In abortion regulation suit, judge’s split opinion lets some claims proceed

Laws regarding the regulation of abortion clinics in Indiana that were challenged by the operators of a South Bend clinic that opened last year were upheld in part by a federal judge’s ruling, but the suit also was allowed to continue in part.

Indiana Southern District Senior Judge Sarah Evans Barker on Friday issued a 121-page summary judgment order in the lawsuit filed in 2018 that challenged multiple Indiana abortion clinic regulations.

Barker in part granted summary judgment for the state after the matter was briefed again this year following the U.S. Supreme Court decision in June Medical Services v. Russo, 140 S. Ct. 2103 (2020). That June ruling struck down Louisiana laws regulating abortion clinics.

South Bend abortion clinic operators Whole Woman’s Health Alliance and other plaintiffs sued the state over regulations they claimed were arbitrary and overly burdensome. The clinic opened last year after Barker denied the state’s motion for a stay.

In her ruling in the case Friday, Barker issued a split decision on whether the state’s licensing regime for abortion clinics violates the 14th Amendment’s Due Process Clause. Her ruling granted summary judgment for the state on the following requirement challenges: licensing; reporting; admitting privileges; dosage and administration; facility requirements; disclosures regarding the disposal of fetal tissue; ultrasound; the 18-hour delay; and parental consent.

Barker denied summary judgment to the state, however, on these equal protection challenges: the physician-only law; the second-trimester hospitalization requirement; the in-person examination requirement; the telemedicine ban; the in-person counseling requirement; the mandatory disclosures related to fetal pain, the beginning of life, the physical health risks of abortion and the mental health risks contained in the Perinatal Hospice Brochure; the criminal penalties provision; and any and all provisions that were left unaddressed by the parties, including the specific portions of the judicial bypass provision, Ind. Code § 16-34-2- 4(b)-(e), regulating minors seeking abortion care as well as reporting requirements tailored to minors.

The judge kept alive all of the plaintiffs’ 14th Amendment equal protection challenges, granting plaintiffs summary judgment on all claims brought under that count except for plaintiffs’ claim that the Indiana abortion code constitutes impermissible gender discrimination, for which Barker ruled for the state.

Additionally, Barker ruled that summary judgment was warranted for the state on plaintiffs’ First Amendment challenges to certain Indiana Code provisions “relating to the disclosure of fetal tissue disposal as well as the physical health risks contained in the Perinatal Hospice Brochure.” Summary judgment was denied, however, on the plaintiffs’ other First Amendment claims.

Finally, Barker ruled for the state on plaintiffs’ vagueness claims regarding particular statutes.

The case is Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, et al., 1:18-cv-1904.

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