINK became aware of at least from six women who could not obtain an abortion due to the new ultrasound law. (See Filing No. 24-1 at 16-17.) PPINK subsequently provided evidence of three more women who could not obtain an abortion due to the ultrasound law. (See Filing No. 38-1 at 2.) These nine women serve as concrete examples of how the burdens discussed above can prevent certain low-income women from obtaining an abortion:
• The nearest PPINK health center to a woman seeking an abortion was over an hour away, and due to the fact that she has two young children and difficulty ■ with transportation, she was unable to schedule the two lengthy trips during the thirteen week, six day timeframe in which an abortion is available.
• A woman from the Fort Wayne area did not schedule an abortion because of the two lengthy trips necessary. She was eleven weeks, four days pregnant when she contacted PPINK, but could not miss work ‘twice within the short timeframe remaining.
• A woman who previously had an abortion at PPINK called to schedule another, but ultimately said she could not schedule one after she was informed she would have to make two trips to the PP'INK health сenter in Bloomington, Indiana.
• A woman living in a shelter with two young children decided not to schedule an abortion appointment because of the transportation and childcare difficulties two appointments would cause.
• A woman who recently, started a new job after a year of unemployment stated that she could not drive the three-hour roundtrip tp a PPINK health center on two separate occasions due to the combination of work, childcare, and transportation expenses, in addition to her concerns regarding the confidentiality of the abortion..
• A woman who did not learn she was pregnant for ten weeks faced a long delay before she could have her informed-consent appointment that required travel to a PPINK health center, and by the time of her appointment she was one day beyond the deadline for an abortion.
• A woman from Fort Wayne who had a previous abortion at PPINK called to schedule another, but once she was informed that she would have to make two lengthy trips to a PPINK health center, she said she could not afford to do so and did not schedule an abortion.
• A woman living an hour north of Fort Wayne who has special needs children declined to schedule an abortion after learning that she would have to make two lengthy trips for each appointment, as she could not afford to be away from her children for that long on two occasions.
• A woman from Fort Wayne who was approaching the deadline to have an abortion declined to schedule an appointment due to the required travel and risk of missing the deadline by the time she could schedule both appointments.
(Filing No. 24-1 at 16-17; Filing No. 38-1 at 1-2).
The State assails this evidence on two bases, neither of which are persuasive. First, the State argues that these examples are unreliable because they were passed on by the women to a PPINK staff member and then to the declarant, and neither the declarant nor anyone elsе at PPINK took any steps to verify the accuracy of the women’s reports. (See Filing No. 35-5 at 31-33.) While the former concern is true, this evidence remains sufficiently reliable for assessing the propriety of a preliminary injunction. The Seventh Circuit has made clear “that a district court may grant a preliminary injunction based on less formal procedures and on less-extensive evidence than a trial on the merits,” Dexia Credit Local v. Rogan,
In terms of reliability generally, including the lack of verification of the women’s reports, there is no reason to think that the women have á motivation to be dishonest with PPINK employees. After all, the women were contacting PPINK because they wanted an abortion, and they changed their minds only after realizing what that would take. Moreover, the examples represent a plausible, if not likely, consequence of the new ultrasound law, which requires certain women in Indiana make an additional lengthy trip in order to obtain an abortion. The reliability of these examples is therefore increased by the fact that they fall squarely within the foreseéable consequences for low-income women who now have to take on additional time and expense to obtain an abortion.
It is also worth noting that the State asks the Court to discount this evidence because it does not come directly from the impacted women nor has it been otherwise verified, when, as discussed further below, the State’s only evidence that the law furT thers its interest in promoting fetal life is from a woman whose testimony was admitted into evidence through the declaration of her physician. If for the purposes of this preliminary injunction the Court failed to consider any evidence not directly from its source, the State would be left without any evidence directly supporting its position'.
Second, the State points out that it is unclear whether any of the women obtained an abortion from a different provider. (Filing No. 35-5 at 33.) But the only non-PPINK abortion providers in Indiana are located in--Indiаnapolis. It makes little sense to think that women who contacted PPINK to schedule an abortion but ulti
In .the end, the specific examples of women who have been unable to obtain an abortion .are certainly reliable enough for consideration when assessing the propriety of a preliminary injunction in this case, and they constitute additional, significant evidence that the new ultrasound law creates barriers for low-income women seeking an abortion in Indiana.
b. Benefits
The Court turns next to the evidence that the new ultrasound law furthers the interests asserted- by the State. According to the State, the “main purpose” of the new ultrasound law “is, to give women seeking an abortion the opportunity to view an image of her baby before making her decision, with hope that she will reflect on that image (and other information provided) and decide against abortion.” (Filing No. 35 at 16.) This is undoubtedly a legitimate interést for the State to pursue. See Casey,
Although these are legitimate intеrests, nearly all of the State’s evidence addresses the wrong question and, as such, fails to demonstrate that the new ultrasound law furthers its asserted interests. The relevant question is whether the ultrasound law provides the asserted benefits as compared. to the prior law. See Whole Woman’s Health,
i. Promoting Fetal Life
Viewing the Ultrasound. The State contends that viewing the ultrasound image is more likely to discourage a woman from having an abortion than the representa
The evidence from Dr. Francis that viewing the ultrasound imagе was relevant to some of her patients’ decision as to whether to have an abortion certainly constitutes evidence that viewing the ultrasound may impact some women’s decisions regarding whether they should have an abortion. However, PPINK rightly points out that even if viewing the ultrasound has any effect on a woman’s decision to have an abortion, the degree to which it does so is questionable given that the law permits each woman to choose whether or not they will view the ultrasound, and most women choose not to. In fiscal year 2016, only 25% of women who had an abortion at a PPINK health center viewed the ultrasound. (Filing No. 24-1 at 6.) It is difficult to conclude then that the new ultrasound law promotes fetal life in any significant way when three-fourths of women in Indiana do not even view the ultrasound image.
But there is a more fundamental issue with this evidence. As noted above, even if there is evidence that viewing the ultrasound convinces some women not to have an abortion, this is not evidence of the critical question, which is whether viewing the ultrasound eighteen hours before the abortion increases its impact. Evidence that some women’s decisions as to whether to have an abortion are impacted by viewing the ultrasound is not evidence that doing so at least eighteen hours before the abortion, rather than on the day of the abortion, has any additional persuasive impact.
Statistical Evidence Regarding Voluntary Viewing of an Ultrasound. The State also relies on statistical evidence to support its position that women who view the ultrasound are less likely to have an abortion. Specifically, the State points to a 2014 study that examined the impact that voluntarily viewing an ultrasound image had on women’s decisions whether to have an abortion. (See Filing No. 35 at 25.) The study reviewed more than 15,000 women who had sought abortion services from a Planned Parenthood health center in Los Angeles, California and had the option of viewing their ultrasound. The State notes that the study concluded that “voluntary viewing [of an ultrasound] was associated with some women’s decision to continue the pregnancy.” (Filing No. 35 at 25 (quoting Mary Gutter, et al., Relationship Between Ultrasound Viewing and Proceeding to Abortion, 123 Obstetrics & Gynecology 81, 85 (2014))).
PPINK’s response to this study is threefold and worthy of detailed examination, as this study ultimately reveals how meager the evidence is regarding any connection between voluntary viewing of an ultrasound and the decision to have an abortion, let alone evidence that any such connection is enhanced if the ultrasound if viewed eighteen hours prior to an abortion.
First, the study’s specific conclusion is far from compelling support for the position that viewing the ultrasound impacts women’s decisions whether to have an abortion; it concluded that “the effect [of viewing the ultrasound] was very small— and should be considered with caution— and limited to the 7% of patients with
Second, the study notes that the gestational age of the fetus is a more important factor in predicting whether a woman will decide to go through with an abortion. Specifically, it concludes “women’s comfort terminating their pregnancies decreases as gestation advances.” Id. at 86. This, says the study, shows that “it is the information the ultrasound sound scan renders—ie, gestational dating—rather than the image that influences women’s decision-making.” Id. In Indiana, although the ultrasound confirms gestational age, Indiana law requires women to be provided the “probable gestational age” of the fetus during the informed-consent appointment,, regardless of whether they choose to view the ultrasound. Ind. Code § 16-34-2-l.l(a)(l)(F). This evidence, in conjunction with Indiana law, undermines the premise of the State’s goal—to “give women seeking an abortion the opportunity to view an image of her baby before making her decision, with hope that she will reflect on that image ... and decide against abortion,” (Filing No. 35 at 16)—which is predicated on the ultrasound image impacting women’s decisions. Simply put, if it is the gestational age rather than the ultrasound image creating a small impact on women’s decisions, and women in Indiana are given that information whether or not they view the ultrasound, the State’s desired persuasive impact is occurring irrespective of the ultrasound, and thus the ultrasound itself has no additional effect.
Third and most critically, the 'State’s reliance on this study suffers from the same deficiency as its evidence presented by Dr. Francis. Even accepting that there is evidence that viewing the ultrasound has a small impact on a woman’s decision whether to have an abortion, any such evidence is entirely irrelevant to the legal question before the Court. Again, the Court must assess whether viewing the ultrasound at least eighteen'hours before the abortion has a greater impact on a woman’s decision than viewing it the day of the abortion. PPINK is correct that “[t]his study sheds' absolutely no light on that question.” (Filing No. 38 at 17.)
Accordingly, like Dr. Francis’s attestation that some of her patients have been impacted by .viewing the ultrasound image, the statistical evidence fails to in any way support the State’s position that the new ultrasound law advances its goal in promoting fetal life.
PPINK argues that abortions are different than many other procedures where lengthy informed-consent periods are utilized because, unlike in those contexts where the doctor discusses with the patient a previously undiagnosed medical condition, a woman at a PPINK informed-consent appointment “already knows her diagnosis (that she is pregnant), knows her options (continue the pregnancy or have an abortion), and has received a great deal of information about abortion, including the risks and benefits.” (Filing No. 38 at 16.) Moreover, PPINK disputes Dr. Francis’s testimony by pointing to Dr. Stutsman’s statement that he does a range of “office procedures,” such as colposcopies and LEEP procedures, on the same day as he provides the informed-consent information. (Filing No. 35-4 at 6.)
It is undoubtedly correct that informed-consent waiting pеriods generally provide patients time to consider information they have received. See Casey,
The evidence that informed-consent periods give patients time to reflect on their decisions only furthers the State’s position if there is specific evidence that additional time to reflect on the ultrasound image— assuming women choose to view it, which only 25% do—decreases the likelihood that women will go through with an abortion. As discussed herein, there is little to no concrete evidence that this is true. Undoubtedly the ultrasound image is a piece of information on which women could use the eighteen-hour period to reflect. But the evidence, including the study regarding voluntary ultrasound viewing discussed above, reveals that viewing the ultrasound likely has little to no impact. It.is simply not a reasonable assumption, given the absence of specific evidence on the question, that further time to deliberate on an image that has nearly no impact at the time, would create a meaningfully stronger impact after eighteen hours. Indeed, in the absence of evidence one way or another, it is just as reasonable to assume that the impact of viewing the ultrasound image dissipates, rather than increases, over time.
Specific Example. Dr. Franсis testified regarding one of her patients who may
regretted doing so and feels that an ultrasound- waiting period would have given her more time to consider her decision and change her mind..... [On the day of her abortion,] [s]he chose not to view the ultrasound image because she felt that if she saw an image of her baby it would - cause her to change her mind. She told [Dr, Francis] that she did not want to be persuaded not to abort because she was already at the clinic, had paid for the abortion, and felt pressured by those circumstances to go through with it. [She] told [Dr. Francis] that had she undergone the ultrasound the day before the abortion, she likely would have viewed the image arid she does not think she would have come back the next day to proceed with the medication abortion.
(Filing No. 35-1 at 5.)
PPINK responds that this evidence is the State’s “only” evidence addressing the relevant question and argues that it is “speculation on top of speculation.” (Filing No. 38 at 18.) Specifically, PPINK argues that:
not even from the perspective of hindsight can the woman say that receiving the ultrasound earlier would have definitely led to her deciding to view the ultrasound, let alone determining not to proceed with the abortion (‘she likely would have viewed the image,’ ‘she does not think she would have come back the next day’).
(Filing No. 38 at 18).
The evidence from Dr. Francis undoubtedly constitutes at least some evidence that certain women may change their minds about having an abortion if the ultrasound occurs prior to the day of the abortion. PPINK is correct, however, that this evidence ■ is exceedingly speculative. While acknowledging that in hindsight the woman thinks her decision-making process regarding her abortion may have been altered had the ultrasound oсcurred the day before the abortion, her own statements concerning what she may have done in hindsight contain multiple layers of speculation. She can only say. that she “likely” would have viewed the ultrasound image if it was offered a day earlier and,- had she, she “likely” would not have returned for the abortion the next day. This is far from compelling evidence that the new ultrasound law would have the impact desired by the State, and as such, it.must be given diminished weight in the balancing process.
Pressure at Appointments. The State posits thát the new ultrasound law will remove the pressure some women face on the day of the abortion to go through with the procedure, which is caused by the fact that they are already at the clinic and have paid for their abortion. The only specific evidence of this is the. example already discussed above of a woirian who felt such pressure and the State’s reference to PPINK’s “apparent lack of refund policy.” (Filing No. 35 at 26.) '
Although PPINK’s President testified that she was uncertain whether PPINK has a refund policy, PPINK’s Director of Abortion Services, Ms. Beeley, attests that PPINK has a refund policy: any woman who opts not to have an abortion following the ultrasound would be refunded all funds, not including the fee paid for the ultrasound. (Filing No. 38-1 at 3.) The evidence is clear that—whether the ultrasound is. performed the day before the abortion or the day of—the $100.00 ultra
The State’s alternative justification for the new ultrasound law is that “viewing the [ultrasound] image has important psychological benefits” for the woman. (Filing No. -35 at 27.) The State presents little evidence to support this justification, and it indeed notes thаt its “main” justification is promoting fetal life.
The State’s psychiatry expert, Dr. Aaron Kheriaty, states in his declaration that “[m]any abortion patients are morally and emotionally conflicted about the abortion decision, and those who choose to go through with the procedure often report conflicted feelings of ambivalence, regret, or distress afterwards.” (Filing No. 35-2 at 2.) Both Dr. Kheriaty and the State’s sociologist, Dr. Hendershot, point to studies done by Dr. Priscilla Coleman, one of which showed that the rate of “mental health claims of low-income California women ... was 17 percent higher for the women who aborted than for those who gave birth.” (Filing No. 35-3 at 4.)
PPINK’s response to this evidence is two-fold. First, it presents a declaration from Dr. Stutsman who points to two literature reviews that criticize Dr. Coleman’s studies as outliers that have been almost uniformly rejected by other experts in the field. (See Filing No. 38-3 at 2-5.) For example, two mental health organizations did a comprehensive review of studies on mental health and abortion, one of which concluded that the rates of mental health issues were the same for women who had an abortion and those who gave birth, and the other found that women who “have a single, legal, first-trimester abortion of an unplanned pregnancy for non-therapeutic reasons” had the same risk of mental health problems as women who give birth. (Filing No. 83-3 at 2-3 (citing Filing No. 83-4, 83-5).) Moreover, both of these mental health organizations specifically criticized Dr. Coleman’s studies as lacking: one study cited by the State was described as having “a number of methodological limitations making it difficult to interpret the results” and simply “poor,” while another study cited by the State was described as similarly having methodological problems that bring “into question both the results and conclusions.” (Filing No. 35-3 at 4-5 (citing Filing No. 83-4, 83-5).) In short, PPINK’s evidence is significantly more persuasive on this issue, especially given that Dr. Coleman’s studies are the subject of significant criticism.
Second, and more importantly, PPINK is again corrеct that the State’s evidence fails to address the relevant question. Even if the results of Dr. Coleman’s studies are accepted, this is not evidence that women having an ultrasound eighteen hours prior to the abortion as opposed to the day of the abortion have more favorable psychological outcomes.
In sum, while many abortion patients are undoubtedly morally and emotionally conflicted about their decision, there is no evidence that the new ultrasound law promotes women’s psychological health. The State admitted that it had no “direct evidence” that it did. Like much of the State’s evidence discussed above, Dr. Coleman’s studies do not address the relevant question of whether having an ultrasound at least eighteen hours before an abortion mitigates any of the consequences that purportedly exist. Accordingly, there is no evidence that the new ultrasound law furthers the State’s interest in safeguarding women’s psychological health;
Having reviewed the parties’ evidence, the Court must resolve the ultimate question of whether the new ultrasound law creates an undue burden. “To determine whether the burden imposed by the statute is undue (excessive), the court must weigh the burdens against the state’s justification, asking whether and to what extent the challenged regulation actually advances the state’s interests. If a burden significantly exceeds what is necessary to advance the state’s interests, it is undue, which is to say unconstitutional.” Schimel,
The Court must , assess the burdens for those whom the burdens are an, “actual rather than an irrelevant restriction,” Whole Woman’s Health,
As noted by the Seventh Circuit;
[it is true that] a 90—mile trip is no big deal for persons who own a car or can afford an Amtrak or Greyhound ticket. But more than 50 percent of Wisconsin women seeking abortions have incomes below the federal’ poverty line and many of them live in Milwaukee (and < some north or west of that city and so even farther away from Chicago). For them a round trip to Chicago, and finding a place to stay overnight in Chicago should they not feel up to an immediate return to Wisconsin after the abortion, may be. prohibitively expensive. The State of Wisconsin is not offering to pick up the tab, or any part of it. These women may also be unable to take the time required for the round trip away from their work or. the care of 'their children.
Schimel,
The new ultrasound law has not only made it more difficult for women to make the necessary arrangements to travel to the informed-consent appointment, but it has also funneled all of the informed-consent appointments into six instead of seventeen PPINK health centers. This has required PPINK to double-book appointments, which has increased the wait times for women at the health centers. Cf. Whole Woman’s Health,
Dr. Collins’s testimony and the specific examples of nine Indiana women reveal how the foregoing burdens combine in a variety of ways to ultimately prevent some women from obtaining an abortion that they otherwise would. Given that (1) over a third of surgical abortions at PPINK occur within three weeks of the thirteen week, six day deadline, (2)-making two lengthy trips for low-income women in quick succession is often difficult, (3) the PPINK health centers offering informed-consent appointments are now overburdened, and (4) abortion appointments- are only available as little as once a week and at most three times a week at PPINK’s health centers, it would be surprising if the new ultrasound law did not prevent a significant number of the low-income women from obtaining an abortion. And, indeed, PPINK’s evidence reveals that it already has for several women. See Schimel,
In sum, PPINK’s evidence credibly reveals—at least at this early stage in the litigation—that the new ultrasound law significantly burdens the category of women for whom the law is “actual rather than an irrelevant restriction,” Whole Woman’s Health,
Against these burdens, the Court must weigh the evidence that the new ultrasound law furthers the State’s asserted interests in promoting fetal life and women’s mental health. The State has almost no evidence that , the new ultrasound law promotes fetal life—except for one relatively speculative, example—or women’s mental health.
As to promoting’ fetal life, the State’s statistical evidence shows that viewing the ultrasound impacts some women’s decisions regarding abortion. But, as explained in detail above, the study on which the State relies describes the impact as a “very small” impact only on the 7% of women who had a low or medium decision certainty and no impact on the other women who have a high decision certainty. Moreover, for any impact to occur, the women who have low or medium decision certainty must actually view the ultrasound. Indiana law does not require them to do so, and only 25% of PPINK’s patients do. In total, this means that the impact of viewing the ultrasound on women’s decisions about their abortion amount to a “very small” impact on only the women who both have a low or medium decision certainty (7%) and who also view the ultrasound (25%). As a statistical matter, this impact is at best marginal. Moreover, the impact may be caused by women learning the gestational age of the fetus, which Indiana law requires women to learn independently of the ultrasound viewing. And most importantly, even this paltry evidence says nothing about the impact of viewing the ultrasound at least eighteen hours prior to the abortion rather than the day of the abortion, which is the critical question.
The State’s best evidence is the example from Dr. Francis regarding one of her patients who had an abortion and says that her decision-making process would have been different had the ultrasound occurred at the informed-consent appointment. [While this is at least some evidence that a woman might change her mind about having an abortion if the ultrasound occurs prior to the day of the abortion, the evi
As to the State’s asserted interest in promoting women’s mental health, the State’s evidence that abortions cause negar tive mental health outcomes is suspect at best, and PPINK’s evidence that there is no such correlation is convincing. But, again, even if there were such evidence, the State has no evidence regarding whether the timing of the ultrasound impacts a woman’s mental health outcomes.
. Given the foregoing evidence, the Court is left to weigh concrete and compelling evidence that the new ultrasound law imposes significant burdens against a near absence of evidence that the law promotes either of the benefits asserted by the State. This is similar to the balancing in Schimel and Whole Woman’s Health, where the Seventh Circuit arid Supreme Court, respectively, found that an undue burden existed because the challenged laws burdened the right to an abortion and there was little to no evidence that the laws actually furthered the State’s justification. The Seventh Circuit explained:'
[A] statute that curtails the constitutional right to an abortion ,.. dannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it—and if so ⅜ is unconstitutional.
It is not irrational for the State to posit that viewing the ultrasound image a day before the abortion might impact some women’s choices regarding whether to go through with an abortion. As noted above when discussing the State’s evidence regarding waiting periods generally, waiting periods, can of course. provide additional time for thoughtful deliberation. See Casey, 505 U.S. at 885,
The State resists this conclusion on two related bases, neither of which are ultimately persuasive. First, the State points to cases such as Casey and A Woman’s Choice-East Side Women’s Clinic v. Newman,
The Supreme Court’s analysis of the twenty-four hour waiting period requirement in Casey demonstrates this. In analyzing whether the waiting period imposed an undue burden, it first recognized that the “idea that important decisions will be more informed and deliberate if they follow some period of reflection [is] not ... unreasonable, particularly where the statute directs that important information become part of the background of the decision.”
The analysis in Casey reveals that the undue burden analysis is case specific and that, in another case with different evidence, the result may be different. Here, PPINK does not challenge waiting periods generally, but challenges the requirement that the voluntary ultrasound viewing be a part of the informed-consent appointment. The State has produced nearly no evidence that this change has the benefits it asserts, and PPINK has provided significant evidence that this law is burdensome such that the Court has concluded it poses a substantial obstacle for the group of women at issue.
Seсond and relatedly, the State argues that the burdens caused by the ultrasound law are relatively light compared to the burdens caused in other cases. (Filing No. 35 at 29.) For example, in Whole Woman’s Health, the challenged law led to the closure of half of the abortion clinics in Texas.
Nevertheless, other cases can of course provide guidance. The Court has heavily relied on the guidance provided in Schimel and Whole Woman’s Health to conclude that when, as here, the evidence of benefits is slight, evidence of burdens need not be overwhelming for the burdens- to be undue. Moreover, comparing the burdens here to those in Whole■ Woman’s Health supports the Court’s conclusion. While the new ultrasound law did not lead to the closure of any abortion clinics in Indiana like the challenged Texas law, it at least had a similar effect as it relates to the mandatory informed-consent appointment. Now, instead of being'able to attend one of seventeen PPINK health centers for an informed-consent appointment, women must travel to one of only six PPINK health centers that offer them. The ultrasound law has essentially closed nearly two-thirds of the PPINK health centers available for this necessary appointment. Thus, although the burdens here are not nearly as extensive as in Whole Woman’s Health, they are similar in kind such that they are significant enough to outweigh the almost complete lack of benefits.
In sum, the State’s arguments fail to undermine the above balancing. That balancing reveals that the new ultrasound law creates an undue burden on a woman’s right to terminate her pregnancy. PPINK therefore has a strong likelihood of success oh the merits of its claim.
B. Irreparable Harm
The parties’ assessment of the remaining preliminary injunction factors is succinct, likely beсause they each acknowledge that the assessment of PPINK’s likelihood of success on the merits is.essentially determinative. Nevertheless, the Court must address the remaining factors in order to determine whether a preliminary injunction is warranted.
The second preliminary injunction factor requires PPINK to show “that it is likely to suffer irreparable harm in the absence of preliminary relief.” Grace Schools,
The evidence shows that the new ultrasound law has and will continue to prevent PPINK from providing abortion services to certain Indiana women, and the Court has determined that this law is likely unconstitutional. For PPINK and its patients who lose the opportunity to exercise their constitutional right to choose to terminate their pregnancy, the irreparable harm -is clear. See Van Hollen,
As to the State’s contention that PPINK can simply expend more resources to avoid this harm, the evidence does not reveal this as a viable option for PPINK It already responded to the new ultrasound law by shifting resources to allow two more health centers to offer ultrasounds and to keep their health centers open longer hours to work through double-booked appointments. (See Filing No- 24-1 at 9-
Even if this were not the case, the harm flowing .from a violation of a person’s substantive due process rights is presumed irreparable. See Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner,
C. Balance of Harms, Public Policy Considerations, and Sliding Scale Analysis
“To obtain a preliminary injunction, the moving party must show that its case has some likelihood of success on the merits’ and that it has no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied.” Stutter, Inc.,
PPINK argues that its likelihood of success on the merits is strong and thus it need not make a particularly strong showing regarding the balance of harms. It can make this showing easily, in. its view, because the State will not be harmed by maintaining the status quo, nor ean the State maintain that being required to comply with the Constitution is harmful. (Filing No. 24 at 31.) The State offers little in response, arguing generally that it faces the harm caused,when a democratically enacted law is enjoined and that an injunction would prevent it from furthering its legitimate goal of promoting fetal life. (Filing No. 35 at 38.)
The harms faced by PPINK and its patients are irreparable and substantial. The evidence reveals that the new ultrasound law has already prevented several women from obtaining an abortion, and given the obstacles it creates and the burden these obstacles impose particularly on low-income women in Indiana, it will continue to do so absent a'preliminary injunction. Although the State’s interest in promoting fetal life is a legitimate one, the State failed to present-nearly any evidence that the timing of the ultrasound furthers this interest or its interest,in furthering women’s mental health. This, leaves only the State’s generalized harm caused by the delay of the implementation of its democratically enacted law, which is clearly outweighed by the harm to PPINK and its patients. See Van Hollen,
PPINK is also correct that the public interest would be served by enjoining the new ultrasound law, as the vindication of constitutional rights serves the public interest. See Joelner v. Vill. of Washington Park, Ill.,
Having examined all of the relevant factors, the Court must “weigh[ ] the balance of potential harms on a ‘sliding scale’ against the movant’s likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in'his favor.” Tumell,
IV. CONCLUSION
The Court has “weigh[ed] all the factors” and sought “at all times to minimize the costs of being mistaken.” Stuller, Inc.,
The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a “very small” impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day- before the abortion rather than the day of the.abortion. Moreover, the law does not require women to view the ultrasound imagine at all, and seventy-five percent of PPINK’s patients choose not to. For these women, the new ultrasound has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.
For these reasons, PPINK’s Motion for Preliminary Injunction (Filing No. 6) is GRANTED. Pursuant to Federal'Rule of Civil Procedure 65(d), the Court ISSUES A PRELIMINARY INJUNCTION prohibiting the State from enforcing the portion of the new ultrasound law found in Indiana Code § 16-34-2-l.l(a)(5) that requires the mandatory ultrasound to occur at least eighteen hours’ before an abortion and at the same time the other informed-consent information mandated by law is provided to the patient. Because the State has not disputed PPINK’s position that the State will not incur monetary damages from an injunction, PPINK need not post a bond.
SO ORDERED.
Notes
. There is no evidence regarding how many or what proportion of PPINK’s patients live near one of the ■ six PPINK health centers offering the informed-consent appointment. This number, however, is ultimately irrelevant because for women for whom one such center is local, the new ultrasound law is "irrelevant" and thus they are not the focus of the Court’s burden analysis. Casey,