In the same day a federal judge again blocked an Indiana abortion law from taking effect, a conservative United States Supreme Court justice agreed not to hear a similar case from another state.
Late on the afternoon of June 28, U.S. District Senior Judge Sarah Evans Barker issued an injunction blocking a new Indiana law that would have banned the most common procedure used to perform second-trimester abortions from taking effect on July 1.
Barker issued a 53-page order that blocked the enactment of Indiana’s House Enrolled Act 1211. That law, the judge noted, is aimed to ban “an abortion procedure known to medicine as ‘dilation and evacuation’ ... and referred to by its political opponents as ‘dismemberment abortion.’”
Barker’s order granted a preliminary injunction sought by Dr. Caitlin Bernard in a suit brought by the American Civil Liberties Union of Indiana. The ACLU filed Caitlin Bernard, M.D. v. The Individual Members of the Indiana Medical Licensing Board; The Marion County Prosecutor, 1:19-cv-1660 in April, just one day after Gov. Eric Holcomb signed the bill into law.
In her decision, Barker summarized HEA 1211 as a law that would keep doctors from performing the commonly used surgical procedure, instead requiring them to use what has been described as more dangerous and costly alternatives “while accomplishing little more than expressing hostility towards the constitutionally fundamental right of women to control their own reproductive lives” as established in Roe v. Wade. Barker then granted the motion for preliminary injunction just days before it would have gone into effect.
“I am relieved that I can continue providing the best care for patients without risking prosecution,” Bernard said. “Doctors must be able to use our best medical judgment, without unnecessary government interference.”
The specific language of HEA 1211 would ban doctors in the Hoosier state from performing abortion under the D&E method “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 term “dismemberment abortions” under the law does not include “an abortion that uses suction to dismember a fetus by sucking fetal parts into a collection container.”
But Barker noted in her analysis that while the state asserted the new law “protects the dignity and value of fetal life” from the “brutality” and “inhumanity” of D&E procedures, it would not “save fetuses from dismemberment per se.”
“HEA 1211 expressly does not save any fetus from dismemberment by ‘suction’ of ‘fetal parts into a collection container,’” Barker wrote. “It is difficult to see how any respect for life is even arguably expressed by the choice to ban dismemberment by the convergence of two rigid levers while permitting dismemberment by suction.”
The federal judge also wrote that the only available alternatives to a D&E procedure without prior demise were “unduly burdensome” and that the new law “unquestionably imposes substantial burdens on the right of women in Indiana to seek previability abortions in the second trimester.”
“We conclude that, for a large fraction of these women — perhaps most or even all — HEA 1211 imposes a substantial obstacle to their exercise of the previability abortion right by prohibiting the most common, safest, and best understood method of second trimester abortion in exchange for alternatives that are riskier, more costly, less reliable, more painful, and in some instances simply unavailable,” Barker wrote.
“The benefits extend, at most, to a marginal or merely rational advancement of some (though not all) of the state interests asserted,” the judge continued. “The burdens of HEA 1211 very substantially exceed its benefits, are therefore undue, and are highly likely to render HEA 1211 unconstitutional.”
“We applaud the court’s decision to block HEA 1211, another unconstitutional attack on safe and legal abortion care in Indiana,” said Chris Charbonneau, CEO of Planned Parenthood of Indiana and Kentucky. “When state legislators continue to pass unconstitutional legislation against safe and legal abortion, we will continue to challenge them in the courts.”
The case at hand is the sixth Indiana abortion law to be blocked by federal courts since 2013, according to the ACLU of Indiana. Legal director Ken Falk said in a statement he was not surprised that HEA 1211 was blocked, a ban he referred to as “clearly unconstitutional.”
“We’re obviously very happy and we think the law is as clear as Judge Barker indicated,” Falk told Indiana Lawyer. “I would hope that the state would let the case stay and go no further.”
Indiana Attorney General Curtis Hill said his office is reviewing the decision and anticipates it will appeal the injunction.
“I continue to believe that Indiana has a compelling interest in protecting the value and dignity of fetal life by banning a particularly brutal and inhumane procedure,” Hill said.
Barker’s order came just hours after the U.S. Supreme Court refused to hear an Alabama appeal that sought to revive a 2016 law that would similarly ban second-trimester “dismemberment abortions” in the southern state.
The nation’s highest court declined to hear Alabama’s appeal in Scott Harris, in His Official Capacity as State Health Officer, et al., Petitioners v. West Alabama Women’s Center, et al., 18-837, and wouldn’t review a lower court ruling that blocked the law, the Associated Press reported. Similar laws have also been blocked in Kansas, Oklahoma, Louisiana, Texas and Arkansas.
Conservative Justice Clarence Thomas, a supporter of overturning Roe v. Wade, did not dissent from the Supreme Court’s decision not to hear Alabama’s case. But in a separate concurring opinion, Thomas did describe the surgical abortion procedure as “particularly gruesome.”
“The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote. The justice added that Alabama’s case is “a stark reminder that our abortion jurisprudence has spiraled out of control.”
“Earlier this Term, we were confronted with lower court decisions requiring States to allow abortions based solely on the race, sex, or disability of the child,” Thomas wrote, citing Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, et al., 587 U.S. ___(2019).
The U.S. Supreme Court in that case rejected Indiana’s appeal of another block by Barker of a ban on abortion based on gender, race or disability earlier this year. But the court did uphold part of the 2016 law requiring burial or cremation of fetal remains after an abortion.
“Today, we are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution,” Thomas continued.
“…Although this case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard, we cannot continue blinking the reality of what this Court has wrought.”•