Divided 7th Circuit reverses for Indiana over ‘abortion complications’ reporting statute

Editor’s note: This story has been updated.

An Indiana statute requiring medical providers to report to the state complications “arising from” abortions is not unconstitutionally vague on its face, a split 7^th Circuit Court of Appeals ruled in a Monday reversal. A dissenting judge, however, would uphold the injunction against the “incomprehensible” law.

Indiana prevailed in the ruling against Planned Parenthood of Indiana and Kentucky. Former Indiana Attorney General Curtis Hill took the case to the 7^th Circuit in September 2020. 

The suit — Planned Parenthood of Indiana Kentucky, Inc. v. Marion County Prosecutor, et al., 20-2407 — deals with 2018’s Senate Enrolled Act 340, which required abortion providers to report “complications” to the Indiana Department of Health, which would then file an aggregate report with the Centers for Disease Control and Prevention.

Abortion complications were defined in the law as “any adverse physical or psychological condition arising from the induction or performance of an abortion.”

In 2018, Judge Richard Young of the U.S. District Court for the Southern District of Indiana issued an injunction against that portion of SEA 340. He later granted summary judgment to Planned Parenthood on a vagueness challenge, holding that the phrase “arising from” was unconstitutionally vague.

But the 7^th Circuit reversed the district court’s summary judgment ruling and vacated its permanent injunction on that basis, finding that while the statute does have some ambiguity, Planned Parenthood did not show that the law was unconstitutionally vague on its face. The case was remanded to the district court for further proceedings.

Circuit Judge Diane Wood dissented from the majority, consisting of Circuit Judges Frank Easterbrook and Amy St. Eve.

The 7^th Circuit majority found Indiana’s broad abortion-complications reporting requirement is “unusual” among peer statutes, noting that not all reporting statutes impose criminal penalties on violators. It also found Indiana’s statute to be “atypical” in its exclusion of a mens rea or scienter requirement.

Additionally, the majority noted that many of the other abortion-complications reporting statutes cited by the state use more specific language to guide doctors about the causal relationship required between the abortion and any complications.

“In sum, Indiana’s Complications Statute provides few guideposts to inform practitioners of the conduct that is expected from them, especially when compared with similar statutes in other states,” St. Eve wrote for the majority. “… 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 aggregate. Most critically, it is unclear what causal relationship is required between the abortion and the complication, and doctors are not provided with an objective standard by which to make that decision.”

Despite that, the 7^th Circuit concluded the statute does have a “discernable core” needed to survive the facial challenge at hand. It noted that even Planned Parenthood’s brief stopped short of stating that several of the complications listed in the statute were impossible.

It pointed back to its precedents, particularly Trustees of Indiana University v. Curry, 918 F.3d 537, 541 (7th Cir. 2019),  that preclude any other result in the case at hand.

“This ‘core’ of the Complications Statute satisfies the void-for-vagueness test: It is understandable by persons of ordinary intelligence and not subject to arbitrary enforcement,” the majority held, ruling that the statute must survive Planned Parenthood’s preenforcement, facial attack.

“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.’”

But in a dissent, Judge Wood opined that the court should not let the “incomprehensible law stand,” and that the “only choice is to strike it down as void for vagueness.”

“My colleagues have voted to overturn (the) 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,” Wood wrote. “It is hard to believe that this is an approach that courts would, or should, generalize. And indeed, I suspect 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.”

Wood opined that although she doesn’t doubt that it would be possible to write a reporting statute that would avoid unconstitutional vagueness, Indiana has yet to do so.

As such, she noted that while it remains unclear whether the Indiana Department of Health can limit the law “as drastically” as the majority advises, “for now there is no reasonable medical judgment standard, no temporal limitation, no scienter requirement, and no but-for causal standard.”

“The district judge correctly found that this left an empty core that cannot be enforced consistently with the due process clause of the Fourteenth Amendment,” Wood concluded.

A PPINK representative told The Indiana Lawyer that it is still reviewing the situation and is prepared to comply with state laws.

The Indiana Attorney General’s Office said the 7th Circuit’s ruling is a win for the safety of Hoosier women.

“Complications from abortion have been notoriously difficult to track, resulting in a skewed understanding of the danger abortion poses to women,” Attorney General Todd Rokita said in an email statement to The Indiana Lawyer. “Enforcement of this reporting law is a big step in the direction of collecting accurate data on the harms abortion causes.”