PLANNED PARENTHOOD OF INDIANA, INC. et al v. COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF HEALTH et al

Filing 17

ENTRY Denying Motion for Temporary Restraining Order and Setting Hearing on Motion for Preliminary Injunction - Docket No. 9 is DENIED as it relates to Planned Parenthood's Motion for Temporary Restraining Order. The Court TAKES UNDER ADVISEM ENT Plaintiffs' Motion (Dkt. No. 9 ) to the extent it seeks a preliminary injunction. Preliminary Injunction Hearing set for 6/6/2011 at 09:00 AM in room #344, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Tanya Walton Pratt.(Court Reporter Fred Pratt.) (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PLANNED PARENTHOOD OF INDIANA, INC.,
MICHAEL KING M.D., CARLA CLEARY C.N.M,
LETITIA CLEMONS, and DEJIONA JACKSON,

)
)
)
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Plaintiffs,
)
)
v.
) Case No. 1:11-cv-630-TWP-TAB
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COMMISSIONER OF THE INDIANA STATE
)
DEPARTMENT OF HEALTH, DIRECTOR OF THE
)
INDIANA STATE BUDGET AGENCY,
)
COMMISSIONER OF THE INDIANA DEPARTMENT )
OF ADMINISTRATION, SECRETARY OF THE
)
INDIANA FAMILY AND SOCIAL SERVICES
)
ADMINISTRATION, THE PROSECUTOR OF MARION )
COUNTY, THE PROSECUTOR OF MONROE COUNTY)
and THE PROSECUTOR OF TIPPECANOE COUNTY, )
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Defendants.
)
ENTRY DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND
SETTING HEARING ON MOTION FOR PRELIMINARY INJUNCTION
This cause is before the Court on Plaintiffs’, Michael King, M.D., Carla Cleary, C.N.M.,
Letitia Clemons, Dejiona Jackson, and Planned Parenthood of Indiana, Inc. (“Planned
Parenthood”) (collectively, “Plaintiffs”), Motion for Temporary Restraining Order and
Preliminary Injunction [Dkt. 9]. The Court has considered the Plaintiffs’ brief in support of their
Motion, and conducted oral arguments on May 10, 2011. For the reasons set forth below, the
Court DENIES the Plaintiffs’ Motion to the extent that it seeks a temporary restraining order and
TAKES UNDER ADVISEMENT the Plaintiffs’ Motion to the extent that it seeks a preliminary
injunction, pending a hearing which will be held on Monday, June 6, 2011, at 9:00 a.m., in
Room 344 of the Birch Bayh Federal Building and United States District Courthouse, 46 East
Ohio Street, Room 344, Indianapolis, Indiana.

On Tuesday, May 10, 2011, Governor Mitch Daniels signed into law House Enrolled Act
1210 (hereinafter “HE 1210”), a portion of which went into effect immediately. Among other
things, this law has the effect of prohibiting Planned Parenthood from receiving State funding for
basic services which include cervical PAP smears, cancer screenings, sexually transmitted
infection testing and notification services, self examination instructions, and a variety of birth
control options, all of which are services completely unrelated to abortion services. Immediately
after Governor Daniels signed HE 1210 into law, Planned Parenthood filed an Emergency
Motion for Temporary Restraining Order and Preliminary Injunction with this Court. Plaintiffs’
proposed Temporary Restraining Order seeks to enjoin enforcement of HE 1210’s provision
relating to the defunding of Planned Parenthood which is codified as Indiana Code Section 5-2217-5.5 (b) through (d).
Federal Rule of Civil Procedure 65(b) provides that a temporary restraining order may be
issued without notice to the adverse party only if “specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition.”

(Emphasis added.)

Here,

Defendants have been put on notice regarding Plaintiffs’ Motion, but have not yet had a full
opportunity to respond in writing or provide any briefing on the legal issues that are before the
Court. The United States Supreme Court has observed that injunctive relief “is an extraordinary
and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion.” Goodman v. Illinois Dept. of Financial and Professional Regulation,
430 F.3d 432, 437 (7th Cir. 2005) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct.
1865, 138 L.Ed.2d 162 (1997)).

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The Court is not persuaded that Indiana Code Section 5-22-17-5.5 (b) through (d) will
have a concrete and immediate effect that would warrant the extraordinary remedy of enjoining
the law before the Defendants have the opportunity to fully contest the issues. The Court is
mindful that Planned Parenthood currently has several scheduled appointments and has alleged
that it will be unable to provide care to these patients. The Court is also mindful of Planned
Parenthood’s estimation that, as a result of this law, it will lose between $1.3 and $2 million
dollars in revenue annually which in turn, could cause approximately 13 health centers to be
closed and approximately 52 full-time employees to lose their jobs. But these are predictions
and, for purposes of this Motion, the Court is reticent to equate predictions with irreparable
harm. In other words, at this point, Planned Parenthood’s harm resembles a gradual deterioration
rather than in an immediate, irreparable harm, which is required for temporary injunctive relief.
This position is reinforced by reports confirming that Planned Parenthood is indeed open today
to see scheduled patients and, going forward, will be able to temporarily tap a Women’s Health
Fund to sustain operations. Further, Planned Parenthood has up to one year to submit those
billing claims incurred after today.
CONCLUSION
Given the exacting standard required for a temporary restraining order, Planned
Parenthood’s limited evidence, the fact that the parties have not yet had the opportunity to
conduct discovery and the fact that the State has not yet had the opportunity to fully respond,
Dkt. 9 is DENIED as it relates to Planned Parenthood's Motion for Temporary Restraining
Order. Because the Court TAKES UNDER ADVISEMENT Plaintiffs’ Motion [Dkt. 9] to the
extent it seeks a preliminary injunction, the parties are ordered to meet with Magistrate Judge
Baker on Wednesday, May 11, 2011, at 1:00 p.m., in Room 524 of this building to finalize an

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expedited discovery plan and briefing schedule. Again, the hearing on preliminary injunctive
relief shall be held on June, 6, 2011 at 9:00 a.m.

IT IS SO ORDERED.
5/11/2011
Date: _____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Hon. Tanya Walton Pratt, Judge
Southern District of Indiana
United States District Court
Southern District of Indiana

DISTRIBUTION:
Kenneth J. Falk
ACLU OF INDIANA
[e-mail], [e-mail], [e-mail]
Jan P. Mensz
ACLU OF INDIANA
[e-mail], [e-mail]
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Adam Clay
INDIANA ATTORNEY GENERAL
[e-mail], [e-mail], [e-mail]
Thomas M. Fisher
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail], [e-mail]
Heather McVeigh
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail], [e-mail]

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