SCOTUS remands 2 Indiana abortion cases, won’t hear ‘buffer zone’ challenges

The U.S. Supreme Court on Thursday remanded to the 7th Circuit Court of Appeals two lawsuits challenging Indiana laws restricting abortions, leaving undisturbed for now lower court rulings striking down state laws that would have required stricter ultrasound measures and parental notification for mature minors.

The orders came on the same day justices declined to hear challenges of “buffer zone” restrictions from two other states and days after a 5-4 decision overturned abortion restrictions in a closely watched Louisiana abortion case. 

The Indiana cases are the state’s appeals in two cases where abortion laws were struck down by the 7th Circuit. The first seeks to reinstate a law that would require a woman to have an ultrasound 18 hours before having an abortion. The other would have made it tougher for girls under age 18 to get an abortion without their parents’ consent.

In both cases, the justices granted the state’s petition for certiorari and remanded both “for further consideration in light of June Medical Services L.L.C. v. Russo, 591 U. S. ___ (2020).

In that Louisiana case, justices decided Monday that a law requiring doctors who perform abortions to have admitting privileges at nearby hospitals violates abortion rights the court first announced in the landmark Roe v. Wade decision in 1973. The decision divided the court’s conservatives and liberals 5-4, with Chief Justice John Roberts joining his four more liberal colleagues to strike down the law.

It was the first big abortion case of the Trump era and a surprising defeat for abortion opponents, who thought the court’s new conservative majority with two members appointed by President Donald Trump — justices Neil Gorsuch and Brett Kavanaugh — would start chipping away at abortion access.

The Indiana cases are both captioned Kristina Box et al. v. Planned Parenthood of Indiana and Kentucky — cause 18-1019 being the ultrasound case and cause 19-816 the parental consent law.

The 7th Circuit in July 2018 struck down House Enrolled Act 1337, signed into law by then-Gov. Mike Pence. The law required women who choose to have an abortion in Indiana to first view an ultrasound of the fetus at least 18 hours in advance of the procedure.

“In light of the evidence of substantial burdens imposed by the law and without evidence that the additional eighteen hours following an ultrasound has any legitimate persuasive effect on decision-making, the law constitutes an undue burden on those seeking an abortion without any known benefits to balance it,” Judge Ilana Rovner wrote for the panel that also included Judge William Bauer. Judge Michael Kanne concurred with a separate opinion.

The Chicago appellate court last August more narrowly struck down a 2017 law signed by Gov. Eric Holcomb that would have required parental notification for mature minors seeking an abortion. Judges David Hamilton and Ilana Rovner formed the majority in a 2-1 decision striking down the law, while Kanne dissented and would have permitted the law to take effect. The state appealed the ruling to the U.S. Supreme Court after 7th Circuit denied the state’s petition for en banc review of the case.

Separately Thursday, justices said in a written order that they would not hear cases from Chicago and Harrisburg, Pennsylvania, where anti-abortion activists had challenged ordinances that restrict their behavior outside clinics.

As is usual, the justices did not comment in turning away the cases. The order from the court noted Justice Clarence Thomas would have heard the Chicago case.

The Supreme Court has since the late 1990s heard several cases involving demonstration-free zones, called buffer zones, outside abortion clinics. Most recently, in 2014, the justices unanimously struck down a law that created a 35-foot protest-free zone outside Massachusetts abortion clinics. The court said Massachusetts’ law, which made it a crime to stand in the protest-free zone for most people not entering or exiting the clinic or passing by, was an unconstitutional restraint on the free-speech rights of protesters.

On Thursday, one of the two cases the court declined to take up involved a 2012 ordinance passed by the city council in Harrisburg, Pennsylvania’s capital, that made it illegal to “congregate, patrol, picket or demonstrate” in a zone 20 feet from a health care facility. Anti-abortion activists sued, arguing the ordinance violates their free-speech rights. Lower courts have upheld the ordinance, however, ruling it doesn’t apply to “sidewalk counseling,” where individuals who oppose abortion offer assistance and information about alternatives to abortion to those entering a clinic.

The second case the court turned away on Thursday involved a Chicago ordinance that regulates the space 50 feet from the entrance of any abortion clinic or other medical facility. In that space, a person cannot come within 8 feet of another person without their consent to hand them information or engage in “oral protest, education, or counseling.” The ordinance was modeled on a statute upheld by the Supreme Court in 2000.

Anti-abortion activists told the Supreme Court that Chicago’s ordinance violates their free-speech rights and that the high court’s decision from 2000 should be reconsidered. A trial court previously dismissed the lawsuit, and an appeals court upheld that decision.

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