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Whole Woman's Health Alliance v. Hill

United States Court of Appeals, Seventh Circuit

August 22, 2019

Whole Woman's Health Alliance, et al., Plaintiffs-Appellees,
Curtis T. Hill, Jr., et al., in his official capacity as Attorney General of the State of Indiana, et al., Defendants-Appellants.

          Argued July 11, 2019

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:18-cv-01904-SEB-MJD - Sarah Evans Barker, Judge.

          Before WOOD, Chief Judge, and Flaum and Easterbrook, Circuit Judges.


         Indiana, like many states, has an elaborate network of laws regulating abortion care. The present appeal presents a narrow question: is one provider entitled to a preliminary injunction against one part of those laws, as it relates to one clinic in one city? More will come along later, as the district court proceeds to resolve the underlying case, in which plaintiffs have asserted more broadly that various aspects of Indiana's abortion regime violate the Fourteenth Amendment's Due Process and Equal Protection Clauses. But the merits stage of the case is still in its infancy.

         The provider now before us is Whole Woman's Health Alliance ("the Alliance"). It is having trouble complying with Indiana's abortion laws, despite its attempts to do so. The Alliance has for the past two years been unable to obtain a license from the Indiana State Department of Health ("the Department"). It needs such a license in order to open a clinic that exclusively provides medication abortion care in South Bend, Indiana. After almost two years, two unsuccessful applications, a statutory amendment to relevant definitions, and a moving target of wide-ranging requests for information, the Alliance concluded that its attempts were futile and turned to the federal court for assistance. It filed a motion for a preliminary injunction that would exempt it from the licensing requirement, thereby allowing it to provide care at the South Bend clinic while the case proceeds.

         The district court granted the requested preliminary relief. It held that the Alliance has shown a likelihood of success on the merits of its claim that Indiana's requirement of licensure for clinics that provide only medication abortions (that is, those induced exclusively by taking pills), as applied to the South Bend clinic, violates both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. The state has taken an interlocutory appeal asking us to lift that injunction. See 28 U.S.C. § 1292(a)(1). While that appeal has been pending, we issued an order narrowing the scope of the district court's injunction, and we heard oral argument on the question whether the preliminary injunction should be stayed immediately. Briefing has been proceeding apace in the main appeal from the injunction, but we conclude that we now have enough before us to resolve that appeal as well as the narrower stay issue we considered at argument.

         We hold that the district court's broad condemnation of Indiana's licensing scheme runs contrary to Supreme Court precedent. While this litigation is pending, the state may for the most part administer that system in the ordinary course. Nonetheless, we have concerns about the state's handling of the Alliance's license application. Indiana may use licensing as a legitimate means of vetting and monitoring providers. To the extent that Indiana is using its licensing scheme to prevent the South Bend clinic from opening simply to block access to previability abortions, rather than as a legitimate means of vetting and monitoring providers, it is acting unconstitutionally. We therefore order the district court to modify the injunction to instruct Indiana to treat the Alliance's South Bend facility as though it were provisionally licensed. This respects the state's interest in regulating medical facilities, while at the same time it allows the Alliance to keep providing medication abortions at its South Bend clinic while the case proceeds.

         As the district court develops the record in this case, it may continue to examine whether the state has proceeded in good faith in its handling of the Alliance's license application, or if instead the apparently ever-changing requirements mask a decision to deny all such licenses. This inquiry includes but is not limited to whether the Department's conduct was a sincere attempt to ensure that the Alliance is a qualified provider that meets the requirements for a license, or pretext for an unconstitutional action.


         South Bend, Indiana, is the state's fourth largest city; the metropolitan area in which it is located has a population of about 320, 000.[1] (See U.S. Census, Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2018, .xhtml?pid=PEP_2018_PEPANNRES&src=pt (click "Add/Remove Geographies"; search location field for "South Bend-Mishawaka, IN-MI Metro Area"; click "Show Table")) (last visited Aug. 19, 2019). It is home to several colleges and universities, including world-renowned University of Notre Dame du Lac, and St. Mary's College, a Catholic women's private liberal arts institution. The nearest abortion clinic is in Merrillville, Indiana, 65 miles away. Other Indiana clinics exist in Lafayette (106 miles away), Indianapolis (150 miles away) and Bloomington (199 miles away).[2] Public transportation is not a realistic option for travel between South Bend and Merrillville (or any of the other cities with an abortion clinic). Women in the South Bend area therefore must arrange for private transportation-either twice or coupled with lodging arrangements-because Indiana requires women to wait 18 hours between first seeing their doctor and then receiving an abortion. The absence of a South Bend clinic thus makes access to abortion care more costly because of the increased time, money, and social isolation experienced by low-income women who live in northern Indiana. According to evidence presented to the district court, the travel and time costs led some women to skip bills, pawn belongings, or take out payday loans to cover the costs of abortion care, including not just the medical fees, but also the costs of transportation and lodgings. Patients often must travel alone, because of their own financial limitations or those of their families and friends, as well as for privacy reasons.


         In Indiana, as in other states, one does not simply open the doors of a clinic that provides abortion care without further ado. Instead, the state for many years has had a licensing regime. Indiana Code § 16-21-2-10 provides that a person "must obtain a license" from the Indiana Department of Health "before establishing, conducting, operating, or maintaining ... an abortion clinic." The licensing requirement initially applied only to clinics that offered surgical abortions, but in 2013 (and later in 2015 to address problems with the first version) Indiana amended its code to require licenses for medication-only clinics. See Abortion-Drugs and Medicine, 2013 Ind. Legis. Serv. P.L. 136-2013 (S.E.A. 371) (WEST); Health and Sanitation-Health Care Providers- Abortion, 2015 Ind. Legis. Serv. P.L. 92-2015 (S.E.A. 546) (WEST) (codified at Ind. Code § 16-18-2-1.5(a)).

         Indiana's licensing regime imposes several requirements on abortion clinics. Two are pertinent here: first, an applicant must show that it is "of reputable and responsible character"; second, it must "[d]isclose whether the applicant, or an owner or affiliate of the applicant, operated an abortion clinic that was closed as a direct result of patient health and safety concerns." It must include "administrative and legal documentation," "inspection reports," and "violation remediation contracts" related to any such disclosures. IND. Code § 16-21-2-11(a), (d).

         The Department has also promulgated administrative regulations to implement the licensing system. Those regulations state that the Department may deny a license for a variety of reasons, including because the applicant lacks "reputable or responsible character" or if its "application for a license to operate an abortion clinic or supporting documentation provided inaccurate statements or information." 410 IND. Admin. Code § 26-2-5(1), (7).


         In 2014 the Alliance began studying the possibility of opening a clinic in South Bend. On August 11, 2017, it filed a formal application to open a South Bend clinic exclusively for medication abortions, i.e. those effected through two drugs, mifepristone and misoprostol. Mifepristone is approved by the federal Food and Drug Administration (FDA) for abortions up to 70 days after the woman's last menstrual period; misoprostol is FDA-approved for the same early-term abortions, although the first use listed for it relates to ulcer prevention. See WebMD, Mifepristone 200 Mg Tablet Abortifacients, (last visited Aug. 20, 2019); WebMD, Misoprostol, https://www.webmd.eom/drugs/2/ drug-6111/misoprostol-oral/details (last visited Aug. 20, 2019). Medication abortions rarely give rise to complications: the district court cited one study of more than 230, 000 patients, who experienced a complication rate of 0.65 percent. Complications requiring hospital admission occurred in only 0.06 percent of cases; those needing emergency-room treatment accounted for 0.10 percent. Taking a cautious path, however, the FDA has authorized mifepristone and misoprostol for abortions only if the pills are given to the patient directly by a doctor; doctors may not write a prescription for a pharmacy to fill. The FDA has also authorized the use of these drugs, in the identical dosages and given in the same order, for the treatment of miscarriages.

         The Alliance amended its application on October 6, 2017, to cure several minor problems that a Department representative had identified. But that was only the beginning. Trent Fox, the Department's chief of staff, testified that the Alliance's application raised a few red flags for him. The Alliance was a new entity to the state. Fox had heard that a clinic administrator with ties to the Alliance had a connection to a doctor who surrendered his abortion-clinic license and lost his medical license. The Department also received letters from some Indiana state senators who indicated that they had received messages from constituents alleging health violations at Whole Woman's Health clinics throughout the country. The letters reminded the Department of Indiana's preference for "prolife" policies. In response to these complaints, Fox turned to the internet. There he found a website, not for the Alliance, but instead for an entity with the similar name Whole Woman's Health LLC. The website had a list of "Our Clinics" that included the hoped-for South Bend clinic and eight other clinics across the country with the name "Whole Woman's Health." In its application, the Alliance had stated that none of its affiliates had ever closed as a direct result of patient health and safety concerns, and so it disclosed no further information about any incidents.

         On October 27, 2017, the Department sent a second request to the Alliance for additional information about its application. It asked specifically for a "complete ownership structure" for the Alliance including "parent, affiliate or subsidiary organizations," and a list of "all the abortion and health care facilities currently operated by the applicant, including its parent, affiliate, or subsidiary organizations." At the time, "affiliate" was not defined in the statute, and, as Fox knew, the Indiana code contained several different definitions. But the Department offered the Alliance no guidance on what it meant by "affiliate." Indiana has characterized this omission as an intentional investigative technique designed to see whether the Alliance would disclose the other clinics that used the name "Whole Woman's Health."

         In fact, much depended on what was meant by "affiliate." The Alliance is a Texas 501(c)(3) nonprofit corporation that owns and operates two other abortion clinics in Virginia and Texas. The Alliance's president, CEO, and chair of the governing board of directors is Amy Hagstrom Miller. Before Hagstrom Miller founded the Alliance, she ran Whole Woman's Health LLC (WWH), which is a separate for-profit company. WWH is not a clinic of any kind. It is instead an administrative organization that contracts with different abortion care providers, including the Alliance, for the provision of various business services such as bookkeeping, human resources, regulatory compliance, public relations, and marketing. Throughout the country there are other for-profit LLCs that run abortion clinics under the name "Whole Woman's Health." Those clinics also contract with WWH for similar services. They are owned by another entity, which is in turn owned by Hagstrom Miller. Hagstrom Miller describes this network as a "consortium," though it appears that the organizations are united primarily by their common name, relationship to WWH as a provider of business services, and relationship with Hagstrom Miller.

         On December 8, 2017, the Alliance responded to the October 27 request by identifying and explaining the structure of the Alliance and its two other clinics. It said nothing about WWH or any of the other LLCs that use the name "Whole Woman's Health" and contract with WWH for business services. The Department found this to be a disingenuous response. On January 3, 2018, it sent a letter charging the Alliance with "fail[ing] to disclose, conceal[ing], or otherwise omitt[ing] information related to additional clinics." It accordingly denied the application based on the conclusion that the Alliance "fail[ed] to meet the requirement that the Applicant is of reputable and responsible character and the supporting documentation provided inaccurate statements or information."


         The Alliance filed an administrative appeal from that decision on January 22, 2018. It argued that the Alliance is a separate nonprofit entity and therefore was not under any obligation to disclose any information about the independently run WWH business-services company or other clinics around the country using the name Whole Woman's Health. An administrative law judge (ALJ) heard the appeal over two days in August 2018. There was extensive testimony about the Alliance, WWH, Hagstrom Miller, the license application, and the Department's review. The Department contended that Hagstrom Miller ultimately controls all of these organizations, if not enough to make their separation a legal fiction, at least enough to make them "affiliates."

         On September 14, 2018, the ALJ rejected the Department's position. She held that "no evidence provided during the proceedings ... [suggests that the Alliance's responses] were inaccurate, incomplete or misleading. The Alliance demonstrated by a preponderance of the evidence that their responses ... were complete and accurate." Indeed, the ALJ faulted the Department for a lack of diligence, noting that it said nothing to the Alliance about the specific concerns it had based on the senators' letters or its own "informal investigation" on the internet. The ALJ concluded that the Department failed ...

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