Planned Parenthood of Indiana and Kentucky, Inc., Plaintiff-Appellee,
Kristina Box[*], Commissioner, Indiana State Department of Health, et al., Defendants-Appellants.
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:17-CV-01636-SEB-DML - Sarah Evans Barker, Judge.
Petition for Rehearing and Rehearing En Banc
Wood, Chief Judge, Flaum, Easterbrook, Kanne, Rovner, Sykes,
Hamilton, Barrett, Brennan, Scudder, and St. Eve, Circuit
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.
the petition for rehearing and rehearing en banc filed by
defendants-appellants is DENIED.
Easterbrook, Circuit Judge, with whom Sykes,
Circuit Judge, joins, concurring in the denial of
rehearing en banc. 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.
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, No. 18-1323
(Oct. 4, 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.
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 minor to notify her parents of an
impending abortion, when she cannot persuade a court that
avoiding notification is in her best interests, is an
"undue burden" on abortion. The "undue
burden" approach announced in Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
does not call on a court of appeals to interpret a text. Nor
does it produce a result through interpretation of the
Supreme Court's opinions. How much burden is
"undue" is a matter of judgment, which depends on
what the burden would be (something the injunction prevents
us from knowing) and whether that burden is excessive (a
matter of weighing costs against benefits, which one judge is
apt to do differently from another, and which judges as a
group are apt to do differently from state legislators). Only
the Justices, the proprietors of the undue-burden standard,
can apply it to a new category of statute, such as the one
Indiana has enacted. Three circuit judges already have
guessed how that inquiry would come out; they did not agree.
The quality of our work cannot be improved by having eight
more circuit judges try the same exercise. It is better to
send this dispute on its way to the only institution that can
give an authoritative answer.
Circuit Judge, with whom Flaum, Barrett, Brennan,
and Scudder, Circuit Judges, join, dissenting from
the denial of rehearing en banc. This case
implicates an important and recurring issue of federalism:
Under what circumstances, and with what evidence, may a state
be prevented from enforcing its law before it goes into
effect? Given the existing unsettled status of
pre-enforcement challenges in the abortion context, I believe
this issue should be decided by our full court. Preventing a
state statute from taking effect is a judicial act of
extraordinary gravity in our federal structure.
have substituted the current Commissioner, Indiana State
Department of Health, for her predecessor, sued in an
official capacity. ...