Indiana ordered to pay $182K in abortion case attorney fees

The state of Indiana is on the hook for more than $182,000 in attorney fees and costs related to a long-fought legal battle over a controversial abortion law that went all the way to the U.S. Supreme Court.

Southern Indiana District Judge Tanya Walton Pratt on Tuesday granted Planned Parenthood of Indiana and Kentucky’s request for $182,499.73. Represented by the American Civil Liberties Union of Indiana, PPINK sought $179,977.80 in attorney fees and $2,521.93 in costs.

The fees derive from litigation against the 2016 House Enrolled Act 1337, which, had it taken effect, would have enacted three new provisions to Indiana abortion law: a prohibition on abortions based on gender, race or genetic abnormality; a requirement that abortion providers inform patients of those anti-discrimination policies; and a requirement that fetal remains be disposed of as a “deceased human body.”

Pratt entered a preliminary injunction against HEA 1337 – signed into law by then-Gov. Mike Pence – in June 2016, and over the next three years, the anti-discrimination and fetal remains provisions of the law wound their way through federal appellate courts. Earlier in the case, the state conceded that if the anti-discrimination provision was found to be unconstitutional — which it was — then the information dissemination provision would likewise be unconstitutional.

A divided panel of the 7th Circuit Court of Appeals upheld the injunction, with Judge Daniel Manion dissenting on the fetal remains statute. The 7th Circuit also split on the denial of a petition for en banc review.

The state then submitted a writ of certiorari in October 2018, and the case was distributed for conference among the federal justices 15 times. The high court’s ruling finally came in May 2019, when Supreme Court reversed the injunction against the fetal disposition ruling.

“This Court has already acknowledged that a State has a ‘legitimate interest in proper disposal of fetal remains,’” the Supreme Court held in a per curiam opinion, citing Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 452 n.45 (1983). “The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s (fetal) disposition law.”

But the high court let stand the injunction against the anti-discrimination provision of HEA 1337.

In awarding PPINK the full fees and costs it requested, Pratt rejected the state’s contention that PPINK’s lodestar amount should be reduced by 50% to account for the fact that the plaintiffs only prevailed on one of their claims.

ACLU attorneys Ken Falk, Gavin Rose and Jan Menz worked on the issues of anti-discrimination, information dissemination and fetal disposition, respectively, Pratt wrote.

“The State’s 50-50 argument ignores not only the time spent on the information dissemination provision, but also the reasonable attorneys’ fees billed for travel time to Chicago, Illinois for the Seventh Circuit argument for this case,” the judge said. “Under the State’s 50% proposition, the State would pay PPINK’s attorneys for the trip to Chicago, but not the return trip.”

The case is Planned Parenthood of Indiana and Kentucky, Inc., and Carol Dellinger M.D. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-763.

The judgment adds to the $1.4 million-plus in legal fees taxpayers have paid in recent years to ACLU of Indiana, Planned Parenthood and other groups that have succeeded in lawsuits against the state that overturned unconstitutional laws passed by the Indiana General Assembly.

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