Full opinion text
OPINION AND ORDER WILLIAM M. CONLEY, District Judge. TABLE OF CONTENTS INTRODUCTION.■.. © CR to BACKGROUND FACTS. CO to © I. The Lawsuit. CO to © II. Act 37. tO to 05 A. Overview of Key Provisions. t© uo 05 B. Legislative History. l© to 05 C. Timing. © to 05 III. Overview of Abortion Services. CO CR 05 IV. Current Availability of Abortion Services in Wisconsin CO to 05 A. State Statistics. CO to 05 B. Plaintiffs’ Abortion Services. to 05 C. Location of Out-of-State Abortions Clinics. 05 to 05 V. Overview of Admitting Privileges .'.•. CO CR CO A. Types. CO CR CO B. Typical Application Process and Timing. CO CR CO VI. Status of Plaintiffs’ Admitting Privileges. CO 05 O OPINION. CO 05 © I. Preliminary Matters . © CO © A. Plaintiffs’ Motion to Seal Certain Trial Exhibits . © CO © B. Plaintiffs’ Motions to Supplement Record. T — 1 CO © II. Fourteenth Amendment Liberty and Privacy Claim .. (N CO © A. Legal Standard . 03 © © B. State Interest / Medical Rationale. ^ © © C. Burdens. © 00 © D. Balancing Benefits with Burdens. CO © © III. Improper Purpose Claim . © © IV. Nondelegation Doctrine Claim. © © © V. Equal Protection / Substantive Due Process Claims .. Cr- © © © © yo INTRODUCTION For reasons left largely unexplained at the time of its enactment, the Wisconsin Legislature passed and Governor Walker signed, Section 1 of 2013 Wisconsin Act 37 (“the Act”), requiring every physician who provides abortions in Wisconsin to have admitting privileges at a hospital within thirty miles of the health center where the abortion is performed. After finding that this requirement likely violated the liberty and privacy rights of plaintiffs’ patients under the Fourteenth Amendment of the United States Constitution, this court entered a preliminary injunction on August 2, 2013, enjoining its enforcement. After affirming the entry of that injunction, the Seventh Circuit remanded this case for an adjudication of the merits of plaintiffs’ claims. In light of the evidence presented by both sides at trial, the court now finds that the marginal benefit to women’s health of requiring hospital admitting privileges, if any, is substantially outweighed by the burden this requirement will have on women’s health outcomes due to restricted access to abortions in Wisconsin. While the court agrees with the State that sometimes it is necessary to reduce access to insure safety, this is decidedly not one of those instances. On the robust trial record, the court is, if anything, more convinced that the admitting privileges requirement in Act 37 “remains a solution in search of a problem,” Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL 3989238, *14 (W.D.Wis. Aug. 2, 2013), unless that problem is access to abortion itself. In particular, the State has failed to meet its burden of demonstrating through credible evidence a link between the admitting privileges requirement and a legitimate health interest. For the reasons explained in this opinion below, therefore, the court finds Section 1 of Act 37 violates liberty and privacy rights of plaintiffs’ patients under the Fourteenth Amendment of the United States Constitution. The court further finds that the sudden adoption of a requirement for admitting privileges without a time period allowed to achieve compliance compels a finding that its purpose was to impose a substantial obstacle on women’s right to abortions in Wisconsin, also in violation of their Fourteenth Amendment rights. As for those claims directed at plaintiffs’ own rights under the Fourteenth Amendment, the court finds no rational reason to treat physicians who perform abortions differently from those who regularly perform equally or more risky outpatient procedures. Finally, the court finds that the Act violates the non-delegation doctrine by leaving to private hospitals the authority to deny admitting privileges for reasons other than a physician’s competence without any means for appeal. Accordingly, the court declares Section 1 of Act 37 unconstitutional and will enter an order permanently enjoining the enforcement of the Act. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed:2d 547 (1976) (loss of constitutional “freedoms ... unquestionably constitutes irreparable injury”); Preston v. Thompson, 589 F.2d 300, 303 (7th Cir.1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest.”). BACKGROUND FACTS I. The Lawsuit In this lawsuit, plaintiffs Planned Parenthood of Wisconsin, Inc. (“PPW”); Susan Pfleger, M.D., a PPW physician; Kathy King, M.D., PPW’s Medical Director; and Milwaukee Women’s Medical Services d/b/a Affiliated Medical Services (“AMS”) assert various constitutional challenges to the Act against defendants, the Attorney General of the State of Wisconsin, the Dane County District Attorney (as a representative of a class of DAs), the Secretary of the Department of Safety and Professional Services and members of the Medical Examining Board. At times, the court refers collectively to defendants as “the State.” The court previously granted plaintiffs a temporary restraining order, Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 963 F.Supp.2d 858 (W.D.Wis.2013) (“Van Hollen I”), and a preliminary injunction, Planned Parenthood of Wisconsin, Inc. v. Van Hollen, No. 13-cv-465-wmc, 2013 WL 3989238 (W.D.Wis. Aug. 2, 2013) (“Van Hollen II ”), based on its conclusion that plaintiffs were likely to succeed on their claim that the Act violates their patients’ rights to liberty and privacy under the Fourteenth Amendment of the United States Constitution. (Dkt. ##21, 81.) The Seventh Circuit affirmed the court’s entry of a preliminary injunction. Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786, 807 (7th Cir.2013) (“VanHollen III”). On remand from the Seventh Circuit, the court held a bench trial, which included a neutral expert, Dr. Serdar Bulun, Chair of the Department of Obstetrics and Gynecology at Northwestern University Fein-berg School of Medicine, appointed by the court on the recommendation of the Seventh Circuit. On the third day of trial, the court held a colloquy between Dr. Bulun, plaintiffs’ expert Dr. Douglas Laube, and defendants’ expert Dr. John Thorp, Jr. The primary focus of the colloquy was on complications arising from abortion, the relative safety of abortion, and the role admitting privileges might play in furthering care of women during and after abortions. Following this colloquy, the court gave the parties an opportunity to cross-examine Dr. Bulun on any matter, including the concise written responses to questions posed by the court previously provided to the parties and made a part of the trial record. (Tr. Ex. 500.) The court then heard testimony from the parties’ principal experts, as well as from named individual plaintiffs Drs: King and Pfleger, PPW’s CEO Teri Huyck, AMS’s two owners, Drs. Christiansen and Smith (through his deposition), several additional experts and other witnesses oh the same subjects. The primary focus of the trial and of the parties’ efforts to date has been on patients’ Fourteenth Amendment liberty and privacy claim. Plaintiffs also assert the following claims under the Fourteenth Amendment: (1) undue burden claim on behalf of their patients based on an impermissible purpose; (2) equal protection and substantive due process claims based on the Act singling out physicians providing abortion services without a rational basis; and (3) a due process claim based on the, State delegating decisionmaking over the plaintiffs’ rights to practice their chosen profession to private entities, namely hospitals, without adequate oversight or a mechanism to waive or appeal the hospitals’ denial of admitting privileges (a so-called “non-delegation doctrine” claim). II. Act 37 A. Overview of Key Provisions Section 1 of 2013 Wisconsin Act 37, codified at Wis. Stat. § 253.095, provides in pertinent part: SECTION 1. 253.095 of the statutes is created to read: 253.095 Requirements to perform abortions. (1) Definition. In this section, “abortion” has the meaning given in s. 253.10(2)(a). (2) Admitting privileges required. No physician may perform an abortion, as defined in s. 253.10(2)(a), unless he or she has admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed. “Abortion” is defined as “the use of an instrument, medicine, drug or other substance or devise with intent to terminate the pregnancy of a woman known to be pregnant.” Wis. Stat. § 253.10(2)(a). This definition encompasses the abortions provided by plaintiffs. Any person who violates the Act is subject to civil forfeiture penalties of between $1,000 and $10,000. Wis. Stat. § 253.095(3). The Act also provides that any physician performing or attempting to perform an abortion without admitting privileges (or otherwise in violation of the Act) could be subject to civil suits for damages for “personal injury and emotional and psychological distress.” Wis. Stat. § 253.095(4). Such suits may not only be brought by a “woman on whom an abortion is performed or attempted,” but by the “father of the aborted unborn child or the unborn child that is attempted to be aborted,” or any “grandparent of the aborted unborn child or the child that is attempted to be aborted.” Id. Finally, physicians violating the Act may face investigation and professional discipline up to and including license revocation. Wis. Stat. § 448.02(3); Wis. Admin. Code MED § 10.02(2)(z). B. Legislative History The Act was proposed to its legislative sponsor Senator Mary Lazich by representatives of Wisconsin Right to Life. (Joint Stip. (dkt. #200) ¶¶21, 35; Affidavit of Laura D. Rose (“Rose Aff.”), Ex. A (dkt. #49-1) 1; 5/28/14 Trial Tr. (dkt. #233) 12425 (Merrill testifying that he proposed the admitting privileges requirement to Wisconsin Right to Life, who then forwarded his email to Senator Lazich who sponsored the bill).) The Act was opposed by the state’s leading medical and public health associations, including the Wisconsin Medical Society, the Wisconsin Section of the American Congress of Obstetricians and Gynecologists, the Wisconsin Association of Local Health Departments and Boards, the Wisconsin Academy of Family Physicians, the Wisconsin Hospital Association, and the Wisconsin Public Health Association. (5/29/14 Trial Tr. (dkt. # 244) 139 (Laube); Joint Stip. (dkt. # 200) ¶ 23; Rose Aff., Ex. A (dkt. #49-1) 11.) The Medical Examining Board did not propose, recommend, support or advocate for the legislation, and no member of the Wisconsin legislature or legislative aide consulted with or sought the advice of the Medical Examining Board as to any medical need or benefit of requiring physicians performing abortions to have admitting privileges at a hospital. (Ex. 22 at Nos. 4-6.) There was also no documented medical need or purpose for the Act when presented to the legislature, and the only physician who provided testimony regarding the Act testified against it. (Joint Stip. (dkt. # 200) ¶ 18; Affidavit of Jeffrey R. Renk (“Renk Aff.”), Ex. A (dkt. ##48-1) (listing Dr. Tosha Weterneck of the Wisconsin Medical Society as against the bill).) C. Timing Not unlike some other controversial legislation in Wisconsin of late, the Act was passed precipitously. First introduced as 2013 Senate Bill 206 in the legislature on June 4, 2013, a hearing was held on the Act in front of the Committee of Health and Human Services the next day. The Bill was then passed by the Senate on June 12, and by the Assembly on June 13, presented to the Governor on July 3, signed by him into law. on Friday, July 5, and would have taken effect three days later on Monday, July 8, 2013, but for this court’s injunction. (Joint Stip. (dkt. # 200) ¶ 18; Renk Aff., Exs. A, B (dkt. ## 48-1, 48-2).) III. Overview of Abortion Services Nationally, over 90% of abortions are performed in an outpatient setting. (5/27/14 Trial Tr. (dkt. #243) 104 (King); Ex. 27 at ¶ 8.) There are two types of abortions: medication (or medical) abortions and surgical abortions. The former involves administration of two medications, Mifepristone and Misoprostol, to induce an abortion. (Ex. 50 (Expert Report of Douglas Laube, M.D. (“Laube Rept.”)) ¶ 3.) The patient takes Mifepristone in the clinic, which terminates the pregnancy, and takes Misoprostol at home approximately 24 to 48 hours after the visit in the clinic, which causes her uterine to contract and expel its contents. (5/27/14 Trial Tr. (dkt. #243) 105 (King); Ex. 50 (Laube Rept.) ¶ 3.) Surgical abortion involves the use of instruments to evacuate the contents of the uterus. (5/27/14 Trial Tr. '(dkt. # 243) 105 (King).) There are two kinds of surgical abortion: aspiration or surgical suctioning abortion and dilation and evacuation abortion. (5/27/14 Trial Tr. (dkt. # 243) 26 (Ashlock).) The procedure is short in duration, lasting five to eight minutes in the first trimester, but up to 20 minutes for a late second-trimester procedure. (5/27/14 Trial Tr. (dkt. # 243) 160-61 (King).) A surgical abortion involves no incision into the woman’s skin or other bodily membrane. (Id. at 105.) First trimester surgical abortions are nearly identical to diagnostic dilation, curettage and surgical completion of miscarriage. (Ex. 50 (Laube Rept.) ¶ 5.) Second-trimester abortions are similar to hysteroseopies, a gynecological procedure that assesses “the cavity of the uterus through a small, pencil-sized endoscope so that one can visualize the inside of the uterine cavity.” (5/29/14 Trial Tr. (dkt. # 244) 132-33 (Laube); Ex. 50 (Laube Rept.) ¶ 6.) IV. Current Availability of Abortion Services in Wisconsin A. State Statistics Pursuant to state statute, “each hospital, clinic or other facility in which an induced abortion is performed” must report selected information on every patient who has obtained an induced abortion in Wisconsin. Wis. Stat. § 69.186(1). (Joint Stip. (dkt. # 200) ¶ 7.) By statute, the Wisconsin Department of Health Services (“DHS”) is also required to publish annual demographic summaries of the information reported. Wis. Stat.' § 69.186(2). The parties have provided reports for 2009 through 2012. (See Joint Stip. (dkt. # 200) ¶¶ 8-12; Exs. 1088-91.) According to these reports, the vast majority of abortions occur in the first trimester. In Wisconsin in 2012, 83% of abortions occurred at or before 12 weeks of pregnancy, as measured from the first day of a woman’s last menstrual period (“LMP”), and 96% at or before 15 weeks LMP. (Joint Stip. (dkt. #200) ¶9; Ex. 1088.) B. Plaintiffs’ Abortion Services There are currently four clinics in Wisconsin where women can obtain abortions. PPW operates three of the clinics: Madison East, Appleton North, and Milwaukee-Jackson. AMS operates the fourth clinic, also in Milwaukee. 1. AMS AMS provides medication abortions to ten weeks IMP, and surgical abortions to 22 weeks IMP, and infrequently beyond 22 weeks on a limited case-by-case basis. (5/27/14 Trial Tr. (dkt. # 248) 27 (Ashlock); 5/29/14 Trial Tr. (dkt. # 244) 221 (Chris-tiansen testifying that AMS provides surgical abortions up to 24 weeks).) AMS provided approximately 2,100 abortions annually in 2011, 2,300 in 2012, and 2,500 in 2013. (5/27/14 Trial Tr. (dkt. #243) 28 (Ashlock); Ex. 2.) The vast majority of abortions were performed in the first trimester, and approximately one-quarter of those abortions were medication abortions. (5/27/14 Trial Tr. (dkt. # 243) 30-31 (Ash-lock); Ex. 2.) As for late second-trimester abortions, AMS performed 155 abortions post-20 weeks IMP in 2010, 135 in 2011, and 131 in 2012. (5/27/14 Trial Tr. (dkt. # 243) 29-30 (Ashlock); Ex. 2.) Providing abortion care represents over 90% of the services AMS provides. (5/27/14 Trial Tr. (dkt. # 243) 13 (Ashlock).) Dr. Dennis Christiansen is 50% owner of AMS and the associated medical director. (5/29/14 Trial Tr. (dkt. # 244) 172 (Chris-tiansen).) Having retired (or at least attempted to retire), he currently provides abortions at AMS on an occasional basis. (Id.) He is a board-certified obstetrician and gynecologist, .and has been on the clinical faculty at the University of Wisconsin Medical School since 1993, where he taught residents in the ob-gyn and family practice programs to perform abortions. (Id. at 173,175; Ex. 13.) Dr. Christiansen has been providing abortions in Wisconsin since 1977. (Id. at 251.) In 1980, Dr. Christiansen established the Madison Abortion Clinic which he ran until he donated the clinic to Planned Parenthood in 2008. (Id. at 173.) Dr. Christiansen also operated abortion facilities in Rockford, Illinois and Niles, Michigan. (Id.) Over the course of his career, he has performed over 85,000 abortions. (Id. at 180.) During that same period, Dr. Christiansen estimates that he has transferred 50 patients to the hospital for emergency treatment. (Id. at 181.) Dr. Bernard Smith is the other 50% owner of AMS and is its medical director, serving in this capacity since he joined AMS in 1990. (Deposition of Bernard Smith, M.D. (“Smith Depo.”) (dkt. # 211) 19, 23.) Initially, Dr. Bernard spent two to three days per week at AMS, but now he spends four days per week. (Id. at 19-20.) Dr. Smith’s training and residency is in Emergency Medicine, but he has been principally engaged in providing reproductive health services, primarily abortion services, for 30 years. (5/27/14 Trial Tr. (dkt. #243) 56 (Ashlock); Pis.’ PFOFs (dkt. # 179) ¶ 23.) Dr. Christiansen trained Dr. Smith to provide second-trimester abortions, gradually increasing the gestational age. (5/29/14 Trial Tr. (dkt. # 244) 178-79 (Christiansen).) Dr. Smith resides in Chicago, Illinois. (Smith Depo. (dkt. #211) 39.) 2. Planned Parenthood of Wisconsin Planned Parenthood of Wisconsin provides comprehensive outpatient reproductive health care services, including abortion services, to thousands of women in Wisconsin each year. (5/27/14 Trial Tr. (dkt. # 243) 296 (Huyck).) PPW has been providing health care services since 1935, and at the time of trial, provided those services at 23 health centers in Wisconsin. (Id.) At three of those centers, PPW offers abortions: Appleton North (where PPW provides abortions to 13.6 weeks LMP); Milwaukee-Jackson (where PPW provides abortions to 17 weeks LMP); and Madison East (where PPW provides abortions to 18.6 weeks LMP). (5/27/14 Trial Tr. (dkt. #243) 97-98 (King).) At all three locations, PPW provides medication abortions up to 9.0 weeks LMP. (Id. at 98.) PPW provided approximately 3,300 abortions in 2013 and over 4,100 in 2012 at its three clinics. (5/27/14 Trial Tr. (dkt. # 243) 297 (Huyck).) Eighty-four percent of abortions at PPW are done in the first trimester. (5/27/14 Trial Tr. (dkt. #243) 98 (King).) Approximately 10% to 12% of abortions performed at PPW’s clinics are medication abortions, with the remainder being surgical. (Id. at 158.) Plaintiff Kathy King is the Medical Director of PPW. (5/27/14 Trial Tr. (dkt. # 243) 90 (King).) She is a licensed Wisconsin physician and board-certified ob-gyn with over 10 years of experience. (Id. at 90-91; Ex. 59.) Dr. King is an Assistant Professor of Obstetrics & Gynecology at the Medical College of Wisconsin. (5/27/14 Trial Tr. (dkt. #243) 90-91 (King); Ex. 59.) She has admitting privileges at Froedtert Hospital and Children’s Hospital of Wisconsin in Milwaukee, and recently obtained admitting privileges at a hospital near the Appleton North health center. (Ex. 59; Joint Stip. (dkt. #200) ¶ 6.) Dr. King provides abortion services approximately four days a month at PPW’s Milwaukee-Jackson clinic. (5/27/14 Trial Tr. (dkt. #243) 102 (King).) Given her medical director role at PPW, along with her practice at the Medical College of Wisconsin and Froedtert, Dr. King does not have the time to provide additional care at PPW’s Milwaukee-Jackson clinic or travel to other centers to provide abortion care. (Id.) Dr. King has performed at least 2,000 abortions during the course of her career, (Id. at 92.) Dr. Susan Pfleger is also a board-certified ob-gyn, who works at PPW between one and three days per week, providing counseling pre-abortion, abortion services and insertion of contraception devices post abortion. (5/27/14 Trial Tr. (dkt. #243) 182, 184-85 (Pfleger).) Dr. Pfleger began working for PPW in 2000 and was its medical director for approximately five to six years. (Id. at 185.) Dr. Pfleger currently provides services at the Milwaukee-Jackson clinic. (Id.) Over the course of her career, Dr. Pfleger has performed approximately 15,000 abortions. (Id. at 187.) In addition to King and her co-plaintiff Pfleger, there are four other physicians (identified as Dr. PI, Dr. P2, Dr. P3, and Dr. P5) providing abortion services at PPW’s health clinics. (Joint Stip. (dkt. # 200) ¶¶ 2, 3, 5, 6.) Like Dr. King, the other physicians providing services at PPW have private practices separate from PPW and only have a set number of days that they can dedicate to performing abortions. (5/27/14 Trial Tr. (dkt. # 243) 150 (King).) C. Location of Out-of-State Abortions Clinics There are abortion clinics in Minnesota, Illinois and Michigan. (5/27/14 Trial Tr. (dkt. # 243) 170 (King).) Within legal limits, a clinic in Chicago provides abortions to the end of the 23rd week. (Id.) V. Overview of Admitting Privileges A. Types A physician with admitting privileges at a particular hospital may admit patients and direct their care, as would a member of the hospital staff. Hospital staff membership and privileges, including admitting privileges, are governed by each hospital’s bylaws. Most hospitals have different categories of privileges, some of which allow admission of patients, while other categories do not. For example, while defendant’s expert Dr. Geoffrey Keyes described certain strategies for physicians with low or no volume of hospital patients, his suggestion that physicians attempt to obtain “refer and follow privileges” would not satisfy the requirements of Act 37, because those privileges do not allow a physician to admit patients. (5/27/14 Trial Tr. (dkt. # 243) 254 (Keyes); Deposition of Rita M. Hanson, M.D. (“Hanson Depo.”) (dkt. # 210) 19.) B. Typical Application Process and Timing Plaintiffs submitted the deposition testimony of Rita Hanson, M.D., Chief Medical Officer for Wheaton Franciscan Healthcare. (Hanson Depo. (dkt. # 210).) In her deposition, Dr. Hanson described the credentialing process at Wheaton, which appears similar to that required by other hospitals, as well as consistent with plaintiffs’ experience in securing or attempting to secure admitting privileges. Applicants are first given a “pre-application, which is very basic information that the physician completes,” to make-sure that they “meet our basic qualifications.” (Id. at 10.) If those criteria are met, the physician is asked to complete a full application. (Id. at 10-11.) Once the full application is completed, the medical office: (1) verifies the information provided by'contacting the institutions listed by the applicant; (2) queries the National Practitioner Data Bank; and (3) performs a background check. (Id. at 11.) Once those steps are completed, letters of recommendations are reviewed and references are checked. (Id.) After these verifications are completed, the applicant is typically invited to interview with the chair of the department, although the chair can waive the interview if he or she is already familiar with the applicant. (Id.) There may also be interviews with the academic chair and with the credentials committee chair. (Id. at 12.) Should the applicant pass the interview hurdle, the application would then go to the credentials committee, which reviews all of the materials collected by the medical staff office and forms from any interviews in light of the type of privileges requested. (Id. at 13.) The credentials committee then makes a recommendation to the medical executive committee, which .in turn makes a recommendation to what Wheaton refers to as the “Tier 3 Board,” consisting of the hospital leadership and members of the community. (Id. at 13-14.) If the Tier 3 Board approves, privileges are granted; however, if denied, there is no appeal process. (Id. at 15.) VI. Status of Plaintiffs’ Admitting Privileges As discussed below in greater detail, PPW physicians were successful in securing admitting privileges in Milwaukee and Appleton. (Joint Stip. (dkt. # 200); ¶¶ 3, 6; Ex. 98.) AMS’s two physicians, Drs. Christiansen and Smith, did not have admitting privileges at a hospital within 30 miles of AMS at the time the Act was passed, nor apparently were they able to obtain such privileges by the time of trial. OPINION I. Preliminary Matters There are two preliminary set of motions that must be addressed before the court turns to the merits. A. Plaintiffs’ Motion to Seal Certain Trial Exhibits Plaintiffs seek to seal certain documents containing excerpts of PPW manuals outlining its protocols for operation because they contain proprietary and sensitive business information. (Pis.’ Mot. to Seal (dkt. #224).) The documents were marked as confidential pursuant to , the protective order entered in this case, and the protective order further provides that documents designated confidential will be sealed if used at trial. (Dkt. # 105-1.) While the court questions whether these documents contain the kind of “highly sensitive” competitive information warranting sealing, see Formax Inc. v. Alkar-Rapidpak-MP Equip., Inc., No. 11-C-0298, 2014 WL 792086, at *3 (E.D.Wis. Fed. 25, 2014), the court nonetheless is persuaded that these materials contain trade secrets, as defined under Wisconsin law, Wis. Stat. § 134.90(c). Accordingly, the court will grant plaintiffs’ motion and order that Exhibits 32, 36, 37 and 38 remain under seal. B. Plaintiffs’ Motions to Supplement Record Also before the court are two motions by plaintiffs to supplement the trial record. “[A] motion to reopen to submit additional proof is addressed to [the court’s] sound discretion.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (citing Swartz v. N.Y. Central R. Co., 323 F.2d 713, 714 (7th Cir.1963)); see also Fed.R.Civ.P. 59(a)(2) (providing that the court may take additional testimony after a nonjury trial). In the first motion, plaintiffs seek to include three categories of exhibits. (Dkt. #247.) First, plaintiffs seek to include additional materials related to hospital staff privileges obtained by subpoena, which are related to other hospital materials already the subject of a stipulation between the parties. The court will grant this request in light of the parties’ stipulation and as unopposed by. defendants. Accordingly, exhibits 1A-1F attached to the declaration of Renée Paradis (dkt. # 250-1) are admitted as Exhibit 97. Second, plaintiffs move to admit discovery responses by defendant Dave Ross, Secretary of the Wisconsin Department of Safety & Professional Services, and defendant Kenneth B. Simons, Chairperson of the Medical Examining Board of the State of Wisconsin, in which they both represent that neither agency nor organization has investigated or, in the case of the Medical Examining Board, taken disciplinary action against, a physician performing abortion services in the last five years. These discovery responses were identified before trial as Exhibits 21 and 22, and defendants interposed no objection as called for by the court’s pretrial procedure. Plaintiffs explained that they intended to move these exhibits into the record formally during the trial but inadvertently failed to do so. Although aware of plaintiffs’ intent to enter these discovery responses into the record without objection, defendants now oppose plaintiffs’ request on the basis that they had ample opportunity to do so at the trial. While the court agrees that plaintiffs should have formally moved for their admission, plaintiffs’ failure to do so here is excusable given the volume of exhibits and the speed with which the trial advanced. More importantly, defendants are in no way prejudiced by the exhibits admission. Nor can defendants claim surprise given that the exhibits are discovery responses they provided and not only understood could but would be used against them at trial. Accordingly, the court will grant plaintiffs’ second request as well. Exhibits 21 and 22 are formally admitted. Third, plaintiffs seek leave to supplement the record with letters to and from Milwaukee area hospitals concerning Drs. Smith and Christiansen’s eligibility for privileges, which were only collected after trial. Defendants object to plaintiffs’ request, arguing that: (1) the evidence is untimely; (2) plaintiffs fail to explain why these documents could not have been obtained before the close of trial; and (3) defendants would be prejudiced by the admission of the evidence because they had no opportunity to challenge the offered document, including hearsay statements by physicians or the hospital credentialing members, to examine its authors, or to present counterevi-dence. (Defs.’ Opp’n (dkt. #251) 2-3.) On this, the court agrees with defendants. Any correspondence of this type could and should have been obtained sooner and moved into evidence during trial. Accordingly, the court will deny plaintiffs’ request to supplement the trial record with correspondence concerning Drs. Smith and Christiansen’s eligibility for admitting privileges in Milwaukee-area hospitals. In the second motion, plaintiffs seek leave to include two categories of exhibits. (Dkt. # 253.) First, plaintiffs seek to include email correspondence between AMS and Waukesha Memorial Hospital concerning Drs. Christiansen and Smith’s eligibility for admitting privileges, which will be denied for the same reasons as explained above. Second, plaintiffs seek to include two letters, both to plaintiff Dr. Pfleger, one from an Appleton hospital notifying her that she has been granted admitting privileges and the other from Aurora Sinai (a Milwaukee hospital) informing her that she must satisfy certain requirements by November 29, 2014, or risk revocation of her membership. Because this part of the motion is unopposed by defendants, exhibit A to plaintiffs’ supplemental motion to include certain documents in the trial record (dkt. # 253-1) is admitted as Exhibit 98. II. Fourteenth Amendment Liberty and Privacy Claim A. Legal Standard In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the United States Supreme Court observed that a “woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ]. It is a rule of law and a component of liberty we cannot renounce.” Id. at 871, 112 S.Ct. 2791. In Casey, the Court also specifically addressed the source of this liberty interest: Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. Id. at 852, 112 S.Ct. 2791. Still, the Supreme Court held in Casey and in subsequent cases, this liberty interest is not absolute. In affirming this court’s entry of a preliminary injunction in this case, the Seventh Circuit set forth the applicable test for determining whether a regulation directed at women’s health constitutes an undue burden: The cases that deal with abortion-related statutes sought to be justified on medical grounds require not only evidence (here lacking as we have seen) that the medical grounds are legitimate but also that the statute not impose an “undue burden” on women seeking abortions. The feebler the medical grounds, the likelier the burden, even if slight to be “undue” in the sense of disproportionate or gratuitous. Van Hollen III, 738 F.3d at 798 (citing Casey, 505 U.S. at 874, 877, 900-01, 112 S.Ct. 2791; Stenberg v. Carhart, 530 U.S. 914, 930, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Mazurek v. Armstrong, 520 U.S. 968, 972-73, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)). In its post-trial brief, the State essentially disregards this test, mentioning it only briefly in a footnote. (Defs.’ Post-Trial Br. (dkt. #255) 61 n. 40.) Instead, the State refers this court either to: (1) cases outside of the abortion context involving rational basis review, see, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); or (2) a pair of decisions from the Fifth Circuit considering a challenge to Texas’s admitting privileges requirement, see Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406 (5th Cir.2013) (“Abbott /”), and Planned Parenthood of Greater Tex. Surg. Health Servs. v. Abbott, 748 F.3d 583 (5th Cir.2014) (“Abbott II”). While this court rejected plaintiffs’ invitation to apply strict scrutiny in its preliminary injunction opinion, Van Hollen II, 2013 WL 3989238, at *12, neither is it free to apply a vanilla rational basis test in light of the Seventh Circuit’s directive to weigh legitimate health benefits derived from an abortion regulation against the burdens it places on women seeking access to abortion services. Notably, in Abbott II, the Fifth Circuit criticized the Seventh Circuit’s directive, rejecting any requirement by the State to prove through evidence that the admitting privileges requirement will make abortions safer. 748 F.3d at 596. Even if this court found the Fifth Circuit’s reasoning consistent with Casey and subsequent Supreme Court decisions — and it does not— this court, of course, is required to follow the law of the case as articulated by of the Seventh Circuit. As this court explained in its preliminary injunction opinion, unlike cases where courts have considered a regulation adopted to respect the potential life of the unborn or to further the integrity and ethics of the medical community, see, e.g., Gonzales v. Carhart, 550 U.S. 124, 157, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), “there is no other legitimate state interest or interests at play [in this case,] which would counter-balance any arguable uncertainty in the medical community as to the medical rationale underlying this regulation.” Van Hollen II, 2013 WL 3989238, at *15 & n. 29 (discussing Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir.2004)). Accordingly, the court must balance health interests against health interests: the health interests of women who may suffer a complication requiring hospitalization because of an abortion procedure performed by a physician without admitting privileges within 30 miles of the procedure against the health interests of women facing obstacles in obtaining an abortion because of this privileges requirement. Indeed, the Supreme Court appears more willing to treat skeptically and strike down state regulations purportedly aimed at the health of women where the evidence of such a requirement is lacking. See, e.g., City of Akron v. Akron Ctr. for Repro. Health, Inc., 462 U.S. 416, 434-39, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (holding that requirement that second trimester abortions be performed in a hospital infringed on women’s right to abortion because the medical evidence did not support such a requirement and requiring hospitalization places a significant obstacle in the path of women seeking an abortion), overruled on other grounds by Casey, 505 U.S. 833, 112 S.Ct. 2791; Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 482, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (invalidating a similar hospitalization requirement); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 76-79, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (striking down a state regulation prohibiting the use of saline in abortion procedures because it “fails as a reasonable regulation for the protection of maternal health,” rejecting the state’s argument that the Court should defer to “substantial supporting medical evidence,” finding that the prohibition “comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks”). Consistent with these Supreme Court holdings and the Seventh Circuit’s directive, the court’s role in weighing the benefits of a regulation purportedly adopted to further the health of women seeking abortions against the regulation’s burden on those same women is more straightforward than trying to weigh that burden against so-called “persuasion” regulations or those directed at protecting the integrity of the medical community. B. State Interest / Medical Rationale Since the State contends that the admitting privileges requirement at issue is reasonably directed to the health of women seeking abortions, it has the burden of demonstrating this link. See Akron, 462 U.S. at 430, 103 S.Ct. 2481, overruled on other grounds by Casey, 505 U.S. 833, 112 S.Ct. 2791 (describing the burden as that of the state); Doe v. Bolton, 410 U.S. 179, 195, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (same); see also Planned Parenthood Se., Inc. v. Strange, 33 F.Supp.3d 1330, 1340-41 (M.D.Ala.2014) (describing holding in Doe as requiring “more than general statements of concern and claims that the regulations conceivably might, in some cases, lead to better health outcomes; rather the Court required the State to establish, through evidence, that the regulation really was strongly justified”); Van Hollen III, 738 F.3d at 798 (requiring evidence that “the medical grounds are legitimate”). Similarly, the Gonzales Court emphasized that the Court “did not ... place dispositive weight on Congress’ findings.” Gonzales, 550 U.S. at 165, 127 S.Ct. 1610. Instead, “[t]he Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Id. As the Seventh Circuit had previously explained, this requires the district court to “undertake an individualized factual inquiry based on the record before it in determining whether the challenged abortion restriction imposes an undue burden.” Karlin v. Foust, 188 F.3d 446, 484 (7th Cir.1999). In determining whether the admitting privileges regulation is reasonably related to a legitimate medical reason, the court’s inquiry at trial principally considered the following questions: (i) are admitting privileges required for other outpatient procedures; (ii) how safe is abortion, especially as compared to similar outpatient procedures and childbirth; and (iii) would the admitting privileges requirement further women’s health? i. Unique Application of this Requirement to Abortion Services At trial, defendants conceded that an admitting privileges requirement has never been imposed on any outpatient procedure other than the provision of abortion services. Indeed, the parties submitted a joint stipulation prior to trial where defendants concede that “[t]he State of Wisconsin does not require physicians who provide surgery at ambulatory surgery centers or in other outpatient settings to have hospital admitting privileges.” (Joint Stip. (dkt. # 200) ¶ 14.) Still, defendants offered the testimony of Dr. Geoffrey Keyes, President of the American Association for the Accreditation of Ambulatory Surgery Facilities, Inc., (“Quad A”), that Act 37 “conforms to existing standards of care for accrediting ambulatory surgical facilities.” (Ex. 1075 (Expert Rept. of Geoffrey R. Keyes, M.D. (“Keyes Rept.”)) ¶ 1.) In addition to the most glaring difference — that this standard applies to all medical procedures (rather than just abortions) — Quad A’s standards concerning admitting privileges requirement in securing accreditation differs from Act 37’s requirement in at least three important respects. (5/27/14 Trial Tr. (dkt. #243) 246 (Keyes).) First, the standards require that physicians hold “or demonstrate that they have held” admitting privileges, allowing at least for the possibility that lapsed admitting privileges could satisfy the requirement. (5/27/14 Trial Tr. (dkt. # 243) 246 (Keyes); Ex. 96 at A116.) Second, the standards provide for an exception or waiver if a physician “can demonstrate the loss or inability to obtain such privileges was not related to lack of clinical competence, ethical issues, or problems other than the economic competition.” (Id.) Third, the standards allow for a “signed and dated document from a person in the same specialty who has admitting privileges in a hospital within 30 minutes of the facility that indicates their willingness to admit the patient to the hospital” as an alternative.. (5/27/14 Trial Tr. (dkt. #243) 248 (Keyes); Ex. 96 at A116.) Defendants also offered the testimony of Eric Ostermann, Executive Director of the Association of Wisconsin Surgery Centers, Inc. (“WISCA”), a professional association of surgery centers (“ACSs”) in Wisconsin, who similarly testified that Wisconsin law does not require ACSs to have admitting privileges or transfer agreements, but they must have one or the other to be certified for Medicare. (5/28/14 Trial Tr. (dkt. # 238) 91-92, 98 (Ostermann); 5/27/14 Trial Tr. (dkt. # 243) 251-52 (Keyes also acknowledging Medicare and Medicaid payment requirement).) See also 42 C.F.R. § 416.41(b)(3) (providing that to be certified for coverage by Medicare or Medicaid, an ambulatory surgery center must either have a written transfer agreement with a hospital or ensure that their physicians have admitting privileges). Regardless, the parties agree that “[a]n ambulatory surgery center can operate in Wisconsin without Medicare certification or accreditation from a national accreditation body.” (Joint Stip. (dkt. # 200) ¶ 15.) Indeed, defendants’ evidence is entirely consistent with the medical practice guidelines adopted by both the American College of Obstetricians and Gynecologists (“ACOG”) and the National Abortion Federation (“NAF”), requiring physicians who provide abortions in outpatient settings to make arrangements for treatment of those patients experiencing complications. (Ex. 50 (Laube Rept.) ¶ 18.) In short, abortion procedures have been quite intentionally singled out for disparate regulation, ii. Safety of Abortions Since an admitting privileges requirement is unique to abortion, the next logical question is whether there is a reason to treat abortion differently in light of the State’s purported justification, namely the health of women seeking this outpatient procedure. a. Expert Testimony As described above, the court engaged the neutral expert and principal experts for each side in a colloquy on the third day of trial in an attempt to reach a consensus where possible on several pertinent issues, primarily concerning the safety — relative and otherwise — of abortion and the role of admitting privileges in furthering the health of women experiencing complications from abortions. The court-appointed expert, Dr. Serdar E. Bulun, John J. Sci-arra Professor and Chair of the Department of Obstetrics and Gynecology, Northwestern University Feinberg School of Medicine, has been board-certified in ob-gyn since 1994, is licensed to practice medicine in Illinois, Texas and New York, and has been on staff at Northwestern Memorial Hospital since 2003. (Ex. 500.) The court chose Dr. Bulun because of his expertise and qualifications in obstetrics and gynecology, insights into the credentialing process in light of his position as chair of the ob-gyn department at Northwestern, his lack of involvement in this particular lawsuit (or even to Wisconsin), and his general neutrality on issues surrounding abortion rights. Prior to trial, with the input of the parties, the court posed eight questions to Dr. Bulun and requested that he respond in writing after reviewing the parties’ principal expert reports. Those responses were circulated to the parties before trial, admitted into evidence and guided the expert colloquy. (Ex. 500.) Plaintiffs designated Dr. Douglas Laube to participate in the colloquy. Dr. Laube is also a board-certified ob-gyn since 1976 and has been practicing obstetrics and gynecology for 43 years, providing a range of outpatient and hospital services, including in the past abortion services. (Ex. 50 (Expert Report of Douglas Laube, M.D. (“Laube Rept.”)) ¶ 2.) Dr. Laube has taught at the University of Wisconsin Medical School for 21 years (including 13 years as the Department’s chair), and served as past president of the American College of Obstetricians and Gynecologists. (Id.) Defendants’ designated expert is Dr. John Thorp, Jr., a board-certified ob-gyn since 1991, with a board-certified sub-specialty in maternal-fetal medicine since 1992. (Ex. 1058 (Expert Report of James Thorp, Jr., M.D., M.H.S. (“Thorp Rept.”)).) Dr. Thorp is a Professor in the Department of Maternal and Child Health and in the Department of Epidemiology, both in the School of Public Health at the University of North Carolina School of Medicine and is a Professor in the Department of Epidemiology at the School of Public Health and Tropical Medicine at Tulane University. (Id.) Dr. Thorp is also the Interim Director of the Center for Women’s Health Research at UNC. (Id.) b. Complication Rates The types of complications associated with abortions vary somewhat by the type of procedure used. For medication abortions, complications may include adverse reaction to one of the medications, bleeding, infection, failed or incomplete abortion, and very rare risk of death. (Ex. 50 (Laube Rept.) ¶ 3; 5/27/14 Trial Tr. (dkt. #243) 160 (King).) For surgical abortions, complications include an adverse reaction to one of the sedation medications, bleeding, infection, incomplete abortion, and injury to the cervix or uterus, and a very rare risk of death. (Ex. 50 (Laube Rept.) ¶ 4; 5/27/14 Trial Tr. (dkt. # 243) 159 (King).) In determining complication rates for abortions, the court primarily relies on two recent, large-scale and peer reviewed studies conducted here in the United States. The first study reviewed outcomes in 233,-805 medication abortions, and found that less than 0.65% of patients experienced a complication and that six out of 10,000 (or 0.06%) experienced a complication requiring hospitalization. (Ex. 50 (Laube Rept.) ¶ 9 (citing Kelly Cleland et al., Significant Adverse Events and Outcomes After Medical Abortion, 121 Obstetrics & Gynecology 166, 169 (2013)).) The second study also from 2013 reviewed outcomes in 11,487 first-trimester surgical abortions, and found that 1.27% of patients experienced minor complications requiring outpatient treatment, and six (or 0.052%) experienced a major complication (a category that included hospital admission). (Ex. 50 (Laube Rept.) ¶ 9 (citing Tracy Weitz et al., Safety of Aspiration Abortion Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California Legal Waiver, 103 Am. J. Public Health 454-61 (2013)).) In his report, Dr. Bulun relied on complication rates from older studies. A 1970s multicenter study of 84,000 abortions, reported rates of serious complications comparable to those reported in the more recent studies cited above. (Ex. 500 at p. 1 (listing complication rates by gestation as 0.1 to 0.4% at 7 to 12 weeks gestation; 1.3% at 15-16 weeks, and 1.9% at 17-20 weeks).) Similarly, a 1990s study cited in Dr. Bulun’s report reported a rate of hospitalization for first trimester surgical abortions of 0.071%, and for second trimester abortions of 1-1.5%. (Ex. 500 at p. 2.) Notably, Dr. Bulun’s data demonstrates an increase in complication rates by gestation. Dr. Laube agreed that “the complication rate from second-trimester abortion, especially late second-trimester abortion, is significantly more than with first trimester.” (5/29/14 Trial Tr. (dkt. #244) 46 (Laube).) For example, the risk of perforating the uterus is higher at 16 weeks or later than it is during a first trimester or an earlier second trimester abortion, because an instrument needs to introduced into the uterus rather than relying on suction to complete the abortion. (5/27/14 Trial Tr. (dkt. # 243) 225-27 (Pfleger).) By comparison, the risk of death associated with childbirth in the United States is approximately 14 times higher than that associated with abortion, and women are more likely to experience complications from live births than from having abortions. (Ex. 50 (Laube Rept.) ¶ 7 (citing Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion & Childbirth in the United States, 119 Obstetrics & Gynecology 215, 216 (Feb.2012)).) The risk of death related to abortion overall is less than 0.6 deaths per 100,000 procedures, which equates to a mortality rate of 0.0006%. (Ex. 50 (Laube Rept.) ¶ 7 (citing David A. Grimes, Estimation of Pregnancy-Related Mortality Risk by Pregnancy Outcome, United States, 194 Am. J. Obstetrics & Gynecology 92, 93 (2006)).) The comparable risk of death for childbirth is 8.8 out of 100,000 births or a mortality rate of 0.0088%. Raymond & Grimes, supra at 216. In response, defendants’ expert Dr. Thorp asserts in his report that the “[cjomplication rate ranges from 2 to 10%, with most complications being managed without major surgery.” (Ex. 1058 (Thorp Rept.) ¶ 20.) In his testimony, Dr. Thorp corrected the statement to say that it should be .2% to' 10% (emphasis on the decimal before the 2). (5/29/14 Trial Tr. (dkt. # 244) 96 (Thorp).) While Dr. Thorp failed to cite any support in. his report for this extremely broad variation in probable outcomes range, during his testimony he explained that the complication rate r,ange comes from a piece he authored published in Scientifica. (Id. at 99-100.) As with his report in this case, his article also erroneously provided the 2% to 10% range, but Dr. Thorp stated that he submitted an erratum to correct the range to reflect .2% to 10%. (Id. at 99.) On cross-examination, plaintiffs effectively called into question the scientific rigor and value of Seien-tifica, in light of its extraordinarily high acceptance rate and requirement that authors pay to publish their pieces. (Id. at 101-02.) Putting aside this general criticism, there also were multiple errors in Dr. Thorp’s citations to studies that purportedly supported this range, and his methodology in compiling these statistics lacked analytical rigor. (Id. at 104-110.) For example, when pressed by the court as to why his complication range did not account for any overlap, Dr. Thorp responded, “[s]o make it to account for overlap and knock a point off and make it 6%.” (Id. at 113.) In light of the deep flaws in his analysis and his testimony, which often came off more as advocacy then expert opinion, the court finds little to credit in Dr. Thorp’s opinions of the relative risks of abortions to child birth or comparable invasive procedures. While the court places no weight on the complication range provided by Dr. Thorp, the court has nonetheless considered the criticisms Dr. Thorp raised about the studies relied on by plaintiffs and the court-appointed expert. Dr. Thorp’s main criticism, consistent with that of defendants’ other experts, is that abortion complications are underreported. (See also Ex. 1072 (Expert Report of James G. Linn, M.D. (“Linn Rept.”)) ¶ 3.) First, Dr. Thorp takes issue with any statement that abortion is safer than childbirth, because abortion-related deaths, collected by the CDC, are underreported due to poor data collection and a shorter window for reporting such deaths. (Ex. 1058 (Thorp Rept.) ¶ 14; 5/29/14 Trial Tr. (dkt. # 244) 11-13 (colloquy).) In contrast, Dr. Thorp contends that “[p]regnaney-related deaths are systemically sought and investigated by state government sponsored commissions and the majority of states formally link birth certificates to death certificates.” (Ex. 1058 (Thorp Rept.) ¶ 14.) As support, Dr. Thorp points to data from Scandinavian countries, where each patient has a unique identifier number and all health events are recorded around that number, showing higher death rates from abortion than studies of the United States. (5/29/14 Trial Tr. (dkt. # 244) 17 (colloquy); Ex. 1058 (Thorp Rept.) ¶¶ 15, nn. 20-22.) From this, Dr. Thorp “estimates” the death rate from abortion to be between “10 to 20” out of 100,000, comparable to childbirth. (5/29/14 Trial Tr. (dkt. #244) 18-19 (colloquy).) Both Dr. Laube and Dr. Bulun reject the notion that the United States’ data is as underreported as Dr. Thorp claims, relying on the studies cited above which show about 1 death out of 100,000 abortions. (5/29/14 Trial Tr. (dkt. #244) 30 (colloquy).) Moreover, both doctors agree that the CDC data is reliable, given the practical constraints for all such studies. (5/29/14 Trial Tr. (dkt. # 244) 15, 34 (colloquy).) Dr. Henshaw, a former senior fellow with the Guttmacher Institute, similarly testified that the “abortion mortality is very ... accurately documented by the Centers for Disease Control.” (5/30/14 Trial Tr. (dkt. #234) 11 (Henshaw).) While the court credits some amount of underreporting, Dr. Thorp’s perception that deaths due to abortions are “significantly underreported” lacks any support in reliable studies, and it is further undercut by his unsupported opinion that the CDC’s “analyses were being used to deliberately promote an unjustified confidence in abortion safety.” (5/29/14 Trial Tr. (dkt. #244) 95 (Thorp).) Dr. Laube concedes that the studies he relies on — like all self-reporting studies — may suffer from un-derreporting. (See, e.g., 5/29/14 Trial Tr. (dkt. # 244) 120, 128-29 (Laube).) “[W]e rely on those studies to give us an idea [ ] that what we are doing in these various procedures that were reported are consistent with contemporary standards. So we have to rely on literature which is extent. We can’t rely on a perfect system which we don’t have. So as professionals, ... we have to rely on this peer-reviewed process to enable our practitioners to move forward.” (5/29/14 Trial Tr. (dkt. # 244) 141-42 (Laube).) In the end, as Dr. Bulun testified, the best data available (data similar to that regularly relied upon by medical experts for many diagnostic and empirical purposes) supports a finding that abortion procedures as a whole are safer for a woman’s health than childbirth. Second, Dr. Thorp is critical of other studies concerning complications that derive their data from the Guttmacher Institute. In addition to his criticism about the self-reporting nature of that data, Dr. Thorp criticizes the reliability of the Gutt-macher Institute data given its affiliation with Planned Parenthood. (Ex. 1058 (Thorp Rept.) -¶¶7, 8.) As Dr. Henshaw testified, the Guttmacher Institute does not try to collect information on complications, rather the Guttmacher Institute relies on clinical studies focused on tracking complication rates. (5/30/14 Trial Tr. (dkt. #234) 11 (Henshaw).) Moreover, the court is inclined to credit Dr. Henshaw’s testimony that the research department is sufficiently separate from the policy and public affairs departments, not to be swayed as to empirical outcomes of dedicated research studies. (Id. at 43.) At most, Dr. Thorp’s own documented bias cancel’s out Dr. Henshaw’s testimony, leaving the court with Dr. Bulun’s more objective conclusions. Accordingly, the court finds that while there may be some amount of underre-porting, the overwhelming evidence demonstrates that abortion is safe, especially in the first trimester when the vast majority of abortions are performed nationwide and in Wisconsin, the rates of complications are very low, and the morbidity rate is exceedingly low, especially as compared to the risk of death from childbirth. Even if there is underreporting of complications due to self-reporting by physicians, this would appear to ring true for outpatient procedures generally, not just abortions. (5/29/14 Trial Tr. (dkt. # 244) 25-26, 28-29, 34 (colloquy).) As such, statistics concerning the relative safety of abortion are no more susceptible to objection than other gynecological and nongynecological procedures. Ultimately, even Dr. Thorp conceded during the expert colloquy that “[a]bortion is a relatively safe procedure.” (5/29/14 Trial Tr. (dkt. # 244) 7-8 (colloquy).) Abortions (both first and second trimester, and even post-16 week second trimester abortions) are safer or comparable in safety to other outpatient procedures. For example, operative colonoscopy has a complication rate of 5%, with major events requiring hospitalization in 2% of procedures. (5/29/14 Trial Tr. (dkt. # 244) 35-36 (colloquy); Ex. 500 at p. 3.) Egg retrieval for in vitro fertilization carries a severe complication rate of 0.72%. (Ex. 500 at p. 3.) Diagnostic or operative hysteros-copy has a hospitalization rate ranging from 0.1 to 0.33%. (Id.) Abortion is also comparable in safety or safer to that of a vasectomy, which has a complication rate of 1 to 3%. (5/29/14 Trial Tr. (dkt. # 244) 134 (Laube).) During the colloquy, Drs. Bulun and Laube similarly testified to abortion being as safe as other outpatient gynecological procedures like cervical biopsies, endome-trial biopsies, IUD insertions, and LEEP procedures, all of which routinely take place in the outpatient setting. (5/29/14 Trial Tr. (dkt. # 244) 34-36, 41, 43-44 (colloquy); see also 5/30/14 Trial Tr. (dkt. #233) 49-50 (Linn testifying that LEEP procedure carries a rate of heavy bleeding between 1 to 3%).) While Dr. Thorp contends that abortion is not comparable to hysteroscopies and D & Cs procedures because of women’s tendency toward increased blood flow while pregnant, (5/29/14 Trial Tr. (dkt. #244) 42 (colloquy), 85 (Thorp)), Dr. Thorp failed to describe how this fact alone increases complications, much less provide any studies that suggest greater complications. Even as a subjective matter, Dr. Laube pointed out that a “pregnant uterus also responds better to treatments to stop that bleeding, such as a use of uterotonics, making the risk of the procedures [abortion, dilation and curettage, or hysteroscopies] roughly the same.” (Ex. 51 (Expert Rebuttal Report of Douglas Laube, M.D. (“Laube Rebuttal”)) ¶ 11; see also 5/92/14 Trial Tr. (dkt. # 244) 43 (colloquy).) c. Plaintiffs’ Complication Rates Plaintiffs’ own data and experience dealing with complications is consistent with the general statistics provided by plaintiffs’ experts and the neutral expert. In particular, the vast majority of complications due to abortions are handled in the clinic setting, and do not require transfer to a hospital. (5/27/14 Trial Tr. (dkt. #243) 109, 112 (King).) In reports submitted to the National Abortion Federal, plaintiff AMS reported 39 patients experiencing complications in 2010, representing 1.51% of the total abortions performed; 10 patients in 2011, representing 0.46%; and 8 patients in 2012, representing 0.34%. (5/27/14 T