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7th Circuit hears challenge to ‘discriminatory’ abortion ban

February 16, 2018

A challenge to Indiana’s oft-disputed abortion laws went before the 7th Circuit Court of Appeals on Thursday, with the state and ACLU of Indiana once again squaring off on what limits, if any, the state can place on a woman’s right to terminate a pregnancy.

At issue in Thursday’s arguments in Planned Parenthood of Indiana and Kentucky, et al. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-00763, was House Enrolled Act 1337, 2016 legislation that prohibited a woman from obtaining an abortion even in the first trimester if her reason for terminating the pregnancy was based solely on discriminatory factors, including the fetus’ diagnosis or potential diagnosis with a disability. The law also requires aborted fetuses to be interred or cremated.

Indiana Solicitor General Thomas Fisher told the appellate panel of judges Joel Flaum, William Bauer and Daniel Manion that allowing “discriminatory” abortions would risk the decimation of people with certain disabilities, such as Down syndrome. He pointed to previous Planned Parenthood testimony that at least 50 percent of women will terminate pregnancies for such reasons, a fact he said could lead to an American situation like that of Iceland, where fetuses diagnosed with Down syndrome are frequently aborted. 

Though precedent in Roe v. Wade and Planned Parenthood of Se. Pa. v. Casey established a woman’s absolute right to terminate a pregnancy up to 20 weeks, Fisher said that right extends only to the binary question of whether a woman wants to have a child. The question presented here – whether a woman wants a specific child who will possibly have a disability — is beyond the realm of what those cases considered, he said, noting DNA testing technology that is available today was not available when Roe and Casey were decided.

But ACLU of Indiana legal director Ken Falk said the binary choice theory Fisher put forward was not applicable. Under Roe and Casey, a woman’s absolute right to abortion was upheld as part of a privacy interest, Falk said — an interest into which the state cannot enter.

The central principle of Roe was that before a fetus is viable, the state does not have a strong enough interest to support an abortion prohibition, Falk said. Further, a woman cannot be prohibited from having the final say in whether she terminates her pregnancy, he said.

Manion was the most vocal member of the panel, often interjecting his own experiences into Thursday’s discussion. He said his wife has spent most of their marriage working with a pregnancy care clinic, while the two of them together are god parents to a child with Down syndrome.

Considering that experience, Manion said he does not agree with abortion. However, he also told Fisher he was struggling to get around the seemingly clear holdings in Roe and Casey. Fisher repeatedly emphasized that caselaw upholds a woman’s right to choose if she wants a baby, not which baby she wants. Falk, however, said there was no way to get around the Supreme Court’s precedent.

The judge also grappled with what steps the state could take to persuade a woman to choose an option besides abortion. Returning to his wife’s work with pregnancy care centers, he noted the state can try to persuade a woman but should never force her into a decision.

Manion specifically noted that viewing an ultrasound will often cause a woman to change her mind about terminating her pregnancy. Pointing to the case of Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, et al., 1:16-cv-01807, Fisher said the state is currently appealing a preliminary injunction blocking a law requiring a woman to have an ultrasound at least 18 hours before an abortion.

For his part, Falk told the court the state does have an interest in protecting potential life. However, he also agreed that women should be presented with information about all their options, including abortion, and should be informed in their decision making, not hindered by inadequate information regarding certain options.

Turning to the requirements for disposal of fetal remains, Fisher told the court that the state can insist on the “dignified treatment” of an aborted fetus, even if that fetus has no protections under the 14th Amendment. Falk, however, said the requirements in HEA 1337 are based on the state’s belief that a fetus is a living organism, but the unborn have never been recognized as such.

Thursday’s arguments came after Indiana Southern District Judge Tanya Walton Pratt permanently enjoyed the enforcement of the provisions of HEA 1337 and is the most recent phase in a series of challenges to the legislation that began in late 2016.

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