2-year battle over Indiana abortion clinic highlights ‘politically motivated’ licensing laws: Advocates

Whole Woman's Health initially applied for a license in 2017.

June 20, 2019, 11:31 AM

All eyes have been on Missouri this month as the state's only abortion clinic, a Planned Parenthood in St. Louis, is fighting for a license renewal from the state's Department of Health.

But two states over, in Indiana, a licensing ordeal for an abortion clinic has been going on for nearly two years.

Whole Woman's Health Alliance has been battling to open since August 2017, when it first applied for a state license required for all abortion providers. The application was denied in January 2018, but in the last month, a federal judge ruled it could open without a license.

In the wake of the decision, Whole Woman's Health is working fast to open the clinic and start seeing patients on June 27 -- but their fight with the state it not yet over, with more legal challenges on the way.

The case illustrates a quiet front of the abortion fight in America. While recent bans passed in states like Alabama and Georgia have made headlines, despite not being in effect, advocates say that bureaucratic requirements like those in Indiana -- above and beyond the licensing that doctors and other health care providers already have -- can have the biggest impact on abortion access on the ground.

The advocates say these requirements are not rooted in safety concerns and are merely a political tactic to advance an anti-abortion agenda.

"There was no health concern that required people to [be treated in] a licensed facility," Whole Woman's Health founder and CEO Amy Hagstrom Miller told ABC News. "It was a political strategy that basically ties us up with this sort of administrivia, tons of paperwork and policies and procedures."

Years in the making

The effort to bring Whole Woman's Health to South Bend, a diverse city of 101,000 best known as the home of the University of Notre Dame and the home of presidential candidate Pete Buttigieg, dates back to 2014, when a group of physicians, professors and community activists asked the Texas-based health group to open a clinic.

The clinic, Whole Woman's first in the state, would only provide medication abortions, which involve the provision of two pills, not in-office abortion procedures.

PHOTO: Whole Woman's Health founder Amy Hagstrom Miller speaks to members of the media during a media tour of the Whole Woman's Health clinic in San Antonio, Texas, Feb. 9, 2016.
Whole Woman's Health founder Amy Hagstrom Miller speaks to members of the media during a media tour of the Whole Woman's Health clinic in San Antonio, Texas, Feb. 9, 2016.
Darren Abate/Reuters, FILE

Hagstrom Miller first met with community members in 2015 and applied for a license to open in 2017, after securing a building and lining up a doctor to be the medical director.

Indiana law requires licenses for hospitals, ambulatory outpatient surgical centers, birthing centers and abortion clinics in addition to the licenses doctors and other health care providers already have.

State law around abortion clinics and licenses varies across the nation. While Indiana requires abortion clinics be licensed by the state, former Minnesota Gov. Mark Dayton vetoed bills in 2012 and 2017 that would have required licenses, for instance. According to the Guttmacher Institute, a reproductive rights research organization, 17 states have "onerous" licensing standards comparable to those for ambulatory surgical centers.

In denying Whole Woman's Health a license in January 2018, state health commissioner Kristina Box said the organization "failed to disclose, concealed, or omitted information related to additional clinics" and that it "failed to meet the requirement that the Applicant is of reputable and responsible character."

The "omitted information" may have referred to clinics owned by for-profit Whole Woman's Health limited liability corporations, the South Bend Tribune reported at the time. The nonprofit Whole Woman's Health Alliance was the organization applying for a license, and it has clinics in Virginia and Texas. (Hagstrom Miller's Whole Woman's Health LLC is the management company for both nonprofit and for-profit clinics, but does not own the clinics.)

The Indiana State Department of Health told ABC News it does not comment on pending litigation.

"We've never had a license denied to us, ever, in the history of Whole Woman's Health," Hagstrom Miller said of the 16-year-old organization.

Legal challenges expand

In summer 2018, Whole Woman's Health fought back in a big way: the organization filed a lawsuit challenging dozens of abortion restrictions in Indiana, including its licensing laws for abortion clinics, echoing sweeping lawsuits the organization filed in Texas and Virginia. Each of these cases is ongoing.

"Indiana has enacted abortion restriction on top of abortion restriction, further and further curtailing the constitutional right to an abortion," the lawsuit reads, according to the South Bend Tribune.

"Attorney General Hill will continue to defend the laws of the state of Indiana, including basic licensing of clinics that provide medical procedures such as chemical abortions," Lauren Houck, assistant deputy director of communications for Indiana Attorney General Curtis Hill, told ABC News in a statement. "There is nothing unreasonable or unconstitutional about requiring abortion clinics to be licensed facilities. Regulating facilities that provide abortion-inducing drugs, which curb progesterone and cause uterine contractions, is the least we should be doing to protect the health of mothers."

PHOTO: Protesters participate in a rally against one of the nation's most restrictive bans on abortions on May 19, 2019, in Montgomery, Ala.
Protesters participate in a rally against one of the nation's most restrictive bans on abortions on May 19, 2019, in Montgomery, Ala.
Julie Bennett/Getty Images, FILE

Meanwhile, Whole Woman's Health continued to attempt to get a licensed approved for the South Bend clinic, including going through an administrative judge, but kept getting thwarted by the State Department of Health throughout 2018. They applied for a license for a second time in January 2019.

By the spring, Hagstrom Miller said, "It became really clear to us that they had no intention of issuing us a license."

So in late March, Whole Woman's Health Alliance filed a request in federal court for a preliminary injunction and temporary restraining order regarding the state's licensing requirements ahead of the full case being heard in 2020.

"We can't just sit here with a fully-furnished clinic for another year waiting for that case," Hagstrom Miller said they argued in the request. "We need to be able to open; the licensing standards aren't based in health and safety, they're political in nature."

The state's attorney general, Hill, filed a brief opposing the request, claiming if the clinic could open without a license, the state would be unable to monitor its compliance with state abortion law.

"Indiana's licensing requirement is justified by its interest in protecting fetal life, which is furthered by ensuring that clinics follow proper informed-consent procedures," he wrote in the brief.

Victory for Whole Woman's Health -- for now

In late May, U.S. District Judge Sarah Evans Barker ruled that the clinic can open in South Bend without the license, as reported by the South Bend Tribune. Indiana Attorney General Hill quickly filed an appeal.

But on June 7, 22 months after the initial license application, Barker rejected Hill's appeal, and now, Whole Woman's Health is working swiftly to fill its final staffing positions and begin seeing patients June 27.

They're taking advantage of the preliminary injunction, but the state isn't pleased. Hill appealed Barker's decision to the 7th Circuit Court of Appeals in Chicago.

"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," he said in a statement.

"The whole point of professional licensing regulation is to protect consumers from suffering injury," he added.

That's a point Hagstrom Miller takes issue with -- and one she knows intimately. The Whole Woman's Health v. Hellerstedt 2016 U.S. Supreme Court case set a precedent that abortion laws claiming to have safety benefits for patients must actually have safety benefits for patients, rather than just serve to shutter clinics.

"So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that 'do little or nothing for health, but rather strew impediments to abortion,' Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection," Justice Ruth Bader Ginsburg wrote in her concurring opinion.

Hagstrom Miller said that “outcomes are the same" whether their facilities have licenses or not. "It's just literally cumbersome administrative processes that really allow the states to interrupt your service and to have multiple opportunities to sort of come in and inspect and disrupt," she said.

In the Whole Woman's Health case, the U.S. Supreme Court ruled that a Texas law requiring abortion clinics meet the standards of ambulatory surgical centers (ASCs) was unconstitutional. Missouri law requires abortion clinics be ambulatory surgical centers -- and licensed as such -- which has led to the current issue facing the only remaining clinic in that state.

Over the last 11 years, a series of laws have led to clinic closures in Missouri, leaving just one provider: a Planned Parenthood in St. Louis. Planned Parenthood sued the state over their ASC law after the Whole Woman's Health Supreme Court case, and the case has gone through courts.

Last September, the 8th U.S. Circuit Court of Appeals ruled against Planned Parenthood, allowing the ASC requirement to be in effect, in the face of the Supreme Court's opposite ruling on the same issue.

It's under those conditions that the St. Louis Planned Parenthood applied to renew their license as an abortion providing ASC, but they were initially denied a renewal by state health officials. It is currently remaining open on a preliminary injunction, with another decision to be made by June 21.

PHOTO: Democratic presidential candidate and mayor of South Bend, In., Pete Buttigieg, speaks to a reporter at a pro-choice rally at the Supreme Court on May 21, 2019, in Washington, D.C.
Democratic presidential candidate and mayor of South Bend, In., Pete Buttigieg, speaks to a reporter at a pro-choice rally at the Supreme Court on May 21, 2019, in Washington, D.C.
Tasos Katopodis/Getty Images

The question of licensing abortion clinics is not likely to go away soon, as candidates like Buttigieg discuss their platforms on abortion.

In 2018, the South Bend mayor vetoed a common council rezoning that would have allowed an anti-abortion group to open a location next door to the Whole Woman's Health would-be clinic, saying at the time that it was "one of the hardest decisions that I've ever made in this job."

After Barker's initial ruling that the clinic could open, Buttigieg told local NBC affiliate WNDU, "I'm definitely standing with those who want to provide support for those women. I view the attorney general's actions as politically motivated. I don't think that they will withstand the courts under current case law."

In Hagstrom Miller's eyes, licensing questions -- like in Indiana as well as in Missouri -- are part of anti-abortion lawmakers' continued efforts to chip away at abortion access.

"If you make the licensing scheme and the regulations so difficult, it's only going to shutter clinics, and nobody's going to ever have the commitment to be able to try to open a new clinic -- and thereby you have abortion legal on paper, but completely inaccessible," she said.