Supreme Court could agree to hear as early as January 4 a challenge to Indiana law banning abortions of babies diagnosed with a disability

By Dave Andrusko

This week the legal publication, The Indiana Lawyer posted a story reminding us that the justices of the Supreme Court will meet for their first conference of 2019 on January 4.

At that time they begin consideration of what cases the High Court will hear in 2019, which would include Indiana’s HEA 1337. That law, signed by then-Gov. Mike Pence, bans abortion for the sole reasons of the child’s race, sex, or a potential disability such as Down syndrome. HEA 1337 requires that women be informed of this prohibition as part of Indiana informed consent process.

HEA 1337 also requires that abortion clinics bury or cremate the remains of aborted babies in a dignified fashion.

Four of the nine justices must vote to accept a case, according to the Supreme Court rules.

In their brief, the ACLU and Planned Parenthood of Indiana and Kentucky (PPINK) argued HEA 1337

imposes an undue burden on a woman’s right to choose an abortion because it bars that choice under certain circumstances, even if the pregnancy is in its early stages and the fetus is not viable. Compelling employees of abortion clinics to inform women as part of the informed consent process of something that is clearly unconstitutional is, in turn, unconstitutionally compelled speech that violates the rights of both the clinic and its employees and patients.

With respect to humane disposal of the remains of aborted babies, the ACLU and PPINK maintain that the mandate “that the fetal tissue after a first-trimester abortion be treated differently than other medical material” violates “both due process and equal protection.”

18 attorneys General and the governor of Mississippi filed a “friend of the court” brief, laying out the case why HEA 1337 is constitutional.

Indiana Attorney General Curtis Hill filed a separate brief. Among the many powerful arguments, here are three:

*In his 41-page brief, Hill observed

[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, Hill cited the dissent of Senior Judge Daniel Manion of the Seventh Circuit. Manion 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.

*In their 38-page brief, the 18 state AGs and the governor of Mississippi explained why “a State may ban the invidiously discriminatory practice of aborting unborn children solely because of their race, sex, or disability diagnosis” and why that 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.