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Requiring doctors to document patient’s reason for abortion is unconstitutional

A requirement that physicians document pregnant patients' reasons for an abortion and inform the patients of new restrictions on abortions is unconstitutional, the U.S. District Court for the Southern District of Indiana ruled September 22. The court issued a permanent injunction against the enforcement of provisions of a recent statute limiting access to abortions and imposing several new requirements on provider physicians, ruling that the state’s proffered reasons for the new restrictions were not sufficient to interfere with a woman’s categorical right to an abortion before the viability of the fetus.

(Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health)

In 2016, Indiana passed legislation limiting the ability of women in the state to obtain abortions in several respects. The legislation prohibited abortions before the earlier of either viability or 20 weeks if the motivation for the procedure was grounded in the gender or race of the fetus or whether it would be born with a disability, and imposed new requirements on providers to document the gender and any potential disabilities and inform their patients of the prohibition, under pain of disciplinary and financial sanctions. 

Technological achievements that allow earlier ascertainment of the gender and potential disabilities, the state claimed, made such a rule necessary in order to protect fetuses from discrimination. The legislation also requires providers to acquire a permit for the transportation of human bodies before it can dispose of fetal tissues resulting from the procedure.

In response to these new restrictions, Planned Parenthood of Indiana and Kentucky filed suit against various state agencies and officers, claiming that the provisions unconstitutionally denied women their right to termination of a pregnancy before viability.

Judge Tanya Walton Pratt, hearing the case, agreed with the Planned Parenthood. “The woman’s right to choose to terminate a pregnancy pre-viability is categorical,” she wrote, citing Supreme Court precedent. “Nevertheless, the State attempts to accomplish via [the legislation] precisely what the Supreme Court has held is impermissible . . . It is a woman’s right to choose an abortion that is protected, which . . . leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice” (italics in original).

While Judge Pratt acknowledged that states have a legitimate interest in the life of a fetus, she noted that the Supreme Court has made clear that, pre-viability, that interest is not enough to support the prohibition of an abortion. “This case is not about technological developments, but rather about a woman’s liberty interest weighed against the State’s interest in potential life,” a balancing test which the Supreme Court has already performed.

In a somewhat novel argument ,the state also claimed that, although a woman’s right to choose whether or not to terminate a pregnancy is protected, once a woman has made the decision to have a child, it is only that “binary choice which is protected. Once a woman has made the decision to have a child, the state argued, she cannot unmake that decision based on one of the categories prohibited by the new law.

This, the judge wrote, “is contrary to the core legal rights on which a woman’s right to choose to terminate her pregnancy prior to viability are predicated. The Supreme Court has mandated that this right stems from a liberty right protected by the Fourteenth Amendment—specifically, a woman’s right to privacy.”

“. . The very notion that, pre-viability, a State can examine the basis for a woman’s choice to make this private, personal, and difficult decision, if she at some point earlier decided that she wants a child as a general matter, is inconsistent with the notion of a right rooted in privacy concerns and a liberty right to make independent decisions” (italics in original).

Having ruled the new patient restrictions unconstitutional, the court further struck down the new requirements on physicians to document their patients’ reasons for the abortion and to inform them of the new restrictions, holding that those requirements were likewise unconstitutional.