Planned Parenthood of Ind. Inc. v. Comm'r of The Ind. State Dep't of Health

• Decision Date: 24 June 2011
• Docket Number: Case No. 1:11–cv–630–TWP–TAB.
• Citation: 794 F.Supp.2d 892
• Parties: PLANNED PARENTHOOD OF INDIANA, INC., Michael King M.D., Carla Cleary C.N.M., Letitia Clemons, and Dejiona Jackson, Plaintiffs,v.COMMISSIONER OF the INDIANA STATE DEPARTMENT OF HEALTH, Director of the Indiana State Budget Agency, Commissioner of the Indiana Department of Administration, Secretary of the Indiana Family and Social Services Administration, the Prosecutor of Marion County, the Prosecutor of Monroe County, the Prosecutor of Tippecanoe County, Indiana General Assembly, and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of Indiana

794 F.Supp.2d 892

PLANNED PARENTHOOD OF INDIANA, INC., Michael King M.D., Carla Cleary C.N.M., Letitia Clemons, and Dejiona Jackson, Plaintiffs,

v.COMMISSIONER OF the INDIANA STATE DEPARTMENT OF HEALTH, Director of the Indiana State Budget Agency, Commissioner of the Indiana Department of Administration, Secretary of the Indiana Family and Social Services Administration, the Prosecutor of Marion County, the Prosecutor of Monroe County, the Prosecutor of Tippecanoe County, Indiana General Assembly, and the United States of America, Defendants.

Case No. 1:11–cv–630–TWP–TAB.

United States District Court, S.D. Indiana, Indianapolis Division.

June 24, 2011.

OPINION TEXT STARTS HEREWest CodenotesValidity Called into DoubtWest's A.I.C. 5–22–17–5.5(b–d), 16–34–2–1.1(a)(1) Gavin Minor Rose, Jan P. Mensz, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, Roger K. Evans, Planned Parenthood Federation of America, Talcott Camp, American Civil Liberties Union, Foundation Reproductive Freedom Project, New York, NY, for Plaintiffs.Adam Clay, Ashley Tatman Harwel, Heather Hagan McVeigh, Thomas M. Fisher, Indiana Office of the Attorney General, Indianapolis, IN, Eric Allan Koch, The Koch Law Firm, P.C., Bloomington, IN, Paul B. Linton, Special Counsel, Thomas More Society, Northbrook, IL, Thomas Brejcha, President & Chief Counsel Thomas More Society, Chicago, IL, for Defendants.

ENTRY ON MOTION FOR PRELIMINARY INJUNCTION

TANYA WALTON PRATT, District Judge.

Following a vigorous and often contentious legislative debate, Governor Mitch Daniels signed House Enrolled Act 1210 (“HEA 1210”) into law on May 10, 2011. The new law accomplishes two objectives. First, HEA 1210 prohibits certain entities that perform abortions from receiving any state funding for health services unrelated to abortion—including for cervical PAP smears, cancer screenings, sexually transmitted disease testing and notification, and family planning services (the “defunding provision”). This portion of the law—codified at Ind.Code § 5–22–17–5.5(b) through (d)—went into effect immediately. Second, HEA 1210 modifies the informed consent information that abortion providers must give patients prior to receiving abortion services (the “informed consent provision”). This portion of the law—codified at Ind.Code § 16–34–2–1.1(a)(1)—goes into effect July 1, 2011.

Within minutes of HEA 1210 being signed into law, Plaintiffs—Planned Parenthood of Indiana, Inc. (“PPIN”), Michael King, M.D., Carla Cleary, C.N.M., Letitia Clemons, and Dejiona Jackson, (collectively, “Plaintiffs”)—filed a lawsuit against the Commissioner of the Indiana State Department of Health, et al. (collectively, “Commissioner”), challenging the legality of both the defunding provision and the informed consent provision. That same day, this Court heard oral arguments on Plaintiffs' Motion for a Temporary Restraining Order (“TRO”), which related only to the defunding provision. The next day, on May 11, 2011, the Court denied Plaintiffs' Motion. In doing so, the Court cited the exacting standard required for a TRO, PPIN's limited evidence supporting immediate and irreparable harm, and the fact that the Commissioner had not yet had the opportunity to brief the relevant issues.

Now, this matter is before the Court on Plaintiffs Motion for Preliminary Injunction (Dkt. 9). The parties have fully briefed the issues and the Court heard oral arguments on this matter on June 6, 2011. For the reasons set forth below, Plaintiffs Motion is GRANTED in part and DENIED in part.

I. THE DEFUNDING PROVISION

A. Background

The defunding provision of HEA 1210 generally prohibits Indiana agencies from contracting with or making grants to any entities that perform abortion services. It also immediately canceled past state appropriations to pay for contracts with or grants made to entities that perform abortions. The defunding provision reads as follows:

(b) An agency of the state may not:

(1) enter into a contract with; or

(2) make a grant to;

any entity that performs abortions or maintains or operates a facility where abortions are performed that involves the expenditure of state funds or federal funds administered by the state.

(c) Any appropriations by the state:

(1) in a budget bill;

(2) under IC § 5–19–1–3.5; or

(3) in any other law of the state;

to pay for a contract with or grant made to any entity that performs abortions or maintains or operates a facility where abortions are performed is canceled, and the money appropriated is not available for payment of any contract with or grant made to the entity that performs abortions or maintains or operates a facility where abortions are performed.

(d) For any contract with or grant made to an entity that performs abortions or maintains or operates a facility where abortions are performed covered under subsection (b), the budget agency shall make a determination that funds are not available, and the contract or the grant shall be terminated under section 5 of this chapter.

Ind.Code § 5–22–17–5.5. The defunding provision does not apply to hospitals licensed under Ind.Code § 16–21–2 or ambulatory surgical centers licensed under Ind.Code § 16–21–2. Ind.Code § 5–22–17–5.5(a).

PPIN is an Indiana not-for-profit corporation that provides comprehensive reproductive healthcare services throughout Indiana. With 28 health centers in Indiana, PPIN has provided approximately 76,229 patients with health care services, including cervical smears, cancer screening, sexually transmitted disease (STD) testing, self-examination instructions, and a variety of family planning and birth control options. Only a small percentage of PPIN's services involve abortion. For abortion services, PPIN uses funds from private sources and takes steps to ensure no commingling of private and taxpayer dollars. PPIN is audited annually by an independent auditing firm and routinely by the Indiana Family Health Council. To date, no audit has uncovered inappropriate commingling.¹

B. PPIN's Enrollment in Medicaid

Significant to this dispute, PPIN is a Medicaid provider. To that end, PPIN has executed a provider agreement (“Provider Agreement”) with the Indiana Family and Social Services Administration (“FSSA”), which administers Indiana's Medicaid program. Under the Provider Agreement, PPIN provides Medicaid-approved services and is then reimbursed by federal and state funds, paid through FSSA and the Indiana State Budget Agency. Reimbursable services include, among other things, the diagnosis and treatment of STD's, health education and counseling, pregnancy testing and counseling, the provision of contraceptives, and cervical smears.

In the past year, PPIN provided Medicaid services to more than 9,300 patients throughout Indiana and, in turn, received $1,360,437.00 in funds as a Medicaid provider. Plaintiffs Letitia Clemons and Dejiona Jackson are two such Medicaid recipients who receive annual examinations and other health services at their local PPIN health centers. Both wish to continue using PPIN as their provider for various Medicaid-funded services, and PPIN remains a competent provider of these services.

C. PPIN's Receipt of Other Federally Funded Grants

PPIN also receives reimbursement for other services from funds originating from federal grants and programs that pass through the State of Indiana in various ways. For instance, PPIN has entered into two contracts with the Indiana State Department of Health. The contracts, which total $150,000, are for Disease Intervention Services (“DIS”) and are designed to ensure that individuals diagnosed with or exposed to STD's are provided notification and testing. PPIN investigates and intervenes in approximately 3,500 STD infection cases each year. The funds for the DIS grants are made through the federal Preventative Health Services Block Grant Program, 42 U.S.C. § 247c et seq., and utilize entirely federal monies.

D. The Effect of HEA 1210 on PPIN

HEA 1210 will exact a devastating financial toll on PPIN and hinder its ability to continue serving patients' general health needs. Despite a large influx of donations following HEA 1210's passage and the Court's ruling denying Plaintiffs' request for a TRO, the law has already affected PPIN in tangible ways. Specifically, PPIN has ceased performing services under the DIS grant and has stopped taking new Medicaid patients. As of June 20, 2011, PPIN stopped treating its Medicaid patients and has laid off two of its three STD specialists. PPIN estimates that the new law will force it to close seven health centers and eliminate roughly 37 employees. According to PPIN, thousands of patients have lost or will lose their healthcare provider of choice. Additional facts are added below as needed.

II. LEGAL STANDARD

A preliminary injunction is “an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir.1984) (citation and internal quotations omitted). When a court is presented with a request for preliminary injunction, it considers multiple factors. As the Seventh Circuit has recognized, a party seeking to obtain a preliminary injunction must demonstrate: (1) “a likelihood of success on the merits,” (2) “a lack of an adequate remedy at law,” and (3) “a future irreparable harm if the injunction is not granted.” Reid L. v. Ill. State Bd. of Educ., 289 F.3d 1009, 1021 (7th Cir.2002). The court must then balance, on a sliding scale, the irreparable harm to the moving party with the harm an injunction would cause to the opposing party. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of America, Inc., 549 F.3d 1079, 1086 (7th Cir.2008). The greater the likelihood of success, the less harm the moving party needs to show to obtain an injunction, and vice versa. Id. Finally, the court must consider the interest of and harm to nonparties that would result from a denial or grant of the injunction. See Storck USA, L.P. v....