State, Planned Parenthood agree to delay enforcement of 18-hour abortion ultrasound law

Editor’s note: This story has been updated with comments from Planned Parenthood of Indiana and Kentucky.

The battle over an enjoined Indiana law requiring women to obtain an ultrasound 18 hours before an abortion has taken a new turn, with the parties entering an agreement that would vacate the injunction in the new year.

Indiana Attorney General Curtis Hill on Thursday announced the stipulation, which on Jan. 1 would vacate the injunction against the ultrasound law, after workers at a new Fort Wayne abortion clinic are trained to use ultrasound equipment. Hill described the agreement as a victory for the state.

“I’m pleased that Planned Parenthood saw the likelihood that this very reasonable law ultimately would be upheld,” Hill, a Republican, said in a news release. “To their credit, they recognized the merits of avoiding further legal wrangling over this matter.”

But plaintiff Planned Parenthood of Indiana and Kentucky described the agreement in different terms.

“At Planned Parenthood, patient safety and care is our top priority,” PPINK CEO Chris Charbonneau said in a statement to Indiana Lawyer. “To be clear, the 18-hour ultrasound requirement has nothing to do with patient safety, and is only meant to add another barrier in accessing abortion care.

“But at this time, we are fortunately able to maintain the same level of access to patient care and comply with this medically unnecessary law as of January 2021,” Charbonneau continued. “Therefore, we have dropped this lawsuit.”

Indiana Southern District Judge Tanya Walton Pratt entered the injunction against House Enrolled Act 1337  in April 2017.  The law, had it taken effect, would have required women seeking an abortion to obtain an ultrasound 18 hours before the procedure.

The 7th Circuit Court of Appeals affirmed the injunction in July 2018.  The state appealed, and the United States Supreme Court in July 2020 remanded the case to the circuit court for reconsideration in light of June Medical Services LLC v. Russo, 591 U.S. ___ (2020). 

In June Medical Services, the high court held that a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals violates the abortion rights announced in Roe v. Wade. The justices split 5-4 in their decision, with Chief Justice John Roberts joining the four liberal justices in striking down the law.

On remand in the ultrasound case, Hill said PPINK “conceded” in light of its new clinic in Fort Wayne.

“Planned Parenthood has agreed to drop its lawsuit against the ultrasound requirement provided that Indiana refrains from enforcing it until Jan. 1, 2021 — giving Planned Parenthood time to train staff at its Fort Wayne Clinic to operate ultrasound equipment,” Hill’s office said.

“For women considering abortions, ultrasounds are an important part of informed-consent counseling,” Hill added. “Anyone interested in protecting women’s health, including their mental health, should support giving them as much information as possible to aid their decision-making. Empowering women with knowledge is fully consistent with the U.S. Constitution.”

PPINK disagreed.

“Make no mistake, Planned Parenthood has and will continue to fight these attacks by Indiana politicians, including continuing other legal challenges we have brought against burdensome and medically unnecessary Indiana laws,” Charbonneau said. “Indiana ranks second in the nation for abortion restrictions, and is a hostile environment for patient care. Hoosiers can count on us to fight back against these attacks while we continue to provide care — no matter what.”

Also in July, the federal justices remanded another case challenging an Indiana abortion law, this one requiring parental notification for “mature minors” seeking an abortion. As with the ultrasound law, the parental notification law was enjoined by the Southern District, and the injunction was affirmed at the 7th Circuit.

But a third Indiana abortion case — this one challenging the provisional licensing and opening of an abortion clinic in South Bend — was denied certiorari

The ultrasound case is Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al., 1:16-cv-01807.

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