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Marion, Lake, Monroe prosecutors won’t defend abortion law

May 2, 2018

Three Indiana prosecutors in counties with Planned Parenthood facilities have announced they will not defend the state in a recently filed lawsuit challenging a 2018 abortion law.

Terry Curry of Marion County, Chris Gaal of Monroe County and Bernard Carter of Lake County said Monday they have directed the Indiana Attorney General’s Office to concede the merits of Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al, 1:18-cv-1219, on their behalf. The suit — filed last week in the U.S. District Court for the Southern District of Indiana — challenges Senate Enrolled Act 340, which is scheduled to take effect on July 1.

SEA 340 would require abortion providers such as PPINK to report “all abortion complications,” as defined in Indiana Code section 16-34-2-4.7(a). The data would then be reported to the Indiana State Department of Health, which would submit it to the U.S. Centers for Diseases Control and Prevention for inclusion in the annual Vital Statistics Report.

The law would also require abortion clinics to submit to annual inspections, a requirement not imposed on other outpatient settings or hospitals.

The lawsuit — brought on behalf of PPINK by the American Civil Liberties Union of Indiana — alleges SEA 340 violates the Equal Protection Clause and seeks declaratory and an injunction, as well as costs and attorney fees. Those costs are part of the reason the three prosecutors are declining to defend the law.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Curry said in a Wednesday statement that also noted the state has paid nearly $300,000 in legal fees to the ACLU for lawsuits challenging unconstitutional abortion legislation.

Curry, Gaal and Carter are named in the suit because Planned Parenthood operates clinics in their counties. That means the prosecutors would be charged with enforcing the criminal aspects of SEA 340 — which can include possible jail time for noncompliance — if it is allowed to go into effect.

“By attaching criminal penalties to this legislation, the law would require our offices and law enforcement agencies to devote already limited resources to now policing health care providers.”The complaint against SEA 340 was filed less than one week after the 7th Circuit Court of Appeals struck down another Indiana abortion restriction, House Enrolled Act 1337. That law would have prevented a woman from terminating her pregnancy because of gender, race or disability. Also in April 2017, the Southern District Court enjoined a provision of HEA 1337 that would have required a woman to wait 18 hours to obtain an abortion.

“When we took office we swore a duty to uphold both the federal and state constitutions, and this law appears just as unconstitutional as the last few attempts to impose such restrictions,” Carter said in a statement.

Though 7th Circuit Senior Judge Daniel Manion conceded in his dissent to the HEA 1337 case that precedent required the panel to uphold a lower’s court decision to strike the law, he also said the U.S. Supreme Court should revisit its abortion precedent, including Roe v. Wade, 410 U.S. 113, 153 (1973).

Gaal maintained the prosecutors’ decision not to defend SEA 340 was not driven by personal beliefs, but rather by a desire to avoid “a futile legal battle that is a distraction from our important duties.” All three prosecutors are Democrats.

The other state agencies named as defendants will remain parties to the case. A spokesman for Attorney General Curtis Hill did not immediately respond to a request for comment.

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