Other states must learn from Indiana’s tragic tale.
On Aug. 5, the Indiana Legislature passed, and Gov. Eric Holcomb signed into law, Senate Bill 1. The language of this legislation leaves substantial ambiguity regarding protections for children who are pregnant. It bans almost all abortions. Exceptions include cases of rape or incest (within 10 weeks), lethal fetal anomalies, and the need to protect the pregnant person from death or “serious risk of substantial and irreversible physical impairment of a major bodily function. The term [risk] does not include psychological or emotional conditions.”
The law will eliminate approximately 99 percent of Indiana’s abortions. Will it protect 10 year-old girls, such as the one who recently traveled from Ohio to end a pregnancy resulting from rape? Or minors of any age? Is it consistent with established Indiana juvenile law? Likely not.
When the Indiana Legislature debated this law and mentioned children, the focus was often on the rights of the pregnant child versus the fetus/child, not solely on the well-being of the pregnant child. I wonder if legislators considered already established Indiana law. Is it child abuse to force a child to have a baby? Is it child neglect to refuse appropriate medical abortion care for a minor? I think so—but the Indiana Code may not. It may now also contain internal inconsistencies that other states should avoid, and inconsistencies Indiana could have avoided.
One might argue that a child, Juliet, who becomes pregnant in Indiana is, at the very least, statutorily raped. Therefore, S.B. 1’s rape exception for abortion would apply. However, the age of consent to sex in Indiana is 16—two years before a minor becomes an adult. (Colorado and Hawaii have laws that permit 14 year-olds to offer legal consent. Other states have laws similar to Indiana’s, while others set the age at 17 or 18.)
Shakespeare’s Juliet was 13—but let’s say Indiana’s Juliet is 16. What if Juliet has consented to sex with Romeo and becomes pregnant? Then, Juliet might not fall into the rape exception for an abortion. She consented—no rape.
Moreover, neither her life nor her physical health may be in “serious” jeopardy because of this pregnancy. If she asserts that she cannot “handle” a baby, her mental capacity for the task may not matter. What if she experiences bleeding, high blood pressure, or runs away from home because of her parents’, and the Montagues’, disapproval? None of those factors may make a difference under Indiana’s S.B. 1.
Many Indiana legislators will have no problem insisting Juliet deliver the baby. They will claim that like Juliet, the fetus is a human life, worthy of civil rights protections. Did they consider that forced child labor is involuntary servitude, a violation of the 13th Amendment, federal and state employment laws, and state child abuse and neglect laws?
Moreover, even before the U.S. Supreme Court’s Roe v. Wade decision, the Indiana Supreme Court acknowledged “proper medical care” includes abortion. Arguably, Juliet needs medical care, and perhaps more sex education, not a life-long morality lesson.
What if Juliet experiences bleeding, high blood pressure, or runs away from home because of her parents’, and the Montagues’, disapproval? None of those factors may make a difference under Indiana’s S.B. 1.
It is child abuse to force Juliet to endure nine months of forced labor (to the state and the fetus/child) and delivery. Indiana has previously established law that prohibits physical, emotional or sexual abuse of minors.
According to Indiana Code:
“(a) A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child’s physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving . . . .” (Emphasis added.)
Will these established laws trump the new S.B. 1 law, enacted in the wake of the Supreme Court’s reversal of Roe and Planned Parenthood v. Casey? Will they apply to the state that interferes with the child’s needed care, whether or not the state is a custodian?
While Juliet’s life may not be at risk in the initial trimester, certainly prolonged pregnancy, labor and delivery, increase her risks. If ultimately denied medical abortion care, Juliet could become permanently mentally and physically disabled by the resulting financial, emotional and physical burdens of carrying, delivering and raising the child that will be born.
If ultimately denied medical abortion care, Juliet could become permanently mentally and physically disabled by the resulting financial, emotional and physical burdens of carrying, delivering and raising the child that will be born.
The Indiana Criminal Code also specifies that neglect occurs when a parent or guardian “(1) places the dependent in a situation that endangers the dependent’s life or health; (2) abandons or cruelly confines the dependent; (3) deprives the dependent of necessary support; or (4)deprives the dependent of education as required by law.”
Does this neglect provision apply vis-a-vis the state? Does it apply for children who are wards of the state? A child is in need of services when, among other things, that child is denied “medical care.” Does that provision include appropriate medical abortion care? The questions do not even consider the case of a 10-year-old who may have been raped but, in her own ignorance, does not realize it until after 10 weeks that she is pregnant. Then, it is too late for her to obtain abortion care in Indiana.
Who will care for Indiana’s pregnant children? Who will protect those who become pregnant and those who will be charged with child support for a baby? May other states learn from Indiana’s tragic tale.
For never was a story of more woe, than this of Juliet and her Romeo.
William Shakespeare, ‘Romeo and Juliet’
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