CHICAGO (CN) – The Seventh Circuit struck down Indiana’s law banning abortions motivated by a fetus’ gender, race or disability, which primarily impacted women seeking to abort rather than have a baby with Down syndrome.
Indiana House Enrolled Act 1337, signed into law by then-Governor Mike Pence in March 2016, places an outright ban on abortions that are motivated by race, national origin, gender, ancestry or the diagnosis of a disability.
Planned Parenthood of Indiana and Kentucky and the American Civil Liberties Union immediately challenged the law, winning an initial injunction preventing the law from going into effect, and a final decision finding it unconstitutional in September.
A Seventh Circuit panel of three Republican-appointed judges affirmed that ruling Thursday.
“The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the state may not prohibit a woman from exercising that right for any reason,” U.S. Circuit Judge William Bauer said. “Because the non-discrimination provisions are unconstitutional, so too is the provision that a woman be informed of them.”
The law is most relevant for women who chose to abort their pregnancy after their fetus tests positive for Down syndrome.
Indiana Solicitor General Thomas Fisher told the court at oral arguments in February that the U.S. Supreme Court’s rulings on abortion establish that a woman has the right to choose whether to have a child, but those rights “do not extend to which child she shall bear.”
But Bauer rejected this “binary choice” argument.
“Under this theory, a woman may terminate her pregnancy if she decides before becoming pregnant that she does not want to bear a child at all, but she has no right to terminate the pregnancy if she determines after becoming pregnant that she does not want a particular child,” the 17-page opinion says. “Nothing in Roe, Casey, or any other case from the Supreme Court can be read to limit a woman’s right in this way.”
The panel’s majority also struck down the law’s requirement that the remains of a fetus be buried or cremated as the remains of a deceased person.
“Simply put, the law does not recognize that an aborted fetus is a person,” Bauer said. “As such, the state’s interest in requiring abortion providers to dispose of aborted fetuses in the same manner as human remains is not legitimate.”
U.S. Circuit Judge Daniel Manion, who clearly voiced his personal opposition to abortion at oral arguments, reluctantly joined Bauer’s decision striking down Indiana’s selective abortion law.
He called it “regrettable” that Supreme Court precedent prohibits states from placing limits on abortion “to protect especially vulnerable unborn children.”
He dissented, however, from the court’s ruling with regard to the disposal of fetal remains.
“The fetal remains provision … rationally advances Indiana’s interests in protecting public sensibilities and recognizing the dignity and humanity of the unborn,” Manion said.
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