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AG Hill: Prosecutors have no say in defending Indiana abortion law

May 3, 2018

Indiana Attorney General Curtis Hill is hitting back at three county prosecutors who have declined to defend the state in its most recent abortion-related lawsuit, saying the prosecutors have no authority to determine how the case proceeds.

Hill released a statement Thursday morning criticizing the Marion, Monroe and Lake County prosecutors’ Wednesday announcement that they would not defend the state in a complaint filed against Senate Enrolled Act 340, Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al., 1:18-cv-1219. The law, set to take effect July 1, would require abortion providers such as PPINK to report “all abortion complications” and to submit to annual inspections, a requirement not placed on other outpatient settings or hospitals.

The complaint alleges SEA 340 violates the Equal Protection Clause and seeks declaratory and injunctive relief, as well as costs and fees. Similarly, the prosecutors described SEA 340 as just the most recent in a line of Indiana abortion-related laws that will likely be overturned by the federal courts.

Last month the 7th Circuit Court of Appeals overturned a provision of House Enrolled Act 1337 that would have prohibited abortions based on gender, race or disability. Another provision of HEA 1337 that would have required women to wait 18 hours to obtain an abortion was enjoined in April 2017.

Marion County Prosecutor Terry Curry said the state’s unsuccessful defense of these laws has cost the state nearly $300,000 in legal fees paid to the American Civil Liberties Union of Indiana and has diverted other resources away from prosecutors’ offices. Curry, Chris Gaal of Monroe County and Bernard Carter of Lake County are named as defendants in the SEA 340 complaint because PPINK has clinics in their counties. The prosecutors are Democrats. Hill is a Republican.

“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.

The prosecutors said Wednesday they had instructed Hill’s office to concede the merits of the case on their behalf.  Hill, however, said only he has the power to determine how to defend SEA 340.

“While prosecutors Curry, Gaul and Carter share the opinion that this case should not be defended, they also share no authority to make that call,” Hill said Thursday. “Mr. Curry’s ‘directive’ to me to concede the constitutionality of an Indiana statute has zero force or effect.”

“The protestations of Mr. Curry and the other prosecutors regarding their being drawn into this type of litigation might find a more sympathetic ear with the plaintiff, the ACLU, which chose these three ‘defendants’ who, if they had the authority, would concede the case,” Hill continued. “How convenient and disingenuous.”

Hill ended by encouraging the prosecutors to ask the ACLU to dismiss from the case if they do not want to be named as defendants.

“As for the defense of the State of Indiana and the decisions on how to proceed in this case, I will make that call,” he said.  

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