A Monroe County judge will hear arguments later this month over a request from Indiana abortion providers to issue an injunction against the state’s near-total abortion ban. Photo from Getty Images.

By Casey Smith
Indiana Capital Chronicle

INDIANA — A three-day bench trial scheduled for later this month will put Hoosier abortion providers and the state attorney general’s office back in court as the battle over Indiana’s near-total abortion ban continues. Already in contention, however, is whether certain testimony and internal hospital documents entered as exhibits in the case should become public.

Attorneys for the abortion providers, along with those for Eskenazi Health — which is not a party in the case — maintain that dissemination of those confidential materials will create a “significant risk of substantial harm” to the hospital, as well as patients who received abortion care.

The special judge presiding over the case has so far ordered temporary exclusion of some documents from public view, but it’s not yet clear if they’ll be presented at trial, slated for May 29-31 in Monroe County.

The matter stems from an amended complaint filed in November by the American Civil Liberties Union of Indiana on behalf of Indiana’s Planned Parenthood, Women’s Med Group, All-Options Pregnancy Resource Center and obstetrician-gynecologist Dr. Amy Caldwell.

Their original court challenge — which alleged the ban would infringe on a constitutional right to privacy and violate guarantees of equal privileges and immunities — kept enforcement on hold for about a year. The Indiana Supreme Court upheld the ban in June 2023, but said Hoosiers could still sue over specific parts of the ban or concrete examples of its consequences.

With the door left open for additional litigation, the plaintiffs are now seeking new injunctions against health and hospital clauses in the state abortion law which they argue are overly narrow or unnecessary.

Women’s Med Group has since been dismissed from the case, though. The provider indicated earlier this year it had closed its only facility in Indiana and no longer seeks to provide abortions.

What Should Be Public?

In February, Special Judge Kelsey Blake Hanlon laid out parameters for confidential discovery and exhibits, including those containing health-related details, information protected by physician-patient privilege, or other information “that may cause harm” to those involved.

Information designated as “confidential” can only be accessed or reviewed by the judge and court staff, the named parties and their counsel, and experts who sign confidentiality agreements.

The Indiana Attorney General’s Office, representing defendants in the lawsuit, filed its list of exhibits in March, including six to be kept from public view. Among those were depositions of Caldwell, the Indianapolis OB-GYN, and Indiana Planned Parenthood CEO Sharon Dudash; an IU Health/Eskenazi Health “Complex Family Planning Care” document; and IU Health internal documents relating to abortion-related policies and practices put in place after the statewide ban took effect.

But Eskenazi attorneys pushed back, saying in an April 11 filing that the court should “permanently exclude” the confidential documents from public access. Not doing so will create a “significant risk of substantial harm to Eskenazi Health, its workforce members, and others,” according to the court filing.

Shortly after, ACLU of Indiana counsel, on behalf of the plaintiffs, additionally requested several other exhibits be permanently excluded, including:

• Documents that contain “sensitive, non-public information about Dr. Caldwell” and Indiana Planned Parenthood’s abortion practice prior to the near-total ban going into effect. Other document excerpts include confidential information about specific individuals affiliated with Planned Parenthood and AllOptions, as well as “confidential and proprietary business information.”
• Exhibit pieces containing “sensitive, non-public information concerning patients who either received or sought abortion care — and who are not parties to this litigation.”
• Two additional “sensitive internal documents” that contain “confidential and proprietary” business information about Planned Parenthood’s abortion care procedures prior to the state’s new abortion law going into effect.

“If the confidential versions of these documents are not permanently prohibited from public access, (Indiana’s Planned Parenthood) and its providers, Dr. Caldwell, All-Options, and the patients discussed in these documents will be at significant risk of substantial harm,” the plaintiffs wrote. They noted that permitting the confidential versions of the documents to remain sealed is consistent with the approach that Indiana courts have taken in other circumstances involving a “significant risk of substantial harm.”

“Given the volatile climate surrounding abortion care, the patients discussed in these documents deserve to have their privacy rights respected and protected,” the plaintiffs continued. “Moreover, given the very low number of abortions performed in Indiana, there is a risk that the patients who received the healthcare discussed in this confidential testimony could be identified and risk reputational damage or much worse.”

Hanlon has so far ordered the exhibits in question to be excluded, pending further review and a hearing. The two depositions are available but redacted.