The Seventh Circuit ruled last week in Planned Parenthood of Indiana and Kentucky v. Marion County Prosecutor. The Indiana statute at issue, Indiana Code § 16-34-2-4.7, required that providers report “any adverse physical or psychological condition arising from the induction or performance of an abortion” to the state. The appeal considered whether this statute was unconstitutionally vague on its face. The District Court had agreed with the challengers and reasoned:
that there was constitutionally intolerable overlap between “normal” side effects of abortions and “complications” that would trigger the reporting requirement. As a result, the Statute “fail[ed] to inform [Plaintiffs of] what conduct is prohibited.” The district court was concerned that physicians would “run the risk of being found … to be out of compliance with their statutory responsibilities” (and thereby risking time in prison and their medical licenses) for failing to report “every ‘adverse physical or psychological condition’ for which patients seek treatment as a reportable condition, no matter how routine, minor, and expected.” The district court found the Complications Statute’s illustrative list of conditions to be “so broad or vague that they do not remedy the uncertainty of the general definition of ‘abortion complication.’
The Seventh Circuit vacated the District Court's permanent injunction concluding that the statute has some ambiguity but “Planned Parenthood has not shown that the law is unconstitutionally vague on its face in this pre-enforcement challenge.” The Seventh Circuit reasoned (internal citations removed):
Here, we cannot conclude that the Complications Statute has no discernable core. Although Planned Parenthood contests the frequency and seriousness of abortion-related complications, Planned Parenthood’s response brief acknowledges that “[t]here are potential complications from the performance of medication and surgical abortion.” Planned Parenthood maintains that several of the complications listed in the Complications Statute are “not abortion-specific complications and almost never occur as a result of abortions,” but the brief stops short of stating that these complications are impossible.
The complications that a reasonable doctor would find to have arisen from an abortion constitute a core of the Complications Statute. Although these complications may be rare, an individual of ordinary intelligence would understand that there may be complications that arise from an abortion (as is the case with any medical procedure). And when one such rare complication occurs, the physician must report it if she believes in her reasoned medical judgment that the complication arose from an abortion. This “core” of the Complications Statute satisfies the void-for-vagueness test: It is understandable by persons of ordinary intelligence and not subject to arbitrary enforcement.
As a result, although we appreciate the dissent’s concerns about the ambiguity of this Statute, the Statute must survive Planned Parenthood’s pre-enforcement, facial attack. * * * Though an as-applied vagueness challenge to the Statute may have a different outcome, this challenge to the Statute fails because it is a facial challenge to a statute with a discernable core.