Calling on the nation’s highest court to provide “urgently needed clarity” to caselaw governing abortion laws related to minors, the Office of the Indiana Attorney General is asking the Supreme Court to grant certiorari to a case challenging Indiana’s “mature minors” parental notice law.
Republican Attorney General Curtis Hill announced Monday that his office had filed a cert petition in Kristina Box, Commissioner, Indiana State Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., on Friday.
At issue is the 2017 Senate Enrolled Act 404, which would have required parental notification for minors seeking an abortion unless a judge determined the notice would not be in the minor’s best interests.
Specifically, had the law taken effect, it 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.
But Planned Parenthood of Indiana and Kentucky, represented by the American Civil Liberties Union of Indiana, challenged SEA 404 in Indiana Southern District Court soon after the legislation was passed, and after hearing arguments, Senior Judge Sarah Evans Barker granted PPINK’s request for an injunction.
A divided panel of the 7th Circuit Court of Appeals upheld the injunction, with Judge David Hamilton writing for the majority 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.”
But Judge Michael Kanne dissented, writing separately that the appellate court could “only speculate” on the undue burden question because the law never took effect. Kanne repeated that argument in his dissent to the denial of panel rehearing and rehearing en banc, joined by judges Amy Coney Barrett, Michael Brennan, Joel Flaum and Michael Scudder.
Likewise, though he agreed with the denial of rehearing, Judge Frank Easterbrook wrote separately in October to say that “(u)nless 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 … .
“… 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 in a concurrence joined by Judge Diane Sykes. “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.”
The OAG seized on Easterbrook’s concurrence in urging the Supreme Court to grant cert, saying the 7th Circuit had “difficulty making sense of the tangled web of case law … .
“When even the most experienced and distinguished members of the federal judiciary throw up their hands in confusion,” Hill said in a statement, referencing Easterbrook and Sykes, “it is time for our nation’s highest court to issue guidance.”
The petition for certiorari largely focuses on the impact of the decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), which Hill’s office said is the root cause of the confusion and circuit splits over how juvenile abortion laws should be reviewed.
“The Court should therefore grant certiorari at the very least to clarify the standard for evaluating abortion regulations applicable to minors, and perhaps to clarify the undue burden standard more generally,” Indiana Solicitor General Thomas M. Fisher wrote in the petition. “Otherwise, Indiana will be left without a fair opportunity to defend its abortion regulations because lower-court judges cannot understand the appropriate constitutional standard.”
According to the petition, both the Southern District and the 7th Circuit applied Hellerstedt instead of Bellotti v. Baird, 443 U.S. 622 (1979), which permitted parental consent statutes in abortion law as long as the consent requirement can be judicially waived, and which the state says “governs the rights of minors to abortion.” Further, “Bellotti’s requirement that States permit ‘mature’ minors to obtain an abortion without parental consent does not constrain parental notice laws — which, unlike consent statutes, accommodate both the rights of the mature (but unemancipated) minor to have an abortion and the ongoing interests of her parents in her upbringing.”
Fisher wrote that Hellerstedt has been used by lower courts to make preceding abortion caselaw inapplicable. But he urged the justices to “take this case both to make it clear that Hellerstedt does not wipe out the Court’s prior abortion precedents (such as the holding of Bellotti placing minors on a separate abortion-rights track from adults) and to resolve the circuit conflict over whether the Fourteenth Amendment requires ‘mature minor’ judicial-bypass exceptions for parental-notice requirements.”
“More generally, this case also offers a chance to address multiple dimensions of the doctrinal havoc wrought by Hellerstedt,” Fisher wrote. “The decision below crystalizes many such issues, including the relevance of pre-Hellerstedt case holdings, the method for deciding pre-enforcement challenges under the undue-burden standard, the manner of balancing benefits and burdens under that standard, and the process for defining the fraction of women substantially burdened by an abortion regulation.”
In addition to the instant case, the state said the case of Box v. Planned Parenthood of Indiana & Kentucky, Inc., 18-1019 (U.S.), which addresses Indiana’s 18-hour ultrasound law, is another “excellent vehicle” to address those questions. The latter case has been distributed for conference among the justices numerous times, most recently in the Oct. 18 conference.
The cert petition also notes the pending decision in June Medical Services LLC v. Gee, 18-1323 (U.S.), could resolve questions regarding pre-enforcement injunctions and third-party standing.
In a news release, AG Hill said “America’s founding documents should bode well” for the parental-notice law.
“Nothing in the U.S. Constitution prohibits Indiana from requiring parental notification when an unemancipated minor is getting an abortion,” Hill said. “Even to get a tattoo, a minor in Indiana needs parental permission. Quite simply, parents have rights and responsibilities in the care and upbringing of a child.”
But Ken Falk, legal director of the ACLU of Indiana, has previously said PPINK presented evidence that demonstrates “what harm this law would cause,” and the state did not present evidence to the contrary. Further, Falk said the Supreme Court has a “long history of allowing pre-enforcement challenges where there is good reason to believe allowing the law to go into effect would cause a great deal of harm.”