Indiana Could Kick Off Overturning Roe v. Wade

On Nov. 16, just eight days after Donald Trump’s election win, Indiana State Representative Curt Nisly publicly declared that he intends to propose a bill to criminalize abortion altogether. Dubbed by Nisly the “Protection at Conception” bill, the state representative told the Indianapolis Star he hopes to introduce the legislation when the general assembly convenes in January.

I reached out to Nisly on Dec. 8 to see if he still intended to introduce the legislation. His communications intern director and press secretary, Zach Weismiller, provided a statement from Nisly that made it clear he was committed to the abortion ban:

In the upcoming legislative session, I plan to file a ‘Protection at Conception’ bill, which would prohibit abortions in Indiana after life begins at conception.

My goal is to treat the death of an unborn child like you would any other human being. As an elected official, I will continue to support pro-life policies seeking to preserve the dignity of all human life and provide a voice for the voiceless.

The Indianapolis Star's Stephanie Wang and Tony Cook noted that since Nisly’s proposal would render all abortions a crime, prosecutors would have the authority to file charges against all participants involved in abortion procedures — providers and clients alike. "In situations in which a high-risk pregnancy endangers a woman’s life, he [Nisly] said the proposal would demand that a doctor try to save both mother and child," Wang and Cook reported.

Indiana has long been a hotbed for abortion-related controversies — thanks, especially, to its former governor (and soon-to-be vice president of the United States), Mike Pence. During his gubernatorial tenure, Pence either tried to sign into effect, or actually pushed through, some the most restrictive abortion regulations in the nation.

“It would take Scalia's replacement plus at least one, if not two more, to make an abortion ban a possibility.”

For example, late last year, Pence signed a contract taking $3.5 million in monies from the state’s Temporary Assistance for Needy Families (TANF) program, which provides aid to low-income families, to fund the the Pennsylvania-based anti-abortion group Real Alternatives. As the Indianapolis ABC affiliate reported, Real Alternatives' stated purpose is to "actively promote childbirth instead of abortion."

On March 24, 2016, Pence signed into effect House Bill 1337 — legislation that required women to pay for the cremation or interment of the aborted fetus. The bill was later struck down by a federal judge in June.

Though abortions have not been made explicitly illegal in Indiana — or in any other U.S. state — since 1973's Roe v. Wade, anti-abortion activists in top government positions (such as Pence) have consistently found new, creatively aggressive ways to chip away at women’s reproductive rights, little by little.

Keeping the former Hoosier governor's practices in mind, I wondered: Could Nisly’s proposal be passed and actually make its way to the Supreme Court? Moreover, at the time of writing, Ohio's "heartbeat" bill — effectively prohibiting abortions after six weeks, which is before most women would even know they are pregnant — is just missing pro-life Gov. John Kasich's signature before becoming law.

And, should it, under what kind of balance of power could SCOTUS then be operating? After all, we know Scalia’s open seat will likely soon be filled by a conservative judge. And then there are other elderly justices: Ginsburg, Kennedy, and Breyer. Realistically then, Trump could fill as many as four appointments during his first term as president.

"If we are only focusing on whether states can ban abortion, that would be missing what has been happening for decades, namely the slow and steady chipping away at abortion rights.”

So I reached out to Daria Roithmayr, a law professor at the University of Southern California, for her take on the likelihood of Nisly’s legislation making its way to a possibly re-strategized SCOTUS panel.

“In my opinion,” she said, “it would take Scalia's replacement plus at least one, if not two more, to make an abortion ban a possibility.” She added, “I am of the opinion that Trump has not adequately vetted those on his publicized short list to make sure they support the overturning of Roe v. Wade, which is what it would take to uphold [Indiana’s] ban.”

Roithmayr went on to explain that “even when presidents assume their nominees are a lock, sometimes they are not.” She pointed to Justice David Souter, who retired from the Supreme Court in 2009, having been nominated 19 years earlier by President George H.W. Bush. Time and again since his nomination, Souter subverted conservative ideals on the panel: He voted to uphold a woman's right to choose in 1992's Planned Parenthood v. Casey, and then he joined the majority opinion in 2000's Stenberg v. Carhart, which struck down state laws against "partial birth abortion."

I also turned to Brigitte Amiri, senior staff attorney for the ACLU Reproductive Freedom Project, who firmly dismissed any concerns that Nisly's proposed legislation to criminalize abortion could take hold.

“Roe v. Wade, the 1973 Supreme Court case that held that abortion is a fundamental right, is the law of the land," Amiri explained. "The constitutional right to abortion has been reaffirmed by the Court over the last 40 years, including most recently this June, when the Court struck down a Texas abortion restriction that would have decimated abortion access in that state.”

However, Amiri added a key nuance, pointing out why we shouldn't just focus on overt abortion bans but laws that put onerous restrictions or limits on abortion access. “If we are only focusing on whether states can ban abortion, that would be missing what has been happening for decades, namely the slow and steady chipping away at abortion rights.”

Such “chipping away” has been made possible by the enactment of the TRAP (targeted regulations of abortion providers) laws from state to state. While some TRAP laws have been found legally unenforceable, others have still gone into effect, making abortion care difficult — and in some situations impossible — for women.

“Access to abortion is very difficult, if not impossible, for many low-income women [because of these laws]," Amiri explained. "For rural women, women who live in a state with one abortion [clinic], and women who live in states that have numerous restrictions on abortion access. For some women, in certain parts of the country, it might as well be as if Roe v. Wade didn’t exist.”

Indeed, it’s not just a few states that have legalized TRAP laws. According to NARAL Pro-Choice America, 44 states and the District of Columbia have "measures subjecting abortion providers to burdensome restrictions not imposed on other medical professionals." On top of all that, NARAL Pro-Choice America noted on its website that 26 of these states "restrict the provision of abortion care — often even in the early stages of pregnancy — to hospitals or other specialized facilities."

"But for decades, the states have been steadily chipping away at the right to abortion, which has left women in some parts of the country with no abortion access."

Other types of TRAP laws force clinics to make what many critics of argue are medically unnecessary — and incredibly costly — renovations. The ACLU noted in a factsheet that TRAP laws can include rules regarding the "width of hallways, the size of closets and even the color of paint on the walls."

“Every year, numerous state legislators introduce total bans on abortion,” Amiri told me, referring back to Indiana’s proposed ban. “This has been going for quite some time, so it’s not a new tactic. Certainly, there will be state politicians that feel emboldened by a new presidential administration to push new abortion restrictions. But for decades, the states have been steadily chipping away at the right to abortion, which has left women in some parts of the country with no abortion access.”

So, what Amiri is getting at is that, sadly, trying to end abortion access — whether through overt proposals like Nisly's or slightly more subtle TRAP laws — is nothing new.