In a win for pro-choice litigants, the U.S. Supreme Court declared part of an Indiana abortion law unconstitutional and set up another part of it to go down later. The court ruled unanimously in Box v. Planned Parenthood that restricting abortions based on the mother’s motivations is impermissible. At the same time, it ruled the law’s requirement that aborted human fetal remains be buried or cremated should stand and that the Seventh Circuit Court of Appeals erred in its application of the law. The Indiana law in question was signed by Vice President Mike Pence when he was Indiana governor.
Nondiscrimination Provision Banned
Indiana’s law prohibited abortions based on the motivations of sex and race of the fetus and forbade disability-selective abortions. That part was overturned at the District Court and the Seventh Circuit. The new Supreme Court ruling affirms the decisions of those lower courts. Its reasoning was based not in morality, law, or the Constitution, however, but in tradition and a standard the current court has set for itself:
“We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
Since there was no split in the Circuit Courts of Appeals, the Supreme Court is not offering an opinion on that part of the decision. One of the most common paths for a case to be heard by the Supreme Court is if different Circuit Courts have ruled on an issue, with differing outcomes. This is to resolve the obvious crisis with federal law being interpreted completely differently in two jurisdictions.
A medical-waste firm had been accepting and disposing of fetal tissue in Indiana, prompting outrage and the passage of this provision into law. The law required health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation. Can Indiana do that? The answer is yes – for now.
The pro-abortion side lost this part of the case but will very likely win further litigation on the issue. Planned Parenthood argued from the District Court level onward that the Indiana law would not pass “rational basis” review. That test for the constitutionality of laws merely requires a state law need only be “rationally related to legitimate government interests.” It is used for examination of laws where fundamental interests are not at stake, and so the government is not held to the strictest standards of imposing on liberty.
The Supreme Court made quick work of dispatching this argument, declaring that the court “has already acknowledged that a state has a ‘legitimate interest in proper disposal of fetal remains.’”
“The only remaining question, then, is whether Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains. We conclude that it is, even if it is not perfectly tailored to that end.”
Expect to see this law challenged again on a different basis, with a different outcome. Justice Ruth Bader Ginsburg wrote about this, calling it a waste of resources to overturn the circuit court. She said, “I would not summarily reverse a judgment when the application of the proper standard would likely yield restoration of the judgment.”
Margaret Sanger, Call Your Office
A per curiam decision is unanimous but unsigned. The Supreme Court issued one in this case without ever scheduling oral arguments. Justice Ginsburg wrote about the issue of overturning the lower court when surely a new case will be brought that the court will uphold when the proper basis is argued. Justice Clarence Thomas took issue with the entire practice and its use for eugenics purposes. Eugenics is essentially controlled human breeding designed to advance “good” characteristics while weeding out “bad” ones.
Justice Thomas wrote, “[f]rom the beginning, birth control and abortion were promoted as means of effectuating eugenics.” His 20-page statement excoriated Planned Parenthood founder Margaret Sanger for her work on birth control in the black community, including her “Negro Project.” He then detailed the linking of eugenics to birth control and abortion, lamenting where things are and where they are headed: “[t]he individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child.”
After listing a parade of disturbing statistics surrounding abortions around the world and some of the issues they present, Justice Thomas concluded that “we cannot avoid them forever.” Indeed. With Alabama’s ban on abortions as well the wave of “heartbeat” abortion bans, the issue is now center stage in the culture wars and the courts. Expect to see this and other cases at the high court next term. Will Roe fall? That is the hope and dream of the roughly half of Americans who are pro-life. They will get their wish if more than half of the Supreme Court agrees.
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