Indiana AG may appeal injunction against D&E abortion ban

Indianapolis, Ind., Jul 1, 2019 / 16:22 pm

An Indiana ban on dilation and evacuation abortion has been blocked by a federal judge's preliminary injunction, continuing the legal fight over abortion in a time when the legal and political future of legal abortion is still in flux.

Indiana Attorney General Curtis Hill has said he will likely appeal the ruling.

"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 June 28.

The Indiana Senate passed H.B. 1211 by a vote of 38-10, while the House of Representatives backed it by a vote of 71-25. Republican Gov. Eric Holcomb signed it into law earlier this year.

The law banning the second-trimester procedure was set to take effect July 1. Doctors who violate the law could be charged with a felony and a possible six-year prison sentence, the Associated Press reports.

U.S. District Judge Sarah Evans Barker granted the preliminary injunction.

She said the law "prohibits physicians from utilizing the most common, safest, often most cost effective, and best understood method of second trimester abortion." It makes doctors who perform abortions "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."

During a June hearing on the law, Barker had questioned why the state would push women towards "highly risky" alternatives such as prematurely inducing labor or injecting fatal drugs into the unborn baby.

The law bars doctors from removing a fetus from the womb using medical instruments such as clamps, forceps, and scissors. It makes exceptions to save a pregnant woman's life or to prevent serious health risk.

Attorneys supporting the law said they have support from a 2007 U.S. Supreme Court ruling upholding a federal ban on partial-birth abortion.

Mike Fichter, president and CEO of Indiana Right to Life, urged Barker's decision to be appealed.

"Dismemberment abortions are painful and barbaric," he said. "No baby deserves this horrific death sentence."

"It's disgusting that the abortion industry can simply overturn a law they dislike by filing a lawsuit," he added.

There were 27 dilation and evacuation abortions performed in Indiana in 2017, state health department figures said. There were 7,778 abortions that year, meaning dilation and evacuation abortions made up 0.35 percent.

Most of these abortions followed prenatal testing that indicated serious health risks for either the unborn baby or the mother, the Northwest Indiana Times reported in April.

Attorneys from the American Civil Liberties Union challenged the law on behalf of two doctors who perform such abortions. The attorneys said the law would put a "substantial and unwarranted burden on women's ability to obtain second-trimester, pre-viability abortions."

Barker, who was nominated by President Ronald Reagan, recently allowed an abortion clinic to open in South Bend, Indiana after the Indiana State Department of Health denied a license to the clinic operator on the grounds it had not provided required safety documentation.

The same day as the federal injunction against the law, the U.S. Supreme Court rejected an appeal from backers of Alabama's anti-dismemberment law in Harris v. West Alabama Women's Center.

Justice Clarence Thomas agreed with the decision not to hear the Alabama law, but he said the legal challenge to it "serves as a stark reminder that our abortion jurisprudence has spiraled out of control."

"The notion that anything in the Constitution prevents States from passing laws prohibiting the dismembering of a living child is implausible," wrote Thomas.

He said the court's conception of "undue burden" is "demonstrably erroneous." An "undue burden" standard currently renders unconstitutional any law that is a "substantial obstacle" to a pregnant woman seeking an abortion before fetal viability.

At the same time, he said the Alabama law does not present the right pattern of facts to challenge American abortion precedent and the case was "too risky" for the high court to consider.

Other Indiana abortion laws have been heard in the federal courts.

In May the U.S. Supreme Court upheld part of a 2016 Indiana law requiring aborted babies to be cremated or buried. However, it declined to consider another part of the law that banned abortions based solely on the sex, race, or disability of the baby, on the grounds that the law raises issues that have not been adequately considered by appellate courts.

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The legal status quo on abortion is in doubt given the current makeup of the U.S. Supreme Court.

Pro-life advocates have hoped that strong abortion restrictions will soon pass Supreme Court muster again, if precedents such as the 1973 Roe v. Wade case are changed or overturned.

Some states have passed bans on abortion based on when an unborn child's heartbeat is detectable, as early as six weeks into pregnancy, while other states have passed laws that secure legal abortion even if the U.S. Supreme Court modifies or overturns precedent requiring legal abortion nationwide.