Despite Billing as First “Near-total Ban” Pro-Lifers Have Concerns
On August 5th, Indiana became the first state to pass a new law restricting abortion in the wake of the late June Supreme Court decsion Dobbs v. Jackson, which made such legislation possible.
Following the release of Dobbs, which reversed Roe v. Wade and Planned Parenthood v. Casey’s precedent that deemed certain state restrictions on abortion unconstitutional, many states were expected to pass legislation restricting abortion further than had been possible for roughly the last fifty years.
When the state legislature passed the bill S.B. 1 to restrict abortion, Indiana produced the first of these expected results. After being signed by the governor, the legislation quickly earned the nationwide spotlight as the first example of a post-Dobbs, non-trigger law that restricted abortion past what would have been allowed under the Roe legal regime. Citing provisions in the bill that made abortion completely illegal in the state, barring only an explicit set of exceptions, national news sources reported on the passage of the law almost uniformly as a near-total abortion ban—a model for many to come in states with pro-life legislative majorities.
Accordingly, the widely reported reactions to S.B. 1 were similarly strong. Planned Parenthood referred to the legislation simply as an “abortion ban,” announcing that the law would require them to close all their facilities in the state, not noting any of the expectations included in the law. Some of the largest private employers in Indiana released statements treating the law similarly, saying that the “law will hinder [their] ability to attract diverse … talent from around the world” and that they “have expanded their health plans to include travel for [abortions].”
National media outlets reported on pro-life reactions to S.B. 1 less extensively, but one might expect that the movement that built the legislative majority for abortion bans in Indiana through decades of advocacy and political activism would celebrate the news unreservedly. But a closer look shows that pro-life advocates’ reactions to the bill are much more mixed, certainly not just the inverse of the strong condemnations issued by pro-choice interest groups.
These reservations from pro-lifers stem from serious concerns about the breadth of the exceptions included in the law and worries about the enforcement mechanisms of the new ban. In the statement released by the Indiana Right to Life President Mike Fichter, the pro-life group expressed that, while it certainly supports the law being passed because of its potential effect to end up to 95% of abortions in the state and effectively shutter abortion clinics, it “cannot fully endorse … S.B. 1 due to its rape, incest, and lethal fetal abnormality exceptions.”
Notre Dame’s campus chapter of Right to Life, Merlot Fogarty, explained pro-life unease about the law. Fogarty, who was present at the state capitol in Indianapolis when S.B. 1 was being debated, pointed to the lethal fetal abnormality exception in the bill as a particular point of concern. Citing a recent New York Times report, she stated that prenatal testing for some rare lethal fetal abnormalities can be wrong more than 90 percent of the time, and that even then, such exceptions could be characterized as “discriminatory and eugenic.”
Referring to additional exceptions in the bill for circumstances where the fetus was conceived in cases of rape and incest, Fogarty summarized many pro-lifers’ frustrations with the law, saying that “while this bill is a step in the right direction, preborn lives throughout the state of Indiana will be held in the balance of life or death merely due to the circumstances of their conception.” She further defended her opposition to these exceptions saying that “rape is an atrocious affront to the dignity of the human person, but so is taking the life of the innocent child conceived through these unjust means.”
Besides the extent of some of the exceptions included in S.B. 1, Fogarty also criticized some of the provisions in the bill regarding its enforcement and the prosecution of those who violate the law. Specifically, she pointed to the bill’s exemption of physicians from the crime of feticide as a failure of the state’s “duty to protect life in law,” a dereliction that she says puts “countless children’s lives at stake” by allowing “abortionists to continue performing abortions free of penalty.” Lastly, she expressed her disappointment that the final bill did not include a proposed amendment to allow the Indiana Attorney General to step in when local prosecutors refuse to enforce the law, as some local prosecutors have hinted they might.
The depth of the discontent felt by many members of the pro-life movement, even as they win victories that apparently far surpass any in the last several decades, could point to a tension that opponents of abortion will experience in a post-Dobbs world.
Luke Thompson is a junior from Flagstaff, Arizona majoring in the Program of Liberal Studies, political science, and theology. A proud resident of distant Carroll Hall, he can often be found speed walking across campus to avoid being late to class again. Please reach out to him at firstname.lastname@example.org.
Photo from Merlot Fogarty, who was in attendance at the Indiana statehouse during the debate surrounding S.B. 1.