SCOTUS considering South Bend abortion clinic case without evidence of clinic corrections

The bid to take yet another Indiana abortion case to the United States Supreme Court will proceed without evidence of a South Bend abortion clinic’s efforts to correct state licensing violations. The procedural ruling comes as the nation’s highest court is set to consider the case in conference Friday.

Indiana Southern District Court Senior Judge Sarah Evans Barker last week denied Whole Woman’s Health Alliance’s motion to supplement the record with a report listing violations at and subsequent corrections to an abortion clinic in South Bend. Whole Woman’s Health had sought to add the report to the record in an effort to convince the Supreme Court not to grant a certiorari petition in Whole Woman’s Health Alliance, et al. v. Curtis T. Hill, Jr., et al., 1:18-cv-1904.

Barker previously ruled that the clinic could open without a state-required license following multiple license rejections from the Indiana Department of Health.  She also rejected a bid to keep the clinic closed while the state appealed.

The 7^th Circuit affirmed Barker’s ruling but narrowed the injunction to allow the clinic to open under a provisional license.

The state defendants — including Attorney General Curtis Hill, Health Commissioner Kristina Box, St. Joseph County Prosecutor Kenneth Cotter and Indiana Medical Licensing Board President John Strobel — filed a cert petition with SCOTUS late last year.

Meanwhile, the Health Department inspected the clinic and drafted a 12-page statement of deficiencies. The violations included:

• Failure by the governing body to approve appointments or contracts for two of five medical staffers;
• Failure of the medical director to provide a recommendation for appointment for three of five medical staffers;
• Failure by the governing body to ensure evidence of individual character and judgment qualifications in the selection of four of five medical staffers;
• Lack of documentation of a requirement that clinic policies/procedures be reviewed by the governing board triennially;
• Failure to establish a policy/procedure for communication with physicians concerning a patient emergency;
• Failure to establish a policy/procedure for health care worker practice problems addressing criminal history;
• Failure by the medical director to provide a recommendation for appointment for three of five medical staffers;
• Failure by the medical director to ensure a policy/procedure for personnel authorized to take a verbal order;
• Failure to develop a policy/procedure on the reuse of disposables;
• Failure to ensure development, implementation and maintenance of policies addressing the communicable disease history of new personnel, as well as an ongoing program for current personnel;
• Failure to develop, implement and maintain written policies/procedures for reporting adverse reactions and medication errors to the patient’s physician;
• Failure to ensure development, maintenance and availability of policies/procedures addressing that instructions to patients on the use of take-home medication is the responsibility of the prescribing physician;
• Failure to ensure the existence of a formulary;
• Failure to ensure maintenance of documentation of evidence of regular inspection and approval by state and local fire agencies;
• Failure to ensure coordination of emergency/disaster preparedness with community/state/federal agencies; and
• Failure to provide take-home medication packaging training for two of two staffers and failure to ensure documentation of post-offer physical and immunizations for five of five personnel.

In response, the clinic created a plan of correction detailing plans to update all necessary policies and procedures, ensure proper qualifications and recommendations for current and future medical staffers, coordinate disaster/emergency preparedness plans, and provide all necessary training.

The clinic moved to supplement the record with the statement of deficiencies and plan of correction to help the high court evaluate the state’s claim that: “The point of the provisional license provided by state law is to permit a clinic to operate and then undergo an inspection prior to permanent licensing so that the Department can review the clinic’s actual operations and, if necessary, order early corrective action by the clinic. The injunction required by the Seventh Circuit and ordered by the district court plainly compromises that authority.”

In rejecting the motion, Barker determined Whole Woman’s Health did not meet the standard under Federal Rule of Appellate Procedure 10(e). Her decision was handed down Feb. 13, one week before the Supreme Court’s deadline for Whole Woman’s Health to file a response to the cert petition.

In its response filed Thursday, the plaintiffs argued “(t)he Court should deny the petition because it seeks review of a preliminary injunction that will soon be superseded by a final judgment; the issues it raises were neither presented to nor decided by the courts below; and all of its arguments rest on fact-bound contentions about the application of legal rules that are not in dispute.”

The Supreme Court is Curtis T. Hill, Jr., et al. v. Whole Woman’s Health Alliance, et al., 19-743.