Planned Parenthood of Indiana v. Commissioner of the Indiana, et al

Filing

Filed opinion of the court by Judge Rovner. The opinion of the district court is AFFIRMED in all respects. William J. Bauer, Circuit Judge; Michael S. Kanne, Circuit Judge, concurring in the judgment, and Ilana Diamond Rovner, Circuit Judge. [6940614-1] [6940614] [17-1883]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17 1883
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC.,
Plaintiff Appellee,
v.
COMMISSIONER OF THE INDIANA STATE
DEPARTMENT OF HEALTH, et al.,
Defendants Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16 cv 01807 — Tanya Walton Pratt, Judge.

____________________
ARGUED NOVEMBER 6, 2017 — DECIDED JULY 25, 2018
____________________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Since 1995, the State of Indiana has
required that, at least eighteen hours before a woman has an
abortion, she must be given information provided by the
State about, among other things, the procedure, facts about
the fetus and its development, and alternatives to abortion.
That information is meant to advance the State’s asserted in

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terest in promoting fetal life. In other words, the State hopes
that women who read that information and consider it will
opt not to have an abortion, and will, instead, choose to car
ry the pregnancy to term. After she has received the man
dated information, a woman must wait at least eighteen
hours before having an abortion, thus, the State hopes, she
will use the time to reflect upon her choice and choose to
continue her pregnancy. The State also requires that a wom
an have an ultrasound and hear the fetal heartbeat prior to
an abortion although she may decline the opportunity to do
one or both, as 75% of women generally do.1
Prior to July 1, 2016, women could, and generally did,
have the ultrasound on the same day of the procedure. This
was, in large part, because almost all abortions in Indiana
occur at one of four Planned Parenthood of Indiana and
Kentucky (PPINK) health centers, and only those few PPINK
facilities that offer abortion services (most do not) had the
ultrasound equipment on site. The Indiana House Enrolled
Act 1337 (HEA 1337), however, amended Indiana law and
now requires women to undergo an ultrasound procedure at
least eighteen hours prior to the abortion. Because of the
structure and location of abortion services in Indiana and the
population of women seeking abortions, this change—
moving the ultrasound from the day of the abortion proce
dure to at least eighteen hours before—as we will explore, is
significant.
1

Prior to 2011, the law required that prior to an abortion the woman be
shown an ultrasound “upon the woman’s request.” P.L. 193 2011, Sec. 9.
In 2011 the legislature amended the statute to require that the woman be
shown the ultrasound unless she certified in writing that she did not
want to.

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PPINK filed suit against the Commissioner of the Indiana
State Department of Health and the prosecutors of Marion
County, Lake County, Monroe County, and Tippecanoe
County (collectively, “the State”), all in their official capaci
ties.2 PPINK claimed that HEA 1337 unconstitutionally bur
dens a woman’s right to choose to have an abortion, and it
sought preliminary relief enjoining the provision during the
pendency of the litigation. The district court granted the pre
liminary injunction. We agree with the well reasoned con
clusions of the district court opinion, from which we borrow
heavily.
I.
A. Background information
1. The new law
Indiana Code § 16 34 2 1.1 mandates that at least eight
een hours prior to the abortion procedure, the patient must
be provided with the following information (among others)
both orally and in writing: “that human physical life begins
when a human ovum is fertilized by a human sperm;” the
probable gestational age of the fetus at the time the abortion
is to be performed, including a picture of the fetus at certain
gestational ages, and other information about the fetus at its
2

Courts have long declared that abortion providers have standing to sue
to enjoin laws that restrict abortion. Planned Parenthood of Wisc., Inc. v.
Schimel, 806 F.3d 908, 910 (7th Cir. 2015). “These cases emphasize not the
harm to the abortion clinic of making abortions very difficult to obtain
legally, though that might be an alternative ground for recognizing a
clinic’s standing, but rather the confidential nature of the physician
patient relationship and the difficulty for patients of directly vindicating
their rights without compromising their privacy.” Id. (internal citations
omitted).

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current stage of development; notice that the fetus can feel
pain at or before twenty weeks; information about the risks
of abortion and of carrying the fetus to term, and infor
mation regarding alternatives to abortion and other support
services available. Ind. Code § 16 34 2 1.1(a)(1) (2). A wom
an seeking an abortion must also receive a color copy of a
brochure, authored and distributed by the Indiana State De
partment of Health, that contains all of this same infor
mation. The State controls every aspect of the information
conveyed to patients via this brochure—from the drawings,
to the color, information about development, and wording
of the risks of the procedures. Neither the brochure nor the
informed consent information has been challenged in this
litigation.
Prior to the enactment of the challenged law, Indiana re
quired that “[b]efore an abortion is performed, the provider
shall perform, and the pregnant woman shall view, the fetal
ultrasound imaging and hear the auscultation of the fetal
heart tone if the fetal heart tone is audible,” unless the preg
nant woman certified in writing, on a form drafted by the
Indiana State Department of Health, that she declined to
view the ultrasound or hear the fetal heart tone. Ind. Code
§ 16 34 2 1.1(b) (2011). In other words, the provider must of
fer the ultrasound, but a woman may affirmatively decline.
Prior to 2011 the provider did not have to offer the ultra
sound, but only had to provide one if specifically requested
by the woman. P.L. 193 2011, Sec. 9. In fiscal year 2016, only
approximately 25% of women seeking abortion services
chose to view their ultrasound images and only approxi
mately 7% chose to listen to the fetal heart tone. Most im
portantly for this litigation, before 2016, the statute did not
mandate when the ultrasound must occur, other than prior

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to the abortion. As a practical matter, however, the ultra
sound procedures were performed just before the abortion.
Ultrasound equipment is expensive and scarce. Not all
PPINK locations have it, but, at the time the new law was
enacted, the four locations that perform abortions had the
equipment. Although patients can receive their informed
consent consultations at any one of the seventeen PPINK
health centers throughout Indiana, abortions are performed
only at four locations throughout Indiana (surgical abortions
are available only at three locations). Therefore, to prevent
women from having to travel far distances eighteen hours
apart, providers performed the ultrasound on the day of the
abortion procedure at one of the four facilities that had ul
trasound and performed abortions.
The new statute, however, prevents this practice. It re
quires the following:
At least eighteen (18) hours before an abortion
is performed and at the same time that the
pregnant woman receives the information re
quired by subdivision (1), the provider shall
perform, and the pregnant woman shall view,
the fetal ultrasound imaging and hear the aus
cultation of the fetal heart tone if the fetal heart
tone is audible unless the pregnant woman cer
tifies in writing, on a form developed by the
state department, before the abortion is per
formed, that the pregnant woman:
(A) does not want to view the fetal ultrasound
imaging; and

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(B) does not want to listen to the auscultation
of the fetal heart tone if the fetal heart tone is
audible.

Ind. Code Ann. § 16 34 2 1.1(a)(5). PPINK argues that this
requirement unduly burdens a woman’s right to an abor
tion. Because PPINK’s argument is based on the factual con
text, it is critical first to understand how PPINK health cen
ters operate and where they are located.
2. PPINK facilities
At the time the law suit began, PPINK operated twenty
three health centers in Indiana. Due to financial constraints,
that number has since dwindled to seventeen. Only four of
the centers offer abortion services—Bloomington, Indianapo
lis, Merrillville and Lafayette—the latter of which offers only
non surgical abortions using medication. Of the centers that
offer abortion services, the times these services are available
are exceptionally limited. In Indianapolis, abortion services
are only available three days per week; in Merrillville, a day
and a half per week; and in Bloomington and Lafayette, only
one day a week. R. 24 1 at 6. PPINK will perform a surgical
abortion only until thirteen weeks and six days after the first
day of a woman’s last menstrual period. It will provide med
ication abortions only until sixty three days after the first
day of a woman’s last menstrual period. Women who are
pushing up against the time deadline may not be able to
wait until a provider is available at the facility closest to
them, but may need to travel to a more distant facility where
a timely appointment can be made. The thirteen PPINK
health centers that do not provide abortion services provide
well women examinations, screening for cancer and sexually

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transmitted diseases, treatment for sexually transmitted dis
eases and other preventative health care.
There are no clinics in Indiana that perform abortions
past these dates. The only providers of abortion services af
ter these dates are hospitals and surgical centers (all of
which happen to be located in Indianapolis) and those facili
ties generally only provide abortions that are medically indi
cated because of a fetal anomaly or a threat to a woman’s
health, and these are quite rare. Out of the 7,957 abortions
performed in Indiana in 2015 (the year before enactment of
the new law), only 27 occurred in a hospital or surgical cen
ter. Only eighteen occurred after thirteen weeks. Indiana
State Department, Terminated Pregnancy Report—2015, at
pp. 7, 17, 18 (released June 30, 2016). Available at
https://www.in.gov/isdh/files/2015%20TP%20Report.pdf
[Last visited June 19, 2018].
PPINK has attempted to expand its health services
throughout Indiana, but it operates only seventeen centers
spread across a large state and only four that provide abor
tions. This means that some women must travel great dis
tances to obtain an abortion. For example, Indiana’s second
largest city, Fort Wayne, had a PPINK health center until Ju
ly 9, 2018, but it did not provide abortion services. Now it
has none.3 The closest center providing such services is 115
miles away in Lafayette (a more than two hour drive).4

3

PPINK anticipates reopening another clinic in Fort Wayne although it
does not have a timeframe for doing so. See Appellate Record at 51,
PPINK Citation of Additional Authority, 7/12/18.
4

According to Google Maps, the distance from Fort Wayne to the ad
dress of the PPINK clinics is as follows:

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There are also no out of state abortion clinics that are close
to Fort Wayne.
Prior to the enactment of the challenged law, women
seeking abortions could have their state mandated in
formed consent session at any one of the seventeen centers
across the state. At this appointment, which usually only
lasted about fifteen minutes, health care providers also cal
culated the gestational age of the fetus based on the length of
time from the first day of the last menstrual period. To make
it more convenient for patients, PPINK allowed parents to
bring children to these appointments. Women could then
have an ultrasound, as required by then existing state law,
on the day of the procedure at the health center providing
the abortion. PPINK would use that ultrasound information
to verify that the pregnancy was intrauterine (and not ectop
ic) and to verify the gestational age to insure that the abor
tions are being performed within the required limits. An ul
trasound is not medically necessary prior to an abortion, but
the state requirement to perform an ultrasound is not chal
lenged in this case, just the timing of it. Allowing the in
formed consent to be performed at any of the PPINK centers
made it practical for women who live a long distance from
the few centers that offer abortion services, by eliminating
the need for multiple visits.

Merrillville:
Lafayette:
Indianapolis:
Bloomington:
R. 24 1 at 3.

124 miles
115 miles
122 miles
203 miles

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Once the new law was enacted, requiring that the ultra
sound take place at least eighteen hours prior to the abor
tion, the barriers for many women increased significantly.
Because ultrasound machines were only available at the four
PPINK centers that provide abortion services, women who
lived a significant distance from one of those centers were
faced with two lengthy trips to one of those facilities or an
overnight stay nearby. PPINK attempted to ease that burden
by purchasing one additional ultrasound machine for one
health center that does not offer abortion services, and
trained a staff member to use ultrasound equipment at an
other. Those expenditures exacted a heavy toll on the financ
es of the organization, and still did not ease much of the
burden. The ultrasound machines PPINK uses cost approx
imately $25,000 and must be operated by trained technicians.
National Planned Parenthood policies, which are designed
to align with generally accepted medical standards, require
that an ultrasound image be interpreted by a physician or an
advanced practice nurse. The nurse practitioners at PPINK
do not have the requisite training and PPINK asserts that it
can afford neither the cost nor time to enroll nurses in the
four week training program.
3. Population served
The majority of women who seek abortion services at
PPINK (and for that matter, the rest of the nation) are poor.
The table below demonstrates the income level of patients
relative to the federal poverty line (FPL). 5

5

Poverty experts generally use 200% of the federal poverty line as an
approximation of the income necessary to survive on one’s own. R. 24 2

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Income
% of pa
Unknown
22%
0 100%
37%
101 150%
11%
151 200%
8%
201 250%
5%
251+%
16%
R. 24 1 at 14. These women often have precarious employ
ment situations and generally are not paid for days they do
not work. Many of them already have one or more children.
In 2016, 33.73 percent of PPINK patients reported that they
had children living with them. R. 24 1 at 4–5.
4. The district court’s decision
The district court carefully weighed the burdens identi
fied by PPINK against the benefits the State hoped would
accrue to its citizens—the protection of both fetal life and the
mental health of women. It concluded that:
The new ultrasound law creates significant fi
nancial and other burdens on PPINK and its
patients, particularly on low income women in
Indiana who face lengthy travel to one of
PPINK’s now only six health centers that can
offer an informed consent appointment. These
burdens are clearly undue when weighed
against the almost complete lack of evidence
that the law furthers the State’s asserted justifi
cations of promoting fetal life and women’s
mental health outcomes. The evidence present
ed by the State shows that viewing an ultra
at 4. Many experts describe those at or below 100% of the federal poverty
line as “poor” and those between 100% and 200% as “low income.” Id.

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sound image has only a “very small” impact
on an incrementally small number of women.
And there is almost no evidence that this im
pact is increased if the ultrasound is viewed
the day before the abortion rather than the day
of the abortion. Moreover, the law does not re
quire women to view the ultrasound imagine
[sic] at all, and seventy five percent of PPINK’s
patients choose not to. For these women, the
new ultrasound [law] has no impact whatsoev
er. Given the lack of evidence that the new ul
trasound law has the benefits asserted by the
State, the law likely creates an undue burden
on women’s constitutional rights.
Planned Parenthood of Ind. & Ky., Inc. v. Comm r, Ind. State
Dep t of Health, 273 F. Supp. 3d 1013, 1043 (S.D. Ind. 2017).
B. The legal standard
We review the district court’s grant of a preliminary in
junction in this case for an abuse of discretion, reviewing le
gal issues de novo, factual findings for clear error, and giv
ing deference to the district court’s weighing of the evidence
and balancing of the equities. Whitaker By Whitaker v. Kenosha
Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th
Cir. 2017).
To obtain a preliminary injunction, PPINK must establish
that it has some likelihood of success on the merits; that it
has no adequate remedy at law; that without relief it will
suffer irreparable harm. City of Chicago v. Sessions, 888 F.3d
272, 282 (7th Cir. 2018). If that burden is met, the court must
weigh the harm that the plaintiff will suffer absent an injunc

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tion against the harm to the defendant from an injunction,
and consider whether an injunction is in the public interest.
Id. Our court employs a sliding scale approach, “The more
likely the plaintiff is to win, the less heavily need the balance
of harms weigh in his favor; the less likely he is to win, the
more need it weigh in his favor.” Valencia v. City of Spring
field, 883 F.3d 959, 966 (7th Cir. 2018) (internal citations omit
ted).
The district court correctly noted that the need for and
propriety of a preliminary injunction of this law would de
pend mostly on the likelihood of success on the merits. It
therefore focused most of its attention, as do we, on that fac
tor.
II.
A. The test articulated in Casey and Whole Women’s
Health
The basic premise from which we must begin our review
of the district court opinion is that the Supreme Court has
recognized and affirmed “the right of the woman to choose
to have an abortion before viability and to obtain it without
undue interference from the State … [without] the imposi
tion of a substantial obstacle to the woman’s effective right
to elect the procedure.” Planned Parenthood of Se. Penn. v. Ca
sey, 505 U.S. 833, 846 (1992). But yet, “[t]he 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.” Id. at 874. How then, do we deter
mine whether a law’s effects are incidental or unconstitu
tionally limiting? The Casey court set forth an undue burden

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test which declared that a state may not establish a regula
tion that “has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a
non viable fetus.” Id. at 877. As the Casey court explained,
A statute with [an improper] purpose is invalid
because the means chosen by the State to fur
ther the interest in potential life must be calcu
lated to inform the woman’s free choice, not
hinder it. And a statute which, while further
ing 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. Recently, the Supreme Court reiterated this test noting
that Casey held that a law is unconstitutional if it imposes an
“undue burden” on a woman s ability to choose to have an
abortion, meaning that it “has the purpose or effect of plac
ing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.” Whole Woman s Health v. Hel
lerstedt, 136 S. Ct. 2292, 2324 (2016), (citing Casey, 505 U.S. at
877).
Importantly, both Whole Women’s Health and Casey stress
that the undue burden test is context specific. Id. at 2306; Ca
sey, 505 U.S. at 885. An abortion statute valid as to one set of
facts and external circumstances can be invalid as to another.
Whole Women’s Health, 136 S. Ct. at 2306.
The State argues that the test for weighing abortion regu
lations differs depending on the purpose of the statute and
that Casey and Whole Women’s Health establish different tests

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depending on the nature of the regulation. The State claims
that under Casey, an informed consent and waiting period
law will only be invalidated if the regulations “impose a
‘substantial obstacle in the path of a woman seeking an abor
tion.’” Appellant’s Brief at 26 (citing Casey, 505 U.S. at 877).
This standard, it argues, is somehow different than the un
due burden test of Whole Women’s Health which, the State
says, is only appropriately applied to regulations that osten
sibly promote women’s physical health. Appellant’s Brief at
17. The State claims that the balancing test is not appropriate
here because, unlike in Whole Women’s Health, the parties’
stated interests are fundamentally opposed—the plaintiffs’
goal is to help women carry out their decisions to terminate
a pregnancy and the State’s goal is to persuade a woman to
reconsider that decision. Regulations that address informed
consent and waiting periods, the State argues, are subject on
ly to “demonstration that they will cause a significant de
cline in abortions unrelated to the persuasive impact.” Ap
pellant’s Brief at 22.
The State is incorrect that the standard for evaluating
abortion regulations differs depending on the State’s assert
ed interest or that there are even two different tests—the
undue burden test of Whole Women’s Health and a less
exacting “substantial obstacle” test (as the State argues) de
rived from Casey. To the contrary, Casey described the undue
burden test as “a standard one of general application,” and
equated the “substantial obstacle” with “undue burden” not
ing that “[a] finding of an undue burden is 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 non viable fetus.” Casey, 505 U.S. at 876–77
(emphasis ours). In fact, in Casey’s seminal iteration of the

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undue burden test, the Court applied it to all of the regula
tions at issue in that case, including those that the state
claimed affected women’s health (record keeping and re
porting), but also to spousal notification and parental in
volvement, which the state asserted were related to its inter
est in potential life. Id. at 887–99. In other words, the Casey
Court applied the same undue burden test to all of the regu
lations at issue in that case without regard to the state’s as
serted interest. In fact, Casey made clear that “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 consid
ered a permissible means of serving its legitimate ends.” Id.
at 877 (emphasis added).
Nor is there anything in the Court’s decision in Whole
Women’s Health to suggest that it applied a different standard
than the undue burden test articulated in Casey. Rather, the
Whole Women’s Health Court clearly states to the contrary.
When discussing “undue burden” it starts with the sentence,
“We begin with the standard, as described in Casey” and
then goes on to note how it will apply that standard: “The
rule announced in Casey [] requires that courts consider the
burdens a law imposes on abortion access together with the
benefits those laws confer.” Whole Women’s Health, 136 S. Ct.
at 2309. And in fact, in announcing this rule, the Court cited
specifically to the balancing the Casey court did for provi
sions not justified by a concern for women’s health—those
related to spousal notification and parental consent. Id. (cit
ing Casey, 505 U.S. at 887–98, 899–901).
Not only does Whole Women’s Health confirm that courts
must apply the undue burden balancing test of Casey to all

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abortion regulations, it also dictates how that test ought to
be applied. Citing Casey, the Whole Women’s Health Court
emphasized that the undue burden test requires courts to
“retain[] an independent constitutional duty to review factu
al findings where constitutional rights are at stake.” Whole
Women’s Health, 136 S. Ct. at 2310. In other words, a court
cannot merely depend on legislative statements and findings
in evaluating the constitutionality of laws regulating abor
tion. Id. The proper standard is for courts to consider the ev
idence in the record—including, expert evidence. Id. And, as
we discuss next, this is precisely what the district court did
below.
B. The evidence of burdens and benefits
1. Burdens
Noting the Supreme Court’s mandate to consider the ev
idence in the record and then weigh the asserted benefits
against the burdens, the district court did just that; it made
findings and evaluated the persuasiveness of the evidence
regarding the burdens and benefits created by the new ultra
sound law. 273 F. Supp. 3d at 1021 (citing Whole Women’s
Health, 136 S. Ct. at 2310). Beginning with the burdens, the
district court considered the burdens as presented by
PPINK, focusing first on the proper population to consider,
and then considering how the new regulations impact fi
nances, employment, child care, and the safety of women in
abusive relationships.
As the district court noted, “[t]he proper focus of consti
tutional inquiry is the group for whom the law is a re
striction, not the group for whom the law is irrelevant.” Id. at
1021 (citing Casey, 505 U.S. at 894). In this case, as the district

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court correctly determined, the new ultrasound law is a re
striction primarily for women for whom an additional
lengthy trip to a PPINK health center for their informed
consent appointment acts as an impediment to their access
to abortion services. The district court found specifically that
this group consisted of low income women who do not live
near one of PPINK’s six health centers where ultrasounds
are available. We agree with the district court on this point,
but also note that the concerns about confidentiality in em
ployment situations and abusive spouses that we address
further below, can create impediments that span income lev
els. Nevertheless, our analysis, like the district court’s, does
not rely upon this larger group.
All of the burden in this case originates from the lengthy
travel that is required of some women who have to travel far
distances for an ultrasound appointment at least eighteen
hours prior to an abortion. Recall that before the enactment
of the new ultrasound regulation, all women seeking an
abortion had to travel some distance to the nearest PPINK
facility at least eighteen hours prior to an abortion in order
to participate in an informed consent information session.
Because the law did not require that women have an ultra
sound until just before the abortion procedure, however,
they could participate in that informed consent meeting at
any of the twenty three PPINK facilities spread throughout
Indiana.6 Now, however, they must travel on the day prior
to the abortion, to one of six PPINK facilities that has ultra
sound equipment. As we noted above, this means that some
women must travel great distances twice in order to receive
6

Due to budget problems there are now only seventeen PPINK facilities
in Indiana.

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an abortion. For example, women in the second largest city
in Indiana, Fort Wayne, must now travel approximately 400
miles over two days to obtain an abortion, as the closest ul
trasound machine is 87 miles away in Mishawaka (174 miles
round trip) and the nearest abortion providing health center
is 115 miles away in Lafayette (230 miles round trip). R. 24 1
at 3, 13–14. Previously, when Fort Wayne still had its non
abortion providing health clinic, women in Fort Wayne
could have their fifteen minute long informed consent ap
pointment right at the PPINK health center in Fort Wayne.
Although the travel distance is the origin of the burden,
the district court found that the strain of the law extends into
the realm of finances, employment, child care, and domestic
safety. The district court considered the testimony of
PPINK’s expert in gender studies, poverty, and low wage
labor markets, Dr. Jane Collins, who explained the impact of
the new law on these interconnected stressors and on the al
ready precarious financial lives of poor women seeking an
abortion. R. 24 2. She analyzed the family budgets of low
income women and assessed how the additional costs asso
ciated with the new ultrasound law would impact these
women and their families. Her testimony confirmed what
common sense suggests. Many low income women do not
have employment that pays them when they miss a day of
work or they may have precarious job situations in which
they could be fired for excessive absences. A second lengthy
trip for an ultrasound appointment likely requires a second
missed day of work. And women with young children who
could previously bring them along to an informed consent
session must leave them behind for the ultrasound, as
PPINK’s policies prohibit children from being present dur
ing an ultrasound. (And as we discuss below, both safety

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and common sense support such a policy). The new ultra
sound law therefore requires women to arrange child care
for an additional day.
Dr. Collins calculated that the additional cost posed by
the new ultrasound law for a woman living in Fort Wayne,
Indiana who has children, no car, and would lose a day’s
wages would be between $219 to $247. R. 24 2 at 18. Many
low income families have a discretionary monthly budget of
approximately $40. Id. The additional expenses of over $200
constitute roughly 25% of their entire monthly budget. Id.
These expenses are above and beyond the cost of the abor
tion itself which was, at the time of the hearing, $410 for the
abortion and $100 for the ultrasound. R. 24 1 at 8; R. 35 5 at
35. Dr. Collins explained that to cover the costs associated
with abortions, many women (about one third) will delay or
stop paying basic bills in order to afford an abortion. R. 24 2
at 21. Up to 50% of women borrow money from family and
friends. R.24 1 at 20. The district court concluded that, “for
many women faced with the already high costs of an abor
tion and a lack of means to afford them, the additional ex
penses of lengthy travel, lost wages, and child care created
by the new ultrasound law create a significant burden.” 273
F. Supp. 3d at 1028.
The cost of the ultrasound rule is measured not only in
dollars but in time and access as well. Surgical abortions are
available at PPINK health centers until thirteen weeks and
six days after the last menstrual period. In fiscal year 2016,
approximately 22% of all abortions and more than 34% of
surgical abortions performed at PPINK took place in the
three weeks before the deadline. R. 24 1 at 7–8. Women often
push up against the deadline because they are gathering the

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necessary funds, making logistical arrangements or because
they failed to promptly recognize the signs of pregnancy.
R. 24 1 at 7–8. (Most women cannot know they are pregnant
until at least 4 weeks following their last menstrual period,
thus reducing the time they have to discover the pregnancy,
explore their options and discuss them with a partner, fami
ly or doctor, arrange for missed work and child care, and se
cure two appointments—to only nine weeks, 6 days for a
surgical abortion and thirty five days, for a medical abor
tion).
Before the new ultrasound law, PPINK could usually ac
commodate women imminently facing the deadline by
scheduling an informed consent appointment at the nearest
PPINK health center and then, the next day, she could travel
the further distance, if necessary, to a PPINK facility that of
fered abortion services. After the enactment of the new law
(and before the district court issued a preliminary injunc
tion), the PPINK health centers with ultrasound machines
became so overwhelmed with appointments that PPINK
could not adequately respond to women who contacted
PPINK near the end of the allowable time period. As a re
sult, PPINK had to double book appointments causing fur
ther delays for women and longer wait times for women
who were already missing work time and needing to ar
range child care. Even with overscheduling, appointment
availability grew scarce and women had to wait longer to
have an abortion. This precluded the option of medication
abortions for some women and any abortion choices for oth
ers. Abortion appointments were already scarce in Indiana
given that physicians are only available at the four health
centers offering abortions at limited times: Indianapolis (3
days/week); Bloomington (1 day/week); Merrillville (1.5

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days/week); and Lafayette (1 day per week). R. 24 1 at 6.
With such limited availability, delays in getting an ultra
sound appointment might mean having to wait an entire
week longer before a physician is available at the closest
PPINK center, or travelling to the health center where a phy
sician is on duty. Moreover, the new law causes other prob
lems related to delay. Although the informed consent pro
cess only took approximately fifteen minutes before, after
the enactment of the new law, the process took as long as
seventy five minutes. This added to the cost of child care,
missed work time, and made it harder to hide visits from
abusive partners.
The district court credited the evidence that the demands
on the PPINK staff trying to accommodate so many addi
tional ultrasound appointments during the period of time
the law was enforced were unsustainable. The additional
quantity of appointments required staff to stay late and took
away resources from the many non abortion services that
PPINK provides such as cancer screening, well women
health screening, family planning, and preventative services.
According to PPINK’s CEO, requiring staff to work at this
pace and level of intensity is not workable over the long
term, and ultimately leads to high staff turnover, exacerbat
ing the problem further. R. 24 1 at 11.
Finally, the district court found that the new regulation
has an impact on victims of domestic violence. The district
court noted that one national study showed that 13.8% of
women who had an abortion had been in an abusive rela
tionship within a year before the abortion. 273 F. Supp. 3d at
1026. Instead of stealing away for a fifteen minute informed
consent session at a nearby PPINK health center, abused

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women trying to keep their choice confidential have to ar
range to be away for all or most of two days.
The district court also considered the anecdotal evidence
submitted by PPINK about nine women who could not ob
tain an abortion due to the burdens imposed by the new ul
trasound law. The court considered the following narratives
collected by PPINK from women who described their expe
riences as follows:
• The nearest PPINK health center to a woman
seeking an abortion was over an hour away,
and due to the fact that she has two young
children and difficulty with transportation, she
was unable to schedule the two lengthy trips
during the thirteen week, six day timeframe in
which an abortion is available.
• A woman from the Fort Wayne area did not
schedule an abortion because of the two
lengthy trips necessary. She was eleven weeks,
four days pregnant when she contacted
PPINK, but could not miss work twice within
the short timeframe remaining.
• A woman who previously had an abortion at
PPINK called to schedule another, but ulti
mately said she could not schedule one after
she was informed she would have to make two
trips to the PPINK health center in Blooming
ton, Indiana.
• A woman living in a shelter with two young
children decided not to schedule an abortion
appointment because of the transportation and

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childcare difficulties two appointments would
cause.
• A woman who recently started a new job af
ter a year of unemployment stated that she
could not drive the three hour roundtrip to a
PPINK health center on two separate occasions
due to the combination of work, childcare, and
transportation expenses, in addition to her
concerns regarding the confidentiality of the
abortion.
• A woman who did not learn she was preg
nant for ten weeks faced a long delay before
she could have her informed consent appoint
ment that required travel to a PPINK health
center, and by the time of her appointment she
was one day beyond the deadline for an abor
tion.
• A woman from Fort Wayne who had a pre
vious abortion at PPINK called to schedule an
other, but once she was informed that she
would have to make two lengthy trips to a
PPINK health center, she said she could not af
ford to do so and did not schedule an abortion.
• A woman living an hour north of Fort
Wayne who has special needs children de
clined to schedule an abortion after learning
that she would have to make two lengthy trips
for each appointment, as she could not afford
to be away from her children for that long on
two occasions.

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• A woman from Fort Wayne who was ap
proaching the deadline to have an abortion de
clined to schedule an appointment due to the
required travel and risk of missing the dead
line by the time she could schedule both ap
pointments.

273 F. Supp. 3d at 1029–30 (citing R. 24–1 at 16–17; R. 38–1 at
1–2).
Before the district court, and again on appeal, the State
argued that PPINK’s examples were unreliable as they were
passed on to a PPINK staff member and then to the declar
ant without PPINK taking any action to verify the infor
mation. The district court considered the reliability issue but,
noting that a court could base a preliminary injunction on
less formal procedures and less extensive evidence than a
trial on the merits (citing Dexia Credit Local v. Rogan, 602 F.3d
879, 885 (7th Cir. 2010)), the district court found the evidence
to be sufficiently reliable for the purpose at hand. The court
reasoned that the reports reflected a plausible, if not likely,
consequence of the new ultrasound law. Moreover, the court
recognized that, as we explore more fully below, the State’s
“only evidence that the law furthers its interest in promoting
fetal life is from a woman whose testimony was admitted
into evidence through the declaration of her physician.” 273
F. Supp. 3d at 1030 (emphasis in original). In a good for the
goose and gander way, the district court pointed out that if,
for purposes of the preliminary injunction, the court ignored
all evidence not directly from its source, “the State would be
left without any evidence directly supporting its position.”
Id. The district court’s comparison was apt and its conclu

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sions reasonable. We cannot say that this was an abuse of
discretion to consider the anecdotal evidence on both sides.
The State argued that PPINK could mitigate these bur
dens by making different medical and business decisions,
primarily by outfitting all of its health centers with less ex
pensive ultrasound equipment and by putting more re
sources toward abortion services.7 PPINK’s director of abor
tion services explained that the $25,000 machine that PPINK
ordinarily purchases comes with an extended warranty, in
cludes planned maintenance, replacement parts, software
updates, support, and a guaranteed 24 hour response time if
there are any problems with the machine. R. 38 1 at 3–4. It
also integrates with PPINK’s electronic record system which
is critical when the ultrasound and abortion appointment
occur at different health centers. Id. at 4. And, as PPINK
points out, even if it could afford to buy the machines, it
would still be limited by space and personnel. The district
court rejected the State’s mitigation argument, noting that
the “undue burden inquiry does not contemplate re

7

Before the district court, the State also argued that PPINK should ac
cept ultrasounds results from other providers, but has dropped that ar
gument on appeal. The State law requires that the same provider who
performs the ultrasound also engage the patient in the informed consent
process. The required informed consent process is very specific and de
tailed and requires that the person providing the information provide
some information that only the abortion provider might have, such as
the name of the physician performing the abortion, the physician’s medi
cal license number, and the emergency phone number where the physi
cian can be reached twenty four hours a day, seven days a week. Ind. St.
16 34 2.1.1(a)(4). The district court found that, given these requirements,
it seems unlikely that an outside provider could comply with the in
formed consent procedure as dictated by the statute. We agree.

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examining every pre existing policy or practice of abortion
providers to see if they could further mitigate burdens im
posed by a new abortion regulation.” 273 F. Supp. 3d at
1023. In general, courts do not micromanage an entity’s
business decisions. See Riley v. Elkhart Cmty. Sch., 829 F.3d
886, 895 (7th Cir. 2016) (noting that, in the Title VII context,
courts do not “second guess[] employers’ business judg
ments”). Provided PPINK set forth a reasonable explanation
for purchasing these particular ultrasound machines—and it
has, indeed, done so—the district court was entitled to defer
to PPINK’s justifiable business decisions and consider the
burdens of the new ultrasound law within the context of the
reality that exists for both PPINK in operating its business
and for the patients it serves. We agree with the district
court’s assessment and its deference to PPINK’s reasonable
business decisions. In addition, we note that it also would be
reasonable for PPINK to make decisions about its medical
equipment needs based not only on economic concerns, but
also on its ability to provide the best medical care for its pa
tients, to attract certain medical professionals, for the safety
of its technicians, to prevent malpractice claims, or for any
number of other legitimate reasons.
The same can be said of PPINK’s staffing decisions. The
State thought that PPINK also could mitigate burdens by
training nurse practitioners to interpret ultrasounds. This
training, however is both expensive and requires four weeks
away from clinical work. PPINK rationally could determine
that it was not the best allocation of its resources. The State
argues that the right to an abortion does not insulate PPINK
from making difficult decisions about the allocation of re
sources. That may be true, but neither is it appropriate for an
opposing party or a court to dictate the best use of resources

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for a business, provided its choices are within the range of
reasonableness—but particularly in the case of a non profit
agency with limited funding seeking to provide the most ef
ficient health care services to a mostly poor population.
The district court credited the attestation by PPINK’s
president and CEO that PPINK was unable to supply each
center with the equipment and staff it needed to provide ul
trasounds. In response to the new law, PPINK did buy one
new ultrasound machine for one of its non abortion
providing health centers and trained a staff member to use
ultrasound equipment at another, indicating its commitment
to providing as much service as it could despite the burdens
of the new law. The State’s argument about PPINK merely
needing to shift resources to afford the ultrasound machines
is both odd and unworkable. Only 7% of PPINK’s patients
receive abortion services, so in theory PPINK could shift re
sources for the 93% of its other services to abortion services.
It seems illogical for a state with an asserted interested in
protecting fetal life to be encouraging PPINK to shift all of its
resources from other healthcare, such as pregnancy preven
tion and cancer screening, to abortion services. It is unwork
able because, as we noted, neither the State nor the courts
has the authority to rewrite PPINK’s mission and dictate
how it must allocate its limited resources. PPINK operates in
a world where limited health care dollars for mostly poor
women must be allocated in an efficient way, and in a way
that provides the greatest care for the greatest needs.
The fact that courts are bound by the reality in which the
laws operate is reflected in other abortion cases. In Whole
Women’s Health, the Court found that the requirement that
all abortion facilities meet the standards for ambulatory sur

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gical centers would reduce the number of abortion facilities
in Texas from forty to seven and thus unconstitutionally
burden the right to an abortion. Whole Women’s Health, 136
S. Ct. at 2301, 2318. The Court looked at the cost a facility
would have to incur to meet the requirements—$1–$3 mil
lion—and assumed that the facilities would close rather than
be able to meet the requirements, despite the fact that each
facility could, in an alternate universe where resources were
unlimited, simply make the changes. Id. at 2318.
Similarly, in Schimel, this court looked at the burden im
posed by the proposed abortion law requiring physicians
who provide abortion services to have admitting privileges
at a hospital within thirty miles of the abortion clinic.
Planned Parenthood of Wisc., Inc. v. Schimel, 806 F.3d 908, 918
(7th Cir. 2015). In granting an injunction, we recognized that
the delays caused by the new law might cause some women
to lose the chance to have an abortion within the time period
that Planned Parenthood allowed. No one in that case sug
gested that Planned Parenthood provide later term abor
tions. Id. Instead this court spent most of the opinion exam
ining the reality of what an emergent situation might look
like in the abortion context and how a patient in such a situa
tion might receive care. Id. at 912–16. Courts must consider
the impact of the new ultrasound law based on the reality of
the abortion provider and its patients, not as it could if pro
viders and patients had unlimited resources.
The State’s arguments about mitigating child care bur
dens similarly miss the mark. The State suggests that women
simply could bring along their children to the ultrasound—
most of which are performed transvaginally at these early
stages. See R. 35 5 at 27. But Planned Parenthood’s policy

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prohibits children at ultrasound appointments, and with
good reason. One wonders at what age a child could appro
priately sit through such a procedure? A woman undergoing
a transvaginal ultrasound must lie still while the transducer
is inserted into her vagina and used to view the fetus and
her organs. See https://www.healthline.com/health/transvag
inal ultrasound. She would have no way to soothe a crying
baby or monitor a toddler running through the exam room.
Neither the person performing the ultrasound nor the pa
tient is in a position to monitor the safety of the child in a
medical examination room, and PPINK submitted evidence
of its concerns about the “serious risk of distraction” for the
doctor performing the procedure. R. 35 5 at 26. Nor would
most women wish to undergo such a procedure with a pre
teen son or daughter in the room, even with, as the State
suggests, a sheet draped over her legs. Like all women, poor
women deserve a level of dignity and choice about the con
fidentiality of their healthcare. Moreover, this is a perplexing
argument from a State that wants women to seriously “re
flect upon compelling evidence of fetal humanity,” and form
a bond with the fetus “while viewing this live, moving im
age of their baby, with arms and legs.” Appellant’s Brief at 2,
4. It seems likely that having children in the room would
significantly decrease the ability for serious reflection in the
bulk of situations.
2. Benefits
Balanced against these substantial burdens, the district
court considered the intended benefits of the new law. As
we just noted, the State wishes to “encourage women to re
flect upon compelling evidence of fetal humanity,” and to
persuade a woman to reconsider her decision to have an

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abortion. Appellant’s Brief at 2, 18, 20, 23. The State argues
that ultrasounds have a unique impact on a pregnant wom
an because they allow her to see her own fetus rather than a
photograph or illustration of a generic fetus, and this, the
State hopes, helps “create a bond that leads them to continue
their pregnancy.” Appellant’s Brief at 4.
The new ultrasound law encourages women to carry
pregnancies to term in two ways, the State argues. First, it
gives them information about their particular fetus and, sec
ond, it gives them time to reflect upon that information be
fore they make their final decision. According to the State,
“A woman offered the chance to view an ultrasound 18
hours before an abortion may well have a different mindset
than a woman who has already made a final decision and
presents herself at the clinic to carry it out.” Appellant’s
Brief at 25. To support its claim that ultrasounds matter, the
State introduced a study demonstrating that for the 7% of
women who seek abortions and have medium to low “deci
sion certainty,” (presumably meaning that they are not very
certain about their choice), those who viewed an ultrasound
image had a 95.2% rate of proceeding with an abortion com
pared to 97.5% rate for women with high decision certainty
who viewed an ultrasound. Mary Gatter et. al. Relationship
Between Ultrasound Viewing and Proceeding to Abortion, 123
Obstetrics & Gynecology 81, 83 (2014). This evidence, how
ever, is focused on the benefits of an ultrasound and not the
benefits of an ultrasound eighteen hours before an abortion.
The State’s strongest evidence that the eighteen hour re
quirement provides some benefit, however, came from the
testimony of Dr. Christina Francis, a board certified obstetri
cian gynecologist who testified that she had a patient who

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would have benefitted from the new law. The patient had a
medication abortion at PPINK in Indianapolis and under
went the required ultrasound that day, as required by the
law at the time. She told Dr. Francis, that she regretted hav
ing the abortion
and feels that an ultrasound waiting period
would have given her more time to consider
her decision and change her mind. … She un
derwent the ultrasound on the day of her abor
tion, immediately prior to receiving the medi
cation. She chose not to view the ultrasound
image because she felt that if she saw an image
of her baby it would cause her to change her
mind. She told [Dr. Francis] that she did not
want to be persuaded not to abort because she
was already at the clinic, had paid for the abor
tion, and felt pressured by those circumstances
to go through with it. [She] told [Dr. Francis]
that had she undergone the ultrasound the day
before the abortion, she likely would have
viewed the image and she does not think she
would have come back the next day to proceed
with the medication abortion.
R. 35 1 at 5. This is the State’s strongest evidence because it is
the only evidence that the eighteen hour waiting period mat
ters for women seeking abortions, as opposed to the ultra
sound itself.
The State also argued that voluntary waiting periods are
common for other procedures where physicians give pa
tients the opportunity to weigh the costs and benefits of var
ious options and think of additional questions or concerns.

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As evidence, the state presented the declaration testimony of
Dr. Francis, who explained her preference to “give patients
time to reflect on the information they have received, weigh
the possible risks and benefits of the procedure, discuss the
procedure with loved ones, and ask questions of the doctor.”
R. 35 1 at 2–3. She stated that for “life altering” procedures,
she provides informed consent information one to four
weeks prior to the procedure. R. 35 1 at 3. The State did not
argue that a waiting period is mandatory for any of these
procedures.
Finally, the State argues that the ultrasound law advanc
es important state interests in the psychological health of
women considering abortion. For this proposition it relied
on a controversial and much maligned (see below) study by
Priscilla K. Coleman which concluded that “quite consistent
ly … abortion is associated with moderate to highly in
creased risks of psychological problems subsequent to the
procedure.” Priscilla K. Coleman, Abortion and Mental
Health: Quantitative Synthesis and Analysis of Research
Published, 1995 2009, 199 British Journal of Psychiatry, 180–
86 (2011). Moreover, the State argued, the earlier ultrasound
ensures that a woman does not become psychologically
committed to having an abortion only to arrive for the pro
cedure and learn that she has waited too long.
The district court unequivocally accepted the State’s as
serted interests as legitimate. Indeed, Casey instructs that
“the State has a legitimate interest in promoting the life or
potential life of the unborn.” Casey, 505 U.S. at 870. And, of
course, no one would argue that protecting maternal psy
chological health is not a legitimate state interest.

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3. Weighing
After this thorough compilation of the burdens and bene
fits, the district court turned its attention to resolving the ul
timate question—whether, after considering the burden the
law imposes on abortion access, together with the benefits
those laws confer, the new ultrasound law has “the effect of
placing a substantial obstacle in the path of a woman’s
choice” to have an abortion. Whole Women’s Health, 136 S. Ct.
at 2309 (citing Casey, 505 U.S. at 877). But before the court
could weigh the benefits and burdens, it had to answer two
baseline questions: first, what group of women should the
court consider when weighing the burdens imposed, and
second, on what aspect of the law should the court focus its
benefit and burden weighing analysis—in other words, what
is the relevant question presented by this case. The Court in
Whole Women’s Health made the answer to the first question
clear by explaining that a court must look specifically at
“those women for whom the provision is an actual rather
than an irrelevant restriction.” Id. (citing Casey, 505 U.S. at
895). In this case, the district court determined that the rele
vant group consisted of low income women who live a sig
nificant distance from one of the six PPINK health centers
offering informed consent appointments.
As for the question of which benefits and burdens the
court must weigh, the district court emphasized that the
question it was required to consider was “whether the ultra
sound law provides the asserted benefits as compared to the
prior law.” 273 F. Supp. 3d at 1031 (emphasis in original) (cit
ing Whole Women’s Health, 136 S. Ct. at 2311). In other words,
the only relevant burdens and benefits to consider as a court
weighs one against the other are the burdens imposed by the

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requirement to have an ultrasound at least eighteen hours be
fore an abortion, and the benefits of having the ultrasound at
least eighteen hours before the procedure (not the burdens or
benefits of the ultrasound itself). PPINK did not challenge
the requirement that a patient undergo an ultrasound at
some point prior to the abortion. Nor was it challenged
when it was enacted. See Appellant’s Brief at 4. Therefore
the benefits of having an ultrasound at some time prior to an
abortion (without regard to the “eighteen hour prior” re
quirement) are irrelevant. It is the burden of travelling twice
which becomes the obstacle to access.
Having determined the proper focus of the inquiry, the
district court could turn to its ultimate task of determining
whether the burdens of the law’s requirements were “dis
proportionate, in their effect on the right to an abortion”
compared to the benefits that the restrictions are believed to
confer.” Schimel, 806 F.3d at 919. To determine whether a
burden is undue, the court must “weigh the burdens against
the state’s justification, asking whether and to what extent
the challenged regulation actually advances the state’s inter
ests. If a burden significantly exceeds what is necessary to
advance the state’s interests, it is ‘undue,’” and thus uncon
stitutional. Schimel, 806 F.3d at 919.
The district court found that the burdens were signifi
cant: additional travel expenses, childcare costs, loss of en
tire days’ wages, risk of losing jobs, and potential danger
from an abusive partner. 273 F. Supp. 3d at 1037. Increased
travel distance, the Whole Women’s Health Court instructed,
constitutes a concrete hardship that can ultimately contrib
ute to the burden being undue. Whole Woman s Health, 136
S. Ct. at 2313. See also Schimel, 806 F.3d at 919 (noting that

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the 90 mile, one way trip from Milwaukee to Chicago might
not cause a significant burden to a person who can afford a
car or train ticket, but was indeed an undue burden for the
large percent of women seeking abortions who live below
and far below the poverty line). These are just the types of
burdens, the district court concluded, that prevent women
from exercising their right to have an abortion.
The funneling of all informed consent appointments to
the six PPINK health centers with ultrasound equipment
imposed other burdens. It required PPINK to double book
appointments which increased wait times for appointments
and elongated the duration of those appointments. These
were the kinds of incremental burdens that the Supreme
Court considered in Whole Women’s Health as well, when it
noted that “[t]hose closures meant fewer doctors, longer
waiting times, and increased crowding,” and that those bur
dens, along with increased driving distances were the type
of incremental burdens, which, when taken together ade
quately support an “undue burden” conclusion. Whole Wom
an s Health, 136 S. Ct. at 2313.
On the other side of the scale, the district court found
that the State’s many arguments regarding the benefits of the
ultrasound missed the mark by addressing the utility of the
ultrasound itself as opposed to the period of reflection. But
even considering the merits of that data submitted by the
State, the district court noted that the ultrasound effect study
relied upon by the State described the potential impact of
viewing an ultrasound to have a “very small” effect on a po
tential pool of only about 7% of women seeking abortions—
those who had low or medium decision certainty, and no
impact on women with high decision certainty—those who

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make up 93% of women seeking abortions. 273 F. Supp. 3d
at 1032–33 (citing Gatter, Obstetrics & Gynecology, Vol. 123
at 83). And although the study states that women with low
decision certainty who viewed an ultrasound image had a
95.2% rate of proceeding with an abortion compared to
97.5% rate for women with high decision certainty who
viewed an ultrasound, (Gatter, Obstetrics & Gynecology,
Vol. 123 at 83) the State does not tell us how many women
with low decision certainty changed their minds even with
out seeing an ultrasound image. For the ultrasound to have
any impact, the women must actually view the ultrasound,
and only approximately 25% of PPINK patients chose to do
so (We do not know whether that number differs between
low and high decision certainty patients because the State
presented no evidence on that point.). This means that if
there is any chance that this “very small” impact will suc
ceed it will do so only for the pool of women consisting of
the 7% of abortion seekers with low or medium decision cer
tainty and only on whatever percentage of that 7% who ac
tually choose to also view the ultrasound, but likely only
25% of that 7% or 1.75%. Nor can we tell if these low deci
sion certainty patients might have changed their minds even
without the ultrasound. In general, the study that both par
ties cite of over 15,000 women seeking abortions at a
Planned Parenthood in Los Angeles demonstrated that most
visits end in abortion—98.8%. Gatter, Obstetrics & Gynecol
ogy, Vol. 123 at 82. For the whole population of women in
that study who viewed an ultrasound, 98.4% had an abor
tion. Id. It seems from the study that increasing gestational
age of the fetus (something that can be determined without
ultrasound), had more to do with the decision not to proceed
to abortion than viewing of an ultrasound. Id. The district

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court concluded that if viewing the ultrasound has little to
no impact, then “[i]t is simply not a reasonable assump
tion … that further time to deliberate on an image that has
nearly no impact at the time, would create a meaningfully
stronger impact after eighteen hours.” 273 F. Supp. 3d at
1034.
We agree with the State that it is entitled to try to per
suade women not to have an abortion even if the impact is
minimal. Nevertheless, in weighing the benefit of the partic
ular measure at issue, a court may consider the minimal pu
tative effects of the State’s action. The more feeble the state’s
asserted interest, “the likelier the burden, even if slight, to be
‘undue’ in the sense of disproportionate or gratuitous.”
Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d
786, 798 (7th Cir. 2013).
More importantly, even if the ultrasound does influence
a very small percentage of women to alter their decision, all
of that is irrelevant, because, as the district court explained,
“[e]vidence that some women’s decisions as to whether to
have an abortion are impacted by viewing the ultrasound is
not evidence that doing so at least eighteen hours before the
abortion, rather than on the day of the abortion, has any ad
ditional persuasive impact.” 273 F. Supp. 3d at 1032.
The State’s argument that the additional eighteen hours
gives women time for deeper reflection and to absorb infor
mation, actually does address the question at issue in the
case, but its argument is unsupported by anything other
than Dr. Francis’ one anecdote. Moreover, one could just as
easily infer that the impact of viewing the ultrasound image,
for some women, dissipates over the eighteen hours before
the abortion. The State asks us to infer that some women

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who choose not to view the ultrasound do so because they
are under a time pressure and because they have arrived at
the health center having already made up their minds, but
the State offers no evidence for this. Recall that even under
the old law, women who arrived at the health center on the
day of their abortion had already received copious infor
mation from the State designed to alter their decision to
abort, and had plenty of time—at least eighteen hours—to
digest and consider their options while not under an acute
time pressure.
The only relevant evidence the State submitted to sup
port the proposition that the eighteen hour requirement in
creases a woman’s ability to reflect more seriously on her
decision came from the testimony of Dr. Francis who stated
that one patient reported to her that she might have opted to
view the ultrasound and then might have continued her
pregnancy had she been given the option to view the ultra
sound eighteen hours before her procedure, as opposed to at
the time of the procedure. The district court noted that this
was indeed some evidence that women may change their
minds if they have more time to reflect on the decision, but it
also found this singular example to be exceedingly specula
tive. “She can only say that she ‘likely’ would have viewed
the ultrasound, if it was offered a day earlier” (which cur
rently only about 25% of women do), and “she ‘likely’ would
not have returned for an abortion the next day.” 273 F. Supp.
3d at 1035. The district court, when weighing how much
weight to give this evidence, concluded that this was “far
from compelling evidence that the new ultrasound law
would have the impact desired by the State, and as such, it
must be given diminished weight in the balancing process.”

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Id. We see no reason to disrupt the district court’s vast dis
cretion in weighing this evidence.
Dr. Francis’ other testimony—that some of her pregnant
patients have told her that “viewing an ultrasound image of
their baby caused them to decide not to have an abortion”
(R. 35 1 at 4)—does not add anything to the consideration of
whether viewing the ultrasound eighteen hours prior to the
abortion alters the calculus in any way.
The State’s argument that doctors commonly use in
formed consent waiting periods to give patients time to con
sider important medical decisions does come closer to the
relevant question in the case—the benefit of a waiting period
between acquisition of knowledge and a medical procedure
itself. Dr. Francis testified about the importance of giving pa
tients time to reflect, weigh risks and benefits, and think of
questions. See R. 35 1 at 3. The district court noted, however,
that Dr. Francis does not provide abortion services and
therefore could not attest to the utility of a waiting period
after an informed consent process preceding an abortion.
The district court instead gave more weight to PPINK’s ar
gument that abortion procedures are different than other
procedures where doctors give information long before a
procedure, because unlike in the context where a doctor is
providing a previously unknown diagnosis to a patient and
then detailing various options, a woman visiting PPINK to
have an abortion knows her diagnosis (she is pregnant), as
well as her options—she may continue the pregnancy or
have an abortion. Moreover, the law already requires that
she be informed of her options and wait eighteen hours until
the procedure. The only issue is whether having the ultra
sound eighteen hours before alters the calculus. Finally,

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there is a qualitative difference between a state mandated
waiting period, which the State requires only for abortions,
and other optional waiting periods, for all other procedures,
where a doctor and her patient may decide together whether
time for reflection would be optimal or whether, for exam
ple, waiting would cause the patient anxiety, inconvenience,
or deter her from having the desired procedure at all.
Moreover, as the district court discussed, there are many
office procedures that gynecologists might perform immedi
ately after discussing the procedure and asking for consent,
such as colposcopies and LEEP procedures. 273 F. Supp. 3d
at 1034. And there are many times that doctors might need
to perform an emergent procedure immediately after
providing informed consent, or times in which patients
might opt for immediacy even in a non emergent situation
for the sake of convenience or because they are certain of
their decision. Unlike for a hysterectomy or tubal ligation,
waiting a few weeks for an abortion is not an option because
abortions are not available at PPINK after 13 weeks and six
days post last menstrual period, and the most vigilant wom
an will not know she is pregnant until about four weeks af
ter her last menstrual period. In short, abortions are far more
time sensitive than most other elective procedures.
Ultimately, the district court’s conclusion that the new ul
trasound law posed an undue burden was solidified by the
fact that the State had almost no evidence that the additional
time to reflect advanced its interests. Almost all of the State’s
evidence on the benefits of the new eighteen hour ultra
sound law focused on the benefits women might receive
from having an ultrasound, and not the benefits from having
to wait eighteen hours after having an ultrasound to obtain

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the procedure. The district court noted this and therefore
dismissed much of this evidence as irrelevant to the discus
sion at hand. But before the district court did so, it went
above and beyond its duty and thoroughly evaluated the
merits of the evidence nevertheless. For example, the district
court rejected the State’s evidence regarding women’s men
tal health noting that the science behind Dr. Coleman’s stud
ies, described above, had been nearly uniformly rejected by
other experts in the field. 273 F. Supp. 3d at 1036. The district
court chose to credit instead two mental health organizations
that conducted a comprehensive review of studies on mental
health and abortion and concluded that “on the best evi
dence available … [t]he rates of mental health problems for
women with unwanted pregnancy were the same whether
they had an abortion or gave birth.” R. 38 3 at 3. A task force
of the American Psychological Association similarly re
viewed studies and concluded that, “the most methodologi
cally sound research indicates that among women who have
a single, legal, first trimester abortion of an unplanned preg
nancy for non therapeutic reasons, the relative risks of men
tal health problems are not greater than the risks among
women who deliver an unplanned pregnancy.” Id. at 2–3.
That report specifically criticizes Dr. Coleman’s 2002 report
as being “characterized by a number of methodological limi
tations that make it difficult to interpret the results.” Id. at 4.
The district court, using its substantial discretion weighed
the competing evidence and determined that PPINK’s evi
dence was “significantly more persuasive on this issue, es
pecially given that Dr. Coleman’s studies are the subject of
significant criticism.” 273 F. Supp. 3d at 1036. This type of
evidence weighing is well within the district court’s prov

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ince, and we see no reason to disturb its thoroughly rea
soned findings.
More importantly, the court below noted, Dr. Coleman’s
study failed to address the relevant question: whether hav
ing an ultrasound eighteen hours before an abortion leads to
more favorable psychological outcomes. Id. And, as we have
discussed extensively, this was the ultimate question that the
district court had to address.
The district court considered all of the following togeth
er: the fact that over a third of surgical abortions occur with
in three weeks of PPINK’s deadline for performing abor
tions; the difficulty of making two lengthy trips in quick suc
cession; the over booking of informed consent appoint
ments; and the fact that physicians only provided abortions
on limited days in each health center. Adding these burdens
together, the district court concluded, “it would be surpris
ing if the new ultrasound law did not prevent a significant
number of low income women from obtaining an abortion.”
273 F. Supp. 3d at 1038. And indeed the evidence provided
by PPINK from nine women who were, in fact, severely
burdened and impeded in their attempts at obtaining an
abortion in the short time that the law was in effect, confirms
this prediction.
The district court did not err by concluding that the ul
trasound law “imposes significant burdens against a near
absence of evidence that the law promotes either of the bene
fits asserted by the State.” Id. at 1039. See Whole Women’s
Health, 136 S. Ct. at 2318 (striking down the challenged abor
tion restrictions because the law “provides few, if any, health
benefits for women” and “poses a substantial obstacle to
women seeking abortions.”). “A statute that curtails the con

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stitutional right to an abortion … cannot survive challenge
without evidence that the curtailment is justifiable by refer
ence to the benefits conferred by the statute.” Schimel, 806
F.3d at 921.
The State would like to simplify the court’s complex bur
den and benefit weighing to a more cookie cutter approach
and have us conclude that Casey paved the way for an al
most per se approval of all reasonable waiting periods. Ap
pellant’s Brief at 20–22, 38. The Supreme Court in Casey up
held a twenty four hour, informed consent waiting period
despite the fact patients would need to make two sometimes
lengthy trips in order to obtain an abortion. Casey, 505 U.S. at
885–87. And we followed suit in A Woman s Choice E. Side
Women s Clinic v. Newman, 305 F.3d 684, 691 (7th Cir. 2002),
upholding Indiana’s eighteen hour waiting period after an
in person informed consent meeting. But one of the primary
lessons of Whole Women’s Health is that the burden and bene
fit weighing is context specific. In Whole Women’s Health, the
court based its conclusions about undue burden on the
280,000 square miles of Texas territory, the number of abor
tion offering facilities that could operate after the enactment
of the contested law, the number of patients each remaining
facility would have to accommodate (1,200 per month), the
distance women would have to travel to get to a clinic and
the population numbers for women who would have to
travel this far, the rate of deaths and complications from
abortions in Texas, and the cost to clinics of coming into
compliance with the new regulation. Whole Women’s Health,
136 S. Ct. at 2301–03. The Court spent much time discussing
the importance of these facts in assessing the constitutionali
ty of the contested law, noting that a statute valid as to one

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set of facts may be invalid as to another. Id. at 2306 (citing
Nashville, C. & St. L.R. Co. v. Walters, 294 U.S. 405, 415 (1935)).
The Court in Casey noted that “in theory at least, the
waiting period is a reasonable measure to implement the
State’s interest in protecting the life of the unborn,” and
went on to analyze whether such a “waiting period is none
theless invalid because in practice it is a substantial obstacle
to a woman’s choice to terminate her pregnancy.” Casey, 505
U.S. at 885 (emphasis ours). This was the exact reasoning we
adopted later, in light of Casey, where we noted that “[w]hile
a twenty four hour waiting period that requires two trips to
an abortion provider has been found not to impose an undue
burden on Pennsylvania women based on the circumstances
of that state at the time the Court decided Casey, a similar
provision in another state’s abortion statute could well be
found to impose an undue burden on women in that state
depending on the interplay of factors”—factors such as “the
number of physicians who perform abortions, the number of
abortion facilities, the distances women must travel in order
to reach an abortion facility, and the average income of
women seeking abortions.” Karlin v. Foust, 188 F.3d 446, 485
(7th Cir. 1999). The language in these cases reflects that the
facts and context rule the day when evaluating waiting peri
ods. This is far from being a blanket stamp of approval on
them.
Analyzing the regulation in light of the reality of the facts
in Indiana is precisely what the district court did in this case.
A court cannot assess the law in a world where PPINK has
unlimited resources to open dozens of clinics, each with the
ability to provide ultrasound and abortions along with un
limited access to other health care needs, or in a world where

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all women have paid sick days, and reliable child care and
transportation. The court must take the facts as they are pre
sented before it and compare the burdens against the weight
of the evidence of the benefits specific to the proposed law.
Whole Women’s Health, 136 S. Ct. at 2310. The district court
did just that and concluded that the evidence of benefits was
exceptionally slight if any, and the burden imposed by the
double travel requirement great. As the district court con
cluded, “the new ultrasound law creates significant financial
and other burdens on PPINK and its patients, particularly on
low income women in Indiana who face lengthy travel to
one of PPINK’s now only six health centers that can offer an
informed consent appointment. These burdens are clearly
undue when weighed against the almost complete lack of
evidence that the law furthers the State’s asserted justifica
tions of promoting fetal life and women’s mental health out
comes.” 273 F. Supp. 3d at 1043.
The State argues to this court that the district court’s find
ings are clearly erroneous. We cannot agree. Under the clear
error standard we can reverse a district court’s factual find
ings only if “based on the entire record, we are left with the
definite and firm conviction that a mistake has been commit
ted.” United States v. Orillo, 733 F.3d 241, 244 (7th Cir. 2013).
The district thoroughly addressed each of the burdens and
benefits asserted by the parties and engaged in a painstak
ingly thorough weighing. Its factual findings were not clear
ly erroneous and are entitled to our deference.
C. The remaining preliminary injunction considerations
That conclusion about the likelihood of success on the
merits does not end the inquiry, although it certainly puts
the heaviest weight on the scale. PPINK must also show that

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it is likely to suffer irreparable harm in the absence of pre
liminary relief and that it has no adequate remedy at law.
City of Chicago v. Sessions, 888 F.3d 272, 282 (7th Cir. 2018). “If
those burdens are met, the court must weigh the harm that
the plaintiff will suffer absent an injunction against the harm
to the defendant from an injunction, and consider whether
an injunction is in the public interest.” Id.
For PPINK and its patients who lose the opportunity to
exercise their constitutional right to an abortion, the irrepa
rability of the harm is clear. Even an extended delay in ob
taining an abortion can cause irreparable harm by “re
sult[ing] in the progression of a pregnancy to a stage at
which an abortion would be less safe, and eventually ille
gal.” Planned Parenthood of Wis., 738 F.3d at 796. The evidence
suggests that the new ultrasound law has already prevented
some women from exercising their constitutional rights. It
has caused delay to others. Because we, like the district
court, have concluded that there is no substantial evidence
that the law furthers its stated interest, any harm to the State
is minimal, at worst. And the State certainly has myriad re
maining methods to persuade women to carry a pregnancy
to term in order to promote the State’s interest in promoting
fetal life.
The State argues that PPINK can avoid some of the harm
by expending more resources on abortion services, buying
more ultrasound machines, but again, the court must take
the record as it finds it and not base its finding on what the
facts might look like if the court could devise a different
business or care model for PPINK. See, e.g., Whole Women’s
Health, 136 S. Ct. at 2318. In any case, PPINK presented evi
dence that it has already shifted resources and tried to miti

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gate harm to the best of its ability. Some of these changes are
unsustainable long term. Others cannot be made at all.
Balanced against the harm to PPINK patients is the
State’s claim of irreparable harm. The State faces the same
harm any State faces when a democratically enacted law is
enjoined. It also claims that it would prevent it from further
ing its goal of promoting fetal life. This we think, is a mini
mal, potentially temporary harm in this case, compared with
the burdens on the women that the district court identified.
This is particularly true when we consider that—even credit
ing the State’s asserted benefit of the law—the potential abil
ity to alter any woman’s decision in a manner that protects
fetal life would be minimal, at best.
As for the public interest, the district court found that
upholding constitutional rights serves an important public
interest and we see no reason to add to or upset this finding.
And because the State had not demonstrated that its interest
would be served by the law, neither could the public’s inter
est.
III.
The State asserts that its reason for this new eighteen
hour ultrasound requirement is to persuade women not to
have an abortion. There is no doubt that this is a legitimate
position for a state to take. But it is also true that women
have the right to choose to have an abortion, albeit with
some limitations. Casey, 505 U.S. at 846. Women, like all hu
mans, are intellectual creatures with the ability to reason,
consider, ponder, and challenge their own ideas and those of
others. The usual manner in which we seek to persuade is by
rhetoric not barriers. The State certainly is entitled to use

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these rhetorical tools to persuade women not to have an
abortion. It has chosen to do so by requiring an informed
consent process—the required contents of which it has de
signed and mandated—and an ultrasound and fetal heart
beat requirement. It also requires every woman to receive a
brochure about abortion, the contents of which the State con
trols in toto—from how it will present the images of fetuses
to the decisions about which medical risks it includes and
which it omits (for example, the brochure which a woman
takes home and is supposed to ponder for eighteen hours,
does not speak of the risk to the fetus from drugs and alco
hol that a woman may have consumed prior to knowing
about an unplanned pregnancy). Moreover, it states as fact
that “human physical life begins when a human ovum is fer
tilized by a human sperm”—a proposition debated among
scientists, religious leaders, and medical ethicists. The State
has vast power to use the information that it provides to per
suade women not to have an abortion. But the requirement
that women have the ultrasound eighteen hours prior to the
abortion places a large barrier to access without any evi
dence that it serves the intended goal of persuading women
to carry a pregnancy to term. Instead, it appears that its only
effect is to place barriers between a woman who wishes to
exercise her right to an abortion and her ability to do so.
Rhetoric and persuasion are certainly legitimate methods for
a state to assert its preference, but it cannot force compliance
with its otherwise legitimate views by erecting barriers to
abortion without evidence that those barriers serve the bene
fit the state intended. “Until and unless Roe v. Wade is over
ruled by the Supreme Court, a statute likely to restrict access
to abortion with no offsetting medical benefit cannot be held
to be within the enacting state’s constitutional authority.”

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Schimel, 806 F.3d at 916. In light of the evidence of substantial
burdens imposed by the law and without evidence that the
additional eighteen hours following an ultrasound has any
legitimate persuasive effect on decision making, the law
constitutes an undue burden on those seeking an abortion
without any known benefits to balance it. The opinion of the
district court is AFFIRMED in all respects.

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KANNE, Circuit Judge, concurring in the judgment. Our
decision today is compelled by long standing Supreme
Court precedent. See Roe v. Wade, 410 U.S. 113 (1973); Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).
The State’s reason for the new 18 hour ultrasound re
quirement is to persuade women not to have an abortion. As
the opinion notes, “[t]here is no doubt that this is a legiti
mate position for a state to take.” Majority Op. at 47. This, of
course, is weighed against the fact that “women have the
right to choose to have an abortion, albeit with some limita
tions.” Id.
In this case two evidentiary factors lead me to conclude
that the 18 hour requirement imposes an undue burden on a
woman’s right to choose, which requires affirming the deci
sion of the district court. The first factor is the additional
travel necessitated by the availability of only six ultrasound
imaging sites located in Indiana at PPINK health centers.
The second factor is that the State offered little evidence to
show that an 18 hour wait following an ultrasound would
persuade those seeking an abortion to preserve fetal life.
Based on the foregoing factors, I agree that, in the context
presented by this appeal, Ind. Code § 16 34 2 1.1(a)(5)—as
written—constitutes an undue burden on women seeking an
abortion.
This concurrence extends to the final judgment set forth
by my esteemed colleague, Judge Rovner, but does not en

On appeal, the State did not pursue the argument that PPINK should
accept ultrasound results from the many other Indiana providers of ul
trasound imaging throughout the State. See Majority Op. at 24, n.6.

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dorse the propriety of the ancillary findings of the district
court.