Court's Waiting Game on Abortion Draws Mixed Reaction From Pro-Lifers

Court declines discrimination provision but upholds burial for infants

pro-life rally
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May 28, 2019

The Supreme Court declined Indiana's bid to preserve a law forbidding discrimination in abortion, but upheld a provision guaranteeing infants proper burial.

On Tuesday, the Court rejected Indiana's bid to save a law that would forbid abortions obtained because of the race, sex, or disability of the baby. Justices, however, allowed Indiana to enforce regulations that would grant victims of abortion, stillbirth, or miscarriage to be buried, rather than discarded as medical waste. The split ruling in Box v. Planned Parenthood of Indiana and Kentucky drew mixed reaction from pro-life advocates and religious liberty organizations.

Jeanne Mancini, president of the March for Life, was disappointed that justices did not extend specific protections to vulnerable groups. She pointed to those with Down syndrome, who are aborted in about 70 percent of cases following in-utero diagnosis in America and in 90 percent of cases in Europe. She echoed Justice Clarence Thomas's dissent calling the practice a "tool of modern day eugenics."

"Every human life has inherent value and dignity," she said in a statement. "No one deserves to lose her life just because she was born with Down syndrome or because of the color of her skin."

Despite her misgivings with that portion of the decision, she welcomed the Court's acknowledgement that the remains of aborted humans should be accorded a respectful burial. The law will ensure a "more dignified treatment of human remains following the tragedy of abortion."

Americans United for Life focused more on the positives of the ruling than the anti-discrimination portion. The group's attorney Rachel Morrison said in a release that she was delighted the Court had looked favorably on the humanity of the unborn, recognizing the distinction between fetal remains and common medical waste. Indiana took an important step to put a stop to the landfills and incinerators that previously met victims of abortion.

"Without laws like Indiana's fetal remains law, medical providers are free to dispose of human fetal remains by incineration with medical waste, by dumping in landfills, and even by burning the remains to generate energy," she said. "Indiana's law recognizes the simple biological fact that human fetuses are human beings and, as such, should be treated with humanity and dignity whether in life or in death."

Alliance Defending Freedom, a non-profit law firm that focuses on religious liberty, called on more states to follow Indiana's example. ADF Senior Counsel Denise Burke said state governments should treat victims of abortion just as they would those who die in miscarriage, sudden infant death syndrome, or by other natural means.

"Tragically, many states do not ensure that the bodies of miscarried, stillborn, or aborted infants are treated with dignity," she said in a statement. "Unborn infants shouldn't be disposed of as 'medical waste' when they die before birth, regardless of whether their deaths are spontaneous, accidental, or induced."

The landfill, however, is not the only concern. Burke said Indiana's law would also ensure that fetal remains are not harvested for their organs. In 2015, undercover videographers from the Center for Medical Progress exposed a booming trade in the field of baby remains in the abortion industry, wherein body parts are sold to researchers. The public outcry the followed inspired Indiana lawmakers to act, and the Court's acceptance of the provision should "send a message" to other states.

"The broken bodies of aborted infants shouldn't be exploited for scientific experimentation," Burke said. "No incentive or needless opportunity should exist for such gruesome exploitation."

Burke registered her disappointment that the Court could recognize the dignity and humanity of a baby after death, but declined to extend that reasoning to one in the womb. She called the 7th Circuit, which blocked the law, "deeply flawed" in its approach to discrimination. She said such provisions are rooted in common sense.

"It should be unthinkable for an expectant mother to face pressure to abort her baby simply because she is a girl, or because she may have a genetic abnormality like Down syndrome," she said. "No sensible person believes that aborting a baby for these reasons is legitimate, but Indiana's law—which prohibits such death sentences for babies simply because of who they are—is entirely legitimate."

Published under: Abortion , Supreme Court