CHICAGO (CN) – A Seventh Circuit judge who personally opposes abortion dominated questioning at a hearing Thursday on Indiana’s law banning abortions motivated by a fetus’ gender, race or disability, which primarily impacts women seeking to abort rather than have a baby with Down syndrome.
“We are permitted to restrict abortion based on the characteristics of the fetus,” Indiana Solicitor General Thomas Fisher told the Seventh Circuit panel Thursday morning.
Fisher argued that the U.S. Supreme Court’s rulings on abortion establish that a woman has the right to chose whether to have a child, but “do not extend to which child she shall bear.”
House Enrolled Act 1337, signed into law by then-Governor Mike Pence in March 2016, places an outright ban on abortions that are motivated by race, national origin, gender, ancestry or the diagnosis of a disability.
Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union won an initial injunction preventing the law from going into effect, and a final decision finding it unconstitutional in September.
The law is most relevant for women who chose to abort their pregnancy after their fetus tests positive for Down syndrome.
Fisher told the Seventh Circuit that 50 percent of women choose to abort rather than have a child with Down syndrome. Other estimates put the number at closer to 67 percent in the U.S.
The rise of genetic testing “risks decimation of entire categories of disabled people,” Fisher said, “much as we’ve seen in Iceland,” where Down syndrome has virtually disappeared due to the almost 100 percent abortion rate of fetuses that test positive for the genetic abnormality.
U.S. Circuit Judge Daniel Manion told Fisher he has a very personal interest in this issue, as his wife has been involved with an anti-abortion pregnancy center in Indiana for 30 years.
“It just so happens that my whole married life I’ve known the objective is to persuade [the woman], not to coerce [her],” Manion said. “Many women change their mind after seeing the ultrasound, hearing the heartbeat. Many young women don’t even know what’s going on.”
He added that his daughter is due to have a baby in six weeks, and that while he was a state senator in Indiana from 1978 to 1982, he introduced the legislation resulting in Indiana’s parental notification law for minors seeking an abortion.
But despite his clear personal opposition to abortion, Manion recognized he is constrained by Supreme Court precedent in Roe v. Wade.
“I don’t like it, but nevertheless there’s an absolute right,” Manion said.
He emphasized that the state must focus on informing women – “I hesitate to say ‘mother’,” Manion said – about “alternatives to abortion that may be the right thing to do,” and questioned Fisher why the state doesn’t give women access to a free ultrasound: “You can call it anything you want, a rescue or whatnot.”
Manion said he has a godson with Down syndrome and that the child brings great joy to his family. He also mentioned that the 2018 Gerber baby is a child with Down syndrome.
U.S. Circuit Judge Joel Flaum questioned how Indiana intended to enforce the law, noting that it would encourage women to simply keep silent about the reason they seek an abortion.
“If a woman goes into an abortion clinic, and if everyone remains silent, does Act 1337 have no effect?” Flaum asked.
Fisher acknowledged that the state could not prevent a woman from having an abortion in the first trimester if she did not reveal her motivation for the abortion.
On this point, Kenneth Falk, attorney for the American Civil Liberties Union and Planned Parenthood, told the court, “The state is presuming to examine a woman’s reasons for seeking a pre-liability abortion.”
Falk said Indiana has every right to inform a woman’s choice – but not to hinder it. He also noted the law requires that the remains of a fetus be buried or cremated as the remains of a deceased person.
“The state cannot decide when life begins,” Falk told the panel, arguing that Planned Parenthood cannot be required to treat fetal tissue as if it were a human being.
“So instead of calling it a human being, what do you call it?” Manion asked. “Because you know it has a beating heart.”
Manion added that fetal remains are “different than a diseased gallbladder” that can just be thrown in the medical waste.
U.S. Circuit Judge William Bauer rounded out the three-judge panel, but did not ask a question of either attorney.
The Seventh Circuit is expected to issue a ruling in the matter within three months.
The Chicago-based appeals court is also expected to rule shortly in separate cases brought by Planned Parenthood challenging Indiana’s abortion ultrasound rule, and its parental notification law.
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