Planned Parenthood of Indiana & Kentucky, Inc. v. Marion County Prosecutor, No. 20-2407 (7th Cir. 2021)
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The Seventh Circuit concluded that Planned Parenthood has not shown that an Indiana statute that requires medical providers to report complications "arising from" abortions to the state is unconstitutionally vague on its face in this pre-enforcement challenge. The court reversed the district court's entry of summary judgment in favor of Planned Parenthood, vacated the district court's permanent injunction, and remanded for further proceedings.
The Complications Statute, Indiana Code 16-34-2-4.7, required physicians to report to the state "any adverse physical or psychological condition arising from the induction or performance of an abortion." The Statute then listed 26 conditions that the state considered reportable conditions. In 2019, the Statute was amended to eliminate the "including" language that had previously indicated that the list was illustrative, rather than exhaustive. The Inspection Statute, Indiana Code 16-21-2-2.6, required annual inspection of abortion providers' facilities, even though other kinds of healthcare facilities are inspected less frequently.
The court concluded that 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. Despite the uncertainties that exist in the Complications Statute, the court is mindful of the context of this litigation: a facial, pre-enforcement challenge to a statute that defendants acknowledge a state agency will interpret and apply. However, at this time, the state agency has yet to issue guidance on the application and enforcement of the law and no state court has attempted to interpret it. The court noted that principles of federalism require it to tread especially carefully when reviewing a state law where the state courts have not had an opportunity to give the law a construction that will produce adequate clarity.
In this case, the court cannot conclude that the Complications Statute has no discernable core. The court explained that the complications that a reasonable doctor would find to have arisen from an abortion constitute a core of the Complications Statute. 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 court noted that it is not holding that the Complications Statute is constitutional merely because there may be some complications that clearly arise from an abortion. Rather, the court is only holding that these clear-cut cases constitute a core of the Complications Statute that renders the Statute immune from this pre-enforcement facial challenge. Therefore, the Statute must survive Planned Parenthood's pre-enforcement, facial attack.
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