Planned Parenthood of Indiana and Kentucky, Inc. v. Marion County Prosecutor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2407
PLANNED PARENTHOOD OF I NDIANA AND KENTUCKY, I NC.,
Plaintiff-Appellee,
v.
MARION COUNTY PROSECUTOR, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:18-cv-01219 — Richard L. Young, Judge.
____________________
A RGUED JANUARY 12, 2021 — D ECIDED A UGUST 2, 2021
____________________
Before E ASTERBROOK, WOOD, and ST. EVE, Circuit Judges.
ST . E VE, Circuit Judge. This appeal queries whether an In-
diana statute that requires medical providers to report com-
plications “arising from” abortions to the state is unconstitu-
tionally vague on its face. Although the statute has some am-
biguity, we conclude that Planned Parenthood has not shown
that the law is unconstitutionally vague on its face in this pre-
enforcement challenge.

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2 No. 20-2407
I. Background
Planned Parenthood of Indiana and Kentucky, Inc.
(“Planned Parenthood”) filed this suit on April 23, 2018 to
challenge Indiana Senate Enrolled Act No. 340, which the
governor signed into law on March 25, 2018. The Complaint
took aim at two provisions of Enrolled Act No. 340—the Com-
plications Statute and the Inspection Statute. The Complica-
tions Statute, Indiana Code § 16-34-2-4.7, required physicians
to report to the state “any adverse physical or psychological
condition arising from the induction or performance of an
abortion.” The Statute then provided a list of twenty-six con-
ditions that the state considered reportable conditions. The
word “including” preceded the conditions list, seemingly in-
dicating that the list of twenty-six conditions was illustrative
rather than exhaustive. The Inspection Statute, Indiana Code
§ 16-21-2-2.6, required annual inspection of abortion provid-
ers’ facilities, even though other kinds of healthcare facilities
are inspected less frequently. Planned Parenthood sued Indi-
ana’s Health Department Commissioner and several county
prosecutors (collectively, “the Defendants”) seeking a decla-
ration that the two Statutes were unconstitutional and a per-
manent injunction enjoining the Statutes’ enforcement.
In May 2018, Planned Parenthood moved for a prelimi-
nary injunction enjoining the enforcement of the Complica-
tions Statute. The district court held a hearing on the motion
in June, and then granted Planned Parenthood’s motion and
preliminarily enjoined the enforcement of the Complications
Statute as unconstitutionally vague.
In its order granting Planned Parenthood’s motion, the
court found that there was constitutionally intolerable over-
lap between “normal” side effects of abortions and

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No. 20-2407 3
“complications” that would trigger the reporting require-
ment. As a result, the Statute “fail[ed] to inform [Plaintiffs of]
what conduct is prohibited.” The district court was concerned
that physicians would “run the risk of being found … to be
out of compliance with their statutory responsibilities” (and
thereby risking time in prison and their medical licenses) for
failing to report “every ‘adverse physical or psychological
condition’ for which patients seek treatment as a reportable
condition, no matter how routine, minor, and expected.” The
district court found the Complications Statute’s illustrative
list of conditions to be “so broad or vague that they do not
remedy the uncertainty of the general definition of ‘abortion
complication.’”
In response, Indiana amended the Complications Statute.
In the 2019 version, the legislature eliminated the “including”
language that had previously indicated that the list was illus-
trative, as opposed to exhaustive. So, the 2019 version re-
quires doctors to report only those conditions included on the
Statute’s list. As amended, the Complications Statute now re-
quires physicians, hospitals, and abortion clinics to report
abortion complications to the state that meet the following
statutory definition:
(a) As used in this section, “abortion complication”
means only the following physical or psychological
conditions arising from the induction or performance
of an abortion:
(1) Uterine perforation.
(2) Cervical laceration.
(3) Infection.

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4 No. 20-2407
(4) Vaginal bleeding that qualifies as a Grade 2 or
higher adverse event according to the Common Termi-
nology Criteria for Adverse Events (CTCAE).
(5) Pulmonary embolism.
(6) Deep vein thrombosis.
(7) Failure to terminate the pregnancy.
(8) Incomplete abortion (retained tissue).
(9) Pelvic inflammatory disease.
(10) Missed ectopic pregnancy.
(11) Cardiac arrest.
(12) Respiratory arrest.
(13) Renal failure.
(14) Shock.
(15) Amniotic fluid embolism.
(16) Coma.
(17) Placenta previa in subsequent pregnancies.
(18) Pre-term delivery in subsequent pregnancies.
(19) Free fluid in the abdomen.
(20) Hemolytic reaction due to the administration of
ABO-incompatible blood or blood products.
(21) Hypoglycemia occurring while the patient is being
treated at the abortion facility.
(22) Allergic reaction to anesthesia or abortion induc-
ing drugs.

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No. 20-2407 5
(23) Psychological complications, including depres-
sion, suicidal ideation, anxiety, and sleeping disorders.
(24) Death.
(25) Any other adverse event as defined by criteria pro-
vided in the Food and Drug Administration Safety In-
formation and Adverse Event Reporting Program.
Ind. Code § 16-34-2-4.7(a).
Licensed physicians, hospitals, and abortion clinics are
subject to the Complications Statute and must submit to the
state a complications report detailing the following infor-
mation: the date the patient presented for treatment for the
abortion complication; the patient’s age, race, and county and
state of residence; the type and date of the patient’s abortion;
the name of the facility where the patient had the abortion;
details about any medications prescribed to the patient to fa-
cilitate the abortion; lists of any complications and the treat-
ment provided; lists of any complications diagnosed or
treated at follow-up visits; the dates of all follow-up visits; a
statement regarding whether the complication was previ-
ously managed by the abortion provider or the abortion pro-
vider’s required back-up physician; and a statement regard-
ing whether the patient’s visit to treat the complications was
the original visit or a follow-up visit. Id. §§ 16-34-2-4.7(b, e).
The Statute imposes criminal penalties for failing to com-
ply. “Each failure to report an abortion complication as re-
quired under this section is a Class B misdemeanor.” Id. § 16-
34-2-4.7(j). In Indiana, Class B misdemeanors are punishable
by up to six months in prison and $1,000 in fines. Id. § 35-50-
3-3. The Indiana Medical Licensing Board may also discipline
physicians for failing to comply. See id. § 25-1-9-4(a)(3).

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6 No. 20-2407
After the 2019 amendment, Planned Parenthood rejected
Indiana’s contention that the amendment rendered the Com-
plications Statute constitutional. The parties therefore pro-
ceeded to brief cross motions for summary judgment.
The district court held that the Complications Statute is
unconstitutionally vague and granted Planned Parenthood’s
motion as to the Complications Statute. The district court,
however, upheld the constitutionality of the Inspection Stat-
ute. The court entered final judgment accordingly. On
Planned Parenthood’s motion, the district court amended its
final judgment to reflect the inclusion of a permanent injunc-
tion against the enforcement of the Complications Statute, as
amended.
Defendants now appeal the district court’s grant of sum-
mary judgment to Planned Parenthood with respect to the
Complications Statute. Planned Parenthood has not appealed
the district court’s decision with respect to the Inspection Stat-
ute. For the reasons discussed below, we reverse the district
court’s entry of summary judgment and remand for further
proceedings.
II. Discussion
We review the district court’s grant of summary judgment
de novo. Cobb v. Aramark Corr. Servs., LLC, 937 F.3d 1037, 1039
(7th Cir. 2019). “When reviewing cross-motions for summary
judgment, ‘all reasonable inferences are drawn in favor of the
party against whom the motion at issue was made.’” Valenti v.
Lawson, 889 F.3d 427, 429 (7th Cir. 2018) (quoting Tripp v.
Scholz, 872 F.3d 857, 862 (7th Cir. 2017)). The movant is enti-
tled to summary judgment when there is “no genuine dispute
as to any material fact and the movant is entitled to judgment

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No. 20-2407 7
as a matter of law.” Id. (quoting Dunn v. Menard, Inc., 880 F.3d
899, 905 (7th Cir. 2018)).
The Supreme Court has long held that overly vague laws
are unconstitutional under the Due Process Clause of the Fifth
and Fourteenth Amendments. See, e.g., Connally v. Gen. Const.
Co., 269 U.S. 385, 391 (1926). Succinctly, “[i]n our constitu-
tional order, a vague law is no law at all.” United States v. Da-
vis, 139 S. Ct. 2319, 2323 (2019). The void-for-vagueness doc-
trine rests on the “twin constitutional pillars of due process
and separation of powers.” Id. at 2325; Sessions v. Dimaya, 138
S. Ct. 1204, 1212 (2018).
Only the people’s elected representatives in the legis-
lature are authorized to make an act a crime. Vague
statutes threaten to hand responsibility for defining
crimes to relatively unaccountable police, prosecutors,
and judges, eroding the people’s ability to oversee the
creation of the laws they are expected to abide.
Davis, 139 S. Ct. at 2325 (internal quotations and citations
omitted); see also Dimaya, 138 S. Ct. at 1212 (the vagueness doc-
trine is a “corollary of the separation of powers [doctrine]”).
In Connally, the Court considered the constitutionality of
an Oklahoma statute requiring the state to pay its employees
“not less than the current rate of per diem wages in the local-
ity where the work is performed.” Connally, 269 U.S. at 388.
The Court explained that “a statute which either forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application violates the first essential of due
process of law.” Connally, 269 U.S. at 391. “[T]he terms of a
penal statute creating a new offense must be sufficiently

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8 No. 20-2407
explicit to inform those who are subject to it what conduct on
their part will render them liable to its penalties is a well-rec-
ognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law.” Id. “The citizen can-
not be held to answer charges based upon penal statutes
whose mandates are so uncertain that they will reasonably
admit of different constructions. … The crime, … must be so
clearly expressed that the ordinary person can intelligently
choose, in advance, what course it is lawful for him to pur-
sue.” Id. at 393. The Court concluded that the Oklahoma min-
imum wage law was too indefinite in two respects: the phrase
“current rate of wages” and the term “locality” created a
“double uncertainty” that was “fatal to [the law’s] validity as
a criminal statute.” Id.
In 1972, the Court reiterated that the Constitution requires
that legislatures draft criminal statutes with sufficient preci-
sion to inform persons of “common intelligence” of a law’s
requirements and to avoid arbitrary enforcement of the stat-
ute. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).
There, the Court invalidated Florida’s public vagrancy law as
unconstitutionally vague, because it “failed[ed] to give a per-
son of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute” and because it “encour-
age[d] arbitrary and erratic” enforcement. Id. (citing United
States v. Harriss, 347 U.S. 612, 617 (1954); Thornhill v. Alabama,
310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242 (1937)).
More recently, the Court has abided by the Papachristou
formula in a trilogy of as-applied challenges to federal crimi-
nal laws that imposed criminal liability based on the phrases
“crime of violence” and “violent felony.” See Davis, 139 S. Ct.
at 2324; Dimaya, 138 S. Ct. at 1212; Johnson v. United States, 576

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No. 20-2407 9
U.S. 591, 595 (2015). In Johnson, the Court invalidated the re-
sidual clause of the Armed Career Criminal Act (“ACCA”),
which defined “violent felonies” to include crimes involving
“conduct” presenting “a serious potential risk of physical in-
jury to another,” because it failed both prongs set out by Pa-
pachristou. See Johnson, 576 U.S. at 594–95; 18 U.S.C.
§ 924(e)(2)(B)(ii). The “Government violates [the Fifth
Amendment’s Due Process Clause] by taking away some-
one’s life, liberty, or property under a criminal law so vague
that it fails to [1] give ordinary people fair notice of the con-
duct it punishes, or [2] so standardless that it invites arbitrary
enforcement.” Johnson, 576 U.S. at 595 (citing Kolender v. Law-
son, 461 U.S. 352, 357–58 (1983)). Moreover, the Court rejected
any defense of ACCA’s residual clause based on the existence
of some crimes that would clearly fall within its scope:
[O]ur holdings squarely contradict the theory that a
vague provision is constitutional merely because there
is some conduct that clearly falls within the provision’s
grasp. For instance, we have deemed a law prohibiting
grocers from charging an “unjust or unreasonable
rate” void for vagueness—even though charging
someone a thousand dollars for a pound of sugar
would surely be unjust and unreasonable.
Johnson, 576 U.S. at 602 (citing United States v. L. Cohen Grocery
Co., 255 U.S. 81, 89 (1921); Coates v. Cincinnati, 402 U.S. 611
(1971)).
Three years later, the Court explained in Dimaya that the
void-for-vagueness doctrine “guarantees that ordinary peo-
ple have ‘fair notice’ of the conduct a statute proscribes [and]
guards against arbitrary or discriminatory law enforcement
by insisting that a statute provide standards to govern the

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10 No. 20-2407
actions of police officers, prosecutors, juries, and judges.” Di-
maya, 138 S. Ct. at 1212 (citing Papachristou, 405 U.S. at 162;
Lawson, 461 U.S. at 357–58). Accordingly, the Court found the
statutory definition of a “crime of violence” under 18 U.S.C.
§ 16 was unconstitutionally vague, because it had the “same
two features [as in Johnson] that conspired to make ACCA’s
residual clause unconstitutionally vague.” Id. at 1216.
Finally, in 2019, the Court struck down 18 U.S.C.
§ 924(c)(3)(B)’s residual clause as vague in United States v. Da-
vis. 139 S. Ct. at 2324. Like the “crime of violence” definitions
at issue in Johnson and Dimaya, the residual clause of Section
924(c) penalized the use of a firearm during the commission
of a crime of violence, defined as involving “a substantial risk
that physical force against the person or property of another
may be used in the course of committing the offense.” Davis,
139 S. Ct. at 2323–24. As mentioned above, the Court empha-
sized that the vagueness doctrine “rests on the twin constitu-
tional pillars of due process and separation of powers.” Id. at
2325.
We recently echoed these principles in United States v.
Cook, 970 F.3d 866, 872–73 (7th Cir. 2020).
The void-for-vagueness doctrine requires that a crimi-
nal statute define an offense with sufficient clarity that
an ordinary person has fair notice of what conduct is
prohibited and so as to avoid arbitrary and discrimina-
tory enforcement. “What renders a statute vague is not
the possibility that it will sometimes be difficult to de-
termine whether the incriminating fact it establishes
has been proved; but rather the indeterminacy of pre-
cisely what that fact is.”

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No. 20-2407 11
Id. (quoting United States v. Williams, 553 U.S. 285, 306 (2008);
citing Skilling v. United States, 561 U.S. 358, 402–03 (2010);
United States v. Sylla, 790 F.3d 772, 774–75 (7th Cir. 2015)).
A. Notice
Here, several aspects of the Complications Statute give us
some pause, particularly given the criminal penalties (includ-
ing jail time) imposed for each violation of the Statute. See Vill.
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498–99 (1982) (noting the Supreme Court’s “greater tolerance
of enactments with civil rather than criminal penalties be-
cause the consequences of imprecision are qualitatively less
severe.”); Whatley v. Zatecky, 833 F.3d 762, 777 (7th Cir. 2016)
(same); Copeland v. Vance, 893 F.3d 101, 114 (2d Cir. 2018)
(“The degree of vagueness that the Constitution tolerates …
depends in part on the nature of the enactment.”) (internal
quotations omitted).
First, although we are aware of no other case holding the
phrase “arising from” to be unconstitutionally vague, we
acknowledge the district court’s concern that the Statute is
“not clear as to the extent to which a complication must be
caused by the abortion itself.” The Statute requires doctors to
report the incidence of any one of the twenty-five listed con-
ditions “arising from” an abortion, but the Statute does not
give objective guidance regarding the temporal, spatial, or
causal relationship between the abortion and the complica-
tion. Cf. Gonzales v. Carhart, 550 U.S. 124, 149 (2007) (discuss-
ing the objective, anatomical landmarks specified by a federal
abortion regulation that saved that regulation from being
struck down as void).

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12 No. 20-2407
Moreover, although several other states do impose abor-
tion-complication reporting requirements on doctors, Indi-
ana’s broad formulation of its Complications Statute is unu-
sual among peer statutes. First, not all reporting statutes im-
pose criminal penalties on violators. See, e.g., 18 Pa. Stat. and
Cons. Stat. Ann. § 3214(i)(1) (imposing civil liability on doc-
tors who fail to file the required report).1 Furthermore, most
of the other abortion-complication reporting statutes cited by
Defendants use more specific language to guide doctors about
the causal relationship required between the abortion and any
complications. For example, Michigan’s complications-re-
porting law provides that the complication must be the pri-
mary, secondary, or tertiary result of an abortion. See e.g., Mich.
Comp. Laws Ann. § 3.2837.2 And besides using a more spe-
cific causation standard, the vast majority of complication-re-
porting statutes explicitly include some kind of “reasonable
medical judgment” standard. See, e.g., Ariz. Rev. Stat. Ann.
1 See also Minn. Stat. Ann. § 145.4132 (delegating to the health commis-
sioner the imposition of any penalties for violating the reporting require-
ment). And, as mentioned above, “the Court has … expressed greater tol-
erance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe.” Vill. of Hoffman
Estates, 455 U.S. at 498–99.
2 See also Nev. Rev. Stat. Ann. § 442.265 (requiring hospitals to report
“[t]he number of patients admitted for hospital care for a complication
which resulted from an abortion”) (emphasis added); 18 Pa. Stat. and Cons.
Stat. Ann. § 3214 (“Every physician who is called upon to provide medical
care or treatment to a woman who is in need of medical care because of a
complication or complications resulting, in the good faith judgment of the
physician, from having undergone an abortion or attempted abortion shall
prepare a report thereof and file the report with the department…”) (em-
phasis added).

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No. 20-2407 13
§ 36-2162 (“A health professional who provides medical care
or treatment to a woman who, in the good faith judgment of the
health professional, is in need of medical care because of a com-
plication or complications resulting from having undergone
an abortion…”) (emphasis added).3 We also have previously
held that a reasonable medical judgment standard does not
render a statute void for vagueness in the abortion-regulation
context. See Karlin v. Foust, 188 F.3d 446, 459–60 (7th Cir. 1999).
Second, as the district court recognized, the statute lacks a
mens rea or scienter requirement, despite carrying a potential
term of imprisonment. The lack of a mens rea requirement is
not dispositive, but “the Supreme Court has repeatedly held
that imposing an intent requirement on an otherwise vague
3 See also Mich. Comp. Laws Ann. § 333.2835 (“As used in this section
and section 2837 “physical complication” means a physical condition oc-
curring during or after an abortion that, under generally accepted standards
of medical practice, requires medical attention.”) (emphasis added); Minn.
Stat. Ann. § 145.4132 (“A physician licensed and practicing in the state who
knowingly encounters an illness or injury that, in the physician’s medical
judgment, is related to an induced abortion or the facility where the illness
or injury is encountered shall complete and submit an abortion complica-
tion reporting form to the commissioner”) (emphasis added); Miss. Code
Ann. § 41-41-77 (“A physician shall file a written report with the State De-
partment of Health regarding each patient who comes under the physi-
cian’s professional care and requires medical treatment or suffers death
that the attending physician has a reasonable basis to believe is a primary, sec-
ondary, or tertiary result of an induced abortion.”) (emphasis added);
Okla. Stat. Ann. tit. 63, § 1-738l(C) (“Any physician practicing in Oklahoma
who encounters an illness or injury that a reasonably knowledgeable physician
would judge is related to an induced abortion shall complete and submit,
electronically or by regular mail, a Complications of Induced Abortion Re-
port to the Department as soon as is practicable after the encounter with
the induced-abortion-related illness or injury.”) (emphasis added).

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14 No. 20-2407
statute could save a law from a finding of impermissible
vagueness.” Whatley, 833 F.3d at 780 (on habeas review, law
prohibiting drug possession within 1,000 feet of a “youth pro-
gram center” was unconstitutionally vague) (collecting cases).
See also Gonzales, 550 U.S. at 149 (“The Court has made clear
that scienter requirements alleviate vagueness concerns.”);
City of Chi. v. Morales, 527 U.S. 41, 55 (1999) (“[I]t is clear that
the vagueness of this enactment makes a facial challenge ap-
propriate. … [The law at issue] is a criminal law that contains
no mens rea requirement[.]”); Colautti v. Franklin, 439 U.S. 379,
395 (1979) (the Supreme Court “has long recognized that the
constitutionality of a vague statutory standard is closely re-
lated to whether that standard incorporates a requirement of
mens rea.”); Duhe v. City of Little Rock, 902 F.3d 858, 864 (8th
Cir. 2018) (disorderly conduct statute not void for vagueness
because it contained a mens rea requirement); United States v.
Nieves-Castano, 480 F.3d 597, 603 (1st Cir. 2007) (“[The] scien-
ter requirement ameliorates any vagueness concerns.”).
The [Supreme] Court, indeed, has recognized that the
requirement of a specific intent to do a prohibited act
may avoid those consequences to the accused which
may otherwise render a vague or indefinite statute in-
valid. The constitutional vice in such a statute [without
a mens rea requirement] is the essential injustice to the
accused of placing him on trial for an offense, the na-
ture of which the statute does not define and hence of
which it gives no warning.
Screws v. United States, 325 U.S. 91, 101–02 (1945). Even among
similar reporting statutes, Indiana’s statute is atypical in its

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No. 20-2407 15
exclusion of a mens rea requirement. See, e.g., Ariz. Rev. Stat.
Ann. § 36-2163 (criminalizing willful failure to comply).4
Third, the Statute criminalizes malum prohibitum
(“wrong only because [it is] prohibited”) as opposed to ma-
lum in se (“inherently wrong”) conduct. See Papachristou, 405
U.S. at 163; Arias v. Lynch, 834 F.3d 823, 827 (7th Cir. 2016) (de-
fining malum prohibitum and malum in se). Though these
characteristics do not categorically make the Complications
Statute unconstitutionally vague, they do heighten the notice
concerns here given that an unwitting citizen may not be able
to anticipate the malum prohibitum law in order to abide by
it. See United States v. Wilson, 159 F.3d 280, 294 (7th Cir. 1998)
(Posner, J., dissenting) (“The law is malum prohibitum, not ma-
lum in se; that is, it is not the kind of law that a lay person
would intuit existed because the conduct it forbade was con-
trary to the moral code of his society.”); see also Conley v.
United States, 79 A.3d 270, 282 (D.C. 2013) (“[T]he requirement
of notice embodied in due process ‘places some limits’ on the
application of these tenets [that ignorance of the law is no de-
fense] when a law criminalizes ‘conduct that is wholly pas-
sive’ … [and] unlike the commission of acts, or the failure to
act under circumstances that should alert the doer to the con-
sequences of his deed”) (citing Lambert v. People of the State of
Cal., 355 U.S. 225 (1957)); United States v. Jahagirdar, 466 F.3d
4 See also Mich. Comp. Laws Ann. § 333.2894 (criminalizing willful or
knowing failure to comply); Miss. Code. Ann. § 41-41-79 (criminalizing
willful failure to comply); Mo. Ann. Stat. § 188.065 (criminalizing knowing
failure to comply; imposing civil penalties for willful failure to comply);
Okla. Stat. Ann. tit. 63, § 1-738n (criminalizing knowing or reckless failure
to comply); 18 Pa. Stat. and Cons. Stat. Ann. § 3214(i)(2) (criminalizing
“willfully providing a report that the doctor knows to be false”).

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16 No. 20-2407
149, 154 (1st Cir. 2006) (distinguishing a statute criminalizing
unconsented-to sexual acts from “ill-defined malum prohibi-
tum violation[s]”).
In sum, Indiana’s Complications Statute provides few
guideposts to inform practitioners of the conduct that is ex-
pected from them, especially when compared with similar
statutes in other states. See Cook, 970 F.3d at 873 (acknowledg-
ing concern for whether a statute poses a “trap” for “the per-
son acting in good faith”). The vagueness problem here is not
that the Statute is missing one element or another. Rather, the
factors outlined above create some uncertainty in the aggre-
gate. Most critically, it is unclear what causal relationship is
required between the abortion and the complication, and doc-
tors are not provided with an objective standard by which to
make that decision. Cf. Gonzales, 550 U.S. at 150 (noting the
statute’s provision of “objective standards”); Whatley, 833
F.3d at 778 (“Supreme Court precedent … requires criminal
statutes to be based on discernable standards.”).
B. Limitations of a Facial Challenge
Despite the uncertainties that exist in the Complications
Statute, we are mindful of the context of this litigation. This is
a facial, pre-enforcement challenge to a state statute that De-
fendants acknowledge a state agency will interpret and apply.
But at this time, the state agency has yet to issue guidance on
the application and enforcement of the law and no state court
has attempted to interpret it. See Vill. of Hoffman Estates, 455
U.S. at 499, n.5; Tr. of Ind. Univ. v. Curry, 918 F.3d 537, 541 (7th
Cir. 2019).
Outside of the First Amendment context, such facial chal-
lenges are disfavored.

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No. 20-2407 17
The general practice, outside of the First Amendment
context, has been to consider the purported vagueness
of a statute in light of the facts of the particular case—
i.e., as applied—rather than in the abstract. This means,
of course, that a litigant challenging the statute ordi-
narily must show that it is vague as applied to him; and
if the statute undoubtedly applies to his conduct, he
will not be heard to argue that the statute is vague as
to one or more hypothetical scenarios.
Nonetheless, the Supreme Court has on a number of
occasions entertained facial challenges to criminal stat-
utes that do not implicate First Amendment concerns.
… [T]he common thread uniting these cases with facial
challenges in the First Amendment context appears to
be a concern (or at least a colorable contention) that the
challenged statute simply has no core and lacks any as-
certainable standard for inclusion and exclusion. Such
a standardless statute poses a trap for the person acting
in good faith, who is given no guidepost by which he
can divine what sort of conduct is prohibited. The con-
cern is heightened when the statute contains no mens
rea requirement, and the uncertainty as to exactly what
is proscribed threatens to inhibit the exercise of consti-
tutionally protected rights.
Cook, 970 F.3d at 873 (internal citations and quotations omit-
ted). See also Vill. of Hoffman Estates, 455 U.S. at 495, n.7; Sec. of
State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 965–66
(1984) (“Here there is no core of easily identifiable and consti-
tutionally proscribable conduct that the statute prohibits.”);
Tr. of Ind. Univ., 918 F.3d at 541 (“[A] core of meaning is

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18 No. 20-2407
enough to reject a vagueness challenge, leaving to future ad-
judication the inevitable questions at the statutory margin.”).
Facial challenges that do not involve the First Amendment
are “limited.” Fuller ex rel. Fuller v. Decatur Pub. Sch. Br. of
Educ. Sch. Dist. 61, 251 F.3d 662, 666 (7th Cir. 2001). “The Su-
preme Court has repeatedly stated that facial invalidation of
legislation is disfavored.” United States v. Bonin, 932 F.3d 523,
534 (7th Cir. 2019), cert. denied, 140 S. Ct. 960 (2020). So, “courts
have looked with disfavor on facial vagueness challenges to
statutes that do not implicate fundamental rights.” Farrell v.
Burke, 449 F.3d 470, 495 (2d Cir. 2006) (Sotomayor, J.); see also
id. at 496 (noting the “general rule” that facial vagueness chal-
lenges outside of the First Amendment context are disfa-
vored); United States v. Requena, 980 F.3d 30, 40 (2d Cir. 2020).
Indeed, principles of federalism require us to tread especially
carefully when reviewing a state law where the state courts
have not had an opportunity to “give the law a construction
that will produce adequate clarity.” Tr. of Ind. Univ., 918 F.3d
at 542. As we said there, “we are not aware of any other deci-
sion by the Supreme Court that has used vagueness doctrine
to prevent the state judiciary from having even a chance to
give the law a construction that will produce adequate clar-
ity.” Id.
Here, we cannot conclude that the Complications Statute
has no discernable core. See Cook, 970 F.3d at 873. Although
Planned Parenthood contests the frequency and seriousness
of abortion-related complications, Planned Parenthood’s re-
sponse brief acknowledges that “[t]here are potential compli-
cations from the performance of medication and surgical
abortion.” Planned Parenthood maintains that several of the
complications listed in the Complications Statute are “not

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No. 20-2407 19
abortion-specific complications and almost never occur as a
result of abortions,” but the brief stops short of stating that
these complications are impossible.
The complications that a reasonable doctor would find to
have arisen from an abortion constitute a core of the Compli-
cations Statute. See Cook, 970 F.3d at 873; see also Tr. of Ind.
Univ., 918 F.3d at 541 (“[A] core of meaning is enough to reject
a vagueness challenge”).5 Although these complications may
be rare, an individual of ordinary intelligence would under-
stand that there may be complications that arise from an abor-
tion (as is the case with any medical procedure). And when
one such rare complication occurs, the physician must report
it if she believes in her reasoned medical judgment that the
complication arose from an abortion. This “core” of the Com-
plications Statute satisfies the void-for-vagueness test: It is un-
derstandable by persons of ordinary intelligence and not sub-
ject to arbitrary enforcement.6
As a result, although we appreciate the dissent’s concerns
about the ambiguity of this Statute, the Statute must survive
Planned Parenthood’s pre-enforcement, facial attack. Our
precedents, especially Trustees of Indiana University, preclude
any other result in this case. See 918 F.3d at 541. While the dis-
sent focuses on the ambiguity in the Statute, it ignores the pro-
cedural posture of this case as a pre-enforcement, facial chal-
lenge and the case law governing such facial challenges
5 And again, we have already held that a reasonable medical judgment
standard itself does not render a law void for vagueness. See Karlin, 188
F.3d at 459–60.
6 At least, we have no evidence of arbitrary enforcement of the Statute
before us at this stage.

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20 No. 20-2407
outside of the First Amendment arena. See, e.g., id. Though an
as-applied vagueness challenge to the Statute may have a dif-
ferent outcome, this challenge to the Statute fails because it is
a facial challenge to a statute with a discernable core.
In finding that the Complications Statute has a core com-
posed of those complications that the treating physician rea-
sonably believes to have arisen from an abortion, we are not
imposing our own construction of the statute upon Indiana,
which we cannot do. “As federal judges ‘we are without
power to adopt a narrowing construction of a state statute un-
less such a construction is reasonable and readily apparent.’”
Wisc. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th Cir.
2014) (quoting Stenberg v. Carhart, 530 U.S. 914, 944 (2000)).
We are cognizant of the Supreme Court’s admonition that
its “holdings squarely contradict the theory that a vague pro-
vision is constitutional merely because there is some conduct
that clearly falls within the provision’s grasp.” Johnson, 576
U.S. at 602 (emphasis in original); see also City of Houston, Tex.
v. Hill, 482 U.S. 451, 458 (1987). We do not hold that the Com-
plications Statute is constitutional merely because there may
be some complications that clearly arise from an abortion. In-
stead, we only hold that these clear-cut cases constitute a core
of the Complications Statute that renders the Statute immune
from this pre-enforcement facial challenge. Notably, Johnson’s
proposition that a statute is not necessarily constitutional be-
cause there are some obvious cases that fall within the stat-
ute’s purview relied on L. Cohen Grocery and Coates, both of
which were as-applied challenges by parties against whom
the statute in question had already been enforced. See id. (cit-
ing L. Cohen Grocery, 255 U.S. at 89 (defendant charged with
willfully setting an unreasonably high price for sugar); Coates,

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No. 20-2407 21
402 U.S. at 611 (defendants charged with and convicted of vi-
olating ordinance prohibiting three or more persons assem-
bling on a sidewalk and “conduct[ing] themselves in a man-
ner annoying to persons passing by”). In contrast, Planned
Parenthood has brought a pre-enforcement, facial challenge
here. And to survive this facial challenge, Defendants must
only demonstrate that the Statute has a discernable core. See
Cook, 970 F.3d at 874. We hold that the Statute does have such
a core. The enforcement of this Statute will inevitably present
many uncertainties at the margins, but the resolution of those
“edge questions” arising from the enforcement of a state law
is a “principal role of the [state’s] courts.” Tr. of Ind. Univ., 918
F.3d at 541.
In addition to finding that the Statute has a discernable
core, we are also mindful of the second portion of the void-
for-vagueness test, which analyzes the potential for arbitrary
enforcement of the challenged statute. Johnson, 576 U.S. at 595.
This law has yet to be enforced—it “is a preenforcement chal-
lenge, where ‘no evidence has been, or could be, introduced
to indicate whether the [Act] has been enforced in a discrimi-
natory manner[.]’” Gonzales, 550 U.S. at 150 (citing Vill. of Hoff-
man Estates, 455 U.S. at 503). Here, unlike in Johnson, “there is
no judicial history of courts struggling to appreciate what par-
ticular conduct” Indiana’s legislature intended to reach or of
courts struggling “to apply the statutory terms to varying sets
of facts.” Cook, 970 F.3d at 877.
“We do not suggest that the risk of discriminatory enforce-
ment is insignificant here.” Vill. of Hoffman Estates, 455 U.S. at
503. It is certainly possible that Indiana may enforce this law
in an arbitrary manner that offends due process, particularly
in a highly controversial area like the regulation of abortion.

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22 No. 20-2407
Again, a future, as-applied challenge may be successful. But,
“we are not prepared to hold that this risk jeopardizes the en-
tire” statute in a pre-enforcement, facial challenge. Id.; see also
Tr. of Ind. Univ., 918 F.3d at 541. We will not “assume that [In-
diana] will take no further steps to minimize the dangers of
arbitrary enforcement.” Vill. of Hoffman Estates, 455 U.S. at 504.
Indeed, the Indiana defendants have already represented to
this Court that the Statute will be interpreted in several ways
to limit its scope and decrease any ambiguity in its applica-
tion. Indiana’s opening brief tells us for instance, that to qual-
ify as a reportable complication, an abortion must be the but-
for cause of the complication. Moreover, the Defendants ar-
gue that the “arising from” standard is “necessarily based on
the physician’s medical judgment,” which “takes into account
the background and training of the reporter for purposes of
understanding what must be reported.” Though these repre-
sentations are not binding,7 we think it prudent to refrain
from “blot[ting] the law from the books” before Indiana has
an opportunity to issue administrative guidance and enforce
the law in a manner consistent with the Constitution. Tr. of
Ind. Univ., 918 F.3d at 541. Still, the Indiana State Department
of Health would be well-advised to formally interpret the law
to include a reasonable medical judgment standard, con-
sistent with its representations to this Court. In addition, the
Department might consider other limitations in its enforce-
ment of the law, such as limiting the reporting requirement to
complications that arise within one year of a patient undergo-
ing an abortion, which would help to avoid penalizing
7 Tr. of Ind. Univ., 918 F.3d at 540 (“Prosecutors can’t offer definitive
interpretations of criminal laws[.]”).

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No. 20-2407 23
doctors attempting to comply with the law in good faith. Cf.
Cook, 970 F.3d at 873.
Finally, we pause briefly to note that this case as currently
briefed does not directly implicate or “inhibit the exercise of
constitutionally protected rights[,]” which would heighten
our concern about the vagueness of the statute. Id. (quoting
Colautti, 439 U.S. at 391) (vagueness concerns are “heightened
when the statute contains no mens rea requirement and the
uncertainty as to exactly what is proscribed threatens to in-
hibit the exercise of constitutionally protected rights.”) (inter-
nal quotations omitted); see also Hill, 482 U.S. at 458–59. Our
analysis is strictly limited to the facts as currently pled in
Planned Parenthood’s complaint, which do not suggest that
the Statute interferes with or chills a protected constitutional
right.
C. Planned Parenthood’s Remaining Arguments
Planned Parenthood argues in the alternative that even if
the entire Statute is not unconstitutionally vague, two of the
enumerated complications, Items 23 and 25,8 are overly
vague. Though we agree that these particular complications
(such as, general “anxiety”) are especially imprecise, any am-
biguity in these two provisions does not change our overall
8 As provided for by Ind. Code § 16-34-2-4.7(a):
Item 23: Psychological complications, including depression, sui-
cidal ideation, anxiety, and sleeping disorders. ….
Item 25: Any other adverse event as defined by criteria in the Food
and Drug Administration Safety Information and Adverse Event
Reporting Program.

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24 No. 20-2407
conclusion that the Statute must survive this pre-enforce-
ment, facial challenge for the reasons outlined above.
Planned Parenthood also argued in the district court that
the Complications Statute is both irrational and violates due
process. The district court, however, did not take up those ar-
guments after finding that the Statute was unconstitutionally
vague. We take no position on these arguments and remand
for the district court to consider these arguments in the first
instance, to the extent the parties still seek a judicial decision
on them. See Anderson v. City of Rockford, 932 F.3d 494, 512 (7th
Cir. 2019); FMS, Inc. v. Volvo Const. Equip. N. Am., Inc., 557 F.3d
758, 763 (7th Cir. 2009) (“When the parties brief an issue that
has not been addressed by the district court, it is not unusual
for this court to remand so that the district court may consider
the issue in the first instance.”).
III. Conclusion
Because we conclude that the Complications Statute does
have a discernable core for the purposes of this pre-enforce-
ment, facial challenge, we REVERSE the district court’s entry
of summary judgment in favor of Planned Parenthood on its
vagueness challenge and VACATE the district court’s perma-
nent injunction on that basis. The case is REMANDED to the
district court for further proceedings not inconsistent with
this opinion.

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No. 20-2407 25
WOOD , Circuit Judge, dissenting. It has become an article of
faith that federal judges, when construing statutes, must ad-
here scrupulously to the words chosen by the enacting legis-
lature. If the legislature has written a foolish law, so be it—the
process for changing that law is to return to the legislature for
corrective action, while in the meantime the foolish law
stands. But if the legislature has written an incomprehensible
law, the remedy is not for the judiciary to take a red pencil to
it and, under the guise of statutory construction, create some-
thing that people of ordinary intelligence can follow. In the
latter case, the court cannot let the incomprehensible law
stand. The only choice is to strike it down as void for vague-
ness. United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (“When
[the legislature] passes a vague law, the role of courts under
our Constitution is not to fashion a new, clearer law to take its
place, but to treat the law as a nullity and invite [them] to try
again.”).
In the present case, we have before us the 2019 version of
an Indiana law that imposes a reporting requirement on phy-
sicians, hospitals, and abortion clinics (collectively, Report-
ers), with respect to any “complication” “arising from the in-
duction or performance of an abortion.” Ind. Code § 16-34-2-
4.7(a). If a Reporter fails to file a report, he or she has commit-
ted a Class B misdemeanor, id. § 16-34-2-4.7(j), and faces up to
six months in prison and $1,000 in fines, id. § 35-50-3-3. Pro-
fessional consequences are likely to ensue after such a crimi-
nal conviction, including loss of license. The district court, af-
ter a careful look at the law and the record, found that this
statute is unconstitutionally vague and issued a permanent
injunction against it.

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26 No. 20-2407
My colleagues have voted to overturn that injunction, on
the theory that they can find an essential “core” meaning to
the law. But, without admitting this in so many words, their
rationale amounts to a concession that no such permissible
core meaning can be discerned without adding critical new
terms to the law. It is hard to believe that this is an approach
that courts would, or should, generalize. And indeed, I sus-
pect that there is no appetite to do so. To my knowledge, there
is no rule saying that courts should bend over backwards
when faced with an abortion law, but not when the law in
question relates to gun ownership or use, violence against
women, or immigrants’ rights. I therefore dissent.
The majority and I do share some common ground. We all
recognize that the Supreme Court has held that “overly vague
laws are unconstitutional under the due process clause[s] of
the Fifth and Fourteenth Amendments.” Ante at 7, citing Con-
nally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). Or as the Court
put it more pithily two years ago, “a vague law is no law at
all.” Davis, 139 S. Ct. at 2323. Justice Scalia identified the key
point in an opinion dealing with a statute that criminalizes the
pandering or solicitation of child pornography. United States
v. Williams, 553 U.S. 285 (2008). After finding that the statute
in question, 18 U.S.C. § 2252A(3)(B), was not subject to facial
invalidation on overbreadth grounds, the Court turned to
vagueness doctrine. It then explained what “vagueness”
means for purposes of due process:
What renders a statute vague is not the possibility
that it will sometimes be difficult to determine whether
the incriminating fact it establishes has been proved;
but rather the indeterminacy of precisely what that fact
is. Thus, we have struck down statutes that tied

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No. 20-2407 27
criminal culpability to whether the defendant's con-
duct was “annoying” or “indecent”—wholly subjec-
tive judgments without statutory definitions, narrow-
ing context, or settled legal meanings.
553 U.S. at 306. People cannot be required to play a game of
“Twenty Questions” to figure out what exactly they have
done (or perhaps someone else has done) that might, or might
not, violate a particular law. And courts are not permitted to
rewrite statutes to provide that clarity, as I already have
noted.
The majority concedes that the Indiana statute before us
does not tell the Reporter “the extent to which a complication
must be caused by the abortion itself.” This is a serious flaw,
and it permeates the statute, thus making this case appropri-
ate for a facial challenge. Not a single condition on the state’s
list is unique to abortions, and so a medical-care provider will
have no idea whether or not he or she has a reporting obliga-
tion. And I am not exaggerating when I say “not a single con-
dition.” First and foremost, the fact that a pregnancy has
ended in no way suggests that it ended by abortion of any
kind. It is well known that many pregnancies end in natural
miscarriage—the Mayo Clinic, for instance, has this to say:
Miscarriage is the spontaneous loss of a pregnancy
before the 20th week. About 10 to 20 percent of known
pregnancies end in miscarriage. But the actual number
is likely higher because many miscarriages occur so
early in pregnancy that a woman doesn’t realize she’s
pregnant.
See Mayo Clinic, Miscarriage, https://www.mayo-
clinic.org/diseases-conditions/pregnancy-loss-

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28 No. 20-2407
miscarriage/symptoms-causes/syc-20354298. That is an
equally compelling, alternative explanation for at least condi-
tions (2), (3), (4), (7), (8), (9), (10), and (15). Uterine perforation
(item 1) can also be caused by a badly placed intra-uterine de-
vice (IUD). Infection (item 3) can be caused by countless
sources. What if a woman goes to her doctor for a routine gy-
necological examination a year after she has had a medical
abortion, and the doctor detects an infection? Must it be re-
ported? Does the doctor face imprisonment and loss of license
if she sees no link between the infection and the earlier proce-
dure? The doctor makes this call at her personal peril.
Heavy vaginal bleeding (item 4) is equally ambiguous.
This is a condition more formally called menorrhagia, which
can be caused by anything from hormone imbalances, dys-
function of the ovaries, uterine fibroids, polyps, adenomyosis,
IUDs, pregnancy complications such as impending miscar-
riage or placenta previa, cancer, inherited bleeding disorders,
medications, to liver or kidney disease. See Mayo Clinic, Men-
orrhagia (heavy menstrual bleeding), at https://www.mayo-
clinic.org/diseases-conditions/menorrhagia/symptoms-
causes/syc-20352829). Similarly, a pulmonary embolism (item
5), which is caused by a blocked artery in the lungs, can stem
from countless sources. What doctor will jump to the conclu-
sion that the cause was an abortion? Risk factors for pulmo-
nary emboli include heart disease, several different cancers,
surgery, prolonged immobility, COVID-19, smoking, obesity,
in addition to pregnancy and birth-control pills. See Mayo
Clinic, Pulmonary embolism, at https://www.mayo-
clinic.org/diseases-conditions/pulmonary-embolism/symp-
toms-causes/syc-20354647. Deep vein thrombosis (item 6) is
essentially the same—that simply describes one of the places
where a blood clot might originate. Id.

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No. 20-2407 29
It is common knowledge that cardiac arrest (item 11), res-
piratory arrest (item 12), renal failure (item 13), shock (item
14), coma (item 16), and hemolytic reaction resulting from the
administration of incompatible blood products (item 20) can
stem from countless causes. No doctor seeing a woman who
presented with one of these problems would have the slight-
est reason to suspect that an abortion was involved—and cer-
tainly not an abortion that occurred months or years earlier.
These conditions are so general as to be entirely uninforma-
tive. The same is true of an allergic reaction to anesthesia (item
22). Allergic reactions to abortion-inducing drugs (item 22)
may seem like a closer call, but even there, no abortion may
have been undertaken. Typically, medical abortions are ac-
complished with a two-drug protocol: mifepristone to lower
progesterone levels, and misoprostol to control bleeding. But
once again, there are independent medical reasons why some-
one might need medication to lower her progesterone, and so
knowledge that this drug was used is inconclusive. High lev-
els of progesterone might indicate ovarian cysts, an adrenal
disorder, or ovarian cancer. See Verywell Health, Symptoms
of High Progesterone, at
https://www.verywellhealth.com/high-progesterone-symp-
toms-5185751. Misoprostol, though used for abortions, is
more commonly used to prevent stomach ulcers while taking
non-steroidal anti-inflammatory drugs (NSAIDs). See
WebMD, Misoprostol, at
https://www.webmd.com/drugs/2/drug-6111/misoprostol-
oral/details. So an allergic reaction to either of these drugs
might or might not have anything to do with an abortion.
That leaves hypoglycemia—low blood sugar—while at
the abortion facility (item 21), an utterly undefined set of psy-
chological complications (item 23), death (item 24), and

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30 No. 20-2407
“anything else defined by FDA criteria (item 25). These too
provide little to no focus for the hapless medical-care pro-
vider. Low blood sugar is common, even in healthy people.
Why is there a link to abortion, or even a medical procedure?
The statute does not say. As for psychological consequences,
no one has the slightest idea of which ones, or at what level of
severity, the legislature had in mind, much less when they
must arise, or what connection to the abortion they might
have. Must everyone with sleep apnea, a serious sleeping dis-
order, be reported routinely, for instance? How about restless
leg syndrome?
And finally, there is death. How soon must death occur
after an abortion for it to be considered a complication of
abortion? Statistics indicate that abortion-related mortality in
the United States is extremely low. See Suzanne Zane et al.,
Abortion-Related Mortality in the United States 1998–2010, at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4554338/
(reporting that during the period from 1998 to 2010, there
were approximately 16.1 million abortion procedures, and
108 women died, for an exceedingly low mortality rate of 0.7
deaths per 100,000 procedures). But the State of Indiana has
chosen to give no guidance on this factor, either.
The statute is also fatally silent on several other critical
points: (1) is the causation standard for “arising under” liabil-
ity but-for, contributing factor, or just a presumption that if B
follows A, then A must have had something to do with B (the
much maligned post hoc ergo propter hoc fallacy); (2) is there
any period of time after which a Reporter is entitled conclu-
sively to presume that all consequences of the earlier abortion
have been resolved; and (3) does liability depend on the Re-
porter’s subjective assessment of the link between the

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No. 20-2407 31
abortion and a listed consequence, or does it depend on the
assessment that an objective expert in the field would make?
In addition, the statute makes breathtakingly broad as-
sumptions about the amount of information that will be avail-
able to Reporters, and in so doing, it has a sweeping extrater-
ritorial effect. Nothing limits the reporting duty to infor-
mation the Reporter obtained through the course of her or its
own treatment of the patient; nothing assures that the patient
either has told the Reporter about past details of her medical
history or about precise diagnoses and follow-up treatment;
and nothing limits the reporting duty to encounters within
the state of Indiana. If a woman had an abortion in a state or
country where abortions are legal, and then five years later
she sees a gynecologist who finds polyps, must that doctor
still report to Indiana pursuant to subpart (a)(4)? Who knows?
The only thing that is clear is that the doctor must make that
call while putting her reputation, license, and liberty on the
line.
The Indiana law has numerous other deficiencies that the
majority has recognized. It uses a system of criminal penalties
rather than civil measures; it contains no mens rea or scienter
requirement; and there is nothing inherently evil about the
conditions it identifies (and thus it is imposing these harsh
penalties on acts that are mala prohibita, not mala in se).
When we consider whether the plaintiff, Planned
Parenthood, has proven that this law is vague on its face,1 we
1 I do not know why the majority thinks that I do not appreciate the
facial nature of this challenge. My point is that there is no agreed core of
meaning that can save this particular law, making it one of the small group
of statutes that lack facial validity. Just as the Supreme Court held in Sam-
uel Johnson v. United States, 576 U.S. 591 (2015), the due process clauses

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32 No. 20-2407
must remember Justice Scalia’s definition: are we worried
about how definitively a particular fact has been proven, or is
our hapless Reporter unable to figure out what fact to prove
in the first instance. I do not understand my colleagues to be
taking the position that if a Reporter wanted to play it safe,
the Reporter could simply inundate the Indiana Health De-
partment with reports about every single medical visit every
woman in the state makes while she is between the ages of 12
and 50, just in case there was an undisclosed abortion or, if the
abortion is known, there is even a remotely possible link be-
tween that abortion and an item on the state’s list. But per-
haps, given my colleagues’ view of the statute, that is what
Reporters should do, knowing that they will not risk omitting
some information.
My colleagues take refuge in their conclusion that there is
some discernable core to the Indiana statute before us, which
they dub the Complications Statute. But they cannot do this
without rewriting the statute. They first limit the statute to
“[t]he complications that a reasonable doctor would find to
have arisen from an abortion … .” Ante at 19. That sounds like
an objective standard. But literally two sentences later (three
if you count a citation), they seem to adopt a subjective stand-
ard, when they look to a complication “which the treating
forbid government from taking life, liberty, or property “under a criminal
law so vague that it fails to give ordinary people fair notice of the conduct
it punishes, or so standardless that it invites arbitrary enforcement.” Id. at
595, citing Kolender v. Lawson, 461 U.S. 352, 357–58 (1983). Even if one
thought that the Indiana law gives fair notice of the breathtakingly broad
set of triggering events, there can be no doubt that it is so standardless that
it fails under the arbitrary enforcement branch of vagueness doctrine. The
majority avoids this outcome only by its extensive tinkering with the text
of the law.

-- 32 of 34 --

No. 20-2407 33
physician believes in her reasoned medical judgment to have
arisen from an abortion.” Id. (emphasis added). I grant that
Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999), held that a “rea-
sonable medical judgment” standard does not render a law
void for vagueness. But the law in Karlin specified exactly that
standard: it covered “a condition, in a physician’s reasonable
medical judgment,” that amounts to a medical emergency. If
the Indiana law said anything like that, whether using the
same words or their equivalent, we would have a different
case. But it does not.
Immediately after this passage, which as I said leaves am-
biguous whether the majority is adopting an objective or a
subjective standard, the opinion pivots back to something that
looks more objective: it asserts that “the Complications Stat-
ute has a core composed of those complications that the treat-
ing physician reasonably believes to have arisen from an abor-
tion.” Ante at 19. It says this despite acknowledging that a stat-
ute is not constitutional “merely because there may be some
complications that clearly arise from an abortion.” Ante at 20.
Johnson v. United States, 576 U.S. 591 (2015), confirms this,
when it says that “a statute is not necessarily constitutional
because there are some obvious cases that fall within the stat-
ute’s purview.” Ante at 20. The problem is the guessing game:
Reporters will never know what triggers their duty to report,
so they will miss some of the wheat and over-report some of
the chaff, all at the risk of criminal liability, and all without
even a negligence standard protecting them, much less a
higher level of scienter.
To summarize, Indiana’s statute covers nothing but what
my colleagues call “edge questions.” Although I do not doubt
that it would be possible to write a reporting statute of this

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34 No. 20-2407
type that would avoid unconstitutional vagueness, Indiana
has not done so yet. It is not clear to me whether the Indiana
Department of Health can limit the law as drastically as my
colleagues advise, ante at 22—a federal agency would be obli-
gated to keep its administrative rules within the scope of the
authorizing statute, but maybe Indiana does not follow that
principle—but for now there is no reasonable medical judg-
ment standard, no temporal limitation, no scienter require-
ment, and no but-for causal standard. The district judge cor-
rectly found that this left an empty core that cannot be en-
forced consistently with the due process clause of the Four-
teenth Amendment. I would affirm its judgment, and so I re-
spectfully dissent.

-- 34 of 34 --