INDIANAPOLIS — A lawsuit over a 2016 Indiana abortion statute, enacted by now-Vice President Mike Pence, could be the vehicle used by new Justice Brett Kavanaugh, and the U.S. Supreme Court's conservative majority, to dial back abortion rights across the nation.
Attorney General Curtis Hill, a Republican, on Friday asked the nation's high court to overrule two lower federal courts that held House Enrolled Act 1337 unconstitutionally infringed on a woman's right to abortion and imposed irrational requirements on abortion providers for the disposal of fetal remains.
Specifically, a provision of the law — which never took effect — required a pregnant woman who learned her child would be born with Down syndrome, another genetic disease or physical deformities that weren't immediately lethal, to carry the pregnancy to term and give birth.
A doctor who performed an abortion knowing the woman's motivation for terminating her pregnancy was due to a diagnosis, or potential diagnosis, of a genetic fetal anomaly or disability risked losing his or her medical license and could be subject to civil financial penalties under the law.
The statute also prohibited women from obtaining an abortion due to the gender, race, color, national origin or ancestry of the fetus.
U.S. District Judge Tanya Walton Pratt, and later a three-judge panel at the 7th Circuit Court of Appeals, ruled that provision of the law unconstitutional because the U.S. Supreme Court repeatedly has held that women have the freedom to choose abortion prior to fetal viability, or approximately 24 weeks gestation, for any reason or no reason at all.
"We cannot reweigh a woman’s privacy right against the state's interest," said the Republican-appointed appellate judges. "The Supreme Court has been clear: the state may inform a woman's decision before viability, but it cannot prohibit it."
Hill argued in his request for Supreme Court review that Indiana has a legitimate interest in preventing fetal discrimination, particularly against the disabled, and the court should allow the state to bar certain abortions that he said amount to "eugenic manipulation."
"The right to abortion declared by our Supreme Court protects only the decision not to bear a child at all, not a right to decide which child to bear," Hill said. "Our nation knows only too well the bitter fruits of such discrimination."
Hill also is asking the Supreme Court to allow a second halted provision of the 2016 law to take effect that required abortion providers to ensure fetal remains not taken home by abortion patients were buried or cremated similar to dead bodies, rather than incinerated through sanitary medical waste disposal.
The federal district and appellate courts struck down that obligation by finding the state did not have a rational basis for mandating fetal remains be treated the same as human remains, since the Supreme Court has made clear that a fetus is not a person under the U.S. Constitution.
Hill disagreed: "Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses. These tiny bodies, after all, are in fact human remains."
He said the Supreme Court should recognize that the Indiana Legislature "reasonably concluded that a fetus is morally and scientifically human," and the state, as a result, "is well within its power to ensure that aborted and miscarried fetuses are treated with human dignity."
Hill noted that a similar Minnesota law requiring burial or cremation of fetal remains previously was upheld as constitutionally permissible by the 8th Circuit Court of Appeals.
So, he said, the Supreme Court needs to step in and resolve the split between the 7th and 8th Circuits by setting a national standard for state regulations on the disposal of fetal remains.
A spokeswoman for the Indiana chapter of the American Civil Liberties Union, which successfully challenged the law on behalf of abortion provider Planned Parenthood of Indiana and Kentucky, did not respond Saturday to a request for comment on Hill's petition for review by the nation's high court.
The Indiana ACLU will have 30 days to file a response brief with the Supreme Court once Hill's filing officially is docketed.
The Supreme Court, in most years, only agrees to hear about 2 to 3 percent of the cases appealed to it.
This case, however, may have a better shot than most because the high court has yet to address the anti-discrimination and fetal remains provisions in the Indiana law that since have been enacted in similar form by Republican legislatures in other states.
In addition, Not only did the Republican vice president sign the contested statute into law as Indiana governor, but Pence repeatedly has called for Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide, to be overturned and consigned to the "ash heap of history."