By Jeffrey H. Brochin, J.D.
The district court record offered no clarity as to whether Indiana’s abortion notification requirement constituted a substantial obstacle for minors, and due to such speculation, the preliminary injunction was reversed.
The U.S. Court of Appeals for the 7th Circuit has reversed a lower court ruling that ordered a pre-enforcement preliminary injunction enjoining Indiana’s parental notification of abortion requirement. The district court applied a standard for a pre-enforcement facial challenge of the abortion statute relying on the severity and character of harm presented by certain abortion restrictions rendering them vulnerable to pre-enforcement facial challenges. However, the appeals court found that generalized information about abortion regulation cannot substitute for specific, tailored data regarding the statute, and ruled that the proper time to bring the challenge is after enforcement has revealed those effects (Planned Parenthood of Indiana and Kentucky, Inc. v. Adams August 27, 2019, Hamilton, CJ).
Judicial bypass. As a general rule, Indiana prohibits physicians from performing abortions for unemancipated minors without the written consent of the minor’s parent, legal guardian, or custodian. The law provides an exception, however, so that a minor who objects to the consent requirement or whose parent, guardian, or custodian refuses to consent may petition a juvenile court for a waiver of the consent requirement. Known as a judicial bypass, the procedure permits the minor to obtain an abortion without parental consent if the court finds either that she is mature enough to make the abortion decision independently, or that an abortion is in her best interests.
2017 amendment. In 2017, the Indiana General Assembly enacted Public Law 173-2017, which amended the parental consent and judicial bypass statutes in several ways. One new requirement established that even 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 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."
Before the law took effect, Planned Parenthood of Indiana and Kentucky, Inc. (Planned Parenthood) sued to enjoin its enforcement, and the district court issued a preliminary injunction against enforcement of the new law’s notice requirements. The state then appealed a portion of the preliminary injunction.
Dispute as to notice trigger. The court first addressed a matter of interpreting the new notice requirement, and stated its disagreement with Planned Parenthood’s argument that the statute permits notice to parents even if the bypass court refuses to allow the pregnant minor to proceed without her parents’ consent. The appeals court interpreted the statute to require notice to parents after a bypass hearing but ‘before the abortion is performed’, and therefore agreed with the state that the requirement to serve notice upon the parent is triggered only if the judge authorizes an abortion. The new statute did not provide a legal mechanism that would allow a judge to order notice to parents of a minor’s unsuccessful attempt to seek bypass.
Reliance on uncontradicted affidavits. Crediting the uncontradicted affidavits offered by Planned Parenthood, the district court found that the requirement of providing parental notification before obtaining an abortion carried with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction, and the court therefore rejected as ‘simply incorrect’ the state’s argument that Planned Parenthood was required to wait to challenge the law until it had evidence of the law’s effect after it went into effect.
At-risk argument irrelevant. However, the appeals court rejected the at-risk argument, noting that a minor’s maturity has no relation to the likelihood of abuse (or at least, Planned Parenthood did not introduce evidence explaining why that might be so) and cited precedent that a woman who is intellectually and emotionally capable of making important decisions without parental assistance should also be capable of ignoring any parental disapproval. They therefore found Planned Parenthood’s evidence regarding at-risk minors to be irrelevant to the question of whether the Constitution requires an exception to parental notification for mature minors.
They also noted that when a court concludes that a minor is mature enough to decide to have an abortion but also that the minor’s best interests would be served by notifying her parents, the state has a legitimate and significant interest in requiring that notification.
Proper time to challenge statute. To the extent Planned Parenthood may believe that the notification statute will have unanticipated or inexplicable effects, the proper time to bring the challenge is after enforcement has revealed those effects, according to the appeals court.
The operative question was whether, given the state’s manifest interest in involving parents in consequential decisions by their children, the notification requirement constituted a substantial obstacle for mature minors. The record provided no clarity on that point, and so—because the law was enjoined pre-enforcement—the appeals court was left to speculate. Relying on the doctrine that ‘evidence matters’, the appeals court found that the district court abused its discretion when it enjoined the law pre-enforcement, and reversed the decision.
The case is No. 17-2428.
Attorneys: Andrew Beck (American Civil Liberties Union) for Planned Parenthood of Indiana and Kentucky, Inc. Thomas M. Fisher, Office of the Attorney General, for Jerome M. Adams.
Companies: Planned Parenthood of Indiana and Kentucky, Inc.
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