Federal judge hears challenge to Indiana’s new pro-life law

By Dave Andrusko

Judge Sarah Evans Barker

Judge Sarah Evans Barker

Planned Parenthood of Indiana and Kentucky, represented by the ACLU, had their day in court yesterday, challenging three provisions of Indiana’ Senate Bill 404 scheduled to go into effect July 1. Judging by media accounts, U.S. District Judge Sarah Evans Barkley was very receptive to their arguments about at least two of the law’s provisions.

Senate Bill 404 (signed into law April 25 by Gov. Eric Holcomb) protects minor girls, increases parental rights when a minor girl seeks abortion, and helps victims of sex trafficking, according to Indiana Right to Life. The law protects young girls by changing abortion reporting requirements. Currently the abortionist must send the required form to both the Indiana State Department of Health and the Department of Child Services if the minor is 14 or younger. SB404 raises the age for the reporting requirement to under 16 years of age.

The law increases parental rights by providing civil recourse if a parent or guardian discovers someone fraudulently posed as them to help their minor daughter get an abortion.

The ACLU’s Ken Falk trivializes and dismissed the state’s contention, variously describing portions of the law as “vague and not rational,” to which Judge Evans Barker added “onerous, time-consuming, confusing and vague.”

“But Tom Fisher, Indiana solicitor general, argued the statute is meant to give parents the right and ability to parent their child through a potentially life-altering decision,” wrote Madeline Buckley for the Indianapolis Star.

“The parents still have an interest in the upbringing of that child,” Fisher said. “The concern is that if the child has an abortion, and the parents are completely oblivious, it inhibits their ability to be parents.”

The law is intended to assure that if a parent does agree to an abortion for their minor daughter, it is really a parent, not someone posing as one.

Falk countered “no other medical procedure requires this special affidavit over a signed consent form,” reported Niki Kelly for The Journal Gazette, as if aborting an unborn child is no different than giving permission to pierce a girl’s ears. A sympathetic Judge Evans Barker said, “The state doesn’t give sufficient guidance to the person bound by it to avoid criminal prosecution.”

Kelly’s story goes on to note

Another provision at issue is a prohibition on people aiding or assisting a minor in obtaining an abortion without satisfying the consent procedures.

Planned Parenthood says the provision violates the First Amendment because it means the organization can’t advise patients that they have the option to travel to other states for an abortion.

Fisher argued that professional speech isn’t covered under the First Amendment, but Falk said the law applies to all Indiana residents – not just Planned Parenthood.

“Whoa, that’s pretty broad counsel,” Evans Barker said to Fisher.

In other words, the law is intended to prevent PPFA from telling a minor girl she can go to another state to obtain her abortion. PPFA’s bizarre argument is this is an abridgement of their First Amendment rights.

Finally, Indiana modified its parental notification law so a judge can (not must) notify parents or legal guardians that the minor is seeking an abortion. But if the judge decides notifying parents (or guardians) is not in the girl’s best interest, the judge need not do so. But that was not enough for ACLU/Planned Parenthood. Falk argued that

giving notification to parents is akin to requiring consent in terms of the chill it might have on girls seeking an abortion.

“Interference will come from notice the same way it does from consent,” he said.

Judge Evans Barker said she would make her decision before July 1, the day the law is scheduled to take effect.