Today the Supreme Court will vote on whether to consider upholding two Indiana statutes that the Seventh Circuit has struck down. One statute forbids the abortion of unborn children on the basis of their sex, race, or disability. The other requires that the remains of unborn children be buried or cremated. Whether the high court takes up these issues will be another signal about whether the justices are scared to perform their duties in cases related to abortion.
In the Seventh Circuit, Judge Frank Easterbrook, not previously thought to be a passionate social conservative, laid out in a dissent the basic case for upholding the laws. His colleagues nullified the anti-discrimination law because the Supreme Court, in Planned Parenthood v. Casey (1992), ruled that “a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” That decision was binding on the circuit, although the Supreme Court has the power to overturn or modify it. Easterbrook pointed out that the Casey Court did not take up the question — and the Supreme Court has never taken up the question — of whether what Easterbrook calls “eugenic” abortions may be banned. It is one thing for the state to say that it will not prevent any woman from having an abortion before viability, and another to say it will not prevent any woman from having one for any reason.
It is even less clear that Casey stands in the way of the fetal-remains law. It was struck down on two grounds. First, the statute treats fetal remains as though they are the corpses of persons, in violation of Supreme Court cases that have declared unborn children not to be persons, legally speaking. Second, the statute places an “undue burden” on the right to abortion, which Casey defines as putting a “substantial obstacle” in the path of a woman seeking an abortion.
Easterbrook made quick work of the first rationale. His colleagues, he wrote, have “held invalid a statute that would be sustained if it concerned the remains of cats or gerbils.” Just so. Upholding the law does not require finding unborn children to be legal persons. The second rationale is implausible, and in fact a Minnesota law similar to Indiana’s was upheld in 1990 (by the Eighth Circuit) and remains on the books. We therefore have a circuit split on a question of constitutional law, which suggests the Court ought to take up the question.
But abortion is often an exception to the normal rules of our jurisprudence. A few weeks ago, the Supreme Court declined to hear a case involving Medicaid payments to abortion providers, prompting three conservative justices to note, in explicit rebuke of their colleagues, that “some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty.” We will learn in a few weeks whether the Court is taking up either the fetal-remains or the anti-discrimination law. (The initial vote will take place today, but the outcome rarely leaks before being announced later.) At that time we will have additional evidence to evaluate whether the conservatives were right about what’s motivating their fellow justices.