Innovative pro-life legislation signed into law by Indiana Governor Mike Pence in March of this year is now facing extinction via the legal process.
The law, which forbids doctors from performing an abortion if the reason for the abortion is based on the “race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability,” was scheduled to go into effect on July 1.
After Planned Parenthood of Indiana and Kentucky (PPINK) challenged the constitutionality of the law, however, a federal judge blocked it from going into effect in an order announced on June 30.
U.S. District Court Judge Tanya Pratt granted PPINK’s request that enforcement of three provisions of the law be enjoined during litigation. The three provisions in question included the rule against performing an abortion when it is sought based on the sex, race, or disability of the child, as well as additional requirements that abortion providers inform patients of these anti-discrimination provisions and that fetal remains be disposed of in a manner befitting human remains: either by interment or cremation.
Pratt’s decision to grant a preliminary injunction came just days after the United States Supreme Court struck down provisions of a Texas law requiring that abortion facilities meet the health and safety requirements of ambulatory surgical centers and mandating that abortion providers maintain admitting privileges at a nearby hospital in Whole Woman’s Health v. Hellerstedt.
On October 12, PPINK filed an amended complaint claiming that the new law’s “prohibitions on abortion solely because of one of the reasons set out … creates an undue burden on the right to obtain an abortion in violation of the Fourteenth Amendment to the United States Constitution.”
Further, PPINK argues that requiring women to be informed of the provisions of the law violates the First Amendment rights of the patients and the PPINK employees required to provide the information, and that requiring abortion providers to arrange for final disposition of fetal remains violates the Fourteenth Amendment’s equal protection and due process clauses.
On October 25, PPINK filed a motion for summary judgment in the case, asking Pratt to resolve the case in their favor by declaring these three provisions of the law unconstitutional and permanently enjoining their enforcement. Given Pratt’s decision to grant a preliminary injunction against enforcement of these provisions earlier this year, PPINK is likely to receive a favorable ruling from the court. But the state has not given up the fight.
As the Charlotte Lozier Institute reported in June, Indiana is the first state to enact comprehensive legislation that imposes penalties upon any person performing an abortion motivated by the race, sex, or disability of the child. Arizona forbids abortion based on race, North Dakota bans it based on disability, and eight states including Indiana ban sex-selection abortion. Only Indiana bans all three.
In response to PPINK’s motion for summary judgment, the defendants in the case—represented by Indiana Attorney General Greg Zoeller—filed their own motion for summary judgment and accompanying memorandum on October 26.
In their memorandum, the defendants note that this law—HEA 1337—is “a qualitatively new kind of statute—one the Court in Roe and Casey did not (and could not) anticipate.” In those cases, the Supreme Court provided guidance to courts for evaluating laws that regulate a woman’s access to abortion in pursuit of the state’s legitimate interest in protecting the life of the unborn. The state in this case, however, seeks to restrict “the abortion decision in limited circumstances based on its compelling interest in prohibiting discrimination.”
Technological advances have made it possible for pregnant women to receive accurate information about the sex and genetic or physical characteristics of their baby during the first trimester. Knowing these characteristics so early—when non-surgical abortion is still an option—can influence a woman’s decision of whether to bring her pregnancy to term. An overwhelming number of children diagnosed in the womb with Down syndrome, for example, are aborted. In some countries in Europe, upwards of 90 percent of children diagnosed in the womb with Down’s are aborted, while in the United States that number is estimated to be between 70 and 90 percent. The Court did not anticipate these technological advances, which make discrimination possible in a particularly deadly way, when it decided Roe in 1973.
Indiana’s law forces the district court to answer this question, the memorandum continues:
The court must now consider whether the state’s powerful non-discrimination interest can sustain a limited abortion ban in the subset of cases where the mother’s sole motive for abortion is discriminatory. The mother’s right to abortion is not so absolute that she may freely make an abortion decision based not only on whether she wants to have a baby at all, but also based on whether a particular baby is to her liking in terms of race, sex, and disability.
With respect to the provision of the law regulating the final disposition of fetal remains, the state argues that it has a legitimate interest in ensuring “that fetal remains are treated with the same dignity and respect as other human remains.” The Supreme Court’s abortion jurisprudence, beginning with Roe and Casey, “did not hold that the law can in no circumstances regard a fetus as a human being entitled to basic respect and dignity, even in death. Such a conclusion would be counter to the treatment of fetuses as human beings in other areas of both civil and criminal law.” The state alludes here to laws against fetal homicide, for example, where a person—even if he is the father of the unborn child—can be prosecuted for homicide if he assaults a pregnant woman and causes the death of the child inside her womb.
PPINK and the American Civil Liberties Union (ACLU), who is representing them in this case, are fighting against this law despite the fact that these groups “expend great resources in fighting against the same kind of discrimination Indiana’s law seeks to combat—against women, minorities, and disabled persons.” This indicates that the stakes for these groups are high: if this law can stand, it establishes a beachhead for further protections of the life of the child in the womb, who possesses the same rights—against unjust discrimination on account of one’s race, sex, or condition of disability, for example—that all others enjoy.
Upon signing this law, Indiana Governor Mike Pence stated, “I believe that a society can be judged by how it deals with its most vulnerable—the aged, the infirm, the disabled and the unborn.”
The most vulnerable in the state of Indiana will now be judged in a federal district court.
Tim Bradley is a research associate at the Charlotte Lozier Institute.