Indianapolis courts must disclose pregnant minor abortion petitions

Confidential information about the number of pregnant teenagers seeking abortions without parental consent in Marion County must be turned over as discovery in one of the several abortion-related lawsuits pending in Indiana, a federal court has ruled.

Indiana Southern District Magistrate Judge Mark J. Dinsmore on Monday denied a motion to quash a request for records from the Marion Superior Court, which received a nonparty subpoena in Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al., 1:18-cv-01904.  The case, filed in 2018, challenges multiple aspects of Indiana’s abortion framework, including licensing requirements that kept a South Bend clinic from opening and laws that require pregnant minors to obtain parental consent before having an abortion.

At issue in the subpoena is Indiana Code § 16-34-2-4, which prohibits physicians from performing abortions on unemancipated minors without the consent of a parent, legal guardian or custodian. The notice requirement can be waived, though, if, upon the petition of the mother or her physician, the juvenile court finds the minor is “mature enough to make the abortion decision independently or that an abortion would be in the minor’s best interests,” or if the mother has a medical emergency that runs the risk of death or “substantial or irreversible impairment of a major bodily function.”

Also at issue is I.C. 16-34-1-10, which does not allow the state to consent to the abortion of a pregnant minor who is under the state’s wardship or guardianship unless there is a medical emergency.

Under those statutes, the subpoena seeks “(d)ocuments sufficient to identify: (i) the number of petitions filed in Marion County, Indiana, … (ii) the disposition of those petitions, (iii) whether the petitioner was represented by counsel, (iv) the length of time that elapsed between the filing of the petition and the disposition of the petition, and (v) the average age of the petitioner.”

The Marion Superior Court moved to quash the subpoena because, under I.C. 16-34-2-4(h), “(a)ll records of the juvenile court and of the supreme court or the court of appeals that are made as a result of proceedings conducted under this section are confidential.” The court’s order says the trial court has a spreadsheet of the requested records.

“While in a very technical sense the spreadsheet could be considered a record that was ‘made as a result’ of the court proceedings to which it relates, that is a somewhat tortured reading of the language of the statute,” Dinsmore wrote. He then pointed to I.C. 5-14-3-4(a), which allows a court to order the disclosure of confidential information under discovery rules.

“The Court finds that such an order is appropriate in this case,” the magistrate judge wrote. “The anonymized information contained in the spreadsheet is not information that the confidentiality provision of the statute is intended to protect.

“Plaintiffs do not seek any identifying information regarding the proceedings to which the spreadsheet relates; rather, they seek statistical information about the proceedings as a whole,” Dinsmore continued. “Permitting this information to be released to Plaintiffs will not violate the privacy of any of the participants in the proceedings and therefore does not run afoul of the confidentiality statute’s purpose.”

The Marion Superior Court was ordered to produce the spreadsheet within seven days of the Monday order, with redactions of identifying information including names and cause numbers.

While the subpoena question relates to Indianapolis courts, the lawsuit so far has largely focused on a planned abortion clinic in South Bend. Whole Woman’s Health Alliance was repeatedly denied a license to open the clinic, but Senior Judge Sarah Evans Barker entered an injunction in June allowing the facility to open without a state license.

The 7^th Circuit Court of Appeals later affirmed the injunction, but said the clinic could only open as “provisionally licensed.”

In total, the 2018 lawsuit challenged five provisions of Indiana’s abortion scheme: “targeted regulation of abortion provider laws; laws the deny abortion patients the benefits of scientific progress; mandatory disclosure and waiting period laws; parental involvement laws; and criminal penalties.”