A federal appeals court on Tuesday upheld a ruling that permanently bars the state of Indiana from penalizing Planned Parenthood for pointing pregnant minors to states in which abortion is legal.
A three-judge panel of the U.S. Appeals Court for the Seventh District found that providing factual information on abortions, as well as referrals for the procedure, is speech protected by the First Amendment — and that the state’s arguments aren’t strong enough to overcome that.
“Young people should not have to navigate a complicated and deeply personal health care decision without clear, honest information,” said Rebecca Gibron, the CEO and president of Planned Parenthood’s Great Northwest, Hawaii, Alaska, Indiana and Kentucky chapter.
“For years, Indiana has tried to make that harder,” Gibron said in a news release Wednesday. “We’re relieved that we can continue helping all our patients understand their options and find legal care, even if it means traveling out of state. We will continue to fight for our patients’ right to access accurate information, including abortion services in other states.”
Indiana Attorney General Todd Rokita’s office didn’t reply to a request for comment on the decision or its implications for Hoosiers.
The decision affirms a permanent injunction against a decade-old state law that has never fully gone into effect: 2017’s Senate Enrolled Act 404.
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It contains a provision requiring physicians to obtain notarized written consent from a parent or legal guardian before performing an abortion on an unemancipated minor, as well as proof of identification and “some evidence” that they really are the child’s parent or legal guardian.
Minors who don’t want to, or can’t, obtain that parental consent can petition a juvenile court for a waiver, as can a physician who feels compliance would harm the minor or pregnancy.
Then, the “aid-or-assist” law bans people from helping an unemancipated minor obtain an abortion without parental consent. That applies to groups like Planned Parenthood that provide abortion information or referrals to children who haven’t met the requirements.
Planned Parenthood filed suit against the law — and nabbed a preliminary injunction — before it was set to take effect on July 1, 2017.
The injunction remained for years, until after the U.S. Supreme Court in 2022 overturned the constitutional right to an abortion. Indiana was the first state in the nation to approve a near-total ban on abortion.
Under 2022’s Senate Enrolled Act 1, abortions are prohibited with limited exceptions, and can only be performed in hospitals. Indiana abortion clinics were stripped of their abortion licenses and can no longer perform the procedure.
Planned Parenthood in 2023 withdrew challenges to two other elements of the law. In 2024, the district court granted summary judgment on the law’s aid-or-assist portion, establishing a permanent injunction.
The appeals panel upheld the permanent injunction, only removing its application to the state health commissioner, who previously held licensing power over Hoosier abortion clinics.
“Indiana officials may disagree with the purposes behind plaintiff’s speech and with the laws and policies of other states. They cannot, however, make it illegal to provide information about lawful conduct in other states,” Judge David Hamilton wrote for the panel. “Nor can they apply Indiana’s own parental consent laws to out-of-state abortions.”
State’s arguments rejected
The court affirmed Planned Parenthood’s standing to sue and reestablished the information and referrals as protected speech.
Lawyers for the state had argued the First Amendment didn’t apply because the speech at issue is intended to bring about actions prohibited in Indiana by the challenged law. But abortions are legal elsewhere.
“This argument is of course circular: the speech is integral to unlawful conduct because the challenged restriction on speech makes it unlawful,” Hamilton wrote. “This exception to First Amendment protection demands more. It demands a separate underlying offense.”
The decision additionally concludes that the aid-or-assist law is content-based, not content-neutral, because it “allows conversations on the subject of abortion but forbids a certain point of view.”
That triggers strict scrutiny, under which a law is presumed invalid — unless the government can demonstrate that the law is necessary to achieve a compelling interest.
Indiana argued the aid-or-assist law advances the state’s interests in protecting child wellbeing and family relationships.
But, the court ruled that the state “have not offered” evidence that the law “would actually serve any of those” state interests.
“Such a poor fit between interests and measures that purportedly serve them undermines the proffered rationales and flunks strict scrutiny,” Hamilton wrote.
One example cited is that much of the information Planned Parenthood offers can be “readily found online,” so barring the organization from providing it wouldn’t necessarily further the state’s interest.
“A minor need not satisfy Indiana’s parental consent requirements to obtain an abortion if the abortion will not take place in the state of Indiana,” the court decreed. “If that minor is now subject to another state’s parental consent requirements before obtaining an abortion, why must she first satisfy Indiana’s set of requirements for obtaining an abortion just to receive related information or to be placed in contact with an out-of-state provider?”
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