By Dave Andrusko
Late last month NRL News Today reported that a coalition of 18 state attorneys general, led by the Wisconsin attorney general, along with the governor of Mississippi had filed a 38-page friend of the court (“amicus”) brief asking the High Court to uphold Indiana’s HE 1337—the “Dignity for the Unborn Act” —which had been overturned by Obama appointee Judge Tonya Walton Pratt.
As you recall, in 2016 HE 1337 was signed into law by then-Governor Mike Pence. The law bans abortion for the sole reasons of the child’s race, sex, national origin, or a potential disability such as Down syndrome.
The law was quickly challenged by Planned Parenthood and the American Civil Liberties Union, and Judge Pratt dutifully obliged. Last April a divided panel of the Seventh U.S. Circuit Court of Appeals upheld Judge Pratt’s decision.
Now the American Civil Liberties Union of Indiana (ACLU) and Planned Parenthood of Indiana and Kentucky (PPINK) have waded in. The core of their brief was included in excerpts quoted by Dan Carden of The Times of Northwest Indiana:
“Were states permitted to prohibit abortions for what they deemed to be a sufficiently important interest, it would invite impermissibly intrusive government inquiries into individuals’ most private decisions.”
“A woman could be required to demonstrate that she was not seeking her abortion for ‘incorrect’ reasons, and the sincerity of her explanation could become subject to governmental investigation.”
The amicus from the 18 state attorneys general and the governor of Mississippi beautifully summarized the issues at hand and why the law should be upheld beginning with its statement that “The Seventh Circuit’s decision below contains two holdings that, especially when taken together, exhibit an unprecedented, unlawful hostility to the States’ authority to honor human life and dignity.”
Referring specifically to the Anti-discrimination Provisions of HE 1337, the amicus notes that the Seventh Circuit panel invalidated the provision which
prohibits the elimination of classes of human beings through discriminatory abortion based upon race, gender, and disability because, in the Seventh Circuit’s view, [the 1992] Casey [Supreme Court decision] foreclosed any prohibition on pre-viability abortions, no matter the interest being sought, no matter how carefully tailored the law. But the plaintiffs in Casey specifically declined to challenge Pennsylvania’s discriminatory-abortion prohibition, and this Court, accordingly, did not rule upon that prohibition.
Nevertheless, the Seventh Circuit concluded that Casey controlled the outcome in this case because, in the Seventh Circuit’s view, Casey enshrined the right to pre-viability abortion as “categorical.” But this Court has never declared any right to be “categorical,” and Casey itself upheld one type of pre-viability abortion prohibition. Under a proper understanding of Casey’s undue-burden test, the Antidiscrimination Provision furthers the State’s compelling interest in prohibiting the discriminatory elimination of classes of human beings by race, gender, or disability. This issue is ripe for this Court’s review, as [Seventh Circuit] Judge Easterbrook, joined by Judges Sykes, Barrett and Brennan, explained. the amicus argues both that evil the Antidiscrimination Provision is intended to combat is “serious” and that “Iceland is a canary in the coal mine.”
They were referring to the truth, proudly embracing by medical authorities in Iceland that a positive test for Down syndrome results in abortion close to 100% of the time! The amicus also cites the rampant practice of sex-selective abortions in Asia which has resulted in 100 to 160 million “missing” women.
In its concluding paragraph, the brief explains why the prohibition must operate pre-viability:
Finally, that Indiana’s Antidiscrimination Provision includes pre-viability abortions does not affect its constitutionality because the State’s interests do not correspond to the unborn child’s stage of development. In the traditional abortion regulation context, this Court has held that the State’s interest in protecting an unborn child’s life is “not strong enough” to prohibit a pre-viability abortion. [See Casey.] The logic is that the more developed the unborn child, the stronger the State’s interest in keeping that child alive. This reasoning has no applicability where the strength of the State’s interests does not correspond to the unborn child’s stage of development. The State’s interest is the prevention of the discriminatory elimination of classes of human beings; it makes no difference from the point of view of that interest if unborn children with Down syndrome are systematically eliminated at 10 weeks or 25 weeks, if the result is the same.
Genetic screening for Down syndrome now regularly occurs
“as early as 10 weeks” into the pregnancy, well before the unborn child is viable. … So to prohibit effectively the discriminatory elimination of this class of society, the Provision must operate pre-viability.