WHOLE WOMAN'S HEALTH ALLIANCE et al v. HILL et al

Filing 356

ORDER - GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO EXCLUDE. Plaintiffs' Motion to Exclude [Dkt. 273] is granted in part and denied in part. As explicated fully herein, the proposed testimony of the State's experts is limited as follows: Ms. Roth's opinions relating to women's motivations in obtaining abortions; the benefits of pregnancy and motherhood; and the mental health impacts of abortion are all excluded. Dr. Coleman's testimony relating to those studies that we have determined to reflect unreliable methodologies is excluded. Dr. Calhoun's testimony relating to his conclusions that abortion is disproportionately harmful to Black and older women as well as his opinion regard ing the value of pregnancy and motherhood to vulnerable women is excluded. Dr. Studnicki's testimony relating to the correlation between Indiana's adoption rate and its abortion rate is excluded. Dr. Kheriaty's testimony relating t o the medical accuracy or truthfulness of Indiana's mandatory disclosures and its Informed Consent Brochure is excluded. Any further testimony relating to those studies on mental health that we have determined to be unreliable is also excluded. (See Order.) Signed by Judge Sarah Evans Barker on 2/19/2021. (NAD)

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 1 of 42 PageID #: 8467

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE, )
ALL-OPTIONS, INC.,
)
JEFFREY GLAZER M.D.,
)
)
Plaintiffs,
)
)
v.
)
)
TODD ROKITA Attorney General of the State )
of Indiana, in his official capacity,
)
KRISTINA BOX Commissioner of the Indiana )
State Department of Health, in her official
)
capacity,
)
JOHN STROBEL M.D., President of the
)
Indiana Medical Licensing Board of Indiana, )
in his official capacity,
)
KENNETH P. COTTER St. Joseph County
)
Prosecutor, in his official capacity and as
)
representative of a class of all Indiana
)
prosecuting attorneys with authority to
)
prosecute felony and misdemeanor offenses,
)
)
Defendants.
)
)
)
INDIANA DEPARTMENT OF
)
CORRECTION,
)
Marion Superior Court,
)
)
Interested Parties.
)

No. 1:18-cv-01904-SEB-MJD

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS'
MOTION TO EXCLUDE
Plaintiffs Whole Woman’s Health Alliance, All-Options, Inc., and Jeffrey Glazer,
M.D. (collectively, "Plaintiffs") have sued Defendants Todd Rokita, Attorney General of
Indiana; Kristina Box, M.D., Commissioner of the Indiana State Department of Health;
1

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 2 of 42 PageID #: 8468

John Strobel, M.D., President of the Medical Licensing Board of Indiana; and Kenneth P.
Cotter, St. Joseph County Prosecutor ("the State") under 42 U.S.C. § 1983, challenging as
unconstitutional a wide array of Indiana's statutory and regulatory restrictions on
providing and obtaining abortions.
Now before the Court is Plaintiffs' Motion to Exclude or Limit Expert Testimony
at Trial. 1 For the reasons set forth herein, this motion is granted in part and denied in
part.
Standard of Review
"A district court's decision to exclude expert testimony is governed by Federal
Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell
Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993)." Brown v.
Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). Rule 702 provides
that:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the principles and methods to
the facts of the case.
Where the "testimony's factual basis, data, principles, methods, or their application
are called sufficiently into question, . . . the trial judge must determine whether the

1

The State also filed a motion to exclude, which we address in a separate order.
2

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 3 of 42 PageID #: 8469

testimony has a 'reliable basis in the knowledge and experience of [the relevant]
discipline.'" Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592).
Discussion
Pursuant to Daubert and Rule 702, Plaintiffs request an order excluding the State's
experts from offering the following opinions at trial.
I.

Ms. Stasia Roth's Testimony Relating to the Subjects Outlined in Her
Expert Report Is Admissible, In Part

Plaintiffs' first request is for an order excluding Stasia Roth, the founder and
Executive Direct of A Mother's Hope ("AMH"), an organization serving homeless,
pregnant women based in Fort Wayne, Indiana, from testifying as an expert in this case.
Plaintiffs have interposed several objections to Ms. Roth's proposed testimony, each of
which is addressed in detail below.
A. The Proposed Testimony Contained Within Section II of Ms. Roth's Report Is
Irrelevant
Section II of Ms. Roth's expert report opines on the reasons women choose to
pursue abortion services—for example, because they are experiencing housing crises or
struggling with unmet mental health needs—as well as reasons women decide,
alternatively, to carry their pregnancies to term.
Plaintiffs first contend that Ms. Roth's experiences at AMH do not provide a
sufficient foundation for these opinions or for others that appear later in her report.
According to Plaintiffs, "[Ms. Roth] does not interact with abortion patients on a regular
basis" through her work at AMH, nor has she "spoken with anyone seeking an abortion in
nearly twenty years." [Dkt. 273, at 2]. Plaintiffs thus categorize Ms. Roth's opinions as
3

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 4 of 42 PageID #: 8470

merely speculative. See Ammons v Aramark Unif. Servs., 368 F. 3d 809, 816 (7th Cir.
2004) ("A court is expected to reject any subjective belief or speculation.") (internal
quotations omitted).
Plaintiffs' objection goes to the weight of her opinions, rather than their
admissibility, and thus can be pursued by Plaintiffs on cross-examination. While it may
be established that Ms. Roth has had limited interactions with women who ultimately
chose to obtain abortions, her expert report and deposition testimony establish that she
regularly interacts with women who have or are considering abortion as an option for
their unplanned pregnancies. [Roth Depo., p. 65-66; Roth Expert Rep. ¶¶ 2, 8, 25]. We
find that her proposed testimony is sufficiently supported by her own experiences. See
Walker v. Soo Line R. Co., 208 F.3d 581, 589 (7th Cir 2000) ("Rule 702 specifically
contemplates the admission of testimony by experts whose knowledge is based on
experience.")
Plaintiffs also challenge the relevancy of Ms. Roth's proposed testimony presented
in Section II of report, contending that it does not assist in the resolution of the due
process challenges, which is the gravamen of this case. As the State has proffered, Ms.
Roth's testimony will go to establish that "very few women, if any, actually want an
abortion at all, but rather 'seek[] abortions when they believe they have no other choice."
[Dkt. 277, at 3 (quoting Roth Expert Report, ¶ 8) (emphasis in original)]. Plaintiffs'
objection to this testimony on relevancy grounds reflects their view that this evidence is
primarily an attempt to litigate the desirability of abortion, a question not at issue here.

4

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 5 of 42 PageID #: 8471

We share is Plaintiffs' assessment of the evidence. A woman's right to choose a
pre-viability abortion is firmly rooted and well established. See, e.g., Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2309–10 (2016); Lawrence v. Texas, 539 U.S.
558, 565, 573–74 (2003); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851–53,
872 (1992); Roe v. Wade, 410 U.S. 113, 152–54 (1973). The ultimate issues in this case
require us to determine whether the State has imposed undue burdens on this right.
Hellerstedt, 136 S. Ct. at 2300. That the State contends that few women genuinely desire
abortion, even if true, does not assist in the resolution of any issue before us. It offers no
insight or clarity as to whether a woman's right to choose an abortion, if she so desires, is
unlawfully burdened by the challenged statutes. The State further argues that Ms. Roth's
testimony is relevant to the issue of whether women are firm in their decisions when they
present at abortion clinics, as Plaintiffs' experts have theorized. However, Ms. Roth's
proffered testimony provides no analysis or insight as to the issue of a woman's level of
confidence in her decision to pursue an abortion once she elects to obtain those services
and presents at a clinic.
For these reasons, we rule that Ms. Roth's opinions contained within paragraphs 89 of expert report may not be introduced into evidence at trial.
B. Ms. Roth's Opinions on the Subjects Covered in Section III of Her Expert Report
Are Admissible
In Section III of her expert report, Ms. Roth describes resources available to
pregnant women and young families in Indiana. Plaintiffs seek exclusion of these
opinions on the grounds of relevancy.

5

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 6 of 42 PageID #: 8472

The State maintains that Ms. Roth's testimony as to such resources will assist the
Court in resolving certain issues before it. The fact that an expert's opinions does not go
to the "ultimate issue" of a case is not necessarily a basis for its exclusion, as the State
correctly asserts. Rather, expert testimony is relevant when "the testimony will assist the
trier of fact with its analysis of any of the issues involved in the State." Smith v. Ford
Motor Co., 215 F.3d 713, 721 (7th Cir. 2000). Here, the State argues that Ms. Roth will
rebut Plaintiffs' experts' testimony as to the availability of resources as well as bolster the
State's defense of its informed consent requirements by establishing the value of
providing these resources to women and "giving them the time to consider their
decisions."[Dkt. 277, at 10].
Plaintiffs offer little by way of a response to this argument, advancing no specific
rebuttal as to the relevancy of Ms. Roth's testimony. Without more from Plaintiffs, we
will not order the exclusion of Ms. Roth's testimony in advance of trial.
Plaintiffs' claim that Ms. Roth has also failed to articulate a sufficient basis for her
conclusion that "adequate resources" are available to women who carry their unintended
pregnancies has not been sufficiently developed in Plaintiffs' briefing. The State's
contention that Ms. Roth is well-versed in the operation and practices of the programs
identified in her expert report by virtue of her personal experiences at AMH has gone
unchallenged. 2 Lacking any substantive argument by Plaintiffs, Ms. Roth will be
permitted to offer her opinions as contained within Section III of her report at trial.

2

The deposition excerpts proffered by Plaintiffs do not establish a lack of personal experience,
as Plaintiffs contend.
6

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 7 of 42 PageID #: 8473

C. Ms. Roth's Testimony Relating to the Subjects Presented in Section IV of Her
Expert Report Is Admissible, In Part
In Section IV of her expert report, Ms. Roth opines that pregnancy and
childrearing give "pregnant, homeless women, including many facing the threat of
violence . . . the motivation to pull their lives together." [Roth Expert Rep. ¶ 22].
Plaintiffs (again) challenge the relevancy of this testimony, given that the case at bar
requires a determination of whether women seeking access to abortion care are unduly
burdened by the requirements of the specific statutes. The State (again) responds that Ms.
Roth's proposed testimony is relevant, given that is the testimony of Plaintiffs' experts
that childbirth and childrearing (as opposed to abortion) can be harmful to women,
particularly to poor women and women experiencing intimate partner violence. "The
consequences of unintended pregnancy and childbirth . . . are thus at issue in this case at
Plaintiffs' own behest," argues the State. [Dkt. 278, at 5].
Plaintiffs' rebut the State's characterization of its experts' proffered testimony,
explaining that they are not expected to testify as to whether abortion is a better
resolution for unintended pregnancies, rather that the unlawful restriction of access to
abortion for those women who desire it results in negative health consequence for such
women, particularly for those who are otherwise in some vulnerable condition. [See e.g.,
Grossman Expert Rep. ¶¶ 185, 190; Gudeman Expert Rep. ¶ 29]. Such harms, say

7

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 8 of 42 PageID #: 8474

Plaintiffs, defeat the State's theory that the challenged statutes advance the State's interest
in women's health and safety.
Plaintiffs' experts are expected to focus on the harms and detrimental
consequences that result from compelling a woman to carry her pregnancy to term by
making abortion services either unnecessarily difficult to access or otherwise unavailable;
for example, such inaccessibility might result in women turning to illegal and unsafe
methods to terminate pregnancy. [Grossman Expert Rep. ¶ 190]. This testimony does not
go to prove that abortion is the proper or less burdensome solution to unintended
pregnancies; rather, it would illustrate the harms befalling women when their freedom to
choose their own outcome is unlawfully restricted, according to Plaintiffs. We agree with
Plaintiffs that evidence of such harms is relevant for the purpose of determining whether
the challenged statutes serve the State's purported interests in patient health and safety,
and thus it may be introduced for this purpose.
In contrast, Ms. Roth's opinions as to the benefits of carrying an unintended
pregnancy to term, thereby supporting the State's implication that motherhood is the
preferable alternative to abortion, does not advance the Court's resolution of issues before
it. Whatever sense of fulfillment pregnancy and motherhood may provide to those who
choose that option is not relevant to whether the harms inflicted upon women whose right
to be free from state-required motherhood has allegedly been infringed. See Planned
Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 837–38 (1992) ("[T]he proper
focus of constitutional inquiry is the group for whom the law is a restriction, not the
group for whom it is irrelevant.").
8

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 9 of 42 PageID #: 8475

Plaintiffs also challenge Ms. Roth's second conclusion contained within Section
IV of her report where she opines that, from her experience, perpetrators of intimate
partner violence are more likely to coerce a pregnant woman into having an abortion than
to continue her pregnancy to term. This opinion apparently contradicts that of Plaintiffs'
experts.
Ms. Roth has not supported her conclusion with any studies, and Plaintiffs argue
that her limited anecdotal experiences with pregnant victims of intimate partner violence
do not satisfy Rule 702(b)'s requirement that expert testimony be based on sufficient facts
and data.
The State defends Ms. Roth's opinion on this issue, arguing that it is adequately
supported by her personal experiences working with pregnant victims of intimate partner
violence. Ms. Roth's report details her work with a number of pregnant women who have
been the victims of intimate partner violence, including several who reported feeling
coerced by their partners into receiving abortions. In contrast, she recounts that she has
never encountered a woman who has expressed the feeling of being coerced into carrying
her pregnancy to term. Based on these personal experiences, Ms. Roth may proffer this
testimony at trial, which we expressly limit to her own experiences at AMH. See Walker,
208 F.3d at 589.
D. Ms. Roth's Testimony on the Subjects Presented in Section V of Her Expert Report
Is Admissible
Plaintiffs next seek to exclude Ms. Roth's opinions relating to the alleged negative
psychological effects of abortion, specifically, her experience that the women she has

9

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 10 of 42 PageID #: 8476

worked with who have had abortions "suffer from depression, anxiety, PTSD, and
suicidal thoughts that were not present before they had abortions."
We share in Plaintiffs' assessment that Ms. Roth's qualifications to offer testimony
suggesting a link between abortion and mental health problems have not been
established. In is undisputed that Ms. Roth has no training or education in psychology or
psychiatry, nor do her professional duties as the Executive Director of AMH include
providing counseling services. Ms. Roth, the State concedes, does not "make mental
health diagnoses herself; rather she is referring to the self-reported mental health
conditions of the women AMH supports." Such self-reporting she does attempt to
corroborate, "when possible," with medical records or conversations with health care
providers. [Dkt. 277, at 6]. However, whether AMH's clients are qualified to self-report
or self-diagnose their mental health conditions or how frequently they do so is not in the
record before us. The fact that Ms. Roth sometimes is successful in corroborating these
self-reports through a comparison of medical records does not overcome these
deficiencies, particularly because there is no evidence showing her qualifications to
review or evaluate medical records. 3 Berry v. McDermid Transp., Inc., 2005 WL
2147946, at *2 (S.D. Ind. Aug. 1, 2005) ("To testify as an expert on medical questions,
[an expert] needs sufficient qualifications"); see also Jones v. Lincoln Elec. Co., 188 F.3d
709, 724, 1999 WL 551879 (7th Cir. 1999). Ms. Roth is thus not qualified as an expert to

3

The State points to the Seventh Circuit's decision in Walker is support of its contention that Ms.
Roth is permitted to rely on self-reported patient histories. This case held that medical
professionals may rely on such self-reports. Because Ms. Roth is indisputably not a medical
professional, Walker is inapposite. 208 F.3d at 586.
10

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 11 of 42 PageID #: 8477

opine on the mental health diagnoses of women at AMH who have received abortions,
nor is the State entitled to use such testimony to prove the purported mental health
consequences of abortion.
E. Ms. Roth's Testimony Regarding the Subjects Presented in Section VI of Her
Expert Report Is Admissible
Plaintiffs' next objection concerns Ms. Roth's rebuttal opinion that, based on her
experiences working at AMH with homeless pregnant women, Plaintiffs' experts have
"overstated the burdens imposed by Indiana's regulations," particularly the stigma felt by
women pursuing abortions. Plaintiffs' objection is narrow: Citing the fact that Ms. Roth
does not work with women seeking abortion services, her opinions as to their feelings
and experiences are unreliable. We have previously noted that Plaintiffs, in interposing
these objections, misconstrue the nature and extent of Ms. Roth's experiences serving
pregnant women; the evidence reveals that she works with women who are considering
abortion, women who originally sought an abortion but thereafter changed their minds,
and women who have previously had abortions. Plaintiffs' focus on the limitations of Ms.
Roth's experiences is best addressed through vigorous cross-examination. On this narrow
point, Ms. Roth may offer her opinion(s).
F. Ms. Roth's Testimony On The Subjects Presented in Section VII of Her Expert
Report Is Admissible
Plaintiffs' final argument with respect to Ms. Roth's expert testimony is that she
should not be permitted to offer opinions regarding whether telemedicine poses
challenges for low-income women. Ms. Roth's opinions are reportedly based on her
experiences serving low-income women, who, she says, often struggle with speaking up
11

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 12 of 42 PageID #: 8478

or asking questions of individuals in authority positions, including in the medical field.
These alleged difficulties are heightened when communications occur by phone.
According to Ms. Roth, telemedicine would exacerbate existing communications barriers
between low-income women and health professionals.
Because Ms. Roth has neither studied patients' experiences with telemedicine nor
interacted with low-income women who have utilized telemedicine services in this
setting, Plaintiffs object to her opinions as lacking a proper foundation.
The State rejoins that Ms. Roth is proffered only for a limited purpose that is based
on her extensive communications with low-income patients to aid their navigation of
health systems, which experience provides her with knowledge as to such challenges.
Ms. Roth's limited testimony regarding the potential challenges of telemedicine is
admissible, based on her work with low-income pregnant women in Indiana. She may
thus testify regarding their challenges she has observed when they engage in
communications regarding health services. Other issues relating to telemedicine (for
example, issues related to informed consent or the illicit distribution of abortion drugs)
are beyond the scope of her personal experiences and would thus be inadmissible.
II.

Dr. Coleman's Testimony Relating to the Opinions Contained Within
Her Expert Report Is Admissible, In Part

Plaintiffs next set of challenges relates to the proffered testimony of Dr. Priscilla
Coleman, Ph.D., a developmental psychologist and professor of Human Development
and Family Studies at Bowling Green University. Dr. Coleman is designated as one of the
State's experts on the mental health effects of abortion. As discussed in detail below,

12

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 13 of 42 PageID #: 8479

Plaintiffs challenge Dr. Coleman's opinions as not being the product of reliable principles
and methods, relying on her own studies "that are riddled with serious methodological
errors." [Dkt. 274, at 7]. Accordingly, Plaintiffs have moved to exclude the entirety of Dr.
Coleman's testimony as set out in Section V of her expert report, as well as in paragraphs
13-15, 28, 183-184, 187-191, 196, and 202 of that same report.
Plaintiffs' first challenge is based on their assertion that a reliable study concerning
the impact of abortion on a patient's mental health must reflect data only from abortions
preceding the evaluated mental health impact. Because several of the studies cited by Dr.
Coleman fail to do so, they should be excluded from inclusion in the trial evidence.
One study, 4 for example, cited by Dr. Coleman, purportedly supports her
conclusion that women who chose abortion face an increased risk of mental health
problems as compared to women who carry their pregnancies to term. [Coleman Expert
Rep. ¶ 105]. Plaintiffs cite the fact that because this study included women who had at
any time experienced a mental health problem in their lives, without distinguishing
between mental health problems occurring before the abortion and those occurring after,
renders the conclusions irrelevant.
A 2009 study, co-authored by Dr. Coleman, and relied upon in her expert report,
suffers from a similar methodological flaw, 5 according to Plaintiffs. Indeed, the editor of

4

Natalie P. Mota, Associations Between Abortion, Mental Health Disorders, & Suicidal
Behaviors in a Nationally Representative Sample, 55 Canadian J. of Psychiatry 239, 239-49
(2010).
5 Priscilla K. Coleman et al., Induced Abortion and Anxiety, Mood, & Substance Abuse
Disorders: Isolating the Effects of Abortion in the National Comorbidity Survey, 43 J. of
Psychiatric Res. 770, 770-76 (2009)
13

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 14 of 42 PageID #: 8480

the journal in which this study was published subsequently issued a letter criticizing the
2009 study because the "analysis [did] not support [the author's] assertions that abortions
led to psychopathology[.]"6
The State argues that Plaintiffs are misconstruing Dr. Coleman's opinions,
claiming she is attempting to show causation between abortion and mental health, when
in fact she is attempting to demonstrate generally that abortion increases the risk of
adverse mental health outcomes. The State concedes that a particular study may not
satisfy the standards for proving causation; even so, it says inferences may nonetheless be
drawn from such studies where there is a "careful collection and analysis of studies with
relative strengths and weakness in different aspects of their experimental design." [See
Coleman Expert Rep. ¶¶ 144-151].
The State's defense of Dr. Coleman's reliance on these arguably flawed studies
stops short of addressing whether they do, in fact, contain the methodological flaws
identified by Plaintiffs. Instead, the State attempts to establish that Dr. Coleman utilized a
widely accepted methodology in reaching her conclusions as to the increased mental
health risks resulting from abortion. The State's defense of Dr. Coleman's methodology,
however, relates solely to the one she employed with respect to a meta-analysis she
published in 2011 (which is the subject of a separate objection); the State does not
address whether the other studies on which she has relied reflect the flaws identified by
Plaintiffs. Rather, the State conclusively asserts that Plaintiffs have "cherry-pick[ed]

6

Kessler, R.C. & Schatzberg, A.F. (2012), Commentary on Abortion Studies of Steinberg and
Finer and Coleman, Journal of Psychiatric Research, 46, 410-411.
14

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 15 of 42 PageID #: 8481

objections to the designs of particular studies," arguing that Dr. Coleman "approaches her
selection of studies with great care" and should "have the opportunity to explain the
strengths of th[e]se studies."
The State's championing of Dr. Coleman's careful intentions and methodology
with respect to her meta-analysis does not overcome Plaintiffs' concerns about the cited
studies nor establish that they are "beside the point." The entire purpose of the Daubert
reliability inquiry is to focus on the purported expert's principles and methodology.
Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012).
We cannot ignore the methodological errors infecting the aforementioned studies,
and the State's rejoinder that the studies cited by Dr. Coleman were all peer-reviewed
does not overcome the fact that the journal in which one of these studies was published
later disavowed the study's findings based on the authors' flawed methodology. Daubert,
509 U.S. 579 at 594 ("The fact of publication (or lack thereof) in a peer reviewed journal
thus will be a relevant, though not dispositive, consideration in assessing the scientific
validity of a particular technique or methodology on which an opinion is premised.")
Accordingly, Dr. Coleman's testimony regarding these particular studies is
insufficiently reliable to become evidence at trial that will inform the Court's decisionmaking. 7

7

It does not follow, as Plaintiffs seem to suggest, that the unreliability of these two studies
warrants the exclusion of Dr. Coleman's testimony in its entirety. The weaknesses of the cited
studies and her conclusions tied thereto are inadmissible, but she apparently relied on several
other studies, the integrity of which has not been specifically challenged by Plaintiffs. [See
Coleman Expert Rep. ¶ 105 (listing sources)].
15

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 16 of 42 PageID #: 8482

Plaintiffs assert that certain other studies relied upon by Dr. Coleman also contain
methodological flaws rendering them and Dr. Coleman's resulting conclusions unreliable.
In examining the relationship between abortion and subsequent mental health, assert
Plaintiffs, researchers are required to control for common risk factors, known as
covariates or confounding factors. Dr. Coleman's cited sources, however, fail to control
for such factors. One 2006 study authored by Dr. Coleman, 8 for example, did not control
for prior mental health outcomes. Another 2002 study co-authored by Dr. Coleman
suffers from this same methodological flaw. 9
The State's rebuttal posits that an alternative to controlling for a confounding
variable is to restrict the study's population to individuals with equivalent risk with
respect to the variable. The 2002 and 2006 studies applied such an approach, which the
State maintains was an appropriate methodology. Moreover, Plaintiffs acknowledge that
other studies cited by Dr. Coleman do include controls for mental health.
Plaintiffs did not specifically respond to the State's rebuttal. Accordingly, we
accept their implicit concession and will analyze this issue no further in this setting.
Plaintiffs also contend that Dr. Coleman's report misapprehends the methodology
of some of the studies on which she relies. One source, 10 for example, compares women

8

Priscilla K. Coleman, Resolution of Unwanted Pregnancy During Adolescence through
Abortion Versus Childbirth: Individual & Family Predictors & Psychological Consequences, 35
J. Youth & Adolescence 903, 903-11 (2006).
9 Priscilla K. Coleman et al., State-Funded Abortions Versus Deliveries: A Comparison of
Outpatient Mental Health Claims Over 4 Years, 72 Am. J. Orthopsychiatry 141 (2002).
10 Anne Nordal Broen et al., Predictors of Anxiety and Depression Following Pregnancy
Termination: A Longitudinal Five-Year Follow-up Study, 85 Acta Obstetricia et Gynecologica
Scandinavica 317, 317-23 (2006); Anne Nordal Broen et al., Psychological Impact on Women of
16

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 17 of 42 PageID #: 8483

who have had abortions to those who have had miscarriages rather than to women who
have carried their pregnancies to term. Dr. Coleman's conclusion that abortions pose
greater risks to mental health than carrying unintended pregnancies to term is flawed,
argue Plaintiffs, "since women who experience a miscarriage . . . are not comparable to
women who have an abortion[.]." [Dkt. 273, at p. 9].
The State denies any error by Dr. Coleman. It argues that determining the
appropriate comparator group is a "hotly disputed factual issue." That Plaintiffs' experts
and Dr. Coleman apparently disagree as to the appropriate or best comparison group,
according to the State, is not grounds for exclusion.
Again, we lack any rebuttal from Plaintiffs. We thus adopt the State's contention
that this objection embodies a sensitive factual issue on which both side's experts should
testify at trial (and be subjected to cross-examination). Baugh v. Cuprum S.A. de C.V.,
845 F.3d 838, 847 (7th Cir. 2017) ("[I]t is often the case that experts reach conflicting
conclusions based on applying different but nevertheless reliable methodologies to a set
of partially known facts."); Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 433 (7th
Cir. 2013) ("Rule 702 did not require, or even permit, the district court to choose between
[two ‘competing’] studies at the gatekeeping stage. Both experts were entitled to present
their views, and the merits and demerits of each study can be explored at trial.").

Miscarriage Versus Induced Abortion: A 2-Year Follow-up Study, 66 Psychosomatic Med. 265,
265-71 (2004).
17

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 18 of 42 PageID #: 8484

Plaintiffs' final critique of Dr. Coleman's report relates to its reliance on a metaanalysis she published in 2011, 11 which they claim has been "widely rejected by the
scientific community." [Dkt. 274, at 10]. Plaintiffs maintain that the "significant errors in
the methods, analyses, and reasoning of Dr. Coleman's meta-analysis render it
unreliable[.]" [Id.]. Such errors include "violating guidelines for conducting a metaanalysis; treating effect sizes that were from the same data as independent; not adhering
to the inclusion and exclusion criteria for studies; misclassifying the comparison groups
of the studies identified in the meta-analysis; and wrongfully inferring the percentage of
births in the United States that are unintended[.]" [Id. at 11].
Critics of this meta-analysis are not to be minimized or ignored; they include, for
example, the Academy of Royal Colleges/National Collaborating Centre for Mental
Health, the leading scientific and professional organization in the United Kingdom. This
group concluded that the "methodological problems" with the meta-analysis "bring[] into
question both the results and the conclusions."12 Additionally, commentary published in
2011 by "some of the authors of the National Collaborating Centre," [Dkt. 274, at 11],
concluded that the meta-analysis "cannot be regarded as a formal systematic review."13

11

"A meta-analysis is a specific form of systematic literature review wherein quantitative data
from multiple published studies are converted to a common metric and combined statistically to
derive an overall measure of the effect of an exposure such as abortion." [Coleman Exp. Report ¶
108].
12 National Collaborating Centre for Mental Health (2011). Induced Abortion and Mental
Health: A Systematic Review of the Mental Health Outcomes of Induced Abortion, Including
their Prevalence and Associated Factors. London, UK: National Collaborating Centre for
Mental Health.
13 Kendall, T. et al. (2012). To Meta-Analyze or Not to Meta-Analyze: Abortion, Birth, and
Mental Health. Brit. J. Psychiatry, 200(1), 12-14.
18

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 19 of 42 PageID #: 8485

Plaintiffs' critiques of Dr. Coleman's methodology sweep broadly without the
benefit of any substantive analysis. Aside from a list of purported "flaws" in her metaanalysis, they offer no explanation of how her meta-analysis supposedly committed the
identified errors, nor how such errors are violative of the relevant standards within the
scientific community. Vague assertions including that she "violated guidelines for
conducting a meta-analysis" or that she failed to "adhere[] to the inclusion and exclusion
criteria for studies" say nothing about the substance of such guidelines and criteria, nor
the manner in which she violated them. Based on such sparce information and arguments,
we cannot conclude that Dr. Coleman's methodology was unreliable.
Plaintiffs rely on the apparent fact that Dr. Coleman's analysis has been "rejected"
by the scientific community, such rejections coming in the form of critiques from a
widely-respected professional organization and a set of commentators. That said,
Plaintiffs have not disputed the State's defense of the meta-analysis, specifically that it
was published in the British Journal of Psychiatry, another highly respected journal in the
field of psychiatry, and has never been retracted. Suffice to say, scientific opinion as to
the validity and reliability of the meta-analysis is mixed. [See Coleman Expert Rep. ¶¶
137-153].
Based on these differing views and Plaintiffs' weak rebuttal, we are not persuaded
that Dr. Coleman's testimony must omit opinions based on her meta-analysis. See Baugh,
845 F.3d 838, 847 (7th Cir. 2017); Schultz, 721 F.3d at 433. 14

14

Our research has disclosed two cases addressing the reliability and admissibility of Dr.
Coleman's allegedly controversial opinions on mental health and abortion. In Planned
19

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 20 of 42 PageID #: 8486

In summary, Dr. Coleman's proffered testimony must be tailored to delete any
opinions reflecting a methodology that renders them unreliable.
III.

Dr. Calhoun's Testimony Relating to the Opinions Outlined in His
Expert Report Is Admissible, In Part

Plaintiffs next challenge the testimony of Dr. Byron C. Calhoun, an ob-gyn
associated with West Virginia University-Charleston, whom the State has designated as
an expert on abortion morbidity and medical standards of care, among other related
topics. Dr. Calhoun's qualifications have not been challenged; rather, Plaintiffs'
objections are premised on reliability issues regarding Dr. Calhoun's opinions.
A. The Opinions Contained Within Section II(C) of Dr. Calhoun's Expert Report Are
Unreliable and Must Be Excluded
Plaintiffs request that we exclude Dr. Calhoun from testifying as to his opinions
set forth in Section II(C) of his report, entitled "Special risks for women obtaining
abortions." Plaintiffs specifically challenge Dr. Calhoun's conclusion that abortion is
"disproportionately harmful" to Black women as well as to older women. [Calhoun
Expert Rep. ¶¶ 57-62]. Dr. Calhoun opines that because "[a]bortion has led many women
to delay the birth of their first child (rather than marry the child's father or put the child
up for adoption[,]" "the average woman is . . . older, and potentially in poorer health,

Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, the Eighth Circuit, sitting en banc,
relied on Dr. Coleman's testimony in upholding South Dakota's mandatory disclosure
requirement on the connection between abortion and mental health risks, though the majority's
reliance on her testimony was heavily criticized by the dissent. 686 F.3d 889, 910 (8th Cir.
2012). The Middle District of Tennessee denied Plaintiffs' request to exclude Dr. Coleman's
testimony at trial, though the Court ultimately determined that Plaintiffs' cross-examination of
Dr. Coleman effectively established that her "testimony [was] not credible and not worthy of
serious consideration." Adams & Boyle, P.C. v. Slatery, 2020 WL 6063778, at *40 (M.D. Tenn.
Oct. 14, 2020).
20

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 21 of 42 PageID #: 8487

when she becomes a mother." [Calhoun Exp. Rep. ¶ 61]. Dr. Calhoun also concludes that
the higher rates of abortion among Black women compared to women of other races is
responsible for the higher rates of maternal mortality among Black women. [Id. ¶¶ 5860].
Plaintiffs fault Dr. Calhoun's opinions for not having been reached based on any
review by him of any causal relationship evidence, nor were they formed based on any
other reliable scientific methodology. Instead, Dr. Calhoun's opinions reflect his personal
speculation and subjective beliefs, say Plaintiffs.
Dr. Calhoun's conclusions, argues the State, have been adequately explained as the
product of his review of relevant, valid data.
This defense, however, rings hollow. The critical inquiry under a Rule 702
analysis is whether a link exists between the data or facts presented and the expert's
conclusion. United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003); see also Gen.
Elec., 522 U.S. at 146 ("A court may conclude that there is simply too great an analytical
gap between the data and the opinion proffered."). Such a link is entirely missing here.
For example, in rendering his conclusion that abortion is disproportionately
harmful to Black women, Dr. Calhoun merely spouts various statistics regarding 1) the
increased abortion rate among Black women, and 2) the increased risk of maternal
morality and pregnancy complications among Black women. Missing is any data or other
evidence that bridges the gap as to how the former contributes to the latter. Dr. Calhoun's
conclusion that "the much greater abortion rate for black women . . . may account for

21

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 22 of 42 PageID #: 8488

most of the racial disparity noticed in pregnancy morbidity and mortality"15 is entirely
unsubstantiated by any data or analysis to support the conclusion that abortion is the
predominate factor or cause for this racial disparity. His uncorroborated conclusions on
this issue render them patently unreliable.
In addition, Dr. Calhoun's conclusions regarding the disproportionate harms that
abortion poses to older women suffer from these same analytical flaws. Again, they are
based on nothing beyond his personal speculation.
We hold that the opinions of Dr. Calhoun which reflect merely his "subjective
beliefs and speculations" and are inadmissible. Chapman v. Maytag Corp., 297 F.3d 682,
687 (7th Cir. 2002) (directing the district court to "rul[e] out any subjective belief or
unsupported speculation.").
B. Dr. Calhoun's Proposed Opinions Regarding Telemedicine Are Admissible
Plaintiffs also seek the exclusion of Dr. Calhoun's opinions relating to the
appropriateness of telemedicine in the delivery of abortion services, arguing that his
personal experiences as a physician do not suffice to qualify him to opine as an expert on
this issue.

15

Dr. Calhoun offers only a single example regarding morbidity rates among Black women,
explaining: "Black women have a cervical insufficiency rate 2.45 higher than Caucasian women .
. . Cervical insufficiency is a known risk factor for preterm delivery, and is related to the number
of surgical procedures performed on the cervix including elective surgical abortions." However,
Dr. Calhoun says nothing about the rate at which Black women have surgical abortions
compared to women of other races, nor does he offer anything regarding other factors that may
increase the risk of cervical insufficiency. Moreover, he offers no explanation for how this single
example yields his conclusion that most of the racial disparity in morbidity and mortality rates is
attributable to abortion.
22

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 23 of 42 PageID #: 8489

Plaintiffs' first argument reflects their apparent belief that Dr. Calhoun does not
possess a sufficient understanding of the technology involved in contemporary
telemedicine practices. [Dkt. 273, at 13]. Dr. Calhoun concedes that he does not utilize
telemedicine in his practice. In his deposition testimony, he analogized telemedicine
technology to "Facetime," which consists of real-time video interaction. While he appears
to lack any real sophistication with the technology of telemedicine, he has sufficient
knowledge and experience to testify to those things that he knows personally.
Plaintiffs do contend that Dr. Calhoun lacks any "knowledge of the process by
which telemedicine is used to provide medication abortion." Plaintiffs' primary criticism
of Dr. Calhoun relates to his unfamiliarity with the FDA's Risk Evaluation Mitigation
Strategies ("REMS"), a program which prohibits mifepristone, the drug used to induce a
medication abortion, from being dispensed in pharmacies. Instead, this drug may be
dispensed only at abortion clinics. Accordingly, even if state law permitted certain
aspects of abortion care (such as providing informed consent) to be provided remotely via
telemedicine, a patient will still be required to obtain mifepristone at an abortion clinic.
Because of Dr. Calhoun's apparent unfamiliarity with this FDA requirement, Plaintiffs
argue that he has anchored his opinions to an incorrect assumption that abortion patients
would never visit a healthcare facility if telemedicine were implemented.
For example, Plaintiffs contend that Dr. Calhoun is incorrect in his conclusion that
incorporating telemedicine in Indiana would interfere with women receiving physical
examinations and ultrasounds prior to receiving abortions, which he believes are
necessary. Plaintiffs also argue that Dr. Calhoun's conclusion that telemedicine could
23

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 24 of 42 PageID #: 8490

create a risk of drug diversion is erroneous given that the FDA requires mifepristone to
be secured at an abortion clinic.
The State characterizes Plaintiffs' assertion that "Dr Calhoun has no knowledge of
the process by which telemedicine is used" as "highly misleading," given that Plaintiffs
had not identified, at the time of Dr. Calhoun's report and testimony, what specific
telemedicine protocols they believed should be implemented in Indiana. 16 For example,
though patients could receive physical examinations and ultrasounds prior to abortions
even if telemedicine were utilized for other aspects of abortion care, Plaintiffs'
telemedicine proposal for Indiana did not illustrate the inclusion of such procedures.
Plaintiffs' expert's opinion is, in any event, that ultrasounds and physical examinations are
unnecessary prior to abortion. Dr. Calhoun's opinions regarding the need for these
procedures thus remain "a separate and important concern," insists the State. The State
also maintains that Dr. Calhoun does have sufficient knowledge regarding the FDA's
regulations governing mifepristone. That the REMS program requires the distribution of
mifepristone to occur at abortion clinics does not resolve Dr. Calhoun's concerns on the
issue of diversion.
Plaintiffs provide little by way of a substantive response to these specific
contentions from the State. We are thus unpersuaded that anything regarding Dr.

16

Plaintiffs argue that Dr. Calhoun could have known of the protocols by which Indiana
abortion providers would likely incorporate telemedicine, either through additional discovery or
by reviewing the "vast literature" cited by Plaintiffs' expert, Dr. Grossman. However, neither Dr.
Grossman nor any other expert had outlined standards for which telemedicine should work in
Indiana prior to Dr. Calhoun's testimony.
24

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 25 of 42 PageID #: 8491

Calhoun's opinions on these issues requires exclusion; Plaintiffs' objections can be fully
explored through cross-examination.
Regarding Dr. Calhoun's concerns about obtaining informed consent via
telemedicine, Plaintiffs object that this testimony is conclusory, lacking any explanation
as to methodology or principles underlying his opinions. We do not share this concern.
Much like Dr. Grossman's, Dr. Calhoun's opinions on the appropriate use of telemedicine
in obtaining informed consent reflect his years of practicing medicine as an ob-gyn, and
he sufficiently links these personal experiences to his conclusions. [Calhoun Expert Rep.
¶¶ 143, 158].
In Section X of Dr. Calhoun's report, he opines that "abortion does not solve
problems for vulnerable women." [Calhoun Expert Rep. ¶¶ 207-213]. "[A]bortion is not a
real solution for the challenges faced by [his] vulnerable patients" nor is it "the best
solution for an unplanned pregnancy." Plaintiffs regard these assertions as irrelevant:
whether abortion is a "good choice for women sheds no light" on the legal issues
presented in this case, to wit, the burdens imposed by the challenged statutes. The State
characterizes Dr. Calhoun's opinion on this issue as similar to Ms. Roth's opinion on the
benefits of pregnancy and motherhood, but we have excluded Ms. Roth's opinions on that
issue as being unhelpful to the resolution of the relevant factual or legal questions. Dr.
Calhoun's opinions must be excluded for the same reasons.
Plaintiffs challenge the admissibility of Dr. Calhoun's opinions regarding the
impact of abortion on patients' mental health on the grounds that they "suffer from the
same methodological flaws as the opinions expressed by Dr. Coleman." Specifically, Dr.
25

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 26 of 42 PageID #: 8492

Calhoun has relied on some of the same studies cited by Dr. Coleman. However, Dr.
Calhoun's conclusions are not dependent on the studies we found unreliable.
Accordingly, there is no basis on which to limit his testimony.

IV.

Dr. Studnicki's Testimony Related to the Opinions Presented in His
Expert Review Is Admissible, In Part

The State offers the testimony of Dr. James Studnicki, an expert in data analytics,
on a wide range of topics. Plaintiffs object. We address each objection below. 17
A. Dr. Studnicki's Opinions on Indiana's Abortion Rate Are Admissible
Plaintiffs first seek to exclude Dr. Studnicki from presenting any testimony
relating to his opinion that "Indiana's position as a low-volume, low-rate abortion state
has been consistent for over 40 year, beginning with the Roe v. Wade legalization of
abortion and the passage of the first of any of the contested laws." [Studnicki Am. Expert
Rep. ¶ 83(a)]. According to Plaintiffs, the connection between abortion rates and the
enactment of the challenged statutes has no relevancy to the ultimate questions before the

17

On December 3, 2020, the Magistrate Judge granted in part the State's motion to supplement
Dr. Studnicki's expert report. The Magistrate Judge stated that Plaintiffs were "entitled to . . .
supplement their motion to exclude[.]" Plaintiffs were directed to file a "supplemental motion"
no later than January 15, 2021. Plaintiffs timely filed their supplemental briefing on Dr.
Studnicki's amended report. Plaintiffs' objections contained within their supplemental briefing
should be denied in their entirety, says the State, on the grounds that Plaintiffs did not file a
motion, in contravention of the Magistrate Judge's directive and Local Rule 7-1. We hold that
Plaintiffs sufficiently complied with the Magistrate Judge's order, and, given that the issues
requiring supplementation comprise a subset of the issues raised in their original motion, the
filing of the supplemental memorandum rather than a separate motion promotes judicial
economy and minimizes confusion.
26

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 27 of 42 PageID #: 8493

Court in this litigation, that is, whether any of the challenged statutes create undue
burdens for women seeking abortion services in Indiana.
We disagree that this testimony bears no relevance to the factual and legal
questions pending before us, an assertion made by Plaintiffs without any authoritative
support. Though we have rejected the State's position that abortion rates are dispositive of
the due process challenges posed here, 18 whether there is an association between the
enactment of the challenged statutes and any variations in Indiana's abortion rate may be
relevant to our understanding of the impact of those statutes. As explained, such an
association is not outcome determinative in our assessments of the undue burdens, as the
State suggests it should be, but it is relevant to our overall analysis of the evidence.
Accordingly, Dr. Studnicki's opinions related to abortion rate data need not be excluded
from evidence on relevancy grounds.
Relevancy, however, is not the sole objection by Plaintiffs for excluding Dr.
Studnicki's testimony on abortion rates. They argue that his opinions are not the product
of an application of reliable principles and methods, in particular his conclusion that
"[n]o variations in Indiana's abortion rate over the past 40 years suggests any association
with any of the challenged laws." [Studnicki Am. Expert Rep., ¶ 83(b)]. As Plaintiffs
contend, abortion rates are not a reliable measure of the burdens (including increased
delays, costs, or travels) that women confront in accessing abortion. Additionally,
Plaintiffs argue Dr. Studnicki's analysis of abortion rate data fails to account for

18

A discussion of this issue is set out in our Order on the State's motion to exclude at pages 5-7.
27

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 28 of 42 PageID #: 8494

confounding variables, such as the rate of unintended pregnancy or economic insecurity,
that could increase the demand for abortion and thus mask a decline in the abortion rate.19
With respect to Plaintiffs' assertion that abortion rates are an unreliable metric by
which to measure burdens on women otherwise seeking abortions, Plaintiffs focus their
attack on the relevancy of this opinion, rather than attacking the reliability of Dr.
Studnicki's analysis of these rates.
Moreover, Plaintiffs have responded only in minimal fashion to the State's
argument that they have misconstrued Dr. Studnicki's opinions by assuming that he has
sought to prove that the challenged statutes do not impose burdens on abortion access.
Such an assumption by Plaintiffs is inaccurate, says the State, given that the State bears
no such burden of proof in this litigation. In addition, Dr. Studnicki's analysis of Indiana's
abortion rates has been proffered by the State to rebut the opinions of Plaintiffs' experts,
including Dr. Heidi Moseson, whose data regarding these dates does not support her
conclusions, according to Dr. Studnicki. In his rebuttal, he hypothesized that multiple
factors could affect the abortion rate and surveyed the evidence in light of these factors.
His intention was to test the hypotheses of Plaintiffs' experts and to illustrate the
shortcomings of their conclusions.

19

Plaintiffs have also challenged the reliability of Dr. Studnicki's opinions for failing to consider
the abortion rates for specific subpopulations. The State responds that Dr. Studnicki did, in fact,
review abortion rates for subpopulations, including minors and racial minorities, and, in any
event, none of Plaintiffs' experts provided an independent analysis of the challenged laws on
specific subgroups. Plaintiffs do not address this issue in their Reply brief, which silence we
accept as a concession. Likewise, Plaintiffs' reply brief omits any rebuttal to the State's assertion
that Plaintiffs have misunderstand a portion of Dr. Studnicki's opinions related to the challenged
laws that were enacted immediately following Roe v. Wade. Again, we infer Plaintiffs' silence to
be a concession.
28

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 29 of 42 PageID #: 8495

Plaintiffs' response consists of their reiteration of the irrelevancy of Dr. Studnicki's
testimony and a defense of Dr. Moseson's analysis. They argue that Dr. Studnicki's
testimony is inadmissible based on the State's "concession" that Dr. Studnicki's analysis
"fails to prove that the challenged laws do not pose substantial obstacles." This
contention, however, mischaracterizes Dr. Studnicki's conclusion regarding the
association between abortion rates and the challenged laws. Plaintiffs offer no other
support for their claim that Dr. Studnicki's testimony is unreliable.
In response to Plaintiffs' objection that Dr. Studnicki's analysis of abortion rates
fails to account for confounding variables, the State emphasizes that Dr. Studnicki's
analysis was never intended to be exhaustive; indeed, no statistical analysis ever is. In
lodging this objection, says the State, Plaintiffs are demanding a more rigorous scientific
analysis by Dr. Studnicki than any performed by Dr. Moseson. Plaintiffs lack of response
signals their acquiescence, so the Court will address this challenge no further.
The referenced testimony from Dr. Studnicki is sufficiently reliable to be admitted
for the purposes for which it is proffered. Plaintiffs' challenges (with exception for the
ensuing specific objections) do not challenge the data upon which he relied, nor do they
dispute the link between the data and his conclusions. Plaintiffs' objections that Dr.
Studnicki's conclusions provide an insufficient basis on which the State can prove that the
challenged statutes do not create undue burdens shifts the burden of proof that is on
Plaintiffs to prove that the challenged statutes do create undue burdens. At best, Plaintiffs
arguments go the weight attributable to Dr. Studnicki's opinion (compared to those of

29

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 30 of 42 PageID #: 8496

their experts), rather than its admissibility. Exclusion of this evidence is not appropriate.
Lees v. Carthage Coll., 714 F.3d 516, 525 (7th Cir. 2013).
B. Dr. Studnicki's Opinions Relating to Indiana's Second Trimester Hospitalization
Requirement Are Admissible
Plaintiffs also seek the exclusion of Dr. Studnicki's opinions relating to Indiana's
requirement that second-trimester abortions be performed in a hospital or surgical
ambulatory center. His analysis is set out in Paragraph 83(h) of his amended expert
report: "Plaintiffs' experts argue without evidence that the challenged laws, specifically
the requirement that second trimester abortions be performed only in hospitals or
ambulatory surgery centers, are reducing the percentage of abortions performed in
Indiana in the second-trimester. Again, the evidence does not support these experts'
conclusions."
According to Plaintiffs, Dr. Studnicki has failed to apply reliable principles or
methods in reaching this conclusion. Dr. Studnicki's conclusion was the product of his
comparison of Indiana's second-trimester abortion rate with four other states' statutes that
are similar to Indiana. Plaintiffs assert that Dr. Studnicki should have "analyzed[d] or
account[ed] for differences in demand for second-trimester abortion among residents of
each state" or "determine[d] what the abortion rates in those states would have been in the
absence of those requirements." [Dkt. 326, at 6; Dkt. 334, at 4].
That Plaintiffs can think of an alternative analytical approach (one that not even
their own experts employed, apparently), says the State, is not reason enough to establish
that Dr. Studnicki's approach was unreliable. We agree. Dr. Studnicki has conceded that

30

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 31 of 42 PageID #: 8497

his review is not exhaustive; rather, his approach was to respond to and rebut the
analyses and conclusions of Plaintiffs' experts. Despite Plaintiffs' criticisms and
suggestions that Dr. Studnicki could have employed other methods, they themselves have
offered little to justify contrary approaches. Again, their challenges to Dr. Studnicki's
conclusions will be best pursued in cross-examination. 20
C. Dr. Studnicki's Opinions Regarding the Hostility Index Are Admissible
Plaintiffs next object to Dr. Studnicki's consideration of the "hostility index," a
methodology we are told that was developed by the Guttmacher Institute, a reproductive
health think tank, as a reference point when analyzing the burdens of abortion
regulations. This hostility index "characterize[s] each state's policy environment on a
scale from hostile to protective" based on the number of abortion regulations in the state.
Applying this methodology, Dr. Studnicki "measured the association of each state's
policy environment to its rate of change in abortion rates for the period 2000-2015" to
conclude that "[n]o variations in Indiana's abortion rate history over the past 25 years
suggest any association with any of the challenged laws." [Studnicki Am. Expert Rep., ¶
83(d)].
Plaintiffs reject Dr. Studnicki's application of the hostility index, asserting that this
analytical device was "created as a qualitative tool to convey the complexity of a state's
abortion policy environment in a simplified way." Plaintiffs argue that it was not intended

20

Plaintiffs also challenge Dr. Studnicki's remarks regarding the general safety of secondtrimester abortions. The State has confirmed that Dr. Studnicki does not intend to proffer such
testimony at trial. We accept this stipulation by the State.
31

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 32 of 42 PageID #: 8498

for rigorous quantitative analyses, nor has it been validated, that is, tested to ensure that it
produces reliable accurate, results. According to Plaintiffs, it is not a reliable method by
which to establish that the challenged laws have no impact on access to abortion care.
The State responds that Plaintiffs "misunderstand the significance of the hostility
index in Dr. Studnicki's analysis." He did not, as Plaintiffs imply, "assume that the
hostility index was peer reviewed, validated, or capable of illuminating practical effects."
[Dkt. 277, at 24]. Rather, "he merely . . . hypothesiz[ed] (and disproved) that the
combination of laws in effect, as measured by the hostility index, bears on abortion rate."
[Id. (emphasis in original)]. This approach provided support for Dr. Studnicki's overarching conclusion that there is no connection between the challenged statutes and
Indiana's abortion rates. His reference to the hostility index does not impeach the
reliability of his primary conclusion, argues the State.
Apparently both sides agree that the hostility index is not a valid scientific
methodology by which to prove the practical effects of abortion statutes on access to
abortion services. Indeed, the State represents that Dr. Studnicki's analysis of the hostility
index will not be offered for this purpose; rather, in performing this test of the hostility
index, he achieved an element of support for his conclusion regarding the lack of
connection between the challenged statutes and abortion rates. Plaintiffs have not
objected to Dr. Studnicki's testimony for this limited purpose. Accordingly, it may be
introduced at trial.
D. Dr. Studnicki's Opinions Regarding Indiana's Adoption Rate Are Unreliable and
Must Be Excluded

32

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 33 of 42 PageID #: 8499

Plaintiffs attack Dr. Studnicki's analysis and discussion of Indiana's adoption rates.
He specifically has opined that:
Indiana is a leader in non-marital infant adoptions, an important alternative to
abortion for unwanted pregnancies. In a 2014 Adoption Index computed by the
National Council for Adoption, Indiana ranked 5th in the nation compared to Ohio
and Illinois' rankings of 25th and 38th , respectively. A high adoption rate is clearly
a likely contributing factor in Indiana's low abortion rate.
Plaintiffs contend that this conclusion rests on unreliable principles or methods;
Dr. Studnicki has assumed, without evidentiary support, that Indiana's high adoption rate
is a contributing factor in its low abortion rate. Further, Indiana's "culture of life," as
reflected by the fact that it leads the nation in adoption rates, "explains a low abortion rate
far more persuasively than unsupported assertions of lack of access to clinics, or Indiana's
legal regime." [Studnicki Am. Expert Rep. ¶¶ 47-49]. Dr. Studnicki has testified that his
conclusion was based on "common sense," thus conceding that he lacks data to support it.
He also acknowledges the possibility that a woman who desires an abortion but is unable
to obtain one may instead place her child up for adoption. [Studnicki Depo., at p. 108109].
The State supports Dr. Studnicki's opinion as appropriate given his lack of any
attempt to use it to show causation. The high adoption rates, the State argues, suggest "a
potential alternative causality for Indiana's low abortion rates." [Dkt. 277, at 25].
This defense by the State leaves us unpersuaded. It clearly misstates the proffered
opinion of Dr. Studnicki, who has not opined that Indiana's high adoption rate may be a
"potential" factor in Indiana's low abortion rates, but instead that Indiana's high adoption
rate is "clearly" a contributing factor to Indiana's low abortion rate. His conclusion is, by
33

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 34 of 42 PageID #: 8500

his own admission, based on merely his own "common sense," unsupported by any data
or other reliable authoritative source. For these reasons, we hold that Dr. Studnicki's
opinion regarding adoption rates must be excluded from evidence because it is not the
product of reliable principles or methods, and instead is simply his personal speculation.
E. Dr. Studnicki's Testimony Concerning Minors Is Admissible
Plaintiffs' next challenge concerns the following assertion by Dr. Studnicki:
"Indiana minors have no less access to abortion than minors across the nation, and
plaintiffs have offered no evidence of any association of declines in minor abortion rates
with any challenged laws." [Studnicki Am. Expert Rep. ¶ 83(j)].
Plaintiffs challenge this conclusion as not being the product of reliable principles
or methods in that fails to consider only the impact of the parental consent law enacted in
1984 and not the impact of related laws enacted in 2011 and 2017. The State rejoins that
Dr. Studnicki was relieved of performing such an analysis since his report was directed
only at Dr. Moseson's, who did conduct such a comparison of rates at these intervals.
Plaintiffs have not rebutted this explanation, so we accept it as well.
Plaintiffs' remaining arguments are repetitive of challenges we have already
resolved, to wit, that Dr. Studnicki's analysis incorporates only abortion rates without
consideration of confounding factors or other burdens that the laws may impose. We need
not review these issues further.
F. Dr. Studnicki Is Entitled to Testify to His Opinions Relating to the Travel Burdens
(or Lack Thereof) Imposed By the Challenged Laws
Plaintiffs next objection targets the following opinion by Dr. Studnicki:

34

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 35 of 42 PageID #: 8501

Travel times for abortion in the United States and Indiana specifically, [sic]
remained largely constant over the period 2000-2014 according to the Guttmacher
Institute. The Institute's study concluded that travel distance in Indiana remained
constant and that spatial disparities were unchanged "despite several abortion
restrictions enacted during the period."
[Studnicki Am. Expert Rep. ¶ 83(i)]. Plaintiffs challenge this opinion as irrelevant,
arguing that the time period analyzed (2000-2014) is arbitrary and lacks any significance
given the context of Plaintiffs' claims, and the fact that several of the laws at issue were
enacted outside of this time period. The State agrees that not all of the challenged laws
were enacted during this time period, but points out them some undisputedly were and
others were already in effect. Dr. Studnicki's opinion is being offered to bolster the State's
theory that there is no evidence that any of the challenged laws have created a travel
burden for women.
We conclude that Dr. Studnicki's testimony is relevant for this purpose. Plaintiffs
clearly have theorized that travel is one of the burdens imposed by the challenged laws,
and at least some of these laws were enacted during the timeframe identified and
analyzed by Dr. Studnicki. Though Plaintiffs may question the utility of Dr. Studnicki's
testimony on this issue, their best recourse is through cross-examination.
G. Dr. Studnicki's Opinions Relating to the Disproportionate Impact of the
Challenged Laws on Black Women Are Admissible
Plaintiffs' final objection concerns the following opinion by Dr. Studnicki's
proffered in his expert report.
CDC race specific data for Indiana show that the over representation of black
women in abortion statistics has increased over time, consistent with trends in the
national data. Accordingly, the plaintiffs cannot establish that the alleged burden

35

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 36 of 42 PageID #: 8502

created by Indiana’s legal regime for abortions falls disproportionately on women
of color.
[Studnicki Am. Expert Rep. ¶ 83(k)].
According to Plaintiffs, Dr. Studnicki's conclusion that none of the challenged
laws disproportionately burden Black women is not based on sufficient facts and data. As
they explain, Dr. Studnicki's conclusion is premised solely on the fact that the abortion
rate among Black women is higher than the abortion rate among women of other races as
well as the fact that this rate has increased over time. However, say Plaintiffs, the
abortion rate alone does not reflect the burden Black women may face in obtaining
abortions, including delays in access to care or the frequency with which Black women in
Indiana must travel to other states to obtain abortions. Thus, the data on which Dr.
Studnicki relies does not support his conclusion.
The State disagrees with Plaintiffs' characterization of Dr. Studnicki's opinion,
explaining that he has not opined that the challenged laws do not disproportionately
affect Black women; rather, he holds the view that Plaintiffs are unable to prove their
theory, that is, that the challenged laws do, in fact, disproportionately harm Black
women. The State's rejoinder is that Plaintiffs are faulting Dr. Studnicki for failing to
support an opinion he does not hold.
The State's explanation more accurately tracks Dr. Studnicki's proffered opinion.
Dr. Studnicki has not opined that the challenged laws do not disproportionately burden
Black women. Thus, there is no basis on which to rule that his conclusion is insufficiently
supported. We expect Dr. Studnicki to testify that Black women have obtained abortions

36

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 37 of 42 PageID #: 8503

at rates higher than white women but consistent with national trends, which fact he
contends undermines Plaintiffs' theory that Black women are disproportionately
burdened. We will not issue an order excluding Dr. Studnicki from proffering a
conclusion that he does not intend to offer.
V.

Dr. Goodwine-Wozniak's Expert Opinions Are Admissible

The State expects to introduce into evidence at trial the testimony of Dr. Nancy
Goodwine-Wozniak, an ob-gyn practicing in Indiana, as an expert on several topics,
including Indiana's "Reporting Requirements," which require health care providers
performing abortions in Indiana to file a terminated pregnancy report with the State's
Department of Health, including specific information relating to each abortion as well as
additional information relating to minor patients. Plaintiffs' objection to Dr. GoodwineWozniak's testimony reflects statements she made during her deposition, where she
apparently could not recall the substance of the Reporting Requirements and that her
expert report offered an opinion on this subject. On the basis of her lack of sufficient
knowledge about the Reporting Requirements, Plaintiffs seek to exclude her from
offering expert testimony on the topic.
The State describes Dr. Goodwine-Wozniak's deposition testimony as nothing
more than a mere "memory lapse, which did not contradict the opinions presented in her
expert report. In any event, says the State, Plaintiffs have not questioned the foundation
for her views, nor did they attempt to refresh her faltering memory at her deposition by
referring her to the appropriate section of her expert report.

37

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 38 of 42 PageID #: 8504

We share the views expressed by the State. That Dr. Goodwine-Wozniak's lack of
recall of one aspect of her report at her deposition does not invalidate the sufficiency of
her conclusions in their entirety. We will not exclude her testimony on this basis. 21
VI.

Dr. Aaron Kheriaty's Testimony Relating to the Opinions Contained
Within His Expert Report Are Admissible, In Part

Plaintiffs' final challenge is to the opinions of Dr. Aaron Kheriaty, a psychiatrist
and the Director of Medical Education in the Department of Psychiatry at the University
of California Irvine School of Medicine. No dispute exists between the parties as to Dr.
Kheriaty's qualifications to testify on issues relating to medical ethics and bioethics.
Plaintiffs nonetheless assert that Dr. Kheriaty should be excluded from testifying to the
following statements contained in his expert report.
A. Dr. Kheriaty's Testimony Relating to the Medical Accuracy of Indiana's
Mandatory Disclosures and Informed Consent Brochure Is Not Admissible
Plaintiffs first move for the exclusion of Dr. Kheriaty's opinions that the
mandatory disclosures required by Indiana law are "supported by medical evidence and
reasonable." They object to Dr. Kheriaty's contention that "the information regarding
fetal development, abortion, and other available options and resources as required by
statute and/or contained in [Indiana's Abortion Informed Consent Brochure] are . . .
medically and ethically appropriate and justified," [Kheriaty Expert Rep. ¶ 9], and his

21

We note, as well, that summary judgment has been granted in favor of the State with respect to
Plaintiffs' claim that the Reporting Requirements violate the Fourteenth Amendment's
Substantive Due Process Clause, with the exception of those requirements tailored to minors,
which were unaddressed at summary judgment. Accordingly, this dispute may very well be
moot.
38

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 39 of 42 PageID #: 8505

opinion that Indiana's Informed Consent Brochure "contains factual and unbiased medical
information about fetal development, medical and surgical abortion procedures and their
potential risks and complications, information on other available options (such as
adoption), and other relevant support services." [Id. ¶ 54].
At his deposition, Dr. Kheriaty confirmed that he is not qualified to opine on
issues related fetal development or abortion risks or complications, nor is he qualified to
opine on the specific resources offered in Indiana. As he explained, these issues are
beyond his expertise; such questions should instead be posed to other experts, including
"experts in the field of obstetrics." [Kheriaty Depo., at p. 173-74, 245-47]. These
concessions prompt Plaintiffs to argue that Dr. Kheriaty should be precluded from
presenting testimony reflecting the opinions set forth in paragraphs 9(3), 10, and 53-54 of
his expert report, that is, his defense of the medical and scientific accuracy of Indiana's
mandatory disclosures and the information contained within the Informed Consent
Brochure.
The State contends that Dr. Kheriaty's expert report is carefully tailored to topics
within his expert knowledge, that is, medical ethics. This limitation is borne out by
statements such as, based on his examination of the Informed Consent Brochure, "no
inaccuracies from within [his] area of expertise" were revealed. [Dkt. 277, at p. 28
(quoting Kheriaty Rep. ¶ 58) (emphasis in original). Dr. Kheriaty's opinions regarding the
"medical and ethical reasonableness" of Indiana's disclosures related to "fetal
development, abortion, and other available resources" are thus acceptable, given that he
has tethered his opinions to his expertise as a medical ethicist. As to the substantive
39

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 40 of 42 PageID #: 8506

medical content of these disclosures, says the State, Dr. Kheriaty was "careful to identify
and respect the limits of his expertise." [Id. at 29].
Given the boundaries on Dr. Kheriaty's expertise, he will not, as he has stipulated,
provide any medical opinions regarding "fetal development" nor "medical and surgical
procedures and their potential risks and complications."
We are unclear from the State's briefing whether Dr. Kheriaty will be called to
testify at trial as to his opinion that, as a medical ethicist, he believes Indiana's mandatory
disclosures and Informed Consent Brochure contain medically accurate and truthful
information. The State appears to defend Dr. Kheriaty's capacity to testify to the medical
accuracy and truthfulness of its informed consent materials as a medical ethicist.
We have our doubts about this kind of boot strapping; if Dr. Kheriaty is not
qualified to opine on issues of medicine, he may not testify to matters or issues of this
nature. Thus, Dr. Kheriaty's testimony related to the accuracy or truthfulness of Indiana's
mandatory disclosures and its Informed Consent Brochure must be excluded because he
is not qualified to offer such opinions, which entail analysis of underlying substantive
medical content. For these reasons, his opinions set out in paragraphs 9(3) and 54 of his
expert report, to the extent they relate to the accuracy or truthfulness of the medical
information provided in Indiana's mandatory disclosures and its Informed Consent
Brochure, are not admissible. 22

22

We disagree with Plaintiffs' characterization of the statements in paragraphs 10 and 53 to
include opinions as to the medical accuracy of Indiana's mandatory disclosures. Additionally,
Plaintiffs have not challenged Dr. Kheriaty's statement in paragraph 54 of his expert report that
the Informed Consent Brochure contains information from a reliable and unbiased scientific
40

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 41 of 42 PageID #: 8507

B. Dr. Kheriaty Has Not Provided Opinions Regarding the Appropriateness of
Telemedicine; Thus There Are No Grounds for an Exclusionary Order
Plaintiffs next argue that Dr. Kheriaty should be excluded from offering testimony
regarding the medical benefits of Indiana's prohibitions on the use of telemedicine in
abortion care. Again, Plaintiffs assert that Dr. Kheriaty is not qualified to opine on this
topic. The State does not dispute that Dr. Kheriaty is not so qualified, clarifying that he
has not been designated to testify on this topic, nor does his expert report offer any
opinion regarding the appropriateness of telemedicine. Accepting the State's stipulation,
we find this objection to be moot. 23
C. Dr. Kheriaty's Opinions Regarding Mental Health Are Admissible, In Part
Finally, Plaintiffs seek to exclude Dr. Kheriaty's opinion that "a significant number
of women suffer negative psychological effects of abortions." [Kheriaty Expert Rep. ¶¶
67-101]. According to Plaintiffs, the studies upon which Dr. Kheriaty relies are the same
flawed studies relied upon by Dr. Coleman. However, based on our review, we have
determined only one study to be unreliable as referenced in Dr. Kheriaty's expert report.
Like Dr. Coleman, Dr. Kheriaty may not include the findings of this study in his
testimony. Otherwise, he is permitted to testify as to his opinions.

source. Nor have Plaintiffs challenged Dr. Kheriaty's qualifications to review this source.
Accordingly, he will be permitted to offer this opinion at trial so long as he does not offer his
own conclusion regarding the accuracy of the medical information.
23 In their Reply brief, Plaintiffs assert that if Dr. Kheriaty is not opining on the appropriateness
of telemedicine, he should not permitted to discuss his opinion that "informed consent
conservations require face-to-face" communications, which, as he clarified at his deposition,
could mean "face-to-face through a screen." Plaintiffs assert that this statement will not aid the
Court in "understand[ing] the evidence or [] determin[ing] a fact in issue." We disagree. Dr.
Kheriaty's limited opinion on the value of face-to-face informed consent may be useful to our
resolution of the issues before us, as provided in the limited context described above.
41

Case 1:18-cv-01904-SEB-MJD Document 356 Filed 02/19/21 Page 42 of 42 PageID #: 8508

CONCLUSION
Plaintiffs' Motion to Exclude [Dkt. 273] is granted in part and denied in part.
As explicated fully herein, the proposed testimony of the State's experts is limited as
follows:
• Ms. Roth's opinions relating to women's motivations in obtaining abortions;
the benefits of pregnancy and motherhood; and the mental health impacts
of abortion are all excluded.
• Dr. Coleman's testimony relating to those studies that we have determined
to reflect unreliable methodologies is excluded.
• Dr. Calhoun's testimony relating to his conclusions that abortion is
disproportionately harmful to Black and older women as well as his opinion
regarding the value of pregnancy and motherhood to vulnerable women is
excluded.
• Dr. Studnicki's testimony relating to the correlation between Indiana's
adoption rate and its abortion rate is excluded.
• Dr. Kheriaty's testimony relating to the medical accuracy or truthfulness of
Indiana's mandatory disclosures and its Informed Consent Brochure is
excluded. Any further testimony relating to those studies on mental health
that we have determined to be unreliable is also excluded.
IT IS SO ORDERED.

Date:

2/19/2021

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution to counsel of record via CM/ECF

42