Editor’s note: This story has been updated with comments from the Indiana Office of the Attorney General and the American Civil Liberties Union of Indiana.
The 7th Circuit Court of Appeals will not revisit a prior ruling that upheld an injunction on an Indiana law requiring “mature minors” to notify their parents before they have an abortion, setting the case up for a possible trip to the United States Supreme Court.
A divided 7th Circuit on Wednesday denied panel rehearing and rehearing en banc to the case of Planned Parenthood of Indiana and Kentucky, Inc. v. Kristina Box, et al., 17-2428.
In August, a panel majority including judges David Hamilton and Ilana Rovner upheld an injunction against Senate Enrolled Act 404, a 2017 law that would have required parental notification for mature minors seeking an abortion.
Senate Enrolled Act 404, had it taken effect, would have amended Indiana Code § 16-34-2-4(d) to require minors to notify their parents of their abortion plans “unless the juvenile court finds that it is in the best interest of an unemancipated pregnant minor to obtain an abortion without parental notification following a hearing on a petition … .” Parental consent could still be waived, but the notice would come after a judicial bypass hearing and before an abortion is performed when a judge has authorized it.
Planned Parenthood of Indiana and Kentucky fought the legislation in court soon after it was passed in 2017, and after hearing arguments, Indiana Southern District Senior Judge Sarah Evans Barker granted PPINK’s request for an injunction.
The 7th Circuit upheld the injunction in August “(i)n light of the lopsided factual record, the deferential standard of review, and the preliminary status of the findings of fact and conclusions of law … .”
Judge Michael Kanne dissented from the August appellate decision, and Indiana Attorney General Curtis Hill sought rehearing in September. Kanne again dissented on Wednesday in an opinion joined by judges Joel Flaum and three appointees of President Donald Trump — Amy Coney Barrett, Michael Brennan and Michael Scudder.
“This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect?” Kanne wrote, echoing his earlier dissent. “Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”
Though Judge Frank Easterbrook concurred with the denial of rehearing en banc, he wrote a concurrence that tracked with Kanne’s dissent.
“Talk is cheap, which makes it easy for the plaintiffs in a pre-enforcement suit to predict the worst and demand that an injunction issue before the disaster come to pass,” Easterbrook wrote, joined by Judge Diane Sykes. “… Unless a baleful outcome is either highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow states that much leeway.”
To support his position, Easterbrook pointed to the case of June Medical Services L.L.C. v. Gee, 18-1323 (Oct. 4, 2019), which is currently before the U.S. Supreme Court. In that case, SCOTUS must decide whether a Louisiana admitting-privileges statute is an undue burden on abortion clinics, but “the pre-enforcement injunction has made that difficult.”
“How much burden is ‘undue’ is a matter of judgment, which depends on what the burden would be (something the injunction prevents us from knowing) and whether that burden is excessive (a matter of weighing costs against benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators),” Easterbrook wrote. “Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted.
“Three circuit judges already have guessed how that inquiry would come out; they did not agree,” he continued. “The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.”
Asked if it would appeal the case to the Supreme Court, the Indiana Office of the Attorney General said it is considering “all options for continuing our defense of this statute.”
“We continue to believe that requiring notice to parents before a minor has an abortion – even where the abortion is permitted by a court based on the minor’s maturity – reasonably safeguards the rights and interests of both the parents and the minor,” the OAG said in an emailed statement to Indiana Lawyer. “While we are encouraged that five of the eleven Seventh Circuit judges voted to rehear the case, we are deeply disappointed that the court denied the petition.
“But as Judge Easterbrook’s separate opinion indicates, the Supreme Court’s most recent decisions regarding abortion are exceedingly difficult to apply,” the office continued. “When two federal judges as distinguished as Judges Easterbrook and Sykes cannot make heads or tails or Supreme Court doctrine, something is very wrong.”
But the American Civil Liberties Union of Indiana, which represents PPINK in the case, celebrated the 7th Circuit’s denial of the rehearing petition. Ken Falk, legal director for the ACLU of Indiana, also said the Supreme Court has a “long history of allowing pre-enforcement challenges when there is good reason to believe allowing the law to go into effect would cause a great deal of harm.”
“I think we’ve established a lot of evidence to demonstrate what harm this law would cause,” Falk told IL, adding that the state failed to prevent evidence to the contrary.