Federal Judge Blocks Parts Of Indiana’s New Abortion Law

IL for www.theindianalawyer.com

A federal judge on Wednesday blocked portions of a new Indiana law that would make it tougher for girls under age 18 to get an abortion without their parents’ knowledge.

U.S. District Judge Sarah Evans Barker wrote in approving a temporary injunction that “when it comes to our children, while parents or others entrusted with their care and wellbeing have the lawful and moral obligation always to act in their best interests, children are not bereft of separate identities, interests, and legal standing.”

Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union of Indiana sued the state on May 18 seeking to prevent three provisions from taking effect on July 1 and arguing that they create “an unconstitutional undue burden on unemancipated minors.” Barker approved injunctions blocking all three.

One provision of the law would require a judge in most cases to allow parents to be informed that their daughter is seeking an abortion.

Barker, who was nominated to the federal court by President Ronald Reagan in 1984, had expressed skepticism about some of the law’s provisions during June 13 arguments on the injunction.

Their lawsuit contends those portions violate the U.S. Constitution’s due process and equal protection provisions, and the First Amendment.

“Judge Sarah Evans Barker’s ruling is an affirmation of abortion rights in Indiana,” said Betty Cockrum, President and CEO of PPINK. “PPINK encourages teenagers to have open and honest conversations with their family members, but we recognize that not every teen is able to do so safely. SEA 404 sought to silence our staff and prevent fully-informed conversations with our patients. It is blatantly unconstitutional and yet another example of politicians trying to make medical decisions for Hoosiers.”

Attorneys for the state argued in their brief opposing the injunction that each provision the suit challenges is constitutionally permissible. They also argued that they in part further the state’s interest “in protecting pregnant minors” and encouraging parental involvement in their minor children’s decision to have an abortion.

Gov. Eric Holcomb, who signed the law April 25, has called the measure a “parental rights issue.”

The plaintiffs argued that one of the new law’s provisions revises Indiana’s parental consent process in a way that violates minor girls’ due process rights. Under existing Indiana law, girls younger than 18 must either get their parents’ consent to have an abortion or seek permission from a judge through the so-called “judicial bypass” process. The girl’s parents are not notified of her bid for an abortion, regardless of whether that judge approves or denies her request, under current law.

But the new law would require the judge considering that request to also weigh whether the girl’s parents should receive notification of her pregnancy and her efforts to obtain an abortion, regardless of the decision on the abortion itself. It requires that the parents be notified unless the judge determines it would not be in the minor’s best interest for the parents to know — even if the court finds the minor is mature enough to make a decision independently on whether to have an abortion.

Betty Cockrum, the CEO and president of Planned Parenthood of Indiana and Kentucky, said when the lawsuit was filed in May that portions of the new law “will have a chilling effect on teenagers already dealing with a difficult situation.”

Indiana Attorney General Curtis Hill said in a statement Thursday that the challenge to the law is nothing more “than an attempt to give courts rather than parents the legal guardianship of children. When an unemancipated minor undergoes even the most basic medical procedures, the involvement of a parent or legal guardian is typically required. However, for the time being, Wednesday’s injunction essentially encourages a minor to go it alone through the emotionally and physically overwhelming procedure of aborting a human being. We will always support the authority of parents to know what is going on with their children and continue to defend Hoosier parents.”

The suit also challenges a new provision that adds a procedure physicians must follow to verify the “identity and relationship” between the minor seeking an abortion and parent or adult providing consent. The suit calls that a vague requirement which subjects physicians to criminal liability and violates the Constitution’s equal protection and due process clauses.

It also challenges a new provision that prevents anyone from aiding an unemancipated minor who is seeking an abortion. The suit says that violates the First Amendment because it will prohibit Planned Parenthood of Indiana and Kentucky from advising those minors “that they can travel to other states to obtain their abortions.”

The suit contends the new law “fails to comply with requirements necessary for a parental involvement statute to pass constitutional muster.”

“SEA 404 changes the judicial bypass process that has been upheld by the Supreme Court and compels silence from PPINK staff,” said Ken Falk, the ACLU of Indiana legal director in a statement Thursday. “The court found today that these provisions are unconstitutional, and that requiring abortion providers to verify legal documentation is a violation of the equal protections clause. No other medical professionals are expected to follow these vague rules before providing care.”

During 2015, 25 girls between the ages of 10 and 14 received abortions in Indiana, and another 219 girls between 15 and 17 also ended their pregnancies, according to a report from the Indiana State Department of Health.