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Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Department of Health

United States Court of Appeals, Seventh Circuit

June 25, 2018

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., et al., Plaintiffs-Appellees,
v.
COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants-Appellants.

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-00763-TWP-DML Tanya Walton Pratt, Judge.

          ORDER

         By the Court [*]:

         Defendants-appellants have requested en banc review in this case limited only to the question of the constitutionality of Ind. Code § 16-34-3-4, which regulates the disposal of fetal remains after an abortion or miscarriage. On June 8, 2018, the court granted the petition and vacated Part II.B of the panel's opinion of April 19, 2018, Planned Parenthood of Ind. and Ky., Inc. v. Comm'r of Ind. State Dept. of Health, 888 F.3d 300, 307-10 (7th Cir. 2018). However, information coming to the attention of a member of the court caused that judge to conclude that recusal was necessary and that the judge had been ineligible to vote on the petition for rehearing en banc. Taking into account that judge's recusal, the vote of the circuit judges in regular active service was evenly divided, and thus the necessary majority required by 28 U.S.C. § 46(c) for rehearing en banc was, and is, not present. Judges Easterbrook, Kanne, Sykes, Barrett, and Brennan voted to grant rehearing en banc. We therefore VACATE the order of June 8, 2018, and reinstate the panel's opinion.

          Wood, Chief Judge, with whom Circuit Judges Rovner and Hamilton join, concurring.

         Not every case in a highly controversial area deserves to be reheard by the en banc court. Just as the Supreme Court passes by many potentially interesting and important cases when it exercises its certiorari jurisdiction, particularly when either the facts or the law may stand in the way of a clean decision on the merits of the issue that concerns the Court, we must exercise the same restraint. Unless it is possible to identify a properly presented, important issue of law that lies within the power of this court to resolve, we should refrain from rolling out the big guns of the full court. Otherwise we risk issuing what would be at best an opinion correcting an error made by a panel, and at worst an advisory letter to the Supreme Court. The present case is not one that meets those criteria. Idiosyncratic procedural hurdles would block our ability to conduct a thorough review of the only issue the state of Indiana has asked us to rehear-the constitutionality of the fetal disposal provisions of House Enrolled Act No. 1337, Ind. Code §§ 16-34-3-4(a), 16-41-16-4(d), 16-41-16-5, and 16-41-16.7.6.

         The state has not asked for rehearing en banc of the panel's ruling on the Sex Selective and Disability Abortion Ban, Ind. Code § 16-34-4, and the reason why is obvious: only the U.S. Supreme Court has the power to decide whether to change the rule of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which holds unequivocally that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability." See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("it is this Court's prerogative alone to overrule one of its precedents"). The state's decision in this respect amounts to a waiver of its right to have this court reconsider that part of the panel's decision. In light of that waiver, I do not address that part of the case. The Supreme Court does not need essays from different federal judges to assist its own thinking. Should the state seek further review, I am confident that the parties will brief the issue ably, and that numerous amicus curiae contributions will also be filed. My focus instead is on the issue that was presented to us: the fetal disposal rules.

         Planned Parenthood conceded that the disposal regulation does not implicate a fundamental right, and it then moved directly to the conclusion that the proper level of inquiry was rational-basis review. The panel properly decided the case in light of that strategic litigation choice. Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health, 888 F.3d 300, 307-08 (7th Cir. 2018). In doing so, the panel ably applied that level of scrutiny. I have little to add to its analysis except to wonder how, if respect for the humanity of fetal remains after a miscarriage or abortion is the state's goal, this statute rationally achieves that goal when it simultaneously allows any form of disposal whatsoever if the mother elects to handle the remains herself. It is not hard to hypothesize disposal methods that would be far less respectful than those presently used for biological materials in clinics.

         The problem, however, is that the parties' concession with respect to the standard of review-a choice that is capable of dictating the outcome-was probably incorrect. Without that concession, the court's review would have taken a different turn. This case involves a fundamental right: the woman's right to decide whether to carry a child (or, put negatively, whether to have an abortion). See Roe v. Wade, 410 U.S. 113 (1973). In my view, statutes such as Indiana's cannot properly be examined if the question of the standard of review is off the table, as it was for our panel.

         In many cases, that choice will be outcome determinative. A look at the relevant Supreme Court decisions strongly suggests that rational-basis is not the proper level of scrutiny. The disposal of an aborted (or miscarried) fetus is just the final step in the overall process of terminating (or losing) a pregnancy. It thus implicates an interest with heightened constitutional protection: "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Casey, 505 U.S. at 846. Therefore, the question for this court should have been whether the law "has the effect of placing a substantial obstacle in the path of a woman's choice." Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292, 2309 (2016) (quoting Casey, 505 U.S. at 877). To move forward with this case as if rational-basis were the proper standard would force us to decide an important issue with blinders on. The court would need to ignore the Supreme Court's admonition not to "equate the judicial review applicable to the regulation of a constitutionally protected personal liberty interest with the less strict review applicable where, for example, economic legislation is at issue." Whole Woman's Health, 136 S.Ct. at 2309. The fact that fetal-disposal regulations potentially affect the constitutional right to obtain a pre-viability abortion distinguishes this law from the countless cases that do not implicate a constitutional right-say, animal-welfare statutes. There are plenty of rationally enacted laws that do not burden any constitutional rights.

         It does not matter for the constitutional concerns presented in this case that the disposal statute operates at the end of the procedure. Hypotheticals should make that point clear. A post-procedure spousal notification law, perhaps enforced by a criminal penalty, is no less a substantial obstacle than a pre-procedure notification requirement. And I expect that any woman would experience an undue burden on her right to have a pre-viability abortion if state law required her to check herself into a mental hospital for a week after the procedure was complete. In keeping with these principles, other courts have applied not the rational-basis standard, but the undue-burden standard, when considering the lawfulness of fetal remains regulations. See June Med. Servs. LLC v. Gee, 280 F.Supp.3d 849 (M.D. La. 2017); Hopkins v. Jegley, 267 F.Supp.3d 1024, 1098 (E.D. Ark. 2017), appeal filed, No. 17-2879 (8th Cir. Aug. 28, 2017); Whole Woman's Health v. Hellerstedt, 231 F.Supp.3d 218, 227-29 (W.D. Tex. 2017).

         The forced limitation of this case to the rational-basis standard would distort any en banc consideration we could give. It is entirely possible that a state law would pass rational-basis, one-step-at-a-time, review, but would nonetheless impose an undue burden on a women's choice to have an abortion. The examples reviewed in Casey are good illustrations. That possibility suggests that leaving the panel's decision intact is unlikely to spell the end of fetal disposal litigation even in this circuit. Every nuance in this area is litigated over and over. Nor does our denying the motion for rehearing bring to an end litigation already progressing across the country. See, e.g., Hopkins v. Jegley, No. 17-2879 (8th Cir. appeal docketed Aug. 28, 2017); June Med. Servs. LLC v. Gee, No. 3:16-cv-00444-BAJ-RLB (M.D. La. docketed July 1, 2016); Whole Woman's Health v. Smith, No. 1:16-cv-01300-DAE-AWA (W.D. Tex. docketed Dec. 12, 2016). If the Supreme Court wants to take some aspect of this issue, it will have ample opportunity to do so.

         Moreover, further review of this case would necessarily proceed without the benefit of a record developed with the proper legal standard in mind. Given the posture in which this case comes before us, it is unremarkable that, as Judge Easterbrook observes, plaintiffs have not contended or shown that the fetal disposal statute is a substantial obstacle. Easterbrook, J., dissenting, post at slip op. 7. Litigating on a "rational-basis" standard makes such evidence unnecessary; under the proper standard of review, however, evidence does make a difference, and it should be developed before the court charges headlong into such an important issue. And that is not the only evidence currently missing as a result of a misapprehension of the standard of review. For example, the evidence is thin to nonexistent on the costs imposed by the disposal regulations-costs that include not only a higher out-of-pocket dollar price for the procedure, but that might include psychological trauma that chills women from seeking abortions or medical care in relation to miscarriages because of the potential stigmatizing impact of these measures. Nor did the plaintiffs have reason to explore how the disposal statute might work in tandem with other regulations in a way that unduly burdens the right to choose, as is required under Whole Women's Health. 136 S.Ct. at 2309, 2313. The record simply did not explore what should have been the central issues and what are likely to be the primary points of contention in the next case to come along.

         It would be a waste of this court's resources to accept a case for en banc review if the only thing we could say is that the parties' decision to use rational-basis review is binding on us, but that everything might be different if the standard from Casey and Whole Women's Health were applied and a proper record in light of that standard had been developed. It would not quite be a hypothetical case, but it would be too close for comfort. Important as these issues are, the ...


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