PLANNED PARENTHOOD v. COMMISSIONER, et al.

Filing 81

ORDER ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT: The Court GRANTS IN PART PPINK's Motion for Summary Judgment, [Filing No. 71]. The Court DENIES the State's Motion for Summary Judgment in all respects. [Filing No. 73.] No final judgment shall issue at this time (see Order for details). Signed by Judge Jane Magnus-Stinson on 12/3/2014. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC.,
Plaintiff,
vs.
COMMISSIONER, INDIANA STATE
DEPARTMENT OF HEALTH in his official
capacity, PROSECUTOR, TIPPECANOE
COUNTY, INDIANA in his official capacity,
Defendants.

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ORDER ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
Presently pending before the Court are the parties’ cross-motions for summary judgment.
[Filing No. 71; Filing No. 73.] Plaintiff Planned Parenthood of Indiana and Kentucky, Inc.
(“PPINK”) asks the Court to enter summary judgment enjoining Defendants Commissioner,
Indiana State Department of Health, and Prosecutor, Tippecanoe County (collectively, the “State”)
from enforcing Indiana Code §§ 16-18-2-1.5(a)(2) and 16-21-2-2.5(b), alleging that these statutes
are unconstitutional. [Filing No. 72 at 32-33.] In response, the State defends the constitutionality
of the statutes at issue and asks the Court to enter summary judgment in its favor. [Filing No. 73.]
As applied to a clinic that PPINK operates in Lafayette (the “Lafayette clinic”), PPINK
challenges the constitutionality of Indiana Code § 16-18-2-1.5(a)(2), which altered the definition
of “abortion clinic” to include any freestanding entity that “provides an abortion inducing drug for
the purpose of inducing an abortion.” It is undisputed that pursuant to the statutes at issue, PPINK
must modify the Lafayette clinic to comply with certain surgical facility physical plant
requirements, despite the fact that the Lafayette clinic only provides medication abortions and does

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not provide surgical abortions or perform any other surgical procedures. 1 PPINK contends that
the statute violates the Fourteenth Amendment rights of its patients to choose an abortion, PPINK’s
own substantive due process rights, and PPINK’s equal protection rights. For reasons detailed
below, the Court concludes that PPINK is entitled to summary judgment on its equal protection
claim regarding Indiana Code § 16-18-2-1.5(a)(2), as applied to the Lafayette clinic, but that
disputed issues of material fact preclude entering summary judgment on the other claims.
As applied to its clinics in Lafayette, Indianapolis, Bloomington, and Merrillville, PPINK
also challenges the constitutionality of Indiana Code § 16-21-2-2.5(b)—which provides that as of
July 1, 2013, the Indiana State Department of Health (“IDOH”) “may not exempt an abortion clinic
from … physical plant requirements.” PPINK contends that the waiver prohibition statute violates
its equal protection rights. For the reasons detailed below, the Court agrees and enters summary
judgment in favor of PPINK with regard to Indiana Code § 16-21-2-2.5(b).
I.
STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear,
whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the
asserted fact by citing to particular parts of the record, including depositions, documents, or

1

Indiana Code § 16-18-2-1.5(a)(2), though effective on July 1, 2013, amended the abortion clinic
definition as of January 1, 2014. However, the Court entered a preliminary injunction in favor of
PPINK on November 26, 2013, with regard to the Lafayette clinic after finding that PPINK had
shown a likelihood of success on its equal protection challenge to that statute. [Filing No. 54.]
Based on the presentation before it at the preliminary injunction stage, the Court concluded that
PPINK had not met its burden to obtain injunctive relief with regard to Indiana Code § 16-21-22.5(b) as applied to the Lafayette clinic. [Filing No. 54.]
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affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the
materials cited do not establish the absence or presence of a genuine dispute or that the adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
Affidavits or declarations must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R.
Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion
can result in the movant’s fact being considered undisputed, and potentially in the grant of
summary judgment. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court need only consider disputed facts
that are material to the decision. A disputed fact is material if it might affect the outcome of the
suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In
other words, while there may be facts that are in dispute, summary judgment is appropriate if those
facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would
convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d
892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th
Cir. 2009). The Court views the record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Darst v. Interstate Brands Corp., 512 F.3d
903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary
judgment because those tasks are left to the fact-finder. O’Leary v. Accretive Health, Inc., 657

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F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed. R. Civ. P.
56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that
they are not required to scour every inch of the record for evidence that is potentially relevant to
the summary judgment motion before them,” Johnson, 325 F.3d at 898. Any doubt as to the
existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension
Plan, 614 F.3d 684, 691 (7th Cir. 2010).
“The existence of cross-motions for summary judgment does not, however, imply that there
are no genuine issues of material fact.” R.J. Corman Derailment Servs., LLC v. Int’l Union of
Operating Engineers, 335 F.3d 643, 647 (7th Cir. 2003). Specifically, “[p]arties have different
burdens of proof with respect to particular facts; different legal theories will have an effect on
which facts are material; and the process of taking the facts in the light most favorable to the nonmovant, first for one side and then for the other, may highlight the point that neither side has
enough to prevail without a trial.” Id. at 648.
II.
BACKGROUND
A. Relevant Statutory Framework
The IDOH licenses and regulates hospitals, ambulatory outpatient surgical centers, birthing
centers, and abortion clinics. Ind. Code § 16-21-2-2. Before July 1, 2013, an “abortion clinic”
was defined as “a freestanding entity that . . . performs surgical abortion procedures.” I.C. § 1618-2-1.5. On July 1, 2013, an amended statute went into effect that expanded the definition of an
“abortion clinic.” The new law provided that, beginning January 1, 2014, any freestanding entity
that “provides an abortion inducing drug for the purpose of inducing an abortion” is also
considered an abortion clinic. I.C. § 16-18-2-1.5(a)(2). The statute went on to exclude from the
definition of “abortion clinic” a “physician’s office as long as . . . abortion inducing drugs are not
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the primarily dispensed or prescribed drug at the physician’s office.” I.C. § 16-18-21.5(b)(3)(B).
The term “physician’s office” is not defined in any relevant statutory provision.
Pursuant to Indiana Code § 16-21-1-7, rules may be adopted by the IDOH as “necessary to
protect the health, safety, rights, and welfare of patients” including “[r]ules pertaining to the
operation and management of hospitals, ambulatory outpatient surgical centers, abortion clinics,
and birthing centers” and “[r]ules establishing standards for equipment, facilities, and staffing
required for efficient and quality care of patients.”
The IDOH has established physical plant specifications for abortion clinics. 410 I.A.C.
26-17-2. Among other things, an abortion clinic must have common administration and authorized
visitor areas, including a reception and information counter, a waiting area containing not fewer
than two spaces for each examination and procedure room, at least one conveniently accessible
toilet room containing a lavatory for hand washing, a conveniently accessible drinking fountain,
interview space for private interviews, and general storage facilities for supplies and equipment.
410 I.A.C. 26-17-2(c). There are also physical plant requirements for clinical facilities, including
procedure rooms removed from general traffic flow that are at least 120 square feet in size, a hand
washing station within each procedure room, scrub facilities near the entrance of procedure rooms,
a separate recovery room with certain specifications, a drug distribution station with certain
specifications, and a toilet room containing a lavatory accessible from all examination and
procedure rooms. 410 I.A.C. 26-17-2(d). Design requirements for abortion clinics include, among
other things, at least one housekeeping room with a service sink and adequate storage, hand
washing stations, an equipment room, and an antiscald device on the hot water supply. 410 I.A.C.
26-17-2(e). The applicable regulation provides that “[c]linics operating before July 1, 2006, are
exempted from requirements of this section.” 410 I.A.C. 26-17-2(f).

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Indiana Code § 16-21-1-9 provides that the IDOH may generally “waive a rule” for good
cause shown, but the “waiver may not adversely affect the health, safety, and welfare of the
residents or patients.” Pursuant to the statutory amendment effective July 1, 2013, however, the
IDOH “may not exempt an abortion clinic from the requirements . . . including physical plant
requirements.” I.C. § 16-21-2-2.5(b). As such, the new law precludes physical plant waivers for
abortion clinics even where the waiver would not adversely affect the health, safety, and welfare
of residents or patients.
A person who knowingly or intentionally operates an unlicensed abortion clinic commits
a Class A misdemeanor. I.C. § 16-21-2-2.5(c). Additionally, the Indiana Attorney General may
seek an injunction or relief that includes a civil penalty not to exceed $25,000 for each day of
unlicensed operation. I.C. § 16-21-5-1.
B. PPINK’s Medication Abortion Only Clinic (Lafayette)
The following facts are undisputed, unless otherwise noted. PPINK operates 26 health
centers and an administrative office in Indiana. [Filing No. 26-1 at 1.] PPINK provides medical
services including Pap tests, cancer screenings, sexually transmitted disease testing and treatment,
self-examination instructions, and a variety of birth control options. [Filing No. 26-1 at 1.]
PPINK’s Lafayette clinic provides medication abortions but does not perform surgical
abortions or any other surgical procedures. [Filing No. 26-1 at 2; Filing No. 26-2 at 5.] The
Lafayette clinic has a part-time physician and is also staffed by an advanced practice nurse. [Filing
No. 26-1 at 2; Filing No. 26-2 at 2.] The Lafayette clinic began providing medication abortions in
August 2010. [Filing No. 26-1 at 4.] It only offers medication abortions when its physician is at
the clinic. [Filing No. 26-2 at 2.] Its physician is qualified under state and federal law to prescribe

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the medication to induce a non-surgical abortion and is subject to state regulation the same as any
other physician. [Filing No. 26-2 at 4.]
PPINK offers medication abortions to its patients up to 63 days after the first day of the
woman’s last menstrual period. [Filing No. 26-2 at 2.] PPINK uses the following protocol for a
medication abortion:
·

Eighteen hours after meeting with a physician or advanced nurse
practitioner, the woman receives information required by state law;

·

Medical history and vital signs are taken;

·

An ultrasound and lab testing are performed;

·

A physician prescribes and dispenses the medication mifepristone
(sometimes known as RU-486 or by its trade name Mifeprex), which
the woman takes in pill form at the physician’s office within the clinic.
Mifepristone works by blocking the hormone progesterone, which is
needed to maintain a pregnancy.

·

The woman is given written instructions and four misoprostol pills,
which she is instructed to take in 24-48 hours by placing the pills
between her cheeks and gums. The woman is not required to return to
the clinic to take the misoprostol but, instead, is instructed to take it at a
location of her choosing.

·

The woman is given an appointment to return in approximately two
weeks for an ultrasound to verify that the pregnancy has been
terminated. Alternatively, a blood draw can occur at the clinic and a
prescription can be written for a second blood draw two weeks later at
a place of the woman’s choosing to measure the change in hCG levels,
which is the hormone produced by the placenta.

·

The woman is given an antibiotic to assist in the prevention of infection
and also receives a prescription for pain and nausea reducing
medications.

·

The woman is informed both orally and in writing about potential side
effects from the medications. She is told to expect cramping and
bleeding after taking the misoprostol and that in the event of serious side
effects such as heavy bleeding or fever, she can call the clinic or
PPINK’s 24-hour emergency number.

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·

If the medication abortion is not complete, the woman is given options
that may include either taking another dose of misoprostol or having a
surgical abortion at one of the clinics that offers that procedure.

[Filing No. 26-2 at 2-4.]
In the twelve months preceding July 1, 2013, the Lafayette clinic saw more than 4,000
unduplicated patients. [Filing No. 26-1 at 4.] During that time period, 54 women chose to have a
medication abortion at the Lafayette clinic and the clinic prescribed or dispensed other
medications—primarily contraceptives—more than 10,000 times. [Filing No. 26-1 at 4; Filing
No. 26-2 at 5.] Terminated Pregnancy Reports from January 1, 2011, through July 1, 2013, do not
disclose any complications arising from medication abortions performed at the Lafayette clinic.
[Filing No. 26-1 at 4-5.] Other PPINK clinics reported complications from medication abortions,
such as retained tissue that required either a second dose of misoprostol or aspiration. [Filing No.
37-5.]
In the nine months from July 1, 2013, through March 30, 2014, the Lafayette clinic saw
more than 3,000 unduplicated patients. [Filing No. 71-1 at 4.] During that time period, 72 women
chose to have a medication abortion at the Lafayette clinic and the clinic prescribed or dispensed
other medications—primarily contraceptives—more than 7,000 times. [Filing No. 71-1 at 4.] The
Terminated Pregnancy Reports from the 72 medication abortions at the Lafayette clinic from July
1, 2013, through March 30, 2014, indicate that after taking the mifepristone at the Lafayette clinic,
one patient called to report that she was not going to take the misoprostol that had been given to
her to take at home. [Filing No. 71-1 at 4.] That patient refused to return to the clinic for any
follow up. [Filing No. 71-1 at 4.] No other complications were reported from the medication
abortions performed at the Lafayette clinic during that time period. [Filing No. 71-1 at 4.]

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PPINK represents that its Lafayette clinic does not comply with several physical plant
requirements for abortion clinics set forth in 410 I.A.C. 26-17-2. Because no surgical procedures
are performed there, the clinic does not have scrub facilities, a recovery room or area with a
recovery cart or lounge chair, or an emergency call system. [Filing No. 26-1 at 3-4.] PPINK has
not provided evidence of the cost of compliance, but it notes that any monies spent would
otherwise be used for patient care. The State has not taken a position regarding the current
compliance of the Lafayette clinic with the abortion clinic physical plant requirements.
On July 15, 2013, PPINK submitted an abortion clinic licensing application to the IDOH
for the Lafayette clinic and requested that the newly applicable physical plant requirements be
waived for the Lafayette clinic, since it does not perform surgical abortions or surgical procedures.
[Filing No. 1-1.] On November 14, 2013, the IDOH issued a Notice of License Application Denial
and Denial of Waiver Requests regarding PPINK’s Lafayette clinic.

[Filing No. 52-1.]

Specifically, the State reported that PPINK’s Lafayette clinic would “qualify as an ‘abortion
clinic’” as of January 1, 2014, because it administers abortion inducing drugs. [Filing No. 50 at
3.] The State further reported that the IDOH interprets Indiana Code § 16-21-2-2.5(b) “to mean
that every person who applies for a license to operate an abortion clinic for a period that will
include all or some part of ‘after December 31, 2013’ must comply with all abortion clinic
requirements, without exemption or waiver of any kind.” [Filing No. 50 at 2.] Therefore, because
PPINK has conceded that its Lafayette clinic does not comply with the physical plant requirements
of 410 I.A.C. 26-17-2, the IDOH denied PPINK’s application and waiver request for the Lafayette
clinic. [Filing No. 50 at 3.]

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C. PPINK’s Surgical Abortion Clinics (Indianapolis, Bloomington, and Merrillville)
PPINK has clinics in Indianapolis, Bloomington, and Merrillville that provide first
trimester surgical abortions. [Filing No. 26-1 at 1.] These clinics also provide non-surgical
abortions, also known as medication abortions. [Filing No. 26-1 at 2.] These three clinics were
licensed as abortion clinics before July 1, 2006, so historically they were not required to comply
with the physical plant requirements pursuant to 410 I.A.C. 26-17-2(f). [Filing No. 71-1 at 1.]
The State confirmed at oral argument that it construes Indiana Code § 16-21-2-2.5(b) to prohibit
the IDOH from exempting an abortion clinic from physical plant requirements. Accordingly, the
State maintains that PPINK’s Indianapolis, Bloomington, and Merrillville clinics now must
comply with all physical plant requirements. [Filing No. 71-1 at 2.]
PPINK represents that its Bloomington clinic is in the process of being renovated and that
it will comply with the physical plant requirements once the renovations are complete. [Filing No.
71-1 at 2.] PPINK represents that its Indianapolis clinic currently complies with nearly all physical
plant requirements, but that it “does not have an ‘antiscald device’ on the hot water supply limiting
the water temperature.” [Filing No. 71-1 at 2.] PPINK represents that its Merrillville clinic does
not comply with several physical plant requirements: its waiting and visitor area does not have a
drinking fountain, the chairs in the recovery room do not comply with the minimum clearance
area, the drug distribution station in the recovery room does not have a sink, there is no separate
housekeeping room, and there is no antiscald device on the hot water supply limiting the water
temperature. [Filing No. 71-1 at 2-3.] PPINK has not provided evidence of the cost of compliance
for these clinics, but it again notes that any monies spent would otherwise be used for patient care.
The abortion clinic licenses for Indianapolis, Bloomington, and Merrillville expired on
June 30, 2014. [Filing No. 71-1 at 2.] The State has not taken a position regarding the current or

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anticipated compliance of the Indianapolis, Bloomington, or Merrillville clinics with the physical
plant requirements set forth in 410 I.A.C. 26-17-2. PPINK represented at oral argument that it has
applied for license renewals for these clinics, that licenses temporarily extend pending site visits,
and that the site visits had not yet occurred.
D. Procedural History
On August 22, 2013, PPINK sued the Commissioner of the IDOH and the Tippecanoe
County Prosecutor, asking for declaratory and injunctive relief from the challenged Indiana
statutes with respect to the Lafayette clinic. [Filing No. 1 (challenging the constitutionality of
Indiana Code § 16-18-2-1.5(a) (definition of “abortion clinic”) and § 16-21-2-2.5(b) (prohibiting
the IDOH from exempting an abortion clinic from, among other things, the physical plant
requirements)).]
PPINK challenges the constitutionality of Indiana Code § 16-18-2-1.5(a)(2) as applied to
the Lafayette clinic, to the extent that it requires that clinic to comply with the surgical physical
plant requirements even though it does not perform surgical abortions or any surgical procedures.
Specifically, PPINK brings a Fourteenth Amendment claim on behalf of its patients’ right to
choose an abortion, a substantive due process claim on its own behalf, and an equal protection
claim on its own behalf.
On November 26, 2013, the Court entered a preliminary injunction in favor of PPINK
regarding the constitutionality of Indiana Code § 16-18-2-1.5(a)(2) as applied to the Lafayette
clinic. [Filing No. 54.] The Court found that PPINK had shown a reasonable likelihood of success
on the merits of its equal protection challenge to that statute, and that the other injunctive factors
also weighed in its favor, to the extent that Indiana Code § 16-18-2-1.5 requires the Lafayette clinic
to comply with the surgical physical plant requirements although it does not perform surgical

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abortions or any surgical procedures. [Filing No. 54 at 10-17.] The Court did not find that PPINK
had shown a reasonable likelihood of success on its Fourteenth Amendment claim on behalf of its
patients, on its own substantive due process claim, or on its equal protection challenge to the
abortion clinic waiver prohibition as applied to the Lafayette clinic in Indiana Code § 16-21-22.5(b). [Filing No. 54 at 17-25.] Thus, the Court did not grant injunctive relief with regard to the
abortion clinic waiver prohibition. [Filing No. 54 at 28.]
On April 15, 2014, the parties filed a Revised Stipulation Concerning Additional Factual
Issues, stipulating that PPINK also intends to challenge the constitutionality of the abortion clinic
waiver prohibition in Indiana Code § 16-21-2-2.5(b) with regard to its surgical abortion clinics on
equal protection grounds. The State agreed it would not oppose that request for relief on PPINK’s
failure to amend its complaint to explicitly seek such relief. [Filing No. 70 at 2.] The State has at
not challenged the procedural propriety of including the surgical abortion clinics in the instant
cross-motions.
On April 30, 2014, PPINK moved for summary judgment on all of its claims. [Filing No.
71.] On June 3, 2014, the State responded and filed a cross-motion for summary judgment. [Filing
No. 73.] The Court held an oral argument on the cross-motions for summary judgment on October
30, 2014, and took the matter under advisement. [Filing No. 80.]
III.
DISCUSSION
As applied to its Lafayette clinic, PPINK contends that the statutes at issue violate its
patients’ right to choose an abortion under the Fourteenth Amendment to the United States
Constitution, PPINK’s own substantive due process rights, and PPINK’s equal protection rights.
As applied to its Indianapolis, Bloomington, Merrillville, and Lafayette clinics, PPINK contends
that Indiana Code § 16-21-2-2.5(b) violates its equal protection rights. PPINK asks the Court to
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enter summary judgment in its favor and grant injunctive relief precluding the State from applying
Indiana Code § 16-18-2-1.5(a)(2) to its Lafayette clinic and Indiana Code § 16-21-2-2.5(b) to
PPINK’s Indianapolis, Bloomington, Merrillville, and Lafayette clinics. [Filing No. 72 at 32-33.]
In response, the State contends that it is entitled to summary judgment as a matter of law on all of
PPINK’s claims. [Filing No. 73; Filing No. 74.] Before addressing the merits of the parties’
arguments, the Court will summarize recent Seventh Circuit precedent that guides its analysis.
A. Controlling Seventh Circuit Precedent
A few weeks after this Court issued its preliminary injunction decision, [Filing No. 54],
the Seventh Circuit Court of Appeals decided Planned Parenthood of Wisconsin, Inc. v. Van
Hollen, 738 F.3d 786 (7th Cir. 2013), cert. denied, 134 S. Ct. 2841 (2014). At issue in Van Hollen
was the constitutionality of a Wisconsin statute prohibiting a doctor, under threat of heavy
penalties, from performing an abortion unless he had admitting privileges at a hospital no more
than 30 miles from the clinic at which the abortion was performed. 738 F.3d at 787. The statute
only gave doctors who performed abortions one weekend to obtain the necessary admitting
privileges at a hospital. Id. at 788. The plaintiffs promptly filed an action pursuant to 42 U.S.C.
§ 1983 and requested a preliminary injunction, which the district court granted on “[t]he sparse
evidentiary record.” Id. The defendants appealed to the Seventh Circuit Court of Appeals. Id.
At the outset of the decision, Van Hollen emphasized that “[a]ll we decide today is whether
the district judge was justified in entering the preliminary injunction. Evidence presented at trial
may critically alter the facts found by the district judge on the basis of the incomplete record
compiled in the first month of the suit, and recited by us.” Id.
The stated rationale for the admitting privileges statute in Van Hollen was “to protect the
health of women who have abortions.” Id. at 789. Proponents of the law argued that it fostered

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continuity of care because if a woman required hospitalization because of complications from an
abortion, the doctor who performed the abortion would have admitting privileges at a nearby
hospital. Id. The plaintiff disagreed, arguing that the statute “would do nothing to improve
women’s health” and its “only effect would be to reduce abortions by requiring abortion doctors
to jump through a new hoop: acquiring admitting privileges at a hospital within 30 miles of their
clinic.” Id.
In analyzing the stated rationale for the law, the Seventh Circuit noted as follows:
No other procedure performed outside a hospital, even one as invasive as a surgical
abortion (such as a colonoscopy, or various arthroscopic or laparoscopic
procedures), and even if performed when the patient is under general anesthesia,
and even though more than a quarter of all surgery in the United States is now
performed outside of hospitals, is required by Wisconsin law to be performed by
doctors who have admitting privileges at hospitals within a specified, or indeed any,
radius of the clinic at which the procedure is performed. That is true even for
gynecological procedures such as diagnostic dilation and curettage (removal of
tissue from the inside of the uterus), hysteroscopy (endoscopy of the uterus), and
surgical completion of miscarriage (surgical removal of fetal tissue remaining in
the uterus after a miscarriage, which is to say a spontaneous abortion), that are
medically similar to and as dangerous as abortion—or so at least the plaintiffs
argue, without contradiction by the defendants. These procedures, often performed
by the same doctors who perform abortions, appear to be, from a medical
standpoint, virtually indistinguishable from abortion.
Id. at 789-90 (citation omitted). Van Hollen pointed out that “[a]n issue of equal protection of the
laws is lurking in this case. For the state seems indifferent to complications from non-hospital
procedures other than surgical abortion (especially other gynecological procedures), even when
they are more likely to produce complications.” Id. at 790.
In addressing the Fourteenth Amendment undue burden claim, Van Hollen held that “[t]he
cases that deal with abortion-related statutes sought to be justified on medical grounds require not
only evidence (here lacking as we have seen) that the medical grounds are legitimate but also that
the statute not impose an ‘undue burden’ on women seeking abortions.” Id. at 798 (citing Planned

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Parenthood of Southeastern Penn. v. Casey, 505 U.S. at 874, 877, 900-01 (1992) (plurality
opinion); Stenberg v. Carhart, 530 U.S. 914, 930, 938 (2000); cf. Mazurek v. Armstrong, 520 U.S.
968, 972-73 (1997) (per curiam)). “The feebler the medical grounds, the likelier the burden, even
if slight, to be ‘undue’ in the sense of disproportionate or gratuitous.” Van Hollen, 738 F.3d at
798. The Seventh Circuit specifically noted that “[i]t is not a matter of the number of women
likely to be affected. ‘An undue burden is a shorthand for the conclusion that a state regulation
has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.’” Id. (quoting Casey, 505 U.S. at 877).
Van Hollen concluded that “[i]n this case the medical grounds thus far presented (‘thus far’
being an important qualification given the procedural setting—a preliminary-injunction
proceeding) are feeble, yet the burden great because of the state’s refusal to have permitted
abortion providers a reasonable time within which to comply.” Van Hollen, 738 F.3d at 798. In
reaching that conclusion, Van Hollen emphasized that the defendants had not presented evidence
of a health benefit, other than an inconclusive affidavit by one doctor about one abortion patient
from another state. Id. at 795. Van Hollen cited a study regarding the infrequency of abortion
complications requiring hospitalization, noting that only 1 in 1,915 aspiration abortions (0.05%)
and 1 in 1,732 medication abortions 2 (0.06%) result in complications requiring hospitalization,
and pointed out that “the state has been chary in the presentation of evidence” regarding “[w]hat
fraction of these hospitalizations go awry because the doctor who performed the abortion did not
have admitting privileges at the hospital to which the woman was taken.” Id. at 797. Furthermore,
Van Hollen emphasized that “nothing in the statute requires an abortion doctor who has admitting

2

Van Hollen refers to these as “medical abortions” but the parties here call the procedure a
“medication abortion.” 738 F.3d at 798.
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privileges to care for a patient who has complications from an abortion. He doesn’t have to
accompany her to the hospital, treat her there, visit her, call her, or indeed do anything that a doctor
employed by the hospital might not do for the patient.” Id. at 798.
For these reasons, the Seventh Circuit affirmed the district court’s preliminary injunction.
Id. at 798. It opined that the district court “may want to reconsider appointing a neutral medical
expert to testify at the trial, as authorized by Fed. R. Evid. 706.” Id. at 798. “[G]iven the technical
character of the evidence likely to figure in the trial—both evidence strictly medical and evidence
statistical in character concerning the consequences both for the safety of abortions and the
availability of abortion in Wisconsin” and “the passions that swirl about abortion rights and their
limitations[,] there is a danger that party experts will have strong biases, clouding their judgment.”
Id. at 798-99. In its conclusion, Van Hollen again emphasized that “the trial on the merits may
cast the facts we have recited, based as they are on the record (by no means slim, however, though
entirely documentary) of the preliminary-injunction proceeding, in a different light.” 3 Id. at 799.
B. Fourteenth Amendment Right to Choose an Abortion 4
PPINK asserts a claim on behalf of its patients regarding Indiana Code § 16-18-2-1.5(a)(2),
which amends the definition of “abortion clinic” to include any freestanding entity that provides
an abortion inducing drug even if it does not perform surgical abortions, such as the Lafayette

3

The district court in Van Hollen held a bench trial in May 2014, but has not yet issued a decision.

4

The State argued in its opening brief that PPINK did not have standing to litigate the
constitutional rights of its patients in this action. [Filing No. 74 at 18-23.] PPINK opposed this
argument in its response, [Filing No. 75 at 8-13 (relying in part on Van Hollen, 738 F.3d at 79495)], and the State conceded in its reply that Van Hollen resolved the issue, [Filing No. 78 at 4],
but seeks to preserve the issue for appeal. The Court agrees that Van Hollen resolved the issue in
favor of an abortion provider’s standing to sue to enjoin laws restricting abortion, 738 F.3d at 79495, and will not address the issue further. It is preserved for appeal, however, pursuant to the
State’s request. [Filing No. 78 at 4.]
16

clinic. Specifically, PPINK contends that the statute violates its patients’ Fourteenth Amendment
right to choose an abortion because its effect is not reasonably related to promoting women’s
health. [Filing No. 72 at 16-22.] PPINK claims that the statute “imposes an undue burden on
women’s access to abortion because there is no medical justification whatsoever for requiring that
the Lafayette health center meet physical standards designed for surgery.” [Filing No. 72 at 17.]
PPINK believes that the statute is not reasonably related to the goal of advancing maternal health
for two reasons—1) the Lafayette clinic does not perform surgical abortions or surgical
procedures, and the legislation at issue would not require it to do so even if the Lafayette clinic
complied with the surgical physical plant requirements at issue; and 2) PPINK offers adequate
continuity of care because patients may contact a medical professional at all times. [Filing No. 72
at 21-22.] PPINK concludes that the challenged legislation “is simply unnecessary to promote
women’s health as there is no evidence at all—nor could there be—that the status quo poses a
threat in any way to women’s health.” [Filing No. 72 at 21.]
In response, the State argues that requiring the Lafayette clinic to comply with surgical
physical plant requirements even though it does not perform surgical abortions does not have the
purpose or effect of putting a substantial obstacle in the path of a woman seeking an abortion.
[Filing No. 74 at 24.] The State emphasizes that PPINK “does not even purport to provide actual
evidence showing that the result of this law is ‘likely to prevent’ a ‘large fraction’ of women ‘from
obtaining an abortion,’” [Filing No. 74 at 24 (quoting Casey, 505 U.S. at 893-95)], and does not
estimate costs for any changes that would be necessary for it to comply with the surgical physical
plant requirements, [Filing No. 74 at 25]. The State cites evidence from its expert and concludes
that “the risks associated with medication abortions are not merely minor or hypothetical—they
are severe and widely attested, and some call for surgical intervention.” [Filing No. 74 at 31.] It

17

contends that the Court must apply a deferential standard and uphold an abortion-related statute as
long as the legislature had a rational basis to act to further a valid goal. [Filing No. 74 at 28-29.]
In reply, PPINK contends that the State ignores Van Hollen’s requirement that abortionrelated statutes sought to be justified on medical grounds require evidence that the medical grounds
are legitimate. [Filing No. 75 at 14.] PPINK contends that the State presented no evidence that
the medical grounds for the statute are legitimate and because the articulated medical grounds are
allegedly so feeble, PPINK argues that the burdens it imposes cannot be justified and must be
undue. [Filing No. 75 at 17.]
In the reply supporting its cross-motion, the State emphasizes that PPINK “has never
substantiated any financial or practical difficulty of adapting its Lafayette clinic to the physical
plant requirements imposed.” [Filing No. 78 at 9 (original emphasis).] Thus, the State contends
that the statute is only subject to rational basis review because PPINK “never properly seeks to
establish an ‘undue burden.’” [Filing No. 78 at 8.]
1) Expert Evidence
Each party relies on its own expert’s opinion to support its summary judgment arguments.
[See, e.g., Filing No. 72 at 7-14 (PPINK’s opening brief relying on its expert’s affidavit in its
“[s]tatement of material facts not in dispute”); Filing No. 74 at 8-11 (State’s response brief and
cross-motion for summary judgment, relying on its expert’s affidavit in its “statement of material
facts not in dispute”).] As it is the primary evidence on which they rely, the Court will summarize
each party’s expert testimony.
a) PPINK’s Expert—Dr. Blumenthal
PPINK relies on an affidavit from Dr. Paul D. Blumenthal, a board-certified
obstetrician/gynecologist and Professor at the Stanford University School of Medicine. [Filing

18

No. 26-3 at 2.] Dr. Blumenthal details his qualifications, [Filing No. 26-3 at 2-3], and then
provides his medical opinion that “[m]edication abortion is extremely safe[,]” [Filing No. 26-3 at
4]. To support this opinion, Dr. Blumenthal cites studies that he attests report that the mortality
rate of medication abortion is less than 1 per 100,000 abortions, which he contends is comparable
to the rate for first-trimester surgical abortions. [Filing No. 26-3 at 4-5.] Dr. Blumenthal reports
that this is fourteen times lower than a woman’s risk of death in childbirth. [Filing No. 26-3 at 5.]
He further opines that “[a]dverse events following medication abortion are exceedingly rare.”
[Filing No. 26-3 at 5.] He cites a 2013 study of Planned Parenthood health centers across the
country that he contends “showed a rate of clinically significant adverse events (defined to include
hospital admission, blood transfusion, emergency department treatment, intravenous antibiotics
administration, infection requiring treatment with intravenous antibiotics or admission to the
hospital, and death) of just 0.16 percent.” [Filing No. 26-3 at 5.]
Dr. Blumenthal opines that the only complication that can arise at the health center during
a medication abortion is if the woman suffers an allergic reaction when she takes the mifepristone.
[Filing No. 26-3 at 6.] He has neither experienced nor heard of a woman having an allergic reaction
to mifepristone, and he contends that no specific physical space at a clinic would be required to
treat such a reaction. [Filing No. 26-3 at 6.] Dr. Blumenthal attests that “[o]f the small percentage
of women having any complication from medication abortion, by far the most common
complication is an incomplete abortion, which happens if some tissue is retained in the uterus,
typically causing bleeding or spotting.” [Filing No. 26-3 at 6.] He points out that this will happen
away from the office and that “[i]f the abortion is not complete, which happens in 2-5% of cases,
the patient has the option to take a second dose of misoprostol in the hope of completing the

19

abortion, to do an aspiration procedure similar to a surgical abortion, or to simply wait for the
tissue to pass.” [Filing No. 26-3 at 6.]
Contained within that 2-5% of patients who have incomplete abortions, Dr. Blumenthal
attests that 0.5% of them have a continuing pregnancy. [Filing No. 26-3 at 6.] For that reason, it
is the standard of care for medication abortion patients to have either an ultrasound or a pregnancy
test one to two weeks after taking the misoprostol to confirm that the abortion was successful.
[Filing No. 26-3 at 6.] If a patient has a continuing pregnancy, she has the option to take a second
dose of misoprostol or to have a surgical procedure to complete the abortion. [Filing No. 26-3 at
6-7.]
Dr. Blumenthal concludes that using PPINK’s procedure, “women have been able to safely
avoid a surgical procedure 98 percent of the time.” [Filing No. 26-3 at 7.] He contends that even
in the cases where a woman who had a medication abortion elects to or needs to have a surgical
procedure to complete the abortion, “it need not be performed immediately and it is not necessary
that it be performed at the same health center where she took the mifepristone.” [Filing No. 26-3
at 7.] He further points out that “in the extremely rare case that a medication abortion patient has
experienced sufficient blood loss that she might need emergency treatment (such as a transfusion,
or fluid support), it will occur more often one to three weeks after the procedure[, a]nd the protocol
in such a situation is the same in any outpatient setting . . . advise her to go to the nearest emergency
room.” [Filing No. 26-3 at 7.]
For these reasons, Dr. Blumenthal concludes that while a medication abortion provider
needs to have the ability to refer a woman to a surgical provider on a non-urgent basis, “the only
possible specialized ‘equipment’ needed to safely provide medication abortion is an ultrasound
machine[, a]nd the only possible physical space needed is a small examination room in which to

20

perform the ultrasound and for her blood to be drawn.” [Filing No. 26-3 at 7-8.] Dr. Blumenthal
further concludes that “medication abortion can be safely provided in PPINK’s Lafayette health
center” without it meeting the challenged physical plant requirements. [Filing No. 26-3 at 11.] He
contends that “[a]ny delay in access to medication abortion is significant because medication
abortion is available at PPINK only until sixty-three days after the first day of the woman’s last
menstrual period.” [Filing No. 26-3 at 11.] Dr. Blumenthal ultimately opines that “[a]llowing
health centers without procedure rooms, scrub facilities, emergency call systems, and recovery
rooms to provide medication abortions provides greater access to this oft-needed gynecological
service without compromising any patient safety and thus serves an important health function.”
[Filing No. 26-3 at 12.]
b) The State’s Expert—Dr. Thorp
The State relies on an affidavit from Dr. John Thorp, Jr., a board-certified
obstetrician/gynecologist and Professor of Obstetrics and Gynecology at the University of North
Carolina. [Filing No. 37-1 at 1-2.] Dr. Thorp details his qualifications, [Filing No. 37-1 at 2-3],
and then provides his medical opinion “that risks from medication abortion—which include failed
abortion, incomplete abortion, bleeding, and infection—are greater than for surgical abortion.”
[Filing No. 37-1 at 4.] To support this opinion, Dr. Thorp cites a 2009 study “that the incidence
of hemorrhage is 15.6 percent following medication abortions, compared to 5.6 percent for surgical
abortions; 6.7 percent of medication abortions result in incomplete abortion, compared to 1.6
percent of surgical abortions; and the rate of need for surgery following medication abortion is 5.9
percent.” [Filing No. 37-1 at 4.] Dr. Thorp also cites a 2011 FDA report acknowledging that at
least 2,207 cases of severe adverse events, including hemorrhaging, blood loss requiring
transfusion, serious infection, and 14 deaths. [Filing No. 37-1 at 4.] He points out that in 2009,

21

Planned Parenthood estimated that 32% of first-trimester abortions performed in its centers in 2008
were by medication. [Filing No. 37-1 at 5.] Dr. Thorp cites a 1999 study for his conclusion that
“18.3% of medication abortions fail, as compared to only 4.7% of surgical abortions.” [Filing No.
37-1 at 5.] He further contends that “5.7% of medication abortion patients require admittance to
a hospital, while hospitalization was necessary for only 0.4% of surgical abortion patients.” [Filing
No. 37-1 at 5-6.]
Dr. Thorp points to three main benefits of the requirement that a clinic that performs only
medication abortions be prepared to perform surgery in an emergency: 1) it acknowledges and
enables the importance of continuity of care; 2) it enhances inter-physician communication and
optimizes patient information transfer and complication management; and 3) it supports the ethical
duty of care for the operating physician to prevent patient abandonment. [Filing No. 37-1 at 6-7.]
Dr. Thorp concludes that when an abortion provider is able to treat complications at the clinic, it
is “more likely to effectively manage patient complications by providing continuity of care and
decrease the likelihood of medical errors.” [Filing No. 37-1 at 7.] He further opines that he
believes most patients “would assume that their doctor for a medication abortion would be able to
diagnose and treat any unforeseen complications or harms that could arise from the procedure.
Thus, not having the ability to perform necessary emergency surgery if required violates the
patient’s legitimate expectations of safety.” [Filing No. 37-1 at 7-8.]
Dr. Thorp opines that the statutes at issue facilitate continuity of care because “interphysician communication is insufficient at transition points of patient care.” [Filing No. 37-1 at
8.] He cites a 2003 study that an information gap was identified in 29.4% of patients presenting
at the emergency department and that the most prevalent gap was in medical history. [Filing No.
37-1 at 8-9.] Dr. Thorp opines that “because of the stigma and shame occasionally associated with

22

induced abortion, many women may be reluctant even to disclose a termination of pregnancy in
accessing emergency medical care which can place them at increased risk.” [Filing No. 37-1 at
7.] For these reasons, Dr. Thorp concludes that the statutes at issue are “reasonable and beneficial”
because the doctor who administers the medication abortion is most familiar with the patient’s
history and is “best positioned with the knowledge necessary to diagnose and correct complications
that arise.” [Filing No. 37-1 at 8.] He further opines that the physical plant requirements of which
PPINK complains with regard to its Lafayette clinic protect “the health and safety of women who
undergo a medication abortion” by facilitating continuity of care “whether those complications
arise during the patient’s initial visit or regular follow-up visit, or whether the complications
prompt an unexpected return to the clinic for examination, diagnosis and treatment.” [Filing No.
37-1 at 11.]
Dr. Thorp notes that PPINK does not contest that some women who terminate their
pregnancies with medication abortion “are at risk of serious, even life-threatening complications.”
[Filing No. 37-1 at 13.] He concludes that “[i]t is for these women that [these statues] appl[y].”
[Filing No. 37-1 at 13.]
c) Dr. Blumenthal’s Rebuttal Affidavit
Dr. Blumenthal provides his supplemental declaration to “offer [his] opinions on certain of
the assertions in Dr. Thorp’s declaration.” [Filing No. 44-2 at 1.] Dr. Blumenthal opines that Dr.
Thorp “provides a very misleading—and in some cases, wholly inaccurate—look at the safety of
medication abortion.” [Filing No. 44-2 at 2.] He criticizes Dr. Thorp’s interpretation of various
statistics in a 2011 Food and Drug Administration report, and contends that other studies on which
Dr. Thorp relied are “flawed,” “of little relevance,” or “not highly relevant today.” [Filing No. 442 at 2-3.] Dr. Blumenthal opines that a study on which he relies “is much more relevant to this

23

case” and that Dr. Thorp “overstates the rate that medication abortions fail[], the need for surgery
following medication abortion, and the rate of incomplete medication abortion.” [Filing No. 44-2
at 4.]
Dr. Blumenthal provides additional opinions regarding the requisite continuity of care for
medication abortion patients. [Filing No. 44-2 at 7-9.] He concludes that “[t]here is no reason that
the surgical follow up—or any follow up care—needs to be provided by the same physician or
provider who prescribed the mifepristone at all—and certainly not in the same physical space as
where the mifepristone was administered.” [Filing No. 44-2 at 7.] He specifically criticizes Dr.
Thorp’s continuity of care opinions for various reasons, ultimately concluding that they are “of no
relevance in this case.” [Filing No. 44-2 at 7-9.]
2) Disputed Issues of Material Fact Preclude Summary Judgment
As the foregoing demonstrates, and despite the parties’ representations to the contrary,
disputed issues of material fact exist that preclude summary judgment in favor of either party on
PPINK’s Fourteenth Amendment claim based on its patients’ right to choose an abortion. Each
party relies on its own expert evidence to support its arguments regarding the safety of medication
abortions, the prevalence and proper treatment of serious medical complications, and the
requirements for continuity of care. [See, e.g., Filing No. 72 at 7-14 (PPINK’s opening brief
relying on its expert’s affidavit in its “[s]tatement of material facts not in dispute”); Filing No. 74
at 8-11 (State’s response brief and cross-motion for summary judgment, relying on its expert’s
affidavit in its “statement of material facts not in dispute”).] Each party then uses its own expert’s
conclusions to support its arguments regarding the reasonableness of the surgical physical plant
requirements for a clinic that does not perform surgical abortions, such as the Lafayette clinic.

24

Relying on its own expert’s opinion, PPINK claims it is undisputed that “[m]edication
abortion is an extremely safe procedure.” [Filing No. 72 at 9 (citing Filing No. 26-3 at 4-5).] In
response, the State specifically disputes PPINK’s representation that “medication abortion is an
extremely safe procedure,” [Filing No. 74 at 5], instead relying on its expert’s conclusion that
“medication abortion fails more often and is riskier for women than surgical abortion[,]” [Filing
No. 74 at 5 (citing Filing No. 37-1 at 5-6)]. In its reply, PPINK counters that “there can be no
dispute that medication abortion is an extremely safe procedure,” citing the portion of its brief that
heavily relies on PPINK’s expert’s opinion. [Filing No. 75 at 2 (citing Filing No. 72 at 9-10
(relying on Filing No. 26-3)).] PPINK criticizes the State’s expert’s interpretation of various
statistics and contends that additional studies on which the State’s expert relied are “flawed,” “of
little relevance,” or “not highly relevant today.” [Filing No. 44-2 at 2-3.]
As noted, this strategy violates the well-established standard of review for evaluating crossmotions for summary judgment, which requires the Court to make reasonable inferences in favor
of the non-moving party when evaluating the moving party’s motion, and then make inferences in
favor of the other party when evaluating the cross-motion. In ruling on PPINK’s motion for
summary judgment, and making all reasonable inferences in favor of the State, including those
from the State’s expert evidence, the Court concludes that the State’s purported rationale for
applying the surgical physical plant requirements to the Lafayette clinic is not so illegitimate as to
entitle PPINK to summary judgment as a matter of law. In ruling on the State’s motion for
summary judgment, and making all reasonable inferences in favor of PPINK, including those from
PPINK’s expert evidence, the Court concludes that the State’s purported rationale for applying the
surgical physical plant requirements to the Lafayette clinic is not so legitimate nor the burden so
slight as to entitle the State to summary judgment as a matter of law. In sum, the parties’ competing

25

expert evidence on key issues highlights disputed issues of material fact that preclude summary
judgment in favor of either party on PPINK’s Fourteenth Amendment claim based on its patients’
right to choose an abortion. 5
Van Hollen bolsters this Court’s conclusion. Throughout that decision, the Seventh Circuit
Court of Appeals referenced the extensive evidence it expected the parties to present at a trial on
the merits, emphasizing “the technical character of the evidence likely to figure in the trial—both
evidence strictly medical and evidence statistical in character concerning the consequences both
for the safety of abortions and the availability of abortion . . . .” 738 F.3d at 798. Van Hollen
suggested that the district court may want to appoint a neutral medical expert to testify at trial, as
authorized by Federal Rule of Evidence 706, to “help the judge to resolve the clash of the warring
party experts.” Id. at 798-99. Van Hollen did not contemplate that the case before it could be
resolved on summary judgment, likely because of what the parties in this case ignore—that it is
inappropriate for the Court to make credibility and reliability determinations regarding competing
expert opinions on summary judgment. See Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.
2000) (“The soundness of the factual underpinnings of the expert’s analysis and the correctness of
the expert’s conclusions based on that analysis are factual matters to be determined by the trier of
fact.”); Giles v. Ludwig, 2014 WL 4358475, at *3 (N.D. Ill. 2014) (“Resolution of competing

5

PPINK argues that because it is undisputed that complications will occur away from the clinic
where the initial dose of medication is administered, any disputes regarding the safety of
medication abortion and continuity of care are immaterial. [See e.g., Filing No. 72 at 10-11.] As
the State pointed out at oral argument, however, there is evidence in the record that some patients
experiencing complications from medication abortions returned to PPINK clinics for follow up
care. [Filing No. 37-5.] The Court credits this evidence in favor of the State’s continuity of care
arguments on summary judgment when considering PPINK’s request for summary judgment.
Thus, the Court does not find the undisputed fact that complications arise away from the clinic to
be dispositive as a matter of law.
26

experts’ opinions requires credibility determinations that are inappropriate for the Court to engage
in at the summary judgment stage.”).
Indeed, the standard set forth in Van Hollen requires a qualitative evaluation of the
evidence regarding the legitimacy of the medical grounds as weighed against the evidence
regarding any burden the statute imposes to determine if it is undue. 738 F.3d at 798 (“[t]he cases
that deal with abortion-related statutes sought to be justified on medical grounds require not only
evidence (here lacking as we have seen) that the medical grounds are legitimate but also that the
statute not impose an ‘undue burden’ on women seeking abortions”). The factfinder must apply a
balancing test where “[t]he feebler the medical grounds, the likelier the burden, even if slight, to
be ‘undue’ in the sense of disproportionate or gratuitous.” Id. The parties in this case did not
consent for the Court to try this matter on a written record, as allowed by Federal Rule of Civil
Procedure 52, see Eirhart v. Libbey-Owens-Ford Co., 996 F.2d 837, 840 (7th Cir. 1993) (“Rule
52 allows for matters to be tried to the district court on a written record; we do not read the Rule
to require that an evidentiary hearing be held.”), and it is inappropriate for the Court to be a
factfinder on summary judgment, Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (“It is the
job of the [factfinder], and not the district court judge at summary judgment, to determine which
party’s evidence to credit.”).
In sum, the parties present competing expert evidence on the safety of medication abortion,
the prevalence and treatment of adverse medical conditions resulting from medication abortion,
and what constitutes adequate continuity of care. These disputed issues of material fact are central
to a determination of the Fourteenth Amendment undue burden analysis and directly bear on the
reasonableness of the physical plant requirements that PPINK challenges. Accordingly, the Court

27

cannot grant summary judgment to either party on PPINK’s Fourteenth Amendment claim on
behalf of its patients’ right to choose an abortion.
C. Substantive Due Process Claim
PPINK brings a substantive due process claim on its own behalf regarding the amendment
of the definition of “abortion clinic” to include clinics, such as the Lafayette clinic, that do not
provide surgical abortions. [Filing No. 72 at 22-24 (challenging I.C. § 16-18-2-1.5(a)(2)).] PPINK
concedes that its claim is subject to rational basis review because it is not asserting that the statute
encroaches on a fundamental right. [Filing No. 72 at 23.] PPINK argues that it is entitled to
summary judgment on this claim because it is “fundamentally irrational to require a clinic that
does not perform surgical abortions, and only dispenses medication, to abide by standards that are
specifically designed for clinics that perform abortions.” [Filing No. 72 at 22.]
In response, the State argues that it is entitled to summary judgment on PPINK’s
substantive due process claim. [Filing No. 74 at 34-36.] The State emphasizes that PPINK has
not set forth any description of the right it seeks to have protected. [Filing No. 74 at 35.] Thus,
the State urges the Court to grant summary judgment in its favor for the same reasons the Court
found PPINK unlikely to succeed on the merits of its claim at the preliminary injunction stage.
[Filing No. 74 at 35.]
In its reply, PPINK emphasizes that “it makes no sense to impose surgical requirements on
a clinic that performs no surgery,” especially because adverse effects will occur away from the
clinic where the initial dose of medication is administered. [Filing No. 75 at 30.] PPINK criticizes
a report on which the State relies to support its argument regarding the rationality of requiring the
Lafayette clinic to comply with the surgical physical plant requirements. [Filing No. 75 at 30-31.]

28

In the reply supporting its cross-motion, the State emphasizes that PPINK still has not
offered “a careful description of the asserted right” it seeks to vindicate. [Filing No. 78 at 8.]
Thus, the State asks the Court to enter summary judgment in its favor on that basis. [Filing No.
78 at 8.]
Generally, “substantive due process is applicable only when the government deprives a
person of a ‘fundamental’ right.” Markadonatos v. Vill. of Woodridge, 760 F.3d 545, 554 (7th Cir.
2014) (quoting Washington v. Glucksberg, 521 U.S. 702, 719-23 (1997)). Officials bear a heavy
burden of justification for curtailing a right that qualifies as fundamental. Hayden ex rel. A.H. v.
Greensburg Cmty. Sch. Corp., 743 F.3d 569, 575 (7th Cir. 2014) (citing Reno v. Flores, 507 U.S.
292, 301-02 (1993) (infringement must be narrowly tailored to serve a compelling state interest)
(collecting cases))). But even if a fundamental right is not implicated, “there is a residual
substantive limit on government action which prohibits arbitrary deprivations of liberty by
government.” Hayden, 743 F.3d at 576. When a non-fundamental liberty is at stake, the
government need only demonstrate that the intrusion upon that liberty is rationally related to a
legitimate government interest. Id.
PPINK concedes that it is not asserting that the State deprived it of a fundamental right.
[Filing No. 72 at 22-23.] Instead, PPINK seeks to be free from arbitrary and irrational government
regulation, which it contends substantive due process protects. [Filing No. 72 at 22-23 (citing
Hayden, 743 F.3d at 576).] Ultimately, however, the parties’ arguments dispute the rationality of
requiring medication abortion providers—such as the Lafayette clinic—to comply with a surgical
abortion clinic’s physical plant requirements, even if no surgeries are performed. PPINK contends
that the requirement is arbitrary and irrational, and the State contends that it is legitimate to protect
the health of the patients.

29

Each party’s position regarding the alleged rationality or irrationality of the legislation at
issue hinges on its expert’s opinion regarding the reasonableness of the legislation. The Court has
already concluded that, when viewing the parties’ arguments through the appropriate summary
judgment standard, disputed issues of material fact exist regarding the safety of medication
abortion, the prevalence and treatment of adverse medical conditions resulting from medication
abortion, and what constitutes adequate continuity of care. These issues directly bear on the
reasonableness of the physical plant requirements at issue. Thus, for the same reasons that the
Court could not grant summary judgment to either party on PPINK’s claim on its patients’ behalf,
it must also deny summary judgment in favor of either party on PPINK’s substantive due process
claim.
D. Equal Protection Claim
PPINK asserts an equal protection claim on its own behalf regarding both of the statutes at
issue. The Court will separately address PPINK’s challenge to each statute.
1) “Abortion Clinic” Definition Excepting “Physician’s Office”
PPINK contends that Indiana Code § 16-18-2-1.5 violates its rights under the Equal
Protection Clause as applied to the Lafayette clinic because the statute creates two groups of
medication abortion providers—“abortion clinics” and “physician’s offices”—and then treats
those groups differently without a rational basis for doing so. [Filing No. 72 at 27-28.] PPINK
concedes that its equal protection claim is subject to rational basis review, but it argues that the
State has no rational basis for the differential treatment at issue. [Filing No. 72 at 27-28.]
In response, the State submits an affidavit that it contends proves that medication abortions
are not performed at physician’s offices. [Filing No. 74 at 12-13 (citing Filing No. 73-1).] It
claims that this evidence “substantiates the State’s theory that physicians’ offices do not pose the

30

same risks as other facilities when it comes to caring for women who have had a medication or
surgical abortion.” [Filing No. 74 at 13.] The State contends that physicians who operate their
own practice “are typically less regulated than other medical facilities.” [Filing No. 74 at 13-14.]
Thus, the State concludes that the legislature had a rational basis for treating physician’s offices
differently than abortion clinics in this context. [Filing No. 14-15.]
In reply, PPINK emphasizes that the term “physician’s office” is undefined. [Filing No.
75.] Thus, PPINK contends that the State’s affidavit purporting to show that physician’s offices
do not perform medication abortions is not definitive. [Filing No. 75 at 22.] PPINK points out
that a “‘physician’s office’ could begin performing abortions tomorrow, or at any other point in
the future, and not be subject to the challenged statute.” [Filing No. 75 at 23.] PPINK concludes
that the statute’s application to abortion clinics but not physician’s offices performing the same
procedure is irrational and, thus, violates PPINK’s equal protection rights. [Filing No. 75 at 21.]
In its reply supporting its cross-motion, the State contends that the distinction at issue is
rational because the legislature is concerned with regulating facilities that openly offer abortions,
such as the Lafayette clinic, not physician’s offices where “abortions are perhaps non-existent.”
[Filing No. 78 at 6.]
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall
“deny to any person within its jurisdiction the equal protection of the laws, which essentially is a
direction that all persons similarly situated should be treated alike.” Vision Church v. Vill. of Long
Grove, 468 F.3d 975, 1000 (7th Cir. 2006) (citation omitted). “It is well settled that where a
statutory classification does not itself impinge on a right or liberty protected by the Constitution,
the validity of classification must be sustained unless the classification rests on grounds wholly
irrelevant to the achievement of any legitimate governmental objective.” Harris v. McRae, 448

31

U.S. 297, 322, 326 (1980) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)). “All equal
protection claims, regardless of the size of the disadvantaged class, are based on the principle that,
under like circumstances and conditions, people must be treated alike, unless there is a rational
reason for treating them differently.” LaBella Winnetka, Inc. v. Vill. of Winnetka, 628 F.3d 937,
941 (7th Cir. 2010).
“[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Baskin v. Bogan, 766 F.3d 648, 654 (7th Cir. 2014), cert. denied. That said,
even if the group discriminated against is not a suspect class, “courts examine, and sometimes
reject, the rationale offered by government for the challenged discrimination.” Id.
It is undisputed that, as relevant to this claim, Indiana Code § 16-18-2-1.5 divides medical
providers performing medication abortions into two groups—“abortion clinics” and “physician’s
offices”—and treats those groups differently. Indiana Code § 16-18-2-1.5(a)(2) defines the term
“abortion clinic” to include any freestanding entity that “provides an abortion inducing drug for
the purpose of inducing an abortion.” But the statute excepts a “physician’s office” from the
definition of “abortion clinic,” as long as abortion inducing drugs “are not the primarily dispensed
or prescribed drug at the physician’s office.” I.C. § 16-18-2-1.5(b)(3)(B). The effect of this
distinction is not meaningless. A medication abortion provider deemed an “abortion clinic” must
abide by the physical plant requirements that previously only applied to entities performing
surgical abortions. See, e.g., 410 I.A.C. 26-17-2; 410 I.A.C. 26-17-2(d); 410 I.A.C. 26-13-3(b)(1).
But a medication abortion provider deemed a “physician’s office” need not meet those physical
plant requirements. I.C. § 16-18-2-1.5(b)(3). Unless there is a rational reason for treating
medication abortion providers differently, the distinction created by Indiana Code § 16-18-2-1.5
violates the Equal Protection Clause. LaBella Winnetka, 628 F.3d at 941.

32

The State’s overarching argument is that it is rational not to equally regulate medication
abortions provided at “physician’s offices” because they either do not occur or are very rare and,
thus, “do not pose the same risks” as medication abortions at other facilities. [Filing No. 74 at 1213.] As support for this argument, the State submits an affidavit from Brian Carnes, the State
Registrar of the IDOH. [Filing No. 73-1.] Mr. Carnes attests that a review of all Terminated
Pregnancy Reports from July 1, 2006, through December 31, 2013, confirms that each form was
submitted by a licensed abortion clinic, an ambulatory surgical center, a hospital, or PPINK’s
Lafayette clinic. [Filing No. 73-1 at 2.] Mr. Carnes infers from this data that no reported abortions
occurred at a physician’s office in Indiana during this time. [Filing No. 73-1 at 2.] Based on this
evidence, the State contends that the legislature “had no need to regulate physicians’ offices as
abortion clinics” and, thus, the statute passes rational basis review. [Filing No. 74 at 12-14.]
The State’s arguments ignore an undeniable statutory ambiguity between the terms
“abortion clinic” and “physician’s office” in Indiana Code § 16-18-2-1.5. Specifically, it is
undisputed that the term “physician’s office” is not defined in any relevant provisions. Under the
plain text of the statute, the same entity is an “abortion clinic” if it prescribes any abortion inducing
drugs, I.C. § 16-18-2-1.5(a)(2), but it also qualifies for the “physician’s office” exception if
abortion inducing drugs “are not the primarily dispensed or prescribed drug,” I.C. § 16-18-21.5(b)(3)(B). The Lafayette clinic is a prime example of this ambiguity. It is undisputed that the
Lafayette clinic prescribes abortion inducing drugs but that they are not the primarily dispensed or
prescribed drug at that clinic. [Filing No. 71-1 (affidavit stating that 72 medication abortions and
more than 7,000 other prescriptions (primarily contraceptives) were prescribed at the Lafayette
clinic between July 1, 2013, and March 30, 2014).] Thus, pursuant to the plain text of the statute,
the Lafayette clinic could either be an “abortion clinic” (because it “provides an abortion inducing

33

drug for the purpose of inducing an abortion,” I.C. § 16-18-2-1.5(a)(2)), or qualify for the
“physician’s office” exception (because “abortion inducing drugs are not the primarily dispensed
or prescribed drug at the physician’s office,” I.C. § 16-18-1.5(b)(3)(B)). 6
This blatant ambiguity undermines the State’s assertion that no physician’s offices perform
abortions, particularly since that term is undefined. It is undisputed that a “physician’s office”
with the same physical layout and amenities as the Lafayette clinic would not have to modify itself
to comply with the physical plant requirements at issue because it would qualify for the
“physician’s office” exception in Indiana Code § 16-18-2-1.5(b)(3). In fact, the Lafayette clinic
has a part-time physician, medication abortions are only offered when he is present, and the initial
medication is administered from the physician’s office. [Filing No. 26-2 at 2.] Thus, perhaps the
Lafayette clinic is actually a “physician’s office” performing medication abortions and, thus, not
subject to the physical plant requirements at issue. 7 The State does not view it that way, but this
is a prime example of how the ambiguity in the statute leads to arbitrary distinctions and unequal
regulatory treatment with no rational basis.

6

This distinguishes the case at bar from Women’s Medical Center of Northwest Houston v. Bell,
248 F.3d 411 (5th Cir. 2001), which the State cites to support excluding physician’s offices from
abortion clinic regulations. [Filing No. 74 at 15.] The Texas statute at issue in Bell set a “300abortion floor as an accommodation to private physicians who provide a number of abortions that
the government considers to be too few to require licensing.” 248 F.3d at 419. The Indiana statute
sets no such floor and, again, does not define the term “physician’s office.” I.C. § 16-18-2-1.5.
7

PPINK has never sought relief on the basis that it should actually be considered a “physician’s
office” not subject to the physical plant requirements at issue. The Court will not sua sponte afford
a party relief that it has not requested. See, e.g., Greenlaw v. United States, 554 U.S. 237, 243-44
(2008) (“[W]e rely on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present. . . . Our adversary system is designed around the
premise that the parties know what is best for them, and are responsible for advancing the facts
and arguments entitling them to relief.”). The Court notes this possibility, however, to further
highlight the statute’s ambiguity.
34

Not only is the statute ambiguous, it results in disparate treatment between an “abortion
clinic” and the undefined “physician’s office,” which remains statutorily authorized to perform
medication abortions without complying with the physical plant requirements. United States
Supreme Court precedent confirms the State’s ability to regulate abortion providers differently
than those providing “other, and comparable, medical or surgical procedures.”

Planned

Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 80-81 (1976) (emphases added). It does
not, however, authorize the unequal treatment of those providing the exact same procedure,
without a rational basis, and equal protection demands otherwise. See LaBella Winnetka, 628 F.3d
at 941 (holding that “regardless of the size of the disadvantaged class” equal protection requires
that “under like circumstances and conditions, people must be treated alike, unless there is a
rational reason for treating them differently”). The State’s interests in maternal health, continuity
of care, and the treatment of medical complications, if sincere, should apply equally regardless of
whether an “abortion clinic” or a “physician’s office” provides the medication abortion. And
although the State argues that abortion clinics present a greater risk for it to regulate because they
allegedly administer the procedure more frequently, [Filing No. 74 at 13], that argument is hard to
square with its other argument that “physicians who operate their own practices are typically less
regulated than other medical facilities.” [Filing No. 74 at 14.]
The Court concludes that Indiana Code § 16-18-2-1.5(a)(2) violates the Equal Protection
Clause as applied to the Lafayette clinic. It allows the State to arbitrarily divide medication
abortion providers into two groups—“abortion clinics” and undefined “physician’s offices”—and
treat those groups differently, without a rational basis for doing so, by requiring “abortion clinics”
but not “physician’s offices” to meet the physical plant requirements at issue. The consequence is
that the Lafayette must either comply with certain physical plant requirements that previously only

35

applied to surgical abortion providers, or stop providing medication abortions. 8 No “physician’s
office” faces the same choice. The Court concludes that PPINK is entitled to summary judgment
as a matter of law on its equal protection claim regarding the application of Indiana Code § 16-182-1.5(a)(2) to its Lafayette clinic.
2) Prohibition of Waiver for Abortion Clinics
PPINK also contends that Indiana Code § 16-21-2-2.5(b) violates the Equal Protection
Clause to the extent that it prohibits the IDOH from waiving physical plant requirements for
abortion clinics that would not harm patient safety. [Filing No. 72 at 28-32.] PPINK makes this
challenge on behalf of its Lafayette clinic, which only provides medication abortions, as well as
on behalf of its Indianapolis, Bloomington, and Merrillville clinics, which also provide surgical
abortions. [Filing No. 72 at 28-32; Filing No. 70.] PPINK emphasizes that “existing Indiana law
bars waivers that would harm patient safety, [so] the only waivers that the Act’s new classification
bars for abortion clinics are those that do not harm patient safety.” [Filing No. 72 at 29.]
In response, the State contends that the legislature “may require that all abortion clinics be
minimally prepared to treat abortion complications surgically.” [Filing No. 74 at 17.] It seizes on
a statement in PPINK’s brief conceding that requirements are “certainly rational” for providers of
surgical abortions. [Filing No. 74 at 17 (citing Filing No. 72 at 24).] The State concludes that it
“therefore must be true that the [IDOH’s] inability to waive certain requirements for [PPINK’s]
surgical clinics is constitutional.” [Filing No. 74 at 17.]

8

The IDOH interprets Indiana Code § 16-21-2-2.5(b) as prohibiting it from granting a waiver of
the surgical physical plant requirements that the Lafayette clinic does not meet. [Filing No. 50 at
2.] In Indiana, “[a]n interpretation of a statute by an administrative agency charged with the duty
of enforcing the statute is entitled to great weight, unless [its] interpretation would be inconsistent
with the statute itself.” LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000). The
constitutionality of that waiver prohibition will be addressed in the next subsection.
36

In reply, PPINK contends that the State has not articulated a specific rational concern about
why abortion clinics cannot apply for a waiver while other entities that perform abortions can.
[Filing No. 75 at 27-28.] Thus, PPINK concludes that the waiver prohibition violates its clinics’
equal protection rights. [Filing No. 75 at 29.]
In its reply supporting its cross-motion, the State emphasizes that precedent confirms that
it can treat abortion providers differently than other healthcare providers. [Filing No. 78 at 6-7.]
Thus, it concludes that the waiver prohibition on abortion clinics is not unconstitutional. [Filing
No. 78 at 7.]
Rules “pertaining to the operation and management of hospitals, ambulatory outpatient
surgical centers, abortion clinics, and birthing centers” may be adopted as “necessary to protect
the health, safety, rights, and welfare of patients.” Indiana Code § 16-21-1-7. This includes
“[r]ules establishing standards for equipment, facilities, and staffing required for efficient and
quality care of patients.” Indiana Code § 16-21-1-7. For “good cause shown,” the IDOH
previously had the discretion waive a rule for any of the above facilities, as long as the “waiver
[did] not adversely affect the health, safety, and welfare of the residents or patients.” Indiana Code
§ 16-21-1-9.
That discretion was curtailed when Indiana Code § 16-21-2-2.5(b) was amended to provide
that the IDOH “may not exempt an abortion clinic from the requirements described in subsection
(a) or the licensure requirements set forth in an administrative rule, including physical plant
requirements.” The definition of “abortion clinic,” as detailed at length in the previous section,
defines that term in relevant part to include a freestanding entity that “performs surgical abortion
procedures” or “provides an abortion inducing drug for the purpose of inducing an abortion.” I.C.
§ 16-18-2-1.5(a).

37

It is undisputed that the IDOH can waive rule requirements, including physical plant
requirements for hospitals, ambulatory outpatient surgical centers, and birthing centers if the
waiver does not “adversely affect the health, safety, and welfare of the residents or patients.”
Indiana Code § 16-21-1-9. It is likewise undisputed that until the legislature passed Indiana Code
§ 16-21-2-2.5(b), abortion clinics sought rule waivers under Indiana Code § 16-21-1-9, sometimes
successfully. For example, in 2009, PPINK sought and obtained a waiver for an administrative
rule requirement for its Merrillville clinic pursuant to Indiana Code § 16-21-1-9. [Filing No. 261 at 8-9 (IDOH “Order To Grant a Waiver” to Merrillville clinic (citing Indiana Code § 16-21-19)).] But abortion clinics can no longer obtain rule waivers pursuant to Indiana Code § 16-21-1-9
because of Indiana Code § 16-21-2-2.5(b), which expressly prohibits them for abortion clinics.
[Filing No. 50 at 2.] PPINK asserts that with regard to its Merrillville clinic, for example, it would
“like to be able to request permission from the [IDOH] to provide persons in the waiting area with
either bottled water or a water cooler instead of installing a drinking fountain.” [Filing No. 72 at
16; Filing No. 71-1 at 3.]
The Court has already detailed the Seventh Circuit’s recent decision in Van Hollen at
length. See Part III.A. One portion of that decision is particularly relevant to PPINK’s equal
protection challenge to Indiana Code § 16-21-2-2.5(b) and bears repeating. At issue in Van Hollen
was the constitutionality of a statute prohibiting a doctor from performing an abortion unless the
doctor had admitting privileges at a hospital no more than 30 miles from the clinic at which the
abortion was performed. Id. at 787. Van Hollen expressly noted that “[a]n issue of equal protection
of the laws [was] lurking” in the case because “the state seems indifferent to complications from
non-hospital procedures other than surgical abortion (especially other gynecological procedures),
even when they are more likely to produce complications.” 738 F.3d at 790.

38

The abortion clinic rule waiver prohibition in Indiana Code § 16-21-2-2.5(b) presents an
even more blatant issue of equal protection than the one lurking in Van Hollen. Here, the waiver
prohibition expressly singles out “abortion clinics,” despite the fact that the State’s own evidence
confirms that ambulatory surgical centers and hospitals also perform abortions. [Filing No. 73-1
at 2 (affidavit from State Registrar of the IDOH reviewing Terminated Pregnancy Reports from
July 2006 through December 2013 and confirming that ambulatory surgical centers and hospitals
perform abortions).] But ambulatory surgical centers and hospitals remain statutorily eligible to
seek a rule waiver pursuant to Indiana Code § 16-21-1-9 because the abortion clinic waiver
prohibition in Indiana Code § 16-21-2-2.5(b) does not apply to them.
The State presents no rational basis for this unequal treatment. As PPINK points out, the
general waiver rule already prohibits granting any waiver that would “adversely affect the health,
safety, and welfare of the residents or patients.” Indiana Code § 16-21-1-9. Thus, the abortion
clinic waiver prohibition in Indiana Code § 16-21-2-2.5(b) cannot be justified on grounds related
to health of abortion clinic patients, as the State tries to do. [Filing No. 74 at 17.] The Court also
rejects the State’s argument that “the legislature may require that all abortion clinics be minimally
prepared to treat abortion complications surgically,” [Filing No. 74 at 17], because the waiver
prohibition does not apply to all medical providers performing abortions. Instead, the statutory
scheme at issue allows ambulatory surgical centers and hospitals to perform abortions and still
obtain rule waivers that would not adversely affect the health of their patients. The abortion clinic
waiver prohibition in Indiana Code § 16-21-2-2.5(b) specifically targets abortion providers that
the State deems to be “abortion clinics” by prohibiting them from obtaining a rule waiver, even in

39

cases that will not adversely affect the health of the patients. 9 Because the State has provided no
rational basis for this unequal treatment, the Court grants summary judgment in favor of PPINK
on its equal protection claim regarding Indiana Code § 16-21-2-2.5(b). 10
IV.
CONCLUSION
For the reasons set forth herein, the Court GRANTS IN PART PPINK’s Motion for
Summary Judgment, [Filing No. 71], to the extent that the Court enters summary judgment in favor
of PPINK on its claim that Indiana Code §§ 16-18-2-1.5(a)(2) and 16-21-2-2.5(b) violate the Equal
Protection Clause of the United States Constitution. The Court DENIES PPINK’s request for
summary judgment on the Fourteenth Amendment claim it brings on behalf of its patients’ right
to choose an abortion and on PPINK’s substantive due process claim. The Court DENIES the
State’s Motion for Summary Judgment in all respects. [Filing No. 73.] No final judgment shall
issue at this time.
PPINK’s claims that remain pending seek injunctive relief regarding Indiana Code § 1618-2-1.5(a)(2), but PPINK is entitled to that relief by entry of summary judgment in its favor on
its equal protection claim. Thus, the Court requests that the assigned Magistrate Judge schedule a
status conference with the parties to discuss the effect of the Court’s summary judgment order on
the remaining pending claims, the necessity of the presently scheduled June 2015 trial, and the

9

The Court recognizes that this is a different conclusion than it reached in denying PPINK’s
preliminary injunction request regarding Indiana Code § 16-21-2-2.5(b). At that time, however,
there was no evidence in the record that other entities, such as ambulatory surgical centers, were
performing abortions and still able to obtain physical plant requirement waivers. In other words,
it was not clear to the Court at that time that Indiana Code § 16-21-2-2.5(b) resulted in unequal
treatment based on whether the State classified an abortion provider as an “abortion clinic” or
another type of abortion provider.
10

Unlike PPINK’s Fourteenth Amendment and substantive due process claims, its equal protection
claim does not implicate disputed issues of fact, but instead is based on the undisputed
interpretation and application of the statutes at issue. Summary judgment is therefore appropriate.
40

contents of any proposed permanent injunction and final judgment if the parties deem trial to be
unnecessary.
_______________________________

December 3, 2014

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via CM/ECF:
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Kenneth J. Falk
ACLU OF INDIANA
[e-mail]
Talcott Camp
AMERICAN CIVIL LIBERTIES UNION
[e-mail]
Heather Hagan McVeigh
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Thomas M. Fisher
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Ashley Tatman Harwel
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Helene T. Krasnoff
PLANNED PARENTHOOD FEDERATION OF AMERICA
[e-mail]

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