Stricken Indiana Abortion Law “Unprecedented” Opponents Say

Dave Stafford for www.theindianalawyer.com

ndiana’s strict anti-abortion legislation that Gov. Mike Pence signed this year was “unprecedented” in scope and in its rejection of long-established federal law, said opponents who succeeded in blocking the law from taking effect.

“I do want to stress that what the state of Indiana attempted to do here really grossly flies in the face of existing law,” said American Civil Liberties Union of Indiana Legal Director Ken Falk. “The Legislature, no less than lawyers, should understand what the law is, and are bound to follow the law, and I can’t for the life of me understand why the Legislature would pass a law that in essence overrules Roe v. Wade.”

Falk spoke at a news conference Thursday afternoon alongside Planned Parenthood of Indiana President and CEO Betty Cockrum after federal Judge Tanya Walton Pratt granted a preliminary injunction preventing House Enrolled Act 1337 from taking effect Friday. It would have prohibited abortions because of genetic abnormality, race, sex or ancestry; mandated disposal of an aborted fetus only through burial or cremation; and required abortion providers to inform patients of the anti-discrimination provisions and what they prohibited.

“What the Legislature has attempted to do here is unprecedented,” Falk said. “We have since Roe v. Wade a continuous line of Supreme Court cases that say that a woman’s right to obtain an abortion, pre-viability, is fundamental and simply cannot be interfered with by the state. The Texas case the Supreme Court decided dealt with issues of regulation and undue burden. This isn’t an undue burden case. This is a case where the state of Indiana said, ‘We don’t care what the Supreme Court says, you cannot get an abortion if you get it for these reasons.’ That’s unprecedented. The court recognized there are no cases in the country that would allow that, because the law is completely opposite. This is a prime example of what one would think would be a gross overreach by the Legislature.”

Pence’s spokeswoman Kara Brooks issued a one-paragraph statement on the ruling Thursday.

“While disappointed in today’s ruling, Governor Pence remains steadfast in his support for the unborn, especially those with disabilities. The governor will continue to stand for the sanctity of human life in all stages, for the compassionate and safe treatment of women faced with an enormously difficult decision, and for the rights of citizens to determine appropriate medical safety standards and procedures through their elected representatives. While the judicial process continues, the governor remains focused on growing the already robust Hoosier economy and providing a world class education for all our children.”

Falk said he didn’t know how much the state will pay in legal fees to the ACLU of Indiana as is the case when a lawsuit succeeds on constitutional grounds. Fees the state has paid in such cases have skyrocketed under Pence. Opponents warned before he signed the bill that it would draw an immediate constitutional challenge in federal court.

Bill author Rep. Casey Cox, R-Fort Wayne, did not return numerous messages seeking comment Thursday and Friday. He issued a one-paragraph statement through an aide Friday. “I’m disappointed in the court’s granting of a preliminary injunction against key provisions of HEA 1337,” he said. “I believe the State of Indiana has a significant government interest in preserving and protecting life, eradicating societal discrimination and ensuring dignity in the final disposition of the unborn.”

In a statement Thursday, Senate President Pro Tem David Long, R-Fort Wayne, was noncommittal about whether the state should appeal but took issue with part of Pratt’s ruling.

“The attorney general has said he will review the ruling and confer with his clients in the case before deciding whether to pursue an appeal. I look forward to talking with Attorney General (Greg) Zoeller in the days ahead and will reserve commenting in full until I’ve had the chance to do so. However, I will comment on one part of the judge’s decision. For the court to equate fetal remains with any other common medical waste is deeply troubling. I hope that will not be the final position taken by the court. I would also point out that this is a preliminary injunction and not a final decision on the matter.”

Indeed, Falk said the state was free to appeal Pratt’s ruling, seek a trial, or pursue another course of action. Cockrum said despite Monday’s U.S. Supreme Court ruling and Pratt’s order, she would lay money on an appeal if she were a betting person. “If they behave as they have historically, they absolutely will appeal. And one has to believe that that’s what they believe is necessary to play to their base. It’s an important political year,” she said.

Cockrum said the rulings from the court should make it clear to lawmakers that restrictions on a woman’s right to an abortion are costly battles for the state that are likely to lose on constitutional grounds. “These kinds of bills should be shelved at this point,” she said. Indiana already is the fourth-most restrictive state regarding its abortion laws, and HEA 1337 might have made it the nation’s most restrictive.

“That is no badge of honor. It puts women in danger and it is discriminatory,” she said.

Falk said the ACLU is reviewing this week’s Supreme Court decision in the Texas case and whether it could result in other abortion restrictions in Indiana being subject to challenge. “At this point, at this minute, we’ll savor this particular victory.”

“It certainly is a historic week on this front,” Cockrum said. “What a delight that a couple of really important courts have spoken so compellingly regarding the right of a woman in this country and specifically now here in Indiana, to have access to safe, legal abortion.

“Happy Independence Day to the women of the state of Indiana,” she said. “We get to celebrate our freedoms, and we hear a lot from both the executive and the legislative branches of the Statehouse of Indiana about those precious freedoms and how they need to be protected. Never as a woman do I really feel like they’re talking about me. Today, we’re talking about me; we are talking about the 51 percent of the population that is female.”