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Judge lets South Bend abortion clinic challenge proceed

April 1, 2019

National healthcare and abortion providers seeking to open an abortion clinic in northern Indiana received a ruling in their favor last week when a federal judge denied the state’s motion to dismiss a complaint challenging the constitutionality of Indiana abortion clinic licensing regulations.

An Indiana Department of Health administrative panel last November rejected the application of Texas-based Whole Woman’s Health Alliance to open a South Bend abortion clinic, finding WWHA failed to meet requirements of having “reputable and responsible character” and that it didn’t disclose necessary information on its application.

WWHA and All-Options Pregnancy Resource Center sued in June 2018 as co-plaintiffs in a case against the state, challenging the constitutionality of Indiana’s broad swath of statutory and regulatory restrictions on providing and obtaining abortions. Defendants in the suit include Indiana Attorney General Curtis Hill, Indiana State Department of Health commissioner Kristina Box and others.

The defendants filed a motion to dismiss with prejudice WHHA’s complaint, contending three things: that the complaint should be dismissed based on “well settled abstention doctrines,” that the plaintiffs lacked standing to bring their claims, and that the attorney general was not a proper party in the proceedings. 

However, Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana denied the motion to dismiss last week.

In that motion, the defendants urged the court to abstain from exercising its jurisdiction over the case in light of the administrative proceedings on WWHA’s license application under Railroad Commission v. Pullman Company, 312 U.S. 496 (1941). Or, in the alternative, to defer to those proceedings under Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 817 (1976).

But Barker noted that even if their application were merited, neither Pullman nor Colorado River would entitle relief to the defendants in the present case.

“If Pullman or Colorado River apply, they apply by hypothesis only to so much of Plaintiffs’ complaint as overlaps with the administrative proceedings before ISDH. But those proceedings, at most, relate only to the ‘reputable and responsible character’ provision of Indiana’s abortion-clinic licensing regulations,” Barker wrote in a Thursday opinion. “That requirement is but one target … of the sweeping challenges Plaintiffs’ complaint advances.”

She further noted that the defendants’ failure to show their entitlement to relief justified the denial of their motion.

“That failure notwithstanding, neither Pullman nor Colorado River applies on the merits. As for Pullman, its second element is not satisfied because there is no reasonable probability that a state court ruling will obviate the need for a federal constitutional ruling … As for Colorado River, assuming it may apply to administrative proceedings, its threshold requirement of parallelism is not met.”

The federal judge also found error with the state’s contention that the patients of plaintiff physician Jeffrey Glazer did not exist because he did not “allege that he provides abortions Indiana at this time.”

Finding that assertion “simply wrong,” Barker ruled Glazer clearly had standing in the case as a board-certified obstetrician-gynecologist licensed to practice medicine by the State of Indiana, that he is an abortion provider, and that he sues on behalf of himself and his patients.

Lastly, the federal judge found that the claims brought against Attorney General Curtis Hill in his official capacity could stand within Ex parte Young, 209 U.S. 123 (1908).

Citing the 7th Circuit’s decision Doe v. Holcomb, 883 F.3d 971, 975, (2018) Barker noted the federal court does not read Doe to hold that because the attorney general cannot initiate criminal prosecutions, the AG is never a proper party to a lawsuit which challenges the constitutionality of criminally enforceable statutes. Rather, she noted, it reads Doe to hold that possible participation in a collateral criminal prosecution is insufficient to establish a connection with the enforcement of the underlying civil regulatory statute.

“It seems incredible and unsustainable to hold that the state officer responsible for defending criminal convictions secured under a statute does not have ‘some connection’ with the statute’s enforcement,” Barker wrote. “Thus, it is not the case that the Attorney General ‘would have no power to carry out’ an injunction invalidating the challenged statutes.”

In addition to its complaint, WWHA is also seeking a preliminary injunction and temporary restraining order to block Indiana’s licensing rules and requirements, which it contends are arbitrary and vague. 

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