ACLU, Planned Parenthood praise preliminary injunction against abortion law

Olivia Covington for www.theindianalawyer.com

Pro-choice advocates are celebrating a “major victory” for a woman’s right to choose Monday after a federal judge blocked a portion of an Indiana abortion regulation that would have required women to get an ultrasound at least 18 hours before an abortion procedure.

After granting an earlier request for a preliminary injunction against a law that would have prohibited abortions because of genetic abnormality, race, sex or ancestry and would have mandated disposal of an aborted fetus through burial or cremation, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana struck down another portion of House Enrolled Act 1337 early Friday evening, ruling that the ultrasound mandate placed on undue burden on women seeking abortions, particularly low-income women.

Prior to HEA 1337, which went into effect last July, women were required to have ultrasounds before having an abortion, but the ultrasound could be done on the same day as the abortion procedure. The 18-hour mandate only applied to “informed consent appointments,” during which abortion providers were required to provide women with information regarding pregnancy and abortions.

Originally, the informed consent appointments could be performed at any of the 17 Planned Parenthood of Indiana and Kentucky health care centers across Indiana. However, only six of the health centers can provide ultrasounds, which meant that under HEA 1337, only those six centers could also provide the informed consent appointments if the appointments and ultrasounds had to be completed at the same time.

“The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer and informed-consent appointment,” Pratt wrote in her 53-page order. “These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes.”

Ken Falk, legal director of the ACLU of Indiana, which represented Planned Parenthood in district court, said in a Monday news conference that Planned Parenthood does not have sufficient staff or funds to extend its ultrasound services to additional health centers around the state.

But in the Friday order, Pratt wrote that the state suggested that Planned Parenthood start accepting ultrasounds from other health care providers or make “different business decisions, such as buying less expensive ultrasound machines so that more health centers can offer the informed-consent appointment.”

But Pratt wrote that under the “undue burden” inquiry laid out in Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016), “’given the reality of how PPINK provides its abortion services…is (there) an undue burden on its patients?’” Thus, the state’s suggestions for offering ultrasounds at more locations are neither the proper consideration for the issue, nor persuasive, Pratt wrote.

The state of Indiana has 30 days in which it can appeal Pratt’s preliminary injunction. A representative from the Indiana Attorney General’s office did not immediately respond to a request seeking comment on the Friday ruling or the office’s next steps.

HEA 1337 was signed into law last year by then-Gov. Mike Pence, while Republican Greg Zoeller was still attorney general. Falk said his and PPINK President & CEO Betty Cockrum’s struggle with the state on abortion-related issues has spanned multiple administrations, so it is difficult to know whether the fact that Indiana now has a new governor and a new attorney general will change the way the state chooses to proceed after Pratt’s most recent ruling.

Even so, Cockrum said she hopes the preliminary injunction against the ultrasound provision in HEA 1337 will send a message to the Indiana General Assembly to stop trying to “practice medicine.”

“We practice evidence-based medicine at Planned Parenthood of Indiana and Kentucky, and the protocol that works and that is in practice is that the ultrasound be provided just shortly before the abortion,” Cockrum said Monday. “And for politicians to decide, for all of the wrong reasons, that that should get tampered with in state law is wrongly placed, is misguided and, I would suggest, is irresponsible.”

Indiana Attorney General Curtis Hill today issued a statement in light of a federal judge’s ruling on Friday regarding an Indiana abortion law.

“The Court suggests that our General Assembly has placed ‘undue burden’ on women who are considering termination of their pregnancies by requiring an ultrasound 18 hours prior to termination. While I do not agree with the Court’s decision, my office is considering our next steps in the litigation.”