PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., et al., Plaintiffs-Appellees,
COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF HEALTH, et al., Defendants-Appellants.
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.
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.
Chief Judge, with whom Circuit Judges Rovner and Hamilton
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.
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.
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.
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
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.
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).
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.
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.
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 ...