An Amicus Brief on Preliminary Injunctions, in the Context of the Abortion Case at the Indiana Supreme Court, with the Story of Its Writing

I’ve been too busy to post lately, even staying up to 3:30 a.m one night to write an amicus brief for the abortion case presently before the Indiana Supreme Court, then going to the celebrated free speech at Stanford which the Chronicle of Higher Education and others condemned (now up on video), while teaching my 7th graders and writing up a monthly test ,and a handout on why .9999… = 1. I’ve been intending to post that handout here, and I just now realized I should post my amicus brief. I can’t stand the thought of reformatting it for substack, though, so I’ll point to the pdf version on rasmusen.org. You can still comment here if you like. As you’ll see, I ended up writing a full Substack article anyway, on my travails in the last 36 hours of writing the brief. Attendees at the Stanford Conference (which started the next day) who read further will realize why I looked so wrecked and had to go back to the Sheraton for a nap Friday afternoon.

The brief is at https://rasmusen.org/published/2022_abortion_amicus_brief.pdf. I have some hopes of turning it into a law review article or into a boilerplate amicus useful to lots of courts, so comments are welcomed, despite its somewhat crude state.

Even briefer: In Dobbs, the United States Supreme Court struck down Roe v Wade and said each state could pass its own laws for dealing with abortion. Indiana was the first state to pass a new law, which was not a criminal statute (so the anti-abortion groups opposed it), but said doctors who did abortions could lose their licenses. The ACLU sued the State of Indiana, saying that the new law defied the Indiana Constitution, particularly in violating a “liberty” clause not in the U.S. Constitution. The ACLU went to Monroe County court and asked for a preliminary injunction to block the new law from coming into effect until the case was decided on the merits in a year or two. Two or three judges recused themselves, and the case was taken up by Judge Hanlon, from a neighboring county. She granted the preliminary injunction. The State appealed, and the Indiana Supreme Court agreed to skip the appellate court stage and take the case directly, with a November 1 deadline for the State’s brief. I submitted an amicus brief taking the State’s side, but not discussing the merits. Rather, I argue that the trial judge’s opinion failed to adequately explain how it had “balanced the harms” and evaluated “the government interest” to justify granting the injunction.

You can look up the case, Members of the Medical Licensing Board of Indiana, et al. v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc., et al., as case 22S-PL-338, Supreme Court, at https://public.courts.in.gov/mycase#/vw/Search.

The other part of the story is kind of funny. I’ve done amicus briefs before, mostly in federal courts, but one with the Indiana Supreme Court. For that one, I waited till the last minute, almost literally, driving an hour to Indianapolis with my wife to drop off the brief in the drop-off box in the Rotunda of the State Capitol before midnight. Actrually, I lied— it wasn’t the last minute, just the last hour. I’d forgotten the Indiana rules, or they’d changed, though. The federal rule is that the amici must file their briefs one week (I think) after the party whose side they are supporting. The Indiana rule is that the amici must file *the same day* as the party.

I read the Indiana rules 36 hours before the midnight deadline, and my brief was only half-finished. Panic! And I had to teach my 7th grade math and lead a college discussion on Milton Friedman’s Capitalism and Freedom, etc. That’s why I had to stay up till 3:30 a.m. the first night, get up at 7:30, and stay up till midnight again.

It wasn’t only finishing the substance of the brief that was the problem. I had to get the formatting right, file a motion for permission to submit the amicus brief, serve all the papers on all the parties to the suit, submit my papers to the Court in the propery way, and figure out what the proper procedure was for all these things. That’s the hard part about being your own lawyer, being pro se. Real Indiana lawyers know these things, and that’s one reason national lawyers get local co-counsel (e.g., so they won’t mix up the state deadline rules with the federal rules like I did). Being pro se, the Court might be more forgiving, but also might harsher because they don’t like cranky amateurs filing briefs and they can use sloppiness as a reason to deny permission.

A first concern was how much time I actually had. Did I have till midnight, or just 5 p.m. the next day? I emailed the Clerk of Court and got a helpful reply that the Rotunda at midnight was still the place, but that there was also an electronic method. I looked into it, and found that since I’d last done it, Indiana had fixed it not just lawyers, but pro se non-lawyers like myself could file electronically— and serve the parties too. Hurrah! That saved the hour of driving to Indy and the need to print multiple copies, address envelopes, and go to Fedex. It took some time for me to get a handle on it, but I tried out the electronic system and found it intelligently designed.

Usually, I would ask other people (e.g., the Solicitor-General’s office) for examples of filings, but I knew they’d be superbusy that day and I was too shy. So I looked for examples online of where organizations had posted their amicus briefs and motions for permission, and copied those, with attention to the Indiana Rules for Appellate Procedure, which are very clearly written. I fixed up the double-spacing, 12-pt font from the approved typefaces, the margins, the header, and the word limit. I wrote up the “Why I’m so great” part of the motion for permission, which is supposed to say why the proposed amicus has something the court might be interested in reading. I put the right things in the Certificate of Filing and Service and the Certificate of Word Count.

One mustn’t forget the actual substance of the brief, so most of my time was spent on that, once I figured out how much time I had. I read over the parties’ briefs and the judge’s opinion again for the first time in a month, skipping over the longest part, the merits. I read the law review articles on preliminary injunctions that were the basis for my argument, and looked for relevant cases, especially Indiana ones. I thought hard about what the trial judge *should* have done, since I wanted to contrast that with the skimpy treatment Judge Hanlon *did* do. I reorganized the sectioning completely, and threw out most of my notes as irrelevant. I went over the remaining material repeatedly for improvements and words I could cut out. In the course of it, I realized I had gotten a lot of the “public interest” criterion wrong in my notes, so I adopted a more modest version of the criterion. I tried to come up with hypotheticals where that criterion was crucial in a case where the State was a party. It was difficult, and I concluded that there was probably some use for it, so the Court shouldn’t drop it, but only as a backstop, special-case, criterion. If I’d had more time, this is where comments and sleep-on-it thoughts would have been really helpful.

And so I came to the most frustrating part, the Table of Authorities, which I hate. The rules require that a brief have a bibliography listing every case or other reference cited, together with a line of dots for each one that has the page number where it’s mentioned. I imagine real lawyers have software for this, or at least a paralegal, but I don’t. So I have to wait till the final draft, with all the page numbers now set (except they might change by one two depending on how long the Table of Authorities runs), and go through looking for each case, article, and book. The hardest part is getting the dots to line up right:

Smith v. Jones, 234 U.S. 333 (1987) …………………………………………………………………………………….2, 13

The worst thing is how stupid it all is. The brief is only about 30 pages. Each reference is fully cited where it first appears, or, in my writing style, everywhere where the reader might need it (e.g., Smith v. Jones, 234 U.S. 333, (1987)). What the Court should really want is a hyperlink to the references, a hyperlink to an ungated site like Google Scholar. In my last brief, for the D.C. Circuit, I provied that as well as the required Table of Authorities.

If it weren’t for getting those dots right in the Table of Authorities, I would have mde he deadline. As it was, I got my Motion in at 11:56 p.m. and the Brief in at 12:02 a.m. But the Court was forgiving, and accepted me as an amicus.