Indiana Federal Judge: Down syndrome selective abortions will increase & preventing them would be irreparable harm

A federal judge has ruled that Indiana’s statutory ban on Down syndrome-selective abortions is likely unconstitutional and to not allow women to selectively terminate would amount to irreparable harm. 

I’ve written previously on the Indiana law banning Down syndrome-selective abortions (see here and here). As expected, soon after its enactment, Planned Parenthood of Indiana & Kentucky (so cutely abbreviated “PPINK”) filed for a preliminary injunction of the statute. On Thursday, June 30, 2016, Judge Tanya Walton Pratt of the Southern District of Indiana, granted PPINK’s motion for a preliminary injunction. Here are the reasons why:

Standard of review

In federal court, preliminary injunctions are reviewed based on three-part test:

[1] likelihood of success on the merits of the moving party;

[2] the movant will suffer irreparable harm if the injunction is not granted; and

[3] balance of interests, to include the public interest.

Typically, elements [1] and [2] are the drivers in the arguments over a preliminary injunction. Because Judge Pratt believed PPINK will be successful ultimately, that element drove the findings on the remaining two elements.

[1] Likelihood of success on the merits

Judge Pratt explained in a very succinct and clear fashion why she believed Indiana’s law banning selective abortions on the basis of sex, race, or disability will ultimately be found unconstitutional.

Reviewing Supreme Court abortion precedent, and how it has been applied in the federal circuit in which Indiana sits (the Seventh Circuit), Judge Pratt laid out the relevant rules:

[a] A woman has a categorical right to choosing to have an abortion prior to viability.

[b] While the state has an interest in the life of the fetus from the beginning, prior to viability, a woman’s right to choose to have an abortion trumps the state’s interest.

The Indiana’s ban on selective abortions (purportedly) prohibits a woman from choosing to terminate a pregnancy prior to viability on the basis of sex, race, or a prenatal result for Down syndrome or other disability. As a result, because Judge Pratt states that precedence establishes an unfettered right to choose to abort prior to viability, she predicts that the Indiana ban will likely be ruled unconstitutional for impinging on that categorical right. Given that Judge Pratt will be the one who ultimately rules at this level of the litigation, she has reason to believe her prediction will be correct.

The State of Indiana made the argument that the precedence on which PPINK, ACLU, and Judge Pratt rely on is from an era that predates the advances made in prenatal testing. The State specifically pointed to cell free DNA screening as providing the opportunity earlier than ever for an expectant mother to find out the sex of her fetus or whether her fetus had Down syndrome or another condition. Tellingly, all parties agreed that this new technology will likely lead to an increase in the number of selective abortions.

As a result, the State argued that its enacted ban should be upheld in recognition that technology has created this opportunity for selective abortions since the courts had established the categorical right to choose to abort prior to viability. Judge Pratt recognized all of this, but further noted that because no exception had yet been made to the pre-viability right to abort, she was not in the position to create such an exception, since she is bound by the rulings of the higher courts.

Irreparable harm

The remaining elements were handled in much swifter fashion, since Judge Pratt ruled that PPINK will likely be successful. But, it is her analysis of these two elements that draw commentary from me.

Judge Pratt found that

PPINK will clearly suffer irreparable harm if it is unconstitutionally prevented from providing abortions during the pendency of this litigation. At the very least, it is likely that absent an injunction, PPINK would not be able to provide surgical abortions to some women facing the difficult moral and reproductive health decision of whether to terminate a pregnancy who would otherwise do so during the pendency of this litigation.

I withheld critique of Judge Pratt’s restating of abortion precedence as I have not delved into the constitutional holdings on abortion since my 1996 law school final in Con Law. I have, however, argued many motions for preliminary injunctions and am familiar with what the law requires for finding “irreparable harm.”

“Irreparable harm” is that kind of harm which the courts would not be able to “repair.” It’s actually a finding by the courts of the limitations they have for making a harmed party whole. In the courts of law, harms are compensated simply by a payment of dollars. Therefore, if a harm could be remedied by a monetary payment, the harm is not “irreparable.” The converse also applies: where money would not be able to  compensate a harmed party, that is why the “extraordinary relief” of an injunction may be issued.

I would dispute Judge Pratt’s finding that PPINK would be irreparably harmed by not performing selective abortions for Down syndrome, sex, or race.

Her finding that PPINK would not be able to perform selective abortions for “some women facing the difficult moral and reproductive health decision” may be irreparable harm for those “some women,” but those “some women” are not before the court as claimants–just PPINK is. As far as PPINK goes, abortions, selective or not, are surgical procedures for which there is a set rate of charges.

If Indiana’s ban was allowed to go into effect but ultimately was ruled unconstitutional, PPINK could then claim the amount of loss revenue it experienced due to not being able to perform selective abortions. Therefore, PPINK would not suffer “irreparable harm” because it could be compensated monetarily.

However, in the context of constitutional challenges, if PPINK’s substantive due process claim against Indiana’s ban were successful, the law recognizes that the harm PPINK would suffer if the ban went into effect is presumed to be irreparable. Because Judge Pratt already expects PPINK will be successful in its challenge, then irreparable harm can be presumed, as well.

Balance of interests

With a substantial likelihood of success having been found, and irreparable harm being presumed, it would be the rare case where the balance of interests reversed the tide towards granting the injunction. And, in this case, the tide was not turned. But, it is this analysis that draws the majority of my commentary.

The State argued that the public interest would counsel against the injunction because legislatures should be allowed to enact laws and see them put into effect, and injunctions could (vaguely) impinge the democratic process. Unfortunately for the State for this argument, there is other precedence noting that if a party may suffer irreparable harm, then delaying when a law goes into effect has not been found to outweigh irreparable harm occurring.

So, the State really didn’t give Judge Pratt an argument for her to find this third element in their favor. But, Judge Pratt goes on to note the claimed interests of PPINK:

The harms faced by PPINK and its patients are substantial, irreparable, and significant. Difficult moral and complicated health decisions are made by women whose pregnancies are affected by a prenatal fetal anomaly. Given the relatively short timeframe in which women may elect to terminate a pregnancy, even a short disruption of a woman’s ability to do so could have significant consequences.

Judge Pratt does not spell out what specific harms are “substantial, irreparable, and significant.” Nor does she identify how a short disruption “could have significant consequences.” Presumably those consequences are either that the baby would not be aborted or the mother would have to travel further to procure a selective abortion. But there is Supreme Court precedence permitting waiting periods, e.g. requiring a mother to wait 24 hours, and those “short disruptions” have not been ruled to have “significant consequences.” The lack of specificity makes these statements baseless. As such, they should not provide the grounds for finding that the balance of interests favor PPINK. (Note, I’m not saying there are not specific examples, just that Judge Pratt does not make them, so her statements are conclusory).

But, what is of most concern is the attestation of the CEO of PPINK and that Judge Pratt re-states them as though they are in furtherance of her injunction of a selective abortion ban. PPINK’s CEO Betty Cockrum provided a sworn declaration in support of why PPINK’s motion for preliminary injunction should be granted. Judge Pratt notes it in her opinion:

[T]he parties are essentially in agreement that a significant number of women have sought and will seek an abortion solely because to [sic] the diagnosis or potential diagnosis of a disability. ([citing] attestation from the CEO of PPINK that it has an will continue to provide abortions to women who seek an abortion “solely because of a diagnosis of fetal Down syndrome or other genetic disabilities or the possibility of such a diagnosis.”).

(See post here for my initial reactions to Ms. Cockrum’s statement). It is this declaration that Judge Pratt cites noting that PPINK knows it has performed selective abortions for Down syndrome “or the possibility of such a diagnosis,” and, moreover, that PPINK expects to perform more of these selective abortions. And, it provides the final point of this commentary:

Due process vs. equal protection

The State argued throughout that the purpose of the selective abortion ban is one of anti-discrimination, since, by its very nature, selective abortion is a discriminatory act. PPINK’s CEO admits to performing these abortions the State has found, through the legislative process, to be discriminatory, and, further, Ms. Cockrum has sworn that she expects more of these discriminatory abortions will be performed. While Judge Pratt recognizes that the State has a recognized interest in the fetus from the beginning of the pregnancy, and that the State has a recognized interest in eliminating discrimination based on sex, race, and disability, these interests are trumped by the right to choose abortion, in Judge Pratt’s assessment.

Perhaps, this is where the constitutional jurisprudence is and Judge Pratt has correctly analyzed and applied that law. But, it strikes me that the second half of the Amendment on which Judge Pratt relies is being completely ignored.

Judge Pratt notes that Supreme Court rulings recognizing the categorical right to abortion pre-viability is based on the 14th Amendment’s right to due process, within which the Supreme Court has based a right to privacy. Most, however, likely associate the 14th Amendment not with its due process clause but with its right to “equal protection of the laws.” It is this clause on which a wealth of jurisprudence against discrimination has been based.

So, the same constitutional basis, the 14th Amendment, houses both the privacy right to choose abortion pre-viability but also the right to equal protection and against discrimination. Judge Pratt does not wrestle with this tension. She says the right to choose trumps the State’s interest in the fetus, both of which interests are based on the due process prong of the 14th Amendment, but she does not analyze the State’s stated anti-discrimination interest on the other prong of the 14th Amendment to explain why the due process clause trumps the equal protection clause.

This tension is playing out across the nation, but in a different context: gay marriage. Headlines run on a regular basis where a shop owner has denied service to a gay wedding, the typical example being a bakery refusing to bake a wedding cake. In those cases, the shop owner’s privacy rights have (to my knowledge) universally been trumped by the gay couple’s right to equal protection and against discrimination. While a different context, it is offered as an example where the societal equal protection interests have trumped the individual privacy interests.

The reporting on the opinion says that the State is considering its next steps. Hopefully, if the State decides to appeal the decision (or continue through to final judgment and then appeal that decision), the Seventh Circuit will address this tension within 14th Amendment jurisprudence: does privacy rights trump equal protection measures in the context of abortion?