By Dave Andrusko
Editor’s note. This ran December 20, 2018, and offers background to today’s Supreme Court order.
The headline to a story that appeared on the Facebook page of an Indiana television station is (to pro-lifers) both unsurprising and amusing: “State Leaders Not Giving Up On Reinstating Blocked Abortion Law: Attorney general’s office asks U.S. Supreme Court to overrule a lower court’s decision that the law is unconstitutional.”
Well….of course! Pro-lifers never give up.
Indiana passed HEA 1337, an extremely important piece of legislation targeting the practice of targeting unborn babies diagnosed with a genetic anomaly, most often Down syndrome. That law also required that abortion clinics bury or cremate the remains of aborted babies in a dignified fashion.
You’ll never guess what happened next (actually, yes, you will).
The law was quickly challenged by Planned Parenthood and the American Civil Liberties Union, and (one of their favorites) Judge Tonya Walton Pratt dutifully obliged by overturning the measure. Last April a divided panel of the Seventh U.S. Circuit Court of Appeals upheld Judge Pratt’s decision.
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.”
WIBC’s Eric Berman and Kurt Darling report that on Monday, Indiana Solicitor General Tom Fisher and Attorney General Curtis Hill also filed a brief that
maintains the 2016 law requiring the “dignified disposal” of aborted fetuses is constitutional, contrary to a ruling by a federal judge in Indianapolis and then upheld by the 7th U.S. Circuit Court of Appeals in Chicago.
“With respect to the requirement that healthcare facilities dispose of fetal remains in a humane and dignified way, namely by way of cremation or burial, the federal circuits are in conflict on whether that is a permissible regulation,” Fisher said.
With regard to the practice of eugenic abortions, Fischer told Berman and Darling
“The Supreme Court, I think, has articulated the right to abortion with particular objectives in mind. Namely, the right on whether to have the child or not. Not the right to decide whether you don’t want a child that doesn’t have the characteristics that you like.”
Let’s dig deeper into the very thoughtful 18-page Indiana brief. (All internal citations are omitted for purposes of clarity.)
With respect to the humane disposal of the remains of aborted babies
The Eighth Circuit upheld Minnesota’s fetal disposition statute in Planned Parenthood of Minnesota v. Minnesota. But the Seventh Circuit in this case struck down Indiana’s fetal disposition statute, which is “substantially similar in every material respect.” The result is that Minnesota can require burial or cremation of fetal remains, but Indiana cannot. The decisions reach irreconcilable positions as to materially identical laws, and—particularly given the equally divided en banc Seventh Circuit—only this [Supreme] Court can decide which of these positions is correct.
What about aborting babies because of a diagnosis of Down syndrome or another disability?
Planned Parenthood does not contest this scientific fact. Instead, it argues that “[a]llowing women and their families the freedom to make that decision for themselves is the best way to ensure that the mother and her family will be able to create and maintain an environment in which a disabled child is likely to thrive.” In other words, systematically eliminating children with Down syndrome from our society is preferable to allowing them to be born into the “wrong” families. Surely the Constitution does not require States to embrace this neoeugenic viewpoint.
The brief persuasively argues that banning abortions based on the diagnosis of a disability does not require the Supreme Court to overturn prior abortion decisions:
Accordingly, to prevail here, Indiana need not, and does not, urge the Court to use this case as a vehicle to overturn Roe, Casey, or any other of its abortion precedents. It asks the Court only to address whether the abortion right protected by those precedents is so broad that it safeguards even discriminatory abortions. The Court has never before addressed this issue; it should do so now.