While the Supreme Court of the United States has yet to agree to hear an abortion rights case this term, a petition from Indiana regarding its law regulating the disposal of fetal remains and prohibiting women from terminating their pregnancies based on race, sex or disability remains under consideration.
Indiana filed a writ of certiorari after the 7th Circuit Court of Appeals upheld a preliminary injunction against House Enrolled Act 1337. Gov. Mike Pence signed the bill in April 2016, but before the law could take effect, Planned Parenthood of Indiana and Kentucky successfully argued the statute was unconstitutional.
Since the state filed its Supreme Court petition in October 2018, many organizations have filed amici curiae briefs in support of Indiana. The Americans United for Life, the Thomas More Society and the Pro-Life Legal Defense Fund, along with several states including Wisconsin, Alabama, Georgia and Ohio, are among the groups urging the justices to take the case and rule in favor of the Hoosier state.
Planned Parenthood, represented by the American Civil Liberties Union of Indiana, filed its response brief on Dec. 4. However, the case, Commissioner of the Indiana State Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, et al., 18-483, has not been distributed for conference.
At issue are two provisions in HEA 1337. The first provision regulates the disposal of fetal remains, requiring health professionals to either bury or cremate the embryonic and fetal tissue. At the same time, it also allows women to handle the remains themselves and use any method of disposal they want. The second provision prohibits women from terminating their pregnancies solely on the basis of race, sex, national origin, ancestry or the diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.
At the 7th Circuit, the three-judge panel split on the first provision. Senior Judge Daniel Manion dissented on the fetal remains decision, arguing “Indiana has a significant interest in recognizing the dignity and humanity of the unborn child.”
To the Supreme Court, Indiana echoed Manion’s conclusion.
The argument is that since the Indiana General Assembly concluded a fetus is “morally and scientifically human,” the state is acting within its power in ensuring aborted and miscarried fetuses are treated with dignity. The interest in the remains arises because the fetus had the potential to grow into a fully-formed human being and, therefore, the state has a legitimate reason for requiring distinctive treatment of fetal remains “so long as it does not interfere with the right to an abortion.”
PPINK countered Indiana’s regulation oversteps the Supreme Court’s rulings. While the justices have recognized that states have an interest in “protecting the life of the fetus that may become a child,” they have never extended that interest to “embryonic or fetal tissue following an abortion or miscarriage” where the potential for human life is no longer there.
Moreover, PPINK argued, the 7th Circuit was correct when it found Indiana’s fetal disposal provision is not “rationally related” to the state’s asserted interest. The health services provider highlighted the fact that even though Indiana claims it seeks to treat fetal remains like human remains, it permits a woman to dispose of the tissue in any manner she chooses, and it allows the medical facility to dispose of the remains from multiple pregnancies together.
“Indiana cannot propound an interest in treating embryonic and fetal tissue as if it were human remains while not treating it ‘in the same manner as other human remains,’” PPINK’s brief argues.
As for the second provision, Indiana contends it is not limiting a woman’s right to get an abortion. Rather, the state argues the Supreme Court has upheld the right to bear or not bear a child, but the court has never extended its rulings to cover abortions by women who are willing to have a child but decides to terminate her pregnancy because of particular characteristics the fetus exhibits.
“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,” Indiana asserts in its brief, referencing Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). “It regulates women who have already made the decision ‘to bear or beget a child,’ but simple do not want to bear a particular child.”
PPINK contends Indiana is ignoring precedent.
The Supreme Court has held a pregnant woman has the right to choose to have an abortion before viability and to obtain it without undue interference from the state, PPINK argues. Indiana is claiming this right is contingent on the reason for the termination, and the state chooses which reasons are acceptable and which are not. Under this scenario, if Indiana determines the woman’s reason is unacceptable, then PPINK says her right to decide whether or not to have an abortion “simply does not exist.”