                                 In the

        United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 17-2428
PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC.,
                                     Plaintiff-Appellee,
                                    v.

KRISTINA BOX*, Commissioner, Indiana
State Department of Health, et al.,
                                                Defendants-Appellants.
                       ____________________

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

        On Petition for Rehearing and Rehearing En Banc
                      ____________________


                         OCTOBER 30, 2019
                       ____________________




    *We have substituted the current Commissioner, Indiana State De-
partment of Health, for her predecessor, sued in an official capacity. Fed.
R. App. P. 43(c)(2).
2                                                  No. 17-2428

    Before WOOD, Chief Judge, FLAUM, EASTERBROOK, KANNE,
ROVNER, SYKES, HAMILTON, BARRETT, BRENNAN, SCUDDER, and
ST. EVE, Circuit Judges.
   PER CURIAM. On consideration of defendants-appellants’
petition for rehearing and rehearing en banc, filed on Septem-
ber 24, 2019, a majority of judges in active service voted to
deny the petition for rehearing en banc. Judges Flaum, Kanne,
Barrett, Brennan, and Scudder voted to grant the petition for
rehearing en banc. Judges Rovner and Hamilton voted to
deny panel rehearing; Judge Kanne voted to grant panel re-
hearing.
   Accordingly, the petition for rehearing and rehearing en
banc filed by defendants-appellants is DENIED.




    EASTERBROOK, Circuit Judge, with whom SYKES, Circuit
Judge, joins, concurring in the denial of rehearing en banc.
Talk is cheap, which makes it easy for the plaintiffs in a pre-
enforcement suit to predict the worst and demand that an in-
junction issue before the disaster comes to pass. If the judge
issues the injunction, the prediction cannot be tested—unless
by chance a similar rule in some other state is not enjoined,
and then the judiciary can learn by that experience. See, e.g.,
A Woman’s Choice—East Side Women’s Clinic v. Newman, 305
F.3d 684 (7th Cir. 2002). Unless a baleful outcome is either
highly likely or ruinous even if less likely, a federal court
should allow a state law (on the subject of abortion or any-
thing else) to go into force; otherwise the prediction cannot be
evaluated properly. And principles of federalism should al-
low the states that much leeway. Talk of the states as
No. 17-2428                                                     3

laboratories is hollow if federal courts enjoin experiments be-
fore the results are in.
    One case pending before the Supreme Court arises from a
pre-enforcement injunction. A district court predicted that en-
forcement of an admitting-privileges requirement would
close two of the three abortion clinics in Louisiana. June Med-
ical Services LLC v. Kliebert, 250 F. Supp. 3d 27 (M.D. La. 2017).
The court of appeals reversed, believing that prudent steps by
physicians would keep all three open. June Medical Services
L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), rehearing en banc
denied, 913 F.3d 573 (5th Cir. 2019). The Supreme Court
granted a petition for review. June Medical Services L.L.C. v.
Gee, No. 18–1323 (Oct. 4, 2019). Before the Justices can address
whether Louisiana’s statute creates an “undue burden,” they
must first decide what it would do if implemented—and the
pre-enforcement injunction has made that difficult. (The
Court stayed the Fifth Circuit’s decision, so the injunction re-
mains in effect.) Perhaps the Justices will say something about
the circumstances under which it is appropriate for a district
court to issue pre-enforcement relief that forever prevents the
judiciary from knowing what a law really does.
    If that happens, a grant of rehearing en banc in this case
would be unproductive. And whether or not it happens, a
grant of rehearing en banc would delay the ultimate resolu-
tion of this dispute. For a court of appeals cannot decide
whether requiring a mature minor to notify her parents of an
impending abortion, when she cannot persuade a court that
avoiding notification is in her best interests, is an “undue bur-
den” on abortion. The “undue burden” approach announced
in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), does not call on a court of appeals to interpret
4                                                    No. 17-2428

a text. Nor does it produce a result through interpretation of
the Supreme Court’s opinions. How much burden is “undue”
is a matter of judgment, which depends on what the burden
would be (something the injunction prevents us from know-
ing) and whether that burden is excessive (a matter of weigh-
ing costs against benefits, which one judge is apt to do differ-
ently from another, and which judges as a group are apt to do
differently from state legislators). Only the Justices, the pro-
prietors of the undue-burden standard, can apply it to a new
category of statute, such as the one Indiana has enacted. Three
circuit judges already have guessed how that inquiry would
come out; they did not agree. The quality of our work cannot
be improved by having eight more circuit judges try the same
exercise. It is better to send this dispute on its way to the only
institution that can give an authoritative answer.




    KANNE, Circuit Judge, with whom FLAUM, BARRETT,
BRENNAN, and SCUDDER, Circuit Judges, join, dissenting from
the denial of rehearing en banc. This case implicates an im-
portant and recurring issue of federalism: Under what cir-
cumstances, and with what evidence, may a state be pre-
vented from enforcing its law before it goes into effect? Given
the existing unsettled status of pre-enforcement challenges in
the abortion context, I believe this issue should be decided by
our full court. Preventing a state statute from taking effect is
a judicial act of extraordinary gravity in our federal structure.
