Indiana Abortion Fight Shifts To Ultrasound Laws

Marilyn Odendahl for www.theindianalawyer.com

In another dispute over an Indiana abortion law emanating passed in 2016, Planned Parenthood of Indiana and Kentucky filed its response Friday to the state’s petition asking the U.S. Supreme Court to uphold the amendment to the state’s ultrasound law.

Indiana law has mandated that women seeking an abortion first have an ultrasound where they would be offered the option of viewing the image and hearing the fetal heartbeat. However, the Indiana General Assembly altered the law in 2016 by requiring the ultrasound be performed at least 18 hours before the abortion.

The U.S. District Court for the Southern District of Indiana imposed a preliminary injunction nine months after the law took effect and the 7^th Circuit Court of Appeals affirmed. On Feb. 4, the state filed a writ of certiorari to the U.S. Supreme Court in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, 18-1019.

PPINK, represented by the American Civil Liberties Union of Indiana, argued against granting cert. The women’s health provider asserted a Supreme Court review would be premature because the case is only at an interlocutory stage, and the 7^th Circuit’s ruling did not create a split among the circuit courts.

“The (district and appellate courts) appropriately considered the evidence of burdens and benefits associated with the challenged law and properly concluded that given the circumstances in Indiana, changing the timing of the ultrasound requirement likely imposed an undue burden,” PPINK wrote in its response brief. “That fact-based conclusion does not conflict with any other decision and does not warrant this Court’s review.”

In particular, PPINK maintained the state is seeking a Supreme Court review before full discovery and final judgment. Only the preliminary injunction has been affirmed, leaving the state free to return to the district court to argue for summary judgment or a trial on the merits.

Moreover, the state’s case presents very particular facts and circumstances based on a unique legal reform that has been implemented only in Indiana.

“… (W)hile other courts have considered different waiting period laws in different states, only this case, arising after (Whole Woman’s Health v. Hellerstadt, ___U.S.___136 St. Ct. 2292 (2016)) involves the weighing of the burdens imposed by a waiting period against any asserted benefit of the change in timing,” PPINK argued in its response. “And the district court’s preliminary injunction expressly rests on its conclusion that Indiana failed to show that the new law had any benefits while imposing substantial burdens.”

This is the second writ of certiorari emanating from Indiana House Enrolled Act 1337 of 2016.

The first petition, for Box v. PPINK, 18-483, is asking the Supreme Court to uphold other abortion restrictions that the 7^th Circuit affirmed violated a woman’s right to abortion. Specifically, the law sought to require the fetal tissue be either buried or cremated and prohibit the termination of a pregnancy based solely on the gender, race or genetic abnormality of the fetus.

Since Jan. 4, 2019, that petition has been distributed among the justices for conference nearly 10 times. No decision has been issued, but Wisconsin has withdrawn its support of Indiana’s petition.

While Indiana’s ultrasound petition sits at the U.S. Supreme Court, Kentucky’s ultrasound law was upheld April 4 by a split 6^th Circuit Court of Appeals.

Kentucky’s House Bill 2, known as the “Ultrasound Informed Consent Act,” placed additional requirements on the physician before the abortion is performed. The doctor must show the ultrasound images of the embryo or fetus to the woman, describe in detail the image and have the woman listen to the heartbeat.

EMW Women’s Surgical Center P.S.C. in Louisville, the only licensed abortion facility in Kentucky, challenged the law, noting the physician must provide the description even if the woman objects or if the experience causes her emotional or psychological distress.

Represented by the ACLU of Kentucky, EMW argued, in part, H.B. 2 violated the First Amendment by forcing medical doctors to deliver a “government-mandated, ideological message” to patients. “… (T)he Act compels physicians to convey to their abortion patients in a private medical setting unwanted government-mandated speech that falls outside accepted and ethical standards and practices for medical informed consent.”

The U.S. District Court for the Western District of Kentucky at Louisville agreed, but the majority of the 6^th Circuit was unconvinced and reversed the lower court.

“In sum, H.B. 2, like the Pennsylvania statute in (Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)), provides truthful, non-misleading, and relevant information aimed at informing a patient about her decision to abort unborn life,” Circuit Judge John Bush wrote for the majority. “Therefore, although the statute requires doctors to disclose certain truthful and non-misleading information relevant to the abortion procedure, it does not violate their First Amendment rights because the required disclosures are incidental to the Commonwealth’s regulation of doctors’ professional conduct.”

Judge Bernice Bouie Donald wrote a 20-page dissent, asserting, in part, the majority was wrong to treat H.B. 2 as the equivalent to the Pennsylvania statute in Casey. The Pennsylvania statute gave physicians the ability to exercise their medical judgments to decide not to provide the information, but the Kentucky law does not include that provision.

Also, Donald maintained the majority ignored the national standards of medical care and disregarded the evidence showing H.B. 2 is not consistent with the medical practice of informed consent.

“Benjamin Franklin warned that ‘[f]reedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruin,’.” Donald wrote. “H.B. 2 is a restriction on speech that has no basis in the practice of medicine. It should be subjected to heightened scrutiny and deemed unconstitutional, lest our constitution dissolve, and tyranny be erected on its ruins.”