Editor’s note: This story has been updated.
An injunction against several provisions of Indiana law that tighten access to abortions was stayed Wednesday by the 7th Circuit Court of Appeals. A dissenting judge, however, blasted the majority’s position and state laws that “piously purport to protect women’s health” while “chip(ping) away” at longstanding abortion precedent.
The battle in Whole Woman’s Health Alliance, et al. v. Todd Rokita, et al., 21-2480 and 21-2573, began in 2018 when Virginia-based Whole Woman’s Health Alliance filed the lawsuit fighting the denial of its license to open an abortion clinic in South Bend. The abortion provider challenged numerous provisions of Indiana abortion law on the grounds that the provisions imposed an undue burden on a woman’s right to obtain an abortion.
The case was whittled down before Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana on Aug. 10 issued an expansive ruling that included wins and losses for both the state and abortion providers. She then denied the state’s request to stay the enforcement of the injunction against five Indiana abortion laws, including:
- A physician-only law allowing only physicians to perform or prescribe a medication abortion.
- A second-trimester hospitalization requirement restricting the provision of second-trimester abortions to hospitals or ambulatory surgical centers.
- An in-person counseling requirement for all preabortion counseling.
- A telemedicine ban prohibiting health care providers from using telemedicine to prescribe an abortion-inducing drug.
- An in-person examination requirement, requiring physicians to “examine a pregnant woman in person” before providing a medication abortion.
The district court also enjoined laws requiring disclosures about fetal pain, the beginning of life and mental health risks of abortion, and various facilities requirements in 158 pages of findings of fact and conclusions of law.
Barker additionally upheld a dozen provisions of the Indiana abortion code, including laws that allow only physicians to perform first-trimester aspiration abortions and that require an 18-hour delay between the receipt of Indiana’s mandatory disclosures and an abortion procedure.
At the 7th Circuit, Indiana Attorney General Todd Rokita argued the district court misapplied Supreme Court and 7th Circuit precedent in her findings and conclusions, and that her ruling would prevent the state from enforcing laws designed to protect women and fetal health.
In staying Barker’s injunction, the 7th Circuit majority in a per curiam opinion held that, “All of the contested provisions have been in force for years,” so a stay would “preserve the status quo pending appellate resolution.”
“And Indiana has made the ‘strong showing’ on the merits necessary to receive a stay,” the 7th Circuit wrote.
State laws requiring abortions to be performed by physicians have been challenged before and upheld as constitutional by the U.S. Supreme Court, the 7th Circuit wrote. It also noted that laws requiring second-trimester abortions to be performed in a hospital or surgical center also have been challenged and sustained by the Supreme Court.
The validity of a requirement for in-person counseling was also established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 881–87 (1992), the 7th Circuit wrote. It noted that decision held that a materially identical informed-consent statute does not create an “undue burden” on access to abortion.
“Plaintiffs contend, and the district court found, that developments in videoconferencing make it possible to dispense with in-person meetings, that improvements in medicine make the use of hospitals or surgical centers unnecessary, and that nurses are competent to approve and monitor medication-induced abortions,” it wrote. “The district court concluded that these findings permit it to depart from the holdings of earlier cases. Yet the Supreme Court insists that it alone has the authority to modify its precedents … and we added in (A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684 (7th Cir. 2002)) that a district judge lacks authority to use new findings to depart from established law.”
Leaving the merits for resolution after full briefing and argument, the 7th Circuit concluded it would only hold in its Sept. 8 order that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues.
“To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court,” it concluded.
“The appellate court’s decision in our favor at this juncture signifies the overall strength of our legal position,” Rokita, a Republican, said in a Thursday news release. “We would expect our commonsense laws to be upheld as the appeal continues. Protecting the culture of life is the top priority of my office, and we will continue fighting for every life alongside our legislative partners.”
Rupali Sharma, senior counsel and director at The Lawyering Project, counsel for Whole Woman’s Health, said in a statement to Indiana Lawyer, “We are currently reviewing the court’s decision and considering all legal options to ensure pregnant Indianans can get the care they need with the dignity they deserve.”
Circuit judges Joel Flaum and Frank Easterbrook joined the unsigned per curiam opinion, while Judge Diane Wood dissented in what consisted of more than half of the appellate court’s order.
In an 18-page dissent, Wood wrote that she would deny the stay and allow the appeal to move forward. The dissenting judge blasted efforts by states in the past 50 years to enact laws that she said “chip away” at Roe v. Wade while “piously purporting to protect women’s health.”
“It is a mystery to me why the State is unwilling frankly to say that its laws regulating abortion are designed to discourage that procedure to the maximum extent that is constitutionally permissible,” Wood wrote in a footnote. “… Rather than insisting that its laws have only the high-minded purpose of protecting women’s health, in the face of overwhelming evidence that they have no such effect, it would be preferable from my standpoint to have an open debate about the outer reaches of the state’s power to implement laws that have the effect of burdening, or even eliminating, access to abortions.”