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Indiana Can Enforce Abortion Law After Court Lifts Block (1)

Sept. 8, 2021, 10:44 PMUpdated: Sept. 8, 2021, 11:47 PM

Indiana can enforce a set of laws that narrow access to abortion in the state after a federal appeals court overturned an injunction against the restrictions on Wednesday.

A lawsuit filed in the U.S. District Court for the Southern District of Indiana challenged a law requiring that abortion-inducing drugs be dispensed only by physicians, as well as measures requiring in-person counseling and examinations, second-trimester hospitalization, and a ban on telemedicine.

Abortion providers originally challenged 25 provisions of Indiana law. Judge Sarah Evans Barker dismissed challenges to laws relating to licensing, reporting, admitting privileges, and parental notification, among others, in October 2020. Barker issued the injunction against the remaining provisions in August.

The U.S. Court of Appeals for the Seventh Circuit lifted the injunction pending the appeal.

Each of the contested provisions have been in force for years, and precedent indicates Indiana is likely to prevail on the contested issues as the appeal develops, the appellate court said.

State laws requiring abortions be performed by physicians have been challenged before, and the U.S. Supreme Court held that they are constitutional, the panel said. The district court’s ruling declared that requiring a physical is unconstitutional with respect to medication abortions, but that exception doesn’t find any support in precedent, according to the appellate court.

Likewise, courts have reviewed the telehealth question before and found that an in-person requirement doesn’t impose an undue burden on access to abortion, the appellate court said.

Abortion providers argued, and the district court agreed, that developments in videoconferencing and improvements in medicine make the use of in-person meetings and hospitals or surgical centers unnecessary.

“The district court concluded that the findings permitted it to depart from the holdings of earlier cases,” the Seventh Circuit said. “Yet the Supreme Court insists that it alone has the authority to modify its precedents.”

Judges Joel M. Flaum and Frank H. Easterbrook joined the per curiam opinion. Judge Diane P. Wood dissented, writing she would deny the stay and allow the appeal to progress in normal fashion.

The district court’s rulings were grounded in careful and extensive findings of fact, and in my view scrupulously followed the Supreme Court’s guidance in this difficult area,” Wood wrote.

Indiana is instituting laws designed to chip away at protections in Roe v. Wade, “while piously purporting to protect women’s health,” she said.

“It is a mystery to me why the State is unwilling frankly to say that its laws regulating abortion are designed to discourage that procedure to the maximum extent that is constitutionally permissible,” Wood said.

The case is Whole Woman’s Health Alliance v. Rokita, 7th Cir., No. 21-2480, 9/8/21.

(Updates throughout with additional reporting)

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com