Fetal Anomaly Is the Most Extreme Abortion Bill Yet

An Indiana bill would ban abortions for disability, block terminations due to lethal anomaly, and require providers to cremate or bury fetuses.

03.11.16 5:01 AM ET

It’s an abortion bill so extreme that staunch abortion opponents are worried Indiana Gov. Mike Pence will sign it.

If it becomes law, HB 1337 will require abortion providers to bury or cremate fetuses.

It will ban women from seeking abortion based on a fetal diagnosis of physical or mental disability, including Down syndrome.

It will place an additional obstacle in the path of women who wish to terminate a pregnancy due to a lethal fetal anomaly, requiring them to sign a form certifying they have received a brochure about fetal hospice services.

It will prohibit the transfer of fetal tissue unless it is being buried or cremated, even for fetal tissue donation.

And it will also ban women from receiving state-mandated pre-abortion counseling as a “group,” mandating that it be done in “private” instead. During these counseling sessions, the state already requires providers to tell women that “human physical life begins when a human ovum is fertilized by a human sperm.”

The Indiana Senate cleared HB 1337 and the Republican-controlled House of Representatives approved it by a 60-40 vote this Wednesday.

As the Associated Press reported, the bill was rushed to the floor of the Indiana House, bypassing committee and forcing lawmakers to vote without a chance to revise the text.

Several Republicans spoke out against the bill, including Rep. Sean Eberhart, who said, “Today is a perfect example of a bunch of middle-aged guys sitting in this room making decisions about what we think is best for women.”

“We need to quit pretending we know what’s best for women and their health care needs,” he added.

But a strong majority of Republican representatives supported the bill. House Speaker Brian Bosma rebutted the idea that the bill interfered with women’s health care decisions, saying, “Those unborn children are Hoosiers and they have constitutional rights.”

Republican Gov. Mike Pence stopped short of promising to sign HB 1337 into law. A spokeswoman for the governor told AP that he is “a strong supporter for the right to life” and that he will “give this legislation thoughtful consideration once it reaches his desk.”

If it passes, Indiana will become the second state to ban abortion motivated by a fetal diagnosis of Down syndrome. In 2013, North Dakota passed similar legislation in place. Ohio lawmakers proposed a Down syndrome abortion ban last year.

But as The Daily Beast reported in response to Ohio’s HB 135, these bans are virtually unenforceable, if not completely unconstitutional. Like North Dakota’s ban, Indiana’s HB 1337 includes language that would prohibit abortion sought “solely because” of a fetal Down syndrome diagnosis.

Enforcement, then, would require definitive proof of the reason a woman is seeking an abortion. So far, North Dakota’s similar law has not resulted in any prosecutions and the state’s sole abortion provider has not had “any women who presented saying they need an abortion because of a fetal diagnosis.”

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As it stands, HB 1337 would require abortion providers to notify Indiana women of the Down syndrome ban during pre-abortion counseling but it would not require women seeking an abortion before 20 weeks gestational age to provide a reason.

As Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), explained to The Daily Beast, “[Anti-abortion groups] recognize that they can keep their base mobilized by legislation whether it passes or not and whether or not it is actually enforceable.”

The Indiana bill does take one significant step toward enforceability. State law now requires abortion providers to report information about each abortion to the state. HB 1337 would add “whether the fetus has been diagnosed with or has a potential diagnosis of having Down syndrome or any other disability” to the list of required information, potentially giving the state ammunition to scrutinize specific providers.

But even then, a sole motivating factor would be nearly impossible to prove. In the unlikely event of prosecution, women themselves cannot be charged but abortion providers who terminate a pregnancy due to a Down syndrome diagnosis could be sued for “wrongful death.”

Indiana already has strict abortion restrictions in place, including a 20-week ban, an 18-hour waiting period after state-mandated counseling, and a law that requires women to receive an ultrasound before an abortion. The anti-abortion group Americans United for Life already ranks Indiana as the seventh-“most protective” state on its “Life List.”

If Pence signs HB 1337, expect Indiana to climb even higher.