Attention Hoosier Women: Stop Having Sex to Avoid Potentially Breaking the Law!

Last week, in my post “Gov. Pence and Christian Legislators Have Enacted a New Law That Has a Dangerous, Discriminatory Impact on Jewish Hoosiers” (March 28, 2016), I wrote about Indiana’s terrible new abortion law (House Enrolled Act 1337). In that post, I focused on the new law’s provisions concerning prohibition of abortions in the event of a fetal abnormality, in particular the genetic mutation that causes Tay-Sachs. When I wrote that post, I was very much aware of certain other problems with HEA 1337, but I will acknowledge that I hadn’t given much consideration to the full scope of one of those problems. And it is to that issue that I turn my attention today.

I was aware that HEA 1337 (and, if I’m not mistaken another law passed in 2015), requires burial or cremation following an abortion (to be paid for, of course, by the woman getting the abortion). This requirement strikes me as mean-spirited and an attempt to create financial disincentives to abortion (perhaps, if the government showed that it cared about the well-being of children and helping out those families who choose not to abort, that sort of financial disincentive would be unnecessary…). The abortion itself may be a very difficult decision for a woman, but the State of Indiana now wants her to take the extra step of thinking about the disposition of the fetal remains (burial or cremation) as well as providing information about herself into a governmental record. Oh, and as an extra added “bonus,” this law prevents aborted fetal tissue from being used in medical research (because it must be buried or cremated); so much for trying to find cures for just the sort of genetic mutations for which abortions are now prohibited.

But it was in response to a comment I saw online over the weekend (I think it was on the Periods for Pence Facebook page … and you really do owe it to yourself to check out that page and click Like), that I went back and reviewed HEA 1337 again and discovered an even worse provision in the bill. I know that this will be a lot of legalese (which I’ll attempt to parse below), but here is the text of Section 26 of HEA 1337:

IC 16-41-16-7.6 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS[EFFECTIVE JULY 1, 2016]:

Sec. 7.6. (a) This section applies to a person or facility possessing either an aborted fetus or a miscarried fetus.

(b) Within ten (10) business days after a miscarriage occurs or an abortion is performed, a person or facility described in subsection (a) shall:

(1) conduct the final disposition of a miscarried fetus or an aborted fetus in the manner required by IC 16-21-11-6 or IC 16-34-3-4; or

(2) ensure that the miscarried fetus or aborted fetus is preserved until final disposition under IC 16-21-11-6 or IC 16-34-3-4 occurs.

The references to IC 16-21-11-6 (Indiana Code) essentially provide that a fetus must be buried or cremated with certain paperwork completed (though, in the case of a stillbirth prior to 20 weeks of gestational age, a certificate of stillbirth is not required) and the woman need not provide a name for the fetus. The rest of those cross-referenced provisions deal, primarily with transporting an aborted or miscarried fetus to a burial or cremation site.

Now I just know that you are wondering precisely how Indiana defines “fetus”, right? Indiana Code § 16-18-2-128.7 defines “fetus” as “an unborn child, irrespective of gestational age or the duration of the pregnancy.” Indiana Code § 16-21-11-2 defines “miscarried fetus” means an unborn child, irrespective of gestational age, who has died from a spontaneous or accidental death before expulsion or extraction from the unborn child's mother, irrespective of the duration of the pregnancy.”

Uh. Fabulous. And what does “unborn child” mean? I’ve searched the Indiana Code and discovered that phrase appearing throughout the statutes, but I was unable to find a definition of the term. If you have the statutory cite that defines “unborn child” please let me know! But absent a statutory definition of “unborn child” that means something else, given phrases like “irrespective of the gestational age or the duration of the pregnancy” it would appear to me that “unborn child” means any fertilized human egg.

So, anyway, let’s go back to the provision added by HEA 1337. As quoted above, the law requires that a “person … possessing either an aborted fetus or a miscarried fetus … shall: (1) conduct the final disposition of a miscarried fetus or an aborted fetus … or … ensure that the miscarried fetus or aborted fetus is preserved until final disposition …”. And that “final disposition” must be via burial or cremation.

Now think about that for a moment. Let’s say that you’re a woman. You’re pregnant and thrilled about the prospect of starting or adding to your family. And then you suffer a miscarriage. You’re likely devastated by this occurrence. But you also probably understand that not all pregnancies go as planned. According to the Mayo Clinic, about 10-20% of pregnancies end in miscarriage before the 20th week of gestational age. Though saddened by the loss, you also understand that this is a part of life, part of the human condition. But now the State of Indiana has enacted a law to require you to either bury or cremate your miscarried fetus (and fill out paperwork about it). How does that make you feel?

Let’s dive a little further into the scenario. I suspect that many of you are thinking of that miscarried fetus as it might exist around the 20th week of gestational age (or even later). Maybe burial or cremation is appropriate at that stage. I don’t know (though I do think that it’s much more a matter for individual choice rather than for the State). However, what if we think of the miscarried fetus as it might exist as of, say, the 4th week of gestational age … or even earlier?

By that 4th week the fetus has grown to be the size of … a poppy seed. Prior to that, of course, the fetus is even smaller. And let’s not forget that many in the pro-life (anti-abortion) movement, will tell you that (based on their religious views), human life begins at conception (fertilization of an egg by a sperm). Thus, we really need to think about that fetus as it exists even in the moments after fertilization, when it is simply a small cluster of cells.

So what happens when that newly fertilized egg doesn’t implant in the uterine wall and is, instead, expelled as a part of a woman’s menstrual cycle? What happens when that poppy seed-sized 4-week-old fetus miscarries as, recall, 10-20% of pregnancies do? And what is a woman supposed to do if she takes the “morning after pill”?

Well, starting July 1, 2016, a woman in Indiana will have to bury or cremate that fetus (and fill out appropriate paperwork, too).

Consider the problem: A fertile woman has sex (even protected sex; recall that not all birth control is 100% effective). There is a possibility that one of her eggs was fertilized by her partner’s sperm (and let’s not even ask what we should do if the “partner” was a rapist or incestuous family member…). That woman now has a problem. You see, she won’t know if an egg was fertilized and, if one was, whether it implanted. She really won’t know if she’s pregnant for some time, right? But the State of Indiana doesn’t care about that. Nope. Rather, what the State of Indiana cares about is whether, should her unknown pregnancy miscarry, she buries or cremates the bunch of cells and fills out the appropriate government paperwork (nothing like adding a little shame, right?).

I suppose that beginning in July, Hoosier women that want to avoid inadvertently running afoul of the law, need to be sure that they capture their menstrual flow in a box that they then bury in the backyard (though I suspect that kind of burial runs afoul of the law, too; she probably needs to take the box to a licensed cemetery). Or, perhaps, women can install some sort of incinerator in their toilet bowl (though I’m not sure what they should do when they’re not at home…). I mean, what happens if a woman’s period begins when she is at a local business? Who is responsible for the potential miscarried fetus in that case (who possesses the fetus, the woman or the “facility”)? That of course makes me wonder what women who are traveling to Indiana should do (and I’m also wondering why anyone would want to travel to Indiana these days, given the State’s expressed bigotry toward … well, lots of different groups…). I mean, should hotels provide certified disposal boxes? And let’s not even think about national cheerleading competitions at the Convention Center. No. Don’t go there. Yuck.

Of course I recognize that I’m being a bit hyperbolic with this concern. I don’t really think that some overzealous prosecutor is going to start knocking on doors and asking women if they’ve properly disposed of their menstrual discharge. The problem is that laws like this are the result of a legislature that doesn’t take the time to listen to testimony, listen to concerns, think about practical effects of legislation, and then take the time and effort to carefully craft legislation to address the (supposed) concern. And if some woman (or abortion clinic) is eventually charged with failing to comply with this insane law, won’t one of the first defenses be that the woman (or clinic) is being singled out when the law is being ignored by and not enforced against literally millions of Hoosier women?

But remember: Republicans aren’t waging a war on women. Nope. Not in Indiana. Move along.

Please call Governor Pence. Please call your state representative and state senator. And please tell them to stay out of your vagina (if you’re a woman) and out of the vagina of your wife, daughter, mother, and sister (if you’re a human). Tell them to fix our roads and schools and to stop using their religious values to dictate how the rest of us should live.

So long as this law remains in effect, Hoosier women who have sex risk breaking the law. And if that isn’t the ultimate attack in the war on women, then I don’t know what is.