Cook County Record

Sunday, December 8, 2019

Appeals court: Indiana law barring abortions on basis of race, sex, disability unconstitutional; Dissent: Abortion now 'super-right'

By Jonathan Bilyk | Apr 20, 2018


A federal appeals court in Chicago has struck down an Indiana state law supporters argued was needed to extend anti-discrimination protections to unborn children, making it illegal for women and practitioners to perform an abortion strictly on the basis of the race, sex or potential disability of a fetus.

The ruling declared U.S. Supreme Court precedent on the question of women’s access to abortion left the court little room to declare otherwise. And that overriding case law, one of the appellate judges said, which prevented even Indiana’s “noble attempt to protect the most vulnerable members of an already vulnerable group,” serves to demonstrate again “the extent to which abortion has become the most favored right in American law.”

On April 19, a three-judge panel of the U.S. Seventh Circuit Court of Appeals declared unconstitutional Indiana’s law making illegal any abortions performed simply because a mother would rather not birth a child of a particular race or sex, or a child with Down’s syndrome.

The law also required abortion providers to inform pregnant women seeking abortions of the law’s provisions barring such selective abortions performed with such potentially discriminatory intent.

The court’s majority decision was authored by Circuit Judge William J. Bauer, with Circuit Judge Joel M. Flaum concurring. Circuit Judge Daniel Manion issued a separate opinion, concurring and dissenting with parts of the majority opinion.

The law was challenged by a Planned Parenthood affiliate organization, which operates abortion clinics in Indiana and Kentucky.

Challengers asserted the law violated the right to abortion enshrined in Supreme Court decisions, beginning with Roe v Wade. In particular, Planned Parenthood argued the Indiana law violated the right to access to abortion established in the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which declared Roe’s “essential holding” centered on the right of women to choose to abort a fetus at any point before the unborn child achieves viability.

A federal judge in Indiana agreed, and that decision was upheld on appeal.

“The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason,” the appellate judges said.

Indiana had attempted to argue around the Casey holding, asserting Casey “only reaffirmed a woman’s ‘binary choice’ of whether or not to have a child prior to viability.”

“In other words … Casey only recognized a privacy right in the binary decision of whether to bear or beget a child, but that right is not extended to the decision to terminate a particular child,” the judges wrote, summarizing and paraphrasing arguments presented by Indiana’s Solicitor General.

But the judges said not even discriminatory intent against particular a particular race, sex or disability status can be used to impinge on women’s access to abortion, the judge said, saying Casey made clear states have no “compelling interest” in defending the rights or status of any fetus before they achieve viability.

“We cannot reweigh a woman’s privacy right against the State’s interest,” the judges wrote. “The Supreme Court has been clear: the State may inform a woman’s decision before viability, but it cannot prohibit it.”

Likewise, the judges declared unconstitutional provisions in the law requiring women to be informed of the law’s non-discrimination provisions.

And the judges, by a 2-1 decision, struck down a provision in the law requiring Indiana abortion providers to dispose of the remains of aborted fetuses “in the same manner as human remains.”

They said this requirement runs up against the Supreme Court’s holding in Roe that “the unborn” should not be considered “persons” under the U.S. Constitution’s Fourteenth Amendment.

And the Indiana state law “inherently requires a recognition that aborted fetuses are human beings, distinct from other surgical byproducts, such as tissue or organs,” the Seventh Circuit judges wrote.

“… We cannot identify a rational relationship between the State’s interest in ‘the humane and dignified disposal of human remains’ and the law as written, given that it allows a woman full liberty to dispose of the fetus without restriction, and continues to allow for mass cremation of fetuses,” the judges wrote.

In a separate opinion, Judge Manion agreed the Supreme Court’s prior holdings bind the Seventh Circuit’s ability to uphold even restrictions on abortion rooted in other state interests and individual rights.

Manion said the case “reveals … major flaws of the Casey analysis that combine to produce such an absurd result.”

He said the Casey decision “treats abortion as a super-right, more sancrosanct even than the enumerated rights in the Bill of Rights,” as part of “a body of jurisprudence that has made abortion the only true ‘super-right’ protected by the federal courts today,” adding abortion is “now a more untouchable right than even the freedom of speech.”

“The purported right to an abortion before viability is the only one that may not be infringed even for the very best reason,” Manion wrote. “For an unenumerated right judicially created just 45 years ago, that is astounding.”

He said this is due to a nearly insurmountable legal test imposed on potential abortion restrictions in Casey, which evaluates abortion restrictions soley on “how effective the statute will be at limiting abortion.”

“If we applied this standard to other constitutional claims, no plaintiff would ever lose,” Manion wrote.

The judge said the result of the decision in the Indiana case “begs for the Supreme Court to reconsider” both Roe and Casey, or, short of that, “it is at least time to downgrade abortion to the same status as actual constitutional rights.”

Manion also dissented on the question of the law’s provisions concerning the treatment of fetal remains, saying the court went too far in finding Supreme Court precedent bars states from establishing rules for the treatment of those remains.

Contrasting such a holding with the continued legality of fetal homicide laws, Manion said: “It makes no sense to say that States may value the dignity of an unborn child in some instances, but not if the pregnant woman wants to abort her. Simply put, the fact that the unborn are not persons under the Fourteenth Amendment does not prohibit States from recognizing their inherent dignity and humanity.”

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Organizations in this Story

U.S. Supreme CourtState of IndianaU.S. Court of Appeals for the Seventh CircuitPlanned Parenthood Federation of Ameri