Indiana Tried To Raise Ethical Challenges to Abortion, but Will Probably Fail

An injunction against the state’s distinctive fetal-abnormality law suggests this won’t be the legislation that forces courts to grapple with bioethics.

Protesters at a rally to celebrate the anniversary of Roe v. Wade at the Indiana statehouse in 2003  (Michael Conroy / AP)

Indiana’s new abortion law is both on trend with the rest of the country and totally distinctive. In March, the state legislature passed a law that primarily does two things: First, it prohibits abortions at any stage that are sought on the basis of the fetus’s sex, race, or other identity factors, or because of potential genetic abnormalities. Second, it requires that fetal remains are buried or cremated, rather than disposed as medical waste.

Planned Parenthood, the major abortion provider in the state, challenged the law, along with the American Civil Liberties Union. On Thursday, a district-court judge, Tanya Walton Pratt, blocked the law from going into effect, which was set to happen on July 1. Her decision suggests that Planned Parenthood will eventually succeed in its challenge to the law, part of a recent trend of federal courts striking down laws that seek to regulate abortion procedures and target abortion providers. If her predictions are correct, the courts will get to sidestep significant bioethical questions in considering this case, essentially because Indiana’s law is written too vaguely. But that doesn’t mean the questions are going away.

The main problem with HEA 1337, as the law is known, is that it seeks to limit the reasons why a woman could get an abortion at any time during her pregnancy, including before the fetus is viable. As Carol Sanger, a professor at Columbia Law School, pointed out during an interview in April, the United States is different from some other countries that permit abortions, including the U.K.: Women are not required to give their reasons for seeking an abortion. That means this law would be difficult to enforce—doctors might only discover that a woman wants to abort her girl or her Down Syndrome baby if it comes up in conversation, for example.

But according to Pratt, the law is not only untenable—it’s probably also illegal. Those provisions “directly contravene the principle established in Roe v. Wade,” she writes. “A state may not prohibit a woman from making the ultimate decision to have an abortion prior to fetal viability.”

The measure about burial and cremation is a bit more complicated. As Pratt points out, Planned Parenthood’s “challenges to the fetal tissue disposition provisions present a much closer call and present difficult legal questions about which there are few clear answers.” This is partly because burial laws vary widely state by state and the body of law on this topic is fuzzy. As Tanya Marsh, a law professor at Wake Forest, put it in April, “The question of what we own of ourselves—what is the legal status of biological material that’s been removed from us—there’s very little law about that, except to say that it’s not ours.”

What might eventually doom this part of the law is not the regulation itself, which, as Pratt points out, was democratically enacted. Rather, the language legislators used, essentially asserting that fetuses are human, led Pratt to doubt that Indiana has a legitimate interest in creating these requirements. “The state’s asserted interest in treating fetal remains with the dignity of human remains is not legitimate given that the law does not recognize a fetus as a person,” she said.

This injunction comes just days after the U.S. Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, in which the justices roundly condemned a Texas law that placed heavy restrictions on abortion clinics. That law was significantly different from Indiana’s—it required facilities to have the capabilities of an ambulatory surgical center, and doctors who perform the procedure had to have admitting privileges at a hospital within a certain distance. But the rationale behind the majority’s opinion seemed directed at legislation like Indiana’s, and those in many other states: Incremental regulations on abortion providers and procedures cannot fundamentally restrict women’s ability to get an abortion.

And yet, Pratt acknowledged that some of the questions raised by Indiana’s law are morally complicated. “To be clear, whether or not an individual views fetal tissue as essentially the same as human remains is each person’s own personal and moral decision,” she wrote. “The Court cannot resolve this moral question.” As a matter of law, she added, courts have no basis to recognize fetal tissue as human.

This, along with the moral questions raised by abortions based on sex or genetic abnormalities, could possibly get raised in future cases, particularly if a state were to pass a law that doesn’t interfere with pre-viability abortions. It’s even possible that the judge who hears the full case against Indiana will disagree with Pratt and let the law stand, although that seems unlikely. For now, Indiana’s law may meet the same fate as Texas’s, along with restrictions pending in other states. But it has set the stage for a new kind of abortion legislation: Bills that are primarily concerned with conferring human rights on fetuses, including protection from discrimination and the dignity of a ritualized death.