In a split 2-1 decision, the 7th Circuit Court of Appeals struck down Indiana’s abortion ban, which prohibited a woman from terminating her pregnancy because of the gender, race or disability of the fetus.
The 7th Circuit affirmed the ruling from the U.S. District Court for the Southern District of Indiana that House Enrolled Act 1337, signed by Gov. Mike Pence in March 2016, is unconstitutional. The decision in Planned Parenthood of Indiana and Kentucky, Inc., et al., v. Commissioner of the Indiana State Department of Health, et al., 17-3163, was issued Thursday.
Judges William Bauer and Joel Flaum held that a state may not prohibit a woman from exercising her right to terminate her pregnancy prior to viability for any reason. Senior Judge Daniel Manion wrote a separate dissenting opinion in which he maintained precedent required the court to uphold the lower court’s decision, but called for the U.S. Supreme Court to revisit its prior abortion rulings.
The majority of the appellate panel found the nondiscrimination provisions in the law violated precedent set by the U.S. Supreme Court in Roe v. Wade, 410 U.S. 113, 153 (1973) and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey.
“The non-discrimination provisions clearly violate this well-established Supreme Court precedent, and are therefore, unconstitutional,” Judge Bauer wrote for the majority. “The provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose. These provisions are far greater than a substantial obstacle, they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.”
Planned Parenthood of Indiana and Kentucky and the ACLU of Indiana applauded the decision. Ken Falk, legal director for the ACLU of Indiana, described HEA 1337 as the state attempting to institute an “absolute prohibition” against abortion. If Indiana had prevailed in its argument that a woman’s right to an abortion could be overcome when the state’s interest is strong enough, then a woman’s right to obtain an abortion would disappear, he said.
“Specifically with the nondiscrimination provision, the (7th Circuit) recognized, as the district court recognized as we argued, the law in this area is crystal clear that the one cardinal principle in abortion jurisprudence as established by the U.S. Supreme Court is that a woman has the absolute right prior to viability whether or not to obtain an abortion,” Falk said.
Indiana Attorney General Curtis Hill had no comment.
The state has the option of appealing to the Supreme Court of the United States or asking the 7th Circuit for a rehearing. Falk said he would not be surprised if the state sought a review by the Supreme Court.
Christie Gillespie, president and CEO of PPINK, said managing the Planned Parenthood clinics can be difficult in the current atmosphere of the Indiana General Assembly passing anti-abortion laws and the federal courts overturning them.
“I think that’s part of the unfortunate thing with all of the lawsuits is we end up spending a lot of time debating policies that have really already been decided some 40 years ago, when we really could be focusing on helping Hoosier families by focusing on how to prevent unintended pregnancies,” she said.
Indiana argued HEA 1337 was reconcilable with precedent. The state asserted Casey only reaffirmed a woman’s right to chose whether or not to have a child prior to viability , but did not extend that right to the decision to terminate a particular child.
Describing its non-discrimination provisions as a “qualitatively new type of abortion regulation,” Indiana said it had compelling interests in “prohibiting discrimination of particular fetuses in light of technological advances in genetic screening.”
The majority was unconvinced. Bauer characterized the state’s argument as allowing a woman to have an abortion if she decides before becoming pregnant that she does not want to bear a child but prohibiting the abortion if she determines after becoming pregnant she does not want a child.
In addition, Bauer found the state’s argument runs contrary to the 14th Amendment’s right to privacy.
“It is entirely inconsistent to hold that a woman’s right to privacy to terminate a pregnancy exists if a woman decides before she becomes pregnant that she does not want to bear a child, but that the State can eliminate this privacy right if a woman later decides she wants to terminate her pregnancy for a particular purpose,” Bauer wrote. “Nothing in the Fourteenth Amendment or Supreme Court precedent allows the State to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability.”
In a 22-page dissent, Manion reluctantly concurred with the majority, calling the case “unfortunate” and describing the precedent that requires Indiana’s law be overturned as “regrettable.”
He found Indiana made a persuasive argument that Roe and Casey only gave the right to have a child and not the right to decide which child to have. This argument made sense, he wrote, since the non-discrimination provisions presented an obstacle only for women who already decided they wanted to have a child.
Manion asserted Indiana “made a noble effort to defend a statute that should need no defense,” but he faulted precedent, and in particular Casey, as making abortion a “super-right” which states cannot restrict.
“That today’s outcome is compelled begs for the Supreme Court to reconsider Roe and Casey,” Manion wrote. “But assuming the Court is not prepared to overrule those cases, it is at least time to downgrade abortion to the same status as actual constitutional rights. The Court can start by permitting the States to assert their legitimate interests in defense of abortion laws.”
The 7th Circuit also struck down HEA 1337’s provisions dealing with the disposal of aborted fetuses, finding it violated due process principles.
In essence, the law required abortion providers like Planned Parenthood to bury, cremate or entomb the aborted fetus itself rather than contracting with a third party to do the work. Indiana argued that “a fetus is a human being who should be given a dignified and respectful burial and cremation.”
The majority pointed to the U.S. Supreme Court conclusion that the word “person” in the 14th Amendment does not include the unborn.
“Simply put, the law does not recognize that an aborted fetus is a person,” Bauer wrote. “…As such, the State’s interest in requiring abortion providers to dispose of aborted fetuses in the same manner as human remains is not legitimate.”
Manion dissented, finding the provision is within Indiana’s interest to provide the public sensibilities.