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Indiana AG's office moves to block Indiana University's motion to join lawsuit against abortion restrictions law

Indiana Attorney General Greg Zoeller (R) on Friday filed an objection to a motion submitted by Indiana University (IU) to join a federal lawsuit against a new antiabortion-rights law (HEA 1337) in the state, the AP/Indianapolis Star reports (Adams, AP/Indianapolis Star, 5/21).

Background

The new law, which is scheduled to take effect on July 1, bans abortion sought because of the sex of the fetus or a disability diagnosis. Physicians who provide abortion care when they know the procedure is sought for such reasons could face civil liability or disciplinary action. In addition, the law requires that abortion providers have admitting privileges at a nearby hospital or contract with a physician who has such privileges.

The law also mandates that fetal tissue resulting from abortion or miscarriage be cremated or interred. Further, the law 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.

Federal lawsuit

In April, the American Civil Liberties Union (ACLU) of Indiana filed a lawsuit against the law on behalf of Planned Parenthood of Indiana and Kentucky (PPINK), as well as a physician and a nurse practitioner who work with Planned Parenthood. Defendants include the state health commissioner, members of the Medical Licensing Board of Indiana and prosecutors in Lake, Marion, Monroe and Tippecanoe counties.

The lawsuit calls on the court to declare the law unconstitutional and requests an injunction to halt its enforcement. According to the suit, the law encroaches upon a woman's right to access abortion care in the first trimester. The suit states that the law "imposes an undue burden on a woman's right to choose an abortion because it bars that choice under certain circumstances, even if the pregnancy is in its early stages and the fetus is not viable."

The lawsuit also argues that the law violates health care providers' free speech rights by requiring them to tell patients about an unconstitutional law.

In addition, the suit challenges the law's costly fetal tissue burial and cremation requirements. Under the law, Planned Parenthood would have to secure a burial transmit permit for the tissue and make arrangements for a mortuary to accept and handle the tissue. According to the lawsuit, such restrictions are not in place for other kinds of medical waste (Women's Health Policy Report, 4/8).

IU files motion to join lawsuit

IU last week filed a motion with the U.S. District Court in the Southern District of Indiana to join the lawsuit. According to IU officials, the law's fetal tissue restrictions could subject researchers at the university to criminal charges. The university researchers use fetal tissue in their work studying Alzheimer's disease and other illnesses.

The university's motion asked the court for a preliminary injunction blocking the law. IU attorneys wrote that HEA 1337 "criminalizes millions of dollars of ongoing, federally funded IU research regarding Alzheimer's disease."

According to the university's motion, the law's restrictions on fetal tissue are unconstitutionally vague. In addition, the motion states that the law would violate researchers' First Amendment rights by interfering with their right to academic freedom.

The motion spotlighted the work of one researcher -- Debomoy Lahiri, psychiatry professor at the university and party to the motion -- who uses fetal tissue as part of his research examining how Alzheimer's disease and autism differ on a biochemical basis. The motion stated that the law, if permitted to take effect, would bar Lahiri and other researchers at the university from continuing their research and from acquiring the materials necessary to conduct that research.

According to the motion, researchers "transfer their laboratory materials with them" when they join the university or leave the institution. The motion stated, "Therefore, even were Dr. Lahiri to stop doing his research in the state of Indiana as a result of [HEA 1337], he runs the risk that the mere act of transferring his research to another institution would constitute a felony."

The motion continued, "(The law) jeopardizes the personal liberty of IU research scientists who are unable to conform their conduct to the fetal tissue statute's restrictions ... (It) exposes IU to tremendous losses of federal (National Institutes of Health) funding, of which IU receives nearly $200 million annually ... (and) impairs IU's standing as a pre-eminent research institution and discourages prominent researchers from choosing to conduct their research at IU."

Other parties in the motion include another researcher at the university, IU's trustees and its vice president of research.

State's response

On Friday, officials with the attorney general's office said the university should not be permitted to join the lawsuit because its challenge against the law differs from the challenges brought by ACLU of Indiana, and therefore should not be addressed within the same lawsuit. Zoeller said, "These two separate disputes do not sufficiently overlap to justify litigating them together; IU is not making the same legal argument as Planned Parenthood or even challenging the same statute as Planned Parenthood."

Bryan Corbin, a spokesperson for the attorney general's office, said IU should file a separate lawsuit.

In addition, state officials claimed that the university should not be permitted to join the lawsuit because its motion to do so came 39 days after ACLU of Indiana filed its legal challenge, and therefore, "is not timely" (AP/Indianapolis Star, 5/21).