United States District Court, S.D. Indiana, Indianapolis Division
WHOLE WOMAN'S HEALTH ALLIANCE, ALL-OPTIONS, INC., and JEFFREY GLAZER, M.D., Plaintiffs,
CURTIS T. HILL, JR., in his official capacity, KRISTINA BOX, in her official capacity, JOHN STROBEL, M.D., in his official capacity, and KENNETH P. COTTER, in his official capacity, Defendants.
M. Eckles ATTORNEY AT LAW
M. Fisher INDIANA ATTORNEY GENERAL
Bradley H. Honigman ATTORNEY AT LAW
Lynn Moers Davis INDIANA ATTORNEY GENERAL
Michael M. Powell ATTORNEY AT LAW
ORDER ON MOTION TO DISMISS (DKT. 37)
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
have sued Defendants under 42 U.S.C. § 1983, challenging
as unconstitutional a broad swath of Indiana's statutory
and regulatory restrictions on providing and obtaining
abortions. Dkt. 1. Now before the Court is Defendants'
motion to dismiss Plaintiffs' complaint with prejudice.
Dkt. 37. See Fed. R. Civ. P. 12(b)(1), (6). For the
reasons given below, the motion is denied.
are Whole Woman's Health Alliance (WWHA); All-Options,
Inc. (“All Options”); and Dr. Jeffrey Glazer
(“Glazer”). WWHA “is a nonprofit
organization committed to providing holistic reproductive
healthcare, particularly abortion care.” Compl. ¶
14. WWHA has applied for a license to operate an abortion
clinic in South Bend, Indiana, a point discussed in greater
detail below. Further, WWHA “engages in advocacy,
education, and community outreach to eradicate abortion
stigma.” Id. ¶ 15. It “devotes
considerable time and resources to fighting restrictive
abortion laws . . . and helping patients and clients cope
with their burdensome impacts.” Id.
Options “is a nonprofit organization that . . .
promote[s] unconditional, judgment-free support for people in
their decisions, feelings, and experiences with pregnancy,
parenting, abortion, and adoption.” Id. ¶
19. It has an office in Monroe County, Indiana. Id.
¶ 22. All Options does not itself provide abortions,
but, “[w]hen a client seeks to terminate their
pregnancy, All-Options helps them [obtain an abortion] by
removing barriers to access” through financial
assistance and counseling. Id. ¶ 21.
“Ultimately, some of All-Options['s] clients must
travel [outside of Indiana] to obtain abortion care because
the burdens created by Indiana law make it too difficult to
obtain timely care in Indiana.” Id.
“is a board-certified obstetrician-gynecologist
licensed to practice medicine by the State of Indiana. Dr.
Glazer is an abortion provider. He intends to serve as the
Medical Director of WWHA's prospective South Bend clinic,
where he will provide abortion care.” Id.
are Curtis T. Hill. Jr., Attorney General of Indiana
(“the Attorney General”); Dr. Kristina Box,
Commissioner of the Indiana State Department of Health
(ISDH); Kenneth P. Cotter, St. Joseph County, Indiana,
Prosecutor; and Dr. John Strobel, President of the Medical
Licensing Board of Indiana. All Defendants are sued in their
official capacities only. Compl. ¶¶ 24-27.
August 11, 2017, WWHA applied to ISDH for a license to open
an abortion clinic in South Bend. See Ind. Code
§ 16-21-2-10(1). WWHA supplemented its application in
response to ISDH inquiries on October 6, 2017, and December
8, 2017. On January 3, 2018, ISDH denied the application. On
January 22, 2018, WWHA lodged an administrative appeal. The
administrative law judge (ALJ) issued a nonfinal order
holding the denial erroneous, but on December 18, 2018, the
ISDH Appeals Panel, the agency's “ultimate
authority” under Indiana administrative law,
see Ind. Code § 4-21.5-1-15, reversed; held
that ISDH's denial was not arbitrary or capricious; and
issued a final order denying WWHA's application. By
statute, WWHA had until January 17, 2019, to seek judicial
review of that denial, see Ind. Code §
4-21.5-5-5, but neither the record in this case nor our
review of Indiana public records reveals whether it has been
regulations provide in applicable part that it “may
deny a license to operate an abortion clinic for any of the
following reasons: (1) If the licensee or licensees are not
of reputable and responsible character. . . . (7) If the
application for a license to operate an abortion clinic or
supporting documentation provided inaccurate statements or
information.” 410 Ind. Admin. Code 26-2-5(1), (7). ISDH
predicated its initial denial on its determination that
“WWHA failed to meet the requirement that the Applicant
[be] of reputable and responsible character and the
supporting documentation provided inaccurate statements or
information.” Dkt. 43 Ex. 1, at 2. Specifically,
“[i]n response to [ISDH's] request to list all of
the abortion and health care facilities operated by WWHA, its
parent, affiliate, and subsidiary organizations, WWHA failed
to disclose, concealed, or omitted information related to
additional clinics.” Id.
Appeals Panel elaborated that WWHA had failed to be
forthcoming about its “affiliates.” Dkt. 67 Ex.
1, at 8. WWHA argued, and the ALJ had apparently agreed, that
it had properly disclosed all of its “affiliates”
as that term is used in the Indiana statutes governing
nonprofit corporations like WWHA, Ind. Code art. 23-17. Dkt.
43 Ex. 2, at 3. Relying on those and other scattered statutes
as well as a decision of the Indiana Court of Appeals, the
Appeals Panel disagreed, finding that several undisclosed
abortion providers were “affiliates” of WWHA.
Dkt. 67 Ex. 1, at 9. Accordingly, the Appeals Panel held,
“[WWHA] provided inaccurate statements to ISDH in
[WWHA's] supporting documentation and its license
application should be denied pursuant to 410 [Ind. Admin
Code] 26-2-5.” Id. The Appeals Panel did not
address whether, because of such inaccuracies or for other
reasons, WWHA was not “of reputable and responsible
character, ” 410 Ind. Admin. Code 26-2-5(1), as ISDH
lawsuit was filed on June 21, 2018. The complaint attacks as
violative of the First and Fourteenth Amendments to the
Constitution virtually or actually the entire universe of
Indiana abortion regulations, which, the complaint alleges,
serve no medical or other legitimate regulatory goal but
instead exist solely to burden provision of and access to
motion to dismiss contends that Plaintiffs' complaint
should be dismissed with prejudice “based on
well-settled abstention doctrines”; because Plaintiffs
“lack standing to bring their claims”; and
because the Attorney General “is not a proper party and
should be ...