By Ann Carey • Catholic News Service • Posted August 28, 2019

SOUTH BEND, Ind. (CNS) — A federal court of appeals issued a narrow opinion that allows a South Bend abortion clinic to continue operating, at least for the time being.

The United States Court of Appeals for the Seventh Circuit in Chicago upheld an injunction Aug. 22 that permits the Whole Woman’s Health Alliance to remain open without a state-required license until a lawsuit on the license is settled.

The case is scheduled for a full hearing in 2020.

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Indiana Attorney General Curtis Hill Jr. had asked to court of appeals to reverse the injunction that allowed the clinic to open in June. The clinic provides medication-induced abortions.

The appeals court also modified an earlier ruling that called into question Indiana’s abortion licensing requirements.

The Indiana Department of Health had denied Whole Women’s Health Alliance the necessary license in 2018, leading clinic administrators to sue the state. The alliance charged that Indiana’s licensing and regulatory requirements for abortion providers were unconstitutional.

“We agree with the district court that the reasons Indiana asserts in support of its handling of the South Bend license are unsupported and outweighed by the substantial burden the state is imposing on women in northern Indiana,” wrote the appeals court.

Jackie Appleman, executive director of St. Joseph County Right to Life, expressed disappointment with the appeals court decision in a statement: “This isn’t about health care. This is about pandering to the abortion lobby, which sees Indiana as a lucrative market to sell abortions to women in crisis.”

However, pro-life advocates found good news from their perspective in the appeals court ruling. While the court allowed the facility to function, it also ruled that, contrary to the district court’s findings, the facility must abide by state licensing and regulations for such a facility.

Further, the appeals court ruled that such state regulations do meet constitutional standards, writing: “the district court’s broad condemnation of Indiana’s licensing scheme runs contrary to Supreme Court precedent.”

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The decision follows a May 31 district court ruling that denied Hill’s request to block the facility from opening and granted the alliance an injunction to open without regulation. Hill then appealed the decision to the court of appeals.

The appeals court found the injunction to be “overbroad” because it dealt with “Indiana’s licensing scheme as a whole” and narrowed the injunction to cover only the alliance’s South Bend facility.

While the three-judge panel of the appeals court upheld Indiana’s right to regulate abortion providers, it also noted “concerns about the state’s handling of the Alliance’s license application,” particularly what the WWHA lawsuit called everchanging requirements. It would be unconstitutional, the court said, for the state to change requirements or throw up hurdles to block access to abortions rather than to legitimately screen providers.

“We therefore order the district court to modify the injunction to instruct Indiana to treat the Alliance’s South Bend facility as though it were provisionally licensed,” the appeals court said. “This respects the state’s interest in regulating medical facilities, while at the same time it allows the Alliance to keep providing medication abortions at its South Bend clinic while the case proceeds.”

The court said its modification of the injunction “will ensure that the state continues to have its normal regulatory power over the clinic, including the power to conduct inspections” under Indiana law.

The appeals court opinion stated that both the alliance and Indiana officials could continue their examination of the state’s handling of the licensing process. The court left open the door for further modification, or even a stay, of the injunction if “further development of the record” finds that the alliance “has failed to respond to reasonable requests for information, as the state contends.”

The Indiana Department of Health is expected to continue examining the records of the alliance’s six affiliated abortion facilities in Texas, Minnesota, Maryland and Virginia, while also considering the guidelines offered in the appeals court’s opinion about proper handling of the licensing process.

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Carey writes for Today’s Catholic, newspaper of the Diocese of Fort Wayne-South Bend.