A law enacted in Indiana in 2017 provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.” In August, a divided panel of the Seventh Circuit affirmed a preliminary injunction that prevented that provision from ever taking effect. In dissent, Judge Kanne objected that because the law was enjoined before it had ever been enforced, there was no evidence that it would operate as an undue burden.
Last week, by a vote of 6 to 5, the Seventh Circuit declined to rehear the case en banc. In his brief dissent (joined by Judges Flaum, Barrett, Brennan, and Scudder), Judge Kanne stated:
This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.
Judge Easterbrook, joined by Judge Sykes, concurred in the denial of rehearing en banc (and either of them can therefore be regarded as providing the decisive vote against rehearing).* Essentially endorsing Kanne’s panel dissent, Easterbrook argued that pre-enforcement injunctions should be strongly disfavored:
Unless a baleful outcome is either highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow the states that much leeway. Talk of the states as laboratories is hollow if federal courts enjoin experiments before the results are in.
At the same time, Easterbrook explained why he opposed en banc rehearing. One big part of Easterbrook’s argument is that the “undue burden” standard set forth in Planned Parenthood v. Casey has no meaningful content: it “does not call on a court of appeals to interpret a text … [n]or does it produce a result through interpretation of the Supreme Court’s opinions”:
Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted. Three circuit judges already have guessed how that inquiry would come out; they did not agree. The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.
Alas, Easterbrook’s vote to deny en banc rehearing makes it much less likely that the Supreme Court will decide to address “this dispute” (though, as he points out, it is possible that the Court’s ruling in the pending case of June Medical Services v. Gee will provide guidance on when pre-enforcement injunctive relief is proper). I wish very much that he had instead voted to grant en banc rehearing and had ultimately set forth his presumption against pre-enforcement relief, and his criticism of the undue-burden standard, in an en banc majority opinion that vacated the preliminary injunction against the Indiana law.
* One Trump appointee, Judge St. Eve, was also part of the majority denying en banc review.