IL Staff for www.theindianalawyer.com

A federal judge weighing whether to block a new Indiana law banning abortions sought because of a fetus’ genetic abnormalities sounded skeptical of the measure during a Tuesday hearing, saying it may infringe on some women’s right to an abortion.

Planned Parenthood of Indiana and Kentucky sued the state in April, seeking a preliminary injunction to stop the law from taking effect July 1, arguing it is unconstitutional and violates women’s privacy rights.

The law would ban abortions sought due to fetal genetic abnormalities, such as Down syndrome, or because of the race, sex or ancestry of a fetus. If upheld, Indiana would join North Dakota as the only two states to ban abortions sought due to genetic fetal abnormalities.

U.S. District Court Judge Tanya Walton Pratt said during Tuesday’s hearing on the injunction request that it appeared clear the new law would invade the privacy of some women by preventing them from getting an abortion.

“How can it be described as anything but a prohibition on the right to an abortion?” Pratt asked Indiana Solicitor General Thomas Fisher during the hour-long hearing.

Fisher said the new law is a response to DNA testing advances that permit fetuses to be screened for genetic defects or to determine their sex. He said the state has an interest in “preventing discrimination” against fetuses slated for abortion based on such test results.

Fisher said the case before Pratt “is about understanding the limits” of the U.S. Supreme Court’s landmark 1973 Roe v. Wade decision upholding a woman’s right to an abortion and its 1992 Planned Parenthood v. Casey ruling which found states generally can regulate abortion unless doing so places an undue burden on women.

“We acknowledge that in many respects this case is the first of its kind,” he told Pratt.

The American Civil Liberties Union of Indiana joined Planned Parenthood in challenging the new law. Its legal director, Ken Falk, is representing Planned Parenthood in the case.

Falk told Pratt that Indiana’s law is clearly unconstitutional under the high court’s abortion rulings.

“The point is, what we are talking about is the right to privacy, the right to make this very personal decision without interference from the state,” he said.

If the law takes effect, Falk said women seeking an abortion because test results show their fetus may have a genetic defect, or women who don’t want to have a child due to their own genetic predisposition to a serious illness would not be able to get one in Indiana.

Republican Gov. Mike Pence signed the measure in March after it was approved by Indiana’s Republican-dominated Legislature. The measure passed over the objections of many female legislators, including Republicans, who said it would go too far.

Indiana’s law would also require that aborted fetuses be disposed of through burial or cremation. Planned Parenthood is also challenging the fetal disposal provision, as is Indiana University in a separate lawsuit which argues that it would prevent its scientists from acquiring fetal tissue for scientific research and sharing it with other institutions.

Falk said Planned Parenthood currently disposes of aborted fetuses by incineration. He said aborted fetuses are not considered human beings and they should be destroyed in the same manner by which an amputated arm or other tissue removed through surgery is destroyed.

Pratt said she would rule “very soon,” with a decision coming before July 1.

Indiana Attorney General Greg Zoeller issued a statement after Tuesday’s arguments saying his office is obligated to defend the statute.

“It is part of our system of checks and balances that challenges to newly enacted legislation are brought to court to have the judicial branch listen to both sides and verify whether a statute the Legislature drafted and passed is constitutional; and the State’s lawyers have a duty to defend the statute. Oral argument is the one opportunity for the lawyers to speak directly to the court and for the court to ask questions of the lawyers, and such questions are a normal part of judicial review expected in such cases. This is an emotional subject for many, but we urge respect for the court and the process,” Zoeller said.