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Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health

United States District Court, S.D. Indiana, Indianapolis Division

March 31, 2017

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff,
v.
COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH in his official capacity, MARION COUNTY PROSECUTOR, LAKE COUNTY PROSECUTOR, MONROE COUNTY PROSECUTOR, and TIPPECANOE COUNTY PROSECUTOR, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

          TANYA WALTON PRATT, United States District Court Judge

         This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to Federal Rule of Civil Procedure 65(a) by Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“PPINK”). (Filing No. 6.) PPINK filed this suit against the Commissioner of the Indiana Department of Health, and the prosecutors of Marion County, Lake County, Monroe County, and Tippecanoe County (collectively, “the State”), all in their official capacities. PPINK maintains that a provision of Indiana House Enrolled Act No. 1337 (“HEA 1337”), which went into effect on July 1, 2016, creates an undue burden on a woman's right to choose to have an abortion and is therefore unconstitutional. It seeks to enjoin this provision during the pendency of this litigation. The parties submitted evidence, and the Court held a hearing on PPINK's motion.

         The provision challenged by PPINK is found in Indiana Code § 16-34-2-1.1(a)(5). Prior to the enactment of this provision, women in Indiana were required to have an ultrasound before having an abortion, but they could have it on the same day as the abortion. Women were also required to have an informed-consent appointment at least eighteen hours prior to an abortion, during which they received state-mandated information regarding pregnancy and abortion. The provision challenged by PPINK (hereinafter, “the ultrasound law” or “the new ultrasound law”) now requires a woman to have an ultrasound at least eighteen hours prior to an abortion and at the same time she receives the informed-consent information otherwise required by the statute. The new ultrasound law combined two previously existing requirements - the ultrasound requirement and the eighteen-hour informed consent requirement.

         For the reasons explained below, PPINK is likely to succeed on the merits of its challenge to the new ultrasound law because it creates an undue burden on a woman's right to choose to terminate her pregnancy. “To determine whether the burden imposed by the statute is undue (excessive), the court must weigh the burdens against the state's justification, asking whether and to what extent the challenged regulation actually advances the state's interests.” Planned Parenthood of Wisconsin, Inc. v. Schimel, 806 F.3d 908, 919 (7th Cir. 2015). PPINK presents compelling evidence that women, particularly low-income women, face significant financial and other burdens due to the new ultrasound law. The State's primary justification for the law is to promote fetal life-that is, to convince women to choose not to have an abortion by having them view their ultrasound at least the day before the abortion rather than the day of the abortion. But it presents little evidence, and certainly no compelling evidence, that the new ultrasound law actually furthers that interest. Simply put, the State has not provided any convincing evidence that requiring an ultrasound to occur eighteen hours prior to an abortion rather than on the day of an abortion makes it any more likely that a woman will choose not to have an abortion. Given the dearth of evidence that the State's interest is actually furthered by the new ultrasound law, the burdens it creates on women seeking to terminate their pregnancies - which are significant even if not overwhelming - dramatically outweigh the benefits, making the burdens undue and the new ultrasound law likely unconstitutional. PPINK faces irreparable harm of a significantly greater magnitude if this provision is not enjoined than that faced by the State from an injunction.

         Accordingly, PPINK's motion for a preliminary injunction is GRANTED. (Filing No. 6).

         I. LEGAL STANDARD

         “A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “To obtain a preliminary injunction, a party must establish [1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.” Grace Schools v. Burwell, 801 F.3d 788, 795 (7th Cir. 2015); see Winter, 555 U.S. at 20. “The court weighs the balance of potential harms on a ‘sliding scale' against the movant's likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015). “The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Stuller, Inc. v. Steak N Shake Enterprises, Inc., 695 F.3d 676, 678 (7th Cir. 2012) (citation and internal quotation marks omitted). “Stated another way, the district court ‘sit[s] as would a chancellor in equity' and weighs all the factors, ‘seeking at all times to minimize the costs of being mistaken.'” Id. (quoting Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).

         II. BACKGROUND

         PPINK operated twenty-three health centers in Indiana on the date this action commenced, but financial considerations have required PPINK to close and consolidate several of its health centers. When this process is complete, PPINK will operate seventeen health centers across Indiana. Four of PPINK's seventeen health centers offer abortions services. Three of the health centers, located in Bloomington, Merrillville, and Indianapolis, offer both surgical and medication abortion services. The health center in Lafayette provides only medication abortions. The only providers of non-medically indicated abortion services in Indiana that are not affiliated with PPINK are located in Indianapolis.

         PPINK performs surgical abortions through the first trimester of pregnancy, which is thirteen weeks and six days after the first day of a woman's last menstrual period. Medication abortions are available up to nine weeks after the first day of a woman's last menstrual period. The only providers of abortion services in Indiana after the first trimester are hospitals or surgical centers that generally provide abortions only when the abortion is medically indicated because of fetal abnormality or a threat to the woman's health. Abortions at these locations are rare: in 2015, only 27 out of the 7, 957 abortions performed in Indiana occurred in a hospital or surgical center.

         The Indiana legislature enacted HEA 1337, which went into effect on July 1, 2016. This Act created several new provisions and amends several others regarding Indiana's regulation of abortions and practices related to abortions. In this action PPINK challenges just one of those provisions: the new ultrasound law. The parties do not dispute the key background facts related to the new ultrasound law. The Court will therefore briefly set forth the challenged provision and summarize the undisputed background evidence related to it.

         Indiana Code § 16-34-2-1.1(a) provides that “[a]n abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed.” Consent to an abortion is “voluntary and informed” if the information set forth in the statute is provided to the patient at least eighteen hours prior to the abortion. See Id. For example, the mandated information includes the nature of the proposed procedure; scientific information regarding the risks of and alternatives to the procedure; notification “[t]hat human physical life begins when a human ovum is fertilized by a human sperm”; the probable gestational age of the fetus at the time the abortion is to be performed, including a picture of the fetus and other information about the fetus at its current stage of development; notice that a fetus can feel pain at or before twenty weeks; and information regarding alternatives to abortion and other support services available. Ind. Code § 16-34-2-1.1(a)(1)-(2).

         Prior to the enactment of the new ultrasound law, the statute also provided that “[b]efore an abortion is performed, the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone, ” unless the woman elected in writing to not view the ultrasound or listen to the fetal heart tone. Ind. Code § 16-34-2-1.1 (repealed). The new ultrasound law changed the timing, but not the substance, of this requirement. It provides:

At least eighteen (18) hours before an abortion is performed and at the same time that the pregnant woman receives the information required by subdivision (1), the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone if the fetal heart tone is audible unless the pregnant woman certifies in writing, on a form developed by the state department, before the abortion is performed, that the pregnant woman:
(A) does not want to view the fetal ultrasound imaging; and
(B) does not want to listen to the auscultation of the fetal heart tone if the fetal heart tone is audible.

Ind. Code § 16-34-2-1.1(a)(5).

         Before the new ultrasound law, PPINK provided the state-mandated information to its patients at least eighteen hours prior to the abortion during an informed-consent appointment, which were offered at any of PPINK's seventeen health centers across the state. This allowed women who live a long distance from one of the four health centers that offer abortion services to make only one lengthy trip in order to obtain an abortion. These women would typically have an ultrasound on the day of the abortion and would at that time be offered the opportunity to view the ultrasound image and listen to the auscultation fetal heart tone, as required by law. The physician who would perform the abortion would interpret the ultrasound and answer any questions the woman might have.

         The new ultrasound law required PPINK to change its practices, given that ultrasounds must now occur during the informed-consent appointment, yet ultrasounds were only available at the four PPINK health centers that offer abortion services. Thus women living a significant distance from one of those four health centers were faced with either two lengthy trips to one of those health centers or an overnight stay nearby. PPINK attempted to ease this burden by offering ultrasounds at two additional health centers that do not offer abortion services. Specifically, PPINK purchased ultrasound equipment for its Mishawaka health center and trained a staff member at its Evansville health center to use ultrasound equipment already located there. Therefore, women can now travel to one of six PPINK health centers for their informed-consent appointment, which includes the mandated ultrasound, before travelling at least eighteen hours later to one of the four PPINK health centers that offers abortion services. Despite its ability to partially mitigate the burdens imposed by the new ultrasound law, PPINK contends that the new ultrasound law creates an undue burden on its patients' constitutional right to terminate their pregnancies.

         III. DISCUSSION

         To obtain a preliminary injunction, PPINK must establish the following four factors: “[1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.” Grace Schools, 801 F.3d at 795. The first two factors are threshold determinations; “[i]f the moving party meets these threshold requirements, the district court ‘must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied.'” Stuller, Inc., 695 F.3d at 678 (quoting Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). The Court will address the first two threshold factors in turn, before addressing the final two factors together.

         A. Likelihood of Success on the Merits

         The parties acknowledge that the propriety of issuing a preliminary injunction rests almost entirely on whether PPINK has a likelihood of success on the merits of its claim. The importance of this factor has led the parties to vigorously dispute both the proper legal test and how that legal test should apply to the evidence presented. The Court's analysis of these disputes begins with an overview of the constitutionally protected right for a woman to choose to terminate her pregnancy, before turning to the parties' disputes regarding the legal standard and its application.

         The Supreme Court has long held that “[i]t is a constitutional liberty of the woman to have some freedom to terminate her pregnancy.” Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (plurality opinion). This right is grounded in the right to privacy rooted in “the Fourteenth Amendment's concept of personal liberty.” Roe v. Wade, 410 U.S. 113, 153 (1973). But as the Supreme Court's “jurisprudence relating to all liberties . . . has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right.” Casey, 505 U.S. at 873. Therefore, “[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id.

         From the recognition that no rights are absolute follows the necessity of a legal test to determine whether a particular regulation that incidentally affects the exercise of a right is constitutional. In the context of abortion regulations, the undue burden test governs. The Supreme Court recently set forth this test as follows: “there ‘exists' an ‘undue burden' on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the ‘purpose or effect' of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'” Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2299 (2016) (emphasis omitted) (quoting Casey, 505 U.S. at 878 (plurality opinion)).

         Both the Supreme Court and the Seventh Circuit have made clear that applying the undue burden test requires balancing: “The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Id. at 2309; see Schimel, 806 F.3d at 919 (“To determine whether the burden imposed by the statute is undue (excessive), the court must weigh the burdens against the state's justification, asking whether and to what extent the challenged regulation actually advances the state's interests. If a burden significantly exceeds what is necessary to advance the state's interests, it is undue, which is to say unconstitutional.”) (citation and quotation marks omitted). Importantly, this balancing does not involve a determination of the applicable level of scrutiny and then an application of the State's justification to that level of scrutiny. See Whole Woman's Health, 136 S.Ct. at 2319 (“[T]he balancing in the abortion context should not be equated with the judicial review applicable to the regulation of a constitutional protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue.”). Instead, the Court must simply weigh the burdens against the benefits and determine if the burdens “significantly exceed[] what is necessary to advance the state's interest.” Schimel, 806 F.3d at 919.

         Also important when conducting the required balancing is the extent to which the Court defers to legislative findings or, instead, independently evaluates the evidence presented by the parties. The Supreme Court has made clear that courts should do the latter: “when determining the constitutionality of laws regulating abortion procedures, [the Supreme Court] has placed considerable weight upon evidence and argument presented in judicial proceedings.” Whole Woman's Health, 136 S.Ct. at 2310; see Gonzales v. Carhart, 550 U.S. 124, 165 (2007) (“The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”).

         1.The Proper Legal Standard

         PPINK maintains that this Court need only apply the undue burden test outlined above, which requires weighing the burdens imposed by the new ultrasound law against the benefits to the State's asserted interest. The State takes issue with courts balancing the burdens against the benefits of an abortion regulation in cases such as this one where the State's primary asserted interest is promoting fetal life. It argues that the Court should simply apply Casey, not the Supreme Court's recent decision in Whole Woman's Health, because the balancing in Whole Woman's Health “applies only to abortion restrictions designed to protect maternal health.” (Filing No. 35 at 15). This is true, the State says, because the asserted state interest in Whole Woman's Health was to protect maternal health, and the standards applied in that case are limited to that context; that type of balancing “is a poor fit for this type of regulation” because “the two sides' interests [here] are fundamentally at odds with one another. PPINK's goal is to help the woman carry out her decision to terminate her pregnancy and the State's goal is to persuade the woman to reconsider that decision.” (Filing No. 35 at 17.) PPINK replies that the State “fundamentally misconstrues Whole Woman's Health” because the Supreme Court in that case was not applying an alternative standard; it instead “definitively interpreted [and applied] Casey's ‘undue burden' standard.” (Filing No. 38 at 9.)

         The Court agrees with PPINK. The premise of the State's argument-that different standards are applied in Casey and Whole Woman's Health-is belied by those decisions. Not once in Whole Woman's Health did the Supreme Court suggest that different versions of the undue burden test apply depending on the State's asserted interest, or even that different versions of the test exist at all. Instead, the Supreme Court in the introduction of Whole Woman's Health explicitly stated that it was applying Casey's undue burden test. See Whole Woman's Health, 136 S.Ct. at 2299 (“We must here decide whether two provisions of Texas' House Bill 2 violate the Federal Constitution as interpreted in Casey.”). Given that the Supreme Court made clear in Whole Woman's Health that it was applying Casey, it inexorably follows that there are not two distinct undue burden tests applied in Casey and Whole Woman's Health.

         Three additional considerations place this question beyond dispute. First, the State points to the fact that the Supreme Court in Whole Woman's Health focuses on whether the regulations at issue benefit women's health. But the Supreme Court did so only because that was the state's interest that Texas argued that the challenged regulations furthered-not because it is the only context in which balancing is appropriate. This is evident because, when the legal standard is set out in Whole Woman's Health, it is not set forth in terms limiting it to laws justified on the basis of maternal health; it is often stated in general terms such that it clearly applies regardless of whether the state's interest is promoting women's health or otherwise. See Id. at 2309 (“The rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”). The Seventh Circuit has similarly stated the balancing test in general terms. See Schimel, 806 F.3d at 919 (“To determine whether the burden imposed by the statute is undue (excessive), the court must weigh the burdens against the state's justification, asking whether and to what extent the challenged regulation actually advances the state's interests.”); id. at 921 (“[A] statute that curtails the constitutional right to an abortion . . . cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute.”).

         Second, the Supreme Court in Casey applied the undue burden standard when evaluating both provisions justified as promoting women's health and those justified as promoting fetal life, but it did not at all suggest that the undue burden test applies differently to those provisions. See Casey, 505 U.S. at 877-78 (discussing abortion regulations “designed to persuade [a woman] to choose childbirth over abortion” and regulations “designed to foster the health of a women seeking an abortion” as both valid as long as they do not constitute an undue burden). If, as set forth in Casey, there is a singular undue burden test that applies regardless of the State's asserted justification, and if the Supreme Court in Whole Woman's Health applied the undue burden test in Casey, its articulation and application of that singular test is binding on this Court irrespective of the State's asserted justification for the new ultrasound law.

         Third, and perhaps most tellingly, the Supreme Court in Whole Woman's Health directly points to abortion regulations challenged in Casey that were not justified as promoting women's health as support for its conclusion that the undue burden test requires balancing the burdens against the benefits of the challenged law. The Supreme Court rejected the notion that “a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.” Whole Woman's Health, 136 S.Ct. at 2309. And in the very next sentence and the citations accompanying it, the Supreme Court made clear that this concept is not limited to the assessment of medical benefits, but to whatever benefits the State asserts that the challenged law provides. Specifically, the Supreme Court stated that “[t]he rule announced in Casey . . . requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer, ” and then it cited to portions of Casey where this balancing was applied to provisions-the spousal notification and parental consent provisions-that were not justified on women's health grounds. Id. (citing Casey, 505 U.S. at 887-98, 899-901). If the balancing discussed in Whole Woman's Health was limited to the context of abortion regulations justified as promoting women's health, the Supreme Court would not have cited to portions of Casey applying that balancing to abortion regulations with other justifications.

         For all of these reasons, the State's position that the balancing set forth in Whole Woman's Health that requires weighing the burdens and benefits of the challenged law applies only to abortion regulations justified as promoting women's health is based on the false premise that the undue burden test changes based on the State's asserted justification for the law. The Supreme Court and the Seventh Circuit have only discussed the undue burden test as a singular test, and this Court's application of that test is directed by how these courts have explicated and applied that test. It is to the application of the undue burden test that the Court now turns.

         2.Whether the New Ultrasound Law Creates an Undue Burden

         In Whole Woman's Health, the Supreme Court concluded that the district court “applied the correct legal standard” when it “considered the evidence in the record-including expert evidence, presented in stipulations, depositions, and testimony”-and it “then weighed the asserted benefits against the burdens.” 136 S.Ct. at 2310. This is therefore the approach the Court must take here. The Court will first make findings and evaluate the persuasiveness of the evidence regarding the burdens and benefits created by the new ultrasound law, including by discussing the parties' responses to each other's evidence. The Court will then weigh the burdens against the benefits.

         a. Burdens

         PPINK maintains that the new ultrasound law is burdensome because it requires women seeking an abortion who live significant distances from one of the six PPINK health centers that provide ultrasounds during the informed-consent appointments to make two lengthy trips to have an abortion-one for the informed-consent appointment and a second for the abortion itself. In order to evaluate the burdens imposed by the new ultrasound law, the Court must first define the group of women whose burdens must be analyzed.

         “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.” Casey, 505 U.S. at 894; see Id. (“The analysis does not end with the [subset] of women upon whom the [challenged] statute operates; it begins there.”). Thus the class of women on whom the Court must focus, as in Casey and Whole Woman's Health, is “a class narrower than ‘all women, ' ‘pregnant women, ' or even ‘the class of women seeking abortions.'” Whole Woman's Health, 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 894-95). As discussed in detail below, the new ultrasound law is a restriction for women for whom an additional lengthy trip to a PPINK health center for their informed-consent appointment acts as an impediment to their ability to have an abortion. More specifically, the burdened group is low-income women who do not live near one of PPINK's six health centers at which ultrasounds are available. This is because, as noted above, PPINK now only offers the informed-consent appointments at six rather than seventeen of its health centers, since the new ultrasound law requires the mandatory ultrasound to occur during this appointment.

         It is unsurprising that the financial burdens discussed below disproportionately impact PPINK's low-income patients, who constitute a significant portion of PPINK's patients receiving abortion services. Poverty experts generally use 200% of the Federal Poverty Line (“FPL”) as an approximation of the income necessary to survive on one's own. (Filing No. 24-2 at 4.) Many experts describe those at or below 100% of the FPL as “poor, ” and individuals between 100% and 200% of the FPL as “low-income.” (Filing No. 24-2 at 4.) Statistics from the 2016 fiscal year reveal the following regarding PPINK's patient's income levels relative to the FPL:

Income Range

Percent of Patients

Unknown

22%

0-100% FPL

37%

101-150% FPL

11%

151-200% FPL

8%

201-250 % FPL

5%

251% FPL

16%

(Filing No. 24-1 at 14). The income levels of PPINK's patients are similar to national statistics, which reflect that approximately 75% of abortion patients have incomes at or below 200% FPL, and 49% had incomes at or below 100% FPL. (Filing No. 24-2 at 5.)

         Having set forth the relevant group, PPINK's evidence regarding the burdens faced by this group due to the new ultrasound law are discussed in four overlapping categories: (1) increased travel distances; (2) delays in obtaining abortion services; (3) expert testimony; and (4) specific women who have reported adverse effects from the ultrasound law. The State's challenge, if any, to this evidence is discussed and evaluated in conjunction with each category.

         i. Increased Travel Distance to Informed-Consent Appointments

         Lengthy Travel.

         Many women will have to travel hundreds of miles to their informed-consent appointments now that PPINK can only offer these appointments at six, rather than seventeen, of their health centers. Such travel is especially difficult for low-income women who do not have access to a car. For example, women from Allen County-which contains Fort Wayne, the second most populous city in Indiana-have to travel approximately 174 miles roundtrip for their informed-consent appointment, assuming that they can get an appointment at the nearest ultrasound-equipped health center in Mishawaka. (Filing No. 24-1 at 13-14.) In fiscal year 2016, 251 women from Allen County obtained abortions from PPINK. Prior to the new ultrasound law, over 86% of women from Allen County who had an abortion with PPINK had their informed-consent appointment at the PPINK health center located in Fort Wayne. (SeeFiling No. 24-1 at 3-4.) All of these women-and women who similarly do not live near one of the six PPINK health centers offering ultrasounds-now face lengthy travel to their informed-consent appointments.[1]

         The State suggests that PPINK could avoid requiring its patients to undertake additional lengthy travel by simply accepting ultrasounds from other healthcare providers, which it currently does not permit. (Filing No. 35 at 32.) The State also contends that PPINK could mitigate the burdens caused by lengthy travel by simply making different business decisions, such as buying less expensive ultrasound machines so that more health centers can offer the informed-consent appointment. (Filing No. 35 at 33.) These arguments are two of the State's primary attempts to undermine PPINK's evidence of burdens and are addressed in turn.

         There are two difficulties with the State's position as to PPINK's pre-existing policies. First, the undue burden inquiry does not contemplate re-examining every pre-existing policy or practice of abortion providers to see if they could further mitigate burdens imposed by a new abortion regulation. The Seventh Circuit's analysis in Schimel illustrates this. When assessing the burdens imposed, the Seventh Circuit accepted Planned Parenthood's policies and then evaluated how the challenged law burdened the right to choose to have an abortion given those polices. It did not suggest that Planned Parenthood had an obligation to change its policies to lessen the burden.

         For example, the Seventh Circuit noted that Planned Parenthood in Wisconsin performs abortions for women who have been pregnant up to eighteen weeks and six days. See Schimel, 806 F.3d at 918. It recognized that delays in obtaining abortions caused by the challenged law would “push [some women] past the . . . deadline for Planned Parenthood clinics' willingness to perform abortions.” Id. (emphasis added). And it did not suggest that Planned Parenthood could provide later term abortions like another abortion clinic in Wisconsin offered; it instead counted this fact as a burden imposed by the challenged law, not as one caused by Planned Parenthood's policy. See Id. (“Women seeking lawful abortions that late in their pregnancy, either because of the waiting list or because they hadn't realized their need for an abortion sooner, would be unable to obtain abortions in Wisconsin.”).

         Accordingly, PPINK is correct that undue burden inquiry asks, “given the reality of how PPINK provides its abortion services, . . . is [there] an undue burden on its patients.” (Filing No. 38 at 13.) The State has not pointed to any case in which a court suggested that burdens created by a new abortion regulation were undermined based on the abortion provider's failure to change a pre-existing policy, and therefore the Court will not re-examine each pre-existing PPINK policy and determine whether, if it were changed, it would mitigate the burdens imposed by the new ultrasound law.

         Second, even if this were a proper consideration, the State's suggested policy change is not a feasible one. To support its position regarding PPINK's failure to accept ultrasounds from other medical providers, the State points to the deposition testimony of PPINK's medical director Dr. John Stutsman that he would not necessarily decline to permit outside ultrasounds, but that is PPINK's national policy. (Filing No. 35-4 at 27.) But as PPINK points out, the new ultrasound law requires that the ultrasound be provided “at the same time that the pregnant woman receives” the other mandated informed-consent information, see Ind. Code § 16-34-2-1.1(a)(5), and there is no evidence to suggest that a woman could receive that information at a non-PPINK hospital or healthcare facility. This is especially true given that, at the time of the ultrasound, the law requires the patient to provide the name of the physician performing the abortion, the physician's license number, and a telephone number at which they can be reached at any time. Ind. Code § 16-34-2-1.1(a)(1)(A). There is no evidence that an abortion patient could provide such information if she was not at a PPINK health center. Thus, the State's suggestion that PPINK could simply change its policy and begin accepting ultrasounds from other providers-even if it were a proper consideration-is not an available method to mitigate the lengthy travel that is now necessary for many women in Indiana.

         Like the State's position with regards to PPINK's pre-existing policies, its contention that PPINK could make different business decisions to mitigate the burdens caused by the new ultrasound law is unpersuasive. As an initial matter, the State has again failed to point to a case in which a court has discounted burdens imposed by a new ultrasound regulation because the abortion provider could have made better or different financial choices.

         To the extent this is a proper consideration at all, the State has failed to show that PPINK's business decisions are in any way causing the burdens at issue. For example, the State argues that PPINK could purchase cheaper ultrasound machines and therefore have them available at more than six health centers. (Filing No. 35 at 33-34.) PPINK's ultrasound machines cost $25, 000.00, and the State presents evidence that high-quality, portable ultrasound machines are available for as little as $4, 250.00 to $8, 500.00. (Filing No. 35-1 at 6). In response, PPINK's Director of Abortion Services, Forest Beeley, explains why PPINK purchases the $25, 000.00 machine from GE Healthcare. Specifically, she notes that this ultrasound machine comes with an extended warranty that cheaper machines do not have, and the contract with GE Healthcare includes planned maintenance, replacement parts, software updates, support, and a guaranteed 24-hour response time if there are issues, among other benefits. (Filing No. 38-1 at 3-4.) Moreover, the ultrasound machine integrates with PPINK's electronic record system, which is critical for when the ultrasound and abortion appointments occur at different health centers. (Filing No. 38-1 at 4.) Given all of these additional services and features that are in PPINK's view “essential, ” Ms. Beeley testifies that these ultrasound machines are the most economical available. (Filing No. 38-1 at 4.) Thus, while the State has pointed to a very specific purchase by PPINK and suggested they could make a better purchase decision, the evidence reveals that PPINK is making the most economical decision available for its needs.

         Moreover, given all the evidence presented, the Court credits the attestation of PPINK's President and CEO, Betty Cockrum, that “PPINK is unable to afford the expenses, both in terms of equipment and staffing, of providing ultrasound machines and technicians at all of its health centers.” (Filing No. 24-1 at 8.) Notably, PPINK reacted to the new ultrasound law by providing ultrasounds at two health centers at which they were previously unavailable. This undercuts any notion that PPINK is in any way not providing abortion services to the greatest extent possible; ...


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