Seventh Circuit Strikes Down Restriction on Informing Indiana Minors About Out-of-State Abortion Providers

Some excerpts from yesterday’s long decision in Planned Parenthood Great Nw. v. Comm’r, decided by Judge David Hamilton, joined by Judge Ilana Rovner:

In 2017, Indiana passed what we call the “aid-or-assist” law, which forbids knowingly or intentionally aiding or assisting an unemancipated pregnant minor in obtaining an abortion without first satisfying Indiana’s parental consent and notice requirements. Plaintiff Planned Parenthood provides to its clients factually accurate information about abortion providers who operate lawfully in other states. Plaintiff provides such information to unemancipated pregnant minors who seek it. Defendants are Indiana state officials who maintain that providing such information violates the aid-or-assist law unless plaintiff can show that it first satisfied the same stringent parental consent requirements that must be satisfied before a minor may obtain an actual abortion….

Defendants argue that First Amendment protections do not apply here on the theories that the information and referrals are “speech integral to criminal conduct” or merely “incidental” to conduct. We are unpersuaded by both arguments. The aid-or-assist law, as applied to the information and referrals at issue, is a content-based regulation of speech.

The court rejected the state’s argument that the law regulates only speech that fits within the First Amendment exception for speech “integral to unlawful conduct”:

Defendants argue that Planned Parenthood’s speech falls into this exception because the information and referrals violate the aid-or-assist law itself, which prohibits intentionally helping minors obtain abortions without first complying with Indiana’s parental consent requirements. This argument is of course circular: the speech is integral to unlawful conduct because the challenged restriction on speech makes it unlawful. In other words, the theory goes, the speech is illegal because it is illegal.

This exception to First Amendment protection demands more. It demands a separate underlying offense that is not the challenged restriction on speech itself…. “[T]he Giboney doctrine can’t justify treating speech as ‘integral to illegal conduct’ simply because the speech is illegal under the law that is being challenged.” … A broader reading of the exception would undermine First Amendment rights by shielding any statute that criminalizes speech from strict scrutiny solely because the legislature made such speech criminal.

To be clear, we can assume that speech aiding an unemancipated minor in obtaining an illegal abortion in Indiana would constitute speech integral to criminal conduct, violating Indiana’s near-total abortion ban. But Planned Parenthood’s practice of providing information and referrals to out-of-state abortion providers operating lawfully in other states does not go so far. Defendants do not point to a violation of any other statute, other than the aid-or-assist law itself, as the basis for this exception.

Nor can an abortion performed lawfully in another state serve as the underlying offense…. Indiana’s parental consent and abortion requirements for minors simply do not apply to the activities of out-of-state providers. A state does not have the power to regulate or prohibit lawful activities in another state “merely because the welfare and health of its own citizens may be affected when they travel to that State.” Any contrary argument disturbs long-held principles of horizontal federalism that confine a state’s legislative and police powers to within its own borders.

The court also concluded that the law operated as a content-based speech restriction, even though it didn’t mention speech on its face, but generally banned “knowingly or intentionally aid[ing] or assist[ing] an unemancipated pregnant minor in obtaining an abortion without the consent required by section 4 of this chapter”:

[P]laintiff’s speech is covered by this law because of its subject matter. The statute targets any activity, including speech, that aids minors in obtaining an abortion without first satisfying Indiana’s parental consent laws

If plaintiff shares information with pregnant minors about out-of-state care for prenatal care or ovarian cancer or sexually transmitted infections, the aid-or-assist law is no obstacle. But if the information shared or the referral made concerns abortion, the statute is triggered. Because defendants maintain that plaintiff and its employees would violate the law by continuing to share the information and referrals for legal out-of-state abortion care, the statute turns on the message the speaker conveys even if it seems facially neutral….

And the court concluded that the law failed “strict scrutiny,” under which content-based speech restrictions “may be justified only if the government proves that they are narrowly tailored to serve compelling state interests”:

As a practical matter, strict scrutiny is “fatal in fact absent truly extraordinary circumstances.” …

At the outset of our analysis, we must focus on Bigelow v. Virginia (1975). Bigelow ran a newspaper in Virginia. In 1971, before the Supreme Court recognized a limited constitutional right for pregnant women to obtain abortions, he had run an advertisement that told readers in Virginia that abortions were legal in New York. The advertisement provided contact information for counseling to arrange for a legal abortion in New York. Bigelow was convicted of violating a Virginia statute that made it a crime to encourage the procuring of an abortion. The Supreme Court reversed, holding that the First Amendment protected publication of the advertisement. The Court explained that a state “may not, under the guise of exercising internal police powers, bar a citizen of another State from disseminating information about an activity that is legal in that State.” …

Defendants seek to distinguish Bigelow on the basis that Indiana’s aid-or-assist law applies only to information that plaintiff provides to minors. Defendants write that “States have greater leeway to protect children’s wellbeing” …, citing Prince v. Massachusetts (1944) (upholding criminal convictions for violating state law restricting child labor when child was employed to sell religious magazines).

That general principle is surely sound, especially as applied to child labor …. But authority over activity is very different, for First Amendment purposes, from restricting the flow of information….

[T]he Supreme Court has struck down … restrictions on providing information or entertainment to minors, with the lone exception of pornography. In Brown v. Entertainment Merchants Ass’n (2011), the Supreme Court applied strict scrutiny to hold that a state statute prohibiting the sale or rental of violent video games to minors violated the First Amendment. The Court recognized that states may restrict the sale of explicit sexual material to children. But the Brown Court rejected the effort to broaden Ginsberg to violent materials. The Court called California’s effort to create a new category of regulations for speech directed at children “unprecedented and mistaken. ‘[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.'” “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” That reasoning in both Brown and American Amusement weighs against efforts to deny minors the benefit of Bigelow v. Virginia.…

[W]e have no difficulty acknowledging that … the state’s interest in safeguarding the sanctity of the parent-child relationship is compelling. The fundamental problem here is that defendants have not shown that the aid-or-assist law, as applied to plaintiff’s speech about health care that is legally available in other states, is narrowly tailored to serve those interests….

First, … defendants failed to present any evidence that the state’s interests in safeguarding the parent-child relationship or protecting the physical and psychological well-being of minors would actually be furthered by prohibiting private individuals from disseminating truthful information to pregnant minors about lawful abortion practices in other states. Are minors less likely to consult their parents after receiving the information at issue from plaintiff? Or conversely, does satisfaction of Indiana’s parental consent requirements before receiving that information aid the parent-child relationship in ways that a less stringent consent requirement in this provision would not? Defendants offered no evidence to answer those questions….

Indiana’s aid-or-assist law is [also] not narrowly tailored to serve the state’s legitimate and even compelling interest in protecting the parent-child relationship. For that interest, it is both overinclusive and underinclusive.

The first problem is the statute’s requirement that plaintiff obtain, or “seek[ ] to obtain,” consent under Indiana’s stringent parental consent requirements—the standards that apply before actually having an abortion—merely to provide the information and referrals at issue. Under the aid-or-assist law, plaintiff must receive a parent’s written consent form, government-issued proof of identification, and some evidence “that provides an articulable basis for a reasonably prudent person to believe” the pregnant minor and parent are related before uttering the name of a single website.

As Judge Scudder highlights in his concurrence, the law also requires that the parent’s signature even be notarized. That requirement seems both unprecedented and extraordinary as a condition of sharing truthful information about legal activities in another state.

If a pregnant minor does not wish to notify her parents, the minor must prove to a juvenile court that she is mature enough to make this decision independently, and then that it is in her best interests to obtain an abortion without parental notification, all just to receive information about health care legally available in another state, especially where time is critical for that health care. The judicial bypass procedures evolved to apply to a minor’s actually obtaining an abortion. Extending that requirement of filing a legal action as a minor before she can obtain factual information otherwise available with a quick on-line search seems to be another unprecedented and extraordinary obstacle. We are not aware of any other comparable legal limits on providing to a minor factual information about legal activity….

Plaintiff also points to situations in which its minor clients do not know where their parents are, risk physical or mental abuse if they try to obtain their required consent, or might be forced to carry an unwanted pregnancy to term once their parents are alerted. The state has not engaged with those effects of its statute, which, far from advancing the state’s compelling interest in child welfare, would harm pregnant minors, including mature minors, by depriving them of information that could help them make a decision protecting their health and safety.

Further undermining the state’s argument for narrow tailoring, the aid-or-assist statute is underinclusive as a means to protect the state’s asserted interests. The contents of the speech at issue—information for minor patients—are readily available to a pregnant minor without help from plaintiff. The information Planned Parenthood provides (often just the name of a website) is not exclusive to plaintiff. The minor patient herself can access it easily with a computer or smartphone….

More fundamental, defendants do not address why the statute incorporates such stringent parental consent requirements just to receive information that can readily be found online. In this digital age, this fact undermines the state’s assertions, unsupported by evidence, that prohibiting plaintiff’s speech would actually further the state’s asserted interest in minors’ well-being.

And we see no permissible basis upon which the state could try more broadly to prohibit a minor from seeking or receiving the information at issue here. Information about legally available health care is not comparable to pornography that can be denied to minors….

Judge Michael Scudder concurred in the judgment; an excerpt:

I agree with the majority that section 5 targets speech instead of conduct, at least for this as-applied action…. I also agree that section 5 restricts speech based on content….

[But] the majority diminishes the weight of Indiana’s interest underpinning section 5. It does so by relying on Bigelow to support the proposition that Indiana has no authority to regulate in-state speech about the availability of out-of-state medical procedures. But Bigelow did not involve minors, nor did the Justices say anything suggesting that the case’s principles extend to children….

Not only does Indiana have the authority to regulate this sort of in-state speech to minors, it has a compelling interest in doing so. The State’s interest is in keeping parents involved in their children’s most consequential, life-altering decisions, including at the information-gathering stage. The Supreme Court has recognized this interest many times over [in upholding parental consent and notification requirements for abortion -EV]….

I also part ways with the majority’s narrow tailoring analysis. My colleagues insist that section 5 is overinclusive because there may be “situations in which [Planned Parenthood’s] minor clients do not know where their parents are, risk physical or mental abuse if they try to obtain their required consent, or might be forced to carry an unwanted pregnancy to term once their parents are alerted.” But that is exactly why Indiana included a judicial bypass….

The majority additionally sees section 5 as underinclusive because it does not stop minors from learning about legal out-of-state abortions through a quick Google search. But “[a] State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.” …

I agree that section 5 fails strict scrutiny for one narrow reason. To my eye, the aid-or-assist statute is overinclusive solely because of its notary requirement. Indiana not only requires a parent to prove their identity (e.g., government-issued identification) and to prove their relationship with the minor (e.g., birth certificate), it also requires the parent to submit “notarized written consent.” Notaries seem to be going extinct in today’s digital age and, at the very least, are not as easy to find as they were yesterday.

Notice, too, that Indiana’s notarization requirement means that a verified parent could expressly consent—in writing and before a witness—to a physician telling their minor child about lawful abortion in other states and still not satisfy the parental consent requirement. An alternative consent framework that allows non-notaries to serve as witnesses would sufficiently protect Indiana’s interest in the parent-child relationship….

Andrew Beck (ACLU) and Gavin M. Rose, Kenneth J. Falk, and Valentina De Fex (ACLU of Indiana) represent plaintiffs.