The Seventh Circuit Court of Appeals issued a ruling about a week ago in Planned Parenthood v. Box that tees up a fight at the Supreme Court about what constitutes an undue burden on the right to an abortion and what standard courts should use to determine whether abortion restrictions are constitutional.
The question should be an easy one. In 1992’s Planned Parenthood v. Casey, the Supreme Court ruled that an abortion restriction imposes an undue burden if it places a substantial obstacle in the path of a person seeking a lawful abortion. The Court clarified the undue burden test in Whole Woman’s Health v. Hellerstedt in 2016, ruling that courts must weigh the burdens a law imposes on abortion access against the medical benefits those laws confer. If the burdens outweigh the benefits, then the law is unconstitutional.
Last year, in June Medical Services v. Russo, the Court reiterated that balancing burdens and medical benefits is required when analyzing whether an abortion restriction is constitutional. But Chief Justice John Roberts disagreed. In his view, Casey doesn’t require the balancing test—the one that the majority in Whole Woman’s Health already said was necessary. In Roberts’ view, Casey asks one question: “Is this law a substantial obstacle?”
And that’s what the appeals court had to consider in Planned Parenthood v. Box. At issue in that case is a change to Indiana’s forced parental involvement law. Indiana law states that a young person has to obtain consent from a parent before having an abortion; if they choose not to seek a parent’s consent, they have to go to court to seek a judicial bypass—that means asking a judge to determine if they are mature enough to have the abortion, and if not, if it’s in their best interest. In 2017, Indiana enacted a law that would require notifying the parent of any young person seeking a judicial bypass for an abortion, unless the judge decided that was against the minor’s best interests.
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This change is obviously absurd. The whole point of the judicial bypass process is to allow young people to access abortion without involving a parent; if a young person has decided not to notify their parents that they plan to get an abortion, it makes no sense to force them to tell their parents that they are using the judicial bypass procedure. The change in the law makes an oppressive parental involvement mandate worse and is designed to further limit abortion access for young people.
The district court found that this new parental notice requirement imposed a substantial obstacle on some minors’ right to obtain an abortion, and the judge issued a preliminary injunction blocking it. On March 12, the Seventh Circuit affirmed the lower court’s decision, citing the balancing test in Whole Woman’s Health v. Hellerstedt and ruling that the new notice requirement imposed a burden without any appreciable benefit. In doing so, the circuit court deepened a circuit split (in other words, a disagreement among the federal courts of appeal) about whether or not a balancing of burdens and benefits is necessary.
On its face, Box is about expanding forced parental involvement laws. But there is a more insidious motivation at play here: Anti-choice advocates want to use cases like Planned Parenthood v. Box to reframe the undue burden test. They want to decimate abortion access by undercutting the undue burden standard. And parental involvement laws, like the one at stake in Box, make the perfect Trojan horse.
That’s because they are among the most common abortion restrictions, existing in over 35 states—and enjoying support from both Democrats and Republicans. They don’t evoke the same visceral reaction as more widely opposed restrictions, like forced ultrasound laws—meaning courts might be more sympathetic to upholding them, despite what that might mean for abortion precedent at large.
And anti-abortion advocates might get their way, thanks to Roberts’ concurrence last year in June Medical Services, in which he said that Casey doesn’t require a balancing test. The fate of abortion access hangs in the balance.
It’s important to stress that parental involvement laws like the one at stake in Box—like all abortion restrictions—are in and of themselves an undue burden.
Typically, parental involvement laws require that a young person either notify or obtain consent from a parent before having an abortion. In 1979, however, the Supreme Court ruled in Bellotti v. Baird that in order for parental involvement laws to be constitutional, they needed to include some kind of loophole: a way for young people to obtain an abortion without going to a parent in order to avoid giving veto power over someone else’s abortion decision to any single person.
Thus the judicial bypass process was born: a court hearing where a minor argues they are mature enough to make an abortion decision without involving a parent. The judge also has the option, if they find the minor is not mature enough, to allow the abortion to proceed on the grounds that it’s in the minors’ best interest.
Parental involvement laws already put young people at risk; they force minors to unecessarily engage with their parents or the courts to obtain an abortion. And the proposed expansion of Indiana’s parental involvement law would create another hurdle that will force young people to disclose their abortion decision to their parents—or more likely, to forgo abortions entirely for fear of having to involve a parent. The Seventh Circuit was right to block it.
But courts remain split over whether Whole Woman’s Health and June Medical Services require a balancing test. According to the Seventh Circuit, a balancing of burdens and benefits is required, but the sixth and eighth circuits have both ruled that it’s not required. And while a Fifth Circuit panel has ruled that the balancing test remains valid, we await a ruling from the full Fifth Circuit.
So what does this all mean? In short: The legal standard abortion advocates have long relied on to protect patients and providers from frivolous and harmful restrictions is in jeopardy, thanks to what is essentially a procedural schism—a circuit split regarding what the balancing test means and whether it is even required. Anti-choice lawmakers are relying on widespread support for seemingly harmless parental involvement laws to sneak through their agenda without appearing too extremist, even though these laws are just as extreme as any abortion restriction. And it’s a stark look into how abortion opponents plan to use abortion restrictions that appear less polarizing, but are nonetheless harmful and unecessary, to gain ground in their fight to restrict access.
A few years ago, this would not be the daunting prospect that it is today. But with a conservative supermajority on the bench—with justices like Amy Coney Barrett, who have been obvious in their disdain for abortion access—cases like these could have devastating effects, opening the doors for a flurry of restrictive abortion laws that would no longer be required to pass a critical and commonsense test.