throbber
No. _______
`
`IN THE
`Supreme Court of the United States
`____________________
`
`KRISTINA BOX, COMMISSIONER, INDIANA
`STATE DEPARTMENT OF HEALTH, et al.,
`
`Petitioners,
`
`v.
`
`PLANNED PARENTHOOD OF INDIANA AND
`KENTUCKY, INC.,
`
`Respondent.
`____________________________________
`
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Seventh Circuit
`____________________________________
`
`
`
`PETITION FOR WRIT OF CERTIORARI
`____________________________________
`
`
`
`Office of the Indiana
` Attorney General
`IGC South, Fifth Floor
`302 W. Washington St.
`Indianapolis, IN 46204
`(317) 232-6255
`Tom.Fisher@atg.in.gov
`
`*Counsel of Record
`
`Theodore E. Rokita
`Attorney General
`Thomas M. Fisher
`Solicitor General*
`Kian Hudson
`Deputy Solicitor
` General
`Julia C. Payne
`Deputy Attorney
` General
`
`Counsel for Petitioners
`
`
`
`
`
`
`
`
`
`

`

`i
`
`QUESTION PRESENTED
`
`When a court permits an unemancipated minor to
`have an abortion, may the State require that her par-
`ents be notified before the abortion occurs except
`where such notice would contravene her best inter-
`ests?
`
`
`
`
`
`

`

`ii
`
` TABLE OF CONTENTS
`
`QUESTION PRESENTED ....................................... i
`
`TABLE OF AUTHORITIES ................................... iv
`
`PETITION FOR WRIT OF CERTIORARI .............. 1
`
`OPINIONS BELOW ................................................. 1
`
`JURISDICTION ....................................................... 1
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED ...................................... 2
`
`INTRODUCTION AND STATEMENT OF
`THE CASE ............................................................... 2
`
`I.
`
`II. Federal Court Litigation .................................. 6
`
`REASONS FOR GRANTING THE PETITION .... 13
`
`I. Review Is Warranted Because the Circuits
`Are in Conflict over Whether Abortion
`Parental-Notice Statutes Must Include
`“Mature Minor” Exemptions .......................... 13
`
`Indiana’s Parental-Notice Law ........................ 5
`
`
`II. Even If Juvenile Abortion Rights Are
`Protected by the Same Standard as
`Adult Abortion Rights, the Court Should
`Resolve the Post-June Medical Chaos
`over the Controlling Test ............................... 22
`
`
`
`
`
`

`

`iii
`
`
`CONCLUSION ....................................................... 30
`
`APPENDIX ............................................................. 1a
`
` Opinion of the United States Court of
`Appeals for the Seventh Circuit (Mar. 12,
`2021) .................................................................. 1a
`
`
` Opinion of the United States Court of
`Appeals for the Seventh Circuit (Aug. 27,
`2019) ................................................................ 42a
`
`
` Order of the United States District Court
`for the Southern District of Indiana Grant-
`ing Plaintiff’s Motion for Preliminary In-
`junction............................................................ 99a
`
`
` Order of the United States Court of Ap-
`peals for the Seventh Circuit Denying the
`Petition for Rehearing and Rehearing En
`Banc filed by Defendants-Appellants .......... 156a
`
`Ind. Code § 16-34-2-4 .................................... 160a
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`iv
`
`TABLE OF AUTHORITIES
`
`CASES
`
`A Woman’s Choice—E. Side Women’s Clinic
`v. Newman,
`132 F.Supp.2d 1150 (S.D. Ind. 2001) ............... 26
`
`A Woman’s Choice—E. Side Women's Clinic
`v. Newman,
`305 F.3d 684 (7th Cir. 2002) ....................... 10, 26
`
`Adams & Boyle, P.C. v. Slatery,
`No. 3:15-cv-00705, 2020 WL 6063778
`(M.D. Tenn. Oct. 14, 2020) ............................... 24
`
`Ayotte v. Planned Parenthood of Northern
`New England,
`546 U.S. 320 (2006) ..................................... 18, 19
`
`Bellotti v. Baird,
`443 U.S. 622 (1979) .................................... passim
`
`Bernard v. Indiv. Members of the Ind. Med.
`Licensing Bd.,
`No. 1:19-cv-01660 (S.D. Ind.)............................ 24
`
`Box v. Planned Parenthood of Ind. & Ky.,
`Inc.,
`141 S. Ct. 187 (2020) ................................. 1, 3, 11
`
`Causeway Medical Suite v. Ieyoub,
`109 F.3d 1096 (5th Cir. 1997) ........................... 15
`
`
`
`
`
`

`

`v
`
`CASES [CONT’D]
`
`Comprehensive Health of Planned
`Parenthood Great Plains v. Hawley,
`903 F.3d 750 (8th Cir. 2018) ............................. 25
`
`EMW Women’s Surgical Ctr. P.S.C. v.
`Friedlander,
`978 F.3d 418 (6th Cir. 2020) ............................. 23
`
`Ginsberg v. New York,
`390 U.S. 629 (1968) ........................................... 18
`
`H.L. v. Matheson,
`450 U.S. 398 (1981) ..................................... 14, 16
`
`Hodgson v. Minnesota,
`497 U.S. 417 (1990) ........................................... 19
`
`Hopkins v. Jegley,
`968 F.3d 912 (8th Cir. 2020) ............................. 23
`
`Jackson Women’s Health Org. v. Dobbs,
`3:18-cv-00171 (S.D. Miss.) ................................ 24
`
`June Med. Servs. L.L.C. v. Gee,
`905 F.3d 787 (5th Cir. 2018) ............................. 28
`
`June Med. Servs., L.L.C. v. Russo,
`140 S. Ct. 2103 (2020) ................................ passim
`
`Lambert v. Wicklund,
`520 U.S. 292 (1997) ........................................... 15
`
`
`
`
`
`

`

`vi
`
`CASES [CONT’D]
`
`Little Rock Family Planning Servs. v.
`Rutledge,
`984 F.3d 682 (8th Cir. 2021) ............................. 23
`
`Marks v. United States,
`430 U.S. 188 (1977) ................................. 4, 11, 22
`
`Ohio v. Akron Ctr. for Reprod. Health,
`497 U.S. 502 (1990) ..................................... 15, 16
`
`Okpalobi v. Foster,
`244 F.3d 405 (5th Cir. 2001) ............................. 15
`
`Parham v. J.R.,
`442 U.S. 584 (1979) ........................................... 18
`
`Pierce v. Soc’y of the Sisters of the Holy
`Names of Jesus & Mary,
`268 U.S. 510 (1925) ........................................... 18
`
`Planned Parenthood Arizona, Inc. v. Hum-
`ble,
`753 F.3d 905 (9th Cir. 2014) ....................... 28, 29
`
`Planned Parenthood of Arkansas & Eastern
`Oklahoma v. Jegley,
`864 F.3d 953 (8th Cir. 2017) ............................. 28
`
`Planned Parenthood of the Blue Ridge v.
`Camblos,
`155 F.3d 352 (4th Cir. 1998) ............................. 15
`
`
`
`
`
`

`

`vii
`
`CASES [CONT’D]
`
`Planned Parenthood of Cent. Mo. v.
`Danforth,
`428 U.S. 52 (1976) ............................................. 19
`
`Planned Parenthood of Ind. & Ky., Inc. v.
`Adams,
`937 F.3d 973 (7th Cir. 2019) ............................... 1
`
`Planned Parenthood of Ind. & Ky., Inc. v.
`Box,
`949 F.3d 997 (7th Cir. 2019) ............................... 1
`
`Planned Parenthood of Ind. & Ky. Inc. v.
`Comm’r, Ind. State Dep’t of Health,
`258 F. Supp. 3d 929 (S.D. Ind. 2017) ................. 1
`
`Planned Parenthood v. Miller,
`63 F.3d 1452 (8th Cir. 1995) ............................. 15
`
`Planned Parenthood of Southeastern
`Pennsylvania v. Casey,
`505 U.S. 833 (1992) ........................... 8, 14, 15, 23
`
`Planned Parenthood Southwest Ohio
`Region v. DeWine,
`696 F.3d 490 (6th Cir. 2012) ............................. 28
`
`Prince v. Massachusetts,
`321 U.S. 158 (1944) ........................................... 18
`
`Quilloin v. Walcott,
`434 U.S. 246 (1978) ........................................... 18
`
`
`
`
`
`

`

`viii
`
`CASES [CONT’D]
`
`Sable Commc’ns of Cal., Inc. v. F.C.C.,
`492 U.S. 115 (1989) ........................................... 19
`
`Smith v. Org. of Foster Families for Equal.
`& Reform,
`431 U.S. 816 (1977) ........................................... 18
`
`Whole Woman’s Health Alliance v. Hill,
`No. 1:18-cv-1904 (S.D. Ind.) ............................. 24
`
`Whole Woman’s Health v. Hellerstedt,
`136 S. Ct. 2292 (2016) ............................. 3, 22, 27
`
`Whole Woman’s Health v. Paxton,
`978 F.3d 896 (5th Cir. 2020) ....................... 23, 28
`
`Whole Woman’s Health v. Paxton,
`978 F.3d 974 (5th Cir. 2020) ....................... 24, 28
`
`Wisconsin v. Yoder,
`406 U.S. 205 (1972) ........................................... 18
`
`Zbaraz v. Madigan,
`572 F.3d 370 (7th Cir. 2009) ............................. 16
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. amend. XIV, § 1 .................................... 2
`
`STATUTES
`
`28 U.S.C. § 1254(1) ................................................... 1
`
`Ind. Code § 16–34–2–4 ............................................. 2
`
`
`
`
`
`

`

`ix
`
`STATUTES [CONT’D]
`
`Ind. Code § 16–34–2–4(a) ........................................ 5
`
`Ind. Code § 16–34–2–4(b) ........................................ 5
`
`Ind. Code § 16–34–2–4(d) ........................................ 5
`
`Ind. Code § 16–34–2–4(e) ............................... 5, 7, 21
`
`
`
`
`
`
`
`

`

`1
`
`PETITION FOR WRIT OF CERTIORARI
`
` All Defendants—the Commissioner of the Indiana
`State Department of Health, the Prosecutors of Mar-
`ion, Lake, Monroe, and Tippecanoe Counties, the
`Members of the Indiana Medical Licensing Board,
`and the Judge of the Marion Superior Court Juvenile
`Division—respectfully petition the Court for a writ of
`certiorari to review the judgment of the United States
`Court of Appeals for the Seventh Circuit.
`
`OPINIONS BELOW
`
` The Seventh Circuit’s panel opinion on remand,
`which both denies rehearing en banc and affirms its
`prior judgment, App. 1a–41a, is as-yet unreported.
`This Court’s judgment granting certiorari, vacating
`the judgment below, and remanding the case to the
`Seventh Circuit is reported at 141 S. Ct. 187 (2020).
`The original Seventh Circuit panel opinion, App. 1a–
`98a, is reported at 937 F.3d 973 (7th Cir. 2019). The
`Seventh Circuit’s original order denying rehearing en
`banc, App. 156a–59a, is reported at 949 F.3d 997 (7th
`Cir. 2019). The order of the United States District
`Court for the Southern District of Indiana granting
`Planned Parenthood’s motion for preliminary injunc-
`tion, App. 99a–155a, is reported at 258 F. Supp. 3d
`929 (S.D. Ind. 2017).
`
`JURISDICTION
`
` The Seventh Circuit panel entered judgment the
`same day it issued its opinion and denied rehearing
`en banc, on March 12, 2021. App. 1a, 156a. This Court
`has jurisdiction under 28 U.S.C. section 1254(1).
`
`
`
`
`
`

`

`2
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`
` Section 1 of the Fourteenth Amendment to the
`U.S. Constitution provides:
`
`All persons born or naturalized in the United
`States, and subject to the jurisdiction thereof,
`are citizens of the United States and of the
`State wherein they reside. No State shall
`make or enforce any law which shall abridge
`the privileges or immunities of citizens of the
`United States; nor shall any State deprive any
`person of life, liberty, or property, without due
`process of law; nor deny to any person within
`its jurisdiction the equal protection of the
`laws.
`
`Indiana Code section 16-34-2-4 is reproduced at
`
`pages 160a–64a of the appendix.
`
`INTRODUCTION AND
`STATEMENT OF THE CASE
`
`This case, back before the Court a second time,
`concerns the constitutionality of an Indiana statute—
`enacted in 2017 but never permitted to be enforced—
`requiring that parents of minors granted judicial per-
`mission to have an abortion be notified before the
`abortion, unless the bypass court deems such notice
`contrary to the minor’s best interests. Planned
`Parenthood of Indiana and Kentucky, Inc., brought
`the case arguing that such a parental-notification law
`must, to be constitutional, include an exemption from
`
`
`
`
`
`

`

`3
`
`notification if the bypass court deems the minor suffi-
`ciently mature to make her own abortion decision—
`akin to the standard for parental-consent laws an-
`nounced in Bellotti v. Baird, 443 U.S. 622 (1979). The
`district court agreed with Planned Parenthood and
`preliminarily enjoined enforcement of the statute be-
`fore it could go into effect, holding that Bellotti re-
`quires just such a “mature minors” exemption.
`
`On appeal, however, a Seventh Circuit panel ma-
`jority dispensed with Bellotti entirely and said that
`Indiana’s parental-notice law failed the balancing test
`announced in Whole Woman’s Health v. Hellerstedt,
`136 S. Ct. 2292 (2016), even though the statute had
`never gone into effect and never had any opportunity
`to yield evidence of benefits or burdens. Judge Kanne
`dissented, protesting both that the injunction was
`based only on a pre-enforcement record and that the
`majority failed to consider the implications of Bellotti,
`which lowered the bar for regulating minors’ access to
`abortions. The State requested en banc rehearing, but
`that was denied 6–5, with Judges Easterbrook and
`Sykes opining that “[o]nly the Justices, the proprie-
`tors of the undue-burden standard, can apply it to a
`new category of statute.” App. 159a.
`
`Taking that cue, the State petitioned for a writ of
`certiorari, and the Court granted, vacated, and re-
`manded the case for further consideration in light of
`June Medical Services, L.L.C. v. Russo, 140 S. Ct.
`2103 (2020). Box v. Planned Parenthood of Ind. & Ky.,
`Inc., 141 S. Ct. 187 (2020).
`
`
`
`
`
`

`

`4
`
`On remand, the State once again asked for en banc
`rehearing, but this time no judges (other than the as-
`signed panel) were interested, as Judge Kanne put it,
`in “fac[ing] . . . the seemingly endless task of deter-
`mining whether a law unduly burdens a woman’s
`ability to obtain an abortion.” App. 27a. The resulting
`panel opinion—though it acknowledged abortion doc-
`trine to be both “not stable,” id. at 2a, and “challeng-
`ing and fluid.” id. at 24a n.7—ultimately held that
`June Medical had no effect on its prior decision em-
`ploying Hellerstedt balancing, and it once again af-
`firmed the preliminary injunction, id. at 26a. Judge
`Kanne dissented, both because the majority misap-
`plied the narrowest-grounds rule of Marks v. United
`States, 430 U.S. 188 (1977), in discerning the impact
`of June Medical and because it readopted its earlier
`resolution of the case using Hellerstedt.
`
`Indiana is now out of meaningful lower-court op-
`tions for defending its parental-notice law. The en
`banc Seventh Circuit has seemingly thrown up its
`hands in frustration with abortion doctrine. And the
`State’s inability to enforce the law from the get-go pre-
`vents it from gathering evidence rebutting the Sev-
`enth Circuit panel’s Hellerstedt balancing theory.
`This Court, therefore, truly is “the only institution
`that can give an authoritative answer” to the question
`presented. App. 159a. It should do so, principally to
`resolve a circuit split on the legality of abortion pa-
`rental-notice laws, but also, potentially, to clear up
`yet another abortion-doctrine issue over which the
`circuits are (already) in conflict: The meaning of June
`Medical and, by extension, the prevailing doctrinal
`standard for evaluating abortion regulations.
`
`
`
`
`
`

`

`5
`
`I. Indiana’s Parental-Notice Law
`
`Indiana generally prohibits physicians from per-
`forming abortions for unemancipated pregnant mi-
`nors without the written consent of the minor’s par-
`ent, legal guardian, or custodian. Ind. Code § 16-34-2-
`4(a). Consistent with Bellotti v. Baird, 443 U.S. 622
`(1979), however, Indiana provides an exception so
`that a pregnant minor who objects to the consent re-
`quirement or whose parent, guardian, or custodian re-
`fuses to consent may petition a juvenile court for a
`waiver of the consent requirement. Ind. Code § 16-34-
`2-4(b). Such “judicial bypass” permits the minor to ob-
`tain an abortion without parental consent if the court
`finds either that she is mature enough to make the
`abortion decision independently or that an abortion is
`in her best interests. Id. § 16-34-2-4(e). Indiana pro-
`vides a fast and confidential judicial bypass proce-
`dure. Id. § 16-34-2-4(d); see also App. 160a–64a.
`
`In 2017, the Indiana General Assembly enacted
`Public Law 173–2017, Senate Enrolled Act 404, to add
`a new requirement that, even where a juvenile court
`permits the abortion to go forward without parental
`consent, parents must still be given notice of the abor-
`tion unless the judge also finds that such notice is not
`in the minor’s best interests. Ind. Code § 16-34-2-4(e).
`The notice statute does not provide exemption where
`the court finds only that the minor is mature enough
`to make her own abortion decision. Absent a “best in-
`terests” showing, the statute requires that the minor’s
`attorney “shall serve the notice required by this sub-
`section by certified mail or by personal service” and
`shall do so “before” the abortion. Id.
`
`
`
`
`
`

`

`6
`
`II. Federal Court Litigation
`
`1. Before the new parental-notice law took effect,
`Planned Parenthood brought this lawsuit on behalf of
`hypothetical minor patients it might see in the future,
`challenging the law’s constitutionality and seeking a
`preliminary injunction against its enforcement. The
`State opposed the motion on the grounds that only
`Bellotti v. Baird, 443 U.S. 622 (1979), not abortion
`doctrine more generally, governs the rights of minors
`to abortion and that Bellotti’s requirement that States
`permit “mature” minors to obtain an abortion without
`parental consent does not constrain parental-notice
`laws—which, unlike consent statutes, accommodate
`both the rights of the mature (but unemancipated) mi-
`nor to have an abortion and the ongoing interests of
`her parents in her upbringing. In the State’s view, no-
`tifying parents of the abortion, even where the minor
`need not obtain their consent, will better enable them
`to carry out their rightful parental roles and respon-
`sibilities. Notice will, for example, provide parents
`with critical aspects of their daughter’s medical his-
`tory, give them essential context for any post-abortion
`mental or emotional distress their daughter may ex-
`perience, and put them on notice that perhaps they
`should pay more care to their daughter’s sexual rela-
`tionships.
`
`In addition, the State argued that, even if the un-
`due burden test applied more broadly, pre-enforce-
`ment preliminary relief was inappropriate and unnec-
`essary because (1) plaintiffs could not supply evidence
`that the law would actually impose a substantial ob-
`stacle for any minors seeking an abortion, much less
`
`
`
`
`
`

`

`7
`
`for a “large fraction” of them; and (2) the Indiana ju-
`dicial bypass procedure afforded actual minors seek-
`ing abortion without parental notice a chance to raise
`both facial and as-applied challenges to the law. By
`statute, such proceedings must yield a trial court or-
`der within 48 hours, with expedited appeal to follow,
`if necessary. Ind. Code § 16-34-2-4(e).
`
`The district court rejected the State’s defenses and
`granted the preliminary injunction. In so doing, the
`court explained that it could not “sidestep th[e] issue”
`of whether Bellotti applies to parental-notice statutes
`and held that it does so apply. App. 129a. The court
`acknowledged tension in the case law regarding the
`standard for pre-enforcement facial challenges to
`abortion statutes, App. 112a–16a, but concluded that
`a pre-enforcement challenge was appropriate here
`owing to the “the severity and character of harm” pre-
`sented by the parental-notice law—namely, notwith-
`standing the existence of a best-interests exception,
`“the threat of domestic abuse, intimidation, coercion,
`and actual physical obstruction.” Id. at 114a. The
`same “threats,” the court ruled, meant that the paren-
`tal-notice requirement was likely to “create an undue
`burden for a sufficiently large fraction of mature,
`abortion-seeking minors in Indiana.” Id. at 115a–16a.
`
`Critically, for purposes of estimating the fraction
`of minors who would suffer a substantial obstacle to
`abortion from the parental-notice law, the court de-
`fined the relevant universe not to be all minors need-
`ing judicial bypass orders, but only those “who face
`the possibility of interference, obstruction, or physi-
`cal, psychological, or mental abuse by their parents if
`
`
`
`
`
`

`

`8
`
`they were required to disclose their pregnancy and/or
`attempt to obtain an abortion.” Id. at 116a. The dis-
`trict court estimated (based only on declarations from
`lawyers, volunteers, Planned Parenthood employees,
`and a psychologist) that a high percentage of that
`group would find the notice requirement to be a sub-
`stantial obstacle. Id. at 112a–13a.
`
`2. On appeal, the State renewed its argument
`that only Bellotti supplied the relevant legal yardstick
`for parental-notice laws and that Bellotti’s require-
`ment of a “maturity” exemption for consent laws did
`not apply to mere notice laws; notice statutes, unlike
`consent requirements, do not bar a mature minor
`from making her own decision yet do aid parents in
`directing the child’s upbringing. The State also again
`argued that, even if the undue-burden test applied
`generally, it could not justify a pre-enforcement chal-
`lenge here in light of the plaintiffs’ failure to provide
`any data showing that the statute would actually im-
`pose a substantial obstacle on a large fraction of reg-
`ulated minors.
`
`The Seventh Circuit, in rejecting the State’s argu-
`ments, sidestepped Bellotti: “Because we decide this
`appeal based only on an application of Casey’s undue
`burden standard, we need not and do not decide
`whether Bellotti applies to all parental notice require-
`ments.” App. 75a. Applying Planned Parenthood of
`Southeastern Pennsylvania v. Casey, 505 U.S. 833
`(1992), by way of Hellerstedt, the Seventh Circuit
`panel—relying on a record devoid of any enforcement
`experience—concluded that “[f]or those pregnant mi-
`nors affected by this Indiana law, the record indicates
`
`
`
`
`
`

`

`9
`
`that in a substantial fraction of cases, the parental
`notice requirement will likely have the practical effect
`of giving parents a veto over the abortion decision.”
`Id. at 64a. The panel majority also weighed against
`the law various circumstantial factors, such as “an en-
`vironment in which very few clinics and physicians
`perform abortions in Indiana,” on the theory that the
`“cumulative effects” of such factors are relevant to the
`constitutional inquiry. Id. at 69a–70a.
`
`As to possible factors weighing in support of the
`law, the Seventh Circuit concluded that an interest in
`equipping parents to fulfill their ongoing responsibil-
`ities in raising their minor, unemancipated daughters
`was insufficient without proof of need. The court
`faulted the State because it “has not yet come forward
`with evidence showing that there is a problem for the
`new parental-notice requirement to solve, let alone
`that the law would reasonably be expected to solve it.”
`Id. at 62a–63a. Ultimately, it concluded, “the burden
`of this law on a young woman considering a judicial
`bypass is greater than the effect of judicial bypass on
`her parents’ authority.” Id. at 64a.
`
`As for the “large fraction” test, the Seventh Cir-
`cuit, like the district court, defined the relevant uni-
`verse of affected minors (i.e., the denominator) not to
`be all minors needing judicial bypass orders to obtain
`an abortion, but only those “who are likely to be de-
`terred from even attempting a judicial bypass because
`of the possibility of parental notice.” Id. at 62a.
`
`Judge Kanne dissented, arguing that the court
`should not invalidate a state statute “while the effects
`of the law (and reasons for those effects) are open to
`
`
`
`
`
`

`

`10
`
`debate.” Id. at 84a (quoting A Woman’s Choice—E.
`Side Women’s Clinic v. Newman, 305 F.3d 684, 693
`(7th Cir. 2002)). In his view, parental-notice statutes
`further the State’s “‘important’ and ‘reasonabl[e]’ in-
`terests in requiring parental consultation before a mi-
`nor makes an irrevocable and profoundly consequen-
`tial decision.” Id. at 82a–83a (quoting Bellotti, 433
`U.S. at 640–41).
`
`The State petitioned for en banc rehearing, but the
`court denied the petition 6–5, with Judges Flaum,
`Kanne, Barrett, Brennan, and Scudder voting to
`grant the petition. Judge Easterbrook voted against
`rehearing but issued an opinion, joined by Judge
`Sykes, conveying the need for Supreme Court guid-
`ance both as to the meaning of the undue-burden
`standard and as to the decisional method for address-
`ing pre-enforcement facial challenges to abortion
`laws. As to the latter concern, he wrote that “princi-
`ples of federalism should allow the states . . . much
`leeway” to enforce new laws “[u]nless a baleful out-
`come is either highly likely or ruinous even if less
`likely.” Id. at 157a. Otherwise, “a federal court should
`allow a state law (on the subject of abortion or any-
`thing else) to go into force” or else “the prediction” of
`negative outcomes “cannot be evaluated properly.” Id.
`
`As to the undue-burden standard more generally,
`Judge Easterbrook observed that “a grant of rehear-
`ing en banc in this case would be unproductive” be-
`cause “a court of appeals cannot decide whether re-
`quiring a mature minor to notify her parents of an im-
`pending abortion . . . is an ‘undue burden’ on abor-
`tion.” Id. at 158a. According to Judge Easterbrook,
`
`
`
`
`
`

`

`11
`
`“[h]ow much burden is ‘undue’ is a matter of judg-
`ment, 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 legisla-
`tors).” Id. at 159a. For this reason, “[o]nly the Jus-
`tices, the proprietors of the undue-burden standard,
`can apply it to a new category of statute.” Id.
`
`3. The State petitioned for certiorari. This Court
`granted the State’s petition, vacated the Seventh Cir-
`cuit’s decision, and remanded to the Seventh Circuit
`for further consideration in light of its opinion in June
`Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103
`(2020). Box v. Planned Parenthood of Ind. & Ky., Inc.,
`141 S. Ct. 187 (2020). On remand, the State requested
`that the Seventh Circuit rehear the case en banc.
`
`On March 12, 2021, the Seventh Circuit denied re-
`hearing en banc and reaffirmed its panel decision, de-
`clining to reconsider that earlier decision in light of
`June Medical. App. 156a. Yet, in Judge Kanne’s
`words, the panel majority held that “June Medical
`ha[d] no effect” on its prior decision applying the
`Whole Woman’s Health balancing test. Id. at 28a
`(Kanne, J., dissenting). Applying Marks v. United
`States, 430 U.S. 188 (1977), Judge Hamilton, writing
`for the majority, explained that the narrowest com-
`mon ground in June Medical was “the Chief Justice’s
`concurring opinion . . . giving stare decisis effect to
`Whole Woman’s Health.” App. 2a. Despite this conces-
`sion, Judge Hamilton went on to say that “[t]he Marks
`
`
`
`
`
`

`

`12
`
`rule does not, however, turn everything the concur-
`rence said—including its stated reasons for disagree-
`ing with portions of the plurality opinion—into bind-
`ing precedent that effectively overruled Whole
`Woman’s Health.” Id. For this reason, the court held
`that the balancing test from Whole Woman’s Health
`“remains precedent binding on the lower courts.” Id.
`at 18a.
`
`Accordingly, the majority did not reconsider its
`prior decision upholding the district court’s prelimi-
`nary injunction. Id. at 26a. It explicitly recognized,
`however, a circuit conflict over which June Medical
`opinion controls and whether the Hellerstedt balanc-
`ing test remains applicable. Id. at 25a. Critically,
`Judge Hamilton, in his 2–1 majority opinion, ob-
`served that “[t]he opinions in June Medical show that
`constitutional standards for state regulations affect-
`ing a woman’s right to choose to terminate a preg-
`nancy are not stable.” Id. at 2a (emphasis added).
`Later, the majority opinion added that abortion doc-
`trine is “challenging and fluid.” Id. at 24a n.7.
`
`In dissent, Judge Kanne criticized the majority for
`holding that “June Medical has no effect” on this case.
`Id. at 28a. He explained that “while we cannot pre-
`sume from the Supreme Court’s remand order that
`our prior decision in this case was wrong, surely June
`Medical had some effect on the legal landscape. Else,
`why didn’t the Supreme Court simply deny cert in-
`stead?” Id. at 29a. While he agreed with the majority’s
`determination that Chief Justice Roberts’s concur-
`rence is the narrowest common ground, Judge Kanne
`contended that concurrence could not be divorced
`
`
`
`
`
`

`

`13
`
`from its reasoning. Id. at 34a. Hence, the “critical
`sliver of common ground between the plurality and
`the concurrence” is “Casey’s requirement of a substan-
`tial obstacle before striking down an abortion regula-
`tion.” Id. at 35a. Thus, “courts should continue to ap-
`ply the substantial-obstacle test from Casey.” Id.
`Judge Kanne then concluded that “the majority in
`this case erred . . . by weighing the benefits conferred
`by Indiana’s law against its burdens” and that “the
`majority should have corrected this error on remand.”
`Id. at 41a.
`
`REASONS FOR GRANTING THE PETITION
`
`I. Review Is Warranted Because the Circuits
`Are in Conflict over Whether Abortion
`Parental-Notice Statutes Must
`Include
`“Mature Minor” Exemptions
`
`Even before the confusion over Hellerstedt balanc-
`ing and the meaning of June Medical, the circuits had
`reached conflicting holdings as to whether abortion
`parental-notice statutes must conform to the same ju-
`dicial-bypass standards as abortion parental-consent
`statutes. Namely, the circuits are split over whether
`parental-notice statutes must include an exemption
`for minors deemed by a juvenile court to be suffi-
`ciently mature to make their own abortion decisions.
`As this Court has itself noted on several occasions, the
`parental-notice standard is an important, unresolved
`question. This case is the perfect vehicle for finally ad-
`dressing it.
`
`1. The abortion rights of minors long have been
`defined by a different doctrinal line of authority than
`
`
`
`
`
`

`

`14
`
`the abortion rights of adults. In Bellotti v. Baird, the
`Court recognized that “constitutional principles
`[must] be applied with sensitivity and flexibility to
`the special needs of parents and children” due to “the
`peculiar vulnerability of children; their inability to
`make critical decisions in an informed, mature man-
`ner; and the importance of the parental role in child
`rearing.” 443 U.S. 622, 634 (1979); see also H.L. v.
`Matheson, 450 U.S. 398, 425 (1981) (Stevens, J., con-
`curring) (“[A] state legislature has constitutional
`power to utilize, for purposes of implementing a pa-
`rental-notice requirement, a yardstick based upon the
`chronological age of unmarried pregnant women.
`That this yardstick will be imprecise or even unjust
`in particular cases does not render its use by a state
`legislature impermissible under the Federal Consti-
`tution.”).
`
`Consequently, the Court in Bellotti allowed regu-
`lation of access to abortion by minors that it would
`never have tolerated as to adults: the permission of
`someone other than the person seeking the abortion,
`namely either parents or a juvenile court. 443 U.S. at
`625–26. In particular, the Court held, a statute gen-
`erally requiring parental consent for a minor to obtain
`an abortion is valid so long as it (1) allows the minor
`to bypass parental consent if she proves to a court
`that she is sufficiently mature to make the decision
`on her own or that the abortion is in her best inter-
`ests; and (2) ensures that the minor may undertake
`the judicial proceeding both anonymously and expedi-
`tiously. Id. at 643–44. Under that framework, the
`Court has upheld both parental-consent and paren-
`tal-notice laws. See Planned Parenthood of Se. Pa. v.
`
`
`
`
`
`

`

`15
`
`Casey, 505 U.S. 833, 899 (1992) (parental consent);
`Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502,
`518–19 (1990) (parental notice).
`
`Yet even under the Bellotti doctrine, the circuits
`are in conflict over whether the judicial bypass re-
`quirements the Court has imposed on parental-con-
`sent statutes also apply to parental-notice statutes.
`The Eighth and Fifth Circuits have held that paren-
`tal-notice statutes are subject to the same judicial-by-
`pass standard as parental-consent statutes. See
`Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th
`Cir. 1995) (“In short, parental-notice provisions, like
`parental-consent provisions, are unconstitutional
`without a Bellotti-type bypass.”); Causeway Medical
`Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th Cir. 1997)
`(applying Bellotti to parental-notice statute), over-
`ruled on other grounds, Okpalobi v. Foster, 244 F.3d
`405, 427 n.35 (5th Cir. 2001). In contrast, the Fourth
`Circuit has held that parental-notice statutes are sub-
`ject only to a “best interest” exception and need not
`include a maturity exception. Planned Parenthood

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