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“Focus on the lawsuit, not the politics,” judge tells state’s lawyer in latest abortion lawsuit

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Ken Falk

Gavin Rose (Left), Kenneth Falk (Middle), and Jane Henegar (Right) held a press conference Thursday to explain the lawsuit they filed on the House Enrolled Act 1211, which bans the most common form of second-trimester abortion. Photo by Bryan Wells, TheStatehouseFile.com

The lawsuit challenging Indiana’s most recent abortion law was heard by a federal judge Monday, and the odds are not in favor of the state’s position considering the judge’s sharp comments directed at Indiana Solicitor General Thomas Fisher.

U.S. District Court judge Sarah Evans Barker said she received 600 pages of evidence for the case, and throughout the hearing Monday, she repeatedly said the state is trying to ban the safest and most reliable form of a second-trimester abortion.

sarah evans barker

Judge Sarah Evans Barker

The Indiana American Civil Liberties Union and Indianapolis OB-GYN Dr. Caitlin Bernard filed a lawsuit in April challenging the constitutionality of the Indiana’s recently passed law that will ban a form of second-trimester abortions.

The law, effective July 1, bans dilation and evacuation (D&E) abortions, which is the standard procedure done in the second-trimester. Still, the procedure remains rare, and only 27 were performed in Indiana last year. Bernard is one of two OB-GYNs who can perform second-trimester abortions in Indiana.

Fisher opened his argument by saying the state is trying to ban “ripping a fetus limb from limb from the womb.” His language echoed the words used by some lawmakers when the bill was passed in the 2019 session.

tom fisher

Thomas M Fisher is solicitor general for the state of Indiana.

Barker interrupted Fisher to tell him to focus on the “lawsuit and not the politics.” She added, “I’m not going to let you load this up with a lot of language.”  

Fisher argued that there are three safe alternative methods to performing a D&E procedure, including inducing labor to result in the birth of a nonviable fetus, injecting the fetus with Digoxin or potassium chloride to result in death or removing the umbilical cord, resulting in the fetus dying within a few minutes.

But Ken Falk, the legal director at the ACLU representing Bernard, said the procedures can be more painful, less reliable and more intrusive. He said induced labor can result in a two to three-day hospital visit enduring painful childbirth labor, and he argued many cannot financially afford that long of a hospital stay.

Falk also told the court that causing a fetal death through an injection is a very difficult procedure to perform because the needle has to enter the fetus’s heart to work effectively, and many physicians do not know how to give the injection.

“Dr. Bernard observed fetal demise injections,” Falk said. “She knows enough to know how difficult they are, and she knows she cannot do them.”

When questioning Fisher, Barker told him that the alternatives Fisher suggested are “hard positions to maintain,” based on lack of medical evidence. She also said the uncertainty of the evidence behind the fetus feeling pain during D&E may not be considered a justifiable case for the law.

Fisher argued that Bernard and the other OB-GYNs who performs second-trimester abortions already offer labor induction, but not currently as an alternative to a D&E procedure. He also said Bernard has time to learn how to give the fetal demise injections between now and July 1, to which Barker responded by saying, “That’s your best argument?”

Barker is expected to rule by July 1 whether to block the law.

In other abortion matters, Attorney General Curtis Hill appealed Barker’s recent ruling that an unlicensed abortion provider may open a clinic in South Bend. Hill asked for an immediate stay that would prevent the clinic from opening until the appeal is considered.

In March, Texas-based Whole Woman’s Health asked the district court to issue a preliminary injunction allowing it to open a clinic without obtaining standard approval from the Indiana State Department of Health (ISDH). Previously, the ISDH has denied Whole Woman’s Health Alliance a license after they failed to provide requested documentation about the safety record of affiliated clinics in other states and other required information.

In the preliminary injunction ruling, the district court ruled that requiring Whole Woman’s Health to obtain a license would impose a burden on women seeking abortion.

Hill said that allowing the operation of an unlicensed abortion clinic would cause harm to patients and that Indiana has good reasons for requiring abortion clinics to be licensed, such as the state’s interest in protecting the health of the mother and preserving the life of the fetus.

Barker is a senior judge who was named to the federal bench by President Ronald Reagan in 1984.

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