Planned Parenthood of Indiana and Kentucky, Inc., et al., Plaintiffs-Appellees,
Commissioner of the Indiana State Department of Health, et al., Defendants-Appellants.
February 15, 2018
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.
Bauer, Flaum, and Manion, Circuit Judges.
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
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.
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.
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.
The Non-Discrimination and Informed Consent
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.
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).
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." §
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
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.
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.
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).
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.
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.
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.
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).
The Non-Discrimination Provisions Violate a Woman's
Fourteenth Amendment Right to Terminate Her Pregnancy Prior
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.
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).
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.
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.
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
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.
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