Could Indiana ban abortion?

Republican state Rep. Curt Nisly plans to introduce a total abortion ban. The measure enjoys support among Indiana conservatives, but would likely face legal challenges – unless the Trump administration can overturn Roe v. Wade.

Mykal McEldowney/The Indy Star/AP/File
Rachel Ferguson (c.) holds a sign in support of women's rights during a rally for women's rights in front of the Indiana State House in Indianapolis in April.

Indiana is at the forefront of an anti-abortion movement backed by the incoming Trump-Pence administration.

Republican state Rep. Curt Nisly plans to introduce a total abortion ban, dubbed “Protection at Conception,” when the state legislature convenes for its next session in January. Under the proposed law, prosecutors would be able to bring criminal charges against anyone who participated in an abortion – even in the case of high-risk pregnancies.

Conservative activists have been animated by the measure, which they say would give the same priority to the lives of fetuses as any other human. The move is likely to face legal challenges, because of the precedent by Roe v. Wade. The next White House, however, hopes to overturn the pro-choice ruling.

“My position is that the Supreme Court is wrong with Roe v. Wade,” Mr. Nisly said, according to the Indianapolis Star, “and they don’t have jurisdiction in this manner. This is the state of Indiana asserting the powers that are given to them, specifically in the 9th and 10th Amendments of the U.S. Constitution.”

In a 1973 decision, Roe v. Wade established that women had the right to an abortion before the fetus was viable. Later-term abortions have also been permitted in cases where the life of the mother is at risk.

States have some ability to make that access more difficult, such as by limiting the number of abortion clinics. Vice President-elect Mike Pence, when he was governor of Indiana, signed some of the most restrictive anti-abortion laws in the country, which applied even when the fetus had genetic abnormalities. However, a federal judge later prevented these laws from being implemented.

The Guttmacher Institute, a research organization that advocates for abortion rights, estimates that 19 states could use existing laws to restrict abortion if Roe v. Wade were overturned, while seven states have laws protecting the right to abortion. Currently, five states have only one abortion clinic, while one-third of women of reproductive age live in a county that doesn’t have an abortion provider. 

The top of the ticket, President-elect Donald Trump, once supported even controversial forms of late-term abortion. But the wave of support he received from evangelical voters may have encouraged him to focus on overturning Roe v. Wade.

In a CBS “60 Minutes” program that aired on Sunday, Mr. Trump said he hopes to appoint Supreme Court justices who will return decisions about abortion to the states. At the same time, he indicated that he was “fine” with same-sex marriage.

Differentiating between the two Supreme Court rulings may be a challenge, suggested Steve Vladeck, a law professor at the University of Texas School of Law and a CNN contributor. He said same-sex marriage and abortion hinge on the same interpretation of the US Constitution. As such, it may not be possible to have one without the other.

And since much of the Supreme Court’s work builds on existing rulings, justices may be unwilling to go against the 40-year-old precedent established in Roe v. Wade, no matter how conservative they are.

“You would need two or really even three vacancies [on the Supreme Court], because I think John Roberts in particular doesn’t want to overturn Roe. Part of it is a concern about public legitimacy, but he’s also just not the type of jurist who likes wholesale overturning precedent,” Jessie Hill, a professor at Case Western Reserve University School of Law, told FiveThirtyEight.

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