Judge hears arguments in suit challenging new Indiana abortion law

Planned Parenthood of Indiana and Kentucky argued before a federal judge Tuesday that portions of the state’s new parental notice requirements are unconstitutional and place an undue burden on minors seeking abortions.

Senior Judge Sarah Evans Barker of the U.S. District Court for the Southern District of Indiana heard arguments in the case of Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, et al., 1:17-cv-1636, with ACLU of Indiana Legal Director Ken Falk bringing a suit against Indiana Senate Enrolled Act 404 on behalf of PPINK. The legislation, set to take effect July 1, has three main provisions that Planned Parenthood seeks a preliminary injunction against, Falk said.

The first provision is a revision to current Indiana law which allows unemancipated pregnant minors to seek a judicial bypass of the parental consent requirement to an abortion. Current law allows a juvenile court to waive the consent requirement if the court finds the minor is mature enough to make an abortion-related decision on her own, or if it is in the minor’s best interests that the abortion be allowed.

Under the version of Indiana Code 16-34-2-4 set to take effect next month, parental consent can still be waived, but parents must be informed of the pregnant minor’s intent to obtain an abortion “unless the juvenile court finds that it is in the best interests of an unemancipated pregnant minor to obtain an abortion without parental notification following a hearing on a petition… .”

That notification requirement could be a deterrent against getting the abortion, Falk said, as some unemancipated minors could fear facing negative consequences if their parents find out about the planned procedure.

Along similar lines, PPINK challenges a portion of SEA 404 that would require physicians performing abortions on unemancipated minors to obtain not only written consent from a parent, but also a government-issued ID of the parent and “some evidence” that the adult is, in fact, the parent or legal guardian of the minor. Further, the law would mandate that physicians execute an affidavit certifying that to the best of their “information and belief, a reasonable person … would rely on the information … as sufficient evidence of identity and relationship.”

Falk said the requirements in that statute are vague, and Barker also had questions about that language, asking him what the definition of a “reasonable” person might be.

“The state can’t explain it, and that’s the epitome of vagueness,” Falk said.

PPINK is also challenging a portion of the law that prohibits a person from aiding or assisting an unemancipated pregnant minor from obtaining an abortion without the required consent. This provision would prohibit PPINK physicians from informing clients of abortion laws in other states, where consent requirements, trimester limits and other similar policies may be more lenient than in Indiana, Falk said. Such a prohibition is a First Amendment violation, he said.

However, Indiana Solicitor General Thomas M. Fisher urged the court to deny the motion for a preliminary injunction, telling Barker that because PPINK is raising a pre-enforcement challenge, there is no evidence yet of the possible affect the new parental notification law might have.

But Barker had several questions about the state’s position, asking Fisher if the notice requirement would constitute a substantial obstacle to a pregnant minor seeking an abortion. Fisher said no and further said the provisions of the new law were within the state’s authority because it advances a government interest, specifically the interest of enabling parents to guide their children through such important decisions and to comfort their children after those decisions have been made.

Similarly, when Barker asked if a disruption in family life because of a planned abortion would be in the “best interest” of the minor, Fisher noted that a disagreement between parents and children does not become an impediment unless the parents actively try to prevent the abortion from taking place. Although parental notice of a planned abortion may be required, notice does not allow parental veto if waiver of consent requirement has been granted by a judge, he said.

Barker further raised concerns about the lack of sufficient guidance to comply with the parental identification requirements, especially considering criminal penalties against physicians are attached to violations of those requirements. Fisher said he understood Planned Parenthood’s vagueness concerns.

With the law set to take effect July 1, Barker told counsel for the state and PPINK that she was cognizant of the tight deadline she was working under and planned to issue a ruling soon.