Bernard v. Individual Members of the Ind. Med. Licensing Bd.
Decision Date | 28 June 2019 |
Docket Number | No. 1:19-cv-01660-SEB-DML,1:19-cv-01660-SEB-DML |
Citation | 392 F.Supp.3d 935 |
Parties | Caitlin BERNARD M.D., Plaintiff, v. INDIVIDUAL MEMBERS OF the INDIANA MEDICAL LICENSING BOARD in their official capacities, et al., Defendants. |
Court | U.S. District Court — Southern District of Indiana |
Andrew Beck, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Gavin Minor Rose, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiff.
Christopher Michael Anderson, Diana Lynn Moers Davis, Jefferson S. Garn, Thomas M. Fisher, Indiana Attorney General, Julia Catherine Payne, Indiana Office of the Attorney General, Anne Celeste Harrigan, Daniel Bowman, Office of Corporation Counsel City of Indianapolis, Indianapolis, IN, for Defendants.
ORDER ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
(DKT. 6)
In recent years, several states have adopted statutes prohibiting an abortion procedure known to medicine as "dilation and evacuation" ("D & E") and referred to by its political opponents as "dismemberment abortion." Among these statutes is Indiana's House Enrolled Act 1211 ("HEA 1211"), enacted on April 24, 2019. We begin by noting that every federal court to consider these prohibitions have preliminarily or permanently enjoined them as violations of the Due Process Clause of the Fourteenth Amendment. Today, we join them, for the reasons given below.
Our analysis commences with (I) a review of HEA 1211, followed by (II) an examination of the provision of D & E in Indiana and (III) a general overview of second trimester abortion
methods, including (A) D & E, (B) induction of labor, and (C) hysterotomy. Thereafter, we review (IV) methods for inducing fetal demise before a D & E, including (A) injections of digoxin, (B) injections of potassium chloride, and (C) umbilical cord transections. We conclude by recapitulating (V) the posture of the instant motion.
HEA 1211 creates a new statutory term "dismemberment abortion" and defines it as follows:
Act of April 24, 2019, Pub. L. 93-2019, § 1, 2019 Ind. Acts—, 2019 Ind. Legis. Serv. P.L. 93-2019 (West) (to be codified at Ind. Code § 16-18-2-96.4 ) [hereinafter HEA 1211]. This term is original to this statute and its out-of-state companions.
Effective July 1, 2019, "knowingly or intentionally" performing a "dismemberment abortion" will be a Level 5 felony, see Ind. Code § 16-34-2-7(a), punishable by up to six years' imprisonment and a $10,000 fine, id. § 35-50-2-6(b), unless the "reasonable medical judgment" of the physician performing the abortion "dictates that performing the dismemberment abortion is necessary[ ] to prevent any serious health risk to the mother" or "to save the mother's life." HEA 1211, § 3 (internal subdivisions omitted) (to be codified at Ind. Code § 16-34-2-1(c) ).
All agree that HEA 1211 by its terms prohibits D & E, which is "the usual abortion method" in the second trimester of pregnancy in the United States, Gonzales v. Carhart , 550 U.S. 124, 135, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), and "the predominant method of second trimester abortion
in many parts of the world." Dkt. 29 Ex. 1, at 3. D & E is performed from early in the second trimester, beginning approximately 15 weeks after the patient's last menstrual period (LMP). Dkt. 9 Ex. 1, ¶ 22 [hereinafter Pl. Decl.]. Through 10 weeks LMP, abortions may be performed medically through administration of the chemical abortifacients mifepristone and misoprostol. Id. ¶ 12. Aspiration and curettage procedures are also commonly employed through the first trimester, but cease to be effective by the beginning of the second trimester. Id. ¶¶ 12, 16. Thus, a woman seeking a second-trimester abortion receives a D & E or one of its two alternatives, which are discussed in more detail below.
in the fetal brain, neural tube defects such as spina bifida and anencephaly, or other disorders related to autonomic function. The remainder are because of health risks to the mother or because the pregnancy is the product of rape.
Id. ¶ 15. At Methodist and Eskenazi, Dr. Bernard performs only second-trimester abortions
before fetal viability and before 21 weeks 6 days LMP. Id. ¶ 8. These abortions are all performed by D & E unless the patient requests another procedure. Id. ¶¶ 17, 39.
In addition to Dr. Bernard, only one other physician in Indiana performs D & E procedures: Dr. Hua Meng, Pl. Dep. 35:10–11, an ob/gyn also employed by the Indiana University Health physician network who practices at the same Indianapolis hospitals as Dr. Bernard. Dkt. 36, 7:21–22, 10:11–13 [hereinafter Meng Dep.]. Dr. Bernard is also aware that Dr. Katherine McHugh (formerly a plaintiff in this case, see Dkt. 21) has performed D & E in the past "and wishes to be able to do so in the future." Pl. Decl. ¶ 40. Neither Dr. Bernard nor Defendants are aware of any other Indiana physicians who perform or have performed D & E.
The Supreme Court in Gonzales described the D & E procedure as follows:
or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed.... Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.
Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.
Gonzales , 550 U.S. at 135–36, 127 S.Ct. 1610 (citations omitted). Dr. Bernard and Defendants here describe the procedure in materially identical terms. Pl. Decl. ¶¶ 17–20; Dkt. 30, ¶¶ 10–13 [hereinafter Francis Decl.].
When Dr. Bernard performs D & E, she uses laminaria. Pl. Decl. ¶ 17. If the pregnancy is more than 17 weeks LMP, the procedure takes two days: Dr. Bernard inserts the laminaria on the first day; the patient leaves the hospital and returns on the next day for the procedure. Id. ¶ 18. If the pregnancy is less than 17 weeks LMP, dilation and evacuation happen on the same day. Id. Once the cervix is sufficiently dilated, evacuation "generally takes no more than 10–15 minutes." Id. ¶ 20. Dr. Bernard uses ultrasound imaging to confirm the uterus has been completely evacuated. Pl. Dep. 19:1–4.
"Approximately 1 in 4 women [in the United States] obtain an abortion by the age of 45." Dkt. 12 Ex. 1, ¶ 9 [hereinafter Davis Decl.]. Most are poor. Id. The risk of death from an abortion (less than 1 in 100,000) is fourteen times lower than the risk of death from childbirth (8.8 in 100,000) and "significantly lower" than the risk of death from common outpatient procedures such as colonoscopy
(2.9 in 100,000). Id. ¶ 10. These risks increase with time, however, from 0.1 in 100,000 at 8 weeks LMP and earlier to 8.9 in 100,000 at 21 weeks LMP and later. Dkt. 40 Ex. 11, at 25 [hereinafter ACOG...
To continue reading
Request your trial-
Hopkins v. Jegley
...Harris v. W. Ala. Women's Ctr. , ––– U.S. ––––, 139 S. Ct. 2606, 204 L.Ed.2d 1159 (2019) ; Bernard v. Individual Members of Ind. Med. Licensing Bd. , 392 F. Supp. 3d 935, 962, 964 (S.D. Ind. 2019) (preliminarily enjoining Ind. Code §§ 16-34-2-7(a), 16-18-2-96.4 ); Planned Parenthood of Sw. ......
-
Emw Women's Surgical Ctr. v. Friedlander
...Harris v. W. Ala. Women's Ctr. , ––– U.S. ––––, 139 S. Ct. 2606, 204 L.Ed.2d 1159 (2019); Bernard v. Individual Members of Ind. Med. Licensing Bd. , 392 F. Supp. 3d 935, 962, 964 (S.D. Ind. 2019) (preliminarily enjoining Ind. Code §§ 16-34-2-7(a), 16-18-2-96.4 ); Planned Parenthood of Sw. O......
- Bernard v. Individual Members of Ind. Med. Licensing Bd.
-
THE PRO-LIFE MOVEMENT AT (ALMOST) FIFTY: WHERE DO WE GO FROM HERE?
...(D. Ariz. Oct. 3, 2013), aff'd, 626 F. App'x 200 (9th Cir. 2015). (68.) See Bernard v. Individual Members of Ind. Med. Licensing Bd., 392 F. Supp. 3d 935, 964 (S.D. Ind. 2019) (enjoining Indiana's dismemberment bill); Tulsa Women's Reprod. Clinic, L.L.C. v. Hunter, No. 118,292, (Okla. Nov. ......
-
CHOOSING WISELY: ENVISIONING PERINATAL HOSPICE NOTIFICATION LAWS THAT INFORM AND EMPOWER.
...premises" as part of an examination into the law's constitutionality); Bernard v. Individual Members of the Ind. Med. Licensing Bd., 392 F. Supp. 3d 935,956-59 (S.D. Ind. 2019) (considering state interests in passing a law limiting abortion as part of an examination into whether that law co......