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Planned Parenthood of Indiana and Kentucky, Inc. v. Adams

United States Court of Appeals, Seventh Circuit

August 27, 2019

Planned Parenthood of Indiana and Kentucky, Inc., Plaintiff-Appellee,
v.
Jerome M. Adams, Commissioner, Indiana State Department of Health, et al., Defendants-Appellants.

          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 this law, requiring parental notice is likely a "deal breaker" for a significant fraction. Smith Decl. ¶ 20. Our summary of the evidence draws heavily from Judge Barker's thorough opinion.

         Planned Parenthood is a not-for-profit corporation that operates multiple Indiana health centers. Beeley Decl. ¶ 3. Those centers provide reproductive health services and comprehensive sexuality education to thousands of women and men, including adults and teenagers. Id. Consistent with Indiana law, Planned Parenthood physicians provide abortions to minors at the four Planned Parenthood facilities in Indiana that offer abortion services. Beeley Decl. ¶¶ 4-5, 8. The vast majority of these minors obtain consent from their parents, guardians, or custodians. In fiscal year 2015 (the most recent data in the record), over 96 percent had obtained consent; fewer than four percent had obtained a judicial bypass. Beeley Decl. ¶¶ 9, 19. That amounts on average to about ten judicial-bypass abortions per year by Planned Parenthood. See Smith Decl. ¶ 9.

         Planned Parenthood counsels minors to discuss their desire for an abortion with a parent. Beeley Decl. ¶ 20. Some minors tell Planned Parenthood staff that they do not want to, or feel they cannot, inform their parents that they are pregnant and wish to obtain an abortion. Id., ¶¶ 20-21. In that case, Planned Parenthood gives the minor the telephone number of the bypass coordinator-a person who does not work for Planned Parenthood and who maintains a list of attorneys who can represent a young woman in a judicial bypass proceeding. Beeley Decl. ¶ 24; Smith Decl. ¶¶ 5-6. Planned Parenthood does not sponsor the bypass coordinator's efforts. Smith Decl. ¶ 6.

         Over a six-year period, between October 2011 and September 2017, approximately 60 minors contacted Indiana's bypass coordinator. Smith Decl. ¶ 9. Most were seventeen years old. Id. Usually, the young women interested in pursuing judicial bypass have not told their parents that they are pregnant and are seeking an abortion. Id., ¶ 14. These young women have expressed various reasons for not telling their parents. Some fear being kicked out of their homes. Others fear being abused or punished, or fear that their parents will try to block an abortion. Id., ¶¶ 15-16; Beeley Deck ¶ 22; Flood Decl. ¶ 9; Pinto Decl. ¶¶ 14-15; Lucido Decl. ¶¶ 8-12. One young woman was forced to give birth because her mother discovered her pregnancy and blocked her ability to have an abortion. Glynn Decl. ¶ 13.

         Other minors express related concerns like injury to their relationships with their parents or parental disappointment. Smith Decl. ¶ 17. Some minors do not know where their parents are and have no legal guardian or custodian who could fulfill the consent requirement. Beeley Decl. ¶ 23; Lucido Decl. ¶ 13. Consistently, the young women express their fear that their parent(s) will discover that they are pregnant and seeking an abortion. Smith Decl. ¶ 18; Glynn Decl. ¶ 12; Lucido Decl. ¶¶ 8-13.

         The bypass coordinator currently informs young women that no one involved in the bypass process will notify their parents that they are pregnant or seeking an abortion. Smith Decl. ¶ 18. As the district court found, however, Indiana's new law makes this assurance impossible. 258 F.Supp.3d at 936-37. The district court also found that bypasses granted to Planned Parenthood's patients "have generally been based on the juvenile court's finding that the minor was sufficiently mature to make the abortion decision independent of her parents," as distinct from the minor's "best interests." Id. at 936, citing Beeley Decl. ¶ 26; Flood Decl. ¶ 6; Glynn Decl. ¶ 9.

         III. The District Court's Analysis

         The district court enjoined the enforcement of the parental notification requirement. Planned Parenthood, 258 F.Supp.3d at 956. The court identified the tension in the case law regarding the standard for a pre-enforcement facial challenge of an abortion statute, id. at 937-39, and noted that "the severity and character of harm presented by certain abortion restrictions render them vulnerable to pre-enforcement facial challenges." Id. at 939. Crediting the uncontradicted affidavits offered by Planned Parenthood, the district court found that "the requirement of providing parental notification before obtaining an abortion carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction." Id. The court therefore rejected as "simply incorrect" the State's argument that Planned Parenthood must wait to challenge the law until it has evidence of the law's effect after it goes into effect. Id.

         On the merits, the district court reviewed the evolution of both Supreme Court and circuit precedent in this challenging area of the law. 258 F.Supp.3d at 940-46. Following the command of Planned Parenthood v. Casey in applying the "undue burden" standard, the district court identified the relevant group of young women as the "group for whom the law is a restriction, not the group for whom the law is irrelevant." Id. at 939, quoting 505 U.S. at 894. The court then described that group as young women who face the possibility of interference, obstruction, or abuse as a result of the parental notification requirement. The district court entered a preliminary injunction because the notice requirement was likely to "create an undue burden for a sufficiently large fraction of mature, abortion-seeking minors in Indiana." 258 F.Supp.3d at 939- 40, citing Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2320 (2016).

         IV. Pre-Enforcement Facial Challenge

         The State argues that the district court erred in issuing the preliminary injunction because a facial challenge requires evidence of a law's effects, and that evidence can be obtained only by allowing a law to go into effect. The State's position derives primarily from language in our decision in A Woman's Choice-East Side Women's Clinic v. Newman, where we said that "it is an abuse of discretion for a district judge to issue a pre-enforcement injunction while the effects of the law (and reasons for those effects) are open to debate." 305 F.3d 684, 693 (7th Cir. 2002). Strictly speaking, this passage was dicta in the opinion, which addressed a permanent injunction after discovery and a full trial, not the earlier preliminary injunction, but it was obviously considered dicta.

         The State's position overstates the evidence required for a pre-enforcement facial challenge, as shown by a broader look at cases decided before and after A Woman's Choice. When we decided A Woman's Choice, there was a sharper conflict in Supreme Court precedent on this question. In United States v. Salerno, the Supreme Court had said broadly that, outside the First Amendment, a law is facially invalid only where "no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745 (1987). But Salerno was about the Bail Reform Act. In Casey and in Stenberg v. Carhart, the Court had invalidated two abortion statutes on pre-enforcement facial challenges without even mentioning Salerno. See Casey, 505 U.S. at 845, 895; Stenberg, 530 U.S. 914, 945 (2000).

         The State argues that A Woman's Choice resolved the tension and that "the applicable test on a pre-enforcement facial challenge to an abortion regulation is whether the law will incontrovertibly impose an undue burden." State's Br. at 12. It is difficult to reconcile this rule of thumb with the general standard for preliminary injunctions, which requires the district court to exercise its sound equitable discretion in balancing several factors. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). Also, other decisions by this court, both before and after A Woman's Choice, have recognized that the law on this question has not been as clearcut as the State argues. See, e.g., Zbaraz v. Madigan, 572 F.3d at 381 n.6 (noting "some disagreement" over applicability of Casey's "large fraction" test or Salerno's "no set of circumstances" test-because of 2008 Supreme Court decision affirming Salerno's applicability outside abortion context-but upholding parental notice requirement with judicial bypass under either standard); Karlin v. Foust, 188 F.3d 446, 483 (7th Cir. 1999) (noting "considerable disagreement" over which standard to apply because Casey "appears to have tempered, if not rejected, Salerno's stringent 'no set of circumstances' standard in the abortion context," but assuming applicability of Casey's large fraction test because neither party appealed district court's use of Casey test); see also Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F.3d 786, 788, 789 (7th Cir. 2013) (affirming injunction against requirement that physicians who perform abortions have admitting privileges at nearby hospital).

         The biggest problem for the State's argument is that A Woman's Choice was decided before the Supreme Court decided Whole Woman's Health v. Hellerstedt, which confirmed that the Casey undue burden standard applies to pre-enforcement facial challenges to statutes regulating abortion. 136 S.Ct. at 2309-10 (identifying Casey undue burden standard as applicable test); id. at 2314-18 (applying undue burden standard to facial challenge to surgical center requirement statute); id. at 2320 (identifying denominator for large-fraction test). In Whole Woman's Health, the plaintiffs brought a pre-enforcement facial challenge to a Texas statute requiring that abortion facilities abide by the same minimum facility standards as ambulatory surgical centers. See id. at 2300; id. at 2301 (noting that petitioners brought suit on April 6, 2014 seeking "an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas"). The Supreme Court applied the undue burden standard and reversed the denial of an injunction, without citing Salerno. To support that reversal, the Court relied on pre-enforcement evidence from the district court. E.g., id. at 2317.[3]

         These applications fit with the Supreme Court's recent acknowledgment that facial challenges may "proceed under a diverse array of constitutional provisions." City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015) (collecting cases); see also Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 Calif. L. Rev. 915, 918 (2011) ("Facial challenges also succeed much more frequently than either Supreme Court Justices or most scholarly commentators have recognized.").

         V. Applying the Preliminary Injunction Standard

         To obtain a preliminary injunction, a plaintiff must show a reasonable likelihood of success on the merits, the absence of an adequate remedy at law, and a threat of irreparable harm without the injunction. E.g., Planned Parenthood of Indiana, Inc. v. Commissioner, 699 F.3d 962, 972 (7th Cir. 2012). If the plaintiff makes this showing, the court weighs two additional factors: the balance of harms-harm to the plaintiff if the injunction is erroneously denied versus harm to the defendant if the injunction is erroneously granted-and the effect of the injunction on the public interest. Id.; accord, Winter, 555 U.S. at 24; Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992). The higher the likelihood of success on the merits, the less decisively the balance of harms needs to tilt in the moving party's favor.

         In reviewing a district court's grant of a preliminary injunction, we review factual findings for clear error, legal conclusions de novo, and balancing of the equitable factors for abuse of discretion. The abuse of discretion standard means that the district court's weighing of evidence and balancing of the equitable factors receive "substantial deference." Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Educ, 858 F.3d 1034, 1044 (7th Cir. 2017). That deference is appropriate given the nature of preliminary injunction decisions, which must be based on incomplete information and are subject to further consideration and revision after discovery, more evidence, and a trial.

         Motions for preliminary injunctions call upon courts to make judgments despite uncertainties. Uncertainty about a law's application does not necessarily preclude an injunction. We have read Casey as calling for consideration of a law's "likely effect." E.g., Karlin, 188 F.3d at 481 (emphasis added). Casey itself spoke in terms of possibilities in striking down a spousal notice law before it took effect. See, e.g., 505 U.S. at 893 ("may fear," "likely to prevent," "will impose"), 895 ("will operate") (opinion of the Court) (emphases added).

         Our decision in A Woman's Choice is not inconsistent with this focus. In A Woman's Choice, the state had not appealed the preliminary injunction that preserved the status quo while the parties developed a more complete record. See 305 F.3d at 684. The preliminary injunction had been issued despite the district court's inability "to draw definitive conclusions." A Woman's Choice-East Side Women's Clinic v. Newman, 904 F.Supp. 1434, 1462 (S.D. Ind. 1995) (emphasis in original). And when we decided the appeal from the permanent injunction in that case, we distinguished the record before us from the record in Casey on spousal notice, a record showing a rule "facilitating domestic violence or even inviting domestic intimidation."

         A Woman's Choice, 305 F.3d at 692.[4]

         A. Likelihood of Success on the Merits

         We consider first Planned Parenthood's likelihood of success on the merits, and then turn to the other equitable factors for preliminary injunctive relief. The district court concluded that Planned Parenthood demonstrated a likelihood of success on the merits because the parental notification requirement appeared highly likely to impose an undue burden for the minors whom it will affect. We agree with the district court's analysis, except that we do not need to decide whether the Supreme Court's requirements for parental consent statutes also apply in full to parental notice statutes.

         Planned Parenthood demonstrated a likelihood of success on the merits because Indiana's notice law creates a substantial risk of a practical veto over a mature yet unemancipated minor's right to an abortion. This practical veto appears likely to impose an undue burden for the unemancipated minors who seek to obtain an abortion without parental involvement via the judicial bypass. The burden appears to be undue because the State has made no effort to support with evidence its claimed justifications or to undermine with evidence Planned Parenthood's showing about the likely effects of the law.

         In Whole Woman's Health, the Supreme Court applied the Casey plurality's undue burden standard. 136 S.Ct. at 2309-10. The undue burden standard "is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Casey, 505 U.S. at 877 (plurality opinion). In both cases, the Court took a commonsense approach in considering the practical effects of the state regulations. Whole Woman's Health, 136 S.Ct. at 2317 ("Courts are free to base their findings on commonsense inferences drawn from the evidence."); Casey, 505 U.S. at 892 (opinion of the Court) (noting that district court's findings regarding effect of spousal notice statute and potential for domestic abuse "reinforce what common sense would suggest").

         1. The Relevant Group for Undue Burden Analysis

         If a statute "will operate as a substantial obstacle" "in a large fraction of the cases in which [it] is relevant/' the statute "is an undue burden and therefore invalid." Casey, 505 U.S. at 895 (opinion of the Court); accord, Whole Woman's Health, 136 S.Ct. at 2320. The analysis starts with those "upon whom the statute operates"-i.e., "the group for whom the law is a restriction, not the group for whom the law is irrelevant." Casey, 505 U.S. at 894 (opinion of the Court). For the spousal notice law struck down in Casey, that was less than one percent of women seeking abortions. This group serves as the denominator for the relevant fraction Casey described. Under Casey, a statute that will have the practical effect of giving someone else a veto over a woman's abortion decision is an undue burden. See 505 U.S. at 897 (spousal notice ...


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