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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

December 3, 2014

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

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For Planned Parenthood of Indiana And Kentucky, Inc., Plaintiff: Gavin Minor Rose, Kenneth J. Falk, ACLU OF INDIANA, Indianapolis, IN USA; Helene T. Krasnoff, PRO HAC VICE, PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, DC USA; Talcott Camp, PRO HAC VICE, AMERICAN CIVIL LIBERTIES UNION, New York, N.Y. USA.

For Commissioner, Indiana State Department of Health, in his official capacity, Prosecutor, Tippecanoe County, Indiana, in his official capacity, Defendants: Ashley Tatman Harwel, OFFICE OF THE INDIANA ATTORNEY GENERAL, Indianapolis, IN USA; Heather Hagan McVeigh, Thomas M. Fisher, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN USA.

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ORDER ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT

Hon. Jane Magnus-Stinson, United States District Judge.

Presently pending before the Court are the parties' cross-motions for summary judgment. [Filing No. 71; Filing No. 73.] Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (" PPINK" ) asks the Court to enter summary judgment enjoining Defendants Commissioner, Indiana State Department of Health, and Prosecutor, Tippecanoe County (collectively, the " State" ) from enforcing Indiana Code § § 16-18-2-1.5(a)(2) and 16-21-2-2.5(b), alleging that these statutes are unconstitutional. [Filing No. 72 at 32-33.] In response, the State defends the constitutionality of the statutes at issue and asks the

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Court to enter summary judgment in its favor. [Filing No. 73.]

As applied to a clinic that PPINK operates in Lafayette (the " Lafayette clinic" ), PPINK challenges the constitutionality of Indiana Code § 16-18-2-1.5(a)(2), which altered the definition of " abortion clinic" to include any freestanding entity that " provides an abortion inducing drug for the purpose of inducing an abortion." It is undisputed that pursuant to the statutes at issue, PPINK must modify the Lafayette clinic to comply with certain surgical facility physical plant requirements, despite the fact that the Lafayette clinic only provides medication abortions and does not provide surgical abortions or perform any other surgical procedures.[1] PPINK contends that the statute violates the Fourteenth Amendment rights of its patients to choose an abortion, PPINK's own substantive due process rights, and PPINK's equal protection rights. For reasons detailed below, the Court concludes that PPINK is entitled to summary judgment on its equal protection claim regarding Indiana Code § 16-18-2-1.5(a)(2), as applied to the Lafayette clinic, but that disputed issues of material fact preclude entering summary judgment on the other claims.

As applied to its clinics in Lafayette, Indianapolis, Bloomington, and Merrillville, PPINK also challenges the constitutionality of Indiana Code § 16-21-2-2.5(b)--which provides that as of July 1, 2013, the Indiana State Department of Health (" IDOH" ) " may not exempt an abortion clinic from ... physical plant requirements." PPINK contends that the waiver prohibition statute violates its equal protection rights. For the reasons detailed below, the Court agrees and enters summary judgment in favor of PPINK with regard to Indiana Code § 16-21-2-2.5(b).

I.

Standard of Review

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

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In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has " repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them," Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

" The existence of cross-motions for summary judgment does not, however, imply that there are no genuine issues of material fact." R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, " [p]arties have different burdens of proof with respect to particular facts; different legal theories will have an effect on which facts are material; and the process of taking the facts in the light most favorable to the non-movant, first for one side and then for the other, may highlight the point that neither side has enough to prevail without a trial." Id. at 648.

II.

Background

A. Relevant Statutory Framework

The IDOH licenses and regulates hospitals, ambulatory outpatient surgical centers, birthing centers, and abortion clinics. Ind. Code § 16-21-2-2. Before July 1, 2013, an " abortion clinic" was defined as " a freestanding entity that . . . performs surgical abortion procedures." I.C. § 16-18-2-1.5. On July 1, 2013, an amended statute went into effect that expanded the definition of an " abortion clinic." The new law provided that, beginning January 1, 2014, any freestanding entity that " provides an abortion inducing drug for the purpose of inducing an abortion" is also considered an abortion clinic. I.C. § 16-18-2-1.5(a)(2). The statute went on to exclude from the definition of " abortion clinic" a " physician's office as long as . . . abortion inducing drugs are not the primarily dispensed or prescribed drug at the physician's office." I.C. § 16-18-2-1.5(b)(3)(B). The term " physician's office" is not defined in any relevant statutory provision.

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Pursuant to Indiana Code § 16-21-1-7, rules may be adopted by the IDOH as " necessary to protect the health, safety, rights, and welfare of patients" including " [r]ules pertaining to the operation and management of hospitals, ambulatory outpatient surgical centers, abortion clinics, and birthing centers" and " [r]ules establishing standards for equipment, facilities, and staffing required for efficient and quality care of patients."

The IDOH has established physical plant specifications for abortion clinics. 410 I.A.C. 26-17-2. Among other things, an abortion clinic must have common administration and authorized visitor areas, including a reception and information counter, a waiting area containing not fewer than two spaces for each examination and procedure room, at least one conveniently accessible toilet room containing a lavatory for hand washing, a conveniently accessible drinking fountain, interview space for private interviews, and general storage facilities for supplies and equipment. 410 I.A.C. 26-17-2(c). There are also physical plant requirements for clinical facilities, including procedure rooms removed from general traffic flow that are at least 120 square feet in size, a hand washing station within each procedure room, scrub facilities near the entrance of procedure rooms, a separate recovery room with certain specifications, a drug distribution station with certain specifications, and a toilet room containing a lavatory accessible from all examination and procedure rooms. 410 I.A.C. 26-17-2(d). Design requirements for abortion clinics include, among other things, at least one housekeeping room with a service sink and adequate storage, hand washing stations, an equipment room, and an antiscald device on the hot water supply. 410 I.A.C. 26-17-2(e). The applicable regulation provides that " [c]linics operating before July 1, 2006, are exempted from requirements of this section." 410 I.A.C. 26-17-2(f).

Indiana Code § 16-21-1-9 provides that the IDOH may generally " waive a rule" for good cause shown, but the " waiver may not adversely affect the health, safety, and welfare of the residents or patients." Pursuant to the statutory amendment effective July 1, 2013, however, the IDOH " may not exempt an abortion clinic from the requirements . . . including physical plant requirements." I.C. § 16-21-2-2.5(b). As such, the new law precludes physical plant waivers for abortion clinics even where the waiver would not adversely affect the health, safety, and welfare of residents or patients.

A person who knowingly or intentionally operates an unlicensed abortion clinic commits a Class A misdemeanor. I.C. § 16-21-2-2.5(c). Additionally, the Indiana Attorney General may seek an injunction or relief that includes a civil penalty not to exceed $25,000 for each day of unlicensed operation. I.C. § 16-21-5-1.

B. PPINK's Medication Abortion Only Clinic (Lafayette)

The following facts are undisputed, unless otherwise noted. PPINK operates 26 health centers and an administrative office in Indiana. [Filing No. 26-1 at 1.] PPINK provides medical services including Pap tests, cancer screenings, sexually transmitted disease testing and treatment, self-examination instructions, and a variety of birth control options. [Filing No. 26-1 at 1.]

PPINK's Lafayette clinic provides medication abortions but does not perform surgical abortions or any other surgical procedures. [Filing No. 26-1 at 2; Filing No. 26-2 at 5.] The Lafayette clinic has a part-time physician and is also staffed by an advanced practice nurse. [Filing No. 26-1 at 2; Filing No. 26-2 at 2.] The Lafayette

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clinic began providing medication abortions in August 2010. [Filing No. 26-1 at 4.] It only offers medication abortions when its physician is at the clinic. [Filing No. 26-2 at 2.] Its physician is qualified under state and federal law to prescribe the medication to induce a non-surgical abortion and is subject to state regulation the same as any other physician. [Filing No. 26-2 at 4.]

PPINK offers medication abortions to its patients up to 63 days after the first day of the woman's last menstrual period. [Filing No. 26-2 at 2.] PPINK uses the following protocol for a medication abortion:

o Eighteen hours after meeting with a physician or advanced nurse practitioner, the woman receives information required by state law;
o Medical history and vital signs are taken;
o An ultrasound and lab testing are performed;
o A physician prescribes and dispenses the medication mifepristone (sometimes known as RU-486 or by its trade name Mifeprex), which the woman takes in pill form at the physician's office within the clinic. Mifepristone works by blocking the hormone progesterone, which is needed to maintain a pregnancy.
o The woman is given written instructions and four misoprostol pills, which she is instructed to take in 24-48 hours by placing the pills between her cheeks and gums. The woman is not required to return to the clinic to take the misoprostol but, instead, is instructed to take it at a location of her choosing.
o The woman is given an appointment to return in approximately two weeks for an ultrasound to verify that the pregnancy has been terminated. Alternatively, a blood draw can occur at the clinic and a prescription can be written for a second blood draw two weeks later at a place of the woman's choosing to measure the change in HCG levels, which is the hormone produced by the placenta.
o The woman is given an antibiotic to assist in the prevention of infection and also receives a prescription for pain and nausea reducing medications.
o The woman is informed both orally and in writing about potential side effects from the medications. She is told to expect cramping and bleeding after taking the misoprostol and that in the event of serious side effects such as heavy bleeding or fever, she can call the clinic or PPINK's 24-hour emergency number.
o If the medication abortion is not complete, the woman is given options that may include either taking another dose of misoprostol or having a surgical abortion at one of the clinics that offers that procedure.

[Filing No. 26-2 at 2-4.]

In the twelve months preceding July 1, 2013, the Lafayette clinic saw more than 4,000 unduplicated patients. [Filing No. 26-1 at 4.] During that time period, 54 women chose to have a medication abortion at the Lafayette clinic and the clinic prescribed or dispensed other medications--primarily contraceptives--more than 10,000 times. [Filing No. 26-1 at 4; Filing No. 26-2 at 5.] Terminated Pregnancy Reports from January 1, 2011, through July 1, 2013, do not disclose any complications arising from medication abortions performed at the Lafayette clinic. [Filing No. 26-1 at 4-5.] Other PPINK clinics reported complications from medication abortions, such as retained tissue that required either a second

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dose of misoprostol or aspiration. [Filing No. 37-5.]

In the nine months from July 1, 2013, through March 30, 2014, the Lafayette clinic saw more than 3,000 unduplicated patients. [Filing No. 71-1 at 4.] During that time period, 72 women chose to have a medication abortion at the Lafayette clinic and the clinic prescribed or dispensed other medications--primarily contraceptives--more than 7,000 times. [Filing No. 71-1 at 4.] The Terminated Pregnancy Reports from the 72 medication abortions at the Lafayette clinic from July 1, 2013, through March 30, 2014, indicate that after taking the mifepristone at the Lafayette clinic, one patient called to report that she was not going to take the misoprostol that had been given to her to take at home. [Filing No. 71-1 at 4.] That patient refused to return to the clinic for any follow up. [Filing No. 71-1 at 4.] No other complications were reported from the medication abortions performed at the Lafayette clinic during that time period. [Filing No. 71-1 at 4.]

PPINK represents that its Lafayette clinic does not comply with several physical plant requirements for abortion clinics set forth in 410 I.A.C. 26-17-2. Because no surgical procedures are performed there, the clinic does not have scrub facilities, a recovery room or area with a recovery cart or lounge chair, or an emergency call system. [Filing No. 26-1 at 3-4.] PPINK has not provided evidence of the cost of compliance, but it notes that any monies spent would otherwise be used for patient care. The State has not taken a position regarding the current compliance of the Lafayette clinic with the abortion clinic physical plant requirements.

On July 15, 2013, PPINK submitted an abortion clinic licensing application to the IDOH for the Lafayette clinic and requested that the newly applicable physical plant requirements be waived for the Lafayette clinic, since it does not perform surgical abortions or surgical procedures. [Filing No. 1-1.] On November 14, 2013, the IDOH issued a Notice of License Application Denial and Denial of Waiver Requests regarding PPINK's Lafayette clinic. [Filing No. 52-1.] Specifically, the State reported that PPINK's Lafayette clinic would " qualify as an 'abortion clinic'" as of January 1, 2014, because it administers abortion inducing drugs. [Filing No. 50 at 3.] The State further reported that the IDOH interprets Indiana Code § 16-21-2-2.5(b) " to mean that every person who applies for a license to operate an abortion clinic for a period that will include all or some part of 'after December 31, 2013' must comply with all abortion clinic requirements, without exemption or waiver of any kind." [Filing No. 50 at 2.] Therefore, because PPINK has conceded that its Lafayette clinic does not comply with the physical plant requirements of 410 I.A.C. 26-17-2, the IDOH denied PPINK's application and waiver request for the Lafayette clinic. [Filing No. 50 at 3.]

C. PPINK's Surgical Abortion Clinics (Indianapolis, Bloomington, and Merrillville)

PPINK has clinics in Indianapolis, Bloomington, and Merrillville that provide first trimester surgical abortions. [Filing No. 26-1 at 1.] These clinics also provide non-surgical abortions, also known as medication abortions. [Filing No. 26-1 at 2.] These three clinics were licensed as abortion clinics before July 1, 2006, so historically they were not required to comply with the physical plant requirements pursuant to 410 I.A.C. 26-17-2(f).[Filing No. 71-1 at 1.] The State confirmed at ...


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