Running against Roe – The governor has signed the most restrictive abortion law in the country
Apr 2nd 2016 Economist
Gail Riecken, a Democratic state representative in Indiana, is the grandmother of a five-year-old girl with Down’s syndrome, a genetic disorder causing intellectual disability and delay in physical development. Ms Riecken’s daughter learned about her child’s condition when she was pregnant; she decided to carry her to term. Today she is ecstatic about her choice which, Ms Riecken points out, will affect the rest of her life.
Soon women in Indiana will not be able to make such a decision for themselves. On March 24th Governor Mike Pence, a Republican who made his name as pro-life activist in Congress, signed a bill into law that prohibits abortions on the grounds of a diagnosis of Down’s syndrome or any other disability—as well as on grounds of race, skin colour, national origin, ancestry or the sex of the fetus. It mandates that an aborted fetus must be disposed of by burial or cremation. And it requires doctors to inform women about perinatal hospice care, a service for babies not expected to survive outside the womb. “It’s a mean bill,” fumes Ms Riecken. “All it does is punish the woman.” The bill was criticised by the American Congress of Obstetricians and Gynaecologists, which represents around 58,000 health-care professionals, because it might encourage a woman to hide facts from her doctor.
The bill will become law in July. When it does, Indiana will have the most restrictive abortion legislation in the country. Seven states ban abortions based on a baby’s sex. Arizona’s ban extends to abortions based on race, and North Dakota passed a law in 2013 that prohibits abortions because of fetal abnormalities. “Indiana’s law is much broader [than other state laws] and clearly runs againstRoe,” says Elizabeth Nash of the Guttmacher Institute, a think-tank that backs abortion choice. The Supreme Court’s ruling in 1973 in Roe v Wade held that a presumed right to privacy protects a woman’s right to decide whether to terminate her pregnancy, whatever her reasons may be.
Supporters of the bill openly admit that it is unconstitutional, according to Dawn Johnsen, who teaches law at Indiana University. They mostly want to prevent as many abortions as possible. Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union both say that they are working on a legal complaint. This will come not long after the Supreme Court started to deliberate in early March, in Whole Woman’s Health v Hellerstedt, on how far states may go to make abortion difficult. The case concerns a new law in Texas which, its opponents say, makes access to abortions unduly burdensome. On March 30th Donald Trump added his two cents to the debate, declaring that any woman undergoing an abortion should receive “some form of punishment”.
If the legal challenge to Indiana’s new law falters, as similar challenges have done, it would still be legal to abort a fetus displaying no genetic abnormalities until the 20th week of a pregnancy in Indiana, but illegal to do so if the test for disabilities comes back positive. This is, to put it mildly, confusing. Yet, argues Charlie Camosy, who teaches ethics at Fordham University, a Jesuit foundation, this may be a choice women don’t want to have. Up to 90% of fetuses with a diagnosis of Down’s syndrome are aborted in America, says Mr Camosy. To avoid the dilemma, some pro-life expectant mothers refuse to undergo the test in spite of pressure from doctors and peers.
Yet who will help mothers forced to have a disabled child with the expense of extra care? According to Guttmacher, some 42% of the women in Indiana (and other states) who seek abortions fall below the federal poverty level. Mr Pence, a staunch fiscal conservative, is unlikely to lend them a helping hand. The governor seems to be counting on assistance from a higher power. “I sign this legislation with a prayer that God would continue to bless these precious children, mothers and families,” he tweeted on the day he signed the bill.
