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For third straight year, judge blocks an Indiana abortion restriction

June 28, 2018

Following a familiar pattern of recent years, a federal judge Thursday halted an abortion restriction passed by the Indiana General Assembly just days before the law was to take effect. Marion County Prosecutor Terry Curry on Thursday in essence said he and others tried to warn the state.

“As we noted at the outset of this case, at taxpayer expense we have experienced an annual cycle of legislation, litigation, and the determination by a federal court that these laws are unconstitutional," Terry said in a statement after the ruling. "We would hope that sound legal analysis and common sense will prevail so that we can end this futile cycle.”

Southern District of Indiana Judge Richard Young granted an injunction sought by Planned Parenthood of Indiana and Kentucky blocking implementation of House Enrolled Act 340. That law would have required healthcare providers to report to the state complications arising from abortions. Young ruled Planned Parenthood would likely succeed on the merits of its argument that the statute is unconstitutionally vague.

“The Indiana General Assembly routinely attempts to chip away at Hoosiers’ ability to access safe and legal abortions in Indiana under the guise of patient safety,” said Christie Gillespie, President and CEO of Planned Parenthood of Indiana and Kentucky. “Hoosiers deserve meaningful laws that govern their health care and this sham of a law doesn’t qualify.”

Jane Henegar, executive director of the American Civil Liberties Union of Indiana, which represented PPINK, said this was the latest attempt by Indiana politicians to limit women’s reproductive rights guaranteed under Roe v. Wade. She said the proposed law would have placed undue and unconstitutional restraints on women and doctors.

“Defining abortion complications in such broad and uncertain terms makes it next to impossible for doctors to know what is or is not an abortion complication,” said Ken Falk, ACLU of Indiana legal director. “We are happy that the Court granted the injunction, as these restrictions would enforce strict requirements on physicians with threat of criminal charges.”

Young ruled in in Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, et al., 1:18-cv-01219, that “PPINK has satisfied its burden to obtain a preliminary injunction of Indiana Senate Enrolled Act No. 340.”

The order preliminarily enjoins the Department of Health, the Indiana Medical Licensing Board, and the prosecutors of Marion, Lake, Monroe and Tippecanoe counties, where Planned Parenthood has facilities, from enforcing the law.

Young's decision found the balance of harms and the public interest weighed in favor of an injunction blocking the law, and that PPINK had shown it would suffer irreparable harm if an injunction were not issued. Because Young also found Planned Parenthood would likely prevail on its argument that the statute is void for vagueness, his order did not express an opinion on PPINK’s due process and equal protection arguments.

Unlike 2016, when a law requiring disposal of fetal remains was blocked, or in 2017, when a judge halted a law that would have required women seeking abortions to have an ultrasound at least 18 hours prior, this year’s challenge to a new pending abortion restriction sparked in an open law enforcement feud.

Elected Democratic Prosecutors in Marion, Lake and Monroe counties, led by Curry, publicly appealed to Republican Attorney General Curtis Hill to concede the merits of the PPINK suit. The prosecutors in counties said in May that they would not defend the statute.

“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 statement that also noted at the time that the state had paid nearly $300,000 in legal fees to the ACLU for lawsuits challenging unconstitutional abortion legislation. Because PPINK again prevailed Thursday, it will be entitled to legal fees paid from the state treasury.

Lake County Prosecutor Bernard Carter said at the time the complications-reporting law appeared to be an easy call. “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,” he said.

Hill promptly fired back.

“While prosecutors Curry, (Chris Gaal of Monroe County) and (Bernard) Carter share the opinion that this case should not be defended, they also share no authority to make that call,” Hill said in a statement. “Mr. Curry’s ‘directive’ to me to concede the constitutionality of an Indiana statute has zero force or effect.”

“… 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.  

A spokesman for Hill did not respond to a message Thursday seeking comment on Young’s ruling.

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