Indiana appeals 18-hour ultrasound injunction to U.S. Supreme Court

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Marilyn Odendahl for www.theindianalawyer.com

Indiana is again appealing to the Supreme Court of the United States to overturn a preliminary injunction blocking a state abortion law, this one requiring women to get an ultrasound at least 18 hours before the procedure.

The provision was included in House Enrolled Act 1337, which was signed into law by then-Gov. Mike Pence in 2016. A preliminary injunction on other provisions in the bill – including the requirement that fetal remains be either buried or cremated and the prohibition on abortions because of sex, race or genetic anomaly of the fetus – has already been appealed to the U.S. Supreme Court.

Indiana’s writ of certiorari for those other provisions has been relisted for conference several times and is on the agenda for the justices’ Feb. 15 conference.

Monday, Indiana Attorney General Curtis Hill’s office filed a writ of certiorari for the ultrasound dispute with the high court.

“The state has a compelling interest to protect fetal life and dignity,” Hill said in a press release. “It also has an obligation to ensure that women do not feel rushed or pressured into getting an abortion. I hope the Supreme Court will establish the clear constitutionality of this vitally important legislation.”

However, the American Civil Liberties Union of Indiana called the move an attempt to make reproductive services less available.

“There is no reason for the Court to take this case because the Seventh Circuit got it right,” Ken Falk, legal director of the ACLU of Indiana, said in a statement. “This requirement is unconstitutional as it creates a substantial obstacle to a woman seeking to obtain an abortion. There is no medical justification for the requirement that an ultrasound be obtained at least 18 hours before the abortion.”

The writ of certiorari for the ultrasound case was filed in Kristina Box, et al. v. Planned Parenthood of Indiana and Kentucky, Inc.

Hill defended the 2016 ultrasound law as combining two existing state statutes. Since 1995, Indiana’s informed-consent statute mandates that women seeking an abortion must receive, in person, information about the abortion and child birth at least 18 hours prior to the termination of the pregnancy. Then in 2011, the state required an ultrasound to be performed before an abortion.

Planned Parenthood of Indiana and Kentucky and the ACLU of Indiana countered the provision adversely impacts low-income women. Previously, women could have the ultrasound on the same day they had the abortion. But under the 18-hour provision, some patients seeking an abortion could have to take an extra day off work, find child care for their children and make a potentially lengthy trip to one of the six Planned Parenthood centers in the state that have ultrasound equipment, they argue.

The U.S. District Court for the Southern District of Indiana and the 7th Circuit Court of Appeals agreed. In issuing the preliminary injunction March 31, 2017, Judge Tanya Walton Pratt found PPINK was likely to succeed on the merits of its complaint because the law was placing an undue burden on women.

“PPINK presents compelling evidence that women, particularly low-income women, face significant financial and other burdens due to the new ultrasound law,” Walton Pratt wrote in Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, 1:16-cv-01807. “The State’s primary justification for the law is to promote fetal life – that is, to convince women to choose not to have an abortion by having them view their ultrasound at least a day before rather than the day of the abortion. But it presents little evidence, and certainly no compelling evidence, that the new ultrasound law actually furthers that interest.”

The 7th Circuit affirmed in a July 25, 2018 opinion, calling the district court’s ruling “well-reasoned.” In October 2018, the appellate court denied the state’s petitions for a rehearing and a rehearing en banc.

In its brief to the Supreme Court, the state challenges the 7th Circuit’s determination that the 18-hour ultrasound law would place an undue burden on women, the standard established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Specifically, Indiana argues the appellate court defined the group of impacted women too narrowly.

“…(T)he Seventh Circuit should have ruled that the relevant denominator consisted of those women who would not otherwise choose to have an ultrasound eighteen hours before their abortion as required by the statute,” Indiana stated in its brief. “Instead it defined it to include ‘low-income women who live a significant distance from one of six PPINK health centers offering informed-consent appointments.’”

Also, the state countered the court’s finding that the law’s burdens on women outweigh the “very small” impact of the law persuading women to forego the abortion.

“What dollar amount in burdens is her unborn child’s life worth?” the state asks. “Surely the Constitution does not require this type of utilitarian calculus.”

PPINK and the ACLU maintain the law violates a woman’s constitutional rights.

“This law only stands to harm Hoosiers,” Christine Charbonneau, CEO of PPINK, said in a statement. “Politicians weaponized basic health care with one motive in mind – to end abortion access. If the state of Indiana wants to address health care disparities like infant mortality rates, it should get to work finding solutions that improve access to health care. This law does the opposite – it chips away at a patient’s ability to access critical health care when they need it.”

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