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Indiana: Struggle for Reproductive Rights is Playing Out in the State Court System

Indiana is the destination today on our tour through the United States to discuss reproductive care and rights, region by region, state by state. We’re doing this, because of the recent Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Womens Health Organization abortion case this past June. The Dobbs decision reverses the Roe v Wade decision of 1973, following almost a 50 year process of chipping away at abortion rights, since the time of Roe. The chipping away of abortion rights accelerated with the SCOTUS decision on Casey versus Planned Parenthood of Southeastern Pennsylvania case in 1992. Since that time, many US states have gone all out to protect the right to choose, in some cases even channeling state funds to provide out-of-state abortion seekers, not only with abortion care, but also with travel and lodging costs. At the other extreme, however, are numerous states with anti-choice-dominated legislatures and anti-choice governors that have been moving as quickly as possible, either to enforce abortion trigger laws (laws passed earlier that would go into effect upon the overturning of Roe), or to enact new laws.

The latter happened in Indiana, the Hoosier state, where the legislature was so eager to end abortion in the wake of Roe that it was first among all state legislatures to pass a post-Dobbs abortion bill, a bill that the Indiana governor eagerly signed into law on August 5. This was just weeks after an Indiana obstetrician-gynecologist with special training in family planning, Caitlin Bernard, provided abortion care to a 10 year-old rape victim from neighboring Ohio. At the time, Ohio banned all abortions after detection of a ‘heartbeat’, with no exceptions for rape, on account of a trigger law passed prior to Dobbs. Later, an Ohio court blocked the ban, thus allowing abortions to resume, first on a temporary basis, and, as of early October, indefinitely. Given the extreme danger of pregnancy in such a young girl, in all likelihood Dr. Bernard saved the girl’s life, but this common sense reality did not stop Indiana’s Attorney General, Todd Rokita, an opponent of abortion rights, from launching an unfounded investigation and smear campaign against Bernard. While abortion had been legal in the Hoosier state at the time that Bernard had provided care, Rokita has been criticizing Bernard’s paperwork and trying to get her into trouble with the Indiana medical licensing board.

But guess what. While the Hoosier state’s near full ban on abortion took effect September 15, it remained in effect for only one week. That’s because a judge in an Indiana court issued a preliminary injunction against the law. Subsequently, on October 10, Indiana’s Supreme Court upheld the injunction, pending a hearing set for January, 2023. This means that, in the Hoosier State, you can receive abortion care up to 22 weeks gestation, at least until January. This can mean a  medication abortion, which is allowed up to gestational day 77 (the end of the 11th week of pregnancy), as well as a procedural abortion (well beyond 77 days).

Now Attorney General Rokita is one of the main opponents that will be pushing for the Indiana Supreme court to end the injunction, thus allowing the ban on abortion to start again. But Indiana is a good example of a state in which actions in the court are pushing back against extremely powerful anti-choice forces in the legislative and executive branches. As of October 14, a lawsuit filed by five anonymous plaintiffs representing Jewish, Muslim, and other non-Christian traditions have begun arguments in an Indiana court to the effect that abortion bans violate religious freedom. This makes Indiana one of a handful of states where anti-abortion laws are being challenged on a religious basis. To give an example of how this works, a Jewish doctor confronted with a patient like the 10-year-old Ohio rape victim would be required to terminate the child’s pregnancy, not only on account of the doctor’s medical oath and common sense, but also on account of Jewish law. This is because Jewish teaching places the preservation of life and health of the mother above all other considerations. Along with Islam, many other religious traditions, secular common sense —and, by the way, science— Judaism recognizes that sentience and personhood do not begin in one swift moment, but develop in stages over an extended period of time. In the Covenant Code, which is thought to be the oldest legal text in the Hebrew Bible and likely derives directly from the law code of King Hammurabi of Babylon, an embryo/fetus is treated basically as the property of whichever male has legal status over the pregnant woman. In the Babylonian Talmud, however, which took shape during Judaism’s formative centuries (late Antiquity to early Middle Ages), there’s recognition of the progressive nature of development in the womb. Up to 40 days into pregnancy, the embryo is considered to be “like water”, meaning that it has no status as a life form. It’s less important than a farm animal, for instance, or the family cat or dog. Then, it has a more elevated status from 40 days until birth, specifically when the head comes out of the mother, and then Judaism has some issues concerning the first few weeks of life, after delivery. The point is that idea of an embryo, or fetus, being a person, with human rights, throughout pregnancy is not universal. It’s a minority religious belief, attached to certain factions of Christianity, and thus has no business influencing secular law.

David Warmflash
Dr. David Warmflash is a science communicator and physician with a research background in astrobiology and space medicine. He has completed research fellowships at NASA Johnson Space Center, the University of Pennsylvania, and Brandeis University. Since 2002, he has been collaborating with The Planetary Society on experiments helping us to understand the effects of deep space radiation on life forms, and since 2011 has worked nearly full time in medical writing and science journalism. His focus area includes the emergence of new biotechnologies and their impact on biomedicine, public health, and society.

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