Thomas More Society's Amici Curae to Support Defunding Planned Parenthood in Indiana
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Transcript of Thomas More Society's Amici Curae to Support Defunding Planned Parenthood in Indiana
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IN THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS, INDIANA
PLANNED PARENTHOOD OF INDIANA, )
INC., et al. )
) Case No. 1:11-CV-0630 TWP-DKL
Plaintiffs, )
) Hon. Tanya Walton Pratt
vs. ) United States District Court
) Judge Presiding
COMMISSIONER OF THE INDIANA )
STATE DEPARTMENT OF HEALTH, et al., )
)
Defendants. )
MEMORANDUM OF LAW ON BEHALF OF MEMBERS OF THE
INDIANA GENERAL ASSEMBLY, ASAMICI CURIAE, IN OPPOSITION TO
PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION
Introduction
Plaintiffs, Planned Parenthood of Indiana, Inc., Dr. Michael King, M.D., Carla
Cleary, C.N.M., Letitia Clemons, and Dejiona Jackson, by her guardian and next friend
Jackie Grubbs, seek a preliminary injunction against enforcement of certain provisions of
House Enrolled Act 1210. Specifically, plaintiffs ask this Court to enjoin the provisions
of the law that defund entities that perform abortions or maintain or operate facilities
where abortions are performed, Indiana 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, Indiana 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. Indiana Code 16-34-2-1.1(a)(1)(G).
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The Preliminary Injunction Standard
In order to be entitled to a preliminary injunction under controlling Seventh Circuit
precedent, plaintiffs have the burden of establishing the following five factors:
(1) that they have no adequate remedy at law;
(2) that they will suffer irreparable harm if the preliminary injunction
is not issued pending the resolution of the substantive action;
(3) that the irreparable harm they will suffer if the preliminary
injunction is not granted outweighs the irreparable harm the defendants will
suffer if the injunction is granted;
(4) that they have a reasonable likelihood of prevailing on the merits
at trial; and
(5) that the injunction will not hurt the public interest.
Manbourne,Inc. v. Conrad, 796 F.2d 884, 887 (7th Cir. 1986).
In this memorandum, amici curiae, members of the Indiana General Assembly (the
names of the amici are attached to this memorandum) address the fourth requirement for
issuance of a preliminary injunction, i.e., whether there is a reasonable likelihood of
plaintiffs prevailing on the merits at trial with respect to their challenge to Indiana Code
5-22-17-5.5 and 16-34-2-1.1(a)(1)(E). With respect to plaintiffs challenge to 16-34-
2-1.1(a)(1)(G) and all other matters not discussed herein (e.g., whether plaintiffs have
established the other factors necessary to warrant preliminary injunctive relief and
whether the funding restrictions conflict with or are preempted by federal law), amici
generally adopt defendants memorandum of law.
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I.
FORBIDDING ENTITIES THAT PERFORM ABORTIONS OR MAINTAIN OR
OPERATE ANY FACILITY WHERE ABORTIONS ARE PERFORMED FROM
QUALIFYING FOR THE RECEIPT OF STATE FUNDS OR FEDERAL FUNDS
ADMINISTERED BY THE STATE OF INDIANA DOES NOT IMPOSE AN
UNCONSTITUTIONAL CONDITION ON THE ASSERTED RIGHT
OF PHYSICIANS TO PERFORM ABORTIONS.
(Response to Plaintiffs Memorandum of Law, Part One: Count One:
Defunding Provisions, Part IV, pp. 22-26)
Indiana House Enrolled Act 1210 adds a new section to the Indiana Code, 5-22-
17-5.5, which provides as follows:
(a) This section does not apply to hospitals licensed under IC 16-21-
2 or ambulatory surgical centers licensed under IC 16-21-2.
(b) An agency of the state may not:
(1) enter into a contract with; or
(2) 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.
(c) Any appropriation by the state:
(1) in a budget bill;
(2) under IC 5-19-13.5; or
(3) in any other law of 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.
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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 inDempsey).
Plaintiffs unconstitutional condition argument necessarily presupposes that
physicians (and other health care professionals) have a constitutional right to perform
abortions. But as plaintiffs themselves admit (Memorandum at 23), the Supreme Court1
has never expressly held that abortion providers have such a right. See Singleton v. Wulff,
428 U.S. 106, 113 (1976) (plurality) (declining to decide whether a physician has a
constitutional right[] to practice medicine). [T]he practice of medicine, including the2
performance of abortions, is subject to reasonable licensing and regulation by the State.
That distinguishes this case from the unconstitutional condition argument raised in1
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 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 free
speech rights of abortion providers and plaintiffs do not contend otherwise.
The plurality in Singleton concluded that it generally is appropriate to allow a physician2
to assert the rights of women patients as against governmental interference 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 a constitutional right to perform abortions.
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Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992) (plurality).
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 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 supports their unconstitutional
condition argument. The difference between restrictions placed upon abortionproviders
and those placed upon abortion patients distinguishes the statute at issue here from the
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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). In Planned3
Parenthood of Central & 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. InDempsey,
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), and Regan v. Taxation
With Representation, 461 U.S. 540 (1983). 167 F.3d at 463. All three cases, however,4
involved constitutionally protected free speech, including abortion advocacy (Rust),
It is also distinct from the hypothetical raised in Webster v. Reproductive Health3
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 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 itselfdoes not
perform abortions or maintain or operate a facility where abortions are performed.
Amici, it should be emphasized, do notargue that 5-22-17-5.5 does not permit the4
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.
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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 perform abortions, it cited no authority in support of that proposition.
Finally, plaintiffs cite the federal district courts decision inPlanned 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
Sanchezwithholds funding from the Plaintiffs because they engage in a constitutionally
protected activity, it creates an unconstitutional condition. Id. On appeal, however, the
district courts judgment was remanded with directions. 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. 5
Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir.
2005). Although the Fifth Circuit did not expressly address the merits of the district
courts unconstitutional condition analysis in remanding the case for further
The Fifth Circuits opinionholding that the availability of an affiliation option was5
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 concede (Memorandum at 7), is not at issue here.
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proceedings (in which all issues on the merits were resolved), in a later appeal from the
denial of attorney fees the court of appeals noted that [b]y remanding the entire case to
the 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 judgment and reasoning in Sanchez(Memorandum at 26) is 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 that such a right 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 do not contend
otherwise), then it cannot be said that 5-22-17-5.5 imposes an unconstitutional
condition on abortion providers, whose rights, to the extent they exist, are subordinate to
those of their patients. Because plaintiffs have not shown that they have a reasonable
likelihood of success at trial with respect to their unconstitutional condition argument,
their motion for a preliminary injunction enjoining enforcement of 5-22-17-5.5 should
be denied.
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II.
REQUIRING A PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL
TO INFORM A PREGNANT WOMAN SEEKING AN ABORTION THAT
HUMAN PHYSICAL LIFE BEGINS WITH FERTILIZATION DOES NOT
VIOLATE THE FIRST AMENDMENT FREE SPEECH RIGHTS OF
PHYSICIANS OR OTHER HEATH CARE PROFESSIONALS.
(Response to Plaintiffs Memorandum of Law, Part Two: Count Two:
Compelled Speech Provisions, Part III, pp. 30-33)
Under Indianas informed consent statute, as amended by House Enrolled Act
1210, consent to an abortion is voluntary and informed only if, at least eighteen hours
before the abortion is performed and in the presence of the pregnant woman, the attending
physician, the referring physician or other authorized and qualified person (physician
assistant, advanced practice nurse or midwife) has informed the pregnant woman orally
and in writing, inter alia, 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). Plaintiffs complain that
this requirement violates the First Amendment free speech rights of physicians and other
health care professionals because it compels them to express an ideological view with
which they do not agree. Complaint at 13-15. 66-73, 76; Memorandum at 30-33; King
Decl. 12-13; Cleary Decl. 9. Amici respond that 16-34-2-1.1(a)(1)(E) merely
requires physicians or other authorized and qualified health care professionals to provide
their pregnant women patients with scientifically and medically accurate information that
could be relevant to their decision whether to have an abortion. Such a requirement does
not violate the free speech rights of physicians and other health care professionals.
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In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Supreme Court held
that a requirement that a doctor give a woman certain information as part of obtaining
her consent to an abortion implicates a physicians First Amendment right not to speak,
id. at 884, citing Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the
practice of medicine, subject to reasonable licensing and regulation by the State. Casey,
505 U.S. at 884. The Court found no violation of the physicians right not to speak where
physicians merely were required to give truthful, nonmisleading information relevant to
the pregnant womans decision to have an abortion.Id. at 882.
The Supreme Court has determined that relevant information (in the abortion
context) is notlimited to the medical risks of the procedure, but includes information
regarding the nature of the procedure, the probable gestational age of the fetus, a
description of the fetus and the consequences to the fetus, Casey, 505 U.S. at 881-82,6
as well as information concerning the way in which the fetus will be killed, Gonzales
v. Carhart, 550 U.S. 124, 159 (2007), all of which may legitimately and constitutionally
influence the womans decision whether or not to undergo an abortion. Casey, 505 U.S.
at 882-83; Gonzales, 550 U.S. at 159-60. Apropos of the issue before this Court, the
The materials that had to be made available to the pregnant woman in Casey included a6
description of the probable anatomical and physiological characteristics of the unborn child at
two-week gestational increments, and any relevant information on the possibility of the unbornchilds survival, and a description of the methods of abortion procedures commonly employed,
the medical risks commonly associated with each such procedure, the possible detrimental
psychological effects of abortion and the medical risks commonly associated with each such
procedure and the medical risks commonly associated with carrying a child to term. 505 U.S. at
908-09 (Appendix to Joint Opinion).
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Eighth Circuit has explained, Casey and Gonzales establish that, while the State cannot
compel an individual to speak the States ideological message, it can use its regulatory
authority to require a physician to provide truthful, non-misleading information relevant
to a patients decision to have an abortion, even if that information might also encourage
the patient to choose childbirth over abortion. Planned Parenthood Minnesota,North
Dakota, South Dakota v. Rounds, 530 F.3d 724, 734-35 (8th Cir. 2008) (en banc). That is
precisely what 16-34-2-1.1(a)(1)(E) requires.
The three words used in 16-34-2-1.1(a)(1)(E) are human, physical and
life. Human, according to a standard medical dictionary, means a member of the
genusHomo and particularly of the speciesH[omo]sapiens. MOSBYS DICTIONARY OF
MEDICINE,NURSING &HEALTH PROFESSIONS 903 (7th ed. 2006). Physical, another
medical dictionary explains, means [r]elating to the body, as distinguished from the
mind. STEDMANS MEDICAL DICTIONARY FOR THE HEALTH PROFESSIONS & NURSING
1207 (Illustrated Sixth Edition 2008). See also DORLANDS ILLUSTRATED MEDICAL
DICTIONARY 1464 (31st ed. 2007) (pertaining to the body). Finally, life is defined as
the quality or condition proper to living beings: the state of existence characterized by
such functions as metabolism, growth, reproduction, adaptation and response to stimuli.
STEDMANS MEDICAL DICTIONARY at 894. Thus, when 16-34-2-1.1(a)(1)(E) requires a
pregnant woman to be informed that human physical life begins when a human ovum is
fertilized by a human sperm she is simply being informed that, in physical (i.e.,
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biological) terms, human life begins with fertilization. Contrary to plaintiffs strained and
artificial reading, Memorandum at 32, nothing in 16-34-2-1.1(a)(1)(E) sets forth an
unverifiable moral, religious [or] philosophical viewpoint as to when human life
begins. As the leading English language dictionary used by the Supreme Court states,
physical means of or relating to the body, of or relating to natural or material things
as opposed to things mental, moral,spiritual, or imaginary. WEBSTERS THIRDNEW
INTERNATIONAL DICTIONARY 1706 (2002) (emphasis added).
Section 16-34-2-1.1(a)(1)(E) states that the physical life of every human begins
with fertilization, an unexceptionable and incontrovertible statement of fact. That human
life, in physical (i.e., biological) terms, begins with the fertilization of a human ovum by a
human sperm is supported by a wealth of scientific and medical evidence, including many
standard embryology and physiology texts. See, e.g., Keith L. Moore and T.V.N.
Persaud, THE DEVELOPING HUMAN,CLINICALLY ORIENTED EMBRYOLOGY, 2 (8th ed.
2008) ([h]uman development is a continuous process that begins when an oocyte (ovum)
from a female is fertilized by a sperm (spermatazoon) from a male), id. at 15 ([h]uman
development begins at fertilization when a male gamete or sperm unites with a female
gamete or oocyte to form a single cell, a zygote. This highly specialized, totipotent cell
marks the beginning of each of us as a unique individual) (emphasis and bold in
original); Gary A. Thibodeau and Kevin T. Patton, ANTHONYS TEXTBOOK OF ANATOMY
AND PHYSIOLOGY 1168 (18th ed. 2007) ([t]he fertilized ovum . . . is genetically
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complete; it represents the first cell of a genetically new individual); M.J.T. Fitzgerald
and M. Fitzgerald, HUMAN EMBRYOLOGY 1 (1994) ([t]he prenatal period of life
commences at the moment of fertilization, and terminates at birth); Ronan ORahilly and
Fabiola Muller, HUMAN EMBRYOLOGY &TERATOLOGY 8 (3d ed. 1996) ([a]lthough life
is a continuous process, fertilization . . . is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is formed when the
chromosomes of the male and female pronuclei blend in the oocyte); Frank J. Dye,
HUMAN LIFE BEFORE BIRTH 53 (2000) ([t]wo cells on the verge of death are the
participants in fertilization, one of the most thought-provoking events in biology. If these
two cells undergo fertilization, a new individual may result) (bold in original); Wm.
Larsen,HUMAN EMBRYOLOGY 1 (3d ed. 2001) (we begin our description of the
developing human with the formation and differentiation of the male and female sex cells
orgametes, which will unite at fertilization to initiate the embryonic development of a
new individual) (bold in original); Richard E. Jones and Kristin H. Lopez, HUMAN
REPRODUCTIVE BIOLOGY 23 (3d ed. 2006) ([t]he process offertilization, orconception,
involves fusion of the nucleus of a male gamete (sperm) and a female gamete (ovum) to
form a new individual) (emphasis in original); Bruce M. Carlson, HUMAN EMBRYOLOGY
&DEVELOPMENTAL BIOLOGY 3, 24, 32-40 (3d ed. 2004) (same). Given the scientific and
medical consensus that the physical life of every human begins with fertilization, it is not
surprising that neither of the plaintiffs experts on this issue cites a single scientific or
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medical source to the contrary in his declaration. See Orentlicher Decl., 14-24; Silver
Decl. 11-25.
Both legislatures and courts have recognized the scientific and medical reality that
human physical (i.e., biological) life begins with fertilization. After reviewing many
authorities and hearing testimony from world-renowned geneticists, biologists and
physicians, the Subcommittee on Separation of Powers of the Senate Judiciary Committee
stated: [C]ontemporary scientific evidence points to a clear conclusion: the life of a
human being begins at conception, the time when the process of fertilization is complete.
Report of the Subcommittee on Separation of Powers, Senate Judiciary Committee, on S.
158, the Human Life Bill, 97th Congress, 1st Sess, at 7 (1991). Physicians, biologists,
and other scientists agree that conception marks the beginning of the life of a human
beingof a being that is alive and a member of the human species. Id. More recently, a
special task force created by the South Dakota Legislature found that the new
recombinant DNA technologies indisputably prove that the unborn child is a whole
human being from the moment of fertilization . . . . Report of the South Dakota Task
Force to Study Abortion 31 (December 2005).
Only three years ago, the Eighth Circuit Court of Appeals considered the
constitutionality of a South Dakota informed consent statute that requires a physician to
advise a woman seeking an abortion that the procedure will terminate the life of a whole,
separate, unique, living human being. S.D.CODIFIED LAWS 34-23A-10.1(1)(b) (Supp.
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2010). Human being, in turn, is defined as an individual living member of the species
of Homo sapiens, including the unborn human being during the entire embryonic and
fetal ages from fertilization to full gestation. Id. 34-23A-1(4). The court of appeals
held that, taking into account the definition of human being set forth in 34-23A-1(4),
the disclosure required by 34-23A-10.1(1)(b) is neither untruthful [n]or misleading. .
Rounds, 530 F.3d at 737. Rather, the statute merely requires the physician to disclose
truthful and non-misleading information as part of obtaining informed consent to a
procedure. Id. And that is all 16-34-2-1.1(a)(1)(E) requires.7
Many courts have recognized that, in physical (i.e., biological) terms, human life begins7
with conception (understood as fertilization). See, e.g., Bonbrest v. Kotz, 65 F.Supp 138, 140
(D. D.C. 1946) ([f]rom the viewpoint of the civil law and the law of property, a child en ventre
sa mere is not only regarded as human being, but as such from the moment of conception which
it is in fact); Corkey v. Edwards, 322 F.Supp. 1248, 1252 (W.D.N.C. 1971) ([b]iologically, a
living organism belonging to the species homo sapiens is created out of this organization
[referring to fertilization]), vacated and remanded for further consideration in light of Roe v.
Wade, 410 U.S. 950 (1973); Steinberg v. Brown, 321 F.Supp. 741, 746 (N.D. 1970) (a new life
comes into being with the union of human egg and sperm cells); Wolfe v. Isbell, 280 So.2d 758,761 (Ala. 1973) (from the moment of conception, the fetus or embryo is not a part of the
mother, but rather has a separate existence within the body of the mother); Scott v. McPheeters,
92 P.2d 678, 681 (Cal. App. 1939) (it is an established and recognized fact by science and by
everyone of understanding that an unborn child is a human being separate and distinct from its
mother); Smith v. Brennan, 157 A.2d 497, 502 (N.J. 1960) ([m]edical authorities have long
recognized that a child is in existence from the moment of conception, and not merely a part of
its mothers body); State v. Ausplund, 167 P. 1019, 1022-23 (Or. 1917) ([w]hen a virile
spermatozoon unites with a fertile ovum in the uterus, conception is accomplished [and] a new
life has begun);Amadio v. Levin, 501 A.2d 1085, 1087 (Pa. 1985) (a child en ventre sa mere is
a separate individual from the moment of conception); Sylvia v. Gobeille, 220 A.2d 222, 223-24
(R.I. 1966) (noting the medical fact that a fetus becomes a living human being from the momentof conception);Leal v. C.C. Pitts Sand & Gravel,Inc. 413 S.W.2d 825, 828 (Tex. Civ. App.
1967) (Cadena, J., dissenting) (medical science . . . consider[s] that life begins at conception),
revd, 419 S.W.2d 820, 822 (Tex. 1967) (citing with approval Justice Cadenas dissent). See
also Wm. L. Prosser, HANDBOOK OF THE LAW OF TORTS 31, 189 (1941) (medical authority
has recognized long since that the child is in existence from the moment of conception).
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None of the authorities cited by plaintiffs (Memorandum at 30-31) precludes the
State from requiring a pregnant woman seeking an abortion to be informed that human
physical life begins with fertilization. InRoe v. Wade, 410 U.S. 113, 159 (1973), the
Court declined to resolve the difficult question of when life begins, in the absence of a
consensus of opinion in the disciplines of medicine, philosophy, and theology . . . .
The absence of an interdisciplinary consensus, however, has little or no bearing on the
scientific and medical consensus, set forth above, that the physical (i.e., the biological)
life of every human begins with fertilization.8
In City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416
(1983), overruled in part on other grounds,Planned Parenthood v. Casey, 505 U.S. 833,
881-87 (1992), the Supreme Court struck down a provision in a municipal ordinance
requiring physicians to inform a pregnant woman seeking an abortion that the unborn
child is a human being from the moment of conception. AKRON CODIFIED ORDINANCES,
ch. 1870, 1870.06(B)(3). That requirement, the Court explained, is inconsistent with
[our] holding inRoe v. Wade that a State may not adopt one theory of when life begins to
justify its regulation of abortions. 462 U.S. at 444. The Courts decision in City of
Akron is not controlling for two reasons: First, unlike the ordinance struck down in City
of Akron, 16-34-2-1.1(a)(1)(E) refers tophysical(i.e., biological) life, not whether the
Neither of the two medical sources cited inRoe, 410 U.S. at 160 nn. 59-60, addressed8
when human life, in biological terms, begins. See DORLANDS ILLUSTRATED MEDICAL
DICTIONARY 1689 (24th ed. 1965) (defining viable and viability); L. Hellman & J. Pritchard,
WILLIAMS OBSTETRICS 493 (14th ed. 1971) (same).
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unborn human child is a human being in some undefined philosophical or moral sense.
Second, the scope of the dictum in City of Akron was narrowed considerably in Webster v.
Reproductive Health Services, 492 U.S. 490 (1989).
In Webster, the Court considered the constitutionality of language in the preamble
to a Missouri abortion law in which the legislature found, inter alia, that [t]he life of
each human being beings at conception. MO.REV.STAT. 1.205.1(1) (1986). In
invalidating the preamble, the court of appeals relied upon the language quoted above
from City of Akron. Reproductive Health Services v. Webster, 851 F.2d 1071, 1075-76
(8th Cir. 1988). The Supreme Court reversed.
The Court explained that the court of appeals had misconceived the meaning of
the Akron dictum, which was only that a State could not justify an abortion regulation
otherwise invalid underRoe v. Wade on the ground that it embodied the States view
about when life begins. Webster, 492 U.S. at 506. In light ofWebster, it is apparent that
the dictum in City of Akron means only that an otherwise unconstitutional abortion
regulation, e.g,, a prohibition of abortion, cannot be justified by adoption of a theory as to
when human life begins. City of Akronplaces no limitation on a States ability to declare
(or to require a physician or other health professional to inform a pregnant woman
seeking an abortion) that the physical life of every human begins with fertilization.
Plaintiffs next citePlanned Parenthood v. Casey. In Casey, the Supreme Court
repeatedly refers, when speaking of an embryo or fetus, to the States interest in potential
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life, scrupulously avoiding describing it as an existing human life. Plaintiffs
Memorandum at 30 (citing Casey, 505 U.S. at 875-76). Plaintiffs, however, overlook
more than a dozen references in the Joint Opinion to the life of the fetus, prenatal
life, the States interest in fetal life, the life of the unborn, the States interest in
[fetal] life, life, fetal life and the life of the child, where the word life, in
referring to the unborn child, is notqualified with or limited by the adjective potential.
Casey, 505 U.S. at 846, 853, 860, 869, 870, 872, 873, 877, 881, 883, 885, 898. Similarly,
in Gonzales v. Carhart, also cited by plaintiffs (Memorandum at 30), the Supreme Court
frequently referred to fetal life, the life of the fetus that may become a child, the life
of the unborn, the life within the woman, infant life and life without using the
word potential. Carhart, 550 U.S. at 134, 145, 146, 157, 158, 159, 160, 163.
In Casey, the Supreme Court did not use the word human to describe the life of
the unborn child. In Carhart, however, the Court stated that the federal Partial-Birth9
Abortion Ban Act expresses respect for the dignity ofhuman life, 550 U.S. at 157
(emphasis added), and that Casey itself confirms the States interest in promoting respect
for human life at all stages in the pregnancy. Id. at 163 (emphasis added).10
If it is not human life, what kind of life is it? As the New York Court of Appeals9
observed almost forty years ago, It is human, if only because it may not be characterized as not
human, and it is unquestionably alive. Byrn v. New York City Health & Hospitals Corp., 286
N.E.2d 887, 888 (N.Y. 1972), appeal dismissed, 410 U.S. 949 (1973).
On at least ten occasions in Carhart, the Court referred to acts during an abortion that10
kill the fetus. 550 U.S. at 139, 140, 148, 151, 153, 154, 157, 159, 164. Except as a metaphor
(and the Court was not speaking in metaphors), one cannot kill what is not alive.
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In Acuna v. Turkish, 930 A.2d 416, 427 (N.J. 2007), the last case cited by plaintiffs
(Memorandum at 30-31), the New Jersey Supreme Court expressly did notreach the
constitutional arguments raised by defendants and amici who claim[ed] that it is both an
undue burden on a womans right of self-determination and a violation of a physicians
First Amendment free speech right to compel a physician to advise a pregnant woman that
an embryo is an existing human being and that an abortion is tantamount to killing a
child. The court did not resolve those arguments, explaining that we cannot find that
New Jerseys common law imposes a legal duty on a physician to give the instructions
sought by plaintiff. Id. (emphasis added). Nothing in the New Jersey Supreme Courts
decision inAcuna v. Turkish addressed whether astatutory requirement that a pregnant
woman be told, before undergoing an abortion, that human physical life begins with
fertilization would be constitutional.
Plaintiffs complain that, [c]oming from a physician, the statement that human
physical life begins at conception, presented as fact, carries significant weight for a
woman seeking an abortion, even if she did not previously share that belief.
Memorandum at 32. But, for the reasons set forth above, the statement, properly
understood, is scientifically and medically accurate. It is a statement offact, not belief.
Moreover, nothing in 16-34-2-1.1(a)(1)(E) requires the physician (or other authorized
and qualified health care professional) to state that he or she agrees with the statement or
to present the statement as his or her own. Furthermore, whether, as plaintiffs suggest
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(Memorandum at 32), [a] reasonable person seeking an abortion is likely to be aware of
the moral significance the statement carries has no bearing on its constitutionality.11
Finally, plaintiffs argue that the statement that human physical life begins when a
human ovum is fertilized by a human sperm is not at all relevant to the womans decision
to have an abortion. Memorandum at 33. But that argument cannot be squared with
Caseys analysis of informed consent in the abortion context. [I]nformed choice need
not be defined in such narrow terms that all considerations of the effect on the fetus are
made irrelevant. 505 U.S. at 883. Indeed, most women considering an abortion would
deem the impact on the fetus relevant, if not dispositive, to the decision. Id. at 882.
Requiring the pregnant woman to be informed that human physical life begins with
fertilization may help her to understand and appreciate the full consequences of her
decision, including the consequences to the fetus.Id. Where, as here, the information
the State requires to be made available to the woman is truthful and non-misleading, the
requirement is constitutional. Id. Because plaintiffs have not shown that they have a
reasonable likelihood of success with respect to their challenge to 16-34-2-1.1(a)(1)(E),
their motion for a preliminary injunction enjoining enforcement of 16-34-2-1.1(a)(1)(E)
should be denied.
Although 16-34-2-1.1(a)(1)(E) presents a descriptive statement of fact, not a11
normative statement of opinion, the Court has recognized that [e]ven in the earliest stages of
pregnancy, the State may enact rules and regulations designed to encourage [the pregnant
woman] to know that there are philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full term . . . . Casey, 505 U.S. at 872.
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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 Districtst
Sen. 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
Rep. William Bill Friend 23 Districtrd
Rep. Richard Rich McClain 24 Districtth
Rep. Jeffrey Jeff Thompson 28 Districtth
Rep. Kevin Mahan 31 Districtst
(list continued on next page)
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House of Representatives
(continued from previous page)
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 Districtnd
Rep. 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