Indiana’s new abortion law will prevent the “decimation” of certain disabled people, the state’s solicitor general argued Thursday before a federal appeals court.
The American Civil Liberties Union of Indiana called the law a major infringement on women’s privacy.
The court’s decision could predict outcomes of similar cases across the country.
The hearing before a panel of judges on the 7th Circuit Court of Appeals, one step below the U.S. Supreme Court, comes after nearly two years of litigation between the state and Planned Parenthood of Indiana and Kentucky, which is represented by the ACLU of Indiana.
Solicitor General Thomas Fisher and Ken Falk of the ACLU argued the merits of HEA 1337, signed into law by former Gov. Mike Pence in March 2016. The law, among other provisions, prohibits abortions sought solely because a fetus has been potentially diagnosed with a disability such as Down syndrome.
Calling the law a prohibition on “discriminatory abortion,” Fisher argued that HEA 1337 does not infringe on a woman’s rights to obtain an abortion under legal precedent set by Roe v. Wade or Planned Parenthood of Southeastern Pennsylvania v. Casey.
The ACLU of Indiana has characterized the abortion law as one of the nation’s most restrictive. It also requires that the identities of abortion providers be made public, that funerals be held for fetal remains and that women undergo an ultrasound at least 18 hours prior to having an abortion. Also, individual doctors would be liable for violating provisions of the law.
Falk said the law is an infringement on women’s privacy interests. “The state seeks to examine why women seek abortion,” Falk told the panel.
Current legal precedent “erects a realm in which the state may not enter,” he said.
When U.S. District Court Judge Tanya Walton Pratt issued a preliminary injunctionagainst the state in June 2016, she said the law likely would be found unconstitutional.
She issued a permanent injunction against the measure in September.
Attorney General Curtis Hill immediately announced plans to file an appeal.
Hill called the ruling by Pratt “genetic discrimination.”
“By declaring unconstitutional a state law that would bar abortions based solely on race, sex or disability such as Down syndrome, a federal judge has cleared the path for genetic discrimination that once seemed like science fiction,” Hill said in a written statement to IndyStar.
Social conservatives, including Pence, had pushed for the law to protect fetuses against discrimination based on disability.
Pratt in June had acknowledged that the state has an interest in protecting and promoting potential life but said a woman’s liberty trumps the state’s interest.
Fisher argued that the advent of DNA testing has created a greater ability for women to decide whether to abort fetuses with potential disabilities.
In deeming the law unconstitutional, the court “risks decimation of an entire category of disabled people,” Fisher told the panel.
“That’s where we think the state’s interests arise,” Fisher said.
There is no set date for the court to decide on the matter.
The argument over abortion in Indiana comes as the ACLU of Ohio filed a complaint this week challenging a 2017 Ohio law prohibiting doctors from performing abortions based on a diagnosis of Down syndrome.
Ohio Gov. John Kasich signed House Bill 214 into law late last year, and it is scheduled to take effect March 23.
The plaintiffs are asking for a permanent injunction before the law goes into effect.