When Indiana's Republican Governor Mike Pence signed a measure that placed controversial limits on abortion, the law's constitutional implications likely had little bearing on his decision. Nevertheless, Pence's move comes as some anti-abortion governors and state lawmakers devise even more severe restrictions and force reproductive-rights advocates onto familiar turf in state and federal courtrooms.
Calling the state law "unprecedented and unconstitutional," the ACLU has filed suit against Indiana in federal court. The state abortion law now bans doctors from performing abortions on women who seek to end pregnancies on the basis of "the fetus's race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability"; mandates that abortion providers have admitting privileges at local hospitals; demands that all remains be buried or cremated; and requires that women visit their abortion provider to undergo an ultrasound and listen to the fetus's heartbeat at least 18 hours before actually having an abortion, a provision that would complicate many women's lives since only four of Indiana's 92 counties have clinics that offer the procedure.
"The United States Supreme Court has repeatedly stressed that a woman, not the state, is to determine whether or not to obtain an abortion," said Ken Falk, the Indiana ACLU's legal director, in a statement about the lawsuit.
The Guttmacher Institute, a national research and policy nonprofit that promotes reproductive rights and women's health, notes that since 2010, states have enacted about 300 laws restricting abortions, the most passed in any five-year period since the Supreme Court's 1973 Roe v. Wade ruling. In 2015, about 400 abortion restrictions were introduced in state legislatures, mostly in the South and the Midwest.
According to Kelly Baden, the director of state advocacy for the Center for Reproductive Rights, a global legal advocacy organization that focuses on reproductive-rights issues, state legislators have already introduced more than 330 bills in the first quarter of 2016 that contain some form of restriction on reproductive health and rights.
With lawmakers spending more time campaigning, "election years should be lighter [for new bills]," says Baden. "But we are not seeing this." But unless pro-choice lawmakers gain decisive majorities in state houses, reproductive-rights advocates in anti-abortion states may have to continue to resort to legal action.
Pro-choice advocates have won some significant legal victories. Last month, a federal court permanently blocked an Alabama law that required all doctors performing abortions in the state to have admitting privileges at local hospitals. Challenges to similar laws are pending in Mississippi, Oklahoma, Louisiana, and Wisconsin. In another recent pro-choice win, the Oklahoma Supreme Court struck down a petition that would have placed a statewide referendum on abortion access on the November ballot.
National pro-choice organizations note that while these rulings protecting abortion rights have been invaluable, lawsuits are time-consuming and expensive. "Part of the [anti-abortion movement's] strategy is getting the pro-choice side to use up its resources, and litigating cases are a part of that," says Leslie McGorman, NARAL Pro-Choice America's deputy policy director.
"We need to do a better job of conveying the impact of restrictions [like Indiana's] to the public," says Baden. "Women shouldn't have to run to court to defend their constitutional right to an abortion."
Correction: An earlier version of this post incorrectly stated that roughly 80 percent of the approximately 300 reproductive-rights bills introduced in 2016 contained restrictions on abortion. In fact, state legislators have introduced more than 330 bills that all contain restrictions on reproductive health and rights. The text has been corrected to reflect this.
