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  • Planned Parenthood of Indiana and Kentucky Legal Director Ken Falk, left, and the organization’s president Betty Cockrum talk to reporters Thursday in the Planned Parenthood office in downtown Indianapolis. The organization filed a lawsuit against Indiana over a controversial abortion law recently signed by Gov. Mike Pence. (AP Photo/Aric Chokey)

Friday, April 08, 2016 3:42 am

Abortion law faces challenge

Niki Kelly | The Journal Gazette

INDIANAPOLIS – For the third time in six years, Planned Parenthood of Indiana and Kentucky went to court to challenge an abortion law passed by Republican legislators that might violate a woman’s right to choose.

ACLU of Indiana filed the suit on behalf of the provider Thursday, just weeks after the tough new restrictions were signed by Gov. Mike Pence.

"We find this law abysmal," said Betty Cockrum, president and CEO of Planned Parenthood of Indiana and Kentucky. "It is intrusive. It is dangerous. It is failed public health policy."

The challenge comes after national attention given to the law that bars women from having an abortion for the sole reason that the fetus has been diagnosed or there is a "potential diagnosis" of a disability. Other prohibited reasons include the sex, race and national origin of the fetus.

Ken Falk, legal director of ACLU of Indiana, said the U.S. Supreme Court has ruled repeatedly that states cannot place an "undue burden" on a woman’s right to an abortion.

"This is not an undue burden. This is an absolute prohibition," he said. "You just can’t do that."

He said it invades a woman’s privacy and is unprecedented and unconstitutional.

Planned Parenthood is seeking an injunction to stop the law from going into effect on July 1.

Cockrum acknowledged that the case has national implications. If the law is upheld other states are likely to adopt similar laws.

"Governor Pence has every confidence this law is constitutional," said Kara Brooks, of the governor’s office. "We will work with the attorney general to defend the law that enhances information expectant mothers receive and enhances protection for the unborn."

Pence and Republican legislators have been taking heat – with women calling, posting and tweeting updates on their menstrual cycles in protest of the law. A rally for women’s rights is set for Saturday at the Statehouse that could draw thousands.

Indiana Right to Life President and CEO Mike Fichter said the lawsuit is "the same song and dance we have seen from the abortion provider anytime they feel their lucrative abortion business is threatened. They look to the courts and activist judges to rule in their favor."

The statement went on to say that Planned Parenthood boasts $2 million a year in abortion revenue in Indiana alone and opposes any common-sense laws protecting women and children.

Restrictions on abortion prior to a fetus’s viability have been struck down by courts before, but none were specific to disabilities. Only one other state – North Dakota – has similar language in its law but the plaintiff in a suit there asked that the disabilities section of the challenge be dismissed, and it was.

Falk successfully fought two other Indiana abortion laws in 2011 and 2013 – one that blocked funding for Planned Parenthood and another providing new regulations for clinic that provided medical – or prescription-based – abortions.

The bill was pushed by three local Republican lawmakers – Rep. Casey Cox and Sen. Liz Brown, both of Fort Wayne, and Sen. Travis Holdman of Markle.

Brown said she wasn’t surprised by the lawsuit but believes it will be a waste of Planned Parenthood re­sources, as well as cost taxpayers to defend it.

"Just because you have a law that hasn’t been legally tested doesn’t mean it isn’t a good law," she said, noting she hasn’t experienced any backlash in northeast Indiana.

"People are familiar with it and say thanks for standing up for life."

The measure contained in House Bill 1337 is aimed at women who have an abortion after a diagnosis of Down syndrome or other fetal genetic anomalies. And supporters have cast it as an anti-discrimination bill.

One criticism of the bill is that a woman can continue to abort a perfectly healthy fetus before 20 weeks without giving any reason at all. But she cannot do so if her motivation is related to a disability.

And opponents say it intrudes on a woman’s ability to have an open and frank discussion with a doctor about the risks and costs associated with having a child with disabilities.

There is an exemption in the law for a fetus with a "lethal fetal anomaly" that will result in the death of the child within three months after birth.

The challenge filed in U.S. District Court said the law "imposes an undue burden on a woman’s right to choose an abortion because it bars that choice under certain circumstances, even if the pregnancy is in its early stages and the fetus is not viable."

The suit said women have a right to choose a first trimester abortion for any reason, so Planned Parenthood doesn’t ask patients for their reasons. But the group is aware that some of its patients seek abortions for a reason banned by the new law.

A doctor could face disciplinary action or civil suit for performing an abortion knowing the procedure was solely due to disability or sex selection. There are no consequences for the woman.

The new law also requires facilities to bury or cremate the remains of a fetus from a miscarriage or abortion. It does not affect women in their homes.

And the lawsuit said the law mandates that fetal tissue be treated differently from other medical material, including requiring Planned Parenthood to obtain a burial permit and work with a mortuary.

nkelly@jg.net