you judge can't meet me at please the court when a juvenile court rules that a minor is mature enough to decide whether to have an abortion that ruling does not emancipate the child for all purposes her parents retain an interest in her ongoing care guidance and upbringing indiana's abortion notice law advances that profound interest yet because it does not also afford parents the legal or practical right to obstruct the abortion it is not subject to the maturity exemption to parental consent laws furthermore planned parenthood cannot show that this law will inevitably lead to interference with the abortion rights of minors so it cannot otherwise make out a premium forcemeat facial challenge to the statute first with respect to the law to you it's a pleasure bill it here bloody hell that there had to be an exemption for mature minors when we're talking about parental consent because of the maturity of the minor enables the decision be the right to make the decision here we're not talking since requiring parental notification to not allow a bypass for girls who have been deemed mature enough now i have two questions one is is that correct and my second question is would we be splitting from that to an eighth circuit if we were ruled in your favor well first as your first part of the question are we alone i don't think we are i think based on what planned parenthood has said it's brief and then subsequent a conversation i had with mr falk this morning i think utah has continues to have a notice a statute without by passed for mature minors but of course that was addressed in the madison case but not as to what would happen with a mature minor with respect to oklahoma my understanding is that they have a  statute mr falk was telling me about of this morning he can probably inform the court a little bit more about it but my understanding is they have something similar but of course you know that leaves three in and so i dollars that certainly were unusual in this regard now with respect to the  in the four in the sort of fifth circuit a couple of distinctions i would point the court to in the miller case out of the eighth circuit that dealt with a forty eight hour parental notice not a notice like indiana's which merely has to  happen quote unquote before the abortion act the forty eight hour notice i think raises additional questions about the opportunity for the parents to intercede and to obstruct the abortion here that the precise timing and circumstances of the and while it must be either by certified mail or in person can otherwise be controlled by at the minor hand her attorney well certified go ahead and get back well my point was going to be nothing that i think to the extent that there were challenge is really inappropriate because to the extent that there is a possibility as planned parenthood says that parents may yet use this as an opportunity to obstruct the abortion that needs to come out in the application of the statute over time there's a built in process for every minor to have bypass around this notice there's every opportunity to demonstrate to the indiana courts in an expedited way that the notice would cause interference now of course the indiana law contain canelo exemption for girl found to make sure enough to make the decision on or around and so applies if this law would be unconstitutional well i don't think there's any getting around that and that's why i think much of the the debate here really is over whether bill oddie applies down here are also raised the fifth circuit decision and i wanted to point out there are a couple of ways that that at least the louisiana statute invalidated there is different first of all with respect to what should happen to a minor who is deemed mature enough to have an abortion there was a problem because it the discretion was still with the judge over whether it was a mason actually not a must statute that the judge made permit the abortion to happen and second with respect to notice it wasn't notice of the abortion that was  issue was notice of the way to proceed so it was obviously constructed with an eye towards inviting the parents into the waiver proceedings so that they could give input as to whether waiver was appropriate so i think that there are some distinctions there but i don't want to why does the statute require notification before the court approved abortion is carried out that timing being to facilitate interference with a court approved procedure to which a young woman has a constitutional right because what other purpose could the timing appreciation of that statute possibly have well in short i think to make sure that it gets done now i certainly acknowledge that if they if the legislature had built in a time frame in a more structured timeframe that might suggest more of an intention to create an opportunity for the parents to become directly involved in you no way that could interfere with the abortion but this only says before and i think you that part of the value of saying before the abortion is that it make sure that everybody has it done and that it's all finished before the abortion occurs and there's no question as to whether post abortion enough you know too much time has elapsed or it gets you know pushed down to the to some lower rung on the to do list here it's it's got to happen before the abortion but it doesn't have to happen a set amount of time it can be structured so that the mature child is on the way to the clinic when  the lawyer knocks on the nor i'm sorry when the lawyer knocks on the parent's door introduces herself and says i represent your daughter you've never heard of me which are daughters on the way to give me an abortion clinic there's nothin i'm trying to picture that scene well this is a scene that i don't think anybody ever wants to have to carry out this is a very difficult process no matter how you look at it and i don't think there's any way to get around that is it better to do that or better better to send a certified letter with no  al the certified letter option seems totally impractical if you need to confirm timing right unless it's going to happen days weeks before the before the abortion so really the only practical option is in person  person the boy or the parents probably have never seen says i represent your daughter in this most intimate of decisions and here's the news that sounds downright dangerous under some circumstances well i don't know that it would be dangerous and i think there surely isn't a constitutional line between a personal notification a notification over the telephone i mean this if you really don't think there's any danger there well i don't know that we can assume that i mean i think that's that's where that's the value of having some kind of work around procedure which is built into the statute if there is a danger in a particular circumstance that can be sorted out before that before the juvenile court judge mr fisher well i mean in this in intern in  applying the under the burden standard after casey and after whole woman's health it would be helpful for me if you could identify the problem that this notice requirement is intended to fix right well i think the problem it's intended to fix is the lack of awareness of parents as they bring up their children that their daughter has been through this fraught procedure and i think that that's do you have any evidence of the nature of these problems or benefits that would be gained by this so i think the benefits that we began are fairly transparent i mean parents have a right to know what's happening with their children i mean the the the circumstances that gave rise to the need for the abortion i mean the parents need to be able to address that let's not forget these are not emancipated minors they still married if they become pregnant they can get an abortion without any spouse will notice requirement right and right just ups and downs are not parents and i think that there's a distinction there and that's why the emancipation is so critical now but you can't i'd like to follow up on that and that and that dangerous thought because judge barker accepted the research an expert opinion that demonstrated that only about ha commissioner produced any evidence to the contrary you see it seems to me that if ninety six percent of these girls which the statistics seem to bear out are getting parental consent we are addressing the family situations where teens are most at risk for abuse someone some lawyer coming and knocking at  out in the bypass procedure now for sure let me ask you to describe the family dynamics where in your case where consent should be excused  notice should not oh i don't even as far as best interests go well i'm this is my related question in essence there's i'm not entirely clear on what the state's position is as to the significance of the silence about maturity as an exception for notice well whether that's deliberate or whether you're saying we should just fold it all into best interests well i think look i think maturity is a valid consideration in a best interesting where i don't think it is on its own necessarily sufficient i think a juvenile court judge considering all the circumstances could weigh maturity and decide that that is enough now i think plan parents position is there has to be a guarantee that maturity is sufficient and i think that's where we differ we don't think there has to be any kind of guarantee of that so so but describe for me the family dynamics that would convince a judge this young woman needs to be able to have an abortion without having her parents make this decision without them consenting but it's important that they know about this well i think if you know you have a situation where i'm still trying to  me asking you to describe the family dynamics right for the cases that this law seems to control yeah that is no consent is required but notice is required yeah well look i'm not experts on family dynamics i'm sure would have any number of scenarios for that but i think my response is perhaps there's a situation where there is a parent or someone else in the picture that you know could interfere if it's a consent issue and  and reasonably interfering and there's otherwise you know all the circumstances point towards the abortion being the best interest but there's a parent that still in the picture that cares for this child and needs to know about it even if consensus not required it look family dynamics  you can imagine what they are in advance that's the point of having the bypass procedure so the juvenile court judges can take that into account can i ask you also to address how the statute applies in the context of children in foster care i don't know that girls in foster care wind up experiencing much much higher rates of teen pregnancy and it seems that this process could be much more daunting  in foster care even than for a child trying to deal with with difficult parents or avoid difficult parents on this so with the child in foster care who would get this notice  if i'd like to ask you one more question if i could at this point and if you want to defer the answer i certainly appreciate it but i think you and i may have already agreed or i agreed with something you say it signaled earlier that i understood to be that this can already be a pretty daunting process for a girl who's facing an unexpected pregnancy and one of my questions is whether it's fair to really hold woman's health as saying that when we evaluate  benefits and burdens on the undue burden standard it's that those that state imposed obstacles to exercising the right to have an abortion have to be evaluated in terms of their cumulative effects and not just in isolation well i think if you're going to evaluate in terms of cumulative effects you actually have to have evidence of that and that's what we don't have here and that's why the as applied challenge week or an operational challenge if you will could may please the court taking off on the last question whole woman's health does require us to focus on evidence and there is evidence here the evidence establishes that parents if they're given notice may attempt and some do block the abortion even a mature minor the evidence discloses that even if parents do not physically obstruct the attempt to obtain an abortion by the young women notice will lead to abuse both physical and emotional the evidence indicates that the sexuality of the young woman which obviously is brought to the forefront by the abortion is a trigger for abuse the evidence establishes that young women will be cast out of their homes  parents when they find out and they will suffer other injuries why isn't it sufficient to leave that to the individual judge in the individual case dealing with evidence about this particular family or foster intuition honor this is a daunting process and the evidence discloses that particularly with young women who are pew's they simply in most situations are not going to be capable of articulating that abuse before a perfect stranger dr pinto indicated that was something that often had to come out through like the therapy certainly is not going to be volunteered the young women simply won't be able to do it and as a result the evidence here and again i am focusing evidence because we do have evidence is that the consequence of all this is that young women will not even attempt to try to obtain a bypass as the indiana bypass coordinator noted notice is a deal breaker it is the determine to factor for young women to know that at least up to july first of last year the people who were trying to assist them in the bypass could tell them look no matter what happens when or lose your parents are going to find out that was the necessary reassurance so they could go through and this is not unique the supreme court in casey recognize that the spousal notification provision there was unconstitutional not just because it might lead to spouses abusing their  wives seeking abortions but because the deterrent effect would force the women not to even try and again this court itself in pierson stated that it was not a specula to assume that even mature young women would not attempt an attempt to try and obtain a bypass if there was a risk that there would be notice to the parent and this court said in that situation a notice statute has the same deterrent effect as a consent statute as a religion plenty it does go well one of i was i was pausing because one i think one of the lawyers who assisted indiana women in bypasses attested in her declaration that frequently the religious objections of the parents are so strong that the young women are terrified that they might find out that they're both pregnant and seeking abortion so i that's one of the dynamics there and the problem of course is if we just well they may not be terrified but it cou use a different word but you can also use terror for this book i was speaking from the young woman's for c s i understand and i think that's that explains exactly why we can't wait for the juvenile court or sort this all out because number one most of the cases one ever get to the juvenile whore because the young women will not come forward and number two if they do the idea of best presenting a best interest case is so much more daunting than immaturity case if you're a seventeen year old you're in the years office and then the lawyer brings out that you have a job you have plans you have this the lawyer can pretty confidently say to young woman the court's going to find you're mature but when you're talking about best interests if you have to talk about family dynamics if the young woman is unwilling and unable to volunteer that anything could go and that is why i think that that both the fifth circuit and cause when the a circuit in miller recognize as did this court in pierson that notice can in fact lead to a veto and that is why there has to be a bypass for mature young women and that is the rule in the large majority of states i did discover  yesterday that was what was to fisher was alluding to that perhaps oklahoma has a notice statute i will have to notify the court of that when i finish that research but certainly indiana is an outlier and indiana's i should say indiana's procedure is really  because i don't think there's any other state that has a procedure that has in effect two proceedings in one so you have the court first deciding bypass and then the court switches to notice and one of the problems with that your honour's let's say the court says you get the bypass but do lawyer or you to give notice the lawyers off the case the young woman then says for whatever reason i'm too scared to go through it i'm not going to do it and there's no way of stopping the notice notice is going to be issued even if even in that situation if the young woman decides not to proceed with the abortion because no lawyer is going to disobey the core of this court order saying you have to give the notice and this court and pearson stress that allows for parent you know notification even if the bypass is not approved i mean if the notice is to be provided by the minors lawyer isn't it really unlikely that the lawyer will notify the parents when you know what fortune will occur i don't think it's unlikely at all the lawyer will notify the parents and situation where after the court hearing the young woman on her own decides that she's just too scared to go through with the proceedings because at that point the lawyer would have already had an order say you have to give the notice and any lawyer that i know of is going to obey that court order but more importantly you have the mature young woman in a situation where the supreme court has stressed in body in akron and other cases that a mature young woman must be able to obtain an abortion without interference amounting to obstruction by her parents and that's exactly what this statute allows and  requires post procedure medical care the parents must consent under indiana law doesn't that provide a parent with the need to know that the daughter has had an abortion and if not why and why not mr falk your honor i think the decision the problem is with the timing of the notice designed to be occur before the abortion that the notice will in effect allow for a veto the court was quite clear and bloddy quite clear in danforth that is something that cannot occur  subsequent any subsequent problems if there are problems can be dealt with in the same way as they could in or in a regular bypass issue ation where the abortion has occurred there's no evidence as to how the statute were acquired notification only and care the court approved abortion had been completed how would your argument change in other words if the ability for interference with the exercise of rights were written that is how does actually change the calculus here well at that point the state's interest would be more aligned with the way the statute reads we would still have to deal and i don't know what the evidence would show but we would still have to deal with the deterrent factor the fact that young some young women because of the risk of abuse may nevertheless be deterred from even attempting to obtain the abortion we obviously would not have to deal with parents who are actually obstructing the abortion but we still have to consider the risk of abuse and deterrence because of that risk but i think the state would as i said be much more aligned with its rationale having a statute like that because now what the statute guarantees is an opportunity to obstruct could i just a couple of things mr falk is it and i am reading correctly from the record here that second trimester abortions are no longer available in the state of indiana second trimester abortions are not available from abortion clinics oh believe there are situations and they're very rare right where in hospitalization can occur i don't get it that some hospitals still do performer and i think if they're if there are serious health problems i believe that's correct your honor but that is not something that clinics planned parenthood does ok and if i got those numbers about right we're talking about ten to twelve a year in the state of indiana or that that is the number that the abortion court gaiter from planned parenthood there are  at the current time i believe two other clinics operating in apple if it's probably a few more but is is a small number and as the court someone noted i polish ninety six percent i believe of all abortions are done with parental knowledge and consent and do we know out of the bypass we know that the state is prohibited from consenting in the case of children who are now what's called state that's great by statute  as i said your honor this this is an evidence based determination and the evidence demonstrates that the notice provision that allows even mature minors to be notified or have their parents be notified will impose a substantial obstacle the statute is unconstitutional and the district court must be affirmed thank you would not be in communication after the hearing about all of this i don't i don't understand that and certainly to the extent that the juvenile court judge would depart from that i don't mean a statute that could be appealed expeditiously now with respect to about the potential for interference which you know then we get back to the idea do we do we have to prove or does play a part of have to prove something about what's going to happen in that scenario and burden from a woman's choice clearly is on planned parenthood you cannot just assume that the worst case scenario is going to play out in advance you have to give the statute the time an opportunity to go into effect and then measure the impact mr falk was on the one hand suggesting that  you know the hypotheticals that he was responding to were not really sufficient to gain insight here and when in fact all the evidence that they provide is hypotheticals it is hypothesis about what these social scientists and lawyers thin happened based on what their experiences have been in the past we don't have the experience under the statute to know how everyone is going to react and it's unfair and certainly in contravention of a woman's choice to base a constitutional germination based on assumptions about what seems likely to happen in the future it was already evidence about the extent it was so she evidence about how often  abortion is a medical procedure involving abortions was accompanied by some outside medical problem nothing in the record i'm aware of your honor but certainly you know the potential for unrelated medical problems all related but but but but other medical problems going forward you does arise the parents have this ongoing rigged interest an obligation in caring for their children well that of medical level on a psychological and emotional level and in terms of a personal conduct