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Analysis Law and Policy

How a Pence-Era Abortion Restriction Could Undermine a Key Reproductive Rights Victory at the Supreme Court

Jessica Mason Pieklo

Anti-abortion advocates have asked the U.S. Supreme Court to step in on a restriction requiring patients to obtain an ultrasound 18 hours before getting an abortion.

The U.S. Supreme Court on Friday will consider a request by attorneys from the State of Indiana to uphold a Pence-era law that requires patients to undergo an ultrasound at least 18 hours before obtaining an abortion.

Indiana lawmakers in 2016 passed HB 1337, an omnibus abortion bill that amended numerous provisions of existing abortion regulations, including the state’s mandatory ultrasound requirement. Before that, patients in Indiana were required to have an ultrasound before receiving abortion care, but they could schedule and have it on the same day as their abortion. As a result of HB 1337’s 18-hour delay, patients would have to make two trips to a clinic to have an abortion. Reproductive rights advocates sued, arguing the law unduly burdened abortion rights.

In April 2017, U.S. District Judge Tanya Walton Pratt blocked the measure, ruling it “creates significant financial and other burdens” on providers and patients. The Seventh Circuit Court of Appeals agreed, affirming Pratt’s decision last summer. Attorneys for the State of Indiana in February asked the Roberts Court to step in and hear the case.

The Supreme Court is already considering two other provisions of HB 1337 in a different case, which I previewed here. One requires certain procedures for the disposal of fetal remains while the other bans abortions based on the sex, race, or disability of the fetus. And just like in that case, there’s no good reason for the Court to get involved at this time in the question of Indiana’s mandatory delayed ultrasound. As attorneys for Planned Parenthood of Indiana and Kentucky note, there is no circuit-split for similar cases—one of the traditional reasons for the Supreme Court to agree to hear a case.

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But attorneys for the State of Indiana insist this case is a good candidate for Supreme Court review because it will allow the Roberts Court opportunity to clarify whether the substantial burden test from Whole Woman’s Health v. Hellerstedt applies to abortion restrictions passed in the name of “protecting fetal health.”

The test states that courts must weigh the extent to which the laws in question actually serve the stated government interest—in Indiana’s case, the interest in “fetal health”—against the burden they impose. So while Indiana’s petition may not be a traditional candidate for Supreme Court review, it serves other purposes: It reminds the Court of a brewing fight the justices will eventually have to resolve, and it starts suggesting the framework for them to do so.

Whole Woman’s Health v. Hellerstedt was an important win for abortion rights advocates not just because it struck as unconstitutional restrictions that had significantly reduced clinic access, but because the decision outlines an accountability standard for lawmakers. If a law is to restrict abortion access, the decision says, there must be some data—some verifiable evidence—that the restriction furthers the state’s interest.

Anti-choice lawmakers do not like this accountability standard. It’s blocked some of their most successful anti-choice measures—ones they unsuccessfully claimed were designed to promote patient health and safety. Their goal now is to prevent the Whole Woman’s Health standard from applying to those restrictions supposedly passed in the name of advancing potential fetal life. And to further that goal, they argue that instead of creating clarity, the decision in Whole Woman’s Health v. Hellerstedt created confusion in abortion rights jurisprudence.

“The Seventh Circuit’s decision in this case illustrates why the balancing test of Hellerstedt does not make sense in the context of statutes designed to protect fetal life,” Indiana’s petition states. “The Court held that the Ultrasound Law violates the Constitution because the significant burdens imposed on women’s access to abortion, amounting to an additional cost of $219 to $247, outweigh the ‘very small’ impact of the law on persuading women to choose life.”

“Even assuming this data accurately predicts the impact of the ultrasound law on Indiana women, the panel’s conclusion necessarily raises the question: what number of fetal lives must be saved before the benefit of the statute outweighs its burdens?” the petition continues.

The question is, of course, designed to bait the Court’s conservatives into restricting Whole Woman’s Health‘s reach.

“What if … only one woman is persuaded by the ultrasound to carry her pregnancy to term? What dollar amount in burdens is her unborn child’s life worth? Surely the Constitution does not require this type of utilitarian calculus,” the petition continues.

The state’s framing of the “dollar amount in burdens” is especially telling because it ignores the additional burdens on the pregnant person the lower courts considered—including the emotional burdens an extra barrier to care creates. Those burdens, from the State of Indiana’s perspective, should not factor into the Court’s analysis.

The State of Indiana is arguing that the data to support the idea of advancing potential fetal life is impossible to quantify, unlike data regarding patient safety. It’s an attempt to create a distinction between types of restrictions as a way to try and undercut the legislative accountability the Whole Woman’s Health standard demands. But Whole Woman’s Health made clear that the same undue burden standard first articulated in Planned Parenthood v. Casey applies to both categories of restrictions. Anti-abortion advocates are playing loose with the language of the decision to suggest a conflict when one does not exist, and they are hoping in this petition they can get the Court’s conservatives to play along.

The Court could decide as early as Monday whether to hear the case.

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