INDIANAPOLIS — A federal judge’s recent ruling that struck down an Indiana law that protected unborn babies from being aborted based on their gender, race or disability underscores the limits that states have to regulate abortion, according to legal analysts.
In issuing a permanent injunction against the Indiana law, U.S. district Judge Tanya Walton Pratt wrote Sept. 22 that the U.S. Supreme Court has stated “in categorical terms” that states cannot prohibit abortion before the unborn child is viable outside the womb.
Clarke Forsythe, senior counsel for Americans United for Life, told the Register that Pratt’s ruling was “unfortunate, but not entirely unpredictable,” adding that her decision highlights the “terrible reach and impact” of the Supreme Court’s 1973 ruling in Roe v. Wade that abortion is a constitutional right.
“These cases are making clear the power of the court and the power of Roe v. Wade, and that all other political means are not effective until Roe v. Wade is overturned and the court is changed,” said Forsythe, the author of the book Abuse of Discretion: The Inside Story of Roe v. Wade.
Glenn Tebbe, executive director of the Indiana Catholic Conference, also told the Register that though he was disappointed with the judge’s ruling, he was not shocked.
“I’m not completely surprised because of the nature of the Supreme Court rulings; and, therefore, we’re hoping that this decision is appealed and that the merits of preventing abortion based on discrimination can be looked at separately from the right of abortion,” Tebbe said.
Indiana Attorney General Curtis Hill has told local media outlets that he plans to appeal Pratt’s ruling. Hill told the Indianapolis Star that the judge’s decision had cleared the path for “genetic discrimination that once seemed like science fiction.”
Dignity for the Unborn Act
In 2016, the Indiana General Assembly passed a landmark pro-life bill: HEA 1337, also known as the Dignity for the Unborn Act. Then-Gov. Mike Pence, who is now vice president of the United States, signed the bill into law, which went into effect on July 1, 2016. The law not only prohibited abortion on the basis of gender, race or disability, but also required humane disposal of aborted babies and required women to have an ultrasound at least 18 hours before having an abortion.
Almost immediately after the bill became law, Planned Parenthood of Indiana and Kentucky challenged the measure in U.S. district court. Planned Parenthood was represented by the American Civil Liberties Union of Indiana, which characterized the law as one of the nation’s most restrictive and extreme anti-abortion measures.
“The law handed down from the Supreme Court is clear. … Any type of legislation that goes against that should be ruled unconstitutional,” Christopher Gillespie, president and CEO of Planned Parenthood of Indiana and Kentucky, said during a recent local news conference.
Pratt said just as much when she opined that the Indiana law would likely be found unconstitutional when she issued a preliminary injunction against the measure in 2016. In April, she blocked the law’s ultrasound provision, which she said created “significant financial and other burdens” on Planned Parenthood and its patients, particularly low-income women, according to the Indianapolis Star.
Indiana officials said the ultrasound requirement did not create a burden, but instead was intended to give women some time to reflect before having an abortion. However, Pratt said the measure violated the Supreme Court precedent that states also cannot create an “undue burden” on women who seek to have abortions.
Forsythe said the high court’s “undue burden” language is a vague, unworkable legal standard, similar to the court’s precedent that states cannot prohibit abortions that affect a woman’s emotional well-being.
“Case after case in which these federal judges strike down these laws, supported by public opinion, shows that the Supreme Court’s rulings are in continuing tension with public opinion,” Forsythe said. “As judges understand Roe v. Wade, it doesn’t tolerate protection for kids with Down syndrome.”
Abortion Can Be Regulated
The Supreme Court’s 1992 decision in Casey v. Planned Parenthood — which revisited the abortion issue — affirmed the basic principles in Roe v. Wade, but the high court also said that the states have the authority to regulate abortion in the interest of protecting the health and life of the unborn child and the mother.
Seen in that light, the Indiana law’s various pro-life provisions fit “well within” the restrictions allowed in the Casey decision, said Steven Mosher, president of the Population Research Institute, a Virginia-based nonprofit that challenges global overpopulation theories and spotlights human-rights abuses in population-control programs.
“How can giving aborted babies the dignity of a burial or cremation not be, contra Pratt’s decision, a legitimate state interest?” Mosher said in an emailed statement to the Register. Mosher added that if Pratt’s ruling is allowed to stand, it will represent the first time a federal court has thrown out a law prohibiting sex-selective abortion after viability.
According to the Guttmacher Institute, an abortion research firm with historical ties to Planned Parenthood, nine states currently have laws in place banning abortion on the basis of race, gender or genetic abnormality. A similar law prohibiting abortions based on the unborn child’s sex that passed earlier this year in Arkansas was subsequently placed on a temporary injunction and is awaiting a final ruling.
Over the last couple of years, the federal courts have struck down other states’ attempts to regulate abortions. In June 2016, the U.S. Supreme Court ruled against a Texas law regulating abortion facilities on the basis that the law created substantial burdens for women. In August, a federal judge blocked another Texas law that would have banned abortions in which forceps and other instruments are used to remove unborn babies from the womb.
Pratt’s ruling and other similar court decisions, Mosher said, “underlines the importance of appointing federal judges who understand the natural law, do not believe that the law is merely a ‘social construct’ to be reconstructed whenever public sentiments change, and understand that their role is to apply the Constitution, not reinterpret it in ways of their own liking.”
In a Sept. 25 press release, Indiana Right to Life said Pratt also blocked provisions of a 2011 Indiana law that would have denied taxpayer funds to abortion businesses and required pregnant women to be told about an unborn child’s ability to feel pain. (On Oct. 3, the U.S. House passed a ban on abortions after 20 weeks of gestation. The Pain-Capable Unborn Child Protection Act moved ahead by a vote of 237 to 189, largely along party lines.)
“Judge Pratt’s ruling is sadly predictable, based on her previous track record. We urge Attorney General Curtis Hill to appeal,” Mike Fichter, president and CEO of Indiana Right to Life, said in prepared remarks.
Tebbe, of the Indiana Catholic Conference, said the state’s bishops supported the passage of the Dignity for the Unborn Act as providing for and upholding the dignity of all human life. Tebbe added that he hoped the state’s attorney general will carry through on his promise to appeal Pratt’s ruling to the 7th Circuit Court of Appeals in Chicago.
In the meantime, Tebbe said the Catholic community in Indiana will continue to provide care and support for women in crisis pregnancies.
Said Tebbe, “We’re going to continue to work on changing people’s understandings of what abortion is and what the evil is that is there.”