The Indiana Attorney General’s Office has asked the 7th Circuit Court of Appeals for en banc review to reconsider a challenge to an Indiana law requiring parents be notified before their mature minor child gets an abortion.
Senate Enrolled Act 404 would have required unemancipated mature minors to inform their parents of a decision to obtain an abortion, unless such notice was not in the minor’s best interests. Last month, a divided 7th Circuit panel upheld a preliminary injunction issued by Indiana Southern District Senior Judge Sarah Evans Barker keeping SEA 404 from going into effect.
Representing the majority, circuit judges David Hamilton and Ilana Rovner affirmed Barker’s decision. Judge Michael Kanne dissented, arguing that the U.S. Supreme Court had confirmed that both parental consent and parental notification laws were constitutional.
On Wednesday, Indiana Attorney General Curtis Hill asked the full 11-member court to reconsider the issue in a petition for rehearing and rehearing en banc. Hill argued rehearing en banc was warranted because the 7th Circuit’s split decision conflicts with A Woman’s Choice – East Side Women’s Clinic v. Newman, 305 F.3d 684, 692 (7th Cir. 2002) and because it poses a question of “exceptional importance.”
“This case involves the fundamental question of whether the U.S. Constitution prohibits Indiana from requiring an unemancipated minor to notify her parents of an impending abortion,” Hill said. “The law already grants exceptions in cases where the minor shows that avoiding notification is in her best interests, such as if she resides with abusive family members.”
The state likewise asserted that it has a clear interest in protecting the rights of parents and the well-being of minors.
“Even after a minor obtains an abortion authorized by a court, parents still have rights and responsibilities in the care and upbringing of their child,” Hill said. “As they love and care for their daughter, parents need to know what she has been through. An abortion is a facet of medical history that could have implications for future treatment. It is an event that could bear on a child’s emotional needs and mental health.”
But the 7th Circuit majority also cited best interests from a different perspective in ruling as it did. Hamilton noted that Barker found Planned Parenthood provided evidence showing 96 percent of minors seeking abortions had obtained parental consent, and just 4 percent had obtained a judicial bypass — about 10 minors a year statewide. In those cases, minors are given the name of a “bypass coordinator” who does not work for Planned Parenthood but maintains a list of attorneys who can represent the young woman. Between October 2011 and September 2017, about 60 minors contacted the coordinator, most of whom were 17 years old and had not told their parents they were pregnant.
Citing the district court evidence, Hamilton wrote, “Some fear being kicked out of their homes. Others fear being punished, or fear that their parents will try to block an abortion,” among other reasons for seeking a judicial bypass. An expert testified that the notice requirement “carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction.
“… The district court also found that bypasses granted to Planned Parenthood’s patients ‘have generally been based on the juvenile court’s finding that the minor was sufficiently mature to make the abortion decision independent of her parents,’ as distinct from the minor’s ‘best interests.’”
Applying the undue burden standard established in Planned Parenthood v. Casey, the majority held that “(f)or those pregnant minors affected by this Indiana law, the record indicates that in a substantial fraction of cases, the parental notice requirement will likely have the practical effect of giving parents a veto over the abortion decision. That practical effect is an undue burden because it weighs more heavily in the balance than the State’s interests.”