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ACLU, state debate ‘alternatives’ to banned abortion procedure

May 20, 2019

As abortion rights supporters and opponents nationwide clash over legislation restricting abortions in several states, Indiana is beginning yet another legal battle over a law that could limit Hoosiers’ abortion access. This year’s fight is centered on second-trimester abortions and whether alternative procedures make banning a specific abortion procedure permissible.

In court documents filed Friday, the Indiana Office of the Attorney General urged the Indiana Southern District Court to reject a motion to issue a preliminary injunction against House Enrolled Act 1211, which would prohibit dilation and evacuation, or D&E, abortions unless medically necessary to protect a mother’s health. But in the preliminary injunction motion, the American Civil Liberties Union of Indiana and ACLU National argued D&E abortions are the most common method of second-trimester abortions and are the safest option for women seeking an abortion at that stage of pregnancy.

HEA 1211 would prohibit D&E abortions, described in statute as “dismemberment abortions,” unless “reasonable medical judgment dictates that performing the abortion is necessary: (1) to prevent any serious health risk to the mother; or (2) to save the mother’s life.” The law describes a dismemberment abortion as “an abortion with the purpose of killing a living fetus in which the living fetus is extracted one (1) piece at a time from the uterus through clamps, grasping forceps, tongs, scissors, or another similar instrument that, through the convergence of two (2) rigid levers, slices, crushes, or grasps a portion of the fetus’s body to cut or rip it off.”

The opposing parties — the OAG representing Marion County Prosecutor Terry Curry and the members of the Indiana Medical Licensing Board, and the ACLU representing Indianapolis physician Dr. Caitlin Bernard – flatly contradict each other in court filings, relying on different medical literature and deriving different meanings from existing Supreme Court precedent. The contrasting arguments also differ on an ideological basis, underscoring the national debate between viewing abortion as a societal woe or a legal right.

In the Friday filing, Indiana Solicitor General Thomas M. Fisher relied heavily on Gonzales v. Carhart, 550 U.S. 124 (2007) and Stenberg v. Carhart, 530 U.S. 914 (2000), in urging Senior Judge Sarah Evans Barker to reject the preliminary injunction motion. Citing more frequently to Gonzales, Fisher said the two cases allow bans of specific abortion procedures only if those bans carve out an exception for the health of the mother and allow abortions to be performed through safe and reasonable alternatives.

“Under these precedents, Indiana’s ban on live-fetus dismemberment satisfies the Constitution’s requirements twice over: It not only expressly provides a medical health exception — which by itself is sufficient to ensure the law’s constitutionality — but it also, like the statute upheld in Gonzales, leaves open multiple safe alternative procedures for second-trimester abortions: labor induction, fetal demise via injection of digoxin, fetal demise via potassium chloride, and fetal demise via umbilical cord transection,” Fisher wrote.

But in a May 3 preliminary injunction motion, the ACLU said the court in Stenberg was aware of these “fetal demise procedures,” “but the existence of these procedures was not constitutionally sufficient to uphold a ban on the preferred method of second-trimester abortions.” Further, the ACLU said Gonzales allowed an abortion procedure ban to stand because that ban “did not reach standard D&E.”

“…(T)he Gonzales Court thus focused on the safety, effectiveness, and prevalence of an ‘available’ alternative — the standard D&E,” ACLU of Indiana legal director Ken Falk wrote.

Both briefs devote considerable discussion to the various alternatives to a D&E procedure to complete a second-trimester abortion and get around the criminal penalties — namely, a Level 5 felony charge — of HEA 1211. The main alternative is to induce labor, the parties say, but doctors could also cause “fetal demise” by using pharmacological agents or by transecting the umbilical cord. 

The “fetal demise” methods cause fetal death, which would remove the criminal liability for knowingly performing a D&E procedure on a living fetus.

According to the ACLU, each of these alternatives is unsafe, unstudied, unnecessary and/or impractical. Inducing labor is more expensive and riskier to a woman’s health than D&E, the ACLU argues, while there is no guarantee pharmacological agents — specifically, digoxin and potassium chloride — will succeed in bringing about fetal demise.

The issue, the ACLU wrote on Bernard’s behalf, is that injecting digoxin or potassium chloride to cause fetal death requires a high degree of precision and skill that comes from training not all Indiana physicians have. According to a declaration submitted by Bernard — who is a professor at Indiana University Medical School and an OB/GYN at IU Health — only she and two other doctors in Indiana can perform D&E abortions, and neither is trained in fetal demise methods.

Further, Bernard argued transecting an umbilical cord, which quickly causes fetal death, “is not widely practiced, is barely researched, and has no known medical benefit.”

“A physician’s ethical obligation is to take the best possible care of her patients,” Bernard argued. “A physician therefore cannot, as an ethical matter, recommend that her patients utilize procedures that are unstudied, potentially dangerous and painful, less effective, and provide no medical benefit.”

But calling the ACLU’s cited medical studies “flawed,” the state pointed to other research it said proved induction and/or fetal demise methods are safe and viable alternatives to performing a D&E abortion on a living fetus.

According to Fisher’s brief, there is “no scientific basis to claim that induction of labor is a greater risk to women than a D&E abortion.”

As to the pharmacological agents, Fisher wrote that “(c)omplications could arise only from a grossly mistaken and rapid injection of potassium chloride in the body of a woman in a very high dose.” Further, “there is no evidence that D&Es performed after inducing fetal demise are any more dangerous than D&Es performed on living fetuses.”

Finally, the state said the risks of cervical laceration or uterine perforation that come with transecting an umbilical cord “are already possible complications of the D&E procedure, which must necessarily involve the use of medical instruments to extract the fetus.”

The sum of the ACLU’s argument is that HEA 1211 is an unconstitutional infringement on the right to an abortion and on a woman’s right to bodily integrity. But in addition to passing constitutional muster under Gonzales and Stenberg, the state said HEA 1211 does not infringe on the right to bodily integrity because it is merely a passive regulation.

Fisher’s brief also gets to the heart of the ideological opposition to abortion, arguing the state has a compelling interest in protecting fetal life. Similarly, Indiana Attorney General Curtis Hill released a statement Monday describing the D&E process as ripping “live fetuses piece by piece from their mothers’ wombs.”

“These other second-trimester abortion procedures, though repugnant, do not impose additional undue cruelty on a live being,” Hill said. “In Indiana, we should stand strong for a culture of life and protect our fellow humans as far as the U.S. Supreme Court will allow.”

But in announcing the lawsuit, Caitlin Bernard, M.D v. The Individual Members of the Indiana Medical Licensing Board, et al., 1:19-cv-1660, ACLU of Indiana executive director Jane Henegar highlighted the opposite side of the ideological spectrum and accused Republican state lawmakers of using inflammatory language to stir up support for HEA 1211. She also said science has disproved the argument that fetuses can feel pain during a D&E procedure.

Meanwhile, as the parties debate the merits of HEA 1211, which is scheduled to take effect July 1, a procedural issue in the case will likely soon be resolved. Attorneys Anne Harrigan and Daniel Bowman, both of the Indianapolis Office of Corporation Counsel, have voluntarily moved to withdraw their appearances on behalf of prosecutor Curry.

Last week Hill moved to strike Bowman’s appearance, arguing that only the OAG has the statutory authority to defend state actors sued in their official capacities. Harrigan entered her appearance on Friday, after Hill moved to strike Bowman.

Later the same day, both Harrigan and Bowman moved to withdraw their appearances, writing that Curry’s office had requested their representation “to inform the Court that it would not be taking a legal position… .” But “(t)he undersigned respectfully move the Court to withdraw their appearances because an amicus brief declining to take a legal position would be of little utility to the Court…,” Harrigan and Bowman wrote.

Also dismissed from the case was Dr. Katherine McHugh. McHugh was initially a named plaintiff alongside Bernard, but on May 8 Falk filed a motion saying she “wishes to be dismissed as a plaintiff.” Barker granted that motion May 10.

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