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, AS AMICI 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).

 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.

2
 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.

3
 (d) For 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 budge agency shall make a determination
that funds are not available, and the contract or grant shall be terminated
under section 5 of this chapter.

Plaintiffs complain 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.” Complaint at 11, § 53; Memorandum at 22-26.

Amici respond that abortion providers have no constitutionally recognized 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,

4
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 Dempsey).

Plaintiffs’ “unconstitutional condition” argument necessarily presupposes that

physicians (and other health care professionals) have a constitutional right to perform

abortions.1 But as plaintiffs themselves admit (Memorandum 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) (declining to decide whether a physician has “a

constitutional right[] to practice medicine”).2 “[T]he practice of medicine,” including the

performance of abortions, is “subject to reasonable licensing and regulation by the State.”

1
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 do not contend otherwise.
2
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 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.

5
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

woman’s 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 woman’s

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 women’s 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 woman’s 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 abortion providers

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

6
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”).3 In Planned

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 woman’s 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 463.4 All three cases, however,

involved constitutionally protected free speech, including abortion advocacy (Rust),

3
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 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.
4
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.

7
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 perform abortions, it cited no authority in support of that proposition.

Finally, plaintiffs cite the federal district court’s decision in 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, however, the

district court’s 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

court’s “unconstitutional condition” analysis in remanding the case for further

5
The Fifth Circuit’s opinion–holding that the availability of an affiliation option was
critical to any decision upholding the rider against a preemption challenge–was limited to Title
X, 403 F.3d at 338 n. 68, which, as plaintiffs concede (Memorandum at 7), is not at issue here.

8
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 court’s judgment and reasoning in Sanchez (Memorandum at 26) is misplaced.

The Fifth Circuit’s 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 that such a right 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 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 Indiana’s 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. C ODE § 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.

10
 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 physician’s 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 physician’s right not to speak where

physicians merely were required to give “truthful, nonmisleading information” relevant to

the pregnant woman’s decision to have an abortion. Id. at 882.

The Supreme Court has determined that relevant information (in the abortion

context) is not limited 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 woman’s 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

6
The materials that had to be made available to the pregnant woman in Casey included a
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 unborn
child’s 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).

11
Eighth Circuit has explained, “Casey and Gonzales establish that, while the State cannot

compel an individual to speak the State’s ideological message, it can use its regulatory

authority to require a physician to provide truthful, non-misleading information relevant

to a patient’s 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

genus Homo and particularly of the species H[omo] sapiens.” M OSBY’S D ICTIONARY OF

M EDICINE, N URSING & H EALTH P ROFESSIONS 903 (7th ed. 2006). “Physical,” another

medical dictionary explains, means “[r]elating to the body, as distinguished from the

mind.” S TEDMAN’S M EDICAL D ICTIONARY FOR THE H EALTH P ROFESSIONS & N URSING

1207 (Illustrated Sixth Edition 2008). See also D ORLAND’S ILLUSTRATED M EDICAL

D ICTIONARY 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.”

S TEDMAN’S M EDICAL D ICTIONARY 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.,

12
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.” W EBSTER’S T HIRD N EW

INTERNATIONAL D ICTIONARY 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, T HE D EVELOPING H UMAN, C LINICALLY O RIENTED E MBRYOLOGY, 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, A NTHONY’S T EXTBOOK OF ANATOMY

AND P HYSIOLOGY 1168 (18th ed. 2007) (“[t]he fertilized ovum . . . is genetically

13
complete; it represents the first cell of a genetically new individual”); M.J.T. Fitzgerald

and M. Fitzgerald, H UMAN E MBRYOLOGY 1 (1994) (“[t]he prenatal period of life

commences at the moment of fertilization, and terminates at birth”); Ronan O’Rahilly and

Fabiola Muller, H UMAN E MBRYOLOGY & T ERATOLOGY 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,

H UMAN L IFE B EFORE B IRTH 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, H UMAN E MBRYOLOGY 1 (3d ed. 2001) (“we begin our description of the

developing human with the formation and differentiation of the male and female sex cells

or gametes, which will unite at fertilization to initiate the embryonic development of a

new individual”) (bold in original); Richard E. Jones and Kristin H. Lopez, H UMAN

R EPRODUCTIVE B IOLOGY 23 (3d ed. 2006) (“[t]he process of fertilization, or conception,

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, H UMAN E MBRYOLOGY

& D EVELOPMENTAL B IOLOGY 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

14
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

being–of 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. C ODIFIED L AWS § 34-23A-10.1(1)(b) (Supp.

15
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.7 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 begins
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 mother’s 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 moment
of 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”),
rev’d, 419 S.W.2d 820, 822 (Tex. 1967) (citing with approval Justice Cadena’s 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”).

16
 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. In Roe 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.” A KRON C ODIFIED O RDINANCES,

ch. 1870, § 1870.06(B)(3). That requirement, the Court explained, is “inconsistent with

[our] holding in Roe 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 Court’s 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 to physical (i.e., biological) life, not whether “the

8
Neither of the two medical sources cited in Roe, 410 U.S. at 160 nn. 59-60, addressed
when human life, in biological terms, begins. See DORLAND ’S ILLUSTRATED MEDICAL
DICTIONARY 1689 (24th ed. 1965) (defining “viable” and “viability”); L. Hellman & J. Pritchard,
WILLIAMS OBSTETRICS 493 (14th ed. 1971) (same).

17
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.” M O. R EV. S TAT. § 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 under Roe v. Wade on the ground that it embodied the State’s view

about when life begins.” Webster, 492 U.S. at 506. In light of Webster, 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 Akron places no limitation on a State’s 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 cite Planned Parenthood v. Casey. In Casey, “the Supreme Court

repeatedly refers, when speaking of an embryo or fetus, to the State’s ‘interest in potential

18
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 State’s interest in fetal life,” “the life of the unborn,” “the State’s interest in

[fetal] life,” “life,” “fetal life” and “the life of the child,” where the word “life,” in

referring to the unborn child, is not qualified 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.9 In Carhart, however, the Court stated that the federal Partial-Birth

Abortion Ban Act “expresses respect for the dignity of human life,” 550 U.S. at 157

(emphasis added), and that Casey itself “confirms the State’s interest in promoting respect

for human life at all stages in the pregnancy.” Id. at 163 (emphasis added).10

9
If it is not human life, what kind of life is it? As the New York Court of Appeals
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).
10
On at least ten occasions in Carhart, the Court referred to acts during an abortion that
“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.

19
 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 not reach “the

constitutional arguments raised by defendants and amici who claim[ed] that it is both an

undue burden on a woman’s right of self-determination and a violation of a physician’s

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 Jersey’s 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 Court’s

decision in Acuna v. Turkish addressed whether a statutory 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 of fact, 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

20
(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 woman’s decision

to have an abortion.” Memorandum at 33. But that argument cannot be squared with

Casey’s 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.

11
Although § 16-34-2-1.1(a)(1)(E) presents a descriptive statement of fact, not a
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.

21
 CONCLUSION

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

Assembly, respectfully request that this Honorable Court deny plaintiffs’ motion for the

entry of a preliminary injunction.

Respectfully submitted,

s/Eric Allan Koch s/Paul Benjamin Linton*

Eric Allan Koch Paul Benjamin Linton
The Koch Law Firm, P.C. Special Counsel
520 North Walnut Street Thomas More Society
Bloomington, Indiana 47404 921 Keystone Avenue
(812) 337-3120 (tel) Northbrook, Illinois 60062
(812) 330-4305 (fax) (847) 291-3848 (tel)
Indiana Bar No. 14870-38 (847) 412-1594 (fax)
Illinois ARDC No. 1670158

s/Thomas Brejcha*
Thomas Brejcha
President & Chief Counsel
Thomas More Society
29 South La Salle Street Suite 440
Chicago, Illinois 60603
(312) 782-1680 (tel)
(312) 782-1887 (fax)
Illinois ARDC No. 0288446

*Application for Admission Pro Hac Vice to be filed

22
 List of Amici Curiae

Senate

Sen. David Long 16 th District

President Pro Tem
Sen. Edward “Ed” Charbonneau 5 th District
Sen. Brandt Hershman 7 th District
Sen. Carlin Yoder 12 th District
Sen. Dennis Kruse 14 th District
Sen. James “Jim” Banks 17 th District
Sen. Travis Holdman 19 th District
Sen. James “Jim” Buck 21 st District
Sen. Constance “Connie” Lawson 24 th District
Sen. Doug Eckerty 26 th District
Sen. Michael “Mike” Delph 29 th District
Sen. Scott Schneider 30 th District
Sen. James “Jim” Merritt, Jr. 31 st District
Sen. Patricia “Pat” Miller 32 nd District
Sen. Richard Michael “Mike” Young 35 th District
Sen. Richard Bray 37 th District
Sen. Greg Walker 41 st District
Sen. Jean Leising 42 nd District
Sen. Johnny Nugent 43 rd District
Sen. Brent Steele 44 th District
Sen. James “Jim” Smith, Jr. 45 th District
Sen. James “Jim” Tomes 49 th District

House of Representatives

Rep. Brian Bosma 88 th District

Speaker
Rep. Donald “Don” Lehe 15 th District
Rep. Douglas “Doug” Gutwein 16 th District
Rep. Timothy “Tim” Wesco 21 st District
Rep. Rebecca Kubacki 22 nd District
Rep. William “Bill” Friend 23 rd District
Rep. Richard “Rich” McClain 24 th District
Rep. Jeffrey “Jeff” Thompson 28 th District
Rep. Kevin Mahan 31 st District

(list continued on next page)

 House of Representatives
(continued from previous page)

Rep. Paul “Eric” Turner 32 nd District

Rep. Billy Joe “Bill” Davis 33 rd District
Rep. Heath VanNatter 38 th District
Rep. Gregory Steurwald 40 th District
Rep. James “Jim” Baird 44 th District
Rep. Bruce Borders 45 th District
Rep. Robert “Bob” Heaton 46 th District
Rep. Timothy “Tim” Neese 48 th District
Rep. Wesley “Wes” Culver 49 th District
Rep. Daniel “Dan” Leonard 50 th District
Rep. Richard “Dick” Dodge 51 st District
Rep. David Yarde 52 nd District
Rep. Robert “Bob” Cherry 53 rd District
Rep. Thomas “Tom” Knollman 55 th District
Rep. Charles “Woody” Burton 58 th District
Rep. Milo Smith 59 th District
Rep. Matthew “Matt” Ubelhor 62 nd District
Rep. Mark Messmer 63 rd District
Rep. Eric Koch 65 th District
Rep. Randall “Randy” Frye 67th District
Rep. Judson “Jud” McMillin 68 th District
Rep. David “Dave” Cheatham 69 th District
Rep. Rhonda Rhoads 70 th District
Rep. Edward “Ed” Clere 72 nd District
Rep. Steven “Steve” Davisson 73 rd District
Rep. Susan “Sue” Ellspermann 74 th District
Rep. Ronald “Ron” Bacon 75 th District
Rep. Matthew “Matt” Lehmen 79 th District
Rep. Cynthia “Cindy” Noe 87 th District
Rep. Michael “Mike” Speedy 90 th District
Rep. Robert “Bob” Behning 91 st District
Rep. David “Dave” Frizzell 93 rd District