Pro-life, disability groups support Indiana abortion law at SCOTUS

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Nineteen states and numerous pro-life and disability groups have petitioned the U.S. Supreme Court to uphold an Indiana law prohibiting abortions based on race, sex or disability. The law had been blocked by a lower court in September.

In March 2016, Indiana’s then-governor Mike Pence signed the Dignity for the Unborn law, which would have prohibited elective abortions based on the conditions of race, sex or disability.

It also included a provision that would have required medical facilities to cremate or intern fetal remains of babies who died by abortion or miscarriage.

Supporters of the law have said the state has a compelling interest in preventing discriminatory eugenics practices, especially against children with Down syndrome, who are at high risk for abortion.

The Dignity for the Unborn law was set to go into effect on July 1, 2016, but its enforcement was temporarily blocked by the 7th U.S. Circuit Court of Appeals, after Planned Parenthood of Indiana and Kentucky filed for an injunction. It was permanently blocked by the same court in September, and the law ruled unconstitutional.

Indiana Attorney General Curtis Hill Jr. told local newspaper IndyStar in September that the ruling of the anti-discrimination law as unconstitutional “has cleared the path for genetic discrimination that once seemed like science fiction.”

“This state has a compelling interest in protecting the dignity of the unborn and in ensuring they are not selected for termination simply because they lack preferred physical characteristics,” he added.  

In October of this year, Hill filed a petition with the U.S. Supreme Court, requesting that they reassess and reverse the decision of the circuit court.

“Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses,” Hill said in a statement at the time, posted on the government of Indiana’s website.

“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.”

In his petition to the Supreme Court, Hill noted that the advancement of prenatal testing technology makes the case all the more urgent, as unborn babies who test positive for Down syndrome are at higher risk for abortion - at a rate of about 67 percent in the United States. Some other Western countries have near-100 percent abortion rates of unborn children diagnosed with Down syndrome.

“If the Court demurs, perhaps to wait years and years for a circuit conflict that may never come, then long before the Court takes up the matter the Nation may go the way of many European countries, where fewer and fewer babies with Down syndrome make it to term each year,” Hill wrote.

This month, numerous pro-life and disability rights groups filed friend of the court briefs with the Supreme Court in support of the law, and asking for a reversal of the circuit court decision.

In their brief, pro-life group Susan B. Anthony (SBA) List argued that the Constitutional right to an abortion does not supersede protections against discrimination, and that the Constitution can be upheld while also protecting vulnerable populations.

“The fate of thousands of children with Down syndrome depends on laws like Indiana’s that protect them from being targeted for destruction in the womb. Our nation has fought a long – but still incomplete – battle to expand legal protections and educational and social opportunities for people with disabilities,” President of SBA List Marjorie Dannenfelser said in a statement on the brief.

The brief also notes: “Research has shown that individuals with Down syndrome are among the happiest people in the world and bring tremendous joy to their families. In some Western nations, however, children diagnosed with Down syndrome are on the verge of being eliminated from society through selective abortion.”

The Bioethics Defense Fund, a legal group that advocates for the right to life, also filed an amicus brief with the Supreme Court in support of the Indiana law.

Nikolas T. Nikas, president and general counsel of Bioethics Defense Fund, said in a statement that elective abortions on the basis of sex, race or disability constitute “eugenic discrimination.”

Dorinda C. Bordlee, lead counsel for the fund’s brief, noted in the brief’s argument that the government must protect people against discrimination “from the outset of that human being’s life or not at all.”

Attorney generals from 19 states also jointly filed an amicus brief with the Supreme Court in support of the Indiana law.

“The Seventh Circuit invalidated this law by purporting to find within this Court’s case law a ‘categorical’ right to pre-viability abortion, a right that a State cannot infringe no matter how powerful its interest,” the brief states.

“That conclusion is legally wrong and would perversely place the unenumerated right to pre-viability abortion above even core protections of the Bill of Rights.”

“Surely a State that has the constitutional authority to protect members of the Down syndrome community from being discriminated against in employment or public accommodations can protect that same community from wholesale elimination by eugenic practices,” they added.

They also noted that the anti-discrimination law is seeking to avoid the “evil practices” of countries such as Iceland and Denmark, which have a near-100 percent abortion rate of babies diagnosed with Down syndrome.

The brief filing was led by Wisconsin Attorney General Brad Schimel, with 18 other states joining.

In a statement about joining the brief, West Virginia Attorney General Patrick Morrisey said that the Constitution “gives every state the inherent authority to protect life. That authority extends to enacting laws that prohibit abortion from being used as a tool to eliminate any particular segment of the population.”

Other states joining the brief were attorney generals from Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Governor Phil Bryant of Mississippi.        

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