Indiana’s recent request for the nation’s highest court to review an abortion law struck down by federal courts has some legal watchers wondering whether the case could be a gateway for dismantling of abortion rights.
The Indiana attorney general’s office filed a petition for writ of certiorari with the U.S. Supreme Court on Friday, 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. The case is Planned Parenthood of Indiana and Kentucky Inc. v. Commissioner of the Indiana State Department of Health, et al., 17-1883.
Signed into law by then-Governor and now Vice President Mike Pence, House Enrolled Act 1337 would have barred women from obtaining an abortion based on gender, race, or disability of the fetus. An additional component of the law would have required aborted fetal remains to be buried or cremated if in the possession of a healthcare facility or clinic.
Attorney General Curtis Hill defended both components in the petition, 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.
Fetal remains provision
Hill argued that the 7th Circuit’s denial of the Indiana law directly conflicted with a “substantially similar” decision made by the 8th Circuit Court of Appeals in Planned Parenthood of Minn., which upheld a Minnesota law requiring healthcare providers to cremate or bury aborted and miscarried fetal remains.
“Applying the rational-basis test, the Eighth Circuit held that requiring that fetal remains be treated the same as human remains is valid,” Hill’s petition states.
“While the Seventh Circuit held that ‘the State’s interest in requiring
abortion providers to dispose of aborted fetuses in the same manner as human remains is not legitimate,’ … the Eighth Circuit said that, even assuming the statute’s purpose was to equate fetal remains with human remains, ‘we do not find it to be an invalid purpose.’”
Hill further contended that the Indiana legislature rationally concluded “fetal remains should be buried or cremated separately from mere medical waste because they are distinct human beings.”
Hill’s petition also contended that access to new medical technology has allowed women to choose which child 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,” the petition says.
But Indiana University Maurer School of Law professor Dawn Johnsen said this is not an unheard-of approach in 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.
She’s not surprised that Indiana is the first state to bring an abortion case before the recently changed U.S. Supreme Court. But this case, Johnsen said, appears more extreme than others.
“It’s not a question of people talking about chipping away at Roe,” she said, “this goes right at the heart of Roe.”
Regarding the non-discrimination provision, Johnsen said that for a state to list a number of so called “unacceptable” reasons requires intrusion into any reason a woman would have for obtaining an abortion. “So that clearly is a direct challenge to Roe vs. Wade in a way some other restrictions are not.”
As the potentially first abortion case to appear before the newly constituted court, Johnsen noted that this case could be a vehicle to dramatically restricting abortions. But, she added, there would be no way to uphold HEA 1337 without dismantling Roe.
Co-author of the original law itself, Rep. Ronald Bacon, R-Chandler, said that he is a “very pro-life and very anti-abortion” individual. Which is why he requested the attorney general appeal HEA 1337’s denial.
“I was a part of a group that sent him a letter asking him to review it,” Bacon said. The state representative said he is very pleased with Hill’s decision to take the case to the high court.
“They said it’s unconstitutional and I don’t disagree with the court totally, because I know abortion is legal,” Bacon said. “But we made the law, we passed the law, and for the courts to turn around and go against us, is, in my opinion, not right.”
Johnsen questions, however, if the high court will take the case at all.
“I would think that the new Supreme Court with Justice Kavanagh would be very reluctant to uphold a law this extreme that would require the equivalent of an overruling of Roe,” she said. “I wouldn’t be surprised if the court finds a way to not take the case.”
She said she thinks it’s important to note that Hill is rushing to be the first to bring the law before the new Supreme Court with Justice Kavanaugh.
“It’s also of course notable that it’s brought by an attorney general who is facing calls to resign because of his own sexual misconduct, calls from his own party, including the governor,” Johnsen said. “So that on the heels of Brett Kavanaugh’s flawed confirmation process because of credible allegations of sexual misconduct, I can’t imagine that’s the case they would want to take.”