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

Filing 91

ORDER - 73 Motion for Summary Judgment is granted. 75 Motion for Summary Judgment is denied. The Court ISSUES A PERMANENT INJUNCTION prohibiting the State from enforcing the following provisions of HEA 1337: the anti- discrimination provision s, Indiana Code §§ 16-34-4-4, 16-34-4-5, 16-34-4-6, 16- 34-4-7, 16-34-4-8, the information dissemination provision, Indiana Code § 16- 34-2-1.1(a)(1)(K), and the fetal tissue disposition provisions. See order for details. Signed by Judge Tanya Walton Pratt on 9/22/2017. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PLANNED PARENTHOOD OF INDIANA AND
KENTUCKY, INC., and
CAROL DELLINGER M.D.,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
COMMISSIONER, INDIANA STATE
)
DEPARTMENT OF HEALTH in his official
)
capacity,
)
PROSECUTORS OF MARION, LAKE, MONROE, )
AND TIPPECANOE COUNTIES in their official
)
capacities, and
)
THE INDIVIDUAL MEMBERS OF THE
)
MEDICAL LICENSING BOARD OF INDIANA in )
their official capacities,
)
)
Defendants.
)

Case No. 1:16-cv-00763-TWP-DML

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on cross-motions for summary judgment filed by Plaintiffs
Planned Parenthood of Indiana and Kentucky and Carol Dellinger, M.D. (collectively, “PPINK”),
(Filing No. 73), and Defendants the Commissioner of the Indiana State Department of Health
(“ISDH”), the Prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties, and members of
the Medical Licensing Board of Indiana (collectively, “the State”), all in their official capacities,
(Filing No. 75).
On March 24, 2016, House Enrolled Act No. 1337 (“HEA 1337”), which creates new
regulations of abortion and practices related to abortion, was signed into law. PPINK maintains
that several provisions of HEA 1337 are unconstitutional. PPINK seeks to permanently enjoin the
implementation and enforcement of these provisions, and a declaratory judgment that the
challenged provisions are unconstitutional. For the reasons that follow, the Court concludes that

the challenged provisions violate the Fourteenth Amendment to the United States Constitution and
permanently enjoins enforcement of these provisions.
I. BACKGROUND
PPINK is a non-profit healthcare provider which offers reproductive healthcare, family
planning, and preventive primary-care services. (Filing No. 30-1 at 1.) At the outset of this case,
it operated twenty-three health centers in Indiana and two in Kentucky. (Filing No. 30-1 at 1.)
Three of the Indiana health centers, located in Bloomington, Merrillville, and Indianapolis, provide
surgical abortion services to patients. (Filing No. 30-1 at 1.) Surgical abortions are available at
these centers only through the first trimester of pregnancy. (Filing No. 30-1 at 1.)
On March 24, 2016, the Governor of Indiana signed into law HEA 1337, which would have
become effective on July 1, 2016. See Ind. Code § 16-34-4-1 et seq. HEA 1337 creates several
new provisions and amends several others regarding Indiana’s regulation of abortion and practices
related to abortions. See id. Three aspects of HEA 1337 are challenged by PPINK in this action.
The parties essentially do not dispute the key background facts related to the challenged provisions,
nor do they dispute the potential consequences of these provisions for PPINK and its patients. The
Court will therefore only briefly set forth the challenged provisions and summarize the background
evidence related to each provision.
A.

Anti-Discrimination and Information Dissemination Provisions
HEA 1337 creates Indiana Code § 16-34-4, and is entitled “Sex Selective and Disability

Abortion Ban.” This chapter bans abortions sought solely for certain enumerated reasons.
Specifically, HEA 1337 provides that “[a] person may not intentionally perform or attempt to
perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of
postfertilization age if the person knows that the pregnant woman is seeking” an abortion: (1)
“solely because of the sex of the fetus,” §§ 16-34-4-4, 16-34-4-5; (2) “solely because the fetus has
2

been diagnosed with, or has a potential diagnosis of, Down syndrome or any other disability,”
§§ 16-34-4-6, 16-34-4-7; or (3) “solely because of the race, color, national origin, or ancestry of
the fetus,” § 16-34-4-8. The phrase “potential diagnosis” is defined as “the presence of some risk
factors that indicate that a health problem may occur.” Ind. Code § 16-34-4-3. Moreover, HEA
1337 requires abortion providers to complete a form provided by ISDH that indicates, among other
things, the “gender of the fetus, if detectable,” and “[w]hether the fetus has been diagnosed with
or has a potential diagnosis of having Down syndrome or any other disability.” Ind. Code § 1634-2-5(a)(6).
Indiana law sets forth consequences for abortion providers who violate these provisions.
Currently, it is a felony to knowingly or intentionally perform an abortion that is not permitted by
Indiana law, and HEA 1337 does not change this. See Ind. Code § 16-34-2-7(a). Moreover, HEA
1337 provides that “[a] person who knowingly or intentionally performs an abortion in violation
of this chapter may be subject to: (1) disciplinary sanctions under IC 25-1-9; and (2) civil liability
for wrongful death.” Ind. Code § 16-34-4-9(a).
Not only does HEA 1337 preclude abortions sought solely for one of the enumerated
reasons, but the associated information dissemination provision requires abortion providers to
inform their patients of the anti-discrimination provisions. Specifically, abortion providers must
inform their patients “[t]hat Indiana does not allow a fetus to be aborted solely because of the
fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus
having Down syndrome or any other disability.” Ind. Code § 16-34-2-1.1(a)(1)(K).
The State presents evidence that these provisions were passed in light of technological
developments that allow the diagnosis or potential diagnosis of fetal disabilities to be made early
in a pregnancy. In particular, cell-free fetal DNA testing is able to screen for several genetic

3

abnormalities, including Down syndrome, as early as ten weeks into the pregnancy. (Filing No.
54-1 at 5.) Tests such as the cell-free fetal DNA test are screening tests rather than diagnostic
tests, and as such, only reveal the likelihood of genetic abnormality. (Filing No. 54-1 at 4.)
The parties are essentially in agreement that a significant number of women have sought,
and will continue to seek, an abortion solely because of the diagnosis of a disability or the risk
thereof. (See, e.g., Filing No. 30-1 at 2-3 (attestation from the CEO of PPINK that it has and will
continue to provide abortions to women who seek an abortion “solely because of a diagnosis of
fetal Down syndrome or other genetic disabilities or the possibility of such a diagnosis”); Filing
No. 54 at 14-15 (citing statistics regarding the percentage of fetuses diagnosed with Down
syndrome that are aborted)). Moreover, the parties agree that the number of women who will seek
an abortion at least in part out of these concerns will likely increase as testing is more widely
available than ever before.
B.

Fetal Tissue Disposition Provisions
HEA 1337 also changes the manner in which fetal tissue must be disposed. Under current

Indiana law, prior to the passage of HEA 1337, “[a] pregnant woman who has an abortion ... has
the right to determine the final disposition of the aborted fetus.” Ind. Code § 16-34-3-2. If the
woman decides to let the facility performing the abortion dispose of the fetal tissue, Indiana
regulations require that the facility bury or cremate the fetal tissue. See 410 I.A.C. § 35-2-1(a).
Currently, if a medical facility elects to cremate fetal tissue, it must do so by using a “crematory”
or by “incineration as authorized for infectious and pathological waste.” 410 I.A.C. § 35-1-3.
Pathological waste includes tissues, organs, body parts, and blood or bodily fluid “that are removed
during surgery, biopsy, or autopsy.”

Ind. Code § 16-41-16-5.

Infectious waste includes

pathological waste, Ind. Code § 16-41-6-4(b), and it can be destroyed through various procedures

4

including incineration, Ind. Code § 16-41-6-3(b). Therefore, as it currently stands, the woman can
determine to bury, cremate, or otherwise dispose of the fetal tissue herself, or the fetal tissue may
be incinerated along with other human surgical byproducts such as organs. PPINK currently
utilizes a contractor who periodically incinerates the fetal tissue along with other surgical byproducts.
HEA 1337 alters the manner in which healthcare providers must handle fetal tissue in
instances where the patient does not elect to retain it and dispose of it herself. It provides that
“[a]n abortion clinic or health care facility having possession of an aborted fetus shall provide for
the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3
apply to the final disposition of an aborted fetus, which must be interred or cremated.” Ind. Code
§ 16-34-3-4(a). 1 A “burial transit permit” is “a permit for the transportation and disposition of a
dead human body required under IC 16-37-3-10 or IC 16-37-3-12.” Ind. Code § 23-14-31-5.
Moreover, HEA 1337 excludes “an aborted fetus or a miscarried fetus” from the definition
of “infectious waste.” Ind. Code § 16-41-16-4(d). This means that if a healthcare provider elects
to use cremation rather than interment, the cremation of the fetal tissue must be performed at a
crematory. However, the cremation of fetal tissue need not each be performed separately; HEA
1337 explicitly provides that “[a]borted fetuses may be cremated by simultaneous cremation.” Ind.
Code § 16-34-3-4(a). In exploring compliance with these new provisions, PPINK has been
informed by the ISDH that its plan to aggregate “the products of conception in a container suitable
for cremation and then, periodically, [have] the container delivered to a crematorium for final
disposition” will comply with the statute. (Filing No. 54-10 at 2.)

1

PPINK notes in its Amended Complaint that the same disposition requirements apply to fetal tissue that results from
a miscarriage when that tissue is removed by an abortion clinic. (Filing No. 83 at 2.)

5

C.

Procedural History
In the operative Second Amended Complaint, PPINK maintains that several provisions of

HEA 1337 are unconstitutional, and it seeks to permanently enjoin the implementation and
enforcement of these provisions. (Filing No. 83 at 11.) PPINK also seeks a declaratory judgment
that HEA 1337 is unconstitutional to the extent that it:
(a) Denies the ability of a woman to obtain an abortion during the first trimester of
her pregnancy for the reasons noted in Ind. Code § 16-34-4-5 through Ind. Code
§ 16-34-4-8;
(b) Requires as part of the “informed consent” process that women seeking
abortions be informed that they are unable to obtain an abortion if their sole reason
for doing so is because of the fetus’s race, color, national origin, ancestry, sex, or
diagnosis or potential diagnosis of the fetus having a disability; and
(c) Requires fetal tissue after a first trimester abortion or a miscarriage to be treated
by the abortion provider differently than other medical material.
(Filing No. 83 at 11). Following extensive briefing and oral argument, the Court granted PPINK’s
Motion for Preliminary Injunction, (Filing No. 7), concluding that PPINK was likely to succeed
on the merits of its claims, (Filing No. 62).
PPINK and the State have cross-moved for summary judgment. (Filing No. 73; Filing No.
75.) Those motions are now fully briefed and ripe for the Court’s review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment,
the court reviews the record in the light most favorable to the nonmoving party and draws all
reasonable inferences in that party’s favor. Zerante, 555 F.3d at 584; Anderson, 477 U.S. at 255.
The party seeking summary judgment bears the initial responsibility of informing the court
of the basis for its motion, and identifying “the pleadings, depositions, answers to interrogatories,
6

and admissions on file, together with the affidavits, if any,” which demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (noting that
when the non-movant has the burden of proof on a substantive issue, specific forms of evidence
are not required to negate a non-movant’s claims in the movant’s summary judgment motion, and
that a court may grant such a motion, “so long as whatever is before the district court demonstrates
that the standard...is satisfied”); see also Fed. R. Civ. P. 56(c)(1)(A) (noting additional forms of
evidence used in support or defense of a summary judgment motion, including “depositions,
documents electronically stored information, affidavits or declarations, stipulations ..., admissions,
interrogatory answers, or other materials”).
Thereafter, a nonmoving party who bears the burden of proof on a substantive issue may
not rest on its pleadings, but must affirmatively demonstrate by specific factual allegations that
there is a genuine issue of material fact that requires trial. Hemsworth v. Quotesmith.Com, Inc.,
476 F.3d 487, 490 (7th Cir. 2007); Celotex Corp., 477 U.S. at 323-24; Fed. R. Civ. P. 56(c)(1).
Neither the mere existence of some alleged factual dispute between the parties nor the existence
of some “metaphysical doubt” as to the material facts is sufficient to defeat a motion for summary
judgment. Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997); Anderson,
477 U.S. at 247-48; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“It is not the duty of the court to scour the record in search of evidence to defeat a motion for
summary judgment; rather, the nonmoving party bears the responsibility of identifying the
evidence upon which [it] relies.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104
(7th Cir. 2008).
Similarly, a court is not permitted to conduct a paper trial on the merits of a claim and may
not use summary judgment as a vehicle for resolving factual disputes. Ritchie v. Glidden Co., ICI

7

Paints World-Grp., 242 F.3d 713, 723 (7th Cir. 2001); Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994). Indeed, a court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts. Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003) (highlighting that “these are jobs for a factfinder”); Hemsworth, 476 F.3d at 490.
When ruling on a summary judgment motion, a court’s responsibility is to decide, based on the
evidence of record, whether there is any material dispute of fact that requires a trial. Id.
III. DISCUSSION
The Court previously addressed all issues presented in this litigation in the Order
preliminarily enjoining enforcement of the challenged sections of HEA 1337. (Filing No. 61.)
Upon review of the parties’ summary judgment briefing, a completely developed factual record,
and the applicable legal authorities, the Court’s view of the appropriate final determination of these
issues remains unchanged. Drawing substantially from the Court’s prior Order, (Filing No. 61),
significant portions of which are incorporated herein, the Court modifies and extends that analysis
only to the extent necessitated by the parties’ additional arguments.
A.

Anti-Discrimination Provisions
PPINK contends that the anti-discrimination provisions clearly violate well-established

Supreme Court precedent in that they prohibit women from obtaining an abortion prior to fetal
viability. (Filing No. 74 at 2.) The State posits that HEA 1337 represents a “qualitatively new
kind of [abortion] statute,” and, as such, it argues that the Supreme Court precedents on which
PPINK relies do not address, and therefore do not govern, the constitutionality of these provisions.
(Filing No. 76 at 11.)
“It is a constitutional liberty of the woman to have some freedom to terminate her
pregnancy.” Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992). This right is grounded in
the right to privacy rooted in “the Fourteenth Amendment’s concept of personal liberty.” Roe v.
8

Wade, 410 U.S. 113, 153 (1973); see Casey, 505 U.S. at 846 (“Constitutional protection of the
woman’s decision to terminate her pregnancy derives from the Due Process Clause of the
Fourteenth Amendment”). This right was first articulated in Roe but has since been repeatedly reexamined by the Supreme Court. Despite the Supreme Court’s frequent revisiting of the issue,
certain core principles have essentially remained unchanged since Casey, where a plurality of the
Supreme Court reaffirmed Roe’s essential holding. Casey, 505 U.S. at 846. The essential holding
of Roe has three parts:
First is a recognition of the right of the woman to choose to terminate a pregnancy
before viability and to obtain it without undue interference from the State. Before
viability, the State’s interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the woman’s effective right
to elect the procedure. Second is a confirmation of the State’s power to restrict
abortions after fetal viability, if the law contains exceptions for pregnancies which
endanger the woman'’ life or health. And third is the principle that the State has
legitimate interests from the outset of the pregnancy in protecting the health of the
woman and the life of the fetus that may become a child.
Casey, 505 U.S. at 846. 2
The anti-discrimination provisions of HEA 1337 clearly violate the first of these principles,
in that they prevent women from obtaining abortions before fetal viability. The woman’s right to
choose to terminate a pregnancy pre-viability is categorical: “a State may not prohibit any woman

2

Although a plurality of the justices articulated these principles in Casey, subsequent Supreme Court decisions have
recognized and applied these principles when considering challenges to abortion laws. See Gonzales v. Carhart, 550
U.S. 124, 145-46 (2007); Stenberg v. Carhart, 530 U.S. 914, 920, 120 (2000). In Stenberg, for example, a majority
of the Supreme Court characterized these principles as “established” and applied them as such to Nebraska’s partial
birth abortion ban. 530 U.S. at 921. More recently, in Gonzales, the Supreme Court only “assume[d]” that these
principles governed. 550 U.S. at 146. Nevertheless, federal courts have recognized that this assumption merely
signaled that the Supreme Court may be open to re-evaluating those principles in the future, not that those principles
no longer represented the governing law. See, e.g., MKB Management Corp. v. Stenehjem, 795 F.3d 768, 772 (8th
Cir. 2015) (acknowledging that in Gonzales the Supreme Court only “assume[d]” Casey’s principles governed, but
reasoning that “[e]ven so, the [Supreme Court] has yet to overrule the Roe and Casey line of cases. Thus we, as an
intermediate court, are bound by those decision.”). Indeed, the Seventh Circuit has treated these principles as binding
precedent. See Planned Parenthood of Ind., Inc. v. Commissioner of Ind. State Dep’t of Health, 699 F.3d 962, 987
(7th Cir. 2012). Perhaps because of this, the parties do not dispute that the principles articulated in Casey and
subsequently applied in Stenberg and Gonzales constitute binding precedent.

9

from making the ultimate decision to terminate her pregnancy before viability.” Casey, 505 U.S.
at 870, 879 (“Before [viability] the woman has a right to choose to terminate her pregnancy.”);
Stenberg, 530 U.S. at 920 (same); Gonzales, 550 U.S. at 146 (same). As stated by the Seventh
Circuit, “the constitutional right to obtain an abortion is a right against coercive governmental
burdens; the government may not ‘prohibit any woman from making the ultimate decision to
terminate her pregnancy’ before fetal viability.” Planned Parenthood of Ind., 699 F.3d at 987 (7th
Cir. 2012) (quoting Casey, 505 U.S. at 874, 879).
Given the categorical nature of this principle, circuit courts have consistently held that any
type of outright ban on pre-viability abortions is unconstitutional. See MKB Management Corp.,
795 F.3d at 773 (holding that a state law was unconstitutional because “we are bound by Supreme
Court precedent holding that states may not prohibit pre-viability abortions” and the challenged
law “generally prohibits abortions before viability”); McCormack v. Herzog, 788 F.3d 1017, 1029
(9th Cir. 2015) (holding that a state law was unconstitutional because its “broad[ ] effect ... is a
categorical ban on all abortions between twenty weeks gestational age and viability,” which “is
directly contrary to the [Supreme] Court’s central holding in Casey that a woman has the right to
‘choose to terminate a pregnancy before viability and to obtain it without undue interference from
the State’ ”) (quoting Casey, 505 U.S. at 846).
Nevertheless, the State attempts to accomplish via HEA 1337 precisely what the Supreme
Court has held is impermissible. The anti-discrimination provisions prohibit a woman from
choosing to terminate a pregnancy pre-viability if the abortion is sought solely for one of the
enumerated reasons. For this Court to hold such a law constitutional would require it to recognize
an exception where none have previously been recognized. Indeed, the State has not cited a single
case where a court has recognized an exception to the Supreme Court’s categorical rule that a

10

woman can choose to terminate a pregnancy before viability. This is unsurprising given that it is
a woman’s right to choose an abortion that is protected, which, of course, leaves no room for the
State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice. See
Casey, 505 U.S. at 846 (stating that it is a woman’s “decision to terminate her pregnancy” that is
protected by the Fourteenth Amendment) (emphasis added); id. at 879 (“A State may not prohibit
any woman from making the ultimate decision to terminate her pregnancy before viability.”)
(emphasis added).
The State resists this conclusion on multiple bases.

First, the State casts the anti-

discrimination provisions as the next iteration of our society’s prohibition on discrimination. The
State points to technological advances allowing earlier and more accurate information regarding
whether a fetus has a diagnosis or potential diagnosis of Down syndrome or other disabilities.
These technological advances, says the State, have led in part to an increase in the number of
abortions sought for reasons related to those disabilities. Because the Supreme Court has
recognized that the State has a legitimate interest in protecting potential life even from the outset
of a pregnancy, the State maintains that the anti-discrimination provisions simply further its
interest in protecting the potential life from discrimination.
The State is correct that the Supreme Court has consistently recognized that “the State has
legitimate interests from the outset of the pregnancy in protecting ... the life of the fetus that may
become a child.” Casey, 505 U.S. at 846. But while this is true, the State simply ignores that the
Supreme Court in Casey “struck a balance” between this interest and a woman’s liberty interest in
obtaining an abortion. Gonzales, 550 U.S. at 146. These interests weigh differently depending on
whether the fetus is viable. Before viability, the Supreme Court made clear that “the State’s
interests are not strong enough to support a prohibition of abortion.” Casey, 505 U.S. at 846, 869,

11

(“[a]t a later point in fetal development,”—namely, viability—“the State’s interest in life has
sufficient force so that the right of the woman to terminate the pregnancy can be restricted.”).
Therefore, although the State’s interest in protecting and even promoting potential life is a
legitimate one, the Supreme Court has already weighed this interest against a woman’s liberty
interest in choosing to terminate a pregnancy and concluded that, prior to viability, the woman’s
right trumps the State's interest. This is the “central holding” of Roe, and the State’s position
would require this Court to undermine that holding, which of course it cannot do. See Stenehjem,
795 F.3d at 772 (“[t]he [Supreme Court] has yet to overrule the Roe and Casey line of cases,” and
thus all federal courts “are bound by those decisions”). Accordingly, the State’s focus on the
technological developments since Roe and Casey are unpersuasive, and indeed irrelevant. This
case is not about technological developments, but rather about a woman’s liberty interest weighed
against the State’s interest in potential life. Developments in technology related to disability
screening and the consequences that flow from those developments do not give this Court license
to reevaluate the Supreme Court’s judgment as to the balancing of these interests.
Second, the State advances a so-called “binary choice” interpretation of Roe and Casey,
which, if accepted, would support the State’s position that “HEA 1337 does not interfere with a
right protected by Roe and Casey.” (Filing No. 76 at 26.) The State’s argument begins with the
woman’s liberty interest as articulated in Casey: “the right of the individual ... to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.” (Filing No. 76 at 26, citing Casey, 505 U.S. at 851
(emphasis added)). According to the State,
both the woman’s rights and the State’s interests are different if the pregnant
woman decides she wants a baby generally, but not the particular baby she happens
to be carrying. A woman has already decided to bear a child. Although her privacy

12

and liberty interests have not completely evaporated, those rights are not as central
as they once were.
(Filing No. 76 at 26).
The difficulty with the State’s position is that there is nothing in Roe or Casey that limits
the right to terminate a pregnancy pre-viability to women who do not want to have a child ever as
opposed to those who do not want to see a particular pregnancy through to birth. The quote from
Casey on which the State relies certainly does not establish that a woman’s right to decide whether
to bear a child refers to the decision to have a child generally, rather than whether to continue a
specific pregnancy. And the State does not cite a single legal authority that has recognized its
binary choice theory or its proffered interpretation of Roe or Casey.
The lack of authority supporting the State’s position likely stems from the fact that it is
contrary to the core legal rights on which a woman’s right to choose to terminate her pregnancy
prior to viability are predicated. The Supreme Court has mandated that this right stems from a
liberty right protected by the Fourteenth Amendment—specifically, a woman’s right to privacy.
See Roe, 410 U.S. at 153. Such a right “includes the interest in independence in making certain
kinds of important decisions,” such as whether to terminate a pregnancy. Casey, 505 U.S. at 859
(citation and quotation marks omitted). PPINK’s claim is based on an infringement of this privacy
right—the woman’s right to make the important, personal, and difficult decision of whether to
terminate her pregnancy. As stated above, the Supreme Court has weighed this right against the
State’s interest in protecting potential life and determined that the woman’s privacy right—
although “not ... unlimited”—is strong enough pre-viability to preclude the State from preventing
her “from making the ultimate decision to terminate her pregnancy before viability.” Id. at 879.
Under the State’s theory, a woman either wants to have a child or does not; and, once a
woman chooses the former, she cannot then terminate her pregnancy for reasons, whatever they
13

may be, that the State deems improper. But the very notion that, pre-viability, a State can examine
the basis for a woman’s choice to make this private, personal and difficult decision, if she at some
point earlier decided she wants a child as a general matter, is inconsistent with the notion of a right
rooted in privacy concerns and a liberty right to make independent decisions. The State’s theory
is also contrary to the reality that the decision to terminate a pregnancy involves “intimate views
with infinite variations.” Id. at 853.
To summarize, nothing in Roe, Casey, or any other subsequent Supreme Court decisions
suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised
for a particular reason determined by the State. The right to a pre-viability abortion is categorical.
Indeed, the Seventh Circuit has described “the mother’s right to abort a fetus that has not yet
become viable [as] essentially absolute.” Coe v. County of Cook, 162 F.3d 491, 493 (7th Cir.
1998). This is because, despite the State’s legitimate interest in potential life during the entirety
of the pregnancy, “[b]efore viability, the State’s interests are not strong enough to support a
prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to
elect the procedure.” Casey, 505 U.S. at 846. The Supreme Court has already balanced the parties’
interests and concluded that the State’s pre-viability interests are simply not strong enough for it
to lawfully prohibit pre-viability abortions. Yet HEA 1337 does just that.
Accordingly, the Court concludes that the anti-discrimination provisions of HEA 1337 are
unconstitutional.
B.

Information Dissemination Provision
HEA 1337 also requires abortion providers to inform their patients “[t]hat Indiana does not

allow a fetus to be aborted solely because of the fetus’s race, color, national origin, ancestry, sex,
or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.”

14

Ind. Code § 16-34-2-1.1(a)(1)(K). Simply put, this provision requires abortion providers to inform
patients of the anti-discrimination provisions discussed above.
PPINK maintains that requiring abortion providers to disseminate and patients to listen to
this information violates their First Amendment rights regarding compelled speech and compelled
listening, respectively. As the parties point out, the Seventh Circuit has not yet determined what
level of scrutiny applies to the type of professional speech at issue here. (Filing No. 74 at 19-20;
Filing No. 76 at 29-30.) The Court need not determine, however, what level of scrutiny applies,
because the parties agree that in the event that the Court holds the anti-discrimination provisions
to be unconstitutional, the information dissemination provision is likewise unconstitutional.
(Filing No. 74 at 20; Filing No. 76 at 30.)
Having concluded that the anti-discrimination provisions violate the Fourteenth
Amendment, the Court likewise concludes that Ind. Code § 16-34-2-1.1(a)(1)(K) is
unconstitutional.
C.

Fetal Tissue Disposition Provisions
PPINK’s final challenge is to the new fetal tissue disposition provisions created by HEA

1337.

PPINK contends that these requirements violate substantive due process and equal

protection principles. 3
The parties agree that the fetal tissue disposition provisions do not implicate a fundamental
right. When a fundamental right is not at stake, substantive due process still creates “a residual
substantive limit on government action which prohibits arbitrary deprivations of liberty.” Hayden
ex rel. A.H. v. Greensburg Community Sch. Corp., 743 F.3d 569, 576 (7th Cir. 2014). A law will
survive such a challenge if the State can “demonstrate that the intrusion upon ... liberty is rationally
3

Because the Court concludes that the requirements violate substantive due process principles, it need to reach the
equal protection issue.

15

related to a legitimate government interest.” Id.; Charleston v. Bd. of Trustees of Univ. of Ill. at
Chi., 741 F.3d 769, 774 (7th Cir. 2013) (“Substantive due process requires only that the practice
be rationally related to a legitimate government interest, or alternatively phrased, that the practice
be neither arbitrary nor irrational.”). It is ultimately the plaintiff’s burden to demonstrate that the
challenged law “lacks a rational relationship with a legitimate government interest; it is not the
[government’s] obligation to prove rationality with evidence.” Hayden, 743 F.3d at 576. The
plaintiff’s burden is a “heavy one: So long as there is any conceivable state of facts that supports
the policy, it passes muster under the due process clause; put another way, only if the policy is
patently arbitrary would it fail.” Id.
The State describes its interest as “treating fetal remains the same as other human remains,”
(Filing No. 76 at 30), or alternatively, “the humane disposal of fetal remains,” (Filing No. 76 at
35). PPINK argues that this asserted interest is insufficient because the State has no legitimate
interest in ensuring that abortion providers treat fetal tissue in the same manner as human remains.
Specifically, PPINK maintains that the State’s asserted interest would require this Court “to make
a leap that the Supreme Court has refused to take. Namely, to decide that human life begins at
conception and that a fetus is a human being.” (Filing No. 74 at 21.)
The Court concludes that the State’s asserted interest is not legitimate. As the Seventh
Circuit has noted, the Supreme Court and the circuit courts applying Supreme Court precedent
have unequivocally held that for purposes of the Fourteenth Amendment, a fetus is not a “person.”
See Coe 162 F.3d at 495 (citing Roe, 410 U.S. at 158; Casey, 505 U.S. at 912 [Stevens, J.,
concurring]; Reed v. Gardner, 986 F.2d 1122, 1128 (7th Cir. 1993); Alexander v. Whitman, 114
F.3d 1392, 1400 (3d Cir. 1997); Crumpton v. Gates, 947 F.2d 1418, 1421 (9th Cir. 1991)). As
such, the Court can find no legal basis for the State to require health care providers to treat fetal

16

remains in the same manner as human remains. Stated otherwise, if the law does not recognize a
fetus as a person, there can be no legitimate state interest in requiring an entity to treat an aborted
fetus the same as a deceased human.
The State points to other state and federal statutes as being “full of provisions that equate
even a non-viable fetus with a human being,” arguing that these statutes are analogous, and that
the State’s asserted interest is therefore legitimate. (Filing No. 76 at 30-33.) What those statutes
do not share in common with the present law, however, is that they concern circumstances in which
the State seeks to promote respect for potential life. No potential life is at issue in this provision.
Absent a potential life, this Court would have to determine that fetal tissue is in some respects the
equivalent of human remains for the State’s interest to be legitimate. This would be quite similar
to a recognition that a fetus is a person, an affirmation which this Court is not allowed to make.
As explained by the Seventh Circuit, the conclusion in Roe that a fetus is not a person “follows
inevitably from the decision to grant women a right to abort. If even a first-trimester fetus is a
person, surely the state would be allowed to protect him from being killed ....” Coe, 162 F.3d at
495.
The State also argues that “respectful treatment of fetal remains also stems from cultural
and religious traditions,” and it cites to Hindu, Buddhist, and Christian practices that “treat
deceased fetuses as persons.” (Filing No. 76 at 34.) Aside from the obvious entanglement of
church and state suggested by this argument, it also ignores the fact that the law as it existed prior
to the passage of HEA 1337 allowed individuals ample leeway to vindicate their own relevant
religious or cultural practices. A patient was permitted to take possession of the fetal tissue,
whether the result of an abortion or a miscarriage, and dispose of it in whatever manner she chose,
including in accordance with her particular religious or cultural beliefs.

17

Second, the State boldly contends that it is a “biological fact” that embryonic fetal tissue
is a “human being.” (Filing No. 76 at 30.) The Supreme Court, however, has not reached the same
conclusion. Whether or not an individual views fetal tissue as essentially the same as human
remains is each person’s own personal and moral decision. Cf. Roe, 410 U.S. at 159 (“[w]hen
those trained in the respective disciplines of medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not
in a position to speculate as to the answer.”); Casey, 505 U.S. at 851 (“At the heart of liberty is the
right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood were they
formed under compulsion of the State.”). The Court cannot resolve this moral question. But as a
legal question, there is currently no basis which would allow this Court to recognize fetal tissue as
a human being, and therefore analogous to human remains.
Notably, courts that have upheld requirements regarding the disposition of fetal tissue have
done so by recognizing a legitimate state interest in ensuring the sanitary disposal of fetal tissue. 4
See, e.g., Leigh v. Olson, 497 F.Supp. 1340, 1351 (D.N.D. 1980) (recognizing that there is a
legitimate state interest in regulating “the disposal of dead fetuses to protect the public health”).
But the State does not attempt to justify the fetal tissue disposition provisions on this basis, likely
because Indiana statutes already require that fetal tissue be disposed of in a sanitary manner.
In sum, the Court can find no legal support for the State’s position that it has a legitimate
interest in “treating fetal remains the same as other human remains.” (Filing No. 76 at 35.) The

4

A fetal tissue disposition statute was upheld in Planned Parenthood of Minn. v. State of Minn., 910 F.2d 479 (8th
Cir. 1990), but in that case the plaintiff “concede[d] the state has a legitimate interest in protecting public sensibilities.”
Id. at 488. Not only was no similar concession made here, but the State’s asserted legitimate interest is meaningfully
different in this case. For both of these reasons, the Eighth Circuit’s decision is of no persuasive value here.

18

Supreme Court has made clear that a fetus is not legally a person, but the State’s asserted interests
are essentially that fetal tissue should be treated similarly to human remains because they are like
human remains. Although the Supreme Court has recognized a legitimate governmental interest
in promoting the life of a fetus during a pregnancy, such an interest is always tethered to the notion
that the fetus represents a potential life and the State can legitimately promote respect for that
potentiality. The Supreme Court has extended these principles no further than that, and the State
has not provided a basis so that this Court can do otherwise. Therefore, any legitimate interest the
State has in a potential life during a pregnancy is no longer present once the pre-viability pregnancy
is terminated; and thus, it does not have a legitimate state interest in treating fetal tissue similarly
to human remains.
Even if the Court were to conclude that the State had a legitimate interest in treating
embryonic and fetal tissue “the same as other human remains,” the disposition provision is not
rationally related to that purpose, because in most respects, it does not treat fetal tissue in the same
manner that it treats human remains. First, it allows patients to take possession of the fetal tissue
and imposes no restrictions whatsoever on the manner in which they choose to dispose of that
tissue. The same is not true of the disposition of human remains, which are subject to numerous
requirements regarding burial and cremation. For example, state law enumerates the permitted
dispositions of human bodies, including, inter alia, interment in an established cemetery, disposal
of cremated human remains on the property of a consenting owner or an uninhabited public land,
or burial at sea. Ind. Code § 25-15-2-7. State law also provides, with great specificity, details
regarding burial, such as the minimum depth at which human remains must be buried, and proper
ventilation if remains are placed in a mausoleum. See, e.g., Ind. Code §§ 34-14-54-2, 23-14-54-3.
Second, the provision allows for the simultaneous cremation of fetal tissue from an unspecified

19

number of patients. Simultaneous cremation is only permitted for human remains if consented to
in writing by the authorizing agent(s). Ind. Code § 23-14-31-39(a). 5 The Court sees no rational
relationship between the State’s purported goal—treating fetal tissue like human remains—and the
law as written, given that it permits both the release of fetal tissue to patients with no restrictions
whatsoever, and the mass cremation of fetal tissue.
For the reasons above, the Court concludes that the challenged disposition provisions
violate the Fourteenth Amendment to the U.S. Constitution.
IV. CONCLUSION
The United States Supreme Court has stated in categorical terms that a state may not
prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
It is clear and undisputed that unless Roe v. Wade and Planned Parenthood of Se. Pa. v. Casey are
overturned by the United States Supreme Court, this Court is bound to follow that precedent under
the rule of stare decisis. See Casey, 505 U.S. at 870 (stating that the doctrine of stare decisis
requires reaffirmance of Roe’s essential holding recognizing a woman’s right to choose an abortion
before fetal viability); MKB Mgmt. Corp. v. Burdick, 954 F.Supp.2d 900 (D.N.D. 2013) (“[n]o
judge in the United States can overrule Roe v. Wade; only the Supreme Court can do so”);
Sojourner v. Roemer, 772 F.Supp. 930, 932 (E.D. La. 1991).
The challenged anti-discrimination provisions directly contravene well-established law
that precludes a state from prohibiting a woman from electing to terminate a pregnancy prior to
fetal viability. The information dissemination provision is also unconstitutional, as it requires
abortion providers to convey false information regarding the anti-discrimination provisions to their
5

As PPINK highlights, it was already disposing of fetal tissue by utilizing professional, regulated removal companies
to collect and incinerate it. (Filing No. 74 at 22.) The two major changes instituted by HEA 1337 are that it requires
PPINK to use crematories, rather than facilities that handle medical tissue, and that PPINK is required to take
possession of the ashes after cremation (at which time, presumably, it may dispose of those in any manner permitted
by statute). (Filing No. 74 at 22.)

20

patients. The fetal tissue disposition provisions do not further a legitimate state interest and are
therefore also unconstitutional.
Accordingly, PPINK’s Motion for Summary Judgment, (Filing No. 73), is GRANTED,
and the State’s Motion for Summary Judgment, (Filing No. 75), is DENIED.
The Court ISSUES A PERMANENT INJUNCTION prohibiting the State from
enforcing the following provisions of HEA 1337: the anti-discrimination provisions, Indiana Code
§§ 16-34-4-4, 16-34-4-5, 16-34-4-6, 16-34-4-7, 16-34-4-8, the information dissemination
provision, Indiana Code § 16-34-2-1.1(a)(1)(K), and the fetal tissue disposition provisions.
SO ORDERED.
Date: 9/22/2017

21

DISTRIBUTION:
Kenneth Biggins, Jr.
INDIANA ATTORNEY GENERAL
[e-mail]

Helene T. Krasnoff
PLANNED PARENTHOOD
FEDERATION OF AMERICA
[e-mail]

Anthony Scott Chinn
FAEGRE BAKER DANIELS LLP
[e-mail]

Lara K. Langeneckert
INDIANA ATTORNEY GENERAL
[e-mail]

Jennifer Dalven
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
[e-mail]

Jan P. Mensz
ACLU OF INDIANA
[e-mail]

Kenneth J. Falk
ACLU OF INDIANA
[e-mail]

Anne Kramer Ricchiuto
FAEGRE BAKER DANIELS LLP
[e-mail]

Thomas M. Fisher
ATTORNEY GENERAL’S OFFICE
[e-mail]

Gavin Minor Rose
ACLU OF INDIANA
[e-mail]
Juliana Yanez
FAEGRE BAKER DANIELS
[e-mail]

22