The state of Indiana is asking the Supreme Court to uphold a ban on sex, race, and disability-selective abortion in what may be the first abortion case heard by a now-majority conservative bench.
The state Department of Health filed a request for a hearing in the case of Commissioner of Indiana Department of Health v. Planned Parenthood of Indiana. The suit stems from Planned Parenthood's challenge to Indiana HEA 1337, a state bill that was signed into law by then-governor Mike Pence in 2016. HEA 1337 did two important things: mandate that abortion clinics dispose of aborted children's remains in the same way as other human remains, i.e. through burial and cremation; and banned abortions solely motivated by a child's undesirable sex, race, or disability status.
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Planned Parenthood argued that the bill contravenes a woman's constitutional right to abortion, and the federal district and Seventh Circuit courts agreed (although several circuit judges, including Supreme-Court-hopeful Amy Coney Barrett, dissented). But, Indiana argued in its brief to the Supreme Court, the provisions of the state's bill were well within Indiana's regulatory authority, even under current Supreme Court precedent.
"Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses," Indiana Attorney General Curtis Hill said. "These tiny bodies, after all, are in fact human remains. Further, states have every reason and right to prohibit abortions from being performed simply as a means of selecting the race, sex, or physical condition of a child. 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. Our nation knows only too well the bitter fruits of such discrimination."
The court will now need to consider whether to grant certiorari, which requires four justices to agree that the case is within their jurisdiction and worth hearing. The state of Indiana argued that they ought to because both questions were "nationally important." A circuit split has emerged on the issue of fetal remains, according to Indiana, and the development of new technologies to identify unborn children's disability status brings the court into potentially new territory at the intersection of abortion and antidiscrimination jurisprudence.
One fact, of course, hangs over Indiana v. Planned Parenthood: the recent confirmation of now-Justice Brett Kavanaugh to replace retired-Justice Anthony Kennedy on the Supreme Court. During his tenure, Kennedy was one of the court's fiercest defenders of abortion. He was a co-author of the decisive plurality opinion in Planned Parenthood v. Casey, which preserved the "central holding of Roe," and signed the Court's majority decision in Whole Woman's Health v. Hellerstedt, which prohibited a variety of regulations on abortion clinics. Upon his resignation, many commentators forecasted the end of nationally legal abortion in America.
Based on his conservative record and Catholic faith more generally, many expect Kavanaugh to join the court's other right-leaning justices in opposing Roe and Casey. During his confirmation, opponents pointed to his D.C.-Circuit-Court decision in Azar v. Garza as evidence that he opposed abortion, based on his conclusion that a teenage girl, who had been apprehended as an illegal immigrant, should not be allowed to obtain an abortion in federal custody. But, as with many Supreme Court hopefuls, the new junior Justice has remained publicly mum on the question of his opinions of American abortion law more generally.
Kavanaugh is not the only possible question mark in the SCOTUS abortion opinion tally. Fellow Trump-appointee Neil Gorsuch is presumed to be a vote against Roe, but was similarly quiet on the issue in his federal-bench career. Chief Justice John Roberts has evinced a willingness to oppose abortion in past, as in his dissenting vote in Hellerstedt. But the Chief is also a notorious institutionalist, siding as he did with the court's liberal wing to uphold Obamacare rather than unravel the enormous healthcare law. Given his strong preference for stare decisis, whether or not Roberts will be willing to undo the 50 years of precedent which are based upon Roe is simply unclear.
If the Indiana case is accepted, it will likely be seen by court watchers as an important indicator of the future of Roe and Casey at the court. Although the issues of eugenic abortion and fetal remains will probably not themselves lead to an overturn of existing precedent, they may be the first chink in the jurisprudential armor that the court has previously seen fit to build up around abortion.