By Dave Andrusko
On Monday NRL News Today provided a brief once-over of the decision by a split 7th Circuit Court of Appeals to again declare that Indiana’s 2017 parental notification law was unconstitutional.
The reason Senate Enrolled Act 404 was back there in the first place was because the Supreme Court had remanded this law, among others, to the 7th Circuit, instructing the lower court to consider its conclusion overturning SEA 404 in light of the Supreme Court’s 2020 decision in June Medical Services, L.L.C. v. Russo.
It is their differing understandings of what the High Court held in that 5-4 decision in 2020 that largely explains the split.
Today, we’ll take a more in-depth look at the law, signed by Indiana Gov. Eric Holcomb, which requires “a judge to notify the parents of an unemancipated minor if the judge approves her petition for a judicial bypass and authorizes her abortion.”
Margo Cleveland offers a terrific overview at the 2-1 decision in Planned Parenthood v. Box II, beginning with a reminder that at issue “was a 2017 amendment to Indiana’s judicial-bypass process for minors seeking abortions without parental consent.”
The judicial-bypass process in the Hoosier state allows a minor to obtain an abortion if a state judge concludes either that the minor is sufficiently mature to make her own decision or that an abortion is in the minor’s “best interests.”
Prior to the amendment, if a state court judge approved an abortion for a minor, her parents were not notified of that decision. Under the 2017 amendment, notification must be given to the minor’s parents of the court-approved abortion unless the court finds such notice is not in the minor’s best interests. In other words, if the court authorizes an abortion based on a minor’s apparent maturity, her parents receive notice of the court’s decision and of the intended abortion.
Writing for the two judge majority, David Hamilton, joined by Ilana Rovner, practically couldn’t find words sufficient to express his opposition. But at the core, as Cleveland points out, was that Judges Hamilton and Rovner “analyzed the Russo decision in depth and concluded that nothing had changed.”
But the dissenter— Judge Kanne— “exposed two fundamental flaws to the court’s decision,” Cleveland writes.
First, the majority in Box II failed to faithfully consider the June Medical decision. Because that case failed to garner a majority opinion, lower courts must apply “the narrowest common ground supporting the judgment.” In other words, the Seventh Circuit (and other courts) must determine the narrowest common ground between the four-justice plurality and Justice Roberts’ concurrence in June Medical.
As Judge Kanne explained, the narrowest common ground in June Medical between the plurality and concurrence concerned the conclusion that the regulation of abortion providers in that case constituted “a substantial obstacle” to a woman (or here a girl) obtaining an abortion. Thus, the court in Box II should have asked whether parental notification constituted a “substantial obstacle” to a minor obtaining an abortion, and the majority erred in undertaking a balancing test, which weighed the supposed burdens on the minor against the benefits of Indiana’s law.
Of significance: the Box II opinion concluded that in assessing the constitutionality of the parental-notification provisions, “courts consider the burdens a law imposes on abortion access together with the benefits those laws confer,” and then “must balance these interests.” Applying that balancing test, the majority in Box II concluded that the parental-notification provisions created an undue burden on minors, in light of the absence of benefits flowing from the law.
The second error Judge Kanne exposed (in Cleveland’s paraphrase) was “in holding that the parental notification requirement constituted a substantial obstacle to a minor obtaining an abortion.”
Judge Kanne’s conclusion is spot-on, reminding his colleagues that the Supreme Court has been down this path numerous times before:
The other reasons for my prior dissent remain unchanged. The Supreme Court has confirmed that parental notification requirements are constitutional time and again. And Planned Parenthood has failed to show that requiring mature minors to notify their parents that they intend to have an abortion (where a judge has found that avoiding notification is not in their best interests) constitutes an undue burden under [the 1992 ]Casey [decision]. This court should reverse the district court’s injunction and let Indiana exercise its legislative judgment that a parental-notification law best serves the interests of its citizens.
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