Thomas More Society "Friend of The Court" Brief For Indiana Legislators To Defund Planned Parenthood

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 Court for the Southern District of Indiana Civil Action No. 1:11-CV-9630 TWP-TAB (Honorable Tanya Walton Pratt) __________________________________________________________________ __________________________________________________________________ BRIEF AMICUS CURIAE OF MEMBERS OF THE INDIANA GENERAL ASSEMBLY IN SUPPORT OF DEFENDANTS-APPELLANTS AND IN SUPPORT OF REVERSAL
Paul Benjamin Linton Special Counsel Thomas More Society 921 Keystone Avenue Northbrook, Illinois 60062 (847) 291-3848 (tel) Thomas Brejcha President & Chief Counsel Thomas More Society 29 S. La Salle Street Suite 440 Chicago, Illinois 60603 (312) 782-1680 (tel)
Eric Allan Koch The Koch Law Firm, P.C. 520 North Walnut Street Bloomington, Indiana 47404 (812) 337-3120 (tel)
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No. Short Caption: 11-2464 Planned Parenthood of Indiana, Inc., et al., vs. Commr of the Indiana State Dept of Health, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement 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 disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the partys main brief. Counsel is required to complete the entire statement and to use N/A for any inforamtion that is not applicable if this form is used. [ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED 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 must provide 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 the following page. (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Paul Benjamin Linton Special Counsel Thomas More Society 921 Keystone Avenue Northbrook, Illinois 60062 Eric Allan Koch The Koch Law Firm 520 North Walnut Street Bloomington, Indiana 47404 N/A Thomas Brejcha President & Chief Counsel Thomas More Society 29 S. La Salle Street Suite 440 Chicago, Illinois 60603
(3) If the party or amicus is a corporation:
i) identify all its parent corporations, if any; and ii) list any publicly held company that owns 10$ or more of the partys or amicus stock ____________________________________________________________________________________________ Attorneys Signature: s/Paul Benjamin Linton Attorneys Printed Name: Paul Benjamin Linton Date: August 3, 2011 YES
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): Address: 921 Keystone Avenue Northbrook, Illinois 60062 Phone Number: (847) 291-3848 Fax Number: E-Mail Address: PBLCONLAW@AOL.COM
(847) 412-1594
List of Amici Curiae Sen. David Long Sen. Edward Ed Charbonneau Sen. Brandt Hershman Sen. Carlin Yoder Sen. Dennis Kruse Sen. James Jim Banks Sen. Travis Holdman Sen. James Jim Buck Sen. Constance Connie Lawson Sen. Doug Eckerty Sen. Michael Mike Delph Sen. Scott Schneider Sen. James Jim Merritt, Jr. Sen. Patricia Pat Miller Sen. Richard Michael Mike Young Sen. Richard Bray Sen. Greg Walker Sen. Jean Leising Sen. Johnny Nugent Sen. Brent Steele Sen. James Jim Smith, Jr. Sen. James Jim Tomes Rep. Brian Bosma Rep. Donald Don Lehe Rep. Douglas Doug Gutwein Rep. Timothy Tim Wesco Rep. Rebecca Kubacki Rep. William Bill Friend Rep. Richard Rich McClain Rep. Jeffrey Jeff Thompson Rep. Kevin Mahan Rep. Paul Eric Turner Rep. Billy Joe Bill Davis Rep. Heath VanNatter Rep. Gregory Steurwald Rep. James Jim Baird Rep. Bruce Borders Rep. Robert Bob Heaton Rep. Timothy Tim Neese Rep. Wesley Wes Culver Rep. Daniel Dan Leonard Rep. Richard Dick Dodge Rep. David Yarde Rep. Robert Bob Cherry Rep. Thomas Tom Knollman Rep. Charles Woody Burton Rep. Milo Smith Rep. Matthew Matt Ubelhor Rep. Mark Messmer Rep. Eric Koch Rep. Randall Randy Frye Rep. Judson Jud McMillan Rep. David Dave Cheatham Rep. Rhonda Rhoads Rep. Rep. Edward Ed Clere Rep. Steven Steve Davisson Rep. Susan Sue Ellspermann Rep. Ronald Ron Bacon Rep. Matthew Matt Lehmen Rep. Cynthia Cindy Noe Rep. Michael Mike Speedy Rep. Robert Bob Behning Rep. David Dave Frizzell
ii

i) identify all its parent corporations, if any; and ii) list any publicly held company that owns 10$ or more of the partys or amicus stock ____________________________________________________________________________________________ Attorneys Signature: s/Eric Allan Koch Attorneys Printed Name: Eric Allan Koch Date: August 3, 2011 NO
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): Address: 520 North Walnut Street Bloomington, Indiana 47404 Phone Number: (812) 337-3120 Fax Number: E-Mail Address: eric@thekochlawfirm.com
(812) 330-4305
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i) identify all its parent corporations, if any; and ii) list any publicly held company that owns 10$ or more of the partys or amicus stock ____________________________________________________________________________________________ Attorneys Signature: s/Thomas Brejcha Attorneys Printed Name: Thomas Brejcha Date: August 3, 2011 NO
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d): Address: 29 S. La Salle Street Suite 440 Chicago, Illinois 60603 Phone Number: (312) 782-1680 Fax Number: E-Mail Address: tbrejcha@thomasmoresociety.org
(312) 782-1887
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Table of Contents
Corporate Disclosure Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii Interest of the Amici.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 ON THE ASSERTED RIGHT OF PHYSICIANS TO PERFORM ABORTIONS. . . . 3 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Appendix Certificate of Compliance Certificate of Service
vii
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
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 U.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
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Interest of the Amici 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.1 As members of the General 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.2 No 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 appendix to this brief. In addition to the brief filed in this Court with the consent of all of the parties, the district court granted the motion of amici for leave to file a memorandum of law in opposition to plaintiffs motion for a preliminary injunction. Doc. No. 52. 1
2
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.
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 TO PERFORM 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 5-22-175.5(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
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),3 and that, 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 5-2217-5.5 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 any individual eligible for medical assistance . . . may obtain such assistance from any institution, 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., whether plaintiffs have stated a cause of action, whether the funding restrictions conflict with 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
4
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) (citing Perry 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
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 compelling governmental 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.5 But as plaintiffs themselves admitted below (Doc. No. 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 condition argument raised in Rust v. Sullivan, 500 U.S. 173, 192-200 (1991), which was based on the First Amendment free speech rights of Title X grantees, and a similar argument advanced in Planned 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 free speech rights of abortion providers and plaintiffs have not contended otherwise. 6
(declining to decide whether a physician has a constitutional right[] to practice medicine).6 [T]he practice of medicine, including the performance of 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 to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision . . . . 428 U.S. at 118. Conferring thirdparty standing on physicians to represent the constitutional rights of their patients, however, is analytically distinct from whether the physicians themselves have a constitutional right to perform abortions. 7
6
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 to perform 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 abortion providers and those placed upon abortion patients distinguishes the statute at issue here from the hypothetical one discussed in Harris 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).7 In Planned Parenthood of Central & It is also distinct from the hypothetical raised in Webster v. Reproductive 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 operated facilities, the Court expressed the view that [t]his case might . . . be different if 8
7
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 in Rust v. Sullivan, F.C.C. v. League of Women Voters, 468 U.S. 364, 400 (1984), and Regan v. Taxation With Representation, 461 U.S. 540 (1983). 167 F.3d at 463.8 All three cases, however, involved constitutionally protected free 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 that Dempsey suggests that abortion providers have a constitutional right to
the State barred doctors who performed abortions in private facilities from the use of public facilities for any purpose. Id. at 510 n. 8. Section 5-22-17-5.5, of course, does no such thing. Moreover, nothing in 5-22-17-5.5 disqualifies from state and federal programs any entity that employs or contracts with a physician who, outside the scope of his employment or contract, performs abortions, so long as the entity itself does not perform abortions or maintain or operate a facility where abortions are performed. Amici, it should be emphasized, do not argue that 5-22-17-5.5 does not 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 necessary in order to uphold the statute. 9
8
perform abortions, it cited no authority in support of that proposition. Finally, plaintiffs cited Planned 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.9 Planned Parenthood of 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 affiliation 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 plaintiffs conceded below (Memorandum at 7), is not at issue here. 10
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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 Sanchez is misplaced. The Fifth Circuits opinion in Sanchez supports 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 to perform 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.
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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 Linton Paul Benjamin Linton Special Counsel Thomas More Society 921 Keystone Avenue Northbrook, Illinois 60062 (847) 291-3848 (tel) Thomas Brejcha President & Chief Counsel Thomas More Society 29 S. La Salle Street Suite 440 Chicago, Illinois 60603 (312) 782-1680 (tel)
Eric Allan Koch The Koch Law Firm, P.C. 520 North Walnut Street Bloomington, Indiana 47404 (812) 337-3120 (tel)
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Appendix List of Amici Curiae Senate Sen. David Long President Pro Tem Sen. Edward Ed Charbonneau Sen. Brandt Hershman Sen. Carlin Yoder Sen. Dennis Kruse Sen. James Jim Banks Sen. Travis Holdman Sen. James Jim Buck Sen. Constance Connie Lawson Sen. Doug Eckerty Sen. Michael Mike Delph Sen. Scott Schneider Sen. James Jim Merritt, Jr. Sen. Patricia Pat Miller Sen. Richard Michael Mike Young Sen. Richard Bray Sen. Greg Walker Sen. Jean Leising Sen. Johnny Nugent Sen. Brent Steele Sen. James Jim Smith, Jr. Sen. James Jim Tomes House of Representatives Rep. Brian Bosma Speaker Rep. Donald Don Lehe Rep. Douglas Doug Gutwein Rep. Timothy Tim Wesco Rep. Rebecca Kubacki (list continued on next page) 88th District 15th District 16th District 21st District 22nd District 16th District 5th District 7th District 12th District 14th District 17th District 19th District 21st District 24th District 26th District 29th District 30th District 31st District 32nd District 35th District 37th District 41st District 42nd District 43rd District 44th District 45th District 49th District
House of Representatives (continued from previous page) Rep. William Bill Friend Rep. Richard Rich McClain Rep. Jeffrey Jeff Thompson Rep. Kevin Mahan Rep. Paul Eric Turner Rep. Billy Joe Bill Davis Rep. Heath VanNatter Rep. Gregory Steurwald Rep. James Jim Baird Rep. Bruce Borders Rep. Robert Bob Heaton Rep. Timothy Tim Neese Rep. Wesley Wes Culver Rep. Daniel Dan Leonard Rep. Richard Dick Dodge Rep. David Yarde Rep. Robert Bob Cherry Rep. Thomas Tom Knollman Rep. Charles Woody Burton Rep. Milo Smith Rep. Matthew Matt Ubelhor Rep. Mark Messmer Rep. Eric Koch Rep. Randall Randy Frye Rep. Judson Jud McMillin Rep. David Dave Cheatham Rep. Rhonda Rhoads Rep. Edward Ed Clere Rep. Steven Steve Davisson Rep. Susan Sue Ellspermann Rep. Ronald Ron Bacon Rep. Matthew Matt Lehmen Rep. Cynthia Cindy Noe Rep. Michael Mike Speedy Rep. Robert Bob Behning Rep. David Dave Frizzell 23rd District 24th District 28th District 31st District 32nd District 33rd District 38th District 40th District 44th District 45th District 46th District 48th District 49th District 50th District 51st District 52nd District 53rd District 55th District 58th District 59th District 62nd District 63rd District 65th District 67th District 68th District 69th District 70th District 72nd District 73rd District 74th District 75th District 79th District 87th District 90th District 91st District 93rd District
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 Linton Paul Benjamin Linton Counsel for the Amici August 3, 2011
United States Court of Appeals for 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 the Court for the United States Court of Appeals for the Seventh Circuit by using the Appellate CM/ECF system on August 3, 2011. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I served 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 Planned Parenthood Federation of America Legal Action for Reproductive Rights 434 W. 33rd Street New York, New York 10001 Talcott Camp American Civil Liberties Union 125 Broad Street New York, New York 10004
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s/Paul Benjamin Linton Paul Benjamin Linton

Thomas More Society "Friend of The Court" Brief For Indiana Legislators To Defund Planned Parenthood

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

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