A sharply divided 7th Circuit Court of Appeals has upheld for the second time an injunction blocking a 2017 Indiana law requiring parental notification of a minor seeking an abortion. The ruling sets up an almost certain second appeal to the United States Supreme Court, which had already sent this case back for review.
Friday’s 7th Circuit opinion in Planned Parenthood of Indiana and Kentucky Inc. v. Kristina Box, 17-2428, lets stand Southern Indiana District Court Senior Judge Sarah Evans Barker’s injunction that blocked Senate Enrolled Act 404 from taking effect in July 2017. That law requires parental notification of minors seeking abortions, but Judge David Hamilton explained in Friday’s opinion, “Only one amendment is at issue in this appeal: a new requirement that a minor’s parents be notified that she is seeking an abortion through the (judicial) bypass procedure — unless the judge finds that such parental notice, as distinct from requiring parental consent, is not in the minor’s best interests.”
The U.S. Supreme Court remanded the case in light of June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), which struck down a Louisiana law regulating abortion providers, but without a single majority opinion.
In such instances, Hamilton wrote for the majority joined by Judge Ilana Rovner, “We apply the predominant and most sound approach to the ‘narrowest ground’ rule in Marks v. United States, 430 U.S. 188 (1977), for assessing the precedential force of Supreme Court decisions issued without a majority opinion. The opinions in June Medical show that constitutional standards for state regulations affecting a woman’s right to choose to terminate a pregnancy are not stable, but they have not been changed, at least not yet, in a way that would change the outcome here.”
The composition of the court has changed since June Medical was decided, however, with former 7th Circuit Judge and Notre Dame Law School professor joining the court as a potential deciding vote in favor of abortion restrictions.
In June Medical, a plurality of the court struck down a Louisiana law because it posed “a ‘substantial obstacle’ to women seeking an abortion [and] offers no significant health-related benefits.’” Chief Justice John Roberts in a concurrence found that the substantial obstacle alone was sufficient to find the law unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
“The Chief Justice’s concurring opinion in June Medical offered the narrowest basis for the judgment in that case, giving stare decisis effect to Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), on the essentially identical facts in June Medical,” Hamilton wrote. “The Marks rule does not, however, turn everything the concurrence said — including its stated reasons for disagreeing with portions of the plurality opinion — into binding precedent that effectively overruled Whole Woman’s Health. That is not how Marks works. It does not allow dicta in a non-majority opinion to overrule an otherwise binding precedent. We applied those binding standards from Whole Woman’s Health in our earlier decision, and that decision has not been overruled by a majority decision of the Supreme Court. We therefore again affirm the district court’s preliminary injunction barring enforcement of the challenged law pending full review in the district court.”
Dissenting Judge Michael Kanne, who also dissented in the 7th Circuit’s original ruling in this case, said the majority was largely correct in its Marks analysis, but he disagreed with the result. “The majority gives an expanded reading to the Chief Justice’s June Medical concurrence, but viewing that narrow concurring opinion — as written, in conjunction with the plurality’s opinion — compels a different outcome,” Kanne wrote.
“I do not believe that the Supreme Court is directing us to reassess our prior decision ‘in light of’ a case that sheds no light on the matter whatsoever,” he wrote. “Rather, I do believe that June Medical does have a real effect. The Supreme Court knows it, other circuits accept it, and a faithful application of the Marks rule requires us to accept it, too.
“… The other reasons for my prior dissent remain unchanged. The Supreme Court has confirmed that parental-notification requirements are constitutional time and again. And Planned Parenthood has failed to show that requiring mature minors to notify their parents that they intend to have an abortion (where a judge has found that avoiding notification is not in their best interests) constitutes an undue burden,” Kanne wrote. “This court should reverse the district court’s injunction and let Indiana exercise its legislative judgment that a parental-notification law best serves the interests of its citizens.”
“We are disappointed with the Seventh Circuit’s opinion,” Indiana Solicitor General Thomas Fisher said in a statement on behalf of the Indiana Attorney General’s Office. “Our office is considering the best next option as we continue to defend these laws to protect the unborn.”