Planned Parenthood Challenges New Pre-Abortion Ultrasound Law

Dave Stafford for www.theindianalawyer.com

A new Indiana law requiring women to have an ultrasound 18 hours before an abortion is being challenged in court by Planned Parenthood of Indiana and Kentucky.

The 72-page suit filed in federal court Thursday argues the informed consent law the Legislature passed this year has no medical justification and creates an undue burden on a woman’s right to obtain an abortion protected by the 14th Amendment to the U.S. Constitution.

The suit was filed before Judge Tanya Walton Pratt, who last week blocked a strict new Indiana anti-abortion law from taking effect. Pratt granted a preliminary injunction before House Enrolled Act 1337 could take effect July 1. That law would have prohibited abortions because of genetic abnormality, race, sex or ancestry, and would mandate disposal of an aborted fetus only through burial or cremation.

The suit filed Thursday challenges another law that took effect July 1, Indiana Code § 16-34-2-1.1(a)(5),  that not only requires an ultrasound before a woman may have an abortion, but also requires a woman receive mandatory information prior to an abortion. Before July 1, Indiana required women getting an abortion to first have an ultrasound, but the law was amended this year to require that procedure be done at least 18 hours before the procedure.

“The requirement that women obtain an ultrasound at least 18 hours before an abortion, as opposed to allowing PPINK to continue its practice of providing one immediately prior to the abortion, provides no health benefit to women and serves only to place a substantial obstacle to obtaining an abortion,” said Ken Falk, legal director of the American Civil Liberties Union of Indiana, which represents Planned Parenthood in the litigation, in a statement announcing the lawsuit. “This law, therefore, is an unconstitutional undue burden on abortion access.”

The suit says the new law will force many women to make two lengthy trips to obtain an abortion or pay for an overnight stay. Planned Parenthood says in the lawsuit it operates 23 health centers around Indiana that provide health services for men and women, but provides surgical abortions in only three locations and medication abortions in one. Only the four centers that perform abortions have ultrasound equipment.

“Last week, the Supreme Court (of the United States) made perfectly clear that restrictions that serve no purpose except to put obstacles in the path of a women (sic) trying to end a pregnancy cannot stand,” said Jennifer Dalven, director of the Reproductive Freedom Project with the ACLU, in the statement. “Make no mistake about it, this Indiana law is just another example of an unnecessary restriction that is blatantly unconstitutional.”

At a news conference after Pratt struck down HEA 1337 last week, Falk said ACLU and Planned Parenthood were examining other Indiana anti-abortion laws for possible challenges in light of the U.S. Supreme Court’s ruling that struck down a Texas law restricting access to abortion.

“Ultrasounds are an essential part of our medical practice,” said Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky, in the statement. “We wish Indiana’s politicians would leave the practice of medicine to doctors and health care providers rather than interfering yet again. The 18-hour requirement is unduly burdensome and adds no value in a state already fraught with difficult and unnecessary regulations regarding a truly safe and legal procedure.”

“Whenever plaintiff’s lawyers seeking fees file civil lawsuits against state government agencies challenging a statute that the people’s elected representatives in the Legislature have passed, the Attorney General’s Office as the lawyer for state government represents the state entities in court and is obligated to defend the statute; and the Office will provide a vigorous defense,” said Bryan Corbin, spokesman for Indiana Attorney General Greg Zoeller. “Assertions in a civil lawsuit are the opinion of the plaintiff’s lawyers filing them and may be refuted in court. Mindful of the fact that the Legislature has policymaking authority, we will review the plaintiff’s lawyers’ assertions with our client and will file a response in federal court at the appropriate time.”

The case in the U.S. District Court for the Southern District of Indiana is Planned Parenthood of Indiana and Kentucky. v. Commissioner, Indiana State Department of Health; Prosecutors of Marion, Lake, Monroe and Tippecanoe Counties, 1:16-cv-1807.