One week after the confirmation of Judge Brett Kavanaugh, Indiana Attorney General is taking abortion to the Supreme Court.
In a filing announced Saturday morning, Hill asked that SCOTUS review and reverse a lower court ruling declaring efforts to attach provisions to Indiana’s abortion law unconstitutional.
Specifically, Hill is asking that a bill signed by then-Gov. Mike Pence in 2016 be considered.
House Enrolled Act 1337 contained two requirements that are at issue in this case.
First, the law required clinics and/or other healthcare facilities in possession of aborted or miscarried fetuses to dispose of them either by cremation or interment—the same requirements as those for deceased individuals.
Second, HEA 1337 prohibited doctors from performing discriminatory abortions based solely on the race, sex or disability of the child.
“The Seventh U.S. Circuit Court of Appeals ruled that the non-discrimination provision imposed an undue burden on the right to obtain abortions and the fetal disposition provision fulfills no legitimate government objective – even though, with regard to disposal of fetal remains, the Eighth U.S. Circuit Court of Appeals has found a virtually identical provision in Minnesota to pass constitutional muster,” says Hill.
“Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses,” Hill continues.
“These tiny bodies, after all, are in fact human remains. Further, states have every reason and right to prohibit abortions from being performed simply as a means of selecting the race, sex, or physical condition of a child. The right to abortion declared by our Supreme Court protects only the decision not to bear a child at all, not a right to decide which child to bear. Our nation knows only too well the bitter fruits of such discrimination.”
On Monday, Oct. 15, Planned Parenthood of Indiana and Kentucky responded to Hill’s motion.
“It’s disappointing that the state of Indiana continues to defend these unconstitutional and medically unnecessary abortion restrictions,” said PPINK President and CEO Christie Gillespie.
“By appealing to the Supreme Court, the state of Indiana is trying to not only chip away at Hoosiers’ rights, but also threaten the rights of people seeking safe and legal abortion care across the country. If they truly want to reduce the need for abortion in Indiana, our legislators should focus on expanding access to affordable birth control and comprehensive sex education, not blocking patients’ access to care.”
HEA 1337 is one of many cases in recent years where Indiana has passed laws intended to impede a woman’s right to an abortion, only to have the courts rule those laws unconstitutional.
In July 2018, the 7th U.S. Circuit Court of Appeals ruled that the Indiana law requiring women to get an ultrasound 18 hours before an abortion created an undue burden and is unconstitutional.
In June, the Court struck down Senate Enrolled Act 340, which required health care providers to annually report 26 abortion complications to the Indiana State Department of Health. It also required doctors to disclose the age, education, marital status and race of the woman who receives an abortion and track of the number of abortions each patient has had.
The law Hill is now taking to SCOTUS, HEA 1337 was struck down in September 2017. At that time, U.S. District Judge Tanya Walton Pratt issued the injunction against provisions requiring a funeral for an aborted fetus and that the fetus has certain rights are unconstitutional.
The ruling also struck down the part of HEA 1337 aimed at prohibiting abortions if a fetus was diagnosed with Down Syndrome or other genetically-inherited diseases.
The state attempted to apply anti-discrimination rules to abortion law, but Pratt said that “circuit courts have consistently held that any type of outright ban on pre-viability abortions is unconstitutional.”
In her ruling, Pratt said HEA 1337 would violate U.S. Supreme Court precedents protecting a women’s right to choose an abortion before a fetus is viable and the right of privacy in making that decision.
Passing these laws, defending them in court, and losing is costing Indiana taxpayers millions. Last year, an investigation by The Times of Northwest Indiana found that Indiana already has payed out $2,831,532.99 in legal fees to the ACLU since 2011, including $302,889.87 during the 2017 budget year, $668,385.13 in 2016, and $433,675.92 in 2015.
This story was updated on Monday, Oct. 15, to include the statement from Planned Parenthood in response to the filing.