Contention brews in ongoing Indiana abortion ban lawsuit over confidential documents

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A three-day bench trial scheduled for later this month will put Hoosier abortion providers and the state attorney general’s office back in court as the battle over Indiana’s near-total abortion ban continues. Already in contention, however, is whether certain testimony and internal hospital documents entered as exhibits in the case should become public.

Attorneys for the abortion providers, along with those for Eskenazi Health — which is not a party in the case — maintain that dissemination of those confidential materials will create a “significant risk of substantial harm” to the hospital, as well as patients who received abortion care.

The special judge presiding over the case has so far ordered temporary exclusion of some documents from public view, but it’s not yet clear if they’ll be presented at trial, slated for May 29-31 in Monroe County.

The matter stems from an amended complaint filed in November by the American Civil Liberties Union of Indiana on behalf of Indiana’s Planned Parenthood, Women’s Med Group, All-Options Pregnancy Resource Center and obstetrician-gynecologist Dr. Amy Caldwell.

Their original court challenge — which alleged the ban would infringe on a constitutional right to privacy and violate guarantees of equal privileges and immunities — kept enforcement on hold for about a year. The Indiana Supreme Court upheld the ban in June 2023, but said Hoosiers could still sue over specific parts of the ban or concrete examples of its consequences.

With the door left open for additional litigation, the plaintiffs are now seeking new injunctions against health and hospital clauses in the state abortion law which they argue are overly narrow or unnecessary.

Women’s Med Group has since been dismissed from the case, though. The provider indicated earlier this year it had closed its only facility in Indiana and no longer seeks to provide abortions.

What should be public?

In February, Special Judge Kelsey Blake Hanlon laid out parameters for confidential discovery and exhibits, including those containing health-related details, information protected by physician-patient privilege, or other information “that may cause harm” to those involved.

Information designated as “confidential” can only be accessed or reviewed by the judge and court staff, the named parties and their counsel, and experts who sign confidentiality agreements.

The Indiana Attorney General’s Office, representing defendants in the lawsuit, filed its list of exhibits in March, including six to be kept from public view. Among those were depositions of Caldwell, the Indianapolis OB-GYN, and Indiana Planned Parenthood COO Sharon Dudash; an IU Health/Eskenazi Health “Complex Family Planning Care” document; and IU Health internal documents relating to abortion-related policies and practices put in place after the statewide ban took effect.

But Eskenazi attorneys pushed back, saying in an April 11 filing that the court should “permanently exclude” the confidential documents from public access. Not doing so will create a “significant risk of substantial harm to Eskenazi Health, its workforce members, and others,” according to the court filing.

Shortly after, ACLU of Indiana counsel, on behalf of the plaintiffs, additionally requested several other exhibits be permanently excluded, including:

• Documents that contain “sensitive, non-public information about Dr. Caldwell” and Indiana Planned Parenthood’s abortion practice prior to the near-total ban going into effect. Other document excerpts include confidential information about specific individuals affiliated with Planned Parenthood and AllOptions, as well as “confidential and proprietary business information.”
• Exhibit pieces containing “sensitive, non-public information concerning patients who either received or sought abortion care — and who are not parties to this litigation.”
• Two additional “sensitive internal documents” that contain “confidential and proprietary” business information about Planned Parenthood’s abortion care procedures prior to the state’s new abortion law going into effect.

“If the confidential versions of these documents are not permanently prohibited from public access, (Indiana’s Planned Parenthood) and its providers, Dr. Caldwell, All-Options, and the patients discussed in these documents will be at significant risk of substantial harm,” the plaintiffs wrote. They noted that permitting the confidential versions of the documents to remain sealed is consistent with the approach that Indiana courts have taken in other circumstances involving a “significant risk of substantial harm.”

“Given the volatile climate surrounding abortion care, the patients discussed in these documents deserve to have their privacy rights respected and protected,” the plaintiffs continued. “Moreover, given the very low number of abortions performed in Indiana, there is a risk that the patients who received the healthcare discussed in this confidential testimony could be identified and risk reputational damage or much worse.”

Hanlon has so far ordered the exhibits in question to be excluded, pending further review and a hearing. The two depositions are available but redacted.

In Caldwell’s deposition, for example, the doctor said she’s performed 14 or 15 abortions in Indiana since the near-total ban took effect. At least “half, if not more” were for fetal anomalies, she said, while one or two other abortions she performed were for victims of rape.

Another five or six abortions were to protect the “life or health” of the mother, she said. Most of those cases came from outside clinics or health facilities, though one or two were referred by maternal-fetal medicine physicians at IU Health, Caldwell noted.

Caldwell’s response when asked to list the diagnoses of the patients she performed abortions on for “life or health” reasons is redacted.

The doctor said there have been “probably just as many” patients who sought an abortion because of other “potential health consequences of continuing a pregnancy” — such as clotting disorders, uterine anomalies, hypertension, diabetes, complex obstetric histories, or history of obstetric complications — but were turned away because their condition did not qualify under the new law. Those patients were ultimately referred out for other sorts of care, Caldwell said.

Eskenazi attorneys argued that the attorney general’s office “should not have made the confidential documents ‘court records’ in the first place” because they are “wholly unnecessary” for the state’s defense.

They pointed to the defendants’ 41-page brief in which counsel from the attorney general’s office group-cites the confidential documents just once to “support a single proposition” about Indiana hospitals having guidance, procedures and consultations to assist doctors with best practices for abortion care.

That fact, Eskenazi counsel said, was already established by the non-confidential testimony of the hospital’s Chief OB-GYN Dr. Elizabeth Ferries-Rowe.

“It is uncontestable that access to abortion care is a fraught, politicized, and emotionally charged issue in Indiana and across the United States,” Eskenazi attorneys wrote. “It is also uncontestable that healthcare providers — both individuals and entities — have been subject to threats and violence because they provide this care.”

The attorneys emphasized that the likelihood for those threats will increase if the confidential documents don’t remain under seal, putting both doctors and patients in danger.

The new underlying complaint

The Supreme Court ruled that the state constitution protects a woman’s right to an abortion to prevent death, or to avoid a “serious health risk.” But the ban itself is more stringent.

It stipulates a “serious risk of substantial and irreversible physical impairment of a major bodily function” and specifically excludes psychological conditions alongside threats of self-harm and suicide.

The plaintiffs call that exception “unconstitutionally narrow” and maintain that people with “debilitating” conditions — or conditions that could become life-threatening over the course of pregnancy — could be “forced to remain pregnant and to suffer serious and potentially life-long harms to their health.”

Additionally, plaintiffs argue, the law could exclude patients with conditions requiring treatment that would harm a fetus — like many psychiatric medications. They allege that the mental health write-out will harm pregnant Hoosiers.

The state disagrees.

Indiana Attorney General Todd Rokita’s office said in a March 25 oppositional brief that plaintiffs are only “lob(bing) accusations” about how the new abortion law “supposedly prevents abortions they deem ‘necessary.’”

“By ‘necessary,’ however, they do not mean ‘medically required,’” the office added. “Plaintiffs themselves admit that there are various ways to manage nearly every health condition that women experience during pregnancy, without pursuing abortion. Instead, plaintiffs consider abortion to be ‘necessary’ whenever a woman prefers abortion to childbirth. As our Supreme Court held, nothing in Indiana’s traditions justifies abortion on demand.”

The plaintiffs asked the court for three preliminary injunctions.

Two would halt enforcement of the health risk language — for a broad range of physical health conditions and for mental health conditions — and one would pause the hospital requirement.

They also requested that the court eventually find both elements of the ban unconstitutional.

Indiana’s ban also stripped abortion clinics of their licenses, instead mandating that the procedures occur at hospitals or related ambulatory surgical centers. The clinics have historically performed nearly all abortions in Indiana, with small numbers of hospitals contributing minute shares of the total.

The hospital requirement makes abortion inaccessible to even those Hoosiers who qualify for the procedure, the plaintiffs argued. They said further in court documents that hospital abortions will cost patients “significantly” more money than procedures performed at clinics. And because no hospitals outside of Indianapolis are providing abortions under the ban’s exemptions, access is further limited to those who still legally qualify.

The attorney general’s office maintains that Indiana’s constitution does not require abortions to be permitted at clinics.

“In the rare circumstances that abortions may be medically required to avert life-threatening situations or serious health risks, S.B. 1 allows them,” Rokita’s office said in court documents. “Plaintiffs argue that those allowances are not enough because the penalties for violating S.B. 1 supposedly ‘chill’ physician behavior. But plaintiffs have not brought a vagueness challenge to S.B. 1, which reuses language from prior statutes that plaintiffs and physicians have operated under for years. And plaintiffs offer no authority for the novel proposition that subjective allegations of ‘chill’ render a statute invalid.”

“It is not enough to hypothesize that circumstances could arise that could produce a constitutional violation,” the office continued. “But all plaintiffs have are hypotheticals, leaving them unable to describe a specific, narrowly tailored injunction.”

The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.