Indiana AG’s ingenious defense of state ban on eugenic abortions

By Dave Andrusko

Indiana Attorney General Curtis Hill

I know nothing about the “Indiana Lawyer” other than one of its reporters wrote a very thought-provoking piece on the petition for writ of certiorari Indiana Attorney General Curtis Hill filed with the Supreme Court “requesting that the high court review and reverse a 7th Circuit Court of Appeals decision that found certain provisions of an Indiana abortion law unconstitutional ,” according to Katie Stancombe.

On Monday we wrote about the same writ. It is an exceptionally provocative argument in which Hill brilliantly defended 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. I’ll focus in this post on Hill’s defense of the ban on eugenic abortions performed for the sole reasons of the child’s race, sex, national origin or a potential disability such as Down.

So what does Stancombe’s story add? A great deal, actually. Hill is “arguing that the fetal remains provision is valid and that the non-discrimination provision does not interfere with a woman’s right to an abortion under Roe v. Wade,” she wrote. Naturally pro-abortion law professor Dawn Johnsen responded(as they always do) that Hill’s approach is “attempting to restrict abortions.”

“The cert petition claims this is a whole new idea, modeling after a civil rights statute. And it’s really just a cynical attempt to do what many states did before Roe, and that is to take away from women the right to decide for themselves based on their own circumstances,” Johnsen said.

Etc., etc., etc.

Hill’s argument is “new,” because of the impact of new technology. I’ll begin with quotes that Stancombe draws from the 41 page writ and then add more:

Hill’s petition also contended that access to new medical technology has allowed women to choose which child to bear — namely, whether they choose to abort based on sex, race or disability.

“As genetic testing becomes more widely available and selective terminations of fetuses with disability diagnoses become more common, individuals already living with these same disabilities will no doubt receive the demeaning and stigmatizing message that they are not valued as productive members of society with equal human dignity,” the petition states.

“The non-discrimination provision is a qualitatively new type of abortion regulation, one that neither implicates the concerns underlying Roe and Casey nor burdens the right those cases ultimately protect. It regulates women who have already made the decision ‘to bear or beget a child,’ but simply do not want to bear a particular child.”

Hill ends his brief with this:

Only this Court can correct the lower court’s misperception that Roe and Casey bar this law. Accordingly, the Court should grant certiorari and uphold Indiana’s authority to put an end to eugenic abortions.

It’s a more than decent story and includes Hills conclusion. But it omits other supporting evidences for Hill’s case that HEA 1337 is consistent with Roe and the 1992 Casey decision. For example

[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 [who dissented in 7th Circuit Court of Appeals decision] 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 decision which upheld the federal ban on partial-birth abortions], 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.

Here’s hoping the High Court takes up the case.