Injunctions Granted Against Immigration Law and Abortion Law

When the Democrats boycotted the General Assembly, we were treated to a lot of faulty analogies about how, if this were private business and those guys didn’t show up for work, they’d get fired. Well, in the wake of two court rulings finding big Constitutional problems with two major pieces of legislation, we can add another. If workers in private business were producing this much defective product, exposing their employers to lawsuits, they’d also get fired.

In particular, an order from Judge Sarah Evans Barker in Buquer v. City of Indianapolis (h/t Indiana Law Blog) enjoining sections 18 and 19 of SEA 590 concerning immigration.

Specifically, the two portions of that law which Plaintiffs challenge are: Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Plaintiffs also challenge Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

In addition, Judge Tanya Pratt entered a preliminary injunction to parts of HEA 1210 based on the notion that Planned Parenthood was likely to succeed on the merits because Planned Parenthood was a qualified provider of Medicaid services and federal law preempts state law on funding Medicaid qualified providers.

This dispute can be distilled into a single question: Can the State of Indiana exclude PPIN as a qualified Medicaid provider because PPIN performs abortion services that are unrelated to its Medicaid services? The Commissioner argues that Indiana is free to exclude PPIN as a Medicaid provider because states have the authority to determine what constitutes a “qualified” provider. PPIN sharply disagrees, arguing that the defunding provision illegally limits a Medicaid recipient’s choice of providers.
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Central to the present dispute, a state 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…”. 42 U.S.C. § 1396a(a)(23) (emphasis added) (hereinafter, “‘freedom of choice’ provision”)
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As enacted, the defunding provision of HEA 1210 prohibits PPIN from receiving reimbursement from Medicaid for services that would otherwise be reimbursable.

The judge was also asked to enjoined the provisions requiring doctors to say certain things to patients, including that life begins at conception and that fetuses can feel pain.

She declined to enjoin the requirement that doctors tell patients that “human physical life” begins at conception; among other things declining Plaintiff’s request that she determine that phrase had theological and moral connotations.

She did enjoin the provision requiring doctors to tell patients about fetal pain. “[T]he Court has been given no evidence to support the finding that within the scientific community even a minority view exists that contends pain perception is possible during the first trimester of pregnancy – the time during which PPIN exclusively performs its abortion services.”