Not content with being one of the nation's most restrictive states to receive an abortion, Indiana's General Assembly recently passed House Enrolled Act 1337 — a legislative assault on the reproductive rights of Hoosier women. Despite opposition by two-thirds (21-10) of the women in that body, Indiana's male supermajority passed it anyway.
The bill mandates the remains of a terminated pregnancy — whether it was the result of an abortion or a miscarriage — be provided a burial or cremation of what is often no more than a small clump of cell tissue. This unnecessary burden will increase the cost of terminating a pregnancy, and exacerbate the emotional trauma associated with a miscarriage.
As if the previous provision isn't insane enough on its own merits, HEA 1337 also includes TRAP (Targeted Regulation of Abortion Providers) laws that make admitting privileges to a nearby hospital even more difficult for abortion providers to maintain. Admitting privileges are extremely difficult to secure in the first place. One common reason is some hospitals require physicians with admitting privileges to admit a certain number of patients each year, but they will never meet the requirement because abortions rarely require hospital admittance. The complication rate is .5 percent — 28 times lower than that of a colonoscopy — another procedure commonly peformed on an outpatient basis, but which no one challenges as a risk to patient safety.
TRAP laws create a patient safety issue where none exists by forcing the closure of clinics, and making it more difficult for women seeking an abortion to get one. More than half of the abortion clinics in Texas have closed since they enacted a similar bill a year ago. There were 9,000 fewer abortions in that state, which I'd guess has more to do with a sudden reduction in supply than demand.
If the intent of Roe vs. Wade was to make abortion a safe option for women - a decision furthered by Casey vs. Planned Parenthood, which ruled that states regulating abortion could not impose an "undue burden" on women seeking one — then it's difficult to see how the Texas law currently being challenged at the Supreme Court can be allowed to stand on the thinly veiled argument that it is protecting women from an already safe procedure.
Indiana's HEA 1337 further punishes a provider who knowingly performs an abortion if it was sought due to a fetal abnormality or disability. This means a woman could be forced to carry a fetus to term with significant developmental issues that is likely to have a poor quality of life.
HEA 1337 also imposes a burden on women seeking an abortion by requiring them to view an ultrasound and listen to the heartbeat of the fetus. Then it forces them to wait 18 hours before having the procedure. Considering only 4 of Indiana's 92 counties provide abortion services, one can presume many women have to travel a significant distance to get to one. To require them to return 18 hours later is a further drain on their time and resources.
That HEA 1337 makes it harder to procure an abortion is hardly the point to the bill's proponents, but rather a secondary consequence of the overall strategy: to assign a fertilized zygote "personhood" in the case law, in their continued effort to further chip away at Roe, which declined to offer legal protections to a first trimester fetus.
Roe gave women the right to procure an abortion for any reason in the first trimester — when 90 percent of abortions occur — because an examination of personhood through the history of case law, common law, philosophy, and even religion persuaded the court that a first trimester fetus does not meet the legal definition of a person.
Supporters of legislation like HEA 1337 think if they can secure civil rights for fetuses in the case law and anti-discrimination protections for categories like race, gender, and disability status, then the Supreme Court can no longer cite the absence of fetal personhood to rule in favor of abortion.
Here's the thing though: an early term fetus is not a person. It cannot think, feel, or remember because it hasn't developed the systems to do so. HEA 1337 supporters seek to impose on society their belief that a fertilized zygote is a person because it has human DNA, even though a double helix of molecules is no more a person than a tree is a kitchen table. The potential to become a person does not convey greater, or even equal moral standing to a woman with the sentience to ponder difficult questions like reproductive choice.
That the bill was opposed by a supermajority of the women who voted on it illustrates how important it is for women to be better represented in our governing institutions.
Prognosticators on the Texas version of the admitting privileges bill are speculating Justice Kennedy — the swing vote on the abortion issue — will side with conservatives on the Supreme Court to split the vote and remand the decision back to the 5th Circuit. The purpose would be to allow the state time to prove it can handle abortion demand despite half of its clinics closing. However, I wouldn't be surprised to see Kennedy vote with liberals to put down a bill that is already having a significant impact on a woman's right to choose a safe abortion since he was one of the architects of Casey's undue burden standard.
Either way, these provisions will eventually find their way back to the Supreme Court. Don't underestimate the importance of electing a president who understands the continued attack on women's reproductive rights, and the need to nominate a justice with the same priorities.