INDIANAPOLIS — The federal appeals court in Chicago has affirmed a district court ruling that the 2016 Indiana law limiting the right to abortion and requiring abortion providers bury or cremate fetal remains is unconstitutional and cannot be enforced.
A panel of three Republican-appointed judges on the 7th U.S. Circuit Court of Appeals unanimously agreed that House Enrolled Act 1337 violated well-established Supreme Court precedent that a woman may terminate her pregnancy prior to viability for any reason.
The statute, enacted by Republican former Gov. Mike Pence, prohibited a woman from obtaining an abortion if the decision to terminate her pregnancy was based on a diagnosis, or potential diagnosis, of fetal disability or abnormality, or due to the race, color, national origin, ancestry or sex of the fetus.
The state argued that given advances in genetic screening, for conditions such as Down syndrome, it has an interest in prohibiting discrimination against disabled fetuses and others that would be part of a protected class upon birth.
The judges, however, concluded the issue already is settled.
"We cannot reweigh a woman’s privacy right against the state's interest," they said. "The Supreme Court has been clear: the state may inform a woman's decision before viability, but it cannot prohibit it."
At the same time, the judges diverged on the fetal remains issue, with two of the three holding that the law's requirement that aborted fetuses be disposed of in the same manner as human remains violates due process because the Supreme Court repeatedly has ruled that a fetus is not a person.
But Judge Daniel Manion, in his partial dissent, said the state has an interest in protecting public sensibilities, and requiring aborted fetuses be treated different than other medical waste appropriately recognizes "the dignity and humanity of the unborn child."
Republican Attorney General Curtis Hill declined to comment on the ruling. He still can request the U.S. Supreme Court review the decision.
Ken Falk, ACLU of Indiana legal director, said it was crystal clear from the moment the legislation was approved by the Republican-controlled General Assembly that it was unconstitutional.
"The one cardinal principle in abortion jurisprudence, as established by the U.S. Supreme Court, is that a woman has the absolute right — prior to viability — to determine whether or not to obtain an abortion," Falk said. "Indiana sought to invade that right."
PPINK President Christie Gillespie likewise said she was confident the courts would strike down the 2016 law.
"Every person deserves the right to make their own personal decisions about abortion," Gillespie said. "There was no medical basis for these restrictions."
Sue Swayze Liebel, vice president of public affairs for Indiana Right to Life, admitted the ruling was a "setback" in what she described as "the civil rights battle of our time."
But she added that she's hopeful Hill will appeal the decision to the Supreme Court so the justices have a chance to "side with Indiana's right to recognize civil rights protections for children in the womb."