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U.S. Supreme Court still reviewing Indiana’s abortion petition

March 12, 2019

The wait continues as Indiana’s petition asking the U.S. Supreme Court to review a pair of controversial prohibitions on abortion has been redistributed among the nine justices for a seventh conference.

Indiana’s writ of certiorari in Kristina Box, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et. al., 18-483, has been relisted for the March 15 conference. The petition was first distributed for conference Jan. 4, 2019, and has made a regular appearance since.

At the center of the petition are two provisions from Indiana House Enrolled Act 1337, passed and signed by then-Gov. Mike Pence in 2016. The first provision requires the aborted or miscarried fetal remains to be buried or cremated, while the second provision bans abortion on the basis of the gender, race or disability of the fetus.

“The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus,” the state wrote in its petition. “The non-discrimination provision, on the other hand, is a qualitatively new type of abortion statute that responds to new technological developments allowing women to make a choice not contemplated at the time of Roe v. Wade, 410 U.S. 113 (1973), or Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992): the choice of which child to bear.”

A permanent injunction was granted by the U.S. District Court for the Southern District of Indiana in September 2017, enjoining the state from enforcing the provisions. That decision was upheld by a split panel of the 7th Circuit Court of Appeals in April 2018.

The American Civil Liberties Union of Indiana, which is representing PPINK, filed a response brief, asserting a review was not necessary because the 7th Circuit’s decision was based on “well-settled principles.”

In particular, the ACLU of Indiana pointed out while the U.S. Supreme Court has recognized states have an interest in protecting potential human life, it has never extended that interest to fetal tissue after an abortion or miscarriage. Also, the ban on an abortion based on a woman’s reason is contrary to U.S. Supreme Court precedent, ACLU argued. Previous opinions from the high court held that a state may not prohibit a woman from making her own decision to terminate a pregnancy before viability.

“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,” the ACLU of Indiana asserted in its response brief. “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.”

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