Indiana cannot prohibit doctors from telling minors, without their parents’ consent, where they could receive an abortion out of state, a federal appeals court ruled on Aug. 18.
The U.S. Seventh Circuit Court of Appeals upheld a decision finding a portion of Indiana’s 2017 “aid-or-assist” law to be a violation of the First Amendment because it blocks providers from sharing information about lawful abortion procedures in other states.
By enforcing the law, Judge David Hamilton, who authored the opinion, said the state was engaging in content-based regulation of speech and viewpoint discrimination, both of which are unconstitutional under the First Amendment. President Barack Obama appointed Hamilton in 2009.
Hamilton said it would be illegal if a doctor encouraged a minor to obtain an illegal abortion in Indiana without parental consent, since it would be speech integral to criminal conduct and would violate Indiana’s near-total abortion ban. However, he said Indiana’s parental consent and abortion requirements for minors do not apply to out-of-state abortion providers.
“We also cannot square defendants’ asserted interest in protecting the parent-child relationship with the strong constitutional protections given to factually accurate speech about conduct that is legal in another state,” the judge wrote.
Trump-appointed Judge Michael Scudder Jr. agreed with the ruling, but he said in his concurrence that Hamilton’s order undervalues the state’s compelling interest to involve parents in these decisions.
The American Civil Liberties Union of Indiana and Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., sued the state in 2017, arguing that the law unfairly placed a burden on its providers and chilled their ability to disseminate factual information about abortion access in other states.
“Free speech protections mean very little if the government can silence truthful information whenever it dislikes the subject,” said Gavin Rose, deputy legal director at the ACLU of Indiana. “Indiana spent nearly a decade defending that kind of restriction. We’re glad the court rejected it and protected the right of providers to speak openly with their patients.”
Indiana Attorney General Todd Rokita’s office, which represented the state in the case, did not immediately respond to a request for comment.
In the U.S. District Court of Southern Indiana, Judge Sarah Evans Barker handed down a permanent injunction in May 2024, finding the law unconstitutional on similar grounds. The law has been on hold since 2017 after Evans Barker issued a preliminary injunction. President Ronald Reagan appointed Barker in 1984.
In seventh circuit oral arguments last fall and in court filings, the state argued that the law is targeting conduct, not speech, so it wouldn’t need to be held to strict scrutiny, the highest review standard required for speech-based laws. State attorneys argued that the speech is not protected because it was intended to cause unlawful conduct.
Hamilton said that the state’s argument undermines First Amendment rights because a broad interpretation would mean strict scrutiny would not apply “solely because the legislature made such speech criminal.”
“This argument is of course circular: the speech is integral to unlawful conduct because the challenged restriction on speech makes it unlawful,” Hamilton wrote. “In other words, the theory goes, the speech is illegal because it is illegal.”
If the state chose to appeal the decision, it would need to petition the U.S. Supreme Court.
The Indiana Supreme Court will hear oral arguments in another abortion case next month. A Marion County court ruled in March that Indiana was obstructing Hoosiers’ rights when it implemented a near-total abortion ban with exemptions for some reasons — such as fatal fetal abnormalities, rape or incest, or if there’s a serious threat to maternal health — but not for religious beliefs.
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This article originally appeared on Indianapolis Star: Federal court: Indiana cannot punish doctors who tell minors about out-of-state abortions
Reporting by Cate Charron, Indianapolis Star / Indianapolis Star
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By Cate Charron, Indianapolis Star | USA TODAY Network
