In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 21-2480 & 21-2573 

WHOLE WOMAN’S HEALTH ALLIANCE, et al., 

Plaintiffs-Appellees, 

v.

TODD ROKITA, Attorney General of Indiana, et al., 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:18-cv-01904-SEB-MJD — Sarah Evans Barker, Judge. 

____________________ 

DECIDED SEPTEMBER 8, 2021 

____________________ 

Before FLAUM, EASTERBROOK, and WOOD, Circuit Judges. 

PER CURIAM. The district court entered an injunction that 

prohibits officials from enforcing these provisions of Indiana’s law: 

• Ind. Code §16-34-2-1(a)(1) to the extent this statute limits the provision of first-trimester medication abortion care to physicians; requires a physical examination to be performed on a woman 
2 Nos. 21-2480 & 21-2573 

prior to receiving an abortion; and prohibits the 

use of telemedicine by requiring the prescriber to 

be physically present at the abortion facility in order to dispense the abortion-inducing drug and 

the patient to ingest the drug in the physical presence of prescriber; 

• Ind. Code §16-34-2-1(a)(2) providing that secondtrimester abortions be performed only in hospitals or ambulatory surgical centers; 

• Ind. Code §16-34-2-1.1(a)(1), (a)(4), (b)(1) to the 

extent these provisions prohibit providers from 

using telemedicine or telehealth to obtain informed consent from patients or to conduct preabortion counseling sessions; 

• Ind. Code §25-1-9.5-8(a)(4) prohibiting the use of 

telemedicine in abortion care; 

• 410 Ind. Admin. Code §26-17-2(d)(1)(A), (4), (e)(5) 

requiring clinics providing aspiration abortions 

to maintain 120-square-foot procedure rooms, 

scrub facilities, and 44-inch corridors; 

• 410 Ind. Admin. Code §26.5-17-2(e)(1) requiring 

medication abortion clinics to maintain housekeeping rooms with storage sinks; 

• Ind. Code §16-34-2-1.1(a)(1)(E) and (a)(1)(G) requiring women seeking abortion services to be informed that “objective scientific information 

shows that a fetus can feel pain at or before 

twenty (20) weeks of postfertilization age” and 

that “human physical life begins when a human 

ovum is fertilized by a human sperm”; and 
Nos. 21-2480 & 21-2573 3 

• Ind. Code §16-34-2-1.1(b)(2) to the extent it requires dissemination of a Perinatal Hospice Brochure containing the following: “Studies show 

that mothers who choose to carry their baby [sic] 

to term recover to baseline mental health more 

quickly than those who aborted due to fetal 

anomaly.” 

2021 U.S. Dist. LEXIS 149959 at *207–08 (S.D. Ind. Aug. 10, 

2021). The officials (collectively Indiana) request a stay of 

some aspects of this injunction: the “physician-only law as applied to medication abortions, Ind. Code §16-34-2-1(a)(1); 

[the] second-trimester hospital/ambulatory surgical center requirement, id. §16-34-2-1(a)(2); [the] in-person counseling requirement, id. §16-34-2-1.1(a)(1), (a)(4), (b)(1); [the] in-person 

physical examination requirement, id. §16-34-2-1(a)(1); and 

[the] telemedicine ban, id. §25-1-9.5-8(a)(4).” 

All of the contested provisions have been in force for 

years, so a stay would preserve the status quo pending appellate resolution. And Indiana has made the “strong showing” 

on the merits necessary to receive a stay. See Nken v. Holder, 

556 U.S. 418, 426, 434 (2009). 

We start with Ind. Code §16-34-2-1(a)(1). State laws requiring abortions to be performed by physicians have been challenged before, and in Mazurek v. Armstrong, 520 U.S. 968 

(1997), the Supreme Court held that they are constitutional. 

The district court nonetheless declared that requiring a physician is unconstitutional with respect to one means of inducing an abortion. That exception does not find any support in

Mazurek or this court’s decisions. See Whole Woman’s Health 

Alliance v. Hill, 937 F.3d 864, 874 (7th Cir. 2019); Planned 
4 Nos. 21-2480 & 21-2573 

Parenthood of Indiana and Kentucky, Inc. v. Box, 991 F.3d 740, 751 

(7th Cir. 2021). 

Laws requiring second-trimester abortions to be performed in a hospital or surgical center also have been challenged before. Indeed, Ind. Code §16-34-2-1(a)(2) itself was 

challenged and sustained by the Supreme Court. Gary-Northwest Indiana Women’s Services, Inc. v. Orr, 496 F. Supp. 894 

(N.D. Ind. 1980) (three-judge court), affirmed, 451 U.S. 934 

(1981). The Supreme Court’s decision was summary and unreasoned, but like other summary dispositions it sekled the 

validity of the contested statute even though it did not establish general principles. Two years later, the Court concluded 

after full briefing and argument that a materially identical 

statute in Virginia is constitutional. Simopoulos v. Virginia, 462 

U.S. 506 (1983). 

The requirement of in-person counselling, Ind. Code §16-

34-2-1.1(a)(1), (a)(4), (b)(1), likewise is a return litigant. It was 

contested and held constitutional in A Woman’s Choice v. Newman, 305 F.3d 684 (7th Cir. 2002). We concluded that the validity of such a statute was established in Planned Parenthood of 

Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881–87 (1992), 

which held that a materially identical informed-consent statute does not create an “undue burden” on access to abortion. 

And if as Casey and A Woman’s Choice hold a state may require 

in-person meetings with physicians before an abortion, then 

the validity of the restriction on telemedicine, Ind. Code §25-

1-9.5-8(a)(4), follows directly. 

Plaintiffs contend, and the district court found, that developments in videoconferencing make it possible to dispense 

with in-person meetings, that improvements in medicine 

make the use of hospitals or surgical centers unnecessary, and 
Nos. 21-2480 & 21-2573 5 

that nurses are competent to approve and monitor medication-induced abortions. The district court concluded that 

these findings permit it to depart from the holdings of earlier 

cases. Yet the Supreme Court insists that it alone has the authority to modify its precedents, State Oil Co. v. Khan, 522 U.S. 

3, 20 (1997), and we added in A Woman’s Choice that a district 

judge lacks authority to use new findings to depart from established law. 305 F.3d at 688–89 (“constitutionality must be 

assessed at the level of legislative fact, rather than adjudicative fact as determined by more than 650 district judges.”). 

We leave the merits for resolution after full briefing and 

argument. All we hold today is that existing precedents provide strong grounds for concluding that Indiana is likely to 

prevail on the contested issues. To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), 

(2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is 

stayed pending further order of this court. 
6 Nos. 21-2480 & 21-2573 

WOOD, Circuit Judge, dissenting from the grant of the stay 

pending appeal. 

Almost 50 years ago, the Supreme Court held that a 

woman has a fundamental right to decide whether or not to 

carry a pregnancy to term. Roe v. Wade, 410 U.S. 113 (1973). 

Today, challenges to Roe’s holding abound. In Dobbs v. Jackson 

Women’s Health Org., No. 19-1392 (U.S.), cert. granted May 17, 

2021, the State of Mississippi has asked the Court to rule that 

“all pre-viability prohibitions on elective abortions are []constitutional.” Petn. For Cert., Question 1. Texas took another 

approach, by enacting a law that not only bans all abortions 

after approximately the sixth week of pregnancy, but also disempowers state officials from taking any enforcement action

related to that ban, instead authorizing any interested bystander to perform that function. See Whole Women’s Health v. 

Austin Reeve Jackson, Judge, No. 21A24 (U.S.), Sept. 1, 2021, 

denying an application for injunctive relief. And some states 

have enacted law after law designed to chip away at Roe, 

while piously purporting to protect women’s health.1 

1 It is a mystery to me why the State is unwilling frankly to say that its 

laws regulating abortion are designed to discourage that procedure to the 

maximum extent that is constitutionally permissible. The Supreme Court 

held as early as 1977 that states may express a preference for childbirth 

over abortion, see Maher v. Roe, 431 U.S. 464, 474 (1977), and it reiterated 

that point in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992). 

Rather than insisting that its laws have only the high-minded purpose of 

protecting women’s health, in the face of overwhelming evidence that 

they have no such effect, it would be preferable from my standpoint to 

have an open debate about the outer reaches of the state’s power to implement laws that have the effect of burdening, or even eliminating, access to 

abortions. 
Nos. 21-2480 & 21-2573 7 

The Indiana law before us takes the last form. It constricts 

the performance of abortions in countless ways. The plaintiff 

organizations provide abortion services in Indiana and elsewhere. In this suit, they originally challenged 25 different 

parts of the law, on the ground that these provisions impose 

an undue burden on a woman’s right to obtain an abortion. 

Over time, the case was whittled down. After a full bench trial, 

the district court entered a permanent injunction against the 

following aspects of the law:

1. The “Physician-Only Law,” Ind. Code § 16-34-2-

1(a)(1)(A), but only as applied to so-called medication 

abortions (i.e., those accomplished by taking two pills);

2. The “Second-Trimester Hospitalization Requirement,” 

Ind. Code § 16-34-2-1(a)(2)(B);

3. The “In-Person Counseling Requirement,” Ind. Code 

§ 16-34-1.1(a)(1), (a)(4), (b);

4. The “Telemedicine Ban,” Ind. Code § 25-1-9.5-8(a)(4);

5. The “In-Person Examination Requirement,” Ind. Code 

§ 16-34-2-1(a)(1); 

6. The “Facility Regulations” (specifying the size of procedure rooms and hallways and the type and location 

of sinks), 410 Ind. Admin. Code 26-17-2(d)(1)(A), (d)(4), 

(3)(5); 410 Ind. Admin. Code 26.5-17-2(e)(1); and

7. Three “Mandatory Disclosure Requirements” (concerning when life begins, fetal pain, and the woman’s 

mental health), Ind. Code § 16-34-2-1.1(a)(1)(E), 

(a)(1)(G). 

See Whole Women’s Health v. Rokita, No. 1:18-cv-01904, 2021 

WL 3508211 (S.D. Ind. Aug. 10, 2021). The court denied the 
8 Nos. 21-2480 & 21-2573 

Plaintiffs’ request for injunctive relief against another 13 provisions, finding instead that the State had the better of the argument. 

The very next day, the State filed a notice of appeal, along 

with a motion to stay the injunction pending appeal. See FED.

R. CIV. P. 62(d). The district court denied the stay motion, and 

so, as permitted by Federal Rule of Appellate Procedure 

8(a)(2), the State asked this court to issue the stay. My colleagues have voted to grant Indiana’s request. Regretfully, I 

cannot endorse that action. The district court’s rulings were 

grounded in careful and extensive findings of fact, and in my 

view scrupulously followed the Supreme Court’s guidance in 

this difficult area. I would deny the stay and allow the appeal 

to progress in the normal fashion.

I

Time does not permit more than a cursory overview of the 

reasons that persuade me that the extraordinary remedy of a 

stay is not appropriate here, but I wish to highlight a few. The 

standards for granting a stay do not vary depending on 

whether it is the United States, a state, or a private party seeking that relief. The Supreme Court made this clear in Nken v. 

Holder, 556 U.S. 418 (2009); its words there are worth recalling:

A stay is not a matter of right, even if irreparable 

injury might otherwise result. It is instead an exercise 

of judicial discretion, and [t]he propriety of its issue is 

dependent upon the circumstances of the particular 

case. The party requesting a stay bears the burden of 

showing that the circumstances justify an exercise of 

that discretion. 
Nos. 21-2480 & 21-2573 9 

Id. at 433–34 (quotation marks and citations omitted). The 

State of Indiana thus has the burden here of demonstrating 

the appropriateness of a stay of the district court’s injunction. 

The Nken Court also identified the salient considerations 

in deciding whether a stay should issue:

(1) whether the stay applicant has made a strong 

showing that he is likely to succeed on the merits; (2) 

whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 434. With respect to the all-important likelihood-ofsuccess factor, the Court emphasized that more than a 

negligible chance of success or some possibility of irreparable 

injury is required. Id. at 434–35; see also Illinois Republican 

Party v. Pritzker, 973 F.3d 760, 763 (7th Cir. 2020) (applicant 

must make a strong showing of likelihood of success, though 

that may be less than proof by a preponderance). 

The State argues that it has met this standard. It points to 

several key decisions in its effort to show that the district court 

erred badly enough that we should immediately freeze its injunction. Those decisions were the following:

• Mazurek v. Armstrong, 520 U.S. 968 (1997), which addresses a Montana law restricting the performance 

of abortions in that state to licensed physicians.

• Simopoulos v. Virginia, 462 U.S. 506 (1983), which 

upheld a Virginia law that required secondtrimester abortions to be performed either in a 

hospital or in some kind of clinic. See also Gary-
10 Nos. 21-2480 & 21-2573 

Northwest Indiana Women’s Servs., Inc. v. Orr, 451 

U.S. 934 (1981). 

• A Woman’s Choice-E. Side Women’s Clinic v. Newman, 

305 F.3d 684 (7th Cir. 2002) (“Woman’s Choice”), 

which upheld Indiana’s in-person counseling requirement as then understood.

• Planned Parenthood of Ind. & Ky. v. Box, 991 F.3d 740 

(7th Cir. 2021) (“PPINK”), which held that a court 

must first find that an abortion regulation poses a 

substantial obstacle to the exercise of the abortion 

right, and only then engage in balancing burdens 

against benefits.

• Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 

(1992), which established the undue burden test 

and distinguished between a genuine burden and 

simple inconvenience or expense. 

My colleagues believe that the district court’s painstaking 

158-page opinion ignores these decisions, or worse, openly 

flouts them. But my colleagues are over-reading the Supreme 

Court’s decisions. As I will show briefly, the Court has always 

taken the position that for the Casey test—as elaborated as recently as five years ago in Whole Women’s Health v. Hellerstedt, 

136 S. Ct. 2292 (2016), and then two years ago in June Medical 

Servs. v. Russo, 140 S. Ct. 2103 (2020)—facts matter. 

This record is unusually rich in the facts that it contains, 

because it was compiled after a full trial on the merits. That 

record shows that the decisions on which the State is relying 

do not resolve the issues before us, because there are critical 

factual differences between those cases and this one. There is 

also extensive evidence in the record supporting a finding 
Nos. 21-2480 & 21-2573 11 

that the Indiana laws that the district court enjoined pose serious problems under the Supreme Court’s governing abortion jurisprudence. (Obviously, if the Court chooses to accept 

Mississippi’s invitation to overrule Roe v. Wade, then everything is up for grabs. As a lower court judge, however, I must 

proceed on the assumption that nothing has changed until the 

Court says so. See Rodriguez de Quijas v. Shearson/American 

Exp., Inc., 490 U.S. 477, 484 (1989).) 

II

I begin with Mazurek. As I indicated above, this case involved the constitutionality of a Montana law that restricted 

the performance of abortions to “licensed physicians.” A 

group of doctors, plus the only physician assistant in the entire 

state who then performed abortions, sued to enjoin that aspect of the law. The district court refused to do so; the Ninth 

Circuit vacated its decision; and the Supreme Court then 

agreed to hear the case. 

The Court’s opinion leaned heavily on the district court’s 

finding that there was insufficient evidence in the record that 

a law that disabled only one abortion provider (the physician

assistant) from providing these services could amount to a 

prohibited “substantial obstacle” to abortions. 520 U.S. at 973. 

In our case, in contrast, the district court found that the 

Physician-Only law “significantly reduced” the pool of 

Indiana’s abortion providers. This problem was exacerbated, 

the court added, by Indiana’s physician-supervision 

requirement. Mazurek, in contrast, is best read as holding only 

that the plaintiffs had no evidence that Montana had an 

improper purpose in passing its law (i.e., a purpose of 

impeding access to abortion), contrary to what the Ninth 

Circuit had held. The district court pointed out that this court 
12 Nos. 21-2480 & 21-2573 

has not yet addressed Mazurek’s precise scope and 

application. PPINK does not fill that gap; it speaks only to 

state laws that limit abortion providers to licensed 

professionals. See 991 F.3d at 751. Indiana’s physician-only rule

sweeps more broadly. 

The Mazurek Court also found it significant that “what 

[was] at issue” was “not even a defendant’s motion for summary judgment, but a plaintiff’s motion for preliminary injunctive relief, as to which the requirement for substantial 

proof is much higher.” 520 U.S. at 972. In our case, in contrast, 

the plaintiffs went to trial and were subjected to adversarial 

testing before they secured the injunction. 

Finally, I do not agree with my colleagues to the extent 

that they may be saying that Mazurek resolved the physicianonly issue with respect to every type of abortion imaginable. 

In Whole Woman’s Health Alliance v. Hill, 937 F.3d 864, 874 (7th 

Cir. 2019) (“WWHA”), we did not go so far as to say that. Indeed, Mazurek is cited only once in WWHA. More importantly, Mazurek had nothing to say about “pill” abortions, 

for the simple reason that they did not exist at the time. It is 

thus at best an extension of Mazurek to say that a decision 

meant to address an invasive physical procedure (using 

“sharp, surgical instruments,” as the State puts it in its Reply 

to Plaintiffs’ response to its motion), whether an aspiration 

abortion, a dilation and curettage (D&C) abortion, or a dilation and evacuation (D&E) abortion, applies with equal force 

to the act of handing a person two pills and telling her when 

to take each one. On full merits review, we may decide that 

this is the case, or we may decide otherwise. But there is no 

reason to think that the district court was disregarding 
Nos. 21-2480 & 21-2573 13 

Supreme Court precedent when it thought that this factual 

distinction matters. 

Next, I turn to the second-trimester hospitalization requirement. This requires attention to Simopoulos, which concerned a Virginia statute criminalizing the performance of 

abortions outside of hospitals. One cannot look at Simopoulos 

without at the same time considering City of Akron v. Akron 

Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and 

Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 

(1983). The latter two cases both struck down state statutes 

that required all abortions after 12 weeks of pregnancy to be 

performed in a hospital. Simopoulos distinguished them on 

grounds that are critical here. Unlike the rigid hospital requirement in Akron and Kansas City, the Virginia law challenged in Simopoulos allowed outpatient surgical hospitals to 

qualify for licensing that permitted abortions. The district 

court thought that the latter option referred only to something 

like the ambulatory surgical centers (ASCs) in Indiana, but 

that is not clear. The Supreme Court emphasized that it saw 

“no reason to doubt that an adequately equipped clinic could, 

upon proper application, obtain an outpatient hospital license 

permitting the performance of second-trimester abortions.” 

462 U.S. at 518–19. Here, the record shows that outpatient 

abortion clinics could be just such an “adequately” equipped 

site. Yet Indiana’s law categorically bans them from performing abortions. 

In addition, Simopoulos relied on data from the American 

College of Obstetrics and Gynecology (ACOG) indicating that 

second-trimester abortions during or prior to the 16th week 

of pregnancy (that is, 16 weeks after the woman’s last menstrual period) could be performed in “free-standing qualified 
14 Nos. 21-2480 & 21-2573 

clinics that meet the state standards required for certification.” Id. at 517. The district court understood this as a factbased comment, and it was in that context that it observed 

that the medical consensus about what is needed for safe D&E 

procedures has evolved. In so doing, it followed ACOG’s current advice, just as the Court had done years earlier in Simopoulos. Moreover, the district court recognized that much 

of this discussion in Simopoulos was dicta: the physician challenging Virginia’s law had not attacked the Virginia regulations “as being insufficiently related to the State’s interest in 

protecting health.” Id. Under the circumstances, the district 

court was not unreasonable to think that there was room to 

consult modern standards from the same authoritative 

source.

The last case that deserves a nod is Woman’s Choice. That 

decision addressed an earlier version of many of the same Indiana rules now before us. For example, it considered 

whether Indiana’s requirement that someone seeking an 

abortion must make two separate visits to a medical facility

was unduly burdensome. The opinion did not flatly say that 

all such requirements are permissible, full stop. Instead, it left 

open the possibility that a different record might change the 

analysis under Casey: “This is not to say that a two-visit requirement could not create a burden comparable to a spousalnotice requirement.” 305 F.3d at 691. It added this:

The record in this case does not show that a two-visit rule 

operates similarly to a spousal-notification rule by facilitating domestic violence or even inviting domestic 

intimidation. It shows nothing except a decline in the 

number of abortions in Mississippi and Utah—leaving 

open both the extent to which other states would 
Nos. 21-2480 & 21-2573 15 

experience the same effect and the reason why the effect 

occurs.

Id. at 692 (emphasis added). The record now before us fills 

those gaps—or at least the district court may not have clearly 

erred in finding that it did. At this stage, with the burden on 

the State to justify the stay pending appeal, I do not see anything requiring the immediate suspension of the district 

court’s decision.

III

Finally, I would like to address some of the particulars of 

the Indiana regime, to show once again that this case is not 

the open-and-shut matter that it apparently seems to my colleagues. 

Indiana passed the first of the laws challenged in this litigation in 1973. In the decades since then, during which the 

cases on which Indiana relies were decided, facts on the 

ground have changed. Today, most women seeking abortions 

within the first 10 weeks of pregnancy use medication abortion. See Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 579 (2021) (Sotomayor, J., dissenting). The federal Food and Drug Administration (“FDA”) first 

approved mifepristone, a medication sold under the brand 

name Mifeprix, to provide medication abortions in 2000—

nearly thirty years after Indiana’s law was passed. Medication 

abortion is now most commonly provided via a combination 

of mifepristone and misoprostol, two hormonal drugs that are 

also commonly used for other reproductive healthcare. Notably, these drugs are also the most effective treatment for miscarriage management. Meanwhile, telehealth has rapidly expanded since 1973 (and was turbo-charged by the COVID-19 
16 Nos. 21-2480 & 21-2573 

pandemic), and providers routinely provide a wide range of 

important care remotely. These facts matter, as a look at the 

enjoined provisions of the law demonstrates.

A. Indiana’s Physician-Only Law

Indiana’s “Physician-Only Law” specifies that only a physician may perform a first-trimester abortion in the state. See

Ind. Code § 16-34-2-1(a)(1). As a result, the law prohibits Advance Practice Clinicians (APCs), such as physician assistants 

and nurse practitioners, from providing abortions. The district court permanently enjoined the Physician-Only requirement to the extent it applies to first-trimester medication abortion, but not as it applies to aspiration abortions.

As the district court noted, a 2015 analysis found “nothing 

more than a minimal difference” in safety and effectiveness 

between medication (and aspiration) abortions provided by 

APCs and those provided by physicians. The district court, 

weighing expert testimony, found that there is no clinically 

significant difference between medication abortions provided 

by an APC as opposed to a physician. 

APCs are subject to all generally applicable laws and regulations that define the scope of practice and set professional 

standards in Indiana, outside of abortion settings. See Ind. 

Code §§ 25-22.5-1-1.1(i)(1), 25-23-1-1, 25-23-1-19.4; 844 Ind. 

Admin. Code §§ 2.2-1.1-13, 2.2-1.1-16; 848 Ind. Admin. Code 

§§ 3-1-1, 3-1-2, 4-1-4, 4-2-1. Physician assistants must be supervised by licensed physicians pursuant to written supervisory agreements. See Ind. Code § 25-22.5-1-1.1(i)(1); 844 Ind. 

Admin. Code 2.2-1.1-16. Nurse practitioners practicing in outpatient settings are required to collaborate with licensed 
Nos. 21-2480 & 21-2573 17 

physicians, also pursuant to written agreements. See Ind. 

Code § 25-23-1-19.4. 

In 2016, the FDA amended the labeling directions for Mifeprix. The label now provides that “any certified healthcare 

provider” or any “certified prescriber” is authorized to provide Mifeprix so long as the provider: (1) can diagnose ectopic 

pregnancies, and (2) can either provide surgical intervention 

in the case of an incomplete abortion or severe bleeding, or 

has “made a plan to provide such care through others.” Whole 

Woman's Health All. v. Rokita, 2021 WL 3508211, at *25. As the

district court held, this amended label amounts to an FDA endorsement of APCs’ ability safely and competently to provide 

medication abortion. Id. Notably, APCs are authorized to provide medication abortions in about one-third of states (and to 

provide first-trimester aspiration abortions in about onequarter of states).

It also is telling that APCs are authorized to provide a 

wide range of non-abortion-related medical services, many of 

which are far riskier than abortion. Significant medical 

complications from abortions are extraordinarily rare, and 

practically nonexistent for medication abortions. As the 

record shows, less than one-quarter of one percent of abortion 

patients have a complication that requires hospital admission, 

surgery, or a blood transfusion. R. 234-1 at 150-51. Clinically 

significant complications affect only 0.16 and 0.31% of 

women. Id. As the district court noted, “[e]ven fewer 

complications—0.06%” for medication abortion “necessitate 

hospital admission.” Rokita, 2021 WL 3508211, at *7. 

At the same time, the state trusts advance practice registered nurses who meet certain licensing requirements “to prescribe drugs, including controlled substances.” Ind. Code 
18 Nos. 21-2480 & 21-2573 

§ 24-23-1-19.5; 848 Ind. Admin. Code 5-1-1. Similarly, physician assistants are authorized to prescribe controlled substances. See 844 Ind. Admin. Code 2.2-3. APNs and physician 

assistants can and do prescribe opioids, subject to essentially 

the same regulations as physicians. See 848 Ind. Admin. Code 

5-4-5; 844 Ind. Admin. Code 2.2-3; 844 Ind. Admin. Code 5-6-

6. And just for context, it is worth recalling that the Centers 

for Disease Control and Prevention report that since 1999, 

nearly 841,000 people have died from drug overdoses. See 

CDC, The Drug Overdose Epidemic (updated Mar. 15, 2021), 

https://www.cdc.gov/opioids/data/index.html. Nothing remotely resembling that level of danger exists for any kind of 

abortion. 

The State argues that the physician-only requirement 

ensures that patients are appropriately screened for 

contraindications for medication abortion, most notably

ectopic pregnancies. See Mot. for Stay at 35. But that concern 

is resolved by the FDA’s unchallenged labeling instructions, 

which specifically state that only providers who can diagnose 

ectopic pregnancies may prescribe the drugs. In Indiana, as 

the district court explained, “APCs are fully qualified to 

screen for the contraindications of medication abortion.” 

Rokita, 2021 WL 3508211, at *43. In fact, Indiana’s APCs are 

licensed to review and interpret ultrasounds for abortion 

patients and others—that is, to screen for ectopic pregnancies 

and similar contraindications. Id.

As I noted before, medication abortion is administered 

through a combination of mifepristone and misoprostol. The 

district court found that this exact combination of drugs is 

also considered the most effective medical treatment for miscarriage management, and that this regimen involves
Nos. 21-2480 & 21-2573 19 

precisely the same (exceedingly rare) risks when used to provide a medication abortion. Id. at *7. In Indiana, advance practice clinicians can and do provide both mifepristone and 

misoprostol for miscarriage management, at the same time as 

the State purports to be too worried about their competence 

to permit them to prescribe the same medication for abortion. 

Id. at *25–27. 

Misopristol is also commonly used to induce labor in a 

term pregnancy or to “open the cervix before any procedure 

that’s done inside the uterus, including endometrial biopsy, 

hysteroscopy, placement of an IUD.” Phase 1 Tr. Vol. II, 67:5-

12. In Indiana, APCs routinely provide these same procedures, including IUD insertions, which can risk perforation of 

the uterus. Rokita, 2021 WL 3508211, at *26. 

Finally, there is childbirth. In Indiana, certified nurse midwifes are authorized to perform vaginal deliveries, including 

related care such as suturing torn vaginal tissue. Id. And 

childbirth is significantly more dangerous than abortion. As 

many as 10% of women who give birth are hospitalized for 

complications associated with pregnancy (not counting their 

hospitalization for delivery alone). See R. 234-1 at 151. Nationwide, the maternal mortality risks associated with live birth 

are 14 times higher than induced abortion. Id. 

B. Telemedicine Ban, In-Person Counseling Requirements, and In-Person Examination Requirements

Indiana’s Telemedicine Ban bars providers from using telemedicine to provide “an abortion inducing drug.” Ind. Code 

§ 25-1-9.5-8(a)(4). Indiana also requires that a physician “examine a pregnant woman in person” before prescribing medication abortion, and that all mandatory pre-abortion 
20 Nos. 21-2480 & 21-2573 

“counseling” be provided “in the presence” of the patient. 

Ind. Code § 16-34-2-1.1(a) (emphasis added). 

Abortion providers must furnish this counseling to the patient at least 18 hours in advance of an abortion. They are required to furnish information that the district court found was 

misleading, intended only to deter the choice of an abortion. 

Among other requirements, providers must provide a copy of 

the State’s “Informed Consent Brochure” and, if a fetal anomaly has been identified, a copy of the State’s “Prenatal Hospice 

Brochure.” Ind. Code § 16-34-2-1.1(a)(4),(b). Although these 

brochures are easily available online, they must be provided 

in person rather than by telemedicine. Because plaintiffs must 

visit an abortion clinic to get mifepristone in the first place, 

and because there are no abortion clinics in 96% of Indiana 

counties, people who need abortions are effectively required 

to travel to an abortion clinic and stay in another county overnight. As the district court found, the law forces low-wage 

workers with no paid time off and no control over their work 

schedules to put their jobs and wages at risk to seek an abortion in Indiana. 

The district court credited the testimony of an expert who 

testified that “the process for obtaining informed consent via 

telemedicine is ‘identical’ to the process of obtaining informed consent in person, that no aspect of the process differs 

when telemedicine is utilized” and that no part of the counseling or informed consent process requires in-person interaction. Rokita, 2021 WL 3508211, at *20. Moreover, the plaintiffs’ expert co-authored a peer-reviewed study finding that 

abortion patients in other states found telemedicine to be effective. Studies also showed high levels of satisfaction with 

telemedicine by the providers. Id. at *21. Finally, the district 
Nos. 21-2480 & 21-2573 21 

court credited the testimony indicating that screening for 

other sensitive issues, such as domestic violence, was not impeded by the telemedicine format. Id.

Nonetheless, Indiana bars doctors from using telemedicine to prescribe an abortion-inducing drug. The FDA requires patients seeking medication abortion physically to visit 

an abortion clinic or hospital: mifepristone may not be dispensed at a pharmacy or mailed. Plaintiffs have not attacked 

that rule. In other states, compliance is achieved by using a 

“site-to-site” form of telemedicine, where a patient visits an 

abortion clinic but meets through remote technology with a 

provider who is not physically present at the same clinic. 

Rokita, 2021 WL 3508211, at *15. Providers use direct, face-toface communication to discuss medication abortion, obtain 

informed consent, and prescribe the pills, which are then provided person-to-person by staff members at the clinic. Id. In 

Indiana, Planned Parenthood uses this model for other reproductive care, such as birth control. Id. As the district court 

noted, providers can review a patient’s ultrasounds, review 

medical histories, and use videoconferencing to determine 

whether medication abortion is appropriate for any patients.

The district court found that “there was no significant difference in the rate of adverse events between [abortion] patients who received telemedicine care compared to those who 

received in-person services.” Id. It rested this conclusion on 

expert testimony, a peer-reviewed study of 20,000 abortion 

patients in other states, a systemic review of research on telemedicine generally, and expert organizations like ACOG’s 

strong support for telemedicine as a safe and effective way to 

provide medication abortion. 
22 Nos. 21-2480 & 21-2573 

In summary, the record revealed almost nothing on the 

benefit side of the balance for the in-person requirement. The 

burdens, in contrast, are considerable: prolonged unwanted 

pregnancies, increased health risks, exposure to violent partners who may discover their pregnancies, potentially catastrophic financial hardship for working-class patients who 

lose much-needed wages or even their jobs, and perhaps most 

importantly, the risk of pushing people past the window for 

a medication abortion.

C. Second-Trimester Hospitalization Requirement

Last, it is worth looking at the court’s evaluation of 

Indiana’s “Second Trimester Hospitalization Requirement,” 

which provides that “after the first trimester of pregnancy,” 

abortions may be “performed [only] in a hospital or 

ambulatory outpatients surgical center.” Ind. Code § 16-34-2-

1(2). Indiana already criminalizes abortion after “the earlier of 

viability of the fetus or twenty (20) weeks of postfertilization 

age,” Ind. Code § 16-34-2-1(a)(2), except where required to 

protect the life or physical health of the mother, id. (a)(3). 

Twenty weeks post-fertilization translates to 22 weeks after a 

woman’s last menstrual period (colloquially known as 22 

weeks of pregnancy). Thus, the Second Trimester 

Hospitalization Requirement applies only to a subset of 

second-trimester abortions, as the second trimester lasts 

through the 26th week of pregnancy and this suit does not 

challenge the 20-week line.

Abortions can be provided using aspiration up to 16 

weeks after a patient’s last menstrual period, but 90% of 

second-trimester abortions are performed with D&Es. Rokita, 

2021 WL 3508211, at *29. The district court found that 

“second-trimester D&E abortions in places outside of Indiana 
Nos. 21-2480 & 21-2573 23 

can be and are safely performed in out-patient, office-based 

settings.” Id. Unrebutted testimony presented to the district 

court explained that today’s D&Es do not require a sterile 

operating room, because they do not require any incisions 

into sterile tissue or general anesthesia. Thus, abortion 

patients do not benefit from additional regulation of hospitals 

when “the primary purpose of such requirements is to ensure 

the sterility of operating rooms.” Id. Ambulatory surgical 

centers are no more equipped than out-patient medical clinics 

to treat the potential—and exceedingly rare—complications 

of a D&E abortion. In such a rare case, both an outpatient 

clinic and ASC would transfer a patient to the nearest

hospital. Id. at *30. This is confirmed by unrefuted peerreviewed research and expert testimony finding that secondterm abortions are safely and routinely performed in 

outpatient settings in other states. Once again, miscarriages 

offer a revealing comparison: providers can and do provide 

D&Es for miscarriage management at office-based settings. 

Based on this record, the district court found that the benefits of Indiana’s law are illusory, while its burdens are very 

tangible. It created an extensive record supporting these findings. Most importantly, it operated within the room that earlier Supreme Court and Seventh Circuit decisions gave it. 

Facts matter. Although the court upheld most of the provisions of the Indiana law that the plaintiffs challenged, it found 

that the provisions I have discussed impose an undue burden 

on the set of women for whom the law makes a difference—

Indiana women of limited means who cannot leave their jobs, 

pay for extensive travel, obtain access to cars, and potentially 

go out of state, simply to obtain a lawful abortion. I would 

find, for purposes of the pending stay motion, that these findings are sufficiently well supported to undermine the State’s 
24 Nos. 21-2480 & 21-2573 

likelihood of success on the merits, and that the State failed to 

carry its burden with respect to the remaining criteria for a 

stay.

I therefore respectfully dissent from the decision to order 

a stay of the court’s injunction.