Indiana Attorney General Todd Rokita’s office wants to vacate a 12-year-old injunction on an abortion provider state funding ban — risking Planned Parenthood’s participation in Indiana’s Medicaid program.
“That injunction’s legal foundation has entirely eroded,” the office wrote in a brief last month, more than 11 years after the most recent filing in a long-dormant lawsuit with the reproductive health care group.
It cited a landmark U.S. Supreme Court decision, handed down the month prior, that Medicaid patients don’t have the right to sue to see their doctor of choice.
The ruling allows South Carolina to exclude clinics that also provide abortions from its Medicaid program, pending permission from a lower court. Indiana could draw on that new precedent.
But Planned Parenthood’s Great Northwest, Hawai’i, Alaska, Indiana, and Kentucky chapter warns that health care access is in jeopardy.
“Indiana’s extreme abortion restrictions have created a dangerous environment for patients and providers,” affiliate CEO Rebecca Gibron said in a statement to the Capital Chronicle. “Now, targeted attacks against Planned Parenthood threaten to rip away basic health care from thousands of people who already have nowhere else to turn.”
The organization provides birth control, cancer screenings, human immunodeficiency virus testing and prevention, sexually transmitted infection testing and treatment, vaccinations and wellness exams.
“Other safety-net providers cannot absorb all of the patients that Planned Parenthood sees,” Gibron added. “When you target us, you target the critical health care that keeps communities healthy.”
Looking at the law
Indiana’s House Enrolled Act 1210, approved in 2011, bars state agencies from contracting with or giving grants to any organization that performs abortions, or has a facility where abortions are performed. The law exempts hospitals and ambulatory surgical centers.
It was “designed to prevent the indirect subsidization of abortion and abortion providers,” the Office of Attorney General said in a statement to the Capital Chronicle.
On the day then-Gov. Mitch Daniels signed the ban into law, Planned Parenthood’s Hoosier chapter filed suit in the U.S. District Court of the Southern District of Indiana.
The group, and several individual plaintiffs, are represented by the American Civil Liberties Union of Indiana. Rokita’s office, meanwhile, represents the state officials named as defendants.
The plaintiffs won a permanent injunction in 2013, with Judge Tanya Walton Pratt ruling that using the ban to deny Planned Parenthood Medicaid funding and reimbursement “is unlawful” because it would deny patients “a free choice of medical provider.”
But the nation’s highest court overturned that logic when it agreed with attorneys arguing that federal Medicaid law didn’t spell that out.
“With that change in the law, this Court’s judgment and injunction in Planned Parenthood’s favor can no longer stand,” Rokita’s office said.
“It is no longer equitable to continue enforcing an injunction that interferes with a law enacted by the people’s representatives to further a vital state interest in protecting prenatal life when that injunction’s legal foundation has entirely eroded,” it continued.
Other things have changed since 2011, however.
Indiana’s abortion ban
Shortly after the U.S. Supreme Court ended the federal right to an abortion in 2022, Hoosier lawmakers outlawed the procedure — with narrow exceptions — and eliminated state licensure of abortion clinics.
“The provider landscape has changed dramatically — there are fewer health care options, longer wait times, and an even more fragile safety net,” Planned Parenthood affiliate spokeswoman Nicole Irwin said.
A small number of procedures still occur in Indiana, but they are performed at hospitals or hospital-owned outpatient centers.
Planned Parenthood hasn’t provided abortions in Indiana since 2022, according to Irwin, who argued the law “should not be used to disqualify us” as a Medicaid provider.
“If for some reason the State moves to exclude us, despite us no longer being an abortion provider in Indiana, patients would not be able to use their Medicaid coverage with us,” Irwin said.
“We serve thousands of Medicaid patients each year in Indiana,” she continued. “Cutting us off would mean the loss of millions in revenue that directly fund this care, but more importantly, it would mean patients lose trusted providers and timely access to services that protect their health and lives.”
Lawsuit revived
The state has argued the Supreme Court’s decision “fundamentally changes the legal landscape” — and means the Southern District’s ruling “is no longer good law.”
“Continued enforcement of the injunction does not merely interfere with federal-state arrangements,” Rokita’s office wrote in the brief. “It also undermines a vital state policy in promoting ‘respect for and preservation of prenatal life at all stages of development.’”
“One of Indiana’s most important public policies is to promote childbirth over abortion,” it continued.
In a July 17 response, the plaintiffs argued that, if the final judgment and its permanent injunction is vacated, the case should be reopened.
“Rather than simply asking that the final judgment entered in the plaintiffs’ favor be vacated, the State has requested that judgment be entered in its favor,” the plaintiffs wrote. “Under the circumstances of this case, that request is highly improper.”
They said only three of four legal claims were addressed in the judgment, leaving one about the Constitution’s Contract Clause undecided.
“This was certainly appropriate, for the resolution of the Medicaid Act claim in the plaintiffs’ favor rendered it unnecessary to resolve the Contract Clause claim,” they wrote.
“But, if the relief premised on the Medicaid Act claim is vacated, the plaintiffs must be afforded an opportunity to assert their remaining claim for relief,” the plaintiffs continued. “Given the passage of time, they believe it may be appropriate to assert additional challenges to the defunding statute as well.”
Rokita’s office argued that’s meritless.
Its July 23 reply indicates Planned Parenthood only challenged the law’s application to contracts and grants that were executed prior to the effective date.
Twelve years later, the organization “does not contend” that any agreements predating the law are still in effect, the office noted. And it’s been so long that the claim was basically “abandon(ed).”
Additionally, when negotiating the final judgment, “the parties made clear that it would resolve all claims” minus the issue of attorney’s fees, which came separately.
Even if Planned Parenthood wants to reopen things, it “cannot do so by bootstrapping its request onto the State’s motion,” the office argued. “… Procedurally, a request for affirmative relief must be made by motion, not dropped into an opposition brief.”
Indiana Capital Chronicle is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: info@indianacapitalchronicle.com.