A District Court granted a preliminary injunction against the Indiana Department of Health, enjoining the department from defunding Planned Parenthood of Indiana (PPI). The court also enjoined the state agency from enforcing a state statutory requirement that any abortion provider inform a pregnant woman that a fetus may feel pain at or before twenty weeks of postfertilization age, as applied to women having first trimester abortions. Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Department of Health, 2011 WL 2532921 (S.D.Ind.)(June 24, 2011)(No. 1:11–cv–630-TWP-TAB). District Judge Tonya Walton Pratt (Obama) wrote the opinion. The ACLU of Indiana filed the suit along with other groups.
PPI challenged the legality of the Indiana House Enrollment Act 1210, which prohibited certain entities that performed abortions from receiving state funding for health services and revised the informed consent information providers are required to give women before performing an abortion.
The court first addressed whether the plaintiffs had a right to sue under 42 U.S.C. §1983. The court found that a §1983 claim existed to enforce the Medicaid Act’s freedom of choice provision. The language of the statute states that “any individual…may obtain such assistance from any institution…” Such “individually-focused” terminology shows Congressional intent to create individual rights under the law. Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). The court looked to Harris v. Olszewski, 442 F.3d 456, 459 (6th Cir.2006), which held that the free-choice provision does not evince the type of vagueness that would strain judicial competence and the phrase “must…provide” is framed in mandatory, rather than advisory terms. Id. at 463.
The defunding provision of HEA prohibits any Indiana agency from contracting with or making grants to any entity that performs abortion services and immediately canceled any past appropriations to pay for contracts with or grants made to such entities. Interpreting 42 USC §1396a(p)(1) of the Medicaid Act, the Commissioner argued that states have the authority to exclude any Medicaid provider for any reason for which the Secretary of HHS could exclude a provider. The court disagreed that a state could exclude a provider based on the range of services they provide, as legislative history shows that the statute was concerned with the quality of providers. The state’s interpretation would conflict with the freedom of choice provision which allows Medicaid participants to choose any qualified Medicaid provider.
The court drew support for its interpretation from the denial of the state plan amendment by the Centers for Medicare and Medicaid Services in a letter which disapproved the defunding provision as a violation of the free choice provision. The Commissioner argued that the letter was an opinion letter entitled to no deference, but the court disagreed. The letter, if not entitled to Chevron, warranted some level of deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Courts have routinely applied Chevron to HHS’ denial of Medicaid plans and the letter is binding in the sense that it represents the position of the federal government as it now stands. The letter was a reasonable interpretation of a somewhat unclear statute. Id at 843.
The court held that PPI also had a reasonable likelihood of success on its claim that the defunding provision was preempted by its receipt of federal grants for screening and treatment of STD infections. The Commissioner argued that there were no Seventh Circuit cases recognizing a freestanding claim to enforce federal Spending Clause statutes under a theory of preemption. The court acknowledged that this question would come before the Court next term in Maxwell–Jolly v. Independent Living Center of Southern California, Inc., ––– U.S. ––––, 131 S.Ct. 992 (2011) (granting certiorari)(addressing whether Medicaid recipients or providers may maintain a cause of action under the Supremacy Clause to enforce a provision of the Medicaid Act) and that the Court could change course. However, under current precedent, federal courts have assumed jurisdiction of freestanding claims under the Supremacy Clause for actions claiming preemption under the spending clause. E.g., PhRMA v. Walsh, 538 U.S. 644 (2003). Judge Pratt found further support in case law that rejected state’s attempts to add eligibility requirements to the receipt of federal money when federal law imposes a comprehensive mechanism for funding certain programs. See, Valley Family Planning v. North Dakota, 661 F.2d 99, 100–01 (8th Cir.1981).
PPI’s complaint showed irreparable harm, claiming that as a result of HEA, it stopped performing contracts under its federal grants, had to lay off two specialists, and estimates that it will have to close seven centers and lay off 37 additional employees. The court rejected the Commissioner’s argument that the provision served the public interest of keeping taxpayer dollars from funding abortions, citing audits proving that no taxpayer dollars fund abortions. Considering the federal government’s looming threat to cut off Medicaid funds for the entire state, the court found that the balance of harm tipped in the plaintiff’s, as well as all Medicaid recipients’ favor.
Before enjoining an informed consent provision, the court must consider whether the speech is truthful, non-misleading, and relevant to the patient’s decision to have an abortion. The court found that the provision requiring practitioners to state that “human physical life begins when a human ovum is fertilized by a human sperm” (Ind.Code § 16–34–2–1.1(a)(1)(E)) merely mandated that practitioners inform women that at conception, a living organism of the species Homo sapiens is created. As the speech is truthful and not misleading, PPI did not demonstrate a likelihood of success on the merits regarding that informed consent provision.
Nevertheless, the court enjoined the requirement that practitioners inform women that there is substantial medical evidence that a fetus can feel pain at or before twenty weeks of postfertilization age (Ind.Code § 16–34–1.1(a)(1)(G)). The studies offered by the Commissioner were not conclusive and did not have any evidence that fetuses could feel pain before sixteen weeks. Since PPI does not perform abortions past the first trimester, the court agreed that it might be misleading to inform a woman at her first trimester of such a statement.
