Cases to Watch: Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health
Currently under consideration for review by the Supreme Court is a case from the Seventh Circuit, Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of Indiana State Department of Health, in which the plaintiff has challenged an Indiana law that would make it a crime (and impose civil liability) for a provider to perform or attempt to perform an abortion where the reason for the abortion is based on the sex, disability, or race of the fetus.* These types of abortion bans are often referred to as “reason-based bans” or “reason bans.” The district court found in favor of the plaintiff and the Seventh Circuit affirmed, finding that the reason bans were complete bans on pre-viability abortions and, thus, unconstitutional under Roe and its progeny. If taken up by the Court, it will be the first time the Supreme Court considers reason-based bans on abortion.
The case is critical because the state of Indiana is arguing that its reason bans do not implicate Roe and its progeny, in an attempt to further gut the right to abortion under Roe. There is no question that our fundamental rights are at stake if the Supreme Court agrees to grant review.
However, missing from the arguments in the case and the overall considerations of the court is the harmful impact of sex and race-selective abortion bans on people of color, including Asian American and Pacific Islander (AAPI) women and girls. These bans are based on, as well as perpetuate, harmful stereotypes about women of color and encourage providers to suspect and racially profile women of color when they seek reproductive care.
Specifically, sex-selective abortion bans are predicated on negative stereotypes that AAPI women, particularly AAPI immigrant women, hold cultural values of male preference and gender bias and are therefore engaging in sex-selective abortions. Proponents of these bans have relied on anti-immigrant rhetoric, suggesting that Asian immigrant women are importing “backwards” values and that these laws are necessary to “protect Americans” against these values.
At base, sex-selective abortion bans send the message that AAPI women can not be trusted to make their own reproductive choices. By threatening penalties against providers, these bans also encourage providers to racially profile AAPI women for their reproductive health decisions, adding yet another barrier to reproductive health care for AAPI women.
This risk of racial profiling is real - at the time that Indiana was considering its sex-selective abortion ban, the state criminally prosecuted Purvi Patel, an Indian American woman, for a negative pregnancy outcome. Ms. Patel was convicted and sentenced to serve 20 years, although the Indiana Court of Appeals later overturned her conviction.
So, as the Supreme Court considers reviewing reason bans, it is also important to consider the harmful impact of these bans and the real dangers they pose for women of color. Indeed, what is perhaps most troubling is that proponents of sex-selective abortion bans contend that the motivation for such bans is to prevent gender discrimination. To the contrary, the real motivation for reason bans is to further impede access to abortion, and the disproportionate harm that sex-selective abortion bans have on AAPI women demonstrates clearly that these bans have nothing to do with combating discrimination.
* The law additionally requires fetal remains to be treated as human remains. This means that a provider is required to obtain a burial transmit permit in order to have a fetus buried or cremated.
On October 10, 2018, the Supreme Court heard argument in a critical case on immigration detention: Nielsen v. Preap. At issue in this class action brought on behalf of immigrant detainees is the meaning of the word “when” in a provision of the federal immigration statute that requires the mandatory detention (that is, detention in ICE custody with no possibility of release while removal proceedings are pending) of certain immigrants “when” they are released from criminal detention. The broader issue is whether ICE can detain an immigrant that it did not detain immediately upon the immigrant’s release from criminal detention. The plaintiffs argue that the mandatory detention provision should be interpreted to exclude immigrants who were not immediately detained upon release from criminal detention. The government argues that these immigrants are not excepted and that the government can detain them at any time after they are released from criminal detention. This distinction is critical for plaintiff Mony Preap and many other immigrants who were long ago released from criminal custody, sometimes for very minor crimes, and returned to their communities -- where they have built lives, families, and homes and contributed to their communities for years -- and who are now being detained by the government and held without any possibility of release while removal proceedings are pending.
Named plaintiff Mony Preap, a Cambodian American, was convicted in 2006 of an offense that would have triggered mandatory detention -- two counts of misdemeanor marijuana possession. However, the government did not detain him and he returned to his community. Seven years later, he was convicted of battery and detained by ICE. While battery is not an offense that triggers mandatory detention, Preap was denied a bond hearing based on his previous convictions for marijuana possession.
Nielsen v. Preap has enormous implications for Southeast Asian American communities. Due to immigration laws passed in 1996 that vastly expanded the definition of deportable crimes and crimes that require mandatory detention and deportation, 13,000 Cambodian, Laotian, and Vietnamese immigrants (including lawful permanent residents) have been issued final removal orders, and a large number of Southeast Asian Americans have been detained by ICE due to criminal convictions from years ago.
The effects of these laws have been devastating not only for the detainees themselves, but also for their families and communities. NAPAWF and the Southeast Asia Resource Action Center (SEARAC) recently released a report with the stories of Southeast Asian American women whose lives have been deeply impacted by the detention and/or deportation of loved ones, including husbands, brothers, and fathers. The report shows the deep and lasting harm to Southeast Asian American families torn apart by detention and deportation, including the loss of a loved one and the loss of emotional, financial, and physical support. These harms compound the trauma already experienced by immigrant and refugee families and severely affect the psychological and emotional well-being of the partners and children that are left behind. Families are forced to make difficult, often heartbreaking, decisions about their future and navigate a new reality in the absence of their loved one.
So, while Nielsen v. Preap focuses on the interpretation of one word in a statute, this case is about so much more than that. It is about Southeast Asian American women, children, and families and the devastating impact of family separations and unjust immigration laws and policies on entire communities. At the same time, the voices and experiences of Asian American women and children who endure the hardship of detention and deportation of family members are all too often excluded from the broader narrative and conversation about our country’s immigration policies. We must continue to push for these discussions to include and center the perspectives and experiences of women, children, and families that also suffer under our country’s broken immigration system. This is critical to ensuring that all Asian Americans have the power and agency to make their own decisions about their lives, families and communities.
by the NAPAWF Legal Team
AP(Eye) on the Courts is our law blog written by NAPAWF’s legal team. The blog highlights and discusses significant legal cases and updates, particularly those that impact AAPI women and women of color regarding reproductive, immigrant, and economic justice.