2021—In a 158-page opinion (in Whole Woman’s Health Alliance v. Rokita), Judge Sarah Evans Barker ducks and sidesteps Supreme Court precedent as she rules that Indiana’s law, enacted in 1973, that allows only physicians to perform abortions is unconstitutional with respect to medication abortions and that Indiana’s requirement that second-trimester abortions be performed in a hospital or an ambulatory outpatient surgical center is unconstitutional. Barker also forbids an informed-consent provision that requires that the woman seeking abortion be advised of the biological reality that a human life begins at conception.
Barker’s holdings illustrate that the undue-burden standard set forth in Planned Parenthood v. Casey (1992) is so irreducibly subjective that it inevitably requires her to indulge, overtly or covertly, her policy preferences. In Barker’s case, those policy preferences aren’t difficult to detect. Barker asserts that the Constitution “includes in poignant judicial parlance the freedom from state-required motherhood.” And she several times states that abortion procedures “empty the contents of the uterus.”