Abortion clinic prevails: Indiana Attorney General’s request to bar South Bend facility from opening is denied by federal judge

(HSPA) SOUTH BEND — The same federal judge who ruled that an abortion clinic can open in South Bend has denied an attempt by Indiana Attorney General Curtis Hill to bar that from happening.

Late last month, federal Judge Sarah Evans Barker ruled that the planned Whole Woman’s Health Clinic in South Bend could open without the state-required license, pending a final ruling in the case in 2020.

But Hill’s office responded by appealing that ruling to a higher court, the 7th Circuit Court of Appeals, and moving to delay the opening of the clinic until the appeal had been heard.

Evans Barker decided Friday to deny Hill’s request, allowing the clinic to begin offering medication-induced abortions for women who are up to 10 weeks pregnant.

But Hill’s office filed a new motion in the 7th Circuit Court of Appeals Monday to bar the clinic from opening, setting up yet another decision on whether or not the clinic can open.

“This ruling turns the right to abortion into a cudgel against state licensing laws that the Supreme Court long ago declared to be perfectly valid,” Hill said in a statement.

Sharon Lau, Midwest advocacy director for Whole Woman’s Health Alliance, said there isn’t a specific date yet for when the clinic will open but the organization is working “expeditiously to open as soon as possible.”

The clinic in South Bend will be the seventh abortion clinic in Indiana, with three others in Indianapolis, one in Bloomington, one in Lafayette and one in Merrillville.

“It would be a different question if we believed that the South Bend Clinic, absent licensure, could not be regulated by the state,” Evans Barker wrote. “We issued our order in reliance on the prospect that the South Bend Clinic could and will be regulated by the state, in light of the history of abortion regulation in Indiana and of the existing statutory and regulatory framework.

“Moreover, every single day, Indiana permits licensed physicians ‘to dispense powerful hormone-curbing, abortion-inducing, uterus-contracting prescription drugs’ in unlicensed facilities — so long as those drugs are dispensed to women not seeking abortions.”

In non-abortion cases, the abortion-inducing medications can be prescribed by doctors to treat miscarriages. In those cases, Evans Barker said, women “are unrestricted in their choice of provider.”

Lau said the group is “thrilled that the court recognized the burdensome nature of the licensing process.”

The ruling keeps the door open for the clinic to begin operation, after previous attempts had been stymied by the state’s licensing requirement.

In 2014, the effort began to bring a clinic here when local physicians, academics and activists invited Whole Woman’s Health Alliance to consider opening in South Bend. By 2017, the nonprofit had submitted a license application to the Indiana State Department of Health, which led to the department investigating the relationship between Whole Woman’s Health Alliance, the nonprofit, and other for-profit limited liability companies using the branding of Whole Woman’s Health.

Ultimately, the department denied the license application in early 2018, saying the nonprofit hadn’t disclosed information related to other clinics and therefore failing on the basis of a “reputable and responsible character” test outlined in the Indiana licensing requirement.

That licensing requirement was expanded in 2013 to include abortion clinics that provide medication-based abortions, like the planned clinic in South Bend. Before then, clinics offering medication-induced abortions were not required to be licensed in Indiana.

An administrative law judge recommended the denial be reversed in an administrative review of Whole Woman’s Health Alliance’s license, but ultimately a second license application was denied.

That winding course of attempts to open a clinic in South Bend led to the federal lawsuit that now stands to challenge a litany of abortion regulations in Indiana, ranging from the licensing requirement to the 18-hour-delay requirement for women seeking an abortion.

In response to the judge’s order, St. Joseph County Right to Life announced plans for a rally Saturday at the soccer field at St. John the Baptist Catholic School, 3526 St. Johns Way, at 1 p.m. The group has opposed the opening of the clinic in South Bend.

Indiana Right to Life president and CEO Mike Fichter said the ruling will put “women at risk and lead to the deaths of hundreds of unborn children.”

As far as the progress of the appeal of Evans Barker’s earlier order allowing the clinic to open, the 7th Circuit Court of Appeals hasn’t made a decision to hear the case yet.