FORT WAYNE – A federal judge granted an abortion provider’s request for a temporary injunction prohibiting parts of a new Allen County ordinance from taking effect and denying the county’s request to dismiss a lawsuit challenging it.

And both sides seem to be declaring victory with the ruling.

According to an order handed down Wednesday by U.S. District Judge Robert L. Miller Jr., Allen County officials cannot enforce portions of the amended ordinance concerning patient notification forms and patient-identifying information. The county also cannot provide identifying information to the Indiana State Medical Licensing Board.

The ordinance enacted this year by the Allen County commissioners requires that out-of-town doctors provide contact information to area emergency rooms and the local health department.

It requires phone numbers where the out-of-town doctors can be reached 24 hours a day, as well as written notification signed by the patient.

The ordinance gives a health department employee charged with enforcement the authority to review the department’s records, including documentation of emergency contact information.

In May, Dr. George Klopfer and his clinic, Fort Wayne Women’s Health, sued the county, arguing the ordinance would give health officials unlimited access to patient medical records, thus violating patients’ and physicians’ right to privacy.

Klopfer’s attorney, Ken Falk of the American Civil Liberties Union of Indiana, argued that connecting the patient’s name on the written notification form to the abortion clinic’s notification form would unnecessarily violate the patient’s right to privacy, thereby making women less likely to seek an abortion, according to court documents.

The Allen County commissioners, represented by the Arizona-based Alliance Defense Fund, filed a motion to dismiss the lawsuit, a request that was denied by Miller.

The ACLU did not prevail on all of its arguments, however. Miller disagreed with Klopfer’s assertions that existing state law prohibits Allen County from enacting further regulation of the medical field, nor did the judge believe the county would seek to search patients’ notification forms in an unconstitutional manner, according to court documents.

But Miller agreed with Klopfer about the patient notification forms.

In his ruling, Miller said that while the ordinance’s purpose is to ensure communication among Allen County medical providers and out-of-town doctors, it is unclear how much of a need there is to have patients sign a form.

There is also a question as to the need for county health officials to “leaf through medical records or files containing these signed forms to ensure compliance with the ordinance and the need to send unredacted patient identifying information to the Indiana State Medical Licensing Board,” Miller wrote in his opinion.

Falk said the temporary injunction prevents private information from being disclosed to the county or to the state.

“Dr. Klopfer is still required to give emergency notification to his patients, but of course he does that already,” Falk said, adding such notification was already required by state regulations.

“We’re obviously pleased that the court upheld what we thought were very serious incursions on patients’ rights to privacy here,” he said.

In a written statement, Falk said: “(Klopfer) has safely provided abortion in the county for many years. There’s no justification for suddenly imposing additional requirements on him, especially when they harm his patients and practice.”

Steven Aden of the Alliance Defense Fund said the county prevailed on most of the issues raised in the temporary injunction request.

But the county is still analyzing the decision and weighing its options, which could include an appeal of the temporary injunction to the U.S. 7th Circuit Court of Appeals.

Miller denied the county’s motion to dismiss, saying Klopfer’s claim that the ordinance is irrational in how it seeks to protect patients should be decided through further review.

That decision does not worry the county, according to Aden.

“The commissioners are confident that the court will see that there is no merit in those claims also,” he said.

In a written statement issued by the Alliance Defense Fund, Aden said the ordinance is about patient health.

“The county simply can’t put the health and safety of patients at risk because one man wants to perform abortions without a sensible safety precaution that applies to all out-of-town physicians, not just abortionists,” Aden said.

“The ordinance is very clearly designed to make sure that patients receive appropriate treatment in a medical emergency that can arise after an itinerant physician has gone back home and is no longer available to care for the patient.”

rgreen@jg.net