Michael Wear: The abortion debate is no longer about policy
In a remarkable feat of procedural legerdemain, the Court made the issues disappear. It decided that the “fetal remains” provision could take effect because the court below had used the wrong standard to decide the issue, and continued an injunction on the “non-discrimination” law—while claiming to express no view on its validity.
The law at issue in Box v. Planned Parenthood of Indiana and Kentucky was passed in 2016 and signed by then-Governor Mike Pence, who said at the time that it would “ensure the dignified final treatment of the unborn and prohibit abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability, including Down syndrome.” Soon after, a panel of the Seventh Circuit struck down both provisions. The “non-discrimination” provision, it reasoned, contravenes 1992’s Planned Parenthood v. Casey, which held that state laws may not impose an “undue burden” on a woman’s choice. The Casey Court explained that, under that standard, abortion before viability is the pregnant woman’s decision alone; the state does not get to evaluate her reasons.
“The [non-discrimination] provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose,” the Seventh Circuit panel majority wrote. Thus, they “are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.”
As for the “fetal remains” provision, the panel majority said, there was no need to apply the Casey standard, because the law was irrational. Until its passage, abortion clinics had been allowed to incinerate fetal remains along with other human tissue, such as organs removed during surgery. Under the new law, fetal remains, unlike cadavers, could receive “simultaneous cremation” rather than individual disposal—but they could not be removed from the facility without a “permit for the transportation and disposition of a dead human body.” The woman who obtained the abortion could also take the remains herself and dispose of them as she chose.
Read: A pastor’s case for the morality of abortion
Indiana argued that the “fetal remains” provision embodied the state’s “moral and scientific judgment that a fetus is a human being.” But since Roe v. Wade, the panel majority noted, Supreme Court precedent has held that states cannot impose this doctrine of “fetal personhood” on women seeking abortion. “Simply put, the law does not recognize that an aborted fetus is a person,” the panel wrote.
Indiana petitioned the Supreme Court for review, arguing that:
The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus. The non-discrimination provision, on the other hand, is a qualitatively new type of abortion statute that responds to new technological developments allowing women to make a choice not contemplated at the time of Roe v. Wade: the choice of which child to bear.
On Tuesday, the Court—for now — reversed the “fetal remains” decision, allowing that part of the law to take effect. A 1983 Supreme Court case had said that states do have a “legitimate interest” in “dignified disposal of human remains.” Thus, the Court reasoned, the finding of irrationality was an error. The Court implied that the “fetal remains” provision should in fact have been judged under the Casey standard.