Fetal remains bill heading to House floor

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The Indiana House of Representatives was scheduled to hear a bill Monday that deals with the disposal of fetal remains, building on a similar provision in an abortion law the state passed in 2016 and was subsequently upheld by the U.S. Supreme Court.

Senate Bill 299 provides that a woman having either a surgical or medication abortion may have the abortion clinic or health care facility either bury or cremate the remains or can choose to dispose of the remains herself. The bill requires the woman to inform either the clinic or facility of her disposal decision. It also requires the clinic or facility to include with the burial transit permit a log that contains the date of the abortion, method by which the pregnancy was terminated and how the disposal was done.

The author, Sen. Liz Brown, the author of SB 299, has described the bill as a completion of HEA 1337. Along with requiring a miscarried or aborted fetus be interred or cremated by the facility that has the remains, the law banned abortions on the basis of race, gender and genetic abnormality, mandated that women be shown a fetal ultrasound at least 18 hours before the abortion and required that the physician performing the abortion have admitting privileges to the local hospital.

In Box et al v. Planned Parenthood of Indiana and Kentucky, Inc., et al., the American Civil Liberties Union of Indiana challenged provisions regarding the disposal of the remains and the prohibition of an abortion because of the genetic characteristics of the fetus. A split 7th Circuit upheld the injunction issued by the Southern Indiana District Court, with Judge Daniel Manion arguing the fetal remains provision was a “legitimate exercise of Indiana’s police power.”

The state appealed to the U.S. Supreme Court. In a per curiam ruling, the court concluded the disposal requirement was rationally related to the state’s interest. However, the court stated it was only asked to consider the provision under an ordinary rational basis review and was not addressing the merits of the provision if it had been challenged under the undue burden test.

Speaking before the House committee, Brown said the bill was placing some “guardrails” around the disposal provision that the state health department needed.

“This is actually a very simple bill that allows us to bury the fetal remains of our babies with dignity,” she said.

Representatives from Indiana Attorney General Curtis Hill’s office spoke in support of the bill. However, Sue Ellen Braulin, co-president of the Indiana Religious coalition for Reproductive Choice, opposed the bill and warned although women are not being required to bury or cremate the remains, the required documentation could lead to the state investigating a patient’s private medical care.

“It’s worse than a mandate. It’s a vague directive disguised as a mandate that’s enforceable with the power of the state and the point of this is enforcement…,” Braulin testified. “There will be discrepancies in this new form and with the burial transit permits. As much as we’re assured it doesn’t fall on the patient, these will be investigated with the seriousness of missing persons’ bodies and there will be investigations. It’s an opening to find new ways to investigate clinics and probably people.”

Rep. Ronald Bacon, R-Chandler, said any such investigations would be blocked by the Health Insurance Portability and Accountability Act.

SB 299 passed the House committee with most Democrats joining the Republicans in voting for the bill.

Both Reps. Rita Fleming, D-Jeffersonville, and Ryan Hatfield, D-Evansville, said they saw the measure as giving women more choice. Ranking minority member Robin Shackleford, D-Indianapolis, also supported the bill with the caveat that if anything is added that would interfere with a woman’s choice, she will vote against it on the House floor.

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