AG Hill won’t appeal injunction of second-trimester abortion law

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Indiana will not appeal a federal court order blocking a new law that would have banned the most common form of second-trimester abortions, Attorney General Curtis Hill announced Wednesday.

Rather than appealing the June 28 injunction against House Enrolled Act 1211, which would have banned dilation and evacuation abortion procedures in most circumstances, the Office of the Attorney General will proceed to summary judgment or trial, Hill said in a Wednesday news release.

Indiana Southern District Senior Judge Sarah Evans Barker issued the injunction three days before HEA 1211 would have gone into effect on July 1. In her 53-page order, Barker said described dilation and evacuation procedures — often referred to as “dismemberment abortions” by abortion-rights opponents — as “the most common, safest, often most cost effective, and best understood method of second trimester abortion.”

The law, Barker said, would require women to “resort to alternatives that are medically riskier, more costly, less reliable, and in some instances simply unavailable, while accomplishing little more than expressing hostility towards the constitutionally fundamental right of women to control their own reproductive lives.”

Under HEA 1211, physicians would be prohibited from performing D&E abortions unless the procedure was medically necessary to prevent serious risk of death to the mother. Performing a D&E abortion in violation of the law would be a Level 5 felony.

The American Civil Liberties Union of Indiana filed a lawsuit against HEA 1211 just one day after Gov. Eric Holcomb signed it into law. In the suit, the ACLU sought injunctive and declaratory relief for alleged violations of the plaintiff’s 14th Amendment due process rights, as well as women’s rights to bodily integrity.

The ACLU brought the lawsuit on behalf of Dr. Caitlin Bernard, an Indianapolis doctor who performs abortions at area hospitals.

In court filings, the parties argued over whether there were safe, viable alternatives to dilation and evacuation procedures during the second trimester of pregnancy. Barker also questioned the OAG in court about the legitimate interest the state had in requiring women to undergo “highly risky” alternative procedures.

In announcing the decision not to appeal the injunction, Hill’s office noted the United States Supreme Court recently declined to hear a case involving a similar law in Alabama that was held to be unconstitutional by a federal appellate court. Even so, Hill said five other states — Texas, Arkansas, Kentucky, Louisiana and Ohio — each have ongoing litigation regarding what he referred to in the press release as dismemberment abortions. 

“I remain committed to protecting the value and dignity of fetal life by defending Indiana’s law banning this brutal and inhumane procedure,” Hill said in a statement. “At this juncture, I believe our best path forward in this case is to proceed to summary judgment as we continue to gather evidence and formulate strategy.”

HEA 1211 is the sixth Indiana abortion-related law to be blocked by federal courts in as many years. Most of those cases proceeded to appeals on the issue of injunctions, with the state finding little support at either the 7th Circuit Court of Appeals or the U.S. Supreme Court.

The 2019 case is Caitlin Bernard, M.D. v. Individual Members of the Indiana Medical Licensing Board, in their official capacities, et al., 1:19-cv-01660.

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