South Bend Abortion Clinic Gets Go-Ahead From Federal Judge

Katie Stancombe for www.theindianlawyer.com

A federal judge has granted an abortion provider’s motion for a preliminary injunction to open the doors of a South Bend abortion clinic without a state-required license, prompting an immediate appeal from the state.

In a 74-page Friday order, Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana granted Texas-based Whole Woman’s Health Alliance’s motion for a preliminary injunction to open its abortion clinic doors in northern Indiana following a lengthy legal battle.

WWHA’s initial application for the clinic was rejected when the Indiana Department of Health said the provider did not meet requirements of having “reputable and responsible character,” and failed to disclose necessary information on its application.

During a second application met with lengthy setbacks and request from the department, WWHA sued the state, arguing its sweeping statutory and regulatory restrictions on providing and obtaining abortions were unconstitutional.

The clinic operator also sought a preliminary injunction and temporary restraining order to allow the South Bend abortion clinic’s doors to open, prompting Barker to consider arguments from both parties in April.

Barker on Friday sided with WWHA in concluding that the application of the state’s licensing law violates the Due Process Clause and the Equal Protection Clause of the 14th Amendment.

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health Alliance, said the road has been long, but northern Indiana families will finally have a place to turn to “for safe, compassionate abortion care.”

“The ruling is clear — the court sees the undue burden that women in northern Indiana face when seeking to end a pregnancy,” Hagstrom Miller said. “We came to South Bend at the request of members of the community and we are happy to say we can soon open our doors.”

In the order, Barker noted there is an “unmet demand for abortion services in and around South Bend,” determining that the department’s application of the licensing law to WWHA’s license application placed a “substantial obstacle in the path of northern Indiana women seeking pre-viability abortions without promoting women’s health.”

“Defendants place great reliance on the Department’s authority to inspect (or conduct ‘surveys’ of) abortion clinics but have not shown how that authority is contingent on the clinics’ licensure,” the order states. “The statute says simply, ‘[The Department] shall inspect an abortion clinic at least one (1) time per the calendar year and may conduct a complaint inspection as needed.

“All that is required is for the Department to know where the clinic is located, a goal which licensure does achieve, but which could equally well be achieved by a registration requirement.”

Barker, therefore, concluded that the state showed “little more than de minimis marginal advancement” relative to pre-2013 law, of its legitimate interests in maternal health and fetal life derived from requiring licensure as a condition of providing medical abortions.

The state’s argument was “weaker yet” regarding WWHA’s equal protection claims, the order continued.

The federal judge noted that the state’s interest in administering its own licensing and regulatory regimes on its own terms was not admissible under Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1992) or Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), and that the marginal benefits to obtaining a license before operating the South Bend Clinic were “slight or none.”

“Defendants have not shown why the state’s interests, to the extent they are advanced by a licensing requirement at all, may not be equally well advanced by a registration requirement,” Barker wrote. “A licensing requirement is thus ‘not necessary’ to achieve the state’s proffered ends.”

Additionally, the federal judge added that to the extent the licensing law advances state interests, continued application of the “reputable and responsible character” requirement does little to advance them.

“These de minimis benefits are dwarfed by the burdens of women’s access to abortion in and around South Bend,” she wrote. “Simply put, there is unmet demand for abortions in and around South Bend which is, at this point, state-created, without any appreciable benefit to maternal health or fetal life.”

The court, therefore, concluded that WWHA had a better than negligible chance of showing that the burdens on abortion access imposed by the state’s licensing laws “significantly exceed what is necessary” to advance the state’s interest.

Indiana Attorney General Curtis Hill responded Sunday by appealing Barker’s ruling to the 7^th Circuit Court of Appeals. The AG’s office additionally requested an immediate stay to prevent the clinic from opening until the state’s appeal is considered.

“Criminal and civil penalties can only punish violations of the law after they occur. Licensing makes violations less likely to happen in the first place,” Attorney General Curtis Hill said in a Monday statement. “This is precisely why states have licensed the legal and medical professions since the mid-nineteenth century. Requiring abortion clinics to be licensed facilities is entirely reasonable and constitutional. For that matter, it’s the very least we should do to protect the health of women and unborn children.”

Hill further argued the state has good reasons for requiring abortion clinics to be licensed, such as its interest in protecting the health of mothers and preserving the life of a fetus.

“This federal judge seems to believe that every large city in the state is entitled to its own abortion clinic,” Hill stated. “She further seems to think that state licensing requirements must give way whenever a clinic proposes to open in a city without one. The U.S. Supreme Court has never even remotely implied that such a rule exists.”

Jackie Appleman, executive director of St. Joseph County Right to Life, said, “We are appalled that the federal judge would completely undermine the state’s ability and right to license. … Even our hair and nail salons need to be licensed, so now you’re allowing a business that hands out medication to be unlicensed. That’s very dangerous.”

Appleman added that the ruling demonstrates WWHA’s “complete disregard for women’s health and reveals that their only interest is in selling abortion at any costs.”