In the final days of this year’s session, one of the nation’s most restrictive anti-abortion bills was hustled through the Indiana General Assembly. Gov. Mike Pence signed it into law, and the right-to-life forces declared victory.
But their celebration may be premature.
Opponents of the law, which prevents a pregnant woman from receiving an abortion if she is concerned about disabilities, or because of race or gender, are making their voices heard – in a protest, on the Internet and in court.
Thursday, the legal challenge legislators must have known was coming was filed in federal court by the American Civil Liberties Union of Indiana and Planned Parenthood of Indiana and Kentucky.
"The law is clearly unconstitutional," said Dawn Johnsen, a professor at Indiana University’s Maurer School of Law who worked with the ACLU, NARAL Pro-Choice America and the U.S. Office of Legal Counsel before coming to IU.
Johnsen, whose specialty is constitutional law, notes that the Supreme Court has been clear, not just in the 1973 Roe vs. Wade case that legalized abortion but in a subsequent decision, that a woman has the right to an abortion during the first trimester of pregnancy. In the 1992 Planned Parenthood v. Casey decision, the court reaffirmed what’s known as "the core of Roe," she said. "They said it’s the right of the woman to make her own decision" during that time period.
Indiana and many other states have enacted laws to chip away at abortion rights. But the new Indiana law, Johnsen said, goes far beyond what most other states have done.
A woman would not be allowed to abort a fetus if she states a concern that it may have Down syndrome or another genetic abnormality or be of a certain race or gender. But a woman who doesn’t offer a specific reason could still exercise her right to have an abortion during the first 20 weeks of pregnancy.
It is difficult to predict the effect of the law, which will take effect July 1 if the ACLU’s request for an injunction isn’t granted.
The measure wouldn’t penalize a woman who seeks or receives an abortion, but a doctor who arranges for an abortion might face disciplinary action or a civil suit.
"Certainly it would chill the conversation between the doctor and the patient about options," Johnsen said.
Even the provision of the new law that requires facilities to bury or cremate the remains of aborted or miscarried fetuses is "designed to restrict abortion and make it more difficult," Johnsen said. "It is not intended to help women."
The problems with the law were evident from the moment it was passed. It was authored by Fort Wayne’s Rep. Casey Cox and with involvement by two other local Republicans, Sen. Liz Brown of Fort Wayne and Sen. Travis Holdman of Markle.
But even some pro-life Republican women defected as the bill was pushed through. "I implore you to have the courage to say no," said Rep. Wendy McNamara of Mount Vernon.
Johnsen said the governor and those legislators who supported the bill may have to pay a price in the election. "Alienating women will and should hurt (Pence) politically," she said. "Republican women as a group are more willing than most to cross over on this issue."
Maybe the federal courts will ignore those clear high court precedents and give the Indiana abortion bill a pass. Maybe all mothers who give birth against their wishes can find the resources they need to provide for a child with serious genetic anomalies. Maybe women who disagree with the measure will remain silent on Election Day.
Or, maybe not.