888 F.3d 300 (7th Cir. 2018), 17-3163, Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health

Docket Nº:17-3163
Citation:888 F.3d 300
Opinion Judge:Bauer, Circuit Judge.
Party Name:PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., et al., Plaintiffs-Appellees, v. COMMISSIONER OF the INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants-Appellants.
Attorney:Kenneth J. Falk, Gavin M. Rose, Attorneys, ACLU of Indiana, Jan P. Mensz, Attorney, Indiana Civil Liberties Union, Indianapolis, IN, Jennifer Sandman, Attorney, Planned Parenthood Federation of America, New York, NY, for Plaintiff-Appellees. Thomas M. Fisher, Attorney, Office of the Attorney Gene...
Judge Panel:Before Bauer, Flaum, and Manion, Circuit Judges. Manion, Circuit Judge, concurring in the judgment in part and dissenting in part.
Case Date:April 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

In 2016, the Governor of Indiana signed into law HEA 1337, which created new provisions and amended others that regulate abortion procedures within Indiana. Planned Parenthood filed suit, seeking declaratory and injunctive relief from three parts of the law: the “Sex-Selective and Disability Abortion Ban,” Ind. Code 16-34-4, which prohibit a person from performing an abortion if the person knows... (see full summary)

 
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888 F.3d 300 (7th Cir. 2018)

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., et al., Plaintiffs-Appellees,

v.

COMMISSIONER OF the INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants-Appellants.

No. 17-3163

United States Court of Appeals, Seventh Circuit

April 19, 2018

Argued February 15, 2018

Page 301

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-00763-TWP-DML— Tanya Walton Pratt, Judge.

Kenneth J. Falk, Gavin M. Rose, Attorneys, ACLU of Indiana, Jan P. Mensz, Attorney, Indiana Civil Liberties Union, Indianapolis, IN, Jennifer Sandman, Attorney, Planned Parenthood Federation of America, New York, NY, for Plaintiff-Appellees.

Thomas M. Fisher, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.

Dorinda Bordlee, Attorney, Metairie, LA, for Amici Curiae Women Speak for Themselves, Fondation Jerome Lejeune, Saving Down Syndrome, Down Pride

Misha Tseytlin, Attorney, Office of the Solicitor General, Wisconsin Department of Justice, Madison, WI, for Amicus Curiae State of Wisconsin.

Bill Schuette, Office of the Attorney General, State of Michigan, Lansing, MI, for Amicus Curiae The Michigan Attorney General.

Chris Hollinger, Attorney, O’Melveny & Myers LLP, San Francisco, CA, for Amicus Curiae Biomedical Ethicists.

Geoffrey M. Wyatt, Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Amicus Curiae Disability Advocates.

Before Bauer, Flaum, and Manion, Circuit Judges.

OPINION

Bauer, Circuit Judge.

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On March 24, 2016, the Governor of Indiana signed into law House Enrolled Act No. 1337 (HEA 1337), which created new provisions and amended others that regulate abortion procedures within Indiana. Shortly thereafter, Planned Parenthood of Indiana and Kentucky (" PPINK" ) filed a lawsuit against the Commissioner of the Indiana State Department of Health, the prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, and members of the Medical Licensing Board of Indiana (collectively, " the State" ). PPINK sought declaratory and injunctive relief from three particular parts of the law: (1) the new provisions titled " Sex Selective and Disability Abortion Ban," Ind. Code § 16-34-4 (2016), which prohibit a person from performing an abortion if the person knows the woman is seeking an abortion solely for one of the enumerated reasons (collectively, " the non-discrimination provisions" ); (2) an added provision to the informed consent process, instructing those performing abortions to inform women of the non-discrimination provisions, § 16-34-2-1.1(a)(1)(K); and (3) numerous amendments to the provisions dealing with the disposal of aborted fetuses, § § 16-34-3-4(a); 16-41-16-4(d); 16-41-16-5; 16-41-16-7.6 (collectively, " the fetal disposition provisions" ).

The district court initially entered a preliminary injunction on June 30, 2016, and both parties subsequently filed motions for summary judgment. The court granted PPINK’s motion for summary judgment on September 22, 2017, declaring the three parts of HEA 1337 unconstitutional and permanently enjoining the State from enforcing them.

We affirm. The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason. Because the non-discrimination provisions are unconstitutional, so too is the provision that a woman be informed of them. Additionally, the amended fetal disposition provisions violate substantive due process because they have no rational relationship to a legitimate state interest.

I. BACKGROUND

PPINK provides reproductive health services and education to thousands of women throughout Indiana and Kentucky. At its Bloomington, Indianapolis and Merrillville centers, PPINK performs surgical abortions through the first trimester of pregnancy (approximately 14 weeks). At

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these three centers, as well as the Lafayette center, PPINK also performs non-surgical, or medication, abortions.

A. The Non-Discrimination and Informed Consent Provisions

HEA 1337 creates Indiana Code chapter 16-34-4, entitled " Sex Selective and Disability Abortion Ban." The various provisions of this chapter prohibit abortions at any time, including prior to viability, if the abortion is sought for a particular purpose. Specifically, the non-discrimination provisions state that " [a] person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of post fertilization age if the person knows that the pregnant woman is seeking" an abortion: (1) " solely because of the sex of the fetus," Ind. Code § § 16-34-4-4, 16-34-4-5; (2) " solely because the fetus has been diagnosed with Down syndrome or has a potential diagnosis of Down syndrome," or has been diagnosed or has a potential diagnosis of " any other disability," § § 16-34-4-6, 16-34-4-7; or (3) " solely because of the race, color, national origin, or ancestry of the fetus." § 16-34-4-8. The term " potential diagnosis" means " the presence of some risk factors that indicate that a health problem may occur," § 16-34-4-3, and " any other disability" is defined as " any disease, defect, or disorder that is genetically inherited," including both physical and mental disabilities. § 16-34-4-1.

Under Indiana law, it is a felony to knowingly and intentionally perform an abortion that is prohibited by law. See § 16-34-2-7(a). Moreover, a person who knowingly and intentionally provides an unlawful abortion is subject to (1) " disciplinary sanctions," and (2) " civil liability for wrongful death." § 16-34-4-9(a).

Indiana law requires that certain information be provided to a woman at least 18 hours prior to the abortion as part of the voluntary and informed consent process. See § 16-34-2-1.1(a). HEA 1337 adds a new provision requiring the abortion provider to inform a woman " [t]hat Indiana does not allow a fetus to be aborted solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability." § 16-34-2-1.1(a)(1)(K).

According to the State, the non-discrimination provisions were prompted by the medical advances of non-invasive genetic testing which allow for the detection of disabilities at an early stage in the pregnancy. In particular, cell-free DNA testing, which screens for several genetic disabilities such as Down syndrome, can occur as early as 10 weeks into the pregnancy. PPINK does not provide genetic testing, but is aware that it performs abortions for women solely because of the diagnosis or potential diagnosis of Down syndrome and other disabilities. PPINK and the State agree that the rate of women seeking an abortion due to the diagnosis or potential diagnosis of a genetic disability will likely increase as these tests become more widespread.

  1. The Fetal Disposition Provisions

HEA 1337 also changes the manner in which abortion providers must dispose of aborted fetuses. HEA 1337 did not alter the provision of the Indiana Code that gives a woman " the right to determine the final disposition of the aborted fetus." § 16-34-3-2(a). Prior to the enactment of HEA 1337, if a woman decided to let the abortion facility dispose of the fetus, Indiana regulations state that the facility must either bury or cremate the fetus. See 410 Ind. Admin. Code § 35-2-1(a). Those regulations specify that cremation means " incineration by a crematory, or incineration

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as authorized for infectious and pathological waste" under Indiana law. 410 Ind. Admin. Code § 35-1-3. Infectious waste includes pathological waste, Ind. Code § 16-41-16-4(b)(1), and pathological waste is defined as " (1) tissue; (2) organs; (3) body parts; and (4) blood or body fluids in liquid or semiliquid form; that are removed during surgery, biopsy, or autopsy." § 16-41-16-5.

Thus, prior to the enactment of HEA 1337, a woman might decide to dispose of the aborted fetus herself; or the facility that provided the abortion might dispose of the fetus through incineration along with other surgical byproducts. PPINK has utilized a contractor who periodically incinerates aborted fetuses along with other surgical byproducts.

HEA 1337 alters the manner in which an abortion provider must dispose of an aborted fetus if the woman elects not to dispose of it herself. Specifically, the new law states that " [a]n abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transmit permit requirements of [Indiana Code]...

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