By Dave Andrusko
A divided three-judge panel of the Chicago-based 7th U.S. Court of Appeals affirmed the decision of a lower court judge blocking Indiana’s Senate Bill 404, a 2017 law designed to give parents more rights if their minor daughter seeks an abortion. The Associated Press reported that Tuesday’s decision by the majority says the law’s notification requirement “puts an ‘undue burden’ on the minor and so runs afoul of Supreme Court precedent.”
The dissent by Judge Michael Stephen Kanne demonstrated this is not true. (See below.)
On June 28, 2017, federal judge Sarah Evans Barker issued a preliminary injunction against portions of Senate Bill 404 in a case brought by Planned Parenthood and the American Civil Liberties Union. The state of Indiana appealed the following month.
As Indiana Right to Life explained, Senate Bill 404
protects minor girls, increases parental rights when a minor girl seeks abortion, and helps victims of sex trafficking. The law protects young girls by changing abortion reporting requirements. Currently the abortionist must send the required form to both the Indiana State Department of Health and the Department of Child Services if the minor is 14 or younger. SB404 raises the age for the reporting requirement to under 16 years of age.
The law increases parental rights by providing civil recourse if a parent or guardian discovers someone fraudulently posed as them to help their minor daughter get an abortion.
Prior to appealing Judge Parker’s preliminary injunction, Indiana Attorney General Curtis Hill said
“The challenge of this law is nothing more than an attempt to give courts rather than parents the legal guardianship of children. When an unemancipated minor undergoes even the most basic medical procedures, the involvement of a parent or legal guardian is typically required. However, for the time being, Wednesday’s injunction essentially encourages a minor to go it alone through the emotionally and physically overwhelming procedure of aborting a human being. We will always support the authority of parents to know what is going on with their children and continue to defend Hoosier parents.”
None of that moved Judges Ilana Kara Rovner and David Hamilton. But Judge Kanne began his dissent by noting that the
The question presented in this case is straightforward and narrow: does the Constitution prohibit Indiana from requiring a mature minor to notify her parents of an impending abortion when she cannot show that avoiding notification is in her best interest.
The Supreme Court has confirmed that both parental consent and parental notification laws are constitutional.
Judge Kanne’s conclusion in his 15-page-long dissent was as concise as it was brilliant:
The challenged Indiana statute requires parental notification but allows for judicial bypass of that requirement when it would be in the minor’s best interests. …
The operative question is whether, given the State’s manifest interest in involving parents in consequential decisions by their children, the notification requirement constitutes a substantial obstacle for mature minors. The record provides no clarity on that point, and so—because the law was enjoined pre-enforcement—we can only speculate. As the majority recognizes, “evidence matters.”
The district court abused its discretion by enjoining the law pre-enforcement, and its decision should be reversed.