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Indiana’s parental consent abortion law was blocked by a federal judge only days before it was scheduled to take effect on July 1 ( Planned Parenthood of Ind. & Ky., Inc., v. Comm’r, Ind. Stat Dep’t of Health , S.D. Ind., No. 1:17-cv-1636, 6/28/17 ).
The law required minor children to obtain parental consent or judicial approval before having an abortion. Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana entered a June 28 order requiring state officials not to enforce that provision of the law, known as Senate Enrolled Act 404 (SEA 404).
The order is the latest in a string of losses for Indiana legislators, who have twice seen provisions of earlier abortion restrictions blocked by federal courts. One such order, blocking a law signed by then Gov. Mike Pence (R), was entered almost exactly a year ago, June 30, 2016.
Reaction to the court’s ruling was mixed.
“Judge Sarah Evans Barker’s ruling is an affirmation of abortion rights in Indiana,” Betty Cockrum, president and CEO of Planned Parenthood of Indiana & Kentucky Inc. (PPINK), said in a press release June 28. PPINK brought the challenge to the statute along with the American Civil Liberties Union of Indiana.
Indiana’s attorney general, Curtis Hill, on the other hand, said the court’s decision was an usurpation of parental responsibility by the courts. “The challenge of this law is nothing more than an attempt to give courts rather than parents the legal guardianship of children,” he said in a press release June 29.
“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,” he added.
The law in question has only been on the books for two months, with Indiana Gov. Eric Holcomb (R) signing the law April 25. It was set to take effect July 1 before the court blocked it.
The provision was introduced as part of SEA 404 in January by state Sen. Erin Houchin (R). The law amended the voluntary and informed consent requirement of Indiana’s prior abortion laws to include additional requirements when an unemancipated minor sought an abortion.
Under previous Indiana law, an unemancipated minor needed parental consent before obtaining an abortion. But the prior law also included a process through which that minor could go around the parental notice requirement and ask the juvenile court for an order finding her mature enough to make the abortion decision without notice to her parents.
SEA 404 added an extra requirement to that process, ordering the juvenile court to provide notice and seek parental consent for an abortion, even when the court determines the minor is sufficiently mature to be able to avoid notification under the old law.
In blocking the application of the law, Barker said PPINK had shown its members could suffer real harm if SEA was permitted to take effect.
“For many young women in Indiana, the requirement of providing parental notification before obtaining an abortion carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction,” she said in explaining the reason for her order.
The judge pointed to the U.S. Supreme Court’s opinion in Planned Parenthood of Se. Pa. v. Casey, from1983, which struck down a Pennsylvania spousal consent provision as an equivalent provision of law that threatened equally severe harm to women seeking an abortion.
As a result, Barker ordered all state officials, except the state juvenile court judges, from enforcing the law. According to Barker, federal civil rights laws specifically exempt judges and courts from injunctive orders.
The avenue for blocking judges from applying laws is “declaratory relief” where a higher court declares the law inapplicable. The plaintiffs in this case have sought declaratory relief against the juvenile court orders, but Barker wasn’t ruling on that claim in this order.
The court’s 51-page order also blocked other provisions of SEA 404 related to the level of identification required for parental consent and restrictions placed on health-care providers when advising as to the availability of abortion services outside the state.
The court said a provision requiring a health-care provider to view government-issued identification from parents before accepting that they had been properly notified was unconstitutionally vague.
The court said the provision’s criminal penalties and unspecified parameters left too much discretion for enforcement in the hands of politicians, who could decide to pursue violations for political but not legal reasons.
Additionally, the court blocked provisions of the law that would criminalize efforts by PPINK to inform Indiana clients about the consent requirements and abortion options in other states.
The court said the state does have “a compelling interest in safeguarding the parent-child relationship and protecting the physical and psychological well-being of minors.” However, the court said the state had failed to show the act of disseminating factual information to minors impinged on that interest and thus the law preventing such dissemination was unconstitutional.
Representatives for PPINK and the ACLU cheered the court’s decision.
“PPINK encourages teenagers to have open and honest conversations with their family members, but we recognize that not every teen is able to do so safely,” PPINK’s CEO Cockrum said in her press release.
“SEA 404 sought to silence our staff and prevent fully-informed conversations with our patients. It is blatantly unconstitutional and yet another example of politicians trying to make medical decisions for Hoosiers,” she added, using a colloquial term for residents of Indiana.
Similary, Ken Falk, the legal director of ACLU of Indiana, pointed to the court’s ruling as freeing up medical professionals to provide care without following additional rules.
“SEA 404 changes the judicial bypass process that has been upheld by the Supreme Court and compels silence from PPINK staff,” he said in a press release.
“The court found today that these provisions are unconstitutional, and that requiring abortion providers to verify legal documentation is a violation of the equal protections clause,” he said. “No other medical professionals are expected to follow these vague rules before providing care.”
An official at Indiana Right to Life, a state-based nonprofit group opposed to abortion, focused on legislative process and faulted the court for overturning it.
“Indiana’s new parental rights law was passed by a majority of our duly elected state legislators and signed by Gov. Eric Holcomb,” Mike Fichter, president and CEO of Indiana Right to Life, said in a press release.
“Hoosiers are tired of seeing activist judges legislate abortion from the bench. Planned Parenthood runs straight to the courts anytime they find a law they don’t like,” he added, urging that the state attorney general continue to defend the statute in court.
For his part, Attorney General Hill said the court’s concerns were misplaced.
“This law already enables judges to determine that some minors could have extenuating circumstances in their relationships with their parents that make notification unwise or unsafe,” he said in a press release. “In these instances, judges have full authority to waive the notification of parents.”
Hill said SEA 404 as enacted “increases the likelihood that minors will go through this process with the support and guidance needed.”
Bloomberg Philanthropies provides financial support for Planned Parenthood.
PPINK is represented by its own in-house attorneys, as well as attorneys from the ACLU. The state is represented by attorneys for the Indiana Attorney General’s Office.
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The court's opinion is at http://src.bna.com/qmn.
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