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.