An Indiana lawmaker plans to introduce a bill that would outlaw and criminalize all forms of abortion in Indiana.
State Rep. Curt Nisly said Wednesday he will file so-called “Protection at Conception” legislation when the General Assembly convenes in January.
Under his proposal, all abortions would be a crime and prosecutors could file charges against those who participate in the procedure.
“You would treat the death of an unborn child like you would any other human being,” the Goshen Republican said.
The measure would almost certainly be ruled unconstitutional. The U.S. Supreme Court’s 1973 ruling in Roe v. Wade and subsequent decisions have effectively established a woman’s right to an abortion before viability of the fetus.
“My position is that the Supreme Court is wrong with Roe v. Wade,” Nisly said, “and they don’t have jurisdiction in this manner. This is the state of Indiana asserting the powers that are given to them, specifically in the 9th and 10th Amendments of the U.S. Constitution.”
In situations in which a high-risk pregnancy endangers a woman’s life, he said the proposal would demand that a doctor try to save both mother and child.
“The idea here is always, always try to save the baby,” Nisly said.
Conservative activists emboldened by President-elect Donald Trump’s decisive victory in Indiana are already rallying behind the measure. While they acknowledge the proposal would face legal challenges, they’re holding onto hope that the composition of the bench could change before the case reaches the Supreme Court.
“You don’t know who is going to be there in five years,” said Amy Schlichter, executive director of Hoosiers for Life. “It’s never the wrong time to do the right thing.”
Trump has promised to appoint anti-abortion judges to the high court, and while his own positions on abortion have often shifted, his running mate — Indiana Gov. Mike Pence — has assured abortion opponents that they can trust Trump. The staunchly conservative Pence said frequently during the campaign that he and Trump would send Roe v. Wade “to the ash heap of history where it belongs.”
Whether there is an appetite for legislation at the Statehouse remains to be seen.
Legislative leaders, including House Speaker Brian Bosma and Senate Leader David Long, declined to comment or did not immediately return messages from IndyStar. Gov.-elect Eric Holcomb, who has said he would support anti-abortion legislation if it landed on his desk, also declined to comment.
Ken Falk, legal counsel for the American Civil Liberties Union of Indiana, called the proposal “obviously unconstitutional.”
“I do not think a legislature sworn to uphold the laws of the United States should be introducing laws that are so obviously unconstitutional,” Falk said.
He dismissed the idea that Trump’s Supreme Court picks may eventually overturn Roe v. Wade. While abortion is a polarizing issue, “I’d be surprised if any court would go in and tear down anything that has so clearly and for so long been the law of the land,” he said.
Indiana has been at the center of the abortion debate since Pence signed a measure into law in March that made Indiana’s abortion regulations some of the strictest in the nation. The new law restricts abortions based solely on fetal disability or gender and requires burial or cremation of fetal remains from an abortion or miscarriage.
A federal judge has since suspended the law from going into effect, saying it would likely be found unconstitutional.
The proposal from Nisly is so far-reaching by comparison that it has caused a rift within the anti-abortion movement.
Schlichter’s newly formed group, Hoosiers for Life, is leading the charge for the legislation. Schlichter was the force behind the unsuccessful push last session to ban abortions if the fetus has a detectable heartbeat.
Others lining up behind the bill include Christian speaker Peter Heck and tea party activist Monica Boyer.
“It’s time that Indiana understands that our legislators are not doing all they can to stop abortions in our state,” Schlichter said. “I think it’s time for bold leadership — period.”
But some anti-abortion advocates say the new, hard-charging Hoosiers for Life group is causing a rift in the movement, said Micah Clark, executive director of the socially conservative American Family Association of Indiana.
For example, Indiana’s largest anti-abortion group, Indiana Right to Life, has traditionally advocated a more incremental approach and has yet to support Nisly’s proposal. Mike Fichter, the group’s president and CEO, did not return a phone call from IndyStar.
“They do not think that now is the time for such a move, and that such an effort could set back the life movement,” Clark said. “Hoosiers for Life disagrees and thinks it is time to do everything possible legislatively to protect innocent life regardless of what the courts may or may not do. Perhaps, it is time to assert state sovereignty and push the question back to the Supreme Court to challenge Roe v. Wade.”
Schlichter said any rift is merely the result of different approaches.
“Whenever you are trying to do anything good, there are always different ways to fight the battle,” she said. “There are different strategies, and that’s OK.”