392 F. Supp. 3d 935
S.D. Ind.2019Background
- Indiana enacted HEA 1211 (effective July 1, 2019), criminalizing "dismemberment abortion," defined to proscribe extraction of a "living fetus" piece-by-piece using instruments with converging rigid levers; suction dismemberment was excluded.
- HEA 1211 makes performing a prohibited procedure a Level 5 felony, with an exception where a physician's "reasonable medical judgment" requires the procedure to prevent serious maternal health risk or save the mother's life.
- Dilation and evacuation (D & E) is the predominant, generally safest, fastest, and most common second‑trimester abortion method; in Indiana only two known physicians perform D & E for previability second‑trimester abortions.
- Alternatives to standard D & E include induction of labor (medical induction), hysterotomy (major surgery), and D & E after induced fetal demise (digoxin, potassium chloride (KCl), or umbilical‑cord transection). Each alternative carries greater delay, cost, risk, or limited availability relative to standard D & E.
- Plaintiff Dr. Caitlin Bernard sued under 42 U.S.C. § 1983 seeking a preliminary injunction preventing enforcement of HEA 1211 as an undue burden on previability abortion rights; the court held a hearing and granted a preliminary injunction, enjoining enforcement of HEA 1211.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HEA 1211 imposes an undue burden on previability abortion rights | Bernard: ban effectively prohibits standard D & E, the common, safest second‑trimester method; alternatives (induction, hysterotomy, demise injections/transection) are riskier, costlier, slower, sometimes unavailable, and thus create a substantial obstacle | State: statute protects fetal dignity, prevents "brutal" dismemberment, preserves medical profession integrity, and may reduce regret or protect fetal life; statute permits some methods and allows exception for maternal health | Court: HEA 1211 likely unconstitutional as applied — it bans standard D & E and the alternatives are inadequate, so it imposes an undue burden; preliminary injunction granted |
| Whether HEA 1211 rationally advances the State's asserted interests | Bernard: record does not show a rational relation between the statute's narrow instrument‑based ban and the asserted interests; selective prohibition (lever‑convergence instruments but not suction) undermines the rationale | State: legitimate interests in protecting fetal dignity, distinguishing abortion from infanticide, and preserving medical ethics | Held: State interests are legitimate but the record fails to show HEA 1211 appreciably advances them relative to burdens imposed; statutory distinctions are not rationally tied to interests |
| Whether proposed fetal‑demise measures (digoxin, KCl, cord transection) are adequate, safe, and available alternatives | Bernard: demise methods are medically unnecessary, variably effective, add risk, cause delay and distress, and are not widely available or feasible in Indiana | State: these methods mitigate the statute’s effect by allowing D & E after induced demise or use other procedures | Held: court found the demise methods inadequate or unavailable in practice (efficacy limits, training/feasibility issues, risks); they do not cure the statute’s burdens |
| Whether a bodily‑integrity claim independent of undue‑burden analysis supports relief | Bernard: HEA 1211 forces patients into riskier, painful, or experimental procedures, implicating bodily‑integrity rights | State: case governed by undue‑burden abortion jurisprudence | Held: court declined to find an independent bodily‑integrity claim separate from undue‑burden doctrine at this stage; plaintiff did not show superior likelihood of success under that theory |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (constitutional right to choose previability abortion)
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (undue‑burden standard for previability abortion regulations)
- Gonzales v. Carhart, 550 U.S. 124 (upholding federal ban on intact D & E; recognized state interest in fetal dignity but distinguished standard D & E)
- Stenberg v. Carhart, 530 U.S. 914 (struck Nebraska ban that effectively prohibited standard D & E; undue burden analysis)
- Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (court must weigh benefits and burdens; invalidated health‑safety requirements that imposed substantial obstacles)