Indiana Appeals Decision Against Planned Parenthood De-Funding Law

State   |   Steven Ertelt   |   Jun 28, 2011   |   4:21PM   |   Indianapolis, IN

Indiana Attorney General Greg Zoeller today filed notice that the Hoosier State is appealing a preliminary injunction issued Friday by U.S. District Court Judge Tanya Walton Pratt in a lawsuit filed by Planned Parenthood against a law revoking its taxpayer funding.

The injunction blocked enforcement of Indiana’s new law disqualifying abortion businesses from state grants and contracts, including Medicaid. Zoeller is appealing to the U.S. 7th Circuit Court of Appeals.

In his legal papers, Zoeller noted that Indiana is appealing the federal government’s decision not to approve amendments to Indiana’s Medicaid plan that include the new provider qualifications. As with the Planned Parenthood lawsuit, it is likely that this separate administrative proceeding will be appealed later to the U.S. 7th Circuit in Chicago.

“Both the legal challenge and the administrative appeal are headed to the same court – the U.S. 7th Circuit – which is where this dispute between the State and the federal government over what procedures we will allow our tax dollars to indirectly support should be heard,” Zoeller said.

By appealing Judge Pratt’s injunction, Indiana officials seek to have the federal appellate court review the trial court’s decision before any further action is taken on the underlying lawsuit. The injunction Judge Walton Pratt issued Friday would remain in effect in the meantime while the federal appeals court considers the appeal.

The legal papers today only outline the intention of Indiana to appeal and do not set forth legal arguments supporting the appeal. However, Indiana has maintained that Planned Parenthood of Indiana doesn’t satisfy the requirement that the taxpayer funds not fund abortions or abortion services because the taxpayer funds go into a single account Planned Parenthood uses for both family planning and abortions.

“While it remains to be seen who will ultimately prevail on the merits, the court is persuaded” that Planned Parenthood demonstrated a “reasonable likelihood of success” in challenging the law, Pratt wrote in her decision.

“The public interest also tilts in favor of granting an injunction,” Pratt said, citing the threats the Obama administration made to yank billions in federal funding from Indiana because of its decision to not fund the abortion business.

“Denying the injunction could pit the federal government against the state of Indiana in a high-stakes political impasse,” Pratt said. “If dogma trumps pragmatism and neither side budges, Indiana’s most vulnerable citizens could end up paying the price as the collateral damage of a partisan battle.”

Judge Pratt also blocked a portion of the law requiring abortion practitioners to tell women considering an abortion that their unborn child will feel pain as early as 20 weeks into pregnancy. However, she rejected Planned Parenthood’s request that a part of the law be blocked that women be told before an abortion that “human physical life begins when a human ovum is fertilized by a human sperm.”

Indiana Right to Life President and CEO Mike Fichter issued a statement to LifeNews condemning the decision by Judge Pratt blocking key provisions of Indiana law that deny public funding for abortion businesses and require that women be informed about an unborn child’s ability to feel pain.

“We are deeply disappointed that today’s ruling brushes aside the will of the Indiana legislature.  This ruling opens the pipeline for our tax dollars to flow back into the hands of Indiana’s largest abortion provider and denies women seeking abortions the right to know about an unborn child’s ability to feel pain,” Fichter said. “We are confident that Indiana’s right to defund Planned Parenthood and to inform women about the facts of fetal pain will eventually be upheld in the courts, but it is troubling to know that in the meantime, Indiana is being forced to subsidize a business that profits from over 5,500 abortions every year and women are being denied key information they deserve.”

The Planned Parenthood of Indiana abortion business laid off staff and cut office hours for one day because donations failed to make up for the cut in funding after Judge Pratt initially denied the temporary restraining order.

Last week, the Obama administration filed legal papers supporting the lawsuit brought forward by the Planned Parenthood abortion business seeking to challenge the Indiana law revoking its taxpayer funding.

Governor Mitch Daniels signed the law, which would cut off anywhere from $2 million to $3 million the Planned Parenthood abortion business receives in federal funds via the Indiana government through Medicaid. A federal judge held a hearing on the law, (H.B. 1210), which would have the effect of defunding Planned Parenthood and other similar organizations that perform abortions. It states that no state agency may enter into a contract with or make a grant to “any entity that performs abortions or maintains or operates a facility where abortions are performed that involves the expenditure of state funds or federal funds administered by the state.”

Pratt listened to oral arguments in the first hearing following her decision to deny Planned Parenthood’s initial request for an injunction against the law, which also puts several key abortion limits in place. Indiana Solicitor General Thomas Fisher and Ken Falk of the American Civil Liberties Union, which represents Planned Parenthood of Indiana, appeared before Judge Pratt.

The brief followed the Obama administration telling Indiana officials that it can’t implement the new law, with Centers for Medicare and Medicaid Services Administrator Donald Berwick saying the federal Medicaid law stipulates that states can’t exclude providers based on the services they provide. But Marcus Barlow, a spokesman for Indiana’s Family and Social Services Administration, told National Journal Indiana would enforce the law, “The way the law was written, it went into effect the moment the governor signed it. We were just advised by our lawyers that we should continue to enforce Indiana law.”

Berwick rejected the changes to the Medicaid funding Indiana requested and the state has 60 days from June 1 to appeal the decision. Fisher, arguing for the state, told Judge Pratt during the hearing that because the appeal on the Berwick decision is forthcoming that an injunction should not be granted.

In its legal papers, Indiana argues that there is “no record that Planned Parenthood of Indiana makes any effort to either segregate Medicaid reimbursements from other unrestricted revenue sources or to allocate the cost of its various lines of business, whether abortion, family planning, cancer screenings, or other services.”

“This indicates that, while PPIN may not receive Medicaid reimbursements directly related to abortions, the Medicaid reimbursements it does receive are pooled or comingled with other monies it receives and thus help to pay for total operational costs,” the state said, making it so abortions or costs related to abortions are indirectly funded. (View the full document here: Memo in Opposition to Motion for Preliminary Injunction)

In addition, the state argues that the new law serves the public interest in three ways:  the funding qualification provision prevents taxpayer dollars from indirectly funding abortions; it advances the State’s goals of encouraging women to choose childbirth over abortion, and the informed consent requirements ensure that women who choose abortion have all the information necessary to make an informed and voluntary decision.

Three pro-life legal groups have weighed in on the case — including the American Center for Law and Justice, Alliance Defense Fund and Thomas More Society — and they have said the law is constitutional. Planned Parenthood of Indiana in 2008 suspended an employee after a video showed the staffer covering up a girl’s statutory rape. The video was a part of an earlier series of undercover investigations Live Action performed with a UCLA student, Lila Rose, posing as a 13-year old girl who had sexual relations with a 31-year-old man.

On tape, the Planned Parenthood nurse acknowledges her responsibility to report the abuse, but assures the student, Lila Rose, she will not.

“Okay, I didn’t hear the age [of the 31-year-old]. I don’t want to know the age,” she tells Rose.