CHICAGO (CN) - Indiana faced a spirited Seventh Circuit panel on Tuesday when it argued that a federal judge erred when she deemed a law preventing physicians from providing abortion information to minors in violation of the First Amendment.

Planned Parenthood challenged Indiana's "aid or assist statute," which prohibits doctors and abortion providers from sharing information about out-of-state abortions with minors without parental consent or court approval. The law was signed before Indiana enacted its near-total abortion ban and before the landmark Supreme Court decision Dobbs v. Jackson Women's Health Organization, but it was never enforced due to a 2017 court injunction.

Though the organization can no longer provide abortion services in Indiana, Planned Parenthood argued the law violated its First Amendment rights, and a federal judge ultimately agreed in 2024.

U.S. District Court Judge Sarah Barker wrote in her 21-page opinion and order that the burdens the statute placed on Planned Parenthood's speech were anything but incidental.

"They are not simply an indirect side effect of the regulation but are instead a core purpose of the regulation," she wrote. "In this way, the aid-or-assist statute is readily distinguishable from the types of regulations on conduct that have been deemed by courts to have only incidental effects on speech, such as an employment anti-discrimination ordinance requiring removal of 'White Applicants Only' signs, an ordinance against outdoor fires preventing flag burning, or a COVID-related social distancing order making it more difficult for a political campaign to 'round up signatures.'"

Gavin Rose, an attorney representing Planned Parenthood, reiterated Barker's order and maintained that the Indiana law is both a content and a viewpoint-based speech restriction.

"If Planned Parenthood hands a young person a piece of paper with a list of Illinois-based healthcare providers where the patient can get prenatal care, it violates no law," Rose wrote in the appellee's brief. "Change the words on the paper to a list of Illinois-based healthcare providers that offer abortion care, and Planned Parenthood has violated the law. That is the essence of content- and viewpoint-based discrimination."

Jenna Lorence, a deputy solicitor general with the state of Indiana, argued in court Tuesday that the law regulates Planned Parenthood's conduct, not what information it shares. She added that Indiana can regulate speech that is integral to criminal conduct, like in this case, speech that is integral to violating the parental consent statute with the intent to get an abortion.

She explained that it's perfectly acceptable for Planned Parenthood to share relevant information regarding abortions out of state, but what the organization can't do is provide referrals for minor patients.

U.S. Circuit Judge David Hamilton, a Barack Obama appointee, asked Lorence what the constitutional difference is between information and a referral.

"A referral falls under medical conduct," she responded.

"If the court were to say that information is protected, we'd suggest that referrals aren't in that First Amendment gambit," Lorence continued.

Gavin Rose, an attorney representing Planned Parenthood, maintained that there was no difference between referrals and information and that Indiana used that argument to sidestep its First Amendment violations.

"I can't imagine there's a constitutional difference," Rose, an attorney with the Indiana chapter of the American Civil Liberties Union, said.

Lorence argued Planned Parenthood lacks proper standing in the litigation, given that the organization doesn't perform abortions in Indiana anymore. In the same vein, she also argued that the nonprofit can't establish standing based on what could happen to its physicians.

"The district court brushed off the comparison to aiding-and-abetting statutes, saying that Planned Parenthood 'is not seeking to provide unemancipated minors information regarding how to procure an abortion within Indiana' but abortions that would be legal in another State," Lorence wrote in the appellant's brief. "That statement overlooks that the conduct Planned Parenthood seeks to undertake would occur in Indiana in violation of an Indiana law designed to protect the integrity of Indiana's consent requirements. The mere fact that the actual abortion might be performed where it is legal does not render Planned Parenthood's entire course of conduct lawful."

U.S. Circuit Court Judge Michael Scudder Jr. asked Planned Parenthood who they were suing on behalf of and noted how the changes in abortion laws nationwide have complicated the organization's standing in this lawsuit.

Rose said Planned Parenthood was suing on behalf of its physicians and employees, but Scudder remained dubious about the organization's standing, given that individual doctors are licensed to perform abortions, not the organization itself.

"It's odd to see how Planned Parenthood itself is a proper plaintiff," Scudder, a Donald Trump appointee, said.

U.S. Circuit Court Judge Ilana Rovner, a Ronald Reagan appointee, echoed Scudder's concerns.

"It seems that the state defendants would argue that further development off the record is required regarding standing," she said.

Rose maintained that Planned Parenthood had proper standing in the lawsuit. He noted how Indiana had a full year to supplement the record, and it accepted Planned Parenthood's standing before it was brought before the Seventh Circuit.

Lorence said the standing may have once been undisputed on the record, but that was at a time when Planned Parenthood was still providing abortions. Scudder asked her how she thought Planned Parenthood was suing - on behalf of its physicians or individuals who rely on it - and she responded, "Frankly, your honor, I don't know, and that's part of the issue."

The panel of judges took the case under advisement on Tuesday and did not indicate when it might issue a ruling.

Source: Courthouse News Service