In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2107

A WOMAN’S CHOICE–EAST SIDE WOMEN’S CLINIC, et al.,

Plaintiffs-Appellees,

v.

SCOTT C. NEWMAN, Prosecuting Attorney for Marion

County Indiana, on behalf of a class of prosecutors, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. IP 95-C-1148-C-H/G—David F. Hamilton, Judge.

____________

ARGUED FEBRUARY 19, 2002—DECIDED SEPTEMBER 16, 2002

____________

Before COFFEY, EASTERBROOK, and DIANE P. WOOD,

Circuit Judges.

EASTERBROOK, Circuit Judge. In 1995 Indiana enacted

a statute making the woman’s informed consent a condition to an abortion. Ind. Code §16-34-2-1.1. Even though

the text of this law is materially identical to one held constitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881-87 (1992), a federal

district court issued a preliminary injunction preventing

the statute from taking effect. A Woman’s Choice–East

Side Women’s Clinic v. Newman, 904 F. Supp. 1434 (S.D.

Ind. 1995). Two years later, the district court modified this
2 No. 01-2107

injunction to permit the state to enforce most of the law,

but it blocked enforcement of the requirement that information be provided “in the presence of the pregnant woman, [by] the physician who is to perform the abortion, the

referring physician or a physician assistant” (§16-34-2-

1.1(1)). See 980 F. Supp. 962 (1997). After four more

years had passed, the judge held a trial and made permanent the injunction as modified in 1997. 132 F. Supp. 2d

1150 (2001).

By requiring information to be supplied “in the presence

of the pregnant woman”—rather than by printed brochure,

telephone, or web site—the statute obliges the woman to

make two trips to the clinic or hospital. This raises the cost

(both financial and mental) of an abortion. On the basis

of studies concerning similar laws in Mississippi and

Utah, the district court concluded that the higher cost

will reduce by 10% to 13% the number of abortions performed in Indiana. Some of these women will travel to

states that do not require two trips; others will forego

an abortion; some who do have an abortion in Indiana

will delay that procedure until the second trimester. These

consequences show that the law creates an “undue burden”

on abortion, the district judge held. Although by the time

the district judge entered the permanent injunction we

had concluded that the Mississippi study does not warrant condemnation of Wisconsin’s law (which like Pennsylvania’s requires two trips to the medical facility and

a 24-hour wait), see Karlin v. Foust, 188 F.3d 446, 484-

88 (7th Cir. 1999), the district judge wrote that data from

the Utah study, and a new analysis of the Mississippi

data, require a different result. The judge also thought

that experience in Indiana showing that the demand for

abortion did not decline when information was provided

on paper or over the telephone implies that the reduction

in the number of abortions is attributable to higher cost

(a bad reason) rather than to the statutory information

(a valid reason).
No. 01-2107 3

Indiana’s statute reads as follows:

An abortion shall not be performed except with the

voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed. Except

in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following

conditions are met:

(1) At least eighteen (18) hours before the abortion

and in the presence of the pregnant woman, the

physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice

nurse (as defined in IC 25-23-1-1(b)), or a midwife

(as defined in IC 34-18-2-19) to whom the responsibility has been delegated by the physician who is

to perform the abortion or the referring physician has orally informed the pregnant woman of

the following:

(A) The name of the physician performing the

abortion.

(B) The nature of the proposed procedure or

treatment.

(C) The risks of and alternatives to the procedure or treatment.

(D) The probable gestational age of the fetus,

including an offer to provide:

(i) a picture or drawing of a fetus;

(ii) the dimensions of a fetus; and

(iii) relevant information on the potential

survival of an unborn fetus;

at this stage of development.

(E) The medical risks associated with carrying

the fetus to term.
4 No. 01-2107

† For comparison, we reproduce the substantive portions of the

statute at issue in Casey, 18 Pa. Cons. Stat. §3205:

(continued...)

(2) At least eighteen (18) hours before the abortion,

the pregnant woman will be orally informed of the

following:

(A) That medical assistance benefits may be

available for prenatal care, childbirth, and

neonatal care from the county office of family

and children.

(B) That the father of the unborn fetus is legally required to assist in the support of the

child. In the case of rape, the information

required under this clause may be omitted.

(C) That adoption alternatives are available

and that adoptive parents may legally pay the

costs of prenatal care, childbirth, and neonatal

care.

(3) The pregnant woman certifies in writing, before

the abortion is performed, that the information

required by subdivisions (1) and (2) has been provided.

When the litigation began, plaintiffs challenged not only

the requirement that advice be delivered in person but

also the medical-emergency exception, which they deemed

insufficient because it lacks details found in the Pennsylvania statute. The district court certified the medicalemergency issue to the Supreme Court of Indiana, whose

interpretation, see A Woman’s Choice–East Side Women’s

Clinic v. Newman, 671 N.E.2d 104 (Ind. 1996), satisfied

the district judge. See 980 F. Supp. at 966. Plaintiffs then

dropped this objection, leaving only the advice requirement as a ground of contention.†
No. 01-2107 5

† (...continued)

(a) No abortion shall be performed or induced except with the

voluntary and informed consent of the woman upon whom the

abortion is to be performed or induced. Except in the case of

a medical emergency, consent to an abortion is voluntary and

informed if and only if:

(1) At least 24 hours prior to the abortion, the physician

who is to perform the abortion or the referring physician

has orally informed the woman of:

(i) The nature of the proposed procedure or treatment and of those risks and alternatives to the

procedure or treatment that a reasonable patient

would consider material to the decision of whether or

not to undergo the abortion.

(ii) The probable gestational age of the unborn child

at the time the abortion is to be performed.

(iii) The medical risks associated with carrying her

child to term.

(2) At least 24 hours prior to the abortion, the physician

who is to perform the abortion or the referring physician,

or a qualified physician assistant, health care practitioner, technician or social worker to whom the responsibility has been delegated by either physician, has informed

the pregnant woman that:

(i) The department publishes printed materials

which describe the unborn child and list agencies

which offer alternatives to abortion and that she has

a right to review the printed materials and that a

copy will be provided to her free of charge if she

chooses to review it.

(ii) Medical assistance benefits may be available for

prenatal care, childbirth and neonatal care, and that

more detailed information on the availability of such

assistance is contained in the printed materials

published by the department.

(continued...)
6 No. 01-2107

† (...continued)

(iii) The father of the unborn child is liable to assist

in the support of her child, even in instances where

he has offered to pay for the abortion. In the case of

rape, this information may be omitted.

(3) A copy of the printed materials has been provided to

the pregnant woman if she chooses to view these materials.

(4) The pregnant woman certifies in writing, prior to the

abortion, that the information required to be provided

under paragraphs (1), (2) and (3) has been provided.

(b) Where a medical emergency compels the performance of

an abortion, the physician shall inform the woman, prior to

the abortion if possible, of the medical indications supporting

his judgment that an abortion is necessary to avert her death

or to avert substantial and irreversible impairment of major

bodily function.

(c) . . . No physician shall be guilty of violating this section for

failure to furnish the information required by subsection (a)

if he or she can demonstrate, by a preponderance of the

evidence, that he or she reasonably believed that furnishing

the information would have resulted in a severely adverse

effect on the physical or mental health of the patient.

Pennsylvania thus requires essentially the same advice as

Indiana, provided “orally” by the physician, 24 hours before the

abortion. It is more restrictive than Indiana’s law in two ways:

Pennsylvania requires a 24-hour waiting period versus 18 in

Indiana, and it requires the physician to deliver the information

while Indiana allows a range of medical personnel. The defense in

subsection (c) of the Pennsylvania statute has no direct parallel in

Indiana’s law, but the Supreme Court of Indiana has read the

“medical emergency” proviso in Indiana’s law to achieve the same

basic effect. See A Woman’s Choice–East Side Women’s Clinic v.

Newman, 671 N.E.2d 104 (Ind. 1996). Neither side contends that

any remaining difference between the statutes is material.
No. 01-2107 7

Indiana makes much of the fact that its statute has

never been allowed to operate as written. It relies on

United States v. Salerno, 481 U.S. 739, 745 (1987), for the

proposition that, except in first amendment cases, a law

may be held unconstitutional only when “no set of circumstances exists under which the Act would be valid.” Yet

in Stenberg v. Carhart, 530 U.S. 914 (2000), without so

much as a mention of Salerno, the Court held invalid, in a

pre-enforcement challenge, an abortion statute that

might have been construed by the state courts to have

at least some proper applications. This leaves us with

irreconcilable directives from the Supreme Court. The

Justices have insisted that courts lower in the hierarchy

apply their precedents unless overruled, even if they seem

incompatible with more recent decisions. See, e.g., State

Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989). When the Justices themselves disregard rather

than overrule a decision—as the majority did in Stenberg,

and the plurality did in Casey—they put courts of appeals in a pickle. We cannot follow Salerno without departing from the approach taken in both Stenberg and

Casey; yet we cannot disregard Salerno without departing

from the principle that only an express overruling relieves

an inferior court of the duty to follow decisions on the

books. See also, e.g., Scheiber v. Dolby Laboratories, Inc.,

293 F.3d 1014 (7th Cir. 2002) (following Brulotte v. Thys

Co., 379 U.S. 29 (1964), even though it is incompatible with

the rationale of more recent decisions). Troxel v. Greenville,

530 U.S. 57, 85 n.6 (2000), offers us a way out by calling

the language in Salerno a “suggestion,” an approach not

essential to Salerno’s judgment. Given the incompatibility

between Salerno’s language and Stenberg’s holding, it is the

language of Salerno that must give way.

Still, to say that a claim is justiciable does not mean that

we must ignore the fact that enforcement has not com-
8 No. 01-2107

menced. Plaintiffs rely on predictions about what is likely

to happen if Indiana’s law were enforced as written.

Because Indiana has been disabled from implementing

its law and gathering information about actual effects,

any uncertainty about the inferences based on other

states’ experience and how that experience would carry

over to Indiana must be resolved in Indiana’s favor. This,

coupled with doubts about the role of predictions in constitutional analysis, turns out to be important, for reasons explained presently.

Casey stated, and Karlin reiterated, that an informedconsent statute may have effects that differ from the written terms, and that those effects could in principle demonstrate that an innocuous-appearing law actually imposes

an undue burden on abortion. But neither decision explained how such factual arguments are to be evaluated:

before implementation or after?, using what standards?

Normally a court asked to say that a statute will have

forbidden effects asks only whether a proper outcome is

possible; it does not hold a trial—and, if a district judge

nonetheless takes evidence and makes findings, the appellate court will reexamine matters with a heavy presumption favoring the law’s constitutional application. See,

e.g., Vance v. Bradley, 440 U.S. 93, 111 (1979); National

Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124 (7th Cir.

1995). One may say in response that these cases deal

with rational-basis review, while abortion implicates fundamental rights. But laws that regulate, not abortion itself,

but ancillary issues (such as informed consent), do not

affect fundamental rights unless the ancillary rule creates

an undue burden on the underlying right. How does the

court handle factual disputes that bear on whether an

undue burden has been created? It cannot simply assume that a fundamental right has been burdened; that

begs the question.
No. 01-2107 9

Stenberg shows that the undue-burden standard must

be applied at the level of logic, and to the nation as a

whole, rather than one state at a time. Nebraska forbade

use of “intact dilation and extraction” (D&X), a method

of late-term abortion. Stenberg believed that this ban

would have unacceptable consequences because it would

induce physicians to steer clear of other procedures similar to the D&X. Nebraska’s law therefore was held unconstitutional, as an undue burden on abortion, without the

need for a trial. Meanwhile a trial had been held in Wisconsin, where the district judge found as a fact that the untoward consequences anticipated in Stenberg would not

occur. Planned Parenthood of Wisconsin v. Doyle, 44 F.

Supp. 2d 975 (W.D. Wis. 1999), affirmed under the name

Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc),

remanded, 530 U.S. 1271 (2000), decision on remand, 249

F.3d 603 (2001) (en banc). The Supreme Court vacated

our decision without regard to the district court’s findings; it was of the view (as we likewise had concluded,

195 F.3d at 872-73) that constitutionality must be assessed at the level of legislative fact, rather than adjudicative fact determined by more than 650 district

judges. Only treating the matter as one of legislative fact

produces the nationally uniform approach that Stenberg

demands. This worked against the partial-birth-abortion laws in Stenberg but has worked in favor of other

laws: the Court has held it constitutional to prevent nonphysicians from performing abortions, see Mazurek v.

Armstrong, 520 U.S. 968 (1997), without factual inquiries

into whether other medical professionals could do the job

as safely, and how much prices may be elevated by a

physician-only rule.

Findings based on new evidence could produce a new

understanding, and thus a different legal outcome; the

plurality implied this in Casey, as did we in Karlin. But

if the issue is one of legislative rather than adjudicative
10 No. 01-2107

fact, it is unsound to say that, on records very similar in

nature, Wisconsin’s law could be valid (as we held in

Karlin) and Indiana’s law invalid, just because different

district judges reached different conclusions about the

inferences to be drawn from the same body of statistical work. Because the Supreme Court has not made this

point explicit, however, and because the undue-burden

approach does not prescribe a choice between the legislative-fact and adjudicative-fact approaches, we think

it appropriate to review the evidence in this record and

the inferences that properly may be drawn at the preenforcement stage.

The district court found that the two-visit requirement

in Mississippi and Utah reduced the number of abortions performed in those states by about 10% compared

with neighboring states that do not require multiple visits.

The judge also found that the number of abortions performed in Indiana has not declined because of the advice given to women under Ind. Code §16-34-2-1.1, though

not necessarily in person (because that aspect of the statute has been enjoined). Indiana asks us to set aside

these findings, but review under Fed. R. Civ. P. 52(a) is

highly deferential, see Anderson v. Bessemer City, 470

U.S. 564 (1985), and we cannot say that the district

court’s findings are clearly erroneous. The studies’ conclusions were hotly debated on both medical and statistical grounds, but the district judge dealt responsibly with

these arguments pro and con, and his findings cannot

be upset. But what happened in Mississippi and Utah, a

question of historical fact on which appellate review is

deferential, does not necessarily ordain what will happen

in Indiana—or whether what is likely to happen in Indiana amounts to an “undue burden.” That admixture of

fact and law, sometimes called an issue of “constitutional

fact,” is reviewed without deference in order to prevent the

idiosyncrasies of a single judge or jury from having far-
No. 01-2107 11

reaching legal effects. Only the findings of historical

fact are sheltered by Rule 52(a). Thus our consideration of the studies’ significance is not deferential. See

Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532

U.S. 424 (2001) (constitutionality of punitive damages is

reviewed de novo); Ornelas v. United States, 517 U.S. 690

(1996) (probable cause for a search or seizure is reviewed de novo in the absence of a warrant); Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485,

499 (1984) (factual disputes that determine constitutionality under the first amendment are reviewed de novo). Cf.

Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002)

(without discussing the standard of review, all nine Justices freely substitute their judgment for that of the district and appellate judges on the significance of an empirical study in a constitutional suit). See also Henry P.

Monaghan, Constitutional Fact Review, 85 Colum. L. Rev.

229 (1985).

By concluding that the empirical work had been carried

out competently, the district judge established (for purposes of this litigation) that abortions dropped in Mississippi, compared to those in South Carolina, during the

year after Mississippi enacted a statute requiring two

visits. The authors of this study (and its replication in

Utah) did not ask how Mississippi compares with Indiana.

The study does not include a regression based on the

sorts of variables, such as urbanization, income, average

distance to an abortion clinic, average price of abortion,

and so on, that might enable conclusions drawn from

Mississippi to be extrapolated with confidence to other

states. That is one reason why we held in Karlin that

the Mississippi study was a poor basis for predicting

what would happen in Wisconsin, which we thought

more similar to Pennsylvania than to Mississippi. 188 F.3d

at 485-86.
12 No. 01-2107

That shortcoming could have been fixed in one of two

ways. First, the authors could have conducted a more

comprehensive study, with additional variables and regression coefficients that would reveal their effects. That

was not done. Second, the authors (or other scholars)

could have gathered data from other states to test whether (and, if so, how) state-specific characteristics affect the

results. That was not done either. What has happened in

Pennsylvania, Wisconsin, and the other states whose informed-consent laws require two visits? Did Mississippi

prove to be a better predictor of Wisconsin than Karlin

anticipated, or was the outcome in Wisconsin dissimilar?

This record is silent on these matters. Mississippi and

Utah, two states with a history of hostility to abortion

and very few abortion providers (implying long travel

times), may be poor models for other states. Indianapolis has multiple abortion clinics; another in Fort Wayne

serves the northeastern portion of the state; women in

the northwest and southeast can use not only local providers but also those just across the state lines in Chicago

and Louisville. So just as in Karlin the application of

the Mississippi data (and now Utah’s data) to a different

state would be a leap of faith. Here is where the preenforcement nature of this suit matters.

Plaintiffs did try to deal with another problem identified

in Karlin: that the original Mississippi study did not try

to separate the raw costs of a two-visit requirement from

the effects of the information that was provided during

the first visit. 188 F.3d at 486-88. The Supreme Court’s first

two encounters with informed-consent statutes treated

these laws as meddling in the physician-patient relation

with no valid purpose, and no effect other than to heap

pointless costs on women. See Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416, 442-49 (1983);

Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747, 759-65 (1986). Casey over-
No. 01-2107 13

ruled both of these decisions and held that states may

try to persuade women not to abort their pregnancies.

Maybe all the Mississippi study reveals is successful

persuasion, we observed in Karlin. In this case the plaintiffs tried to separate the effect of information from

the effect of making two visits. Since 1997 Indiana has

been able to enforce the portion of its informed-consent

statute requiring the provision of certain information to

women who inquire about abortions. Yet the number

of abortions has not declined. This shows, the district

judge wrote, that the law lacks persuasive effect; and if

a decline in abortions cannot be attributed to persuasion,

then the cause must lie in some other and impermissible

feature of the law.

Yet this assumes what is to be proven: that Indiana is

like Mississippi and Utah, so that the number of abortions would decline 10% or more if the law were enforced

as written. Maybe what Indiana’s experience since 1997

shows is that Indiana differs from Mississippi and Utah

and will not experience a substantial decline, with or

without multiple visits. Or maybe what it shows is that

presenting the information in person is critical to its

persuasive effect. Our education system rests on the premise that information delivered orally, with an opportunity for give-and-take, “takes” better than information

delivered exclusively in writing. Otherwise a university

would simply mail a syllabus to the freshman class and

ask the students to appear four years later for exams. So

the fact that advice delivered in writing or over the

phone is uninfluential need not imply that advice delivered

in person will be uninfluential. Once again the fact that

Indiana has been blocked from enforcing its law as written means that the record does not contain evidence needed

for accurate assessment of that statute’s effects.

Then there is an open question what the 10% reduction

reflects. Let us suppose that abortions would decline 10%
14 No. 01-2107

in Indiana if that state’s law were fully enforced. What

would the decline signify? One possibility is that many

women who strongly want an abortion have been blocked

by the cost (in money and time) of multiple visits to the

clinic, or because the more times the woman must be absent the greater is the likelihood that an abusive parent,

spouse, or partner would discover what the woman has

planned and intervene notwithstanding the availability

of the emergency bypass, which the Supreme Court of

Indiana held to encompass any kind of threat to the

woman’s health or safety. See 671 N.E.2d at 108-09. Another possibility is that about 10% of all women who

have abortions are on the fence between ending the pregnancy and carrying the pregnancy to term, so that even

a modest cost tips the scales. If the former, then a twovisit rule might be deemed an undue burden; if the

latter, the two-visit rule would not be an undue burden, for

only a law that “has the purpose or effect of placing

a substantial obstacle in the path of a woman seeking

an abortion of a nonviable fetus” (Stenberg, 530 U.S. at

921; emphasis added; quoting from the plurality opinion

in Casey) is an “undue” burden. This record does not permit (and the district judge did not make) an inference

either way about the reason for the decline in Mississippi and Utah. Perhaps this shortcoming could be rectified by studying the effects of changes in out-of-pocket

outlays or travel time as prices change, or clinics open,

close, or move locations, but the studies in this record

do not address the question.

Since 1992, when the plurality in Casey announced the

“undue burden” standard, only two kinds of statute

have flunked the test: a law forbidding the “intact dilation and extraction” (D&X) method of abortion (the subject of Stenberg) and a law requiring a woman to notify

her husband before obtaining an abortion (discussed in

Casey itself). Because the language used to describe the
No. 01-2107 15

D&X also could be understood to prohibit other procedures that were common (and perhaps essential) to lateterm abortions, Stenberg concluded that the law would

forbid abortions altogether for substantial numbers of

women. The notification statute did not forbid abortions,

but the Court feared that it would come to the same

thing for those women whose husbands are likely to

respond violently to the notice (if not to any contact from

an estranged spouse). The plurality explained:

The spousal notification requirement is thus likely

to prevent a significant number of women from

obtaining an abortion. It does not merely make

abortions a little more difficult or expensive to

obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the

fact that the significant number of women who fear

for their safety and the safety of their children are

likely to be deterred from procuring an abortion

as surely as if the Commonwealth had outlawed

abortion in all cases.

505 U.S. at 893-94. This record does not suggest that

any woman in Indiana faces an obstacle of that magnitude in visiting a clinic twice. As we have stressed, Indiana’s law has an emergency-bypass clause that has been

authoritatively interpreted to cover any kind of physical

or psychological risk to the woman. 671 N.E.2d at 108-09.

Plaintiffs do not contend that this interpretation falls

short of what Stenberg and Casey require for emergencybypass opportunities. It is accordingly difficult to see how

the sort of outcome that doomed the spousal-notification

rule could condemn Indiana’s statute.

This is not to say that a two-visit requirement could not

create a burden comparable to a spousal-notice requirement. Quoting the district court, Casey’s plurality assumed

that “for those women who have the fewest financial re-
16 No. 01-2107

sources, those who must travel long distances, and

those who have difficulty explaining their whereabouts

to husbands, employers, or others, the 24-hour waiting

period will be ‘particularly burdensome.’ ” 505 U.S. at 886.

But it held these considerations insufficient to condemn

the Pennsylvania statute. All that the record in the current case shows is that these costs are positive and have

some effect—something that the plurality in Casey assumed. Likewise in Mazurek the Court assumed that a

statute preventing nurses and other skilled medical personnel whose training falls short of the M.D. from performing abortions would increase the expense (and thus, by

the Law of Demand, reduce the number) of abortions;

this again was held insufficient to show invalidity even

on the assumption that one legislative purpose was to

curtail abortion.

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 experience the same effect and the reason why the effect occurs.

This is not the sort of evidence that permits an inferior

federal court to depart from the holding of Casey that

an informed-consent law is valid even when compliance

entails two visits to the medical provider. If Indiana’s

emergency-bypass procedure fails to protect Indiana’s

women from risks of physical or mental harm, it will be

a failure in operation; it is not possible to predict failure

before the whole statute goes into force.

Justice Souter reached a similar conclusion when denying a request to set aside a post-Casey decision enforcing Pennsylvania’s statute. See Planned Parenthood of

Southeastern Pennsylvania v. Casey, 510 U.S. 1309 (1994)

(in chambers). Like the third circuit, whose decision, 14
No. 01-2107 17

F.3d 848 (1994), he declined to disturb, Justice Souter

concluded that Casey itself had resolved the facial challenge to Pennsylvania’s law. What remained was a challenge to the law in application, on a record showing how

that law actually operated in Pennsylvania. 510 U.S. at

1311 & n.3. Just so in Indiana. For reasons we have given,

what transpired in Mississippi need not portend what

will happen in Indiana.

What is more, it would be incongruous to hold Indiana’s

informed-consent law invalid on the basis of studies

covering Mississippi and Utah that (to the district judge’s

eyes) imply the un-constitutionality of the Mississippi

and Utah statutes, while the laws continued to be implemented in Mississippi and Utah. Relying on Casey, the fifth

circuit has allowed Mississippi to enforce its statute, see

Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992), and Utah’s

statute likewise has been sustained. See Utah Women’s

Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1487, 1494 (D.

Utah 1994), appeal dismissed in pertinent part for lack

of jurisdiction, 75 F.3d 564 (10th Cir. 1995). No one

has asked these courts to hold the Mississippi or Utah

statute invalid on the basis of the local experience; and

if these laws remain enforceable despite the consequences demonstrated in this record, it is difficult to see

why Indiana’s law should be unenforceable even though

it is unclear whether similar effects would occur there.

Indiana is entitled to an opportunity to have its law

evaluated in light of experience in Indiana. And in the

event the sort of effects that could make the burden

undue—such as women deterred by the threat or actuality of violence at the hands of those tipped off by a preliminary visit—come to light in Indiana, then it will be

informed-consent laws nationwide that must be reevaluated.

For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid
18 No. 01-2107

by the Supreme Court in Casey, by this court in Karlin, and

by the fifth circuit in Barnes. No court anywhere in the

country (other than one district judge in Indiana) has held

any similar law invalid in the years since Casey. Although

Salerno does not foreclose all pre-enforcement challenges

to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while

the effects of the law (and reasons for those effects) are

open to debate. What happened in Mississippi and Utah

does not imply that the effects in Indiana are bound to be

unconstitutional, so Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that

law judged by its own consequences.

REVERSED

COFFEY, Circuit Judge, concurring.

I.

This case once again requires me to review the constitutionality of informed consent legislation in the context

of the abortion industry. Seventeen years ago, I stated

that a 24-hour waiting period enacted by the Illinois

General Assembly was a reasonable and lawful means of

ensuring that a woman has “at least a brief time to discuss

and consider” the numerous moral, social, economical, practical, psychological, and medical factors “involved in reaching a mature, well-informed decision of whether or not

to abort the pregnancy.” Zbaraz v. Hartigan, 763 F.2d

1532, 1552 (7th Cir. 1985) (Coffey, J., dissenting). Similarly,

I concluded three years later in another case from Illinois that the state is empowered to promote childbirth
No. 01-2107 19

and discourage abortion on demand by requiring abortionists to advise women about the reasonable alternatives

to abortion, just as the state may require physicians to

notify their patients about the risks and alternatives to

many other invasive medical procedures. See Ragsdale v.

Turnock, 841 F.2d 1358, 1396-97 (7th Cir. 1988) (Coffey, J.,

dissenting). Accordingly, for more than a decade, there

has been authority for the view that a state legislature

may require abortion clinics to provide expectant mothers

“with a description of the procedure to be performed, an

explanation of risks and possible complications, and a

discussion of alternatives so that the woman can make

a responsible enlightened choice” prior to terminating

the life of her pre-born child. Id. at 1397.

In today’s opinion, the majority of this panel embraces

the dissenting opinions in Zbaraz and Ragsdale, rejects

the abortion clinics’ facial challenge, and allows the state

of Indiana to enforce its informed consent statute. Although the dissent criticizes the majority for reversing the

district court and “find[ing] flaws with the evidence on

which the court based its factual findings”—findings which

Judge Wood believes “should stand” regardless of “[w]hether this court is looking at the record de novo, under an

abuse of discretion standard, or merely for clear error,” post

at 52, 60—I take issue with my colleague’s criticism,

for the “undue burden standard” applicable in this case

may be uniformly applied only if appellate courts independently inquire whether the trial judge’s findings of

constitutional fact are firmly supported in the record

and based upon a proper application of the law. See, e.g.,

Memphis Planned Parenthood Inc. v. Sundquist, 175 F.3d

456 (6th Cir. 1999); see also Planned Parenthood v. Casey,

505 U.S. 833, 991 n.6 (1992) (Scalia, J., dissenting).

Judge Easterbrook succinctly and forcefully explains

that the trial judge’s conclusion in this case involves a

“leap of faith” that events which may or may not be oc-
20 No. 01-2107

curring in Mississippi and Utah will be replicated in

Indiana. Ante at 12. I add that the trial judge’s factual

findings in this case are based on a faulty study by biased

researchers who operated in a vacuum of speculation.

As even the dissent recognizes, the “key” piece of evidence relied upon by the district court was a study published in the August 27, 1997 Journal of the American

Medical Association (“JAMA”), post at 56, and was coauthored by a statistician employed by the Planned

Parenthood-affiliated Alan Guttmacher Institute. It is

most obvious that the study fails to shed any light on the

question before us today: Will Indiana’s abortion statute

cause a decline in abortion rates in Indiana? The answer

is “no,” for the study is riddled with flaws and biases, one

of the most serious being its failure to account for the

effects that will result from the substantive differences

between the scope of the “medical emergency” exception in

the state of Mississippi’s statute as contrasted with the

state of Indiana’s statute. Thus, it is logically impossible

to draw upon the study of Mississippi’s legislation when

predicting the future effects of Indiana’s legislation.

A.

I initially reject the notion that we must defer to the

JAMA study because, according to the dissenting judge, the

study “meets any conceivable standard for peer-review” and

was published in “one of the most highly respected journals

in the medical field.” Post at 56. A party proffering expert

testimony must always establish that it is reliable and

relevant to an understanding of the issue before the court,

Clark v. Takata Corp., 190 F.3d 750, 759 n.5 (7th Cir.

1999), and JAMA’s peer review policy is no guarantee of

reliability. As one commentator has noted, JAMA may

send a manuscript out to as many as ten reviewers “but

it may actually be reviewed by only three, two, or even one.
No. 01-2107 21

Furthermore, an article may appear in print even if a

majority of JAMA’s reviewers recommends against publication, provided that the editor decides in its favor.” D.

Murray et al., It Ain’t Necessarily So 151 (2001) (emphasis

supplied). Moreover, the test for admissibility is not whether an article has been reviewed, or even well accepted, by

one’s peers. According to the Supreme Court: “Publication

(which is but one element of peer review) is not a sine qua

non of admissibility; it does not necessarily correlate with

reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited

interest to be published. . . . The fact of publication (or lack

thereof) in a peer reviewed journal thus will be a relevant, but not dispositive, consideration in assessing the

scientific validity of a particular technique or methodology

in which an opinion is premised.” Daubert v. Merrell Dow

Pharm. Inc., 509 U.S. 579, 593-94 (1993) (emphasis added).

See also L. Noah, Sanctifying Scientific Peer Review, 59 U.

Pitt. L. Rev. 677, 698 (1998) (“At best . . . editorial peer

review manages to filter out obviously sloppy work.”).

Caution regarding the value of “peer review” as a judicial

gatekeeper is particularly important in the case of an

abortion-related study published in JAMA. George D.

Lundberg, the editor at the time of publication of the

1997 study relied upon by the plaintiffs in this case, has

publicly stated that abortion is “a religious issue” which

should be decided solely by the woman “after consultation

with the father (if possible), members of her family, perhaps

a religious adviser, and the woman’s physician.” G.D.

Lundberg, JAMA, Abortion and Editorial Responsibility,

280 JAMA 740, 740 (Aug. 26, 1998). Lundberg went on to

assert that the abortion decision is “not the business of

police, lawyers, courts, the U.S. Department of Health and

Human Services, the Congress of the United States, various

state legislatures, or anybody else except the individuals
22 No. 01-2107

1 Moreover, it is worth noting that more than one JAMA article

has exhibited hostility towards informed consent legislation in

general. Indeed, a JAMA study published August 14, 2002

concluded that “requiring parental notification for obtaining prescribed contraceptives would impede adolescent girls’ use of contraceptive services and their willingness to seek screening and

treatment for sexually transmitted diseases.” Girls Surveyed on

Sexual-Health Services, Wall St. J., Aug. 14, 2002, at D2. Many

critics declared that the parental notice study had obvious flaws,

for the author inexplicably failed to interview a representative

sample of the teenage population and relied instead only upon

responses from teenagers who were visiting Planned Parenthood

clinics in Wisconsin. According to one critic, the study showed

only that “the types of kids who fool around don’t tell their

parents about it. That’s not surprising.” Kawanza L. Griffin, Girls

Would Shun Sex Health Care, Milw. J. Sentinel, Aug. 14, 2002,

at 1A.

named above.” Id. The executive vice president of the

American Medical Association, an organization which at

one time was considered to be the voice of the vast majority of physicians and surgeons practicing in this nation,

stated that Lundberg was terminated for “inappropriately

and inexcusably interjecting JAMA into a major political

debate that has nothing to do with science or medicine” by

choosing to publish a study on how college students defined

“having sex” in the midst of President Clinton’s impeachment proceedings. See D. Ballingrud, AMA Chief Defends

Editor’s Firing, St. Petersburg (Fla.) Times, Feb. 23, 1999,

at 3B. Relying on these facts, it is apparent that this JAMA

study must be viewed with a jaundiced eye, for it was

written by a statistician and published by an editor who are

outspoken supporters of “abortion on demand,”1 and thus

cannot reasonably be classified as impartial and without

prejudice or bias.
No. 01-2107 23

B.

Moreover, the faulty JAMA article cannot be utilized to

serve as a reliable, trustworthy, and independent basis

for predicting the effects of the Indiana legislation for

the additional reason that neither the article nor anything else in this record accounted for the fact that a

greater number of Indiana women with medical problems

(as compared to similarly situated women in Mississippi)

will avoid the burdens of Indiana’s notice-and-waiting

provisions by qualifying for the state’s “medical emergency”

exception. The trial judge concluded that the number of

Indiana women who will find themselves unable to obtain

abortions as a result of the notice-and-waiting provisions

will be equivalent to the number of women in Mississippi

who supposedly are foreclosed from having an abortion—

approximately 10 percent of the relevant population. See

132 F. Supp. 2d at 1175. However, as is evident from even

a cursory reading of the statute, the exceptions to the

notice-and-waiting requirements are far more broad in

scope and more inclusive in Indiana than they are in

Mississippi. As a result, even after attempting to accept

the trial judge’s notion that properly performed regression analyses have accounted for all other differences

between the female population in Indiana and Mississippi, id. at 1163-71, the breadth of the Indiana exception

will obviously result in a greater number of Indiana women

being excused from the statute’s requirements, and thus a

lesser number of Indiana women will be burdened by

Indiana’s requirements than the requirements in Mississippi.

The Supreme Court of Indiana in its decision broadly

defines the term “medical emergency” as any physical or

mental condition that is more severe and prolonged than

those “lesser and regular conditions normally associated

with pregnancy,” A Woman’s Choice v. Newman, 671 N.E.2d

104, 109 (Ind. 1996), while the Mississippi legislature
24 No. 01-2107

has narrowly defined “medical emergency” as “that condition which, on the basis of the physician’s best clinical

judgment, so complicates a pregnancy as to necessitate an

immediate abortion to avert the death of the mother or for

which a twenty-four-hour delay will create grave peril of

immediate and irreversible loss of major bodily function.”

Miss. Code Ann. § 41-41-31(b). In Indiana, an abortion

clinic may disregard the notice-and-waiting requirements

if “the attending physician, in the exercise of her clinical

judgment in light of all factors relevant to a woman’s life

or health, concludes in good faith that medical complications in her patient’s pregnancy indicate the necessity of

treatment by therapeutic abortion” without delay. Newman,

supra at 111. On the other hand, in Mississippi at the

time of the 1997 JAMA study, an abortion clinic was allowed to waive the notice-and-waiting requirement only

in “medical emergencies to avoid the death of the woman

or prevent peril of immediate or irreversible loss of major

bodily functions.” Pro-Choice Miss. v. Fordice, 716 So. 2d

645, 656 (Miss. 1998). See also Utah Women’s Clinic Inc. v.

Leavitt, 844 F. Supp. 1482, 1491-93 (D. Utah 1994) (similarly interpreting Utah Code Ann. § 76-7-301(2)). Cf.

Stenberg v. Carhart, 530 U.S. 914, 938 (2000).

As we have pointed out above, because the statutory

exception is much more expansive in Indiana than Mississippi, a greater number of Indiana women will be exempt

from the limitation of their statute than similarly situated

women in Mississippi, and thus I cannot agree that evidence of a 10 percent reduction in Mississippi’s abortion

rate predicts that a similar reduction is on the horizon in

Indiana.

I cannot understand the dissent’s attempt to enlarge the

scope of Indiana’s medical emergency exception by claiming

that “the majority acknowledges [that] Indiana’s law has

been construed to have an emergency by-pass provision that

covers any kind of physical or psychological risk to the
No. 01-2107 25

woman from any of its provisions, including presumably

the ‘presence’ requirement.” Post at 47, n.2. In doing this, the

dissent has mischaracterized the majority opinion as well

as the Indiana Supreme Court’s construction of the statute

before us. We in the majority, when stating that Indiana’s

emergency bypass has been “held to encompass any kind

of threat to the woman’s health or safety,” ante at 14, are

referring to the Indiana Supreme Court’s statement

that the “medical emergency exception excuses a woman

from the informed consent requirement when there is a

significant threat to her life or health, physical and mental”

but that “severe-but-temporary conditions in which an

abortion is not the medically necessary treatment are not

covered by the exception.” Newman, 671 N.E.2d at 111.

“Federal courts must interpret a state statute as that state’s

courts would construe it.” Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998).

In light of Newman’s interpretation of the emergency

bypass provision, I disagree with the dissent’s misinterpretation of the legislature’s intent wherein it asserts that

the bypass shall apply in situations when the alleged

emergency determination is triggered by simple compliance with the 18-hour notice-and-waiting provisions,

which will in turn expose the woman to either: (1) a temporarily greater risk of harm from an abusive parent, spouse,

or partner; or (2) a temporary period of emotional distress,

mental anguish, or trauma. See Newman, supra at 108-11.

Furthermore, even if I were to ignore the decision of the

Indiana Supreme Court and the many methodological

flaws within the JAMA study, it is evident that the

very language of the study disproves the theory that the

effects of Indiana’s abortion law will be the same as Mississippi’s, for the study’s authors admit on the final page of

their study that the burdensome effects of abortion legislation “may be greater in states that have relatively fewer

abortion providers” (Mississippi) than in other states

(Indiana). According to the authors:
26 No. 01-2107

2 The record establishes that in 1992 there were 19 abortion

providers in Indiana, or 1.44 providers per 100,000 women aged

15 to 44 years. (Ex. 221).

3 The demographics of Utah also are quite different from Indiana’s. More than 95 percent of Utah’s abortions are performed

in Salt Lake City. Only two abortion providers are located outside

of Salt Lake City, and nearly all women living outside of the Salt

Lake City area live more than 100 miles from an abortion clinic.

(Tr. 70-72).

The availability of abortion providers is also important to consider. The effect of mandatory delay statutes necessitating 2 visits to a provider may be greater in states that have relatively few abortion providers.

In Mississippi, there were only 8 abortion providers

in the entire state in 1992 or 1.3 providers per 100,000

women aged 15 to 44 years. . . . [T]he large decline in

abortion rates we observed in Mississippi may not occur in states with greater availability of abortion providers both within the state and among neighboring

states.

(Ex. 224 at 658.) The undisputed evidence in this record

establishes that: (1) Indiana has eleven more abortion

clinics than Mississippi; (2) Indiana women have much

easier access to clinics in nearby states than Mississippi

women; and (3) Indiana women, on average, live closer

to abortion clinics than Mississippi women.2

 More than

99 percent of Indiana women—but only 85 percent of

Mississippi women—live within 100 miles of an abortion

clinic.3

 (Tr. 67-72). Thus, even if we were to accept the

JAMA study at face value, we would be forced to accept the

fact that Indiana’s law will be far less burdensome than

Mississippi’s.

Providing neither support nor an analysis for his ruling,

the district judge found that “the Mississippi results did
No. 01-2107 27

4 Mississippi, for example, consistently ranks among the lowest

states in the nation in terms of government funding for public

schools (48th in 2000). As a result of this lack of funding, products

of these schools obviously cannot be as well prepared as their

sisters in Indiana to throughly understand and operate the type

of electronic maze of telephonic options (as the district court

suggests), particularly when the decision is joined with the life

or death decision.

not correlate at all with distance or geography” and then

somehow concluded that the effects of Indiana’s statute

“are likely to be equivalent to the effects of the similar

law in Mississippi.” 132 F. Supp. 2d at 1175. The trial

judge’s finding is beyond the realm of reasonable speculation and may best be classified as unworthy of credence.

Comparing Indiana to Mississippi is like comparing a

turnip to a loaf of bread. As the majority observes, neither

the Mississippi study nor any other evidence cited by the

plaintiffs establishes that the population and demographics

of Mississippi and Indiana are similar in terms of “urbanization, income, average distance from an abortion clinic,

[or the] average price of abortion.” Ante at 11. Nor is there

evidence of similarity between Mississippi and Indiana in

terms of their availability of social support services, attitudes towards abortion, respective success with adoption

and abortion alternative programs, or countless other

factors that might allow us to equate the two states with

any degree of confidence.4

The dissent spends several pages arguing the proposition that “[o]nly by ignoring key points such as the number of women” in Mississippi “who willingly undertook

the burden of seeking an abortion out-of-state, where

they could have the entire procedure accomplished in one

visit, rather than staying in-state and enduring the twovisit burden, can the majority come to the result it does.”

Post at 61. The dissenting judge ignores the key fact
28 No. 01-2107

that nothing in this record answers the critical question

of why some Mississippi women left the state to abort

their pregnancy. A woman might very well think twice

about her momentous decision if she believed that her

identity were to become known within her local community. On the other hand, we are cognizant of the fact that

even a small increase in the cost might dissuade an already vacillating woman living near the poverty level.

Since nothing in this record distinguishes “between those

incidental effects [e.g., slightly increased cost or time

delay] of the statute which make the right to choose

more inconvenient or costly and those direct effects which

actually prevent women from obtaining an abortion,”

Eubanks v. Schmidt, 126 F. Supp. 2d 451, 457 (W.D. Ky.

2000), it is impossible to know whether “the waiting period, as opposed to some other factor or factors, caused the

negative abortion trend in Mississippi.” Karlin v. Foust,

188 F.3d 446, 488 (7th Cir. 1999). It also is impossible

to come to a well-reasoned and logical conclusion based

on the record before us whether the laws of the state

of Indiana will have a similar impact as Mississippi’s

laws. See id.

For the reasons set forth above, it is apparent that the

district court’s reliance upon the Mississippi data (the

Henshaw study) to predict the effects of materially different legislation in Indiana (notice-and-waiting) piles a

mountain of speculation upon a foundation of quicksand.

I am convinced that the district judge erred when he relied on the biased JAMA study when searching for a way

to enjoin Indiana’s abortion-control statute. See General Elec. Co. v. Joiner, 522 U.S. 136, 144-45 (1997) (expert studies based on data that was “so dissimilar to the

facts presented in this litigation” were irrelevant and

inadmissible); Daubert, 509 U.S. at 591-92 (expert studies

that fail to establish “a valid scientific connection to the

pertinent inquiry” before the court are irrelevant and

inadmissible).
No. 01-2107 29

II.

A.

Even if the plaintiffs had somehow been able to produce

reliable evidence in support of the trial judge’s belief

that Indiana’s abortion rates will decline 10 to 13 percent

as a result of the state’s informed consent laws, Indiana’s

statute would still pass constitutional scrutiny, for a law

enacted that seeks to promote a legitimate state interest will be deemed valid unless, “in a large fraction of the

cases in which the law is relevant, it will operate as a

substantial obstacle to a woman’s choice to undergo abortion.” Casey, 505 U.S. at 895 (emphasis supplied). Accordingly, I write separately to explain my disagreement with

the dissent’s contention that “we would still be required to

enjoin” Indiana’s statute even if it blocked a much smaller

percentage of Indiana women—“ ‘only’ 1%” of the population—from exercising their “right to choose.” Post at 46.

In determining whether Indiana’s notice-and-waiting

provisions are lawful, we must inquire whether women

in Indiana seeking abortions, who are unable to qualify

for any of the numerous exceptions to the law, will bear

added costs and inconveniences from complying with

the notice-and-waiting provision that are so burdensome

that they will have the direct effect of preventing a “large

fraction” of those women from obtaining abortions. See

Casey, 505 U.S. at 894-95; Eubanks, 126 F. Supp. 2d at 456.

I am of the opinion that the dissenting judge misinterprets Casey when she argues that “Casey made it clear”

that “we would still be required to enjoin [Indiana’s statute]

if it affected ‘only’ 1%, the number presumptively affected

by the spousal notification rule in Pennsylvania.” Post at 53,

46. The Casey Court stated that it was enjoining Pennsylvania’s spousal notification law because a “large fraction” or a “significant number” of a subgroup of the one

percent of women who feared complying with the law
30 No. 01-2107

were “likely to be deterred from procuring an abortion”—

not because the law imposed some insubstantial burdens upon one percent of women in the state. Casey, 505

U.S. at 894-95.

According to the Court:

The analysis does not end with the one percent of

women upon whom the statute operates; it begins

there. Legislation is measured for consistency with

the Constitution by its impact on those whose conduct

it affects. . . . 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. . . . Of

course, as we have said [the Pennsylvania statute’s]

real target . . . is married women seeking abortions

who do not wish to notify their husbands of their

intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above

will mean that in a large fraction of the cases in which

[the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.

Id. (emphasis supplied). In other words, Casey held that

Pennsylvania’s law was invalid not because it imposed

additional burdens upon one percent of the state’s women

but rather because it effectively prevented a “large fraction”

of women within that group of one percent of women from

obtaining abortions altogether. See id. at 895.

The Casey plurality did not explain, and thus we refuse

to peer into the dark abyss of speculation in an attempt

to determine at precisely what point a fractional part of

a group becomes an impermissibly “large fraction” and

a statute becomes unduly burdensome. “To the extent I

can discern any meaningful content in the ‘undue burden’

standard as applied in the joint opinion, it appears to
No. 01-2107 31

be that a State may not regulate abortion in such a way

as to reduce significantly its incidence.” Id. at 992 (Scalia,

J., dissenting). However, even assuming in the case

before us that some number of women will be burdened

by the law, it is clear that a law which incidentally prevents “some” women from obtaining abortions passes

constitutional muster. Indeed, Casey upheld a parental

notification law despite the district judge’s undisputed

finding that, in “some” of the 46 percent of cases where

a minor can neither obtain the requisite consent of a parent nor avail herself of the judicial bypass provisions, the

law “may act in such a way as to deprive [the minor] of

her right to have an abortion.” Planned Parenthood v.

Casey, 744 F. Supp. 1323, 1356-57 (E.D. Pa. 1990) (factual

findings 237 and 255). Though the requirement was likely

to prevent “some” minors from exercising their right

to choose, the Court refused to interfere and ruled that

“the one-parent consent requirement and judicial bypass procedure are constitutional.” Casey, 505 U.S. at 899.

The dissenting judge pushes the envelope and expounds

a new theory of law without the citation of case law upholding the premise that a statute is unconstitutional if

it prevents even one percent of the relevant population

from obtaining an abortion, post at 53, and stretches the

notion of substantive due process beyond reasonable limits. Were we to accept the dissent’s argument, we believe

the Supreme Court would have found Pennsylvania’s

parental consent statute to be unduly burdensome. But

the Court chose not to strike down the Pennsylvania

statute, and I believe it defies logic to argue that one

percent of any group is a “large fraction” of that group.

In light of the Justices’ repeated use of words such as

“a significant number of women,” and “many women”; its

estimate that millions of women would be burdened by

a spousal notice law; and the most informative comments

of Justice Stevens and Justice Scalia that restrictions
32 No. 01-2107

5 Although the Casey plurality dismissed the father’s interests

in the life of his unborn child, it is important to note that the four

dissenting Justices were of the opinion that the state “has

legitimate interests both in protecting the interests of the father

and in protecting the potential life of the fetus, and the spousal

notification requirement is reasonably related to advancing those

state interests.” Casey, 505 U.S. at 974 (Rehnquist, C.J., dissenting in relevant part). “By providing that a husband will usually

know of his spouse’s intent to have an abortion, the provision

makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him.” Id.

are impermissible only if they are “severe,” id. at 920,

and lead to “significant” reductions in abortion rates, id.

at 992, I am of the opinion that the challenged legislation before us is constitutional, even though, as the majority observes, the district court concluded that “the statute . . . raises the cost (both financial and mental) of

an abortion,” ante at 2, and “will reduce by 10% to 13%

the number of abortions performed in Indiana.” See Memphis Planned Parenthood, 175 F.3d at 462-63. Cf. Okpalobi

v. Foster, 190 F.3d 337, 354 (5th Cir. 1999).

B.

My belief is further supported by Casey’s forceful statements distinguishing between the constitutionality of

mandatory informed consent laws (which are lawful) and

mandatory spousal notification laws (which are not).

Although under Casey, states may not enact spousal

notification laws embodying views that are “repugnant

to our present understanding of marriage and of the nature of the rights secured by the Constitution,”5 Casey,

505 U.S. at 898, “it does not at all follow that the State

is prohibited from taking steps to ensure that [the choice

to end a pregnancy] is thoughtful and informed.” Id. at
No. 01-2107 33

872. It is incumbent upon the federal judiciary to respect

basic principles of federalism and give considerable deference to a state legislature’s carefully reasoned decision to

“enact rules and regulations designed to encourage [the

woman] to know that there are philosophic and social

arguments of great weight that can be brought to bear in

favor of continuing the pregnancy to full term and that

there are procedures and institutions to allow adoption

of unwanted children as well as a certain degree of state

assistance if the mother chooses to raise the child herself.” Id.

This record reflects that the Indiana General Assembly

held a full panoply of hearings, engaged in extended floor

debates, and considered numerous amendments offered

by legislators prior to enacting the informed consent law

before us today. Absent a clear constitutional violation,

neither a federal district court nor an appellate court

should ever take it upon itself to strike down legislation

merely because it disagrees with the legislation enacted

by democratically elected state representatives. Informed

consent laws, having notice-and-waiting periods like Indiana’s, should thus be upheld, for the Supreme Court

has held that the “idea that important decisions will be

more informed and deliberate if they follow some period

of reflection does not strike us as unreasonable, particularly

where the statute directs that important information become part of the background of the decision” concerning

the life or death of the child. Casey, 505 U.S. at 885 (emphasis supplied). See also Planned Parenthood v. Danforth,

428 U.S. 52, 67 (1976).

The Indiana General Assembly enacted its notice-andwaiting statute in an effort to alleviate a widespread

problem. Witnesses at legislative hearings reported that

literally hundreds of Indiana women were suffering serious regret and long-term physical, emotional, and psychological damage as a result of their choice to terminate
34 No. 01-2107

6 The risk of suicide for women who have abortions is both serious and real, if often under reported. See B. Garfinkel et al.,

Stress, Depression and Suicide: A Study of Adolescents in Minnesota (1986) (finding that a teenage girl in Minnesota was ten

times more likely to attempt suicide if she had undergone an

abortion in the previous six months than a comparable girl who

had not had an abortion); Suicides After Pregnancy in Finland,

1987-94: Register Linkage Study, 313 British Med. J. 1431-34

(Dec. 7, 1996) (concluding that Finnish women who had induced

abortions had a suicide risk three times that of the general population and six times that of women who gave birth).

their pregnancies without being properly informed about

the risks, complications, and alternatives to the procedure.

A Woman’s Choice v. Newman, 904 F. Supp. 1434, 1449

(S.D. Ind. 1995).6

 The intent of the legislature, according

to the Supreme Court of Indiana, was to reduce the risk

of abortion by “ensur[ing] that women receive the best information available” regarding the moral, social, psychological, and medical issues relevant to deciding whether

to undergo the procedure. Newman, 671 N.E.2d at 111.

Included in the information that must be provided to

the patient is: (1) the name of the abortionist; (2) the nature of the proposed procedure; (3) the risks and alternatives to the procedure; (4) the probable gestational age

of the fetus; (4) the existence of medical assistance benefits

and abortion alternatives; and (5) the father’s legal responsibility to assist in the support of the child if the

child is carried to term. Ind. Code §16-34-2-1.1. I am convinced that the Indiana General Assembly has made a

reasonable and lawful decision when enacting this informed consent bill in an effort to ensure that the woman’s choice regarding the life or death of her child has

been both knowingly and voluntarily made, after extended debate and careful reflection.
No. 01-2107 35

This legislation will assist women in understanding that

abortion is an invasive procedure that may very well

have painful psychological, physical, and moral consequences. The woman undergoing the abortion may very

well experience serious psychological disorders and mental health problems in the form of depressive psychosis

(including the risk of suicide) both before, during, and

for many years following her decision—perhaps even for

a lifetime. Added to this mental strain and anguish are

the almost endless number of physical risks involved,

including trauma, permanent damage to reproductive

and other vital organs, dysfunction of the cardiovascular

or respiratory system, internal bleeding or hemorrhaging,

embolism, and allergic reactions. Other medical factors

to be considered in making a mature, informed decision

include the type of abortion to be performed, the woman’s

past medical and psychological history, her physical reaction to previous medical procedures, her tolerance for

certain medications, the likelihood of contracting a uterine

infection, the chance that the placenta and fetus will

not be completely removed, the potential for future difficulties in bearing children, and even the possibility of sexual

sterility. See Zbaraz, 763 F.2d at 1549-50 (Coffey, J.,

dissenting).

The Indiana statute requires that the name of the

abortionist be made known to the patient, thus giving

her an opportunity to review the credentials, qualifications,

and experience of the physician, inquiring into whether

he is a board-certified gynecologist, is accurate in his pregnancy term diagnosis, and is familiar with both the procedure and the myriad complications that may very well

arise during the procedure. See id. at 1550. In making

this decision, she is entitled to know whether the abortion procedure is being performed by “a well-trained,

qualified surgeon or simply a second-rate surgeon who

entered the abortion practice because he was denied hos-
36 No. 01-2107

pital staff privileges by a medical peer review committee

after questionable medical procedures or inferior surgical technique.” Id. at 1552. Such information is essential

to making a responsible decision.

The woman also will receive information regarding economic issues, such as the father’s obligation to contribute

to the support of the child, the availability of medical

benefits and child care, and the right and possibility

of giving up the baby to a loving adoptive family. After

receiving such information, it also is probable that the

best interests of the client would be better served were

she to be granted a reasonable period of time to reflect

upon the information recently made known to her dealing with the possible social and psychological problems

arising from the decision. Hopefully, the medical professionals who meet with the woman will be well-trained in

order that they might prepare the patient to confront

and resolve the possible feelings of anger, fear, depression,

and confusion she may encounter towards herself and/or

the father, the onset of guilt and overall withdrawal

from society, and the all too frequent threat of the taking

of one’s own life. See id. at 1550; ante at 34, n.6.

It also is reasonable for a state legislature to have

believed that the most efficient way to safeguard the

health, safety, and well-being of the pregnant woman

would be to allow her to receive the above-stated information during a face-to-face meeting with medical professionals. It was most unfortunate and inappropriate for

the court to accept the proposition that voluntary consent for an abortion may be insured by a patient dialing

an 800-phone number, touching certain digits on her keypad, and then passively taking in information through the

telephone. See 904 F. Supp. at 1452.

Only a direct, face-to-face meeting will serve to allow

the patient and the doctor to have a full and complete
No. 01-2107 37

7 Brief Amicus Curiae of the United States Conference of Catholic

Bishops and the Indiana Catholic Conference at 7-8 (internal

citations and ellipsis omitted).

understanding of the possible problems that might arise

during or after the invasive procedure. This—and only

this—type of meeting is the way to determine whether

the client is giving an informed consent or is conveying

a wish to postpone the procedure. Personal contact is vital to any question of informed consent, for it allows the

medical expert the best opportunity to observe the verbal

and nonverbal behavior of the patient by focusing on her

reactions and responses to questions, her facial expressions, attitude, tone of voice, eye contact, posture and

body movements, confused or nervous speech patterns

and countless other factors that are indiscernible by telephone but may reveal incongruities between what the

patient says and what she actually feels or believes. Cf.

United States v. French, 291 F.3d 945, 951 (7th Cir. 2002);

United States v. Mancillas, 183 F.3d 682, 701 n.22 (7th

Cir. 1999).

As a result, a face-to-face consultation occurring a reasonable time before the abortion “may disclose what a

telephone interview will mask: whether a woman is apprehensive, uncertain, or equivocal about whether to

have an abortion; whether she needs or wishes some

additional information; or whether she wishes, but may

find it difficult, to ask some additional question or explore

some other alternative.”7

In the Indiana House of Representatives, the chief

sponsor of this bill stated during extensive debates that

it is important for women to receive this information

either in the presence of the abortionist or a well-schooled

and -trained physician’s assistant, licensed practice nurse,

or midwife because the patient might very well “want
38 No. 01-2107

to talk personally to the person who may be performing” the

procedure and would benefit from personal, face-to-face

consultation instead of meeting the professional for the

first time “on the operating table” and it is unclear whether “this is the doctor or the person you’re supposed to

be talking to.” Newman, 904 F. Supp. at 1464-65.

Indeed, the need for an in-the-presence requirement

was underscored by testimony at the preliminary injunction hearing, where a woman who had just recently undergone the procedure at an Indiana abortion clinic testified

she never saw her doctor until he began the procedure,

never saw his face (for it was covered with a surgical mask),

and never learned his name because he never spoke with

her. The woman testified as follows: “[A female assisting

nurse] said, “ ‘This is your doctor,’ and I said, ‘Does my

doctor have a name?’ And he giggled and she smiled, but

I don’t know who he was. And he did the procedure. He

never talked to me. He talked to her. They talked about

something, I can’t even remember, and it was over. And he

left.” (Tr. 416-17).

Some of the materials that the General Assembly directed

the abortionist to provide to the woman, in order that

she might be properly informed before making one of

the most important decisions of her entire life and to

minimize as best as possible the potential for future

physical or psychological injuries, cannot be accurately or

easily conveyed through other media, as the district judge’s

injunction requires. The General Assembly was of the

opinion that it is essential for the woman to be well-informed among other things, of the “probable gestational age

of the fetus” and also be given the option of seeing a picture or drawing of the fetus and its dimensions. Ind. Code

§ 16-34-2-1.1(1). It is nigh unto impossible to provide a

picture or drawing of a pre-born child over the telephone

unless both the patient and the abortion clinic are equipped

with expensive, highly advanced videoconferencing equip-
No. 01-2107 39

ment. Furthermore, any attempt to provide an illustration through the mail without having first met with the

patient for a physical examination may potentially be

misleading and inaccurate. The district judge’s refusal to

enforce Indiana’s requirement of face-to-face meetings

between the health care provider and the pregnant woman

emasculates the statute and undermines the very intent

of the legislature.

In my opinion, it was an abuse of discretion for the

district judge to disregard controlling legal authority, cast

aside the opinions of qualified medical experts and the

judgment of the people of Indiana as represented by the

elected members of the Indiana General Assembly, and

declare that the “in the presence” requirement is not

“reasonably likely to provide any genuine benefit” to Indiana women. Newman, 904 F. Supp. at 1465. Not many

judges are versed in the nuances of the practices and techniques of the medical profession. Thus, the judiciary is “illequipped to substitute [its] views regarding what is medically adequate, proper, or antiseptic” for those of the

legislature, which acts with the full benefit of evidence

received through hearings, debates, and meetings with

the people of the state. Ragsdale, 841 F.2d at 1389 (Coffey,

J., dissenting).

The trial judge’s questionably reasoned ipse dixit, pronounced without the support of even one citation to the

record, invades the legitimate province of the legislative

and executive branches and places a straitjacket upon

their power to regulate and control abortion practice. As a

result, literally thousands of Indiana women have undergone abortions since 1995 without having had the benefit

of receiving the necessary information to ensure that

their momentous choice is premised upon the wealth of

information available to make a well-informed and educated

life-or-death decision. I remain convinced that the trial

judge abused his discretion when depriving the sovereign
40 No. 01-2107

State of Indiana of its lawful right to enforce the statute

before us. I can only hope that the number of women in

Indiana who may have been harmed by the judge’s decision

is but few in number.

III.

In Indiana, according to the preamble to its abortion

control statute, “[c]hild birth is preferred, encouraged, and

accepted over abortion.” Ind. Code § 16-34-1-1. Furthermore,

“in America, we respect the sanctity of human life.” Walsh

v. Mellas, 837 F.2d 789, 798 (7th Cir. 1988). Pro-life legislation that fails to pose a substantial obstacle for 87 to 90

percent of a state’s women, and may have the incidental

effect of reducing the demand for abortions by merely 10

to 13 percent, is reasonable, sensible, and lawful under

the Constitution of the United States and the State of

Indiana. Because this is the thrust of Judge Easterbrook’s

reasoning, I am pleased to join his opinion.

DIANE P. WOOD, Circuit Judge, dissenting. In today’s

opinion, the majority disregards the standards that were

established by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992), for evaluating laws that impose burdens on a

woman’s right to seek an abortion, and it brushes aside

the painstakingly careful findings of fact the district court

made in support of the limited preliminary injunction it

issued against Indiana’s so-called informed consent law,

Ind. Code § 16-34-2-1.1. The careful reader of the majority’s opinion will see that the majority regrets the fact

that the Supreme Court held in Stenberg v. Carhart, 530
No. 01-2107 41

U.S. 914 (2000), that pre-enforcement challenges of abortion statutes, like the one presently before us, are permissible. Nevertheless, Stenberg is the law of the land

and we must follow its direction, including its endorsement of the constitutional standards governing abortion

legislation first articulated by the Casey plurality. See

Stenberg, 530 U.S. at 921. That direction is by no means

the opaque mess the majority accuses the Supreme Court

of creating. In my view, the Court has not left us with

“irreconcilable directives” nor has it put courts of appeals

“in a pickle.” Ante at 7. At the most, if we were reviewing

legislation in some field unrelated to abortion (or speech),

we might be faced with the problems the majority describes. As for abortion regulation, the Court’s guidance

is crystal clear. In the end, the majority concedes that

Stenberg governs, which ought to be enough for present

purposes to lead to an affirmance of the district court’s

grant of the injunction.

When one follows the analytical path outlined in Casey,

it becomes clear that the district court did not abuse its

discretion when it concluded that one narrow requirement of Indiana’s law had to be enjoined. In support of

that conclusion, the court found that in the particular

circumstances faced by Indiana women, and on the basis

of the expanded factual record that the Supreme Court

invited in Casey, the law’s requirement that women receive

certain advice “in the presence” of “the physician who is

to perform the abortion, the referring physician or a

physician assistant” (§ 16-34-2-1.1(1)) amounts to an

unconstitutional “undue burden” on the abortion decision.

I would affirm the district court’s decision.

Before turning to the areas of disagreement that lie

between the majority and me, it is important to point out

that we also share some areas of agreement. First, it is

clear that Indiana’s requirement to furnish the statutory

information “in the presence of the pregnant woman”
42 No. 01-2107

(instead of, for example, mailing written materials, having a telephone conversation, or visiting a local doctor

who is neither the referring physician nor the physician

who will perform the procedure) is one that raises the cost

of obtaining an abortion. This is because the “presence” rule

normally necessitates two trips to the abortion facility.

Second, the majority notes, and I agree, that there are

both unconstitutional ways in which costs may be raised

and constitutional ones: an increased cost is unconstitutional if it is has the purpose or effect of forcing some

women to give up their constitutional right to choose

abortion; it is constitutional if it genuinely furthers the

state’s legitimate interest in persuading women not to

select abortion when faced with an unwanted pregnancy.

Third, I agree with the majority that the standard of review for constitutional or legislative facts is more searching than the one we use for historical facts. That does

not mean, however, that we may disregard the district

court’s findings of historical fact. To the contrary, the

Supreme Court has emphasized that we owe deference to

such findings even in constitutional cases. See Ornelas v.

United States, 517 U.S. 690, 699 (1996) (“a reviewing

court should take care both to review findings of historical fact only for clear error and to give due weight to

inferences drawn from those facts by resident judges

and local law enforcement officers”). Were we to abandon

that rule, many constitutional matters would receive

far less restrained review than we presently give them:

from possible violations of the Fourth Amendment, to the

voluntariness of confessions, to the First Amendment protection accorded to public employee speech.

I

Turning now to the way in which we should resolve

this appeal, it is useful to begin with some reminders
No. 01-2107 43

about what Casey held. (For ease of exposition, I refer to

Casey alone rather than to “the Casey standard as endorsed

in Stenberg,” since the latter formulation, while more

accurate, is needlessly cumbersome.) First, Casey dictates

how to draw the line between permissible state regulation and unconstitutional regulation:

Numerous forms of state regulation might have the

incidental effect of increasing the cost or decreasing

the availability of medical care, whether for abortion

or any other medical procedure. The fact that a law

which serves a valid purpose, one not designed to strike

at the right itself, has the incidental effect of making it more difficult or more expensive to procure

an abortion cannot be enough to invalidate it. Only

where state regulation imposes an undue burden on a

woman’s ability to make this decision does the power

of the State reach into the heart of the liberty protected by the Due Process Clause.

505 U.S. at 874. The opinion later elaborates on the undue

burden standard:

A finding of an undue burden is a shorthand for the

conclusion that a state regulation has the purpose

or effect of placing a substantial obstacle in the path

of a woman seeking an abortion of a nonviable fetus. A

statute with this purpose is invalid because the

means chosen by the State to further the interest in

potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which,

while furthering the interest in potential life or some

other valid state interest, has the effect of placing a

substantial obstacle in the path of a woman’s choice

cannot be considered a permissible means of serving

its legitimate ends.

Id. at 877.
44 No. 01-2107

Applying this standard, the Court struck down the

Pennsylvania statute’s spousal consent requirement and

the record-keeping requirement relating to spousal notice;

it upheld the statute’s parental consent requirement

(which contained the necessary one-parent and judicial bypass provisions), the medical emergency provisions, the

rest of the record-keeping requirements, and the “informed consent” requirement. Knowing both what failed

the new test and what passed it gives litigants a roadmap

of the kind of claims that are likely to succeed, and the

kind of evidence they must present. It also gives us concrete guidance on the critical questions now before us:

(1) under the Casey test, must the statute create an “undue

burden” for every single woman, or is it enough that it

create an undue burden for some women; (2) to what extent are we dealing with empirical, fact-specific issues,

and to what extent with “legislative” issues; and (3) how

must the statute allow for flexible compliance with the

state’s broader goals?

The first question—how many women must be affected—

is really another way of putting the question about facial

challenges that the majority addresses. Ante at 7. In

this connection, despite its disclaimers, one is left with

the strong impression that the majority is applying either United States v. Salerno, 481 U.S. 739 (1987), or

something very close to it. In essence, it holds that a state

statute like the one before us now would be unconstitutional only if there was “no set of circumstances” under

which it was valid—by which it seems to mean that not

a single woman in Indiana would find the law’s burdens tolerable. This is an impermissible back-door application of Salerno. Worse yet, it assumes the answer to

the question before us: whether the system Indiana

wants to put in place will unduly burden Indiana women.

Since the pertinent part of the statute has never gone

into force, the majority indulges in the presumption that
No. 01-2107 45

the law imposes no burden at all. But this presumption

is found nowhere in our jurisprudence, at least for

laws implicating fundamental constitutional rights. Furthermore, this methodology is inconsistent with Casey.

Part V–C of Casey addressed the spousal notification

requirement of the Pennsylvania law, also under circumstances in which enforcement had not yet begun. The district court had found, and the Supreme Court accepted,

that “[t]he vast majority of women consult their husbands

prior to deciding to terminate their pregnancy. . . .” 505

U.S. at 888. We can assume, therefore, that the spousal

notification requirement was not an undue burden, or

any kind of burden, for that “vast majority” of women;

they are already doing what the statute specified. But

the Court went on to consider the plight of women who

were not already consulting the putative father: the

2,000,000 women a year who are the victims of severe

assaults by their male partners. As for those women—“the

victims of regular physical and psychological abuse at the

hands of their husbands,” id. at 893, matters were different. The Court found, based on “[t]he limited research

that has been conducted with respect to notifying one’s

husband about an abortion, although involving samples

too small to be representative,” id. at 892, that the spousal

notification requirement was “likely to prevent a significant number of women from obtaining an abortion.” Id.

at 893. Later, to underscore the point, it reiterated that

“[t]he analysis does not end with the one percent of women upon whom the statute operates; it begins there.” Id.

at 894.

That takes us to the second critical question: whether

the reduction in abortions performed is the result of the

law’s persuasive force or the consequence of the impermissible placement of obstacles in the path of a woman’s

right to choose. One may assume, for the sake of argument, that fewer women in Indiana will forego an abor-
46 No. 01-2107

1 In fact, the parallel with the spousal notification requirement

in Casey runs deeper than the mere finding of an undue burden.

Were the Supreme Court to have reasoned along the same lines

as the majority of the panel, it would have concluded that the 1%

of women who forego abortions because of the notification requirement have in fact merely changed their minds—been

“persuaded”—after the consultation with their husbands that

would not have occurred but for the notification requirement. The

Court focused on those women who were not persuaded, but who

instead were forced to carry their pregnancy to term because of

the risk of violence or abuse from their male partner. Similarly,

this court should focus on those who are not persuaded because

of the “presence” requirement, but for whom this requirement

is close to the equivalent of a flat prohibition on abortion.

tion than did women in Mississippi, according to the studies in the record. One may further assume that a larger

percentage of women in Indiana who forego an abortion

will do so because they were persuaded by the law’s informational requirements, contrary to their sisters in Mississippi. No matter: under Casey, our focus must be on those

women who, like those affected by the spousal notification

requirement in Pennsylvania, will forego the abortion because of the burden, and not because of persuasion.1

I cannot imagine a more resounding repudiation of

the Salerno approach than the Casey opinion gave. The

majority opinion in Stenberg makes it clear that this was

no accident or oversight. We must therefore look at the

effect of the “in the presence” requirements on the Indiana women upon whom the statute operates: the approximately 10% (as the record suggests and as the district

court found) who will no longer be able to obtain abortions under the new regime. (Note that the 10% number

could be off by an order of magnitude and we would still

be required to enjoin this part of the law if it affected “only”

1%, the number presumptively affected by the spousal

notification rule in Pennsylvania.)
No. 01-2107 47

2 As the majority acknowledges, Indiana’s law has been construed to have an emergency by-pass provision that covers any

kind of physical or psychological risk to the woman from any of

its provisions, including presumably the “presence” requirement.

But that does not distinguish it from Pennsylvania’s statute,

which also relieved a physician of compliance with the informed

consent rules “if he or she can demonstrate, by a preponderance

of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse

effect on the physical or mental health of the patient.” 18 Pa.

Cons. Stat. § 3205(c) (1990). The existence of such a statute was

not enough to convince the Court that the spousal consent requirement was permissible. By the same token, the existence of

a similar safety valve in the Indiana statute is not enough to

save the otherwise burdensome “presence” requirement, for the

reasons I explain below.

But, the majority responds, the Supreme Court in Casey

upheld something almost exactly like the Indiana “in

the presence” requirement when it found that Pennsylvania’s informed consent rules passed muster. Informed consent at the most general level, of course, was not the issue

either in our case or in Casey; under the injunction the

district court entered, every Indiana woman is furnished

with the information the state deems helpful, and when she

shows up for the abortion procedure the doctor can once

again assure herself that the patient’s consent is informed.

Our concern is with the specific way in which the state

wants the information to be transmitted.2

The majority suggests that Casey has already answered

this question, insofar as it addressed a regulatory regime

with a similar “two visit” rule. But a look at the Casey

opinion shows that the Court was not writing so broadly;

to the contrary, the Court took great pains not to rule

on informed consent/two-visit rules either in general as

a matter of fact or as a matter of law. Instead, it explicitly

limited its holding to the record before it. It stated that
48 No. 01-2107

there was “no evidence on this record that requiring a

doctor to give the information as provided by the statute

would amount in practical terms to a substantial obstacle

to a woman seeking an abortion.” Id. (emphasis added).

There is no reason to treat the phrases “on this record”

and “in practical terms” as casual insertions. The Court

thought that the waiting period question was a close

one, particularly because it would often translate into a

two-visit requirement. The Pennsylvania district court

had not made the necessary findings of fact to show that

a two-visit requirement would amount to an undue burden (largely because that court had applied the old trimester test from Roe v. Wade, 410 U.S. 113 (1973), and had

invalidated the rule for other, less factually sensitive, reasons). If there could be any doubt remaining on the question whether the Court was restricting its ruling to the

record before it, the following passage from Casey should set

it to rest:

And the District Court did not conclude that the waiting period is such an obstacle even for the women who

are most burdened by it. Hence, on the record before

us, and in the context of this facial challenge, we are

not convinced that the 24-hour waiting period constitutes an undue burden.

505 U.S. at 887.

Casey, therefore, establishes the following guidelines for

the present case: (1) we must evaluate the Indiana law

based on those upon whom it is operating, which is to

say the set of women who will be burdened by the “in the

presence” requirement; (2) if there were no evidence before the court tending to show that this requirement, like

the spousal notification rule considered in Casey, is “likely

to prevent a significant number of women from obtaining

an abortion,” 505 U.S. at 893, then we would be required

to uphold Indiana’s rule on this facial challenge; but
No. 01-2107 49

(3) since there is evidence that is at least as reliable—if

not much more so—than the evidence on which the Casey

opinion relied in evaluating the spousal notification

rules, we must look at what that evidence shows, deferring

to the district court’s findings of historical fact, just as the

Supreme Court did in Casey. Cf. Ornelas, 517 U.S. at 699.

I now turn to the evidence before the district court.

II

Initially, it is necessary briefly to consider what we mean

by the term “fact” and how a fact may be established.

The majority has tried to explain how and why it is reversing the district court, even while it accepts such critical findings of fact as (1) abortions dropped in Mississippi

after enactment of a two-visit rule, as compared to those

in South Carolina, which did not have a two-visit rule; and

(2) the number of abortions performed in Indiana has not

declined because of the advice given to women pursuant

to the statute. Even though these facts support the district court’s finding, the majority argues that the ultimate

finding of an “undue burden” cannot be sustained, largely

because the Supreme Court did not find such a burden

in Casey for a similar rule, nor did this court in Karlin

v. Foust, 188 F.3d 446 (7th Cir. 1999), the decision upon

which the majority places most of its reliance. With respect,

I believe this approach confuses two fundamentally different inquiries: the first concerns the way in which a

certain fact must be established, and the second asks

whether this fact will logically vary from case to case or if,

once properly established, it is “legislative” in nature

such that it cannot be questioned over and over again.

Casey, as the preceding discussion makes clear, was focused on the first of those questions. The Court there

decided that the existence of an “undue burden” had not

been established on the record then before it. It left the
50 No. 01-2107

door open, however, for later parties to present more

evidence that would cure the gaps in the record that

existed. This point can be illustrated by an analogy to new

drug approval. Suppose a pharmaceutical company approaches the Food and Drug Administration with an

application for approval of a new drug, Alpha. Naturally,

it submits supporting information to the agency. If, however, the FDA deems that information insufficient, it will

reject the application. This does not mean that the company cannot re-apply later, after it conducts more clinical studies or otherwise cures the deficiencies in the earlier record. Based on a fully supported application, the

FDA will decide whether Alpha should be approved as safe

and effective for the designated uses. Our situation is

exactly the same. We now have in this case the “re-application” for a finding whether a rule that requires two visits

to the clinic (here, Indiana’s “presence” requirement) constitutes an undue burden. Are there, in other words, women

for whom this rule has the “effect of placing a substantial

obstacle in the path of . . . seeking an abortion of a

nonviable fetus”? 505 U.S. at 877.

In order to answer that question, we must evaluate

the evidence presented in this particular case. Before doing so, however, it is also useful to note where the concept of “legislative facts”—on which the majority relies—

legitimately applies in this case, and where it does not.

Skipping over the crucial question about the way in which

facts must be established, the majority treats this case

as one in which the factual record is identical to the record

in Karlin and then assumes that if there was nothing

unconstitutional about a two-visit rule in Karlin there

can be nothing unconstitutional here. Burdens are burdens, no matter what state a court is considering. Furthermore, reasons the majority, that is how the Supreme

Court treated efforts to regulate the late-term abortion

procedure at issue in Stenberg, and thus it must be the

way to treat all facts relating to the abortion issue.
No. 01-2107 51

With all due respect, the majority has failed to take

into account significant differences in the record that

was compiled in this case, as compared with the record

before the Karlin court, and it has made assumptions

about inter-state differences that are unsupported in

this record (and, I suspect, unsupportable). Once again,

I discuss the particular evidence in the present record

later. What is important here is to recognize that this

evidence is highly pertinent to the case. A central reason

why the majority treats this as a “failure of proof” case,

to the extent it does, is that it assumes that studies done

in Mississippi, or Utah, or North Carolina, have nothing

to do with Indiana. This assumption is mysterious. What

we are considering, after all, is a simple matter of human reactions to sets of incentives or disincentives: will

a particular measure be seen as a disincentive at all; if

so, will the obstacle be a mere inconvenience, or will it

effectively ban a particular option? In the field of economics, we assume that people will react in similar and predictable ways to incentives. (And sometimes it takes more

than one study to ascertain what the incentive effects

of a particular measure are, even if, once understood,

those effects are presumed to be universal.) Consistently

with that well-accepted proposition, there is every reason here to assume that Indiana women will react to

proven incentives and disincentives in the same way women from other states (e.g., Mississippi) have been shown

to respond. The Law of Demand is based on generalized

assumptions about human behavior and rationality, and

there is no reason to waste time trying to prove that

people in one area are exceptions to these rules. The Supreme Court relied on the same idea in Stenberg: faced

with high uncertainty about which procedures were legal

and which were not, coupled with draconian penalties

for an incorrect guess, it was safe to assume that all

doctors, everywhere, would err on the side of caution

and refuse altogether to perform certain kinds of late-
52 No. 01-2107

term abortions. Maybe the Court should have carved out

an exception for doctors in places famous for attracting

gamblers, like Las Vegas or Atlantic City; but for obvious

reasons it did not.

The majority acknowledges that under the Law of Demand, higher prices for abortion will decrease the number

demanded, but (as it also appears to recognize) that is not

the difficult question here. It is instead whether the observed increase in price caused by the “presence” or twovisit rule is a permissible one under the undue burden

analysis. See City of Los Angeles v. Alameda Books, Inc., ___

U.S. ___, 122 S.Ct. 1728, 1742 (2002) (Kennedy, J., concurring) (reduction in demand is merely the first step of an

analysis on the permissibility of a regulation: the crucial

step is whether that decrease was achieved through allowable governmental action). That is precisely the issue

that the Court identified in Casey as an empirical point,

where a different result was possible on a more complete

record. It is unclear at best to me why the two judges in the

majority on this panel think that they know better than

the district court judge, who heard all the testimony and

weighed all the evidence, what the answer is to the question

whether a critical number of Indiana women would experience the “in the presence” rule as such a significant

burden that it would effectively prevent them from exercising their constitutionally protected choice. Instead of

respecting the district court’s extensive work, the majority finds flaws with the evidence on which the court

based its factual findings. It thinks, for instance, that

the evidence in the record should have taken into account factors like degree of urbanization, average distance to abortion clinics, and income levels. Ante at 11.

But this simply leads to the majority’s second misunderstanding about the legal significance of the differences

between Mississippi and Indiana that these factors might

reveal. At best, studies incorporating these variables
No. 01-2107 53

at a greater level of detail will indicate that there are

some women in Indiana for whom the “presence” rule is

not a problem, just as there were many women in Pennsylvania who did not anticipate any problem with spousal notification. Surely the majority does not think that

every woman in Indiana lives close to a clinic; like

all states, Indiana has significant rural areas and significant numbers of people living far from a reproductive health services facility. (There are 11 abortion clinics in Indiana, see Indiana Family Institute, Fact Sheet:

Abortion in Indiana, at http://www.hoosierfamily.org/

FactSheet13.html, covering a territory of some 36,000

square miles, see U.S. Census Bureau, State and County QuickFacts, at http://quickfacts.census.gov/qfd/states/

18000.html. That adds up to one abortion clinic on the

average for almost every 3,300 square miles. And, needless to say, it is quite unlikely that these clinics are distributed with perfect geographical regularity; to the extent

the clinics are concentrated around major cities like

Indianapolis, that means that other women in rural Indiana will live substantial distances away from the nearest

facility.) At most, the details the majority demands might

suggest that more Indiana women can withstand the

burdens of the Indiana statute than their counterparts

in Mississippi could. But the question is not, for example,

whether Indiana women as a group live closer to abortion

clinics. It is whether an Indiana woman living 60 miles

away from a clinic in Indiana who cannot afford (either

financially, socially, or psychologically) to make two visits, will respond the same way a Mississippi woman living

60 miles away from a clinic in Mississippi with similar

constraints did. To repeat, Casey made it clear that the

set of women we must consider are those who are burdened by the law, and it found 1% enough to justify striking down the spousal notification rule. Maybe 10% of the

women in Mississippi have that problem and “only” 3%

of women in Indiana do. No matter. The district court
54 No. 01-2107

was quite reasonable to find that women in Indiana are

like all other people and that their responses will be the

same as those of women elsewhere.

Or it could be that the majority thinks that women in

Indiana are more likely to be persuaded by the “presence”

requirement than are women in Mississippi, so that

the decrease in abortions due to the requirement could

be attributed to the constitutionally permissible persuasive force of the law. Again, however, all the previous

criticisms apply: the question is not whether more women

in Indiana are persuaded than are women in Mississippi

(bearing in mind that there was no evidence before the

district court indicating why that should be the case). It

is instead whether a sufficient number of Indiana women (something akin to the 1% of Casey) are not so persuaded, and yet are among those who will be forced to

forego their right to choose.

The majority rejects wholesale the relevance of the

Mississippi studies (and several other studies) by implying that the district court clearly erred in its decision

that Indiana women would react to burdensome twovisit requirements in the same way, and for the same

reasons, as Mississippi women did. But even in this context, it offers no reason at all to believe that Indiana

women are so idiosyncratic, nor in my view could it. The

Supreme Court has consistently endorsed the use of

studies from other states or areas—shared experience is

exactly how the “laboratories” in the several states ought

to work. See, e.g., Renton v. Playtime Theatres, Inc., 475

U.S. 41, 51-52 (1986) (in the First Amendment context,

no requirement that “a city, before enacting such an

ordinance, [ ] conduct new studies or produce evidence

independent of that already generated by other cities, so

long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city

addresses.”).
No. 01-2107 55

III

Turning now to the evidence demonstrating that the

Indiana “presence” rule indeed constitutes an undue burden, we find detailed and meticulous findings from the

district court to support that proposition. This evidence

was entirely competent to support the district court’s

decision; Casey’s discussion of the spousal notification

rule makes it clear that evidence on undue burden does

not have to meet some heightened standard of perfection.

To the contrary, the Court there relied on “limited research that has been conducted with respect to [the issue

at hand, there notifying one’s husband about an abortion], although involving samples too small to be representative,” 505 U.S. at 892, to support its conclusion about

spousal notification.

We have more than zero, and less than perfection, when

it comes to information about the burden the Indiana

statute places on the women affected by the two-visit rule.

The majority, in effect, has not only demanded perfection; it also wants a showing that some number of Indiana women significantly larger than the number the

Court accepted in Casey are unduly burdened by the law.

Every time the plaintiffs come back with more studies

and more information (as they have surely done here, in

comparison with the record they created in Karlin), the

majority raises the bar higher and tells them to come

back another day—even though this court has specifically held that “the biases of one study in one case may

be avoided or reversed in the next.” Mister v. Illinois

Cent. Gulf R.R. Co., 832 F.2d 1427, 1437, n.3 (7th Cir.

1987) (Easterbrook, J.).

In this case, we have evidence, and importantly we

have significant new evidence that has been developed

since Karlin, which answers precisely the kinds of questions that Karlin directed future plaintiffs to address.
56 No. 01-2107

The district court relied on this evidence to conclude

that the “in the presence” part of the Indiana law would

indeed impose an undue burden on enough Indiana

women seeking abortions that this part of the statute

had to be enjoined. The Supreme Court has consistently

endorsed the use of the type of evidence that was presented here, and has analyzed it in the “factual context

of each case in light of all the evidence presented by

both the plaintiff and the defendant.” Bazemore v. Friday,

478 U.S. 385, 400 (1986). Key among this evidence before the court was a new (post-Karlin) study published

in the Journal of the American Medical Association

(JAMA), one of the most highly respected journals in

the medical field, and one that meets any conceivable

standard for peer-review. Cf. Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579 (1993); Robinson v. California,

370 U.S. 660, 667 n.9 (1962) (relying on findings in JAMA);

Budd v. California, 385 U.S. 909, 912 n.3 (1966) (Fortas, J.,

dissenting from denial of certiorari) (same).

The JAMA study is a time-series and regression analysis designed to assess the effect of the Mississippi law

on the abortion and birth rates of Mississippi residents

in two ways: first, through a retrospective analysis of

those rates before and after the passage of the statute,

and second, through a comparison between Mississippi

and two similar states, Georgia and South Carolina, neither of which had a “presence” requirement in effect

at the relevant time but were otherwise similar in the

relevant respects. Regression analyses are an important

tool in much of social science research, as well as in law.

See McCleskey v. Kemp, 481 U.S. 279, 293-94 (1987) (discussing their role in Title VII of the Civil Rights Act of

1964 cases and in sentencing context); see also Bazemore

v. Friday, 478 U.S. at 398-401 (additional regression analyses conducted in response to criticisms and suggestions by

the district court, all of which confirmed, and some of which
No. 01-2107 57

3 It is worth reviewing for a moment what this kind of study does.

A regression takes a dependent variable (here, the decrease

in abortions or abortion rates) and tests it against a number of

independent variables. The independent variables are chosen

before the regression is run; here, for example, they included

factors like the opening of new clinics, changes in marriage

rates, changes in the percentage of the population living in metropolitan areas, the increased availability of contraceptives, and

changes in per capita income. Once the data is collected, the

researcher runs a regression on each variable, which shows the

effect of that variable, in isolation, on the dependent variable. If

a variable is found to have no meaningful correlation to the dependent variable, it is discarded.

even strengthened, the study’s original conclusions; further

concluding that multiple-regression analysis need not include every conceivable variable to establish a party’s case;

and chiding the court of appeals because it “failed utterly to

examine the regression analyses in light of all the evidence

in the record”); Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 266 n.13 (1977) (discussing jury

selection context).3

The difficulty here is that there is no single independent

variable that will show “undue burden.” The only way to

prove that a particular part of a law is imposing an undue

burden on abortion choice is to hypothesize that it might

constitute an undue burden, and then to show that no

other reasonably related variable satisfactorily explains

the drop in abortion rates (i.e., the phenomenon that is

being tested)—essentially a process of elimination. This

is a methodology we have approved before. See In re

Oil Spill by Amoco Cadiz, 954 F.2d 1279 (7th Cir. 1992)

(per curiam). In that case, this court endorsed the use of

simple linear regressions as a way to draw out all other

plausible explanations leaving only the hypothesized one

as a reason for what part of a loss in business was attribut-
58 No. 01-2107

able to a massive oil spill. Id. at 1320. We expressed satisfaction there with this way of getting “a better grip on the

relation between dependent and independent variables” and

reaching “an inference of causation, and of the size of the

effect.” Id. Indeed, the latest pronouncement by the Supreme Court in First Amendment matters endorses a study

by the city of Los Angeles aimed at demonstrating the

connection between its ban on multiple-use adult establishments and its interest in reducing crime—a connection that

can only be shown by ruling out some (but clearly not all)

of the other potential independent variables that could

have contributed to the effect on crime. See City of Los

Angeles v. Alameda Books, Inc., supra, ___ U.S. ___, 122 S.

Ct. 1728 (plurality opinion). Dealing with the nature of such

studies, the plurality concluded that a party “does not bear

the burden of providing evidence that rules out every

[other] theory.” Id. at 1735. The study, however imperfect,

was respected for its probative value precisely because of

the lack of evidence presented by the other side to rebut

its finding. As in this case, once the point was made,

the opponent had to produce concrete evidence on the

other side; it was not enough merely to point out an alleged imperfection in the study. Id. (respondents did “not

offer a competing theory, let alone data” to counter the

city’s assertions).

That is exactly what the JAMA study did. It was tailored to explore the question (unanswered in the record

in Karlin) whether the decrease in abortions in Mississippi was an effect not of the persuasive power of the

law, but rather of its burdensome qualities. And it

showed that the latter explanation was the correct one.

The principal outcome measures in the study were birth

rates, abortion rates, the percentage of late abortions, and

the percentage of abortions performed outside the state.

The researchers found that the resident abortion rates

declined 12% more in Mississippi than they did in South
No. 01-2107 59

Carolina after the passage of the law, and they declined

14% more in Mississippi than they did in Georgia. Limited

to Caucasian adults, abortions declined 22% more in

Mississippi than in South Carolina and 20% more in

Mississippi than in Georgia. Abortions performed after

the 12-weeks gestation mark increased 39% more in Mississippi than in either South Carolina or Georgia. The percentage of abortions performed out-of-state increased 42%

more among women in Mississippi relative to women in

South Carolina.

The JAMA study also showed that in the 12-month period after the law took effect, the total rate of abortions

for Mississippi residents decreased by approximately 16%;

the proportion of Mississippi residents traveling to other states for an abortion increased by about 37%; and the

number of second trimester abortions increased by some

40%. The study concluded that these statistics “suggest

that Mississippi’s mandatory delay statute was responsible for a decline in abortion rates and an increase in

abortions performed later in pregnancy.” The researchers

who conducted the study testified before the district

court that the only salient difference among Mississippi,

Georgia, and South Carolina for these purposes was that

only Mississippi had a two-trip requirement. Otherwise, the

laws regulating abortions in the three states were functionally the same—and no other statistically significant

events had taken place in the various states.

The district court realized that it needed to address

one final, but critical, question of fact: were declines observed in abortions in Mississippi because women in

Mississippi had been persuaded to forego abortions, or

were the declines because the new law was impermissibly burdening the right to seek an abortion—precisely

the inquiry mandated by Karlin. The court found that the

latter explanation was the correct one, for several reasons,
60 No. 01-2107

all amply based on the evidence in the record. First, the

“persuasive power” hypothesis was severely undercut by

the evidence showing that Mississippi women were leaving the state to have their abortions elsewhere and having more second-trimester abortions. Those women quite

evidently had not been persuaded to carry their pregnancy

to term; they aborted their pregnancies, but they did it

outside the state of Mississippi or at a later and riskier

time. (And certainly we must assume that the Mississippi legislature was trying to persuade women to forego

abortion, rather than to persuade them to travel out-ofstate for the procedure or to postpone it to a riskier time.)

Second, the court looked at evidence from Indiana itself that showed no changes in abortion rates from the

information standing alone (a part of the statute that the

court permitted to take effect, stripped only of the “presence” requirement). The court discussed other evidence

as well, and I commend its thorough analysis, particularly

its evaluation of similar studies conducted in Utah and

Louisiana. In the end, its conclusion was that the “sum of

this evidence, and the absence of evidence of any persuasive effect, shows convincingly that the predicted reduction in abortion rates would result not from persuasion

but from restrictions posing a substantial obstacle for

some women’s ability to obtain abortions.” As mentioned

before, even if the relative numbers of women who were

persuaded versus burdened are different in Mississippi

and Indiana, the study conclusively reveals that a significant number of Indiana women will be unduly burdened

by the “presence” requirement. And those women—not

those who are persuaded, or unaffected, or not even contemplating an abortion—are those on whom the majority

should have concentrated under Casey and Stenberg.

Whether this court is looking at the record de novo, under

an abuse of discretion standard, or merely for clear error,

the district court’s findings should stand. I find nothing
No. 01-2107 61

in the majority’s speculation that comes close to refuting

the evidence upon which the court relied. See City of Los

Angeles, 122 S.Ct. at 1735 (disapproving of fact that the

“Court of Appeals simply replaced the city’s theory . . . with

its own” and that its analysis “implicitly requires the city

to prove that its theory is the only one that can plausibly explain the data”). Only by disregarding key points

such as the number of women who willingly undertook the

burden of seeking an abortion out-of-state, where they

could have the entire procedure accomplished in one visit,

rather than staying in-state and enduring the two-visit

burden, can the majority come to the result it does.

IV

Finally, although not necessary to my analysis, it is

worth noting that Casey said that “[a] finding of an undue

burden is a shorthand for the conclusion that a state

regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion

of a nonviable fetus.” 505 U.S. at 877 (emphasis added).

The majority considers only the “effect” part of that disjunctive test, perhaps thinking that this court’s dismissal of

the “purpose” half in Karlin was binding on the Supreme

Court. I am under no such illusion. I believe, therefore,

that it is appropriate to take a brief look at the purpose

Indiana offered for this regulation, to see if it might either help to save the statute or to condemn it.

The district court found that “[t]here is no evidence

tending to show how the ‘in the presence’ requirement

actually furthers the state’s legitimate interests in maternal health or in protecting potential life.” It said this,

importantly, after the plaintiffs had made an extensive

prima facie showing that the statute furthered neither

legitimate interest; in the sense of a burden of production, the court was concerned that Indiana had offered
62 No. 01-2107

nothing to the contrary. (Indiana argues strenuously

that the district court imposed an impermissible shift in

the ultimate burden of proof, but it is clear from the

court’s opinion as a whole that it did no such thing; it

was simply addressing the evidentiary vacuum on Indiana’s side in the face of the plaintiffs’ evidence.)

Indeed, my search of the legislative history of the Indiana statute reveals no reason whatsoever for imposing

a two-visit requirement for the dissemination of the required information. Acting as if it were conducting rational basis review, the majority speculates that some Indiana legislator might have thought that absorption of information occurs more effectively when it is transmitted

in person. Maybe so, but that does not explain why the

state could not simply have said that at the point of checking into the clinic, the previously transmitted information must be reiterated in person. The change from an

oral communication to an “in the presence” requirement

was added by a floor amendment in the House of Representatives that was marked by scant debate. After

some members of the House suggested that the “in the

presence” requirement was intended as an obstacle to

abortion, its chief sponsor stated instead that the concern was that unless the information was given in person,

“how do you know this is the doctor or the person you’re

supposed to be talking to. . . . I would think you would

want to talk personally to the person who may be performing that and know . . . that they are the person indeed that they [say they] are.” A special concern with

impostor doctors, or generally with practitioners not

being who they say they are over the telephone is not

a problem that is specific to abortion—or at least there

were no such findings other than a statement that this

possibility (of talking to an impostor) “is very dangerous,

especially when you’re talking about the symptoms

and consequences of an abortion.” Literally the only other
No. 01-2107 63

scrap of evidence from the legislature seems to reflect

a fear that women would receive the information while

they were under sedation on an operating table. But

that cannot be what the legislature really feared, for the

simple reason that this concern is already addressed in

Indiana’s law of “informed consent,” which cannot be

given by persons already under anaesthesia. See, e.g.,

Culbertson v. Mernitz, 602 N.E.2d 98, 103 (Ind. 1992)

(endorsing the American Medical Association’s 1992 Code

of Medical Ethics with respect to necessary consent, and

rejecting as invalid consent given “where the patient

is unconscious or otherwise incapable of consenting”). I

would be surprised if many Indiana doctors were in the

habit of obtaining consent for medical procedures from

unconscious or drugged patients; they would risk loss of

their medical license if they did, whether they were performing an appendectomy, knee surgery, a vasectomy, a

prostate removal, or an abortion. The law of informed consent is consistent across the spectrum of surgeries and

procedures: if no reason is given why heightened consent

is needed in the abortion context, then this cannot be

accepted as the reason for the “in the presence” requirement.

V

For all these reasons, I believe that the majority has

seriously mis-applied the Casey test. It has substituted

its own factual assumptions for evidence that is in the

record; it has failed to focus on the women for whom that

statute will create problems; and it seems to think that

the Casey Court was not serious when it emphasized the

lack of evidence in the record before it, by implying that

the result in Casey dictates the result here. I respectfully

dissent.
64 No. 01-2107

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—9-16-02