UPDATE, May 28, 9:43 a.m.: The Supreme Court on Tuesday without oral argument upheld Indiana’s fetal remains disposal rule and struck down the ban on abortion based on race, sex, or apparent disability of the fetus.
The U.S. Supreme Court on Friday will consider taking the first direct challenge to abortion rights since Brett Kavanaugh joined the bench.
Attorneys for the State of Indiana are urging the Court to overturn a decision that blocks two provisions of HB 1337, an anti-abortion omnibus bill signed into law in 2016 by then-Gov. Mike Pence. One provision regulates the disposal of fetal remains and requires health professionals to either bury or cremate fetal tissue from miscarriages and abortion. Another provision prohibits someone from obtaining a pre-viability abortion if their decision is based on the race or sex of the fetus or concerns that the fetus has a diagnosis or “potential diagnosis” of Down syndrome or “any other disability.”
Reproductive rights advocates challenged the provisions almost as soon as Pence signed them into law. Both a federal district court and the Seventh Circuit Court of Appeals blocked the measures, declaring them unconstitutional. In October, one week after the confirmation of Justice Brett Kavanaugh, attorneys for the State of Indiana filed their appeal with the Roberts Court.
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While Indiana appealed the ruling blocking both measures, the focus of this fight is really on the fetal remains provision, in part because there is no other appellate court decision—let alone a conflicting one—regarding the other measure.
By the Supreme Court’s own standards, there is no good reason for it to take the case. Attorneys for the State of Indiana argue that the Seventh Circuit’s decision is in conflict with a prior decision from the Eighth Circuit Court of Appeals that allowed a Minnesota fetal remains statute to take effect, and that the Court needs to step in to resolve that conflict. But the case in question is nearly 30 years old and involves a fetal disposal statute different than Indiana’s measure. To that end, there’s not the kind of deep, meaningful split among the appellate circuits as to whether or not these kinds of measures are constitutional. Quite simply, there’s not a fight for the Supreme Court to step into.
At least, there is no fight so far. In December, the Eighth Circuit Court of Appeals heard oral argument in a challenge to a series of Arkansas anti-abortion measures, including that state’s fetal disposal requirements. Like Indiana’s, those measures remain blocked.
But unlike the Seventh Circuit Court of Appeals, which has had no issue blocking unconstitutional abortion restrictions, the Eighth Circuit appears to be chomping at the bit for an opportunity to provide the Supreme Court with the pathway to overturn Roe v. Wade. Four years ago, judges from the Eighth Circuit lamented they couldn’t let an Arkansas law banning abortions at 12 weeks take effect. Since then, and thanks to a slew of appointments from President Donald Trump, the Eighth Circuit has only become more conservative, more hostile to abortion rights, and more willing to ignore abortion rights jurisprudence. Just this fall, the Circuit endorsed Missouri measures identical to the Texas ones struck down by the Supreme Court as unconstitutional in Whole Woman’s Health v. Hellerstedt. There’s no reason to think the Eighth Circuit wouldn’t be equally willing to allow Arkansas’ fetal remains measure to take effect, creating just the kind of circuit split the Supreme Court could resolve. But such a decision is unlikely to come for several weeks at a minimum.
These petitions serve a broader purpose, though. They propagate the idea that there’s much more conflict around legal abortion than actually exists. Now that Justice Kavanaugh is on the bench, anti-choice activists clearly think that if they bombard the Court with petition after petition to intervene in fights over state abortion restrictions, the Court will eventually relent and do so.
Even if the Court passes on this case, anti-choice activists will have papered it with amicus briefs suggesting that states like Indiana are well within their rights to use fetal disposal statutes as a means to establish fetal personhood, or that these provisions are necessary to protect the “dignity of the unborn” (while they are silent on the harm these measures cause pregnant people.) In other words, petitions like Indiana’s are as much about arming the conservatives on the Court with sufficient anti-abortion talking points for when it does take up a challenge to Roe as they are about convincing the Court to take this particular case at this particular time.
Frankly, there are bigger abortion rights fights on the horizon which I think will draw the Court’s attention first, such as attempts by conservative lawmakers to ban the most common form of second-trimester abortion: dilation and evacuation (D and E) procedures. Attorneys for the State of Alabama have already appealed a decision by the Eleventh Circuit Court of Appeals to block such a ban in Alabama. Meanwhile, the Fifth Circuit Court of Appeals is currently considering a similar measure out of Texas, and the Eighth Circuit Court of Appeals has before it an identical ban from Arkansas. Litigation challenging similar measures is arising in Kentucky, Mississippi, Kansas, and potentially Louisiana too.
Then there’s the new round of even more restrictive abortion measures teed up by lawmakers in 2019, such as so-called heartbeat bans. These measures ban abortion as soon as a fetal heartbeat can be detected, which can be as early as six weeks, before many people even know they’re pregnant. The Supreme Court has stayed away from the “heartbeat” ban fight once, refusing to step into the fight over Arkansas’ failed ban and leaving the decision permanently blocking it as unconstitutional in place. That hasn’t stopped conservative lawmakers from continuing to advance similar measures in other states, in part to force a direct legal challenge to Roe.
To be sure, reproductive rights advocates should take every abortion rights petition before the Roberts Court seriously, and Friday’s conference is no exception. The Court has a solid conservative majority that is hostile to abortion rights, so every case before it has the potential to cause real harm. But I’m skeptical advocates filed this petition thinking there was a good chance the Court would take the case. Rather, I think it’s less about anti-choice advocacy and more about anti-choice propaganda.
The Court could announce its decision to take or reject the case as early as Friday afternoon.