People For the American Way

Barrett, Brennan and Scudder Try to Reconsider Decision That Blocks Improper Parental Notification Requirement in Indiana Abortion Law: Confirmed Judges, Confirmed Fears

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Barrett, Brennan and Scudder Try to Reconsider Decision That Blocks Improper Parental Notification Requirement in Indiana Abortion Law: Confirmed Judges, Confirmed Fears
Protesters in Chicago, Illinois. Photo by Charles Edward Miller via Flickr

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

Trump 7th Circuit judges Amy Coney Barrett, Michael Brennan, and Michael Scudder joined an October dissent that tried to vacate and reconsider a 3–judge ruling affirming the grant of a preliminary injunction against an Indiana law that would effectively require all those under 18 to obtain parental consent to seek an abortion, contrary to Supreme Court precedent. Judges who voted against rehearing included conservative Reagan appointee Frank Easterbrook, George H. W. Bush appointee Ilana Rovner, and Trump judge Amy St. Eve. The case is Planned Parenthood of Ind. & Ky. v. Box.

Pursuant to the Supreme Court’s 1979 decision in Bellotti v. Baird, Indiana statues had long provided for a confidential and fast judicial bypass procedure under which the small fraction of unemancipated minors who seek abortion without parental consent or notification can ask a judge to grant permission. In 2017, however, Indiana passed a new law mandating that, even though the judicial bypass procedure is supposed to be confidential, parents must be notified before an abortion of anyone under 18 takes place. Planned Parenthood sued and sought a preliminary injunction against the law before it could take effect.

A district court granted the injunction, and a three-judge panel of the 7th Circuit affirmed the decision. As the majority explained, Planned Parenthood had shown a substantial likelihood of success on the merits because the new law would create a “substantial risk of a practical veto over a mature yet unemancipated minor’s right to an abortion,” in violation of Bellotti, and “impose an undue burden” on these young women’s rights. At the same time, the state had failed to produce evidence “that there is a problem for the new parental notice requirement to solve, let alone that the law would reasonably be expected to solve it.” The majority thus determined that “the record supports the conclusion that young women would suffer irreparable harm” without injunctive relief.

Indiana, nevertheless, tried to convince the full 7th Circuit to vacate the panel decision and reconsider the case. Although a majority of the judges rejected the petition, the judge in the minority in the panel decision, Reagan judge Michael Kanne, dissented and was joined by Barrett, Brennan, Scudder and Reagan judge Joel Flaum. The dissent did not discuss the harm to minors that would occur without the injunction or the likelihood that Planned Parenthood would succeed, but instead claimed that enjoining a state law before it goes into effect was “a judicial act of extraordinary gravity” that the full court should consider. Judge Easterbrook responded that granting full court review would only “delay” the resolution of the case, that the issue of pre-enforcement review of restrictive abortion laws is before the Supreme Court now in the Louisiana case, and that the “quality of our work cannot be improved by having eight more circuit judges” consider the issue.

If the views of Barrett, Brennan, and Scudder had prevailed, the injunction against the restrictive abortion statute would have been vacated, and quite possibly reversed. Fortunately, they did not have the votes yet to achieve that result, and reproductive rights in the 7th Circuit remain protected as the case goes forward.