Whole Woman's Health Alliance v. Rokita

13 F.4th 595

WHOLE WOMAN'S HEALTH ALLIANCE, et al., Plaintiffs-Appellees,

v.Todd ROKITA, Attorney General of Indiana, et al., Defendants-Appellants.

Nos. 21-2480 & 21-2573

United States Court of Appeals, Seventh Circuit.

Decided September 8, 2021

Rupali Sharma, Attorney, Lawyering Project, South Portland, ME, Stephanie Toti, Attorney, Lawyering Project, Brooklyn, NY, Melissa Shube, Attorney, Lawyering Project, Washington, DC, Lara A. Flath, Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, Amy L. Van Gelder, Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Plaintiffs-Appellees.

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Attorneys, Office of the Attorney General, Indianapolis, IN, Gene C. Schaerr, Scott D. Goodwin, James A. Heilpern, Joshua James Prince, Attorneys, Schaerr Jaffe LLP, Washington, DC, for Defendant-Appellant Theodore E. Rokita in No. 21-2480.

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Attorneys, Office of the Attorney General, Indianapolis, IN, Gene C. Schaerr, H. Christopher Bartolomucci, Scott D. Goodwin, James A. Heilpern, Joshua James Prince, Attorneys, Schaerr Jaffe LLP, Washington, DC, for Defendants-Appellants Kristina Box, John Strobel, M.D., Kenneth P. Cotte in No. 21-2480.

Judd E. Stone, II, Attorney, Office of the Attorney General, Austin, TX, for Amici Curiae in No. 21-2480.

Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Robert A. Rowlett, Attorneys, Office of the Attorney General, Indianapolis, IN, Scott D. Goodwin, James A. Heilpern, Joshua James Prince, Gene C. Schaerr, Attorneys, Schaerr Jaffe LLP, Washington, DC, for Defendant - Appellant Theodore E. Rokita in No. 21-2573.

H. Christopher Bartolomucci, Scott D. Goodwin, James A. Heilpern, Joshua James Prince, Gene C. Schaerr, Attorneys, Schaerr Jaffe LLP, Washington, DC, Thomas M. Fisher, Kian James Hudson, Julia Catherine Payne, Esq., Robert A. Rowlett, Attorneys, Office of the Attorney General, Indianapolis, IN, for Defendants - Appellants Kristina Box, John Strobel, M.D., Kenneth P. Cotte in No. 21-2573.

Before Flaum, Easterbrook, and Wood, Circuit Judges.

Per Curiam.

The district court entered an injunction that prohibits officials from enforcing these provisions of Indiana's law:

• Ind. Code § 16-34-2-1(a)(1) to the extent this statute limits the provision of first-trimester medication abortion care to physicians; requires a physical examination to be performed on a woman prior to receiving an abortion; and prohibits the use of telemedicine by requiring the prescriber to be physically present at the abortion facility in order to dispense the abortion-inducing drug and the patient to ingest the drug in the physical presence of prescriber;

• Ind. Code § 16-34-2-1(a)(2) providing that second-trimester abortions be performed only in hospitals or ambulatory surgical centers;

• Ind. Code § 16-34-2-1.1(a)(1), (a)(4), (b)(1) to the extent these provisions prohibit providers from using telemedicine or telehealth to obtain informed consent from patients or to conduct pre-abortion counseling sessions;

• Ind. Code § 25-1-9.5-8(a)(4) prohibiting the use of telemedicine in abortion care;

• 410 Ind. Admin. Code § 26-17-2(d)(1)(A), (4), (e)(5) requiring clinics providing aspiration abortions to maintain 120-square-foot procedure rooms, scrub facilities, and 44-inch corridors;

• 410 Ind. Admin. Code § 26.5-17-2(e)(1) requiring medication abortion clinics to maintain housekeeping rooms with storage sinks;

• Ind. Code § 16-34-2-1.1(a)(1)(E) and (a)(1)(G) requiring women seeking abortion services to be informed that "objective scientific information shows that a fetus can feel pain at or before twenty (20) weeks of postfertilization age" and that "human physical life begins when a human ovum is fertilized by a human sperm"; and

• Ind. Code § 16-34-2-1.1(b)(2) to the extent it requires dissemination of a Perinatal Hospice Brochure containing the following: "Studies show that mothers who choose to carry their baby [sic] to term recover to baseline mental health more quickly than those who aborted due to fetal anomaly."

2021 U.S. Dist. LEXIS 149959 at *207–08 (S.D. Ind. Aug. 10, 2021). The officials (collectively Indiana) request a stay of some aspects of this injunction: the "physician-only law as applied to medication abortions, Ind. Code § 16-34-2-1(a)(1) ; [the] second-trimester hospital/ambulatory surgical center requirement, id . § 16-34-2-1(a)(2) ; [the] in-person counseling requirement, id . § 16-34-2-1.1(a)(1), (a)(4), (b)(1) ; [the] in-person physical examination requirement, id . § 16-34-2-1(a)(1) ; and [the] telemedicine ban, id . § 25-1-9.5-8(a)(4)."

All of the contested provisions have been in force for years, so a stay would preserve the status quo pending appellate resolution. And Indiana has made the "strong showing" on the merits necessary to receive a stay. See Nken v. Holder , 556 U.S. 418, 426, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

We start with Ind. Code § 16-34-2-1(a)(1). State laws requiring abortions to be performed by physicians have been challenged before, and in Mazurek v. Armstrong , 520 U.S. 968, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), the Supreme Court held that they are constitutional. The district court nonetheless declared that requiring a physician is unconstitutional with respect to one means of inducing an abortion. That exception does not find any support in Mazurek or this court's decisions. See Whole Woman's Health Alliance v. Hill , 937 F.3d 864, 874 (7th Cir. 2019) ; Planned Parenthood of Indiana and Kentucky, Inc. v. Box , 991 F.3d 740, 751 (7th Cir. 2021).

Laws requiring second-trimester abortions to be performed in a hospital or surgical center also have been challenged before. Indeed, Ind. Code § 16-34-2-1(a)(2) itself was challenged and sustained by the Supreme Court. Gary-Northwest Indiana Women's Services, Inc. v. Orr , 496 F. Supp. 894 (N.D. Ind. 1980) (three-judge court), affirmed, 451 U.S. 934, 101 S.Ct. 2012, 68 L.Ed.2d 321 (1981). The Supreme Court's decision was summary and unreasoned, but like other summary dispositions it settled the validity of the contested statute even though it did not establish general principles. Two years later, the Court concluded after full briefing and argument that a materially identical statute in Virginia is constitutional. Simopoulos v. Virginia , 462 U.S. 506, 103 S.Ct. 2532, 76 L.Ed.2d 755 (1983).

The requirement of in-person counseling, Ind. Code § 16-34-2-1.1(a)(1), (a)(4), (b)(1), likewise is a return litigant. It was contested and held constitutional in A Woman's Choice v. Newman , 305 F.3d 684 (7th Cir. 2002). We concluded that the validity of such a statute was established in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 881–87, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), which held that a materially identical informed-consent statute does not create an "undue burden" on access to abortion. And if as Casey and A Woman's Choice hold a state may require in-person meetings with physicians before an abortion, then the validity of the restriction on telemedicine, Ind. Code § 25-1-9.5-8(a)(4), follows directly.

Plaintiffs contend, and the district court found, that developments in videoconferencing make it possible to dispense with in-person meetings, that improvements in medicine make the use of hospitals or surgical centers unnecessary, and that nurses are competent to approve and monitor medication-induced abortions. The district court concluded that these findings permit it to depart from the holdings of earlier cases. Yet the Supreme Court insists that it alone has the authority to modify its precedents, State Oil Co. v. Khan , 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997), and we added in A Woman's Choice that a district judge lacks authority to use new findings to depart from established law. 305 F.3d at 688–89 ("constitutionality must be assessed at the level of legislative fact, rather than adjudicative fact as determined by more than 650 district judges.").

We leave the merits for resolution after full briefing and argument. All we hold today is that existing precedents provide strong grounds for concluding that Indiana is likely to prevail on the contested issues. To the extent that the injunction bars Indiana from enforcing Ind. Code §§ 16-34-2-1(a)(1), (2), 16-34-2-1.1(a)(1), (4), (b)(1), and 25-1-9.5-8(a)(4), it is stayed pending further order of this court.

Wood, Circuit Judge, dissenting from the grant of the stay pending appeal.

Almost 50 years ago, the Supreme Court held that a woman has a fundamental right to decide whether or not to carry a pregnancy to term. Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Today, challenges to Roe ’s holding abound. In Dobbs v. Jackson Women's Health Org. , No. 19-1392 (U.S.), ––– U.S. ––––, 141 S.Ct. 2619, 209 L.Ed.2d 748, cert. granted May 17, 2021, the State of Mississippi has asked the Court to rule that "all pre-viability prohibitions on elective abortions are [ ]constitutional." Petn. For Cert., Question 1. Texas took another approach, by enacting a law that not only bans all abortions after approximately the sixth week of pregnancy, but also disempowers state officials from taking any enforcement action related to that ban, instead authorizing any interested by-stander to perform that function. See Whole Women's Health v. Austin Reeve Jackson, Judge , No. 21A24 (U.S.), ––– U.S. ––––, ––– S.Ct. ––––, 141 L.Ed.2d 2494, Sept. 1, 2021, denying an application for injunctive relief. And some states have enacted law after law designed to chip away at Roe , while piously purporting to protect women's health.¹

The Indiana law before us takes the last form. It constricts the performance of abortions in countless ways. The plaintiff organizations provide abortion services in Indiana and elsewhere. In this suit, they originally challenged 25 different parts of the law, on the...