Full opinion text
MEMORANDUM OPINION ON MOTION FOR PRELIMINARY INJUNCTION HAMILTON, District Judge. The plaintiffs challenge the constitutionality of a new Indiana statute regulating abortions and seek a preliminary injunction against its enforcement. The law, known as Public Law 187, requires in almost all cases that at least 18 hours before an abortion can be performed, a woman must be given certain medical information and information concerning alternatives to abortion. Public Law 187 is similar to a Pennsylvania law upheld by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Plaintiffs contend that differences between the Indiana law and the Pennsylvania law together with recently available evidence about the actual effects of such laws show that Public Law 187 violates the “undue burden” test adopted by the Supreme Court in Casey. The court’s decision on the motion for preliminary injunction is not the court’s last word on this matter. It is instead a decision based on incomplete evidence in the face of threatened irreparable harm. As explained in detail below, the court concludes that plaintiffs have established a reasonable likelihood of prevailing on the merits of their challenges to Public Law 187. They have shown that Indiana’s requirement that some information be provided “in the presence” of the woman at least 18 hours before the abortion is likely to impose an undue burden on a woman’s right to choose whether to continue or terminate a pregnancy. Unlike the plaintiffs in Casey, the plaintiffs here have come forward with evidence showing that the burdens of the law are likely to prevent abortions for approximately 11 to 14 percent of women who would otherwise choose to have them. Plaintiffs have also shown that the “medical emergency” exception of Public Law 187 probably fails to meet constitutional standards. Under principles of Indiana law, and based on the law’s legislative history, it appears that the mandatory disclosure and waiting period requirements apply even when compliance would cause severe but temporary physical problems for a woman, or when compliance would cause severe psychological harm. (However, as defendants have requested, the court will certify the state law issues of statutory interpretation for decision by the Supreme Court of Indiana before this court makes a final decision on the constitutional issues in this case.) Plaintiffs have also shown that enforcement of the law while this lawsuit is pending would cause irreparable harm to a significant number of women. On the other side of the scale, defendants have not shown that temporarily preserving the status quo is actually likely to cause substantial irreparable harm. The court will therefore enjoin enforcement of Public Law 187 pending a trial on the merits. I. The Indiana Statute Since long before 1995, Indiana has required physicians performing abortions to obtain the informed consent of their patients. Abortions in Indiana are criminal unless “the woman submitting to the abortion has filed her consent with her physician.” Ind.Code § 16-34-2-l(l)(B). Informed consent generally requires that the patient be told the general nature of her condition, the proposed treatment or procedure, the expected outcome, the material risks, and the reasonable alternatives to the treatment or procedure. See Ind.Code § 27-12-12-2 (informed consent for purposes of medical malpractice action). Indiana Public Law 187-1995 (referred to here as “Public Law 187”) adds special mandatory disclosure and waiting period provisions for informed consent for abortions. The law requires in almost all eases that certain medical information and information about alternatives to abortion be provided to a woman orally at least 18 hours before she may have an abortion. Some of the medical information must be provided “in the presence of the pregnant woman.” The law was to have gone into effect on September 1, 1995, but was enjoined from operation by this court’s temporary restraining order. The central provisions of Public Law 187 state: An abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following conditions are met: (1) At least eighteen (18) hours before the abortion and in the presence of the pregnant woman, the physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice nurse (as defined in IC 25-23-l-l(b)), or a midwife (as defined in IC 27-12-2-19) to whom the responsibility has been delegated by the physician who is to perform the abortion or the referring physician has orally informed the pregnant woman of the following: (A) The name of the physician performing the abortion. (B) The nature of the proposed procedure or treatment. (C) The risks of and alternatives to the procedure or treatment. (D) The probable gestational age of the fetus, including an offer to provide: (i) a picture of a fetus; (ii) the dimensions of a fetus; and (in) relevant information on the potential survival of an unborn fetus; at this stage of development. (E) The medical risks associated with carrying the fetus to term. (2) At least eighteen (18) hours before the abortion, the pregnant woman will be orally informed of the following: (A) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care from the county office of family and children. (B) That the father of the unborn fetus is legally required to assist in the support of the child. In the case of rape, the information required under this clause may be omitted. (C) That adoption alternatives are available and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care. (3) The pregnant woman certifies in writing, before the abortion is performed, that the information required by subdivisions (1) and (2) has been provided. Ind.Code § 16-34-2-1.1. Anyone who “knowingly” or “intentionally” performs an abortion in violation of these requirements is subject to criminal penalties. Ind.Code §§ 16-34-2-1, 16-34-2-7. Public Law 187 contains an exception to the disclosure and waiting period requirements when a woman faces a “medical emergency.” As defined in Public Law 187, a “medical emergency” means a condition that, on the basis of the attending physician’s good faith clinical judgment, complicates the medical condition of a pregnant woman so that it necessitates the immediate termination of her pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of a major bodily function. Ind.Code § 16-18-2-223.5. A physician who believes there is a medical emergency must provide information concerning that medical judgment to the woman: When a medical emergency compels the performance of an abortion, the physician who will perform the abortion shall inform the woman, before the abortion if possible, of the medical indications supporting the physician’s judgment that an abortion is necessary to avert: (1) the woman’s death; or (2) a substantial and irreversible impairment of a major bodily function. Ind.Code § 16-34-2-1.2. II. The Parties and Their Claims The plaintiffs are seven reproductive health care facilities that provide a range of services related to pregnancy and women’s health, including abortions up to 12 weeks of gestation; and Ulrich G. Klopfer, a licensed physician in Indiana who performs abortions. Plaintiffs filed their complaint on August 24, 1995, asserting that Public Law 187 will impose undue burdens on women’s constitutional right to choose to have an abortion. Defendants are a class of all prosecuting attorneys in the State of Indiana, with Scott C. Newman of Marion County as representative of the class; and John C. Bailey, in his official capacity as Commissioner of the Indiana Department of Health. On August 25, 1995, asserting that the enforcement of Public Law 187 would cause immediate and irreparable harm, plaintiffs filed a verified motion for a preliminary injunction and expedited hearing. Because Public Law 187 was scheduled to take effect September 1, 1995, the court treated the motion as also requesting a temporary restraining order with notice. Defendants filed a brief in opposition. After a hearing on August 30, 1995, the court entered a temporary restraining order enjoining enforcement of the challenged law for ten days. The court also issued an order certifying the defendant class. The court deferred ruling on plaintiffs’ motion for a preliminary injunction pending a further evidentiary hearing. The parties agreed to extend the temporary restraining order, and the court heard evidence on plaintiffs’ motion for a preliminary injunction on October 11-13, 1995. The parties have submitted their post-hearing briefs and some additional evidence of the law’s legislative history. Plaintiffs contend that the new mandatory disclosure and 18-hour waiting period requirements will impose an undue burden on a woman’s right to choose whether to continue or terminate a pregnancy. Recognizing that the Supreme Court upheld a similar law against similar challenges in Casey, plaintiffs focus most of their attack on the likely effects of the requirement that some information be provided “in the presence of the pregnant woman” at least 18 hours before the abortion. This would require most women to make two trips to a clinic in order to get an abortion. Plaintiffs contend this requirement has no legitimate purpose and would effectively prevent some women from exercising their right to choose. Plaintiffs assert that the women who would be most affected by these burdens include women who, for a variety of reasons, would have difficulty explaining absences from husbands, partners, families, jobs, or schools; women who would have trouble paying for abortions; and women who would be especially vulnerable to harassment from anti-abortion protesters. They offer evidence that was not available in Casey concerning the actual effects of such laws. Plaintiffs also contend that the medical emergency exception for the mandatory disclosure and waiting period requirements is written too narrowly to meet constitutional requirements to protect the woman’s health. Defendants contend that plaintiffs cannot succeed on the merits of these claims because the Supreme Court upheld a very similar Pennsylvania law in Casey. They argue that plaintiffs have not provided any persuasive evidence of undue burdens beyond the evidence that was held insufficient in Casey. They also argue that, despite its narrow wording, the Indiana medical emergency exception should be given the same kind of saving construction that the Third Circuit gave the Pennsylvania statute in Casey. III. Preliminary Injunction Standard Before the court may enter a preliminary injunction, the moving party must demonstrate “(1) some likelihood of succeeding on the merits, and (2) that it has ‘no adequate remedy at law1 and will suffer ‘irreparable harm’ if preliminary relief is denied.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). If those elements are not satisfied, then the inquiry is over and the preliminary injunction must be denied. If those elements are met, the court then proceeds to consider “(3) the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied; and (4) the public interest, meaning the consequences of granting or denying the injunction to non-parties.” Abbott Labs., 971 F.2d at 11-12. Accord, e.g., Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir.1994); Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). Preliminary injunctions are designed to “minimize the hardship to the parties pending the ultimate resolution of the lawsuit,” Roth v. Lutheran General Hospital, 57 F.3d 1446, 1453 (7th Cir.1995), and “to preserve the court’s power to render a meaningful decision after a trial on the merits.” 11A Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2947, at 121. Some courts have described the purpose of a preliminary injunction as the preservation of the status quo. 11A Wright, Miller & Kane § 2948, at 133. E.g., E.E.O.C. v. City of Janesville, 630 F.2d 1254, 1259 (7th Cir.1980). See also Roland v. Air Line Employees Ass’n Int'l, 753 F.2d 1385, 1392 n. 9 (7th Cir.1985) (describing how preserving status quo can mean either mandating or prohibiting action in order to prevent irreparable injury). A preliminary injunction is not a court’s last word on the question of injunctive relief, since the court is not called upon at that time to render a final decision on the merits. Therefore, at the preliminary injunction stage, the moving party does not need to prove her case beyond dispute. If the balance of harms is lopsided enough, she may not even need to prove she is more likely to prevail than not. There is no precise standard for the quantum of evidence required to obtain a preliminary injunction. Rather, the strength of the evidence and the potential harms involved are factors balanced on what the Seventh Circuit has called a discretionary sliding scale: The [district] court, sitting as would a chancellor in equity, ... “weighs” all four factors in deciding whether to grant the injunction, seeking at all times to “minimize the costs of being mistaken.” We call this process the “sliding scale” approach: the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side. This weighing process, as noted, also takes into consideration the consequences to the public interest of granting or denying preliminary relief. While we have at times framed the sliding scale approach in mathematical terms, it is more properly characterized as subjective and intuitive, one which permits district courts to “weigh the competing considerations and mold appropriate relief.” Abbott Labs., 971 F.2d at 12 (citations and footnote omitted). Accord, Vencor, 33 F.3d at 845; Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir.1994). See also 11A Wright, Miller & Kane § 2948.3, at 189-97. In fact, the Seventh Circuit has said that “[i]f the harm to the plaintiff from denial of the preliminary injunction would be very great and the harm to the defendant from granting it very small, then the injunction should be granted even if the defendant has a better chance of prevailing on the merits than the plaintiff, provided the plaintiffs chances are better than negligible; and vice versa.” Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th Cir.1982). Accord, Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387-88 (7th Cir.1984). This discretionary sliding scale reflects the facts that only a limited amount of information may be available as evidence at the preliminary injunction stage, and that weighing risks obviously involves a fair amount of uncertainty. See generally Lawson Products, 782 F.2d at 1432-36. This standard is critical here. Some evidence has not been fully developed and other evidence has not been fully subjected to scrutiny by the opposing side. The evidence presented thus far tends to show that portions of the new law will impose undue burdens on women, but that evidence is not complete and leaves room for some doubt. Defendants have not come forward at this stage with evidence showing that women are actually unlikely to experience such burdens. Thus, at this point, plaintiffs appear more likely to succeed than not. The evidence as to irreparable harm points decisively in favor of plaintiffs. The court will therefore grant the plaintiffs’ motion for preliminary injunction to prevent irreparable harm and to preserve the status quo until the case may be heard on the merits. IV. Likelihood of Success on the Merits The principles that govern the merits of plaintiffs’ challenges to the Indiana law are set forth in Casey, which must be reviewed in some detail. Those standards must then be applied to the evidence presented here concerning Indiana’s mandatory disclosure and waiting period provisions, and finally to the “medical emergency” exception for those requirements. A. Roe, Casey, and the Controlling “Undue Burden” Standard A fundamental right of “personal privacy” is one substantive aspect of the liberty protected by the Due Process Clause of the Fourteenth Amendment. E.g., Carey v. Population Services Int’l, 431 U.S. 678, 684, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977). In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court applied constitutional protection to a woman’s privacy interest in deciding whether to continue or terminate a pregnancy. At the same time, the Court acknowledged that states may regulate abortions to protect the life and health of the pregnant woman and, in some circumstances, may regulate to protect the fetus because of the state’s “interest in protecting the potentiality of human life.” Roe, 410 U.S. at 162, 93 S.Ct. at 731. The Roe Court balanced these interests in a trimester framework. The Court held, in summary, that during the first trimester of a nine-month pregnancy, the abortion decision must be left to the woman, and its effectuation must be left to the medical judgment of the physician. The state could regulate abortions during the second trimester but only to promote its interest in the health of the mother. The state could regulate or even prohibit abortions after the point of viability (approximately the beginning of the third trimester) except where necessary to preserve the life or health of the mother. Id. 410 U.S. at 164-65, 93 S.Ct. at 732-33. The Supreme Court substantially modified this analytic framework in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Casey dealt with a Pennsylvania statute very similar to the Indiana statute at issue here. It established a new controlling framework for analyzing constitutional challenges to state regulations of abortion. Accordingly, this court must review both the analysis and the specific holdings of Casey in some detail. The joint opinion signed by Justices O’Connor, Kennedy, and Souter, and joined in part by Justices Blackmun and Stevens, provided the narrowest grounds for the judgment of the Court on all questions. That opinion therefore states the controlling holdings of the Court. Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. -, - n. 2, 114 S.Ct. 909, 910 n. 2, 127 L.Ed.2d 352 (1994) (Souter, J., in chambers) (joint opinion in Casey is controlling); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456 n. 7 (8th Cir.1995) (same). See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (when no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by the Justices who concurred in the judgment on the narrowest grounds). The Casey joint opinion first reaffirmed both a woman’s right to choose to have an abortion before viability and the state’s interests in maternal health and in the fetus. 505 U.S. at 845-46, 112 S.Ct. at 2804. It reaffirmed the point of viability as a crucial chronological line in balancing those interests, but it did not legally define the medical viability point as the start of the third trimester. Id. 505 U.S. at 845-46, 868-72, 112 S.Ct. at 2804, 2816-18. It also rejected the Roe distinction between the first and second trimester, concluding that the state’s interest in the potential life of the fetus exists throughout pregnancy and that Roe’s trimester framework undervalues that interest. Id. 505 U.S. at 872, 876, 112 S.Ct. at 2818, 2820. The joint opinion stated: Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself. “‘[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth.’” Id. 505 U.S. at 872, 112 S.Ct. at 2818 (citation omitted). Reaffirming the central holding in Roe that before viability a woman has a constitutional right of privacy to decide for herself whether to terminate or continue the pregnancy, Casey held that the right must be protected from “undue burdens” imposed by state regulation. Id. 505 U.S. at 876, 112 S.Ct. at 2820. The joint opinion said: “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. 505 U.S. at 878, 112 S.Ct. at 2821. Thus, a statute with the purpose of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus is invalid “because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Id. 505 U.S. at 877, 112 S.Ct. at 2820. A statute that has the effect of placing a substantial obstacle in the path of a woman’s choice is also invalid because it cannot be considered a permissible means of serving the state’s legitimate ends. Id. The joint opinion stated that a particular provision is valid unless it will operate as a substantial obstacle to “a large fraction” of the women “for whom the law is a restriction” and therefore relevant. Id. 505 U.S. at 895, 112 S.Ct. at 2829, 2830. The undue burden test is best understood from its application in Casey. The Supreme Court applied the analysis to several sections of a Pennsylvania statute before it. A majority of the Court held that requirements of mandatoiy disclosure, a 24-hour waiting period, and parental consent for minors had not been shown to impose an undue burden on women seeking pre-viability abortions. See id. 505 U.S. at 880-86, 900, 964-70, 112 S.Ct. at 2822-26, 2832, 2867-69 (Justices O’Connor, Kennedy, Souter, White, Scalia, Thomas, and the Chief Justice). A different majority of the Court struck down a requirement that a married woman notify her spouse before seeking an abortion. See id. 505 U.S. at 886-98, 920-22 & n. 8, 112 S.Ct. at 2826-31, 2843 & n. 8 (Justices O’Connor, Kennedy, Souter, Blackmun, and Stevens). The portion of Casey striking down Pennsylvania’s spousal notice requirement illustrates the type of showing required to meet the undue burden standard in a facial challenge before a law takes effect. The Court reviewed extensive evidence and district court findings concerning domestic violence and the role that pregnancy too often plays in triggering domestic violence. 505 U.S. at 886-93, 112 S.Ct. at 2826-29. That evidence and “what common sense would suggest” persuaded the Court that women’s justifiable fears of abuse triggered by spousal notification meant the law was likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortions in all cases. 505 U.S. at 893-94, 112 S.Ct. at 2829. The Court concluded that the spousal notification law actually would be relevant for only about one percent of women who seek abortions: only about 20 percent of the women who obtain abortions are married, and 95 percent of these notify their husbands of their own volition. Id. The likely consequences of the law for those five percent of married women seeking abortions were sufficient to invalidate the law on a facial challenge before it took effect. 505 U.S. at 895, 112 S.Ct. at 2830. Casey’s holding on the spousal notification law shows that the focus of the undue burden test is not on added expense or inconvenience. The focus is on practical burdens so great that they would actually prevent a significant number of women from obtaining abortions they would otherwise choose to have. As defendants in this case point out, of course, Casey also held that the plaintiffs there had not proved that a mandatory disclosure and waiting period law very similar to Indiana’s Public Law 187 would impose an “undue burden.” The authors of the joint opinion reviewed detailed evidence and findings showing that the requirements were likely to make abortions more expensive and more difficult for many women to obtain. 505 U.S. at 885, 112 S.Ct. at 2825. Similar effects had persuaded the Court to strike down similar laws in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 450, 103 S.Ct. 2481, 2503, 76 L.Ed.2d 687 (1983) (Akron I), and Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 762-63, 106 S.Ct. 2169, 2179-80, 90 L.Ed.2d 779 (1986). The joint opinion in Casey framed the “undue burden” issue as whether “the 24-hour waiting period is nonetheless invalid because in practice it is a substantial obstacle to a woman’s choice to terminate the pregnancy.” 505 U.S. at 885, 112 S.Ct. at 2825. The joint opinion described the findings of increased expense and difficulty as “troubling in some respects” but found they did not demonstrate that the waiting period constituted an undue burden. Id. From Casey’s application of the undue burden standard to both the waiting period and the spousal notice requirement, it is clear that the authors of the joint opinion upheld the disclosure and waiting period provisions because the record did not persuade them that the law was likely to be so burdensome as actually to prevent women from having abortions they would otherwise choose to have. At the same time, Casey left open the possibility that plaintiffs in future cases could prove that the burdens of such laws would actually prevent women from having abortions. The joint opinion emphasized that its conclusion on this issue was based “on the record before us.” 505 U.S. at 886, 112 S.Ct. at 2826. Justice Blackmun disagreed with the joint opinion’s conclusion but said he was “confident that in the future evidence will be produced to show that ‘in a large fraction of the cases in which [these regulations are] relevant, [they] will operate as a substantial obstacle to a woman’s choice to undergo an abortion.’” 505 U.S. at 925, 112 S.Ct. at 2845 (quoting joint opinion). The dissenting justices criticized the “undue burden” test in large part because the joint opinion left the door open for a future showing that similar disclosure and waiting period provisions would in fact impose an undue burden. 505 U.S. at 988-91, 112 S.Ct. at 2879-80 (Scalia, J., joined by Rehnquist, C.J., White and Thomas, JJ.). Two authors of the joint opinion have written more recently that the lower courts should develop a thorough record on the actual or likely effects of the particular laws that are challenged, even if the laws are nearly identical to the laws considered in Casey. In Fargo Women’s Health Org. v. Schafer, — U.S. -, -, 113 S.Ct. 1668, 1669, 123 L.Ed.2d 285 (1993), the Court denied a stay and injunction pending appeal in a challenge to North Dakota’s mandatory disclosure and waiting period law. Justice O’Connor, joined by Justice Souter, filed a brief opinion stating her view that the lower courts must consider the likely practical effects of a challenged law: [W]e made clear that a law restricting abortions constitutes an undue burden, and hence is invalid, if, “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Casey, 505 U.S., at 895, 112 S.Ct. at 2830. And the joint opinion specifically examined the record developed in the district court in determining that Pennsylvania’s informed-consent provision did not create an undue burden. See id. at 885-98, 112 S.Ct. at 2825-2831 (opinion of O’CONNOR, KENNEDY, and SOUTER, JJ.). While I express no views as to whether the particular provisions at issue in this case constitute an undue burden, I believe the lower courts should have undertaken the same analysis. — U.S. at -, 113 S.Ct. at 1669. Similarly, in Casey itself, after remand from the Supreme Court, the case returned to Justice Souter on an application to allow the district court to hear additional evidence on the likely effects of the Pennsylvania statute. Justice Souter denied that application but explained that “litigants are free to challenge similar restrictions in other jurisdictions, as well as these very provisions as applied.” Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. -, -, 114 S.Ct. 909, 911, 127 L.Ed.2d 352 (1994) (Souter, J., in chambers). The portions of Casey striking down the spousal notification law but upholding mandatory disclosure and a waiting period raise an important issue concerning both the timing and scope of plaintiffs’ challenge here. The Casey plaintiffs challenged the Pennsylvania laws before they took effect and sought to have them struck down as facially unconstitutional, so that the laws could not be enforced at all. The Supreme Court was persuaded that the spousal notice law was likely to pose a substantial obstacle to some significant fraction of the women it affected, and therefore held the law facially unconstitutional before it ever took effect. 505 U.S. at 893-97, 112 S.Ct. at 2829-31. That approach contrasts with a standard for facial challenges announced and applied in some earlier cases: “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), followed in Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991) (facial challenge to regulations affecting abortion and family planning counseling); Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410 (1989) (O’Connor, J., concurring in part and concurring in judgment) (facial challenge to several abortion statutes). The statement of the undue burden standard and its application to strike down the spousal notification law in Casey do not seem consistent with the Salerno standard. Since Casey, the lower courts have disagreed about how to handle facial challenges to abortion statutes. Some have held that because Casey expressly overruled other cases and did not mention Salerno, the heightened standard from Salerno still applies to abortion cases. See Barnes v. Moore, 970 F.2d 12, 14 & n. 2 (5th Cir.1992); Jane L. v. Bangerter, 809 F.Supp. 865, 871-72 (D.Utah 1992), aff'd in part and rev’d in part on other grounds, 61 F.3d 1493 (10th Cir.1995). See also Ada v. Guam Society of Obstetricians & Gynecologists, — U.S. -, -, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from denial of certiorari, joined by Rehnquist, C.J., and White, J.,) (Casey did not purport to change Salerno standard for facial challenge; law prohibiting all abortions should be upheld against facial challenge because it could be applied to some post-viability abortions). Other courts have followed the lead of Justices O’Connor and Souter, as expressed in Fargo Women’s Health Organization v. Schafer, and have concluded that Salerno does not apply to abortion restrictions. See Planned Parenthood, Sioux Falls Clinic, 63 F.3d 1452, 1456-58 (8th Cir.1995); Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 863 n. 21 (3d Cir.1994) (on remand) (dicta). See also Compassion in Dying v. State of Washington, 850 F.Supp. 1454, 1462-64 (W.D.Wash.1994) (applying undue burden test from Casey rather than Salerno standard to facial challenge of statute prohibiting physician-assisted suicide), rev’d, 49 F.3d 586, 591 (9th Cir.) (application of Casey’s undue burden standard for facial challenge was “unwarranted extension of abortion jurisprudence”), rehearing en banc granted, 62 F.3d 299 (9th Cir.1995). It is true that Casey did not expressly overrule or limit Salerno. However, the Casey Court’s actions and statements conflict with the standard stated in Salerno. Casey is very closely on point here, and more recent. In addition, Justices O’Connor and Souter have indicated clearly in the Fargo case and in Casey on remand that a law “constitutes an undue burden, and hence is invalid, if, ‘in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a women’s choice to undergo an abortion.’” — U.S. at -, 113 S.Ct. at 1669 (quoting 505 U.S. at -, 112 S.Ct. at 2830). Therefore, like the Third and Eighth Circuits, this court believes that Casey effectively displaced Salerno’s application to abortion laws. See Planned Parenthood, Sioux Falls Clinic, 63 F.3d at 1458 (“We choose to follow what the Supreme Court actually did — rather than what it failed to say — and apply the undue-burden test.”). See also Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan.L.Rev. 235, 276 (1994) (Casey joint opinion applied “substantial overbreadth” test, which conflicted with Salerno rule but was consistent with other substantive due process decisions). What kind of proof would suffice to successfully challenge the Indiana abortion restriction under the undue burden test? The portion of Casey striking down the spousal notice law showed that the evidence of a law’s likely effects may be so strong that the “undue burden” for a significant fraction of women will be evident enough even before the law takes effect. Casey also demonstrated that the likely effects of mandatory disclosure and waiting period laws were not so likely to cause undue burdens as to persuade the Court to strike them down before they took effect. However, Casey clearly left several avenues open for such challenges. One possibility for plaintiffs is to wait until the law takes effect and then to present testimony from a number of women explaining how the law had actually prevented them from having abortions. A moment’s reflection shows it is highly unlikely that such evidence would be available even if the law were extremely burdensome. For women for whom making two trips would pose a substantial obstacle to obtaining an abortion, the same factors (plus the later birth of a child) make it unlikely that they would step forward to testify about those burdens. A more realistic alternative is to wait for the law to take effect and then to show through statistical and other circumstantial evidence that the burdens of the law have significantly reduced the rate of abortions that women would otherwise choose to have. Casey itself alluded to this possibility, but such proof is not a simple proposition. The statistical analysis must show that other variables do not explain a drop in the rate of abortions, and there must also be evidence as to the reasons the law caused the effect. Casey allows states to regulate abortions in an attempt to persuade women not to have them. Parties challenging a disclosure and waiting period law must therefore show, under Casey, that a significant drop in the incidence of abortion is the result not of any persuasive effect the law has but of the burdens it imposes on some women. If a law does in fact impose substantial burdens on women’s right to choose, this approach — waiting for the law to take effect and for its practical effects to be reasonably clear from statistical analysis — inflicts irreparable harm on those women who are prevented from having abortions in the interim. In this case, plaintiffs have taken a different approach to avoid this prospect. They brought this facial challenge before the Indiana law could take effect. They seek to prove the likely effects of the law in Indiana by proving the actual effects of a very similar law elsewhere (Mississippi). They have also offered evidence that there is no reason to expect Indiana’s experience to be materially different from Mississippi’s, and there is no substantial evidence to the contrary. Defendants have criticized this approach as making “a mockery of the rule of law and stare decisis ” and inviting a “jurisprudence of caprice.” Def.Br. at 15. They say this approach would “require finding not only that a rule that is perfectly legal in one state would violate the Constitution in another, but that a rule invalid in a state one day could, on the next, with a better evidentiary presentation, be found consistent with the Constitution.” Id. These criticisms echo the Casey dissent’s attack on the undue burden standard. See 505 U.S. at 988-91, 112 S.Ct. at 2879-80 (Scalia, J.). They do not show, however, that plaintiffs’ approach is inconsistent with the governing undue burden standard as articulated and applied in Casey, focusing on the likely practical effects of the law. Plaintiffs’ attempt to prove through statistical and other evidence the likely effects of the Indiana law is entirely consistent, at least in theory, with the undue burden standard as set forth and applied in Casey. Whether plaintiffs have come forward with sufficient evidence to show a reasonable likelihood of prevailing is the question to be addressed next. B. Effects of Mandatory Disclosure and Waiting Period Plaintiffs argue that the mandatory disclosure of information and the 18-hour waiting period imposed by Public Law 187 will put undue burdens on a woman’s right to choose to have an abortion. They contend the information that must be disclosed to a woman is unnecessary and possibly misleading. They assert that the 18-hour waiting period will cause longer delays in actual practice, making abortions more difficult to obtain and, in some cases, more dangerous and expensive. Plaintiffs focus most of their attack, however, on the “in the presence” provision, which requires that some of the information be provided to the woman in her presence, at least 18 hours before the abortion, effectively requiring most women to make two trips to a clinic. To attack the mandatory disclosure and waiting period requirements, plaintiffs offered testimony from Dr. Stanley K. Henshaw, a researcher at the Alan Guttmacher Institute; from two Indiana clinic directors, Jane Stout and Marne Greening; and from a clinic director from North Dakota, Jane Bovard. Plaintiffs also rely on a number of affidavits submitted with their motion, including an affidavit from Dr. Connie L. Best, a clinical psychologist who is an expert on the subjects of domestic violence, sexual assault, and rape. Other affiants include the directors and other employees of the plaintiff clinics. Plaintiffs’ evidence describes the services and counseling they provide their patients, the types of problems and concerns confronting many women who are deciding whether to continue or terminate a pregnancy, then* experience with harassment of patients by anti-abortion protesters, and some of the practical consequences of Public Law 187. The court will provide additional detail on plaintiffs’ evidence with respect to each specific issue raised. In support of the disclosure and waiting period requirements, defendants offered evidence summarizing the information provided to the Indiana legislature when it was considering the bill. Witnesses told the legislature that “hundreds” of women who have had abortions in Indiana have claimed they were “misinformed or ill-informed about the risks, complications and alternatives,” and later regretted their decisions to have abortions. Several women told the legislature about their own experiences, their beliefs that they should have had additional information, and their later regrets about having abortions. A physician also told the legislature about the physical and emotional complications associated with abortions and the need for informed consent. The defendants’ evidence about information provided to the legislature was not admitted for the truth of the matters asserted, but for the limited purpose of showing some of the information the legislature considered. That information is relevant to the purpose prong of the Casey undue burden standard and to whether the legislation bears a rational relationship to a legitimate state purpose. Two women testified at the court hearing concerning their own experiences, and their testimony was admitted to show the truth of the matters asserted. Marilyn Dowden testified that she had an abortion in 1978 and was not given accurate information about her options or fetal development in the early stages of pregnancy. She regrets her decision to have an abortion. She also now counsels women after abortions. She testified that the women she counsels experience feelings of guilt, depression, and low self-esteem after having abortions. Delores Brents Huddleson testified about having two abortions in approximately the mid-1970s, which she regrets, and about her experiences that led her to believe she had been pushed into having those abortions without sufficient information or consideration of her alternatives. Defendants did not come forward with any evidence tending to show that women having abortions in Indiana today would actually make different decisions (or would feel their same decisions were better-informed) if Public Law 187 were in effect. The court will consider in turn the key provisions of the Indiana law: the mandatory disclosure itself, the 18-hour delay requirement, the requirement that some of the medical information be provided by a physician or other health care professional, and the “in the presence” requirement. 1. The Mandatory Disclosures Indiana law has long required a patient to give her informed consent before she has an abortion. The evidence shows that plaintiffs’ current counseling practices are designed to ensure that women are both aware of their options and sure of their decision before they have abortions. Women who indicate any ambivalence about their decision receive additional counseling and, if necessary, as much time as they need to think further about their decision. The evidence presented thus far shows that the vast majority of women who schedule an appointment for an abortion and arrive at the clinic are already aware of their options and believe they have given their choice sufficient thought. There is no evidence showing that those women who are not aware of their options or who are not sure of their decision are being pushed into having abortions they do not want. There is no evidence that any patients who have had abortions at the plaintiff clinics have later complained that they had insufficient information or were pushed into having abortions without adequate time for reflection. The testimony of Ms. Dowden and Ms. Huddleson about their own experiences many years ago paints a picture different from plaintiffs’ evidence about their current counseling practices. Both Ms. Dowden and Ms. Huddleson had understandable difficulty testifying here about exactly what they were told and what they understood many years ago. Assuming they were actually pushed into having abortions with inadequate information, that evidence does not overcome plaintiffs’ evidence about counseling practices today. Ms. Dowden testified that women she counsels are upset and have feelings of guilt and depression after abortions. It is not surprising that some women have later regrets over what can be a difficult decision for many women. Regrets and second thoughts about important and difficult decisions are not unusual, even when the decisions are made with ample information and plenty of time for thought. Without more, the evidence of some women’s later regret does not show that any of these women actually made their decisions without important information or adequate time for thought. Most of the evidence in the record concerning the practical effects of the new law’s informational requirements comes from Jane Bovard, director of the only clinic in North Dakota where abortions are performed regularly. North Dakota has a mandatory disclosure and delay law similar to Indiana’s, except that it has been interpreted to permit the information to be given over the telephone. Ms. Bovard testified that she provides the required information to women calling for appointments, that “a lot of times they’re impatient when we give them the information,” and that when “we get to the section where we have to tell them about medical assistance and the man supporting the child, at least half our patients laugh.” Tr. 269. She estimated that in her experience, about one to two percent of women who call ask to receive the state-provided written materials on fetal development and alternatives to abortion. The vast majority of women have no questions about the information they are given. No patient has ever told Ms. Bovard that she was cancelling her plans or changing her decision because of the mandated information. Based on all this evidence, plaintiffs contend that the informational requirements of Public Law 187 are demeaning and patronizing, and are at best useless for most women who will be required to listen to the information. Under the joint opinion in Casey, however, these circumstances do not show an “undue burden.” The joint opinion in Casey allows a state to express its preference for childbirth through “truthful and not misleading” information and to legislate for the minority of women who are ambivalent about their decisions. 505 U.S. at 881-85, 112 S.Ct. at 2823-25. The information required by Public Law 187 can be provided in as little as five minutes. While the information may be useless for most women who must listen to it, there is no evidence that the requirement that they listen will itself actually impose a substantial obstacle or an undue burden in the sense that the law will be so burdensome as to prevent women from having abortions they would otherwise choose to have. See Casey, 505 U.S. at 881-85, 112 S.Ct. at 2823-24 (joint opinion). Plaintiffs also suggest that the required information about available medical assistance and child support may be misleading to women. Public Law 187 requires that a woman be informed only that “medical assistance benefits may be available” and that the father of the unborn fetus is “legally required to assist in the support of the child.” Ind.Code § 16-34-2-1.1(2) (emphasis added). No one claims that this information provides a complete picture of relevant facts on either of these issues. However, the law does not forbid anyone from providing additional information about either the eligibility criteria for medical assistance or the practical realities of collecting child support from fathers. If the law were to require a more complete picture on these issues, its requirements would become more burdensome and time-consuming. Under Casey, the legislature may constitutionally require that these subjects be raised with the pregnant woman without requiring additional detail in all cases. Under Casey, therefore, the plaintiffs appear unlikely to show that the information requirement itself imposes an undue burden on a woman’s right to choose whether to continue or terminate her pregnancy. 2. The 18-Hour Delay Plaintiffs have expressed more of a concern about the practical effects of the 18-hour delay requirement. The evidence shows that abortions are ordinarily performed only one or two days a week at most Indiana clinics. The required 18-hour delay therefore will often result in actual delays of several days or perhaps even a week or two. In some cases, these delays may cause what would have been a safer and less expensive first trimester abortion to become a riskier and more expensive second trimester abortion. (After the eighth week of pregnancy, the medical risks of abortion, which are very-low, especially in the earliest stages of pregnancy, rise by about 20 percent per week.) However, the evidence also shows that most women seeking abortions in Indiana schedule their appointments in advance, usually by telephone. It is very unusual to have an abortion procedure performed the same day the woman first contacts a clinic. Accordingly, apart from the “in the presence” requirement, if the information required by Public Law 187 could be provided when a woman first makes contact with a clinic, the 18-hour delay would rarely add to delays that women already encounter as a matter of scheduling and logistics. There is no evidence before the court showing that women would actually benefit from this waiting period mandated by law. Cf. Casey, 505 U.S. at 920, 112 S.Ct. at 2843 (Stevens, J., dissenting in part) (courts should consider actual benefits of law in applying undue burden standard). There is evidence that some women later regret their decisions. That evidence is not surprising in view of the fact that a decision to have an abortion is important and can be difficult for many women. But that evidence does not prove either that these women’s decisions would probably have been different or that they would have regretted them less if they had been subject to a mandatory waiting period. The only evidence about current practices of Indiana abortion climes indicates that the clinics already take steps to ensure that women are aware of their alternatives and have made a considered decision before they have abortions. There is no evidence that women who are ambivalent are now having abortions without taking time for further reflection. Under Casey, the apparent lack of genuine benefit does not mean that the waiting period amounts to an undue burden. There is no evidence, beyond the types of evidence found insufficient in Casey, that the 18-hour delay in itself would prevent a substantial number of women from having abortions they would otherwise choose to have. Thus, the delay itself does not appear to be an undue burden. This conclusion is consistent with decisions of other courts upholding brief waiting periods after Casey. E.g., Planned Parenthood, Sioux Falls Clinic, Inc. v. Miller, 63 F.3d 1452, 1467 (8th Cir.1995); Fargo Women’s Health Org. v. Schafer, 18 F.3d 526, 533 (8th Cir.1994); Utah Women’s Clinic, Inc. v. Leavitt, 844 F.Supp. 1482, 1491, 1495 (D.Utah 1994). 3. Role of the Physician or Health Care Professional Public Law 187 requires that some of the medical information be provided by a referring physician, the physician who is to perform the abortion, or a physician assistant, advanced practice nurse, or midwife. This provision of Indiana’s law is somewhat less restrictive than the Pennsylvania law in Casey, which required that the information be provided by a physician. The Supreme Court upheld that requirement since there was “no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion.” 505 U.S. at 884, 112 S.Ct. at 2824. Plaintiffs have raised concerns here about the scarcity of physician time and the expense and difficulty of hiring others who qualify under the Indiana statute. There are only eight physicians in Indiana who regularly perform abortions. Plaintiffs contend there is only a small number of other health care professionals who are both (a) qualified to provide medical information required by Public Law 187 and (b) willing to do so. There is also no evidence before the court showing any substantial benefit from the law’s limits on who may provide the information. See Casey, 505 U.S. at 920, 112 S.Ct. at 2843 (Stevens, J., dissenting in part) (courts should consider actual benefits in determining whether law imposes an undue burden). To the contrary, the evidence before the court shows that the counselors at the plaintiff clinics are well-trained and well-qualified to counsel patients on the required subjects, including medical information. However, the joint opinion in Casey shows that increased cost and inconvenience, apparently even for little or no actual benefit, do not establish an undue burden in the sense that the law would actually prevent women from having abortions they would choose to have. Thus, there is no evidence on this record that the Indiana law’s limitation on who may provide the medical information is likely, in practical terms, to amount to a substantial obstacle. Cf. Armstrong v. Mazurek, No. CV-95-083-GF, slip op. at 13 (D.Mont. Sept. 29, 1995) (denying preliminary injunction against enforcement of statute that requires an abortion to be performed only by a licensed physician). 4. The “In the Presence” Requirement Plaintiffs have directed their strongest attack against the requirement in Public Law 187 that some of the information be provided “in the presence of the pregnant woman.” Plaintiffs contend that the practical effect of this provision would be to require women seeking an abortion to make two trips to a clinic. For many women, making two trips would make abortions more expensive and less convenient, but they would still be able to obtain them. However, plaintiffs contend that for many other women, the practical difficulties of arranging to be away from families or partners, jobs or classes, would actually prevent them from obtaining abortions they would otherwise choose to have. Plaintiffs express special concern about women in abusive or potentially abusive relationships who feel they must conceal from their husbands or partners the fact that they are having an abortion. The affidavit of Dr. Connie L. Best provides disturbing evidence concerning the extent of domestic violence and especially the extent of violence directed at some pregnant women and their children. Dr. Best points out that it can be very difficult for women in abusive relationships to make even one undetected trip to an abortion clinic, let alone two, and that the prospect of the second trip increases the risk of discovery and further abuse. See also Casey, 505 U.S. at 887-93, 112 S.Ct. at 2826-29 (striking down spousal notification requirement based on risk of abuse resulting from spouse’s awareness of pregnancy and planned abortion). Plaintiffs have also submitted extensive evidence at the hearing and by affidavit concerning the variety of harassing tactics used at their clinics by anti-abortion protesters. Some of those tactics include photographing patients, tracing license plates, and the like. Plaintiffs assert that women required to make two trips to clinics would be vulnerable to abuse and harassment (and unwanted disclosure to abusive partners or others) after the first visit. Plaintiffs contend that for a significant number of women, these obstacles and risks would be so great that women will forego abortions they would otherwise choose to have. Defendants point out that the Indiana statute does not actually require two trips to a clinic because the information may be provided by a referring physician. However, as a practical matter, very few women seeking abortions are referred by other physicians. Plaintiffs’ Exhibit 25 shows that over a thirteen month period, approximately four percent of one Indiana clinic’s patients were referred by an outside physician. For purposes of evaluating the law’s practical effects, the “in the presence” requirement in the law amounts to a requirement that women make two trips to a clinic. The Supreme Court assumed that the Pennsylvania statute upheld in Casey would require two visits. The statute required that at least 24 hours before the abortion, the physician who is to perform the abortion or the referring physician must have “orally informed the woman” of certain medical information. See 505 U.S. at 902, 112 S.Ct. at 2833. The district court in Casey interpreted this language as requiring that the information be provided in the woman’s physical presence. That court found that the requirement would subject many women to harassment and hostility; would double travel time and increase costs for travel, lost wages, babysitting, and related expenses; and would be especially burdensome for women having difficulty explaining their absences, such as battered women, school age women, and working women without sick leave. 744 F.Supp. at 1351-52. The Supreme Court described these findings as “troubling in some respects,” but held that they did not demonstrate that the law would impose an undue burden. 505 U.S. at 885-86, 112 S.Ct. at 2825. As a result, Casey established that a facial challenge to a two-trip law cannot succeed without evidence beyond that presented in Casey. Plaintiffs argue that the experience in other states with similar laws that have taken effect since Casey was decided provides sufficient evidence to establish that the Indiana law’s “in the presence” requirement would impose an undue burden. The centerpiece of plaintiffs’ proof at this stage of the case is a study done by Dr. Stanley K. Henshaw about the effects of a similar law in Mississippi. According to plaintiffs, Mississippi is the only state where a law with a two-trip requirement has been in effect long enough so that data have been available to evaluate the law’s effects. The Mississippi law imposes disclosure and delay requirements similar to Indiana’s, although the delay is for 24 hours. The law does not explicitly require that the information be given in the presence of the woman, but it has been interpreted and applied that way. Plaintiffs argue that the experience of women in Mississippi provides good evidence — in fact the best available evidence— of the likely effects of the Indiana law. Dr. Henshaw testified that while there might be some difference in degree, he believes that Indiana and Mississippi are sufficiently similar to expect similar effects from the two laws. The parties have not brought to the court’s attention any significant differences between the populations of the two states or other factors that would affect the provision of abortion services. The Mississippi study therefore deserves close scrutiny here. The Mississippi law took effect on August 8, 1992. Dr. Henshaw reviewed statistical data on abortions provided in Mississippi (both to Mississippi residents and residents of other states), as well as data from Alabama and Tennessee, where some women from Mississippi go to obtain abortions. He did not have data available from Louisiana and Arkansas. In his published study (admitted as Plaintiffs’ Exhibit 3), Dr. Henshaw calculated the number of abortions that Mississippi residents would have been expected to obtain from August 1992 to December 1992, and he calculated the number that they actually obtained. His calculations showed the following: The data thus shows that the number of Miss