The so-called “global assault” on Indiana’s abortion regulation scheme was back in court on Wednesday, with the state urging the 7th Circuit Court of Appeals to keep in place a stay of an injunction against several Indiana abortion provisions put in place over the summer. But at least one member of the appellate court seemed hesitant to render a decision given a high-profile abortion case pending at the U.S. Supreme Court.
Indiana Solicitor General Thomas M. Fisher argued on behalf of the state at the Chicago appellate court in the consolidated case of Whole Woman’s Health Alliance v. Rokita, 21-2480 and 21-2573. The plaintiffs, including Whole Woman’s Health Alliance, All-Options Inc. and Dr. Jeffrey Glazer, were represented by Rupali Sharma with The Lawyering Project.
In August 2021, Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana issued a 158-page ruling enjoining numerous Indiana abortion laws, including a physician-only requirement allowing only doctors to prescribe or perform a medication abortion, and a requirement that second-trimester abortions be performed only in a hospital or ambulatory surgery center.
Barker also upheld multiple Indiana abortion laws, including a law limiting the performance of first-trimester aspiration abortions to physicians, and a requirement that providers perform an ultrasound before an abortion and show the image to the patient.
Barker then denied the state’s request to stay her injunction against five laws, including:
- The physician-only law for medication abortions.
- The second-trimester hospitalization requirement.
- 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.
But the 7th Circuit imposed the stay in September, although Judge Diane Wood issued a sharp dissent blasting the majority’s position and state laws that, according to her, “piously purport to protect women’s health” while “chip(ping) away” at longstanding abortion precedent.
Wood was similarly tough during Wednesday’s arguments, telling Fisher she didn’t know how he could argue “with a straight face” that the state of Indiana has designed its abortion laws to protect the health of women. She contrasted the state’s physician-only requirement for medication abortions with the fact that state law does not mandate that childbirth take place under the oversight of a physician or at a hospital.
“To say that you need health provisions for a procedure that’s significantly safer (abortion) than something that you don’t use those health provisions for (childbirth) strikes me as disingenuous,” Wood said during a lengthy exchange with Fisher.
The solicitor general countered that he did not know of any insincerity behind Indiana’s abortion laws, not just based on his own view but also on his interactions with those who craft and support the laws.
But a bigger issue for the court was whether it should act on Whole Woman’s Health while the U.S. Supreme Court is considering the Mississippi case of Dobbs v. Jackson Women’s Health Organization, 19-1392. Dobbs challenges Mississippi’s 15-week ban on abortions, and many view the case as a possible vehicle to roll back the landmark abortion cases of Roe v. Wade and Planned Parenthood v. Casey.
Dobbs was argued in November, and a decision is expected by the end of the Supreme Court’s term in late June. Wood questioned whether the 7th Circuit should attempt to rule on an abortion issue with a potentially landmark decision coming relatively soon.
However, according to Sharma, the plaintiffs’ lawyer, the 7th Circuit needs to act now to ensure that the right to an abortion is vindicated.
Sharma pointed to previous testimony from Planned Parenthood representatives who said they had been contacted by women who are interested in and eligible for a medication abortion. But because of the physician-only law, they testified that those women have to wait for the procedure, which effectively prohibits them from receiving a medication abortion by pushing them past the gestational age limit.
Looking at Casey’s undue burden standard, Sharma said if the state has an asserted interest in protecting the health and safety of women, it must provide evidence that its laws further that interest. She argued that the state failed to produce such evidence, while there is evidence that the interests of women seeking an abortion in Indiana are being unduly burdened.
She gave the example of the ban on the use of telemedicine to prescribe an abortion-inducing drug. During the COVID-19 pandemic, Indiana widely expanded telemedicine access, but abortion care was excluded — even though, according to Sharma, there are studies showing few complications from virtual abortion care.
But if providers were permitted to offer abortion care via telemedicine, she argued, the availability of such care would change “dramatically.”
Fisher, however, argued that market forces also play a role in the availability of abortion care in Indiana, so every obstacle a woman faces cannot be attributed to the state. Some facilities don’t offer abortions regardless of the law, he said, adding that providers set their prices based on varying factors not attributable to the state.
Acknowledging the court’s concern about issuing a ruling before Dobbs, Fisher said the state was primarily asking the 7th Circuit to keep the stay in place and to address the state’s informed consent laws, including mandatory disclosures about fetal pain and “human physical life.” The informed consent laws, Fisher said, likely would not be affected by any ruling in Dobbs.
Judges Frank Easterbrook and Joel Flaum also sat on the panel, but the questioning came almost exclusively from Wood. The arguments lasted for 50 minutes.
The full audio of the arguments can be heard online.