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Ruling prevents Indiana from enforcing provisions of new abortion law

A federal judge has granted a preliminary injunction that prevents certain portions of a new abortion law in Indiana from taking effect on July 1.

Planned Parenthood of Indiana and Kentucky and Dr. Marshall Levine filed a lawsuit against the Commissioner of the Indiana State Department of Health and others to prevent the law from taking effect.

The plaintiffs allege some provisions of House Enrolled Act 1337 are unconstitutional.

The three provisions the plaintiffs claim are unconstitutional include:

  • The anti-discrimination portion of HEA 1337 states a woman cannot get an abortion solely based on the sex, race or disability of the fetus. (“[a] person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking” an abortion: (1) “solely because of the sex of the fetus,” (2) “solely because the fetus has been diagnosed with, or has a potential diagnosis of, Down syndrome or any other disability,” or (3) “solely because of the race, color, national origin, or ancestry of the fetus.”)
  • The information dissemination portion of HEA 1337 requires an abortion provider to inform patients of the above provision, and which types of abortions it prohibits. (“[t]hat Indiana does not allow a fetus to be aborted solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.”)
  • The fetal tissue disposition provision would requirement fetal tissue be disposed of in a manner similar to other human remains (“[a]n abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated.”)

The judge's ruling states the Planned Parenthood challenge to the three provisions of the law is likely to succeed and therefore granted the injunction.

A law preventing a woman from getting an abortion based on sex, race or disability directly contradicts the principles of Roe v. Wade, the ruling states. The ruling states the Supreme Court has ruled states cannot interfere with a woman's ability to terminate her pregnancy prior to viability. That right stems from the right to privacy protected by the Fourteenth Amendment.

In addition, the requirement an abortion provider must give information about the restrictions on abortions would likely be found unconstitutional because it would require the patient be given false information.

The ruling states the challenge to the fetal tissue disposition provision is likely to be overturned because the law does not recognize a fetus as a person. The court could find no support for the state's position it has a legitimate interest in the proper disposal of human remains.

Because of the injunction, the state may not enforce the anti-discrimination, the information dissemination and fetal tissue disposition provisions of HEA 1337.

Kara Brooks, spokeswoman for Governor Mike Pence, issued the following statement:

While disappointed in today's ruling, Governor Pence remains steadfast in his support for the unborn, especially those with disabilities. The Governor will continue to stand for the sanctity of human life in all stages, for the compassionate and safe treatment of women faced with an enormously difficult decision, and for the rights of citizens to determine appropriate medical safety standards and procedures through their elected representatives. While the judicial process continues, the Governor remains focused on growing the already robust Hoosier economy and providing a world class education for all our children.

John Zody, Chairman of the Indiana Democratic Party, released the following statement after a federal judge blocked Mike Pence’s HEA 1337.

In the final moments of this year’s session, Mike Pence and Statehouse Republicans pushed an out of touch bill that served as more of an election year ploy than Hoosier Commonsense. It was a harmful piece of legislation that compromises the safety of women and families across our state, and was panned by legislators from both parties. And just like RFRA from last year, Mike Pence’s decision to sign HEA 1337 has embarrassed the state.

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