7th Circuit strikes Indiana’s abortion law

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Marilyn Odendahl for www.theindianalawyer.com

In a split 2-1 decision, the 7th Circuit Court of Appeals struck down Indiana’s abortion ban, which prohibited a woman from terminating her pregnancy because of the gender, race or disability of the fetus.

The 7th Circuit affirmed the ruling from the U.S. District Court for the Southern District of Indiana that House Enrolled Act 1337, signed by Gov. Mike Pence in March 2016, is unconstitutional. The decision in Planned Parenthood of Indiana and Kentucky, Inc., et al., v. Commissioner of the Indiana State Department of Health, et al., 17-3163, was issued Thursday.

Judges William Bauer and Joel Flaum held that a state may not prohibit a woman from exercising her right to terminate her pregnancy prior to viability for any reason.  Senior Judge Daniel Manion wrote a separate dissenting opinion in which he maintained precedent required the court to uphold the lower court’s decision, but called for the U.S. Supreme Court to revisit its prior abortion rulings.

The majority of the appellate panel found the nondiscrimination provisions in the law violated precedent set by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113, 153 (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey.

“The non-discrimination provisions clearly violate this well-established Supreme Court precedent, and are therefore, unconstitutional,” Judge Bauer wrote for the majority. “The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose. These provisions are far greater than a substantial obstacle, they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.”

Planned Parenthood of Indiana and Kentucky and the ACLU of Indiana applauded the decision. Ken Falk, legal director for the ACLU of Indiana, described HEA 1337 as the state attempting to institute an “absolute prohibition” against abortion. If Indiana had prevailed in its argument that a woman’s right to an abortion could be overcome when the state’s interest is strong enough, then a woman’s right to obtain an abortion would disappear, he said.

“Specifically with the nondiscrimination provision, the (7th Circuit) recognized, as the district court recognized as we argued, the law in this area is crystal clear that the one cardinal principle in abortion jurisprudence as established by the U.S. Supreme Court is that a woman has the absolute right prior to viability whether or not to obtain an abortion,” Falk said.

Indiana Attorney General Curtis Hill had no comment.

The state has the option of appealing to the Supreme Court of the United States or asking the 7thCircuit for a rehearing. Falk said he would not be surprised if the state sought a review by the Supreme Court.

Christie Gillespie, president and CEO of PPINK, said managing the Planned Parenthood clinics can be difficult in the current atmosphere of the Indiana General Assembly passing anti-abortion laws and the federal courts overturning them.

“I think that’s part of the unfortunate thing with all of the lawsuits is we end up spending a lot of time debating policies that have really already been decided some 40 years ago, when we really could be focusing on helping Hoosier families by focusing on how to prevent unintended pregnancies,” she said.

Indiana argued HEA 1337 was reconcilable with precedent. The state asserted Casey only reaffirmed a woman’s right to chose whether or not to have a child prior to viability , but did not extend that right to the decision to terminate a particular child.

Describing its non-discrimination provisions as a “qualitatively new type of abortion regulation,” Indiana said it had compelling interests in “prohibiting discrimination of particular fetuses in light of technological advances in genetic screening.”