The XX Factor

Even Republicans Disagree With Indiana’s Extreme New Abortion Bill

Indiana Gov. Mike Pence has a decision to make.

Aaron P. Bernstein/Getty Images

About two-dozen petitioners from the group Indy Feminists showed up at Indiana Governor Mike Pence’s office Monday to ask him not to sign a sweeping new anti-abortion bill. Feminists aren’t the only opponents of the new measure, however: It’s a testament to the extremity of the bill that the people who have denounced it most strongly are anti-abortion Republican lawmakers.

Among a suite of new restrictions, the measure, called HB 1337, bars doctors from performing abortions for women who are seeking them “solely because of: (1) the race, color, national origin, ancestry, or sex of the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.” Republicans are fond of banning sex- and race-selective abortions, despite the lack of evidence that women in the U.S. actually seek them; but banning abortions due to fetal abnormalities is an extreme move that only one other state, North Dakota, has made. When HB 1337 passed Indiana’s House last week (60 votes to 40) the Chicago Tribune quoted hardcore conservative legislators who feared that this provision—which would also allow doctors who perform such abortions to be sued for wrongful death—would interfere with patient-physician relationships and push women to carry potentially dangerous pregnancies to term.

“Today is a perfect example of a bunch of middle-aged guys sitting in this room making decisions about what we think is best for women,” said Rep. Sean Eberhart, a Republican who described himself as “as pro-life as they come.” Rep. Sharon Negele, a Republican who sponsored a bill to impose restrictions on Indiana’s Planned Parenthood last year, agreed: “The bill does nothing to save innocent lives. There’s no education, there’s no funding. It’s just penalties.”

The bill rolls together familiar forms of Targeted Regulation of Abortion Providers (known as TRAP laws) with new and creative ways to punish women. Its most ghoulish piece of symbolism is the requirement that women pay for the cremation or interment of the aborted fetus—a provision that also adds to the cost of the procedure, which is already prohibitive for many. The bill also mandates that women travel to a clinic for an ultrasound that involves listening to the fetus’s heartbeat—a measure that Salon rightly calls “pure intimidation”—and then travel back for the abortion after an 18-hour waiting period. All this is made more difficult by the fact that clinics are operating in only four of Indiana’s 92 counties. The bill would likely cause more clinics to close with its requirement that abortion providers obtain admitting privileges at nearby hospitals; this formality has shuttered clinics across Texas, among other states, since hospitals are usually reticent about granting privileges to anyone who performs the controversial procedure.

It’s upsetting, if not surprising, to see new deterrents such as the cremation or interment requirement cropping up, but the ban on abortions due to “any” disability is particularly staggering. As The Daily Beast reported, though, it’s far from clear that the state could enforce that last provision:

Enforcement….would require definitive proof of the reason a woman is seeking an abortion. So far, North Dakota’s similar law has not resulted in any prosecutions and the state’s sole abortion provider has not had “any women who presented saying they need an abortion because of a fetal diagnosis.” As it stands, HB 1337 would require abortion providers to notify Indiana women of the Down syndrome ban during pre-abortion counseling but it would not require women seeking an abortion before 20 weeks gestational age to provide a reason.

If Pence signs HB 1337, women’s advocates may be able to mount a case that its harsh limitations are unconstitutional. Though the bill isn’t law yet, it seems likely to be soon: Pence told Indiana Public Media that he’ll “give it very careful and thoughtful consideration in the days ahead,” but emphasized, “I do bring my belief in the sanctity of life to that and that will inform the way that I evaluate that, ultimately.”