By Dave Andrusko
Pro-lifers in Indiana are applauding the decision by Attorney General Curtis Hill to ask the Supreme Court to review and reverse a lower decision overturning the state’s law banning abortion for the sole reasons of the child’s race, sex, national origin or a potential disability such as Down syndrome.
In addition, the historic “Dignity for the Unborn Act,” also known as HEA 1337, prohibits abortion businesses from treating the remains of unborn child as common medical waste. Both provisions were blocked in late 2017 by Judge Tonya Walton Pratt, an appointee of President Obama. AG Hill is contesting that conclusion as well.
The bill was signed into law in 2016 by then Gov. Mike Pence. The lawsuit against HEA 1337 was then brought by Planned Parenthood and the American Civil Liberties Union
Last April, in a split 2-1 decision, a panel of the Seventh U.S. Circuit Court of Appeals upheld Judge Pratt.
“On behalf of unborn children and women, we extend our thanks to Attorney General Curtis Hill and the State of Indiana for bringing the Dignity for the Unborn Law all the way to the Supreme Court,” said Mike Fichter, President and CEO of Indiana Right to Life. “We urge the Supreme Court to take up this case. We cannot fathom that the high court will agree with Planned Parenthood’s arguments that it is constitutional to target unborn children for abortion because of their sex, race or a Down syndrome diagnosis.”
In his 41 page brief Hill did not challenge the right to have an abortion, but rather the “right” to abort “a particular child.”
[U]ntil this case no court has ever extended Roe and Casey to the decision of a woman otherwise willing to bear a child to terminate her pregnancy because she finds a particular child unacceptable—i.e., to the decision of which child to bear. Indeed, Roe specifically disavows “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” Accordingly, it was entirely reasonable for Judge Easterbrook to point out that “[u]sing abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.” More particularly, Judge Easterbook observed, “[n]one of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
To the contrary, in Gonzales v. Carhart, the Court already permitted a ban on one particular “type of abortion” that “implicates additional ethical and moral concerns that justify a special prohibition.” Whereas Gonzales approved banning a particular method of abortion, Indiana’s antidiscrimination law bans particular reasons for abortion.
With respect to the requirement that the remains of aborted babies be disposed of the same manner as the remains of any other human being, in his dissent Senior Judge Daniel Manion of the Seventh Circuit wrote, “That part of Indiana’s law rationally advances Indiana’s interests in protecting public sensibilities and recognizing the dignity and humanity of the unborn.”
He added, “[T]he panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”
Hill noted, “the Eighth Circuit held that requiring that fetal remains be treated the same as human remains is valid.” He added, “Judge Manion pointed out in his dissent that ‘[T]he Indiana and Minnesota laws are substantially similar in every material respect,’ and ‘the same state interest is involved in both cases.’”