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

Filing 437

ORDER DENYING MOTION TO STAY PENDING APPEAL - For the foregoing reasons, Defendants' motion for a stay pending appeal of our August 10, 2021 decision, including our findings of fact and conclusions of law on Plaintiffs' motion for permanent injunctive relief, is DENIED (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge Sarah Evans Barker on 8/19/2021. (DWH)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
WHOLE WOMAN'S HEALTH ALLIANCE, )
et al.
)
)
Plaintiffs,
)
)
v.
)
)
TODD ROKITA, et al.
)
)
Defendants.
)

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

ORDER DENYING MOTION TO STAY PENDING APPEAL
In this litigation, Plaintiffs challenged the constitutionality of twenty-one separate
sections of Indiana's wide-ranging statutory regime to regulate abortion. On August 10,
2021, following seven days of a bifurcated virtual and in-person bench trial, we issued
our findings of fact and conclusions of law in a 158-page decision and entered a
permanent injunction as to the enforcement of certain statutes/regulations. 1 Based on our
comprehensive review and careful consideration of all the evidence presented at trial, we
upheld the constitutionality of a number of the challenged statutes, but determined that
the following laws are unconstitutional, which warrants permanently enjoining their
enforcement: (1) the "Physician-Only Law," Ind. Code § 16-34-2-1(a)(1)(A), as applied
to medication abortion; (2) the "Second-Trimester Hospitalization Requirement," Ind.
Code § 16-34-2-1(a)(2)(B); (3) the "In-Person Counseling Requirement," Ind. Code § 16-

1

An Amended Partial Final Judgment was entered on August 19, 2021, nunc pro tunc to August
10, 2021, reflecting the Rule 54(b) finding of "no just reason for delay" in the entry of judgment.
1

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34-2-1.1(a)(1), (a)(4), (b); (4) the "Telemedicine Ban," Ind. Code § 25-1-9.5-8(a)(4); (5)
the "In-Person Examination Requirement," Ind. Code § 16-34-2-1(a)(1); (6) "Facility
Regulations" concerning the size of procedure rooms and hallways, and the type and
location of sinks, 410 Ind. Admin. Code 26-17-2(d)(1)(A), (d)(4), (e)(5); 410 Ind. Admin.
Code § 26.5-17-2(e)(1); and (7) "Mandatory Disclosure Requirements" concerning when
life begins, fetal pain, and mental health, Ind. Code § 16-34-2-1.1(a)(1)(E), (a)(1)(G),
(b)(2).
On August 11, 2021, the day after we issued our order, Defendants (collectively,
"the State") filed a notice of appeal, together with a motion to stay the injunction against
the enforcement of the first five laws identified above, pending a disposition of the State's
appeal by the Seventh Circuit Court of Appeals [Dkt. 430]. (The State has not sought a
stay of the remaining two statutes enjoined by the Court.) Plaintiffs filed a response in
opposition to a stay on August 16, 2021, and the State replied on August 17, 2021. The
State's request for a stay is now before the Court. For the reasons detailed below, the
motion is DENIED.
Applicable Legal Standard
The grant of a motion to stay is an exercise of judicial discretion and it is the
moving party's burden to demonstrate that a stay is warranted. Nken v. Holder, 556 U.S.
418, 433–34 (2009). In deciding whether to grant a motion to stay pending appeal, the
Court considers: "(1) whether the stay applicant has made a strong showing that [it] is
likely to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other parties
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interested in the proceeding; and (4) where the public interest lies." Id. (quotation marks
and citation omitted). The first two factors "are the most critical" in this determination.
Id.
Discussion
I.

Likelihood of Success on the Merits
The thrust of the State's reasoning in support of a finding that it has a likelihood of

success on the merits of its appeal as to the Physician-Only Law, the Second-Trimester
Hospitalization Requirement, the In-Person Counseling Requirement, the Telemedicine
Ban, and the In-Person Examination Requirement is that the Court misapplied, or, in
some cases, outright ignored longstanding Supreme Court and Seventh Circuit precedent
in the area of abortion regulation, resulting in a decision contrary to law that is likely to
be overturned by the Seventh Circuit Court of Appeals. For the following reasons, we
find this characterization unfounded and argument unpersuasive.
We note, first, that even a cursory reading of our findings of fact and conclusions
of law makes clear that the cases cited by the State in its motion to stay were far from
ignored by the Court. To the contrary, we carefully analyzed and distinguished and
applied each of those precedents based on the factual record before us. Factual
distinctions are of significant importance in the abortion context, given that the web of
the legal standards as spun by the Supreme Court and our circuit over many decades of
interpreting and applying abortion laws is complex and often opaque. The jurisprudence
of abortion regulation consists of a multi-layered patchwork of decisions explicating and
applying the undue burden standard, which always turns on a highly fact dependent
3

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inquiry and analysis. See, e.g., Whole Woman's Health All. v. Hill, 937 F.3d 864, 876
(7th Cir. 2019) ("[T]he undue-burden inquiry requires a holistic, rigorous, and
independent judicial examination of the facts of a case to determine whether the burdens
are undue in light of the benefits the state is permitted to pursue.").
Here, the State's merits-based arguments in support of its requested stay rely
heavily on its own, continuing interpretation of the factual record and the credibility of
the witnesses, which in many instances differs widely from the credibility determinations
and factual findings actually reached by the Court. This approach is not available to the
State in seeking a stay of judgment because, on appeal following a bench trial, the district
court's findings of fact "must not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court's opportunity to judge the witnesses'
credibility." Fed. R. Civ. P. 52(a)(6). As thoroughly explained in our findings of fact
and conclusions of law, based on the facts as found by the Court as viewed through the
lens of the relevant legal precedents, the arguments advanced here by the State reflect no
small amount of wishful thinking. Given the highly fact-sensitive nature of the undue
burden calculus, and the high level of deference to be accorded to the Court's fact finding
and credibility determinations on appeal, we are not persuaded that the State, which has
relied heavily on its own take on the facts and credibility assessments, has established the
required strong likelihood showing that it would prevail on appeal.
II.

Irreparable Injury Absent a Stay
The State argues that it will be seriously harmed if it is enjoined during its appeal

"from enforcing constitutional statutes designed to protect Indiana women and that show
4

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its 'profound respect to life within.'" Defs.' Br. at 14 (quoting Gonzalez v. Carhart, 550
U.S. 124, 157 (2007)). According to the State, in addition to the harm that flows from the
inability to enforce these duly-enacted state laws, the Court's injunction "threatens to rip
apart a carefully woven safety net that protects women—particularly the most
vulnerable—from coercive, uninformed, and unsafe abortions provided by indeterminate,
unqualified personnel." Id. at 16. There is no dispute that the State has significant
interests in enforcing duly-enacted constitutional state laws aimed at protecting all its
citizens. However, it is well-established that the government does not suffer harm when
it is prevented from enforcing unconstitutional statutes, as we have determined these to
be. Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004).
More importantly, and contrary to the State's characterization of the evidence, we
determined, based on the extensive factual record compiled at trial, that the enjoined laws
in fact provide very few significant health or safety benefits to abortion patients,
particularly when compared to the burdens they impose. Nothing the State has raised in
its motion to stay alters our careful analysis of and conclusions in performing that
balancing task respecting those issues. Thus, we do not find the State's claim regarding
the alleged extreme risk to Indiana women's health posed by our decision and the
"negative cascading effects" of the Court's injunction absent a stay to be supported by the
credible evidence adduced at trial.
III.

Substantial Injury if Stay Granted

Contrary to the alleged risks to women's health, as we also explained in our
findings of fact and conclusions of law, the record demonstrates that each of the
5

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invalidated laws places substantial obstacles in the path of women seeking pre-viability
abortions in Indiana; again, nothing in the State's motion to stay persuades us otherwise.
Thus, if a stay were granted, and the State were permitted to continue enforcing such
statutes throughout the pendency of the appeal, Plaintiffs and abortion patients
throughout Indiana would suffer the significant and irreparable harm of having their
constitutional rights unduly burdened until the appeal is resolved. It is well-settled law
that "[t]he existence of a continuing constitutional violation constitutes proof of an
irreparable harm …." Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978);
accord Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir. 1975) (holding that violation of
abortion rights constitutes irreparable harm). The fact that Plaintiffs did not initially seek
a sweeping preliminary injunction to enjoin each of the challenged statutes at the outset
of this litigation does not alter our analysis. Accordingly, this factor also weighs against
the issuance of a stay pending appeal.
IV.

Public Interest
It is well-established that "[e]nforcing a constitutional right is in the public

interest." Whole Woman's Health All., 937 F.3d at 875; accord Preston, 589 F.2d at 303
n.3 ("The existence of a continuing constitutional violation constitutes proof of an
irreparable harm, and its remedy certainly would serve the public interest.").
Accordingly, because (as discussed above) we have found that the State has failed to
make the requisite showing regarding the likelihood of the success of their appeal, we
hold that the public interest is best served by the denial of the State's request for a stay of
the injunction pending appeal.
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Conclusion
For the foregoing reasons, Defendants' motion for a stay pending appeal of our
August 10, 2021 decision, including our findings of fact and conclusions of law on
Plaintiffs' motion for permanent injunctive relief, is DENIED.
IT IS SO ORDERED.

8/19/2021
Date: _____________________________

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

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Distribution:
Amanda Lauren Allen
LAWYERING PROJECT
[e-mail]
Christopher Michael Anderson
INDIANA ATTORNEY GENERAL
[e-mail]
H. Christopher Bartolomucci
SCHAERR | JAFFE LLP
[e-mail]
Athanasia Charmani
[e-mail]
Paul M. Eckles
[e-mail]
Thomas M. Fisher
INDIANA ATTORNEY GENERAL
[e-mail]
Lara Flath
[e-mail]
Scott David Goodwin
SCHAERR JAFFE LLP
[e-mail]
James A. Heilpern
SCHAERR JAFFE LLP
[e-mail]
Michelle Honor
ATTORNEY AT LAW
[e-mail]
Kian J. Hudson
INDIANA ATTORNEY GENERAL
[e-mail]
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Kathrine D. Jack
LAW OFFICE OF KATHRINE JACK
[e-mail]
Erik S. Jaffe
SCHAERR JAFFE LLP
[e-mail]
Mollie M. Kornreich
[e-mail]
Richard G. McDermott
OFFICE OF CORPORATION COUNSEL
[e-mail]
Derek R. Molter
ICE MILLER LLP (Indianapolis)
[e-mail]
Julia Catherine Payne
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Morgan Petkovich
ATTORNEY AT LAW
One Manhattan West
New York, NY 10001-8602
Michael M. Powell
ATTORNEY AT LAW
[e-mail]
Joshua J. Prince
SCHAERR JAFFE LLP
[e-mail]
Juanluis Rodriguez
LAWYERING PROJECT
[e-mail]
Robert Austin Rowlett
INDIANA ATTORNEY GENERAL
[e-mail]
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Gene C. Schaerr
SCHAERR JAFFE LLP
[e-mail]
Sneha Shah
LAWYERING PROJECT
[e-mail]
Rupali Sharma
LAWYERING PROJECT
[e-mail]
Melissa C. Shube
LAWYERING PROJECT
[e-mail]
Erin A. Simmons
ATTORNEY AT LAW
[e-mail]
Mollie Ann Slinker
INDIANA ATTORNEY GENERAL
[e-mail]
Stephanie Toti
LAWYERING PROJECT
[e-mail]
Amy Van Gelder
LAW FIRM
[e-mail]

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