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Judge blocks latest Indiana abortion restriction

July 11, 2018

For the third consecutive year, an Indiana law that would have raised restrictions on abortion rights was blocked by a federal judge. Abortion rights supporters say they expect more such attempts in the future, while the continuity of those federal rights has suddenly become an open question.

“I think that we can expect every year in the General Assembly, based on their history, that there will be some sort of anti-choice legislation introduced and likely passed in the state of Indiana,” Christie Gillespie, president and CEO of Planned Parenthood of Indiana and Kentucky, said at a news conference the day after Indiana Southern District Judge Richard Young issued an injunction blocking a law that would have required the reporting of “abortion complications.”

Young’s decision came one day after U.S. Supreme Court Justice Anthony Kennedy announced he would retire — a seismic shift in the judiciary that could subvert the 45-year precedent of Roe v. Wade. A crucial swing vote, Kennedy sided with the court’s more liberal justices who support abortion rights. Gillespie said she could not predict what Indiana lawmakers would do if the Supreme Court reverses precedent.

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 enjoined 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.

Attorney General Curtis Hill did not respond to multiple requests for comment on the ruling or confirm whether the state would appeal. But Hill, a Republican, previously made clear he would vigorously defend the law. He had strongly rejected calls from Democratic prosecutors named in the suit to cede the merits of the case.

Unlike in 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 an open law enforcement feud between Hill and prosecutors who said they would not defend the law.

“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,” Marion County Prosecutor Terry Curry 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.”

Lake County Prosecutor Bernard Carter joined Curry at the time the suit was filed in calling on Hill not to defend the statute.

“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.

Hill promptly fired back.

“While prosecutors Curry, (Chris Gaal of Monroe County) and 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.

Defending PPINK, the American Civil Liberties Union of Indiana successfully argued that the complications reporting provision in SEA 340 was so vague that no one knew what to report, without reaching the constitutional arguments.

“When dealing with a law that has criminal penalties and licensing penalties, due process demands specificity both to protect Planned Parenthood but also the people enforcing the law to understand what the law is,” ACLU of Indiana legal director Ken Falk said.

“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,” he said. “We are happy that the Court granted the injunction, as these restrictions would enforce strict requirements on physicians with threat of criminal charges.”•

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