South Bend abortion clinic can open, but only as ‘provisionally licensed’

A preliminary injunction issued to allow the doors of a South Bend abortion clinic to open has been affirmed by the 7th Circuit Court of Appeals, but the appellate court narrowed the injunction and struck a compromise between the parties’ dueling views of Indiana’s licensing system.

The federal appeals court answered the question of whether one abortion provider is entitled to a preliminary injunction against one part of Indiana’s “elaborate network” of abortion laws as it relates to one clinic in one city in a Thursday opinion.

That abortion provider, Texas-based Whole Woman’s Health Alliance, was granted an injunction earlier this year by Indiana Southern District Senior Judge Sarah Evans Barker, who allowed the nonprofit to open an abortion clinic in South Bend without a state-required license after the provider was repeatedly denied a license.

WWHA entered a legal battle with Indiana after The Indiana State Department of Health twice denied its license application. The state has maintained that the nonprofit failed to provide requested safety documentation, and Indiana Attorney General Curtis Hill’s office appealed Barker’s injunction ruling to the 7th Circuit after the federal judge declined the state’s request to stay her May 31 ruling.

In Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al., 19-2051, the 7th Circuit declined to delve into Whole Woman’s Health’s broad allegations against Indiana abortion laws and licensing scheme, instead choosing to address the disposition of its motion for a preliminary injunction and the state’s request for a stay.

The panel, in response to the state’s motion to stay, concluded the district court’s preliminary injunction should be narrowed “to one against only the inclusion of facilities that provide medical abortions … and only with respect to the proposed clinic in South Bend.”

Further, in its Thursday opinion, the appellate panel held that the district court’s “broad condemnation of Indiana’s licensing scheme runs contrary to Supreme Court precedent.” It noted the state may, for the most part, administer that system in the ordinary course.

“We therefore order the district court to modify the injunction to instruct Indiana to treat the Alliance’s South Bend facility as though it were provisionally licensed,” Chief Judge Diane Wood wrote for the panel joined by judges Joel Flaum and Frank Easterbrook. “This respects the state’s interest in regulating medical facilities, while at the same time it allows the Alliance to keep providing medication abortions at its South Bend clinic while the case proceeds.”

The panel also found the district court strayed from guidance in determining the state’s entire licensing scheme is unconstitutional, pointing to provisions setting standards for sanitation, emergency equipment and follow-up care. Those provisions, Wood said, fall within “accepted medical practices,” and caselaw shows that “to the extent that Indiana’s licensing statute falls within ‘accepted medical practice[s]’ and is ‘legitimately related’ to the state’s interests in women’s health and fetal life, it passes constitutional muster.”

However, the 7th Circuit raised concerns about the state’s handling of the Alliance’s license application, pointing out that while Indiana may use licensing as a legitimate means of vetting and monitoring providers, it acted unconstitutionally to the extent it used its licensing scheme to prevent the South Bend clinic from opening “simply to block access to pre-viability abortions… .”

Focusing on the likelihood of success requirement, the panel relied on instruction from Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), to determine what the ISDH was doing with the Alliance’s license application during the past two years.

“The record before us paints a troubling picture. A seemingly endless cycle of demands for information, responses, and new demands does not suggest a bona fide process,” Wood wrote. “At some point, enough is enough. As courts throughout the nation recognize every day in resolving litigation discovery disputes, there comes a point where record requests become so duplicative, or marginally (if at all) relevant, that they are nothing but harassment.

“Indiana’s most recent requests are particularly concerning. Indiana has a declaration from (Whole Woman’s Health CEO Amy) Hagstrom Miller, made under penalty of perjury, that none of the WWH or Alliance clinics has had trouble obtaining or keeping licenses,” Wood continued. “Nonetheless, the state’s document requests refuse to take her at her word and demand voluminous proof from those organizations’ internal files directly. This strikes us as the equivalent of asking if you have ever had a speeding ticket, and instead of accepting a sworn affidavit, asking you to go to all 50 states, the District of Columbia, and the 14 U.S. territories (or why not all 195 countries in the world?) and obtain certifications from each confirming that you have not.

“There is no need for such scorched-earth tactics. Indiana is entitled to protect patient safety and fetal life through its licensing scheme, but if it is doing little more than throwing up one hurdle after another in an effort to keep the Alliance’s doors closed, it has gone beyond constitutional boundaries,” the panel concluded.

Thus, the 7th Circuit found no clear error in the district court’s conclusion that Indiana did not give Whole Woman’s Health’s application “a fair shake.” It rejected the state’s assertion that its actions were based on constitutionally permissible concerns for women’s health or fetal life and concluded its motion to stay the district court’s injunction, modified by the 7th Circuit, must be denied.

But to ensure the state continues to have its normal regulatory power over the clinic, including the power to conduct inspections, the 7th Circuit directed the district court to issue a revised preliminary injunction under Federal Rule of Civil Procedure 65(d).

“Because we have concluded that, on the present record, the Alliance has shown a likelihood of success on the merits of its undue-burden challenge, we need not address its equal protection arguments,” the panel concluded. “This is also not the time to address the parties’ broader arguments about Indiana’s licensing scheme.”

The court therefore affirmed the granted preliminary injunction as modified in accordance with its opinion. A spokeswoman for the Indiana Attorney General’s Office said the OAG is evaluating the 7th Circuit’s opinion.

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