Planned Parenthood of Ind. & Ky., Inc. v. Comm'r, Ind. State Dep't of Health

• Decision Date: 22 September 2017
• Docket Number: Case No. 1:16–cv–00763–TWP–DML
• Citation: 265 F.Supp.3d 859
• Parties: PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., and Carol Dellinger M.D., Plaintiffs, v. COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH in his official capacity, Prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties in their official capacities, and the Individual Members of the Medical Licensing Board of Indiana in their official capacities, Defendants.
• Court: U.S. District Court — Southern District of Indiana

265 F.Supp.3d 859

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., and Carol Dellinger M.D., Plaintiffs,

v.COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH in his official capacity, Prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties in their official capacities, and the Individual Members of the Medical Licensing Board of Indiana in their official capacities, Defendants.

Case No. 1:16–cv–00763–TWP–DML

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

Signed September 22, 2017

Gavin Minor Rose, Jan P. Mensz, Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, Jennifer Dalven, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Cale Addison Bradford, Heather Hagan McVeigh, Kenneth Biggins, Jr., Lara K. Langeneckert, Thomas M. Fisher, Indiana Office of the Attorney General, Indianapolis, IN, Jonathan R. Sichtermann, McVey & Parsky, LLC, Chicago, IL, for Defendants.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, United States District Court Judge

This matter is before the Court on cross-motions for summary judgment filed by Plaintiffs Planned Parenthood of Indiana and Kentucky and Carol Dellinger, M.D. (collectively, "PPINK"), (Filing No. 73 ), and Defendants the Commissioner of the Indiana State Department of Health ("ISDH"), the Prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties, and members of the Medical Licensing Board of Indiana (collectively, "the State"), all in their official capacities, (Filing No. 75 ).

On March 24, 2016, House Enrolled Act No. 1337 ("HEA 1337"), which creates new regulations of abortion and practices related to abortion, was signed into law. PPINK maintains that several provisions of HEA 1337 are unconstitutional. PPINK seeks to permanently enjoin the implementation and enforcement of these provisions, and a declaratory judgment that the challenged provisions are unconstitutional. For the reasons that follow, the Court concludes that the challenged provisions violate the Fourteenth Amendment to the United States Constitution and permanently enjoins enforcement of these provisions.

I. BACKGROUND

PPINK is a non-profit healthcare provider which offers reproductive healthcare, family planning, and preventive primary-care services. (Filing No. 30–1 at 1.) At the outset of this case, it operated twenty-three health centers in Indiana and two in Kentucky. (Filing No. 30–1 at 1.) Three of the Indiana health centers, located in Bloomington, Merrillville, and Indianapolis, provide surgical abortion services to patients. (Filing No. 30–1 at 1.) Surgical abortions are available at these centers only through the first trimester of pregnancy. (Filing No. 30–1 at 1.)

On March 24, 2016, the Governor of Indiana signed into law HEA 1337, which would have become effective on July 1, 2016. See Ind. Code § 16–34–4–1 et seq. HEA 1337 creates several new provisions and amends several others regarding Indiana's regulation of abortion and practices related to abortions. See id. Three aspects of HEA 1337 are challenged by PPINK in this action. The parties essentially do not dispute the key background facts related to the challenged provisions, nor do they dispute the potential consequences of these provisions for PPINK and its patients. The Court will therefore only briefly set forth the challenged provisions and summarize the background evidence related to each provision.

A. Anti–Discrimination and Information Dissemination Provisions

HEA 1337 creates Indiana Code § 16–34–4, and is entitled "Sex Selective and Disability Abortion Ban." This chapter bans abortions sought solely for certain enumerated reasons. Specifically, HEA 1337 provides 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 postfertilization age if the person knows that the pregnant woman is seeking" an abortion: (1) "solely because of the sex of the fetus," §§ 16–34–4–4, 16–34–4–5; (2) "solely because the fetus has been diagnosed with, or has a potential diagnosis of, Down syndrome

or 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 phrase "potential diagnosis" is defined as "the presence of some risk factors that indicate that a health problem may occur." Ind. Code § 16–34–4–3. Moreover, HEA 1337 requires abortion providers to complete a form provided by ISDH that indicates, among other things, the "gender of the fetus, if detectable," and "[w]hether the fetus has been diagnosed with or has a potential diagnosis of having Down syndrome or any other disability." Ind. Code § 16–34–2–5(a)(6).

Indiana law sets forth consequences for abortion providers who violate these provisions. Currently, it is a felony to knowingly or intentionally perform an abortion that is not permitted by Indiana law, and HEA 1337 does not change this. See Ind. Code § 16–34–2–7(a). Moreover, HEA 1337 provides that "[a] person who knowingly or intentionally performs an abortion in violation of this chapter may be subject to: (1) disciplinary sanctions under IC 25–1–9; and (2) civil liability for wrongful death." Ind. Code § 16–34–4–9(a).

Not only does HEA 1337 preclude abortions sought solely for one of the enumerated reasons, but the associated information dissemination provision requires abortion providers to inform their patients of the anti-discrimination provisions. Specifically, abortion providers must inform their patients "[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." Ind. Code § 16–34–2–1.1(a)(1)(K).

The State presents evidence that these provisions were passed in light of technological developments that allow the diagnosis or potential diagnosis of fetal disabilities to be made early in a pregnancy. In particular, cell-free fetal DNA testing is able to screen for several genetic abnormalities

, including Down syndrome, as early as ten weeks into the pregnancy. (Filing No. 54–1 at 5.) Tests such as the cell-free fetal DNA test are screening tests rather than diagnostic tests, and as such, only reveal the likelihood of genetic abnormality. (Filing No. 54–1 at 4.)

The parties are essentially in agreement that a significant number of women have sought, and will continue to seek, an abortion solely because of the diagnosis of a disability or the risk thereof. (See, e.g. , Filing No. 30–1 at 2–3 (attestation from the CEO of PPINK that it has and will continue to provide abortions to women who seek an abortion "solely because of a diagnosis of fetal Down syndrome

or other genetic disabilities or the possibility of such a diagnosis"); Filing No. 54 at 14–15 (citing statistics regarding the percentage of fetuses diagnosed with Down syndrome that are aborted)). Moreover, the parties agree that the number of women who will seek an abortion at least in part out of these concerns will likely increase as testing is more widely available than ever before.

B. Fetal Tissue Disposition Provisions

HEA 1337 also changes the manner in which fetal tissue must be disposed. Under current Indiana law, prior to the passage of HEA 1337, "[a] pregnant woman who has an abortion ... has the right to determine the final disposition of the aborted fetus." Ind. Code § 16–34–3–2. If the woman decides to let the facility performing the abortion dispose of the fetal tissue, Indiana regulations require that the facility bury or cremate the fetal tissue. See 410 I.A.C. § 35–2–1(a). Currently, if a medical facility elects to cremate fetal tissue, it must do so by using a "crematory" or by "incineration as authorized for infectious and pathological waste." 410 I.A.C. § 35–1–3. Pathological waste includes tissues, organs, body parts, and blood or bodily fluid "that are removed during surgery, biopsy, or autopsy." Ind. Code § 16–41–16–5. Infectious waste includes pathological waste, Ind. Code § 16–41–16–4(b), and it can be destroyed through various procedures including incineration, Ind. Code § 16–41–16–3(b). Therefore, as it currently stands, the woman can determine to bury, cremate, or otherwise dispose of the fetal tissue herself, or the fetal tissue may be incinerated along with other human surgical by products such as organs. PPINK currently utilizes a contractor who periodically incinerates the fetal tissue along with other surgical by-products.

HEA 1337 alters the manner in which healthcare providers must handle fetal tissue in instances where the patient does not elect to retain it and dispose of it herself. It provides 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 transit permit requirements of IC 16–37–3 apply to the final disposition of an aborted fetus, which must be interred or cremated." Ind. Code § 16–34–3–4(a).¹ A "burial transit permit" is "a permit for the transportation and disposition of a dead human body required under IC 16–37–3–10 or IC 16–37–3–12." Ind. Code § 23–14–31–5.

Moreover, HEA 1337 excludes "an aborted fetus or a miscarried fetus" from the definition of "infectious waste." Ind. Code § 16–41–16–4(d). This means that if a healthcare provider elects to use cremation rather than interment, the cremation of the fetal tissue must be performed at a crematory. However, the cremation of fetal tissue need not each be performed separately; HEA 1337 explicitly provides that "[a]borted fetuses may be cremated by simultaneous cremation." Ind. Code § 16–34–3–4(a). In exploring compliance with these new provisions, PPINK has been informed by the ISDH that its plan to aggregate "the products of conception in a container suitable for cremation and...