FINDINGS of FACT and CONCLUSION of LAW on June 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION WHOLE WOMAN'S HEALTH ALLIANCE, ) ALL-OPTIONS, INC., ) JEFFREY GLAZER M.D., ) ) Plaintiffs, ) ) v. ) No. 1:18-cv-01904-SEB-MJD ) TODD ROKITA Attorney General of the State of ) Indiana, in his official capacity, ) KRISTINA BOX Commissioner of the Indiana ) State Department of Health, in her official ) capacity, ) JOHN STROBEL M.D., President of the Indiana ) Medical Licensing Board of Indiana, in his official ) capacity, ) KENNETH P. COTTER St. Joseph County ) Prosecutor, in his official capacity and as ) representative of a class of all Indiana prosecuting ) attorneys with authority to prosecute felony and ) misdemeanor offenses, ) ) Defendants. ) FINDINGS OF FACT AND CONCLUSION OF LAW On June 21, 2018, Plaintiffs Whole Woman’s Health Alliance, All-Options, Inc., and Jeffrey Glazer, MD. (collectively, "Plaintiffs") initiated this lawsuit against Defendants Todd Rokita (previously Curtis Hill, Jr.), Attorney General of Indiana; Kristina Box, M.D., Commissioner of the Indiana State Department of Health; John Strobel, M.D., President of the Medical Licensing Board of Indiana; and Kenneth P. Cotter, St. Joseph County Prosecutor ("the State") under 42 U.S.C. § 1983, waging a global assault on the constitutionality of Indiana's statutory and regulatory restrictions on abortions. Plaintiffs' complaint challenges twenty-five separate sections of Indiana's 1 wide-ranging regime to regulate abortion, asserting that these provisions violate the Substantive Due Process Clause of the Fourteenth Amendment (Count I), the Equal Protection Clause of the Fourteenth Amendment (Count II), and the Freedom of Speech Clause of the First Amendment (Count III). Plaintiffs also challenge various statutes as unconstitutionally vague in violation of the Fourteenth Amendment's Procedural Due Process Clause (Count IV). Given the expansive scope of Plaintiffs' legal claims as well as challenges imposed by the COVID-19 pandemic, the parties and the Court agreed to bifurcate the trial of these issues into two parts. "Phase I" issues were heard during a "virtual" bench trial on March 15, 2021; "Phase II" were presented in similar fashion on June 23, 2021.1 For the reasons explicated in the following decision, based on the Court's thorough review and consideration of all evidence presented at trial, the following provisions are ruled unconstitutional, and their enforcement permanently enjoined: The Telemedicine Ban, the In-Person Examination Requirement, the Physician-Only Law as it relates to the first-trimester provision of medication abortion, the Second-Trimester Hospitalization Requirement, and the Mandatory Disclosures and Facility Requirements identified herein. The Court also rules that the following provisions pass constitutional muster: the Ultrasound Requirement, the Physician-Only Law as it relates to the provision of aspiration abortion, and the limitation on preabortion counseling sessions by only 1 Citations to "Phase I Tr." refer to the official transcripts for Phase I of this case, organized in volumes and docketed at Dkt. Nos. 378, 379, 380, and 381. As of the date of this Order, official transcripts for Phase II have not yet been finalized and docketed; however, unofficial copies were provided to all parties. These transcripts are cited as "Phase II Tr." 2 physicians and advanced practice clinicians, as well as the criminal penalties provisions imposed for violations of the abortion restrictions. Accordingly, the following findings of facts and conclusions of law are hereby entered. I. Scope of Claims The Constitution, among its many protections and liberties, includes in poignant judicial parlance the freedom from state-required motherhood. Roe v. Wade, 410 U.S. 113, 152–53 (1973). The Supreme Court has recognized the primacy of a woman's right to exercise "control over her destiny and her body," an entitlement that is "implicit in the meaning of liberty." Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 869 (1992) (plurality op.). Plaintiffs, a group of abortion providers and nonprofit intermediaries, have challenged a broad array of Indiana's statutory and regulatory restrictions on abortions, which they contend infringe upon a woman's freedom to control her own destiny and body. Indiana law, according to Plaintiffs, places futile and burdensome regulatory requirements on healthcare providers who administer abortion care, mandates the dissemination of misleading and incorrect information to patients relating to the mental and physical health risks of abortion as a condition of securing a woman's informed consent, and unreasonably restricts minors from accessing abortions. The twenty-five sections and subsections of the Indiana abortion code and their accompanying regulations are challenged as facially violative of the Fourteenth Amendment's Substantive Due Process, Procedural Due Process and Equal Protection Clauses, and the First 3 Amendment. The Court has previously determined in ruling on the State's summary judgment motion that certain challenges could and did not survive. Clearly, this lawsuit reflects an attempt by Plaintiffs to reduce Indiana's prolix and often burdensome legal scheme governing abortion services, the number and complexity of which limitations have increased during the decades following Roe v. Wade. These controls, according to Plaintiffs, have resulted in women facing substantial obstacles to securing abortion services in Indiana. Plaintiffs expressly seek to "return [Indiana] to a system of reasonable and medically appropriate abortion regulations by striking down Indiana's unduly burdensome abortion laws." [Comp. ¶ 9]. We examine these alleged burdens in the context of the Substantive Due Process Clause, which requires consideration of "the burdens a law imposes on abortion access together with the benefits those laws confer." Whole Woman's Health Alliance v Hellerstedt¸ 136 S. Ct. 2292, 2309 (2016). II. Procedural Background A. Plaintiffs' Successful Motion for Preliminary Injunctive Relief re: the South Bend Clinic On May 31, 2019, the Court issued a Preliminary Injunction, which was thereafter modified on October 1, 2019. While Plaintiffs' Complaint advances facial challenges to Indiana's abortion statutes, the motion for preliminary injunction sought limited, specific relief from various procedural prerequisites to licensure relative to the opening and 4 operation of an abortion clinic by Whole Woman's Health Alliance ("WWHA"),2 located in South Bend, Indiana. We held that Plaintiffs had shown a likelihood of prevailing on the merits of their claim that those licensing requirements had been applied in an unconstitutional fashion and that the Indiana State Department of Health (the "Health Department") had unconstitutionally denied WWHA's application for licensure, which decision had thereafter been affirmed by the Health Department's three-member Appeals Panel, its final decisionmaker. Though WWHA had filed a second application, it believed its efforts were futile following additional procedural roadblocks erected by the Health Department. Plaintiffs sought injunctive relief in our Court essentially to break the bureaucratic stalemate. Following expedited briefings and oral arguments, we granted Plaintiffs' motion for preliminary injunctive relief. Specifically, we ruled that Plaintiffs had established a likelihood of success on the merits on their claim that Indiana's requirements of licensure for clinics providing medication abortions (that is, those abortions induced by ingesting certain medications) had been applied to WWHA in a manner that was violative of the Fourteenth Amendment's Substantive Due Process and Equal Protection Clauses. This ruling was affirmed with certain procedural modifications by the Seventh Circuit. The modified preliminary injunction requires the Health Department to treat WWHA's clinic (hereinafter, the "South Bend Clinic") as provisionally licensed until a final judgment could issue on the merits of this case. The South Bend Clinic thus commenced operation 2 WWHA "is a nonprofit organization committed to providing holistic reproductive healthcare, particularly abortion care." [Compl. § 14]. 5 and continues to provide medication abortions for women up to ten weeks following gestation. B. The State's Motion for Summary Judgment On November 8, 2019, the State moved for summary judgment on all the claims asserted against it. No cross-motion was filed by Plaintiffs. Given that Plaintiffs' request for preliminary injunctive relief was unrelated to other allegations in their Complaint, the parties' extensive summary judgment briefing did not address the issues in the preliminary injunction. Indeed, as noted in our Preliminary Injunction, Plaintiffs' motion was "not strictly preliminary to anything" because the Complaint had alleged that the challenged laws were facially unconstitutional, not as applied to WWHA, which reflected the fact that the Complaint has been filed six months before WWHA received the final decision on its first licensure application. [Dkt. 116, at 50]. "Thus," as we explained, "none of the facts related to the administrative proceeding relied upon by Plaintiffs in support of their as-applied undue- burden challenge are pleaded in the [C]omplaint. None would be heard at the time of final judgment on Plaintiffs' facial challenges." [Id., at 50-51]. Accordingly, the State's motion for summary judgment responded to Plaintiffs' challenges to the facial validity of the licensure

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