A federal judge heard arguments on November 9 on Planned Parenthood’s challenge to an Indiana law requiring that an ultrasound be performed on a woman seeking an abortion at least 18 hours before the abortion is scheduled to take place.
This is not the first challenge that Planned Parenthood of Indiana and Kentucky (PPINK) has made to Indiana’s comprehensive law, HEA No. 1337, which was signed by Governor Mike Pence in March. PPINK’s challenge to the law’s prohibition on abortions motivated by the race, sex, or disability of the unborn child also awaits adjudication.
In this case, argued before Judge Tanya Pratt of the U.S. District Court for the Southern District of Indiana, PPINK argues that requiring a woman to receive an ultrasound 18 hours before a scheduled abortion is unconstitutional and seeks a preliminary injunction.
The relevant portion of the law states, “At least eighteen (18) hours before an abortion is performed and at the same time that the pregnant woman receives the information required by [the state’s informed consent laws], the provider shall perform, and the pregnant woman shall view, the fetal ultrasound imaging and hear the auscultation of the fetal heart tone if the fetal heart tone is audible unless the pregnant woman certifies in writing” that she does not want to do so.
Prior to this law going into effect on July 1, Indiana required that a woman receive an ultrasound before an abortion but did not specify when. It also required that a woman receive, in person, state-mandated information regarding the abortion procedure and status of the unborn child, at least 18 hours before the abortion. The amended law effectively combines these two previously existing—and unchallenged—requirements into one.
In its complaint filed on July 7, PPINK explains that it provides surgical abortions at only three of its now 17 locations in Indiana and chemical abortions in one location. Prior to the law’s passage, PPINK only performed ultrasounds at the clinics where abortions were performed and would perform the ultrasound immediately prior to the abortion procedure. Women typically received the state-mandated informed consent information at least 18 hours prior to their abortion at their nearest PPINK clinic, regardless of whether that clinic housed an ultrasound machine.
PPINK argues that this arrangement “minimized the burdens that would occur if the women had to travel the often lengthy distance to the place where they obtained the abortion in order to receive” the informed consent information. Requiring that a woman obtain an ultrasound 18 hours in advance, however, “means that many women will have to make two lengthy trips to obtain an abortion or pay for an overnight stay” and will also cause crowding at the few PPINK clinics with ultrasound equipment.
PPINK also noted that it “cannot afford to have ultrasound equipment and trained ultrasound technicians in each of its health centers” as the ultrasound equipment it prefers to purchase costs “at least” $25,000. PPINK argues that Indiana’s law places an unconstitutional burden on women’s access to abortion in the state.
The state responded to PPINK’s claim in a memorandum filed October 5. It argued that this case simply combines “two widely and constitutionally accepted steps in the abortion process.” Waiting periods, which yield two trips to medical facilities, were upheld by the Supreme Court in Planned Parenthood v. Casey, and have been required in Indiana since 1995. Ultrasounds before abortions have been required in Indiana since 2011 with no legal challenges.
“The only question,” the state argues, “is whether combining otherwise perfectly constitutional abortion prerequisites somehow imposes an unconstitutional undue burden on women seeking abortion.”
The state’s motivation in passing this law is its interest in protecting unborn life. Whereas ultrasounds performed immediately pre-abortion are utilized by physicians mainly to assess the child’s age, confirm the fact and location of the pregnancy, and, during the abortion, ensure that the entire body is removed from the womb, by moving the ultrasound to the informed consent stage of the process, the state “acknowledged that imaging serves a purpose beyond simply providing medical information about the fetus. It also gives the woman an opportunity to see a live, moving image of her baby and consider the full weight of her decision with all the relevant information before her.”
PPINK argues that the new requirement is unnecessary because women already view images of generic ultrasounds and of the stages of fetal development during the informed consent stage of the process. The state, however, emphasizes that “there is a significant difference between viewing an image of a baby and viewing an image of your baby.” This difference is reflected in the fact that parents want to go home from the hospital with their baby, not just any baby chosen at random.
The main purpose of the law is “to protect fetal life.” The state notes that some Indiana women report that viewing the ultrasound image of their baby led them to choose life rather than abortion for their child.
Indiana distanced its law from the Texas regulations struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt this summer. Those laws were designed to protect maternal health, and the Court implemented a balancing test that considers “the burdens a law imposes on abortion access together with the benefits those laws confer” in striking them down.
While in the Texas case, both the state and the plaintiff agreed that what was at stake was maternal health, in Indiana’s case the state is pursuing its interest in protecting fetal life while the plaintiff is seeking to promote women’s access to abortion. This conflict of interest, the state argues, makes the Hellerstedt balancing test “a poor fit for this type of regulation.”
The proper standard, Indiana argues, is to be found in Casey, which requires only that the law serve a legitimate government interest. Going back to Roe v. Wade, the Supreme Court has consistently held that states have an important and legitimate interest in protecting the life of the unborn (Roe uses the unfortunate phrase “potential life”). Indiana’s law clearly is designed to serve a legitimate government interest.
While PPINK argues that the new ultrasound law will place an unconstitutional burden on women seeking abortion, the state argues that PPINK is opposing the law because it places a financial burden on itself. The reasons PPINK offers for how the new ultrasound law will burden women all stem from PPINK’s own stated inability—due to “financial considerations”—to provide ultrasound equipment in all of its clinics. But a company’s economic misfortune, or inability to meet the requirements of a law, is not grounds to invalidate a generally applicable law as unconstitutional.
Indiana’s law simply mandates that an already-required ultrasound take place at an already-required meeting at least 18 hours before an abortion is performed. That is, each woman in Indiana who seeks an abortion is already required to make two trips to a medical facility of some kind—one to be given information regarding the procedure and available alternatives, and one for the abortion itself. The new ultrasound requirement does not increase the number of trips that a woman must take to a medical facility—it only requires that she be given the opportunity to view an image of her own child at least 18 hours before she elects to abort him or her.
For women who are uncertain about whether to go through with an abortion, viewing an ultrasound of their child has been shown to increase the likelihood that the woman will choose to continue her pregnancy. The parties now await a decision from Judge Pratt.
Tim Bradley is a research associate at the Charlotte Lozier Institute.