Future of abortion litigation in Indiana uncertain after governor signs abortion ban bill

The future of litigation waging a “global assault” on Indiana’s abortion regulation scheme is on hold as lawyers for both the state and pro-abortion rights organizations consider how to respond to Indiana’s new near-total abortion ban.

Late on Friday, the Indiana General Assembly passed, and Gov. Eric Holcomb signed, Senate Enrolled Act 1, which prohibits abortions in Indiana except in cases of rape and incest before 10 weeks postfertilization, to protect the life and physical health of the mother, or if a fetus is diagnosed with a lethal anomaly.

Earlier that same day, Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana stayed proceedings in the case of Whole Woman’s Health Alliance, et al. v. Todd Rokita, et al., 1:18-cv-01904, pending the outcome of the special legislative session. Now that the session has adjourned, the parties have 30 days to decide where the case goes from here.

The Whole Woman’s Health case was back at the Indiana Southern District Court on remand from the 7^th Circuit Court of Appeals, which in 2021 stayed injunctions against a slate of Indiana abortion laws, including:

• A physician-only law allowing only physicians to perform or prescribe a medication abortion.
• A second-trimester abortion 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.

The state had appealed the stay of the injunctions, but the 7^th Circuit placed the consolidated case in abeyance pending the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.

When Dobbs was handed down in June, the 7^th Circuit lifted all injunctions in the Whole Woman’s Health case and remanded to the district court for reconsideration in light of the ruling overturning Roe v. Wade. 

The parties — the state defendants represented by Indiana Attorney General Todd Rokita, and the plaintiffs Whole Woman’s Health Alliance, All-Options Inc. and Dr. Jeffrey Glazer represented by lead counsel The Lawyering Project — moved to stay the case in the district court “until the conclusion of the special session of the Indiana General Assembly … as any new legislation on abortion enacted by the General Assembly, depending on its final form, could moot some or all of the issues in this case.”

Barker agreed and added, “The parties are ordered to file within thirty (30) days of the conclusion of that special session a joint report on the status of this litigation.”

That 30-day clock is now running.

The enacted version of SEA 1 — which is set to take effect Sept. 15 — encompasses some of the provisions at issue in Whole Woman’s Health. For example, the bill retains the language banning telehealth abortions, as well as the language requiring a physician to “examine a pregnant woman in person before prescribing or dispensing an abortion inducing drug.”

As of Monday afternoon, there were no updates to the Whole Woman’s Health online case docket since Barker imposed the stay on Friday.

In addition to the laws at issue in Whole Woman’s Health, injunctions against preexisting Indiana abortion laws have been lifted in three other cases. Those include injunctions against a law prohibiting a common second-trimester abortion procedure and a law prohibiting abortions on the basis of an unborn child’s race, sex or disability, as well as an injunction against a law requiring parental notification when a “mature minor” seeks an abortion without parental consent.

For more on how the previously enjoined Indiana abortion laws will be impacted by SEA 1, pick up the Aug. 17, 2022, issue of Indiana Lawyer.