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

United States Court of Appeals, Seventh Circuit

July 25, 2018

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

          Argued November 6, 2017

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-01807 - Tanya Walton Pratt, Judge.

          Before Bauer, Kanne, and Rovner, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         Since 1995, the State of Indiana has required that, at least eighteen hours before a woman has an abortion, she must be given information provided by the State about, among other things, the procedure, facts about the fetus and its development, and alternatives to abortion. That information is meant to advance the State's asserted interest in promoting fetal life. In other words, the State hopes that women who read that information and consider it will opt not to have an abortion, and will, instead, choose to carry the pregnancy to term. After she has received the mandated information, a woman must wait at least eighteen hours before having an abortion, thus, the State hopes, she will use the time to reflect upon her choice and choose to continue her pregnancy. The State also requires that a woman have an ultrasound and hear the fetal heartbeat prior to an abortion although she may decline the opportunity to do one or both, as 75% of women generally do.[1]

         Prior to July 1, 2016, women could, and generally did, have the ultrasound on the same day of the procedure. This was, in large part, because almost all abortions in Indiana occur at one of four Planned Parenthood of Indiana and Kentucky (PPINK) health centers, and only those few PPINK facilities that offer abortion services (most do not) had the ultrasound equipment on site. The Indiana House Enrolled Act 1337 (HEA 1337), however, amended Indiana law and now requires women to undergo an ultrasound procedure at least eighteen hours prior to the abortion. Because of the structure and location of abortion services in Indiana and the population of women seeking abortions, this change- moving the ultrasound from the day of the abortion procedure to at least eighteen hours before-as we will explore, is significant.

         PPINK filed suit against the Commissioner of the Indiana State Department of Health and the prosecutors of Marion County, Lake County, Monroe County, and Tippecanoe County (collectively, "the State"), all in their official capacities.[2] PPINK claimed that HEA 1337 unconstitutionally burdens a woman's right to choose to have an abortion, and it sought preliminary relief enjoining the provision during the pendency of the litigation. The district court granted the preliminary injunction. We agree with the well-reasoned conclusions of the district court opinion, from which we borrow heavily.

         I.

         A. Background information

         1. The new law

         Indiana Code § 16-34-2-1.1 mandates that at least eighteen hours prior to the abortion procedure, the patient must be provided with the following information (among others) both orally and in writing: "that human physical life begins when a human ovum is fertilized by a human sperm;" the probable gestational age of the fetus at the time the abortion is to be performed, including a picture of the fetus at certain gestational ages, and other information about the fetus at its current stage of development; notice that the fetus can feel pain at or before twenty weeks; information about the risks of abortion and of carrying the fetus to term, and information regarding alternatives to abortion and other support services available. Ind. Code § 16-34-2-1.1(a)(1)-(2). A woman seeking an abortion must also receive a color copy of a brochure, authored and distributed by the Indiana State Department of Health, that contains all of this same information. The State controls every aspect of the information conveyed to patients via this brochure-from the drawings, to the color, information about development, and wording of the risks of the procedures. Neither the brochure nor the informed-consent information has been challenged in this litigation.

         Prior to the enactment of the challenged law, Indiana required that "[b]efore an abortion is performed, the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone if the fetal heart tone is audible," unless the pregnant woman certified in writing, on a form drafted by the Indiana State Department of Health, that she declined to view the ultrasound or hear the fetal heart tone. Ind. Code § 16-34-2-1.1(b) (2011). In other words, the provider must offer the ultrasound, but a woman may affirmatively decline. Prior to 2011 the provider did not have to offer the ultrasound, but only had to provide one if specifically requested by the woman. P.L. 193-2011, Sec. 9. In fiscal year 2016, only approximately 25% of women seeking abortion services chose to view their ultrasound images and only approximately 7% chose to listen to the fetal heart tone. Most importantly for this litigation, before 2016, the statute did not mandate when the ultrasound must occur, other than prior to the abortion. As a practical matter, however, the ultrasound procedures were performed just before the abortion. Ultrasound equipment is expensive and scarce. Not all PPINK locations have it, but, at the time the new law was enacted, the four locations that perform abortions had the equipment. Although patients can receive their informed-consent consultations at any one of the seventeen PPINK health centers throughout Indiana, abortions are performed only at four locations throughout Indiana (surgical abortions are available only at three locations). Therefore, to prevent women from having to travel far distances eighteen hours apart, providers performed the ultrasound on the day of the abortion procedure at one of the four facilities that had ultrasound and performed abortions.

         The new statute, however, prevents this practice. It requires the following:

At least eighteen (18) hours before an abortion is performed and at the same time that the pregnant woman receives the information required by subdivision (1), the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone if the fetal heart tone is audible unless the pregnant woman certifies in writing, on a form developed by the state department, before the abortion is performed, that the pregnant woman:
(A) does not want to view the fetal ultrasound imaging; and
(B) does not want to listen to the auscultation of the fetal heart tone if the fetal heart tone is audible.

Ind. Code Ann. § 16-34-2-1.1(a)(5). PPINK argues that this requirement unduly burdens a woman's right to an abortion. Because PPINK's argument is based on the factual context, it is critical first to understand how PPINK health centers operate and where they are located.

         2. PPINK facilities

         At the time the law suit began, PPINK operated twenty-three health centers in Indiana. Due to financial constraints, that number has since dwindled to seventeen. Only four of the centers offer abortion services-Bloomington, Indianapolis, Merrillville and Lafayette-the latter of which offers only non-surgical abortions using medication. Of the centers that offer abortion services, the times these services are available are exceptionally limited. In Indianapolis, abortion services are only available three days per week; in Merrillville, a day and a half per week; and in Bloomington and Lafayette, only one day a week. R. 24-1 at 6. PPINK will perform a surgical abortion only until thirteen weeks and six days after the first day of a woman's last menstrual period. It will provide medication abortions only until sixty-three days after the first day of a woman's last menstrual period. Women who are pushing up against the time deadline may not be able to wait until a provider is available at the facility closest to them, but may need to travel to a more distant facility where a timely appointment can be made. The thirteen PPINK health centers that do not provide abortion services provide well-women examinations, screening for cancer and sexually transmitted diseases, treatment for sexually transmitted diseases and other preventative health care.

         There are no clinics in Indiana that perform abortions past these dates. The only providers of abortion services after these dates are hospitals and surgical centers (all of which happen to be located in Indianapolis) and those facilities generally only provide abortions that are medically indicated because of a fetal anomaly or a threat to a woman's health, and these are quite rare. Out of the 7, 957 abortions performed in Indiana in 2015 (the year before enactment of the new law), only 27 occurred in a hospital or surgical center. Only eighteen occurred after thirteen weeks. Indiana State Department, Terminated Pregnancy Report-2015, at pp. 7, 17, 18 (released June 30, 2016). Available at https://www.in.gov/isdh/files/2015%20TP%20Report.pdf [Last visited June 19, 2018].

         PPINK has attempted to expand its health services throughout Indiana, but it operates only seventeen centers spread across a large state and only four that provide abortions. This means that some women must travel great distances to obtain an abortion. For example, Indiana's second largest city, Fort Wayne, had a PPINK health center until July 9, 2018, but it did not provide abortion services. Now it has none.[3] The closest center providing such services is 115 miles away in Lafayette (a more than two hour drive).[4] There are also no out-of-state abortion clinics that are close to Fort Wayne.

         Prior to the enactment of the challenged law, women seeking abortions could have their state-mandated informed-consent session at any one of the seventeen centers across the state. At this appointment, which usually only lasted about fifteen minutes, health care providers also calculated the gestational age of the fetus based on the length of time from the first day of the last menstrual period. To make it more convenient for patients, PPINK allowed parents to bring children to these appointments. Women could then have an ultrasound, as required by then-existing state law, on the day of the procedure at the health center providing the abortion. PPINK would use that ultrasound information to verify that the pregnancy was intrauterine (and not ectopic) and to verify the gestational age to insure that the abortions are being performed within the required limits. An ultrasound is not medically necessary prior to an abortion, but the state requirement to perform an ultrasound is not challenged in this case, just the timing of it. Allowing the informed consent to be performed at any of the PPINK centers made it practical for women who live a long distance from the few centers that offer abortion services, by eliminating the need for multiple visits.

         Once the new law was enacted, requiring that the ultrasound take place at least eighteen hours prior to the abortion, the barriers for many women increased significantly. Because ultrasound machines were only available at the four PPINK centers that provide abortion services, women who lived a significant distance from one of those centers were faced with two lengthy trips to one of those facilities or an overnight stay nearby. PPINK attempted to ease that burden by purchasing one additional ultrasound machine for one health center that does not offer abortion services, and trained a staff member to use ultrasound equipment at another. Those expenditures exacted a heavy toll on the finances of the organization, and still did not ease much of the burden. The ultrasound machines PPINK uses cost approximately $25, 000 and must be operated by trained technicians. National Planned Parenthood policies, which are designed to align with generally accepted medical standards, require that an ultrasound image be interpreted by a physician or an advanced practice nurse. The nurse-practitioners at PPINK do not have the requisite training and PPINK asserts that it can afford neither the cost nor time to enroll nurses in the four-week training program.

         3. Population served

         The majority of women who seek abortion services at PPINK (and for that matter, the rest of the nation) are poor. The table below demonstrates the income level of patients relative to the federal poverty line (FPL).[5]

Income

% of pa-

Unknown

22%

0-100%

37%

101-150%

11%

151-200%

8%

201-250%

5%

251%

16%

R. 24-1 at 14. These women often have precarious employment situations and generally are not paid for days they do not work. Many of them already have one or more children. In 2016, 33.73 percent of PPINK patients reported that they had children living with them. R. 24-1 at 4-5.

         4. The district court's decision

         The district court carefully weighed the burdens identified by PPINK against the benefits the State hoped would accrue to its citizens-the protection of both fetal life and the mental health of women. It concluded that:

The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK's now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State's asserted justifications of promoting fetal life and women's mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a "very small" impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day before the abortion rather than the day of the abortion. Moreover, the law does not require women to view the ultrasound imagine [sic] at all, and seventy-five percent of PPINK's patients choose not to. For these women, the new ultrasound [law] has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women's constitutional rights.

Planned Parenthood of Ind. & Ky., Inc. v. Comm'r, Ind. State Dep't of Health, 273 F.Supp.3d 1013, 1043 (S.D. Ind. 2017).

         B. The legal standard

         We review the district court's grant of a preliminary injunction in this case for an abuse of discretion, reviewing legal issues de novo, factual findings for clear error, and giving deference to the district court's weighing of the evidence and balancing of the equities. Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ, 858 F.3d 1034, 1044 (7th Cir. 2017).

         To obtain a preliminary injunction, PPINK must establish that it has some likelihood of success on the merits; that it has no adequate remedy at law; that without relief it will suffer irreparable harm. City of Chicago v. Sessions, 888 F.3d 272, 282 (7th Cir. 2018). If that burden is met, the court must weigh the harm that the plaintiff will suffer absent an injunction against the harm to the defendant from an injunction, and consider whether an injunction is in the public interest. Id. Our court employs a sliding scale approach, "The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018) (internal citations omitted).

         The district court correctly noted that the need for and propriety of a preliminary injunction of this law would depend mostly on the likelihood of success on the merits. It therefore focused most of its attention, as do we, on that factor.

         II.

         A. The test articulated in Casey and Whole Women's Health

         The basic premise from which we must begin our review of the district court opinion is that the Supreme Court has recognized and affirmed "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State … [without] the imposition of a substantial obstacle to the woman's effective right to elect the procedure." Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992). But yet, "[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." Id. at 874. How then, do we determine whether a law's effects are incidental or unconstitutionally limiting? The Casey court set forth an undue burden test which declared that a state may not establish a regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus." Id. at 877. As the Casey court explained,

A statute with [an improper] purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.

Id. Recently, the Supreme Court reiterated this test noting that Casey held that a law is unconstitutional if it imposes an "undue burden" on a woman's ability to choose to have an abortion, meaning that it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Whole Woman's Health v. ...


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