Bernard v. Individual Members of the Ind. Med. Licensing Bd.

Decision Date28 June 2019
Docket NumberNo. 1:19-cv-01660-SEB-DML,1:19-cv-01660-SEB-DML
Citation392 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.
CourtU.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.



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.

I. HEA 1211

HEA 1211 creates a new statutory term "dismemberment abortion" and defines it as follows:

(a) "Dismemberment abortion" means an abortion with the purpose of killing a living fetus in which the living fetus is extracted one (1) piece at a time from the uterus through clamps, grasping forceps, tongs, scissors, or another similar instrument that, through the convergence of two (2) rigid levers, slices, crushes, or grasps a portion of the fetus's body to cut or rip it off.
(b) "Dismemberment abortion" does not include an abortion that uses suction to dismember a fetus by sucking fetal parts into a collection container.

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) ).

II. D & E in Indiana

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.

Plaintiff Dr. Caitlin Bernard, M.D., has brought this lawsuit on behalf of her patients to challenge the restrictions imposed under HEA 1211. She is a board-certified ob/gyn in Indianapolis employed by the Indiana University Health physician network. Id. ¶¶ 1, 5. She practices at two Indianapolis hospitals, Methodist and Eskenazi. Dkt. 34, 8:3–4 [hereinafter Pl. Dep.]. Dr. Bernard also teaches at the Indiana University School of Medicine. Pl. Decl. ¶ 5. As part of her general ob/gyn practice at these hospitals, Dr. Bernard

provide[s] abortion services only for certain specified indications. The overwhelming majority of second-trimester [abortions] occurring in Indiana are because of fatal or serious fetal anomalies. The identification of many major genetic or anatomic anomalies in the fetus, including anomalies that may cause the death of the fetus at, or shortly after, birth, generally occur in the second trimester. These might include such things as an intracranial mass

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:

Although individual techniques for performing D & E differ, the general steps are the same.
A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix.... [T]he length of time doctors employ osmotic dilators varies.
Some may keep dilators in the cervix for two days, while others use dilators for a day or less.
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia

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.

III. Second-Trimester Abortion

"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...

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