Planned Parenthood of Ind. & Ky., Inc. v. Marion Cnty. Prosecutor

Citation7 F.4th 594
Decision Date02 August 2021
Docket NumberNo. 20-2407,20-2407
Parties PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff-Appellee, v. MARION COUNTY PROSECUTOR, et al., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Kenneth J. Falk, Gavin M. Rose, Attorneys, American Civil Liberties Union of Indiana, Indianapolis, IN, Carrie Y. Flaxman, Attorney, Planned Parent Federation of America, Washington, DC, for Plaintiff-Appellee.

Thomas M. Fisher, Attorney, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.

Before Easterbrook, Wood, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

This appeal queries whether an Indiana statute that requires medical providers to report complications "arising from" abortions to the state is unconstitutionally vague on its face. Although the statute has some ambiguity, we conclude that Planned Parenthood has not shown that the law is unconstitutionally vague on its face in this pre-enforcement challenge.

I. Background

Planned Parenthood of Indiana and Kentucky, Inc. ("Planned Parenthood") filed this suit on April 23, 2018 to challenge Indiana Senate Enrolled Act No. 340, which the governor signed into law on March 25, 2018. The Complaint took aim at two provisions of Enrolled Act No. 340—the Complications Statute and the Inspection Statute. The Complications Statute, Indiana Code § 16-34-2-4.7, required physicians to report to the state "any adverse physical or psychological condition arising from the induction or performance of an abortion." The Statute then provided a list of twenty-six conditions that the state considered reportable conditions. The word "including" preceded the conditions list, seemingly indicating that the list of twenty-six conditions was illustrative rather than exhaustive. The Inspection Statute, Indiana Code § 16-21-2-2.6, required annual inspection of abortion providers’ facilities, even though other kinds of healthcare facilities are inspected less frequently. Planned Parenthood sued Indiana's Health Department Commissioner and several county prosecutors (collectively, "the Defendants") seeking a declaration that the two Statutes were unconstitutional and a permanent injunction enjoining the Statutes’ enforcement.

In May 2018, Planned Parenthood moved for a preliminary injunction enjoining the enforcement of the Complications Statute. The district court held a hearing on the motion in June, and then granted Planned Parenthood's motion and preliminarily enjoined the enforcement of the Complications Statute as unconstitutionally vague.

In its order granting Planned Parenthood's motion, the court found that there was constitutionally intolerable overlap between "normal" side effects of abortions and "complications" that would trigger the reporting requirement. As a result, the Statute "fail[ed] to inform [Plaintiffs of] what conduct is prohibited." The district court was concerned that physicians would "run the risk of being found ... to be out of compliance with their statutory responsibilities" (and thereby risking time in prison and their medical licenses) for failing to report "every ‘adverse physical or psychological condition’ for which patients seek treatment as a reportable condition, no matter how routine, minor, and expected." The district court found the Complications Statute's illustrative list of conditions to be "so broad or vague that they do not remedy the uncertainty of the general definition of ‘abortion complication.’ "

In response, Indiana amended the Complications Statute. In the 2019 version, the legislature eliminated the "including" language that had previously indicated that the list was illustrative, as opposed to exhaustive. So, the 2019 version requires doctors to report only those conditions included on the Statute's list. As amended, the Complications Statute now requires physicians, hospitals, and abortion clinics to report abortion complications to the state that meet the following statutory definition:

(a) As used in this section, "abortion complication" means only the following physical or psychological conditions arising from the induction or performance of an abortion:
(1) Uterine perforation.
(2) Cervical laceration

.

(3) Infection.

(4) Vaginal bleeding that qualifies as a Grade 2 or higher adverse event according to the Common Terminology Criteria for Adverse Events (CTCAE).

(5) Pulmonary embolism.

(6) Deep vein thrombosis.

(7) Failure to terminate the pregnancy.

(8) Incomplete abortion (retained tissue).

(9) Pelvic inflammatory disease.

(10) Missed ectopic pregnancy.

(11) Cardiac arrest.

(12) Respiratory arrest.

(13) Renal failure.

(14) Shock.

(15) Amniotic fluid embolism

.

(16) Coma.

(17) Placenta previa in subsequent pregnancies.

(18) Pre-term delivery in subsequent pregnancies.

(19) Free fluid in the abdomen.

(20) Hemolytic reaction due to the administration of ABO-incompatible blood or blood products.

(21) Hypoglycemia occurring while the patient is being treated at the abortion facility.

(22) Allergic reaction to anesthesia or abortion inducing drugs.

(23) Psychological complications, including depression, suicidal ideation, anxiety, and sleeping disorders.

(24) Death.

(25) Any other adverse event as defined by criteria provided in the Food and Drug Administration Safety Information and Adverse Event Reporting Program.

Ind. Code § 16-34-2-4.7(a).

Licensed physicians, hospitals, and abortion clinics are subject to the Complications Statute and must submit to the state a complications report detailing the following information: the date the patient presented for treatment for the abortion complication; the patient's age, race, and county and state of residence; the type and date of the patient's abortion; the name of the facility where the patient had the abortion; details about any medications prescribed to the patient to facilitate the abortion; lists of any complications and the treatment provided; lists of any complications diagnosed or treated at follow-up visits; the dates of all follow-up visits; a statement regarding whether the complication was previously managed by the abortion provider or the abortion provider's required back-up physician; and a statement regarding whether the patient's visit to treat the complications was the original visit or a follow-up visit. Id. §§ 16-34-2-4.7(b, e).

The Statute imposes criminal penalties for failing to comply. "Each failure to report an abortion complication as required under this section is a Class B misdemeanor." Id. § 16-34-2-4.7(j). In Indiana, Class B misdemeanors are punishable by up to six months in prison and $1,000 in fines. Id. § 35-50-3-3. The Indiana Medical Licensing Board may also discipline physicians for failing to comply. See id. § 25-1-9-4(a)(3).

After the 2019 amendment, Planned Parenthood rejected Indiana's contention that the amendment rendered the Complications Statute constitutional. The parties therefore proceeded to brief cross motions for summary judgment.

The district court held that the Complications Statute is unconstitutionally vague and granted Planned Parenthood's motion as to the Complications Statute. The district court, however, upheld the constitutionality of the Inspection Statute. The court entered final judgment accordingly. On Planned Parenthood's motion, the district court amended its final judgment to reflect the inclusion of a permanent injunction against the enforcement of the Complications Statute, as amended.

Defendants now appeal the district court's grant of summary judgment to Planned Parenthood with respect to the Complications Statute. Planned Parenthood has not appealed the district court's decision with respect to the Inspection Statute. For the reasons discussed below, we reverse the district court's entry of summary judgment and remand for further proceedings.

II. Discussion

We review the district court's grant of summary judgment de novo.

Cobb v. Aramark Corr. Servs., LLC , 937 F.3d 1037, 1039 (7th Cir. 2019). "When reviewing cross-motions for summary judgment, ‘all reasonable inferences are drawn in favor of the party against whom the motion at issue was made.’ " Valenti v. Lawson , 889 F.3d 427, 429 (7th Cir. 2018) (quoting Tripp v. Scholz , 872 F.3d 857, 862 (7th Cir. 2017) ). The movant is entitled to summary judgment when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. (quoting Dunn v. Menard, Inc. , 880 F.3d 899, 905 (7th Cir. 2018) ).

The Supreme Court has long held that overly vague laws are unconstitutional under the Due Process Clause of the Fifth and Fourteenth Amendments. See, e.g. , Connally v. Gen. Const. Co. , 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Succinctly, "[i]n our constitutional order, a vague law is no law at all." United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 2323, 204 L.Ed.2d 757 (2019). The void-for-vagueness doctrine rests on the "twin constitutional pillars of due process and separation of powers." Id. at 2325 ; Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1212, 200 L.Ed.2d 549 (2018).

Only the people's elected representatives in the legislature are authorized to make an act a crime. Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they are expected to abide.

Davis , 139 S. Ct. at 2325 (internal quotations and citations omitted); see also Dimaya , 138 S. Ct. at 1212 (the vagueness doctrine is a "corollary of the separation of powers [doctrine]").

In Connally , the Court considered the constitutionality of an Oklahoma statute requiring the state to pay its employees "not less than the current rate of per diem wages in the locality where the work is performed." Connally , 269 U.S. at 388, 46 S.Ct. 126. The Court explained that "a statute which either forbids or requires the doing of an act in terms so vague that men of common...

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