Full opinion text
OPINION AND ORDER CRABB, District Judge. The state of Wisconsin has enacted a law that requires physicians who provide abortions to give their patients specific oral and printed information at least 24 hours before performing an abortion. The question this case raises is whether the new law will make it so difficult for women in Wisconsin to exercise their constitutionally protected rights to obtain abortions as to constitute an “undue burden” as articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Although the law intrudes upon the pregnant woman’s constitutional liberty “to decide matters of the highest privacy and the most personal nature,” id. at 915, 112 S.Ct. at 2840 (Stevens, J., concurring in part and dissenting in part), by “injecting] into a woman’s most personal deliberations [the state’s] own views of what is best,” id. at 916, 112 S.Ct. at 2840, the Supreme Court’s holding in Casey requires the conclusion that the majority of Wisconsin’s law is constitutional because most of the restrictions it imposes do not constitute undue burdens upon a woman’s right to choose whether to continue or terminate her pregnancy. HISTORY OF THIS CASE On May 1,1996, the day after the governor signed into law Assembly Bill 441, a law regulating the process by which physicians obtain the voluntary and informed consent of their patients seeking abortions, plaintiffs Elizabeth Karlin, M.D., Planned Parenthood of Wisconsin, Inc., Gary Prohaska, M.D., Dennis Christensen, M.D., and Summit Women’s Health Organization filed this civil action, asserting that AB 441 violates a number of rights guaranteed to them and to their patients by the United States Constitution. Plaintiffs added a request for a temporary restraining order and a preliminary injunction enjoining defendants from enforcing AB 441. Their request for a temporary restraining order was granted after a hearing held on May 6 and extended by agreement of the parties until a decision could be reached on plaintiffs’ motion for a preliminary injunction, which was converted to a motion for permanent injunction and heard in October 1996. AB 441 enacts a number of changes to the Wisconsin laws pertaining to informed consent procedures for abortion and it repeals and recreates the primary statute governing this topic, Wis. Stat. § 253.10. A. Old § 253.10 Under the prior statute governing informed consent for abortions, Wis. Stat. § 253.10 (repealed 1996), the attending physician or a person assisting that physician had to verbally provide a woman seeking to obtain an abortion the following information: 1) whether she was pregnant; 2) the probable gestational age of the fetus; 3) the availability of public and private agencies and services offering birth control information and assistance if the woman chose not to have an abortion; 4) special guidance for minors seeking abortions if the woman was a minor; and 5) any particular risks associated with the woman’s pregnancy and the abortion technique to be employed. § 253.10(l)(a). The attending physician or assistant had the option of informing women about the probable physical characteristics of the fetus at the time the abortion was to be performed. § 253.10(l)(c). If a woman requested information about the public and private agencies offering birth control information and assistance with pregnancy and childbirth, physicians and their assistants were required to provide this information. § 253.10(2). County departments in counties where abortions were provided were responsible for compiling the information and distributing it to abortion providers. Wis. Stat. § 46.245 (repealed 1996). (As with § 253.10, AB 441 repealed and recreated § 46.245). Before undergoing the abortion procedure, a woman had to sign a statement acknowledging that she had received the required oral information, been given the opportunity to receive the written information and consented freely and without coercion to the abortion. § 253.10(3). Gathering of informed consent was unnecessary if an emergency abortion was required because of an immediate threat and a grave risk to the life and health of the woman. § 253.10(4). B. New § 253.10 The new Wis. Stat. § 253.10 (1996) enacted by AB 441 makes a number of changes in the basic informed consent structure in place under the prior law. The statute is divided into eight sections: 1) legislative findings and intent; 2) definitions; 3) voluntary and informed consent; 4) hotline; 5) penalty; 6) civil remedies; 7) affirmative defense; and 8) construction. 1. Legislative findings and intent— § 253.10(1) In subsection (1), the legislature set forth its reasons for modifying informed consent procedures for abortion. Essentially, the legislature determined that many women seeking abortions do not have full knowledge of the medical and psychological risks of abortion and need more extensive information in order to make an informed choice; most women receiving elective abortions do not have a prior patient-physician relationship with the doctor providing the abortion and lack an opportunity to receive personal counseling from that doctor about their decision; and a reasonable waiting period is necessary to ensure that women have a full opportunity to give their voluntary and informed consent before electing to undergo an abortion. 2. Definitions — § 253.10(2) In subsection (2), the legislature defined a number of terms. Those relevant to this case are the following: (a) “Abortion” means the use of an instrument, medicine, drug or other substance or device with intent to terminate the pregnancy of a woman known to be pregnant or for whom there is reason to believe that she may be pregnant and with intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus. (d) “Medical emergency” means a condition, in a physician’s reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman’s major bodily functions. (f) “Qualified person assisting the physician” means a social worker certified under ch. 457, a registered nurse or a physician assistant to whom a physician who is to perform or induce an abortion has delegated the responsibility, as the physician’s agent, for providing the information required under sub. (3)(c)2. (g) “Qualified physician” means a physician who by training or experience is qualified to provide the information required under sub. (3)(c)l. 3. Voluntary and informed consent— § 253.10(3) Section 253.10(3) sets up the overarching structure of the new informed consent provisions. It provides that an abortion may not be performed unless the woman has given voluntary and informed written consent to the procedure. § 253.10(3)(a). Consent is voluntary only if it is given “freely and without coercion by any person.” § 253.10(3)(b). Unless a medical emergency exists, consent is informed only if all of the following take place: 1. Except as provided in sub. (3m), at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or any other qualified physician has, in person, orally informed the woman of all of the following: a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant. b. The probable gestational age of the unborn child at the time that the information is provided. The physician or other qualified physician shall also provide this information to the woman in writing at this time. c. The particular medical risks, if any, associated with the woman’s pregnancy. d. The probable anatomical and physiological characteristics of the woman’s unborn child at the time the information is given. e. The details of the medical or surgical method that would be used in performing or inducing the abortion. f. The medical risks associated with the particular abortion procedure that would be used, including the risks of infection, psychological trauma, hemorrhage, endom-etritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility. g. That fetal ultrasound imaging and auscultation of fetal heart tone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child. In so informing the woman and describing these services, the physician shall advise the woman as to how she may obtain these services if she desires to do so. h. The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion. i. If, in the reasonable medical judgment of the physician, the woman’s unborn child has reached viability, that the physician who is to perform or induce the abortion is required to take all steps necessary under s. 940.15 to preserve and maintain the life and health of the child. j. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion. k. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced. L [sic]. That, except as provided in sub. (3m), the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed after the requirements of this paragraph are met. § 253.10(3)(c)l. In addition, a woman’s consent is not informed unless “the physician who is to perform or induce the abortion, a qualified person assisting the physician or another qualified physician has, in person, orally informed the woman of all of the following: a. That benefits under the medical assistance program may be available for prenatal care, childbirth and neonatal care. b. That the father of the unborn child is liable for assistance in the support of the woman’s child, if born, even if the father has offered to pay for the abortion. c. That the woman has a legal right to continue her pregnancy and to keep the child, place the child in foster care, place the child with a relative for adoption or petition the court for placement of the child for adoption in the home of a person who is not a relative. d. That the woman has the right to receive and review the printed materials described in par. (d). The physician or qualified person assisting the physician shall physically give the materials to the woman and shall, in person, orally inform her that the materials are free of charge, have been provided by the state and describe the unborn child and list agencies that offer alternatives to abortion and shall provide her with the current updated copies of the printed materials free of charge. e. If the woman has received a diagnosis of disability for her unborn child, that the printed materials described in par. (d) contain information on community-based services and financial assistance programs for children with disabilities and their families, information on support groups for people with disabilities and parents of children with disabilities and information on adoption of children with special needs. f. If the woman asserts that her pregnancy is the result of sexual assault or incest, that the printed materials described in par. (d) contain information on counseling services and support groups for victims of sexual assault and incest and legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father’s parental rights. g. The availability of public and private agencies and services to provide the woman with birth control information, including natural family planning information.” § 253.10(3)(c)2. This second category of information may be provided by a “qualified person assisting the physician,” whereas the first items may be given only by the abortion physician or any other qualified physician. Both sets of information must be provided “in an individual setting that protects [a woman’s] privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances.” § 253.10(3)(e)3. A family member or any other person of the woman’s choice may be present during her private counseling. Id. The person providing the information must provide adequate opportunity for the woman to ask questions. § 253.10(3)(c)4. The person providing the second category of oral information must also “physically give” the woman certain printed materials. § 253.10(3)(c)2.d. These materials are to be developed by the state Department of Health and Social Services and distributed to county departments in counties where abortions are performed. § 253.10(3)(d). Abortion providers must obtain a reasonable number of these materials from the county department in their county. § 46.245(1); § 253.10(3)(e). Section 253.10(3)(d) directs the department to include the following in these printed materials: geographically indexed materials informing a woman about public and private agencies that offer ultrasound imaging, help for fetuses diagnosed with a disability, help to women pregnant as a result of incest or sexual assault; information about govern-mentally funded programs serving pregnant women; photographs, pictures or drawings containing objective and accurate information designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at different stages of gestation; and the medical and psychological risks associated with each common abortion procedure. If after receiving the state-printed materials, a woman asks to receive a list of public and private agencies and services that will offer her birth control information, these materials must be provided to her. § 253.10(3)(em). (County departments in counties where abortions are performed are responsible for compiling these lists and distributing them to known abortion providers in that county. § 46.245(2)). Abortion providers “may” be charged a fee for both the state-printed and the county department-compiled materials, as long as the fee does not exceed the actual cost of preparation and distribution of the materials. § 253.10(3)(d); § 46.245(1). Prior to an abortion, a woman must certify in writing on a form provided by the state that she has been furnished with both sets of oral information, that she has been given the written information described in § 253.10(3)(d) and that all of her questions have been answered in a satisfactory manner. § 253.10(3)(c)5. The physician performing the abortion or her qualified assistant must receive the signed form before performing the abortion, must place it in the woman’s medical record and must give the woman a copy of the form. § 253.10(3)(c)6. If the physician who is to perform the abortion determines that a medical emergency exists, the physician must inform the woman, if possible, of the medical indications of the emergency condition and, if possible, obtain the woman’s written consent prior to the abortion. § 253.10(3)(f). If all the informational requirements of § 253.10(3)(c) are met, there is a rebuttable presumption that the woman’s consent is informed. § 253.10(3)(g). However, The presumption of informed consent may be overcome by a preponderance of the evidence that establishes that the consent was obtained through fraud, negligence, deception, misrepresentation or omission of a material fact. There is no presumption that consent to an abortion is voluntary. Id. A woman who alleges that she is pregnant as a result of sexual assault may have the 24-hour waiting requirement waived if she has reported the assault to law enforcement authorities and the abortion provider verifies that such a report has been made. § 253.10(3m)(a). A woman who alleges that she is pregnant as a result of incest may have the 24-hour requirement reduced to a two-hour wait if she has reported the incest to law enforcement authorities and the abortion provider verifies that the report has been made. § 253.10(3m)(b). 4. Hotline — § 253.10(1) The Department of Health and Social Services may maintain a toll-free telephone number available 24 hours a day to provide the state-printed materials specified in § 253.10(3)(d)l. 5. Penalty — § 253.10(5) Any person who violates § 253.10(3) or (3m)(a)2. or (b)2. is required to forfeit not less than $1,000 and no more than $10,000. 6. Civil remedies — § 253.10(6) Any person who violates § 253.10(3) or (3m)(a)2. or (b)2. is liable to the woman on whom the abortion was performed for damages arising out of the abortion, including damages for personal injury and emotional and psychological distress and punitive damages of not less than $1,000 or more than $10,000. Attorney fees are available for such civil suits. A civil suit may be brought even if the physician or her assistant has not been convicted under § 253.10(5). 7. Affirmative defense — § 253.10(7) If an abortion provider makes a reasonably diligent effort to obtain the state and county produced written materials and they are not available, the provider will not be liable for failing to offer them to her patients. 8. Construction — § 253.10(8) Nothing in § 253.10 may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful. C. Application of § 253.10 to Minors If the woman considering an abortion is a minor, a physician may not perform an abortion unless he first obtains the minors voluntary and informed written consent as provided in § 253.10 and obtains the voluntary and informed written consent of one of her parents, or of her guardian or legal custodian, or of an adult family member or, under certain conditions, of one of her foster parents or treatment foster parents. § 48.375(4)(a); see also § 253.10(3)(e)7. A minor’s consent is sufficient on her own if a court has granted her a waiver of parental notification pursuant to § 48.375(7). § 253.10(3)(c)7; § 48.375(4)(a)2. D. Discipline for Violation of § 253.10 Nurses, social workers, marriage and family therapists and professional counselors are subject to loss, limitation or suspension of their licenses for violations of § 253.10. § 441.07(l)(f); § 457.26(2)(gm). The state medical examining board is required to investigate allegations of unprofessional conduct lodged against persons holding a license, certificate or limited permit granted by the board. An allegation that a physician has violated § 253.10(3) (the dissemination of oral and printed information provisions) is an allegation of unprofessional conduct and therefore must be investigated. § ■ 448.02(3)(a). If the medical examining board establishes that the physician is guilty of unprofessional conduct, it may limit, suspend or revoke that physician’s license. § 448.02(3)(c). FACTS From the evidence adduced at the October 1996 hearing, I find the following facts. A.The Parties Plaintiff Elizabeth Karlin, M.D., is a physician at the Women’s Medical Center in Madison, Wisconsin, where she provides abortions and birth control counseling. Plaintiff Gary Prohaska, M.D., is director of abortion services for plaintiff Planned Parenthood of Wisconsin, Inc. He provides abortions at clinics in Milwaukee and Appleton, Wisconsin. Plaintiff Dennis Christensen, M.D., is the medical director of the Madison Abortion Clinic in Madison, Wisconsin and runs another abortion clinic in Niles, Michigan. Plaintiff Summit Women’s Health Organization is an abortion facility in Milwaukee, Wisconsin. Defendant James E. Doyle is Attorney General of the State of Wisconsin. Defendant C. William Foust is district attorney for Dane County, Wisconsin. Defendant E. Michael McCann is district attorney for Milwaukee County, Wisconsin. Defendants James Chambers, Michael Mehr, B. Ann Ne-vaiser, James Esswein, Rudolfo Molina, W.R. Schwartz, Mikki Patterson, Sidney Johnson, Sandra Makhorn, Pablo Pedraza, Glenn Ho-berg, Wanda Roever, Ronald Grossman and Darold Treffert are members of the Wisconsin Medical Examining Board. Defendants Elaine August, Timothy Burns, Bonnie Creighton, Ruth Lindgren, Pamela Maxon, Lorraine Norem, Roberta Overby, McArthur Weddle and Ann Brewer are members of the Wisconsin Board of Nursing. Defendants Muriel Harper, Virginia Heinemann, Cornelia Hempe, Douglas Knight and Anita Kropf are members of the Wisconsin Examining Board of Social Workers, Marriage and Family Therapists and Professional Counselors. Defendant Joseph Leean is Secretary of the Wisconsin Department of Health and Family Services. Defendant K.B. Piper is Administrator of the Division of Health of the Wisconsin Department of Health and Family Services. B.Reported Induced Abortions in Wisconsin In 1995, the latest year for which statistics exist, 12,782 reported induced abortions were performed in Wisconsin. This number represents 19 abortions for every 100 live births in the state and 11 abortions for every 1000 Wisconsin women aged 15 to 44. 650 of these abortions were performed on out-of-state women. In 1994, 13,396 reported induced abortions took place in the state, of which 87% were performed on women who lived within 74 miles of an abortion provider. The annual number of abortions in Wisconsin has been declining since 1980, with the exception of two years that had minor increases. C.Location of Abortion Providers in Wisconsin In the state of Wisconsin, abortions are available only in the cities of Madison, Milwaukee, Appleton and Green Bay. Plaintiffs Karlin and Christensen provide abortions at clinics in Madison. Plaintiff Prohaska offers abortions at Planned Parenthood locations in Milwaukee on Tuesdays, Fridays and every other Saturday and in Appleton at the Appleton North Clinic on Wednesdays and Thursdays. Planned Parenthood has no other physicians that work for it as abortion providers. In Milwaukee, abortions are also available at Summit Women’s Health Organization. Women can receive abortions at a facility in Green Bay but the charge is approximately $100 more than Planned Parenthood charges; many women choose to go to the Planned Parenthood facilities in Appleton or Milwaukee to save money. Abortion clinics exist in Duluth, Minnesota and in Minneapolis-St Paul, Minnesota. A private gynecologist in Michigan’s Upper Peninsula provides abortions through the tenth week of pregnancy. She charges approximately $200 more than Planned Parenthood does. Plaintiff Karlin has had at least two patients from Superior, Wisconsin, which is approximately six hours from Madison. Some of plaintiff Karlin’s patients find it hard to get to her office because they cannot get away from work easily or they have financial, mental health, drug, or partner abuse problems. Two of her patients have been tracked down by anti-abortion protesters and one had anti-abortion posters and photographs of fetuses placed on her lawn. Abortion protesters have recorded the license plate numbers of patients at the Summit Women’s Health Organization and in at least one instance have tracked the patient home. The Appleton North Clinic provides approximately 1,400 abortions a year to women from a wide area of Wisconsin and from the Upper Peninsula of Michigan. Patients come from as far south as Fond du Lac and Milwaukee, as far north as Superior and Houghton, Michigan (230 miles from Appleton), and as far west as Eau Claire. In 1995, the clinic had 100 patients from the Upper Peninsula, none of whom lived closer than 80 miles to the clinic. Some women go to the Appleton North Clinic instead of a clinic closer to home because of fear of being recognized at the local clinic. In September 1996, 30% of the Appleton North Clime’s 112 patients traveled over 80 miles to come to the clinic. If patients must make two trips to an abortion provider, travel time and costs will increase, patients will have to take more time off work and will lose more income, they will have to pay more for child care and they will have more trouble maintaining their privacy and explaining their absences from work or from home. The latter is a special concern for patients in abusive relationships. (Approximately 15% of Dr. Karlin’s patients have been involved in abusive relationships, with a much smaller number being involved in abusive relationships at the time they come to the clinic.) D. Scheduling at Wisconsin Abortion Facilities Patients who call the Summit Women’s Health Organization to schedule an appointment for an abortion generally have to wait one to seven days before receiving the abortion. At the Appleton North Clinic, 70% of women receive an appointment approximately a week after their initial scheduling call. One percent of women can be scheduled in less than a week; the remaining 29% must wait more than a week. Planned Parenthood physician Gary Pro-haska performs a one-day abortion procedure on women whose fetuses are under 13 weeks’ gestational age. Women who are 13 or 14 weeks’ pregnant may have a one or two-day procedure. Patients over 14 weeks have a two-day procedure. Prohaska does not perform abortions beyond 16 weeks. The two-day procedure begins when Prohaska inserts osmotic dilators, which must remain in place overnight to allow the cervix adequate time to dilate. Prohaska performs two or three of these two-day procedures a week. If he had to personally meet with and perform a physical examination on each of his patients 24 hours in advance of the abortion procedure, the number of patients he could see would be reduced by approximately 5006. For two-day procedures in Appleton, patients would likely have to wait another week to receive an abortion, because Prohaska would need to meet with them three times. This delay could increase the health risk and cost to the patient. Patients who call the Women’s Medical Center in Madison to schedule abortions generally receive an appointment one to two weeks later. The center offers appointments on Monday, Tuesday, Thursday and Friday. Patients arrive between 8 and 11 a.m. and the doctor operates until about 1 or 2 p.m. The average length of time between a woman’s first call to the Madison Abortion Clinic for an appointment and her appointment to undergo the abortion procedure is one week. Very few of Dr. Christensen’s patients have abortions on the same day they call for an appointment, although Dr. Christensen tries to see a patient immediately if she has medical complications. Dr. Christensen performs first and second trimester abortions primarily but does abortions up to 22 weeks’ pregnancy (or 24 menstrual weeks). E. Pre-Abortion Counseling under Existing Legislation 1. Summit Women’s Health Organization A woman who arrives for an abortion at Summit Women’s Health Organization must check in at the reception desk where she is given a packet of information to fill out, including a medical history form, a counseling form and a patient consent form. The counseling form explains the abortion procedure and advises the patient about potential risks of abortion, such as infection, perforation of the uterus, missing part of the pregnancy and adverse reactions to the local anesthetic. When the medical history form is completed, the woman has lab work done to confirm that she is pregnant and to cheek whether she is anemic. After this, the woman spends approximately 30 minutes with a counselor who talks to her about the procedure itself, its risks and complications and how to take care of herself after the abortion. Sometimes the counseling is done in groups of up to five women in a room separate from the reception area. The woman fills out the counseling and patient consent forms at that time, after the counselor has explained them to her. Women who have second trimester abortions receive more detailed counseling about potential risks. After the counseling is completed, the woman pays for the procedure and is taken into an area where she changes into a gown. A nurse takes the woman’s vital signs. The patient waits until she is called to see the doctor. When she is called, she enters the room where the procedure is to be performed and meets the doctor for the first time. While the woman is seated on the operating table, the doctor talks to the patient and does a pelvic exam. The woman lies down on the table and the doctor prepares her vagina for surgery. Generally, it takes from five to ten minutes from the time the doctor encounters the patient to the preparation of the vagina. The doctor performs the abortion by inserting a speculum in the woman’s vagina, giving the woman a local anesthetic, dilating the woman’s cervix, inserting a vaeurette and suctioning out the contents of the woman’s uterus. The vaeurette procedure takes approximately one or two minutes, but lasts longer for a second trimester abortion. 2. Women’s Medical Center Women who come to the Women’s Medical Center for an abortion undergo a process similar to that at the Summit Women’s Health Organization and can expect to spend an hour and a half to two hours at the center. A woman meets the receptionist and is given a number of papers to fill out, including a personal history form, a medical history form and a medical data sheet. Generally, she then goes to the laboratory for a urine pregnancy test and blood work, after which she waits to meet with a counselor who talks to her about her pregnancy, her feelings about the pregnancy, life problems that brought her to the clinic and medical risks of the procedure. If patients have specific questions about the risks, the counselor refers them to Dr. Karlin. If the patient decides to continue with an abortion, she receives a description of the procedure and is able to see the instruments that are used. The counseling can last anywhere from 15 minutes to an hour depending on the patient. The counselor may ask about previous pregnancies and abortions. The counselor takes notes on the conversation and discusses any potential problems with Dr. Karlin before Dr. Karlin meets the patient. At some point after counseling is completed, the patient is asked to sign an informed consent form that discloses the risks of infection, bleeding, uterine perforation and additional complications that an abortion may cause. The counselor’s office contains a number of pamphlets and other information about abortion. Each patient is taken by one of Dr. Kar-lin’s medical assistants to have an ultrasound to determine the gestational age of the pregnancy. From there, the patient proceeds to the operating room and waits, still dressed, for Dr. Karlin, who talks to the patient about any problems highlighted by the counselor and about the procedure itself. If Dr. Karlin is satisfied that the woman is resolute in her decision, she leaves the room to allow the patient to get undressed, after which she returns to do a brief physical exam and proceed with the abortion. Only in rare cases has Dr. Karlin found that a patient was so apprehensive or upset that it was advisable to ask her to come back on another day. The vast majority of patients have made their decisions to have abortions by the time they arrive at the clinic. However, Karlin makes sure that a woman is certain of her decision before performing an abortion. The patient remains in the procedure room for about five minutes. When she feels ready, she goes to the recovery room for approximately 20 minutes. Dr. Karlin gives the patient aftercare instructions and discusses birth control options with her. She advises all patients to come in for a follow-up exam two to three weeks after the abortion and urges them not to have intercourse during that time so as to decrease the risk of cervical infection. 3. Planned Parenthood Patients at Planned Parenthood meet with counselors before undergoing an abortion. Planned Parenthood provides information about fetal development to patients only if they ask. Plaintiff Prohaska has had patients that became upset after seeing fetal development information. Plaintiff Prohaska meets his patients for the first time when they are on the operating table. He introduces himself, performs a pelvic and general physical examination and then does the abortion procedure. The whole process takes about four to five minutes. Prohaska does not follow up on the topics covered by the Planned Parenthood counselors or discuss the risks of abortion with patients unless they ask. 4. Madison Abortion Clinic Counselors at the Madison Abortion Clinic meet with patients for approximately ten minutes to an hour before the abortion. The counseling takes less time for women who have had previous abortions. Dr. Christensen does not meet with patients until they are in the operating room. 5. Appleton North Clinic Karen Kuhn, counselor at the Appleton North Clinic, routinely offers information on fetal development to clinic patients. Patients can expect to spend up to three hours at the clinic for counseling and the procedure. F. Definition of Qualified Physician Plaintiff physicians do not know how to gauge whether they or any other doctors are “qualified physicians” as defined by Wis. Stat. § 253.10(2)(g) because they are unsure what “training or experience” suffices under the statute. Plaintiffs believe that because of the ambiguity of the “qualified physician” provision, they could not rely on another physician to perform an informed consent discussion under AB 441. Dr. Scott Spear, M.D., is an associate director for clinical services at University Health Services, University of Wisconsin, an assistant professor of pediatrics at the University of Wisconsin, and a regular provider of primary care to pregnant women. He would be interested in serving as a qualified physician, but is concerned that AB 441 is too vague for him to be able to participate without a significant risk of civil liability. Dr. Basil Jackson, a psychiatrist practicing in Milwaukee, believes that the factors that are important to being a qualified physician under AB 441 include sensitivity, basic psychological knowledge, interviewing skills, ability to understand unconscious communication coming from the patient and the cognitive, intellectual and emotional ability to integrate all these factors to come to a clinical conclusion. Dr. Jackson does not know how a doctor would determine that he or she were a qualified physician authorized to provide the informed consent counseling required by AB 441. Dr. John Gianopoulos, associate professor of obstetrics and gynecology at Loyola University’s Stritch School of Medicine in Chicago, Illinois, believes that any doctor with training in obstetrics and gynecology would be a qualified physician under the statute. It is his view that any physician could become a “qualified physician” by doing intensive reading and attending a half-day to a day seminar with a certification exam at the end of the seminar. The physician would need to become familiar with the risks, complications and potential problems of abortions. G. Emergency Contraception Several different types of medication can be used as emergency contraception. They are commonly referred to as “morning-after pills.” It is probable that they operate before the implantation of the zygote into the wall of the uterus. Approximately once a week, Dr. Karlin prescribes emergency contraception for a patient. The prescribed procedure consists of two large doses of birth control pills, with the first dose taken as soon as possible after intercourse and the second dose 12 hours later. A 24-hour delay would delay the effectiveness of emergency contraception. H. Definition of Pregnancy Standard medical texts describe the beginning of pregnancy as the time of implantation of a zygote into the uterus, about six days after conception. Some doctors, including Dr. Nina Kiekhaefer, one of defendants’ witnesses and an obstetrician in private practice, believe that pregnancy begins with conception. Dr. Kiekhaefer acknowledged that there is no way to determine whether a woman is pregnant before implantation of the zygote into the uterus. I.Emergency Abortions A number of problems can arise during pregnancy, some of which might necessitate an immediate abortion in order to protect the mother’s health. Possible examples include 1) transient ischemic attacks; 2) heavy vaginal bleeding; 3) premature rupture of amniotic membranes; 4) spontaneous abortion (miscarriage); 5) hyperemesis (nausea and vomiting over and above the amount that most women experience during pregnancy); 6) cardiac problems; and 7) preeclampsia In addition, psychological emergencies might warrant waiver of the 24-hour waiting period. When these conditions occur, reasonable medical opinion can differ whether emergency abortions are necessary to protect the health of the mother. Dr. Karlin has seen three women who needed immediate abortions for the sake of their health. One was suffering small transient ischemic attacks during pregnancy and in Dr. Karlin’s opinion needed an abortion to avoid a large-scale stroke, although the woman’s own doctor did not believe an abortion was necessary. The other two were at risk because of heavy vaginal bleeding. Dr. Prohaska has not performed an emergency abortion since he has worked for plaintiff Planned Parenthood. Dr. Christensen has terminated pregnancies for women with premature ruptured membranes who might face a risk of serious infection if an abortion were not performed as soon as possible. Dr. Christensen sees several patients a year who have excessive bleeding or hyperemesis or who are in the process of spontaneous abortion. Dr. Christensen believes there is no medical reason to delay that procedure but acknowledges that some doctors might believe otherwise. J.Risk of Psychological Trauma Associated with Particular Abortion Procedure After undertaking an examination of the health effects of abortion at the request of President Reagan, Surgeon General C. Everett Koop concluded that “the scientific studies do not provide conclusive data about the health effects of abortion on women.” With respect to the effects of abortion on women’s psychological health, Koop found that the approximately 250 published studies on the topic were too flawed methodologically to provide any conclusive results to support the premise that abortion does or does not cause or contribute to psychological problems. On November 16, 1989, the Committee on Government Operations approved and adopted a report prepared by the Human Resources and Intergovernmental Relations Subcommittee entitled “The Federal Role in Determining the Medical and Psychological Impact of Abortion on Women.” The report contained the subcommittee’s findings of its oversight investigation of the Surgeon General’s study and a report on the psychological impact of abortion on women, including conclusions reached after a public hearing held on March 16, 1989 to review the information compiled by the Surgeon General and his staff. The subcommittee found that “Regardless of their position on abortion, mental health experts agree that much of the research on psychological impact [of abortion] is flawed.” The subcommittee concluded that the weight of the evidence and the Surgeon General’s own testimony tend to indicate that psychological problems caused by abortion are not a major health problem. The report recognizes the significant role abortion polities plays in researchers’ findings. Since 1989, researchers have completed a number of additional studies on the psychological impact of abortion. The better evidence tends to show that abortion does not lead to post-traumatic stress disorder in and of itself. However, the results of the studies are still mixed. Even researchers who believe that abortion does not cause severe psychological trauma acknowledge that some women may experience symptoms of distress, depression or guilt immediately after an abortion. Experts agree that abortion can worsen a woman’s preexisting emotional problems. Plaintiffs’ expert, Dr. Nada Stot-land, chief of psychiatry at Illinois Masonic Medical Center in Chicago, Illinois, has written that “abortion is rarely a psychologically painless procedure.” Plaintiffs Karlin and Christensen make available to their patients a pamphlet entitled “How to Cope Successfully After an Abortion” by Anne Baker, that explains that although most women do not report severe trauma after an abortion, some women may experience sadness, guilt, anger and regret; the author suggests ways to cope with these “troublesome feelings.” Dr. Karlin has had patients who have had serious emotional reactions to abortions. Her standard medical chart includes a preprinted notation to check if she believes the patient is suffering post-traumatic stress disorder. There is no evidence that psychological risks vary according to the specific abortion procedure employed. K.Auscultation of Fetal Heart Tone Services Fetal heartbeats can be auscultated (or listened to) in two ways: a hand-held ultrasound machine and a stethoscope. With the hand-held ultrasound machine, the earliest a fetal heartbeat can be heard is about 10 to 12 weeks’ gestation. Using a stethoscope, the heartbeat cannot be heard until 16 to 20 weeks’ gestation. Dr. Karlin performs abortions as early as about six weeks’ gestation. L.Informed Consent Outside the Abortion Context To obtain the informed consent of a patient to any surgical procedure, several steps are necessary. First, a number of details must be explained to the patient, including the necessity of the intended procedure, a complete description of the procedure and any potential surgical alternatives, potential short-term complications, potential long-term problems or disabilities, alternative methods of therapy and required follow-up care. Second, the patient must have an opportunity to ask questions. Finally, the person gathering the informed consent must assure herself that the patient has understood all the information. AB 441 includes all these steps. The informed consent law in place before AB 441 included all these steps, although it did not require that informed consent be obtained by a physician. In the opinion of defendants’ expert, Dr. John Gianopoulos, associate professor of obstetrics and gynecology at Loyola University Stritch School of Medicine in Chicago, Illinois, the prior law was adequate to insure informed consent for a woman obtaining an abortion. It is common for physicians to obtain informed consent information from patients before performing a surgical procedure, although there are instances in which this responsibility is delegated to a non-physician working with the doctor. M.Medical Assistance for Visits to Abortion Clinics Medical assistance under Medicaid in Wisconsin does not pay for abortions except in three situations: to save the life of the mother, in the case of rape or incest or to avoid permanent lifelong impairment to the woman. Pregnant women may qualify for Medicaid coverage during the pregnancy and up to 60 days thereafter if their income is between zero and 185% of the federal poverty rate. As administered in Wisconsin, this medical assistance would cover the cost of transportation to and from a physician for the initial pre-abortion visit required by AB 441, as well as the cost of the visit, but not the costs of the procedure itself (unless it falls within one of the specified exceptions) or the expenses of child care or lost wages. The state or federal legislatures could change the provision of such medical assistance at any time. N.Liability of Father for Assistance in Support of Child In cases of pregnancies by sexual assault and incest, it is psychologically damaging to inform a patient that the father may have parental responsibility for the child. When a patient’s fetus has been diagnosed with a lethal anomaly, it is both cruel and medically unnecessary to provide information about the father’s liability for assistance and the child care assistance offered by the state. O. Twenty-Four Hour Waiting Period In its Standards for Obstetric-Gynecologic Services, the American College of Obstetricians and Gynecologists recommends that after a woman has been counseled on the options of managing her unwanted pregnancy, she “should be allowed sufficient time for reflection before she makes an informed decision.” The college does not say that she should be “required” to reflect for a given period of time. P. Rape, Incest and Battered Women Rape and incest are vastly underreported crimes. Battered women are monitored closely by their abusers, meaning that these women must explain all absences from home. In 53% of cases in which a man batters his wife, he batters the children also. This may make a battered woman afraid to leave the house overnight. In 1995, 92% of the sexual assaults reported in Wisconsin were committed by someone known to the victim. The Madison Police Department does not release records of sexual assault cases to victims or to the general public. Under present policies, if a physician called the Madison Police Department to verify that a patient had filed a sexual assault report, the department would not confirm or deny the existence of such a report. The department has not discussed modifying its policies in response to AB 441, but would be open to doing so upon consultation with the city attorney if the injunction on AB 441 were lifted. It would take at least several weeks for the department to develop a policy. The Milwaukee Police Department issues written confirmations to adult victims of sexual assault who have filed reports with the department. These written confirmations are available between 8:00 a.m. and 4:00 p.m. Monday through Friday. Confirmations are not issued over the phone. The department is willing to modify its policies in response to AB 441. Q. Effects of Two-Trip Requirement of Mississippi Abortion Waiting Period Law On August 8, 1992, an abortion waiting period law similar to AB 441 went into effect in Mississippi when an injunction that had been imposed on the law was lifted. The law has been interpreted to require a woman to make two visits to an abortion provider, one for an initial counseling session and another at least 24 hours later for the procedure itself. R. North Dakota’s Experience with Abortion Waiting Period Law Since March 17, 1994, the state of North Dakota has had an abortion waiting period law similar in many respects to AB 441. The law requires a woman to receive certain information 24 hours before she has an abortion, but in contrast to AB 441, the law permits the information to be provided over the phone. When patients telephone Fargo Women’s Health Organization to set up an appointment, the organization asks its patients whether they would like to receive state-printed brochures containing the names of agencies providing alternatives to abortion and information on fetal development Only one or two percent of the organization’s patients accept these materials. A staff member explains to the patient the relative risks of abortion compared to full-term delivery, the medical risks of abortion, the name of the physician performing the abortion, how far into the pregnancy the woman is, her eligibility for medical assistance benefits should she have the child and the liability of her sexual partner for child support. Most women are impatient when listening to this information. The law has not reduced the number of patients seeking abortions in North Dakota. OPINION I. INTRODUCTION Few, if any, contemporary social issues evoke the emotion that abortion does. Considering the issue dispassionately requires great effort, bound up as it is with deeply held opinions about the role and function of women in society, religious and personal views about the relative importance of unborn and living persons, attitudes about sexual behavior, beliefs about whether decision-making concerning childbearing should be left to individuals or monitored by the government, and personal life experiences. Persons of commitment and tenacity on each side of the issue fight tirelessly to influence state and federal abortion policies. Common ground is rare. Although abortion remains intensely political, since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), abortion has moved beyond the realm of politics and taken on a constitutional component. Although abortion remains intensely political, courts now play an important role in articulating the constitutional limitations of abortion legislation. Roe recognized that the United States Constitution insulates a woman’s right to choose from majoritarian political pressure and prevents the states from overriding completely a woman’s right to make a decision concerning the unborn life she carries. At the same time, the Court acknowledged that the state has important interests in protecting maternal health and potential life. Id. at 150, 93 S.Ct. at 725. Since 1973, when Roe was decided, the Court has devoted considerable energy to delineating the competing interests and sorting out the proper relationship among them, but in reflection of the complexity of the issue and the lack of societal consensus, it has been unable to achieve a clear and lasting balance. II. ABORTION, THE CONSTITUTION AND THE RIGHT TO PRIVACY A. Fourteenth Amendment The Fourteenth Amendment of the United States Constitution provides: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. In the 130 years since the Fourteenth Amendment was ratified in 1868, state and federal courts have spent immeasurable time attempting to determine its exact meaning. Although the language of the amendment seems simple enough, the underlying rights that the amendment seeks to protect are fluid and difficult to pin down in precise terms. It is no elementary matter to say just what due process and equal protection mean as applied to the concrete factual situations of the late twentieth century. This case focuses on the meaning of the Fourteenth Amendment’s due process clause, the constitutional basis for a woman’s “right to choose.” (The Fifth Amendment, which protects citizens from actions by the federal government, contains a due process clause that provides similar textual support for the “right to choose.” Because this case involves a state law rather than a federal one, the analysis will focus on the Fourteenth Amendment exclusively.) The due process clause has come to embody two related, but distinct concepts: procedural due process and substantive due process. Procedural due process guarantees that before a state deprives an individual of life, liberty or property, it must afford that individual a fair decisionmaking process. For example, before a state sends one of its citizens to prison for committing a crime, it must offer that person a legitimate opportunity to challenge its reasons for doing so. Generally, that process comes in the form of a trial. Procedural due process is unconcerned with outcomes: as long as fair decisionmaking processes are offered, procedural due process is satisfied. Substantive due process is concerned with results. Rather than guaranteeing an individual the right to a fair decisionmaking procedure, substantive due process prevents the state from taking certain actions even if it does provide procedural safeguards. The state can offer all the process it wants, but there are certain areas outside the scope of legitimate state involvement that substantive due process prevents a state from entering unless it has compelling reasons and acts in the most narrowly tailored manner possible. Exactly what these areas are is a matter of considerable debate, because the text of the Constitution does not set any explicit limits on substantive due process rights. Critics argue that substantive due process allows courts to fashion rights out of thin air and to strike down pieces of legislation for no other reason than disagreement with the goal of that legislation. See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1113-24 (5th Cir.1997) (Garza, J., concurring) (tracing the history of the Supreme Court’s substantive due process jurisprudence and criticizing it). Although both the idea and the scope of substantive due process are hotly contested, the United States Supreme Court recognizes that certain governmental actions are incompatible with individual liberties and democratic principles and that substantive due process remains a valid component of constitutional jurisprudence. When the Supreme Court deems a right so important that it falls within the ambit of substantive due process, the court labels it a “fundamental right.” Courts give close scrutiny to legislation that affects fundamental rights, upholding a challenged law only if it promotes a compelling state interest and is written in a manner narrowly tailored to further that critical state goal.' At issue in this case is the “right to privacy,” a realm of personal liberty into which the government may not tread and a right that the Court has recognized as fundamental. The right to privacy is not announced explicitly anywhere in the Constitution and its boundaries are fuzzy. Yet over the course of this century, the Supreme Court has found the right to extend to such areas as child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); family relationships, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); contraception for married couples, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); marriage, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); and contraception for unmarried individuals, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). Most important for purposes of this case, the Court held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, that the right of privacy extended to “a woman’s decision whether or not to terminate her pregnancy.” Id. at 153, 93 S.Ct. at 727. The right to privacy is a firm component of the “liberty” protected by the Fourteenth Amendment. See Casey, 505 U.S. at 846, 112 S.Ct. at 2804 (“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.”); but see Sheldon Gelman, “Life” and “Liberty”: Their Original Meaning, Historical Antecedents, and Current Significance in the Debate Over Abortion Rights, 78 Minn. L.Rev. 585 (1994) (arguing that proper constitutional basis of right to abortion is not “liberty” but concept of “life” embodied in the due process clause; when the Constitution was drafted in 18th century, “life” encompassed more than mere biological existence but physical integrity and even a minimum quality of life as well). The right to privacy encompasses a person’s most basic decisions about family and parenthood, choices that are “central to personal dignity and autonomy.” Casey, 505 U.S. at 851, 112 S.Ct. at 2807. The liberty protected by the Fourteenth Amendment includes “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Id. B. The Supreme Court’s Abortion Jurisprudence 1973-1989, Roe through Webster When the Court determined in Roe, 410 U.S. 113, 93 S.Ct. 705, that the right to privacy extended to a woman’s decision to terminate her pregnancy, it did not hold that the state could not regulate abortion. The Court recognized that the state’s interests in protecting maternal health and potential life were compelling, valid governmental objectives and it sought to resolve the tension between a woman’s interests and the state’s interests through a trimester framework. During the first trimester of a woman’s pregnancy, the woman’s rights superseded the rights of the state; the state could not impose any restrictions on her decision to terminate the pregnancy. After the end of the first trimester, the state’s interests in maternal health became stronger. At this point, the state could impose regulations reasonably related to the protection of maternal health such as licensure of abortion providers and abortion facilities to insure safe, quality care but it could not promulgate regulations designed purely to protect fetal life. At the point of viability, roughly the beginning of the third trimester, the state’s interests in protecting potential life became compelling, thereby allowing the state to proscribe post-viability abortions except when necessary to preserve the life or health of the mother. See id. at 162-65, 93 S.Ct. at 731-33. The Court revisited Roe in 1983 and 1986, each time reaffirming the central tenets of its landmark 1973 decision. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (holding unconstitutional Pennsylvania regulation requiring woman to receive state printed materials discouraging abortion); Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I) (striking down law requiring all second trimester abortions to be performed in hospitals). The court returned to abortion issues again in 1989 in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), a case involving a series of regulations that Missouri had imposed on abortions. The case marked a turning point in the Court’s abortion jurisprudence. Justices Rehnquist, White and Kennedy questioned whether Roe’s trimester framework should be retained. In their view, the use of the framework was difficult to justify: it had given rise to a “web of legal rules that have become increasingly intricate” and it rested on the questionable premise that the state’s interest in protecting potential human life came into existence only at the point of viability. Id. at 518-19, 109 S.Ct. at 3056-57. Justice Scalia expressed the opinion that Roe should be overruled because the “cruel questions posed” in the abortion area are “political and not juridical.” Id. at 532, 109 S.Ct. at 3064 (Scalia, J., concurring in part and concurring in the judgment). Webster appeared to give a number of states confidence that more restrictive abortion regulations would be held constitutional. Pennsylvania, North Dakota, Utah and Guam passed new abortion legislation shortly after the opinion was issued. See Ruth Burdick, Note, The Casey Undue Burden Standard: Problems Predicted and Encountered, and the Split Over the Salerno Test, 23 Hastings Const. L.Q. 825, 828 n. 19 (1996). Pennsylvania abortion clinics and providers challenged that state’s statute immediately in a case that reached the Supreme Court in 1992 as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791,120 L.Ed.2d 674 (1992). C. Planned Parenthood of Southeastern Pennsylvania v. Casey Supreme Court observers watched Casey eagerly, expecting that it would provide the Court the opportunity to overrule Roe. But those who sounded the death knell of Roe were premature; the “essential holding” of Roe su