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The Journal Gazette

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Tuesday, September 26, 2017 1:00 am

State abortion rules struck down

Judge cites Supreme Court; appeal planned

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – A federal judge has permanently struck down several provisions of a restrictive abortion law passed narrowly by state legislators in 2016 and signed into law by then-Gov. Mike Pence.

A preliminary injunction had already been granted blocking the law, but Judge Tanya Walton Pratt dismissed the case in favor of Planned Parenthood of Indiana and Kentucky on Friday.

Attorney General Curtis Hill quickly said he will appeal the decision to the 7th Circuit Court of Appeals.

“I am disappointed by the court's decision,” he said.

The American Civil Liberties Union of Indiana – who represented Planned Parenthood in the suit – applauded the ruling.

“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 said. “The state of Indiana's attempt to invade a woman's privacy and to control her decision in this regard is unconstitutional.”

Two major provisions of the law are affected.

The first is an “anti-discrimination” section that banned women from getting abortions if the reason was because the fetus was determined to have Down syndrome or other disability. It also banned abortions on the basis of sex, race, national origin or ancestry.

But Pratt ruled the U.S. Supreme Court and subsequent court rulings protect a woman's right to seek an abortion before the fetus is viable.

“The anti-discrimination provisions of HEA 1337 clearly violate the first of these principles, in that they prevent women from obtaining abortions before fetal viability,” the ruling said. “The woman's right to choose to terminate a pregnancy pre-viability is categorical: A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

Hill said “by declaring unconstitutional a state law that would bar abortions based solely on race, sex or disability such as Down syndrome, a federal judge has cleared the path for genetic discrimination that once seemed like science fiction. This state has a compelling interest in protecting the dignity of the unborn and in ensuring they are not selected for termination simply because they lack preferred physical characteristics.”

The second provision that was overturned was one requiring fetal tissue be treated as human remains, and either be buried or cremated.

Under current law the woman can determine to bury, cremate, or otherwise dispose of the fetal tissue herself, or the fetal tissue may be incinerated along with other human surgical byproducts such as organs.

The disputed law would have required a burial transit permit and all remains would be buried or cremated.

Pratt said court precedent does not recognize a fetus as a human being and therefore abortion providers can't be forced to treat fetal remains the same.

“Stated otherwise, if the law does not recognize a fetus as a person, there can be no legitimate state interest in requiring an entity to treat an aborted fetus the same as a deceased human,” the ruling said.

Pratt added that “whether or not an individual views fetal tissue as essentially the same as human remains is each person's own personal and moral decision.”

Christie Gillespie, president and CEO of Planned Parenthood of Indiana and Kentucky said “every person deserves the right to make their own personal decisions about abortion. There is no medical basis for these restrictions. This is just another example of politicians coming between physicians and patients.”

Indiana Right to Life pointed out that Pratt is a Democrat appointee who has often sided against abortion regulations.

“Planned Parenthood, the ACLU and Obama-appointed Judge Pratt do not represent the majority of Hoosiers,” said Mike Fichter, president and CEO of Indiana Right to Life. “Our state took a proactive step in protecting the civil rights of unborn children by passing the Dignity for the Unborn Act in 2016. It's a shame that Planned Parenthood cares more about their bottom line than recognizing the worth of children with Down syndrome.”