A Woman's Choice-East Side Women's Clinic v. Newman

• Decision Date: 09 November 1995
• Docket Number: No. IP 95-1148-C H/G.,IP 95-1148-C H/G.
• Citation: 904 F. Supp. 1434
• Parties: A WOMEN'S CHOICE-EAST SIDE WOMEN'S CLINIC; Indianapolis Women's Facility; A Clinic for Women, Inc.; Planned Parenthood of Central and Southern Indiana, Inc.; Fort Wayne Women's Health Organization, Inc.; Ulrich G. Klopfer, D.O.; Women's Pavilion, Inc.; and Friendship Family Planning Clinic of Indiana, on behalf of themselves and their patients seeking abortions, Plaintiffs, v. Scott C. NEWMAN, in his official capacity as Prosecuting Attorney for Marion County, and as representative of the class of all prosecuting attorneys in the State of Indiana; and John C. Bailey, M.D., in his official capacity as Commissioner of the Indiana Department of Health, Defendants.
• Court: U.S. District Court — Southern District of Indiana

904 F. Supp. 1434

A WOMEN'S CHOICE-EAST SIDE WOMEN'S CLINIC; Indianapolis Women's Facility; A Clinic for Women, Inc.; Planned Parenthood of Central and Southern Indiana, Inc.; Fort Wayne Women's Health Organization, Inc.; Ulrich G. Klopfer, D.O.; Women's Pavilion, Inc.; and Friendship Family Planning Clinic of Indiana, on behalf of themselves and their patients seeking abortions, Plaintiffs, v. Scott C. NEWMAN, in his official capacity as Prosecuting Attorney for Marion County, and as representative of the class of all prosecuting attorneys in the State of Indiana; and John C. Bailey, M.D., in his official capacity as Commissioner of the Indiana Department of Health, Defendants.

No. IP 95-1148-C H/G.

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

November 9, 1995.

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Simon Heller, Diane Curtis, The Center for Reproductive Law & Policy, New York City, Mary J. Hoeller, Dina M. Cox, Lewis & Wagner, Indianapolis, Indiana, Richard Waples, Cheri A. Harris, Indiana Civil Liberties Union, Indianapolis, Indiana, Colleen Connell, American Civil Liberties Union, Reproductive Freedom Project, Chicago, Illinois, for Plaintiffs.

Arend J. Abel, Jon Laramore, Office of the Indiana Attorney General, Indianapolis, Indiana, for Defendants.

MEMORANDUM OPINION ON MOTION FOR PRELIMINARY INJUNCTION

HAMILTON, District Judge.

The plaintiffs challenge the constitutionality of a new Indiana statute regulating abortions and seek a preliminary injunction against its enforcement. The law, known as Public Law 187, requires in almost all cases that at least 18 hours before an abortion can be performed, a woman must be given certain medical information and information concerning alternatives to abortion. Public Law 187 is similar to a Pennsylvania law upheld by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). Plaintiffs contend that differences between the Indiana law and the Pennsylvania law together with recently available evidence about the actual effects of such laws show that Public Law 187 violates the "undue burden" test adopted by the Supreme Court in Casey.

The court's decision on the motion for preliminary injunction is not the court's last word on this matter. It is instead a decision based on incomplete evidence in the face of threatened irreparable harm. As explained in detail below, the court concludes that plaintiffs have established a reasonable likelihood of prevailing on the merits of their challenges to Public Law 187. They have shown that Indiana's requirement that some information be provided "in the presence" of the woman at least 18 hours before the abortion is likely to impose an undue burden on a woman's right to choose whether to continue or terminate a pregnancy. Unlike the plaintiffs in Casey, the plaintiffs here have come forward with evidence showing that the burdens of the law are likely to prevent abortions for approximately 11 to 14 percent of women who would otherwise choose to have them. Plaintiffs have also shown that the "medical emergency" exception of Public Law 187 probably fails to meet constitutional standards. Under principles of Indiana law, and based on the law's legislative history, it appears that the mandatory disclosure and waiting period requirements apply even when compliance would cause severe but temporary physical problems for a woman, or when compliance would cause severe psychological harm. (However, as defendants have requested, the court will certify the state law issues of statutory interpretation for decision by the Supreme Court of Indiana before this court makes a final decision on the constitutional issues in this case.) Plaintiffs have also shown that enforcement of the law while this lawsuit is pending would cause irreparable harm to a significant number of women. On the other side of the scale, defendants have not shown that temporarily preserving the status quo is actually likely to cause substantial irreparable harm. The court will therefore enjoin enforcement of Public Law 187 pending a trial on the merits.

I. The Indiana Statute

Since long before 1995, Indiana has required physicians performing abortions to obtain the informed consent of their patients. Abortions in Indiana are criminal unless "the woman submitting to the abortion has filed her consent with her physician." Ind.Code § 16-34-2-1(1)(B). Informed consent generally requires that the patient be told the general nature of her condition, the proposed treatment or procedure, the expected outcome, the material risks, and the reasonable alternatives to the treatment or procedure. See Ind.Code § 27-12-12-2 (informed consent for purposes of medical malpractice action).

Indiana Public Law 187-1995 (referred to here as "Public Law 187") adds special mandatory disclosure and waiting period provisions for informed consent for abortions. The law requires in almost all cases that certain medical information and information about alternatives to abortion be provided to a woman orally at least 18 hours before she may have an abortion. Some of the medical information must be provided "in the presence of the pregnant woman." The law was to have gone into effect on September 1, 1995, but was enjoined from operation by this court's temporary restraining order.

The central provisions of Public Law 187 state:

An abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following conditions are met:

(1) At least eighteen (18) hours before the abortion and in the presence of the pregnant woman, the physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice nurse (as defined in IC XX-XX-X-X(b)), or a midwife (as defined in IC XX-XX-X-XX) to whom the responsibility has been delegated by the physician who is to perform the abortion or the referring physician has orally informed the pregnant woman of the following:

(A) The name of the physician performing the abortion.

(B) The nature of the proposed procedure or treatment.

(C) The risks of and alternatives to the procedure or treatment.

(D) The probable gestational age of the fetus, including an offer to provide:

(i) a picture of a fetus;

(ii) the dimensions of a fetus; and

(iii) relevant information on the potential survival of an unborn fetus;

at this stage of development.

(E) The medical risks associated with carrying the fetus to term.

(2) At least eighteen (18) hours before the abortion, the pregnant woman will be orally informed of the following:

(A) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care from the county office of family and children.

(B) That the father of the unborn fetus is legally required to assist in the support of the child. In the case of rape, the information required under this clause may be omitted.

(C) That adoption alternatives are available and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care.

(3) The pregnant woman certifies in writing, before the abortion is performed, that the information required by subdivisions (1) and (2) has been provided.

Ind.Code § 16-34-2-1.1. Anyone who "knowingly" or "intentionally" performs an abortion in violation of these requirements is subject to criminal penalties. Ind.Code §§ 16-34-2-1, 16-34-2-7.

Public Law 187 contains an exception to the disclosure and waiting period requirements when a woman faces a "medical emergency." As defined in Public Law 187, a "medical emergency"

means a condition that, on the basis of the attending physician's good faith clinical judgment, complicates the medical condition of a pregnant woman so that it necessitates the immediate termination of her pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of a major bodily function.

Ind.Code § 16-18-2-223.5. A physician who believes there is a medical emergency must provide information concerning that medical judgment to the woman:

When a medical emergency compels the performance of an abortion, the physician who will perform the abortion shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert:

(1) the woman's death; or

(2) a substantial and irreversible impairment of a major bodily function.

Ind.Code § 16-34-2-1.2.

II. The Parties and Their Claims

The plaintiffs are seven reproductive health care facilities that provide a range of services related to pregnancy and women's health, including abortions up to 12 weeks of gestation; and Ulrich G. Klopfer, a licensed physician in Indiana who performs abortions. Plaintiffs filed their complaint on August 24, 1995, asserting that Public Law 187 will impose undue burdens on women's constitutional right to choose to have an abortion.¹ Defendants are a class of all prosecuting attorneys in the State of Indiana, with Scott C. Newman of Marion County as representative of the class; and John C. Bailey, in his official capacity as Commissioner of the Indiana Department of Health.

On August 25, 1995, asserting that the enforcement of Public Law 187 would cause immediate and irreparable harm, plaintiffs filed a verified motion for a preliminary injunction and expedited hearing. Because Public Law 187 was scheduled to take effect September 1, 1995, the court treated the motion as also requesting a temporary restraining order with notice. Defendants filed a brief in opposition. After a hearing on August 30, 1995, the court entered a temporary restraining...