What happens when anti-abortion activists appropriate the language of anti-discrimination to restrict abortion? We’ll soon find out. In 2016, Indiana, led by then-Gov. Mike Pence, passed a law that prohibits pregnant people from terminating a pregnancy on the basis of sex, race, or disability. It also requires abortion providers to bury or cremate fetal remains.
Indiana’s initial efforts to defend the law in court failed. The state lost at the district court in September 2017, then before the Seventh Circuit Court of Appeals, covering Illinois, Indiana, and Wisconsin, in April. The Seventh Circuit panel, by the way, was unanimous—all three Republican-appointed judges found that Indiana’s law contravened Supreme Court precedent. The Seventh Circuit initially granted an en banc rehearing—that is, a full-court rehearing of the case—then vacated it. This means that the law hasn’t gone into effect as of yet.
Now, Indiana’s Republican Attorney General Curtis Hill has filed a petition for certiorari, a request that the Supreme Court review the Seventh Circuit’s decision. The ACLU and Planned Parenthood of Indiana and Kentucky, who lodged the initial challenge, oppose the petition. Alas, the newly conservative Supreme Court may be eager to take it: Neither of these two most hotly debated elements of the Indiana law have come before the Supreme Court before, and Indiana’s not the only conservative state flirting with measures like these.
The state argues that it’s just getting a leg up on protecting the fetuses that would become part of a protected class upon birth. It’s a strange twist, trying to use anti-discrimination law to discriminate against people exercising constitutional rights. The law’s critics maintain that both the fetal remains provision and the “anti-discrimination” measure place an undue burden on the the right to abortion.
This Indiana law the Supreme Court may confront brings the late Justice Antonin Scalia’s most famous dissent to mind. In that case, he was the lone holdout against licensing an allocation of executive power to a body not controlled by the Executive.
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change ... is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Indiana’s law may cloak itself in anti-discrimination language, but there’s little question it would fundamentally change conservatives’ ability to restrict abortion rights. So, this wolf, too, comes as a wolf.
Just the immediate changes this particular law would usher in are devastating. The purported anti-discrimination provision—or “ban on selective abortion”—would require pregnant people to carry fetuses with abnormalities to term so long as the defect, disease, or deformity wouldn’t be immediately fatal. Doctors who knowingly perform abortions in such situations would risk losing their license and being subject to financial penalties.
If upheld by the Supreme Court, Indiana’s laws would inspire an avalanche of additional restrictions on both pregnant people and abortion providers that venture into ever more private territory.
Just imagine. Under what other circumstances would it be acceptable to force someone to remain pregnant? What other duties could be imposed on abortion providers toward making their work untenably costly and difficult?