State Could Run Up More Legal Fees After Losing Abortion Case


State Could Run Up More Legal Fees After Losing Abortion Case

By Victoria Ratliff

INDIANAPOLIS—Attorney General Curtis Hill said he expects to appeal the state’s latest loss after a federal court judge ruled that Indiana’s newest abortion law is unconstitutional.

Hill said Tuesday in a written statement that his office is reviewing the ruling issued late Friday by Senior U.S. District Court Judge Sarah Evans Barker that blocked the abortion law passed in the 2019 legislative session.

The ruling is one in a string of losses in federal court for the attorney general’s office and it could lead to the state paying out more money in legal fees to the ACLU of Indiana, which represented the plaintiffs. The state’s Legislative Services Agency has noted in the past that the state has paid out about $290,000 in legal fees to plaintiffs and their lawyers.

In April 2019, Gov. Eric Holcomb signed House Enrolled Act 1211 into law that would ban a certain type of second trimester abortion called D&E—dilation and evacuation. D&E is the most common second trimester abortion method.

Ken Falk of the ACLU of Indiana. Photo By Brynna Sentel,

The law, which would have made performing that type of abortion a Level 5 felony, was supposed to take effect July 1. The ACLU along with Dr. Caitlin Bernard, one of two doctors in Indiana who offer the D&E procedures, filed a lawsuit in late April. The other physician who does the procedure is Dr. Hua Meng.

Barker, who was originally appointed to the federal bench by President Ronald Reagan, found that the ban on D&E abortions “imposes an ‘undue burden’ on a woman’s right to decide to have an abortion,” and limits a doctor’s ability to fully judge what the patient needs.

Bernard said in a written statement released by the ACLU that the law made it impossible for her to fully do her job, and that doctors must be able to use their best judgment without government interference.

“I am relieved that I can continue providing the best care for patients without risking prosecution,” she said.

ACLU of Indiana’s legal director and attorney for the case, Ken Falk, also said in the press release that he wasn’t surprise that the legislation was blocked.

“HEA 1211 would undoubtedly interfere with a woman’s access to abortion. This law is clearly unconstitutional,” he said.

Rep. Peggy Mayfield, R-Martinsville and author of the law, issued a statement saying she is disappointed in the ruling and will support Hill if he decides to appeal. She noted that a section of the law requiring additional reporting when there are complications from an abortion has gone into effect.

The state, in defending the law, argued that allowing the D&E procedure devalues human life. But Barker rejected that claim.

“Absent from Defendants’ submissions is any evidence that the provision of D&E in Indiana by physicians like Dr. Bernard and Dr. Meng has in any way coarsened or cheapened the attitudes of Hoosiers towards human life,” she said in the opinion.

Most of all, Barker found that the new law would severely limit women’s access to safe abortions during the second trimester.

She said alternatives to the D&E procedure “subject women to increased risk of physical, psychological, and economic harm for no medical benefit,” and that “they variously increase the cost of the procedure, the duration and pain of the procedure, the medical risks of the procedure, or all three.”

Barker, in striking down the law, said it requires alternatives that are medically riskier, more costly, less reliable, and in some instances simply unavailable, “while accomplishing little more than expressing hostility towards the constitutionally fundamental right of women to control their own reproductive lives as established in Roe.”

The state’s appeal would be filed with the 7thU.S. Circuit Court of Appeals.

FOOTNOTE:  Victoria Ratliff is a reporter for, a news website powered by Franklin College journalism students.