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

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

June 28, 2017

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff,
v.
COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, MARION COUNTY PROSECUTOR, LAKE COUNTY PROSECUTOR, MONROE COUNTY PROSECUTOR, TIPPECANOE COUNTY PROSECUTOR, MEMBERS OF THE INDIANA MEDICAL LICENSING BOARD, JUDGE, MARION SUPERIOR COURT, JUVENILE DIVISION, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY

          SARAH EVANS BARKER, JUDGE

         INJUNCTION

         This cause is before the Court on the Motion for Preliminary Injunction [Docket No. 6], filed on May 18, 2017. Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“PPINK”) seeks to have Defendants Commissioner, Indiana State Department of Health, Marion County Prosecutor, Lake County Prosecutor, Monroe County Prosecutor, Tippecanoe County Prosecutor, and Members of the Indiana Medical Licensing Board (collectively, “the State”) enjoined from enforcing Senate Enrolled Act No. 404 (“SEA 404”), set to go into effect on July 1, 2017, which amends Indiana law to impose new conditions and regulations concerning the provision of abortion services to unemancipated minors.[1] The Court heard arguments on June 13, 2017. Having now considered those arguments, the parties' evidentiary and written submissions, and the controlling principles of law, we hereby GRANT Plaintiff's Motion for Preliminary Injunction.

         Factual Background

         I. Relevant Statutory and Regulatory Law

          Indiana Code § 16-34-2-1.1(a) provides that an abortion cannot “be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed.” If the woman seeking an abortion is an unemancipated minor, current law requires that the physician performing the abortion obtain the written consent of one of the minor's parents or legal guardians. Ind. Code § 16-34-2-4(a) (amended July 1, 2017). Indiana law provides a constitutionally-mandated “judicial bypass” procedure for the parental-consent requirement by which a minor may obtain an abortion without the consent or knowledge of a parent or guardian if she files a petition in the juvenile court located in the county where she resides or where the abortion is to be performed and demonstrates to the court's satisfaction either that she is sufficiently mature to make the abortion decision independently or that the abortion would be in her best interests. Ind. Code § 16-34-2-4(b), (d) (amended July 1, 2017). Once a petition is filed, the juvenile court must render its decision on the bypass request within 48 hours. Ind. Code § 16-34-2-4(e).

         Under the recently enacted legislation (SEA 404), an unemancipated minor is still permitted to seek a judicial bypass from a juvenile court and the court must still waive the parental-consent requirement if she demonstrates maturity or that it is in her best interests to obtain the abortion. Ind. Code § 16-34-2-4(b), (d) (eff. July 1, 2017). However, the amended law alters the judicial bypass procedure by adding a parental-notification requirement that provides in relevant part as follows:

Unless the juvenile court finds that it is in the best interests of an unemancipated pregnant minor to obtain an abortion without parental notification following a hearing on a [bypass] petition …, a parent, legal guardian, or custodian of a pregnant unemancipated minor is entitled to receive notice of the emancipated [sic] minor's intent to obtain an abortion before the abortion is performed on the unemancipated pregnant minor. The attorney representing the unemancipated pregnant minor shall serve the notice required by this subsection by certified mail or by personal service and provide the court with documentation of the attorney's good faith effort to serve the notice, including any return receipt for a certified mailing.

Ind. Code 16-34-2-4(d) (eff. July 1, 2017). Therefore, even if the juvenile court has found the unemancipated minor sufficiently mature to make the abortion decision independently, absent a best interests finding by the juvenile court, “the court shall, subject to an appeal …, order the attorney representing the unemancipated minor to serve the notice required under subsection (d).” Ind. Code § 16-34-2-4(e) (eff. July 1, 2017).

         SEA 404 also imposes new requirements on physicians performing abortions that must be followed before an unemancipated minor can obtain an abortion with parental consent. Under current Indiana law, a consenting parent is required to evidence his or her consent in writing. Ind. Code § 16-34-2-4(a) (amended July 1, 2017). However, under the amended statute, the physician performing the abortion must obtain government-issued proof of identification from the consenting parent as well as “some evidence, which may include identification or other written documentation, that provides an articulable basis for a reasonably prudent person to believe that the person is the parent.” Ind. Code § 16-34-2-4(a)(2), (3) (eff. July 1, 2017). SEA 404 further provides that the physician who obtains such consent must execute a sworn affidavit that contains a

[c]ertification that, to the physician's best information and belief, a reasonable person under similar circumstances would rely on the information provided by the unemancipated pregnant minor and the unemancipated pregnant minor's parent or legal guardian or custodian as sufficient evidence of identity and relationship.

Ind. Code § 16-34-2-4(k)(2) (eff. July 1, 2017). This affidavit must be included in the minor's medical record. Id.

         Finally, SEA 404 adds a new section to the current statute that provides that any person (other than the minor's parent, stepparent, grandparent, stepgrandparent, sibling, or stepsibling) who “knowingly or intentionally aid[s] or assist[s] an unemancipated pregnant minor in obtaining an abortion without the consent required” under Indiana law, (Ind. Code § 16-34-2-4.2(c) (eff. July 1, 2017)), is liable for damages, including punitive damages, attorney's fees, and court costs. Ind. Code § 16-34-2-4.2(d) (eff. July 1, 2017). The parties agree that this provision would prohibit PPINK and its physicians from providing an unemancipated minor information regarding out-of-state abortion services which ostensibly would not require parental consent or notice.

         Various penalties can be imposed on abortion providers and their employees for violating portions of SEA 404. A physician who performs an abortion intentionally or knowingly in violation of Indiana law pertaining to parental notice and consent commits a Class A misdemeanor. Ind. Code § 16-34-2-7(b). Additionally, a physician with an Indiana license who commits a crime that has a direct bearing on the physician's ability to practice competently or is harmful to the public or who knowingly violates any state law or rule regulating the medical profession is subject to discipline from the Indiana Medical Licensing Board. Ind. Code § 25-1-9-4(a)(2), (3). Likewise, abortion facilities, such as PPINK, which are licensed by the Indiana State Department of Health pursuant to 410 IAC 26-2-1, are subject to having their licenses revoked or other discipline imposed for a number of reasons, including “permitting, aiding or abetting the commission of any illegal act in an abortion clinic, ” (410 IAC 26-2-8(b)(1), (2)), or failing to have authorized individuals make entries in medical records. 410 IAC 26-7-2(b)(3).

         II. Plaintiff's Current Policies and Procedures

         A. Minor Abortions with Parental Consent

         PPINK is an Indiana not-for-profit corporation that operates a number of health centers in Indiana that provide reproductive health services and comprehensive sexuality education to thousands of women, men, and teens throughout the State. Beeley Decl. ¶ 3. Four of the health centers operated by PPINK in Indiana offer abortion services. Three of those centers, located in Bloomington, Indianapolis, and Merrillville, offer both surgical abortion services and abortions using only medication. Id. ¶¶ 4-5. The fourth center, located in Lafayette, provides only medication abortions. Id. ¶ 6. At PPINK, surgical abortions are available through the first trimester of pregnancy, or 13 weeks and 6 days after the first day of a woman's last menstrual period, and medication abortions are available through 70 days after a woman's last menstrual period. Id. ¶ 6. PPINK provides abortions to minors at its facilities that offer abortion services consistent with Indiana law. Id. ¶ 8.

         Under Indiana law, PPINK is required to provide any woman seeking an abortion certain state-mandated information at least 18 hours prior to the abortion. Ind. Code § 16-34-2-1.1(a)(1). PPINK provides this information at the woman's initial visit. At this same visit, the PPINK patient signs all the necessary paperwork, including the consent for the abortion and all other required documents. Beeley Decl. ¶¶ 10-11. If the patient is a minor and her parent consents to the abortion, the parent signs the consent and other required paperwork with the minor at this initial visit. Id. ¶ 12. PPINK currently requires both the parent and the minor to provide identification, preferably a photo ID, but does not require any additional forms of identification or other documentation to prove the parental relationship. Id. ¶¶ 13-14. At present, non-physician PPINK staff is responsible for reviewing the initial paperwork as well as the parent's and the minor's identifications because physicians usually do not see the patient until the time of the abortion and often are not present at the health center during the initial visit. Id. ¶¶ 10, 15.

         B. Minor Abortions Following Judicial Bypass

         While the large majority of abortions that PPINK's physicians perform for minors occur with parental consent, PPINK also performs abortions for minors who do not have a parent's consent and who have instead obtained a judicial bypass of the consent requirement as provided for under Indiana law. Beeley Decl. ¶¶ 9, 19. When a minor indicates to PPINK that she is considering an abortion, PPINK first counsels her to discuss the decision with a parent. If the minor indicates that she still wishes to obtain the abortion, PPINK again counsels her to try to obtain parental consent. However, in some cases, the minor informs PPINK staff that she does not want to or feels she cannot inform her parent(s) that she is pregnant and that she wishes to obtain an abortion. Id. ¶¶ 20-21. In this situation, PPINK provides to the minor the telephone number of the “bypass coordinator, ” informing her that the bypass coordinator is a woman who does not work for PPINK but who maintains a list of attorneys who can discuss with the minor the option of seeking a judicial bypass of the consent requirement in juvenile court and can also represent the minor in court, if she so chooses. Id. ¶ 24; Smith Decl. ¶ 6.

         The bypass coordinator, who is not an attorney, monitors a floating pool of Marion County attorneys who represent the minors in bypass cases, most of which matters are filed in the Marion Superior Court, Juvenile Division. Smith Decl. ¶¶ 2, 4-5. PPINK does not in any way sponsor the efforts of the bypass coordinator, and, in some cases, the bypass coordinator will be contacted by a minor who is seeking an abortion from a provider other than PPINK. Id. ¶ 6. Since October 2011, Indiana's bypass coordinator has been contacted by approximately 60 minors who expressed an interest in obtaining an abortion without parental consent, most of whom were 17 years of age. Id. ¶ 9. Not all of these minors ultimately pursued the bypass process to obtain an abortion in Indiana. Id. The bypasses that have been granted to PPINK's patients have generally been based on the juvenile court's finding that the minor was sufficiently mature to make the abortion decision independent of her parents. Beeley Decl. ¶ 26; Flood Decl. ¶ 6; Glynn Decl. ¶ 9.

         When contacted by a minor seeking an abortion without parental consent, the bypass coordinator outlines in general fashion the process of obtaining a judicial bypass and what must be demonstrated in court to be granted one. Beeley Decl. ¶ 11. In many cases, this conversation will last for some time, but occasionally the minor will want only basic information from the bypass coordinator and those conversations are brief. Id. ¶ 10. During this conversation, the bypass coordinator attempts to make sure that no one is forcing the minor to obtain an abortion and that the minor is certain about her decision. Id. ¶ 12. If the minor is interested in pursuing the judicial bypass procedure following this conversation, the bypass coordinator then refers her to an attorney from the pool who explains the bypass hearing procedures in more detail. Glynn Decl. ¶ 14.

         Generally, the minors who show interest in pursuing the judicial bypass procedure have not yet told their parents that they are pregnant and are seeking an abortion. Smith Decl. ¶ 14. Over the years, minors in this situation have indicated to PPINK and the bypass coordinator various reasons why they have not told their parents about their pregnancy and desire to seek an abortion, including fears of being kicked out of the home, of being abused or punished in some way, and/or that their parent(s) will attempt to block the abortion.[2] Id. ¶¶ 15-16; Beeley Decl. ¶ 22; Flood Decl. ¶ 9; Dr. Pinto Decl. ¶¶ 14-15, 19; Lucido Decl. ¶¶ 8-12. Other minors simply do not know where their parents are and do not have a legal guardian or custodian who can step in to fulfill the consent requirement. Beeley Decl. ¶ 23; Lucido Decl. ¶ 13. Whatever the particular reason, the young women consistently express fear that their parent(s) will discover that they are pregnant and seeking an abortion. Smith Decl. ¶ 18; Glynn Decl. ¶ 12; Lucido Decl. ¶¶ 8-13. Currently, the bypass coordinator informs the minors that no one involved in the bypass process will notify their parents that they are pregnant or seeking a bypass. Smith Decl. ¶ 18. This assurance will no longer be possible under SEA 404's notice provision.

         C. Referral Practices

         PPINK is regularly contacted by women, including minors, for abortion services and subsequently discovers, either during the initial telephone consultation or during the visit to one of its health centers, that it is unable to perform the abortion or that the individual might prefer to obtain an abortion elsewhere. In some cases, this is because the woman's pregnancy is past the first trimester (the time during which abortions are available in Indiana) or because there are other reasons why it would be desirable or necessary for the woman to obtain an abortion in another state. Beeley Decl. ¶ 27. In these circumstances, PPINK frequently informs the women, including minors, that they have the option to receive abortion services in states other than Indiana. Id. ¶ 28. PPINK is aware, for example, that there are abortion providers in neighboring states, including Illinois, Michigan, Ohio, and Kentucky, who offer abortion services into the second trimester. Id. ¶ 29. When applicable, PPINK informs those seeking abortion services of the availability of such services in other states. Id.

         Similarly, PPINK believes that SEA 404's parental notice requirement and identification/affidavit requirements are more stringent than comparable requirements in Indiana's neighboring states. Id. ¶¶ 30-31. PPINK would like to be allowed to inform unemancipated minors who seek abortion services after July 1, 2017 not only of Indiana's requirements, but also of the fact that other states may have less restrictive requirements. Id. ¶ 32. It is undisputed that doing so would subject PPINK and its staff to both civil liability and licensing sanctions under the amended statute.

         Legal Analysis

         I. Standard of Review

         To obtain a preliminary injunction, the moving party must demonstrate: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. of Health, 699 F.3d 962, 972 (7th Cir. 2012). If the moving party fails to demonstrate any one of these three threshold requirements, the injunctive relief must be denied. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008) (citing Abbot Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992)). However, if these threshold conditions are met, the Court must then assess the balance of the harm-the harm to Plaintiff if the injunction is not issued against the harm to Defendants if it is issued-and determine the effect of an injunction on the public interest. Id. “The more likely it is that [the moving party] will win its case on the merits, the less the balance of harms need weigh in its favor.” Id. at 1100.

         II. Likelihood of Success on the Merits A. Indiana Code § 16-34-2-4(d), (e)

         1. Nature of PPINK's Challenge

          In its Response Brief to PPINK's motion and again at oral argument, the State devoted significant time and attention to the fact that PPINK's challenge to SEA 404's parental-notification provision is what is known as a “pre-enforcement facial challenge, ” meaning, that PPINK has challenged the constitutionality of this statute prior to its implementation and without reference to any specific or individual application of the law.

         The State contends that because the nature of PPINK's challenge to SEA 404 relates to the statute's impact on abortion-seeking minors in Indiana-specifically, that the law's effect will place a “substantial obstacle” in the path of those minors-PPINK is obligated to present “actual evidence” of the law's “operational effect” as opposed to offering “mere hypothesis” of its “likely impact.” See Defs.' Resp. at 12-15. As the State contends, we cannot know what SEA 404's effects will be, much less if those effects will represent a substantial obstacle to abortion-seeking minors in Indiana, until after the law takes effect on July 1, 2017. It maintains further that, following the law's implementation, the correct path and forum for a challenge would be on an as-applied basis in the State's juvenile courts and on expedited appeal to the Indiana Supreme Court thereafter.

         In advancing this argument, the State has touched on an issue for which neither the Supreme Court nor the Seventh Circuit has provided crystal-clear guidance. It appears the State derived this standard from A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 693 (7th Cir. 2002), a case in which the Seventh Circuit reversed a district court's injunction restraining enforcement of an informed-consent provision requiring abortion-seeking women in Indiana to attend a second clinic visit so that certain information could be provided to them in person. In A Woman's Choice, the Seventh Circuit held that it was an abuse of discretion for the district judge to issue a pre-enforcement injunction of the two-visit provision prior to determination of the law's effects or the reasons for those effects. Id.

         More precisely, the Seventh Circuit found unpersuasive the evidence accepted by the district court establishing that similar two-visit provisions in Mississippi and Utah reduced by 10% the number of abortions performed in those states as compared to their neighboring states who did not require multiple visits. Though the district court concluded that a similar provision in Indiana would produce similar results, thereby creating an undue burden on abortion in Indiana, the Seventh Circuit concluded:

Because Indiana has been disabled from im1plementing 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.

Id. at 687.

         Prior to discussing this evidence, however, the Seventh Circuit noted the incongruity between the Supreme Court's decision in United States v. Salerno, 481 U.S. 739 (1987), which stated that, except in First Amendment cases, a law may be held facially unconstitutional only when “no set of circumstances exists under which the Act would be valid, ” and the Court's subsequent decisions in both Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) and Stenberg v. Carhart, 530 U.S. 914 (2000), where the Court, faced with pre-enforcement facial challenges, held invalid a statute forbidding the use of the “intact dilation and extraction” method of abortion (Stenberg) and a statute requiring a woman to provide spousal notification before obtaining an abortion (Casey). See A Woman's Choice, 305 F.3d at 687, 691. Judge Easterbrook, writing for the panel, described these cases as “irreconcilable directives from the Supreme Court, ” but concluded that, given their incompatibility, the language of Salerno must give way to the subsequent holdings in Stenberg and Casey. Though recognizing the justiciability of pre-enforcement facial challenges to abortion regulations in light of Stenberg and Casey, he nevertheless distinguished the magnitude of potential harm posed by the two-visit provision in A Woman's Choice as compared to the spousal-notification provision in Casey, stating that “[t]he 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.” Id. at 692.

         As we understand it, and as the Seventh Circuit described it, the severity and character of harm presented by certain abortion restrictions render them vulnerable to pre-enforcement facial challenges. And while it may be difficult to neatly sort out the restrictions that fall into this category and those that do not, our task is simplified here. The Supreme Court in Casey enjoined enforcement of a spousal-notification statute, finding that the effects of requiring spousal notice-which, in some cases, would include domestic physical and psychological abuse and obstruction-were simply too great to countenance. We find the same to be true here. As explained below, for many young women in Indiana, the requirement of providing parental notification before obtaining an abortion carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction. The State's argument that those seeking to challenge the law must wait until evidence of this type of harm accrues is simply incorrect. The Court need not sit idly by while those most vulnerable among us are subjected to unspeakable and horrid acts of violence and perversion, nor may we blind ourselves to the fact that for millions of children (including young women) in the United States the threat of such abuse is real. See e.g., Dr. Pinto Decl. ¶ 10.

         We pause, however, to acknowledge that the likelihood of such harm is not present in the large majority of cases. At least that is our hope and assumption. In well-functioning families, a child will find it both helpful and safe to discuss her pregnancy and the decision whether to bear a child with her most-trusted advisors and confidants, which group typically includes her parents. PPINK itself recognizes the importance of parental consultation within the ideal family structure, which, presumably, is the reason the organization advises every minor who expresses her desire to obtain an abortion to first discuss the matter with her parents. See Beeley Decl. ¶ 20. In fact, PPINK's data from fiscal year 2015 shows that 96.3% of minors who had abortions at PPINK did so with the legal consent of a parent or legal guardian. Id. ¶ 9. But we cannot limit our analysis or our concerns only to the majority of cases; for most minors, if past experience holds true, SEA 404's proposed amendments are neither restrictive nor relevant.

         The fact that minors in well-functioning families are not likely to face these problems does not alter the hardship created by the notice requirement on its face. We turn our analysis now to those minors described above, namely, those who face the possibility of interference, obstruction, or physical, psychological, or mental abuse by their parents if they were required to disclose their pregnancy and/or attempt to obtain an abortion. And, as discussed in detail below, that hardship is more than merely a state-created disincentive; rather, it represents a substantial state-imposed obstacle to the exercise of the minor woman's free choice. Given that “[t]he 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, we find that SEA 404's parental-notification provision will ...


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