Ban on Indiana abortion parental notification law upheld

A federal appeals court has upheld an injunction blocking a 2017 Indiana law that would have required parental notification for mature minors seeking an abortion. One member of the three-judge panel dissented, however, and would have allowed the law to take effect.

The ruling Tuesday in Planned Parenthood of Indiana and Kentucky, Inc.  v. Jerome Adams, et al., 17-2428, upheld an injunction issued by Indiana Southern District Senior Judge Sarah Evans Barker blocking Senate Enrolled Act 404 from taking effect. That 2017 legislation would have amended Indiana Code § 16-34-2-4(d), Judge David Hamilton wrote, so that “(e)ven if a judge concludes that a parent need not consent to the abortion, either because the unemancipated minor is mature enough to make her own decision or because the abortion is in her best interests, and even though the (judicial) bypass process is supposed to be confidential … parents still must be given prior notice of the planned abortion unless the judge also finds such notice is not in the minor’s ‘best interests.’”

Writing for the majority, Hamilton, joined by Judge Ilana Rovner, affirmed Barker’s injunction “(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… .”

The amended statute requires that “(t)he young woman’s attorney ‘shall serve the notice required by this subsection by certified mail or by personal service,’” Hamilton wrote. That notice to parents would come after a judicial bypass hearing, but before an abortion is performed when a judge has authorized it.

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 bypass coordinator currently informs young women that no one involved in the bypass process will notify their parents that they are pregnant or seeking an abortion. … As the district court found, however, Indiana’s new law makes this assurance impossible. … 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.

“… Planned Parenthood’s evidence shows a serious risk that prior notice, instead of giving parents an opportunity to offer wise counsel, will actually give parents an opportunity to exercise a practical veto, preventing the pregnant minor from actually exercising the constitutional right the juvenile court has allowed her to exercise,” Hamilton wrote.

Dissenting Judge Michael Kanne, however, would overturn Barker’s injunction. He wrote that the U.S. Supreme Court has confirmed that both parental consent and parental notification laws are constitutional. “The question presented in this case is straightforward and narrow: does the Constitution prohibit Indiana from requiring a mature minor to notify her parents of an impending abortion when she cannot show that avoiding notification is in her best interests?”

“Planned Parenthood has not introduced evidence that establishes that requiring mature minors to notify their parents that they intend to have an abortion (in a scenario where the judge has found that avoiding notification is not in their best interests) constitutes an undue burden,” Kanne wrote. “We should not invalidate a law passed by a democratically-elected state legislature ‘while the effects of the law (and reasons for those effects) are open to debate.’ A Woman’s Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 693 (7th Cir. 2002). Because the majority’s opinion is inconsistent with our precedent — which remains good law despite the majority’s suggestion to the contrary — I respectfully dissent.

“The operative question is whether, given the State’s manifest interest in involving parents in consequential decisions by their children, the notification requirement constitutes a substantial obstacle for mature minors. The record provides no clarity on that point, and so — because the law was enjoined pre-enforcement — we can only speculate. As the majority recognizes, ‘evidence matters,’” Kanne wrote. “The district court abused its discretion by enjoining the law pre-enforcement, and its decision should be reversed.”

The Indiana Attorney General’s office said it was evaluating its appellate options.

“SEA404 was passed to ensure parents are aware of their child’s decision to have an abortion and assist parents in caring for their child during and after the procedure,” a statement from the AG’s office said.

American Civil Liberties Union of Indiana legal director Ken Falk, who litigated the case for Planned Parenthood, hailed the ruling. “This decision affirms that the state must continue to provide a safe alternative for young women who — whatever their circumstances — are unable to talk to their parents about this difficult and personal decision. Legislators need to stop targeting women with invasive hurdles and start respecting the rights of all Hoosiers to make their own personal medical decisions. These heavy-handed restrictions would have burdened young women’s constitutional rights and put their health and safety at risk.”