Preliminary Injunction

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7^th Circuit Court of Appeals

Case Name: Whole Woman’s Health Alliance, et al., v. Todd Rokita, et al.,

Case No.: 21-2480; 21-2573

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

Focus: Preliminary Injunction 

The district court entered an injunction that prohibits officials from enforcing these provisions of Indiana’s law:

• Ind. Code §16-34-2-1(a)(1) to the extent this statute limits the provision of first-trimester medication abortion care to physicians; requires a physical examination to be performed on a woman prior to receiving an abortion; and prohibits the use of telemedicine by requiring the prescriber to be physically present at the abortion facility in order to dispense the abortion-inducing drug and the patient to ingest the drug in the physical presence of prescriber;
• Ind. Code §16-34-2-1(a)(2) providing that second trimester abortions be performed only in hospitals or ambulatory surgical centers;
• Ind. Code §16-34-2-1.1(a)(1), (a)(4), (b)(1) to the extent these provisions prohibit providers from using telemedicine or telehealth to obtain informed consent from patients or to conduct preabortion counseling sessions;
• Ind. Code §25-1-9.5-8(a)(4) prohibiting the use of telemedicine in abortion care;
• 410 Ind. Admin. Code §26-17-2(d)(1)(A), (4), (e)(5) requiring clinics providing aspiration abortions to maintain 120-square-foot procedure rooms, scrub facilities, and 44-inch corridors;
• 410 Ind. Admin. Code §26.5-17-2(e)(1) requiring medication abortion clinics to maintain housekeeping rooms with storage sinks;
• Ind. Code §16-34-2-1.1(a)(1)(E) and (a)(1)(G) requiring women seeking abortion services to be informed that “objective scientific information shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age” and that “human physical life begins when a human ovum is fertilized by a human sperm”; and
• Ind. Code §16-34-2-1.1(b)(2) to the extent it requires dissemination of a Perinatal Hospice Brochure containing the following: “Studies show that mothers who choose to carry their baby [sic] to term recover to baseline mental health more quickly than those who aborted due to fetal anomaly.”

2021 U.S. Dist. LEXIS 149959 at *207–08 (S.D. Ind. Aug. 10, 2021). The officials (collectively Indiana) request a stay of some aspects of this injunction: the “physician-only law as applied to medication abortions, Ind. Code §16-34-2-1(a)(1); [the] second-trimester hospital/ambulatory surgical center requirement, id. §16-34-2-1(a)(2); [the] in-person counseling requirement, id. §16-34-2-1.1(a)(1), (a)(4), (b)(1); [the] in-person physical examination requirement, id. §16-34-2-1(a)(1); and [the] telemedicine ban, id. §25-1-9.5-8(a)(4).”

All of the contested provisions have been in force for years, so a stay would preserve the status quo pending appellate resolution. And Indiana has made the “strong showing” on the merits necessary to receive a stay. See Nken v. Holder, 556 U.S. 418, 426, 434 (2009).

We leave the merits for resolution after full briefing and argument. All we hold today is that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues. To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court.

Stayed

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Derek A Hawkins is Corporate Counsel, at Salesforce.