WHOLE WOMAN'S HEALTH ALLIANCE et al v. HILL et al

Filing 173

ORDER ON PLAINTIFF'S 48 MOTION FOR CERTIFICATION OF A DEFENDANT CLASS - To add all 91 prosecutors to this case even as a class in an effort simply to fend off any possible prosecutions of plaintiffs during its pendency would unnecessarily encumber and significantly complicate the proceedings for no good and necessary reason. Thus, the Motion for Certification of a Defendant Class [Dkt. 48 is DENIED at this time. Should the situation change such that any particular county prosecut or(s) decide(s) to file or threaten(s) to file or does file a criminal prosecution against Plaintiffs during the pendency of this litigation, Plaintiffs' Motion can be renewed, and the ruling will be revisited by the court. (See Order.) Signed by Judge Sarah Evans Barker on 9/24/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE, et )
al.
)
)
Plaintiffs,
)
)
v.
)
)
CURTIS T. HILL, JR. Attorney General of the )
State of Indiana, in his official capacity, et al.
)
)
Defendants.
)

No. 1:18-cv-01904-SEB-MJD

ORDER ON PLAINTIFF’S MOTION FOR CERTIFICATION
OF A DEFENDANT CLASS
Now before the Court is Plaintiff’s Motion for Certification of a Defendant Class,
requesting that, pursuant to Rule 23 of the Federal Rules of Civil Procedure, an order issue
creating a class consisting of “all State of Indiana prosecuting attorneys with authority to
prosecute misdemeanor and felony offenses, and thus with authority to prosecute violations
of certain of the laws challenged” in this litigation. Dkt. 49 at 1. Plaintiffs further propose
that the currently named defendant, Kenneth P. Cotter, St. Joseph County Prosecutor, be
named as class representative. Id. Defendants oppose the Motion. Dkt 58.
Plaintiffs have challenged the constitutionality of five categories of Indiana laws,
which are variously enforced through administrative, civil and criminal penalties, and
professional discipline. Plaintiffs also challenge the constitutionality of certain statutes that
subject abortion providers to criminal liability for violating specific abortion restrictions.
Defendants enforce the challenged restrictions. Plaintiffs seek to enjoin them and, if the

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class is permitted, all local prosecutors and their successors from enforcing the challenged
criminal restrictions.
The only abortion clinic whose operations Plaintiffs have specifically sought to
protect to date through this litigation is the clinic located in South Bend, Indiana (St. Joseph
County), which has been the subject of a preliminary injunction issued by this court and
sustained on appeal to the Seventh Circuit (see Whole Woman’s Health Alliance et al v. Hill,
No. 19-2051, 2019 WL 3949690, ___ F.3d ___ (7th Cir. Aug. 22, 2019)). The State has
been enjoined either to treat Whole Woman’s Health of South Bend as if it has a provisional
license under 410 IND. ADMIN. CODE § 26-2, or actually to grant such a provisional license,
to be effective until final judgment is issued on the merits, thereby allowing the clinic to
provide care during the pendency of this case or until further order of the court.
There has been no showing in the Plaintiffs’ Motion for Certification of a Defendant
Class that every county in Indiana has a sufficient and direct interest in the issues raised in
this litigation to warrant being made a party, either based on the existence of an operating
abortion clinic or other such provider within its boundaries or based on any currently
proposed or threatened legal action by any county prosecutor(s) beyond the St. Joseph
County prosecutor, who is already before the court. Nor has there been a showing that all
state prosecutors hold the same prosecutorial authority with respect to the challenged
restrictions, beyond the St. Joseph County Prosecutor, and similarly there is no realistic
prospect that Plaintiffs would sue or need to sue all ninety-one Indiana prosecutors in
separate actions.
Further, there has been no argument or showing on the part of Plaintiffs that
undermines or challenges the conclusions reached by the Court in its March 28, 2019, order
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denying Plaintiffs’ Motion to Dismiss, wherein we observed that the Attorney General’s
powers are sufficiently extensive with regard to Indiana criminal prosecutions to allow him
to intervene and/or collaborate with, if necessary, the county prosecutors to discourage or
curtail criminal prosecutions pursuant to the challenged statutes, should such action be
required by the Court during the pendency of this litigation. We agree with Defendants in
their response in opposition to the Motion: “[I]f Plaintiffs are successful in obtaining a
declaratory judgment that the challenged statutes are unconstitutional and an injunction
against defendant Cotter from enforcing these statutes, it is unreasonable to think any other
prosecutor would claim authority to prosecute Plaintiffs under those statutes.” Dkt. 58 at 6.
To add all 91 prosecutors to this case even as a class in an effort simply to fend off
any possible prosecutions of plaintiffs during its pendency would unnecessarily encumber
and significantly complicate the proceedings for no good and necessary reason. Thus, the
Motion for Certification of a Defendant Class [Dkt. 48] is DENIED at this time. Should the
situation change such that any particular county prosecutor(s) decide(s) to file or threaten(s)
to file or does file a criminal prosecution against Plaintiffs during the pendency of this
litigation, Plaintiffs’ Motion can be renewed, and the ruling will be revisited by the court.
IT IS SO ORDERED.

9/24/2019
Date: ______________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution to counsel of record via CM/ECF

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