Two weeks ago, the Indiana legislature passed House Bill 1337, which amends the Indiana Code and increases the regulation surrounding both abortion and miscarriages.
The bill received attention on the national level by groups that are, unsurprisingly, opposed to it on the grounds that it aims to restrict access to abortions in the state of Indiana. But within Indiana, even state representatives who are staunchly pro-life, expressed opposition to the bill’s passage.
Rep. Sean Eberhart (R-Shelbyville), who is pro-life, described the passing of the billas “a perfect example a bunch of middle-aged guys sitting in this room making decisions about what we think is best for women.”
Rep. Wendy McNamara (R-Evansville) said that “It saddens me and makes me sick to my stomach to be up here right now. It's bills like these that make people like me really hate the system.”
Rep. Cindy Kirchhofer (R-Beech Grove) described the bill as “government overreaching. We haven’t done a proper process to vet this.”
There are three questions raised by the bill that I encourage you to ask your representatives (find their contact information here) and Governor Pence (who has not yet signed the bill). These are questions that a responsible legislator should want to have an answer to, if they don’t have it already. And the third question seems to demonstrate that relevant medical experts were not consulted during the writing of the bill.
First, are hospitals, clinics, and women who miscarry at home expected to arrange for the burial or cremation of miscarried fetuses? This question gets to the untold implications of the bill’s increase in regulations.
HB1337 removes an aborted or miscarried fetus [Note] from the biological materials that can be incinerated or otherwise disposed of by a hospital or clinic (amendments to IC 16-41-16-4 and 16-41-16-5). It goes on to require that "a person or facility possessing either an aborted fetus or a miscarried fetus” must arrange for final disposition (added section IC 16-41-16-7.6), and explicitly requires that an aborted fetus (but says nothing about miscarried fetus in this section) “must be cremated or interred” (added section IC 16-34-3-4).
Because neither an aborted nor a miscarried fetus can be disposed of by the other means available to the hospital or clinic, the implication is that both an aborted and a miscarried fetus must be cremated or interred as well. But would that also legally require a woman (that is “a person . . . possessing . . . a miscarried fetus”) who miscarries at home at 5 weeks gestational age to arrange for internment or cremation?
Many women who miscarry (and their partners) are already experiencing a loss. This additional mandate will exact an emotional toll that requires justification. The logistical (who should be contacted after the miscarriage?) and financial (who’s paying for all this?) implications are also significant here.
Second, what are the plans to avoid bias and prejudice in determining the motives of a woman seeking an abortion? This goes to the unfair application of the bill’s provisions.
Motives are notoriously opaque, sometimes even to the individual who is acting. And yet, HB1337 expects health care practitioners to glean motives on a routine basis, prohibiting practitioners from performing abortions when “the pregnant woman is seeking the abortion solely” [emphasis mine] for reasons of sex selection, a diagnosis of Downs Syndrome, or “any other disability” (added section 16-34-4). This puts practitioners in an impossible position. There are no tools available to reliably determine someone’s motives, leaving practitioners to guess. These guesses, dependent as they will be on the practitioner’s emotional intelligence as well as the cultural similarities between the practitioner and the patient ensure that bias and prejudice will play a role.
Third, what does it mean for a fetus to have a “mental disease” (added section 16-34-4)? This question gets to the fact that appropriate medical experts did not provide meaningful input.
I encourage you to Google the term “mental disease.” What you’ll see is results discussing “mental illness.” As the Mayo Clinic puts it: “Mental illness refers to a wide range of mental health conditions — disorders that affect your mood, thinking and behavior.” Even with my limited understanding of human development, I know that a fetus cannot have this kind of condition since it lacks a mood, the ability to think, or any meaningful control of its behavior.
These questions all point to my most substantial concern about HB1337. Not only was it passed without proper vetting, as Rep. Cindy Kirchhofer (R-Beech Grove) put it, but it is a sloppily written bill that suggests a general lack of professionalism on the part of its authors and supporters. The bill’s implications for women who miscarry are not clear, and they may be heartless. The bill will have uneven effects on different cultural and socioeconomic groups. And the bill seems to lack basic vetting by appropriate experts in medical science.
Some will cast this kind of Targeted Regulation of Abortion Providers (TRAP bills as they are called) as the cowardly and insidious incrementalism of those refuse to accept the legal right to abortion. Others will cast this kind of TRAP as the courageous fight to protect the lives of the unborn. But in Indiana, people on both sides of the abortion debate should be opposed to HB1337 because of its unclear implications, its invitation to unjust application, and its lack of meaningful input from appropriate medical experts.
[Note]: Indiana Code describes a “miscarried fetus” an an unborn child, irrespective of gestational age. This of course, cuts against the medical definition of “fetus”, which only uses the term fetus after around 10 weeks gestational age.
Abraham Schwab, PhD
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Abraham Schwab is an associate professor of philosophy and a medical ethicist at IPFW.
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