991 F.3d 740
7th Cir.2021Background
- Indiana’s 2017 Senate Enrolled Act 404 amended the judicial‑bypass for unemancipated minors seeking abortions to require parental notice unless a judge finds notice is not in the minor’s best interests; maturity is not an exception.
- Plaintiffs submitted affidavits from practitioners and counselors showing the notice requirement would likely impose substantial obstacles for many minors; the State offered no counterevidence at the preliminary‑injunction stage.
- The district court granted a pre‑enforcement preliminary injunction; a Seventh Circuit panel affirmed in 2019, and the State sought certiorari.
- The Supreme Court vacated and remanded in light of June Medical Services LLC v. Russo, a fractured 2020 decision (plurality + concurrence + dissents) addressing an admitting‑privileges law similar to Whole Woman’s Health.
- On remand this panel applied Marks v. United States and the “logical subset” approach: it concluded June Medical did not overrule Whole Woman’s Health and therefore reaffirmed the district court’s preliminary injunction against Indiana’s notice requirement.
- Judge Kanne dissented, arguing the narrowest common ground requires applying Casey’s “substantial‑obstacle” inquiry (without the balancing of benefits), and that the injunction should be reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether June Medical overruled Whole Woman’s Health or changed the undue‑burden test | June Medical did not overrule Whole Woman’s Health; the plurality and concurrence share only that Whole Woman’s Health controls on essentially identical facts | June says the Chief Justice’s concurrence (swing vote) should be treated as controlling and narrows or effectively overrules Whole Woman’s Health | Marks applied: only the narrow common ground (stare decisis application to essentially identical facts) is binding; Whole Woman’s Health was not overruled |
| Proper application of Marks to fractured Supreme Court opinions (do dissents count; which model to follow) | Use the logical‑subset/common‑denominator model; do not count dissents or treat lone concurrence as overruling precedent | Urges swing‑vote or prediction models (count concurrence or combine opinions) to treat concurrence as controlling | Dissents do not count; adopt the predominant Marks/logical subset approach; do not treat a single concurrence’s dicta as overruling prior majority precedent |
| Whether Indiana’s parental‑notice amendment likely imposes an undue burden on minors | Affidavit evidence shows the notice requirement will impose a substantial obstacle for a significant fraction of minors and offers little/no benefits | Argues statute is constitutional and June Medical altered applicable analysis; contests plaintiff’s showing | Affirmed preliminary injunction: on this record (State offered no benefit evidence), the notice requirement likely imposes an undue burden |
| Role of evidence of benefits at preliminary‑injunction stage | Burdens must be weighed against benefits; State offered no evidence of benefits so injunction appropriate | Contends courts should not weigh benefits or that the State should not be penalized pre‑enforcement | Court considers benefits; State’s failure to present evidence of legitimate benefits at PI stage was dispositive in upholding injunction |
Key Cases Cited
- Marks v. United States, 430 U.S. 188 (1977) (instructs lower courts to treat the narrowest grounds of fractured decisions as controlling)
- June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020) (fractured Supreme Court decision; plurality and concurrence reached same result on essentially identical facts but disagreed on reasoning)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (applied Casey balancing of burdens and benefits under the undue‑burden standard)
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (established the undue‑burden/substantial‑obstacle framework)
- Bellotti v. Baird, 443 U.S. 622 (1979) (requirements for judicial bypass procedures for minors seeking abortions)
- Planned Parenthood of Indiana & Kentucky, Inc. v. Adams, 937 F.3d 973 (7th Cir. 2019) (Seventh Circuit panel opinion affirming district court PI against Indiana’s notice requirement)
- Planned Parenthood of Indiana & Kentucky, Inc. v. Adams, 258 F. Supp. 3d 929 (S.D. Ind. 2017) (district court factual findings supporting preliminary injunction)
- Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (only the Supreme Court may overrule its precedents)