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Whole Woman’s Health Alliance v. Hill

Filed On

Jun 21, 2018

The Lawyering Project filed a lawsuit on behalf of Whole Woman’s Health Alliance, All Options Pregnancy Resource Center, and Dr. Jeffrey Glazer challenging 5 categories of laws in Indiana that restrict abortion: targeted regulation of abortion providers (TRAP) laws; laws that deny abortion patients the benefits of scientific progress; mandatory disclosure and waiting period laws; parental involvement laws; and criminal penalties.

Plaintiffs challenge the following TRAP laws: (1) the physician only requirement which prohibit licensed, qualified clinicians who are not physicians from providing abortions; (2) the facility licensure requirements which require facilities to obtain a license and meet medically inappropriate licensure requirements; (3) the ASC requirement, which requires abortions to be performed in an ASC or hospital after the first trimester of pregnancy; (4) the admitting privileges requirement which requires a physician performing an abortion to have either admitting privileges in the county where the physician performs abortions or in a contiguous county or a written agreement with a physician with such privileges; and (5) the reporting requirements which require abortion providers to complete and transmit to the Department a form reporting information about their patients and practices that the Department can make publicly available.

Plaintiffs also challenge Indiana laws that restrict the availability of medication abortion and halts medication abortion’s scientific development, specifically the dosage and administration restrictions, to the extent they prevent abortion providers from incorporating scientific advancements in the provision of medication abortion; and the physician examination requirement, which requires a medically unnecessary physical examination by the physician who provides the medication abortion; and the physical plant requirements which impose medically unnecessary facility requirements on facilities providing medication abortion care.

Plaintiffs challenge the following restrictions on the use of telemedicine: (1) the telemedicine restrictions, which state that a prescriber may issue a prescription to a patient via telemedicine if the prescriber has not previously examined the patient in person, unless the prescription is for an abortion inducing drug; and (2) the in-person examination requirement, which requires that a physician examine a pregnant patient “in person” before prescribing or dispensing an abortion inducing drug and states that “‘in-person’ does not include the use of telehealth or telemedicine services.” In addition, the state-mandated information requirement prevents a healthcare provider from providing state-mandated counseling through telemedicine.

Plaintiffs allege that Indiana’s mandatory disclosure and waiting periods law impose an undue burden on the right to an abortion and crosses boundaries set forth in Planned Parenthood v. Casey. Plaintiffs challenge the following laws: (1) the state-mandated information requirements, which, as applied by the Commissioner of the Indiana Department of Health, require abortion providers to give irrelevant, medically inaccurate, and ideologically charged information to their patients; (2) the state-printed materials requirements, which require abortion providers to distribute materials published by the Commissioner that contain irrelevant, medically inaccurate, and ideologically charged information; (3)  the ultrasound requirement, to the extent it requires providers to perform, and patients to undergo, often redundant and medically unnecessary ultrasound examinations; (4) the waiting period requirements, to the extent they require patients to receive certain state-mandated information at least eighteen hours before obtaining an abortion; and (5) the procedural requirements, which impose burdensome and medically unnecessary procedural mandates on abortion providers and patients in connection with the foregoing requirements.

With respect to parental involvement laws, Plaintiffs challenge the following provisions: (1) the parental consent requirement, which requires abortion providers to obtain written consent from a parent, legal guardian, or custodian of a minor patient before performing an abortion; (2) the requirements for judicial bypass, which govern the process by which pregnant minors or their “next friend[s]” may obtain a court order authorizing them to obtain an abortion without parental consent; (3) the abortion ban for minors who are a ward of the State, which prohibits the State or agency of the State with wardship or guardianship of a minor from consenting to an abortion unless a physician certifies that the abortion is necessary to avert the minor’s death or a substantial and irreversible impairment of a major bodily function; and (4) the reporting requirements for minor patients, which require providers to transmit to the State, sometimes within three days after an abortion is performed, information about their minor patients, which the State can make publicly available.

Finally, Plaintiffs challenge the criminal penalties that Indiana imposes on abortion providers: (1) Ind. Code § 16-34-2-7(a)–(b), which makes it a crime to perform an abortion in violation of Indiana law and carries a prison sentence of up to six years and fines up to $10,000; (2) Ind. Code § 16-21-2-2.5(b), which makes it a crime to advertise or operate an unlicensed abortion clinic and carries a jail sentence of up to one year and fines up to $5,000; and (3) Ind. Code § 16-34-2-5(d), which makes it a crime to fail to complete or timely transmit a state-mandated form reporting detailed information about a provider’s patients and practices and carries a jail sentence of up to one hundred eighty days and fines up to $1,000.

Plaintiffs allege that the laws violate their patients’ Equal Protection and Due Process rights under the 14th Amendment. They further allege that the mandatory disclosure requirements violate their own First Amendment rights to freedom of speech. They also allege that certain of the licensure requirements are vague in violation of the Due Process clause of the 14th Amendment.