Bolstered by SCOTUS Ruling, ACLU Sues Indiana Over New Abortion Law

by | July 11, 2016

By Megan Banta

Indiana now is seeing the impact of the U.S. Supreme Court decision that in late June struck down Texas abortion regulations.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, said a lawsuit the organization filed on Thursday challenging a new Indiana abortion regulation was "very much so" influenced by the opinion the court issued in Whole Woman's Health v. Hellerstedt.

And Dawn Johnsen, Walter W. Foskett Professor of Law at Indiana University's Maurer School of Law and a reproductive rights expert and advocate, said it's likely just the beginning.

"I think this is exactly the kind of challenge we can expect to see in states across the country following Whole Woman's Health," Johnsen said Thursday afternoon.

The high court's decision means that lower courts, when applying the new precedent set in Whole Woman's Health, can't just defer to a state that says it enacted a law for the purposes of promoting women's health. Now, courts must give a meaningful, close review to see whether that claim is true -- whether a law actually benefits women who might seek an abortion, or whether it simply serves as an obstacle.

That's a change in the "undue burden" standard in 1992's Planned Parenthood v. Casey ruling, in which the high court said laws impose such a burden if they are enacted with the purpose of placing "a substantial obstacle in the path" of a woman seeking an abortion.

And it's directly referenced in the federal lawsuit the ACLU filed on behalf of Planned Parenthood of Indiana and Kentucky challenging new regulations that, as of July 1, require women in Indiana to obtain an ultrasound at least 18 hours before receiving abortion care.

"There are no medical benefits to the performance of the ultrasound 18 hours before the abortion as opposed to immediately prior to the abortion, and the requirement does nothing except make it more difficult for women to obtain an abortion," the complaint filed Thursday reads.

Falk added that requiring women to obtain an ultrasound "at least 18 hours before an abortion, as opposed to allowing PPINK to continue its practice of providing one immediately prior to the abortion, provides no health benefit to women and serves only to place a substantial obstacle to obtaining an abortion," and makes the regulation an "unconstitutional undue burden" on a woman's right to obtain an abortion, as that right was established in the 1973 Supreme Court ruling in Roe v. Wade.

An 18-hour waiting period in general is nothing new for women in Indiana, but before the new provisions, women could fulfill the informed consent requirement before the procedure at any one of Planned Parenthood's 23 health care centers and then wait to obtain an ultrasound until just before receiving abortion care.

The new provisions, which require women to obtain an ultrasound the same day they undergo the informed consent visit, are problematic for one primary reason, the suit says: "Because ultrasound equipment is expensive, and because specially trained staff must operate the ultrasound, PPINK, prior to the passage of the law, only performed ultrasounds in the clinics where abortions were performed."

And the complaint adds that Planned Parenthood "cannot afford to have ultrasound equipment and trained ultrasound technicians in each of its health centers."

What that means for women is that under the new regulations, many must make two trips to obtain an abortion or pay for an overnight stay, both incurring travel costs and likely taking time off work and missing out on potential pay.

The lawsuit specifically points to Fort Wayne, where Planned Parenthood has a clinic but no ultrasound equipment. The closest clinic performing abortions is more than 100 miles away from the city.

Before July 1, Planned Parenthood would have let women receive the informed consent information at a clinic in Fort Wayne and had them wait to travel that distance and receive both an ultrasound and abortion care until at least 18 hours had passed. Now, that's not a possibility unless the organization installs expensive ultrasound equipment at that health clinic, meaning women who don't live in a city with a PPINK clinic that performs abortions almost certainly would have a tougher time obtaining an abortion.

"The difficulty of making the two trips to distant clinics will force some women to delay obtaining abortions and will result in some women not being able to obtain abortions at all," the lawsuit reads.

Johnsen said those facts as presented in the complaint filed Thursday are key to the case because they support "how it would actually affect women and health care providers."

"Then, under Whole Woman's Health, the state would have to demonstrate that serves an actual purpose," Johnsen said of the new precedent set by the Supreme Court decision.

Planned Parenthood already has taken some measures to address those difficulties, including purchasing ultrasound equipment for its clinic in Mishawaka and training staff to use equipment already present at an Evansville location.

The lawsuit, though, seeks to address a much larger issue, said Betty Cockrum, president of PPINK.

"We wish Indiana's politicians would leave the practice of medicine to doctors and health care providers rather than interfering yet again," Cockrum said in a news release. "The 18-hour requirement is unduly burdensome and adds no value in a state already fraught with difficult and unnecessary regulations regarding a truly safe and legal procedure."

The suit comes one week after a federal judge in Indianapolis granted Planned Parenthood's request for a preliminary injunction, blocking other portions of the law being challenged in this suit. Those restrictions would have banned abortions sought because of genetic abnormalities and mandated that an aborted fetus be buried or cremated.

(c)2016 the Herald-Times (Bloomington, Ind.)