Indiana Cannot Enforce “Aid-or-Assist” Against Truthful Out-of-State Abortion Information and Referrals to Minors: Content/Viewpoint-Based Speech Restriction Fails Strict Scrutiny

I. Introduction

Planned Parenthood Great Northwest, Hawai'i v. Commissioner of the Indiana State Department is a post-Dobbs First Amendment decision arising from Indiana’s 2017 “aid-or-assist” statute, Ind. Code § 16-34-2-4.2(c). The statute forbids knowingly or intentionally “aiding or assisting” an unemancipated pregnant minor in obtaining an abortion without satisfying Indiana’s parental-consent/judicial-bypass framework (including notarized written consent and identification-related requirements).

Planned Parenthood, which no longer provides abortions in Indiana after Indiana’s post-Dobbs restrictions, continued to provide patients—including unemancipated minors—factually accurate information and referrals to providers in other states where abortion remains lawful. Indiana officials took the position that even providing this information or referrals to minors violates the “aid-or-assist” law unless Indiana’s parental-consent/bypass requirements are first met.

The central issues on appeal were: (1) justiciability (mootness as to the Health Commissioner; standing/redressability as to the Indiana Medical Licensing Board members), and (2) whether applying the “aid-or-assist” law to Planned Parenthood’s out-of-state abortion information and referral practices violates the First Amendment.

II. Summary of the Opinion

The Seventh Circuit (Hamilton, J.) affirmed a permanent injunction barring enforcement of the “aid-or-assist” law as applied to Planned Parenthood’s dissemination to minors of information about, and referrals to, legal abortion practices and providers in other states. The court held:

  • The case was moot as to the Commissioner of the Indiana Department of Health because Planned Parenthood no longer holds abortion-clinic licenses and thus faces no licensing sanctions from that official; the injunction was modified to remove the Commissioner.
  • Planned Parenthood had standing to sue the members of the Indiana Medical Licensing Board based on an objectively reasonable chilling effect on protected speech and the threat of professional discipline.
  • The information and referrals are protected speech, not “speech integral to unlawful conduct” and not merely incidental to conduct.
  • The statute, as applied, is content-based and viewpoint-based.
  • Under strict scrutiny, Indiana’s asserted interests (parent-child relationship, family relations, child welfare) were not advanced through narrowly tailored means; the law failed strict scrutiny as applied.

Judge Scudder concurred in the judgment, agreeing the law fails strict scrutiny, but would have upheld more of Indiana’s tailoring choices and found the law overinclusive only because of the statute’s notary requirement.

III. Analysis

A. Precedents Cited

1. Justiciability: mootness, standing, and pre-enforcement challenges

  • Virginia House of Delegates v. Bethune-Hill and Friends of the Earth, Inc. v. Laidlaw Env't Services (TOC), Inc.: The court treated standing and mootness as non-waivable jurisdictional constraints, allowing defendants to raise them for the first time on appeal while taking the evidentiary record as it stood.
  • Knox v. Service Emps. Int'l Union and City of Erie v. Pap's A. M.: The court applied the “no effectual relief” test to hold the claim against the Health Commissioner moot.
  • Lujan v. Defenders of Wildlife: Provided the canonical three-part standing test (injury, causation, redressability), which the court applied to the Medical Licensing Board members.
  • Babbitt v. United Farm Workers Nat'l Union, Speech First, Inc. v. Killeen, and Susan B. Anthony List v. Driehaus: Supplied the framework for pre-enforcement First Amendment standing—either a credible threat of enforcement plus intent to engage in arguably protected conduct, or an objectively reasonable chilling effect leading to self-censorship. The court emphasized the chilling-effect route.
  • Whole Woman's Health v. Jackson: Crucial to rejecting Indiana’s redressability argument based on the statute’s private enforcement mechanism. As in Whole Woman's Health, the court permitted a pre-enforcement suit to proceed against licensing officials even though private civil actions also existed.
  • Larson v. Valente, Massachusetts v. EPA, Uzuegbunam v. Preczewski, and Diamond Alternative Energy, LLC v. EPA: Grounded the principle that redressability requires relief for “at least some” injury, not complete elimination of all risk—dispositive in the face of possible private suits.
  • Citizens for a Better Environment, Inc. v. Nassau County, Allee v. Medrano, and Citizens United v. Federal Election Comm'n: Supported organizational standing where a corporation’s speech rights are chilled through threatened sanctions on its employees/agents; Planned Parenthood acts through licensed physicians.

2. The First Amendment merits: defining protected speech and the level of scrutiny

  • United States v. Williams, Giboney v. Empire Storage & Ice Co., United States v. Hansen, Rosemond v. United States, and Twitter, Inc. v. Taamneh: These cases shaped the court’s rejection of the “speech integral to unlawful conduct” exception. The Seventh Circuit required an underlying unlawful act separate from the challenged speech restriction itself and emphasized intent/participation limits to “aiding-and-abetting” concepts.
  • Bigelow v. Virginia: The opinion’s anchor for protecting dissemination of truthful information about legal activity in another state and for the “horizontal federalism” limit on a state’s attempt to wall off information about lawful out-of-state services. The court treated Bigelow as highly instructive even though Indiana argued minors are different.
  • State Farm Mutual Auto. Ins. Co. v. Campbell and Huntington v. Attrill: Reinforced the anti-extraterritoriality theme: states cannot punish conduct lawful where it occurred or give their laws force beyond their borders.
  • Chiles v. Salazar, Holder v. Humanitarian Law Project, Cohen v. California, Rumsfeld v. Forum for Academic & Institutional Rights, Inc., and Expressions Hair Design v. Schneiderman: Provided the method for deciding whether a law regulates speech “as speech” in an as-applied challenge. Relying heavily on Chiles, the court held that where the plaintiff “seeks to engage only in speech,” a law is treated as regulating what may be said, even if the statute can be described as regulating “conduct” in other applications.
  • NAACP v. Button and Thomas v. Collins: Supported the protection for referrals and advocacy-like communications—“opportunity to persuade to action,” not merely to describe facts.
  • Reed v. Town of Gilbert, Sorrell v. IMS Health Inc., and Turner Broadcasting System, Inc. v. FCC: Provided the content-based framework: a restriction is content-based if it applies because of topic/message. The court concluded the “aid-or-assist” law turns on whether the communication concerns abortion and thus is content-based as applied.
  • Rosenberger v. Rector & Visitors of Univ. of Virginia and R. A. V. v. City of St. Paul: Supplied the viewpoint-discrimination doctrine. The court concluded the law, in practical operation, suppresses communications that facilitate abortion access while permitting speech discouraging abortion—viewpoint discrimination.
  • Free Speech Coalition, Inc. v. Paxton and United States v. Playboy Entertainment Group, Inc.: Framed strict scrutiny as demanding and “fatal in fact” absent extraordinary circumstances, and required evidence beyond “anecdote and supposition.”
  • Fisher v. Univ. of Texas at Austin and Fulton v. City of Philadelphia: Reinforced that strict scrutiny demands a precise fit and close, evidence-based analysis of how a restriction actually advances the stated interest.
  • Brown v. Entertainment Merchants Ass'n, Ginsberg v. New York, and Erznoznik v. City of Jacksonville: Answered Indiana’s “minors” distinction: minors are entitled to significant First Amendment protection, with narrow exceptions (notably obscenity). These cases undercut the claim that the state may broadly suppress protected information merely because the audience includes minors.
  • Planned Parenthood Great Northwest, Hawai, Alaska, Indiana, Kentucky v. Labrador: The court aligned its content/viewpoint analysis with the Ninth Circuit’s approach to a similar “assist” interpretation that chilled out-of-state abortion referrals.
  • K.C. v. Individual Members of Medical Licensing Board of Indiana: Served both as a comparison point and a boundary. The court distinguished K.C. because the plaintiffs there did not limit their challenge to speech about lawful out-of-state services, and the K.C. majority treated the relevant speech as integral to unlawful conduct in Indiana.

3. Post-Dobbs landscape (context, not the First Amendment rule)

  • Dobbs v. Jackson Women's Health Org., Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey: The court treated Dobbs as transformative for abortion rights but not as displacing ordinary First Amendment protections for truthful speech and referrals regarding lawful out-of-state conduct.
  • Members of Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc.: Explained why Planned Parenthood no longer provides abortions in Indiana and why the Health Commissioner’s role became moot.
  • Box v. Planned Parenthood of Indiana & Kentucky, Inc.: Demonstrated how the case’s earlier injunction litigation was affected by Dobbs.

B. Legal Reasoning

1. Mootness: the injunction cannot run against an official who cannot provide relief

The court modified the injunction to remove the Commissioner of Health because licensing authority over abortion clinics no longer posed a live threat to Planned Parenthood. With Indiana abortions largely barred and restricted to hospitals/ambulatory surgical centers, Planned Parenthood’s clinics are not licensed to provide abortions and thus cannot be sanctioned by the Commissioner in that capacity. Under the “effectual relief” doctrine, the claim against that defendant became moot.

2. Standing: organizational First Amendment injury through employee discipline risk

Planned Parenthood had standing to seek relief against members of the Indiana Medical Licensing Board because threatened professional discipline against its physicians would chill Planned Parenthood’s own speech (which it necessarily exercises through human agents). The court treated a credible, objectively reasonable chilling effect as sufficient injury in a pre-enforcement First Amendment suit, especially where defendants maintained the conduct was illegal.

3. Protected speech: information and referrals about lawful out-of-state abortions

The court characterized the covered activity—disseminating truthful information, giving referrals, and contacting out-of-state providers—as “pure speech.” It rejected two efforts to deny First Amendment coverage:

  • “Speech integral to unlawful conduct” failed because Indiana identified no underlying illegality other than the challenged statute itself. The court treated the state’s theory as impermissibly circular: speech cannot lose protection merely because the statute being challenged labels it unlawful.
  • “Speech incidental to conduct” failed because, in this as-applied posture, the regulated trigger was communication itself. Following Chiles v. Salazar, the court focused on what Planned Parenthood sought to do (speak) rather than what the law might regulate in other applications.

4. Content- and viewpoint-based restriction: strict scrutiny applies

Although the aid-or-assist statute does not mention “speech,” it applies to Planned Parenthood’s communications because they concern abortion. The court found content discrimination (topic-based) and viewpoint discrimination (speech that “aids” abortion access is burdened; dissuasive speech is not). Under Reed v. Town of Gilbert and Sorrell v. IMS Health Inc., strict scrutiny followed.

5. Strict scrutiny: compelling interests acknowledged, tailoring rejected

The court accepted that Indiana has legitimate—and at least in part compelling—interests in parental involvement and child welfare. The statute still failed because Indiana did not show narrow tailoring as applied to truthful speech about legal out-of-state services. The court’s tailoring analysis emphasized:

  • Lack of evidence: Indiana offered no concrete proof that suppressing information/referrals to minors would actually protect the parent-child relationship or minors’ health; strict scrutiny demands more than “anecdote and supposition” (United States v. Playboy Entertainment Group, Inc.).
  • Overbreadth/overinclusiveness: requiring notarized written consent, ID proof, and “some evidence” of relationship—or a judicial bypass—before a minor may receive even basic information was treated as an extraordinary mismatch between means and ends.
  • Vagueness-driven chill: uncertainty around what counts as “seeking to obtain” consent increased chilling effects (Mercatus Group, LLC v. Lake Forest Hospital).
  • Underinclusiveness: the information is readily available online; leaving “appreciable damage” to the asserted interest unaddressed undermines the claim of necessity (Reed v. Town of Gilbert; Republican Party of Minnesota v. White as quoted).
  • Less restrictive alternatives implied: the court rejected Indiana’s attempt to carve “referrals” out from “information,” finding no constitutionally meaningful distinction on this record.

Judge Scudder’s concurrence would have credited more of Indiana’s tailoring choices and found the decisive constitutional defect to be the statute’s notary requirement, which, in his view, made the law overinclusive even if parental involvement at the information stage is compelling.

C. Impact

  • First Amendment protection for cross-border medical information to minors: The decision establishes that a state may not apply an “aid-or-assist” regime to suppress truthful information and referrals to minors about lawful out-of-state abortion services, at least where the restriction is content/viewpoint-based and not narrowly tailored.
  • Limits on “speech integral to unlawful conduct” arguments: The opinion reinforces that this exception cannot be bootstrapped by pointing to the challenged statute itself as the “underlying offense.” That reasoning may constrain similar defenses in speech-restrictive “aiding/assisting” regimes.
  • Pre-enforcement standing despite private enforcement: By relying on Whole Woman's Health v. Jackson and redressability principles, the Seventh Circuit confirms that plaintiffs may sue licensing/disciplinary officials even when a statute also authorizes private civil enforcement.
  • Drafting implications for states: The concurrence signals a possible path for narrower legislation (e.g., revisiting notarization), but the majority’s approach suggests that any regime conditioning minors’ receipt of truthful out-of-state medical information on burdensome parental-consent mechanics will face steep strict-scrutiny headwinds.

IV. Complex Concepts Simplified

  • As-applied challenge: The plaintiff does not argue the law is invalid in every situation—only that it is unconstitutional when applied to specific conduct (here, truthful out-of-state abortion information and referrals to minors).
  • Pre-enforcement challenge: A lawsuit filed before the government actually enforces the law against the plaintiff, allowed when there is a credible threat or an objectively reasonable chilling effect.
  • Chilling effect: When people refrain from speaking because they reasonably fear punishment, even if no enforcement action has started.
  • Content-based vs. viewpoint-based: Content-based rules depend on topic (abortion vs. other healthcare). Viewpoint-based rules depend on the side taken (speech facilitating access vs. discouraging it). Viewpoint discrimination is especially disfavored.
  • Strict scrutiny: The toughest constitutional test: the government must prove a compelling interest and that the law is narrowly tailored (no broader than necessary).
  • Speech integral to unlawful conduct: A narrow category of speech (like solicitations or instructions for illegal acts) that can be unprotected, but it requires a real underlying illegality separate from the speech restriction being challenged.
  • Horizontal federalism / extraterritoriality: States generally cannot regulate or punish conduct that occurs lawfully in other states, nor can they block citizens from receiving truthful information about lawful out-of-state activities.

V. Conclusion

The Seventh Circuit’s decision holds that Indiana’s “aid-or-assist” statute, as applied to Planned Parenthood’s truthful information-sharing and referrals to minors about legal out-of-state abortions, is a content- and viewpoint-based restriction on protected speech that fails strict scrutiny. The court also clarifies key procedural points: claims can become moot as officials lose enforcement leverage, and organizations may bring pre-enforcement First Amendment suits against licensing authorities even when private enforcement remains possible.

In the broader post-Dobbs landscape, the opinion underscores that expanded state authority over abortion regulation does not automatically translate into authority to suppress truthful speech about lawful out-of-state medical services—especially where the suppression is viewpoint-based and unsupported by evidence of necessity.