937 F.3d 864
7th Cir.2019Background
- Whole Woman’s Health Alliance (Alliance) sought to open a medication-abortion-only clinic in South Bend, Indiana, but the Indiana Department of Health denied or stalled its licensing for nearly two years after extensive document requests and an adverse finding based on "affiliate" disclosures.
- Alliance filed administrative appeals; an ALJ recommended granting a license, but the Department’s Appeals Panel reversed based on a broad "control/affiliate" theory; the legislature later amended the statute to define "affiliate."
- Alliance submitted a new application conceding certain affiliations and provided a sworn declaration that no clinics had been closed for health/safety reasons; the Department thereafter issued sweeping document requests and has not decided the second application.
- Alliance sued, alleging Indiana’s licensing regime (as applied) violates the Fourteenth Amendment (Due Process/undue burden and Equal Protection); district court granted a preliminary injunction enjoining enforcement against the South Bend clinic.
- The Seventh Circuit found the district court’s wholesale invalidation of the licensing scheme overbroad, but concluded the record shows likely undue burden and possible pretext in the Department’s handling; it directed the injunction be modified to require the state to treat the South Bend clinic as provisionally licensed while preserving the state’s inspection/regulatory powers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alliance is likely to succeed on an undue-burden (Due Process) claim | Dept.'s repeated, expansive requests and delay impose a substantial obstacle to northern Indiana women’s access to pre-viability abortions | Licensing is a legitimate regulatory tool to protect patient safety and fetal life; process was bona fide | Court: Alliance likely to succeed on undue-burden claim as applied; record shows troubling, possibly pretextual administrative conduct; injunction (narrowed) stands |
| Whether Equal Protection is likely to succeed (medication abortion vs. identical medical use for miscarriage) | Licensing discriminates between identical uses of medications for abortion vs. miscarriage | Licensing legitimately distinguishes abortion-related services for regulation | Court: did not decide on merits of Equal Protection because undue-burden finding was sufficient at this stage |
| Whether the Department acted with constitutionally permissible purpose (pretext) | Department’s changing, broad requests and refusal to accept sworn declarations suggest purpose was to block clinic rather than vet safety | Department argues requests and investigatory steps were reasonable and grounded in concerns about affiliates and past complaints | Court: factual record supports concern that Department’s process may be pretextual; further factual development warranted |
| Proper scope/remedy of preliminary relief | Alliance sought exemption from licensing to open clinic during litigation | State argued injunction erodes licensing scheme and regulatory authority | Court: modified injunction — enjoin enforcement only as to South Bend clinic and require state to treat it as provisionally licensed (or grant provisional license), preserving inspection and regulation while case proceeds |
Key Cases Cited
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (undue-burden framework; courts must weigh benefits against burdens and scrutinize state evidence for pretext)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (undue-burden standard; substantial obstacle test)
- Roe v. Wade, 410 U.S. 113 (1973) (recognizes state authority to regulate abortion providers consistent with health/safety interests)
- Doe v. Bolton, 410 U.S. 179 (1973) (state may require licensed professionals to provide abortions within certain limits)
- Simopoulos v. Virginia, 462 U.S. 506 (1983) (state may require licensed facilities for abortions when related to health interests)
- Mazurek v. Armstrong, 520 U.S. 968 (1997) (states' authority to require licensed professionals for abortion affirmed)
- City of Richmond v. United States, 422 U.S. 358 (1975) (purpose matters; unconstitutional government action taken for an improper purpose is illegitimate)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (courts should not give uncritical deference to legislative findings when constitutional rights are implicated)