Seventh Circuit Ban On Parental Notice For Underage Abortions Tees Up Supreme Court Review

Seventh Circuit Ban On Parental Notice For Underage Abortions Tees Up Supreme Court Review

The Seventh Circuit’s decision in Planned Parenthood v. Box II is wrong, but also providential because it provides a perfect vehicle for the Supreme Court to revisit its abortion jurisprudence.
Margot Cleveland
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On Friday in a split 2-1 decision, a federal appellate court declared unconstitutional Indiana’s parental notification law for minors seeking abortions. The Seventh Circuit’s majority decision in Planned Parenthood v. Box II is wrong, but also providential because it provides a perfect vehicle for the Supreme Court to revisit its abortion jurisprudence.

At issue in Box II—named after Kristina Box, the commissioner of Indiana’s Department of Health—was a 2017 amendment to Indiana’s judicial-bypass process for minors seeking abortions without parental consent. The judicial-bypass process in the Hoosier state allows a minor to obtain an abortion if a state judge concludes either that the minor is sufficiently mature to make her own decision or that an abortion is in the minor’s “best interests.”

Prior to the amendment, if a state court judge approved an abortion for a minor, her parents were not notified of that decision. Under the 2017 amendment, notification must be given to the minor’s parents of the court-approved abortion unless the court finds such notice is not in the minor’s best interests. In other words, if the court authorizes an abortion based on a minor’s apparent maturity, her parents receive notice of the court’s decision and of the intended abortion.

Last week, the Seventh Circuit declared the parental notification requirements of the 2017 amendment unconstitutional. That decision represents the second time a panel of the Chicago-based appellate court struck Indiana’s parental notification law.

Judge David Hamilton, a Barack Obama appointee, authored the first opinion in 2019, with Judge Ilana Rovner, a George H.W. Bush appointee who votes consistently with the leftist wing of the federal court, joining in the majority opinion. Ronald Reagan appointee Judge Michael Kanne dissented from the original decision and voted for the case to be reheard by the full 11-judge appellate court. However, in a 6-5 vote, the Seventh Circuit refused to rehear the case en banc, leaving Indiana to seek review before the U.S. Supreme Court.

Last year, the U.S. Supreme Court granted Indiana’s petition for a writ of certiorari, a preliminary step for the court to consider the case, and vacated the opinion in Box I. Then the Supreme Court remanded the case to the Seventh Circuit for further consideration in light of the high court’s decision in June Medical Serv. LLC v. Russo. In Russo, the Supreme Court struck a Louisiana law that required doctors performing abortions to maintain admitting privileges at nearby hospitals.

The Russo decision, however, was fractured, with no majority opinion. Instead, Justice Stephen Breyer penned the plurality opinion joined by Justices Sonia Sotomayor and Elena Kagan and the now-late Justice Ruth Bader Ginsburg, with Justice John Roberts concurring in the judgment. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all filed separate dissents.

On remand from the Supreme Court, in Friday’s opinion in Box II, Judge Hamilton, joined again by Judge Rovner, analyzed the Russo decision in depth and concluded that nothing had changed. Of significance: the Box II opinion concluded that in assessing the constitutionality of the parental-notification provisions, “courts consider the burdens a law imposes on abortion access together with the benefits those laws confer,” and then “must balance these interests.” Applying that balancing test, the majority in Box II concluded that the parental-notification provisions created an undue burden on minors, in light of the absence of benefits flowing from the law.

In a stellar dissent, Judge Kanne exposed two fundamental flaws to the court’s decision. First, the majority in Box II failed to faithfully consider the June Medical decision. Because that case failed to garner a majority opinion, lower courts must apply “the narrowest common ground supporting the judgment.” In other words, the Seventh Circuit (and other courts) must determine the narrowest common ground between the four-justice plurality and Justice Roberts’ concurrence in June Medical.

As Judge Kanne explained, the narrowest common ground in June Medical between the plurality and concurrence concerned the conclusion that the regulation of abortion providers in that case constituted “a substantial obstacle” to a woman (or here a girl) obtaining an abortion. Thus, the court in Box II should have asked whether parental notification constituted a “substantial obstacle” to a minor obtaining an abortion, and the majority erred in undertaking a balancing test, which weighed the supposed burdens on the minor against the benefits of Indiana’s law.

Second, Kanne explained that the majority erred in holding that the parental notification requirement constituted a substantial obstacle to a minor obtaining an abortion. As Judge Kanne noted: “The other reasons for my prior dissent remain unchanged. The Supreme Court has confirmed that parental-notification requirements are constitutional time and again. And Planned Parenthood has failed to show that requiring mature minors to notify their parents that they intend to have an abortion (where a judge has found that avoiding notification is not in their best interests) constitutes an undue burden under Casey.”

Indiana will inevitably seek review of the Box II decision from the Supreme Court. Given the fractured opinion in June Medical, and the split that now exists in the circuit courts on how to interpret that decision—another point Kanne stressed—certiorari seems assured.

When the case returns to the Supreme Court a second time, the stalemate of June Medical will be irrelevant because there is now a new justice in town. So, the question will no longer be how to interpret that opinion, but what standard to apply when judging the constitutionality of abortion regulations.

The answer from a Justice Amy Coney Barrett may differ greatly from that Ginsburg gave—and if so, prolife Americans can thank Judge Hamilton for his intransigence.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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