Indiana’s abortion ultrasound petition listed at U.S. Supreme Court

While the U.S. Supreme Court is still considering Indiana’s petition for a review of two abortion laws blocked by the lower courts, another abortion petition from the Hoosier state has been listed for the justices’ May 9 conference.

Indiana filed a writ of certiorari Feb. 4, asking the Supreme Court to uphold its law requiring an ultrasound be performed on women seeking an abortion at least 18 hours before the procedure. The U.S. District Court for the Southern District of Indiana issued a preliminary injunction in March 2017, finding the law imposed an undue burden on women, and the 7th Circuit affirmed in July 2018.

However, Indiana argues to the Supreme Court that the law is only combining two pre-existing abortion regulations that are constitutional – an informed-consent waiting period and an ultrasound requirement.

The state enacted the informed-consent statute in 1995, mandating that a woman must receive, in person, specific information at least 18 hours before the abortion. Ten years later in 2005, the Legislature directed an ultrasound to be performed but did not indicate when that procedure had to occur. Consequently, the practice became doing the ultrasound on the same day as the abortion.

 Numerous organizations have filed amicus curiae briefs in support of Indiana’s position in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., 18-1019. The organizations include Operation Outcry, Institute for Faith and Family and Pro Life Action League.

The American Civil Liberties Union of Indiana and the American Civil Liberties Union Foundation are representing PPINK. They argue, in part, that the 18-hour requirement translates into the ultrasound and abortion having to be done on separate days. This particularly burdens poor and low-income patients, the ACLU argues, because they must visit the clinic twice, which means they have to find additional transportation, pay for extra child care and take a second day off work.

While the Indiana’s ultrasound petition is coming under review, the justices are continuing to debate Indiana’s other abortion petition in Kristina Box, et al. v. Planned Parenthood of Indiana and Kentucky Inc., 18-483. This petition has been distributed for conference 11 times and has been relisted for the May 9 conference.

In this petition, the Hoosier state is asking the Supreme Court to allow both its law prohibiting abortions on the basis of gender, race or genetic abnormality and its law requiring fetal remains be either buried or cremated.

The statutes were blocked before they took effect by the Indiana Southern District Court and affirmed by the 7th Circuit. Indiana filed its petition with the Supreme Court in October 2018.

Meanwhile, another new abortion law has been challenged in the U.S. District Court for the Southern District of Indiana. In April, the ACLU of Indiana and ACLU National filed a complaint against House Enrolled Act 1211, which bans dilation and evacuation abortion unless the mother’s health is at risk.

The complaint, Caitlin Bernard, M.D.; Katherine McHugh, M.D. v. The Individuals Members of the Indiana Medical Licensing Board; The Marion County Prosecutor, 1:19-cv-1660, asserts the statute is unconstitutional because it imposes an “undue burden on the right of women to obtain pre-viability abortions and is an unwarranted invasion of their bodily integrity.”

Recently, the Kansas Supreme Court overturned a similar abortion prohibition in the Sunflower State. In a sweeping decision in Hodes & Nauser, MDs, P.A., et al. v. Derek Schmidt, et al., 114-153, the split state court found the Kansas Constitution’s protection of an individual’s “right of personal autonomy” includes a woman’s right to an abortion.

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