Katie Stancombe for www.theindianalawyer.com
A federal judge Monday considered arguments stemming from a nonprofit’s lengthy legal battle to open an abortion clinic in South Bend, which was characterized by the judge as a potential legal stalemate that could be considered a “moving target.”
Questions were raised before Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana during a preliminary injunction hearing in a suit brought by Texas-based Whole Woman’s Health Alliance. The nonprofit is suing the state of Indiana after it was denied the request for a license to open a proposed nonsurgical abortion clinic.
The Indiana State Department of Health denied the license in November 2018 after an administrative panel rejected its application.
The rejection, according to the panel, was a result of Whole Woman’s failure to meet certain requirements of having “reputable and responsible character,” and because the nonprofit didn’t disclose necessary information on its application.
Whole Woman and co-plaintiff All-Options Pregnancy Resource Center sued the state — listing defendants Indiana Attorney General Curtis Hill, Department of Health commissioner Kristina Box and others — challenging the constitutionality of Indiana’s broad swath of statutory and regulatory restrictions on providing and obtaining abortions.
It additionally sought a preliminary injunction and temporary restraining order to allow its clinic doors to open. The Indiana attorney general’s office last week in response asked the judge to reject the group’s request, contending Indiana’s “interests in enforcement outweigh the harms WWHA might suffer pending a final decision on the merits.”
But Barker denied the state’s motion to dismiss, holding that the state failed to show it was entitled to relief on WWHA’s claims. The judge also concluded claims brought against Hill in his official capacity could stand within Ex parte Young, 209 U.S. 123 (1908), finding it not the case that the attorney general “would have no power to carry out” an injunction invalidating the challenged statutes.
Standing before Barker during the preliminary injunction hearing Monday, Lawyering Project attorney Rupali Sharma represented WWHA, arguing that the health department is “singling them out as an abortion provider and applying the licensing law against them in an arbitrary and discriminatory way.”
At the health department’s suggestion, the nonprofit reapplied for a license in January, providing additional information about the nonprofit’s existing clinics Texas and Virginia, as well as reports from inspections that were performed after it submitted its first application.
But the group, which contends it has complied with multiple requests for evidence and documentation since its initial rejection, contended that the department’s request for potentially hundreds of thousands of documents from WWHA in order to satisfy its requirements for the second license application would be nearly impossible to provide.
The unreasonably broad scope of documents requested, Sharma added, remains unclear and unexplained as it pertains to the issuance of a license. Although the application is currently pending, concerns remain that compliance is impossible under the department’s request.
Specifically, plaintiffs noted that on February 25, the department informed WWHA through its attorney that it would not evaluate the second application unless it responded and provided documents concerning the licensure and inspection of abortion clinics operated under Whole Women’s Health, a consortium of limited liability companies that owns and operates five abortion clinics in the U.S.
In the letter, the department requested WWHA provide “all copies of all reports, complaints, forms, correspondence and other documents that concern, mention or relate to any application(s) by an affiliate for licensure of or other permission to operate an abortion clinic at any time since or including Jan. 1, 2014.”
Sharma, who argued WWHA timely submitted all the requested documents that it could provide, defended that it would not be able to produce the entire voluminous set.
“We honestly don’t know and are unsure what else we could provide them,” she told the court.
Indiana Solicitor General Tom Fisher argued the department’s requests were “crystal clear” and that the formerly disputed affiliate issue was concrete.
“Common control is key here,” Fisher said, arguing that WWHA president Amy Hagstrom Miller was the connection between the South Bend clinic and national Whole Women’s Health clinics.
The nonprofit argued that Whole Woman’s Health is a legally and financially independent organization that conducts business with WWHA at an arm’s length. The two are not affiliated in any way pertaining to Whole Woman’s ownership structure, Sharma added.
But when asked if WWHA would have to explain away issues that arise at other Women’s Health clinics under the common control of Miller for the proposed South Bend clinic to prove its trustworthiness, Fisher said yes.
“Whoa,” Barker replied, followed by silence.
In Whole Woman’s Health Alliance et al. v. Curtis T. Hill Jr., et al., 1:18-cv-01904, the nonprofit contends prolonged litigation has placed an undue burden on potential clients and Hoosier women who have been and continue to be prevented from receiving services.
“The political, medically unnecessary obstruction on display by the state of Indiana in court today is part a broader agenda to attack abortion providers like Whole Woman’s Health Alliance and push quality care out of reach,” WWHA’s Hagstrom Miller said in a statement after the hearing.
“Women in South Bend need a place to turn for safe, compassionate abortion care, but for 18 months, state officials have stood in our way of making that care available. We’ve had enough of government officials bullying trusted abortion providers just because they feel they know what’s best for women,” Hagstrom Miller said. “It’s time for the court step in and act on behalf of women and families in Indiana.”
Fisher said he does not think there is evidence that the department wanted to pull the rug from underneath the proposed abortion clinic.