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

• Decision Date: 30 June 2016
• Docket Number: Case No. 1:16-cv-00763-TWP-DML
• Citation: 194 F.Supp.3d 818
• Parties: PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Dr. Marshall Levine, M.D., Plaintiffs, v. COMMISSIONER, Indiana State Department of Health in his official capacity, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

194 F.Supp.3d 818

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Dr. Marshall Levine, M.D., Plaintiffs,

v.COMMISSIONER, Indiana State Department of Health in his official capacity, et al., Defendants.

Case No. 1:16-cv-00763-TWP-DML

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

Signed June 30, 2016

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, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Heather Hagan McVeigh, Jonathan R. Sichtermann, Kenneth Biggins, Jr., Lara K. Langeneckert, Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, for Defendants.

ENTRY GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

TANYA WALTON PRATT, JUDGE, United States District Court Southern District of Indiana

This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to Federal Rule of Civil Procedure 65(a) by Plaintiffs Planned Parenthood of Indiana and Kentucky, Inc. and Dr. Marshall Levine (collectively "PPINK"). (Filing No. 7.) PPINK filed this suit against the Commissioner of the Indiana State Department of Health ("ISDH"), the prosecutors of Marion County, Lake County, Monroe County, and Tippecanoe County, and members of the Medical Licensing Board of Indiana (collectively "the State"), all in their official capacities.

On March 24, 2016, the Governor of Indiana signed into law House Enrolled Act No. 1337 ("HEA 1337"), which creates new regulations of abortion and practices related to abortion. PPINK maintains that several provisions of HEA 1337 are unconstitutional, and it seeks to enjoin the implementation and enforcement of these provisions during the pendency of this litigation and prior to July 1, 2016, the date on which the provisions take effect. PPINK seeks a preliminary injunction as to three aspects of HEA 1337: (1) the anti-discrimination provisions, which preclude abortions if sought solely for certain reasons enumerated in the statute such as the fetus's race, sex, or disability; (2) the information dissemination provision, which requires abortion providers to inform their patients of the anti-discrimination provisions and the types of abortions those provisions prohibit; and (3) the fetal tissue disposition provisions, which require fetal tissue to be disposed of in a manner similar to that of human remains.

The parties submitted evidence, and the Court held a hearing on PPINK's Motion. For the reasons that follow, PPINK is entitled to an injunction as to all of the challenged provisions. PPINK is likely to succeed on the merits of its challenge to the anti-discrimination provisions because they directly contravene the principle established in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that a state may not prohibit a woman from making the ultimate decision to have an abortion prior to fetal viability. Similarly, the information dissemination provision is likely unconstitutional as it requires abortion providers to convey almost certainly false information to their patients. In addition, PPINK faces irreparable harm of a significantly greater magnitude if these provisions are not enjoined than that faced by the State from an injunction.

PPINK's challenges to the fetal tissue disposition provisions present a much closer call and present difficult legal questions about which there are few clear answers. In the end, however, the Court concludes that the State's asserted interest in treating fetal remains with the dignity of human remains is not legitimate given that the law does not recognize a fetus as a person. Therefore, PPINK has a strong likelihood of success on its substantive due process challenge to these provisions as well. Because the balance of harms also favors PPINK regarding this claim, PPINK has demonstrated that the Court should enjoin the fetal tissue disposition provisions pending resolution of this litigation.

Accordingly, PPINK's Motion for Preliminary Injunction is GRANTED (Filing No. 7).

I. LEGAL STANDARD

A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

To obtain a preliminary injunction, a party must establish [1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.

Grace Schools v. Burwell , 801 F.3d 788, 795 (7th Cir.2015) ; Winter , 555 U.S. at 20, 129 S.Ct. 365. "The court weighs the balance of potential harms on a ‘sliding scale’ against the movant's likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor." Turnell v. CentiMark Corp. , 796 F.3d 656, 662 (7th Cir.2015). "The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief." Stuller, Inc. v. Steak N Shake Enterprises, Inc. , 695 F.3d 676, 678 (7th Cir.2012) (citation and internal quotation marks omitted). "Stated another way, the district court ‘sit [s] as would a chancellor in equity’ and weighs all the factors, ‘seeking at all times to minimize the costs of being mistaken.’ " Id. (quoting Abbott Labs. v. Mead Johnson & Co. , 971 F.2d 6, 12 (7th Cir.1992) ).

II. BACKGROUND

PPINK is a non-profit healthcare provider which offers reproductive healthcare, family planning, and preventive primary-care services. It operates twenty-three health centers in Indiana and two in Kentucky. Three of the Indiana health centers, located in Bloomington, Merrillville, and Indianapolis, provide surgical abortion services to patients. Surgical abortions are available at these centers only through the first trimester of pregnancy. Plaintiff Dr. Levine is one of the physicians who provides surgical abortions for PPINK.

The Indiana legislature recently passed HEA 1337, which becomes effective on July 1, 2016. HEA 1337 creates several new provisions and amends several others regarding Indiana's regulations of abortion and practices related to abortions. 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 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 provision 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 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 pregnancy. 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.

The parties are essentially in agreement that a significant number of women have...