### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-2428

P LANNED P ARENTHOOD OF I NDIANA AND K ENTUCKY , I NC ., Plaintiff-Appellee

,

v.

J EROME M. A DAMS , Commissioner, Indiana State Department of Health, et al.

, Defendants-Appellants

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17-CV-01636-SEB-DML — Sarah Evans Barker

, Judge

.

____________________

A RGUED J ANUARY 5, 2018

— D ECIDED A UGUST 27, 2019

____________________

Before K ANNE , R OVNER, and H AMILTON , Circuit Judges

. H AMILTON , Circuit Judge . Consistent with Bello tt i v. Baird

, 443 U.S. 622 (1979), Indiana statutes have long provided a fast and con fi dential judicial bypass procedure that is supposed to allow a small fraction of pregnant, unemancipated minors seeking abortions to obtain them without the consent of or notice to their parents, guardians , or custodians. In 2017, Indiana added a parental noti fi cation requirement to the judicial2 No. 17-2428

bypass statute. Before the law took e ff ect, plainti ffPlanned Parenthood of Indiana and Kentucky, Inc. sued to enjoin its enforcement. In a careful opinion, the district court issued a preliminary injunction against enforcement of the new law’s notice requirements. Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner , 258 F. Supp. 3d 929, 956 (S.D. Ind. 2017). The defendant state o ffi cials have appealed a portion of the preliminary injunction. In light of the lopsided factual record, the deferential standard of revi ew, and the preliminary status of the fi ndings of fact and conclusions of law, we a ffi rm.

I. Legislative ChangesAs a general rule, Indiana prohibits physicians from performing abortions for unemancipated minors without the wri tt en consent of the minor’s parent, legal guardian, or custodian. Ind. Code § 16-34-2-4( a). The law provides an exception, however, so that a minor who objects to the consent requirement or whose parent, guar dian, or custodian refuses toconsent may petition a juvenile court for a waiver of the consent requirement. Ind. Code § 16-34-2-4(b). Known as a judicial bypass, this procedure permits the minor to obtain an abortion without parental consent if the court fi nds either thatshe is mature enough to make the abortion decision independently or that an abortion is in her best interests. Ind. Code § 16-34-2-4(e). Bello tt i requires this exception as a ma tt er offederal constitutional law. 443 U.S. at 643–44 (opinion of Powell, J.); accord, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 899 (1992). Bypass is supposed to be fast and con fi dential. Bello tt i , 443 U.S. at 644 (bypass proceeding and any appeals must “be co mpleted with anonymity and

su ffi cient expedition to provide an e ff ective opportunity for an abortion to be obtained”).No. 17-2428 3

In 2017, the Indiana General A ssembly enacted Public Law 173-2017, also known as Senate Enrolled Act 404, which amended the parental consent and judicial bypass statutes in several ways. This appeal focu ses on one new requirement for the judicial bypass process. Even if a judge concludes that aparent need not consent to the abortion, either because the unemancipated minor is mature enough to make her own decision or because the abortion is in her best interests, and even though the bypass process is supposed to be con fi dential per Bello tt i , parents still must be given prior notice of the planned abortion unless the judge also fi nds such notice is not in the minor’s “best interests.” Ind. Code § 16-34-2-4(d). The young woman’s a tt orney “shall serve the notice required by this subsection by certi fi ed mail or by personal service.” Id. A bypass court “shall waive the requirement of parental noti fi cation under subsection (d) if the court fi nds that obtaining an abortion without parental noti fi cation is in the best interests of the unemancipated pregnant minor.” Ind. Code § 16-34-2-4(e). That di ff erence in language is important. Unlike the judicial bypass of the parental consent requir ement, which may be based on either maturity or best interests, judicial bypass of notice may be based only on “best interests.” 1

1 These changes make Indiana something of an outlier. Only two states, Oklahoma and Utah, have parental notice statutes that appear to be more restrictive by not including any form of judicial bypass. See Okla.Stat. Ann. tit. 63, §§ 1-744 to 1-744.6; Utah Code Ann. § 76-7-304. The Supreme Court upheld the Utah statute, but its decision does not control here because that plaintiff “made no claim or showing as to her maturity or as to her relations with her parents.” H.L. v. Matheson , 450 U.S. 398, 407 (1981); see also id . at 415–16 (Powell, J., concurring) (explaining that lack of detail about individual plaintiff’s situation had been deliberate choice consistent with seeking broad judicial remedy).4 No. 17-2428

Out of the usual sequence for a judicial opinion, we address here one interpretive issu e about the new notice requirement. We disagree with Planned Parenthood’s argument that the statute permits notice to p arents even if the bypass court refuses to allow the pregnant minor to proceed without her parents’ consent. The statute requ ires notice to parents after a bypass hearing but “before the ab ortion is performed,” Ind. Code § 16-34-2-4(d). We agree wi th the State that the requirement to serve notice is triggered only if the judge authorizes an abortion. See Zbaraz v. Madigan , 572 F.3d 370, 383 (7th Cir. 2009) (“Where fairly possible, courts should construe a statute to avoid a danger of unco nstitutionality.”), quoting Ohio v. Akron Center for Reproductive Health , 497 U.S. 502, 514 (1990). Bypass proceedings and appeals are sealed. Ind. Code § 16- 34-2-4(h). The new statute does not provide a legal mechanism that would allow a judge to order notice to parents of a minor’s unsuccessful a tt empt to seek bypass. 2 In addition to the notice requirement, Public Law 173-2017 changed the consent and judici al bypass statutes in other ways. Indiana already required parents to show their consentin writing, but the new law raised that requirement. It required a physician performing an abortion for a minor not only to obtain wri tt en parental consent but also to obtain

2 The new, challenged Indiana notice requirement opens the door, however, for the minor’s parents to choose to disclose her pregnancy, her abortion, and/or the judicial bypass process to anyone they like and for any purpose they like. Cf. Planned Parenthood v. Casey , 505 U.S. at 893 (noting that many women who feared notifying their spouses of planned abortions may fear “devastating forms of psychological abuse,” including “the withdrawal of financial support, or the disclosure of the abortion to family and friends,” which “may act as even more of a deterrent to notification than the possibility of physical violence”).No. 17-2428 5

government-issued proof of identi fi cation from the consenting parent, as well as “some evidence, which may include identi fi cation or other wri tt en documentation that provides an articulable basis for a reasonably prudent person to believe that the person is the parent or legal guardian or custodian of the unemancipated pregnant minor.” Ind. Code § 16-34-2- 4(a)(3). The new law also required a physician who obtains parental consent to execute and save an a ffi davit certifying that “a reasonable person un der similar circumstances would rely on the information provid ed by the unemancipated pregnant minor and the unemancipated pregnant minor’s parent or legal guardian or custodian as su ffi cient evidence of identity and relationship.” Ind. Code § 16-34-2-4(k)(2). The new law also added a section imposing civil liability on anyone who “knowingly or intentionally aid[s] or assist[s] an unemancipated pregnant minor in obtaining an abortion without the consent required” by the consent statute. Ind. Code § 16-34-2-4.2(c). In the distri ct court, the parties agreed that this provision would prohibit Planned Parenthood and its physicians from providing an unemancipated minor information regarding out-of-state abortion services which ostensibly would not require parental consent or notice. Planned Parenthood , 258 F. Supp. 3d at 934. The district court’s preliminary injunction enjoined enforc ement of all of those changes. Id. at 956. In this appeal, Indian a has not challenged those portions of the injunction, so we do not discuss them further.Returning to the disputed new parental notice requirement in the judicial bypass procedure, it is relevant that Indiana law authorizes both crimin al penalties and professionallicensing sanctions against abortion providers and their employees for violating portions of Indiana’s abortion law. E.g.,6 No. 17-2428

Ind. Code § 16-34-2-7(b) (physician who intentionally or knowingly performs abortion in violation of Ind. Code § 16- 34-2-4 commits Class A misdemeanor); Ind. Code § 25-1-9- 4(a)(2)-(3) (Indiana Medical Licensing Board may discipline physicians who commit crimes); 410 Ind. Admin. Code § 26-2-8(b)(2) (abortion facilities, like some Planned Parenthood facilities, are subject to license revocation or discipline for “permi tt ing, aiding, or abe tt ing the commission of any illegal act in an abortion clinic”).

Before the new law took e ff ect, Planned Parenthood brought this lawsuit against several defendants in their o ffi

cial capacities: the Commissioner of the Indiana State Department of Health, the prosecutors of Marion, Lake, Monroe, and Tippecanoe Counties, the members of the Indiana Medical Licensing Board, and the judge of the Juvenile Division of the Marion Superior Court (collectively, the “State”). The State appeals the portion of the pre liminary injunction against the new parental notice requirement.

II. The Evidence and Likely E ff

ects In support of its motion for preliminary injunction, Planned Parenthood submi tt ed a ffi davits from seven witnesses to show the likely e ff ects of the statute. The State chose to introduce no evidence in re sponse. The State argued that it was “self-evident” that it had met its burden to justify the law with a legitimate state interest. The State did not challenge the reliability or credibility of Pl anned Parenthood’s evidence. That lopsided factual record indicates that, for the small group of minors a ff ected by this law, requiring parental notice is likely a “deal breaker” for a signi fi cant fraction. Smith Decl. ¶ 20. Our summary of the evidence draws heavily from Judge Barker’s thorough opinion.No. 17-2428 7

Planned Parenthood is a not-for-pro fi t corporation that operates multiple Indiana health centers. Beeley Decl. ¶ 3.Those centers provide reproductive health services and comprehensive sexuality education to thousands of women and men, including adults and teenagers. Id. Consistent with Indiana law, Planned Parenthood physicians provide abortions to minors at the four Planned Parenthood facilities in Indiana that o ff er abortion services. Beeley Decl. ¶¶ 4–5, 8. The vast majority of these minors obtain consent from their parents, guardians, or custodians. In fi scal year 2015 (the most recent data in the record), over 96 percent had obtained consent; fewer than four percent had obta ined a judicial bypass. BeeleyDecl. ¶¶ 9, 19. That amounts on average to about ten judicialbypass abortions per year by Planned Parenthood. See Smith Decl. ¶ 9.

Planned Parenthood counsels minors to discuss their desire for an abortion with a parent. Beeley Decl. ¶ 20. Some minors tell Planned Parenthood sta ff that they do not want to, or feel they cannot, inform their parents that they are pregnant and wish to obtain an abortion. Id ., ¶¶ 20–21. In that case, Planned Parenthood gives the minor the telephone number of the bypass coordinator—a person who does not work for Planned Parenthood and who maintains a list of a tt orneyswho can represent a young woman in a judicial bypass proceeding. Beeley Decl. ¶ 24; Smith Decl. ¶¶ 5- 6. Planned Parenthood does not sponsor the bypass coordinator’s e ff orts. Smith Decl. ¶ 6.Over a six-year period, between October 2011 and September 2017, approximately 60 minors contacted Indiana’s bypass coordinator. Smith Decl. ¶ 9. Most were seventeen years old. Id . Usually, the young women interested in pursuing8 No. 17-2428

judicial bypass have not told th eir parents that they are pregnant and are seeking an abortion. Id ., ¶ 14. These young women have expressed various reasons for not telling their parents. Some fear being kicked out of their homes. Others fear being abused or punished, or fear that their parents will try to block an abortion. Id ., ¶¶ 15–16; Beeley Decl. ¶ 22; Flood Decl. ¶ 9; Pinto Decl. ¶¶ 14–15; Lucido Decl. ¶¶ 8–12. One young woman was forced to gi ve birth because her mother discovered her pregnancy and bl ocked her ability to have an abortion. Glynn Decl. ¶ 13. Other minors express related concerns like injury to their relationships with their parent s or parental disappointment. Smith Decl. ¶ 17. Some minors do not know where their parents are and have no legal guardian or custodian who could ful fi ll the consent requirement. Beeley Decl. ¶ 23; Lucido Decl. ¶ 13. Consistently, the yo ung women express their fear that their parent(s) will discove r that they are pregnant and seeking an abortion. Smith De cl. ¶ 18; Glynn Decl. ¶ 12; Lucido Decl. ¶¶ 8–13. The bypass coordinator curre ntly informs young women that no one involved in the bypass process will notify their parents that they are pregnant or seeking an abortion. Smith Decl. ¶ 18. As the district co urt found, however, Indiana’s new law makes this assurance impossible. 258 F. Supp. 3d at 936–37. The district court also found that bypasses granted to Planned Parenthood’s patients “have generally been based on the juvenile court’s fi nding that the minor was su ffi cientlymature to make the abortion decision independent of her parents,” as distinct from the minor’s “best interests.” Id . at 936, citing Beeley Decl. ¶ 26; Flood Decl. ¶ 6; Glynn Decl. ¶ 9.No. 17-2428 9

III. The District Court’s Analysis The district court enjoined th e enforcement of the parental noti fi cation requirement. Planned Parenthood , 258 F. Supp. 3d at 956. The court identi fi ed the tension in the case law regarding the standard for a pre-enforc ement facial challenge of an abortion statute, id. at 937–39, and noted that “the severityand character of harm presented by certain abortion restrictions render them vulnerable to pre-enforcement facial challenges.” Id. at 939. Crediting the uncontradicted a ffi davits

o ff ered by Planned Parenthood, th e district court found that “the requirement of providing parental noti fi cation before obtaining an abortion carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction.” Id. The court therefore rejected as “simply incorrect” theState’s argument that Planned Parenthood must wait to challenge the law until it has evidence of the law’s e ff ect after it goes into e ff ect. Id.

On the merits, the district court reviewed the evolution of both Supreme Court and circuit precedent in this challengingarea of the law. 258 F. Supp. 3d at 940–46. Following the command of Planned Parenthood v. Casey in applying the “undue burden” standard, the district court identi fi ed the relevant group of young women as the “group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. at 939, quoting 505 U.S. at 894. The court then described thatgroup as young women who face the possibility of interference, obstruction, or abuse as a result of the parental noti fi cation requirement. The district court entered a preliminary injunction because the notice requirement was likely to “create an undue burden for a su ffi ciently large fraction of mature, abortion-seeking minors in Indiana.” 258 F. Supp. 3d at 939–10 No. 17-2428

40, citing Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016).

IV. Pre-Enforcement Facial Challenge The State argues that the district court erred in issuing the preliminary injunction because a facial challenge requires evidence of a law’s e ff ects, and that evidence can be obtained only by allowing a law to go into e ff ect. The State’s position derives primarily from language in our decision in A Woman’s Choice-East Side Women’s Clinic v. Newman , where we said that “it is an abuse of discretion for a district judge to issue a preenforcement injunction while the e ff ects of the law (and reasons for those e ff ects) are open to debate.” 305 F.3d 684, 693 (7th Cir. 2002). Strictly speaking , this passage was dicta in the opinion, which addressed a pe rmanent injunction after discovery and a full trial, not the earlier preliminary injunction, but it was obviously considered dicta. The State’s position overstates the evidence required for a pre-enforcement facial challenge, as shown by a broader look at cases decided before and after A Woman’s Choice . When we decided A Woman’s Choice , there was a sharper con fl ict in Supreme Court precedent on this question. In United States v. Salerno , the Supreme Court had said broadly that, outside the First Amendment, a law is facially invalid only where “no set of circumstances exists under which the Act would be valid.” 481 U.S. 739, 745 (1987). But Salerno was about the Bail Reform Act. In Casey and in Stenberg v. Carhart , the Court had invalidated two abortion statutes on pre-enforcement facial challenges without even mentioning Salerno . See Casey, 505 U.S. at 845, 895; Stenberg, 530 U.S. 914, 945 (2000).No. 17-2428 11

The State argues that A Woman’s Choice resolved the tension and that “the applicable te st on a pre-enforcement facial challenge to an abortion regu lation is whether the law will incontrovertibly impose an undue burden.” State’s Br. at 12. It is di ffi cult to reconcile this rule ofthumb with the general standard for preliminary injunctions, which requires the district court to exercise its sound eq uitable discretion in balancing several factors. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24 (2008). Also, othe r decisions by this court, both before and after A Woman’s Choice , have recognized that the law on this question has not been as clear-cut as the State argues. See, e.g., Zbaraz v. Madigan , 572 F.3d at 381 n.6 (noting “some disagreement” over applicability of Casey ’s “large fraction” test or Salerno ’s “no set of circumstances” test—because of 2008 Supreme Court decision a ffi rming Salerno ’s applicability outside abortion context—but upholding parental notice requirement with judicial bypass under either standard); Karlin v. Foust , 188 F.3d 446, 483 (7th Cir. 1999) (noting “considerable disagreement” over which standard to apply because Casey “appears to have tempered, if not rejected, Salerno ’s stringent ‘no set of circumst ances’ standard in the abortion context,” but assuming applicability of Casey ’s large fraction test because neither party ap pealed district court’s use of Casey test); see also Planned Parenthood of Wisconsin, Inc. v. Van Hollen , 738 F.3d 786, 788, 789 (7th Cir. 2013) (a ffi rming injunction against requirement that physicians who perform abortions have admi tt ing privileges at nearby hospital). The biggest problem for the State’s argument is that A Woman’s Choice was decided before the Supreme Court decided Whole Woman’s Health v. Hellerstedt , which con fi rmed that the Casey undue burden standard applies to pre-enforcement facial challenges to stat utes regulating abortion. 136 S.12 No. 17-2428

Ct. at 2309–10 (identifying Casey undue burden standard as applicable test); id. at 2314–18 (applying undue burden standard to facial challenge to surgic al center requirement statute); id. at 2320 (identifying denominator for large-fraction test). In Whole Woman’s Health , the plainti ff s brought a pre-enforcement facial challenge to a Texas statute requiring that abortion facilities abide by the same minimum facility standards as ambulatory surgical centers. See id. at 2300; id. at 2301 (noting that petitioners brought suit on April 6, 2014 seeking “an injunction prohibiting enforcemen t of the surgical-center provision anywhere in Texas”). The Supreme Court applied the undue burden standard and reversed the denial of an injunction, without citing Salerno . To support that reversal, the Court relied on pre-enforcement evidence from the district court. E.g., id. at 2317. 3 These applications fi t with the Supreme Court’s recent acknowledgment that facial challenges may “proceed under a diverse array of consti tutional provisions.” City of Los Angeles v. Patel , 135 S. Ct. 2443, 2449 (2015) (collecting cases); see also

3 The briefing in Whole Woman’s Health supports this approach. In its brief, Texas assumed that Casey ’s “large fraction” test applied but argued that the Court should apply Salerno ’s “no set of circumstances” test if the Court addressed the issue. Brief for Respondents at 30 n.10, Whole Woman’s Health , 136 S. Ct. 2292 (No. 15-274), 2016 WL 344496, at *30 n.10.The Court did not address this argument explicitly but rejected it implicitly, following Casey . The dissenting Justices in Whole Woman’s Health also did not invoke Salerno . Another portion of Whole Woman’s Health challenged a requirement that had been allowed to take effect, that physicians have admitting privileges at nearby hospitals. The evidence showed that after the requirement took effect, it led to closure of about half the facilities providing abortions in Texas and imposed an undue burden on women’s right to choose to terminate their pregnancies. 136 S. Ct. at 2312–13.No. 17-2428 13

Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges

, 99 Calif. L. Rev. 915, 918 (2011) (“ Facial challenges also succeed much more frequently than either Supreme Court Justices or most scholarly commentators have recognized.”).

V. Applying the Preliminar y Injunction Standard To obtain a preliminary injunction, a plainti ff must show a reasonable likelihood of succ ess on the merits, the absence of an adequate remedy at law, and a threat of irreparable harm without the injunction. E.g., Planned Parenthood of Indiana, Inc. v. Commissioner, 699 F.3d 962, 972 (7th Cir. 2012). If the plainti ffmakes this showing, the court weighs two additional factors: the balance of harms—harm to the plainti ff if the injunction is erroneously de nied versus harm to the defendant if the injunction is erroneously granted—and the effect of the injunction on the public interest. Id. ; accord, Winter

, 555 U.S. at 24; Abbo tt Laboratories v. Mead Johnson & Co ., 971F.2d 6, 11–12 (7th Cir. 1992). The higher the likelihood of success on the merits, the less decisively the balance of harms needs to tilt in the moving party’s favor.In reviewing a district court’s grant of a preliminary injunction, we review factual fi ndings for clear error, legal conclusions de novo , and balancing of the equitable factors for abuse of discretion. The abuse of discretion standard means that the district court’s weighing of evidence and balancing of the equitable factors receive “substantial deference.” Whitaker v. Kenosha Uni fi ed School Dist. No. 1 Bd. of Educ. , 858 F.3d 1034, 1044 (7th Cir. 2017). That deference is appropriate given the nature of preliminary injuncti on decisions, which must be based on incomplete information and are subject to further consideration and revision after discovery, more evidence, and a trial.14 No. 17-2428

Motions for preliminary injunctions call upon courts to make judgments despite uncertainties. Uncertainty about a law’s application does not necessarily preclude an injunction. We have read Casey as calling for consideration of a law’s

“ likely e ff ect.” E.g., Karlin , 188 F.3d at 481 (emphasis added). Casey itself spoke in terms of po ssibilities in striking down a spousal notice law before it took e ff ect. See, e.g., 505 U.S. at 893 (“ may fear,” “ likely to prevent,” “ will impose”), 895 (“ will operate”) (opinion of the Court) (emphases added).

Our decision in A Woman’s Choice is not inconsistent with this focus. In A Woman’s Choice , the state had not appealed the preliminary injunction that pres erved the status quo while the parties developed a more complete record. See 305 F.3d at 684. The preliminary injunction had been issued despite the district court’s inability “to draw de fi nitive conclusions.” A Woman’s Choice-East Side Women’s Clinic v. Newman , 904 F. Supp. 1434, 1462 (S.D. Ind. 1995) (emphasis in original). And when we decided the appeal from the permanent injunction in that case, we distinguished the record before us from the record in Casey on spousal notice, a record showing a rule “facilitating domestic violence or ev en inviting domestic intimidation.” A Woman’s Choice , 305 F.3d at 692. 4

A. Likelihood of Success on the Merits

We consider fi rst Planned Parenthood’s likelihood of success on the merits, and then turnto the other equitable factors

4 As noted above, our opinion in A Woman’s Choice criticized the unappealed preliminary injunction in th at case, see 305 F.3d at 692–93, but on grounds tied to the pre-enforcement challenge issue discussed above, for which Whole Woman’s Health provides more recent and authoritative guidance from the Supreme Court.No. 17-2428 15

for preliminary injunctive relief. The district court concludedthat Planned Parenthood demonstrated a likelihood of success on the merits because the parental noti fi cation requirement appeared highly likely to impose an undue burden for the minors whom it will a ff ect. We agree with the district court’s analysis, except that we do not need to decide whetherthe Supreme Court’s requirements for parental consent statutes also apply in full to parental notice statutes.

Planned Parenthood demonstrated a likelihood of success on the merits because Indiana’ s notice law creates a substantial risk of a practical veto over a mature yet unemancipated minor’s right to an abortion. This practical veto appears likely to impose an undue burden for the unemancipated minors who seek to obtain an abortion without parental involvementvia the judicial bypass. The burden appears to be undue because the State has made no e ff ort to support with evidence its claimed justi fi cations or to undermine with evidence Planned Parenthood’s showing about the likely e ff ects of the law.

In Whole Woman’s Health , the Supreme Court applied the Casey plurality’s undue burden standard. 136 S. Ct. at 2309–10. The undue burden standard “is a shorthand for the conclusion that a state regulation has the purpose or e ff ect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877 (plurality opinion). In both cases, the Court took a common-sense approach in considering the practical e ff ects of the state regulations. Whole Woman’s Health , 136 S. Ct. at 2317 (“Courts are free to base their fi ndings on commonsense inferences drawn from the evidence.”); Casey, 505 U.S. at 892 (opinion of the Court) (noting that district court’s fi ndings regarding e ff ect of16 No. 17-2428

spousal notice statute and pote ntial for domestic abuse “reinforce what common sense would suggest”).

1. The Relevant Group for Undue Burden Analysis If a statute “will operate as a substantial obstacle” “in a large fraction of the cases in wh ich [it] is relevant,” the statute “is an undue burden and therefore invalid.” Casey, 505 U.S. at 895 (opinion of the Court); accord, Whole Woman’s Health , 136 S. Ct. at 2320. The analysis st arts with those “upon whom thestatute operates”—i.e., “the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Casey

, 505 U.S. at 894 (opinion of the Court). For the spousal notice law struck down in Casey, that was less than one percent ofwomen seeking abortions. This group serves as the denominator for the relevant fraction Casey described. Under Casey, a statute that will have the practical e ff ect of giving someone else a veto over a woman’s abor tion decision is an undue burden. See 505 U.S. at 897 (spous al notice requirement would give husbands of spousal abuse victims “an e ff

ective veto” that “will often be tantamount to th e veto found unconstitutional in Danforth ”) (emphasis added). Casey quali fi ed its holding on spousal notice by saying it was “in no way inconsistent” with the Court’s parental notice and consent requirements for minors. 505 U.S. at 895. But here, as in Casey, evidence ma tt ers. See id. at 887–94 (discussing district court’s fi ndings and studies of domestic violence).Planned Parenthood’s evidence—which the State did not rebut with its own—raises concerns about minors similar to those the Casey Court had about the prac tical veto imposed on some women by spousal notice. Casey shows that a practical veto can be an undue burden, whether that practical veto is held by a partner or a parent of a mature minor.No. 17-2428 17

The Casey analysis focuses on proportions, not total numbers. See Van Hollen , 738 F.3d at 798 (“It is not a ma tt er of the number of women likely to be a ff ected.”). Although the record does not indicate the exac t number of unemancipated minors who will be a ff ected as they go through the judicial bypass, the number appears to be small. In fi scal year 2015, 96 percent of minors who had abor tions at Planned Parenthood facilities in Indiana had their parent or guardian’s consent.Beeley Decl. ¶ 9. Just four percent did not have consent. Between October 2011 and Sept ember 2017, about 60 young women contacted the bypass coordinator, and only some of them obtained an abortion. Smith Decl. ¶ 9. On average, that is about 10 minors per year. 5

In the district court, Planne d Parenthood argued that the denominator for the Casey fraction is unemancipated minors seeking bypasses. These are the young women for whom the law’s restriction is relevant. Cf. Casey, 505 U.S. at 895 (opinion of the Court) (de fi ning denominator as “married women seeking abortions who do not wish to notify their husbandsof their intentions and who do not qualify for one of the statutory exceptions to the notice requirement”). The district court found that the bypasses granted to Planned Parenthood patients “have generally been based on the juvenile court’s fi nding that the minor was su ffi ciently mature.” Planned Parenthood , 258 F. Supp. 3d at 936, citing Beeley Decl. ¶ 26. Accordingly, Planned Parenthood argues that the burdensome

e ff ects of the new parental noti ce requirement produce a large

5 In calendar year 2017, 236 minors obtained abortions in Indiana. Indiana State Department of Health, Terminated Pregnancy Report 2017, at 7, available at https://www.in.gov/i sdh/files/2017%20Indiana%20Terminated%20Pregnancy%20Report.pdf.18 No. 17-2428

Casey fraction because most bypasses have been granted on maturity grounds, which is not a basis for excusing parental notice under the challenged Indiana law. We agree. On this record, though, the correct numerator and denominator may both actually be even larger. Both numbers include not only young women wh o could be deemed mature in a judicial bypass of the consent requirement, but alsoyoung women who are likely to be deterred from even attempting judicial bypass because of the possibility of parental notice. Indiana has aimed this requirement at the tiny group of minors who could show matu rity but could not show that parental notice would not be in their best interests. The evidence in the preliminary injunction record indicates that the statute’s e ff ect will be broader because it will prevent some minors from even seeking bypass in the fi rst place. The fear these minors feel at the prospectof the “chance that their parents will have to be informed th at they are seeking an abortion ... would be a deal breaker.” Smith Decl. ¶ 20.

2. The State’s Interest in the Notice Requirement

Whole Woman’s Health reiterated that Casey “requires that courts consider the burdens a la w imposes on abortion access together with the bene fi ts those laws confer,” and courts must balance these interests. 136 S. Ct. at 2309. Whole Woman’s Health shows that courts must consider actual evidence regarding both claimed bene fi ts and claimed burdens of abortion regulations. Id . at 2309–10. In that case, for example, Texas argued that its admi tt ing-privileges requirement was intended to provide health bene fi ts in cases with complications. The evidence showed, however, that “there was no signi fi cant health-related problem that the new law helped to cure.” Id . at 2311.No. 17-2428 19

In this case, the State has no t yet come forward with evidence showing that there is a problem for the new parentalnotice requirement to solve, let alone that the law would reasonably be expected to solve it. See id. The State has several substantial interests that can be relevant in this context, if there is reason to think they will be advanced by the new law. E.g., Casey, 505 U.S. at 871 (plurality opinion) (“protecting the potentiality of human life,” quoting Roe v. Wade , 410 U.S. 113, 162 (1973)); Casey, 505 U.S. at 872 (plurality opinion) (“expressing a preference for normal childbirth,” quoting Webster v. Reproductive Health Svcs. , 492 U.S. 490, 511 (1989)); Planned Parenthood , 258 F. Supp. 3d at 941 (“protecting children andadolescents, preserving family integrity, and encouraging parental authority”). Against these potential State interests, minors also have constitutional rights that require protection. Planned Parenthood of Central Missouri v. Danforth , 428 U.S. 52, 74 (1976) (“Constitutional rights do not mature and come into being magically only when one a tt ains the state-de fi ned age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”). In the face of evidence of burdensome e ff ects, it is not enough for the State merely to recite its inte rests and to claim the new law will serve those interests or to sa y it is only experimenting.The State’s arguments assume that, in raising their children, parents will ful fi ll the role the Supreme Court has said is constitutional for them to ful fi ll. We can all hope that that is the reality for the vast majority of young women who face an unexpected pregnancy and that th ey will turn to their parents for guidance. But the evidence before the district court here illustrates a di ff erent and “stark social reality,” Ohio v. Akron Center for Reproductive Health , 497 U.S. at 537 (Blackmun, J., dissenting), “that there is ‘another world out there,’” id. at 541,20 No. 17-2428

quoting Beal v. Doe , 432 U.S. 438, 463 (1977) (internal quotation marks omi tt ed). For those pregnant minors a ff ected by this Indiana law, the record indicates that in a substantial fraction of cases, the parental notice requirement will likely have the practical e ff ect of giving parents a veto over the abortion decision. That practical e ff ect is an undue burden because it weighs more heavily in the bala nce than the State’s interests. We agree with the district court that the burden of this law on a young woman considering a judicial bypass is greater than the e ff ect of judicial bypass on her parents’ authority. Planned Parenthood , 258 F. Supp. 3d at 948. Indiana argues that parents need notice because they needto know about the abortion to be able to care for their daughter’s health: “abortion is a facet of medical history that could have implications for future treatment.” State’s Br. at 22. While that rationale sounds reasonable at fi rst, it is not supported by logic or evidence. As a ma tt er of logic, if we assume this knowledge would help parents care for their daughters later, the State’s proposed bene fi t would not depend on giving parents priornotice of an abortion, as the statute requires. Planned Parenthood’s evidence shows a serious risk that prior notice, instead of giving parents an opportunity to o ff er wise counsel, will actually give parents an opportunity to exercise a practical veto, preventing the pregnant minor from actually exercising the constitutional ri ght the juvenile court has allowed her to exercise.

In fact, the State has o ff ered no evidence that any actual bene fi t is likely or that there is a real problem that the notice requirement would reasonably be expected to solve. Whole Woman’s Health shows that myths, speculation, and conventional wisdom are not enough to justify restrictions on theNo. 17-2428 21

right to abortion. 136 S. Ct. at 2311 (“there was no signi fi cant health-related problem that the new law helped to cure”). In applying the undue burden standard, actual evidence is keyin weighing both the extent of burdens and the extent of bene fi ts a State o ff ers to justify them. 136 S. Ct. at 2310, citing Casey, 505 U.S. at 888–94 (discussing evidence showing spousal notice requirement imposed undu e burden on right to terminate pregnancy). In this case, the State o ff ered no evidence to support these proposed bene fi ts, such as how, why, and how often a minor’s past abortion is likely to a ff ect her mental health or her future health-care. 6

6 Without relevant evidence in th e record, our dissenting colleaguecites studies cited in an amicus brief on appeal and in the concurring opinion in McCorvey v. Hill , 385 F.3d 846, 850–51 & n.3 (5th Cir. 2004) (Jones, J., concurring), to assert that a mature minor who has an abortion faces substantial risks to her mental and physical health and would benefit from her parents’ support. Post at 45. Becaus e these studies on this controversial subject are not in the record and have not been subject to adversarial testing in litigation, we do not address them in detail. As a general rule, however, data on physical health indicate that “complications from an abortion are both rare and rarely dangerous.” Planned Parenthood of Wisconsin, Inc. v. Schimel , 806 F.3d 908, 912 (7th Cir. 2015); id . at 913 (noting studies finding “that the rate of complications is below 1 percent”); see also Whole Woman’s Health , 136 S. Ct. at 2311–12 (finding no legitimate state interest in requiring facilities that perform abortions also have hospital admitting privileges because weight of the evid ence revealed extremely low rate of abortion-related complications). Regarding mental health issues, the American Psychological Association undertook a comprehensive review of mental health studies of women who had abortions and found seriousmethodological problems in many published studies finding serious mental health risks. The APA task force found, among other things, that the “best scientific evidence published indicates that among adult women who have an unplanned pregnancy, the relative risk of mental health problems is no greater if they have a single elective first-trimester abortion than if they deliver that pregnancy.” American Psychological Association, Task22 No. 17-2428

3. The Burden Imposed by the Notice Requirement There is of course a formal legal di ff erence between a notice requirement and a consent requirement. The Supreme Court has drawn that distinction on the basis that notice statutes “do not give anyone a veto power over a minor’s abortion decision.” Ohio v. Akron Center , 497 U.S. at 511, citing H. L. v. Matheson , 450 U.S. 398, 411 n.17 (1981). Although a notice requirement is not the formal or legal equivalent of a consent requirement, it is equally clear that a notice requirement can operate as the practical equivalent of a consent requirement. Casey recognized just that possib ility. That was the basis for striking down the spousal noti ce requirement. 505 U.S. at 833, 897 (“spousal notice requirem ent enables the husband to wield an e ff ective veto over his wife’s decision”); see also Planned Parenthood v. Miller , 63 F.3d 1452, 1459 (8th Cir. 1995) (distinguishing between notice providing an “opportunity” and consent providing a “tool ” to obstruct abortion). 7

Force on Mental Health and Abortion at 4 (2008), available at http://www.apa.org/pi/wpo/mental- health-abortion-report.pdf. Nothing we decide today prevents the State from presenting further evidence on such matters to the district court, where both the State’s and Planned Parenthood’s evidence can be tested and challenged without theurgent time pressure of a preliminary injunction proceeding. As the Supreme Court outlined in Whole Woman’s Health , the district court, in “determining the constitutionality of laws regulating abortion procedures,” will “place[] considerable weight upon evidence and argument presented in judicial proceedings,” rather than deferring to a legislative resolution of “questions of medical uncertainty.” 136 S. Ct. at 2310. The district court will then apply “the standard ... laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is ‘undue.’” Id

.

7 This reading of Justice Kennedy’s opinion for the Court in Ohio v. Akron Centeris consistent with Justice Kennedy’s language in anotherNo. 17-2428 23

The preliminary injunction record here shows the serious potential for the kind of harms identi fi ed in Casey . For a signi fi cant fraction of the small number of unemancipated minors seeking an abortion via judicial bypass, Indiana’s notice requirement will likely operate as an undue burden by giving parents a practical veto over the abortion decision. The district court credited the unchallenged testimony of the bypass coordinator and a bypass a tt orney indicating that young women have chosen not to inform their parents of their pregnancy out of fear of abuse. Planned Parenthood , 258 F. Supp. 3d at 946–47, citing Smith Decl. ¶¶ 16–17 and Flood Decl. ¶ 9. The district court also credited unchallenged testimony that pregnancy is a “ fl ashpoint” for abuse. Id. at 946, citing Pinto Decl. ¶¶ 14– 15. This evidence parallels the evidence the Supreme Court accepted in Casey . 505 U.S. at 889 (opinion of the Court), quoting district court’s fi nding of pregnancy as a “ fl ashpoint for ba tt ering and violence within the family,” and at 893 (crediting fear of “threats of future violence”). The district court found here that fear of abuse may “prompt pregnant minors to engage in hazardous self-help measures such as a tt emptingto physically and/or chemically induce miscarriage or to entertain thoughts of suicide.” Planned Parenthood , 258 F. Supp. 3d at 947, citing Pinto Decl. ¶ 16 (one patient a tt empted to induce miscarriage by convincing boyfriend to stomp on her

opinion issued the same day. See Hodgson v. Minnesota , 497 U.S. 417, 496 (1990) (Kennedy, J., dissenting in part) (“Unlike parental consent laws, a law requiring parental notice does not give any third party the legal right to make the minor’s decision for her, or to prevent her from obtaining an abortion should she choose to have one performed.”) (e mphasis added).24 No. 17-2428

stomach and push her down stairs; another patient a tt empted to induce miscarriage by drinking poison).

The district court also found that notice to parents could result in actual obstruction of the abortion itself, in addition to indirect obstruction via withdrawal of fi nancial support. 258 F. Supp. 3d at 946. In Casey, the Supreme Court credited similar fears of women who were afraid of notifying their husbands of a pregnancy. 505 U.S. at 893 (discussing fear of “psychological abuse,” including “verbal harassment, threats of future violence, the destruction of possessions, physical

con fi nement to the home, the withdrawal of fi nancial support, or the disclosure of the abortionto family and friends”). The district court found here that Casey ’s concerns are “heightened with regard to uneman cipated minors, who typically must rely on their parents ... for fi nancial support, housing, and transportation in addition to the many legal incapacities for which the parents must serve as proxy.” 258 F. Supp. 3d at 946. For young women who have these fears, the potential forparental notice is a threat that may deter them from even attempting bypass in the fi rst place. Id. at 947, citing Pinto Decl. ¶ 28; see also Smith Decl., ¶ 20; Glynn Decl., ¶ 17; Flood Decl., ¶ 13. For some, as noted, it is a “deal breaker.” Smith Decl. ¶ 20. We have recognized a similar deterrent e ff ect before. Indiana Planned Parenthood A ffi liates Ass’n v. Pearson, 716 F.2d 1127, 1141 (7th Cir. 1983) (“It is hardly speculative to imagine that even some mature minors will be deterred from going to court if they know that their parents will be noti fi ed if their petitions are denied, because no minor can be certain that the court will rule in her favor.”). This record gives evidentiary weight to the possibilities we identi fi ed as concerns aboutNo. 17-2428 25

mandatory notice even before Bello tt i was decided. See Wynn v. Carey, 582 F.2d 1375, 1388 n.24 (7th Cir. 1978). We must also recognize that any particular obstacle to exercising the right to choose to end a pregnancy does not exist in a vacuum. See Whole Woman’s Health , 136 S. Ct. at 2313. Cumulative e ff ects are relevant, especially in an environment in which very few clinics and physicians perform abortions inIndiana. The deterrence shown in this record must be understood in the larger context of th e logistical puzzle that the Indiana bypass statute already requires minors to solve. A teenager who suspects sh e is pregnant but who has good reasons to fear telling her parents must fi gure out where to go to determine whether she is pregnant, how to get there (without missing school or work and without alerting her family), and how to pay for whatever that initial visit costs. If she visits a Planned Parenthood clinic, she might fi nd out about the possibility of a judicial bypass to obtain an abortion. If she wants to pursue th at route, she must then fi nd her way to a state court, with or without a lawyer, and persuade a judge either that she is mature enough to have an abortion without her parents’ consent or that doing so would be in her “best interests.” Even if she prov es that she is mature enough to have the abortion without her parents’ consent, Indiana’s new law would allow a judge to re quire parental notice unless she proves that an abortion without parental notice would be in her “best interests.” Planned Parenthood’s unchallengedevidence shows that the existence of that additional requirement is likely to cause a signi fi cant fraction of a ff ected young women to be too afraid to even try to seek an abortion.

None of the district court’s fi ndings are clearly erroneous. The State’s position that the p arental notice requirement does26 No. 17-2428

not a ff ord parents a legal orpractical right to obstruct the abortion stretches too far. Notice is not the legal equivalent of consent, but a notice requirement can have the same practical

e ff ect as a consent requirement, as Casey reasoned in striking down a spousal notice requirement. 505 U.S. at 896–98; see also Indiana Planned Parenthood A ffi liates v. Pearson , 716 F.2d at 1132. The district court credited Planned Parenthood’s evidence showing that Indiana’s law has the serious potential to create that practical e ff ect by triggering parental obstruction, triggering hazardous self-help, and deterring some minors from even a tt empting bypass. The preliminary injunctionhere was appropriate because, taken individually or collectively, those possibilities demonstrate serious potential for an undue burden. The undue burdenanalysis can include cumulative e ff ects. See Whole Woman’s Health , 136 S. Ct. at 2313 (describing increased driving distances as “one additional burden ... taken together with others”). In applying the undue burden test, we must also address two other oddities of the notice requirement. First, the State acknowledges that a 48-hour parental notice requirement, like the one the Eighth Circuit addressed in Miller , 63 F.3d at 1458, “raises additional questions about the opportunity for the parents to intercede and to ob struct the abortion.” The only timing requirement in Indiana’s st atute is that notice be given “before the abortion is performed.” Ind. Code § 16-34-2-4(d). That is troubling. It leaves the potential for a judge to require notice to be given even longer in advance than in Miller

. The two methods the statute identi fi es for delivering that notice pose similar practical problems. The statute requires that the “a tt orney representing the unemancipated pregnant minor shall serve the notice required by this subsection byNo. 17-2428 27

certi fi ed mail or by personal service.” Id. That puts the minor and her lawyer in a di ffi cult position. The lawyer cannot control the timing of delivery of a le tt er sent by certi fi ed mail. Tocomply with the requirement of actual notice before the abortion is to be performed, the lawyer will have to allow plenty of time for the le tt er to be delivered and received, and for the proof of receipt to be returned. As a practical ma tt er, that islikely to require a planned delay of at least a week and perhaps longer. Abortions in Indiana require advance scheduling to comply with the State’s in formed-consent and cooling-o ff rules. See Ind. Code § 16-34-2-1.1(a). The only alternative is personal notice to the parents, by the lawyer. Picture the scene: a stranger knocks at the door and announces to the young woman’s parents that their daughter is pregnant and is seeking an abortion, that a judge has authorized the abortion, an d that it will occur soon. The potential for serious trouble is self-evident, for the lawyer and for the pregnant minor and her constitutional rights. And allof this after a judge has already been convinced to bypass parental consent.The district court’s recognition of the likely practical consequences of this law is consistent with Casey

. Casey distinguished its holding as to married women from the line ofcases addressing parental notice or consent requirements because those cases “are based on the quite reasonable assumption that minors will bene fi t from consultation with their parents and that children will often not realize that their parents have their best interests at he art.” 505 U.S. at 895 (opinion of the Court). Just as the Casey court did not have to adopt that same assumption for married women, the district court was not required to adopt it in the face of this record with28 No. 17-2428

unchallenged evidence showing that the same assumption is too optimistic in a substantial f raction of relevant cases. Afterall, in this case, that assumption was directly refuted by evidence for purposes of the preliminary injunction.The State argues that the notice requirement creates no additional risk for young women who fear parental notice. According to the State, these minors are “in no worse position than if [they] had not a tt empted bypass” because a young woman who initiates the bypass process but fails to convincea court to waive notice can make notice unnecessary by deciding not to have an abortion. The argument illustrates the potential for irreparable harm. A minor who obtains a bypass of parental consent, only to be fo rced to choose between parental notice and not having the aborti on, will still have to weigh the consequences of notice. As the di strict court found, minors forwhom the potential consequences include, for example, contemplating suicide or self-inducing a miscarriage, Planned Parenthood , 258 F. Supp. 3d at 947, citing Pinto Decl. ¶ 16, would not be in the same positi on as if they had never attempted bypass. They would be worse o ff

. Further, the State’s brief ackn owledges that at least one purpose of the notice requirement is to inhibit the e ff ectiveness of the judicial bypass process itself. While the State asserts some interests that could be legitimate, at least in theory, one of the interests pro ff ered is to “ensure that parents of minor[s] are noti fi ed of their abortions and provides safeguards for the parent-child relationship by preventing circumvention of the consent requirement .” State’s Br. at 27 (emphasis added).The very purpose of the constitutionally required judicial bypass is to “circumvent” the consent requirement in appropriate cases. If the State had presented evidence that the judicialNo. 17-2428 29

bypass procedure is being abused in some systematic way, we might see this di ff erently. But without such evidence, the argument acknowledges that the new notice requirement is designed to impose a new burden on a minor exercising her constitutional right to seek a judicial bypass and thus to be able to make her own decision about her own pregnancy. Cf. Casey, 505 U.S. at 877 (plurality opinion) (regulation with “purpose or e ff ect” of creating substantial obstacle to abortion decision is unduly burdensome).

Like the district court, we reject the State’s and the dissent’s argument that a bypass court can avoid any undue burden by simply considering the potential for abuse as part of the best-interests determination. The district court found that the trauma of even a tt empting to prove abuse would deter young women from pursuing bypass. Planned Parenthood , 258 F. Supp. 3d at 947. That fi nding is well-supported. It is not clearly erroneous. Indeed, the fi nding parallels the district court’s fi nding in Casey that the Supreme Court credited. See Casey, 505 U.S. at 890 (opinion of the Court) (abused wives “may be psychologically unable to discuss or report the rape for several years after the incident”). Because we decide this appeal based only on an application of Casey ’s undue burden standard , we need not and do not decide whether Bello tt i applies to all parental notice requirements. The context of a preliminary injunction enjoiningthe enforcement of this statute on a limited factual record necessarily narrows our holding. The Supreme Court has announced clear bypass requirements for parental consent requirements. Bello tt i v. Baird , 443 U.S. at 643–44 (opinion of Powell, J.) (requiring bypass based either on maturity or best interests). The open question is whether those requirements30 No. 17-2428

also apply to parental notice requirements. The district court decided that the standards for parental consent requirements apply equally to parental notice requirements. Planned Parenthood , 258 F. Supp. 3d at 945–46. The State acknowledges that, if Bello tt i applies to notice statutes, then the Indiana lawis unconstitutional because it does not allow a bypass of notice based on maturity. Beca use the Supreme Court has expressly declined to decide whether Bello tt i applies to parental notice statutes, we decline to decide this appeal on this ground. Instead, we a ffi rm the preliminary injunction based on Planned Parenthood’s evidence of likely e ff ects, which Indiana did not rebut in the district court with evidence of its

own. As the district court noted, we applied Bello tt i to parental notice requirements in the 1980s. Zbaraz v. Hartigan , 763 F.2d 1532, 1539 (7th Cir. 1985) (“This standard [i.e., maturity andbest interests-based bypass] also governs provisions requiring parental noti fi cation.”), citing Bello tt i , 443 U.S. at 651 (opinion of Powell, J.), and Indiana Planned Parenthood A ffi liates Ass’n v. Pearson , 716 F.2d 1127, 1132 (7th Cir. 1983). But since then, the Supreme Court has said that it has not decided whether Bello tt i applies to parental notice statutes. E.g., Lambert v. Wicklund , 520 U.S. 292, 295 (1997) (per curiam) (reversing Ninth Circuit’s invalidation ofparental notice statute as inconsistent with Bello tt i because the Court “declined to decide whether a parental noti fi cation statute must include some sort of bypass provision to be constitutional.”), citing Akron Center, 497 U.S. 502, 510 (1990) (expressly leaving question open). We have noted this evolution before. Zbaraz v. Madigan , 572 F.3d at 380 & n.5 (declining to decideNo. 17-2428 31

applicability of Bello tt i because parental notice statute satisfi ed Bello tt i consent requirements). 8 The district court acknowledged that the question whether Bello tt i ’s requirements for parent al consent statutes apply

8 H.L. v. Matheson does not save this Indiana statute. The Court upheldUtah’s parental notice requirement with no bypass at all, but it did so because the plaintiff “made no claim or sh owing as to her maturity or as to her relations with her parents.” 450 U. S. 406, 407 (1981). The Court said clearly what it was not deciding: “This case does not require us to decidein what circumstances a state must provide alternatives to parental notification.” Id. at 412 n.22. Justice Powell, author of the lead opinion in Bellotti

, joined the H.L. majority opinion “on the understanding that it leaves open the question whether [the statute] unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification.” Id. at 414 (Powell, J., concurring), citing id. at 412 n.22. The majority refused to “assume th at the statute, when challenged in a proper case, will not be construed also to exempt demonstrably mature minors.” Id. at 406 (opinion of the Court). The same assumption cannot be made here. Indiana’s statute permits bypass of the notice requirement based on best interests but not based on maturity. See Ind. Code § 16-34- 2-4(d), (e). We have to assume that the textual difference was intentional. In other cases, the Court has upheld parental notice statutes based onthe rationale that a parental notice statute that contains both a maturityand best-interests-based bypass is necessarily constitutional. In each case, the Court upheld a statute permitting bypass based on either maturity or best interests. Wicklund , 520 U.S. at 294 (Montana statute with notice bypass based on maturity, evidence of ab use, or notice not being in minor’s best interests); Hodgson v. Minnesota , 497 U.S. 417, 497 (1990) (Kennedy, J., concurring in judgment) (upholding Minnesota pa rental noti ce requirement with bypass based on maturity or abortion without notice in minor’s best interests); Akron Center, 497 U.S. at 508, 510–11 (upholding Ohio parental notice requirement with bypass based on maturity, abuse, or notice not in best interests). We have taken the same approach. Zbaraz , 572 F.3d at 374, 380 (upholding Illinois parental notice requirement with bypass based on maturity or best interests).32 No. 17-2428

equally to parental notice st atutes “remains unanswered by the Supreme Court and the Seventh Circuit,” but held that Bello tt i “must” apply. Planned Parenthood , 258 F. Supp. 3d at 945–46. Although we otherwise agree with the district court’s undue burden analysis, we a ffi rm without deciding this question at this preliminary injunction stage. 9

9 There is certainly support in the case law for the district court’s conclusion. Five Justices in H.L. signaled that Bellotti should apply to notice bypass statutes. 450 U.S. at 420 (Powel l, J., joined by St ewart, J., concurring) (“In sum, a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests.”); id. at 428 n.3 (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting) (exception to parental notice required for emancipated minors, matu re minors, and minors for whom notice would not be in minor’s best interests). And the Akron majority observed that notice of a bypass proceeding without any exception for a mature or emancipated minor would be unconstitutional. City of Akron v. Akron Center for Reproductive Health, Inc. , 462 U.S. 416, 441 n.31 (1983). The Sixth Circuithad upheld the ordinance’s notice requirement, though, and the petitioners did not challenge that ruling. Id. at 439 n.29. At least two other circuits have applied Bellotti to parental notice requirements. See Causeway Medical Suite v. Ieyoub , 109 F.3d 1096, 1112 (5th Cir. 1997) (declining to read the Supreme Court’s silence as a holding that Bellotti does not apply to parental notice statutes), overruled on other grounds, Okpalobi v. Foster , 244 F.3d 405, 427 n.35 (5th Cir. 2001); Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995) (“In short, parentalnotice provisions, like parental-conse nt provisions, are unconstitutional without a Bellotti -type bypass.”). At least one other circuit has gone the other way. Planned Parenthood of the Blue Ridge v. Camblos , 155 F.3d 352, 373 (4th Cir. 1998) (“[W]e hold that a notice statute that [includes at least the Hodgson ‘best interest’ exception] need not include, in addition, a bypass for the mature minor in order to pass constitutional muster”).No. 17-2428 33

B. Other Injunction Requirements

Planned Parenthood showed a su ffi cient likelihood of succeeding on the merits to support the district court’s injunction. The district court also di d not abuse its discretion in concluding that Planned Parenthood satis fi ed the other requirements for a preliminary injunction.

First, Planned Parenthood demonstrated a likelihood of irreparable harm. In applying th e undue burden standard to a restriction on abortion, it is ha rd to separate the merits from irreparable harm. As discussed above, the record supports the conclusion that young women would su ff er irreparable harm if injunctive relief were denied. See Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir. 1975) (enforcement of hospital policy would violate right to privacy and cause irreparable harm); see also Christian Legal Society v. Walker , 453 F.3d 853, 867 (7th Cir. 2006) (presumption of irreparable harm applies to First Amendment violations); 11A Ch arles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2948.1 (3d ed.)(“When an alleged deprivation of a constitutional right is involved, such as the right to free speech or freedom of religion, most courts hold that no further showing of irreparable injury is necessary.”). Planned Parenthood also does not have an adequate legal remedy. The State has not argued ot herwise. Instead, it argues that a pregnant minor seeking a judicial bypass could challenge an adverse noti fi cation ruling by raising a constitutional challenge in an expedited appe al after the bypass proceeding. Given the time pressures at work in such cases, we reject that alternative as an insu ffi cient answer to the burdens here. See Fleet Wholesale Supply Co. v. Remington Arms Co. , 846 F.2d 1095, 1098 (7th Cir. 1988) (irreparable injury implies inadequacy of34 No. 17-2428

legal remedies); see also 11A Wright & Miller § 2944 (“Probably the most common method of demonstrating that there is no adequate legal remedy is by showing that plainti ffwill suffer irreparable harm if the court does not intervene and prevent the impending injury.”).

Because Planned Parenthood satis fi ed these threshold showings, the district court al so balanced the equities and considered whether an injunctionwould be in the public interest. Planned Parenthood , 258 F. Supp. 3d at 955. The district court’s conclusions on these points were well within the bounds of its discretion.

The district court did not err on the balance of harms. The more likely it is that a plainti ff will win on the merits, the less the balance of harms needs to weigh in the plainti ff ’s favor. Planned Parenthood v. Van Hollen , 738 F.3d 786, 795 (7th Cir. 2013); Planned Parenthood of Indiana, Inc. v. Commissioner, 699 F.3d 962, 972 (7th Cir. 2012); Abbo tt Laboratories v. Mead Johnson & Co ., 971 F.2d 6, 11–12 (7th Ci r. 1992). On this record, Planned Parenthood’s likelihood of success on the merits is substantial. A fi nal judgment in Planned Parenthood’s favor would not undo the irreparable harm to which its patientswould have been subjected in the meantime, absent the injunction. It was within the dist rict court’s sound discretion to weigh those consequences more heavily than any irreparable harm the State faces by delay in implementing its statute.

The district court also did no t err on the public interest analysis. 258 F. Supp. 3d at 955, citing Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner , 984 F. Supp. 2d 912, 931 (S.D. Ind. 2013). Because Planned Parenthood has shown that it is likely to succeed on the merits and that the balance of harms favors the injunction, those showings weigh moreNo. 17-2428 35

heavily in the balance than the State’s interest in enforcing alaw that Planned Parenthood has shown is likely unconstitutional. See, e.g., Preston v. Thompson , 589 F.2d 300, 306 n.3 (7thCir. 1978) (injunction in public interest where continuing constitutional violation is proof of irreparable harm).For all of these reasons, the district court’s preliminary injunction barring enforcement ofthe new parental notice requirement in Ind. Code § 16-34-2-4(d) and (e) is

AFFIRMED.36 No. 17-2428

K ANNE , Circuit Judge , dissenting. The question presentedin this case is straightforward and narrow: does the Constitution prohibit Indiana from re quiring a mature minor to notify her parents of an impend ing abortion when she cannot show that avoiding notificationis in her best interests? The Supreme Court has confirmed that both parental consent and parental notificati on laws are constitutional. See Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 899 (1992) (“Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.”); Ohio v. Akron Ctr. for Reprod. Health , 497 U.S. 502, 518–19 (1990) (“We continue to believe that a State may requir e the physician himself or herself to take reasonable steps to notify a minor’s parent because the parent often will provide important medical data to the physician.”); H. L. v. Matheson , 450 U.S. 398, 409 (1981)(“[A] statute setting out a ‘mere requirement of parental notice’ does not violate the consti tutional rights of an immature, dependent minor.” (quoting Bellotti v. Baird, 443 U.S. 622, 640 (1979)); Id. at 413 (“That the requirement of notice to parents may inhibit some minors from seeking abortions is not a valid basis to void the statute.”).These statutes are constitutional because the State possesses “important” and “reasonabl[e]” interests in requiring parental consultation before a minor makes an irrevocable and profoundly consequential decision. Bellotti , 433 U.S. at 640–41 (“[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor’s right tomake important decisions. ... [A] State reasonably may determine that parental consultati on often is desirable and inNo. 17-2428 37

the best interest of the minor.”); see also Majority Op. at 19;Planned Parenthood of Indiana & Kentucky, Inc. v. Comm’r, Indiana State Dep't of Health , 258 F. Supp. 3d 929, 941 (S.D. Ind. 2017) (“[T]he law recognizes legi timate state interests in protecting children and adolescents, preserving family integrity, and encouraging parental authority.”). Indiana law requires a minor seeking an abortion to obtain consent from her parents unless she can demonstrate to a judge her maturity or show that an abortion is in her best interests. Ind. Code Ann. § 16-34-2-4(e) (2017). This statutory scheme is constitutional. Bellotti , 443 U.S. at 643–44.

In 2017, the Indiana General Assembly enacted a law requiring a minor seeking an abortion to notify her parents. Ind. Code Ann. at § 16-34-2-4(d). The minor may receive a judicial bypass by showing that obtaining an abortion without notification is in her best interests, but there is no exception for maturity alone. The district court concluded that the statute imposes an undue burden. The majority agrees, but I

cannot. 1

Planned Parenthood has not introduced evidence that establishes that requiring mature minors to notify their parents that they intend to have an abortion (in a scenario where the judge has found that avoiding notification is not in their best interests) constitutes an undu e burden. We should not inval-

1 I do agree, however, with the majority’s determination that the statute’s “requirement to serve notice is triggered only if the judge authorizes an abortion.” Majority Op. at 4. The new statute does not permit “a judge to order notice to parents of a minor’s unsuccessful attempt to seek bypass.” Id

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idate a law passed by a democratically-elected state legislature “while the effects of the law (and reasons for those effects) are open to debate.” A Woman's Choice-E. Side Women's Clinic v. Newman , 305 F.3d 684, 693 (7th Cir. 2002). Because the majority’s opinion is inconsistent with our precedent— which remains good law despite the majority’s suggestion to the contrary—I respectfully dissent.

I. A NALYSIS

1. Parental Consent and Parental Notification Are DifferentConsent and notification requirements are manifestly different, and the Court has repeatedly confirmed that its parental-consent jurisprudence do es not necessarily apply to statutes imposing notification requirements. See, e.g.

, Lambert v. Wicklund , 520 U.S. 292, 295–96 & n.3 (1997); Akron Center

, 497 U.S. at 510 (“[A]lthough our cases have required bypass procedures for parental consen t statutes, we have not decided whether parental notice st atutes must contain such procedures.”).We have not decided whether the judicial bypass described in Bellotti is required for parental notification statutes. Zbaraz v. Madigan , 572 F.3d 370, 380 (7th Cir. 2009). The Fifth and Eighth Circuits have held that parental-notification statutes are unconstitutional without a Bellotti -type bypass. Causeway Med. Suite v. Ieyoub , 109 F.3d 1096, 1107 (5th Cir. 1997), overruled on other grounds by Okpalobi v. Foster , 244 F.3d 405 (5th Cir. 2001); Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995) (“[T]he State has no legitimate reason for imposing a restriction on [the] libertyinterests [of mature, informed minors] that it could not impose on adult women.”). But the Fourth Circuit has heldNo. 17-2428 39

that, “provided that a parental notice statute does not condition the minor’s access to abortion upon notice to abusive or neglectful parents, absent parents who have not assumedtheir parental responsibilities, or parents with similar relationships to their daughters,” itis facially constitutional. Planned Parenthood of Blue Ridge v. Camblos , 155 F.3d 352, 367 (4th Cir. 1998).The majority opinion opts not to decide whether to incorporate the Bellotti -bypass requirements into the parentalnotification context. I have no objection to deferring an exhaustive discussion of that issu e to another day. But the majority opinion then concludes that Indiana’s failure to allow judicial bypass of the notifica tion requirement for matureminors constitutes an undue burden. Because the evidentiary basis for that conclusion is entirely speculative, I cannot agree. 2. The Preliminary Injunction Record and DecisionAs the moving party, Planned Parenthood bears the burden of justifying an injunction. Planned Parenthood of Indiana, Inc. v. Comm’r of Indiana State Dep't Health , 699 F.3d 962, 972 (7th Cir. 2012). We shouldn’t lig htly substitute our judgment for the General Assembly’s, espe cially when “the effects of the law (and reasons for those effects) are open to debate.” A Woman’s Choice , 305 F.3d at 693. Our constitutional system encourages legislative experimentation, and we must be “ever on our guard” when exercising our authority to coun-40 No. 17-2428

termand democratic impulses. New State Ice Co. v. Liebmann

, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). 2 At the preliminary inju nction hearing, Planned Parenthood introduced seven declarations supporting its motion. I limit my review to the portions of the declarations which the district court consid ered in connection with its undue burden analysis. Forest Beeley, the Director of Surgical Services for Planned Parenthood, testified that minors often do not wish to inform th eir parents they are seeking an

2 As the majority notes, Majority Op. at 10–13, the Supreme Courthas inconsistently articulated the standard for pre-enforcement injunctions of statutes regulating abortion. Compare United States v. Salerno , 481 U.S. 739, 745 (1987) (stating that, outside the First Amendment context, “the challenger must establish that no set of circumstances exists under which the Act would be valid”), and Gonzales v. Carhart, 550 U.S. 124, 167 (2007) (“The latitude given facial ch allenges in the First Amendment context is inapplicable here” in the abortion context.), with Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016) (conducting an undue burden analysis without first discussi ng the standard the plaintiff must meet), and Stenberg v. Carhart , 530 U.S. 914, 921 (2000) (same). We highlighted this confusion in A Woman’s Choice and attempted to synthesize the Supreme Court jurisprudence: the Salerno standard is relaxed in the abortion context, but we do not “ignore the fact that enforcement has not commenced” when reviewing an injunction. 305 F.3d at 687. The majority suggests that A Woman’s Choice is no longer good law because, in Whole Woman’s Health v. Hellerstadt , the Supreme Court onceagain conducted an undue burden analysis without discussing the procedural context of the challenge. 136 S. Ct. 2292, 2309–10. Hellerstadt does not resolve the contradictions in th e Supreme Court abortion jurisprudence; it deepens them. Like Stenberg and Casey , the Court simply ignored the language from Salerno and Gonzales indicating that preenforcement injunctions require special justification.No. 17-2428 41

abortion because of “a fear of being kicked out of the home, a fear of being abused or punished in some way, and a fear that the parent will attempt to block the abortion.” R. 14-1, Beeley Decl. at 4. Kathry n Smith—a former PlannedParenthood employee and current volunteer “Indiana bypass coordinator”—testified regarding her experience in attempting to find volunteer attorneys to represent minors injudicial bypass proceedings. She testified that minors typically do not wish to tell their parents because they fear their parents will “throw them out of the house or ... punish them.” R. 14-3, Smith Decl. at 3; see also R. 14-4 , Glynn Decl. at 3; R. 14-5, Flood Decl. at 2 (“Two of the women expressed concerns about abuse if their parents discovered they had an abortion.”). Smith testified that the judicial bypass process is “incredibly daunting and intimidating.” Id. at 4. Finally, Planned Parenthood (and the district court) relied heavily upon Dr. Suzanne M. Pinto’s declaration. Dr. Pinto works as a psychologist in Colo rado and specializes in treating abused minors and victims of domestic violence. She detailed examples of sexual and physical abuse inflicted by parents on minors. And she note d that “[p]regnancy is a particular flash point. As a physical manifestation of sexual activity pregnancy can signify a teen’s independence from parental control.” R. 14-6, Pinto Decl. at 5.

Dr. Pinto asserted that, if the statute stands, abused minors will summarily reject judici al bypass as an option out of “fear of exposing their abuse, fe ar or being forced to describe their abuse to strangers in an adversarial court hearing, fear that that they or their familie s will get into trouble if they bring up the abuse, and fear” of increased abuse at home. Id. at 8; see also R. 14-7, Lucido Decl. at 4 (“In many cases, teens42 No. 17-2428

seeking a judicial bypass have abusive parents, and theyoung women have a well-founded fear based on past experience that if one or both of her parents were to learn of the pregnancy or the minor’s desire to have an abortion, it would precipitate additional ab use.”). Dr. Pinto thus argues that minors will be unable to make the full disclosure that the “best interests” exception would require. Pinto Decl. at 8, 3 see also Lucido Decl. at 7–8 (detailing the practical challenges a minor in an abusive ho me may face if attempting to obtain a judicial bypass).

The district court credited th e testimony that minors may encounter post-notification obst ruction by parents. 258 F. Supp. 3d at 946. The district co urt further emphasized that “a large number of minors may face the risk of domestic abuse at the hands of one or more of their parents in the event that a parent is notified of the minor’s pregnancy.” Id. (citing Pinto Decl. at 4). Th e court was particularly concerned that the “fear of retaliatory abuse” might deter a minor from even attempting to obtain judicial bypass (even if she could satisfy the “best interests” exception). Id. at 947. The district court’s undue burd en analysis might be summarized by this passage discussing the harms posed by the new

statute:

3 Dr. Pinto seemed to believe that the challenged statute requires parental notice “even if the court has not yet ruled upon, or has denied, the minor’s petition to make the aborti on decision without parental consent.” Id. at 4. As indicated above, I join the majority’s rejection of that interpretation: the statute requires notice only upon the determination that an abortion is to occur.No. 17-2428 43

[F]or many young women in Indiana, the requirement of providing parental notification before obtaining an abortion carries with it the threat of domestic abuse, intimidation, coercion, and actual physical obstruction. The State’s argument that those seeking to challenge the law must wait untilevidence of this type of harm accrues is simply incorrect. The Court need not sit idly by while thosemost vulnerable among us are subjected to unspeakable and horrid acts of violence and perversion, nor may we blind ourselves to the fact that for millions of children (including young women) in the United States the threat of such abuse is real.

Id. at 939 (citing Pinto Decl. at 4). 3. The Statute Does Not Impose an Undue Burden Given this evidentiary background, the district court concluded—and the majority agrees—that the new Indiana statute imposes an undue burden. But I disagree. Considerthe following scenarios: if the minor cannot satisfy the maturity or “best interests” exceptions, she cannot obtain a judicial bypass for either consent or notification (and that is constitutional, per Bellotti ). If she can show that obtaining anabortion without involving her parents is in her best interests, she can obtain judicial by pass of both consent and notification. If she can show matu rity but not that obtaining anabortion without involving her parents is in her best interests, she can obtain judicial bypass of consent but not of notification. Is that an undue burden?44 No. 17-2428

A. Evidence Regarding At-Ris k Minors Does Not Establish the Need for a Maturity Exception In finding that it is an un due burden, the district court and majority rely on evidence that minors in abusive homes will be at risk if their parents discover that they plan to have an abortion. But the “best interests” exception completelycovers that scenario. If the minor can demonstrate a likelihood of retributive abuse, the court will conclude that the minor’s best interests require bypassing the notification requirement. Planned Parenthood has not identified an instance where an Indiana court rejected a minor’s “best interests” argument and required parental consent, but abuse followed. State-imposed restrictions on mature minors cannot, by themselves, be constitutionally problematic. “[A] state legislature has constitutional power to utilize, for purposes of implementing a parental-notice requirement, a yardstick based upon the chronological age of unmarried pregnant women. That this yardstick will be imprecise or even unjustin particular cases does not render its use by a state legislature impermissible under the Federal Constitution.” Matheson , 450 U.S. at 425 (Stevens, J., concurring). Would we invalidate a law that requires parental consent for a minor to marry because it did not include an exception for minors who can demonstrate their maturity? See Obergefell v. Hodges

, 135 S. Ct. 2584, 2599 (2015) (“[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy.”); Matheson , 450 U.S. at 425 n.2 (Stevens, J., concurring) (“Instead of simply enforcing general rules promulgated by the legislature, perhaps the judiciary should grant hearings to all young persons de sirous of establishing theirNo. 17-2428 45

status as mature, emancipated minors instead of confining that privilege to unmarried pregnant young women.”). A minor’s maturity has no relation to the likelihood of abuse (or, at least, Planned Parenthood has not introduced evidence explaining why that might be so). See Camblos , 155 F.3d at 373 (“A notice requirement does not become a veto merely because the minor has become mature enough that she must be allowed to decide for herself whether to end her pregnancy.”); see also Matheson , 450 U.S. at 425 (Stevens, J.,concurring) (“Almost by definition, however, a woman intellectually and emotionally capable of making important decisions without parental assistance also should be capable of ignoring any parental disapproval. Furthermore, if every minor with the wisdom of an adult has a constitutional right to be treated as an adult, a uniform minimum voting age issurely suspect.”). Thus, Planned Parenthood’s evidence regarding at-risk minors is irrelevant to the question of whether the Constitution requires an exception to parental notification for mature minors. When a court concludes that a minor is mature enough to decide to have an abortion but also that the minor’s best interests would be served by notifying her parents, the Statehas a legitimate and significant interest in requiring that notification. Camblos , 155 F.3d at 374 (“[E]ven the most matureteenager will benefit from the experienced advice of a parent, and, as a consequence of that dialogue, make a more informed, better considered, abortion choice.”). Abortion can be emotionally and physically traumatic for adult women. See McCorvey v. Hill , 385 F.3d 846, 850–51 & n.3 (5th Cir. 2004) (Jones, J., concurring) (collectin g clinical and scientific studies). As Planned Parenthood notes, teenage women are a par-46 No. 17-2428

ticularly vulnerable demographic, and studies indicate theyface an exceptionally high risk of suicidal ideation and emotional turmoil following an abortion. See Amicus Br. of Arizona at 11 (citing three stud ies finding significant mental health risk for post-abortio n adolescents, including onestudy which found a 50% chance of suicidal ideation). A mature minor may wish to keep her abortion secret from her parents and yet benefit greatly from their support before and in the aftermath.

B. The Risk of Deterrence Inhere nt in Judicial Bypass Proceedings Cannot be an Undue Burden Perhaps recognizing that the evidence regarding the challenges for abused minors is unrelated to the maturity exception, the majority argues that “the potential for parental notice is a threat that may deter [minors] from even attempting bypass in the first place.” Majori ty Op. at 24. In other words,the notification requirement will deter minors from attempting bypass—even if they would qualify under the “best interests” test—because the mere possibility of their parents discovering “would be a deal breaker.” Smith Decl. at 4. Because the State put on no evidence of its own, I assume that possibility to be a concern. But that logic applies equally to judicial bypass requirements for parental consent statutes. If the minor does not succeed in obtaining judicial bypass, then the minor must obtain the consent of her parents(which, of course, necessarily includes notice of her pregnancy). Certainly, the possibility that a minor might have toobtain her parents’ consent could deter her from seeking judicial bypass. Indeed, the risk of deterrence applies with greater force to parental-consent statutes. See Akron Ctr. , 497 U.S. at 510 (explaining that cons ent statutes involve “greaterNo. 17-2428 47

intrusiveness” than notification statutes). Yet the SupremeCourt has repeatedly confirmed that parental-consent statutes, subject to the Bellotti exceptions, are constitutional. And there are persuasive re asons why requiring mature minors to notify their parent s poses a lesser risk of deterrence. There is a direct relati onship between the likelihood of deterrence and the likelihood th at the minor will satisfy the “best interests” test. The higher the possibility that the minor will be abused if her parents discover her pregnancy, thehigher the likelihood that the court will grant a judicial bypass for notice. If the minor cannot show that likelihood ofmistreatment, she will be less likely to satisfy the “best interests” tests but also less likely to be deterred by the potential consequences of her parents discovering her pregnancy. And, similarly, the more mature the minor, the lower the risk that parental notification will result in a “practical veto.” Majority Op. at 15; s ee also Camblos , 155 F.3d at 373 (“[T]here is every reason to believe that the burden imposed upon the mature minor by a parental notice requirement will actuallybe less onerous than that imposed upon the immature minor.”). Bellotti demonstrates that the burdens inherent in judicial bypass proceedings cannot be undue.

And that’s all the evidence which Planned Parenthood introduced: several declarations from individuals involved in the bypass process discussing their personal observations and anecdotes and a declaration by one child psychologist discussing the challenges whic h children in abusive homes face in obtaining abortions. There’s no evidence regarding why a notification requirement will substantially obstruct mature minors (when the court has concluded that the child’s best interests warrant no tification) from obtaining an48 No. 17-2428

abortion. There’s no evidence comparing the decisionmaking process for immature mi nors with that of mature minors. And there’s no evidence regarding how, in practice, the inclusion of a “best intere sts” exception and the exclusion of a maturity exception will influence minor decisionmaking.

That’s because, of course, Indiana “has been disabled from implementing its law and gathering information about actual effects.” A Woman’s Choice , 305 F.3d at 687. This is the same fundamental problem that necessitated reversal of the permanent injunction in A Woman’s Choice . The district court’s issuance of a pre-enforcement preliminary injunction prevented collection of actual data about the law’s effects. During the bench trial, the district court reviewed data from other states, but those studies did not adequately account for “state-specific characteristics.” Id. at 690. That reliance on data from other communities and utter lack of Indiana-specific information is why the “pre-enfor cement nature of th[e] suit matter[ed].” Id. ; see also id. at 692 (“If Indiana’s emergencybypass procedure fails to protect Indiana’s women from risks of physical or mental harm, it will be a failure in operation ; it is not possible to predict failu re before the whole statute goes into force.”). The majority dismisses A Woman’s Choice because we are reviewing a preliminary injunc tion, not a permanent injunction. But the court in A Woman’s Choice reversed the permanent injunction because the record contained no data about the actual or likely effect s of the Indiana statute specifically

. And collecting that data was im possible because the district court issued a preliminary injunc tion. Thus, the entire course of litigation in A Woman’s Choice involved pre-enforcementNo. 17-2428 49

speculation about the statute’s e ffects. That problem is also present here. Generalized info rmation about abortion regulation writ large cannot substi tute for specific, tailored data regarding the statute at issue. See id. (“Indiana is entitled toan opportunity to have its law evaluated in light of experience in Indiana. ”). To call this reasoning in A Woman’s Choice dicta is to misunderstand the majority opinion in that case. 4 To the extent Planned Parenthood may believe that the notification statute will have unanticipated or inexplicableeffects, the proper time to bring the challenge is after enforcement has revealed those effects. Id. at 693. 5

4 The majority argues that the State must introduce actual evidence about the benefits and burdens impose d by the statute and suggests that it can still do so at trial. But, like in A Woman’s Choice , the preliminary injunction will prevent the State from defending its statute with actual operational data at trial. The majority distinguishes A Woman’s Choice on procedural grounds without recogniz ing that affirmance will put the State in the position we found so problematic in A Woman’s Choice

.

5 The majority also suggests that A Woman’s Choice has been rendered irrelevant by the Supreme Court’s decision in Hellerstadt . Majority Op. at 11–12. As explained above, Hellerstadt ignored seemingly contradictory jurisprudence and so does not clarify the confusion we identified in A Woman’s Choice . More importantly, Hellerstadt involved a district court record that contained eight peer-reviewed studies regarding the likelihood of abortion complications and testimony from at least fourexperts regarding the same. 136 S. Ct. at 2311. The present record contains essentially no comparable empirical data. To the extent that Dr. Pinto’s declaration qualifies as expe rt testimony, Planned Parenthoodhasn’t shown why the information regarding abused minors demonstrates the necessity of a maturity exception. A Woman’s Choice supports reversal here because, like in that case, the party seeking invalidation of the statute has not provided probative evidence of an undue burden.50 No. 17-2428

II. C ONCLUSIONThe challenged Indiana statute requires parental notification but allows for judicial by pass of that requirement when it would be in the minor’s best interests. Planned Parenthood provided evidence that obtaining parental notification willoften not be in the minor’s best interests, but the statute already complies with Supreme Court jurisprudence focused on those concerns. The operative question is whet her, given the State’s manifest interest in involving parents in consequential decisions by their children, the notification requirement constitutes a substantial obstacle for mature minors. The record providesno clarity on that point, and so—because the law was enjoined pre-enforcement—we can only speculate. As the majority recognizes, “evidence matters.” Majority Op. at 16.

The district court abused it s discretion by enjoining the law pre-enforcement, and its decision should be reversed.