Planned Parenthood of Indiana filed suit against Indiana over new restrictions on abortion

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Indiana Governor Mike Pence signed HEA 1337 bill into law on March 24, 2016.  The bill passed both chambers of the Republican-controlled General Assembly with large majorities on March 11, 2016.  The bill authorized several restrictive measures that limit access to abortion through all stages of pregnancy.  The law made Indiana the second state to ban abortions based on fetal genetic abnormalities.  The restrictive Indiana bill is among several laws limiting abortion that have passed Republican-controlled legislatures in recent years.  However, the total amount of restraints on abortion contained in HEA 1337 made it distinct. The law takes effect in July 2016.

Governor Pence said that the law is “a comprehensive pro-life measure that affirms the value of human life.”  

Courts at every level in the United States have repeatedly held that people have a right to seek a first trimester abortion for any reason whatsoever.   Under the new abortion bill, women who seek abortions are required to recognize that “human physical life begins when a human ovum is fertilized by a human sperm.”  The new law also compels women to attend ultrasound screening 18 hours before the procedure and listen to the fetal heartbeat.  The law holds the doctors liable if a woman decides to have an abortion solely on the basis of the fetus’s race, sex or any physical or mental disability or disfigurement like Down syndrome or Scoliosis.  Physicians who perform such abortions may be sued for wrongful death or face discipline from the state medical board. It also restricts fetal tissue donation process.  One of the most important new restrictions of Indiana’s law is the requirement that physicians who perform abortions obtain hospital admitting privileges or have an agreement with a physician who already has these privileges.

In addition to restrictions on access to the procedure, the bill imposes new conditions on how abortion providers handle fetal remains from both abortions and miscarriages.  This considerably increases the costs of the procedure for the providers and differs from how other medical waste is disposed.  It requires them to cremate or bury the remains.  Governor Pence said that the law is “a comprehensive pro-life measure that affirms the value of human life.”  He added that the bill “will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability.”  However, Governor Pence signed the bill into law without any pressure from disability rights groups because no such groups testified on behalf of legislation.  Only some individuals with disabilities and parents with disabled kids showed support for the law.

After the abortion bill was signed into law, Planned Parenthood of Indiana and Kentucky and the Indiana Chapter of the ACLU filed lawsuit requesting a preliminary injunction.  An immediate injunction would prevent the enforcement of the law.  “It is similarly irrational to impose burial and cremation requirements on fetal tissue after a first trimester abortion if the abortion occurs within an abortion clinic or health care facility and the clinic or facility is requested to keep the fetal tissue by the woman having the abortion, but not if the woman elects to retain the fetal tissue herself,” the complaint states.  The complaint names the state health commissioner, prosecutors of four Indiana counties, and individual members of the state’s medical licensing board as defendants.

ACLU Indiana says the Indiana law is one of the most restrictive anti-abortion laws at this time . . .

The plaintiffs maintain that the state of Indiana is invading women’s privacy and places undue burden on women’s right to obtain an abortion since it bans the procedure in some circumstances, even when the fetus won’t survive.  Currently the organization does not inquire into the reasons behind a patient getting an abortion.  But the law would require physicians to report if a fetal anomaly had been present prior to the abortion, which puts a physician at risk of receiving civil or administrative penalty.  The lawsuit says it should ultimately be a woman’s choice, not the state’s, whether or not to get an abortion.

The majority of anti-abortion laws across the United States are contested based on the undue burden standard.  However, ACLU maintains that Indiana abortion law is different.  Rather than just making it harder for women to obtain an abortion, the law criminalizes certain reasons a woman might get an abortion.  ACLU contends that Indiana’s law combines the ban on abortions because of the fetus’ disability or potential disability, and joined with the admitting privileges requirement and fetal remains disposal condition, makes Indiana law one of the most restrictive anti-abortion laws at this time, joined by North Dakota law that bans abortions sought on the basis of genetic fetal abnormalities.

The Indiana law proved to be more controversial in light of a recent decision by United States Court of Appeals for the Seventh Circuit, which encompasses Indiana, in a lawsuit filed by Planned Parenthood of Wisconsin and Affiliated Medical Providers.  The Wisconsin law, much like the Indiana abortion law, required all abortion providers to obtain admitting privileges at nearby hospitals. Seventh Circuit ruled that such requirement is unconstitutional.  Hospital admitting privileges requirement is one of the issues the Supreme Court agreed to decide when it accepted a challenge to Texas’ omnibus abortion statute HB 2.

The Seventh Circuit rejects the state’s argument that the real intent of admitting privileges requirement is the protection of women’s health

The Wisconsin law was initially found unconstitutional because it served no legitimate health interest.  The State appealed arguing that the law protects the health of women who may experience complications from an abortion.  Judge Posner, writing for a divided 2-1 panel, ruled that the law was unconstitutional.  In his opinion he questioned the genuineness of the state’s interest in admitting privileges requirement to protect women’s health due to the inherent danger of the procedure. “[C]omplications from an abortion are both rare and rarely dangerous – a fact that further attenuates the need for abortion doctors to have admitting privileges,” he stated in his opinion. He further notes “Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are;” explaining that “the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.”

The Seventh Circuit rejects the state’s argument that the real intent of admitting privileges requirement is the protection of women’s health:

A great many Americans, including a number of judges, legislators, governors, and civil servants, are passionately opposed to abortion – as they are entitled to be.  But persons who have a sophisticated understanding of the law and of the Supreme Court know that convincing the Court to overrule Roe v. Wade and Planned Parenthood v. Casey is a steep uphill fight, and so some of them proceed indirectly, seeking to discourage abortions by making it more difficult for women to obtain them.  They may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.

The laws with similar requirements have been blocked in six other states.  Curt Smith of the Indiana Family Institute acknowledged that because access to abortion is not illegal, the policy of the pro-life advocates is to “attack the institution on the periphery,” until the Supreme Court overrules Roe v. Wade.  The U.S. Supreme Court will ultimately decide the issue of constitutionality of admitting privileges requirement.