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Indiana abortion petition making eighth SCOTUS appearance, might be inspiring ‘screed’

March 21, 2019

Indiana’s petition for a review of its abortion law has been relisted for an eighth conference at the U.S. Supreme Court, raising suspicions that the case will not be accepted but could bring a fiery dissent.

Since Jan. 4, 2019, the writ of certiorari for Kristina Box et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al., 18-483, has been distributed repeatedly for conference among the nine justices. The central issues in this dispute are the law’s requirement that fetal remains be either buried or cremated and the prohibition against an abortion based solely on the gender, race or genetic abnormality of the fetus.

Indiana appealed to the Supreme Court after the 7th Circuit Court of Appeals affirmed the injunction against the law. The reason for the serial reappearances is unknown, but court observers speculate the petition is getting ensnared in ideological differences.

Linda Greenhouse, New York Times columnist and lecturer at Yale Law School, believes the multiple relistings indicate the Supreme Court is not going to take the case, but she suspects someone is writing a dissent. Her guess is that “(Justice Samuel) Alito and his friends are writing a screed” about why the court needs to accept this case to overturn the Roe v. Wade, which legalized abortion in 1973.

“We’re going to see some kind of writing,” Greenhouse said.

Greenhouse pointed to the statement Alito penned after the court denied certiorari in Kennedy v. Bremerton School District, 18-12. The case involved a public high school assistant football coach, Joseph Kennedy, who would kneel and pray on the 50-yard line after games.

When the school did not rehire Kennedy, he filed a lawsuit in the Western District of Washington in 2016, claiming his First Amendment right to free speech was violated. The 9th Circuit Court of Appeals affirmed the denial of Kennedy’s motion for preliminary injunction.

That case was distributed for conference 11 times at the Supreme Court until it was rejected in January 2019. Alito concurred with the denial of the petition but wrote the case raised an issue the court might want to review in the future.

“What is most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith – even when the coach is plainly not on duty,” wrote Alito, who was joined by Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.

Greenhouse suspected Box v. PPINK will bring the same kind of writing, especially, she noted, since Alito has been using the cert process to advocate for his own agenda.

At Indiana University Maurer School of Law, professor Charles Geyh has similar suspicions, believing the delay in rendering a decision about Box might be linked to a combination of reasons.

Specifically, he speculated Indiana’s petition may be exacerbating the ideological differences on the court, with the justices who are disgruntled by precedent viewing the Hoosier abortion case as a vehicle to do a correction. Also, the justices might be thinking more strategically about whether this is the right time to tackle this controversial subject.

Greenhouse noted there are many abortion-related petitions pending at the Supreme Court as abortion foes continually test the limits. They keep presenting cases to the court, she said, in hopes of finding the right vehicle which will allow a majority of the justices to overturn Roe.

Indiana already has another abortion petition filed with the U.S. Supreme Court. 

Kristina Box, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., 18-1019, is asking the court if a state may require an ultrasound to be performed 18 hours before an abortion as part of the informed consent law. Previously, women seeking an abortion could undergo the required ultrasound procedure on the same day as the abortion. But House Enrolled Act 1337 amended the law to require the ultrasound to be done at least 18 hours before the procedure.

The 7th Circuit affirmed the preliminary injunction, finding the new ultrasound law posed significant undue burdens, such as additional travel expenses, childcare costs, loss of days’ wages, risk of losing jobs and potential danger from abusive partners. Moreover, the appellate panel pointed out, the state presented almost no evidence that the additional time advanced its interest in preventing abortions.

The American Civil Liberties Union of Indiana, which is representing PPINK, has until April 5, 2019, to file a response.

Also, more court fights might be brewing.

Earlier this month, the 7th Circuit lifted an injunction on Indiana’s ban on stem-cell research. In Trustees of Indiana University, et al. v. Terry Curry and Christopher Gaal, 18-1146, 18-1247 and 18-1308, the split appellate panel was not convinced the new statute making the acquisition, sale or transfer of fetal tissue a Level 5 felony was unconstitutionally vague.

Judge David Hamilton disagreed, writing a dissent that was nine pages longer than the majority opinion.

“The statute is fatally vague because its supporters did not pay enough attention to render it intelligible as applied to this medical research, which is the relevant core, not the periphery, of this statute,” he argued.

At the Statehouse, two other abortion-related bills have advanced. House Bill 1211, which places more restrictions on second-trimester abortions, is scheduled for a hearing by the Senate Committee on the Judiciary March 27. Meanwhile, Senate Bill 201, which allows nurses, physicians assistants and pharmacists to be exempt from participating in an abortion on ethical, moral or religious grounds, has been returned to the Senate with amendments. 

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