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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowAn out-of-state abortion provider who was granted permission to open a South Bend clinic last month after the state denied a permit lost its bid Tuesday to certify a defendant class made up of every elected prosecuting attorney in Indiana.
Texas-based Whole Woman’s Health Alliance filed a motion for certification of a defendant class with the Indiana Southern District court, requesting an order creating a class consisting of all Indiana prosecuting attorneys with authority to prosecute misdemeanor and felony offenses, and thus with authority to prosecute violations of certain laws challenged in its suit against the state. WWHA requested that St. Joseph County Prosecutor Kenneth Cotter be named as class representative.
The request follows WWHA’s lengthy legal feud with the state, in which Indiana Southern District Senior Judge Sarah Evans Barker previously granted an injunction allowing the nonprofit to open an abortion clinic in South Bend without a state-required license after the provider was repeatedly denied a license.
In Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al., 19-2051, the 7th Circuit Court of Appeals declined to delve into WWHA’s broad allegations against Indiana abortion laws and licensing scheme, but sustained Barker’s injunction on appeal. WWHA challenges the constitutionality of five categories of Indiana laws, which are variously enforced through administrative, civil and criminal penalties, and professional discipline, Barker wrote in a Tuesday order. WWHA also challenges the constitutionality of certain statutes that subject abortion providers to criminal liability for violating specific abortion restrictions, which are enforced by the state.
WWHA seeks to enjoin the restrictions and all local prosecutors and their successors from enforcing the challenged criminal restrictions.
Some county prosecutors have previously shown resistance toward the Indiana Attorney General’s Office regarding other abortion-related cases, including former Marion County prosecutor Terry Curry, former Monroe County prosecutor Chris Gaal and Lake County prosecutor Bernard Carter. The prosecutors had all refused to defend the state in a lawsuit challenging a 2018 abortion law that would require abortion providers to report abortion complications.
Likewise, earlier this year a feud between Hill and Curry erupted over the latter’s decision to enlist an Indianapolis city attorney to represent the Marion County Prosecutor’s Office in a lawsuit it filed against a 2019 abortion bill that would have banned dilation and evacuation procedures.
But in her Tuesday denial of WWHA’s motion, Barker noted that there has been no showing in the motion that every county in Indiana has a sufficient and direct interest in the issues raised in the litigation to warrant being made a party, either based on the existence of an operating abortion clinic or other such provider within its boundaries. Likewise, there was no showing based on any currently proposed or threatened legal action by any county prosecutors beyond the St. Joseph County prosecutor.
“Nor has there been a showing that all state prosecutors hold the same prosecutorial authority with respect to the challenged restrictions, beyond the St. Joseph County Prosecutor, and similarly there is no realistic prospect that Plaintiffs would sue or need to sue all ninety-one Indiana prosecutors in separate actions,” Barker wrote.
The district court therefore agreed with the Indiana Attorney General’s office in its opposition to WHHA’s motion in Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr. Attorney General of the State of Indiana, in his official capacity, et al, 1:18-cv-01904.
“To add all 91 prosecutors to this case even as a class in an effort simply to fend off any possible prosecutions of plaintiffs during its pendency would unnecessarily encumber and significantly complicate the proceedings for no good and necessary reason,” the federal judge continued. “Should the situation change such that any particular county prosecutor(s) decide(s) to file or threaten(s) to file or does file a criminal prosecution against Plaintiffs during the pendency of this litigation, Plaintiffs’ Motion can be renewed, and the ruling will be revisited by the court.”
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