By Dave Andrusko
Back on July 10, 2020, NRL News Today reported on a decision by U.S. District Court Judge Richard Young who upheld the part of a 2018 Indiana law requiring that abortion clinics be inspected on an annual basis but struck down another requirement that abortionists report complications resulting from abortions.
In a 22-page ruling, Judge Young concluded, “If abortion clinics are to be inspected—and they must be—that responsibility falls to the State. Because the State has offered a rational reason for the decision to subject abortion clinics to stricter inspection requirements, the court concludes the Inspection Statute does not violate equal protection.”
Incredibly, the ACLU and Planned Parenthood of Indiana and Kentucky argued the requirement for regular inspections, “would violate patients’ equal protection rights because the clinics would be inspected more frequently than other medical facilities.”
However Judge Young also concluded that requiring medical providers to report to the state if they treat women for complications arising from abortions “was unconstitutional vague.” The decision came two years after Judge Young granted a preliminary injunction blocking the law from taking effect.
Yesterday, a three-judge panel of the 7th U.S. Circuit Court of Appeals heard oral arguments from Thomas Fisher of the Office of the Attorney General of Indiana, and Gavin Rose of the American Civil Liberties Union of Indiana, on behalf of Planned Parenthood.
According to David Well, Fisher said, “there is nothing vague about the reporting requirements and that the purpose is to gather data for safety reasons. ‘This is about gathering information. Our argument is that there is another legitimate interest, which is safeguarding and advising women of information that would affect their health.’”
Wells quoted Rose’s comeback: “The vagueness problem at issue in this case arises directly from the fact that many of the supposed complications listed in the statute have absolutely nothing to do with abortion.”
Wells’s story also paraphrased from an ACLU brief which “specifically challenged the vagueness of psychological issues surrounding an abortion procedure.”
Writing for Westlaw, Brendan Pierson went into deeper detail about the judges’ questions.
[Judge Amy] St. Eve also asked how the law would work given disagreement in the medical community about the link between abortion and some of the conditions.
“Since even in the objective medical community there’s disagreement, why wouldn’t that just lend itself to arbitrary enforcement of this provision?” she asked.
Fisher said the focus was not on enforcement but on gathering information, prompting [Judge Diane] Wood to ask whether the true reason for the law was to discourage abortion. She said that providers, facing severe penalties, were likely to over-report and produce “junk data.”
“It’s going make abortions look as though they’re much riskier than they are,” she said.
Rose also faced skeptical questioning as he defended Planned Parenthood. [Judge Frank] Easterbrook noted that there was no precedent for holding the phrase “arising from” to be unconstitutionally vague, and that the phrase was common in the law.
“Are you asking us to hold a core phrase in American jurisprudence unconstitutional for the very first time?” he asked.
“Under the circumstances of this statute, yes,” Rose said.
Judge Easterbrook also “asked Rose how Indiana’s abortion law was any different from workplace rules that require the reporting of accidents.”
“This statute has to do with medical procedures. The Occupational Safety and Health Act has to do with workplace procedures. But the idea in both cases is to require reporting of bad outcomes,” Easterbrook said.
The judges did not indicate when to expect a ruling.