CHICAGO (CN) – The Seventh Circuit heard arguments Monday in Indiana’s appeal to lift a temporary injunction blocking a state law that forces women to wait at least 18 hours between having a mandatory ultrasound and an abortion.
“The problem, it seems to me, is the burden on the woman,” Judge Ilana Rovner said, setting the tone for the panel’s questioning of both attorneys in a case challenging Indiana’s law requiring women to have an ultrasound at least 18 hours prior to having an abortion.
Planned Parenthood of Indiana and Kentucky, or PPINK, challenged this provision of Indiana House Enrolled Act No. 1337, which went into effect in July 2016.
The U.S. Supreme Court’s 1992 decision in Planned Parenthood v. Casey permits states to regulate abortions in the first trimester. The Casey ruling has been used to authorize the enactment of mandatory pre-abortion ultrasound laws.
Prior to HEA 1337’s enactment, women in Indiana could have an ultrasound done the same day as an abortion. The law requires a medical provider to offer a woman the opportunity to view the ultrasound photos, but she cannot be forced to look at them.
Indiana also has an informed-consent law requiring a woman to look at gestational photos of a fetus at various stages of development prior to having an abortion.
A federal judge issued a preliminary injunction against the 18-hour ultrasound rule in April, finding that it will burden a woman’s right to have an abortion.
Planned Parenthood operates 17 clinics in Indiana, but only 11 have ultrasound imaging equipment, and only four perform abortion services.
This requires some women to travel quite far for abortion services. For example, a woman living in Fort Wayne would have to drive 200 miles roundtrip to have an ultrasound, then 200 miles on a different day to have the abortion.
Indiana argued in its court briefs that Planned Parenthood should reallocate its resources and buy more ultrasound machines to lessen the burden on women seeking an abortion.
But Judge Rovner said Monday she found this argument “very odd.”
“You’re arguing that, rather than have the law enjoined, as a temporary measure, Planned Parenthood should buy more ultrasound equipment at a cost of $25,000 a piece,” Rovner continued. “Where are they supposed to get the money?”
Indiana Solicitor General Thomas Fisher told the court, “The idea that there might be an adaptation by abortion providers is a reasonable expectation.”
He also emphasized, “We can’t know the constitutional burden of the law until it goes into effect for a certain period of time,” claiming that more data is needed to show whether the new law’s requirement impacts women’s access to abortion services.
American Civil Liberties Union of Indiana attorney Kenneth Falk, representing PPINK, told the Seventh Circuit panel that his client already had evidence of women seeking an abortion being turned away due to the law’s ultrasound mandate.
“Women would call in and be told, ‘We don’t have any ultrasound appointments available,’” Falk said. He noted that the additional expenses of travel and childcare make it even harder for women seeking an abortion, many of whom are low-income, to take an additional day off for an ultrasound.
“We know what happened in the month after this law passed – women were not able to obtain an abortion,” Falk reiterated.
Judge Rovner, who dominated questioning, asked Solicitor Fisher during rebuttal to suppose that next year Indiana passes a new law requiring women to wait three days between having an ultrasound and an abortion, and then the following year another law that only allows doctors to perform the ultrasound.
Indeed, a law was introduced in the Indiana legislature this year to expand the waiting period from 18 hours to 48 hours.
“Why can’t a court assess these cumulative burdens as a whole?” she asked.
Fisher acknowledged that the court may view Indiana’s abortion laws as a whole when evaluating their burden on abortion rights.
But he closed by saying that the “18-hour window may persuade more women to listen to the fetus’ heart tone and be persuaded against abortion.”
Judges William Bauer and Michael Kanne rounded out the panel. The court is expected to issue an opinion in the case within three months.