Planned Parenthood Great Northwest, Hawai'i v. Commissioner of the Indiana State Department

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-2219
PLANNED PARENTHOOD GREAT NORTHWEST, HAWAI’I, ALASKA,
INDIANA, KENTUCKY, INC.,
Plaintiff-Appellee,
v.
C
OMMISSIONER OF THE 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-CSW — Sarah Evans Barker, Judge.
____________________
ARGUED SEPTEMBER 9, 2025 — DECIDED AUGUST 18, 2026
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
H
AMILTON, Circuit Judge. In 2017, Indiana passed what we
call the “aid-or-assist” law, which forbids knowingly or
intentionally aiding or assisting an unemancipated pregnant
minor in obtaining an abortion without first satisfying
Indiana’s parental consent and notice requirements. Ind.
Code § 16-34-2-4.2(c). Plaintiff Planned Parenthood provides

2 No. 24-2219
to its clients factually accurate information about abortion
providers who operate lawfully in other states. Plaintiff
provides such information to unemancipated pregnant
minors who seek it. Defendants are Indiana state officials who
maintain that providing such information violates the aid-or-
assist law unless plaintiff can show that it first satisfied the
same stringent parental consent requirements that must be
satisfied before a minor may obtain an actual abortion.
This appeal is the latest chapter in a long case that has
straddled a revolution in the constitutional law relating to
terminations of pregnancies. Before the aid-or-assist law took
effect, Planned Parenthood sued under the First Amendment
to enjoin the law’s enforcement as applied to its practices of
providing information and referrals to minors. The district
court issued a preliminary injunction in 2017, which the state
did not appeal on the aid-or-assist law. Seven years later, after
the intervening changes in applicable doctrine, the district
court issued a careful and thorough opinion explaining why
it was imposing a narrower permanent injunction against
enforcement of the statute as applied to plaintiff’s offering of
information or referrals to its minor patients about legal
abortion practices and providers in other states. Planned
Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky,
Inc. v. Commissioner, Indiana State Dep’t of Health, 732 F. Supp.
3d 971, 982 (S.D. Ind. 2024). Defendants have appealed.
We affirm the injunction with one modification. After set-
ting forth relevant facts and procedural background in Part I,
we find in Part II that Planned Parenthood has standing to
pursue this as-applied, pre-enforcement challenge against the
defendant members of the Indiana Medical Licensing Board.
In Part III-A, we explain why providing information about or

No. 24-2219 3
referrals to legal practices and providers in other states is
speech subject to First Amendment protections. In Part III-B,
we explain why the state’s aid-or-assist law, as applied to the
information and referrals at issue, is a content-based re-
striction on protected speech. Finally, in Part IV, we explain
why the aid-or-assist law fails strict scrutiny under the First
Amendment as applied to plaintiff’s speech.
I. Factual and Procedural Background
A. Senate Enrolled Act 404
In April 2017, Indiana enacted Senate Enrolled Act 404
(SEA 404). The new law amended several provisions for abor-
tion procedures for unemancipated minors. See Act of Apr.
25, 2017, Pub. L. No. 173-2017, 2017 Ind. Acts 1701–13. This
appeal focuses on Section 5 of SEA 404, which prohibits any
person from knowingly or intentionally aiding or assisting an
unemancipated minor in obtaining an abortion without satis-
fying the amended parental consent or judicial bypass proce-
dures in Section 4 of SEA 404. Ind. Code § 16-34-2-4.2(c).
Section 4 of SEA 404 requires a physician, before perform-
ing an abortion on an unemancipated minor, to obtain: (1) no-
tarized written consent of the minor’s parent, legal guardian,
or custodian; (2) government-issued proof of identification for
the consenting parent, legal guardian, or custodian; and
(3) “some evidence” that the consenting individual is actually
the parent, legal guardian, or custodian of the unemancipated
minor. § 16-34-2-4(b). By incorporating this provision into
Section 5, a person who intends to assist an unemancipated
minor in any way with obtaining an abortion must comply
with these consent requirements or else face liability under
the aid-or-assist law.

4 No. 24-2219
A violation of the aid-or-assist law can result in civil liabil-
ity to the unemancipated minor and the minor’s parent, legal
guardian, or custodian. § 16-34-2-4.2(d). Remedies can in-
clude awards of compensatory and punitive damages, as well
as attorney fees and court costs.
Indiana statutes also authorize the Indiana Medical Li-
censing Board to take disciplinary action against a licensed
medical practitioner if she “has knowingly violated any state
statute or rule ... regulating the profession in question.” § 25-
1-9-4(a)(3). Disciplinary action may include license revocation
or suspension, censure, reprimand, probation, and/or a fine.
§ 25-1-9-9(a).
B. Plaintiff’s Practices
Plaintiff Planned Parenthood Great Northwest, Hawai’i,
Alaska, Indiana, Kentucky, Inc. is a non-profit corporation
that operates eleven health centers in Indiana. At these health
centers, it provides a wide range of reproductive and sexual
health services to thousands of Indiana residents, including
abortion-related services.
When Planned Parenthood is unable to perform the
patient’s requested abortion services, Planned Parenthood
seeks to inform those patients, including minor patients,
about neighboring states where those abortion services are
available and legal. Planned Parenthood typically shares this
information by directing its patients to a particular website
where patients can find up-to-date information about lawful
abortion services in other states. Other Planned Parenthood
locations share handouts that include information on where
those abortion services are available. When a patient requests
more help, Planned Parenthood seeks to refer the patient to

No. 24-2219 5
the out-of-state provider, either by contacting the out-of-state
provider in the patient’s presence or by contacting the out-of-
state provider and having that provider contact the patient
directly.
When plaintiff’s minor patients tell plaintiff that they may
want to obtain an abortion, plaintiff first counsels those pa-
tients to discuss the matter with their parents and eventually
to obtain parental consent. Some of those minor patients,
however, express fears of being kicked out of their homes or
being abused or punished by their parents or legal guardians
because of their pregnancies. Others simply cannot locate
their parent or legal guardian to obtain consent.
Even if plaintiff’s minor patients might otherwise be able
to satisfy Indiana’s parental consent or judicial bypass re-
quirements, some patients might live closer to an abortion
provider located across state lines or might seek an abortion
service that is significantly less expensive in a neighboring
state. Many simply cannot obtain an abortion in Indiana be-
cause of Indiana’s strict abortion laws. Planned Parenthood
seeks to share information about providers that are more con-
venient for the patient given her circumstances or that are lo-
cated in states with less stringent abortion restrictions than
those of Indiana.
In 2023, in the wake of Dobbs v. Jackson Women’s Health
Org., 597 U.S. 215 (2022), new restrictions on abortions took
effect. Planned Parenthood’s health centers no longer provide
abortion care in Indiana. See Members of Medical Licensing
Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i,
Alaska, Indiana, Kentucky, Inc., 211 N.E.3d 957, 985 (Ind. 2023)
(vacating preliminary injunction blocking enforcement of In-
diana’s post-Dobbs abortion law). The legal changes in

6 No. 24-2219
Indiana have not, however, changed Planned Parenthood’s
mission to provide information and referrals to both adults
and minors about health care, including the availability of le-
gal out-of-state abortion care.
Both sides agree that, without first satisfying Indiana’s pa-
rental consent law, providing information to minors about or
referrals to abortion providers lawfully operating in other
states would violate the aid-or-assist law. As a result, Planned
Parenthood is concerned that sharing the information will ex-
pose it to liability and subject its physicians to prosecution,
civil liability, and professional discipline.
C. Plaintiff’s Challenges to SEA 404
Before SEA 404 took effect in 2017, plaintiff Planned
Parenthood filed its initial complaint containing three
challenges to provisions of SEA 404. It sought declaratory and
injunctive relief. Under the First Amendment, Planned
Parenthood challenged the aid-or-assist law as applied to
sharing information with its minor patients about abortion
options legally available in other states. See Ind. Code § 16-34-
2-4.2(c). Planned Parenthood also brought two constitutional
challenges to provisions of Section 4, which contains the
statute’s parental consent requirements. One challenged the
requirements that a physician obtain parental identification
and then execute an affidavit attesting to the sufficiency of
that identification. The other challenged a requirement for
parental notice even after a judicial bypass proceeding found
the minor to be sufficiently mature to decide independently
to obtain an abortion. See § 16-34-2-4(b), (e), & (l).
On June 28, 2017, the district court preliminarily enjoined
the defendant state officials from enforcing any of the

No. 24-2219 7
challenged provisions against plaintiff. Indiana appealed as
to only the parental notice provision. The entire injunction
stayed in effect through extensive appellate review until after
the Supreme Court’s 2022 decision in Dobbs. See Box v. Planned
Parenthood of Indiana & Kentucky, Inc., — U.S. —, 142 S. Ct. 2893
(2022) (mem.) (granting certiorari, vacating, and remanding
for further consideration in light of Dobbs). After post-Dobbs
abortion restrictions took effect in Indiana in 2023, plaintiff
stopped providing abortions in Indiana and withdrew its
challenges to the parental notice provision and to the identifi-
cation and affidavit requirements for parental consent. The
First Amendment challenge to the aid-or-assist law is plain-
tiff’s only remaining challenge to SEA 404.
On May 1, 2024, the district court granted summary
judgment to Planned Parenthood on its challenge to the aid-
or-assist law. The district court first held that the law
regulated Planned Parenthood’s speech protected under the
First Amendment and that the aid-or-assist law amounts to a
content-based regulation of speech subject to strict scrutiny.
Planned Parenthood Great Northwest, 732 F. Supp. 3d at 976–78.
The district court found the statute was not narrowly tailored
to Indiana’s asserted compelling interests as applied to
Planned Parenthood’s speech. Id. at 978–82.
The district court permanently enjoined defendants from
enforcing the aid-or-assist law “insofar as it would prohibit
Plaintiff and its physicians from disseminating to minors in-
formation regarding legal abortion practices and abortion
care providers in states other than Indiana and from provid-
ing referrals to and contacting out-of-state abortion providers
on behalf of their minor patients.” Id. at 982. This appeal fol-
lowed.

8 No. 24-2219
II. Standing and Mootness
Defendants argue first that a portion of this appeal is moot
and that plaintiff lacks standing to pursue the remaining
portions of this pre-enforcement First Amendment challenge.
Defendants have raised these issues for the first time on
appeal, but we cannot deem them waived or forfeited. Both
challenge our subject matter jurisdiction and thus may be
raised on appeal even if they were not disputed in the district
court. Virginia House of Delegates v. Bethune-Hill, 587 U.S. 658,
662–63 (2019) (standing); Friends of the Earth, Inc. v. Laidlaw
Env’t Services (TOC), Inc., 528 U.S. 167, 179–80, 190–92 (2000)
(evaluating mootness issue raised for first time by Court of
Appeals). Nevertheless, defendants did not dispute plaintiff’s
evidence relevant to these issues in the district court, so the
late challenges take the record as it stands.
We address first plaintiff’s claim against defendant Com-
missioner of the Indiana Department of Health. We then turn
to plaintiff’s claim against the members of the Indiana Medi-
cal Licensing Board.
A. Mootness of the Claim Against the Commissioner of Health
Defendants argue that the Commissioner of the Indiana
Department of Health is no longer a proper defendant in this
suit because changes in Indiana abortion law have removed
the Commissioner’s ability to provide plaintiff with any relief.
We agree, and plaintiff does too.
A case can become moot against a particular defendant if,
at any time during the course of litigation, the court cannot
order that defendant to provide the plaintiff with “any effec-
tual relief.” Knox v. Service Emps. Int’l Union, 567 U.S. 298, 307
(2012), quoting City of Erie v. Pap’s A. M., 529 U.S. 277, 287

No. 24-2219 9
(2000); accord, e.g., United States v. Segal, 432 F.3d 767, 773 (7th
Cir. 2005). Mootness, like standing, must be considered claim
by claim and for each form of relief. Wernsing v. Thompson, 423
F.3d 732, 745 (7th Cir. 2005); see generally Town of Chester v.
Laroe Estates, Inc., 581 U.S. 433, 439 (2017) (standing); Powell v.
McCormack, 395 U.S. 486, 496–97 (1969) (mootness).
When Planned Parenthood filed this suit in 2017, its
licensed clinics in Indiana could lawfully provide abortions.
Planned Parenthood thus named as a defendant the
Commissioner of the Indiana Department of Health, who
oversaw licensing of abortion clinics. The district court
ordered injunctive relief against the Commissioner. Since
then, at the risk of considerable understatement, abortion law
has changed significantly.
The Supreme Court ruled in 2022 that the federal
Constitution no longer provides a pregnant woman a right to
decide whether to continue or terminate a pregnancy. Dobbs,
597 U.S. at 231–32, overruling Roe v. Wade, 410 U.S. 113 (1973),
and Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992). The Indiana General Assembly quickly
amended Indiana law to outlaw the vast majority of abortions
in the state, allowing abortions only to prevent serious health
risks to the pregnant woman and in cases of lethal fetal
anomaly, rape, or incest. See Act of Aug. 5, 2022, Pub. L. No.
179-2022(ss), § 21, 2022 Ind. Acts 2595, 2608–11, amending
Ind. Code § 16-34-2-1.
The new law also required that any lawful abortions be
performed in hospitals or ambulatory surgical centers. That
change effectively prohibited plaintiff from performing any
abortions in its Indiana clinics. See id. As a result, Planned
Parenthood and its clinics no longer hold valid licenses to

10 No. 24-2219
perform abortions and no longer face the threat of any
licensing sanctions from the Commissioner. We agree with
the parties that these changes in state law have removed the
Commissioner’s ability to provide any relief to plaintiff. As a
result, we modify the injunction so that it no longer runs
against the Commissioner of Health.
B. Injunctive Relief Against the Medical Licensing Board
Plaintiff also won injunctive relief against the members of
the Indiana Medical Licensing Board to prevent licensing dis-
cipline of plaintiff’s physicians based on their providing in-
formation and referrals prohibited by the aid-or-assist law.
The defendants argue plaintiff lacks standing to pursue this
relief. We explain first why plaintiff has standing against these
defendants and then turn to defendants’ more specific chal-
lenges.
1. Plaintiff’s Case for Standing
Standing requires at least three elements: an injury that is
actual or imminent, a causal connection between the conduct
complained of and the actual or imminent injury, and a
likelihood that a favorable decision would redress or prevent
the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992). Plaintiff’s case for standing against the Board members
is straightforward. First, the Board is responsible for
regulating and disciplining physicians in Indiana. The Board
can impose disciplinary sanctions against a licensed medical
practitioner if she “has knowingly violated any state statute
or rule ... regulating the profession in question.” Ind. Code
§ 25-1-9-4(a)(3). Disciplinary sanctions can include license
revocation or suspension, censure, reprimand, probation,
and/or a fine. § 25-1-9-9.

No. 24-2219 11
Defendants have argued in the district court and on ap-
peal that disseminating information about lawful out-of-state
abortions to unemancipated minors would violate the aid-or-
assist law. Physicians who work for Planned Parenthood thus
risk disciplinary action by the Indiana Medical Licensing
Board. Planned Parenthood seeks an injunction so that its
physicians can carry out the plaintiff’s purposes by providing
information about legal abortions in other states without fear
of losing their licenses or other disciplinary actions. The dis-
trict court’s injunction redresses Planned Parenthood’s injury
by protecting its physicians from punishment for providing
this information. All three elements of standing under Lujan
are satisfied here with respect to imminent injury.
One feature of standing in this case requires us to make
explicit what is often left implicit in organizational standing
cases. Like other corporations, Planned Parenthood has its
own free speech rights. See Citizens United v. Federal Election
Comm’n, 558 U.S. 310, 342 (2010); Center for Individual Freedom
v. Madigan, 697 F.3d 464, 474 (7th Cir. 2012). When those rights
are sufficiently chilled, a corporate plaintiff can establish
standing to challenge a law that prohibits its speech. Bell v.
Keating, 697 F.3d 445, 454 (7th Cir. 2012) (“The plaintiff must
substantiate a concrete and particularized chilling effect on
his protected speech or expressive conduct to pursue prospec-
tive relief.”). A legal abstraction like a corporation can act only
through human agents, such as licensed physicians and other
employees in this case.
A corporate or organizational plaintiff can establish
standing to challenge a law arguably infringing its First
Amendment rights even when the consequences of any
violation might fall most immediately and directly on the

12 No. 24-2219
corporation’s employees rather than on the corporation itself.
See, e.g., Allee v. Medrano, 416 U.S. 802, 819 n.13 (1974) (union
had standing to challenge Texas statutes where union acted
only through its members and its members faced intimidation
and arrest under statutes for engaging in constitutionally
protected union activity); id. at 829 (Burger, C.J., concurring
in the result in relevant part); see also Whole Woman’s Health
v. Jackson, 595 U.S. 30, 45–48 (2021) (plurality) (reproductive
healthcare clinic could pursue pre-enforcement challenge to
abortion law based on risk that members of medical licensing
board could take action against employees to punish
violations of law); id. at 59–60 (Roberts, C.J., concurring in the
judgment in relevant part); id. at 63 (Sotomayor, J., concurring
in the judgment in relevant part). This conclusion seems so
obvious that it is usually left implicit where the corporation is
the employer and its employees face prosecution or other
legal penalties for carrying out their employer’s missions or
policies.
That’s the situation here. Planned Parenthood asserts its
own First Amendment rights, but it necessarily exercises
those rights through its employees and other agents. Planned
Parenthood itself does not have a physician’s license, but it
will suffer an injury if fear of official licensing discipline dis-
courages its employees and agents from engaging in the or-
ganization’s work. Given these familiar roles for an employer
and its employees and for other principals and agents, it fol-
lows that this type of harm is sufficient to confer standing
upon plaintiff.
A helpful example in a similar context is Citizens for a Better
Environment, Inc. v. Nassau County, 488 F.2d 1353 (2d Cir.
1973). There, local police enforced anti-solicitation ordinances

No. 24-2219 13
against a nonprofit’s employees for engaging in the non-
profit’s door-to-door educational and fundraising campaign.
The organization sought injunctive relief preventing future
enforcement of those laws against its employees. Id. at 1355.
The Second Circuit recognized that the organization itself had
standing to pursue this injunctive relief. The organization’s
“very existence as a soliciting organization is obviously
threatened by the fact that the police intend to continue to in-
voke the solicitation ordinances against its employees.” Id. at
1361. Similarly here, Planned Parenthood cannot exercise its
First Amendment rights without its employees taking actions
that would arguably violate the challenged statute and risk-
ing professional discipline. So the same finding of standing
applies.
2. Redressability and Incomplete Relief
Defendants raise two more specific objections to plaintiff’s
standing to seek relief against the Board members. The first
focuses on the fact that the aid-or-assist law is enforceable
through private civil actions that are not affected by the dis-
trict court’s injunctions.
The aid-or-assist law allows a civil suit against a person
who “knowingly or intentionally aid[s] or assist[s] an une-
mancipated pregnant minor in obtaining an abortion” with-
out complying with the statute’s detailed requirements for
parental consent. Ind. Code § 16-34-2-4.2(c)–(d). The uneman-
cipated pregnant minor and her parent, legal guardian, or
custodian may win compensatory damages, punitive dam-
ages, attorney fees, and court costs. § 16-34-2-4.2(d). A parent,
legal guardian, or custodian of an unemancipated minor may
also seek an injunction against conduct that would violate the
statute. § 16-34-2-4.2(f).

14 No. 24-2219
The injunction here runs against only public officials, in-
cluding the members of the Medical Licensing Board. It does
not, by its terms, protect Planned Parenthood or its employees
from any private lawsuits authorized by the aid-or-assist law.
How, after all, could plaintiff know whom to sue, and how
could a district court know whom to enjoin? The district
court’s injunction thus does not completely remove the possi-
bility that Planned Parenthood could still face civil liability—
if a private party sued under the aid-or-assist law, and if the
Indiana court disagreed with the district court’s and our de-
cisions here.
1

One indispensable element of Article III standing is that it
must be likely that plaintiff’s alleged injury would be
redressed or prevented by a favorable decision. Lujan, 504
U.S. at 561. Defendants argue that the private enforcement
mechanism in Indiana’s aid-or-assist law means that the
injunction cannot actually redress or prevent the First
Amendment injury that Planned Parenthood fears.
This argument misunderstands the redressability prong of
standing doctrine. Redressability does not require the plain-
tiff to “show that a favorable decision will relieve his every

1
The Texas Heartbeat Act (Senate Bill 8) took effect in 2021. It banned
most abortions after the detection of a fetal heartbeat and relied heavily
on civil enforcement by private parties. Even before Dobbs, the Supreme
Court declined to stay Senate Bill 8’s novel private enforcement mecha-
nism. Whole Woman’s Health, 595 U.S. at 44–45 (plurality). The Supreme
Court nevertheless permitted the pre-enforcement challenge to proceed
against individual state licensing officials with disciplinary authority over
medical providers. Eight Justices agreed the suit could go forward against
those defendants. Id. at 45–48 (plurality), 59–60 (Roberts, C.J., concurring
in the judgment in relevant part), 63 (Sotomayor, J., concurring in the judg-
ment in relevant part). We follow a similar course here.

No. 24-2219 15
injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (empha-
sis in original), quoted in Massachusetts v. EPA, 549 U.S. 497,
525 (2007). Redressability is not meant to be an onerous obsta-
cle to standing. Where a plaintiff seeks monetary relief,
“[e]ven ‘one dollar’ of additional revenue” can be enough to
show redressability. Diamond Alternative Energy, LLC v. EPA,
606 U.S. 100, 114 (2025), quoting Uzuegbunam v. Preczewski,
592 U.S. 279, 292 (2021). It is enough that a plaintiff’s re-
quested relief would redress “at least some” of her injuries,
even if the relief might not wholly eliminate them. Id.; Brown
v. Kemp, 86 F.4th 745, 770 (7th Cir. 2023) (injunction prevent-
ing named defendants from enforcing statute satisfied re-
dressability even if “a few rogue law enforcement officers
might still mistakenly try to enforce” challenged statute).
In other words, Article III standing does not require a
plaintiff seeking an injunction against enforcement of a
statute to sue all defendants who might possibly enforce the
statute against that plaintiff in the future. The possibility of
private enforcement—and the record does not indicate that
any efforts have been made since public enforcement of the
aid-or-assist law was first enjoined in 2017—does not defeat
standing against members of the Indiana Medical Licensing
Board. The injunction prevents members of the Board from
taking disciplinary action against physicians who work for
plaintiff and thus protects its employees and plaintiff itself
from this particular harm. That’s sufficient to show
redressability.
3. Pre-enforcement Standing
Defendants’ second more specific standing argument is
that Planned Parenthood and its physicians have not yet faced
a sufficiently credible threat of public enforcement. As noted,

16 No. 24-2219
this is a pre-enforcement, as-applied First Amendment chal-
lenge to the aid-or-assist law. Such a challenge requires a
plaintiff to show injury-in-fact in at least one of two ways.
First, a plaintiff may show “an intention to engage in a course
of conduct arguably affected with a constitutional interest,”
coupled with a “credible threat” that the law prohibiting such
conduct will be enforced against him. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979). Second, a plain-
tiff may show “a chilling effect on his speech that is objectively
reasonable, and that he self-censors as a result.” Speech First,
Inc. v. Killeen, 968 F.3d 628, 638 (7th Cir. 2020).
Defendants focus on the first prong of this test but do not
address the second. Planned Parenthood has established
standing under that second prong based on its evidence of the
law’s chilling effects on protected expression. Plaintiff pre-
sented substantial uncontested evidence about the services it
provides, including details about its intent to continue
providing unemancipated minors with information about
abortion services that are lawful in other states. Defendants
insist that providing that information is prohibited by the aid-
or-assist law.
Planned Parenthood’s mission includes advocating for the
rights of its patients to obtain abortion services, “including
abortion services in other states even when an abortion may
not be lawful in Indiana.” Declaration of K. Smith ¶ 28.
Planned Parenthood’s evidence supporting its motion for
summary judgment explained that, even if a broad abortion
ban took effect in Indiana, Planned Parenthood would still
“continue to operate health centers throughout Indiana that
provide reproductive health services other than abortion, in-
cluding to unemancipated minors.” Id. ¶ 25. Plaintiff specified

No. 24-2219 17
that its continued reproductive services would include “preg-
nancy tests and other pregnancy-related services as well as
referrals for abortion care.” Id. If a state abortion ban were to
take effect, Planned Parenthood noted, sharing this infor-
mation would “become even more important and more fre-
quent” in the organization’s practice. Id. ¶ 26.
Defendants have not disputed plaintiff’s theory of
standing: a physician who provides this information without
complying with the statute’s detailed parental consent
requirements would be subject to professional discipline.
Plaintiff offered evidence that it is “extremely concerned that,
if these statutes take effect, its physicians may be prosecuted
or have actions taken against their license, or [plaintiff] itself
will be subject to adverse consequences ... The possibility of
criminal liability or licensing sanctions for a perceived
violation is of particular concern given the politicized nature
of abortion services.” Id. ¶ 14.
2

In a variation on this argument, defendants also suggest
that fear of licensing sanctions for physicians does not sup-
port standing because the individuals who share information
or provide referrals regarding lawful out-of-state abortions
are plaintiff’s non-medical staff, not its physicians. This argu-
ment is not persuasive as a matter of fact.
Defendants base this argument on Planned Parenthood’s
general language referring to its “employees” and “staff” in

2
This is not a hypothetical concern. See, e.g., In re Rokita, 219 N.E.3d
733, 733–35 (Ind. 2023) (Indiana Attorney General admitted two violations
of attorney disciplinary rules after making false, nationally televised accu-
sations of misconduct against physician who provided lawful abortion
services).

18 No. 24-2219
its district court briefs. Defendants contend that plaintiff can
show a threat of enforcement actions against its physicians
only by proving its licensed physicians personally share this
information about, or make referrals for, lawful abortions in
other states. The physicians are “employees” and “staff.” We
find no support for defendants’ theory that general references
to “employees” excluded physician employees. Defendants
recognized as much in their January 2023 brief on cross-
motions for summary judgment, acknowledging that Planned
Parenthood contended its physicians personally advise
minors on how to obtain lawful abortions in other states. Dkt.
No. 89 at 17.
3

Accordingly, plaintiff’s evidence shows a sufficiently con-
crete “threat of an imminent future injury” required for stand-
ing to bring a pre-enforcement First Amendment challenge to
a law. Brown v. Kemp, 86 F.4th at 761, citing Lujan, 504 U.S. at
560; accord, e.g., Chiles v. Salazar, 607 U.S. —, —, 146 S. Ct.
1010, 1019 & n.* (2026) (licensed mental-health counselor had
standing for pre-enforcement challenge to state restriction on

3
As a matter of law, the defense argument is also at least doubtful.
State regulations provide: “A practitioner shall be responsible for the con-
duct of each and every person employed by the practitioner ... for every
action or failure to act by said employee or employees in the course of said
employee’s employment relationship with said practitioner ....” 844 Ind.
Admin. Code § 5-2-12. Other employees of plaintiff may not be “employed
by the practitioner” but would be supervised by the practitioner. The par-
ties have not cited, and we have not found, clear guidance in Indiana law
about how the Indiana Medical Licensing Board deals with employee-
physicians’ failures to supervise other employees so as to ensure compli-
ance with the law. We need not resolve this issue because the factual rec-
ord here shows that the aid-or-assist law would have a chilling effect on
arguably protected speech of the licensed physicians.

No. 24-2219 19
therapy provided to minors on issues of sexual orientation
and gender identity); Susan B. Anthony List v. Driehaus, 573
U.S. 149, 161–67 (2014) (plaintiff that had been charged with
prior violation of law showed sufficient threat of future en-
forcement action).
In sum, Planned Parenthood presented undisputed
evidence sufficient to establish its standing to seek and win
injunctive relief against members of the Indiana Medical
Licensing Board.
III. The Merits of the Permanent Injunction
Turning to the merits of plaintiff’s First Amendment
challenge to the aid-or-assist law, we proceed as follows. In
Part III-A, we explain why the First Amendment protects the
information plaintiff seeks to provide about lawful abortion
services in other states. We reject the defense arguments that
the speech is “integral to unlawful conduct” and that the
speech is merely “incidental” to conduct. In Part III-B, we
explain why the aid-or-assist law amounts to a content-based
and viewpoint-based restriction on speech that is subject to
strict constitutional scrutiny, meaning the state must show the
restriction is narrowly tailored to serve compelling state
interests. In Part IV, we apply that strict scrutiny and explain
why we agree with the district court that the aid-or-assist law,
as applied to plaintiff, fails to satisfy that demanding test.
A. Speech Protected Under the First Amendment
We first address whether the information and referrals at
issue are entitled to any First Amendment protection at all.
Defendants argue that First Amendment protections do not
apply here on the theories that the information and referrals
are “speech integral to criminal conduct” or merely

20 No. 24-2219
“incidental” to conduct. We are unpersuaded by both argu-
ments. The aid-or-assist law, as applied to the information
and referrals at issue, is a content-based regulation of speech.
1. Speech Integral to Unlawful Conduct?
Defendants contend that Planned Parenthood’s speech
about lawful abortion services in other states should not
receive First Amendment protection because it falls within a
historically excepted category for speech intended to bring
about unlawful conduct. United States v. Williams, 553 U.S.
285, 298 (2008); Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 498 (1949). This category of speech falls outside First
Amendment protection because “[s]peech intended to bring
about a particular unlawful act has no social value.” United
States v. Hansen, 599 U.S. 762, 783 (2023), citing Williams, 553
U.S. at 298. In this case, defendants do not identify a valid
underlying offense that is not the challenged statute itself.
Plaintiff’s speech does not fall within this exception to First
Amendment protection.
Following the Supreme Court’s lead, we assume for pur-
poses of this analysis that this exception encompasses speech
integral to conduct unlawful under civil as well as criminal
law. See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U.S. 376, 388–89 (1973) (exception applied to
newspaper advertisements for jobs organized by sex so as to
encourage illegal sex discrimination in hiring). For aiding-
and-abetting liability, precedent has long recognized that “the
concept of ‘helping’ in the commission of a crime—or a tort—
has never been boundless.” Twitter, Inc. v. Taamneh, 598 U.S.
471, 488 (2023). The fear of ensnaring innocent bystanders is
high.

No. 24-2219 21
Instead, aiding-and-abetting liability requires intentional
participation intended to bring about the commission of the
underlying offense. Rosemond v. United States, 572 U.S. 65, 71
(2014). This exception requires that the speech at issue be tied
to, and in furtherance of, the “violation of a valid ... statute.”
Giboney, 336 U.S. at 498. Defendants argue that Planned
Parenthood’s speech falls into this exception because the
information and referrals violate the aid-or-assist law itself,
which prohibits intentionally helping minors obtain abortions
without first complying with Indiana’s parental consent
requirements. This argument is of course circular: the speech
is integral to unlawful conduct because the challenged
restriction on speech makes it unlawful. In other words, the
theory goes, the speech is illegal because it is illegal.
This exception to First Amendment protection demands
more. It demands a separate underlying offense that is not the
challenged restriction on speech itself. See Hansen, 599 U.S. at
783 (collecting cases where this exception applies, all of which
involve the violation of a separate statute); Matsumoto v.
Labrador, 122 F.4th 787, 813–14 (9th Cir. 2024) (rejecting
argument that a violation of the challenged statute can serve
as “both the ‘underlying offense’ and the exception to
otherwise protected speech”); Eugene Volokh, The “Speech
Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981,
987 (2016) (“[T]he Giboney doctrine can’t justify treating
speech as ‘integral to illegal conduct’ simply because the
speech is illegal under the law that is being challenged.”). A
broader reading of the exception would undermine First
Amendment rights by shielding any statute that criminalizes
speech from strict scrutiny solely because the legislature
made such speech criminal.

22 No. 24-2219
To be clear, we can assume that speech aiding an
unemancipated minor in obtaining an illegal abortion in
Indiana would constitute speech integral to criminal conduct,
violating Indiana’s near-total abortion ban. See Ind. Code
§ 16-34-2-1. But Planned Parenthood’s practice of providing
information and referrals to out-of-state abortion providers
operating lawfully in other states does not go so far.
Defendants do not point to a violation of any other statute,
other than the aid-or-assist law itself, as the basis for this
exception.
Nor can an abortion performed lawfully in another state
serve as the underlying offense. The district court’s injunction
protects only speech aimed at conduct occurring in other
states—crucially—where that conduct is legal. Planned
Parenthood Great Northwest, 732 F. Supp. 3d at 982. Because the
district court’s injunction applies only to information about
providers who operate lawfully, there is no predicate criminal
offense to which the speech could be said to be integral.
4

4
Our analysis here is consistent with K.C. v. Individual Members of
Medical Licensing Board of Indiana, 121 F.4th 604 (7th Cir. 2024). In that case,
we reversed a preliminary injunction against enforcement of an Indiana
law prohibiting medical practitioners from providing gender transition
care to minors, regardless of the views of the minors’ parents. Among the
issues in the case, the physician plaintiffs brought a First Amendment
challenge to the “secondary liability provision” of the statute, which
provides that a physician or practitioner “may not aid or abet another
physician or practitioner in the provision of gender transition procedures
to a minor.” Ind. Code § 25-1-22-13(b). That portion of the case was similar
to this case because the physician plaintiffs sought to refer patients to
other physicians and to discuss with patients and their families “where
and to what extent gender transition procedures are available.” 121 F.4th
at 628.

No. 24-2219 23
Indiana’s parental consent and abortion requirements for
minors simply do not apply to the activities of out-of-state
providers. A state does not have the power to regulate or pro-
hibit lawful activities in another state “merely because the
welfare and health of its own citizens may be affected when
they travel to that State.” Bigelow v. Virginia, 421 U.S. 809, 824
(1975). Any contrary argument disturbs long-held principles
of horizontal federalism that confine a state’s legislative and
police powers to within its own borders. See State Farm Mu-
tual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 420–23 (2003) (state
jury could not award punitive damages based on defendant’s
nationwide course of conduct legal in other states: “A State
cannot punish a defendant for conduct that may have been
lawful where it occurred.”); id. at 421–22 (collecting support-
ing cases); Huntington v. Attrill, 146 U.S. 657, 669, 686 (1892)
(state could not refuse to honor other state’s civil judgment on
ground it imposed penalty inconsistent with receiving state’s
laws: “Laws have no force of themselves beyond the

But unlike this case, the physician plaintiffs in K.C. did not limit their
challenge to providing information about providers in other states where
these services are legal. Id. at 631 (“[Appellees] do not limit their challenge,
as the dissent says, to SEA 480’s bar on aiding and abetting out-of-state
providers.”). In other words, the K.C. majority understood the plaintiffs to
be challenging a ban on providing information about gender transition
care in Indiana that would be illegal in Indiana. Premised on the lack of
such a limit, this court found the plaintiffs’ speech was unprotected under
the “speech integral to unlawful conduct” exception. Id. at 629–31. The
K.C. majority did not decide the sort of question we face here, whether the
state may prohibit informing patients or clients about health care that is
legal in other states. The dissenting judge in K.C. understood the Indiana
law as not prohibiting such speech about care that is legal in other states,
which she understood was protected speech, not speech integral to un-
lawful conduct. Id. at 644–45 (Jackson-Akiwumi, J., dissenting).

24 No. 24-2219
jurisdiction of the state which enacts them, and can have ex-
traterritorial effect only by the comity of other states.”).
Nevertheless, defendants assert, it should be enough that
the information and referrals are provided in Indiana and that
such speech impedes the purpose of the statute: to protect
parents’ interests in and responsibilities for their children’s
well-being. Those state interests are legitimate, of course, as
we explain below in applying strict scrutiny. But that purpose
does not transform Planned Parenthood’s actions—providing
factually accurate information about and referrals to out-of-
state providers who lawfully provide abortions in their
states—into an independent crime. Indiana officials may dis-
agree with the purposes behind plaintiff’s speech and with
the laws and policies of other states. They cannot, however,
make it illegal to provide information about lawful conduct
in other states. Nor can they apply Indiana’s own parental
consent laws to out-of-state abortions. See Bigelow, 421 U.S. at
824–25, 827–28. As a result, defendants cannot prevail on the
theory that plaintiff’s activity violates the aid-or-assist law
two times over so that First Amendment protections do not
apply at all.
2. Speech Incidental to Conduct?
In a broader argument, defendants also contend that
Planned Parenthood’s speech receives no First Amendment
protection because the speech is merely incidental to conduct
generally. Defendants claim that the aid-or-assist law, with
ancillary effects on speech, targets conduct: aiding an une-
mancipated minor in obtaining an abortion without certain
parental consent. It is “true that the First Amendment does
not prevent restrictions directed at commerce or conduct from
imposing incidental burdens on speech.” Sorrell v. IMS Health

No. 24-2219 25
Inc., 564 U.S. 552, 567 (2011). But we disagree with defendants
that this speech is only incidental. The statute, as applied to
plaintiff’s speech about lawful abortions in other states, bur-
dens protected speech.
In an as-applied First Amendment challenge, we look not
at the broad applications of the challenged law generally but
specifically at whether the law as applied targets plaintiff’s
speech. Chiles, 607 U.S. at —, —, 146 S. Ct. at 1021–22, 1024. In
other words, our review in this as-applied challenge is more
searching than whether the statute generally covers non-
speech conduct. The dispositive question is whether “the
conduct triggering coverage under the statute consists of
communicating a message.” Holder v. Humanitarian Law
Project, 561 U.S. 1, 28 (2010).
Defendants assert that the aid-or-assist law “is concerned
with what people do, not what they say,” and that the law
applies only incidentally to some speech. That description
fails to engage with the narrow focus of plaintiff’s as-applied
challenge and the narrow focus of the district court’s injunc-
tion. In many situations, the aid-or-assist law may apply gen-
erally as a regulation of conduct. But the activities at issue
here—providing information and referrals to plaintiff’s pa-
tients—very much “depend[] on what [plaintiff] say[s].” Id. at
27.
The Supreme Court’s recent decision in Chiles v. Salazar
confirms the proper framework for applying the speech-
incidental-to-conduct doctrine to as-applied challenges. See
607 U.S. at —, 146 S. Ct. at 1020–26. Colorado adopted a law
prohibiting licensed counselors from practicing “conversion
therapy” in any form with minors. A Colorado mental health
counselor sought injunctive relief against the law’s

26 No. 24-2219
enforcement, specifically as applied to the talk therapy she
engaged in with her minor patients. Id. at —, 146 S. Ct. at 1018.
The state argued that the law targeted conduct or treatment,
but the Court disagreed.
Citing Cohen and Holder, the Court concluded that, even
though the law might often regulate conduct, “[plaintiff]
seeks to engage only in speech, and as applied to her the law
regulates what she may say. Her speech does not become
conduct just because the State may call it that.” Id. at 1023; see
Cohen v. California, 403 U.S. 15, 16–18 (1971) (defendant’s
breach-of-the-peace charge depended on vulgar message
displayed on his jacket; Court analyzed generally applicable
statute as it pertained to facts of violation); Holder, 561 U.S. at
27–28 (plaintiffs challenged “material support” statute as
applied to content of their training and advice; Court rejected
government’s argument that law did not warrant strict
scrutiny because it generally regulated conduct). Defendants
here ask us to look at the aid-or-assist law in its full range of
applications, but Chiles and its predecessors require a
narrower focus on plaintiff’s as-applied challenge.
The aid-or-assist law targets plaintiff’s speech directly be-
cause the information and referrals, Indiana says, fall within
the statute’s prohibitions. Defendants point to Rumsfeld v. Fo-
rum for Academic & Institutional Rights, Inc., where the Court
held that an equal-access statute generally regulated conduct,
not speech. 547 U.S. 47, 60 (2006). That law denied federal
funding to universities with policies that limited military re-
cruiters’ access to students and campus as compared to other
employers. The implicated speech in Rumsfeld, therefore, was
held to be incidental to conduct because schools were re-
quired to act under the statute—for example, by sending an

No. 24-2219 27
email on behalf of a military recruiter—only to the extent they
performed such conduct for other recruiters. Id. at 62. In an-
other example, the speech-incidental-to-conduct exception
applies where a non-discrimination statute would “require an
employer to take down a sign reading ‘White Applicants
Only.’” Id.
The challenge here is altogether different. Planned
Parenthood specifically brings an as-applied challenge,
seeking to share with unemancipated minors information
about and referrals to legal out-of-state abortion providers. It
is undisputed that such speech, on its own, would trigger
liability under the statute. So plaintiff’s speech cannot be
merely incidental to conduct; the regulated speech is itself the
targeted activity.
Our analysis here is also consistent with our treatment of
this exception in K.C. v. Individual Members of Medical Licensing
Board of Indiana, our recent case involving Indiana’s
regulation of gender transition care to minors. We said in K.C.
that, as a fallback to our analysis of the “speech integral to
unlawful conduct” exception, the statute’s liability provision
targeted conduct and burdened speech only incidentally. 121
F.4th at 629. We focused on Expressions Hair Design v.
Schneiderman, which properly cabined its analysis as to
whether the statute regulated conduct or speech based on the
plaintiffs’ as-applied challenge. 581 U.S. 37, 44, 46–48 (2017).
In Schneiderman, a statute prohibited a merchant from
imposing a credit card fee on its customer, but merchants
challenged the statute only insofar as they sought to “post[] a
cash price and an additional credit card surcharge” on, for
example, signs in their stores. Id. at 41, 44. The Supreme Court
found that plaintiffs’ as-applied challenge dealt only with the

28 No. 24-2219
communication of prices rather than the imposition of the
prices themselves. The prohibition on posting the credit card
surcharge regulated speech. By way of comparison, the Court
explained that a typical price regulation requiring, for
example, all delicatessens to charge the same price for a
sandwich would be a regulation of conduct—and
communication of that uniform rate would be speech
incidental to conduct. Id. at 47.
We found the statute challenged in K.C. to be more like the
hypothetical in Schneiderman. But our analysis did not hinge
on the as-applied nature of the challenge or on precedents
evaluating the speech-incidental-to-conduct exception in an
as-applied posture.
Here, however, Planned Parenthood’s as-applied chal-
lenge addresses only speech providing information about care
that is lawful in other states. That limit both distinguishes this
case from K.C. and confirms that the as-applied analysis in
Chiles governs. The permanent injunction is limited to “dis-
seminating to minors information regarding legal abortion
practices and abortion care providers in states other than Indi-
ana and from providing referrals to and contacting out-of-state
abortion providers on behalf of their minor patients.” (Em-
phases added.) As applied to only those narrow categories of
information, the aid-or-assist statute “regulates ‘speech as
speech.’” Chiles, 607 U.S. at —, 146 S. Ct. at 1026, quoting Na-
tional Institute of Family & Life Advocates v. Becerra (NIFLA), 585
U.S. 755, 770 (2018).
The information and referrals at issue here are thus pure
speech. The information Planned Parenthood seeks to share,
whether the speech includes the name of a website or infor-
mation contained in an informational handout, is plainly

No. 24-2219 29
speech. NIFLA, 585 U.S. at 766 (statutory requirement that cer-
tain providers disseminate a notice regarding affordable re-
productive care to patients was content-based regulation of
speech); Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (“As the
majority below put it, ‘if the acts of “disclosing” and “publish-
ing” information do not constitute speech, it is hard to imag-
ine what does fall within that category, as distinct from the
category of expressive conduct.’”) (alteration omitted), quot-
ing 200 F.3d 109, 120 (3d Cir. 1999).
Plaintiff’s referrals for minors are also protected speech.
For referrals, Planned Parenthood seeks to “contact ... an out-
of-state abortion provider, either by contacting the out-of-
state provider in the minor’s presence or by contacting the
out-of-state provider and having that provider contact the
patient directly.” Smith Decl. ¶ 21. Such contact undoubtedly
requires plaintiff to communicate a message both to the minor
and to the out-of-state provider, which is not just incidental
to plaintiff’s conduct. See Chiles, 607 U.S. at —, 146 S. Ct. at
1020–23 (mental health counselor’s conversion “talk therapy”
on issues of sexual orientation and gender identity was
protected speech; restrictions subject to strict scrutiny).
Advising a person of her legal rights and referring her to
someone who can help her exercise her rights is protected
speech. Valley Family Planning v. North Dakota, 489 F. Supp.
238, 242 (D.N.D. 1980) (state statute prohibiting use of public
funds to support any entity that referred patients for
abortions violated First Amendment), aff’d, 661 F.2d 99 (8th
Cir. 1981), citing NAACP v. Button, 371 U.S. 415, 434–35 (1963)
(state prohibition on referring clients to attorneys violated
First Amendment as applied to organization that promoted
civil rights enforcement). As the Supreme Court said in
NAACP v. Button, “‘Free trade in ideas’ means free trade in

30 No. 24-2219
the opportunity to persuade to action, not merely to describe
facts.’” 371 U.S. at 437, quoting Thomas v. Collins, 323 U.S. 516,
537 (1945). Planned Parenthood does not try to persuade
anyone to have an abortion. Its lesser steps of providing
information and referrals so clients can make their own
decisions are similarly protected speech.
B. Content-Based Regulation
Having concluded that plaintiff’s speech is protected
under the First Amendment, we consider next whether, as
applied to that speech, the aid-or-assist law is a content-based
or content-neutral law. A regulation of speech is content-
based if it “applies to particular speech because of the topic
discussed or the idea or message expressed,” or “‘on its face’
draws distinctions based on the message a speaker conveys.”
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), quoting Sorrell,
564 U.S. at 564. Regulations “that suppress, disadvantage, or
impose differential burdens upon speech because of its
content” are content-based and therefore subject to strict
scrutiny. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
642 (1994). On the other hand, “laws that confer benefits or
impose burdens on speech without reference to the ideas or
views expressed are in most instances content neutral.” Id. at
643. As applied to plaintiff’s speech, the aid-or-assist law is
content-based.
Again, the aid-or-assist law provides that a person “may
not knowingly or intentionally aid or assist an
unemancipated pregnant minor in obtaining an abortion
without the consent required by section 4 of this chapter.”
Ind. Code § 16-34-2-4.2(c). While the statute does not mention
speech on its face, plaintiff’s speech is covered by this law
because of its subject matter. The statute targets any activity,

No. 24-2219 31
including speech, that aids minors in obtaining an abortion
without first satisfying Indiana’s parental consent laws. See
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“The
principal inquiry in determining content neutrality ... is
whether the government has adopted a regulation of speech
because of disagreement with the message it conveys.”).
If plaintiff shares information with pregnant minors about
out-of-state care for prenatal care or ovarian cancer or
sexually transmitted infections, the aid-or-assist law is no
obstacle. But if the information shared or the referral made
concerns abortion, the statute is triggered. Because
defendants maintain that plaintiff and its employees would
violate the law by continuing to share the information and
referrals for legal out-of-state abortion care, the statute turns
on the message the speaker conveys even if it seems facially
neutral. See Reed, 576 U.S. at 163–64.
Viewpoint discrimination is a particularly “egregious
form of content discrimination” that targets “particular views
taken by speakers on a subject.” Rosenberger v. Rector & Visitors
of Univ. of Virginia, 515 U.S. 819, 829 (1995); accord, Chiles, 607
U.S. at —, 146 S. Ct. at 1021 (recognizing “the even greater
dangers associated with regulations that discriminate based
on the speaker’s point of view;” making “the violation of the
First Amendment ... all the more blatant”). The aid-or-assist
law is not viewpoint-neutral. It prohibits speech to the extent
that it aids an unemancipated minor in obtaining an abortion
without specific parental consent. In doing so, the statute as
applied to plaintiff prohibits speech of the view that an une-
mancipated minor would benefit, for a variety of reasons,
from the information or referrals shared, while permitting
speech with the opposite viewpoint. “In its practical

32 No. 24-2219
operation,” the aid-or-assist law thus allows conversations on
the subject of abortion but forbids a certain point of view. See
Sorrell, 564 U.S. at 565, quoting R. A. V. v. City of St. Paul, 505
U.S. 377, 391 (1992).
Our analysis here is consistent with the Ninth Circuit’s
decision affirming a preliminary injunction against
enforcement of a similar Idaho law punishing any health care
professional who “assists in performing or attempting to
perform an abortion.” Planned Parenthood Great Northwest,
Hawaii, Alaska, Indiana, Kentucky v. Labrador, 122 F.4th 825, 832
(9th Cir. 2024). The state attorney general wrote an official
letter interpreting the word “assist” to prohibit “medical
providers from ‘refer[ring]’ a patient ‘across state lines to an
abortion provider.’” Id. (alteration in original). The Ninth
Circuit found that the letter discriminated based on content
because it “silence[d] healthcare providers on the specific
topic of abortion.” Id. at 844. The letter also discriminated by
viewpoint by singling out professionals who believed “that
abortion services in another state would likely help a patient.”
Id. The same reasoning applies here.
Defendants argue that the actual content of the speech is
not relevant because plaintiff may share information or refer-
rals after complying with the Indiana parental consent law
that applies when a minor actually obtains an abortion. Even
apart from that law’s rigorous requirements, this argument
misses the First Amendment point. Whether the parental con-
sent requirements apply depends on the content and view-
point of the speech in question. “A law that is content based
on its face is subject to strict scrutiny regardless of the govern-
ment’s benign motive, content-neutral justification, or lack of
‘animus toward the ideas contained’ in the regulated speech.”

No. 24-2219 33
Reed, 576 U.S. at 165, quoting City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 429 (1993). Just because defendants
may approve of plaintiff’s speech when consent requirements
have been met does not “transform a facially content-based
law into one that is content neutral.” Id. at 166.
IV. Applying Strict Scrutiny
A. The Demands of Strict Scrutiny
When a statute imposes a content-based restriction on
pure speech, courts apply strict scrutiny. Sorrell, 564 U.S. at
565–66. Such laws are “presumptively unconstitutional and
may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” Reed,
576 U.S. at 163. As a practical matter, strict scrutiny is “fatal in
fact absent truly extraordinary circumstances.” Free Speech Co-
alition, Inc. v. Paxton, 606 U.S. 461, 485 (2025). Holder was a rare
exception. See 561 U.S. at 39 (federal statute banning “mate-
rial support” to terrorist organizations upheld under strict
scrutiny as applied to plaintiffs’ proposed forms of training,
advice, and assistance).
At the outset of our analysis, we must focus on Bigelow v.
Virginia, 421 U.S. 809 (1975). Bigelow ran a newspaper in Vir-
ginia. In 1971, before the Supreme Court recognized a limited
constitutional right for pregnant women to obtain abortions,
he had run an advertisement that told readers in Virginia that
abortions were legal in New York. The advertisement pro-
vided contact information for counseling to arrange for a legal
abortion in New York. Bigelow was convicted of violating a
Virginia statute that made it a crime to encourage the procur-
ing of an abortion. Id. at 811–14. The Supreme Court reversed,
holding that the First Amendment protected publication of

34 No. 24-2219
the advertisement. The Court explained that a state “may not,
under the guise of exercising internal police powers, bar a cit-
izen of another State from disseminating information about
an activity that is legal in that State.” Id. at 824–25, 829.
Bigelow would clearly control an effort by Indiana to re-
strict the flow of factually accurate information to adults
about abortion care that is legal in other states. Defendants
seek to distinguish Bigelow on the basis that Indiana’s aid-or-
assist law applies only to information that plaintiff provides
to minors. Defendants write that “States have greater leeway
to protect children’s wellbeing.” Reply Br. at 14–15, citing
Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (upholding
criminal convictions for violating state law restricting child
labor when child was employed to sell religious magazines).
That general principle is surely sound, especially as ap-
plied to child labor, as the Court explained in Prince. 321 U.S.
at 168 (state’s authority over children’s activity is broader
than for adults, which is “peculiarly true of public activities
and in matters of employment”). But authority over activity
is very different, for First Amendment purposes, from restrict-
ing the flow of information.
The advertisements in Bigelow appear to have been equally
available to adults and to minors. The Bigelow opinion did not
address whether its reasoning would extend to advertising
directed specifically at minors. Nevertheless, the Supreme
Court has struck down other restrictions on providing
information or entertainment to minors, with the lone
exception of pornography. In Brown v. Entertainment
Merchants Ass’n, 564 U.S. 786 (2011), the Supreme Court
applied strict scrutiny to hold that a state statute prohibiting
the sale or rental of violent video games to minors violated

No. 24-2219 35
the First Amendment. The Court recognized that states may
restrict the sale of explicit sexual material to children. Id. at
792–94, citing Ginsberg v. New York, 390 U.S. 629, 638 (1968)
(definition of obscenity could be adjusted for minors). But the
Brown Court rejected the effort to broaden Ginsberg to violent
materials. The Court called California’s effort to create a new
category of regulations for speech directed at children
“unprecedented and mistaken. ‘[M]inors are entitled to a
significant measure of First Amendment protection, and only
in relatively narrow and well-defined circumstances may
government bar public dissemination of protected materials
to them.’” Id. at 794 (alteration in original), quoting Erznoznik
v. City of Jacksonville, 422 U.S. 205, 212–13 (1975) (striking
down ordinance making it an offense for a drive-in movie
theater to exhibit films containing nudity). “Speech that is
neither obscene as to youths nor subject to some other
legitimate proscription cannot be suppressed solely to protect
the young from ideas or images that a legislative body thinks
unsuitable for them.” Id. at 795, again quoting Erznoznik, 422
U.S. at 213–14; accord, American Amusement Machine Ass’n v.
Kendrick, 244 F.3d 572 (7th Cir. 2001) (rejecting ordinance
applying pornography standards to violent video games;
enjoining ordinance requiring video arcades to require parent
or guardian to accompany minor who played violent video
games). That reasoning in both Brown and American
Amusement weighs against efforts to deny minors the benefit
of Bigelow v. Virginia.
Before parsing the specific asserted interests and the
narrow-tailoring issues, we must note that defendants have
not identified any comparable cases allowing restrictions on
providing accurate information to adults or minors about
activities that are legal in other states. That absence, and the

36 No. 24-2219
rarity of laws surviving strict scrutiny, indicate that the state
defendants have at best a steep hill to climb.
We next identify Indiana’s averred compelling interests
advanced by applying the aid-or-assist statute to information
about and referrals to health care legally available to minors
in other states. We then turn to whether defendants have
shown that the statute is narrowly tailored to serve those in-
terests.
Defendants bear the burden of proving that the law
furthers a compelling state interest. Reed, 576 U.S. at 171.
Defendants assert that the aid-or-assist law furthers the state’s
compelling interests in protecting the parent-child
relationship, family relations, and Indiana children’s own
well-being. The Supreme Court has weighed heavily parents’
rights to be involved in their children’s medical decisions and
to act in their children’s best interest when “difficult
decisions” must be made. Parham v. J. R., 442 U.S. 584, 602
(1979); see also H. L. v. Matheson, 450 U.S. 398, 410 (1981);
Bellotti v. Baird, 443 U.S. 622, 633–39 (1979) (plurality). The
Supreme Court has also recognized that states have
“constitutional control over parental discretion in dealing
with children when their physical or mental health is
jeopardized.” Parham, 442 U.S. at 603. Defendants also cite the
importance of parental involvement “to supply essential
medical and other information to a physician.” See H. L., 450
U.S. at 411.
All of these are legitimate state interests, and we have no
difficulty acknowledging that at least the state’s interest in
safeguarding the sanctity of the parent-child relationship is
compelling. The fundamental problem here is that defendants
have not shown that the aid-or-assist law, as applied to

No. 24-2219 37
plaintiff’s speech about health care that is legally available in
other states, is narrowly tailored to serve those interests. First,
defendants have not offered evidence supporting their asser-
tions that the aid-or-assist law would actually serve any of
those state interests. Second, the aid-or-assist law is substan-
tially overinclusive and underinclusive in terms of serving
those interests. Such a poor fit between interests and
measures that purportedly serve them undermines the prof-
fered rationales and flunks strict scrutiny.
B. The Lack of Evidence
First, defendants have simply not supported their defense
with evidence. Defendants argue there is a rational connec-
tion between the speech restriction and the asserted state in-
terests, but they do so at too high a level of generality and
without proof. Defendants claim that the aid-or-assist law is
necessary because plaintiff impermissibly interferes with
those interests by sharing with its minor patients information
about or referrals to legal out-of-state abortion providers.
“[B]ut the First Amendment demands a more precise analy-
sis.” Fulton v. City of Philadelphia, 593 U.S. 522, 541 (2021).
To show that a restriction is necessary to further a compel-
ling governmental interest, defendants “must present more
than anecdote and supposition.” United States v. Playboy En-
tertainment Group, Inc., 529 U.S. 803, 822 (2000); accord, Fisher
v. Univ. of Texas at Austin, 570 U.S. 297, 313–14 (2013) (“Strict
scrutiny does not permit a court to accept a school’s assertion
that its admissions process uses race in a permissible way
without a court giving close analysis to the evidence of how
the process works in practice ... Strict scrutiny must not be
strict in theory but feeble in fact.”).

38 No. 24-2219
As our colleague on the district court explained, the
defendants failed to present any evidence that the state’s
interests in safeguarding the parent-child relationship or
protecting the physical and psychological well-being of
minors would actually be furthered by prohibiting private
individuals from disseminating truthful information to
pregnant minors about lawful abortion practices in other
states. Planned Parenthood Great Northwest, 732 F. Supp. 3d at
979–80. Are minors less likely to consult their parents after
receiving the information at issue from plaintiff? Or
conversely, does satisfaction of Indiana’s parental consent
requirements before receiving that information aid the
parent-child relationship in ways that a less stringent consent
requirement in this provision would not? Defendants offered
no evidence to answer those questions.
Defendants respond instead that the aid-or-assist statute
is “reasonably calculated to protect minors,” quoting lan-
guage from H. L., 450 U.S. at 412, where the Supreme Court
was satisfied that a state’s parental notification statute was ra-
tionally related to legitimate state interests. But strict scrutiny
compels a more precise analysis, and defendants have not
shown how the statute was calculated to further the state’s
interests here. See Brown, 564 U.S. at 799–801 (rejecting state’s
reliance on generalized, ambiguous evidence to justify speech
regulation where state could not establish “direct causal link”
between speech and harm). Without supporting evidence, we
cannot endorse defendants’ view that the aid-or-assist law
furthers the state’s compelling interests.
Instead of supplying evidence to demonstrate how the law
advances the state’s compelling interest in the parent-child
relationship, defendants point us to cases involving direct

No. 24-2219 39
challenges to parental consent statutes as applied to actual
abortions. See Hodgson v. Minnesota, 497 U.S. 417, 448–49 (lead
opinion) and 482 (Kennedy, J., concurring in the judgment in
relevant part) (1990) (upholding statute requiring 48-hour
waiting period after minor notified one parent of intent to
obtain abortion; reflecting views of six Justices on the
question); H. L., 450 U.S. at 400, 413 (upholding statute
requiring physicians to notify a minor’s guardian, if possible,
before performing an abortion); Bellotti, 443 U.S. at 626–27
(plurality) (finding unconstitutional a parental-consent
statute that did not include judicial bypass procedure). We see
a significant difference, however, between a parent’s right to
consent to or to be notified before her child receives an
abortion and a parent’s right to block access to accurate
information about or a referral to an out-of-state provider of
legal abortion care.
We also cannot square defendants’ asserted interest in
protecting the parent-child relationship with the strong
constitutional protections given to factually accurate speech
about conduct that is legal in another state. As addressed in
Bigelow, “Virginia is really asserting an interest in regulating
what Virginians may hear or read about the New York
services. It is, in effect, advancing an interest in shielding its
citizens from information about activities outside Virginia’s
borders, activities that Virginia’s police powers do not reach.”
421 U.S. at 827–28.
The Supreme Court has further recognized that protecting
the ability to disseminate factually accurate information is
even more consequential in the healthcare context, where
patients rely on their doctors to “make deeply personal
decisions.” NIFLA, 585 U.S. at 771, quoting Wollschlaeger v.

40 No. 24-2219
Governor of Florida, 848 F.3d 1293, 1328 (11th Cir. 2017) (en
banc) (Pryor, J., concurring); Sorrell, 564 U.S. at 566 (“[I]n the
fields of medicine and public health ... information can save
lives.”). In other words, even though defendants may fiercely
disagree with the less stringent parental consent requirements
of neighboring states, this alone cannot justify targeting
plaintiff’s speech just because it is directed at minors.
C. Overinclusive and Underinclusive
Indiana’s aid-or-assist law is not narrowly tailored to
serve the state’s legitimate and even compelling interest in
protecting the parent-child relationship. For that interest, it is
both overinclusive and underinclusive.
The first problem is the statute’s requirement that plaintiff
obtain, or “seek[] to obtain,” consent under Indiana’s
stringent parental consent requirements—the standards that
apply before actually having an abortion—merely to provide
the information and referrals at issue. Under the aid-or-assist
law, plaintiff must receive a parent’s written consent form,
government-issued proof of identification, and some
evidence “that provides an articulable basis for a reasonably
prudent person to believe” the pregnant minor and parent are
related before uttering the name of a single website. See Ind.
Code § 16-34-2-4(b). As Judge Scudder highlights in his
concurrence, the law also requires that the parent’s signature
even be notarized. That requirement seems both
unprecedented and extraordinary as a condition of sharing
truthful information about legal activities in another state. If
a pregnant minor does not wish to notify her parents, the
minor must prove to a juvenile court that she is mature
enough to make this decision independently, and then that it
is in her best interests to obtain an abortion without parental

No. 24-2219 41
notification, all just to receive information about health care
legally available in another state, especially where time is
critical for that health care. § 16-34-2-4(e) & (f). The judicial
bypass procedures evolved to apply to a minor’s actually
obtaining an abortion. Extending that requirement of filing a
legal action as a minor before she can obtain factual
information otherwise available with a quick on-line search
seems to be another unprecedented and extraordinary
obstacle. We are not aware of any other comparable legal
limits on providing to a minor factual information about legal
activity.
Defendants contend that Indiana’s parental consent
requirement is not complex, comparing it to what they say are
similar documentation requirements to vote, to enter a federal
building, or to be nominated for political office. Appellants’
Br. at 42–43, citing Crawford v. Marion County Election Bd., 472
F.3d 949, 952 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008)
(government-issued proof of identity to vote); United States v.
Smith, 426 F.3d 567, 573 (2d Cir. 2005) (government-issued
identification required to enter federal building); Tripp v.
Scholz, 872 F.3d 857, 866–69 (7th Cir. 2017) (nominating
petitions to run for office must be notarized, but individual
voters’ signatures did not require notary). The aid-or-assist
law requires much more than identification requirements to
vote or enter a federal building. And gaining a position on a
ballot is not a fair comparison to merely receiving helpful
information about legal care in other states. The defendants’
comparisons do not show that the details of the aid-or-assist
law’s requirements for proving parental consent are narrowly
tailored to advance Indiana’s compelling interests.

42 No. 24-2219
Plaintiff also points to situations in which its minor clients
do not know where their parents are, risk physical or mental
abuse if they try to obtain their required consent, or might be
forced to carry an unwanted pregnancy to term once their
parents are alerted. The state has not engaged with those
effects of its statute, which, far from advancing the state’s
compelling interest in child welfare, would harm pregnant
minors, including mature minors, by depriving them of
information that could help them make a decision protecting
their health and safety.
Second, the statute does not define the “seeking to obtain”
provision, undermining the state’s arguments for narrow tai-
loring. The statute is written to prohibit a Planned Parenthood
physician from sharing information with a minor who has
written consent from a parent, but where the signature on the
written consent has not been witnessed by a notary public. Or
suppose a minor patient tells Planned Parenthood that she
will talk to her parents that night about getting their written
consent. What about when both parents accompany the mi-
nor to the Planned Parenthood appointment but do not have
satisfactory proof of identification with them? Defendants
recognized at oral argument that these are close questions of
fact about whether the law applies. In their reply brief, de-
fendants recognize that “it is not clear the statute would ap-
ply.” But “a law’s chilling effect is particularly great when it
is unclear whether that law actually forbids the contemplated
activity.” Mercatus Group, LLC v. Lake Forest Hospital, 641 F.3d
834, 847 (7th Cir. 2011). Given the scope of the provision, there
is no way for plaintiff to avoid liability in practice other than
to require strict adherence to Indiana’s parental consent re-
quirements.

No. 24-2219 43
Defendants point out that the aid-or-assist law prohibits
only “knowingly or intentionally” aiding or assisting. See Ind.
Code § 16-34-2-4.2(c). But if plaintiff intentionally provides in-
formation to a minor in any of the above situations, there is
significant risk of liability for plaintiff and its employees if the
minor actually obtains an abortion in another state. Given this
uncertainty, there is great reason to anticipate a chilling effect
on plaintiff’s speech. The inclusion of a scienter requirement
does not cure the statute’s constitutional defect: it continues
to impose obligations on plaintiff that are not narrowly tai-
lored to the state’s important interests.
Indiana’s aid-or-assist law as applied to plaintiff is also
overinclusive in that it assumes, without showing, that
Planned Parenthood intentionally provides this information
to help minors evade Indiana’s parental consent require-
ments. But Planned Parenthood has identified numerous rea-
sons why its minor patients seek this information that are not
efforts to bypass parental consent and notification.
Recall that Indiana’s abortion laws criminalize abortion
except in the narrow cases of lethal fetal anomaly, rape, or
incest, or to prevent serious health risks to the pregnant
woman. Ind. Code. § 16-34-2-1(a)–(c). Since almost any
abortion in Indiana would be illegal, most individuals seeking
an abortion must travel out of state to obtain one. A minor
need not satisfy Indiana’s parental consent requirements to
obtain an abortion if the abortion will not take place in the
state of Indiana. If that minor is now subject to another state’s
parental consent requirements before obtaining an abortion,
why must she first satisfy Indiana’s set of requirements for
obtaining an abortion just to receive related information or to
be placed in contact with an out-of-state provider?

44 No. 24-2219
Plaintiff has further offered evidence that its minor
patients do not seek abortions in other states because of less
onerous parental consent requirements. Indeed, plaintiff
asserts that “the overwhelming majority of minors obtaining
an abortion do so with their parent’s consent.” Appellee’s Br.
at 44, citing Declaration of F. Beeley at ¶ 9 (“[I]n fiscal year
2015—the last year for which data is available—96.3% of
minors who had abortions at [plaintiff] had the consent of a
parent or legal guardian.”). Instead, patients who would
otherwise have parental consent, and who might even fit into
one of Indiana’s narrow exceptions for an in-state abortion,
seek to go to an out-of-state provider because it is
geographically closer than in-state providers, or because out-
of-state care is significantly less expensive. Id. at 41; Smith
Decl. ¶ 26. The aid-or-assist law is not narrowly tailored if it
covers minors who have no intent to evade parental
involvement by seeking an out-of-state abortion provider.
Further undermining the state’s argument for narrow tai-
loring, the aid-or-assist statute is underinclusive as a means
to protect the state’s asserted interests. The contents of the
speech at issue—information for minor patients—are readily
available to a pregnant minor without help from plaintiff. The
information Planned Parenthood provides (often just the
name of a website) is not exclusive to plaintiff. The minor pa-
tient herself can access it easily with a computer or
smartphone. And surely, even though Planned Parenthood
may seek to help a patient who needs more assistance by
providing referrals, placing the phone call to an out-of-state
abortion provider is not something only the professionals at
Planned Parenthood can do.

No. 24-2219 45
More fundamental, defendants do not address why the
statute incorporates such stringent parental consent require-
ments just to receive information that can readily be found
online. In this digital age, this fact undermines the state’s as-
sertions, unsupported by evidence, that prohibiting plaintiff’s
speech would actually further the state’s asserted interest in
minors’ well-being. See Reed, 576 U.S. at 172 (noting a “law
cannot be regarded as protecting an interest of the highest or-
der, and thus as justifying a restriction on truthful speech,
when it leaves appreciable damage to that supposedly vital
interest unprohibited”), quoting Republican Party of Minnesota
v. White, 536 U.S. 765, 780 (2002). And we see no permissible
basis upon which the state could try more broadly to prohibit
a minor from seeking or receiving the information at issue
here. Information about legally available health care is not
comparable to pornography that can be denied to minors. See
Brown, 564 U.S. at 792–94.
The aid-or-assist law is underinclusive in another way. In-
diana asserts interests in the parent-child relationship, family
relations, and children’s own well-being. Its aid-or-assist law
focuses only on abortion. Indiana has not explained how ap-
plying this statute to Planned Parenthood, where it forbids
plaintiff from sharing its desired information about and refer-
rals to out-of-state abortion providers, is sufficiently tailored
to those interests where all other medical advice relating to
the minor’s pregnancy is not subject to these stringent paren-
tal consent and notice requirements. That fact also contributes
to our “serious doubts about whether the government is in
fact pursuing the interest it invokes, rather than disfavoring a
particular speaker or viewpoint.” Id. at 802.

46 No. 24-2219
Last, defendants assert that the state has an interest in en-
suring that a treating physician has access to a minor’s full
medical records. Defendants have not shown how the statute
helps serve this interest, let alone that it is narrowly tailored
to serve it. The statute as written need not serve that interest,
and there are surely other, less onerous ways to ensure that
treating doctors have adequate access to a minor’s records
that do not involve burdening plaintiff’s speech.
In a fallback argument, defendants seem to recognize the
tailoring problem. They argue that even if the prohibition on
providing information more generally does not advance
Indiana’s interests, the ban on referrals does advance those
interests. For purposes of First Amendment protection, we are
not persuaded there is a constitutional distinction between
providing a telephone number to a minor patient and placing
the call for her when she needs additional assistance.
Defendants do not challenge the remaining requirements
for permanent injunctive relief, which are also satisfied here.
See eBay Inc. v. MercExchange, L. L. C., 547 U.S. 388, 391 (2006).
First Amendment violations have long been deemed to inflict
irreparable harm. See, e.g., Roman Catholic Diocese of Brooklyn
v. Cuomo, 592 U.S. 14, 19 (2020), citing Elrod v. Burns, 427 U.S.
347, 373 (1976) (plurality). Given the merits of plaintiff’s claim,
the balance of hardships weighs in favor of plaintiff, and the
public interest would not be disserved by this injunction.
* * *
The district court’s permanent injunction is MODIFIED so
that it no longer runs against the Commissioner of the Indiana
Department of Health, and as thus modified is AFFIRMED.

No. 24-2219 47
SCUDDER, Circuit Judge, concurring in the judgment. I agree
with the majority that Indiana’s aid-or-assist statute restricts
speech on the basis of viewpoint and fails to survive strict
scrutiny. In my respectful view, however, today’s decision
reaches this conclusion on reasoning that undervalues Indi-
ana’s compelling interest in keeping parents involved in
every stage of a minor’s decision about whether to get an
abortion. The majority’s narrow tailoring analysis also misses
the mark by finding too much fault with the means Indiana
chose to ensure parental involvement in such a grave and con-
sequential decision. In my view, Indiana’s statute is overin-
clusive solely because of its notary requirement. All of this
leaves me to concur in today’s judgment on this narrow
ground.
I
A
Senate Enrolled Act 404 reflects the Indiana General As-
sembly’s desire to give parents a central role in their chil-
dren’s abortion decisions. Section 4 provides that when an un-
emancipated minor becomes pregnant, she generally may not
get an abortion unless she secures parental consent or a judi-
cial waiver. See Ind. Code § 16-34-2-4. The consent must meet
several requirements. A parent must provide the physician
with (1) “notarized written consent,” (2) “government issued
proof of identification,” and (3) “some evidence, which may
include identification or other written documentation that
provides an articulable basis for a reasonably prudent person
to believe that the person is the parent.” Id. § 16-34-2-4(b). A
court will waive the consent requirement if it finds that “the
minor is mature enough to make the abortion decision

48 No. 24-2219
independently or that an abortion would be in the minor’s
best interests.” Id. § 16-34-2-4(f).
Indiana bolstered this parental consent requirement in
section 5 of the Act. That section provides that “[a] person
may not knowingly or intentionally aid or assist an
unemancipated pregnant minor in obtaining an abortion”
unless the minor “has obtained or is seeking to obtain: (1)
parental consent; or (2) a waiver of parental consent; under
section 4 of this chapter.” Id. § 16-34-2-4.2(b), (c). Both sides
agreed before the district court that this law prohibits Planned
Parenthood “from providing information to young women
about abortion options outside the state of Indiana where
parental-involvement requirements might be less expansive.”
B
I agree with the majority that section 5 targets speech in-
stead of conduct, at least for this as-applied action. To be sure,
the law resembles the one at issue in K.C. v. Individual Members
of Medical Licensing Board of Indiana, 121 F.4th 604 (7th Cir.
2024). The statutory text “does not address speech at all.” Id.
at 630 (distinguishing Sorrell v. IMS Health Inc., 564 U.S. 552
(2011)). Indeed, it provides that “physicians must avoid some
action, not that they must avoid some language.” Id. (distin-
guishing Expressions Hair Design v. Schneiderman, 581 U.S. 37
(2017)). But the Supreme Court has recently instructed that
when it comes to as-applied challenges where the plaintiff
“seeks to engage only in speech,” then “as applied to her the
law regulates what she may say.” Chiles v. Salazar, 146 S. Ct.
1010, 1023 (2026). “Just because a law may generally function
as a regulation of conduct ... does not exempt it from de-
manding First Amendment review when a government seeks
to apply that law to speech alone.” Id. at 1025 (cleaned up).

No. 24-2219 49
I also agree that section 5 restricts speech based on content.
That is because the provision “singles out [the] specific subject
matter” of abortion. Reed v. Town of Gilbert, 576 U.S. 155, 169
(2015). We must therefore apply strict scrutiny—“a demand-
ing standard” that only a “rare” regulation will satisfy. Chiles,
146 S. Ct. at 1021 (cleaned up).
The majority is also right that section 5 restricts speech on
the basis of viewpoint. It prohibits sharing information about
the availability of out-of-state abortions only when the
speaker seeks to “knowingly or intentionally aid or assist an
unemancipated pregnant minor in obtaining an abortion,”
Ind. Code § 16-34-2-4.2, not when they seek to dissuade the
minor from terminating her pregnancy. The statute, in short,
“targets not merely a subject matter, but particular views
taken by speakers on a subject.” Vidal v. Elster, 602 U.S. 286,
293 (2024) (cleaned up).
The First Amendment strongly disfavors and all but con-
demns viewpoint-based restrictions on speech. “When the
government targets not subject matter, but particular views
taken by speakers on a subject, the violation of the First
Amendment is all the more blatant.” Rosenberger v. Rector &
Visitors of Univ. of Virg., 515 U.S. 819, 829 (1995). Or, as the
Court put the point more recently in Chiles, “[v]iewpoint dis-
crimination ... represents an egregious form of content regu-
lation, and governments in this country must nearly always
abstain from it.” 146 S. Ct. at 1021 (cleaned up).
Courts are so wary of viewpoint-based discrimination that
some have recognized that “there is an argument that such
regulations are unconstitutional per se.” Otto v. City of Boca
Raton, 981 F.3d 854, 864 (11th Cir. 2020) (first citing Rosen-
berger, 515 U.S. at 829, and then citing Members of the City

50 No. 24-2219
Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). At
minimum, the Supreme Court “has at times hinted that the
rule for viewpoint-based restrictions may be more stringent
than for content-based restrictions.” Eugene Volokh, Freedom
of Speech, Permissible Tailoring & Transcending Strict Scrutiny,
144 U. Pa. L. Rev. 2417, 2425 n.44 (1996) (collecting cases). For
our part, we have avoided announcing that viewpoint-based
restrictions are per se invalid and instead evaluated them by
employing strict scrutiny. See Brown v. Kemp, 86 F.4th 745, 783
(7th Cir. 2023). Even then, though, we must do so in a way
that does “not leave a lot of breathing room for viewpoint-
based speech restrictions.” Otto, 981 F.3d at 864; see also Nat’l
Inst. of Family & Life Advocs. v. Becerra, 585 U.S. 755, 775 (2018)
(“Precision must be the touchstone when it comes to regula-
tions of speech, which so closely touch our most precious free-
doms.” (cleaned up)).
I agree with the majority that Indiana’s aid-or-assist stat-
ute falls short of this exacting standard. But I get there
through very different reasoning than my colleagues. Fore-
most, the majority diminishes the weight of Indiana’s interest
underpinning section 5. It does so by relying on Bigelow v. Vir-
ginia, 421 U.S. 809 (1975), to support the proposition that In-
diana has no authority to regulate in-state speech about the
availability of out-of-state medical procedures. See Maj. Op.
at 27, 39–42, 46–47. But Bigelow did not involve minors, nor
did the Justices say anything suggesting that the case’s prin-
ciples extend to children. Indeed, our circuit has upheld an
Indiana statute regulating when physicians may tell minor
patients about the availability of gender transition procedures
in other states. See K.C., 121 F.4th at 628, 631, 634. It is all but
impossible to see why Indiana would have less authority

No. 24-2219 51
when it comes to a minor considering whether to terminate a
pregnancy.
Not only does Indiana have the authority to regulate this
sort of in-state speech to minors, it has a compelling interest
in doing so. The State’s interest is in keeping parents involved
in their children’s most consequential, life-altering decisions,
including at the information-gathering stage. The Supreme
Court has recognized this interest many times over. See, e.g.,
Bellotti v. Baird, 443 U.S. 622, 639 (1979) (acknowledging “the
special interest of the State in encouraging an unmarried
pregnant minor to seek the advice of her parents in making
the important decision whether or not to bear a child”); H.L.
v. Matheson, 450 U.S. 398, 410 (1981) (“We have recognized
that parents have an important guiding role to play in the up-
bringing of their children, which presumptively includes
counseling them on important decisions.” (cleaned up));
Hodgson v. Minnesota, 497 U.S. 417, 444 (1990) (“The State has
a strong and legitimate interest in the welfare of its young cit-
izens, whose immaturity, inexperience, and lack of judgment
may sometimes impair their ability to exercise their rights
wisely.”); see also Zbaraz v. Hartigan, 763 F.2d 1532, 1536 (7th
Cir. 1985) (“The state clearly has a significant interest in pro-
moting parental consultation with a minor before her decision
to have an abortion.”). All of this was true before Dobbs v. Jack-
son Women’s Health Organization, 597 U.S. 215 (2022), and dou-
bly so in its wake given the authority States have when it
comes to regulating access to abortion.
I also part ways with the majority’s narrow tailoring anal-
ysis. My colleagues insist that section 5 is overinclusive be-
cause there may be “situations in which [Planned
Parenthood’s] minor clients do not know where their parents

52 No. 24-2219
are, risk physical or mental abuse if they try to obtain their
required consent, or might be forced to carry an unwanted
pregnancy to term once their parents are alerted.” Maj. Op. at
48. But that is exactly why Indiana included a judicial bypass.
See Ind. Code § 16-34-2-4.2(b)(2) (“This section does not apply
to a person who aids or assists an unemancipated pregnant
minor who has obtained or is seeking to obtain ... a waiver of
parental consent.”); see also id. § 16-34-2-4(f) (“The require-
ment of parental consent under this section shall be waived
by the juvenile court if the court finds that the minor is mature
enough to make the abortion decision independently or that
an abortion would be in the minor’s best interests.”).
The majority additionally sees section 5 as underinclusive
because it does not stop minors from learning about legal out-
of-state abortions through a quick Google search. See Maj. Op.
at 51–52. But “[a] State need not address all aspects of a prob-
lem in one fell swoop; policymakers may focus on their most
pressing concerns.” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449
(2015). Indeed, the Supreme Court has “accordingly upheld
laws—even under strict scrutiny—that conceivably could
have restricted even greater amounts of speech in service of
their stated interests.” Id. (collecting cases); see also id. at 452
(“The First Amendment does not put a State to that all-or-
nothing choice.”). I see no reason why Indiana needs to enact
some sort of blanket ban on abortion-related speech that a mi-
nor might see or hear, especially given the majority believes
such a law would be unconstitutional anyway. See Maj. Op.
at 52 (“And we see no permissible basis upon which the state
could try more broadly to prohibit a minor from seeking or
receiving the information at issue here.”). It is also worth re-
membering that this as-applied challenge concerns what li-
censed physicians may tell minor patients. Indiana may

No. 24-2219 53
understandably worry more about how a minor might receive
speech from a trusted, familiar medical professional than
from a more general online source.
The majority further contends that section 5 is underinclu-
sive because it “focuses only on abortion.” Maj. Op. at 52–53.
It suggests that Indiana’s interests in “the parent-child rela-
tionship, family relations, and children’s own well-being”
must be pretextual because the law does not apply to “all
other medical advice relating to the minor’s pregnancy.” Id.
But terminating a pregnancy is an especially “grave deci-
sion,” and a minor under intense stress “may be ill-equipped
to make it without mature advice and emotional support.”
Bellotti, 443 U.S. at 641. Indiana’s General Assembly is free to
take this view on abortion.
I agree that section 5 fails strict scrutiny for one narrow
reason. To my eye, the aid-or-assist statute is overinclusive
solely because of its notary requirement. Indiana not only
requires a parent to prove their identity (e.g., government-
issued identification) and to prove their relationship with the
minor (e.g., birth certificate), it also requires the parent to
submit “notarized written consent.” Ind. Code § 16-34-2-4(b).
Notaries seem to be going extinct in today’s digital age and,
at the very least, are not as easy to find as they were yesterday.
Notice, too, that Indiana’s notarization requirement means
that a verified parent could expressly consent—in writing and
before a witness—to a physician telling their minor child
about lawful abortion in other states and still not satisfy the
parental consent requirement. An alternative consent
framework that allows non-notaries to serve as witnesses
would sufficiently protect Indiana’s interest in the parent-
child relationship. See Doe v. City of Lafayette, 377 F.3d 757, 773

54 No. 24-2219
(7th Cir. 2004) (“The narrow tailoring inquiry requires that we
ask whether there are other, reasonable ways to achieve the
goals with a lesser burden on constitutionally protected
activity.” (cleaned up)).
Federalism is a cornerstone of the American experiment.
As far as I can tell, Indiana has the authority to enact a more
narrowly tailored version of section 5. But that choice rests
with Indiana’s elected representatives.
* * *
For these reasons, I CONCUR in the judgment.