Indiana asks SCOTUS to review mature-minors abortion law a second time

A case challenging an Indiana abortion law that requires “mature minors” to notify their parents before getting an abortion is back before the United States Supreme Court, with the state of Indiana asking the justices to take the case to provide clarity on a legal issue that it says caused the 7th Circuit to “(throw) up its hands in frustration.”

Indiana Attorney General Todd Rokita on Monday filed a petition for writ of certiorari in Kristina Box, Commissioner, Indiana State Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc. The case involves a challenge to Senate Enrolled Act 404, a 2017 law that, had it taken effect, would have required so-called mature minors to notify their parents before undergoing an abortion procedure, even if a court determined parental consent was not required for the abortion.

“This case presents a simple question, namely, whether States can ensure that parents of unemancipated minor children are notified of their daughters’ court-authorized abortion. But answering that seemingly direct question has plainly roiled the Seventh Circuit’s judges — regardless of how they ultimately voted — owing to the ‘not stable’ and ‘fluid’ constitutional standards application to abortion regulations,” the state’s cert petition reads. “Indeed, at least some, if not most, Seventh Circuit judges have refused to engage the issue at all because only this Court can say what ‘undue burden’ means in any given context. Accordingly, the State urges the Court to grant its petition and clarify abortion-rights doctrine, at least with respect to parental-notice laws.”

The case against SEA 404 has already been to the Supreme Court and back.

Indiana Southern District Court Senior Judge Sarah Evans Barker entered an injunction before the law took effect in 2017, and the 7th Circuit affirmed in August 2019.  The U.S. Supreme Court then granted cert and remanded the case for another 7th Circuit review in light of June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020). The 7th Circuit earlier this month again upheld the injunction.

However, the 7th Circuit’s decisions have never been unanimous, with Judge Michael Kanne dissenting from both the original ruling and the ruling on remand. The court also split in October 2019 in its denial of a petition to rehear the case en banc.

The state seized on that split within the circuit, as well as among the circuit courts nationwide, in urging the justices to again take up the case.

“The en banc Seventh Circuit has seemingly thrown up its hands in frustration with abortion doctrine. And the State’s inability to enforce the law from the get-go prevents it from gathering evidence rebutting the Seventh Circuit panel’s Hellerstedt balancing theory,” the state wrote, referencing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

“This Court, therefore, truly is ‘the only institution that can give an authoritative answer’ to the question presented. … It should do so principally to resolve a circuit split on the legality of abortion parental-notice laws, but also potentially, to clear up yet another abortion-doctrine issue over which the circuits are (already) in conflict: The meaning of June Medical and, by extension, the prevailing doctrinal standard for evaluating abortion regulations.”

The core question in the case is whether parental notification laws in minor abortion cases should include exceptions for mature minors. The mature-minors exception applies to parental consent laws in abortion cases, as do exceptions for a girl’s best interests, pursuant to Bellotti v. Baird, 443 U.S. 622 (1979).

SEA 404, which deals with parental notification, not consent, includes only a best-interests exception to the requirement that parents be notified when a teen plans to get an abortion. Planned Parenthood of Indiana and Kentucky argued that the Bellotti mature-minors exception should also apply to the parental notification requirement in the bill, and the district court agreed.

The state, however, continues to argue that parental-notice laws should not be treated the same as parental-consent laws.

“In the notice context, both the parents’ interests in being informed of their child’s medical decision and the minor’s interest in making her own abortion decision can be protected. With respect to Indiana’s parental-notice statute, for example, the concern … about parents having an absolute veto power over the minor’s abortion decision is simply not present: The Indiana statute requires notice after the decision has been made and approved by a court, and it requires only that the notice occur ‘before’ the abortion, which does not demand sufficient time for the parents to try to dissuade the child from proceeding,” the state wrote.

Further, as to the issue of parental abuse, “the statute already contains an exception where parental notification would not be in the minor’s best interests.”

The 7th Circuit, however, “sidestepped” Bellotti, the state said, and affirmed the injunction under the undue burden standard established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), applied via Hellerstedt.

Then came June Medical, which struck down a Louisiana law regarding hospital admitting privileges for abortion providers. The instant case was remanded for reconsideration under June Medical, but the justices did not hand down a single majority opinion.

Ultimately, the 7th Circuit held that June Medical did not affect its ruling upholding the injunction against SEA 404, though the court again split. The panel held that the narrowest common ground in June Medical came from Chief Justice John Roberts’ concurring opinion, which held that “Hellerstedt merely applied the undue burden framework of (Casey) … under which abortion lawsuits are permissible unless they pose a ‘substantial obstacle’ to women seeking abortions.”

Other circuits, however, have adopted different views of June Medical.

“In a word, June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020), has been a disaster for lower courts to implement,” the state wrote in its petition. “The circuits disagree not only which June Medical opinion controls, but also as to what it means to discern the narrowest common ground from a splintered Supreme Court decision — i.e., the test from Marks v. United States, 430 U.S. 188 (1977). And district courts have their own takes on the matter, which is leading them to conduct lengthy and expensive trials premised on standards that may prove outdated, untenable, or both.

“The dispute over June Medical is sufficiently fundamental that, even if the Court thinks juveniles have the same abortion rights as adults, it should take this case to clarify the controlling standard — and to explain how it applies to pre-enforcement challenges seeking preliminary injunctions.”

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