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Inc v. Hill

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

March 28, 2019

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.

          Paul M. Eckles ATTORNEY AT LAW

          Thomas M. Fisher INDIANA ATTORNEY GENERAL

          Bradley H. Honigman ATTORNEY AT LAW

          Diana Lynn Moers Davis INDIANA ATTORNEY GENERAL

          Michael M. Powell ATTORNEY AT LAW



         Plaintiffs 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.


         Plaintiffs 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.

         All 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.

         Glazer “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. ¶ 23.

         Defendants 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.

         On 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 sought.

         ISDH 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.

         The 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 initially determined.

         This 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 abortions.

         Defendants' 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 ...

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