Why Indiana’s Recent Anti-Abortion Law Should Be Struck Down

UPDATE: A few days after I posted this a federal judge issued a preliminary injunction for the law after considering arguments against it by Planned Parenthood of Indiana and Kentucky. Some of the arguments are parallel to mine, although the explicit reference to privacy isn’t there. Planned Parenthood also addressed parts of the law I didn’t. See the reasoning here.


It seems to me that Indiana’s recent abortion restriction law is unconstitutional, at least in part. It’s worth thinking through this on purely constitutional grounds apart from any particular moral stance on the issue. I’ll bracket out my moral position here (though I’ll be honest about it: briefly, I think abortions should be legal, given certain constraints, even though I don’t agree with all of the reasoning in Roe v Wade or all that passes for public deliberation on the ‘pro-choice’ side. But that for a later post…)

First, the constitutionality of abortions in the United States has been famously established by Roe v Wade, which builds, in part, on the marital privacy reasoning in Griswold v Connecticut. Very briefly, Griswold ruled that the house/bedroom was a constitutionally protected “zone of privacy,” within which the state could not justifiably invade (unless a constitutionally legitimate law was broken therein).

Roe was decided on two important grounds, the first being the right to privacy and the second being whether or not the fetus should be understood legally as a person (see the pertinent parts of the decision below). SCOTUS clearly decided it was protected by privacy rights and that there isn’t good legal reason of precedent to consider the personhood of the fetus until viability.

While the latter point about fetal personhood takes most of the attention in abortion debates, it is the former that the recent Indiana law violates. Many elements of the law violate the privacy of the mother/parents. Chief among them are these (Section 22, Chapter 4 of the law):

Sec. 5. (a) A person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking a sex selective abortion…

Sec. 7. (a) A person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with any other disability or has a potential diagnosis of any other disability…

Sec. 8. (a) A person may not intentionally perform or attempt to perform an abortion before the earlier of viability of the fetus or twenty (20) weeks of postfertilization age if the person knows that the pregnant woman is seeking the abortion solely because of the race, color, national origin, or ancestry of the fetus…

Now, I would agree that an abortion solely on the basis of race, national origin, ancestry, or sex is on the face of it immoral. I do not think that it is, on the face of it, immoral to consider an abortion because of certain severe diseases or disabilities – although this is a very delicate point that demands serious reflection. Still, these two claims are beside the point. The point I’m making here is that because abortion has been ruled to be constitutionally protected at least in part on the grounds of privacy, it only follows that it is illegitimate to determine its legality based on a mother’s reason for wanting one. There is also a rather serious concern that I find legitimate, given the spirit of this law – that this will encourage speculation about a mother’s reasons and further limit access.

I’ve leveled a specific complaint about the law, but there’s a general one as well: the new Indiana law very clearly exists to make abortions more difficult (i.e. establishing a required waiting period) to attain. Though legislation can legitimately be used to influence action (even if its efficacy to this end may be in doubt), it seems at odds with the spirit of the Roe decision to make it increasingly difficult to attain an abortion or, more egregiously, for the law to influence a mother’s decision one way or another (i.e. requiring an ultrasound to be shown and a heartbeat to be heard unless the mother has a written statement to the contrary). If abortions are legal in part because the decision to have one is protected by the right to privacy, the decision to have one cannot therefore be overly influenced one way or another. That would violate it being a private choice. It would be on the state to protect that privacy and ensure the decision is as unfettered by any interest (even moral interest) as possible.

___________________

Pertinent parts of the Roe decision –

Defending abortion because of the right to privacy:

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree…

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

Attending to the status of a fetus as a person:

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application…

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth, or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth… Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense…

The limits of the Roe decision:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

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