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The Journal Gazette

  • Ken Falk, of ACLU of Indiana, and Betty Cockrum, of Planned Parenthood of Indiana and Kentucky. Photo by Niki Kelly | The Journal Gazette

Abortion bill lawsuit

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April 07, 2016 9:19 AM

Lawsuit filed against abortion bill

Niki Kelly | The Journal Gazette

INDIANAPOLIS – Just days after a tough new abortion law was signed by Gov. Mike Pence, Planned Parenthood of Indiana and Kentucky filed suit Thursday alleging the restrictions violate a woman’s right to choose.

“The United States Supreme Court has repeatedly stressed that a woman, not the state, is to determine whether or not to obtain an abortion,” said ACLU of Indiana Legal Director Ken Falk. “The State of Indiana’s attempt to invade a woman’s privacy and to control her decision in this regard is unprecedented and unconstitutional.” The ACLU is representing Planned Parenthood.

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.

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

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

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.

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.

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 disabled child.

There is an exemption in the law for a fetus with a "lethal fetal anomaly" that with reasonable certainty 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.

The lawsuit said Indiana law already allows a woman to assume control of tissue from an abortion. But they aren’t required to comply with the burial or cremation requirements in the new law.

And the court filing said the law mandates that fetal tissue be treated differently than other medical material.

"This has the effect of requiring the abortion clinic or health care facility to arrange, and pay for, disposition of fetal tissue after the abortion, regardless of gestational age, in a manner substantially similar to the burial or cremation of human bodies," according to the suit.

Planned Parenthood would have to obtain a burial transit permit for the fetal tissue, which is not required for the disposal of other medical material, and then make arrangements with a mortuary to receive and handle the fetal tissue.”

The purpose behind that portion of the law was to prevent the selling or transfer of fetal parts - something that caused a national uproar last year. 

nkelly@jg.net