Editor’s note: This article has been updated with comment from Whole Woman’s Health Alliance.
The state of Indiana has asked the nation’s highest court to reverse a ruling that permitted a South Bend abortion clinic to open its doors earlier this year after a years-long licensing battle.
Indiana filed a petition for a writ of certiorari with the U.S. Supreme Court on Monday, asking it to affirm the state’s authority to enforce its licensing requirements for abortion clinics. The abortion clinic at issue, operated by Texas-based Whole Woman’s Health Alliance in South Bend, had been twice denied a license by the Indiana State Department of Health after the government agency concluded the nonprofit failed to provide requested safety documentation.
WWHA was granted an injunction earlier this year by Indiana Southern District Senior Judge Sarah Evans Barker, who ultimately allowed the nonprofit to open the abortion clinic without a state-required license.
The 7th Circuit Court of Appeals affirmed the district court’s decision in August, narrowing the injunction and striking a compromise between the parties’ dueling views of Indiana’s licensing system. It instructed Indiana to treat the South Bend facility as provisionally licensed after concluding that “the district court’s ‘broad condemnation of Indiana’s licensing scheme runs contrary to Supreme Court precedent.’”
In its cert petition, Indiana poses two questions to the Supreme Court:
- May a corporation that has been denied a state license to open an abortion clinic assert 14th Amendment rights of hypothetical patients as the basis for challenging the licensing requirement and the license denial? and;
- May a federal court order a state agency to issue an abortion clinic license as a remedy for an “as applied” undue burden challenge to state implementation of its licensing laws?
In announcing the request for SCOTUS intervention, Indiana Attorney General Curtis Hill said in a statement, “Only women seeking abortions, not abortion providers, have specially protected abortion-related rights under the Fourteenth Amendment. And in this case, a would-be abortion clinic seeks to avoid state licensing standards designed to protect patients from incompetent and unscrupulous providers.”
Amy Hagstrom Miller, President and CEO of Whole Woman’s Health Alliance, called the petition “yet another attempt by Attorney General Hill to create an undue burden for those seeking to end a pregnancy, attempting to further stigmatize abortion and obstruct the ability to receive that care in the community.
“Judge Barker’s ruling was fair and unbiased, and it reinforced a need for an abortion provider in South Bend,” Hagstrom Miller said. “Since June, Whole Woman’s Health of South Bend has been caring for patients under a provisional license that puts our clinic under the same regulations and inspections that all six abortion clinics in the state must adhere to.”
Indiana argues Whole Woman’s Health’s interests do not align with those of its hypothetical future patients and that an assertion of third-party rights is improper in an as-applied challenge. The state further asserts that a state licensing decision is a judicial act not subject to federal court review under the Rooker-Feldman doctrine and that the order to treat WWH as provisionally licensed violates sovereign immunity under Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 106 (1984).
Indiana also requested that the Supreme Court take the case as a companion to June Medical Services v. Gee, No. 18-1323 (U.S.), “to police the boundaries of both third-party standing and federal supervision of state agencies.” That case, set to be heard March 4, 2020, considers whether the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.
“At the very least, the court should hold this case pending resolution of June Medical, and then either grant-vacate-and-remand for reconsideration below or set this case for plenary review,” the cert petition states.