Full opinion text
EASTERBROOK, Circuit Judge. In 1995 Indiana enacted a statute making the woman’s informed consent a condition to an abortion. Ind.Code § 16-34-2-1.1. Even though the text of this law is materially identical to one held constitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881-87, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), a federal district court issued a preliminary injunction preventing the statute from taking effect. A Woman’s Choice-East Side Women’s Clinic v. Newman, 904 F.Supp. 1434 (S.D.Ind.1995). Two years later, the district court modified this injunction to permit the state to enforce most of the law, but it blocked enforcement of the requirement that information be provided “in the presence of the pregnant woman, [by] the physician who is to perform the abortion, the referring physician or a physician assistant” (§ 16-34-2-1.1(1)). See 980 F.Supp. 962 (1997). After four more years had passed, the judge held a trial and made permanent the injunction as modified in 1997. 132 F.Supp.2d 1150 (2001). By requiring information to be supplied “in the presence of the pregnant woman” — rather than by printed brochure, telephone, or web site — the statute obliges the woman to make two trips to the clinic or hospital. This raises the cost (both financial and mental) of an abortion. On the basis of studies concerning similar laws in Mississippi and Utah, the district court concluded that the higher cost will reduce by 10% to 13% the number of abortions performed in Indiana. Some of these women will travel to states that do not require two trips; others will forego an abortion; some who do have an abortion in Indiana will delay that procedure until the second trimester. These consequences show that the law creates an “undue burden” on abortion, the district judge held. Although by the time the district judge entered the permanent injunction we had concluded that the Mississippi study does not warrant condemnation of Wisconsin’s law (which like Pennsylvania’s requires two trips to the medical facility and a 24-hour wait), see Karlin v. Foust, 188 F.3d 446, 484-88 (7th Cir.1999), the district judge wrote that data from the Utah study, and a new analysis of the Mississippi data, require a different result. The judge also thought that experience in Indiana showing that the demand for abortion did not decline when information was provided on paper or over the telephone implies that the reduction in the number of abortions is attributable to higher cost (a bad reason) rather than to the statutory information (a valid reason). Indiana’s statute reads as follows: 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 25-23-1-1(b)), or a midwife (as defined in IC 34-18-2-19) 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 or drawing of a fetus; (ii) the dimensions of a fetus; and (iii) 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. When the litigation began, plaintiffs challenged not only the requirement that advice be delivered in person but also the medical-emergency exception, which they deemed insufficient because it lacks details found in the Pennsylvania statute. The district court certified the medical-emergency issue to the Supreme Court of Indiana, whose interpretation, see A Woman’s Choice-East Side Women’s Clinic v. Newman, 671 N.E.2d 104 (Ind. 1996), satisfied the district judge. See 980 F. Supp. at 966. Plaintiffs then dropped this objection, leaving only the advice requirement as a ground of contention Indiana makes much of the fact that its statute has never been allowed to operate as written. It relies on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for the proposition that, except in first amendment cases, a law may be held unconstitutional only when “no set of circumstances exists under which the Act would be valid.” Yet in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), without so much as a mention of Salerno, the Court held invalid, in a pre-enforcement challenge, an abortion statute that might have been construed by the state courts to have at least some proper applications. This leaves us with irreconcilable directives from the Supreme Court. The Justices have insisted that courts lower in the hierarchy apply their precedents unless overruled, even if they seem incompatible with more recent decisions. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). When the Justices themselves disregard rather than overrule a decision — as the majority did in Stenberg, and the plurality did in Casey— they put courts of appeals in a pickle. We cannot follow Salerno without departing from the approach taken in both Stenberg and Casey; yet we cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books. See also, e.g., Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014 (7th Cir.2002) (following Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964), even though it is incompatible with the rationale of more recent decisions). Troxel v. Granville, 530 U.S. 57, 85 n. 6, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), offers us a way out by calling the language in Salerno a “suggestion,” an approach not essential to Salerno’s judgment. Given the incompatibility between Salerno’s language and Stenberg’s holding, it is the language of Salerno that must give way. Still, to say that a claim is justiciable does not mean that we must ignore the fact that enforcement has not commenced. Plaintiffs rely on predictions about what is likely to happen if Indiana’s law were enforced as written. Because Indiana has been disabled from implementing its law and gathering information about actual effects, any uncertainty about the inferences based on other states’ experience and how that experience would carry over to Indiana must be resolved in Indiana’s favor. This, coupled with doubts about the role of predictions in constitutional analysis, turns out to be important, for reasons explained presently. Casey stated, and Karlin reiterated, that an informed-consent statute may have effects that differ from the written terms, and that those effects could in principle demonstrate that an innocuous-appearing law actually imposes an undue burden on abortion. But neither decision explained how such factual arguments are to be evaluated: before implementation or after?, using what standards? Normally a court asked to say that a statute will have forbidden effects asks only whether a proper outcome is possible; it does not hold a trial — and, if a district judge nonetheless takes evidence and makes findings, the appellate court will reexamine matters with a heavy presumption favoring the law’s constitutional application. See, e.g., Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124 (7th Cir.1995). One may say in response that these cases deal with rational-basis review, while abortion implicates fundamental rights. But laws that regulate, not abortion itself, but ancillary issues (such as informed consent), do not affect fundamental rights unless the ancillary rule creates an undue burden on the underlying right. How does the court handle factual disputes that bear on whether an undue burden has been created? It cannot simply assume that a fundamental right has been burdened; that begs the question. Stenberg shows that the undue-burden standard must be applied at the level of logic, and to the nation as a whole, rather than one state at a time. Nebraska forbade use of “intact dilation and extraction” (D & X), a method of late-term abortion. Stenberg believed that this ban would have unacceptable consequences because it would induce physicians to steer clear of other procedures similar to the D & X. Nebraska’s law therefore was held unconstitutional, as an undue burden on abortion, without the need for a trial. Meanwhile a trial had been held in Wisconsin, where the district judge found as a fact that the untoward consequences anticipated in Stenberg would not occur. Planned Parenthood of Wisconsin v. Doyle, 44 F.Supp.2d 975 (W.D.Wis.1999), affirmed under the name Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir.1999) (en banc), remanded, 530 U.S. 1271 (2000), decision on remand, 249 F.3d 603 (2001) (en banc). The Supreme Court vacated our decision without regard to the district court’s findings; it was of the view (as we likewise had concluded, 195 F.3d at 872-73) that constitutionality must be assessed at the level of legislative fact, rather than adjudicative fact determined by more than 650 district judges. Only treating the matter as one of legislative fact produces the nationally uniform approach that Stenberg demands. This worked against the partial-birth-abortion laws in Stenberg but has worked in favor of other laws: the Court has held it constitutional to prevent non-physicians from performing abortions, see Mazurek v. Armstrong, 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), without factual inquiries into whether other medical professionals could do the job as safely, and how much prices may be elevated by a physician-only rule. Findings based on new evidence could produce a new understanding, and thus a different legal outcome; the plurality implied this in Casey, as did we in Karlin. But if the issue is one of legislative rather than adjudicative fact, it is unsound to say that, on records very similar in nature, Wisconsin’s law could be valid (as we held in Karlin) and Indiana’s law invalid, just because different district judges reached different conclusions about the inferences to be drawn from the same body of statistical work. Because the Supreme Court has not made this point explicit, however, and because the undue-burden approach does not prescribe a choice between the legislative-fact and adjudicative-fact approaches, we think it appropriate to review the evidence in this record and the infer-enees that properly may be drawn at the pre-enforcement stage. The district court found that the two-visit requirement in Mississippi and Utah reduced the number of abortions performed in those states by about 10% compared with neighboring states that do not require multiple visits. The judge also found that the number of abortions performed in Indiana has not declined because of the advice given to women under Ind.Code § 16-34-2-1.1, though not necessarily in person (because that aspect of the statute has been enjoined). Indiana asks us to set aside these findings, but review under Fed.R.Civ.P. 52(a) is highly deferential, see Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), and we cannot say that the district court’s findings are clearly erroneous. The studies’ conclusions were hotly debated on both medical and statistical grounds, but the district judge dealt responsibly with these arguments pro and con, and his findings cannot be upset. But what happened in Mississippi and Utah, a question of historical fact on which appellate review is deferential, does not necessarily ordain what will happen in Indiana — or whether what is likely to happen in Indiana amounts to an “undue burden.” That admixture of fact and law, sometimes called an issue of “constitutional fact,” is reviewed without deference in order to prevent the idiosyncrasies of a single judge or jury from having far-reaching legal effects. Only the findings of historical fact are sheltered by Rule 52(a). Thus our consideration of the studies’ significance is not deferential. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (constitutionality of punitive damages is reviewed de novo); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (probable cause for a search or seizure is reviewed de novo in the absence of a warrant); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (factual disputes that determine constitutionality under the first amendment are reviewed de novo). Cf. Los Angeles v. Alameda Books, Inc., - U.S.-, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (without discussing the standard of review, all nine Justices' freely substitute their judgment for that of the district and appellate judges on the significance of an empirical study in a constitutional suit). See also Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229 (1985). By concluding that the empirical work had been carried out competently, the district judge established (for purposes of this litigation) that abortions dropped in Mississippi, compared to those in South Carolina, during the year after Mississippi enacted a statute requiring two visits. The authors of this study (and its replication in Utah) did not ask how Mississippi compares with Indiana. The study does not include a regression based on the sorts of variables, such as urbanization, income, average distance to an abortion clinic, average price of abortion, and so on, that might enable conclusions drawn from Mississippi to be extrapolated with confidence to other states. That is one reason why we held in Karlin that the Mississippi study was a poor basis for predicting what would happen in Wisconsin, which we thought more similar to Pennsylvania than to Mississippi. 188 F.3d at 485-86. That shortcoming could have been fixed in one of two ways. First, the authors could have conducted a more comprehensive study, with additional variables and regression coefficients that would reveal their effects. That was not done. Second, the authors (or other scholars) could have gathered data from other states to test whether (and, if so, how) state-specific characteristics affect the results. That was not done either. What has happened in Pennsylvania, Wisconsin, and the other states whose informed-consent laws require two visits? Did Mississippi prove to be a better predictor of Wisconsin than Karlin anticipated, or was the outcome in Wisconsin dissimilar? This record is silent on these matters. Mississippi and Utah, two states with a history of hostility to abortion and very few abortion providers (implying long travel times), may be poor models for other states. Indianapolis has multiple abortion clinics; another in Fort Wayne serves the northeastern portion of the state; women in the northwest and southeast can use not only local providers but also those just across the state lines in Chicago and Louisville. So just as in Kar-lin the application of the Mississippi data (and now Utah’s data) to a different state would be a leap of faith. Here is where the pre-enforcement nature of this suit matters. Plaintiffs did try to deal with another problem identified in Karlin: that the original Mississippi study did not try to separate the raw costs of a two-visit requirement from the effects of the information that was provided during the first visit. 188 F.3d at 486-88. The Supreme Court’s first two encounters with informed-consent statutes treated these laws as meddling in the physician-patient relation with no valid purpose, and no effect other than to heap pointless costs on women. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 442-49, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 759-65, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986). Casey overruled both of these decisions and held that states may try to persuade women not to abort their pregnancies. Maybe all the Mississippi study reveals is successful persuasion, we observed in Karlin. In this case the plaintiffs tried to separate the effect of information from the effect of making two visits. Since 1997 Indiana has been able to enforce the portion of its informed-consent statute requiring the provision of certain information to women who inquire about abortions. Yet the number of abortions has not declined. This shows, the district judge wrote, that the law lacks persuasive effect; and if a decline in abortions cannot be attributed to persuasion, then the cause must lie in some other and impermissible feature of the law. Yet this assumes what is to be proven: that Indiana is like Mississippi and Utah, so that the number of abortions would decline 10% or more if the law were enforced as written. Maybe what Indiana’s experience since 1997 shows is that Indiana differs from Mississippi and Utah and will not experience a substantial decline, with or without multiple visits. Or maybe what it shows is that presenting the information in person is critical to its persuasive effect. Our education system rests on the premise that information delivered orally, with an opportunity for give-and-take, “takes” better than information delivered exclusively in writing. Otherwise a university would simply mail a syllabus to the freshman class and ask the students to appear four years later for exams. So the fact that advice delivered in writing or over the phone is uninfluential need not imply that advice delivered in person will be uninfluential. Once again the fact that Indiana has been blocked from enforcing its law as written means that the record does not contain evidence needed for accurate assessment of that statute’s effects. Then there is an open question what the 10% reduction reflects. Let us suppose that abortions would decline 10% in Indiana if that state’s law were fully enforced. What would the decline signify? One possibility is that many women who strongly want an abortion have been blocked by the cost (in money and time) of multiple visits to the clinic, or because the more times the woman must be absent the greater is the likelihood that an abusive parent, spouse, or partner would discover what the woman has planned and intervene notwithstanding the availability of the emergency bypass, which the Supreme Court of Indiana held to encompass any kind of threat to the woman’s health or safety. See 671 N.E.2d at 108-09. Another possibility is that about 10% of all women who have abortions are on the fence between ending the pregnancy and carrying the pregnancy to term, so that even a modest cost tips the scales. If the former, then a two-visit rule might be deemed an undue burden; if the latter, the two-visit rule would not be an undue burden, for only a law that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Stenberg, 530 U.S. at 921, 120 S.Ct. 2597; emphasis added; quoting from the plurality opinion in Casey) is an “undue” burden. This record does not permit (and the district judge did not make) an inference either way about the reason for the decline in Mississippi and Utah. Perhaps this shortcoming could be rectified by studying the effects of changes in out-of-pocket outlays or travel time as prices change, or clinics open, close, or move locations, but the studies in this record do not address the question. Since 1992, when the plurality in Casey announced the “undue burden” standard, only two kinds of statute have flunked the test: a law forbidding the “intact dilation and extraction” (D & X) method of abortion (the subject of Stenberg) and a law requiring a woman to notify her husband before obtaining an abortion (discussed in Casey itself). Because the language used to describe the D & X also could be understood to prohibit other procedures that were common (and perhaps essential) to late-term abortions, Stenberg concluded that the law would forbid abortions altogether for substantial numbers of women. The notification statute did not forbid abortions, but the Court feared that it would come to the same thing for those women whose husbands are likely to respond violently to the notice (if not to any contact from an estranged spouse). The plurality explained: The spousal notification requirement is thus 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 abortion in all cases. 505 U.S. at 893-94, 112 S.Ct. 2791. This record does not suggest that any woman in Indiana faces an obstacle of that magnitude in visiting a clinic twice. As we have stressed, Indiana’s law has an emergency-bypass clause that has been authoritatively interpreted to cover any kind of physicaf or psychological risk to the woman. 671 N.E.2d at 108-09. Plaintiffs do not contend that this interpretation falls short of what Stenberg and Casey require for emergency-bypass opportunities. It is accordingly difficult to see how the sort of outcome that doomed the spousal-notification rule could condemn Indiana’s statute. This is not to say that a two-visit requirement could not create a burden comparable to a spousal-notice requirement. Quoting the district court, Casey’s plurality assumed that “for those women who have the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be ‘particularly burdensome.’ ” 505 U.S. at 886, 112 S.Ct. 2791. But it held these considerations insufficient to condemn the Pennsylvania statute. All that the record in the current case shows is that these costs are positive and have some effect — something that the plurality in Casey assumed. Likewise in Mazurek the Court assumed that a statute preventing nurses and other skilled medical personnel whose training falls short of the M.D. from performing abortions would increase the expense (and thus, by the Law of Demand, reduce the number) of abortions; this again was held insufficient to show invalidity even on the assumption that one legislative purpose was to curtail abortion. The record in this case does not show that a two-visit rule operates similarly to a spousal-notification rule by facilitating domestic violence or even inviting domestic intimidation. It shows nothing except a decline in the number of abortions in Mississippi and Utah — leaving open both the extent to which other states would experience the same effect and the reason why the effect occurs. This is not the sort of evidence that permits an inferior federal court to depart from the holding of Casey that an informed-consent law is valid even when compliance entails two visits to the medical provider. If Indiana’s emergency-bypass procedure fails to protect Indiana’s women from risks of physical or mental harm, it will be a failure in operation; it is not possible to predict failure before the whole statute goes into force. Justice Souter reached a similar conclusion when denying a request to set aside a post-Casei/ decision enforcing Pennsylvania’s statute. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 510 U.S. 1309, 114 S.Ct. 909, 127 L.Ed.2d 352 (1994) (in chambers). Like the third circuit, whose decision, 14 F.3d 848 (1994), he declined to disturb, Justice Souter concluded that Casey itself had resolved the facial challenge to Pennsylvania’s law. What remained was a challenge to the law in application, on a record showing how that law actually operated in Pennsylvania. 510 U.S. at 1311 & n. 3, 114 S.Ct. 909. Just so in Indiana. For reasons we have given, what transpired in Mississippi need not portend what will happen in Indiana. What is more, it would be incongruous to hold Indiana’s informed-consent law invalid on the basis of studies covering Mississippi and Utah that (to the district judge’s eyes) imply the ^-constitutionality of the Mississippi and Utah statutes, while the laws continued to be implemented in Mississippi and Utah. Relying on Casey, the fifth circuit has allowed Mississippi to enforce its statute, see Barnes v. Moore, 970 F.2d 12 (5th Cir.1992), and Utah’s statute likewise has been sustained. See Utah Women’s Clinic, Inc. v. Leavitt, 844 F.Supp. 1482, 1487, 1494 (D.Utah 1994), appeal dismissed in pertinent part for lack of jurisdiction, 75 F.3d 564 (10th Cir.1995). No one has asked these courts to hold the Mississippi or Utah statute invalid on the basis of the local experience; and if these laws remain enforceable despite the consequences demonstrated in this record, it is difficult to see why Indiana’s law should be unenforceable even though it is unclear whether similar effects would occur there. Indiana is entitled to an opportunity to have its law evaluated in light of experience in Indiana. And in the event the sort of effects that could make the burden undue — such as women deterred by the threat or actuality of violence at the hands of those tipped off by a preliminary visit— come to light in Indiana, then it will be informed-consent laws nationwide that must be reevaluated. For seven years Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the fifth circuit in Barms. No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey. Although Salerno does not foreclose all pre-enforcement challenges to abortion laws, it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate. What happened in Mississippi and Utah does not imply that the effects in Indiana are bound to be unconstitutional, so Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences. REVERSED For comparison, we reproduce the substantive portions of the statute at issue in Casey, 18 Pa. Cons.Stat. § 3205: (a)No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if: (1) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of: (i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion. (ii) The probable gestational age of the unborn child at the time the abortion is to be performed. (iii) The medical risks associated with carrying her child to term. (2) At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician or social worker to whom tire responsibility has been delegated by either physician, has informed the pregnant woman that: (i)The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it. (ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department. (iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted. (3) A copy of the printed materials has been provided to the pregnant woman if she chooses to view these materials. (4) The pregnant woman certifies in writing, prior to the abortion, that the information required to be provided under paragraphs (1), (2) and (3) has been provided. (b) Where a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessaiy to avert her death or to avert substantial and irreversible impairment of major bodily function. (c) ... No physician shall be guilty of violating this section for failure to furnish the information required by subsection (a) if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient. Pennsylvania thus requires essentially the same advise as Indiana, provided "orally” by the physician, 24 hours before the abortion. It is more restrictive than Indiana’s law in two ways: Pennsylvania requires a 24-hour waiting period versus 18 in Indiana, and it requires the physician to deliver the information while Indiana allows a range of medical personnel. The defense in subsection (c) of the Pennsylvania statute has no direct parallel in Indiana’s law, but the Supreme Court of Indiana has read the "medical emergency” proviso in Indiana’s law to achieve the same basic effect. See A Woman’s Choice — East Side Women’s Clinic v. Newman, 671 N.E.2d 104 (Ind. 1996). Neither side contends that any remaining difference between the statutes is material.
COFFEY, Circuit Judge, concurring. I. This case once again requires me to review the constitutionality of informed consent legislation in the context of the abortion industry. Seventeen year’s ago, I stated that a 24-hour waiting period enacted by the Illinois General Assembly was a reasonable and lawful means of ensuring that a woman has “at least a brief time to discuss and consider” the numerous moral, social, economical, practical, psychological, and medical factors “involved in reaching a mature, well-informed decision of whether or not to abort the pregnancy.” Zbaraz v. Hartigan, 763 F.2d 1532, 1552 (7th Cir.1985) (Coffey, J., dissenting). Similarly, I concluded three years later in another case from Illinois that the state is empowered to promote childbirth and discourage abortion on demand by requiring abortionists to advise women about the reasonable alternatives to abortion, just as the state may require physicians to notify their patients about the risks and alternatives to many other invasive medical procedures. See Ragsdale v. Turnock, 841 F.2d 1358, 1396-97 (7th Cir.1988) (Coffey, J., dissenting). Accordingly, for more than a decade, there has been authority for the view that a state legislature may require abortion clinics to provide expectant mothers “with a description of the procedure to be performed, an explanation of risks and possible complications, and a discussion of alternatives so that the woman can make a responsible enlightened choice” prior to terminating the life of her pre-born child. Id. at 1397. In today’s opinion, the majority of this panel embraces the dissenting opinions in Zbaraz and Ragsdale, rejects the abortion clinics’ facial challenge, and allows the state of Indiana to enforce its informed consent statute. Although the dissent criticizes the majority for reversing the district court and “findpng] flaws with the evidence on which the court based its factual findings” — findings which Judge Wood believes “should stand” regardless of “[w]hether this court is looking at the record de novo, under an abuse of discretion standard, or merely for clear error,” post at 711, 715 — I take issue with my colleague’s criticism, for the “undue burden standard” applicable in this case may be uniformly applied only if appellate courts independently inquire whether the trial judge’s findings of constitutional fact are firmly supported in the record and based upon a proper application of the law. See, e.g., Memphis Planned Parenthood Inc. v. Sundquist, 175 F.3d 456 (6th Cir.1999); see also Planned Parenthood v. Casey, 505 U.S. 833, 991 n. 6, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Scalia, J., dissenting). Judge Easterbrook succinctly and forcefully explains that the trial judge’s conclusion in this case involves a “leap of faith” that events which may or may not be occurring in Mississippi and Utah will be replicated in Indiana. Ante at 690. I add that the trial judge’s factual findings in this case are based on a faulty study by biased researchers who operated in a vacuum of speculation. As even the dissent recognizes, the “key” piece of evidence relied upon by the district court was a study published in the August 27, 1997 Journal of the American Medical Association (“JAMA”), post at 713, and was coauthored by a statistician employed by the Planned Parenthood-affiliated Alan Gutt-macher Institute. It is most obvious that the study fails to shed any light on the question before us today: Will Indiana’s abortion statute cause a decline in abortion rates in Indiana? The answer is “no, ” for the study is riddled with flatos and biases, one of the most serious being its failure to account for the effects that will result from the substantive differences between the scope of the “medical emergency” exception in the state of Mississippi’s statute as contrasted with the state of Indiana’s statute. Thus, it is logically impossible to draw upon the study of Mississippi’s legislation when predicting the future effects of Indiana’s legislation. A. I initially reject the notion that we must defer to the JAMA study because, according to the dissenting judge, the study “meets any conceivable standard for peer-review ” and was published in “one of the most highly respected journals in the medical field.” Post at 713. A party proffering expert testimony must always establish that it is reliable and relevant to an understanding of the issue before the court, Clark v. Takata Corp., 192 F.3d 750, 759 n. 5 (7th Cir.1999), and JAMA’s peer review policy is no guarantee of reliability. As one commentator has noted, JAMA may send a manuscript out to as many as ten reviewers “but it may actually be reviewed by only three, two, or even one. Furthermore, an article may appear in print even if a majority of JAMA’s reviewers recommends against publication, provided that the editor decides in its favor.” D. Murray et al., It Ain’t Necessarily So 151 (2001) (emphasis supplied). Moreover, the test for admissibility is not whether an article has been reviewed, or even well accepted, by one’s peers. According to the Supreme Court: “Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published.... The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, but not dispositive, consideration in assessing the scientific validity of a particular technique or methodology in which an opinion is premised.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (emphasis added). See also L. Noah, Sanctifying Scientific Peer Review, 59 U. Pitt. L.Rev. 677, 698 (1998) (“At best ... editorial peer review manages to filter out obviously sloppy work.”). Caution regarding the value of “peer review ” as a judicial gatekeeper is particularly important in the case of an abortion-related study published in JAMA. George D. Lundberg, the editor at the time of publication of the 1997 study relied upon by the plaintiffs in this case, has publicly stated that abortion is “a religious issue” which should be decided solely by the ivoman “after consultation loith the father (if possible), members of her family, perhaps a religious adviser, and the woman’s physician.” G.D. Lundberg, JAMA, AboHion and Editorial Responsibility, 280 JAMA 740, 740 (Aug. 26, 1998). Lundberg went on to assert that the abortion decision is “not the business of police, lawyers, courts, the U.S. Department of Health and Human Services, the Congress of the United States, various state legislatures, or anybody else except the individuals named above.” Id. The executive vice president of the American Medical Association, an organization which at one time was considered to be the voice of the vast majority of physicians and surgeons practicing in this nation, stated that Lundberg was terminated for “inappropriately and inexcusably interjecting JAMA into a major political debate that has nothing to do with science or medicine ” by choosing to publish a study on how college students defined “having sex ” in the midst of President Clinton’s impeachment proceedings. See D. Ballingrud, AMA Chief Defends Editor’s Firing, St. Petersburg (Fla.) Times, Feb. 23, 1999, at 3B. Relying on these facts, it is apparent that this JAMA study must be viewed with a jaundiced eye, for it was written by a statistician and published by an editor who are outspoken supporters of “abortion on demand, ” and thus cannot reasonably be classified as impartial and without prejudice or bias. B. Moreover, the faulty JAMA article cannot be utilized to serve as a reliable, trustworthy, and independent basis for predicting the effects of the Indiana legislation for the additional reason that neither the article nor anything else in this record accounted for the fact that a greater number of Indiana women with medical problems (as compared to similarly situated women in Mississippi) will avoid the burdens of Indiana’s notice-and-waiting provisions by qualifying for the state’s “medical emergency” exception. The trial judge concluded that the number of Indiana women who will find themselves unable to obtain abortions as a result of the notice- and-waiting provisions will be equivalent to the number of women in Mississippi who supposedly are foreclosed from having an abortion — approximately 10 percent of the relevant population. See 132 F.Supp.2d at 1175. However, as is evident from even a cursory reading of the statute, the exceptions to the notice-and-waiting requirements are far more broad in scope and more inclusive in Indiana than they are in Mississippi. As a result, even after attempting to accept the trial judge’s notion that properly performed regression analy-ses have accounted for all other differences between the female population in Indiana and Mississippi, id. at 1163-71, the breadth of the Indiana exception will obviously result in a greater number of Indiana women being excused from the statute’s requirements, and thus a lesser number of Indiana women will be burdened by Indiana’s requirements than the requirements in Mississippi The Supreme Court of Indiana in its decision broadly defines the term “medical emergency” as any physical or mental condition that is more severe and prolonged than those “lesser and regular conditions normally associated with pregnancy,” A Woman’s Choice v. Newman, 671 N.E.2d 104, 109 (Ind.1996), while the Mississippi legislature has narrowly defined “medical emergency ” as “that condition which, on the basis of the physician’s best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of major bodily function.” Miss.Code Ann. § 41-41 — 31(b). In Indiana, an abortion clinic may disregard the notice-and-waiting requirements if “the attending physician, in the exercise of her clinical judgment in light of all factors relevant to a woman’s life or health, concludes in good faith that medical complications in her patient’s pregnancy indicate the necessity of treatment by therapeutic abortion” without delay. Newman, supra at 111. On the other hand, in Mississippi at the time of the 1997 JAMA study, an abortion clinic was allowed to waive the notice-and-waiting requirement only in “medical emergencies to avoid the death of the woman or prevent peril of immediate or irreversible loss of major bodily functions.” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 656 (Miss.1998). See also Utah Women’s Clinic Inc. v. Leavitt, 844 F.Supp. 1482, 1491-93 (D.Utah 1994) (similarly interpreting Utah Code Ann. § 76-7-301(2)). Cf. Stenberg v. Carhart, 530 U.S. 914, 938, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). As we have pointed out above, because the statutory exception is much more expansive in Indiana than Mississippi, a greater number of Indiana women will be exempt from the limitation of their statute than similarly situated women in Mississippi, and thus I cannot agree that evidence of a 10 percent reduction in Mississippi’s abortion rate predicts that a similar reduction is on the horizon in Indiana. I cannot understand the dissent’s attempt to enlarge the scope of Indiana’s medical emergency exception by claiming that “the majority acknowledges [that] Indiana’s law has been construed to have an emergency by-pass provision that covers any kind of physical or psychological risk to the woman from any of its provisions, including presumably the ‘presence’ requirement.” Post at 708, n.2. In doing this, the dissent has mischaracterized the majority opinion as well as the Indiana Supreme .Court’s construction of the statute before us. We in the majority, when stating that Indiana’s emergency bypass has been “held to encompass any kind of threat to the woman’s health or safety,” ante at 691, are referring to the Indiana Supreme Court’s statement that the “medical emergency exception excuses a woman from the informed consent requirement when there is a significant threat to her life or health, physical and mental” but that “severe-but-temporary conditions in which an abortion is not the medically necessary treatment are not covered by the exception.” Newman, 671 N.E.2d at 111. “Federal courts must interpret a state statute as that state’s courts would construe it.” Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir.1998). In light of Newman’s interpretation of the emergency bypass provision, I disagree with the dissent’s misinterpretation of the legislature’s intent wherein it asserts that the bypass shall apply in situations when the alleged emergency determination is triggered by simple compliance with the 18-hour notice-and-waiting provisions, which will in turn expose the woman to either: (1) a temporarily greater risk of harm from an abusive parent, spouse, or partner; or (2) a temporary period of emotional distress, mental anguish, or trauma. See Newman, supra at 108-11. Furthermore, even if I were to ignore the decision of the Indiana Supreme Court and the many methodological flaws within the JAMA study, it is evident that the very language of the study disproves the theory that the effects of Indiana’s abortion law will be the same as Mississippi’s, for the study’s authors admit on the final page of their study that the burdensome effects of abortion legislation “may be greater in states that have relatively fewer abortion providers” (Mississippi) than in other states (Indiana). According to the authors: The availability of abortion providers is also important to consider. The effect of mandatory delay statutes necessitating 2 visits to a provider may be greater in states that have relatively few abortion providers. In Mississippi, there were only 8 abortion providers in the entire state in 1992 or 1.3 providers per 100,000 women aged 15 to 44 years.... [T]he large decline in abortion rates we observed in Mississippi may not occur in states with greater availability of abortion providers both within the state and among neighboring states. (Ex. 224 at 658.) The undisputed evidence in this record establishes that: (1) Indiana has eleven more abortion clinics than Mississippi; (2) Indiana women have much easier access to clinics in nearby states than Mississippi women; and (3) Indiana women, on average, live closer to abortion clinics than Mississippi women. More than 99 percent of Indiana women — but only 85 percent of Mississippi women — live within 100 miles of an abortion clinic. (Tr. 67-72). Thus, even if we were to accept the JAMA study at face value, we would be forced to accept the fact that Indiana’s law will be far less burdensome than Mississippi’s. Providing neither support nor an analysis for his ruling, the district judge found that “the Mississippi results did not correlate at all with distance or geography” and then somehow concluded that the effects of Indiana’s statute “are likely to be equivalent to the effects of the similar law in Mississippi.” 132 F.Supp.2d at 1175. The trial judge’s finding is beyond the realm of reasonable speculation and may best be classified as unworthy of credence. Comparing Indiana to Mississippi is like comparing a turnip to a loaf of bread. As the majority observes, neither the Mississippi study nor any other evidence cited by the plaintiffs establishes that the population and demographics of Mississippi and Indiana are similar in terms of “urbanization, income, average distance from an abortion clinic, [or the] average price of abortion.” Ante at 689. Nor is there evidence of similarity between Mississippi and Indiana in terms of their availability of social support services, attitudes towards abortion, respective success with adoption and abortion alternative programs, or countless other factors that might allow us to equate the two states with any degree of confidence. The dissent spends several pages arguing the proposition that “[o]nly by ignoring key points such as the number of women” in Mississippi “who willingly undertook the burden of seeking an abortion out-of-state, where they could have the entire procedure accomplished in one visit, rather than staying in-state and enduring the two-visit burden, can the majority come to the result it does.” Post at 715-16. The dissenting judge ignores the key fact that nothing in this record answers the critical question of why some Mississippi women left the state to abort their pregnancy. A woman might very well think twice about her momentous decision if she believed that her identity were to become known within her local community. On the other hand, we are cognizant of the fact that even a small increase in the cost might dissuade an already vacillating woman living near the poverty level. Since nothing in this record distinguishes “between those incidental effects [e.g., slightly increased cost or time delay] of the statute which make the right to choose more inconvenient or costly and those direct effects which actually prevent women from obtaining an abortion,” Eubanks v. Schmidt, 126 F.Supp.2d 451, 457 (W.D.Ky.2000), it is impossible to know whether “the waiting period, as opposed to some other factor or factors, caused the negative abortion trend in Mississippi.” Karlin v. Foust, 188 F.3d 446, 488 (7th Cir.1999). It also is impossible to come to a well-reasoned and logical conclusion based on the record before us whether the laws of the state of Indiana will have a similar impact as Mississippi’s laws. See id. For the reasons set forth above, it is apparent that the district court’s reliance upon the Mississippi data (the Henshaw study) to predict the effects of materially different legislation in Indiana (notice-and-waiting) piles a mountain of speculation upon a foundation of quicksand. I am convinced that the district judge erred when he relied on the biased JAMA study when searching for a way to enjoin Indiana’s abortion-control statute. See General Elec. Co. v. Joiner, 522 U.S. 136, 144-45, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (expert studies based on data that was “so dissimilar to the facts presented in this litigation ” were irrelevant and inadmissible); Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786 (expert studies that fail to establish “a valid scientific connection to the pertinent inquiry” before the court are irrelevant and inadmissible). II. A. Even if the plaintiffs had somehow been able to produce reliable evidence in support of the trial judge’s belief that Indiana’s abortion rates will decline 10 to 13 percent as a result of the state’s informed consent laws, Indiana’s statute would still pass constitutional scrutiny, for a law enacted that seeks to promote a legitimate state interest will be deemed valid unless, “in a large fraction of the eases in which the law is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo abortion.” Casey, 505 U.S. at 895, 112 S.Ct. 2791 (emphasis supplied). Accordingly, I write separately to explain my disagreement with the dissent’s contention that “we would still be required to enjoin” Indiana’s statute even if it blocked a much smaller percentage of Indiana women — “ ‘only’ 1%” of the population — from exercising their “right to choose.” Post at 708. In determining whether Indiana’s notice-and-waiting provisions are lawful, we must inquire whether women in Indiana seeking abortions, who are unable to qualify for any of the numerous exceptions to the law, will bear added costs and inconveniences from complying with the notice- and-waiting provision that are so burdensome that they will have the direct effect of preventing a “large fraction” of those women from obtaining abortions. See Casey, 505 U.S. at 894-95, 112 S.Ct. 2791; Eubanks, 126 F.Supp.2d at 456. I am of the opinion that the dissenting judge misinterprets Casey when she argues that “Casey made it clear ” that “we would still be required to enjoin [Indiana’s statute] if it affected ‘only’ 1%, the number presumptively affected by the spousal notification rule in Pennsylvania.” Post at 712. The Casey Court stated that it was enjoining Pennsylvania’s spousal notification law because a “large fraction” or a “significant number” of a subgroup of the one percent of tuomen who feared complying with the law were “likely to be deterred from procuring an abortion” — not because the law imposed some insubstantial burdens upon one percent of women in the state. Casey, 505 U.S. at 894-95,112 S.Ct: 2791. According to the Court: The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.... The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant .... Of course, as we have said [the Pennsylvania statute’s] real target ... is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid. Id. (emphasis supplied). In other words, Casey held that Pennsylvania’s law was invalid not because it imposed additional burdens upon one percent of the state’s women but rather because it effectively prevented a “large fraction” of women within that group of one percent of women from obtaining abortions altogether. See id. at 895, 112 S.Ct. 2791. The Casey plurality did not explain, and thus we refuse to peer into the dark abyss of speculation in an attempt to determine at precisely what point a fractional part of a group becomes an impermissibly “large fraction” and a statute becomes unduly burdensome. “To the extent I can discern any meaningful content in the ‘undue burden’ standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as to reduce significantly its incidence.” Id. at 992 (Sealia, J., dissenting). However, even assuming in the case before us that some number of women will be burdened by the law, it is clear that a law which incidentally prevents “some” women from obtaining abortions passes constitutional muster. Indeed, Casey upheld a parental notification law despite the district judge’s undisputed finding that, in “some” of the 46 percent of cases where a minor can neither obtain the requisite consent of a parent nor avail herself of the judicial bypass provisions, the law “may act in such a way as to deprive [the minor] of her right to have an abortion.” Planned Parenthood v. Casey, 744 F.Supp. 1323, 1356-57 (E.D.Pa.1990) (factual findings 237 and 255). Though the requirement was likely to prevent “some” minors from exercising their right to choose, the Court refused to interfere and ruled that “the one-parent consent requirement and judicial bypass procedure are constitutional.” Casey, 505 U.S. at 899, 112 S.Ct. 2791. The dissenting judge pushes the envelope and expounds a new theory of law without the citation of case law upholding the premise that a statute is unconstitutional if it prevents even one percent of the relevant population from obtaining an abortion, post at 712, and stretches the notion of substantive due process beyond reasonable limits. Were we to accept the dissent’s argument, we believe the Supreme Court would have found Pennsylvania’s parental consent statute to be unduly burdensome. But the Court chose not to strike down the Pennsylvania statute, and I believe it defies logic to argue that one percent of any group is a “large fraction” of that group. In light of the Justices’ repeated use of words such as “a significant number of women,” and “many women”; its estimate that millions of women would be burdened by a spousal notice law; and the most informative comments of Justice Stevens and Justice Scalia that restrictions are impermissible only if they are “severe, ” id. at 920, 112 S.Ct. 2791, and lead to “significant” reductions in abortion rates, id. at 992, 112 S.Ct. 2791, I am of the opinion that the challenged legislation before us is constitutional, even though, as the majority observes, the district court concluded that “the statute ... raises the cost (both financial and mental) of an abortion,” ante at 685, and “will reduce by 10% to 13% the number of abortions performed in Indiana.” See Memphis Planned Parenthood, 175 F.3d at 462-63. Cf. Okpalobi v. Foster, 190 F.3d 837, 354 (5th Cir.1999). B. My belief is further supported by Casey ’s forceful statements distinguishing between the constitutionality of mandatory informed consent laws (which are lawful) and mandatory spousal notification laws (which are not). Although under Casey, states may not enact spousal notification laws embodying views that are “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution,” Casey, 505 U.S. at 898, 112 S.Ct. 2791, “it does not at all follow that the State is prohibited from taking steps to ensure that [the choice to end a pregnancy] is thoughtful and informed.” Id. at 872, 112 S.Ct. 2791. It is incumbent upon the federal judiciary to respect basic principles of federalism and give considerable deference to a state legislature’s carefully reasoned decision to “enact rules and regulations designed to encourage [the woman] 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.” Id This record reflects that the Indiana General Assembly held a full panoply of hearings, engaged in extended floor debates, and considered numerous amendments offered by legislators prior to enacting the informed consent law before us today. Absent a clear constitutional violation, neither a federal district court nor an appellate court should ever take it upon itself to strike down legislation merely because it disagrees with the legislation enacted by democratically elected state representatives. Informed consent laws, having notice-and-waiting periods like Indiana’s, should thus be upheld, for the Supreme Court has held that the “idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision” concerning the life or death of the child. Casey, 505 U.S. at 885, 112 S.Ct. 2791 (emphasis supplied). See also Planned Parenthood v. Danforth, 428 U.S. 52, 67, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The Indiana General Assembly enacted its notice-and-waiting statute in an effort to alleviate a widespread problem. Witnesses at legislative hearings reported that literally hundreds of Indiana women were suffering serious regret and long-term physical, emotional, and psychological damage as a result of their choice to terminate their pregnancies without being properly informed about the risks, complications, and alternatives to the procedure. A Woman’s Choice v. Newman, 904 F.Supp. 1434, 1449 (S.D.Ind.1995). The intent of the legislature, according to the Supreme Court of Indiana, was to reduce the risk of abortion by “ensur[ing] that women receive the best information available” regarding the moral, social, psychological, and medical issues relevant to deciding whether to undergo the procedure. Newman, 671 N.E.2d at 111. Included in the information that must be provided to the patient is: (1) the name of the abortionist; (2) the nature of the proposed procedure; (3) the risks and