August 28, 2019 // Diocese

Federal Appeals Court allows South Bend abortion facility to remain open

Ann Carey

On Aug. 22, the U.S. Court of Appeals for the 7th Circuit issued a narrow opinion that allows the unlicensed Whole Woman’s Health Alliance to continue providing chemical abortions at its South Bend facility, at least for the time being.

Indiana Attorney General Curtis Hill Jr. had asked the appeals court to stay an injunction granted by a lower district court that has allowed the WWHA to operate without a license since June. After the Indiana Department of Health denied the WWHA a license to open its facility, it had sued the state, charging its licensing and regulatory requirements for abortion providers to be unconstitutional. The full case will be heard in 2020.

“We agree with the district court that the reasons Indiana asserts in support of its handling of the South Bend license are unsupported and outweighed by the substantial burden the state is imposing on women in northern Indiana,” wrote the appeals court.

Jackie Appleman, executive director of St. Joseph County Right to Life, expressed disappointment with the appeals court decision in a statement: “This isn’t about health care. This is about pandering to the abortion lobby which sees Indiana as a lucrative market to sell abortions to women in crisis.”

However, there was some good news for pro-life advocates in the appeals court ruling. While the court allowed the facility to function, it also ruled that, contrary to the district court’s findings, the facility must abide by state licensing and regulations for such a facility. Further, the appeals court stated that such state regulations do meet constitutional standards, writing: “the district court’s broad condemnation of Indiana’s licensing scheme runs contrary to Supreme Court precedent.”

All the legal wrangling began in 2017, when the Texas-based WWHA bought a building in South Bend and applied for a license to operate an abortion business providing chemical abortions up to 10 weeks of pregnancy.

The state denied the license in early 2018, citing deficiencies in the application, as well as concerns over violations at affiliated abortion facilities. The state contended that the WWHA failed to disclose its affiliation with six other abortion clinics, some of which had incurred violations of state laws. WWHA president and CEO Amy Hagstrom Miller claimed that the nonprofit WWHA is a separate entity from the for-profit abortion chain she owns called Whole Woman’s Health, and thus the for-profit entities were not affiliates.

The WWHA appealed the license denial to the Indiana Department of Health, which eventually upheld the denial. In the meantime, the Indiana legislature clarified the definition of an affiliate in March 2018, and the Department of Health invited the WWHA to submit a new application naming the six for-profit entities as affiliates. The department further asked for documentation concerning investigations, inspections or surveys of the affiliates by any regulatory authorities since 2014, as well as any administrative, civil or criminal court actions involving affiliates.

The WWHA considered this documentation requirement to be “exceptionally broad,” as well as an “undue burden” on women seeking an abortion and filed suit in the U.S. District Court of the Southern District of Indiana on June 21, 2018. The suit challenges the constitutionality of Indiana’s licensing requirements as well as most of the state’s laws regulating abortion services, including parental consent and the requirement that only physicians do abortions. The WWHA also asked for a preliminary injunction to suspend the Indiana laws so it could operate its abortion facility until the court decided the case, scheduled for 2020.

In response, Attorney General Hill filed a motion to dismiss the suit on grounds that the Supreme Court and other appellate courts have ruled that states may regulate abortion providers. He also asked the court to stay the injunction that permitted the facility to operate before the case was decided.

On May 31 of this year, the district court denied Hill’s request and granted the WWHA the injunction to open without regulation, so Hill appealed that decision to the 7th Circuit.

The appeals court found the injunction to be “overbroad” because it dealt with “Indiana’s licensing scheme as a whole” and narrowed the injunction to cover only the South Bend WWHA facility. A hearing was held in Chicago July 11 before that court, which then issued its ruling Aug. 22.

While the Aug. 22 appeals court ruling upheld Indiana’s right to regulate abortion providers, it also noted “concerns about the state’s handling of the Alliance’s license application,” particularly what the WWHA lawsuit called everchanging requirements. It would be unconstitutional, the court said, for the state to change requirements or throw up hurdles to block access to abortions rather than to legitimately screen providers.

Thus, the opinion stated: “We therefore order the district court to modify the injunction to instruct Indiana to treat the Alliance’s South Bend facility as though it were provisionally licensed. This respects the state’s interest in regulating medical facilities, while at the same time it allows the Alliance to keep providing medication abortions at its South Bend clinic while the case proceeds.”

This means that: “This modification of the injunction will ensure that the state continues to have its normal regulatory power over the clinic, including the power to conduct inspections” under Indiana Code.

The appeals court opinion stated that both the WWHA and the state of Indiana could continue their examination of the state’s handling of the licensing process. And the court left open the door for further modification, or even a stay, of the injunction if “further development of the record” finds that the WWHA “has failed to respond to reasonable requests for information, as the state contends.”

Thus, the Indiana State Department of Health will likely continue to examine the records of the WWHA six affiliated abortion facilities in Texas, Minnesota, Maryland and Virginia, while also considering “thoughts” offered in the appeals court’s opinion about proper handling of the licensing process.