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Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health

United States Court of Appeals, Seventh Circuit

April 19, 2018

Planned Parenthood of Indiana and Kentucky, Inc., et al., Plaintiffs-Appellees,
v.
Commissioner of the Indiana State Department of Health, et al., Defendants-Appellants.

          Argued February 15, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-00763-TWP-DML - Tanya Walton Pratt, Judge.

          Before Bauer, Flaum, and Manion, Circuit Judges.

          Bauer, Circuit Judge.

         On March 24, 2016, the Governor of Indiana signed into law House Enrolled Act No. 1337 (HEA 1337), which created new provisions and amended others that regulate abortion procedures within Indiana. Shortly thereafter, Planned Parenthood of Indiana and Kentucky ("PPINK") filed a lawsuit against the Commissioner of the Indiana State Department of Health, the prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, and members of the Medical Licensing Board of Indiana (collectively, "the State"). PPINK sought declaratory and injunctive relief from three particular parts of the law: (1) the new provisions titled "Sex Selective and Disability Abortion Ban, " Ind. Code § 16-34-4 (2016), which prohibit a person from performing an abortion if the person knows the woman is seeking an abortion solely for one of the enumerated reasons (collectively, "the non-discrimination provisions"); (2) an added provision to the informed consent process, instructing those performing abortions to inform women of the non-discrimination provisions, § 16-34-2-1.1(a)(1)(K); and (3) numerous amendments to the provisions dealing with the disposal of aborted fetuses, §§ 16-34-3-4(a); 16-41-16-4(d); 16-41-16-5; 16-41-16-7.6 (collectively, "the fetal disposition provisions").

         The district court initially entered a preliminary injunction on June 30, 2016, and both parties subsequently filed motions for summary judgment. The court granted PPINK's motion for summary judgment on September 22, 2017, declaring the three parts of HEA 1337 unconstitutional and permanently enjoining the State from enforcing them.

         We affirm. The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason. Because the non-discrimination provisions are unconstitutional, so too is the provision that a woman be informed of them. Additionally, the amended fetal disposition provisions violate substantive due process because they have no rational relationship to a legitimate state interest.

         I. BACKGROUND

         PPINK provides reproductive health services and education to thousands of women throughout Indiana and Kentucky. At its Bloomington, Indianapolis and Merrillville centers, PPINK performs surgical abortions through the first trimester of pregnancy (approximately 14 weeks). At these three centers, as well as the Lafayette center, PPINK also performs non-surgical, or medication, abortions.

         A. The Non-Discrimination and Informed Consent Provisions

         HEA 1337 creates Indiana Code chapter 16-34-4, entitled "Sex Selective and Disability Abortion Ban." The various provisions of this chapter prohibit abortions at any time, including prior to viability, if the abortion is sought for a particular purpose. Specifically, the non-discrimination provisions state that "[a] person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking" an abortion: (1) "solely because of the sex of the fetus, " Ind. Code §§ 16-34-4-4, 16-34-4-5; (2) "solely because the fetus has been diagnosed with Down syndrome or has a potential diagnosis of Down syndrome, " or has been diagnosed or has a potential diagnosis of "any other disability, " §§ 16-34-4-6, 16-34-4-7; or (3) "solely because of the race, color, national origin, or ancestry of the fetus." § 16-34-4-8. The term "potential diagnosis" means "the presence of some risk factors that indicate that a health problem may occur, " § 16-34-4-3, and "any other disability" is defined as "any disease, defect, or disorder that is genetically inherited, " including both physical and mental disabilities. § 16-34-4-1.

         Under Indiana law, it is a felony to knowingly and intentionally perform an abortion that is prohibited by law. See § 16-34-2-7(a). Moreover, a person who knowingly and intentionally provides an unlawful abortion is subject to (1) "disciplinary sanctions, " and (2) "civil liability for wrongful death." § 16-34-4-9(a).

         Indiana law requires that certain information be provided to a woman at least 18 hours prior to the abortion as part of the voluntary and informed consent process. See § 16-34-2-1.1(a). HEA 1337 adds a new provision requiring the abortion provider to inform a woman "[t]hat Indiana does not allow a fetus to be aborted solely because of the fetus's race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability." § 16-34-2-1.1(a)(1)(K).

         According to the State, the non-discrimination provisions were prompted by the medical advances of non-invasive genetic testing which allow for the detection of disabilities at an early stage in the pregnancy. In particular, cell-free DNA testing, which screens for several genetic disabilities such as Down syndrome, can occur as early as 10 weeks into the pregnancy. PPINK does not provide genetic testing, but is aware that it performs abortions for women solely because of the diagnosis or potential diagnosis of Down syndrome and other disabilities. PPINK and the State agree that the rate of women seeking an abortion due to the diagnosis or potential diagnosis of a genetic disability will likely increase as these tests become more widespread.

          B. The Fetal Disposition Provisions

         HEA 1337 also changes the manner in which abortion providers must dispose of aborted fetuses. HEA 1337 did not alter the provision of the Indiana Code that gives a woman "the right to determine the final disposition of the aborted fetus." § 16-34-3-2(a). Prior to the enactment of HEA 1337, if a woman decided to let the abortion facility dispose of the fetus, Indiana regulations state that the facility must either bury or cremate the fetus. See 410 Ind. Admin. Code § 35-2-1(a). Those regulations specify that cremation means "incineration by a crematory, or incineration as authorized for infectious and pathological waste" under Indiana law. 410 Ind. Admin. Code § 35-1-3. Infectious waste includes pathological waste, Ind. Code § 16-41-16-4(b)(1), and pathological waste is defined as "(1) tissue; (2) organs; (3) body parts; and (4) blood or body fluids in liquid or semiliquid form; that are removed during surgery, biopsy, or autopsy." § 16-41-16-5.

         Thus, prior to the enactment of HEA 1337, a woman might decide to dispose of the aborted fetus herself; or the facility that provided the abortion might dispose of the fetus through incineration along with other surgical byproducts. PPINK has utilized a contractor who periodically incinerates aborted fetuses along with other surgical byproducts.

         HEA 1337 alters the manner in which an abortion provider must dispose of an aborted fetus if the woman elects not to dispose of it herself. Specifically, the new law states that "[a]n abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transmit permit requirements of [Indiana Code] 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated." § 16-34-3- 4(a). A "burial transmit permit" is a "permit for the transportation and disposition of a dead human body" as required under Indiana law. § 23-14-31-5. The amended provisions also state that "[a]borted fetuses may be cremated by simultaneous cremation." § 16-34-3-4(a).

         Moreover, HEA 1337 changed the definitions of both infectious and pathological waste, stating that these terms "do[] not include an aborted fetus or a miscarried fetus." §§ 16-41-16-4(d), 16-41-16-5. Thus, abortion providers like PPINK will no longer be able to contract with third parties to incinerate aborted fetuses with other surgical byproducts. Rather, the law will require PPINK to bury, cremate, or entombed the aborted fetuses, although the fetuses may be cremated simultaneously.

         C. Procedural History

         On April 7, 2016, two weeks after the Indiana Governor signed HEA 1337, PPINK filed a complaint in the Southern District of Indiana seeking declaratory and injunctive relief from the non-discrimination and fetal disposition provisions, which it alleged were unconstitutional. HEA 1337 was to go into effect on July 1, 2016. After extensive briefing and oral argument, the district court determined on June 30, 2016, that PPINK was likely to succeed on the merits, and granted a preliminary injunction barring the State from implementing and enforcing these provisions.

         Both PPINK and the State moved for summary judgment. On September 22, 2017, the district court granted PPINK's motion for summary judgment and entered a permanent injunction declaring the non-discrimination and fetal disposition provisions unconstitutional. Planned Parenthood of Ind. & Kent., Inc. v. Comm'r, Ind. State Dep't of Health, 265 F.Supp. 3D 859 (S.D. Ind. 2017). The court found that the non-discrimination provisions clearly violate Supreme Court precedent that a woman has the right to terminate her pregnancy prior to viability without undue interference from the State. Id. at 865-69. Having found those provisions unconstitutional, the court also held that the informed consent provision on the non-discrimination provisions was unconstitutional. Id. at 869. Finally, the court held that although the fetal disposition provisions do not implicate a fundamental right, they violate substantive due process because they lack a rational relationship to a legitimate governmental interest. Id. at 869-72.

         II. DISCUSSION

         We review a grant of summary judgment de novo, construing all factual disputes and reasonable inferences in favor of the non-moving party. Golla v. Office of Chief Judge of Cook Cty., Ill., 875 F.3d 404, 407 (7th Cir. 2017). The moving party is entitled to summary judgment as a matter of law if they have shown there is "no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a).

         A. The Non-Discrimination Provisions Violate a Woman's Fourteenth Amendment Right to Terminate Her Pregnancy Prior to Viability

         Forty-five years ago, the Supreme Court recognized that the right to privacy, as rooted in the Due Process Clause of the Fourteenth Amendment's concept of liberty, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, 410 U.S. 113, 153 (1973). The Court in Roe recognized that "this right is not unqualified, " and that it must be balanced "against important state interests in regulation." Id. at 154. Roe developed a rigid trimester framework by which to balance the competing interests. Id. at 164-65.

         Although the Supreme Court abandoned the trimester framework when it revisited Roe's holding nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey, it reaffirmed what it labeled as Roe's "essential holding:"

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.

505 U.S. 833, 846 (1992) (plurality opinion).

         The Court in Casey drew the line between a woman's privacy right and the State's interest in protecting the potential life of a fetus at viability. Id. at 870. Importantly, Casey's holding that a woman has the right to terminate her pregnancy prior to viability is categorical: "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." Id. at 879 (emphasis added). Since Casey, this unambiguous holding has continued to be recognized as controlling precedent by the Supreme Court and this Court. See Gonzales v. Carhart, 550 U.S. 124, 146 (2007); Stenberg v. Carhart, 530 U.S. 914, 921 (2000); Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962, 987 (7th Cir. 2012).

         Casey, like Roe, also noted that this right was not absolute. Casey, 505 U.S. at 875-76. "The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted." Id. at 876. Accordingly, Casey introduced the undue burden standard: a state regulation creates an undue burden on a women's right to terminate her pregnancy if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877. The Court in Casey elaborated that these sort of regulations prior to viability "must be calculated to inform the women's free choice, not hinder it." Id. (emphasis added). Thus, while the State may enact measures to inform a woman's choice to terminate her pregnancy, the State may not prohibit the woman from making "the ultimate decision." Id. at 878-79.

         The non-discrimination provisions clearly violate this well-established Supreme Court precedent, and are therefore, unconstitutional. The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose. These provisions are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State. Id. at 879 ("a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.") (emphasis added). We are bound to follow that Supreme Court precedent. See Karlin v. Foust, 188 F.3d 446, 495 (7th Cir. 1999). Unsurprisingly, other circuits who have dealt with prohibitions prior to viability have had no trouble striking them down. See, e.g., MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (statute prohibiting pre-viable abortions where the fetus has a detectable heartbeat); McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (statute prohibiting pre-viable abortions where fetus is at least 20 weeks gestational age); Edwards v. Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (statute prohibiting pre-viable abortions after twelve weeks where the fetus has a detectable heartbeat).

         The State knows we cannot overturn Supreme Court precedent; rather, it argues that the non-discrimination provisions are reconcilable with this precedent. The State creatively suggests that Casey only reaffirmed a woman's "binary choice" of whether or not to have a child prior to viability. See Casey, 505 U.S. at 851 ("Our cases recognize 'the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'") (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)). In other words, according to the State, Casey only recognized a privacy right in the binary decision of whether to bear or beget a child, but that right is not extended to the decision to terminate a particular child.

         Neither Casey, nor any other case, supports this "binary choice" theory. Under this theory, a woman may terminate her pregnancy if she decides before becoming pregnant that she does not want to bear a child at all, but she has no right to terminate the pregnancy if she determines after becoming pregnant that she does not want a particular child. Nothing in Roe, Casey, or any other case from the Supreme Court can be read to limit a woman's right in this way. Moreover, no court, let alone the Supreme Court, has recognized such a limitation. Rather, Casey held that the State may not prohibit a woman from making the "ultimate ...


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