Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 1 of 5 PageID #: 1476

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1 Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 1 of 5 PageID #: 1476 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION PLANNED PARENTHOOD OF INDIANA, INC., et al., Plaintiffs, v. No. 1:11-cv-630 TWP-TAB COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants. STIPULATION TO ENTER INTO AGREED JUDGMENT The parties, by their counsel, stipulate and agree that this Court should enter into a Final Judgment in this cause, as follows, which resolves all pending issues in this case with the exception of plaintiffs claims for reasonable attorneys fees and costs. The parties stipulate and agree as follows: 1. This case was filed on May 10, This case challenged various aspects of House Enrolled Act a. A portion of the law ( the defunding provision, codified at Indiana Code (b (d, which prohibits any entity that performs abortions or maintains a facility where abortions are performed from receiving state funds. b. A portion of the law ( the human physical life provision, codified at Indiana Code (a(1(E, which provides that as part of the information mandated that must be provide to a woman prior to obtaining an abortion that she be informed [t]hat human physical life begins when a human ovum is fertilized by a human sperm.

2 Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 2 of 5 PageID #: 1477 c. Another portion of the informed consent law ( the fetal pain provision, codified at Indiana Code (a(1G, that provided that the woman be informed [t]hat objective scientific information shows that a fetus can feel pain at or before twenty (20 weeks of postfertilization age. 3. On June 24, 2011, this Court issued its preliminary injunction entry. (ECF No. 77. The Court concluded that: a. To the extent that the defunding provision prohibited the patients of Planned Parenthood of Indiana [now known as Planned Parenthood of Indiana and Kentucky] ( PPI who received Medicaid from selecting PPI as their Medicaid-provider for Medicaid-reimbursable medical services, and prevented PPI from receiving Medicaid reimbursement for these services, the plaintiffs had established a reasonable likelihood of establishing that the law violated Medicaid s freedom of choice provision, 42 U.S.C 1396a(a(23. The Court also held that to the extent that the defunding provision prohibited PPI from receiving grants from the federal Preventive Health Services Block Grant Program, 42 U.S.C. 247c, et seq., through its contract with the Indiana State Department of Health, the plaintiffs established a reasonable likelihood of establishing that the state law was invalid as it was preempted by the federal law. The Court did not reach a separate argument made by plaintiffs that the law also imposed an unconstitutional condition on PPI. b. Plaintiffs had not established a reasonable likelihood that the human physical life provision was unconstitutional. c. Plaintiffs had established a reasonable likelihood that the fetal pain was unconstitutional.

3 Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 3 of 5 PageID #: Accordingly, this Court entered a preliminary injunction decision against the defunding provision and the fetal pain provision. 5. Following this Court s decision the defendants appealed to the United States Court of Appeals for the Seventh Circuit so much of this Court s preliminary injunction determination as concerned the defunding provision. 6. On October 26, 2011, this Court approved the parties Joint Motion for Entry of Partial Judgment pursuant to Rule 54(b of the Federal Rules of Civil Procedure and entered a final judgment that the fetal pain provision, Indiana Code (a(1(G, was invalid as applied to first-trimester abortions. (ECF No On October 23, 2012, the United States Court of Appeals for the Seventh Circuit issued its decision affirming in part and reversing in part this Court s preliminary injunction entry. Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Dep t of Health, 699 F.3d 962 (7th Cir Specifically, the Seventh Circuit affirmed this Court s conclusion that plaintiffs were likely to succeed on their claim that applying the defunding statute to services from PPI otherwise reimbursable by Medicaid violated the Medicaid Act, 42 U.S.C 1396a(a(23. However, the Seventh Circuit concluded that plaintiffs were unlikely to prevail on their claims that, as applied to the Preventive Health Services Block Grant that the defunding act was preempted by federal law or that imposing defunding on PPI would pose an unconstitutional condition. 9. The defendants sought certiorari concerning the Seventh Circuit s Medicaid Act petition and PPI filed a conditional petition for certiorari on the unconstitutional condition claim. 10. Certiorari was denied on May 28, 2013.

4 Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 4 of 5 PageID #: Neither party wishes to contest the remaining claims in this matter. 12. Defendants agree that PPI is not obligated to reimburse the State of Indiana or the Indiana State Department of Health for any of the funds that PPI received under the Preventive Health Services Block Grant contract that expired on December 31, Accordingly, plaintiffs agree that their claims concerning the human physical life provision and their claims that the termination of the Preventative Health Services Block Grant funds are unlawful and unconstitutional should be dismissed with prejudice. 14. Accordingly, defendants agree that the defunding provision cannot preclude PPI from receiving Medicaid reimbursement and thereby preclude Medicaid recipients from receiving Medicaid-reimbursed services from PPI as to do so would violate Medicaid s freedom of choice provision, 42 U.S.C 1396a(a( The parties have tendered a proposed judgment incorporating this Stipulation. 16. The parties agree that the time within which plaintiffs must submit their petition for attorneys fees and costs should be extended to thirty days after this Court approves the proposed judgment. WHEREFORE, the parties submit this Stipulation and tender a proposed judgment and request that it be approved by the Court, and for all other proper relief. For the plaintiffs: /s/ Kenneth J. Falk Kenneth J. Falk ACLU of Indiana 1031 E. Washington Street Indianapolis, IN / ext. 104 fax: 317/ kfalk@aclu-in.org

5 Case 1:11-cv TWP-DKL Document 106 Filed 07/29/13 Page 5 of 5 PageID #: 1480 For the defendants: /s/ Thomas M. Fisher (w/permission Thomas M. Fisher Solicitor General Office of the Attorney General IGCS-5 th Floor 302 W. Washington Street Indianapolis, IN / fax: 317/ tom.fisher@atg.in.gov