In an action shedding only limited light on where it now stands on abortion, the…
Could IN abortion case make a dent in ‘Roe’?
As the 46th anniversary of the Supreme Court’s legalization of abortion approaches, the court is being asked to reconsider its refusal to recognize the humanity of the unborn. Pro-life groups hope the court — now believed to have a majority of pro-life justices — will see its way clear to at least some correction of the 1973 decision on this point.
The new case, from Indiana, concerns a state law with two provisions. One requires that the remains of aborted fetuses be buried or cremated, rather than disposed of as medical waste. The other bars abortions performed solely on the basis of race, sex or fetal disability.
The fetal remains provision in particular is seen as potentially opening the way to a fresh look at the Supreme Court’s 1973 Roe v. Wade decision, which sidestepped the question of whether the unborn are human beings.
The case, Box v. Planned Parenthood of Indiana and Kentucky, comes to the Supreme Court on appeal from a decision last April by a panel of the U.S. Court of Appeals for the Seventh Circuit. The panel split 2-1 on the fetal remains provision, with one judge voting to uphold it, and unanimously rejected the non-discrimination provision. “Box” in the name of the case is Indiana Health Commissioner Kristina Box.
Indiana is defending the law before the Supreme Court, with Planned Parenthood opposed. Numerous pro-life groups have filed briefs urging the court to consider the case. For that to happen, the votes of at least four justices are required.
The precedent of ‘Roe’
In Roe v. Wade, decided 7-2 in January 1973, Justice Harry Blackmun considered the status of the fetus in his opinion for the court. Noting that the Constitution does not define “person” in so many words, Blackmun said it is not clear that the term used there has “any possible pre-natal application.” And, he added, most pre-1973 criminal laws against abortion were of relatively modern origin, dating only from the late 19th century.
Putting the two things together, Blackmun said “person” as used in the Fourth Amendment guaranteeing equal protection and due process of law “does not include the unborn.”
The opinion also took note of the question of when human life begins, but it did so only to say that the Supreme Court “need not resolve” it and was “not in a position to speculate” about the answer.
The Indiana law that the court is now being asked to consider was enacted by the state legislature in 2016 after it was disclosed that a medical waste disposal company was handling the disposal of the remains of fetuses aborted in abortion clinics. The law was signed into law by then-Governor Mike Pence, who is now vice president.
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Indiana’s case does not go as far as pro-life groups would like — full recognition of the unborn as persons — but it represents a first step. Pro-lifers were buoyed by the confirmation of Brett Kavanaugh as a member of the Supreme Court in the belief that he could be the fifth vote in a pro-life majority. The others are Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
By no means, however, is it a foregone conclusion how all these would vote on a new abortion case, inasmuch as several abortion-related decisions since Roe v. Wade — notably, Planned Parenthood v. Casey in 1992 — back Roe’s finding of a constitutionally protected right to abortion. Whether the Supreme Court takes the Indiana case and how it decides could shed important light on where it now stands.
The state’s brief to the Supreme Court says the “premise” that underlies the law’s provision requiring burial or cremation of fetal remains is that “an aborted or miscarried fetus is nothing less than the remains of a partially gestated human and should be treated with the same dignity.”
Support for the case
Eighteen states with similar laws have joined in a brief asking that the court consider the Indiana case. The states are Wisconsin, Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia. Also joining the brief is the governor of Mississippi.
The Seventh Circuit court’s decision exhibits “unprecedented, unlawful hostility to the states’ authority to honor human life and dignity,” the states’ brief says.
Another brief, filed by the pro-life organization Americans United for Life and the Charlotte Lozier Institute, the education and research arm of the Susan B. Anthony List, argues strongly for the humanity of the unborn.
“Without regulations,” it says, “medical practitioners are free to dispose of human fetal remains by incineration with medical waste, by dumping in landfills, and even by burning the remains to generate energy.” In response, it adds, the Indiana law “recognized the simple biological fact that human fetuses are human beings.”
Citing medical literature to support that, the AUL-Charlotte Lozier brief says “fetuses by definition are not egg, sperm, or mere tissue; they are unborn human beings… . Although unborn humans develop in their mother’s womb and are dependent on their mother for survival, they are separate and unique human beings” with unique DNA.
Furthermore, the brief says, apart from abortion, federal and state laws commonly recognize the humanity of the unborn.
So, for instance, the Unborn Victims of Violence Act makes it a federal crime to kill or cause bodily injury to an unborn human in utero, and 38 states treat the killing of an unborn human as homicide.
The brief says the Seventh Circuit court erred in confusing the “humanity” of a fetus with the question of whether it is a “person” as the 14th Amendment understands person. “A human fetus is a human being … whether or not he or she is legally considered as a ‘person’ for purposes of the 14th Amendment,” it says. “Thus, this court need not reach the issue of ‘personhood’ under the 14th Amendment to agree that human fetuses are human beings” deserving dignified disposal of their remains.
Of course any further action first depends on the court’s acceptance of the case — a point that is being watched closely by pro-life groups.
Russell Shaw is an OSV Contributing Editor.