194 F. Supp. 3d 818
S.D. Ind.2016Background
- Plaintiffs Planned Parenthood of Indiana and Kentucky, Inc. and Dr. Marshall Levine (PPINK) challenged provisions of Indiana House Enrolled Act No. 1337 (HEA 1337) and moved for a preliminary injunction preventing enforcement when the law would take effect July 1, 2016.
- HEA 1337: (1) bars pre-viability abortions sought "solely" for enumerated reasons (fetal sex, race/ancestry, or diagnosis/possible diagnosis of Down syndrome or other disability); (2) requires providers to inform patients that such abortions are prohibited; and (3) changes disposition rules so fetal remains must be interred or cremated (excluded from "infectious waste").
- PPINK operates Indiana surgical-abortion clinics limited to the first trimester and says many patients seek abortions for the enumerated reasons; new testing (cell-free fetal DNA) increases such decision timing.
- The statute imposes criminal, disciplinary, and civil (wrongful-death) consequences for disallowed abortions; the information requirement would force providers to convey the prohibition to patients.
- PPINK showed increased compliance costs for mandated disposition (higher annual costs and up-front cemetery/crypt expenses) and asserted constitutional harms to patients and providers.
- The district court held a hearing and enjoined enforcement of the anti-discrimination provisions, the information requirement, and the fetal-tissue disposition provisions pending litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of anti-discrimination bans on pre-viability abortions | Bans unlawfully prohibit pre-viability abortions and violate the liberty/privacy right recognized in Roe/Casey; categorically unconstitutional. | The law furthers anti-discrimination and the State's interest in potential life; Roe/Casey do not address this novel regulation and do not forbid it. | Court: Likely success for PPINK — bans conflict with Roe/Casey categorical pre-viability protection; enjoined. |
| Compelled information to patients about the ban (First Amendment) | Requiring providers to state the prohibition compels false/untruthful speech and compelled listening; violates First Amendment. | Claim derivative of Fourteenth Amendment; if ban unconstitutional, the statement is misleading; but otherwise permissible if truthful and non-misleading. | Court: Likely success for PPINK — the required statement would be false/misleading given the Fourteenth Amendment violation; enjoined. |
| Fetal tissue disposition requirements (substantive due process) | Mandated interment/cremation and excluding fetal tissue from "infectious waste" lack any legitimate state interest because a fetus is not a legal "person"; law is arbitrary and irrational. | State asserts interests in treating fetal remains with dignity and promoting respect for life; democratic enactment and sanitary concerns. | Court: Likely success for PPINK on substantive due process — State lacks a legitimate interest in treating fetal tissue like human remains; balance of harms slightly favors PPINK; enjoined. |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (recognition of pre-viability right to choose abortion)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (reaffirming Roe and articulating pre-viability/viability framework)
- Gonzales v. Carhart, 550 U.S. 124 (discussing state interest in respect for potential life)
- Stenberg v. Carhart, 530 U.S. 914 (applying Roe/Casey principles to strike down an abortion restriction)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (standard for preliminary injunctions)
- Planned Parenthood of Indiana, Inc. v. Commissioner, 699 F.3d 962 (7th Cir.) (treating pre-viability abortion right as an absolute bar to categorical bans)
- Grace Schools v. Burwell, 801 F.3d 788 (7th Cir.) (articulating Winter/slide-scale preliminary-injunction framework)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.) (presumption of irreparable harm for certain constitutional violations)