Federal judge denies state’s stay pending appeal of expansive abortion ruling

Following an expansive decision that both struck down and upheld numerous provisions of Indiana’s abortion regulation code, a federal judge has declined the state’s request to stay enforcement of that decision pending appeal.

Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana on Thursday denied the state’s request to stay the permanent injunction she issued against five provisions of Indiana Code:

• A physician-only law allowing only physicians to perform or prescribe a medication abortion.
• A second-trimester hospitalization requirement restricting the provision of second-trimester abortions to hospitals or ambulatory surgical centers.
• An in-person counseling requirement for all preabortion counseling.
• A telemedicine ban prohibiting health care providers from using telemedicine to prescribe an abortion-inducing drug.
• An in-person examination requirement, requiring physicians to “examine a pregnant woman in person” before providing a medication abortion.

Barker enjoined those provisions, as well as laws requiring disclosures about fetal pain, the beginning of life and mental health risks of abortion, and various facilities requirements, in 158 pages of findings of fact and conclusions of law handed down Aug. 10. She also upheld a dozen provisions of the Indiana abortion code, including laws that allow only physicians to perform first-trimester aspiration abortions and that require an 18-hour delay between the receipt of Indiana’s mandatory disclosures and an abortion procedure.

Indiana Attorney General Todd Rokita, a Republican, has filed a notice of appeal to the 7^th Circuit Court of Appeals and sought a stay of the five enjoined provisions while the appeal is pending. He argued Barker had misapplied Supreme Court and 7^th Circuit precedent in her findings and conclusions, and that her ruling would prevent the state from enforcing laws designed to protect women and fetal health.

Rokita’s office argued Barker misapplied or ignored numerous abortion precedents, including cases coming out of Indiana such as Gary-Nw. Ind. Women’s Servs., Inc. v. Bowen, 496 F. Supp. 894, 899 (N.D. Ind. 1980), aff’d sub nom, Gary-Nw. Ind. Women’s Services., Inc. v. Orr, 451 U.S. 934 (1981); A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684 (7^th Cir. 2002); and Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740, 751 (7^th Cir. 2021).

But, Barker wrote Thursday, “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.

“… 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 relevant legal precedents, the arguments advanced here by the State reflect no small amount of wishful thinking,” Barker continued. “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.”

Barker also rejected the state’s argument that it would suffer irreparable injury absent a stay, finding instead that “(c)ontrary 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 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.”

The case in the Indiana Southern District Court is Whole Woman’s Health Alliance, et al. v. Rokita, et al., 1:18-cv-01904. It has been docketed in the 7^th Circuit as Case No. 21-2480.