Indiana Republicans eager for a rare legal victory in their efforts to restrict abortion rights are seeking to outlaw a second-trimester procedure, hopeful an increasingly conservative U.S. Supreme Court will back a ban that courts have blocked in seven other states.
The GOP-dominated state is expected to soon join North Dakota in advancing a bill that would ban dilation and evacuation abortions, which the legislation calls “dismemberment abortion.” Similar laws against the procedure are on hold elsewhere because of court challenges, and Alabama officials in December asked the Supreme Court to consider its appeal.
Four other anti-abortion laws approved by Indiana’s Republican Legislature have been blocked or thrown out by federal judges since 2013, but activists believe they have a new opportunity for success with the addition of Justice Brett Kavanaugh.
House Bill 1211 would make it illegal for doctors to use instruments such as clamps, forceps and scissors to remove a fetus from the womb unless there is “serious risk of substantial and irreversible physical impairment of a major bodily function” to the woman. Doing so would become a felony punishable by one to six years in prison.
Mike Fichter, president of the anti-abortion group Indiana Right to Life, called such abortions “barbaric” and said he believed banning the procedure “is the most aggressive legislation with the highest chance of surviving legal challenge under the new makeup of the court.”
Abortion-rights groups argue that banning the procedure that’s frequently used for second-trimester abortions wrongly interferes with private medical decisions.
The procedure accounted for 27, or 0.35 percent, of the 7,778 abortions performed in Indiana during 2017, according to an Indiana State Department of Health report. Indiana’s current restrictions on abortions after 13 weeks of gestation mean that the dilation and evacuation method — all done at hospitals — accounted for 22 of the 28 abortions performed during weeks 14 through 20 in 2017.
Dr. Caitlin Bernard, an Indianapolis obstetrician and gynecologist affiliated with Planned Parenthood who said she performs the procedure, plans to testify before lawmakers against the ban, saying that women undergoing such abortions are facing significant medical complications or serious fetal problems.
Bernard argues that many women must already leave the state, particularly to Illinois, for such abortions and the new restrictions would further burden them. She also criticized the use of the “dismemberment abortion” term by abortion opponents as leading a “fear-based” campaign.
“That is not coming from doctors, this is very inflammatory and politically motivated language that they are using,” Bernard said.
The Indiana debate comes as New York approved an abortion-law overhaul this month that includes a provision permitting late-term abortions when a woman’s health is endangered. There also was a fierce partisan clash in Virginia after a lawmaker acknowledged her legislation would allow abortions up until moments before birth.
North Dakota lawmakers are considering a similar dilation and evacuation procedure ban, while Ohio has enacted a ban that will take effect in March.
Laws banning the procedure are in effect in Mississippi and West Virginia, while others are on hold because of legal challenges in Alabama, Arkansas, Kansas, Kentucky, Louisiana, Oklahoma and Texas, according to the New York-based Guttmacher Institute, an abortion-rights research organization.
Planned Parenthood of Indiana and Kentucky announced last week it was consolidating with the group’s Seattle-based affiliate in order to reallocate resources to fight new abortion restrictions in the Midwest and South. Planned Parenthood of the Great Northwest and the Hawaiian Islands said it has an annual budget of about $70 million — some four times that of the Indiana-Kentucky group — and its donors wanted to help in states with more restrictive abortion laws.
Planned Parenthood has prevailed so far in lawsuits against several Indiana abortion laws adopted since 2013. A 2016 law signed by then-Gov. Mike Pence aimed to ban women from deciding to undergo abortions because of a fetus’ genetic abnormalities, such as Down syndrome, and require women seeking an abortion to undergo an ultrasound at least 18 hours before the procedure. Federal judges have blocked those provisions, and the state attorney general’s office is asking the U.S. Supreme Court to hear its appeal.
Republican Rep. Ben Smaltz of Auburn, chairman of the Indiana House Public Policy Committee, said the panel would take up the dilation and evacuation procedure prohibition in the next couple of weeks. He said he decided after meeting with anti-abortion legislators, Indiana Right to Life leaders and the state attorney general’s office that the ban would have the best chance of reducing abortions in the state despite the likelihood of a legal fight.
“That’s always part of a bill like this, is that consideration,” Smaltz said. “I believe this bill gives us a very defensible position.”