Planned Parenthood of Ind. v. Box, 17-2428
| Decision Date | 30 October 2019 |
| Docket Number | No. 17-2428,17-2428 |
| Citation | 949 F.3d 997 (Mem) |
| Parties | PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., Plaintiff-Appellee, v. Kristina BOX, Commissioner, Indiana State Department of Health, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew Beck, Attorney, AMERICAN CIVIL LIBERTIES UNION, New York, NY, Melissa Ann Cohen, Jennifer Sandman, Attorneys, PLANNED PARENTHOOD FEDERATION OF AMERICA, New York, NY, Kenneth J. Falk, Gavin M. Rose, Attorneys, ACLU OF INDIANA, Indianapolis, IN, for Plaintiff - Appellee.
Thomas M. Fisher, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Defendants - Appellants.
Jennifer Perkins, Attorney, OFFICE OF THE ATTORNEY GENERAL, Phoenix, AZ, for Amicus Curiae STATE OF ARIZONA.
On Petition for Rehearing and Rehearing En Banc
Before Wood, Chief Judge, Flaum, Easterbrook, Kanne, Rovner, Sykes, Hamilton, Barrett, Brennan, Scudder, and St. Eve, Circuit Judges.
On consideration of defendants-appellants’ petition for rehearing and rehearing en banc, filed on September 24, 2019, a majority of judges in active service voted to deny the petition for rehearing en banc. Judges Flaum, Kanne, Barrett, Brennan, and Scudder voted to grant the petition for rehearing en banc. Judges Rovner and Hamilton voted to deny panel rehearing; Judge Kanne voted to grant panel rehearing.
Accordingly, the petition for rehearing and rehearing en banc filed by defendants-appellants is DENIED.
Talk is cheap, which makes it easy for the plaintiffs in a pre-enforcement suit to predict the worst and demand that an injunction issue before the disaster comes to pass. If the judge issues the injunction, the prediction cannot be tested—unless by chance a similar rule in some other state is not enjoined, and then the judiciary can learn by that experience. See, e.g., A Woman’s Choice—East Side Women’s Clinic v. Newman , 305 F.3d 684 (7th Cir. 2002). Unless 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; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow the states that much leeway. Talk of the states as laboratories is hollow if federal courts enjoin experiments before the results are in.
One case pending before the Supreme Court arises from a pre-enforcement injunction. A district court predicted that enforcement of an admitting-privileges requirement would close two of the three abortion clinics in Louisiana. June Medical Services LLC v. Kliebert , 250 F. Supp. 3d 27 (M.D. La. 2017). The court of appeals reversed, believing that prudent steps by physicians would keep all three open. June Medical Services L.L.C. v. Gee , 905 F.3d 787 (5th Cir. 2018), rehearing en banc denied, 913 F.3d 573 (5th Cir. 2019). The Supreme Court granted a petition for review. June Medical Services L.L.C. v. Gee , ––– U.S. ––––, 140 S.Ct. 35, 204 L.Ed.2d 1193 (2019). Before the Justices can address whether Louisiana’s statute creates an "undue burden," they must first decide what it would do if implemented—and the pre-enforcement injunction has made that difficult. (The Court stayed the Fifth Circuit’s decision, so the injunction remains in effect.) Perhaps the Justices will say something about the circumstances under which it is appropriate for a district court to issue pre-enforcement relief that forever prevents the judiciary from knowing what a law really does.
If that happens, a grant of rehearing en banc in this case would be unproductive. And whether or not it happens, a grant of rehearing en banc would delay the ultimate resolution of this dispute. For a court of appeals cannot decide whether requiring a mature...
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..., 888 F.3d 300, 313 (C.A.7 2018) (Manion, J., concurring in judgment in part and dissenting in part); Planned Parenthood of Ind. & Ky., Inc. v. Box , 949 F.3d 997, 999 (C.A.7 2019) (Easterbrook, J., concurring in denial of reh'g en banc) ("How much burden is ‘undue’ is a matter of judgment,......
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