Is The Indiana Abortion Case Really About The Divided Political Climate?

Jun 15, 2016

The law in question was passed during the 2016 legislative session, and a federal judge says she'll rule on its constitutionality by the time it's supposed to take effect on July 1.
Credit Jim Grey / https://www.flickr.com/photos/mobilene/

Abortion remains as controversial as ever, but a bill passed this year in Indiana, which bans abortions based on race, sex, and disability and prohibits the selling of fetal tissue, has garnered an especially harsh response.

Headlines said the law was “one of the most restrictive in the nation,” that it featured “severe, totally unenforceable restrictions,” and that after its signing, “women’s rights in Indiana are dead.”

Planned Parenthood and the American Civil Liberties Union of Indiana are suing the state over the bill, claiming its provision banning abortions based on certain criteria is unconstitutional. Indiana University law professor Dawn Johnsen agrees with the ACLU.

“We have seen an enormous increase in the number of abortion restrictions enacted by state legislators, in the last few years," Johnsen says. "Even still though, I was shocked.”

Johnsen says the long list of reasons why a woman won’t be able to get an abortion was what shocked her most. She says like many other abortion restriction laws it is blatantly unconstitutional.

“In many instances the legislators and governors who sign those bills know they’re unconstitutional. And sometimes the effort is to get a case up to the Supreme Court, to ask the Supreme Court to cut back on the right,” she says.

There are three challenges the ACLU is making, but perhaps the most significant has to do with the 14th Amendment. That amendment was the foundation for Roe v. Wade, the 1973 case that meant states could not outlaw or regulate abortions during the first trimester. The ACLU argues part of that amendment, which says a woman’s right to privacy extends to her decision to get an abortion, is ignored with this new bill.

“Every right, no matter how important, is balanced against important state interests,” says Jim Bopp, a Terre Haute lawyer who works for the national Right to Life organization. Bopp helped develop the language for the bill. He says it protects unborn babies from discrimination, citing the large number of fetuses diagnosed with Down Syndrome that are aborted.

“Planned Parenthood is a zealous advocate for abortion on demand," Bopp says. "They think that abortion can be performed for absolutely any reason, and as a result I’m not surprised that they challenged the law.”

While you can still see the dividing line between pro-life and pro-choice camps, the conversation around this bill has been a bit more unpredictable. Most notably a group of Republicans, some who have worked on anti-abortion bills, spoke out against the new bill.

Representative Sharon Negele (R-Attica) told reporters, "The bill does nothing to save innocent lives. There's no education, there's no funding. It's just penalties."

And with the mention of discrimination, it’s impossible not to make the connection to another controversial topic this session, the Republican majority trying and failing to pass what it called an anti-discrimination law for members of the LGBT community.

Dawn Johnsen says the fact that Republicans are now championing anti-discrimination is a cynical attempt to Trojan horse what would otherwise be a more unpopular law.

“I feel that it’s time, ideally, to stop fighting that way, and have instead a common ground effort to reduce the need for abortion, through promoting contraception,” Johnsen says.

Supporters of the bill, including Jim Bopp, contend that it will stand up to legal scrutiny.

“If killing babies in the womb because they’re black is not a problem, then the law doesn’t do anything," he says. "It only prevents the intentional killing of a baby in the womb because the baby is black, or because the baby is a woman, or because the baby is disabled. If nobody’s doing that, then it has no effect, so my question is, why do they object to it?”

The judge in the case says she'll rule before the law's effective date of July 1.