By Alec Brown
The moment we have all been waiting for may soon be upon us. Where will Justice Kavanaugh land in a Supreme Court case on the issue of abortion and could it be a sneak peek of things to come with Roe v. Wade? The State of Indiana intends to find out.
Indiana has filed a petition for writ of certiorari to have the Supreme Court review an injunction against House Enrolled Act (HEA) 1337. HEA 1337 was signed into law in 2016 by then-governor Mike Pence and does two important things. First, it requires the remains of aborted babies to be disposed of similarly to other human remains (i.e. through burial or cremation). Second, the act prohibits discriminatory abortions, meaning doctors would not be permitted to perform abortions solely motivated by the baby’s race, sex, or possible disabilities.
The ACLU of Indiana, on behalf of Planned Parenthood of Indiana and Kentucky (PPINK), challenged the law and was able to win an injunction, arguing that the law inhibits a woman’s constitutional right to an abortion.
In Commissioner of Indiana Department of Health v. PPINK, the law was determined to be unconstitutional by U.S. District Judge Tanya Walton Pratt, and the ruling was upheld by the Seventh Circuit Court of Appeals.
The appellate judges insisted, "We cannot reweigh a woman’s privacy right against the state's interest. The Supreme Court has been clear: the state may inform a woman's decision before viability, but it cannot prohibit it."
According to WNDU, Curtis Hill, Indiana Attorney General, said in a statement regarding the decision, “Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses.”
He is obviously correct regarding the legality of the provision, especially considering a similar law was upheld in Minnesota by the Eighth Circuit. He continued by arguing the morality of Indiana’s newest affirmation of human dignity.
“These tiny bodies, after all, are in fact human remains. Further, states have every reason and right to prohibit abortions from being performed simply as a means of selecting the race, sex, or physical condition of a child. The right to abortion declared by our Supreme Court protects only the decision not to bear a child at all, not a right to decide which child to bear. Our nation knows only too well the bitter fruits of such discrimination," Hill said.
Currently, the petition is in the hands of the Supreme Court and awaiting a decision to grant or reject certiorari. In order to grant, at least four of the nine justices must agree the case is within the Court’s jurisdiction and worth hearing. The odds in favor of the Court deciding to hear arguments are good, however, since the case is of national importance and there is a circuit split with the Seventh and Eighth Circuits deciding similar cases differently. Circuit splits are a major consideration when granting certiorari.
Also worth noting is the new makeup of the Court. After a vicious partisan battle, Brett Kavanaugh was confirmed to give the Court a significant conservative advantage.
The left is terrified Justice Kavanaugh’s political leanings and Catholic faith are prime indicators of how he will decide abortion cases. They also frequently cite his decision in Garza v. Hargan, where an illegal alien was denied release for an abortion.
On the other hand, the right is a little less certain. Kavanaugh is a strict structuralist who emphasizes precedent and his opinion in Garza was more of an immigration issue, as he did not question the woman’s “right” to have an abortion. We would be much more confident with a Justice Amy Coney Barrett.
The Court should strike down the injunction and allow Indiana to enforce its law. There is no reason to prevent the state from granting at least some dignity to human life. There is also no precedent, including Roe and Casey, which would allow the taking of a life simply because a person is the wrong sex or race or may have a disability such as Down syndrome. It is bizarre that we have sunk so low morally that this is even a question. Killing a baby because of sex, race, or disability is akin to eugenics.
No matter how this case is decided, or if it is decided at all, it will have a lasting impact on the conversation surrounding abortion in our country. If the Court decides in favor of PPINK and upholds the Seventh Circuit’s injunction, the pro-choice crowd will know that Roe and Casey are likely safe. If the Court decides in favor of Indiana and allows them to enforce its law in full, pro-lifers will be energized at the prospect of overturning Roe and Casey in the future.