ACLU Sues Over Indiana Law Creating a Protected Class of Fetuses

The new law may also require pregnant women who have miscarriages to bury or cremate their fetal remains.



The American Civil Liberties Union (ACLU) and is suing the state of Indiana over an abortion law that essentially creates a protected class of fetuses. The law, passed in March and set to take effect July 1, prohibits Indiana doctors from performing an abortion if they know a woman is seeking it based on the sex or race of the fetus, or because it has been diagnosed as potentially having Down Syndrome or "any other disability." The state contends that abortions of this sort amount to discrimination in violation of civil rights law. 

Any doctor who breaks this ban may be disciplined by the state medical board, held civilly liable for "wrongful death," or be charged with a felony. Fetal-tissue transportation, collection, and research will also become felony crimes. 

The measure— House Enrolled Act (HEA) 1337—includes a slew of other new regulations for abortion clinics and doctors, too, including a requirement that all aborted and miscarried fetuses must be cremated or buried and that "a person or facility having possession of a miscarried or aborted fetus [must ensure that it] is preserved until final disposition occurs." At present, fetal tissue and placenta resulting from abortions and miscarriages that happen before 20 weeks pregnancy "are treated like any other medical waste," according to Vox

Opponents of the law worry the fetal cremation/burial regulation will turn all women who miscarry—something which occurs in about 10 to 20 percent of pregnancies as a conservative estimate—into criminal suspects, as well as place an unnecessary burden on them in a time of mourning. Under the new law, any woman who miscarries at home could be committing a crime by not burying or cremating the fetus or making arrangements for its burial or cremation. Yet any woman who miscarries and then does take the fetal remains to be buried or cremated risks state suspicion and investigation. Remember, Indiana is the same state that recently put a woman in prison for 20 years over what she claims was a miscarriage but the state classified an illegal abortion. 

Additionally, HEA 1337 states that a) women seeking abortions must receive a mandatory ultrasound 18 hours before the procedure, and b) abortion doctors must not only have an agreement with a physician who has admitting privileges at a local hospital but renew this agreement annually, and submit proof of renewal to the state. Though billed as a step to ensure women's safety, such admitting agreements are wholly unnecessary, since a patient experiencing post-abortion complications can be treated at any hospital, regardless of whether that hospital has a preexisting relationship with their abortion doctor. 

Indiana Gov. Mike Pence called the measure "comprehensive pro-life legislation that expands the information that expectant mothers received" and "also provides additional protections for the unborn."

But the ACLU, which is joined in its lawsuit by Planned Parenthood of Kentucky and Indiana, asserts that the new law is unconstitutional. "Repeatedly the U.S. Supreme Court has said that a woman may get an abortion within the first trimester for whatever reasons she deems best, based on her circumstances," ACLU Executive Director Jane Henegar has explained.

"The ACLU stands firmly against discrimination in all forms, but that isn't what this law is about," said Henegar.