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Marilyn Odendahl for www.theinndianalawyer.com

Indiana’s law mandating that fetal remains be either buried or cremated has been upheld by the Supreme Court of the United States in a per curium opinion issued Tuesday that found the 7^th Circuit Court of Appeals had “clearly erred” in overturning the law.

However, in the same opinion, the Supreme Court let stand a ruling which blocked another Indiana law that would have prevented abortions based on the gender, race or genetic abnormality of the fetus.

The two laws were part of House Enrolled Act 1337, passed by the Indiana General Assembly and signed by then-Gov. Mike Pence in 2016. Both the U.S. District Court for the Southern District of Indiana and the 7^th Circuit stopped the enforcement of those provisions, finding the laws were unconstitutional. Judge Daniel Manion dissented on the fetal remains statute and the appellate court split in denying a petition for an en banc review.

Indiana appealed to the Supreme Court, submitting a writ of certiorari in October 2018 that was subsequently distributed for a conference among the justices 15 times.

Tuesday’s per curiam ruling in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al., 587 U.S.___(2019) was included at the end of the list of orders in pending cases.

In reversing the 7^th Circuit’s fetal disposition ruling, the Supreme Court found Indiana’s stated interests in the disposal of the remains were legitimate. It further concluded Indiana’s law is rationally related to that interest, “even if it is not perfectly tailored to that end.”

Indiana Attorney General Curtis Hill applauded with the court’s ruling.

“The highest court in the land has now affirmed that nothing in the Constitution prohibits states from requiring abortion clinics to provide an element of basic human dignity in disposing of the fetuses they abort,” Hill said in a news release. “These tiny bodies are, after all, human remains.”

Ken Falk, legal director of the ACLU of Indiana, which represented Planned Parenthood of Indiana and Kentucky, Inc., indicated a second challenge to the law might be in the offing.

“The Court’s decision on the provision of the law pertaining to the disposition of fetal tissue may have been struck down had it been reviewed – as subsequent laws in other states have been – based on whether it poses an undue burden on a woman’s right to have an abortion,” he said in a statement. “We will continue to fight to ensure Hoosiers have safe access to abortion.”

Falk explained to Indiana Lawyer that although the Supreme Court found the fetal remains law was not irrational, the per curiam opinion stressed that “if in fact (the law is) imposing (an) undue burden, as other courts have found, that we would have the ability to re-file.”

The court noted Planned Parenthood of Indiana and Kentucky chose to argue the fetal disposition law was subject to an ordinary rational basis review, rather than arguing the law creates an undue burden on women. PPINK and the majority of the 7^th Circuit found that Indiana could not claim a legitimate interest in disposal of fetal remains because the law preserved a woman’s right to take possession and dispose of the remains as she wishes.

But the Supreme Court countered that the 7^th Circuit had “clearly erred” by failing to recognize that the interest for how fetal remains were disposed of is a permissible basis for Indiana’s law.

“We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” the per curiam opinion stated. “This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.”

Justice Clarence Thomas and Justice Ruth Bader Ginsberg issued dueling opinions on the ruling and took aim at each other in their footnotes.

In his concurring opinion, Thomas found the 7^th Circuit’s ruling to be “manifestly inconsistent” with precedent. He asserted neither the Constitution nor any decision from the Supreme Court prevents a state from “requiring abortion facilities to provide for the respectful treatment of human remains.”

Ginsburg dissented from the ruling on fetal remains, arguing, as 7^th Circuit Chief Judge Diane Wood did, that rational basis is not the proper review standard. Instead, she agreed the case implicates and fails the undue burden test as set forth in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).

“It is ‘a waste of th[e] [C]ourt’s resources’ to take up a case simply to say we are bound by a party’s ‘strategic litigation choice’ to invoke rational-basis review alone, but ‘everything might be different’ under the close review instructed by the Court’s precedent,” Ginsburg concluded.

That drew a sharp retort from Thomas who wrote in a footnote that Ginsburg’s dissent from the per curiam opinion “makes little sense.” He asserted that the argument that regulating the disposition of fetal remains might pose an undue burden on a woman’s right to an abortion is difficult to understand since the woman would have already had the procedure.

Ginsburg responded that Thomas’ footnote “displays more heat than light.” She reiterated that the disposal law would impose a cost and potential for the trauma that could constitute an undue burden.

Justice Sonia Sotomayor also dissented but did not write a separate opinion.

The court also declined to review Indiana’s “Sex-Selective and Disability Abortion Ban.” It held the legal issues raised are not appropriate for review because they have not been considered by other appellate courts.

Thomas agreed with the decision to allow the issue to further percolate, but maintained that the Supreme Court will soon need to address such laws since they have the potential to become a tool of “manipulation.”

The bulk of Thomas’ concurring opinion was devoted to this subject, echoing Indiana’s argument that its “anti-discrimination law” is an “anti-eugenics law.” The justice heavily referenced the comments and writings by Planned Parenthood founder Margaret Sanger about birth control being a means of reducing the “ever-increasing, unceasingly spawning class of human beings who never should have been born at all.”

He maintained that while Sanger’s views were not directly referring to abortion, they laid the groundwork for a eugenics argument in support of abortion nonetheless. “Although Sanger was undoubtedly correct in recognizing a moral difference between birth control and abortion, the eugenic arguments that she made in support of birth control apply with even greater force to abortion,” he wrote.

Thomas supports his argument by drawing on articles from the 1880s and early-to-mid 1900s, along with the 1927 Supreme Court decision in Buck v. Bell, 274 U.S. 200, which all supported eugenics. In reviewing a history of eugenics, he asserted minorities and people with disabilities would most likely be aborted, as would females since “certain populations in the United States” prefer to have sons.

“Although the Court declines to wade into these issues today, we cannot avoid them forever,” Thomas concluded. “Having created the constitutional right to an abortion, this Court is dutybound to address its scope. In that regard, it is easy to understand why the (Southern Indiana) District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.”

Public reaction to Monday’s ruling has already been strong. Students for Life of America released a statement calling the decision “half-right” and a missed an opportunity to defend the preborn against discrimination in the womb.

“The Justices got it right that aborted infants need to be buried and cremated respectfully as they are human beings, not trash, but it’s tragic they didn’t see their humanity when they still have a chance at life,” SFLA President Kristan Hawkins said in the statement. “Planned Parenthood and the abortion lobby are probably furious right now about the time and expense now required of them to treat those infants with dignity, but this is long overdue and should be required nationwide.”

PPINK denounced the Supreme Court decision to uphold Indiana’s fetal disposition law, saying the statute had nothing to do with medical care and is intended to shame and stigmatize women asking for abortion and miscarriage care.

“The anti-reproductive health politicians who created these laws to shame patients have no place in the exam room,” Chris Charbonneau, CEO of PPINK, said in a news release. “Planned Parenthood remains vigilant in working to stop the unprecedented rollback of reproductive rights and freedom.

Nearly 40,000 patients relied on Planned Parenthood in Indiana last year to provide a full range of reproductive health care, including safe and legal abortion care,” Charbonneau continued. “While elected officials attempt to score political points by putting the health of Hoosiers in danger, we’ll continue fighting for the rights of our patients and their ability to seek lifesaving care without fear or judgment.”

Vice President Mike Pence also weighed in on the decision, calling it a “victory for life.”

“As Governor of IN I was proud to sign a law that requires remains of aborted babies be treated w/dignity & respect and blocks groups like Planned Parenthood from the horrific practice of selling fetal tissue,” the VP said on Twitter.

“Today, Justice Thomas wrote: SCOTUS has been zealous in the past in barring discrimination based on sex, race, & disability,” Pence added in a second tweet. “Hopeful someday soon SCOTUS will recognize the same protections for the unborn when they rule on future appeals of pro-life legislation.”