CHICAGO (CN) — The Seventh Circuit upheld a preliminary injunction Tuesday against an Indiana law that would require judges to notify the parents of minors seeking an abortion, even if a court has found the minor mature enough to make her own choice.
“The state’s arguments assume that, in raising their children, parents will fulfill the role the Supreme Court has said is constitutional for them to fulfill,” U.S. Circuit Judge David Hamilton wrote for the three-judge panel. “We can all hope that that is the reality for the vast majority of young women who face an unexpected pregnancy and that they will turn to their parents for guidance. But the evidence before the district court here illustrates a different and ‘stark social reality.’”
Under Indiana law, minors are required to obtain parental consent before obtaining an abortion. However, a minor can petition a judge for a “judicial bypass,” which can deem her mature enough make the decision or find that it is in her best interests. Only 4% of Indiana girls get an abortion without parental consent, and a high percentage of them are in foster care.
The law at issue, Senate Enrolled Act 404, was signed by Governor Eric Holcomb in 2017, and specifically a judge to notify the parents of an unemancipated minor if the judge approves her petition for a judicial bypass and authorizes her abortion.
The Indiana chapter of the American Civil Liberties Union, on behalf of Planned Parenthood of Indiana and Kentucky, or PPINK, filed a federal lawsuit in May 2017 to prevent SEA 404 from going into effect, claiming it violates due process and First Amendment rights.
A federal judge granted a preliminary injunction in late June 2017 preventing Hoosier State officials from enforcing the law. The Seventh Circuit affirmed Tuesday, by 2-1 vote, after hearing oral arguments in January 2018.
“Indiana’s notice law creates a substantial risk of a practical veto over a mature yet unemancipated minor’s right to an abortion,” wrote Hamilton, who was appointed by President Barack Obama. “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.”
U.S. Circuit Judge Ilana Rovner, a Reagan appointee, joined Hamilton’s opinion. U.S. Circuit Judge Michael Kanne, also a Reagan appointee, dissented.
The panel’s majority dismissed the state’s claim that parents need to know about their daughter’s abortion to care for her health: If that were true, “the state’s proposed benefit would not depend on giving parents prior notice of an abortion,” the 35-page majority opinion states (emphasis in original).
The court found that the state law would allow parents to interfere with a young woman’s constitutional right to an abortion after a court found her mature enough to make the decision on her own, and would deter many young women who might qualify for a judicial bypass to apply for one.
“The state has offered no evidence that any actual benefit is likely or that there is a real problem that the notice requirement would reasonably be expected to solve,” Hamilton wrote. “Whole Woman’s Health shows that myths, speculation, and conventional wisdom are not enough to justify restrictions on the right to abortion.”
Decided by the U.S. Supreme Court in 2016, Whole Woman’s Health v. Hellerstedt blocked Texas from imposing restrictions on abortion services that were found to create an undue burden on women.
Kanne wrote in his 15-page dissent: “Planned Parenthood has not introduced evidence that establishes that requiring mature minors to notify their parents that they intend to have an abortion constitutes an undue burden.”
Of 17 states with parental-consent laws, Indiana is one of only two states that do not provide a notification exemption for girls deemed mature enough to have an abortion without parental consent.
Ken Falk, legal director of ACLU Indiana, presented oral arguments before the Chicago-based appeals court. “This decision affirms that the state must continue to provide a safe alternative for young women who — whatever their circumstances — are unable to talk to their parents about this difficult and personal decision,” Falk said in a statement Tuesday. “Legislators need to stop targeting women with invasive hurdles and start respecting the rights of all Hoosiers to make their own personal medical decisions. These heavy-handed restrictions would have burdened young women’s constitutional rights and put their health and safety at risk.”