National Partnership for Women & Families

In the News

Federal judge hears challenge to mandatory delay provision in Ind. antiabortion-rights law

A federal judge on Wednesday heard arguments in a case challenging a provision in an Indiana antiabortion-rights law (HEA 1337), the Indianapolis Star reports (Hussein, Indianapolis Star, 11/9).

Law details

The law, which took effect on July 1, requires a woman to receive an ultrasound at least 18 hours before receiving abortion care. While Indiana prior to HEA 1337's implementation required a woman seeking abortion care to first receive an ultrasound, it did not specify when the ultrasound had to be completed. As a result, PPINK previously provided ultrasounds immediately before an abortion.

HEA 1337 also bars physicians from providing abortion care when they know the procedure is sought because of the race or sex of the fetus or a disability. In addition, the law requires that abortion providers have admitting privileges at a nearby hospital or a contract with a physician who has such privileges. Further, the law mandates that fetal tissue resulting from abortion or miscarriage be cremated or interred, and it makes it a misdemeanor to intentionally transport fetal tissue into the state or across state lines unless the tissue is being moved for burial or cremation.

Legal background

In July, Planned Parenthood of Indiana and Kentucky (PPINK) challenged the law's mandatory delay, seeking an injunction to block its enforcement. PPINK contends that the law imposes an undue burden on a woman's constitutional right to seek abortion care. According to PPINK, the mandatory delay would force a woman to pay to stay overnight near a clinic or make multiple long trips to access abortion care. Moreover, PPINK said the mandatory delay would strain its four facilities that offer both ultrasounds and abortion care.

The lawsuit follows a separate legal challenge that PPINK filed in April against the law's ban on abortion care sought because of the race or sex of the fetus or a disability diagnosis, as well as the law's costly fetal tissue burial and cremation requirements (Women's Health Policy Report, 7/8). In that lawsuit, Federal District Court for Southern Indiana Judge Tanya Walton Pratt in June issued a preliminary injunction, stating that the abortion ban was an unconstitutional restriction on a woman's right to abortion prior to fetal viability. The order also blocks the law's fetal tissue disposal requirements (Women's Health Policy Report, 8/3).

Judge hears arguments over mandatory delay requirement

Last week, attorneys representing the state and the American Civil Liberties Union (ACLU) of Indiana, which is representing PPINK, appeared before Pratt to make arguments on the law's mandatory delay provision. According to the Star, Pratt could rule on the injunction this week.

During arguments, Ken Falk, legal director of ACLU of Indiana, said some women are forced to travel long distances -- up to 400 miles -- under the provision because it requires multiple trips to a clinic before abortion care. "This creates a substantial obstacle that disproportionately affects low-income women," he said.

Falk also argued that PPINK lacks the resources to meet the provision's requirements.

Separately, Thomas Fisher, the state's solicitor general, said PPINK's lack of funding does not present a constitutional question. He also claimed that the law does not create an undue burden for women seeking abortion care.

PPINK denounces provision

Betty Cockrum, president and CEO of PPINK, said the mandatory delay provision "creates barriers and interferes with the doctor-patient relationship." She added, "The U.S. Supreme Court rule[d] ... that it was unconstitutional to place undue restrictions on a woman's ability to access a safe, legal abortion, and we are confident that Judge Tanya Walton Pratt will come to the same conclusion in Indiana" (Indianapolis Star, 11/9).