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Prosecutors won't defend Indiana's latest abortion law, call it 'legislative futility'

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Posted at 2:52 PM, May 02, 2018
and last updated 2018-05-03 13:19:50-04

The prosecutors of Marion, Monroe and Lake counties will not contest Planned Parenthood’s latest lawsuit against Indiana’s abortion requirements, saying the new law likely wouldn’t survive a court challenge.

The suit, filed last month by the ACLU on behalf of Planned Parenthood of Indiana and Kentucky (PPINK), targets a law passed during the 2018 legislative session that would require medical providers to report detailed information to the state about complications rising from abortions. The law also contains a provision requiring annual inspections of abortion clinics.

The ACLU and PPINK argue the law violates the constitution by imposing “unique and burdensome obligations” on abortions and abortion providers.

READ MORE | Governor Eric Holcomb signs bill that requires detailed reports of complications from abortions

The suit lists the prosecutors of Marion, Monroe and Lake counties – along with the Indiana State Department of Health, the Medical Licensing Board of Indiana, and others – as defendants because of the location of Planned Parenthood clinics within their jurisdictions.

On Wednesday, those prosecutors released a joint statement directing Attorney General Curtis Hill to concede the merits of the case on their behalf.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Marion County Prosecutor Terry Curry said in the statement.

The state of Indiana has repeatedly attempted to defend new abortion restrictions passed by the Republican-controlled General Assembly in federal court in recent years – and lost each one of those attempts. All three prosecutors who joined Wednesday's statement are Democrats.

In April, the 7th Circuit Court of Appeals ruled that an Indiana law banning abortions because of a fetus’ race, sex or diagnosis of disability signed in 2016 by former Gov. Mike Pence was unconstitutional. The court also struck down a provision that would have required aborted fetuses to be buried or cremated.

A year earlier, in April 2017, U.S. District Judge Tanya Walton Pratt blocked another law from going into effect that would have forced women to undergo an ultrasound at least 18 hours before having an abortion. An appeal of that decision is currently being reviewed by the 7th Circuit.

READ MORE | Federal judge blocks Indiana abortion ultrasound mandate

The state of Indiana also lost a challenge against a 2013 law that would have required abortion clinics to have surgical facilities – even if they only provide the abortion pill.  

In total, Curry said he estimates the state of Indiana has paid nearly $300,000 in legal fees to the ACLU because of challenges to recent abortion laws.

“Our priority is to protect the public safety of our local communities with limited time and scarce public resources,” said Monroe County Prosecutor Chris Gaal in Wednesday’s statement. “Our decision to concede the merits of the suit as defendants is not based on our personal beliefs, it is about refusing to participate in a futile legal battle that is a distraction from our important duties.”

Lake County Prosecutor Bernard Carter echoed similar thoughts.

“When we took office we swore a duty to uphold both the federal and state constitutions, and this law appears just as unconstitutional as the last few attempts to impose such restrictions,” he said.

Attorney General Hill’s office said last month that it planned to “carefully review” the lawsuit to determine what steps, if any, to take.

On Thursday, Hill responded with a combative statement of his own, saying Curry’s directive “has zero force or effect.”

“The protestations of Mr. Curry and the other prosecutors regarding their being drawn into this type of litigation might find a more sympathetic ear with the plaintiff, the ACLU, which chose these three ‘defendants’ who, if they had the authority, would concede the case. How convenient and disingenuous,” Hill said. “If these three prosecutors want out of this case, then they can ask their friends at the ACLU to dismiss them out. As for the defense of the State of Indiana and the decisions on how to proceed in this case, I will make that call.” 

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