Tomorrow the Supreme Court is scheduled to decide whether to grant review of a Seventh Circuit ruling that blocks the state of Indiana from enforcing provisions of a recently enacted law regulating abortion. Indiana’s certiorari petition presents two questions: (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
The full Seventh Circuit divided evenly on whether to grant en banc review on the first question. In a strong dissent from the court’s denial of rehearing en banc, Judge Frank Easterbrook, joined by Judges Diane Sykes, Amy Coney Barrett, and Michael Brennan, disputed the panel’s rulings on both questions. (Easterbrook’s dissent begins on page 5 here.)
With respect to the disposal-of-fetal-remains provision: Easterbrook contested the panel’s conclusion that the validity of the provision turned on whether human fetuses are “persons” under the Fourteenth Amendment. Rather, as he starkly put it, the panel “held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” Further, in so doing, it created a conflict with an Eighth Circuit ruling.
On the second provision, which he aptly labeled the “eugenics statute,” Easterbrook explained that “None of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children,” and he faulted the panel for “imput[ing] to the Justices decisions they have not made about problems they have not faced.”
In a powerful Public Discourse essay, Notre Dame law professor Carter Snead and his Center for Ethics and Culture colleague Mary O’Callaghan urge the Court to “confirm the modest proposition that the Fourteenth Amendment of the US Constitution—originally aimed at advancing the cause of equality among people—does not forbid states from acting to prevent invidious and lethal forms of discrimination against the disabled.” As Snead and O’Callaghan explain, the Court may so rule “without revisiting the highly controversial precedents of Roe v. Wade and Planned Parenthood v. Casey.” The Seventh Circuit’s ruling “leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a ‘moral duty’ to eradicate them, that we are ‘better off’ without them, and that their value can be calculated in dollars and cents.” Snead and O’Callaghan conclude:
We have been here before, and history has taught us in the bleakest of terms the chaos and moral depravity that flow from this way of thinking. The stakes associated with the Court’s silence are too high, and it therefore has a duty to correct this error with all haste.