thomas more society “friend of the court” brief for indiana legislators to defund planned...

8/6/2019 Thomas More Society Friend of the Court Brief for Indiana Legislators To Defund Planned Parenthood

1/26

No. 11-2464

In the United States Court of Appeals

for the Seventh Circuit

____________________________________________________________________________________________________________________________________

Planned Parenthood of Indiana, Inc., et al.,Plaintiffs-Appellees,

vs.

Commissioner of the Indiana State Department of Health, et al.,Defendants-Appellants.

___________________________________________________________________________________________________________________________________

Appeal from the United States District Courtfor the Southern District of Indiana

Civil Action No. 1:11-CV-9630 TWP-TAB(Honorable Tanya Walton Pratt)

____________________________________________________________________________________________________________________________________

BRIEFAMICUS CURIAEOF MEMBERS OF THE INDIANA

GENERAL ASSEMBLY IN SUPPORT OF DEFENDANTS-APPELLANTS

AND IN SUPPORT OF REVERSAL

Paul Benjamin Linton Eric Allan KochSpecial Counsel The Koch Law Firm, P.C.Thomas More Society 520 North Walnut Street921 Keystone Avenue Bloomington, Indiana 47404

Northbrook, Illinois 60062 (812) 337-3120 (tel)(847) 291-3848 (tel)

Thomas BrejchaPresident & Chief CounselThomas More Society29 S. La Salle Street Suite 440Chicago, Illinois 60603(312) 782-1680 (tel)


2/26

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No. 11-2464

Short Caption: Planned Parenthood of Indiana, Inc., et al., vs. Commr of the IndianaState Dept of Health, et al.

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosurestatement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosurestatement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer inthis court, whichever occurs first. Attorneys are required to file an amended statement to reflect any materialchanges in the required information. The text of the statement must also be included in front of the table of contentsof the partys main brief. Counsel is required to complete the entire statement and to use N/A for anyinforamtion that is not applicable if this form is used.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW ORREVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you mustprovide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing item #3):

Counsel represents amici curiae, Members of the Indiana General Assembly, whose names are listed on thefollowing page.

(2) The names of all law firms whose partners or associates have appeared for the party in the case (includingproceedings in the district court or before an administrative agency) or are expected to appear for the party in thiscourt:

Paul Benjamin Linton Eric Allan Koch Thomas BrejchaSpecial Counsel The Koch Law Firm President & Chief CounselThomas More Society 520 North Walnut Street Thomas More Society921 Keystone Avenue Bloomington, Indiana 47404 29 S. La Salle Street Suite 440Northbrook, Illinois 60062 Chicago, Illinois 60603

(3) If the party or amicus is a corporation: N/A

i) identify all its parent corporations, if any; andii) list any publicly held company that owns 10$ or more of the partys or amicus stock

____________________________________________________________________________________________

Attorneys Signature: s/Paul Benjamin Linton Date: August 3, 2011Attorneys Printed Name: Paul Benjamin Linton

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): YES

Address: 921 Keystone AvenueNorthbrook, Illinois 60062

Phone Number: (847) 291-3848 Fax Number: (847) 412-1594E-Mail Address: [email protected]

i


3/26

List ofAmici Curiae

Sen. David Long Rep. Brian BosmaSen. Edward Ed Charbonneau Rep. Donald Don LeheSen. Brandt Hershman Rep. Douglas Doug GutweinSen. Carlin Yoder Rep. Timothy Tim Wesco

Sen. Dennis Kruse Rep. Rebecca KubackiSen. James Jim Banks Rep. William Bill FriendSen. Travis Holdman Rep. Richard Rich McClainSen. James Jim Buck Rep. Jeffrey Jeff ThompsonSen. Constance Connie Lawson Rep. Kevin MahanSen. Doug Eckerty Rep. Paul Eric Turner Sen. Michael Mike Delph Rep. Billy Joe Bill DavisSen. Scott Schneider Rep. Heath VanNatter Sen. James Jim Merritt, Jr. Rep. Gregory SteurwaldSen. Patricia Pat Miller Rep. James Jim BairdSen. Richard Michael Mike Young Rep. Bruce BordersSen. Richard Bray Rep. Robert Bob HeatonSen. Greg Walker Rep. Timothy Tim NeeseSen. Jean Leising Rep. Wesley Wes Culver Sen. Johnny Nugent Rep. Daniel Dan LeonardSen. Brent Steele Rep. Richard Dick DodgeSen. James Jim Smith, Jr. Rep. David YardeSen. James Jim Tomes Rep. Robert Bob Cherry

Rep. Thomas Tom KnollmanRep. Charles Woody BurtonRep. Milo SmithRep. Matthew Matt UbelhorRep. Mark MessmerRep. Eric KochRep. Randall Randy FryeRep. Judson Jud McMillanRep. David Dave CheathamRep. Rhonda RhoadsRep. Rep. Edward Ed Clere

Rep. Steven Steve DavissonRep. Susan Sue EllspermannRep. Ronald Ron BaconRep. Matthew Matt LehmenRep. Cynthia Cindy NoeRep. Michael Mike SpeedyRep. Robert Bob BehningRep. David Dave Frizzell

ii


4/26













____________________________________________________________________________________________

Attorneys Signature: s/Eric Allan Koch Date: August 3, 2011Attorneys Printed Name: Eric Allan Koch

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): NO

Address: 520 North Walnut StreetBloomington, Indiana 47404


iii


5/26

List ofAmici Curiae





iv


6/26













____________________________________________________________________________________________

Attorneys Signature: s/Thomas Brejcha Date: August 3, 2011Attorneys Printed Name: Thomas Brejcha

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): NO

Address: 29 S. La Salle Street Suite 440Chicago, Illinois 60603


v


7/26

List ofAmici Curiae





vi


8/26

Table of Contents

Corporate Disclosure Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Interest of theAmici.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT:

THE PUBLIC FUNDING RESTRICTIONS SET FORTH IN INDIANA CODE

5-22-17-5.5 DO NOT IMPOSE AN UNCONSTITUTIONAL CONDITION ONTHE ASSERTED RIGHT OF PHYSICIANS TO PERFORM ABORTIONS. . . . 3

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Appendix

Certificate of Compliance

Certificate of Service

vii


9/26

Table of Authorities

Cases

F.C.C. v. League of Women Voters, 468 U.S. 364 (1984). . . . . . . . . . . . . . . . . . . . 9

Harris v. McRae, 448 U.S. 297 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Lambert v. Yellowley, 272 U.S. 581 (1926). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Libertarian Party of Indiana v. Packard, 741 F.2d 981 (7th Cir. 1984). . . . . . . . . 6

Manbourne,Inc. v. Conrad, 796 F.2d 884 (7th Cir. 1986). . . . . . . . . . . . . . . . . . . 4

Perry v. Sindermann, 408 U.S. 593 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Planned Parenthood v. Casey, 505 U.S. 833 (1992). . . . . . . . . . . . . . . . . . . . . . 7, 8

Planned Parenthood of Central & Northern Arizona v. Arizona,

718 F.2d 938 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8-9

Planned Parenthood of Central Texas v. Sanchez,

280 F. Supp.2d 590 (W.D. Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Planned Parenthood of Houston and Southeast Texas v. Sanchez,403 F.3d 324 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Planned Parenthood of Houston and Southeast Texas v. Sanchez,480 F.3d 734 (5th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v. Dempsey,

167 F.3d 458 (8th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Regan v. Taxation With Representation, 461 U.S. 540 (1983).. . . . . . . . . . . . . . . . 9

Rust v. Sullivan, 500 U.S. 173 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

viii


10/26

Shapiro v. Thompson, 394 U.S. 618 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Singleton v. Wulff, 428 U.S. 106 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Speiser v. Randall, 357 U.S. 513 (1958).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Webster v. Reproductive Health Services, 492 U.S. 490 (1989). . . . . . . . . . . . . . 8

Statutes

U.S.CONST., art. I, 10, cl. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4U.S.CONST., AMEND. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9

U.S.CONST., AMEND. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

42 U.S.C. 247c et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. 1396a(a)(23). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IND.CODE 5-22-17-5.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

IND.CODE 5-22-17-5.5(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IND.CODE 5-22-17-5.5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IND.CODE 5-22-17-5.5(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IND.CODE 5-22-17-5.5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IND.CODE 16-34-2-1.1(a)(1)(E).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IND.CODE 16-34-2-1.1(a)(1)(G). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ix


11/26

Interest of theAmici

Amici curiae are more than sixty members of the Indiana General Assembly,

both senators and representatives, all of whom voted in favor of House Enrolled

Act 1210, which is the subject of this appeal. As members of the General1

Assembly, amici have a vital, obvious and ongoing interest in the constitutionality

of legislation they enact. In support of that interest, amici file their brief asking

this Honorable Court to reverse and vacate that portion of the district courts order

preliminarily enjoining enforcement of 5-22-17-5.5 of the Indiana Code.

This brief is submitted pursuant to Rule 29(a) of the Federal Rules of

Appellate Procedure with the consent of all of the parties to the appeal. No2

partys counsel authored the brief in whole or in part; no party or partys counsel

contributed money that was intended to fund preparing or submitting the brief; and

no person other than the amici curiae or its counsel contributed money that

was intended to fund preparing or submitting the brief.

The names and legislative districts of the amici are listed in the appendix1

to this brief.

In addition to the brief filed in this Court with the consent of all of the2

parties, the district court granted the motion ofamici for leave to file a

memorandum of law in opposition to plaintiffs motion for a preliminaryinjunction. Doc. No. 52.

1


12/26

Statement of the Case

Plaintiffs brought an action against defendants seeking declaratory and

injunctive relief against enforcement of certain provisions of House Enrolled Act

1210. Plaintiffs asked the district court to enjoin provisions of the law that defund

entities that perform abortions or maintain or operate facilities where abortions are

performed, IND.CODE 5-22-17-5.5, and that require a pregnant woman seeking

an abortion to be informed that human physical life begins when a human ovum

is fertilized by a human sperm,IND.CODE 16-34-2-1.1(a)(1)(E), and that

objective scientific information shows that a fetus can feel pain at or before (20)

weeks of postfertilization age. IND.CODE 16-34-2-1.1(a)(1)(G).

The district court granted plaintiffs motion with respect to the defunding

provision, 5-22-17-5.5; denied the motion with respect to the requirement that a

pregnant woman seeking an abortion be told that human physical life begins

when a human ovum is fertilized by a human sperm, 16-34-2-1.1(a)(1)(E); and

granted the motion, as applied to plaintiffs only, with respect to the requirement

that a pregnant woman seeking an abortion be told that objective scientific

information shows that a fetus can feel pain at or before (20) weeks of

postfertilization age, 16-34-2-1.1(a)(1)(G). Doc. No. 77 at 43. Defendants

have appealed the preliminary injunction as it pertains to the defunding provision.

2


13/26

ARGUMENT

THE PUBLIC FUNDING RESTRICTIONS SET FORTH IN INDIANA

CODE 5-22-17-5.5 DO NOT IMPOSE AN UNCONSTITUTIONAL

CONDITION ON THE ASSERTED RIGHT OF PHYSICIANS TOPERFORM ABORTIONS.

Except for licensed hospitals and ambulatory surgical centers,see IND.

CODE 5-22-17-5.5(a), an agency of the State of Indiana may not 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. IND.CODE 5-22-17-

5.5(b). Moreover, any appropriation by the State to pay for a contract with or

grant made to any entity that performs abortions or maintains or operates a facility

where abortions are performed is canceled, and the money appropriated is not

available for payment of any contract with or grant made to the entity that

performs abortions or maintains or operates a facility where abortions are

performed. IND.CODE 5-22-17-5.5(c). Finally, [f]or any contract with or

grant made to an entity that performs abortions or maintains or operates a facility

where abortions are performed covered under subsection (b), the budget agency

shall make a determination that funds are not available, and the contract or grant

shall be terminated under section 5 of this chapter. IND.CODE 5-22-17-5.5(d).

In granting, in part, the motion for a preliminary injunction, the district

3


14/26

court found that plaintiffs had established a reasonable likelihood of success on

the merits of their arguments that, with respect to funds provided through the

federal-state Medicaid program (Title XIX), 5-22-17-5.5 violates the freedom

of choice provision of the Medicaid statute, 42 U.S.C. 1396a(a)(23), and that,3

with respect to grants made under the Disease Intervention Services program

authorized by 42 U.S.C. 247c et seq., 5-22-17-5.5 is preempted by federal law.

Doc. No. 77 at 6. Given the nature of its ruling, the court did not address

plaintiffs arguments that the restrictions on Medicaid funding set forth in 5-22-

17-5.5 are preempted by federal law; that 5-22-17-5.5 violates the Contract

Clause (art. I, 10, cl. 1); and that 5-22-17-5.5 imposes an unconstitutional

condition on plaintiffs receipt of state and federal funds. Id. In this brief, amici

address whether there is a reasonable likelihood of plaintiffs prevailing on their

unconstitutional condition argument. See Manbourne,Inc. v. Conrad, 796 F.2d

884, 887 (7th Cir. 1986) (identifying preliminary injunction factors).4

Under 1396a(a)(23), a state Medicaid plan must provide that any3

individual eligible for medical assistance . . . may obtain such assistance from anyinstitution, agency, community pharmacy, or person, qualified to perform the

service or services required . . . who undertakes to provide him such services . . . .

With respect to all other matters not discussed herein (e.g., whether4

plaintiffs have stated a cause of action, whether the funding restrictions conflictwith or are otherwise preempted by federal law and whether plaintiffs have

satisfied the other requirements for issuance of a preliminary injunction), amici

generally adopt defendants opening brief.

4


15/26

In their complaint (Doc. No. 1 at 11, 53) and in their memorandum of law

in support of their motion for a preliminary injunction (Doc. No. 11 at 22-26),

plaintiffs asserted that in forcing abortion providers to choose between

performing abortions or receiving the non-abortion related funding, the statute

imposes an unconstitutional condition and is invalid. Amici respond that abortion

providers have no constitutionally recognized Fourteenth Amendment right to

perform abortions, and that if such a right exists, it is derivative of the rights of

their pregnant women patients. Plaintiffs, however, have neither alleged nor

proved that the funding restrictions in 5-22-17-5.5 would interfere with the

ability of pregnant women to obtain abortions. Accordingly, because the

constitutional rights of women seeking abortions have not been violated, neither

has the asserted right of their providers.

The Supreme Court has held that [n]either Congress nor the states may

condition the granting of government funds on the forfeiture of constitutional

rights. Planned Parenthood of Mid-Missouri & Eastern Kansas, Inc. v.

Dempsey, 167 F.3d 458, 461 (8th Cir. 1999) (citingPerry v. Sindermann, 408 U.S.

593, 597 (1972) (free speech); Shapiro v. Thompson, 394 U.S. 618, 634 (1969)

(right to travel), and Speiser v. Randall, 357 U.S. 513, 518-19 (1958) (free

speech). The rationale underlying the unconstitutional condition doctrine is

5


16/26

premised on the notion that what a government cannot compel it should not be

able to coerce. Libertarian Party of Indiana v. Packard, 741 F.2d 981, 988 (7th

Cir. 1984). [I]f the government could deny a benefit to a person because of his

constitutionally protected speech or associations, his exercise of those freedoms

would in effect be penalized and inhibited. This would allow the government to

produce a result which [it] could not command directly. Perry, 408 U.S. at 597

(citation and internal quotation marks omitted). [F]unding classifications that

interfere with the exercise of constitutional rights must be necessary to promote a

compellinggovernmental purpose. Dempsey, 167 F.3d at 461 (quoting

Thompson, 394 U.S. at 634) (emphasis in original).

Plaintiffs unconstitutional condition argument necessarily presupposes

that physicians (and possibly other health care professionals) have a constitutional

right to perform abortions. But as plaintiffs themselves admitted below (Doc. No.5

11 at 23), the Supreme Court has never expressly held that abortion providers have

such a right. See Singleton v. Wulff, 428 U.S. 106, 113 (1976) (plurality)

That distinguishes this case from the unconstitutional condition5

argument raised inRust v. Sullivan, 500 U.S. 173, 192-200 (1991), which wasbased on the First Amendment free speech rights of Title X grantees, and a similarargument advanced inPlanned Parenthood of Central & Northern Arizona v.

Arizona, 718 F.2d 938, 942-46 (9th Cir. 1983), both cited by plaintiffs

(Memorandum at 25-26 & n. 12). Section 5-22-17-5.5 does not implicate the freespeech rights of abortion providers and plaintiffs have not contended otherwise.

6


17/26

(declining to decide whether a physician has a constitutional right[] to practice

medicine). [T]he practice of medicine, including the performance of6

abortions, is subject to reasonable licensing and regulation by the State.

Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992) (plurality). See also

Lambert v. Yellowley, 272 U.S. 581, 596 (1926) (there is no right to practice

medicine which is not subordinate to the police power of the States).

Even assuming, however, that physicians (or other health care

professionals) have a constitutional right to perform abortions, that right is not

independent of the pregnant womans rights, but is derived from and dependent

upon her right to obtain an abortion. See Casey, 505 U.S. at 884 ([w]hatever

constitutional status the doctor-patient relation may have as a general matter, in

the present context it is derivative of the womans position). See also Harris v.

McRae, 448 U.S. 297, 318 n. 21 (1980) (the constitutional entitlement of a

physician who administers medical care to an indigent woman is no broader than

that of his patient);Dempsey, 167 F.3d at 464 ([a]ny constitutional right of

clinics to provide abortion services . . . is derived directly from womens

The plurality in Singleton concluded that it generally is appropriate to6

allow a physician to assert the rights of women patients as against governmentalinterference with the abortion decision . . . . 428 U.S. at 118. Conferring third-

party standing on physicians to represent the constitutional rights of their patients,

however, is analytically distinct from whether the physicians themselves have aconstitutional right to perform abortions.

7


18/26

constitutional right to choose abortion) (citing Casey). Plaintiffs, however, have

neither alleged nor proved that 5-22-17-5.5 burdens or otherwise interferes with

the constitutional right of pregnant women to obtain abortions. Because

prohibiting recipients of state funds or federal funds administered by the State

from performing abortions would have at most an extremely attenuated effect

upon the availability of abortion services,Dempsey, 167 F.3d at 465, the asserted

right of abortion providers toperform abortions, which is derivative of the

womans right to obtain an abortion, is not violated either.

None of the authorities cited by plaintiffs below supports their

unconstitutional condition argument. See Doc. No. 11 (Memorandum) at 23-26.

The difference between restrictions placed upon abortionproviders and those

placed upon abortion patients distinguishes the statute at issue here from the

hypothetical one discussed inHarris v. McRae, 448 U.S. at 317 n. 19 ([a]

substantial constitutional question would arise if Congress had attempted to

withhold all Medicaid benefits from an otherwise eligible candidate simply

because the candidate exercised her constitutionally protected freedom to

terminate her pregnancy by abortion). In Planned Parenthood of Central &7

It is also distinct from the hypothetical raised in Webster v. Reproductive7

Health Services, 492 U.S. 490 (1989). In rejecting a challenge to a state law that

prohibited abortions from being performed in publicly owned and operatedfacilities, the Court expressed the view that [t]his case might . . . be different if

8


19/26

Northern Arizona v. Arizona, the Ninth Circuit assumed that Planned Parenthood

had a constitutional right to engage in abortion, 718 F.2d at 944, without

engaging in any analysis of the issue and without recognizing that any such right,

if it exists, is derivative of the pregnant womans right to obtain an abortion. In

Dempsey, the Eighth Circuit held that to interpret state law to prohibit abortion

providers from receiving state family planning funds without allowing them to

establish affiliates that would be eligible for such funds would cross the line

established inRust v. Sullivan,F.C.C. v. League of Women Voters, 468 U.S. 364,

400 (1984), andRegan v. Taxation With Representation, 461 U.S. 540 (1983). 167

F.3d at 463. All three cases, however, involved constitutionally protected free8

speech, including abortion advocacy (Rust), editorializing (League of Women

Voters) and lobbying (Regan), which 5-22-17-5.5 does not restrict. To the

extent thatDempsey suggests that abortion providers have a constitutional right to

the State barred doctors who performed abortions in private facilities from the useof public facilities for any purpose. Id. at 510 n. 8. Section 5-22-17-5.5, ofcourse, does no such thing. Moreover, nothing in 5-22-17-5.5 disqualifies fromstate and federal programs any entity that employs or contracts with a physicianwho, outside the scope of his employment or contract, performs abortions, so long

as the entity itselfdoes not perform abortions or maintain or operate a facilitywhere abortions are performed.

Amici, it should be emphasized, do notargue that 5-22-17-5.5 does not8

permit the creation of affiliates that would qualify for state and federal funds

administered by the State of Indiana, but only that such affiliation is not necessaryin order to uphold the statute.

9


20/26

perform abortions, it cited no authority in support of that proposition.

Finally, plaintiffs citedPlanned Parenthood of Central Texas v. Sanchez,

280 F. Supp.2d 590, 608 (W.D. Tex. 2003), which held, inter alia, that abortion

providers have some constitutionally-protected right, derived from their patients

rights, to perform the services that are necessary to enable women to exercise their

own constitutional rights. Because the appropriation rider at issue in Sanchez

withholds funding from the Plaintiffs because they engage in a constitutionally

protected activity, it creates an unconstitutional condition. Id. On appeal, the

district courts judgment was remanded with directions. Planned Parenthood of9

Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir. 2005). The

court of appeals determined that the appropriation rider did not foreclose the

creation of affiliates which, depending upon how they were structured, could

largely obviate the preemption issue that had been raised and decided adversely to

the State in the lower court. Id. at 335-43. Although the Fifth Circuit did not

address the merits of the district courts unconstitutional condition analysis in

remanding the case for further proceedings, in a later appeal from the denial of

attorney fees the court of appeals noted that [b]y remanding the entire case to the

The Fifth Circuits opinionholding that the availability of an affiliation9

option was critical to any decision upholding the rider against a preemption

challengewas limited to Title X, 403 F.3d at 338 n. 68, which, as plaintiffsconceded below (Memorandum at 7), is not at issue here.

10


21/26

district court with instructions to dissolve the injunction, . . . we implicitly rejected

that claim as well. Planned Parenthood of Houston and Southeast Texas v.

Sanchez, 480 F.3d 734, 742 (5th Cir. 2007). In view of this clarification,

plaintiffs reliance on the district courts opinion in Sanchezis misplaced. The

Fifth Circuits opinion in Sanchezsupports the constitutionality of 5-22-17-5.5.

In sum, plaintiffs have failed to demonstrate that abortion providers have a

constitutional right to perform abortions, much less one that is independent of the

constitutional rights of pregnant women to obtain abortions. Assuming that there

is a right toperform abortions, it necessarily derives from the rights of women to

obtain abortions. Accordingly, if requiring abortion providers to choose between

performing abortions or receiving the non-abortion related funding, Complaint at

11, 53, would have no effect on the availability of abortion services (and

plaintiffs have not contended otherwise), then it cannot be said that 5-22-17-5.5

imposes an unconstitutional condition on abortion providers. Plaintiffs have not

shown that they have a reasonable likelihood of success at trial with respect to

their unconstitutional condition argument. And, for the reasons set forth in the

defendants opening brief, plaintiffs have not shown that they are otherwise

entitled to a preliminary injunction. Accordingly, the district courts order

enjoining enforcement of 5-22-17-5.5 should be reversed and vacated.

11


22/26

Conclusion

For the foregoing reasons, amici curiae, members of the Indiana General

Assembly, respectfully request that this Honorable Court reverse and vacate that

portion of the district courts preliminary injunction enjoining enforcement of

Indiana Code 5-22-17-5.5.

Respectfully submitted,

s/Paul Benjamin LintonPaul Benjamin Linton Eric Allan KochSpecial Counsel The Koch Law Firm, P.C.Thomas More Society 520 North Walnut Street921 Keystone Avenue Bloomington, Indiana 47404

Northbrook, Illinois 60062 (812) 337-3120 (tel)(847) 291-3848 (tel)

Thomas Brejcha

President & Chief CounselThomas More Society29 S. La Salle Street Suite 440Chicago, Illinois 60603(312) 782-1680 (tel)

12


23/26

Appendix

List ofAmici Curiae

Senate

Sen. David Long 16 Districtth

PresidentPro Tem

Sen. Edward Ed Charbonneau 5 Districtth

Sen. Brandt Hershman 7 Districtth

Sen. Carlin Yoder 12 Districtth

Sen. Dennis Kruse 14 Districtth

Sen. James Jim Banks 17 Districtth

Sen. Travis Holdman 19 Districtth

Sen. James Jim Buck 21 Districtst

Sen. Constance Connie Lawson 24 Districtth

Sen. Doug Eckerty 26 Districtth

Sen. Michael Mike Delph 29 Districtth

Sen. Scott Schneider 30 Districtth

Sen. James Jim Merritt, Jr. 31 Districtst

Sen. Patricia Pat Miller 32 Districtnd

Sen. Richard Michael Mike Young 35 Districtth

Sen. Richard Bray 37 Districtth

Sen. Greg Walker 41 DistrictstSen. Jean Leising 42 Districtnd

Sen. Johnny Nugent 43 Districtrd

Sen. Brent Steele 44 Districtth

Sen. James Jim Smith, Jr. 45 Districtth

Sen. James Jim Tomes 49 Districtth

House of Representatives

Rep. Brian Bosma 88 Districtth

Speaker

Rep. Donald Don Lehe 15 Districtth

Rep. Douglas Doug Gutwein 16 Districtth

Rep. Timothy Tim Wesco 21 Districtst

Rep. Rebecca Kubacki 22 Districtnd

(list continued on next page)


24/26

House of Representatives(continued from previous page)

Rep. William Bill Friend 23 Districtrd

Rep. Richard Rich McClain 24 District

th

Rep. Jeffrey Jeff Thompson 28 Districtth

Rep. Kevin Mahan 31 Districtst

Rep. Paul Eric Turner 32 Districtnd

Rep. Billy Joe Bill Davis 33 Districtrd

Rep. Heath VanNatter 38 Districtth

Rep. Gregory Steurwald 40 Districtth

Rep. James Jim Baird 44 Districtth

Rep. Bruce Borders 45 Districtth

Rep. Robert Bob Heaton 46 Districtth

Rep. Timothy Tim Neese 48 Districtth

Rep. Wesley Wes Culver 49 Districtth

Rep. Daniel Dan Leonard 50 Districtth

Rep. Richard Dick Dodge 51 Districtst

Rep. David Yarde 52 Districtnd

Rep. Robert Bob Cherry 53 Districtrd

Rep. Thomas Tom Knollman 55 Districtth

Rep. Charles Woody Burton 58 Districtth

Rep. Milo Smith 59 Districtth

Rep. Matthew Matt Ubelhor 62 DistrictndRep. Mark Messmer 63 Districtrd

Rep. Eric Koch 65 Districtth

Rep. Randall Randy Frye 67th District

Rep. Judson Jud McMillin 68 Districtth

Rep. David Dave Cheatham 69 Districtth

Rep. Rhonda Rhoads 70 Districtth

Rep. Edward Ed Clere 72 Districtnd

Rep. Steven Steve Davisson 73 Districtrd

Rep. Susan Sue Ellspermann 74 Districtth

Rep. Ronald Ron Bacon 75 Districtth

Rep. Matthew Matt Lehmen 79 Districtth

Rep. Cynthia Cindy Noe 87 Districtth

Rep. Michael Mike Speedy 90 Districtth

Rep. Robert Bob Behning 91 Districtst

Rep. David Dave Frizzell 93 Districtrd


25/26

Certificate of Compliance with Rule 32(a)

This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 2,793 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6) because this brief

has been prepared in a proportionately spaced typeface using Word Perfect X5

word processing software in 14-point Time New Roman font.

s/Paul Benjamin LintonPaul Benjamin LintonCounsel for theAmici

August 3, 2011


26/26

United States Court of Appealsfor the Seventh Circuit

Case No. 11-2464

Certificate of Service

When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing brief with the Clerk of theCourt for the United States Court of Appeals for the Seventh Circuit by using theAppellate CM/ECF system on August 3, 2011.

Participants in the case who are registered CM/ECF users will be served by theCM/ECF system.

I further certify that some of the participants in the case are not CM/ECF users. Iserved three copies of the foregoing brief by the United States Mail, first class

postage prepaid, on the following CM/ECF non-participants, on August 2, 2011:

Roger K. Evans Talcott Camp

Planned Parenthood Federation of America American Civil Liberties UnionLegal Action for Reproductive Rights 125 Broad Street434 W. 33 Street New York, New York 10004rd

New York, New York 10001

Signature (use s/ format): s/Paul Benjamin Linton

Paul Benjamin Linton

thomas more society “friend of the court” brief for indiana legislators to defund planned...

Documents