Planned Parenthood of Indiana v. Jerome Adams

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-2428

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC.,

Plaintiff-Appellee,

v.

JEROME M. ADAMS, Commissioner, Indiana

State Department of Health, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:17-CV-01636-SEB-DML — Sarah Evans Barker, Judge.

____________________

ARGUED JANUARY 5, 2018 — DECIDED AUGUST 27, 2019

____________________

Before KANNE, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Consistent with Bellotti v. Baird,

443 U.S. 622 (1979), Indiana statutes have long provided a fast

and confidential judicial bypass procedure that is supposed

to allow a small fraction of pregnant, unemancipated minors

seeking abortions to obtain them without the consent of or no-

tice to their parents, guardians, or custodians. In 2017, Indiana

added a parental notification requirement to the judicial

2 No. 17-2428

bypass statute. Before the law took effect, plaintiff Planned

Parenthood of Indiana and Kentucky, Inc. sued to enjoin its

enforcement. In a careful opinion, the district court issued a

preliminary injunction against enforcement of the new law’s

notice requirements. Planned Parenthood of Indiana & Kentucky,

Inc. v. Commissioner, 258 F. Supp. 3d 929, 956 (S.D. Ind. 2017).

The defendant state officials have appealed a portion of the

preliminary injunction. In light of the lopsided factual record,

the deferential standard of review, and the preliminary status

of the findings of fact and conclusions of law, we affirm.

I. Legislative Changes

As a general rule, Indiana prohibits physicians from per-

forming abortions for unemancipated minors without the

written consent of the minor’s parent, legal guardian, or cus-

todian. Ind. Code § 16-34-2-4(a). The law provides an excep-

tion, however, so that a minor who objects to the consent re-

quirement or whose parent, guardian, or custodian refuses to

consent may petition a juvenile court for a waiver of the con-

sent requirement. Ind. Code § 16-34-2-4(b). Known as a judi-

cial bypass, this procedure permits the minor to obtain an

abortion without parental consent if the court finds either that

she is mature enough to make the abortion decision inde-

pendently or that an abortion is in her best interests. Ind. Code

§ 16-34-2-4(e). Bellotti requires this exception as a matter of

federal constitutional law. 443 U.S. at 643–44 (opinion of Pow-

ell, J.); accord, Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833, 899 (1992). Bypass is supposed to be fast

and confidential. Bellotti, 443 U.S. at 644 (bypass proceeding

and any appeals must “be completed with anonymity and

sufficient expedition to provide an effective opportunity for

an abortion to be obtained”).

No. 17-2428 3

In 2017, the Indiana General Assembly enacted Public Law

173-2017, also known as Senate Enrolled Act 404, which

amended the parental consent and judicial bypass statutes in

several ways. This appeal focuses on one new requirement for

the judicial bypass process. Even if a judge concludes that a

parent need not consent to the abortion, either because the un-

emancipated minor is mature enough to make her own deci-

sion or because the abortion is in her best interests, and even

though the bypass process is supposed to be confidential per

Bellotti, parents still must be given prior notice of the planned

abortion unless the judge also finds such notice is not in the

minor’s “best interests.” Ind. Code § 16-34-2-4(d). The young

woman’s attorney “shall serve the notice required by this sub-

section by certified mail or by personal service.” Id. A bypass

court “shall waive the requirement of parental notification un-

der subsection (d) if the court finds that obtaining an abortion

without parental notification is in the best interests of the un-

emancipated pregnant minor.” Ind. Code § 16-34-2-4(e). That

difference in language is important. Unlike the judicial bypass

of the parental consent requirement, which may be based on

either maturity or best interests, judicial bypass of notice may

be based only on “best interests.”1

1 These changes make Indiana something of an outlier. Only two

states, Oklahoma and Utah, have parental notice statutes that appear to be

more restrictive by not including any form of judicial bypass. See Okla.

Stat. Ann. tit. 63, §§ 1-744 to 1-744.6; Utah Code Ann. § 76-7-304. The Su-

preme Court upheld the Utah statute, but its decision does not control

here because that plaintiff “made no claim or showing as to her maturity

or as to her relations with her parents.” H.L. v. Matheson, 450 U.S. 398, 407

(1981); see also id. at 415–16 (Powell, J., concurring) (explaining that lack

of detail about individual plaintiff’s situation had been deliberate choice

consistent with seeking broad judicial remedy).

4 No. 17-2428

Out of the usual sequence for a judicial opinion, we ad-

dress here one interpretive issue about the new notice require-

ment. We disagree with Planned Parenthood’s argument that

the statute permits notice to parents even if the bypass court

refuses to allow the pregnant minor to proceed without her

parents’ consent. The statute requires notice to parents after a

bypass hearing but “before the abortion is performed,” Ind.

Code § 16-34-2-4(d). We agree with the State that the require-

ment to serve notice is triggered only if the judge authorizes

an abortion. See Zbaraz v. Madigan, 572 F.3d 370, 383 (7th Cir.

2009) (“Where fairly possible, courts should construe a statute

to avoid a danger of unconstitutionality.”), quoting Ohio v.

Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990).

Bypass proceedings and appeals are sealed. Ind. Code § 16-

34-2-4(h). The new statute does not provide a legal mecha-

nism that would allow a judge to order notice to parents of a

minor’s unsuccessful attempt to seek bypass.2

In addition to the notice requirement, Public Law 173-2017

changed the consent and judicial bypass statutes in other

ways. Indiana already required parents to show their consent

in writing, but the new law raised that requirement. It re-

quired a physician performing an abortion for a minor not

only to obtain written parental consent but also to obtain

2 The new, challenged Indiana notice requirement opens the door,

however, for the minor’s parents to choose to disclose her pregnancy, her

abortion, and/or the judicial bypass process to anyone they like and for

any purpose they like. Cf. Planned Parenthood v. Casey, 505 U.S. at 893 (not-

ing that many women who feared notifying their spouses of planned abor-

tions may fear “devastating forms of psychological abuse,” including “the

withdrawal of financial support, or the disclosure of the abortion to family

and friends,” which “may act as even more of a deterrent to notification

than the possibility of physical violence”).

No. 17-2428 5

government-issued proof of identification from the consent-

ing parent, as well as “some evidence, which may include

identification or other written documentation that provides

an articulable basis for a reasonably prudent person to believe

that the person is the parent or legal guardian or custodian of

the unemancipated pregnant minor.” Ind. Code § 16-34-2-

4(a)(3). The new law also required a physician who obtains

parental consent to execute and save an affidavit certifying

that “a reasonable person under similar circumstances would

rely on the information provided by the unemancipated preg-

nant minor and the unemancipated pregnant minor’s parent

or legal guardian or custodian as sufficient evidence of iden-

tity and relationship.” Ind. Code § 16-34-2-4(k)(2).

The new law also added a section imposing civil liability

on anyone who “knowingly or intentionally aid[s] or assist[s]

an unemancipated pregnant minor in obtaining an abortion

without the consent required” by the consent statute. Ind.

Code § 16-34-2-4.2(c). In the district court, the parties agreed

that this provision would prohibit Planned Parenthood and

its physicians from providing an unemancipated minor infor-

mation regarding out-of-state abortion services which osten-

sibly would not require parental consent or notice. Planned

Parenthood, 258 F. Supp. 3d at 934. The district court’s prelim-

inary injunction enjoined enforcement of all of those changes.

Id. at 956. In this appeal, Indiana has not challenged those por-

tions of the injunction, so we do not discuss them further.

Returning to the disputed new parental notice require-

ment in the judicial bypass procedure, it is relevant that Indi-

ana law authorizes both criminal penalties and professional

licensing sanctions against abortion providers and their em-

ployees for violating portions of Indiana’s abortion law. E.g.,

6 No. 17-2428

Ind. Code § 16-34-2-7(b) (physician who intentionally or

knowingly performs abortion in violation of Ind. Code § 16-

34-2-4 commits Class A misdemeanor); Ind. Code § 25-1-9-

4(a)(2)-(3) (Indiana Medical Licensing Board may discipline

physicians who commit crimes); 410 Ind. Admin. Code § 26-

2-8(b)(2) (abortion facilities, like some Planned Parenthood fa-

cilities, are subject to license revocation or discipline for “per-

mitting, aiding, or abetting the commission of any illegal act

in an abortion clinic”).

Before the new law took effect, Planned Parenthood

brought this lawsuit against several defendants in their offi-

cial capacities: the Commissioner of the Indiana State Depart-

ment of Health, the prosecutors of Marion, Lake, Monroe, and

Tippecanoe Counties, the members of the Indiana Medical Li-

censing Board, and the judge of the Juvenile Division of the

Marion Superior Court (collectively, the “State”). The State

appeals the portion of the preliminary injunction against the

new parental notice requirement.

II. The Evidence and Likely Effects

In support of its motion for preliminary injunction,

Planned Parenthood submitted affidavits from seven wit-

nesses to show the likely effects of the statute. The State chose

to introduce no evidence in response. The State argued that it

was “self-evident” that it had met its burden to justify the law

with a legitimate state interest. The State did not challenge the

reliability or credibility of Planned Parenthood’s evidence.

That lopsided factual record indicates that, for the small

group of minors affected by this law, requiring parental notice

is likely a “deal breaker” for a significant fraction. Smith Decl.

¶ 20. Our summary of the evidence draws heavily from Judge

Barker’s thorough opinion.

No. 17-2428 7

Planned Parenthood is a not-for-profit corporation that

operates multiple Indiana health centers. Beeley Decl. ¶ 3.

Those centers provide reproductive health services and com-

prehensive sexuality education to thousands of women and

men, including adults and teenagers. Id. Consistent with In-

diana law, Planned Parenthood physicians provide abortions

to minors at the four Planned Parenthood facilities in Indiana

that offer abortion services. Beeley Decl. ¶¶ 4–5, 8. The vast

majority of these minors obtain consent from their parents,

guardians, or custodians. In fiscal year 2015 (the most recent

data in the record), over 96 percent had obtained consent;

fewer than four percent had obtained a judicial bypass. Beeley

Decl. ¶¶ 9, 19. That amounts on average to about ten judicial-

bypass abortions per year by Planned Parenthood. See Smith

Decl. ¶ 9.

Planned Parenthood counsels minors to discuss their de-

sire for an abortion with a parent. Beeley Decl. ¶ 20. Some mi-

nors tell Planned Parenthood staff that they do not want to, or

feel they cannot, inform their parents that they are pregnant

and wish to obtain an abortion. Id., ¶¶ 20–21. In that case,

Planned Parenthood gives the minor the telephone number of

the bypass coordinator—a person who does not work for

Planned Parenthood and who maintains a list of attorneys

who can represent a young woman in a judicial bypass pro-

ceeding. Beeley Decl. ¶ 24; Smith Decl. ¶¶ 5- 6. Planned

Parenthood does not sponsor the bypass coordinator’s efforts.

Smith Decl. ¶ 6.

Over a six-year period, between October 2011 and Septem-

ber 2017, approximately 60 minors contacted Indiana’s by-

pass coordinator. Smith Decl. ¶ 9. Most were seventeen years

old. Id. Usually, the young women interested in pursuing

8 No. 17-2428

judicial bypass have not told their parents that they are preg-

nant and are seeking an abortion. Id., ¶ 14. These young

women have expressed various reasons for not telling their

parents. Some fear being kicked out of their homes. Others

fear being abused or punished, or fear that their parents will

try to block an abortion. Id., ¶¶ 15–16; Beeley Decl. ¶ 22; Flood

Decl. ¶ 9; Pinto Decl. ¶¶ 14–15; Lucido Decl. ¶¶ 8–12. One

young woman was forced to give birth because her mother

discovered her pregnancy and blocked her ability to have an

abortion. Glynn Decl. ¶ 13.

Other minors express related concerns like injury to their

relationships with their parents or parental disappointment.

Smith Decl. ¶ 17. Some minors do not know where their par-

ents are and have no legal guardian or custodian who could

fulfill the consent requirement. Beeley Decl. ¶ 23; Lucido

Decl. ¶ 13. Consistently, the young women express their fear

that their parent(s) will discover that they are pregnant and

seeking an abortion. Smith Decl. ¶ 18; Glynn Decl. ¶ 12; Lu-

cido Decl. ¶¶ 8–13.

The bypass coordinator currently informs young women

that no one involved in the bypass process will notify their

parents that they are pregnant or seeking an abortion. Smith

Decl. ¶ 18. As the district court found, however, Indiana’s

new law makes this assurance impossible. 258 F. Supp. 3d at

936–37. The district court also found that bypasses granted to

Planned Parenthood’s patients “have generally been based on

the juvenile court’s finding that the minor was sufficiently

mature to make the abortion decision independent of her par-

ents,” as distinct from the minor’s “best interests.” Id. at 936,

citing Beeley Decl. ¶ 26; Flood Decl. ¶ 6; Glynn Decl. ¶ 9.

No. 17-2428 9

III. The District Court’s Analysis

The district court enjoined the enforcement of the parental

notification requirement. Planned Parenthood, 258 F. Supp. 3d

at 956. The court identified the tension in the case law regard-

ing the standard for a pre-enforcement facial challenge of an

abortion statute, id. at 937–39, and noted that “the severity

and character of harm presented by certain abortion re-

strictions render them vulnerable to pre-enforcement facial

challenges.” Id. at 939. Crediting the uncontradicted affidavits

offered by Planned Parenthood, the district court found that

“the requirement of providing parental notification before ob-

taining an abortion carries with it the threat of domestic

abuse, intimidation, coercion, and actual physical obstruc-

tion.” Id. The court therefore rejected as “simply incorrect” the

State’s argument that Planned Parenthood must wait to chal-

lenge the law until it has evidence of the law’s effect after it

goes into effect. Id.

On the merits, the district court reviewed the evolution of

both Supreme Court and circuit precedent in this challenging

area of the law. 258 F. Supp. 3d at 940–46. Following the com-

mand of Planned Parenthood v. Casey in applying the “undue

burden” standard, the district court identified the relevant

group of young women as the “group for whom the law is a

restriction, not the group for whom the law is irrelevant.” Id.

at 939, quoting 505 U.S. at 894. The court then described that

group as young women who face the possibility of interfer-

ence, obstruction, or abuse as a result of the parental notifica-

tion requirement. The district court entered a preliminary in-

junction because the notice requirement was likely to “create

an undue burden for a sufficiently large fraction of mature,

abortion-seeking minors in Indiana.” 258 F. Supp. 3d at 939–

10 No. 17-2428

40, citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2320 (2016).

IV. Pre-Enforcement Facial Challenge

The State argues that the district court erred in issuing the

preliminary injunction because a facial challenge requires ev-

idence of a law’s effects, and that evidence can be obtained

only by allowing a law to go into effect. The State’s position

derives primarily from language in our decision in A Woman’s

Choice-East Side Women’s Clinic v. Newman, where we said that

“it is an abuse of discretion for a district judge to issue a pre-

enforcement injunction while the effects of the law (and rea-

sons for those effects) are open to debate.” 305 F.3d 684, 693

(7th Cir. 2002). Strictly speaking, this passage was dicta in the

opinion, which addressed a permanent injunction after dis-

covery and a full trial, not the earlier preliminary injunction,

but it was obviously considered dicta.

The State’s position overstates the evidence required for a

pre-enforcement facial challenge, as shown by a broader look

at cases decided before and after A Woman’s Choice. When we

decided A Woman’s Choice, there was a sharper conflict in Su-

preme Court precedent on this question. In United States v. Sa-

lerno, the Supreme Court had said broadly that, outside the

First Amendment, a law is facially invalid only where “no set

of circumstances exists under which the Act would be valid.”

481 U.S. 739, 745 (1987). But Salerno was about the Bail Reform

Act. In Casey and in Stenberg v. Carhart, the Court had invali-

dated two abortion statutes on pre-enforcement facial chal-

lenges without even mentioning Salerno. See Casey, 505 U.S. at

845, 895; Stenberg, 530 U.S. 914, 945 (2000).

No. 17-2428 11

The State argues that A Woman’s Choice resolved the ten-

sion and that “the applicable test on a pre-enforcement facial

challenge to an abortion regulation is whether the law will in-

controvertibly impose an undue burden.” State’s Br. at 12. It is

difficult to reconcile this rule of thumb with the general stand-

ard for preliminary injunctions, which requires the district

court to exercise its sound equitable discretion in balancing

several factors. See Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7, 24 (2008). Also, other decisions by this court,

both before and after A Woman’s Choice, have recognized that

the law on this question has not been as clear-cut as the State

argues. See, e.g., Zbaraz v. Madigan, 572 F.3d at 381 n.6 (noting

“some disagreement” over applicability of Casey’s “large frac-

tion” test or Salerno’s “no set of circumstances” test—because

of 2008 Supreme Court decision affirming Salerno’s applica-

bility outside abortion context—but upholding parental no-

tice requirement with judicial bypass under either standard);

Karlin v. Foust, 188 F.3d 446, 483 (7th Cir. 1999) (noting “con-

siderable disagreement” over which standard to apply be-

cause Casey “appears to have tempered, if not rejected, Sa-

lerno’s stringent ‘no set of circumstances’ standard in the abor-

tion context,” but assuming applicability of Casey’s large frac-

tion test because neither party appealed district court’s use of

Casey test); see also Planned Parenthood of Wisconsin, Inc. v. Van

Hollen, 738 F.3d 786, 788, 789 (7th Cir. 2013) (affirming injunc-

tion against requirement that physicians who perform abor-

tions have admitting privileges at nearby hospital).

The biggest problem for the State’s argument is that A

Woman’s Choice was decided before the Supreme Court de-

cided Whole Woman’s Health v. Hellerstedt, which confirmed

that the Casey undue burden standard applies to pre-enforce-

ment facial challenges to statutes regulating abortion. 136 S.

12 No. 17-2428

Ct. at 2309–10 (identifying Casey undue burden standard as

applicable test); id. at 2314–18 (applying undue burden stand-

ard to facial challenge to surgical center requirement statute);

id. at 2320 (identifying denominator for large-fraction test). In

Whole Woman’s Health, the plaintiffs brought a pre-enforce-

ment facial challenge to a Texas statute requiring that abortion

facilities abide by the same minimum facility standards as

ambulatory surgical centers. See id. at 2300; id. at 2301 (noting

that petitioners brought suit on April 6, 2014 seeking “an in-

junction prohibiting enforcement of the surgical-center provi-

sion anywhere in Texas”). The Supreme Court applied the un-

due burden standard and reversed the denial of an injunction,

without citing Salerno. To support that reversal, the Court re-

lied on pre-enforcement evidence from the district court. E.g.,

id. at 2317.3

These applications fit with the Supreme Court’s recent ac-

knowledgment that facial challenges may “proceed under a

diverse array of constitutional provisions.” City of Los Angeles

v. Patel, 135 S. Ct. 2443, 2449 (2015) (collecting cases); see also

3 The briefing in Whole Woman’s Health supports this approach. In its

brief, Texas assumed that Casey’s “large fraction” test applied but argued

that the Court should apply Salerno’s “no set of circumstances” test if the

Court addressed the issue. Brief for Respondents at 30 n.10, Whole

Woman’s Health, 136 S. Ct. 2292 (No. 15-274), 2016 WL 344496, at *30 n.10.

The Court did not address this argument explicitly but rejected it implic-

itly, following Casey. The dissenting Justices in Whole Woman’s Health also

did not invoke Salerno. Another portion of Whole Woman’s Health chal-

lenged a requirement that had been allowed to take effect, that physicians

have admitting privileges at nearby hospitals. The evidence showed that

after the requirement took effect, it led to closure of about half the facilities

providing abortions in Texas and imposed an undue burden on women’s

right to choose to terminate their pregnancies. 136 S. Ct. at 2312–13.

No. 17-2428 13

Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges,

99 Calif. L. Rev. 915, 918 (2011) (“Facial challenges also suc-

ceed much more frequently than either Supreme Court Jus-

tices or most scholarly commentators have recognized.”).

V. Applying the Preliminary Injunction Standard

To obtain a preliminary injunction, a plaintiff must show

a reasonable likelihood of success on the merits, the absence

of an adequate remedy at law, and a threat of irreparable

harm without the injunction. E.g., Planned Parenthood of Indi-

ana, Inc. v. Commissioner, 699 F.3d 962, 972 (7th Cir. 2012). If

the plaintiff makes this showing, the court weighs two addi-

tional factors: the balance of harms—harm to the plaintiff if

the injunction is erroneously denied versus harm to the de-

fendant if the injunction is erroneously granted—and the ef-

fect of the injunction on the public interest. Id.; accord, Winter,

555 U.S. at 24; Abbott Laboratories v. Mead Johnson & Co., 971

F.2d 6, 11–12 (7th Cir. 1992). The higher the likelihood of suc-

cess on the merits, the less decisively the balance of harms

needs to tilt in the moving party’s favor.

In reviewing a district court’s grant of a preliminary in-

junction, we review factual findings for clear error, legal con-

clusions de novo, and balancing of the equitable factors for

abuse of discretion. The abuse of discretion standard means

that the district court’s weighing of evidence and balancing of

the equitable factors receive “substantial deference.” Whitaker

v. Kenosha Unified School Dist. No. 1 Bd. of Educ., 858 F.3d 1034,

1044 (7th Cir. 2017). That deference is appropriate given the

nature of preliminary injunction decisions, which must be

based on incomplete information and are subject to further

consideration and revision after discovery, more evidence,

and a trial.

14 No. 17-2428

Motions for preliminary injunctions call upon courts to

make judgments despite uncertainties. Uncertainty about a

law’s application does not necessarily preclude an injunction.

We have read Casey as calling for consideration of a law’s

“likely effect.” E.g., Karlin, 188 F.3d at 481 (emphasis added).

Casey itself spoke in terms of possibilities in striking down a

spousal notice law before it took effect. See, e.g., 505 U.S. at

893 (“may fear,” “likely to prevent,” “will impose”), 895 (“will

operate”) (opinion of the Court) (emphases added).

Our decision in A Woman’s Choice is not inconsistent with

this focus. In A Woman’s Choice, the state had not appealed the

preliminary injunction that preserved the status quo while the

parties developed a more complete record. See 305 F.3d at 684.

The preliminary injunction had been issued despite the dis-

trict court’s inability “to draw definitive conclusions.” A

Woman’s Choice-East Side Women’s Clinic v. Newman, 904 F.

Supp. 1434, 1462 (S.D. Ind. 1995) (emphasis in original). And

when we decided the appeal from the permanent injunction in

that case, we distinguished the record before us from the rec-

ord in Casey on spousal notice, a record showing a rule “facil-

itating domestic violence or even inviting domestic intimida-

tion.” A Woman’s Choice, 305 F.3d at 692.4

A. Likelihood of Success on the Merits

We consider first Planned Parenthood’s likelihood of suc-

cess on the merits, and then turn to the other equitable factors

4

As noted above, our opinion in A Woman’s Choice criticized the un-

appealed preliminary injunction in that case, see 305 F.3d at 692–93, but

on grounds tied to the pre-enforcement challenge issue discussed above,

for which Whole Woman’s Health provides more recent and authoritative

guidance from the Supreme Court.

No. 17-2428 15

for preliminary injunctive relief. The district court concluded

that Planned Parenthood demonstrated a likelihood of suc-

cess on the merits because the parental notification require-

ment appeared highly likely to impose an undue burden for

the minors whom it will affect. We agree with the district

court’s analysis, except that we do not need to decide whether

the Supreme Court’s requirements for parental consent stat-

utes also apply in full to parental notice statutes.

Planned Parenthood demonstrated a likelihood of success

on the merits because Indiana’s notice law creates a substan-

tial risk of a practical veto over a mature yet unemancipated

minor’s right to an abortion. This practical veto appears likely

to impose an undue burden for the unemancipated minors

who seek to obtain an abortion without parental involvement

via the judicial bypass. The burden appears to be undue be-

cause the State has made no effort to support with evidence

its claimed justifications or to undermine with evidence

Planned Parenthood’s showing about the likely effects of the

law.

In Whole Woman’s Health, the Supreme Court applied the

Casey plurality’s undue burden standard. 136 S. Ct. at 2309–

10. The undue burden standard “is a shorthand for the con-

clusion that a state regulation has the purpose or effect of

placing a substantial obstacle in the path of a woman seeking

an abortion of a nonviable fetus.” Casey, 505 U.S. at 877 (plu-

rality opinion). In both cases, the Court took a common-sense

approach in considering the practical effects of the state regu-

lations. Whole Woman’s Health, 136 S. Ct. at 2317 (“Courts are

free to base their findings on commonsense inferences drawn

from the evidence.”); Casey, 505 U.S. at 892 (opinion of the

Court) (noting that district court’s findings regarding effect of

16 No. 17-2428

spousal notice statute and potential for domestic abuse “rein-

force what common sense would suggest”).

1. The Relevant Group for Undue Burden Analysis

If a statute “will operate as a substantial obstacle” “in a

large fraction of the cases in which [it] is relevant,” the statute

“is an undue burden and therefore invalid.” Casey, 505 U.S. at

895 (opinion of the Court); accord, Whole Woman’s Health, 136

S. Ct. at 2320. The analysis starts with those “upon whom the

statute operates”—i.e., “the group for whom the law is a re-

striction, not the group for whom the law is irrelevant.” Casey,

505 U.S. at 894 (opinion of the Court). For the spousal notice

law struck down in Casey, that was less than one percent of

women seeking abortions. This group serves as the denomi-

nator for the relevant fraction Casey described. Under Casey, a

statute that will have the practical effect of giving someone

else a veto over a woman’s abortion decision is an undue bur-

den. See 505 U.S. at 897 (spousal notice requirement would

give husbands of spousal abuse victims “an effective veto” that

“will often be tantamount to the veto found unconstitutional

in Danforth”) (emphasis added).

Casey qualified its holding on spousal notice by saying it

was “in no way inconsistent” with the Court’s parental notice

and consent requirements for minors. 505 U.S. at 895. But

here, as in Casey, evidence matters. See id. at 887–94 (discuss-

ing district court’s findings and studies of domestic violence).

Planned Parenthood’s evidence—which the State did not re-

but with its own—raises concerns about minors similar to

those the Casey Court had about the practical veto imposed on

some women by spousal notice. Casey shows that a practical

veto can be an undue burden, whether that practical veto is

held by a partner or a parent of a mature minor.

No. 17-2428 17

The Casey analysis focuses on proportions, not total num-

bers. See Van Hollen, 738 F.3d at 798 (“It is not a matter of the

number of women likely to be affected.”). Although the rec-

ord does not indicate the exact number of unemancipated mi-

nors who will be affected as they go through the judicial by-

pass, the number appears to be small. In fiscal year 2015, 96

percent of minors who had abortions at Planned Parenthood

facilities in Indiana had their parent or guardian’s consent.

Beeley Decl. ¶ 9. Just four percent did not have consent. Be-

tween October 2011 and September 2017, about 60 young

women contacted the bypass coordinator, and only some of

them obtained an abortion. Smith Decl. ¶ 9. On average, that

is about 10 minors per year.5

In the district court, Planned Parenthood argued that the

denominator for the Casey fraction is unemancipated minors

seeking bypasses. These are the young women for whom the

law’s restriction is relevant. Cf. Casey, 505 U.S. at 895 (opinion

of the Court) (defining denominator as “married women

seeking abortions who do not wish to notify their husbands

of their intentions and who do not qualify for one of the stat-

utory exceptions to the notice requirement”). The district

court found that the bypasses granted to Planned Parenthood

patients “have generally been based on the juvenile court’s

finding that the minor was sufficiently mature.” Planned

Parenthood, 258 F. Supp. 3d at 936, citing Beeley Decl. ¶ 26. Ac-

cordingly, Planned Parenthood argues that the burdensome

effects of the new parental notice requirement produce a large

5In calendar year 2017, 236 minors obtained abortions in Indiana. In-

diana State Department of Health, Terminated Pregnancy Report 2017, at

7, available at https://www.in.gov/isdh/files/2017%20Indiana%20Termi-

nated%20Pregnancy%20Report.pdf.

18 No. 17-2428

Casey fraction because most bypasses have been granted on

maturity grounds, which is not a basis for excusing parental

notice under the challenged Indiana law. We agree.

On this record, though, the correct numerator and denom-

inator may both actually be even larger. Both numbers in-

clude not only young women who could be deemed mature

in a judicial bypass of the consent requirement, but also

young women who are likely to be deterred from even at-

tempting judicial bypass because of the possibility of parental

notice. Indiana has aimed this requirement at the tiny group

of minors who could show maturity but could not show that

parental notice would not be in their best interests. The evi-

dence in the preliminary injunction record indicates that the

statute’s effect will be broader because it will prevent some

minors from even seeking bypass in the first place. The fear

these minors feel at the prospect of the “chance that their par-

ents will have to be informed that they are seeking an abortion

… would be a deal breaker.” Smith Decl. ¶ 20.

2. The State’s Interest in the Notice Requirement

Whole Woman’s Health reiterated that Casey “requires that

courts consider the burdens a law imposes on abortion access

together with the benefits those laws confer,” and courts must

balance these interests. 136 S. Ct. at 2309. Whole Woman’s

Health shows that courts must consider actual evidence re-

garding both claimed benefits and claimed burdens of abor-

tion regulations. Id. at 2309–10. In that case, for example,

Texas argued that its admitting-privileges requirement was

intended to provide health benefits in cases with complica-

tions. The evidence showed, however, that “there was no sig-

nificant health-related problem that the new law helped to

cure.” Id. at 2311.

No. 17-2428 19

In this case, the State has not yet come forward with evi-

dence showing that there is a problem for the new parental-

notice requirement to solve, let alone that the law would rea-

sonably be expected to solve it. See id. The State has several

substantial interests that can be relevant in this context, if

there is reason to think they will be advanced by the new law.

E.g., Casey, 505 U.S. at 871 (plurality opinion) (“protecting the

potentiality of human life,” quoting Roe v. Wade, 410 U.S. 113,

162 (1973)); Casey, 505 U.S. at 872 (plurality opinion) (“ex-

pressing a preference for normal childbirth,” quoting Webster

v. Reproductive Health Svcs., 492 U.S. 490, 511 (1989)); Planned

Parenthood, 258 F. Supp. 3d at 941 (“protecting children and

adolescents, preserving family integrity, and encouraging pa-

rental authority”). Against these potential State interests, mi-

nors also have constitutional rights that require protection.

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52,

74 (1976) (“Constitutional rights do not mature and come into

being magically only when one attains the state-defined age

of majority. Minors, as well as adults, are protected by the

Constitution and possess constitutional rights.”). In the face

of evidence of burdensome effects, it is not enough for the

State merely to recite its interests and to claim the new law

will serve those interests or to say it is only experimenting.

The State’s arguments assume that, in raising their chil-

dren, parents will fulfill the role the Supreme Court has said

is constitutional for them to fulfill. We can all hope that that is

the reality for the vast majority of young women who face an

unexpected pregnancy and that they will turn to their parents

for guidance. But the evidence before the district court here

illustrates a different and “stark social reality,” Ohio v. Akron

Center for Reproductive Health, 497 U.S. at 537 (Blackmun, J.,

dissenting), “that there is ‘another world out there,’” id. at 541,

20 No. 17-2428

quoting Beal v. Doe, 432 U.S. 438, 463 (1977) (internal quotation

marks omitted). For those pregnant minors affected by this

Indiana law, the record indicates 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 de-

cision. That practical effect is an undue burden because it

weighs more heavily in the balance than the State’s interests.

We agree with the district court that 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. Planned

Parenthood, 258 F. Supp. 3d at 948.

Indiana argues that parents need notice because they need

to know about the abortion to be able to care for their daugh-

ter’s health: “abortion is a facet of medical history that could

have implications for future treatment.” State’s Br. at 22.

While that rationale sounds reasonable at first, it is not sup-

ported by logic or evidence. As a matter of logic, if we assume

this knowledge would help parents care for their daughters

later, the State’s proposed benefit would not depend on giv-

ing parents prior notice of an abortion, as the statute requires.

Planned Parenthood’s evidence shows a serious risk that prior

notice, instead of giving parents an opportunity to offer wise

counsel, will actually give parents an opportunity to exercise

a practical veto, preventing the pregnant minor from actually

exercising the constitutional right the juvenile court has al-

lowed her to exercise.

In fact, the State has offered no evidence that any actual

benefit is likely or that there is a real problem that the notice

requirement would reasonably be expected to solve. Whole

Woman’s Health shows that myths, speculation, and conven-

tional wisdom are not enough to justify restrictions on the

No. 17-2428 21

right to abortion. 136 S. Ct. at 2311 (“there was no significant

health-related problem that the new law helped to cure”). In

applying the undue burden standard, actual evidence is key

in weighing both the extent of burdens and the extent of ben-

efits a State offers to justify them. 136 S. Ct. at 2310, citing Ca-

sey, 505 U.S. at 888–94 (discussing evidence showing spousal

notice requirement imposed undue burden on right to termi-

nate pregnancy). In this case, the State offered no evidence to

support these proposed benefits, such as how, why, and how

often a minor’s past abortion is likely to affect her mental

health or her future health-care.6

6 Without relevant evidence in the record, our dissenting colleague

cites studies cited in an amicus brief on appeal and in the concurring opin-

ion in McCorvey v. Hill, 385 F.3d 846, 850–51 & n.3 (5th Cir. 2004) (Jones, J.,

concurring), to assert that a mature minor who has an abortion faces sub-

stantial risks to her mental and physical health and would benefit from

her parents’ support. Post at 45. Because these studies on this controversial

subject are not in the record and have not been subject to adversarial test-

ing in litigation, we do not address them in detail. As a general rule, how-

ever, data on physical health indicate that “complications from an abor-

tion are both rare and rarely dangerous.” Planned Parenthood of Wisconsin,

Inc. v. Schimel, 806 F.3d 908, 912 (7th Cir. 2015); id. at 913 (noting studies

finding “that the rate of complications is below 1 percent”); see also Whole

Woman’s Health, 136 S. Ct. at 2311–12 (finding no legitimate state interest

in requiring facilities that perform abortions also have hospital admitting

privileges because weight of the evidence revealed extremely low rate of

abortion-related complications). Regarding mental health issues, the

American Psychological Association undertook a comprehensive review

of mental health studies of women who had abortions and found serious

methodological problems in many published studies finding serious men-

tal health risks. The APA task force found, among other things, that the

“best scientific evidence published indicates that among adult women

who have an unplanned pregnancy, the relative risk of mental health prob-

lems is no greater if they have a single elective first-trimester abortion than

if they deliver that pregnancy.” American Psychological Association, Task

22 No. 17-2428

3. The Burden Imposed by the Notice Requirement

There is of course a formal legal difference between a no-

tice requirement and a consent requirement. The Supreme

Court has drawn that distinction on the basis that notice stat-

utes “do not give anyone a veto power over a minor’s abortion

decision.” Ohio v. Akron Center, 497 U.S. at 511, citing H. L. v.

Matheson, 450 U.S. 398, 411 n.17 (1981). Although a notice re-

quirement is not the formal or legal equivalent of a consent

requirement, it is equally clear that a notice requirement can

operate as the practical equivalent of a consent requirement.

Casey recognized just that possibility. That was the basis for

striking down the spousal notice requirement. 505 U.S. at 833,

897 (“spousal notice requirement enables the husband to

wield an effective veto over his wife’s decision”); see also

Planned Parenthood v. Miller, 63 F.3d 1452, 1459 (8th Cir. 1995)

(distinguishing between notice providing an “opportunity”

and consent providing a “tool” to obstruct abortion).7

Force on Mental Health and Abortion at 4 (2008), available at

http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf.

Nothing we decide today prevents the State from presenting further

evidence on such matters to the district court, where both the State’s and

Planned Parenthood’s evidence can be tested and challenged without the

urgent time pressure of a preliminary injunction proceeding. As the Su-

preme Court outlined in Whole Woman’s Health, the district court, in “de-

termining the constitutionality of laws regulating abortion procedures,”

will “place[] considerable weight upon evidence and argument presented

in judicial proceedings,” rather than deferring to a legislative resolution

of “questions of medical uncertainty.” 136 S. Ct. at 2310. The district court

will then apply “the standard … laid out in Casey, which asks courts to

consider whether any burden imposed on abortion access is ‘undue.’” Id.

7

This reading of Justice Kennedy’s opinion for the Court in Ohio v.

Akron Center is consistent with Justice Kennedy’s language in another

No. 17-2428 23

The preliminary injunction record here shows the serious

potential for the kind of harms identified in Casey. For a sig-

nificant fraction of the small number of unemancipated mi-

nors seeking an abortion via judicial bypass, Indiana’s notice

requirement will likely operate as an undue burden by giving

parents a practical veto over the abortion decision. The district

court credited the unchallenged testimony of the bypass co-

ordinator and a bypass attorney indicating that young women

have chosen not to inform their parents of their pregnancy out

of fear of abuse. Planned Parenthood, 258 F. Supp. 3d at 946–47,

citing Smith Decl. ¶¶ 16–17 and Flood Decl. ¶ 9. The district

court also credited unchallenged testimony that pregnancy is

a “flashpoint” for abuse. Id. at 946, citing Pinto Decl. ¶¶ 14–

15.

This evidence parallels the evidence the Supreme Court

accepted in Casey. 505 U.S. at 889 (opinion of the Court), quot-

ing district court’s finding of pregnancy as a “flashpoint for

battering and violence within the family,” and at 893 (credit-

ing fear of “threats of future violence”). The district court

found here that fear of abuse may “prompt pregnant minors

to engage in hazardous self-help measures such as attempting

to physically and/or chemically induce miscarriage or to en-

tertain thoughts of suicide.” Planned Parenthood, 258 F. Supp.

3d at 947, citing Pinto Decl. ¶ 16 (one patient attempted to in-

duce miscarriage by convincing boyfriend to stomp on her

opinion issued the same day. See Hodgson v. Minnesota, 497 U.S. 417, 496

(1990) (Kennedy, J., dissenting in part) (“Unlike parental consent laws, a

law requiring parental notice does not give any third party the legal right

to make the minor’s decision for her, or to prevent her from obtaining an

abortion should she choose to have one performed.”) (emphasis added).

24 No. 17-2428

stomach and push her down stairs; another patient attempted

to induce miscarriage by drinking poison).

The district court also found that notice to parents could

result in actual obstruction of the abortion itself, in addition

to indirect obstruction via withdrawal of financial support.

258 F. Supp. 3d at 946. In Casey, the Supreme Court credited

similar fears of women who were afraid of notifying their

husbands of a pregnancy. 505 U.S. at 893 (discussing fear of

“psychological abuse,” including “verbal harassment, threats

of future violence, the destruction of possessions, physical

confinement to the home, the withdrawal of financial support,

or the disclosure of the abortion to family and friends”). The

district court found here that Casey’s concerns are “height-

ened with regard to unemancipated minors, who typically

must rely on their parents … for financial support, housing,

and transportation in addition to the many legal incapacities

for which the parents must serve as proxy.” 258 F. Supp. 3d at

946.

For young women who have these fears, the potential for

parental notice is a threat that may deter them from even at-

tempting bypass in the first place. Id. at 947, citing Pinto Decl.

¶ 28; see also Smith Decl., ¶ 20; Glynn Decl., ¶ 17; Flood Decl.,

¶ 13. For some, as noted, it is a “deal breaker.” Smith Decl.

¶ 20. We have recognized a similar deterrent effect before. In-

diana Planned Parenthood Affiliates Ass’n v. Pearson, 716 F.2d

1127, 1141 (7th Cir. 1983) (“It is hardly speculative to imagine

that even some mature minors will be deterred from going to

court if they know that their parents will be notified if their

petitions are denied, because no minor can be certain that the

court will rule in her favor.”). This record gives evidentiary

weight to the possibilities we identified as concerns about

No. 17-2428 25

mandatory notice even before Bellotti was decided. See Wynn

v. Carey, 582 F.2d 1375, 1388 n.24 (7th Cir. 1978).

We must also recognize that any particular obstacle to ex-

ercising the right to choose to end a pregnancy does not exist

in a vacuum. See Whole Woman’s Health, 136 S. Ct. at 2313. Cu-

mulative effects are relevant, especially in an environment in

which very few clinics and physicians perform abortions in

Indiana. The deterrence shown in this record must be under-

stood in the larger context of the logistical puzzle that the In-

diana bypass statute already requires minors to solve.

A teenager who suspects she is pregnant but who has

good reasons to fear telling her parents must figure out where

to go to determine whether she is pregnant, how to get there

(without missing school or work and without alerting her

family), and how to pay for whatever that initial visit costs. If

she visits a Planned Parenthood clinic, she might find out

about the possibility of a judicial bypass to obtain an abortion.

If she wants to pursue that route, she must then find her way

to a state court, with or without a lawyer, and persuade a

judge either that she is mature enough to have an abortion

without her parents’ consent or that doing so would be in her

“best interests.” Even if she proves that she is mature enough

to have the abortion without her parents’ consent, Indiana’s

new law would allow a judge to require parental notice unless

she proves that an abortion without parental notice would be

in her “best interests.” Planned Parenthood’s unchallenged

evidence shows that the existence of that additional require-

ment is likely to cause a significant fraction of affected young

women to be too afraid to even try to seek an abortion.

None of the district court’s findings are clearly erroneous.

The State’s position that the parental notice requirement does

26 No. 17-2428

not afford parents a legal or practical right to obstruct the

abortion stretches too far. Notice is not the legal equivalent of

consent, but a notice requirement can have the same practical

effect as a consent requirement, as Casey reasoned in striking

down a spousal notice requirement. 505 U.S. at 896–98; see

also Indiana Planned Parenthood Affiliates v. Pearson, 716 F.2d at

1132. The district court credited Planned Parenthood’s evi-

dence showing that Indiana’s law has the serious potential to

create that practical effect by triggering parental obstruction,

triggering hazardous self-help, and deterring some minors

from even attempting bypass. The preliminary injunction

here was appropriate because, taken individually or collec-

tively, those possibilities demonstrate serious potential for an

undue burden. The undue burden analysis can include cumu-

lative effects. See Whole Woman’s Health, 136 S. Ct. at 2313 (de-

scribing increased driving distances as “one additional bur-

den … taken together with others”).

In applying the undue burden test, we must also address

two other oddities of the notice requirement. First, the State

acknowledges that a 48-hour parental notice requirement, like

the one the Eighth Circuit addressed in Miller, 63 F.3d at 1458,

“raises additional questions about the opportunity for the

parents to intercede and to obstruct the abortion.” The only

timing requirement in Indiana’s statute is that notice be given

“before the abortion is performed.” Ind. Code § 16-34-2-4(d).

That is troubling. It leaves the potential for a judge to require

notice to be given even longer in advance than in Miller.

The two methods the statute identifies for delivering that

notice pose similar practical problems. The statute requires

that the “attorney representing the unemancipated pregnant

minor shall serve the notice required by this subsection by

No. 17-2428 27

certified mail or by personal service.” Id. That puts the minor

and her lawyer in a difficult position. The lawyer cannot con-

trol the timing of delivery of a letter sent by certified mail. To

comply with the requirement of actual notice before the abor-

tion is to be performed, the lawyer will have to allow plenty

of time for the letter to be delivered and received, and for the

proof of receipt to be returned. As a practical matter, that is

likely to require a planned delay of at least a week and per-

haps longer. Abortions in Indiana require advance scheduling

to comply with the State’s informed-consent and cooling-off

rules. See Ind. Code § 16-34-2-1.1(a).

The only alternative is personal notice to the parents, by

the lawyer. Picture the scene: a stranger knocks at the door

and announces to the young woman’s parents that their

daughter is pregnant and is seeking an abortion, that a judge

has authorized the abortion, and that it will occur soon. The

potential for serious trouble is self-evident, for the lawyer and

for the pregnant minor and her constitutional rights. And all

of this after a judge has already been convinced to bypass pa-

rental consent.

The district court’s recognition of the likely practical con-

sequences of this law is consistent with Casey. Casey distin-

guished its holding as to married women from the line of

cases addressing parental notice or consent requirements be-

cause those cases “are based on the quite reasonable assump-

tion that minors will benefit from consultation with their par-

ents and that children will often not realize that their parents

have their best interests at heart.” 505 U.S. at 895 (opinion of

the Court). Just as the Casey court did not have to adopt that

same assumption for married women, the district court was

not required to adopt it in the face of this record with

28 No. 17-2428

unchallenged evidence showing that the same assumption is

too optimistic in a substantial fraction of relevant cases. After

all, in this case, that assumption was directly refuted by evi-

dence for purposes of the preliminary injunction.

The State argues that the notice requirement creates no ad-

ditional risk for young women who fear parental notice. Ac-

cording to the State, these minors are “in no worse position

than if [they] had not attempted bypass” because a young

woman who initiates the bypass process but fails to convince

a court to waive notice can make notice unnecessary by decid-

ing not to have an abortion. The argument illustrates the po-

tential for irreparable harm. A minor who obtains a bypass of

parental consent, only to be forced to choose between parental

notice and not having the abortion, will still have to weigh the

consequences of notice. As the district court found, minors for

whom the potential consequences include, for example, con-

templating suicide or self-inducing a miscarriage, Planned

Parenthood, 258 F. Supp. 3d at 947, citing Pinto Decl. ¶ 16,

would not be in the same position as if they had never at-

tempted bypass. They would be worse off.

Further, the State’s brief acknowledges that at least one

purpose of the notice requirement is to inhibit the effective-

ness of the judicial bypass process itself. While the State as-

serts some interests that could be legitimate, at least in theory,

one of the interests proffered is to “ensure that parents of mi-

nor[s] are notified of their abortions and provides safeguards

for the parent-child relationship by preventing circumvention of

the consent requirement.” State’s Br. at 27 (emphasis added).

The very purpose of the constitutionally required judicial by-

pass is to “circumvent” the consent requirement in appropri-

ate cases. If the State had presented evidence that the judicial

No. 17-2428 29

bypass procedure is being abused in some systematic way, we

might see this differently. But without such evidence, the ar-

gument acknowledges that the new notice requirement is de-

signed to impose a new burden on a minor exercising her con-

stitutional right to seek a judicial bypass and thus to be able

to make her own decision about her own pregnancy. Cf. Ca-

sey, 505 U.S. at 877 (plurality opinion) (regulation with “pur-

pose or effect” of creating substantial obstacle to abortion de-

cision is unduly burdensome).

Like the district court, we reject the State’s and the dis-

sent’s argument that a bypass court can avoid any undue bur-

den by simply considering the potential for abuse as part of

the best-interests determination. The district court found that

the trauma of even attempting to prove abuse would deter

young women from pursuing bypass. Planned Parenthood, 258

F. Supp. 3d at 947. That finding is well-supported. It is not

clearly erroneous. Indeed, the finding parallels the district

court’s finding in Casey that the Supreme Court credited. See

Casey, 505 U.S. at 890 (opinion of the Court) (abused wives

“may be psychologically unable to discuss or report the rape

for several years after the incident”).

Because we decide this appeal based only on an applica-

tion of Casey’s undue burden standard, we need not and do

not decide whether Bellotti applies to all parental notice re-

quirements. The context of a preliminary injunction enjoining

the enforcement of this statute on a limited factual record nec-

essarily narrows our holding. The Supreme Court has an-

nounced clear bypass requirements for parental consent re-

quirements. Bellotti v. Baird, 443 U.S. at 643–44 (opinion of

Powell, J.) (requiring bypass based either on maturity or best

interests). The open question is whether those requirements

30 No. 17-2428

also apply to parental notice requirements. The district court

decided that the standards for parental consent requirements

apply equally to parental notice requirements. Planned

Parenthood, 258 F. Supp. 3d at 945–46. The State acknowledges

that, if Bellotti applies to notice statutes, then the Indiana law

is unconstitutional because it does not allow a bypass of no-

tice based on maturity. Because the Supreme Court has ex-

pressly declined to decide whether Bellotti applies to parental

notice statutes, we decline to decide this appeal on this

ground. Instead, we affirm the preliminary injunction based

on Planned Parenthood’s evidence of likely effects, which In-

diana did not rebut in the district court with evidence of its

own.

As the district court noted, we applied Bellotti to parental

notice requirements in the 1980s. Zbaraz v. Hartigan, 763 F.2d

1532, 1539 (7th Cir. 1985) (“This standard [i.e., maturity and

best interests-based bypass] also governs provisions requir-

ing parental notification.”), citing Bellotti, 443 U.S. at 651

(opinion of Powell, J.), and Indiana Planned Parenthood Affiliates

Ass’n v. Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983). But since

then, the Supreme Court has said that it has not decided

whether Bellotti applies to parental notice statutes. E.g., Lam-

bert v. Wicklund, 520 U.S. 292, 295 (1997) (per curiam) (revers-

ing Ninth Circuit’s invalidation of parental notice statute as

inconsistent with Bellotti because the Court “declined to de-

cide whether a parental notification statute must include

some sort of bypass provision to be constitutional.”), citing

Akron Center, 497 U.S. 502, 510 (1990) (expressly leaving ques-

tion open). We have noted this evolution before. Zbaraz v.

Madigan, 572 F.3d at 380 & n.5 (declining to decide

No. 17-2428 31

applicability of Bellotti because parental notice statute satis-

fied Bellotti consent requirements).8

The district court acknowledged that the question whether

Bellotti’s requirements for parental consent statutes apply

8 H.L. v. Matheson does not save this Indiana statute. The Court upheld

Utah’s parental notice requirement with no bypass at all, but it did so be-

cause the plaintiff “made no claim or showing as to her maturity or as to

her relations with her parents.” 450 U.S. 406, 407 (1981). The Court said

clearly what it was not deciding: “This case does not require us to decide

in what circumstances a state must provide alternatives to parental notifi-

cation.” Id. at 412 n.22. Justice Powell, author of the lead opinion in Bellotti,

joined the H.L. majority opinion “on the understanding that it leaves open

the question whether [the statute] unconstitutionally burdens the right of

a mature minor or a minor whose best interests would not be served by

parental notification.” Id. at 414 (Powell, J., concurring), citing id. at 412

n.22. The majority refused to “assume that the statute, when challenged in

a proper case, will not be construed also to exempt demonstrably mature

minors.” Id. at 406 (opinion of the Court). The same assumption cannot be

made here. Indiana’s statute permits bypass of the notice requirement

based on best interests but not based on maturity. See Ind. Code § 16-34-

2-4(d), (e). We have to assume that the textual difference was intentional.

In other cases, the Court has upheld parental notice statutes based on

the rationale that a parental notice statute that contains both a maturity-

and best-interests-based bypass is necessarily constitutional. In each case,

the Court upheld a statute permitting bypass based on either maturity or

best interests. Wicklund, 520 U.S. at 294 (Montana statute with notice by-

pass based on maturity, evidence of abuse, or notice not being in minor’s

best interests); Hodgson v. Minnesota, 497 U.S. 417, 497 (1990) (Kennedy, J.,

concurring in judgment) (upholding Minnesota parental notice require-

ment with bypass based on maturity or abortion without notice in minor’s

best interests); Akron Center, 497 U.S. at 508, 510–11 (upholding Ohio pa-

rental notice requirement with bypass based on maturity, abuse, or notice

not in best interests). We have taken the same approach. Zbaraz, 572 F.3d

at 374, 380 (upholding Illinois parental notice requirement with bypass

based on maturity or best interests).

32 No. 17-2428

equally to parental notice statutes “remains unanswered by

the Supreme Court and the Seventh Circuit,” but held that

Bellotti “must” apply. Planned Parenthood, 258 F. Supp. 3d at

945–46. Although we otherwise agree with the district court’s

undue burden analysis, we affirm without deciding this ques-

tion at this preliminary injunction stage.9

9There is certainly support in the case law for the district court’s con-

clusion. Five Justices in H.L. signaled that Bellotti should apply to notice

bypass statutes. 450 U.S. at 420 (Powell, J., joined by Stewart, J., concur-

ring) (“In sum, a State may not validly require notice to parents in all cases,

without providing an independent decisionmaker to whom a pregnant

minor can have recourse if she believes that she is mature enough to make

the abortion decision independently or that notification otherwise would

not be in her best interests.”); id. at 428 n.3 (Marshall, J., joined by Brennan

and Blackmun, JJ., dissenting) (exception to parental notice required for

emancipated minors, mature minors, and minors for whom notice would

not be in minor’s best interests). And the Akron majority observed that no-

tice of a bypass proceeding without any exception for a mature or eman-

cipated minor would be unconstitutional. City of Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416, 441 n.31 (1983). The Sixth Circuit

had upheld the ordinance’s notice requirement, though, and the petition-

ers did not challenge that ruling. Id. at 439 n.29.

At least two other circuits have applied Bellotti to parental notice re-

quirements. See Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th

Cir. 1997) (declining to read the Supreme Court’s silence as a holding that

Bellotti does not apply to parental notice statutes), overruled on other

grounds, Okpalobi v. Foster, 244 F.3d 405, 427 n.35 (5th Cir. 2001); 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.”). At least one other circuit has gone the

other way. Planned Parenthood of the Blue Ridge v. Camblos, 155 F.3d 352, 373

(4th Cir. 1998) (“[W]e hold that a notice statute that [includes at least the

Hodgson ‘best interest’ exception] need not include, in addition, a bypass

for the mature minor in order to pass constitutional muster”).

No. 17-2428 33

B. Other Injunction Requirements

Planned Parenthood showed a sufficient likelihood of suc-

ceeding on the merits to support the district court’s injunc-

tion. The district court also did not abuse its discretion in con-

cluding that Planned Parenthood satisfied the other require-

ments for a preliminary injunction.

First, Planned Parenthood demonstrated a likelihood of ir-

reparable harm. In applying the undue burden standard to a

restriction on abortion, it is hard to separate the merits from

irreparable harm. As discussed above, the record supports the

conclusion that young women would suffer irreparable harm

if injunctive relief were denied. See Doe v. Mundy, 514 F.2d

1179, 1183 (7th Cir. 1975) (enforcement of hospital policy

would violate right to privacy and cause irreparable harm);

see also Christian Legal Society v. Walker, 453 F.3d 853, 867 (7th

Cir. 2006) (presumption of irreparable harm applies to First

Amendment violations); 11A Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 2948.1 (3d ed.)

(“When an alleged deprivation of a constitutional right is in-

volved, such as the right to free speech or freedom of religion,

most courts hold that no further showing of irreparable injury

is necessary.”).

Planned Parenthood also does not have an adequate legal

remedy. The State has not argued otherwise. Instead, it argues

that a pregnant minor seeking a judicial bypass could chal-

lenge an adverse notification ruling by raising a constitutional

challenge in an expedited appeal after the bypass proceeding.

Given the time pressures at work in such cases, we reject that

alternative as an insufficient answer to the burdens here. See

Fleet Wholesale Supply Co. v. Remington Arms Co., 846 F.2d 1095,

1098 (7th Cir. 1988) (irreparable injury implies inadequacy of

34 No. 17-2428

legal remedies); see also 11A Wright & Miller § 2944 (“Proba-

bly the most common method of demonstrating that there is

no adequate legal remedy is by showing that plaintiff will suf-

fer irreparable harm if the court does not intervene and pre-

vent the impending injury.”).

Because Planned Parenthood satisfied these threshold

showings, the district court also balanced the equities and

considered whether an injunction would be in the public in-

terest. Planned Parenthood, 258 F. Supp. 3d at 955. The district

court’s conclusions on these points were well within the

bounds of its discretion.

The district court did not err on the balance of harms. The

more likely it is that a plaintiff will win on the merits, the less

the balance of harms needs to weigh in the plaintiff’s favor.

Planned Parenthood v. Van Hollen, 738 F.3d 786, 795 (7th Cir.

2013); Planned Parenthood of Indiana, Inc. v. Commissioner, 699

F.3d 962, 972 (7th Cir. 2012); Abbott Laboratories v. Mead Johnson

& Co., 971 F.2d 6, 11–12 (7th Cir. 1992). On this record,

Planned Parenthood’s likelihood of success on the merits is

substantial. A final judgment in Planned Parenthood’s favor

would not undo the irreparable harm to which its patients

would have been subjected in the meantime, absent the in-

junction. It was within the district court’s sound discretion to

weigh those consequences more heavily than any irreparable

harm the State faces by delay in implementing its statute.

The district court also did not err on the public interest

analysis. 258 F. Supp. 3d at 955, citing Planned Parenthood of

Indiana & Kentucky, Inc. v. Commissioner, 984 F. Supp. 2d 912,

931 (S.D. Ind. 2013). Because Planned Parenthood has shown

that it is likely to succeed on the merits and that the balance

of harms favors the injunction, those showings weigh more

No. 17-2428 35

heavily in the balance than the State’s interest in enforcing a

law that Planned Parenthood has shown is likely unconstitu-

tional. See, e.g., Preston v. Thompson, 589 F.2d 300, 306 n.3 (7th

Cir. 1978) (injunction in public interest where continuing con-

stitutional violation is proof of irreparable harm).

For all of these reasons, the district court’s preliminary in-

junction barring enforcement of the new parental notice re-

quirement in Ind. Code § 16-34-2-4(d) and (e) is

AFFIRMED.

36 No. 17-2428

KANNE, Circuit Judge, dissenting. The question presented

in this case is straightforward and narrow: does the Consti-

tution prohibit Indiana from requiring a mature minor to no-

tify her parents of an impending abortion when she cannot

show that avoiding notification is in her best interests?

The Supreme Court has confirmed that both parental

consent and parental notification laws are constitutional. See

Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833,

899 (1992) (“Our cases establish, and we reaffirm today, that

a State may require a minor seeking an abortion to obtain the

consent of a parent or guardian, provided that there is an

adequate judicial bypass procedure.”); Ohio v. Akron Ctr. for

Reprod. Health, 497 U.S. 502, 518–19 (1990) (“We continue to

believe that a State may require the physician himself or her-

self to take reasonable steps to notify a minor’s parent be-

cause the parent often will provide important medical data

to the physician.”); H. L. v. Matheson, 450 U.S. 398, 409 (1981)

(“[A] statute setting out a ‘mere requirement of parental no-

tice’ does not violate the constitutional rights of an imma-

ture, dependent minor.” (quoting Bellotti v. Baird, 443 U.S.

622, 640 (1979)); Id. at 413 (“That the requirement of notice to

parents may inhibit some minors from seeking abortions is

not a valid basis to void the statute.”).

These statutes are constitutional because the State pos-

sesses “important” and “reasonabl[e]” interests in requiring

parental consultation before a minor makes an irrevocable

and profoundly consequential decision. Bellotti, 433 U.S. at

640–41 (“[P]arental notice and consent are qualifications that

typically may be imposed by the State on a minor’s right to

make important decisions. … [A] State reasonably may de-

termine that parental consultation often is desirable and in

No. 17-2428 37

the best interest of the minor.”); see also Majority Op. at 19;

Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indi-

ana State Dep't of Health, 258 F. Supp. 3d 929, 941 (S.D. Ind.

2017) (“[T]he law recognizes legitimate state interests in pro-

tecting children and adolescents, preserving family integrity,

and encouraging parental authority.”).

Indiana law requires a minor seeking an abortion to ob-

tain consent from her parents unless she can demonstrate to

a judge her maturity or show that an abortion is in her best

interests. Ind. Code Ann. § 16-34-2-4(e) (2017). This statutory

scheme is constitutional. Bellotti, 443 U.S. at 643–44.

In 2017, the Indiana General Assembly enacted a law re-

quiring a minor seeking an abortion to notify her parents.

Ind. Code Ann. at § 16-34-2-4(d). The minor may receive a

judicial bypass by showing that obtaining an abortion with-

out notification is in her best interests, but there is no excep-

tion for maturity alone. The district court concluded that the

statute imposes an undue burden. The majority agrees, but I

cannot.1

Planned Parenthood has not introduced evidence that es-

tablishes that requiring mature minors to notify their parents

that they intend to have an abortion (in a scenario where the

judge has found that avoiding notification is not in their best

interests) constitutes an undue burden. We should not inval-

1 I do agree, however, with the majority’s determination that the

statute’s “requirement to serve notice is triggered only if the judge au-

thorizes an abortion.” Majority Op. at 4. The new statute does not permit

“a judge to order notice to parents of a minor’s unsuccessful attempt to

seek bypass.” Id.

38 No. 17-2428

idate a law passed by a democratically-elected state legisla-

ture “while the effects of the law (and reasons for those ef-

fects) are open to debate.” A Woman's Choice-E. Side Women's

Clinic v. Newman, 305 F.3d 684, 693 (7th Cir. 2002). Because

the majority’s opinion is inconsistent with our precedent—

which remains good law despite the majority’s suggestion to

the contrary—I respectfully dissent.

I. ANALYSIS

1. Parental Consent and Parental Notification Are Different

Consent and notification requirements are manifestly dif-

ferent, and the Court has repeatedly confirmed that its pa-

rental-consent jurisprudence does not necessarily apply to

statutes imposing notification requirements. See, e.g., Lambert

v. Wicklund, 520 U.S. 292, 295–96 & n.3 (1997); Akron Center,

497 U.S. at 510 (“[A]lthough our cases have required bypass

procedures for parental consent statutes, we have not decid-

ed whether parental notice statutes must contain such pro-

cedures.”).

We have not decided whether the judicial bypass de-

scribed in Bellotti is required for parental notification stat-

utes. Zbaraz v. Madigan, 572 F.3d 370, 380 (7th Cir. 2009). The

Fifth and Eighth Circuits have held that parental-notification

statutes are unconstitutional without a Bellotti-type bypass.

Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1107 (5th Cir.

1997), overruled on other grounds by Okpalobi v. Foster, 244 F.3d

405 (5th Cir. 2001); Planned Parenthood, Sioux Falls Clinic v.

Miller, 63 F.3d 1452, 1460 (8th Cir. 1995) (“[T]he State has no

legitimate reason for imposing a restriction on [the] liberty

interests [of mature, informed minors] that it could not im-

pose on adult women.”). But the Fourth Circuit has held

No. 17-2428 39

that, “provided that a parental notice statute does not condi-

tion the minor’s access to abortion upon notice to abusive or

neglectful parents, absent parents who have not assumed

their parental responsibilities, or parents with similar rela-

tionships to their daughters,” it is facially constitutional.

Planned Parenthood of Blue Ridge v. Camblos, 155 F.3d 352, 367

(4th Cir. 1998).

The majority opinion opts not to decide whether to in-

corporate the Bellotti-bypass requirements into the parental

notification context. I have no objection to deferring an ex-

haustive discussion of that issue to another day. But the ma-

jority opinion then concludes that Indiana’s failure to allow

judicial bypass of the notification requirement for mature

minors constitutes an undue burden. Because the eviden-

tiary basis for that conclusion is entirely speculative, I cannot

agree.

2. The Preliminary Injunction Record and Decision

As the moving party, Planned Parenthood bears the bur-

den of justifying an injunction. Planned Parenthood of Indiana,

Inc. v. Comm’r of Indiana State Dep't Health, 699 F.3d 962, 972

(7th Cir. 2012). We shouldn’t lightly substitute our judgment

for the General Assembly’s, especially when “the effects of

the law (and reasons for those effects) are open to debate.” A

Woman’s Choice, 305 F.3d at 693. Our constitutional system

encourages legislative experimentation, and we must be

“ever on our guard” when exercising our authority to coun-

40 No. 17-2428

termand democratic impulses. New State Ice Co. v. Liebmann,

285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).2

At the preliminary injunction hearing, Planned

Parenthood introduced seven declarations supporting its

motion. I limit my review to the portions of the declarations

which the district court considered in connection with its

undue burden analysis. Forest Beeley, the Director of Surgi-

cal Services for Planned Parenthood, testified that minors

often do not wish to inform their parents they are seeking an

2 As the majority notes, Majority Op. at 10–13, the Supreme Court

has inconsistently articulated the standard for pre-enforcement injunc-

tions of statutes regulating abortion. Compare United States v. Salerno, 481

U.S. 739, 745 (1987) (stating that, outside the First Amendment context,

“the challenger must establish that no set of circumstances exists under

which the Act would be valid”), and Gonzales v. Carhart, 550 U.S. 124, 167

(2007) (“The latitude given facial challenges in the First Amendment con-

text is inapplicable here” in the abortion context.), with Whole Woman's

Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (conducting an undue

burden analysis without first discussing the standard the plaintiff must

meet), and Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (same). We high-

lighted this confusion in A Woman’s Choice and attempted to synthesize

the Supreme Court jurisprudence: the Salerno standard is relaxed in the

abortion context, but we do not “ignore the fact that enforcement has not

commenced” when reviewing an injunction. 305 F.3d at 687.

The majority suggests that A Woman’s Choice is no longer good law

because, in Whole Woman’s Health v. Hellerstadt, the Supreme Court once

again conducted an undue burden analysis without discussing the pro-

cedural context of the challenge. 136 S. Ct. 2292, 2309–10. Hellerstadt does

not resolve the contradictions in the Supreme Court abortion jurispru-

dence; it deepens them. Like Stenberg and Casey, the Court simply ig-

nored the language from Salerno and Gonzales indicating that pre-

enforcement injunctions require special justification.

No. 17-2428 41

abortion because of “a fear of being kicked out of the home,

a fear of being abused or punished in some way, and a fear

that the parent will attempt to block the abortion.” R. 14-1,

Beeley Decl. at 4. Kathryn Smith—a former Planned

Parenthood employee and current volunteer “Indiana by-

pass coordinator”—testified regarding her experience in at-

tempting to find volunteer attorneys to represent minors in

judicial bypass proceedings. She testified that minors typi-

cally do not wish to tell their parents because they fear their

parents will “throw them out of the house or … punish

them.” R. 14-3, Smith Decl. at 3; see also R. 14-4 , Glynn Decl.

at 3; R. 14-5, Flood Decl. at 2 (“Two of the women expressed

concerns about abuse if their parents discovered they had an

abortion.”). Smith testified that the judicial bypass process is

“incredibly daunting and intimidating.” Id. at 4.

Finally, Planned Parenthood (and the district court) relied

heavily upon Dr. Suzanne M. Pinto’s declaration. Dr. Pinto

works as a psychologist in Colorado and specializes in treat-

ing abused minors and victims of domestic violence. She de-

tailed examples of sexual and physical abuse inflicted by

parents on minors. And she noted that “[p]regnancy is a par-

ticular flash point. As a physical manifestation of sexual ac-

tivity pregnancy can signify a teen’s independence from pa-

rental control.” R. 14-6, Pinto Decl. at 5.

Dr. Pinto asserted that, if the statute stands, abused mi-

nors will summarily reject judicial bypass as an option out of

“fear of exposing their abuse, fear or being forced to describe

their abuse to strangers in an adversarial court hearing, fear

that that they or their families will get into trouble if they

bring up the abuse, and fear” of increased abuse at home. Id.

at 8; see also R. 14-7, Lucido Decl. at 4 (“In many cases, teens

42 No. 17-2428

seeking a judicial bypass have abusive parents, and the

young women have a well-founded fear based on past expe-

rience that if one or both of her parents were to learn of the

pregnancy or the minor’s desire to have an abortion, it

would precipitate additional abuse.”). Dr. Pinto thus argues

that minors will be unable to make the full disclosure that

the “best interests” exception would require. Pinto Decl. at

8,3 see also Lucido Decl. at 7–8 (detailing the practical chal-

lenges a minor in an abusive home may face if attempting to

obtain a judicial bypass).

The district court credited the testimony that minors may

encounter post-notification obstruction by parents. 258 F.

Supp. 3d at 946. The district court further emphasized that

“a large number of minors may face the risk of domestic

abuse at the hands of one or more of their parents in the

event that a parent is notified of the minor’s pregnancy.” Id.

(citing Pinto Decl. at 4). The court was particularly con-

cerned that the “fear of retaliatory abuse” might deter a mi-

nor from even attempting to obtain judicial bypass (even if

she could satisfy the “best interests” exception). Id. at 947.

The district court’s undue burden analysis might be summa-

rized by this passage discussing the harms posed by the new

statute:

3Dr. Pinto seemed to believe that the challenged statute requires pa-

rental notice “even if the court has not yet ruled upon, or has denied, the

minor’s petition to make the abortion decision without parental con-

sent.” Id. at 4. As indicated above, I join the majority’s rejection of that

interpretation: the statute requires notice only upon the determination

that an abortion is to occur.

No. 17-2428 43

[F]or many young women in Indiana, the require-

ment of providing parental notification before ob-

taining an abortion carries with it the threat of do-

mestic abuse, intimidation, coercion, and actual

physical obstruction. The State’s argument that

those seeking to challenge the law must wait until

evidence of this type of harm accrues is simply in-

correct. The Court need not sit idly by while those

most vulnerable among us are subjected to un-

speakable and horrid acts of violence and perver-

sion, nor may we blind ourselves to the fact that for

millions of children (including young women) in

the United States the threat of such abuse is real.

Id. at 939 (citing Pinto Decl. at 4).

3. The Statute Does Not Impose an Undue Burden

Given this evidentiary background, the district court

concluded—and the majority agrees—that the new Indiana

statute imposes an undue burden. But I disagree. Consider

the following scenarios: if the minor cannot satisfy the ma-

turity or “best interests” exceptions, she cannot obtain a ju-

dicial bypass for either consent or notification (and that is

constitutional, per Bellotti). If she can show that obtaining an

abortion without involving her parents is in her best inter-

ests, she can obtain judicial bypass of both consent and noti-

fication. If she can show maturity but not that obtaining an

abortion without involving her parents is in her best inter-

ests, she can obtain judicial bypass of consent but not of noti-

fication. Is that an undue burden?

44 No. 17-2428

A. Evidence Regarding At-Risk Minors Does Not Establish the

Need for a Maturity Exception

In finding that it is an undue burden, the district court

and majority rely on evidence that minors in abusive homes

will be at risk if their parents discover that they plan to have

an abortion. But the “best interests” exception completely

covers that scenario. If the minor can demonstrate a likeli-

hood of retributive abuse, the court will conclude that the

minor’s best interests require bypassing the notification re-

quirement. Planned Parenthood has not identified an in-

stance where an Indiana court rejected a minor’s “best inter-

ests” argument and required parental consent, but abuse fol-

lowed.

State-imposed restrictions on mature minors cannot, by

themselves, be constitutionally problematic. “[A] state legis-

lature has constitutional power to utilize, for purposes of

implementing a parental-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 legisla-

ture impermissible under the Federal Constitution.” Mathe-

son, 450 U.S. at 425 (Stevens, J., concurring). Would we inval-

idate a law that requires parental consent for a minor to

marry because it did not include an exception for minors

who can demonstrate their maturity? See Obergefell v. Hodges,

135 S. Ct. 2584, 2599 (2015) (“[T]he right to personal choice

regarding marriage is inherent in the concept of individual

autonomy.”); Matheson, 450 U.S. at 425 n.2 (Stevens, J., con-

curring) (“Instead of simply enforcing general rules promul-

gated by the legislature, perhaps the judiciary should grant

hearings to all young persons desirous of establishing their

No. 17-2428 45

status as mature, emancipated minors instead of confining

that privilege to unmarried pregnant young women.”).

A minor’s maturity has no relation to the likelihood of

abuse (or, at least, Planned Parenthood has not introduced

evidence explaining why that might be so). See Camblos, 155

F.3d at 373 (“A notice requirement does not become a veto

merely because the minor has become mature enough that

she must be allowed to decide for herself whether to end her

pregnancy.”); see also Matheson, 450 U.S. at 425 (Stevens, J.,

concurring) (“Almost by definition, however, a woman intel-

lectually and emotionally capable of making important deci-

sions without parental assistance also should be capable of

ignoring any parental disapproval. Furthermore, if every

minor with the wisdom of an adult has a constitutional right

to be treated as an adult, a uniform minimum voting age is

surely suspect.”). Thus, Planned Parenthood’s evidence re-

garding at-risk minors is irrelevant to the question of wheth-

er the Constitution requires an exception to parental notifica-

tion for mature minors.

When a court concludes that a minor is mature enough to

decide to have an abortion but also that the minor’s best in-

terests would be served by notifying her parents, the State

has a legitimate and significant interest in requiring that no-

tification. Camblos, 155 F.3d at 374 (“[E]ven the most mature

teenager will benefit from the experienced advice of a par-

ent, and, as a consequence of that dialogue, make a more in-

formed, better considered, abortion choice.”). Abortion can

be emotionally and physically traumatic for adult women.

See McCorvey v. Hill, 385 F.3d 846, 850–51 & n.3 (5th Cir. 2004)

(Jones, J., concurring) (collecting clinical and scientific stud-

ies). As Planned Parenthood notes, teenage women are a par-

46 No. 17-2428

ticularly vulnerable demographic, and studies indicate they

face an exceptionally high risk of suicidal ideation and emo-

tional turmoil following an abortion. See Amicus Br. of Ari-

zona at 11 (citing three studies finding significant mental

health risk for post-abortion adolescents, including one

study which found a 50% chance of suicidal ideation). A ma-

ture minor may wish to keep her abortion secret from her

parents and yet benefit greatly from their support before and

in the aftermath.

B. The Risk of Deterrence Inherent in Judicial Bypass Proceed-

ings Cannot be an Undue Burden

Perhaps recognizing that the evidence regarding the chal-

lenges for abused minors is unrelated to the maturity excep-

tion, the majority argues that “the potential for parental no-

tice is a threat that may deter [minors] from even attempting

bypass in the first place.” Majority Op. at 24. In other words,

the notification requirement will deter minors from attempt-

ing bypass—even if they would qualify under the “best in-

terests” test—because the mere possibility of their parents

discovering “would be a deal breaker.” Smith Decl. at 4.

Because the State put on no evidence of its own, I assume

that possibility to be a concern. But that logic applies equally

to judicial bypass requirements for parental consent statutes.

If the minor does not succeed in obtaining judicial bypass,

then the minor must obtain the consent of her parents

(which, of course, necessarily includes notice of her preg-

nancy). Certainly, the possibility that a minor might have to

obtain her parents’ consent could deter her from seeking ju-

dicial bypass. Indeed, the risk of deterrence applies with

greater force to parental-consent statutes. See Akron Ctr., 497

U.S. at 510 (explaining that consent statutes involve “greater

No. 17-2428 47

intrusiveness” than notification statutes). Yet the Supreme

Court has repeatedly confirmed that parental-consent stat-

utes, subject to the Bellotti exceptions, are constitutional.

And there are persuasive reasons why requiring mature

minors to notify their parents poses a lesser risk of deter-

rence. There is a direct relationship between the likelihood of

deterrence and the likelihood that the minor will satisfy the

“best interests” test. The higher the possibility that the minor

will be abused if her parents discover her pregnancy, the

higher the likelihood that the court will grant a judicial by-

pass for notice. If the minor cannot show that likelihood of

mistreatment, she will be less likely to satisfy the “best inter-

ests” tests but also less likely to be deterred by the potential

consequences of her parents discovering her pregnancy.

And, similarly, the more mature the minor, the lower the risk

that parental notification will result in a “practical veto.”

Majority Op. at 15; see also Camblos, 155 F.3d at 373 (“[T]here

is every reason to believe that the burden imposed upon the

mature minor by a parental notice requirement will actually

be less onerous than that imposed upon the immature mi-

nor.”). Bellotti demonstrates that the burdens inherent in ju-

dicial bypass proceedings cannot be undue.

And that’s all the evidence which Planned Parenthood in-

troduced: several declarations from individuals involved in

the bypass process discussing their personal observations

and anecdotes and a declaration by one child psychologist

discussing the challenges which children in abusive homes

face in obtaining abortions. There’s no evidence regarding

why a notification requirement will substantially obstruct

mature minors (when the court has concluded that the

child’s best interests warrant notification) from obtaining an

48 No. 17-2428

abortion. There’s no evidence comparing the decision-

making process for immature minors with that of mature

minors. And there’s no evidence regarding how, in practice,

the inclusion of a “best interests” exception and the exclu-

sion of a maturity exception will influence minor decision-

making.

That’s because, of course, Indiana “has been disabled

from implementing its law and gathering information about

actual effects.” A Woman’s Choice, 305 F.3d at 687. This is the

same fundamental problem that necessitated reversal of the

permanent injunction in A Woman’s Choice. The district

court’s issuance of a pre-enforcement preliminary injunction

prevented collection of actual data about the law’s effects.

During the bench trial, the district court reviewed data from

other states, but those studies did not adequately account for

“state-specific characteristics.” Id. at 690. That reliance on da-

ta from other communities and utter lack of Indiana-specific

information is why the “pre-enforcement nature of th[e] suit

matter[ed].” Id.; see also id. at 692 (“If Indiana’s emergency-

bypass procedure fails to protect Indiana’s women from risks

of physical or mental harm, it will be a failure in operation; it

is not possible to predict failure before the whole statute

goes into force.”).

The majority dismisses A Woman’s Choice because we are

reviewing a preliminary injunction, not a permanent injunc-

tion. But the court in A Woman’s Choice reversed the perma-

nent injunction because the record contained no data about

the actual or likely effects of the Indiana statute specifically.

And collecting that data was impossible because the district

court issued a preliminary injunction. Thus, the entire course

of litigation in A Woman’s Choice involved pre-enforcement

No. 17-2428 49

speculation about the statute’s effects. That problem is also

present here. Generalized information about abortion regu-

lation writ large cannot substitute for specific, tailored data

regarding the statute at issue. See id. (“Indiana is entitled to

an opportunity to have its law evaluated in light of experi-

ence in Indiana.”). To call this reasoning in A Woman’s Choice

dicta is to misunderstand the majority opinion in that case.4

To the extent Planned Parenthood may believe that the

notification statute will have unanticipated or inexplicable

effects, the proper time to bring the challenge is after en-

forcement has revealed those effects. Id. at 693.5

4 The majority argues that the State must introduce actual evidence

about the benefits and burdens imposed by the statute and suggests that

it can still do so at trial. But, like in A Woman’s Choice, the preliminary

injunction will prevent the State from defending its statute with actual

operational data at trial. The majority distinguishes A Woman’s Choice on

procedural grounds without recognizing that affirmance will put the

State in the position we found so problematic in A Woman’s Choice.

5 The majority also suggests that A Woman’s Choice has been ren-

dered irrelevant by the Supreme Court’s decision in Hellerstadt. Majority

Op. at 11–12. As explained above, Hellerstadt ignored seemingly contra-

dictory jurisprudence and so does not clarify the confusion we identified

in A Woman’s Choice. More importantly, Hellerstadt involved a district

court record that contained eight peer-reviewed studies regarding the

likelihood of abortion complications and testimony from at least four

experts regarding the same. 136 S. Ct. at 2311. The present record con-

tains essentially no comparable empirical data. To the extent that Dr.

Pinto’s declaration qualifies as expert testimony, Planned Parenthood

hasn’t shown why the information regarding abused minors demon-

strates the necessity of a maturity exception. A Woman’s Choice supports

reversal here because, like in that case, the party seeking invalidation of

the statute has not provided probative evidence of an undue burden.

50 No. 17-2428

II. CONCLUSION

The challenged Indiana statute requires parental notifica-

tion but allows for judicial bypass of that requirement when

it would be in the minor’s best interests. Planned Parenthood

provided evidence that obtaining parental notification will

often not be in the minor’s best interests, but the statute al-

ready complies with Supreme Court jurisprudence focused

on those concerns.

The operative question is whether, given the State’s mani-

fest 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 en-

joined pre-enforcement—we can only speculate. As the ma-

jority recognizes, “evidence matters.” Majority Op. at 16.

The district court abused its discretion by enjoining the

law pre-enforcement, and its decision should be reversed.