14th Amendment – Abortion – Preliminary Injunction

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7^th Circuit Court of Appeals

Case Name: Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al.

Case No.: 19-2051

Officials: WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.

Focus: 14^th Amendment – Abortion – Preliminary Injunction

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 pre-viability 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.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.