A Womans Choice-East Side Womens Clinic v. Newman

• Decision Date: 16 September 2002
• Docket Number: No. 01-2107.,01-2107.
• Citation: 305 F.3d 684
• Parties: A WOMAN'S CHOICE-EAST SIDE WOMEN'S CLINIC, et al., Plaintiffs-Appellees, v. Scott C. NEWMAN, Prosecuting Attorney for Marion County Indiana, on behalf of a class of prosecutors, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 684

305 F.3d 684

A WOMAN'S CHOICE-EAST SIDE WOMEN'S CLINIC, et al., Plaintiffs-Appellees, v.Scott C. NEWMAN, ProsecutingAttorney for Marion County Indiana, on behalf of a class of prosecutors, et al., Defendants-Appellants.

No. 01-2107.

United States Court of Appeals, Seventh Circuit.

ARGUED February 19, 2002.

DECIDED September 16, 2002.

Rehearing and Rehearing En Banc Denied October 28, 2002.^*

Mary J. Hoeller, White & Raub, Indianapolis, IN, Simon Heller(argued), Center for Reproductive Law & Policy, New York, NY, Colleen K. Connell, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for plaintiff-appellee.

Thomas M. Fisher(argued), Office of the Attorney General, Indianapolis, IN, for defendant-appellant.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 1995 Indiana enacted a statute making the woman's informed consent a condition to an abortion.Ind.Code § 16-34-2-1.1.Even though the text of this law is materially identical to one held constitutional in Planned Parenthood of Southeastern Pennsylvania v. Casey,505 U.S. 833, 881-87, 112 S.Ct. 2791, 120 L.Ed.2d 674(1992), a federal district court issued a preliminary injunction preventing the statute from taking effect.A Woman's Choice-East Side Women's Clinic v. Newman,904 F.Supp. 1434(S.D.Ind.1995).Two years later, the district court modified this injunction to permit the state to enforce most of the law, but it blocked enforcement of the requirement that information be provided "in the presence of the pregnant woman, [by] the physician who is to perform the abortion, the referring physician or a physician assistant"(§ 16-34-2-1.1(1)).See980 F.Supp. 962(1997).After four more years had passed, the judge held a trial and made permanent the injunction as modified in 1997. 132 F.Supp.2d 1150(2001).

By requiring information to be supplied "in the presence of the pregnant woman" — rather than by printed brochure, telephone, or web site — the statute obliges the woman to make two trips to the clinic or hospital.This raises the cost (both financial and mental) of an abortion.On the basis of studies concerning similar laws in Mississippi and Utah, the district court concluded that the higher cost will reduce by 10% to 13% the number of abortions performed in Indiana.Some of these women will travel to states that do not require two trips; others will forego an abortion; some who do have an abortion in Indiana will delay that procedure until the second trimester.These consequences show that the law creates an "undue burden" on abortion, the district judge held.Although by the time the district judge entered the permanent injunction we had concluded that the Mississippi study does not warrant condemnation of Wisconsin's law (which like Pennsylvania's requires two trips to the medical facility and a 24-hour wait), seeKarlin v. Foust,188 F.3d 446, 484-88(7th Cir.1999), the district judge wrote that data from the Utah study, and a new analysis of the Mississippi data, require a different result.The judge also thought that experience in Indiana showing that the demand for abortion did not decline when information was provided on paper or over the telephone implies that the reduction in the number of abortions is attributable to higher cost (a bad reason) rather than to the statutory information (a valid reason).

Indiana's statute reads as follows:

An abortion shall not be performed except with the voluntary and informed consent of the pregnant woman upon whom the abortion is to be performed.Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the following conditions are met:

(1) At least eighteen (18) hours before the abortion and in the presence of the pregnant woman, the physician who is to perform the abortion, the referring physician or a physician assistant (as defined in IC 25-27.5-2-10), an advanced practice nurse (as defined in IC25-23-1-1(b)), or a midwife (as defined in IC 34-18-2-19) to whom the responsibility has been delegated by the physician who is to perform the abortion or the referring physician has orally informed the pregnant woman of the following:

(A) The name of the physician performing the abortion.

(B) The nature of the proposed procedure or treatment.

(C) The risks of and alternatives to the procedure or treatment.

(D) The probable gestational age of the fetus, including an offer to provide:

(i) a picture or drawing of a fetus;

(ii) the dimensions of a fetus; and

(iii) relevant information on the potential survival of an unborn fetus;

at this stage of development.

(E) The medical risks associated with carrying the fetus to term.

(2) At least eighteen (18) hours before the abortion, the pregnant woman will be orally informed of the following:

(A) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care from the county office of family and children.

(B) That the father of the unborn fetus is legally required to assist in the support of the child.In the case of rape, the information required under this clause may be omitted.

(C) That adoption alternatives are available and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care.

(3) The pregnant woman certifies in writing, before the abortion is performed, that the information required by subdivisions (1) and (2) has been provided.

When the litigation began, plaintiffs challenged not only the requirement that advice be delivered in person but also the medical-emergency exception, which they deemed insufficient because it lacks details found in the Pennsylvania statute.The district court certified the medical-emergency issue to the Supreme Court of Indiana, whose interpretation, seeA Woman's Choice — East Side Women's Clinic v. Newman,671 N.E.2d 104(Ind.1996), satisfied the district judge.See980 F. Supp. at 966.Plaintiffs then dropped this objection, leaving only the advice requirement as a ground of contention.^†

Indiana makes much of the fact that its statute has never been allowed to operate as written.It relies on United States v. Salerno,481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697(1987), for the proposition that, except in first amendmentcases, a law may be held unconstitutional only when "no set of circumstances exists under which the Act would be valid."Yet in Stenberg v. Carhart,530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743(2000), without so much as a mention of Salerno,the Court held invalid, in a pre-enforcement challenge, an abortion statute that might have been construed by the state courts to have at least some proper applications.This leaves us with irreconcilable directives from the Supreme Court.The Justices have insisted that courts lower in the hierarchy apply their precedents unless overruled, even if they seem incompatible with more recent decisions.See, e.g., State Oil Co. v. Khan,522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199(1997);Rodriguez de Quijas v. Shearson/American Express, Inc.,490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526(1989).When the Justices themselves disregard rather than overrule a decision — as the majority did in Stenberg, and the plurality did in Casey — they put courts of appeals in a pickle.We cannot follow Salerno without departing from the approach taken in both Stenberg and Casey; yet we cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books.See also, e.g., Scheiber v. Dolby Laboratories, Inc.,293 F.3d 1014(7th Cir.2002)(followingBrulotte v. Thys Co.,379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99(1964), even though it is incompatible with the rationale of more recent decisions).Troxel v. Granville,530 U.S. 57, 85 n. 6, 120 S.Ct. 2054, 147 L.Ed.2d 49(2000), offers us a way out by calling the language in Salerno a "suggestion," an approach not essential to Salerno's judgment.Given the incompatibility between Salerno's language and Stenberg's holding, it is the language of Salerno that must give way.

Still, to say that a claim is justiciable does not mean that we must ignore the fact that enforcement has not commenced.Plaintiffs rely on predictions about what is likely to happen if Indiana's law were enforced as written.Because Indiana has been disabled from implementing its law and gathering information about actual effects, any uncertainty about the inferences based on other states' experience and how that experience would carry over to Indiana must be resolved in Indiana's favor.This, coupled with doubts about the role of predictions in constitutional analysis, turns out to be important, for reasons explained presently.

Casey stated, and Karlin reiterated, that an informed-consent statute may have effects that differ from the written terms, and that those effects could in principle demonstrate that an innocuous-appearing law actually imposes an undue burden on abortion.But neither decision explained how such factual arguments are to be evaluated: before implementation or after?, using what standards?Normally a court asked to say that a statute will have forbidden effects asks only whether a proper outcome is possible; it does not hold a trial — and, if a district judge nonetheless takes evidence and makes findings, the appellate court will reexamine matters with a heavy presumption favoring the law's constitutional application.See, e.g., Vance v. Bradley,440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171(1979);National Paint & Coatings Ass'n v. Chicago,45 F.3d 1124(7th Cir.1995).One may say in response that these cases deal with rational-basis review, while abortion implicates fundamental rights.But laws that regulate, not abortion itself, but ancillary issues (such as informed consent), do not affect fundamental rights unless the ancillary rule creates an...