Last week, a federal judge upheld an injunction that blocked Indiana’s law which required a woman must to have an ultrasound and wait 18 hours before having an abortion. A three-member panel of the 7th Circuit Court of Appeals upheld a prior court’s ruling that the 18-hour waiting period imposes an “undue burden” on women. In a 51-page ruling, Judge IIana Rovner, appointed by George H.W. Bush, argued that an ultrasound requirement and waiting period wasn’t the way to persuade women not to choose abortion. The ruling shows just how precarious legislation that seems to protect unborn babies may still be, even if the bill itself highlights some of the more important issues of the pro-life cause.
Indiana’s abortion law
Indiana’s House Bill 1337, which passed in 2016, essentially lays out a gamut of restrictions on abortion. In fact, there were so many, most Indiana pro-lifers cheered and Slate booed (and even claimed some pro-life folks thought it was too restrictive). One of the more controversial provisions was that “a pregnant woman considering an abortion must be given the opportunity to view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone at least 18 hours before the abortion is performed and at the same time that informed consent is obtained.” To much uproar, then-Gov. Mike Pence signed the bill into law.
The next year, U.S. District Judge Tanya Walton Pratt (an Obama appointee) issued a preliminary and then later a permanent injunction which blocked that portion of the bill. “The United States Supreme Court has stated in categorical terms that a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” she wrote in her decision.
Now, the 7th Circuit Court of Appeals has ruled to uphold the injunction, which blocked the law. Somewhat surprisingly, Rovner, a former Reagan appointee, wrote the lengthy opinion stating her reasoning. It seems to represent an ideological blend of libertarian views and women’s rights with a measure of what constitutes an “undue burden” on women mixed together. Unfortunately, it’s the most pro-choice argument for abortion I’ve ever seen from a Republican judge.
Rovner’s opinion: Law meets empathy wrapped in pro-choice rhetoric
The main reason Rovner upheld the injunction is summarized in this statement: “Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.” Rovner delves deeply into the many reasons why these provisions place an undue burden on women’s rights. She cites geographical limitations women must face when they want an abortion, since there are so few Planned Parenthood clinics to go to (since so many have shut down). She says even the ultrasound requirement is tough because “ultrasound equipment is expensive and scarce.” She cites the financial and emotional cost of waiting a laborious 18 hours — many of these women are “poor,” she states.
Pro-life legal scholars can blame the precedents Planned Parenthood v. Casey and Whole Women’s Health v. Hellerstedt set for the legal rationale, such as it is. “The Casey court set forth an undue burden test which declared that a state may not establish a regulation that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.’” Yet, Rovner’s own summary of why she upheld the injunction seems to be more reminiscent of the logic which pervaded the pro-choice movement as Roe v. Wade became law in her mid-30s. Rovner wrote, “Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder and challenge their own ideas and those of others. The usual manner in which we seek to persuade is by rhetoric not barriers.” Oddly, Rovner’s logic for ruling the legislation unconstitutional seems to hone in on all the ways abortion should be easy for women, rather than hard for the unborn baby.
What’s really at stake
Pro-life advocates, particularly the ones who passed the HB 1337, would argue that what Rovner perceives to be “pro-life by fiat” — or persuasion by barriers — is more like “inform by common sense.” The law did not provide that abortion, once following the waiting period for ultrasound viewing, is impossible or illegal (that would have been illegal). The legislation simply provides that a measure of respect be handed to the woman wrangling over such a choice, giving her time to consider other options. The ultrasound gives the woman a peek at her baby’s movements and the sound of their heartbeat fully demonstrates the personhood of the little one whom she carries. (Of course, as the court put it in 1973, “the word ‘person,’ as used in the 14th Amendment, does not include the unborn,” but pro-life advocates vehemently disagree with that assertion.)
Laws like this are not uncommon. Over half the country’s states have already implemented ultrasound laws. At the core of a law with restrictions that include an ultrasound and waiting period are two major issues: 1.) The legislation functions from the core belief that babies are people — that personhood in an unborn fetus is inherent — and ultrasound helps a woman see that and 2.) abortion may not be the best case scenario for both mother and child, hence a waiting period.
Both of these issues are important and essential not just to a pro-life cause or movement but also to the nature of understanding and valuing humanity, particularly the least among us. While legislation like this would most certainly be acting as a deterrent to abortion, the goal is much higher and integral: It’s to inform and perpetuate a culture of life. To this end, the 7th Circuit Court of Appeals ruled the legislation was a barrier to women’s rights. In fact, it was a bridge to the rights of the unborn.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
