Planned Parenthood Indiana v. Comm'r

Decision Date28 June 2017
Docket NumberNo. 1:17-cv-01636-SEB-DML.,1:17-cv-01636-SEB-DML.
Citation258 F.Supp.3d 929
Parties PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff, v. COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, Marion County Prosecutor, Lake County Prosecutor, Monroe County Prosecutor, Tippecanoe County Prosecutor, Members of the Indiana Medical Licensing Board, Judge, Marion Superior Court, Juvenile Division, Defendants.
CourtU.S. District Court — Southern District of Indiana

Andrew Beck, American Civil Liberties Union Foundation, Jennifer Sandman, Melissa A. Cohen, Planned Parenthood Federation of America, New York, NY, Gavin Minor Rose, Jan P. Mensz, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiff.

Matthew Richard Elliott, Thomas M. Fisher, Office of the Indiana Attorney General, Indianapolis, IN, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

SARAH EVANS BARKER, JUDGE

This cause is before the Court on the Motion for Preliminary Injunction [Docket No. 6], filed on May 18, 2017. Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. ("PPINK") seeks to have Defendants Commissioner, Indiana State Department of Health, Marion County Prosecutor, Lake County Prosecutor, Monroe County Prosecutor, Tippecanoe County Prosecutor, and Members of the Indiana Medical Licensing Board (collectively, "the State") enjoined from enforcing Senate Enrolled Act No. 404 ("SEA 404"), set to go into effect on July 1, 2017, which amends Indiana law to impose new conditions and regulations concerning the provision of abortion services to unemancipated minors.1 The Court heard arguments on June 13, 2017. Having now considered those arguments, the parties' evidentiary and written submissions, and the controlling principles of law, we hereby GRANT Plaintiff's Motion for Preliminary Injunction.

Factual Background
I. Relevant Statutory and Regulatory Law

Indiana Code § 16–34–2–1.1(a) provides that an abortion cannot "be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed." If the woman seeking an abortion is an unemancipated minor, current law requires that the physician performing the abortion obtain the written consent of one of the minor's parents or legal guardians. Ind. Code § 16–34–2–4(a) (amended July 1, 2017). Indiana law provides a constitutionally-mandated "judicial bypass" procedure for the parental-consent requirement by which a minor may obtain an abortion without the consent or knowledge of a parent or guardian if she files a petition in the juvenile court located in the county where she resides or where the abortion is to be performed and demonstrates to the court's satisfaction either that she is sufficiently mature to make the abortion decision independently or that the abortion would be in her best interests. Ind. Code § 16–34–2–4(b), (d) (amended July 1, 2017). Once a petition is filed, the juvenile court must render its decision on the bypass request within 48 hours. Ind. Code § 16–34–2–4(e).

Under the recently enacted legislation (SEA 404), an unemancipated minor is still permitted to seek a judicial bypass from a juvenile court and the court must still waive the parental-consent requirement if she demonstrates maturity or that it is in her best interests to obtain the abortion. Ind. Code § 16–34–2–4(b), (d) (eff. July 1, 2017). However, the amended law alters the judicial bypass procedure by adding a parental-notification requirement that provides in relevant part as follows:

Unless the juvenile court finds that it is in the best interests of an unemancipated pregnant minor to obtain an abortion without parental notification following a hearing on a [bypass] petition ..., a parent, legal guardian, or custodian of a pregnant unemancipated minor is entitled to receive notice of the emancipated [sic] minor's intent to obtain an abortion before the abortion is performed on the unemancipated pregnant minor. The attorney representing the unemancipated pregnant minor shall serve the notice required by this subsection by certified mail or by personal service and provide the court with documentation of the attorney's good faith effort to serve the notice, including any return receipt for a certified mailing.

Ind. Code 16–34–2–4(d) (eff. July 1, 2017). Therefore, even if the juvenile court has found the unemancipated minor sufficiently mature to make the abortion decision independently, absent a best interests finding by the juvenile court, "the court shall, subject to an appeal ..., order the attorney representing the unemancipated minor to serve the notice required under subsection (d)." Ind. Code § 16–34–2–4(e) (eff. July 1, 2017).

SEA 404 also imposes new requirements on physicians performing abortions that must be followed before an unemancipated minor can obtain an abortion with parental consent. Under current Indiana law, a consenting parent is required to evidence his or her consent in writing. Ind. Code § 16–34–2–4(a) (amended July 1, 2017). However, under the amended statute, the physician performing the abortion must obtain government-issued proof of identification from the consenting parent as well as "some evidence, which may include identification or other written documentation, that provides an articulable basis for a reasonably prudent person to believe that the person is the parent." Ind. Code § 16–34–2–4(a)(2), (3) (eff. July 1, 2017). SEA 404 further provides that the physician who obtains such consent must execute a sworn affidavit that contains a

[c]ertification that, to the physician's best information and belief, a reasonable person under similar circumstances would rely on the information provided by the unemancipated pregnant minor and the unemancipated pregnant minor's parent or legal guardian or custodian as sufficient evidence of identity and relationship.

Ind. Code § 16–34–2–4(k)(2) (eff. July 1, 2017). This affidavit must be included in the minor's medical record. Id.

Finally, SEA 404 adds a new section to the current statute that provides that any person (other than the minor's parent, stepparent, grandparent, stepgrandparent, sibling, or stepsibling) who "knowingly or intentionally aid [s] or assist[s] an unemancipated pregnant minor in obtaining an abortion without the consent required" under Indiana law, ( Ind. Code § 16–34–2–4.2(c) (eff. July 1, 2017)), is liable for damages, including punitive damages, attorney's fees, and court costs. Ind. Code § 16–34–2–4.2(d) (eff. July 1, 2017). The parties agree that this provision would prohibit PPINK and its physicians from providing an unemancipated minor information regarding out-of-state abortion services which ostensibly would not require parental consent or notice.

Various penalties can be imposed on abortion providers and their employees for violating portions of SEA 404. A physician who performs an abortion intentionally or knowingly in violation of Indiana law pertaining to parental notice and consent commits a Class A misdemeanor. Ind. Code § 16–34–2–7(b). Additionally, a physician with an Indiana license who commits a crime that has a direct bearing on the physician's ability to practice competently or is harmful to the public or who knowingly violates any state law or rule regulating the medical profession is subject to discipline from the Indiana Medical Licensing Board. Ind. Code § 25–1–9–4(a)(2), (3). Likewise, abortion facilities, such as PPINK, which are licensed by the Indiana State Department of Health pursuant to 410 IAC 26–2–1, are subject to having their licenses revoked or other discipline imposed for a number of reasons, including "permitting, aiding or abetting the commission of any illegal act in an abortion clinic," ( 410 IAC 26–2–8(b)(1), (2) ), or failing to have authorized individuals make entries in medical records. 410 IAC 26–7–2(b)(3).

II. Plaintiff's Current Policies and Procedures
A. Minor Abortions with Parental Consent

PPINK is an Indiana not-for-profit corporation that operates a number of health centers in Indiana that provide reproductive health services and comprehensive sexuality education to thousands of women, men, and teens throughout the State. Beeley Decl. ¶ 3. Four of the health centers operated by PPINK in Indiana offer abortion services. Three of those centers, located in Bloomington, Indianapolis, and Merrillville, offer both surgical abortion services and abortions using only medication. Id. ¶¶ 4–5. The fourth center, located in Lafayette, provides only medication abortions. Id. ¶ 6. At PPINK, surgical abortions are available through the first trimester of pregnancy, or 13 weeks and 6 days after the first day of a woman's last menstrual period, and medication abortions are available through 70 days after a woman's last menstrual period. Id. ¶ 6. PPINK provides abortions to minors at its facilities that offer abortion services consistent with Indiana law. Id. ¶ 8.

Under Indiana law, PPINK is required to provide any woman seeking an abortion certain state-mandated information at least 18 hours prior to the abortion. Ind. Code § 16–34–2–1.1(a)(1). PPINK provides this information at the woman's initial visit. At this same visit, the PPINK patient signs all the necessary paperwork, including the consent for the abortion and all other required documents. Beeley Decl. ¶¶ 10–11. If the patient is a minor and her parent consents to the abortion, the parent signs the consent and other required paperwork with the minor at this initial visit. Id. ¶ 12. PPINK currently requires both the parent and the minor to provide identification, preferably a photo ID, but does not require any additional forms of identification or other documentation to prove the parental relationship. Id. ¶¶ 13–14. At present, non-physician PPINK staff is responsible for reviewing the initial paperwork as well as the parent's and the minor's identifications because physicians usually do not see the patient until the time of the abortion and often are not...

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