State doesn’t plan appeal of abortion law ruling

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A federal judge’s order blocking a contested abortion law signed this year by Indiana Gov. Mike Pence will not be appealed, The Indiana Lawyer has learned. The decision effectively punts a decision on a possible future appeal to new state office-holders to be elected in November.

District Judge Tanya Walton Pratt in Indianapolis on June 30 granted a preliminary injunction sought by Planned Parenthood of Indiana and Kentucky, blocking House Enrolled Act 1337 from taking effect July 1. The deadline for a notice of appeal of Pratt’s injunction order passed without a notice of appeal filed by the state.

Pratt’s ruling, while subject to appeal, was not a final judgment in the case, but she wrote that her ruling was based on the legal conclusion that Planned Parenthood was likely to succeed on the merits of its argument that the law was unconstitutional.

The law Pratt blocked would have prohibited abortions because of genetic abnormality, race, gender or ancestry of the fetus; mandated disposal of an aborted fetus only through burial or cremation; and required abortion providers to inform patients of the law’s anti-discrimination provisions and what they prohibited.

Proponents of the law characterized it as an anti-discrimination measure providing dignity for the unborn; opponents termed it an unprecedented assault on a woman’s right to abortion recognized by the U.S. Supreme Court since Roe v. Wade.

“After reviewing the case with our clients and discussing the case procedurally with the plaintiffs, the state has no need to pursue an interlocutory appeal at this point since all the state’s legal rights are preserved,” said Bryan Corbin, spokesman for Attorney General Greg Zoeller, in a written statement. “Instead, the case will proceed on the merits to the final judgment stage, with additional briefing before the same U.S. District Court. The parties will work on proposing a joint case management plan setting forth deadlines for future actions in the case. If there were a final judgment in favor of the plaintiffs, then the state would likely appeal that.”

Pence spokeswoman Kara Brooks referred a message seeking comment to the AG’s office.

American Civil Liberties Union of Indiana Legal Director Ken Falk said Planned Parenthood would now move for summary judgment in the case. Briefing alone on that motion will extend beyond the Nov. 8 general election, he said. That means the decision on whether to appeal Pratt’s ruling is likely to be made by whomever voters elect in November as governor and attorney general.

Pence is running for vice president with Republican presidential candidate Donald Trump, while Zoeller opted not to seek another term as AG after losing a Republican primary for a congressional race. Democrat John Gregg and Republican Eric Holcomb are running for governor; Democrat Lorenzo Arredondo and Republican Curtis Hill are the candidates for attorney general.

Pratt’s ruling came the same week the Supreme Court of the United States in a 5-3 decision rolled back a restrictive Texas abortion law. Justices found the Texas law’s increasing regulations on abortion clinics were medically unnecessary and unconstitutionally limited a woman’s right to an abortion.

Since that decision and the striking of HEA 1337, Planned Parenthood of Indiana and Kentucky also sued the state seeking an injunction against a 2016 Indiana abortion law requiring women to have an ultrasound at least 18 hours before an abortion.

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