WHOLE WOMAN'S HEALTH ALLIANCE et al v. HILL et al
Filing
331
ORDER granting - Plaintiffs' Motion for Clarification [Dkt. 300] is granted to the extent that we offer the guidance and directives set forth herein. Signed by Judge Sarah Evans Barker on 1/26/2021. (SEE ORDER FOR DETAILS.) (LDH)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE,
ALL-OPTIONS, INC.,
JEFFREY GLAZER M.D.,
)
)
)
)
Plaintiffs,
)
)
v.
)
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TODD ROKITA Attorney General of the State of )
Indiana, in his official capacity,
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KRISTINA BOX Commissioner of the Indiana
)
State Department of Health, in her official
)
capacity,
)
JOHN STROBEL M.D., President of the Indiana )
Medical Licensing Board of Indiana, in his official )
capacity,
)
KENNETH P. COTTER St. Joseph County
)
Prosecutor, in his official capacity and as
)
representative of a class of all Indiana prosecuting )
attonreys with authority to prosecute felony and
)
misdemeanor offenses,
)
)
Defendants.
)
No. 1:18-cv-01904-SEB-MJD
ORDER ON MOTION FOR CLARIFICATION
Plaintiffs Whole Woman’s Health Alliance, All-Options, Inc., and Jeffrey Glazer,
M.D. (collectively, "Plaintiffs") have sued Defendants Todd Rokita, Attorney General of
Indiana; Kristina Box, M.D., Commissioner of the Indiana State Department of Health;
John Strobel, M.D., President of the Medical Licensing Board of Indiana; and Kenneth P.
Cotter, St. Joseph County Prosecutor ("the State") under 42 U.S.C. § 1983, challenging as
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unconstitutional a wide array of Indiana's statutory and regulatory restrictions on
providing and obtaining abortions.
On October 9, 2020, we entered our Order granting in part and denying in part the
State's Motion for Summary Judgment. [Dkt. 297]. Now before the Court is Plaintiff's
Motion for Clarification, [Dkt. 300], file on November 18, 2020, seeking clarification as
to whether certain claims survived summary judgment and may proceed to trial.
Plaintiff's motion is granted to the extent that we offer the clarifications set forth below.
Discussion
As discussed in detail in our Summary Judgment Order, Plaintiffs' lawsuit
challenges virtually the entire panoply of Indiana's statutes regulating abortions, many of
which, they say, are facially unconstitutional because they pose undue burdens on a
woman's ability to access a previability abortion, as prohibited by the Due Process Clause
of the Fourteenth Amendment.
On November 8, 2019, the State filed its Motion for Summary Judgment, asserting
that it was entitled to summary judgment on all claims against it. We granted summary
judgment for the State on several of these claims, though we found that some claims had
not been properly addressed by the parties, while questions of fact precluded a grant of
summary judgment on others. Now, the parties request clarification as to whether
Plaintiffs' challenges to certain statutory and regulatory provisions survived summary
judgment. We address each issue in turn below.
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1. Plaintiffs' Challenges to Indiana's Facility Requirements for Medication Abortion
Clinics May Proceed to Trial
In reviewing the parties' summary judgment submissions with respect to whether
Indiana imposed medically unnecessary facility requirements on abortion clinics, we
expressed our confusion as to whether Plaintiffs were challenging those facility
requirements relating to medication abortions—those abortions induced by ingesting
certain medications—or those facility requirements governing surgical aspiration
abortions—those abortions, which, as the name may suggest, are more invasive as
compared to medication abortions and involve the use suction to empty to the contents of
the uterus. We explained:
We note one area of confusion here that neither party has addressed. Plaintiffs'
Complaint takes issue with Indiana's facility requirements governing "facilities
providing medication abortion." [Compl. ¶ 101(c) (emphasis added)]. However,
Plaintiffs' Complaint cites to the Indiana regulations governing facilities providing
surgical abortion, i.e., the regulations found in 410 Ind. Code article 26. The
State's summary judgment briefing addresses the regulations cited by Plaintiffs,
that is, those related to surgical abortion facilities. Plaintiffs respond to the State's
arguments on these regulations while also criticizing the State for its failure to
address their allegations with respect to the regulations governing facilities
providing medication abortions, found in 410 Ind. Admin. Code article 26.5. The
State replies that the Complaint does not address article 26.5. Given that the
regulations governing surgical abortion facilities are cited in Plaintiffs'
Complaint and the parties have briefed the issue of whether these provisions are
constitutional, we will review this portion of Indiana's administrative code (410
Ind. Admin Code article 26). Plaintiffs' failure to clarify which article of the
Indiana administrative code they are challenging is confusing, especially since
their Complaint improperly conflates article 26 and article 26.5.
[Dkt. 297, at n. 17]. Plaintiffs now offer clarification for this confusion, which, as
they explain, is attributable to a reorganization of the relevant portion of Indiana's
regulatory scheme that occurred after this lawsuit commenced.
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At the time Plaintiffs initiated this action on June 21, 2018, "the only rules
governing abortion clinics existed in article 26—there was no article 26.5." [Dkt. 300 at
2]. Rather, when Plaintiffs filed their Complaint, article 26 housed the regulations for all
abortion clinics, including those providing medication abortions as well as surgical
aspiration abortions. Accordingly, Plaintiffs' Complaint identified the only regulatory
article governing abortion clinics that existed at the time, i.e., article 26, and challenged
as unconstitutional specific regulations mandating that abortions clinics providing
medication abortion satisfy various facility requirements. [Comp. ¶ 101(c)].
Meanwhile, the Indiana Department of Health (the "Department") was statutorily
directed to "adopt separate rules . . . for abortion clinics that perform abortion only
through the provision of an abortion inducing drug[.]" Pub. L. No. 173, § 2 (2017)
(codified in relevant part at Ind. Code § 16-21-2-2.5(c)(2), (c)(3)(B)). Pursuant to this
directive, in July 2019, following a series of temporary emergency rules, the Department
separated the regulations governing surgical aspiration abortions from those governing
medication abortions. Specifically, the Department kept the requirements governing
aspiration abortion in article 26 and moved the requirements governing medication
abortion to a newly-created article 26.5. Ind. Reg., tit. 410, Ind. State Dep’t of Health,
LSA Doc. No. 19-163(F). Article 26.5 went into effect on October 6, 2019. Id.
Plaintiffs' Statement of Claims, filed days later on October 11, 2019, stated their
intent to prove at trial that "Indiana Code §§ 16-21-1-7, 16-21-2-2.5(a), which authorizes
the Indiana State Department of Health to adopt regulations governing abortion clinics,
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and 410 Indiana Administrative Code 26 and 26.5, regulations governing abortion clinics,
are unconstitutional." [Dkt. 203].
Following the State's asserted position that Plaintiffs have not alleged a due
process claim with respect to article 26.5, Plaintiffs seek confirmation that their
challenges to the facility requirements for medication abortion clinics may proceed to
trial. They maintain that the State was sufficiently alerted to the fact that Plaintiffs sought
relief against the Department's regulations governing these requirements.
The State responds that no challenges to article 26.5 have been properly alleged,
arguing that Plaintiffs' Statement of Claims unilaterally amends their complaint to add
this new claim in contravention of Federal Rule of Civil Procedure 15, which required
Plaintiffs to seek leave from the Court to so act. The State stresses that Plaintiffs should
not be permitted to challenge an entirely new set of regulations than that which is
identified in their Complaint. While the State acknowledges that an amended complaint
may not have been necessary if all parties understood Plaintiffs' intention was to attack
the constitutionality of article 26.5, it asserts that it did not understand that this was
Plaintiffs' intention.
Though we share in the State's frustrations with respect to Plaintiffs' failure to
clarify this unnecessarily muddled issue through summary judgment briefing or some
other mechanism, we nonetheless find that Plaintiffs may proceed with their due process
claims regarding article 26.5.
It simply cannot be said that Plaintiffs have attempted to add an entirely new claim
to this litigation—though best practices may have been for Plaintiffs to clearly articulate
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the impact of article 26.5 on their challenges through their statement of claims or some
other device. Nevertheless, the State has not argued that the creation of article 26.5
altered or amended the substance or content of the regulations governing the facility
requirements for medication abortion clinics. The Court's own review of this article
reveals that the specific facility requirements once housed in article 26 and challenged in
Plaintiffs' complaint have not been substantively altered. Indeed, these provisions have
generally been copied verbatim from the former article 26 into article 26.5. 1 Plaintiffs'
challenges to article 26.5 do not constitute a new claim for relief when the only
identifiable change from what is alleged in the Complaint and what Plaintiffs' now wish
to challenge is the citation; the facts, the regulatory language, the legal theories, and the
relief sought remain virtually the same. See Poston v. Julson, 2020 WL 1139834, at *1
(W.D. Wis. Mar. 9, 2020); Adenekan v. Eli Lilly & Co., 2011 WL 2680736, at *1 (S.D.
Ind. July 8, 2011).
Additionally, to conclude that the State was not on notice as to precisely what
Plaintiffs were challenging in this regard would be improper. It is undisputed that
Plaintiffs' complaint clearly alleges that they are challenging Indiana's facility
requirements for medication abortion clinics, [Comp. ¶ 101], and specifically those
requirements previously codified at 410 Ind. Admin. Code § 26-11-2(a) (sterilization of
equipment), 26-11-3 (laundry), 26-17-2(c)(2), (d)(2), (d)(6), and (e)(1), (8) (physical
1
Compare 410 Ind. Admin. Code § 26-11-2(a) with § 26.5-12-2(a); compare § 26-11-3 with §
26-12-3; compare § 26-17-2(c)-(e) (amended October 6, 2019) with 410 Ind. Admin. Code §
26.5-17-2(c)-(e).
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plant requirements). [Comp. ¶ 101(c)]. 2 At the time this lawsuit was filed and for sixteen
months thereafter until article 26.5 took effect, these provisions provided specific facility
and physical plant requirements for medication abortion clinics. 3 The substance of these
requirements, we reiterate, is generally unaltered by the State's decision to relocate the
regulations governing medication abortion clinics to a new article of the Indiana
Administrative Code. Additionally, during this sixteen-month period, Plaintiffs
conducted and completed discovery on the facility requirements governing medication
abortion clinics and deposed witnesses on this subject. 4
Accordingly, Plaintiffs' intent to challenge the facility requirements for medication
abortion clinics is well established by both their Complaint and their conduct in this
litigation, and the State was aware, from the outset of this lawsuit, the specific facility
requirements for medication abortion clinics that were the subject of Plaintiffs'
challenges. 5 Though the Court concedes its confusion on this issue at summary judgment,
2
Plaintiffs' Complaint also challenged former 410 Ind. Code. §§26-10-1(b)(5); 26-13-1, 26-133(b)–(c), and 26-17-2(d)(1), (3)–(4); however, these provisions established requirements relating
to patient care, anesthesia, scrub facilities, procedure rooms, and surgical equipment that were
not carried over to article 26.5. The State has been granted summary judgment on Plaintiffs'
challenges to facility requirements concerning surgical facilities.
3
We note that there was a period of time from January 2019 through July 2019 where the State
enacted temporary emergency rules governing medication abortion clinics. The State has not
argued that the existence of these temporary rules contributed to any confusion; instead, it has
crafted is arguments around the adoption of article 26.5 in July 2019.
4
Though the State argues that Plaintiffs' inclusion of article 26.5 in its Statement of Claims was
improper, it never articulated any challenge to this effect until now. And while the State
criticizes Plaintiff for first identifying article 26.5 in its Statement to of Claims filed "almost a
year after the deadline to amend the pleadings and a week after close of discovery," Plaintiff's
Statement of Claims was filed within days of article 26.5 taking effect, a regulatory change over
which they obviously had no control.
5
To the extent the State asserts that it was confused as to what regulatory provisions the
Complaint was referencing given the reorganization of its administrative code, we find such
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the State was obviously in a better position to stay apprised of the updates to Indiana's
Administrative Code.
For these reasons, we find that Plaintiffs' may pursue their challenges to those
regulations governing the facility requirements for medication abortion clinics, now
codified within article 26.5. Plaintiffs may not raise regulatory challenges broader than
those contained with the Complaint; in other words, they may not challenge specific
regulations within article 26.5 unless such regulations relate back to and correspond with
a particular regulatory provision of the former article 26 identified in paragraph 101(c) of
Plaintiffs' Complaint.
For the sake of clarity, Plaintiffs' pretrial submissions, including their trial brief
and proposed findings of fact and conclusions of law, must include the new citations for
the facility requirements for medication abortion clinics challenged in its Complaint.
Plaintiffs' submissions must also include a table that establishes: 1) the former regulatory
citation; 2) the new regulatory citation; and 3) the content of the regulation.
2. Plaintiffs Must Clarify Their Legal Challenges to Indiana's Reporting
Requirements and Judicial Bypass Provisions
In responding to Plaintiffs' Motion for Clarification, the State raises additional
issues following our summary judgment ruling that it believes demand Court
clarification.
confusion to be unreasonable. As explained, the provisions challenged in the Complaint were, at
the time the Complaint was filed, tailored to provisions regulating medication abortion clinics.
Not until after the close of discovery was article 26.5 finally effectuated. Given that this change
did not occur until this case was in the advanced stages of litigation, the State cannot claim that it
was unclear to it the regulatory requirements that Plaintiffs were challenging.
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The State first seeks clarification regarding Plaintiffs' challenges to Indiana's
parental consent requirements. In their Complaint, Plaintiffs challenged both Indiana's
general requirement that a minor obtain parental consent to receive an abortion, Indiana
Code section 16-34-2-4(a), as well as various requirements for judicial bypass, codified at
Ind. Code § 16-34-2-4(b)–(e) (the "Judicial Bypass" provisions). Though subsection 4(b)(e) contains many specifications for judicial bypass, Plaintiffs enumerated only the
following requirements as problematic in their Complaint: "the requirement that a
pregnant minor’s application be filed in the minor’s county of residence or county in
which the abortion is to be performed, Ind. Code § 16-34-2-4(b)," "the prohibition against
an abortion provider serving as the minor’s next friend," Ind. Code § 16-34-2-4(b), and
"the requirement that a physician who believes compliance with the parental consent
requirement would have an adverse effect on the pregnant minor file a petition seeking
waiver of the requirement within twenty-four hours of the minor requesting the abortion,"
Ind. Code § 16-34-2-4(c).
The State's summary judgment briefing "addressed the constitutionality of Indiana
Code section 16-34-2-4(a) and (b)–(e) as a suite of regulations governing juvenile access
to abortions with and without parental consent (as generally permitted under Bellotti v.
Baird, 443 U.S. 622 (1979)) rather than as discrete statutory directives each being
subjected to particularized theories of unconstitutionality." [Dkt. 303, at 6]. The State
asserts that this approach was most practical on the grounds that: 1) Plaintiff has "never
staked out an argument or theory of illegality" with respect to the subsection (b) and (c)
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claims specified in the Complaint, and 2) not every provision of subsections (b)-(e)
imposes any freestanding burden on juveniles access to abortion.
In our Summary Judgment Order, we granted the State's motion with respect to
Indiana's general requirements for parental consent but denied the motion with respect to
those provisions that had been left unaddressed by the parties, to wit, the specific portions
of the Judicial Bypass provisions identified in Plaintiffs' Complaint.
The State now asserts that "this resolution leaves [it] uncertain as to what specific
claims [Plaintiffs are] making with respect to Indiana Code section 16-34-2-4(b)–(e) that
remain for trial." It is untenable, says the State, that every portion of these provisions is
being challenged as unconstitutional. For those specific provisions identified in Plaintiffs'
Complaint, the State argues that it has been left in the dark as to Plaintiffs' theory of
relief.
The State also asserts that a similar issue exists with respect to Plaintiffs'
challenges to Indiana's "Reporting Requirements," which require health providers
performing abortions to file a terminated pregnancy report with the Department, which
includes specific information relating to each abortion as well as additional information
relating to minor patients. Plaintiffs' Complaint generally challenges both the adult
abortion reporting requirements and those requirements tailored to minors. In its
summary judgment briefing, the State successfully defended the constitutionality of the
former, however, its briefing included no specific discussion regarding the additional
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reporting requirements for minors, § 16-34-2-5(b). 6 Because the Complaint offers little
insight as to why Plaintiffs believe this section to be unconstitutional independent from
the general reporting requirements, the State explains now that it is unsure what particular
challenges to § 16-34-2-5(b) Plaintiffs intend to press at trial.
The State further asserts that Plaintiffs' Statement of Claims, which merely recites
that these statutory provisions are unconstitutional, offers no additional clarity into
Plaintiffs' legal theories supporting its challenges to Indiana's Judicial Bypass provisions
and Reporting Requirements.
The State has not asked us to reconsider our summary judgment ruling, nor does it
seek to strike any of the aforementioned claims (though it has confirmed that it would
object to any attempt from Plaintiffs to add claims). Instead, it requests that Plaintiffs "set
forth precisely what directives of which statutory provisions they intend to challenge at
trial, and under what theories they intend to pursue those claims." The State suggests that
Plaintiffs file an amended statement of claims explaining what particular challenges to
Indiana's statutory and regulatory provisions it intends to press at trial, but agrees that
"other procedural vehicles might be equally suitable."
Plaintiffs respond that it is unreasonable for the State to argue now, for the first
time, that it has not been adequately apprised of the basis for Plaintiffs' challenges to the
Indiana's Judicial Bypass provisions and Reporting Requirements, noting that the State
6
The State asserts that its summary judgment memorandum "argued for the validity of both the
juvenile abortion reporting requirements and the adult abortion reporting requirements."
However, aside from citing to the statute concerning juvenile abortion reporting requirements,
the state presented no analysis regarding its constitutionality.
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never argued that Plaintiffs failed to satisfy the pleading requirements of Federal Rule of
Civil Procedure 8, nor did they move for a more definitive statement of claims pursuant
to Rule 12(e). Plaintiffs thus assert that the State should not be afforded "another bite at
the [summary judgment] apple," nor do they believe they should be required to provide
any additional clarification.
The State, however, has not requested another bite at the summary judgment
apple, and we are unsure as to why Plaintiffs are adamant in their refusal to explain what
their legal claims and theories are mere months before trial.
Moreover, we are in agreement with the State that, at this stage in the litigation,
there should not be such uncertainty as to what specific statutory provisions Plaintiffs
intend to challenge at trial. Though the State may not have utilized every procedural
vehicle available to it to either dismiss or clarify claims that it believes were lacking in
sufficient detail, we nonetheless agree that Plaintiffs' Complaint—which challenged
dozens of statutory and regulatory provisions—Statement of Claims, and summary
judgement briefing leave gaps as to what exactly Plaintiff intends to present at trial with
respect to the claims described above, particularly following our summary judgment
ruling, such that additional clarification should be provided.
The parties' have previously been directed to submit trial briefs, as well as
proposed findings of facts and conclusions of law, as part of their pre-trial submissions,
due no later than two weeks before the final pre-trial conference, currently scheduled for
March 2, 2021. However, we find it only equitable to require Plaintiff to provide their
clarifications prior to the State's finalization and submission of it trial materials on
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February 16, 2021. Accordingly, no later than February 5, 2021, Plaintiff is directed to
file an Amended Statement of Claims clearly delineating the specific portion(s) of the
statutory and regulatory provisions they will challenge at trial as well as a brief
summarization of the theories of relief for each challenge. Doing so will not only provide
the clarity requested by the State but will assist the Court in identifying the remaining
issues for trial.
Plaintiffs may not utilize their Amended Statement of Claims nor their pretrial
submissions to broaden the statutory and regulatory challenges identified in the
Complaint. With specific respect to the Juvenile Bypass provisions codified at Ind. Code.
§ 16-34-2-4(b)–(e), Plaintiff may not challenge any portion of these subsections not
specifically enumerated in the Complaint; to permit otherwise at this late stage would be
unfairly prejudicial to the State.
Both parties must come prepared to final pre-trial conference prepared to discuss
the witnesses they intend to call at trial and the scope of testimony of each.
CONCLUSION
Plaintiffs' Motion for Clarification [Dkt. 300] is granted to the extent that we offer
the guidance and directives set forth herein.
IT IS SO ORDERED.
Date:
1/26/2021
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution to counsel of record via CM/ECF
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