Until 2016, aborted fetal remains in Indiana were treated like other surgical waste—they were burned up in an incinerator or dumped in landfills. Indiana decided that had to change, and passed the bill that mandated more humane treatment: burial or cremation. Then-Governor Mike Pence signed it into law.
The law also contained other pro-life provisions that would prohibit abortions based on the sex, race, or disability of the baby. The ethically problematic notion of using abortion to produce “designer babies” strikes many people as a bridge too far.
Both parts of the law were challenged in the federal courts and blocked by the U.S. Court of Appeals for the Seventh Circuit. Indiana appealed to the U.S. Supreme Court, which rendered a two-part decision this week, without holding oral argument.
As to the portion of the law dealing with the disposition of fetal remains, the Court reversed the 7th Circuit, finding that Indiana had a “rational basis” for the law. Since the law did not affect the “right to abortion,” the Court said, it did not have to be reviewed under the stricter standard of whether it created an “undue burden” on such a right.
As to the other section of the law prohibiting sex-, race-, and disability-based abortion struck down by the 7th Circuit, the Supreme Court declined to hear that portion of the case, which allows the 7th Circuit ruling to stand. Since this was the first time a U.S. Circuit Court of Appeals had looked at such a law and ruled on its constitutionality, the Supreme Court explained, it was invoking its own long-established practice of waiting until other Circuit Courts have heard and decided similar cases before taking on an issue like this.
Although Justice Clarence Thomas agreed with how the Court decided to handle this latter issue, he wrote a lengthy concurring opinion arguing that sooner or later the justices would have to look at the issue of eugenics and abortion, specifically discussing the history of eugenicist Margaret Sanger, the founder of Planned Parenthood. In his words, “Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die. Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Noted Indiana pro-life lawyer James Bopp, Jr., in an email to supporters, praised Justice Thomas’ concurring opinion for “exposing the true motives of Planned Parenthood’s abortions as a ‘tool for modern-day eugenics.’ Although the Court is unwilling to consider the non-eugenics law now, there is real hope for consideration in the future.”
Let’s hope that day comes sooner rather than later.
The case is titled Box v Planned Parenthood of Indiana and Kentucky.