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. COMMISSIONER 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. HAMILTON, 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 plaintif