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Indiana asks Seventh Circuit to lift block of abortion restrictions

The state’s appeal comes after a federal judge struck down several abortion regulations, including a telemedicine ban and a required disclosure to patients that fetuses can feel pain.

CHICAGO (CN) — The Seventh Circuit heard arguments on Wednesday over whether several controversial Indiana abortion regulations should be allowed to permanently take effect.

The underlying lawsuit was filed by abortion providers back in June of 2018 and challenged 25 separate sections of Indiana’s statutory rules on abortions, claiming they served as unconstitutional restrictions on a woman’s right to have an abortion.

Senior U.S. District Court Judge Sarah Barker issued a 158-page ruling in August 2021 that found several of the laws were unconstitutional.

Among the provisions blocked by the Ronald Reagan-appointed judge were a law that only allows physicians to provide a first trimester or medication abortion; a second trimester hospitalization requirement; a ban on telemedicine for medication abortions; an in-person examination requirement for medication abortions; and a required a disclosure that included details on fetal pain and the mental health risks of abortion.

Indiana quickly appealed, and last September a split Seventh Circuit panel stayed the lower court's injunction until the court issued a final ruling, finding that the state was likely to succeed in its appeal. The stay order allowed the challenged provisions to be enforced.

During a 50-minute hearing before the Chicago-based appeals court Wednesday, two of the three judges on the panel questioned if the case should be held back pending a forthcoming U.S. Supreme Court decision on abortion rights.

Last month, the Supreme Court heard arguments in an abortion case known as Dobbs v. Jackson Women’s Health that could lead to a landmark ruling on abortion access for women across the country. That case centers on a Mississippi law that bans most abortions after the 15th week of pregnancy, but the high court's ruling could affect abortion rules in every state.

With the Dobbs ruling expected to be handed down by the end of June, U.S. Circuit Judges Frank Easterbrook and Diane Wood posited that the Indiana dispute might be better served in waiting for the outcome of that case.

“One thing that is certainly weighing on my mind is whether this court ought to just hold back given that Dobbs is before the Supreme Court,” said Wood, a Bill Clinton appointee. “I had the feeling preparing for today of a kind of interesting intellectual exercise, but what are we really doing here?”

All parties acknowledged that the Supreme Court ruling could have a dramatic effect on the case and the legal abortion landscape nationwide, but they pressed the Seventh Circuit panel to consider their arguments.

Indiana Solicitor General Thomas Fisher argued that the state was within its rights to enact the challenged abortion provisions, specifically arguing that the physician-only requirement is meant to protect women.

This argument faced severe pushback from Wood, who said the rules seemed “disingenuous” because Indiana does not require a physician to be present for childbirth, which is considered more dangerous than an abortion.

“I take from that, that Indiana cares much more about the health of women when they are having abortions, then the health of women when they are having babies,” Wood said.

“I think Indiana cares about the health of all women,” Fisher responded.

Fisher also touched on the informed consent rules that require certain information be presented to abortion patients, arguing the state is free to make clear that abortion involves a “human physical life.”

Attorney Rupali Sharma argued on behalf of plaintiffs and made her case that the district court was correct in striking down several provisions of Indiana’s abortion laws.

Sharma said many of the regulations delay and provide undue obstacles to patients seeking abortion care, and that the physician-only requirement is not “reasonably related” to any legitimate health concern, nor is the hospitalization requirement for second trimester abortions.

“The state has not provided evidence that the law actually furthers health or safety. And conversely it does impose heavy burdens on patients,” Sharma said.

The final point argued by both sides is how cost and travel can be factored in to determine if an abortion restriction is an improper burden on women’s rights.  

Sharma argued that while these factors are not always considered “substantial obstacles,” in this case they are because most of the abortion-seeking patients in Indiana are low-income women.

During his time, Fisher argued that controlling case law on abortion says that cost and inconvenience are not considered substantial obstacles.

Rounding out the three-judge panel was Senior U.S. Circuit Judge Joel Flaum, who like Easterbrook was appointed to the court by Ronald Reagan.

It is unclear when the court will issue a ruling, especially considering the panel’s suggestion of waiting for the Supreme Court’s Dobbs ruling.

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