Court strikes Indiana ‘abortion complications’ reporting law

Editor’s note: This story has been updated with comments from Indiana Attorney General Curtis Hill.

A federal judge has struck down another Indiana abortion law as unconstitutional, continuing a years-long streak of court action against Hoosier abortion legislation. However, the state also secured a victory when the same judge upheld a requirement that abortion clinics be inspected annually.

Indiana Southern District Court Judge Richard Young’s ruling was handed down Wednesday in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health, et al., 1:18-cv-01219. The lawsuit was filed in 2018 after the passage of Senate Enrolled Act 340.

Under SEA 340, abortion providers would have been required to report certain “abortion complications,” defined in Indiana Code § 34-2-4.7 as “any adverse physical or psychological condition arising from the induction or performance of an abortion.” After Young issued an injunction blocking enforcement of that provision in 2018, the statute was amended in 2019 to include a list of 25 reportable conditions, such as uterine perforation, cervical laceration or infection.

The second provision of SEA 340, I.C. 16-21-2-2.6, instituted a requirement for annual inspections of abortion clinics — a greater frequency than required for hospitals or ambulatory surgery centers.

Planned Parenthood of Indiana and Kentucky, represented by the American Civil Liberties Union, the ACLU of Indiana and Planned Parenthood Federation of America, brought a vagueness challenge against the “complications statute,” arguing the phrase “arising from the induction or performance of an abortion” was unconstitutional.

Young agreed, writing Wednesday that “(t)he statute simply lacks any standard to guide physicians in determining whether a condition qualifies as an abortion complication for purposes of reporting.”

“Consider a physician who treats a woman who previously obtained an abortion and is experiencing depression,” Young wrote. “Under the statute, the physician must decide whether the patient’s depression arose from the abortion procedure. But that statute provides no guidance as to how the physician — who is not a licensed psychiatrist or clinical psychologist — must make that determination.

“… Alternatively, take the case of a woman who had an abortion and subsequently experiences a pre-term birth. Under the statute, pre-term delivery in a subsequent pregnancy must be reported if it arose from an abortion procedure,” he continued. “The litigants’ experts disagree as to whether there is any causal connection between abortions and pre-term delivery in subsequent pregnancies. … But the statute fails to give the treating physician any guidance in determining when a pre-term delivery must be reported as an abortion complication.

“… These scenarios are particularly troubling given the potential criminal and professional implications of not reporting. The result, of course, is that physicians and other providers may overreport the enumerated complications, making abortion appear less safe than it really is.”

Under the statute, failure to report an abortion complication is punishable by a Class B misdemeanor. Physicians would file their reports with the Indiana Department of Health, which in turn would submit an aggregate report to the Centers for Disease Control and Prevention for inclusion in the annual Vital Statistics Report.

The state argued that reading a mens rea requirement — specifically, the use of a physician’s “reasonable medical judgment” — into the complications statute would resolve the vagueness issue. But Young rejected that argument, saying “reasonable medical judgment” is a standard, not a mens rea.

“If a true mens rea were read into the statute — such as ‘knowingly’ or ‘recklessly’ — it would not save the statute because it could not be read into subsection (a), which contains the challenged language. Rather, it would be read into subsection (j), which contains the criminal act: failure to report an abortion complication,” the judge wrote. “But the statute is not unconstitutionally vague because subsection (j) lacks a mens rea requirement. It is unconstitutionally vague because the statute fails to provide any standard to precisely define the contours of the underlying act — determining whether a complication arises from an abortion procedure — that ultimately leads to the prohibited activity: failing to report an abortion complication.”

Young also found due process violations in the law, writing that physicians would have to “guess” at the applicable standard for reporting. “But guesswork in the face of criminal liability is surely not permitted by due process,” he said, “and the court will not place physicians and other practitioners in that position.”

“When the legislature passes a vague law, courts are not to step in and fashion a new, clearer law,” the judge wrote, citing United States v. Davis, 139 S. Ct. 2319, 2323 (2019). “Instead, the court must ‘treat the law as a nullity and invite the [the legislature] to try again.’”

The ACLU of Indiana celebrated Young’s ruling on the Complications Statute in a Thursday news release, with legal director Ken Falk saying SEA 340 made it “next-to-impossible for medical providers to know what is or is not an abortion complication.”

“This Indiana law would have burdened both patients and their medical providers with unnecessary reporting requirements,” Falk said. “Reproductive health care, including abortion, should be safe and available to those who need it, and not restricted by certain politicians who want to ban abortions.”

Similarly, Hannah Brass Greer, PPINK’s chief legal counsel, characterized SEA 340 as representing “excessive government overreach … .”

“This bill should never have passed the state Legislature as it has no basis in science and medicine,” Greer said in a statement. “We deserve more from our elected leaders.”

In a news release, Indiana Attorney General Curtis Hill vowed to “continue defending Indiana’s commonsense laws regulating the abortion industry.”

The second provision of SEA 340, known as the inspection statute, fared better.

Young rejected the plaintiff’s equal-protection challenge to the annual inspection requirement, finding that the state “has offered at least a plausible explanation for the decision to subject abortion clinics to stricter inspection requirements (than hospitals and ambulatory surgery centers).” Federal law requires that hospitals and surgery centers be inspected once every five and six years, respectively, “although in practice, the State inspects hospitals and ambulatory surgical centers on a roughly annual basis.”

In arguing for its “compelling interest in protecting women’s health and fetal life by ensuring abortion clinics follow health and safety regulations and informed consent requirements,” the state pointed to the case of Dr. Ulrich Klopfer. Klopfer voluntarily surrendered his medical license after a 50- to 60-page report was issued containing violations at his abortion clinic, Women’s Pavilion of South Bend. Then last year, more than 2,000 fetal remains were found on Klopfer’s Illinois property.

“Matt Foster, the assistant commissioner for the Consumer Services and Health Care Regulation Commission at the Department of Health, cited the experience with Dr. Klopfer as a motivation for the decision to increase the frequency of inspections: ‘we need to get into these places more frequently, because we don’t want, ever, to have another Women’s Pavilion on our hands,’” Young wrote.

Additionally, the judge noted that hospitals and surgery centers can join an accrediting agency, which completes the federal inspections before the state issues a license. “There is no similar arrangement for abortion clinics,” he wrote.

“If abortion clinics are to be inspected – and they must be – that responsibility falls to the state,” Young concluded. “Because the State has offered a rational reason for the decision to subject abortion clinics to stricter inspection requirements, the court concludes the Inspection Statute does not violate equal protection.”

In response to the court’s ruling, Hill released a statement saying, “The Indiana General Assembly has a record of passing legislation that safeguards women’s health and protects the lives of unborn children. I will always consider it an honor to vigorously defend state laws aimed at such essential objectives.”

Referencing Dr. Klopfer, Hill said his violations “might have been discovered sooner had annual inspections of his clinics taken place.”

The ACLU of Indiana and PPINK did not respond to a request for comment on the Inspection Statute ruling.

In addition to the in-court fight, the filing of the SEA 340 litigation led to public dissension between Hill, a Republican, and three Democratic prosecutors at the time: Terry Curry of Marion County, Chris Gaal of Monroe County and Bernard Carter of Lake County.

The prosecutors in May 2018 said they had instructed Hill to concede the merits of the lawsuit on their behalf.

Curry and Gaal are no longer in office but have been succeeded by Democratic prosecutors.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Curry said in 2018.

Hill hit back, saying the local officials’ “directive” to his office had “zero force or effect.” 

The prosecutors responded by telling Hill he had an ethical duty under the Indiana Rules of Professional Conduct to respect his clients’ “ultimate authority.” The AG disagreed, saying his “ultimate client” is the people of Indiana.