Federal Judge hears challenge to Indiana law barring abortions based on disability

By Dave Andrusko

U.S. District Court Judge Tanya Walton Pratt

U.S. District Court Judge Tanya Walton Pratt

I was unable to attend a hearing in Indianapolis before U.S. District Court Judge Tanya Walton Pratt in which Judge Pratt, an Obama appointment, heard a challenge to Indiana’s new law that bars aborting a child solely because of a prenatal diagnosis of disability. That said, the news accounts are nothing short of fascinating and very revealing.

Signed into law in March by pro-life Gov. Mike Pence HE 1337 made Indiana the second state to forbid abortions based on disability. (North Dakota is the other.)

The potentially most important comment (although we don’t know the context) was when Judge Pratt asked Indiana Solicitor General Thomas Fisher during the hour-long hearing, “How can it be described as anything but a prohibition on the right to an abortion?”

According to the Indianapolis Star

The state defended the law, framing it as prohibiting discrimination based on disability. Women can still seek first-trimester abortions when they don’t want to have a child, said Indiana Solicitor General Thomas Fisher. The new abortion restrictions, he argued, would instead prevent women from saying, “I want to have a baby. I just don’t want to have this baby.”

Fisher acknowledged that the law might not be used often, since women likely have many reasons for seeking an abortion. They would violate the law only if the fetal disability diagnosis was the only reason behind their decision.

Indiana Solicitor General Thomas Fisher

Indiana Solicitor General Thomas Fisher

But ACLU of Indiana legal director Ken Falk countered, “What we’re talking about is the right to privacy, the right a woman has to make this very personal decision.” Falk added, “You cannot discriminate against a fetus,” according to Indianapolis Star reporter Stephanie Wang.

Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union of Indiana also objected to a provision that requires abortion providers to bury or cremate the baby’s remains.

Wang wrote that Falk told Judge Pratt, “That would treat aborted fetuses like a deceased person instead of a surgical byproduct.”

The Chicago Tribune added

Falk said Planned Parenthood currently disposes of aborted fetuses by incineration. He said aborted fetuses are not considered human beings and they should be destroyed in the same manner by which an amputated arm or other tissue removed through surgery is destroyed.

There is another dimension to HE 1337. The law also prohibits the transfer or sale of fetal tissue.

Earlier this month, Indiana University argued this “would impair its scientists’ academic freedom and shut down research efforts to uncover treatments for neurological disorders,” the Chicago Tribune reported.

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