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Indiana crammed as many anti-abortion bills as it could into this horrifying new law

Indiana Gov. Mike Pence, who thought signing this bill was a good idea
Indiana Gov. Mike Pence, who thought signing this bill was a good idea
Ethan Miller/Getty Images

Indiana Gov. Mike Pence signed a massive new anti-abortion bill, House Enrolled Act 1337, into law on Thursday. Among other things, it bans abortions for reasons of genetic anomaly and requires all fetal remains to be cremated or buried, even if they come from a miscarriage.

It's a pretty stunning piece of legislation that even some pro-life Republicans think is too extreme. Some advocates call it a "kitchen sink" bill, a smorgasbord of about a dozen different provisions that Indiana legislators have tried and failed to pass before. The National Network of Abortion Funds called it "one of the most vicious omnibus anti-abortion bills the United States has ever seen" in a press release Friday.

Anti-abortion lawmaking can be confusing. Some requirements are counterintuitive or sound more innocuous than they actually are. Some have a bigger impact on abortion access in practice than others. Some are incredibly common and have been spreading in state legislatures for years, and others are brand new anti-abortion strategies that might soon catch on elsewhere.

Indiana's new law has a little bit of everything, so here's a breakdown of what it does and why it matters.

1) It makes an unprecedented requirement to bury or cremate all fetal remains, even from an early miscarriage

It's hard to predict the precise effect this provision will have, but it could be really bad for abortion providers and women who have abortions or miscarriages.

The law says that "a miscarried or aborted fetus must be interred or cremated by a facility having possession of the remains," and requires "a person or facility having possession of a miscarried or aborted fetus to ensure that the miscarried fetus or aborted fetus is preserved until final disposition occurs."

It doesn't matter how far along the pregnancy is. Normally when a pregnancy ends earlier than 20 weeks, the "products of conception" (fetal tissue and the placenta) are treated like any other medical waste. After 20 weeks, the fetus is considered a "stillbirth" and the parents typically have the option to cremate or bury it if they choose.

So even if a woman has a miscarriage at eight weeks of pregnancy at home, under this law she could be required to keep the blood and tissue, take it to a hospital, and have it buried or cremated by a funeral home.

Abortion providers will probably have to take on extra costs and administrative burdens for all of those extra burials and cremations, and those costs would probably get passed on to the patients.

Some other states have old laws on the books requiring fetal tissue to be buried or cremated in some circumstances — but nothing like Indiana's law, said Elizabeth Nash, state issues manager at the Guttmacher Institute.

"I don't think we know what the impact is going to be. This has never been required before for all fetal tissue," Nash said. She said abortion clinics would probably have to contract with funeral homes, which could be costly or a hassle — and it's possible that funeral homes would face political pressure not to enter into those contracts, as many hospitals do already.

Could an abortion clinic be forced to close because it can't find a funeral home to partner with? Maybe. Would women end up having to pay more for an abortion or miscarriage because the state is forcing them to use funerary services that they don't want? It seems pretty likely.

But it's too soon to know for sure, and Indiana will be the first testing ground unless a court steps in to block the law. It might not be the last, though: Ohio started trying to pass a similar law after its attorney general created an inflammatory, misleading controversy over how fetal remains are disposed of.

2) It bans getting abortions for specific reasons, which is both burdensome and hard to enforce

The law makes it a crime to perform an abortion if a doctor knows that a woman is seeking an abortion "solely because of: (1) the race, color, national origin, ancestry, or sex of the fetus; or (2) a diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability."

"They basically took non-discrimination language and made it an abortion ban," Nash said.

That's certainly how the bill's supporters want people to see it. "We are pleased that our state values life no matter an individual's potential disability, gender or race," Mike Fichter, president of Indiana Right to Life, said in a statement.

But the effect of the law would be to burden providers by making them question women's reasons for having an abortion, and burden women by forcing them to justify their decision even under the most tragic medical circumstances.

The "disability" part of the law is especially alarming to reproductive rights advocates. The law doesn't prohibit abortion for a lethal fetal anomaly that is reasonably certain to cause death within 3 months after birth. But the line between "lethal anomaly" and "disability" can sometimes be murky. Doctors don't always know if a case of microcephaly will cause an infant to die shortly after birth, or a year later, or 20. And some women choose to take that risk and carry the pregnancy to term, but for others the idea is pure torture.

Only one other state, North Dakota, has a provision banning abortion for reasons of fetal disability. So far it hasn't used the law to prosecute anyone — probably because it's nearly impossible to enforce. After all, a woman could always say she's getting an abortion for another reason after she gets a diagnosis of a fetal anomaly.

But the law could have a serious effect on doctors who don't want to get prosecuted, and it could force women to cross state lines to get an abortion even in circumstances when doctors would recommend it.

The same goes for race- or sex-selective abortions, which seven states have now banned — hard to prosecute, but still likely to have a chilling effect. There's also no good evidence that such abortions are common in the United States, and reproductive justice advocates say that banning them is a bad idea because it encourages racist stereotypes against Asian women.

3) It bans fetal tissue research

No clinics in Indiana even participate in fetal tissue research right now, nor do most abortion clinics nationwide. But Indiana legislators apparently wanted to ban the practice just in case somebody wanted to start.

Fetal tissue research has been used as a cudgel against abortion providers ever since this summer, when anti-abortion activists released propaganda videos claiming that Planned Parenthood illegally "sells baby parts" to researchers.

The claims were unsubstantiated, the videos were heavily doctored, and the activists have been indicted on criminal charges. Yet the videos are still being used to attack Planned Parenthood, as well as the scientists who use fetal tissue to conduct crucial research on chronic diseases.

4) It beefs up some of Indiana's existing anti-abortion laws

Indiana already requires doctors to have "admitting privileges" with a local hospital, or at least a written agreement with another doctor who has such privileges. Laws like these have closed down abortion clinics in states like Texas, because admitting privileges can be fiendishly difficult for abortion providers to get.

Allowing providers to piggyback on another doctor's admitting privileges makes it a little easier. But now Indiana wants to make doctors renew those agreements in writing every year, and requires those agreements to be on file with other hospitals nearby. That, advocates say, is an attempt to shame and intimidate doctors who associate with abortion providers, and an attempt to make the process more difficult.

Indiana also already requires doctors to give women "informed consent," or counseling, before getting an abortion. And doctors have to deliver the information in person, 18 hours before an abortion is performed. That means a woman has to make two doctor appointments.

"Waiting period" and "informed consent" laws like this are very common. More than half of states have laws like this, and many of them — including Indiana — actually force doctors to lie to women about the risks of abortion as part of the "informed consent" process.

Now Indiana is adding two things to its informed consent process: a mandatory ultrasound (which half of all states require), and information about "perinatal hospice services" (which the anti-abortion lobbying group Americans United for Life came up with in 2010, and which a few states like Arizona and Oklahoma have passed).

Indiana already required women to get an ultrasound before an abortion and have the "opportunity" to view the images. Now it's just requiring the ultrasound to happen 18 hours ahead of time, along with the other "counseling" that's designed in part to discourage women from getting an abortion.

The perinatal hospice thing, though, is pretty unusual and arguably a bit cruel. Remember how women can still get an abortion if they have a "lethal" fetal anomaly? Before they do that, they have to sign a form confirming that they've learned about counseling services for women who are planning to give birth to a baby with a deadly anomaly.

To be clear, perinatal hospice services exist to comfort women who would prefer to make that choice and carry the pregnancy to term rather than end it early. There's nothing wrong with the services themselves. But making women learn about them before they decide to have an abortion suggests to a grieving mother-to-be that her choice isn't valid.

At the end of the day, many of the provisions in Indiana's new law feel like this. Some of them may have serious consequences for abortion access in the state — causing clinics to close, increasing costs or red tape, making doctors more afraid to do their jobs or women more afraid to seek their services. But they also feel more like official statements of principle against abortion than anything else — statements designed to shame women who choose abortion in the process of making it harder to get.


Correction: This article originally reported that "disability" could include lethal fetal anomalies like anencephaly, where a fetus is missing parts of its brain. In fact, the law doesn't prohibit these abortions, but does require women to learn about perinatal hospice services first before getting them.

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