A federal judge grilled an attorney for the state of Indiana on Monday over whether the Legislature had legitimate reasons for approving a law that would largely ban a second-trimester abortion procedure.
The American Civil Liberties Union of Indiana is seeking a preliminary injunction blocking the restrictions on dilation and evacuation abortions, which the legislation calls “dismemberment abortion.”
During a hearing on that request, U.S. District Senior Judge Sarah Evans Barker questioned why the state would force women seeking an abortion to undergo “highly risky” alternative procedures, such as prematurely inducing labor or injecting fatal drugs into the fetus before its removal. Barker balked at the possibility that a surgical opening of the uterus might be needed in some instances.
“My goodness, that hardly seems like a solution to this,” she said.
The measure passed by Indiana’s Republican-dominated Legislature and signed by GOP Gov. Eric Holcomb would make it illegal for doctors to use medical instruments to remove a fetus from the womb except to save the pregnant woman’s life or prevent serious health risk.
Barker, who was nominated as a judge by Republican President Ronald Reagan, said she planned to issue a ruling before the law’s July 1 effective date. Federal courts have blocked similar laws in several states, but abortion opponents are hopeful an increasingly conservative U.S. Supreme Court could uphold the ban.
Indiana Solicitor General Thomas Fisher started his arguments Monday with a description of how the dilation and evacuation procedure is performed on the fetus, but Barker quickly interrupted him.
“Let’s talk about the lawsuit, not the politics,” the judge said.
Barker questioned Fisher on whether the law would force women to seek more dangerous, intrusive and expensive procedures, as the alternatives could include two- to three-day hospital stays.
Fisher maintained the state had a valid role in limiting types of abortion procedures, citing the 2007 U.S. Supreme Court ruling that upheld a federal law banning the method its opponents call partial-birth abortion.
Fisher said Indiana legislators acted to ban dilation and evacuation abortions “because they think the procedure is unethical.”
The hearing followed a ruling Barker issued Friday allowing Whole Woman’s Health Alliance’s clinic to open an abortion clinic in South Bend. The Indiana State Department of Health had denied the Texas-based group a license for the South Bend clinic, saying it had not provided requested safety documentation.
Barker ruled the license denial presented a “substantial obstacle” for women in northern Indiana.
State Attorney General Curtis Hill announced Monday that his office asked Barker to put her order on hold while it challenges it before a federal appeals court.
“This federal judge seems to believe that every large city in the state is entitled to its own abortion clinic,” Hill said in a statement. “She further seems to think that state licensing requirements must give way whenever a clinic proposes to open in a city without one. The U.S. Supreme Court has never even remotely implied that such a rule exists.”
The dilation and evacuation 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 most abortions after 13 weeks of gestation mean that the method accounted for 22 of the 28 abortions performed during weeks 14 through 20 in 2017, all done in hospitals.
ACLU of Indiana attorney Ken Falk said only two doctors perform the procedure in Indiana and that neither of them is trained in the alternate method he referred to as “fetal demise.” Falk maintained that the state was trying to force “risk-enhancing” methods onto doctors and patients.
The U.S. Supreme Court last week rejected Indiana’s appeal of a lower court ruling that blocked a ban on abortion based on gender, race or disability. The court, however, upheld a portion of the 2016 law requiring burial or cremation of fetal remains after an abortion.