Planned Parenthood of Indiana v. Marion County Prosecutor

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-2407

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC.,

Plaintiff-Appellee,

v.

MARION COUNTY PROSECUTOR, et al.,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:18-cv-01219 — Richard L. Young, Judge.

____________________

ARGUED JANUARY 12, 2021 — DECIDED AUGUST 2, 2021

____________________

Before EASTERBROOK, WOOD, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. This appeal queries whether an In-

diana statute that requires medical providers to report com-

plications “arising from” abortions to the state is unconstitu-

tionally vague on its face. Although the statute has some am-

biguity, we conclude that Planned Parenthood has not shown

that the law is unconstitutionally vague on its face in this pre-

enforcement challenge.

2 No. 20-2407

I. Background

Planned Parenthood of Indiana and Kentucky, Inc.

(“Planned Parenthood”) filed this suit on April 23, 2018 to

challenge Indiana Senate Enrolled Act No. 340, which the

governor signed into law on March 25, 2018. The Complaint

took aim at two provisions of Enrolled Act No. 340—the Com-

plications Statute and the Inspection Statute. The Complica-

tions Statute, Indiana Code § 16-34-2-4.7, required physicians

to report to the state “any adverse physical or psychological

condition arising from the induction or performance of an

abortion.” The Statute then provided a list of twenty-six con-

ditions that the state considered reportable conditions. The

word “including” preceded the conditions list, seemingly in-

dicating that the list of twenty-six conditions was illustrative

rather than exhaustive. The Inspection Statute, Indiana Code

§ 16-21-2-2.6, required annual inspection of abortion provid-

ers’ facilities, even though other kinds of healthcare facilities

are inspected less frequently. Planned Parenthood sued Indi-

ana’s Health Department Commissioner and several county

prosecutors (collectively, “the Defendants”) seeking a decla-

ration that the two Statutes were unconstitutional and a per-

manent injunction enjoining the Statutes’ enforcement.

In May 2018, Planned Parenthood moved for a prelimi-

nary injunction enjoining the enforcement of the Complica-

tions Statute. The district court held a hearing on the motion

in June, and then granted Planned Parenthood’s motion and

preliminarily enjoined the enforcement of the Complications

Statute as unconstitutionally vague.

In its order granting Planned Parenthood’s motion, the

court found that there was constitutionally intolerable over-

lap between “normal” side effects of abortions and

No. 20-2407 3

“complications” that would trigger the reporting require-

ment. As a result, the Statute “fail[ed] to inform [Plaintiffs of]

what conduct is prohibited.” The district court was concerned

that physicians would “run the risk of being found … to be

out of compliance with their statutory responsibilities” (and

thereby risking time in prison and their medical licenses) for

failing to report “every ‘adverse physical or psychological

condition’ for which patients seek treatment as a reportable

condition, no matter how routine, minor, and expected.” The

district court found the Complications Statute’s illustrative

list of conditions to be “so broad or vague that they do not

remedy the uncertainty of the general definition of ‘abortion

complication.’”

In response, Indiana amended the Complications Statute.

In the 2019 version, the legislature eliminated the “including”

language that had previously indicated that the list was illus-

trative, as opposed to exhaustive. So, the 2019 version re-

quires doctors to report only those conditions included on the

Statute’s list. As amended, the Complications Statute now re-

quires physicians, hospitals, and abortion clinics to report

abortion complications to the state that meet the following

statutory definition:

(a) As used in this section, “abortion complication”

means only the following physical or psychological

conditions arising from the induction or performance

of an abortion:

(1) Uterine perforation.

(2) Cervical laceration.

(3) Infection.

4 No. 20-2407

(4) Vaginal bleeding that qualifies as a Grade 2 or

higher adverse event according to the Common Termi-

nology Criteria for Adverse Events (CTCAE).

(5) Pulmonary embolism.

(6) Deep vein thrombosis.

(7) Failure to terminate the pregnancy.

(8) Incomplete abortion (retained tissue).

(9) Pelvic inflammatory disease.

(10) Missed ectopic pregnancy.

(11) Cardiac arrest.

(12) Respiratory arrest.

(13) Renal failure.

(14) Shock.

(15) Amniotic fluid embolism.

(16) Coma.

(17) Placenta previa in subsequent pregnancies.

(18) Pre-term delivery in subsequent pregnancies.

(19) Free fluid in the abdomen.

(20) Hemolytic reaction due to the administration of

ABO-incompatible blood or blood products.

(21) Hypoglycemia occurring while the patient is being

treated at the abortion facility.

(22) Allergic reaction to anesthesia or abortion induc-

ing drugs.

No. 20-2407 5

(23) Psychological complications, including depres-

sion, suicidal ideation, anxiety, and sleeping disorders.

(24) Death.

(25) Any other adverse event as defined by criteria pro-

vided in the Food and Drug Administration Safety In-

formation and Adverse Event Reporting Program.

Ind. Code § 16-34-2-4.7(a).

Licensed physicians, hospitals, and abortion clinics are

subject to the Complications Statute and must submit to the

state a complications report detailing the following infor-

mation: the date the patient presented for treatment for the

abortion complication; the patient’s age, race, and county and

state of residence; the type and date of the patient’s abortion;

the name of the facility where the patient had the abortion;

details about any medications prescribed to the patient to fa-

cilitate the abortion; lists of any complications and the treat-

ment provided; lists of any complications diagnosed or

treated at follow-up visits; the dates of all follow-up visits; a

statement regarding whether the complication was previ-

ously managed by the abortion provider or the abortion pro-

vider’s required back-up physician; and a statement regard-

ing whether the patient’s visit to treat the complications was

the original visit or a follow-up visit. Id. §§ 16-34-2-4.7(b, e).

The Statute imposes criminal penalties for failing to com-

ply. “Each failure to report an abortion complication as re-

quired under this section is a Class B misdemeanor.” Id. § 16-

34-2-4.7(j). In Indiana, Class B misdemeanors are punishable

by up to six months in prison and $1,000 in fines. Id. § 35-50-

3-3. The Indiana Medical Licensing Board may also discipline

physicians for failing to comply. See id. § 25-1-9-4(a)(3).

6 No. 20-2407

After the 2019 amendment, Planned Parenthood rejected

Indiana’s contention that the amendment rendered the Com-

plications Statute constitutional. The parties therefore pro-

ceeded to brief cross motions for summary judgment.

The district court held that the Complications Statute is

unconstitutionally vague and granted Planned Parenthood’s

motion as to the Complications Statute. The district court,

however, upheld the constitutionality of the Inspection Stat-

ute. The court entered final judgment accordingly. On

Planned Parenthood’s motion, the district court amended its

final judgment to reflect the inclusion of a permanent injunc-

tion against the enforcement of the Complications Statute, as

amended.

Defendants now appeal the district court’s grant of sum-

mary judgment to Planned Parenthood with respect to the

Complications Statute. Planned Parenthood has not appealed

the district court’s decision with respect to the Inspection Stat-

ute. For the reasons discussed below, we reverse the district

court’s entry of summary judgment and remand for further

proceedings.

II. Discussion

We review the district court’s grant of summary judgment

de novo. Cobb v. Aramark Corr. Servs., LLC, 937 F.3d 1037, 1039

(7th Cir. 2019). “When reviewing cross-motions for summary

judgment, ‘all reasonable inferences are drawn in favor of the

party against whom the motion at issue was made.’” Valenti v.

Lawson, 889 F.3d 427, 429 (7th Cir. 2018) (quoting Tripp v.

Scholz, 872 F.3d 857, 862 (7th Cir. 2017)). The movant is enti-

tled to summary judgment when there is “no genuine dispute

as to any material fact and the movant is entitled to judgment

No. 20-2407 7

as a matter of law.” Id. (quoting Dunn v. Menard, Inc., 880 F.3d

899, 905 (7th Cir. 2018)).

The Supreme Court has long held that overly vague laws

are unconstitutional under the Due Process Clause of the Fifth

and Fourteenth Amendments. See, e.g., Connally v. Gen. Const.

Co., 269 U.S. 385, 391 (1926). Succinctly, “[i]n our constitu-

tional order, a vague law is no law at all.” United States v. Da-

vis, 139 S. Ct. 2319, 2323 (2019). The void-for-vagueness doc-

trine rests on the “twin constitutional pillars of due process

and separation of powers.” Id. at 2325; Sessions v. Dimaya, 138

S. Ct. 1204, 1212 (2018).

Only the people’s elected representatives in the legis-

lature are authorized to make an act a crime. Vague

statutes threaten to hand responsibility for defining

crimes to relatively unaccountable police, prosecutors,

and judges, eroding the people’s ability to oversee the

creation of the laws they are expected to abide.

Davis, 139 S. Ct. at 2325 (internal quotations and citations

omitted); see also Dimaya, 138 S. Ct. at 1212 (the vagueness doc-

trine is a “corollary of the separation of powers [doctrine]”).

In Connally, the Court considered the constitutionality of

an Oklahoma statute requiring the state to pay its employees

“not less than the current rate of per diem wages in the local-

ity where the work is performed.” Connally, 269 U.S. at 388.

The Court explained that “a statute which either forbids or

requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning

and differ as to its application violates the first essential of due

process of law.” Connally, 269 U.S. at 391. “[T]he terms of a

penal statute creating a new offense must be sufficiently

8 No. 20-2407

explicit to inform those who are subject to it what conduct on

their part will render them liable to its penalties is a well-rec-

ognized requirement, consonant alike with ordinary notions

of fair play and the settled rules of law.” Id. “The citizen can-

not be held to answer charges based upon penal statutes

whose mandates are so uncertain that they will reasonably

admit of different constructions. … The crime, … must be so

clearly expressed that the ordinary person can intelligently

choose, in advance, what course it is lawful for him to pur-

sue.” Id. at 393. The Court concluded that the Oklahoma min-

imum wage law was too indefinite in two respects: the phrase

“current rate of wages” and the term “locality” created a

“double uncertainty” that was “fatal to [the law’s] validity as

a criminal statute.” Id.

In 1972, the Court reiterated that the Constitution requires

that legislatures draft criminal statutes with sufficient preci-

sion to inform persons of “common intelligence” of a law’s

requirements and to avoid arbitrary enforcement of the stat-

ute. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).

There, the Court invalidated Florida’s public vagrancy law as

unconstitutionally vague, because it “failed[ed] to give a per-

son of ordinary intelligence fair notice that his contemplated

conduct is forbidden by the statute” and because it “encour-

age[d] arbitrary and erratic” enforcement. Id. (citing United

States v. Harriss, 347 U.S. 612, 617 (1954); Thornhill v. Alabama,

310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242 (1937)).

More recently, the Court has abided by the Papachristou

formula in a trilogy of as-applied challenges to federal crimi-

nal laws that imposed criminal liability based on the phrases

“crime of violence” and “violent felony.” See Davis, 139 S. Ct.

at 2324; Dimaya, 138 S. Ct. at 1212; Johnson v. United States, 576

No. 20-2407 9

U.S. 591, 595 (2015). In Johnson, the Court invalidated the re-

sidual clause of the Armed Career Criminal Act (“ACCA”),

which defined “violent felonies” to include crimes involving

“conduct” presenting “a serious potential risk of physical in-

jury to another,” because it failed both prongs set out by Pa-

pachristou. See Johnson, 576 U.S. at 594–95; 18 U.S.C.

§ 924(e)(2)(B)(ii). The “Government violates [the Fifth

Amendment’s Due Process Clause] by taking away some-

one’s life, liberty, or property under a criminal law so vague

that it fails to [1] give ordinary people fair notice of the con-

duct it punishes, or [2] so standardless that it invites arbitrary

enforcement.” Johnson, 576 U.S. at 595 (citing Kolender v. Law-

son, 461 U.S. 352, 357–58 (1983)). Moreover, the Court rejected

any defense of ACCA’s residual clause based on the existence

of some crimes that would clearly fall within its scope:

[O]ur holdings squarely contradict the theory that a

vague provision is constitutional merely because there

is some conduct that clearly falls within the provision’s

grasp. For instance, we have deemed a law prohibiting

grocers from charging an “unjust or unreasonable

rate” void for vagueness—even though charging

someone a thousand dollars for a pound of sugar

would surely be unjust and unreasonable.

Johnson, 576 U.S. at 602 (citing United States v. L. Cohen Grocery

Co., 255 U.S. 81, 89 (1921); Coates v. Cincinnati, 402 U.S. 611

(1971)).

Three years later, the Court explained in Dimaya that the

void-for-vagueness doctrine “guarantees that ordinary peo-

ple have ‘fair notice’ of the conduct a statute proscribes [and]

guards against arbitrary or discriminatory law enforcement

by insisting that a statute provide standards to govern the

10 No. 20-2407

actions of police officers, prosecutors, juries, and judges.” Di-

maya, 138 S. Ct. at 1212 (citing Papachristou, 405 U.S. at 162;

Lawson, 461 U.S. at 357–58). Accordingly, the Court found the

statutory definition of a “crime of violence” under 18 U.S.C.

§ 16 was unconstitutionally vague, because it had the “same

two features [as in Johnson] that conspired to make ACCA’s

residual clause unconstitutionally vague.” Id. at 1216.

Finally, in 2019, the Court struck down 18 U.S.C.

§ 924(c)(3)(B)’s residual clause as vague in United States v. Da-

vis. 139 S. Ct. at 2324. Like the “crime of violence” definitions

at issue in Johnson and Dimaya, the residual clause of Section

924(c) penalized the use of a firearm during the commission

of a crime of violence, defined as involving “a substantial risk

that physical force against the person or property of another

may be used in the course of committing the offense.” Davis,

139 S. Ct. at 2323–24. As mentioned above, the Court empha-

sized that the vagueness doctrine “rests on the twin constitu-

tional pillars of due process and separation of powers.” Id. at

2325.

We recently echoed these principles in United States v.

Cook, 970 F.3d 866, 872–73 (7th Cir. 2020).

The void-for-vagueness doctrine requires that a crimi-

nal statute define an offense with sufficient clarity that

an ordinary person has fair notice of what conduct is

prohibited and so as to avoid arbitrary and discrimina-

tory enforcement. “What renders a statute vague is not

the possibility that it will sometimes be difficult to de-

termine whether the incriminating fact it establishes

has been proved; but rather the indeterminacy of pre-

cisely what that fact is.”

No. 20-2407 11

Id. (quoting United States v. Williams, 553 U.S. 285, 306 (2008);

citing Skilling v. United States, 561 U.S. 358, 402–03 (2010);

United States v. Sylla, 790 F.3d 772, 774–75 (7th Cir. 2015)).

A. Notice

Here, several aspects of the Complications Statute give us

some pause, particularly given the criminal penalties (includ-

ing jail time) imposed for each violation of the Statute. See Vill.

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

498–99 (1982) (noting the Supreme Court’s “greater tolerance

of enactments with civil rather than criminal penalties be-

cause the consequences of imprecision are qualitatively less

severe.”); Whatley v. Zatecky, 833 F.3d 762, 777 (7th Cir. 2016)

(same); Copeland v. Vance, 893 F.3d 101, 114 (2d Cir. 2018)

(“The degree of vagueness that the Constitution tolerates …

depends in part on the nature of the enactment.”) (internal

quotations omitted).

First, although we are aware of no other case holding the

phrase “arising from” to be unconstitutionally vague, we

acknowledge the district court’s concern that the Statute is

“not clear as to the extent to which a complication must be

caused by the abortion itself.” The Statute requires doctors to

report the incidence of any one of the twenty-five listed con-

ditions “arising from” an abortion, but the Statute does not

give objective guidance regarding the temporal, spatial, or

causal relationship between the abortion and the complica-

tion. Cf. Gonzales v. Carhart, 550 U.S. 124, 149 (2007) (discuss-

ing the objective, anatomical landmarks specified by a federal

abortion regulation that saved that regulation from being

struck down as void).

12 No. 20-2407

Moreover, although several other states do impose abor-

tion-complication reporting requirements on doctors, Indi-

ana’s broad formulation of its Complications Statute is unu-

sual among peer statutes. First, not all reporting statutes im-

pose criminal penalties on violators. See, e.g., 18 Pa. Stat. and

Cons. Stat. Ann. § 3214(i)(1) (imposing civil liability on doc-

tors who fail to file the required report). 1 Furthermore, most

of the other abortion-complication reporting statutes cited by

Defendants use more specific language to guide doctors about

the causal relationship required between the abortion and any

complications. For example, Michigan’s complications-re-

porting law provides that the complication must be the pri-

mary, secondary, or tertiary result of an abortion. See e.g., Mich.

Comp. Laws Ann. § 3.2837. 2 And besides using a more spe-

cific causation standard, the vast majority of complication-re-

porting statutes explicitly include some kind of “reasonable

medical judgment” standard. See, e.g., Ariz. Rev. Stat. Ann.

1 See also Minn. Stat. Ann. § 145.4132 (delegating to the health commis-

sioner the imposition of any penalties for violating the reporting require-

ment). And, as mentioned above, “the Court has … expressed greater tol-

erance of enactments with civil rather than criminal penalties because the

consequences of imprecision are qualitatively less severe.” Vill. of Hoffman

Estates, 455 U.S. at 498–99.

2See also Nev. Rev. Stat. Ann. § 442.265 (requiring hospitals to report

“[t]he number of patients admitted for hospital care for a complication

which resulted from an abortion”) (emphasis added); 18 Pa. Stat. and Cons.

Stat. Ann. § 3214 (“Every physician who is called upon to provide medical

care or treatment to a woman who is in need of medical care because of a

complication or complications resulting, in the good faith judgment of the

physician, from having undergone an abortion or attempted abortion shall

prepare a report thereof and file the report with the department…”) (em-

phasis added).

No. 20-2407 13

§ 36-2162 (“A health professional who provides medical care

or treatment to a woman who, in the good faith judgment of the

health professional, is in need of medical care because of a com-

plication or complications resulting from having undergone

an abortion…”) (emphasis added).3 We also have previously

held that a reasonable medical judgment standard does not

render a statute void for vagueness in the abortion-regulation

context. See Karlin v. Foust, 188 F.3d 446, 459–60 (7th Cir. 1999).

Second, as the district court recognized, the statute lacks a

mens rea or scienter requirement, despite carrying a potential

term of imprisonment. The lack of a mens rea requirement is

not dispositive, but “the Supreme Court has repeatedly held

that imposing an intent requirement on an otherwise vague

3 See also Mich. Comp. Laws Ann. § 333.2835 (“As used in this section

and section 2837 “physical complication” means a physical condition oc-

curring during or after an abortion that, under generally accepted standards

of medical practice, requires medical attention.”) (emphasis added); Minn.

Stat. Ann. § 145.4132 (“A physician licensed and practicing in the state who

knowingly encounters an illness or injury that, in the physician’s medical

judgment, is related to an induced abortion or the facility where the illness

or injury is encountered shall complete and submit an abortion complica-

tion reporting form to the commissioner”) (emphasis added); Miss. Code

Ann. § 41-41-77 (“A physician shall file a written report with the State De-

partment of Health regarding each patient who comes under the physi-

cian’s professional care and requires medical treatment or suffers death

that the attending physician has a reasonable basis to believe is a primary, sec-

ondary, or tertiary result of an induced abortion.”) (emphasis added);

Okla. Stat. Ann. tit. 63, § 1-738l(C) (“Any physician practicing in Oklahoma

who encounters an illness or injury that a reasonably knowledgeable physician

would judge is related to an induced abortion shall complete and submit,

electronically or by regular mail, a Complications of Induced Abortion Re-

port to the Department as soon as is practicable after the encounter with

the induced-abortion-related illness or injury.”) (emphasis added).

14 No. 20-2407

statute could save a law from a finding of impermissible

vagueness.” Whatley, 833 F.3d at 780 (on habeas review, law

prohibiting drug possession within 1,000 feet of a “youth pro-

gram center” was unconstitutionally vague) (collecting cases).

See also Gonzales, 550 U.S. at 149 (“The Court has made clear

that scienter requirements alleviate vagueness concerns.”);

City of Chi. v. Morales, 527 U.S. 41, 55 (1999) (“[I]t is clear that

the vagueness of this enactment makes a facial challenge ap-

propriate. … [The law at issue] is a criminal law that contains

no mens rea requirement[.]”); Colautti v. Franklin, 439 U.S. 379,

395 (1979) (the Supreme Court “has long recognized that the

constitutionality of a vague statutory standard is closely re-

lated to whether that standard incorporates a requirement of

mens rea.”); Duhe v. City of Little Rock, 902 F.3d 858, 864 (8th

Cir. 2018) (disorderly conduct statute not void for vagueness

because it contained a mens rea requirement); United States v.

Nieves-Castano, 480 F.3d 597, 603 (1st Cir. 2007) (“[The] scien-

ter requirement ameliorates any vagueness concerns.”).

The [Supreme] Court, indeed, has recognized that the

requirement of a specific intent to do a prohibited act

may avoid those consequences to the accused which

may otherwise render a vague or indefinite statute in-

valid. The constitutional vice in such a statute [without

a mens rea requirement] is the essential injustice to the

accused of placing him on trial for an offense, the na-

ture of which the statute does not define and hence of

which it gives no warning.

Screws v. United States, 325 U.S. 91, 101–02 (1945). Even among

similar reporting statutes, Indiana’s statute is atypical in its

No. 20-2407 15

exclusion of a mens rea requirement. See, e.g., Ariz. Rev. Stat.

Ann. § 36-2163 (criminalizing willful failure to comply). 4

Third, the Statute criminalizes malum prohibitum

(“wrong only because [it is] prohibited”) as opposed to ma-

lum in se (“inherently wrong”) conduct. See Papachristou, 405

U.S. at 163; Arias v. Lynch, 834 F.3d 823, 827 (7th Cir. 2016) (de-

fining malum prohibitum and malum in se). Though these

characteristics do not categorically make the Complications

Statute unconstitutionally vague, they do heighten the notice

concerns here given that an unwitting citizen may not be able

to anticipate the malum prohibitum law in order to abide by

it. See United States v. Wilson, 159 F.3d 280, 294 (7th Cir. 1998)

(Posner, J., dissenting) (“The law is malum prohibitum, not ma-

lum in se; that is, it is not the kind of law that a lay person

would intuit existed because the conduct it forbade was con-

trary to the moral code of his society.”); see also Conley v.

United States, 79 A.3d 270, 282 (D.C. 2013) (“[T]he requirement

of notice embodied in due process ‘places some limits’ on the

application of these tenets [that ignorance of the law is no de-

fense] when a law criminalizes ‘conduct that is wholly pas-

sive’ … [and] unlike the commission of acts, or the failure to

act under circumstances that should alert the doer to the con-

sequences of his deed”) (citing Lambert v. People of the State of

Cal., 355 U.S. 225 (1957)); United States v. Jahagirdar, 466 F.3d

4 See also Mich. Comp. Laws Ann. § 333.2894 (criminalizing willful or

knowing failure to comply); Miss. Code. Ann. § 41-41-79 (criminalizing

willful failure to comply); Mo. Ann. Stat. § 188.065 (criminalizing knowing

failure to comply; imposing civil penalties for willful failure to comply);

Okla. Stat. Ann. tit. 63, § 1-738n (criminalizing knowing or reckless failure

to comply); 18 Pa. Stat. and Cons. Stat. Ann. § 3214(i)(2) (criminalizing

“willfully providing a report that the doctor knows to be false”).

16 No. 20-2407

149, 154 (1st Cir. 2006) (distinguishing a statute criminalizing

unconsented-to sexual acts from “ill-defined malum prohibi-

tum violation[s]”).

In sum, Indiana’s Complications Statute provides few

guideposts to inform practitioners of the conduct that is ex-

pected from them, especially when compared with similar

statutes in other states. See Cook, 970 F.3d at 873 (acknowledg-

ing concern for whether a statute poses a “trap” for “the per-

son acting in good faith”). The vagueness problem here is not

that the Statute is missing one element or another. Rather, the

factors outlined above create some uncertainty in the aggre-

gate. Most critically, it is unclear what causal relationship is

required between the abortion and the complication, and doc-

tors are not provided with an objective standard by which to

make that decision. Cf. Gonzales, 550 U.S. at 150 (noting the

statute’s provision of “objective standards”); Whatley, 833

F.3d at 778 (“Supreme Court precedent … requires criminal

statutes to be based on discernable standards.”).

B. Limitations of a Facial Challenge

Despite the uncertainties that exist in the Complications

Statute, we are mindful of the context of this litigation. This is

a facial, pre-enforcement challenge to a state statute that De-

fendants acknowledge a state agency will interpret and apply.

But at this time, the state agency has yet to issue guidance on

the application and enforcement of the law and no state court

has attempted to interpret it. See Vill. of Hoffman Estates, 455

U.S. at 499, n.5; Tr. of Ind. Univ. v. Curry, 918 F.3d 537, 541 (7th

Cir. 2019).

Outside of the First Amendment context, such facial chal-

lenges are disfavored.

No. 20-2407 17

The general practice, outside of the First Amendment

context, has been to consider the purported vagueness

of a statute in light of the facts of the particular case—

i.e., as applied—rather than in the abstract. This means,

of course, that a litigant challenging the statute ordi-

narily must show that it is vague as applied to him; and

if the statute undoubtedly applies to his conduct, he

will not be heard to argue that the statute is vague as

to one or more hypothetical scenarios.

Nonetheless, the Supreme Court has on a number of

occasions entertained facial challenges to criminal stat-

utes that do not implicate First Amendment concerns.

… [T]he common thread uniting these cases with facial

challenges in the First Amendment context appears to

be a concern (or at least a colorable contention) that the

challenged statute simply has no core and lacks any as-

certainable standard for inclusion and exclusion. Such

a standardless statute poses a trap for the person acting

in good faith, who is given no guidepost by which he

can divine what sort of conduct is prohibited. The con-

cern is heightened when the statute contains no mens

rea requirement, and the uncertainty as to exactly what

is proscribed threatens to inhibit the exercise of consti-

tutionally protected rights.

Cook, 970 F.3d at 873 (internal citations and quotations omit-

ted). See also Vill. of Hoffman Estates, 455 U.S. at 495, n.7; Sec. of

State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 965–66

(1984) (“Here there is no core of easily identifiable and consti-

tutionally proscribable conduct that the statute prohibits.”);

Tr. of Ind. Univ., 918 F.3d at 541 (“[A] core of meaning is

18 No. 20-2407

enough to reject a vagueness challenge, leaving to future ad-

judication the inevitable questions at the statutory margin.”).

Facial challenges that do not involve the First Amendment

are “limited.” Fuller ex rel. Fuller v. Decatur Pub. Sch. Br. of

Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001). “The Su-

preme Court has repeatedly stated that facial invalidation of

legislation is disfavored.” United States v. Bonin, 932 F.3d 523,

534 (7th Cir. 2019), cert. denied, 140 S. Ct. 960 (2020). So, “courts

have looked with disfavor on facial vagueness challenges to

statutes that do not implicate fundamental rights.” Farrell v.

Burke, 449 F.3d 470, 495 (2d Cir. 2006) (Sotomayor, J.); see also

id. at 496 (noting the “general rule” that facial vagueness chal-

lenges outside of the First Amendment context are disfa-

vored); United States v. Requena, 980 F.3d 30, 40 (2d Cir. 2020).

Indeed, principles of federalism require us to tread especially

carefully when reviewing a state law where the state courts

have not had an opportunity to “give the law a construction

that will produce adequate clarity.” Tr. of Ind. Univ., 918 F.3d

at 542. As we said there, “we are not aware of any other deci-

sion by the Supreme Court that has used vagueness doctrine

to prevent the state judiciary from having even a chance to

give the law a construction that will produce adequate clar-

ity.” Id.

Here, we cannot conclude that the Complications Statute

has no discernable core. See Cook, 970 F.3d at 873. Although

Planned Parenthood contests the frequency and seriousness

of abortion-related complications, Planned Parenthood’s re-

sponse brief acknowledges that “[t]here are potential compli-

cations from the performance of medication and surgical

abortion.” Planned Parenthood maintains that several of the

complications listed in the Complications Statute are “not

No. 20-2407 19

abortion-specific complications and almost never occur as a

result of abortions,” but the brief stops short of stating that

these complications are impossible.

The complications that a reasonable doctor would find to

have arisen from an abortion constitute a core of the Compli-

cations Statute. See Cook, 970 F.3d at 873; see also Tr. of Ind.

Univ., 918 F.3d at 541 (“[A] core of meaning is enough to reject

a vagueness challenge”). 5 Although these complications may

be rare, an individual of ordinary intelligence would under-

stand that there may be complications that arise from an abor-

tion (as is the case with any medical procedure). And when

one such rare complication occurs, the physician must report

it if she believes in her reasoned medical judgment that the

complication arose from an abortion. This “core” of the Com-

plications Statute satisfies the void-for-vagueness test: It is un-

derstandable by persons of ordinary intelligence and not sub-

ject to arbitrary enforcement. 6

As a result, although we appreciate the dissent’s concerns

about the ambiguity of this Statute, the Statute must survive

Planned Parenthood’s pre-enforcement, facial attack. Our

precedents, especially Trustees of Indiana University, preclude

any other result in this case. See 918 F.3d at 541. While the dis-

sent focuses on the ambiguity in the Statute, it ignores the pro-

cedural posture of this case as a pre-enforcement, facial chal-

lenge and the case law governing such facial challenges

5 And again, we have already held that a reasonable medical judgment

standard itself does not render a law void for vagueness. See Karlin, 188

F.3d at 459–60.

6 Atleast, we have no evidence of arbitrary enforcement of the Statute

before us at this stage.

20 No. 20-2407

outside of the First Amendment arena. See, e.g., id. Though an

as-applied vagueness challenge to the Statute may have a dif-

ferent outcome, this challenge to the Statute fails because it is

a facial challenge to a statute with a discernable core.

In finding that the Complications Statute has a core com-

posed of those complications that the treating physician rea-

sonably believes to have arisen from an abortion, we are not

imposing our own construction of the statute upon Indiana,

which we cannot do. “As federal judges ‘we are without

power to adopt a narrowing construction of a state statute un-

less such a construction is reasonable and readily apparent.’”

Wisc. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th Cir.

2014) (quoting Stenberg v. Carhart, 530 U.S. 914, 944 (2000)).

We are cognizant of the Supreme Court’s admonition that

its “holdings squarely contradict the theory that a vague pro-

vision is constitutional merely because there is some conduct

that clearly falls within the provision’s grasp.” Johnson, 576

U.S. at 602 (emphasis in original); see also City of Houston, Tex.

v. Hill, 482 U.S. 451, 458 (1987). We do not hold that the Com-

plications Statute is constitutional merely because there may

be some complications that clearly arise from an abortion. In-

stead, we only hold that these clear-cut cases constitute a core

of the Complications Statute that renders the Statute immune

from this pre-enforcement facial challenge. Notably, Johnson’s

proposition that a statute is not necessarily constitutional be-

cause there are some obvious cases that fall within the stat-

ute’s purview relied on L. Cohen Grocery and Coates, both of

which were as-applied challenges by parties against whom

the statute in question had already been enforced. See id. (cit-

ing L. Cohen Grocery, 255 U.S. at 89 (defendant charged with

willfully setting an unreasonably high price for sugar); Coates,

No. 20-2407 21

402 U.S. at 611 (defendants charged with and convicted of vi-

olating ordinance prohibiting three or more persons assem-

bling on a sidewalk and “conduct[ing] themselves in a man-

ner annoying to persons passing by”). In contrast, Planned

Parenthood has brought a pre-enforcement, facial challenge

here. And to survive this facial challenge, Defendants must

only demonstrate that the Statute has a discernable core. See

Cook, 970 F.3d at 874. We hold that the Statute does have such

a core. The enforcement of this Statute will inevitably present

many uncertainties at the margins, but the resolution of those

“edge questions” arising from the enforcement of a state law

is a “principal role of the [state’s] courts.” Tr. of Ind. Univ., 918

F.3d at 541.

In addition to finding that the Statute has a discernable

core, we are also mindful of the second portion of the void-

for-vagueness test, which analyzes the potential for arbitrary

enforcement of the challenged statute. Johnson, 576 U.S. at 595.

This law has yet to be enforced—it “is a preenforcement chal-

lenge, where ‘no evidence has been, or could be, introduced

to indicate whether the [Act] has been enforced in a discrimi-

natory manner[.]’” Gonzales, 550 U.S. at 150 (citing Vill. of Hoff-

man Estates, 455 U.S. at 503). Here, unlike in Johnson, “there is

no judicial history of courts struggling to appreciate what par-

ticular conduct” Indiana’s legislature intended to reach or of

courts struggling “to apply the statutory terms to varying sets

of facts.” Cook, 970 F.3d at 877.

“We do not suggest that the risk of discriminatory enforce-

ment is insignificant here.” Vill. of Hoffman Estates, 455 U.S. at

503. It is certainly possible that Indiana may enforce this law

in an arbitrary manner that offends due process, particularly

in a highly controversial area like the regulation of abortion.

22 No. 20-2407

Again, a future, as-applied challenge may be successful. But,

“we are not prepared to hold that this risk jeopardizes the en-

tire” statute in a pre-enforcement, facial challenge. Id.; see also

Tr. of Ind. Univ., 918 F.3d at 541. We will not “assume that [In-

diana] will take no further steps to minimize the dangers of

arbitrary enforcement.” Vill. of Hoffman Estates, 455 U.S. at 504.

Indeed, the Indiana defendants have already represented to

this Court that the Statute will be interpreted in several ways

to limit its scope and decrease any ambiguity in its applica-

tion. Indiana’s opening brief tells us for instance, that to qual-

ify as a reportable complication, an abortion must be the but-

for cause of the complication. Moreover, the Defendants ar-

gue that the “arising from” standard is “necessarily based on

the physician’s medical judgment,” which “takes into account

the background and training of the reporter for purposes of

understanding what must be reported.” Though these repre-

sentations are not binding, 7 we think it prudent to refrain

from “blot[ting] the law from the books” before Indiana has

an opportunity to issue administrative guidance and enforce

the law in a manner consistent with the Constitution. Tr. of

Ind. Univ., 918 F.3d at 541. Still, the Indiana State Department

of Health would be well-advised to formally interpret the law

to include a reasonable medical judgment standard, con-

sistent with its representations to this Court. In addition, the

Department might consider other limitations in its enforce-

ment of the law, such as limiting the reporting requirement to

complications that arise within one year of a patient undergo-

ing an abortion, which would help to avoid penalizing

7Tr. of Ind. Univ., 918 F.3d at 540 (“Prosecutors can’t offer definitive

interpretations of criminal laws[.]”).

No. 20-2407 23

doctors attempting to comply with the law in good faith. Cf.

Cook, 970 F.3d at 873.

Finally, we pause briefly to note that this case as currently

briefed does not directly implicate or “inhibit the exercise of

constitutionally protected rights[,]” which would heighten

our concern about the vagueness of the statute. Id. (quoting

Colautti, 439 U.S. at 391) (vagueness concerns are “heightened

when the statute contains no mens rea requirement and the

uncertainty as to exactly what is proscribed threatens to in-

hibit the exercise of constitutionally protected rights.”) (inter-

nal quotations omitted); see also Hill, 482 U.S. at 458–59. Our

analysis is strictly limited to the facts as currently pled in

Planned Parenthood’s complaint, which do not suggest that

the Statute interferes with or chills a protected constitutional

right.

C. Planned Parenthood’s Remaining Arguments

Planned Parenthood argues in the alternative that even if

the entire Statute is not unconstitutionally vague, two of the

enumerated complications, Items 23 and 25, 8 are overly

vague. Though we agree that these particular complications

(such as, general “anxiety”) are especially imprecise, any am-

biguity in these two provisions does not change our overall

8 As provided for by Ind. Code § 16-34-2-4.7(a):

Item 23: Psychological complications, including depression, sui-

cidal ideation, anxiety, and sleeping disorders. ….

Item 25: Any other adverse event as defined by criteria in the Food

and Drug Administration Safety Information and Adverse Event

Reporting Program.

24 No. 20-2407

conclusion that the Statute must survive this pre-enforce-

ment, facial challenge for the reasons outlined above.

Planned Parenthood also argued in the district court that

the Complications Statute is both irrational and violates due

process. The district court, however, did not take up those ar-

guments after finding that the Statute was unconstitutionally

vague. We take no position on these arguments and remand

for the district court to consider these arguments in the first

instance, to the extent the parties still seek a judicial decision

on them. See Anderson v. City of Rockford, 932 F.3d 494, 512 (7th

Cir. 2019); FMS, Inc. v. Volvo Const. Equip. N. Am., Inc., 557 F.3d

758, 763 (7th Cir. 2009) (“When the parties brief an issue that

has not been addressed by the district court, it is not unusual

for this court to remand so that the district court may consider

the issue in the first instance.”).

III. Conclusion

Because we conclude that the Complications Statute does

have a discernable core for the purposes of this pre-enforce-

ment, facial challenge, we REVERSE the district court’s entry

of summary judgment in favor of Planned Parenthood on its

vagueness challenge and VACATE the district court’s perma-

nent injunction on that basis. The case is REMANDED to the

district court for further proceedings not inconsistent with

this opinion.

No. 20-2407 25

WOOD, Circuit Judge, dissenting. It has become an article of

faith that federal judges, when construing statutes, must ad-

here scrupulously to the words chosen by the enacting legis-

lature. If the legislature has written a foolish law, so be it—the

process for changing that law is to return to the legislature for

corrective action, while in the meantime the foolish law

stands. But if the legislature has written an incomprehensible

law, the remedy is not for the judiciary to take a red pencil to

it and, under the guise of statutory construction, create some-

thing that people of ordinary intelligence can follow. In the

latter case, the court cannot let the incomprehensible law

stand. The only choice is to strike it down as void for vague-

ness. United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (“When

[the legislature] passes a vague law, the role of courts under

our Constitution is not to fashion a new, clearer law to take its

place, but to treat the law as a nullity and invite [them] to try

again.”).

In the present case, we have before us the 2019 version of

an Indiana law that imposes a reporting requirement on phy-

sicians, hospitals, and abortion clinics (collectively, Report-

ers), with respect to any “complication” “arising from the in-

duction or performance of an abortion.” Ind. Code § 16-34-2-

4.7(a). If a Reporter fails to file a report, he or she has commit-

ted a Class B misdemeanor, id. § 16-34-2-4.7(j), and faces up to

six months in prison and $1,000 in fines, id. § 35-50-3-3. Pro-

fessional consequences are likely to ensue after such a crimi-

nal conviction, including loss of license. The district court, af-

ter a careful look at the law and the record, found that this

statute is unconstitutionally vague and issued a permanent

injunction against it.

26 No. 20-2407

My colleagues have voted to overturn that injunction, on

the theory that they can find an essential “core” meaning to

the law. But, without admitting this in so many words, their

rationale amounts to a concession that no such permissible

core meaning can be discerned without adding critical new

terms to the law. It is hard to believe that this is an approach

that courts would, or should, generalize. And indeed, I sus-

pect that there is no appetite to do so. To my knowledge, there

is no rule saying that courts should bend over backwards

when faced with an abortion law, but not when the law in

question relates to gun ownership or use, violence against

women, or immigrants’ rights. I therefore dissent.

The majority and I do share some common ground. We all

recognize that the Supreme Court has held that “overly vague

laws are unconstitutional under the due process clause[s] of

the Fifth and Fourteenth Amendments.” Ante at 7, citing Con-

nally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). Or as the Court

put it more pithily two years ago, “a vague law is no law at

all.” Davis, 139 S. Ct. at 2323. Justice Scalia identified the key

point in an opinion dealing with a statute that criminalizes the

pandering or solicitation of child pornography. United States

v. Williams, 553 U.S. 285 (2008). After finding that the statute

in question, 18 U.S.C. § 2252A(3)(B), was not subject to facial

invalidation on overbreadth grounds, the Court turned to

vagueness doctrine. It then explained what “vagueness”

means for purposes of due process:

What renders a statute vague is not the possibility

that it will sometimes be difficult to determine whether

the incriminating fact it establishes has been proved;

but rather the indeterminacy of precisely what that fact

is. Thus, we have struck down statutes that tied

No. 20-2407 27

criminal culpability to whether the defendant's con-

duct was “annoying” or “indecent”—wholly subjec-

tive judgments without statutory definitions, narrow-

ing context, or settled legal meanings.

553 U.S. at 306. People cannot be required to play a game of

“Twenty Questions” to figure out what exactly they have

done (or perhaps someone else has done) that might, or might

not, violate a particular law. And courts are not permitted to

rewrite statutes to provide that clarity, as I already have

noted.

The majority concedes that the Indiana statute before us

does not tell the Reporter “the extent to which a complication

must be caused by the abortion itself.” This is a serious flaw,

and it permeates the statute, thus making this case appropri-

ate for a facial challenge. Not a single condition on the state’s

list is unique to abortions, and so a medical-care provider will

have no idea whether or not he or she has a reporting obliga-

tion. And I am not exaggerating when I say “not a single con-

dition.” First and foremost, the fact that a pregnancy has

ended in no way suggests that it ended by abortion of any

kind. It is well known that many pregnancies end in natural

miscarriage—the Mayo Clinic, for instance, has this to say:

Miscarriage is the spontaneous loss of a pregnancy

before the 20th week. About 10 to 20 percent of known

pregnancies end in miscarriage. But the actual number

is likely higher because many miscarriages occur so

early in pregnancy that a woman doesn’t realize she’s

pregnant.

See Mayo Clinic, Miscarriage, https://www.mayo-

clinic.org/diseases-conditions/pregnancy-loss-

28 No. 20-2407

miscarriage/symptoms-causes/syc-20354298. That is an

equally compelling, alternative explanation for at least condi-

tions (2), (3), (4), (7), (8), (9), (10), and (15). Uterine perforation

(item 1) can also be caused by a badly placed intra-uterine de-

vice (IUD). Infection (item 3) can be caused by countless

sources. What if a woman goes to her doctor for a routine gy-

necological examination a year after she has had a medical

abortion, and the doctor detects an infection? Must it be re-

ported? Does the doctor face imprisonment and loss of license

if she sees no link between the infection and the earlier proce-

dure? The doctor makes this call at her personal peril.

Heavy vaginal bleeding (item 4) is equally ambiguous.

This is a condition more formally called menorrhagia, which

can be caused by anything from hormone imbalances, dys-

function of the ovaries, uterine fibroids, polyps, adenomyosis,

IUDs, pregnancy complications such as impending miscar-

riage or placenta previa, cancer, inherited bleeding disorders,

medications, to liver or kidney disease. See Mayo Clinic, Men-

orrhagia (heavy menstrual bleeding), at https://www.mayo-

clinic.org/diseases-conditions/menorrhagia/symptoms-

causes/syc-20352829). Similarly, a pulmonary embolism (item

5), which is caused by a blocked artery in the lungs, can stem

from countless sources. What doctor will jump to the conclu-

sion that the cause was an abortion? Risk factors for pulmo-

nary emboli include heart disease, several different cancers,

surgery, prolonged immobility, COVID-19, smoking, obesity,

in addition to pregnancy and birth-control pills. See Mayo

Clinic, Pulmonary embolism, at https://www.mayo-

clinic.org/diseases-conditions/pulmonary-embolism/symp-

toms-causes/syc-20354647. Deep vein thrombosis (item 6) is

essentially the same—that simply describes one of the places

where a blood clot might originate. Id.

No. 20-2407 29

It is common knowledge that cardiac arrest (item 11), res-

piratory arrest (item 12), renal failure (item 13), shock (item

14), coma (item 16), and hemolytic reaction resulting from the

administration of incompatible blood products (item 20) can

stem from countless causes. No doctor seeing a woman who

presented with one of these problems would have the slight-

est reason to suspect that an abortion was involved—and cer-

tainly not an abortion that occurred months or years earlier.

These conditions are so general as to be entirely uninforma-

tive. The same is true of an allergic reaction to anesthesia (item

22). Allergic reactions to abortion-inducing drugs (item 22)

may seem like a closer call, but even there, no abortion may

have been undertaken. Typically, medical abortions are ac-

complished with a two-drug protocol: mifepristone to lower

progesterone levels, and misoprostol to control bleeding. But

once again, there are independent medical reasons why some-

one might need medication to lower her progesterone, and so

knowledge that this drug was used is inconclusive. High lev-

els of progesterone might indicate ovarian cysts, an adrenal

disorder, or ovarian cancer. See Verywell Health, Symptoms

of High Progesterone, at

https://www.verywellhealth.com/high-progesterone-symp-

toms-5185751. Misoprostol, though used for abortions, is

more commonly used to prevent stomach ulcers while taking

non-steroidal anti-inflammatory drugs (NSAIDs). See

WebMD, Misoprostol, at

https://www.webmd.com/drugs/2/drug-6111/misoprostol-

oral/details. So an allergic reaction to either of these drugs

might or might not have anything to do with an abortion.

That leaves hypoglycemia—low blood sugar—while at

the abortion facility (item 21), an utterly undefined set of psy-

chological complications (item 23), death (item 24), and

30 No. 20-2407

“anything else defined by FDA criteria (item 25). These too

provide little to no focus for the hapless medical-care pro-

vider. Low blood sugar is common, even in healthy people.

Why is there a link to abortion, or even a medical procedure?

The statute does not say. As for psychological consequences,

no one has the slightest idea of which ones, or at what level of

severity, the legislature had in mind, much less when they

must arise, or what connection to the abortion they might

have. Must everyone with sleep apnea, a serious sleeping dis-

order, be reported routinely, for instance? How about restless

leg syndrome?

And finally, there is death. How soon must death occur

after an abortion for it to be considered a complication of

abortion? Statistics indicate that abortion-related mortality in

the United States is extremely low. See Suzanne Zane et al.,

Abortion-Related Mortality in the United States 1998–2010, at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4554338/

(reporting that during the period from 1998 to 2010, there

were approximately 16.1 million abortion procedures, and

108 women died, for an exceedingly low mortality rate of 0.7

deaths per 100,000 procedures). But the State of Indiana has

chosen to give no guidance on this factor, either.

The statute is also fatally silent on several other critical

points: (1) is the causation standard for “arising under” liabil-

ity but-for, contributing factor, or just a presumption that if B

follows A, then A must have had something to do with B (the

much maligned post hoc ergo propter hoc fallacy); (2) is there

any period of time after which a Reporter is entitled conclu-

sively to presume that all consequences of the earlier abortion

have been resolved; and (3) does liability depend on the Re-

porter’s subjective assessment of the link between the

No. 20-2407 31

abortion and a listed consequence, or does it depend on the

assessment that an objective expert in the field would make?

In addition, the statute makes breathtakingly broad as-

sumptions about the amount of information that will be avail-

able to Reporters, and in so doing, it has a sweeping extrater-

ritorial effect. Nothing limits the reporting duty to infor-

mation the Reporter obtained through the course of her or its

own treatment of the patient; nothing assures that the patient

either has told the Reporter about past details of her medical

history or about precise diagnoses and follow-up treatment;

and nothing limits the reporting duty to encounters within

the state of Indiana. If a woman had an abortion in a state or

country where abortions are legal, and then five years later

she sees a gynecologist who finds polyps, must that doctor

still report to Indiana pursuant to subpart (a)(4)? Who knows?

The only thing that is clear is that the doctor must make that

call while putting her reputation, license, and liberty on the

line.

The Indiana law has numerous other deficiencies that the

majority has recognized. It uses a system of criminal penalties

rather than civil measures; it contains no mens rea or scienter

requirement; and there is nothing inherently evil about the

conditions it identifies (and thus it is imposing these harsh

penalties on acts that are mala prohibita, not mala in se).

When we consider whether the plaintiff, Planned

Parenthood, has proven that this law is vague on its face,1 we

1 I do not know why the majority thinks that I do not appreciate the

facial nature of this challenge. My point is that there is no agreed core of

meaning that can save this particular law, making it one of the small group

of statutes that lack facial validity. Just as the Supreme Court held in Sam-

uel Johnson v. United States, 576 U.S. 591 (2015), the due process clauses

32 No. 20-2407

must remember Justice Scalia’s definition: are we worried

about how definitively a particular fact has been proven, or is

our hapless Reporter unable to figure out what fact to prove

in the first instance. I do not understand my colleagues to be

taking the position that if a Reporter wanted to play it safe,

the Reporter could simply inundate the Indiana Health De-

partment with reports about every single medical visit every

woman in the state makes while she is between the ages of 12

and 50, just in case there was an undisclosed abortion or, if the

abortion is known, there is even a remotely possible link be-

tween that abortion and an item on the state’s list. But per-

haps, given my colleagues’ view of the statute, that is what

Reporters should do, knowing that they will not risk omitting

some information.

My colleagues take refuge in their conclusion that there is

some discernable core to the Indiana statute before us, which

they dub the Complications Statute. But they cannot do this

without rewriting the statute. They first limit the statute to

“[t]he complications that a reasonable doctor would find to

have arisen from an abortion … .” Ante at 19. That sounds like

an objective standard. But literally two sentences later (three

if you count a citation), they seem to adopt a subjective stand-

ard, when they look to a complication “which the treating

forbid government from taking life, liberty, or property “under a criminal

law so vague that it fails to give ordinary people fair notice of the conduct

it punishes, or so standardless that it invites arbitrary enforcement.” Id. at

595, citing Kolender v. Lawson, 461 U.S. 352, 357–58 (1983). Even if one

thought that the Indiana law gives fair notice of the breathtakingly broad

set of triggering events, there can be no doubt that it is so standardless that

it fails under the arbitrary enforcement branch of vagueness doctrine. The

majority avoids this outcome only by its extensive tinkering with the text

of the law.

No. 20-2407 33

physician believes in her reasoned medical judgment to have

arisen from an abortion.” Id. (emphasis added). I grant that

Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999), held that a “rea-

sonable medical judgment” standard does not render a law

void for vagueness. But the law in Karlin specified exactly that

standard: it covered “a condition, in a physician’s reasonable

medical judgment,” that amounts to a medical emergency. If

the Indiana law said anything like that, whether using the

same words or their equivalent, we would have a different

case. But it does not.

Immediately after this passage, which as I said leaves am-

biguous whether the majority is adopting an objective or a

subjective standard, the opinion pivots back to something that

looks more objective: it asserts that “the Complications Stat-

ute has a core composed of those complications that the treat-

ing physician reasonably believes to have arisen from an abor-

tion.” Ante at 19. It says this despite acknowledging that a stat-

ute is not constitutional “merely because there may be some

complications that clearly arise from an abortion.” Ante at 20.

Johnson v. United States, 576 U.S. 591 (2015), confirms this,

when it says that “a statute is not necessarily constitutional

because there are some obvious cases that fall within the stat-

ute’s purview.” Ante at 20. The problem is the guessing game:

Reporters will never know what triggers their duty to report,

so they will miss some of the wheat and over-report some of

the chaff, all at the risk of criminal liability, and all without

even a negligence standard protecting them, much less a

higher level of scienter.

To summarize, Indiana’s statute covers nothing but what

my colleagues call “edge questions.” Although I do not doubt

that it would be possible to write a reporting statute of this

34 No. 20-2407

type that would avoid unconstitutional vagueness, Indiana

has not done so yet. It is not clear to me whether the Indiana

Department of Health can limit the law as drastically as my

colleagues advise, ante at 22—a federal agency would be obli-

gated to keep its administrative rules within the scope of the

authorizing statute, but maybe Indiana does not follow that

principle—but for now there is no reasonable medical judg-

ment standard, no temporal limitation, no scienter require-

ment, and no but-for causal standard. The district judge cor-

rectly found that this left an empty core that cannot be en-

forced consistently with the due process clause of the Four-

teenth Amendment. I would affirm its judgment, and so I re-

spectfully dissent.