Planned Parenthood of Indiana and Kentucky, Inc. v. Adams, 082719 FED7, 17-2428

Docket Nº:17-2428
Opinion Judge:HAMILTON, CIRCUIT JUDGE.
Party Name:Planned Parenthood of Indiana and Kentucky, Inc., Plaintiff-Appellee, v. Jerome M. Adams, Commissioner, Indiana State Department of Health, et al., Defendants-Appellants.
Judge Panel:Before Kanne, Rovner, and Hamilton, Circuit Judges. Kanne, Circuit Judge, dissenting.
Case Date:August 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Planned Parenthood of Indiana and Kentucky, Inc., Plaintiff-Appellee,

v.

Jerome M. Adams, Commissioner, Indiana State Department of Health, et al., Defendants-Appellants.

No. 17-2428

United States Court of Appeals, Seventh Circuit

August 27, 2019

Argued January 5, 2018

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:17-CV-01636-SEB-DML - Sarah Evans Barker, Judge.

Before Kanne, Rovner, and Hamilton, Circuit Judges.

HAMILTON, CIRCUIT JUDGE.

Consistent with Bellotti v. Baird, 443 U.S. 622 (1979), Indiana statutes have long provided a fast and confidential judicial bypass procedure that is supposed to allow a small fraction of pregnant, unemancipated minors seeking abortions to obtain them without the consent of or notice to their parents, guardians, or custodians. In 2017, Indiana added a parental notification requirement to the judicial bypass statute. Before the law took effect, plaintiff Planned Parenthood of Indiana and Kentucky, Inc. sued to enjoin its enforcement. In a careful opinion, the district court issued a preliminary injunction against enforcement of the new law's notice requirements. Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner, 258 F.Supp.3d 929, 956 (S.D. Ind. 2017). The defendant state officials have appealed a portion of the preliminary injunction. In light of the lopsided factual record, the deferential standard of review, and the preliminary status of the findings of fact and conclusions of law, we affirm.

I. Legislative Changes

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. Ind. Code § 16-34-2-4(a). 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. Ind. Code § 16-34-2-4(b). Known as a judicial bypass, this 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. Ind. Code § 16-34-2-4(e). Bellotti requires this exception as a matter of federal constitutional law. 443 U.S. at 643-44 (opinion of Powell, J.); accord, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 899 (1992). Bypass is supposed to be fast and confidential. Bellotti, 443 U.S. at 644 (bypass proceeding and any appeals must "be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained").

In 2017, the Indiana General Assembly enacted Public Law 173-2017, also known as Senate Enrolled Act 404, which amended the parental consent and judicial bypass statutes in several ways. This appeal focuses on one new requirement for the judicial bypass process. Even if a judge concludes that a parent need not consent to the abortion, either because the un-emancipated 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 per Bellotti, 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." Ind. Code § 16-34-2-4(d). The young woman's attorney "shall serve the notice required by this subsection by certified mail or by personal service." Id. A bypass court "shall waive the requirement of parental notification under subsection (d) if the court finds that obtaining an abortion without parental notification is in the best interests of the unemancipated pregnant minor." Ind. Code § 16-34-2-4(e). That difference in language is important. Unlike the judicial bypass of the parental consent requirement, which may be based on either maturity or best interests, judicial bypass of notice may be based only on "best interests."1

Out of the usual sequence for a judicial opinion, we address here one interpretive issue about the new notice requirement. We disagree 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 statute requires notice to parents after a bypass hearing but "before the abortion is performed/' Ind. Code § 16-34-2-4(d). We agree with the State that the requirement to serve notice is triggered only if the judge authorizes an abortion. See Zbaraz v. Madigan, 572 F.3d 370, 383 (7th Cir. 2009) ("Where fairly possible, courts should construe a statute to avoid a danger of unconstitutionality."), quoting Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990). Bypass proceedings and appeals are sealed. Ind. Code § 16-34-2-4(h). The new statute does not provide a legal mechanism that would allow a judge to order notice to parents of a minor's unsuccessful attempt to seek bypass.2

In addition to the notice requirement, Public Law 173-2017 changed the consent and judicial bypass statutes in other ways. Indiana already required parents to show their consent in writing, but the new law raised that requirement. It required a physician performing an abortion for a minor not only to obtain written parental consent but also to obtain government-issued proof of identification from the consenting parent, as well as "some evidence, which may include identification or other written documentation that provides an articulable basis for a reasonably prudent person to believe that the person is the parent or legal guardian or custodian of the unemancipated pregnant minor." Ind. Code § 16-34-2-4(a)(3). The new law also required a physician who obtains parental consent to execute and save an affidavit certifying that "a reasonable person under similar circumstances would rely on the information provided by the unemancipated pregnant minor and the unemancipated pregnant minor's parent or legal guardian or custodian as sufficient evidence of identity and relationship." Ind. Code § 16-34-2-4(k)(2).

The new law also added a section imposing civil liability on anyone who "knowingly or intentionally aid[s] or assist[s] an unemancipated pregnant minor in obtaining an abortion without the consent required" by the consent statute. Ind. Code § 16-34-2-4.2(c). In the district court, the parties agreed that this provision would prohibit Planned Parenthood and its physicians from providing an unemancipated minor information regarding out-of-state abortion services which ostensibly would not require parental consent or notice. Planned Parenthood, 258 F.Supp.3d at 934. The district court's preliminary injunction enjoined enforcement of all of those changes. Id. at 956. In this appeal, Indiana has not challenged those portions of the injunction, so we do not discuss them further.

Returning to the disputed new parental notice requirement in the judicial bypass procedure, it is relevant that Indiana law authorizes both criminal penalties and professional licensing sanctions against abortion providers and their employees for violating portions of Indiana's abortion law. E.g., Ind. Code § 16-34-2-7(b) (physician who intentionally or knowingly performs abortion in violation of Ind. Code § 16-34-2-4 commits Class A misdemeanor); Ind. Code § 25-1-9-4(a)(2)-(3) (Indiana Medical Licensing Board may discipline physicians who commit crimes); 410 Ind. Admin. Code § 26-2-8(b)(2) (abortion facilities, like some Planned Parenthood facilities, are subject to license revocation or discipline for "permitting, aiding, or abetting the commission of any illegal act in an abortion clinic").

Before the new law took effect, Planned Parenthood brought this lawsuit against several defendants in their official capacities: the Commissioner of the Indiana State Department of Health, the prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties, the members of the Indiana Medical Licensing Board, and the judge of the Juvenile Division of the Marion Superior Court (collectively, the "State"). The State appeals the portion of the preliminary injunction against the new parental notice requirement.

II. The Evidence and Likely Effects

In support of its motion for preliminary injunction, Planned Parenthood submitted affidavits from seven witnesses to show the likely effects of the statute. The State chose to introduce no evidence in response. The State argued that it was "self-evident" that it had met its burden to justify the law with a legitimate state interest. The State did not challenge the reliability or credibility of Planned Parenthood's evidence. That lopsided factual record indicates that, for the small group of minors affected by...

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