Supreme Court Blocks Indiana Law Banning Abortions on Babies With Down Syndrome. For Now

State   |   Micaiah Bilger   |   May 28, 2019   |   11:18AM   |   Washington, DC

The U.S. Supreme Court refused to hear an appeal Tuesday urging it to uphold an Indiana law that protects unborn babies with Down syndrome from discriminatory abortions. But it may take up a similar case down the road.

The decision means a lower court ruling blocking the law will remain in place, The Hill reports.

Though the ruling was disappointing, the Supreme Court did uphold a second part of the law that requires abortion facilities to cremate or bury aborted babies.

The ruling was 7-2; Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, saying they would have ruled against both provisions, the Washington Post reports.

On the issue of protecting unborn babies from discriminatory abortions, the court wrote, “We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

This leaves open the possibility of the high court hearing an abortion challenge in the future. But it appears that, at least for now, most justices did not want to hear a major abortion case.

Justice Clarence Thomas wrote an opinion urging the court to consider laws that protect unborn babies from eugenics.

“… this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” he wrote. “Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”

Thomas said he believes the court needs to “percolate” on the abortion issue more before hearing a major abortion case.

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Leading pro-life groups were cautiously optimistic about the future of such laws.

Alliance Defending Freedom Senior Counsel Denise Burke told “We had hoped the Supreme Court would take this opportunity to revisit the 7th Circuit’s deeply flawed ruling, which endorses a lethal form of discrimination, as long as it occurs in utero. But we appreciate Justice Thomas’s assessment.”

“It should be unthinkable for an expectant mother to face pressure to abort her baby simply because she is a girl, or because she may have a genetic abnormality like Down syndrome. No sensible person believes that aborting a baby for these reasons is legitimate, but Indiana’s law—which prohibits such death sentences for babies simply because of who they are—is entirely legitimate,” Burke said.

The Indiana case, Box v. Planned Parenthood, involves a 2016 law that prohibits discriminatory abortions based on the unborn baby’s disability, gender or race. It also requires that aborted babies’ bodies be buried or cremated, a measure to prevent the abortion industry from selling or improperly disposing their remains. Then-Gov. Mike Pence signed the law, but Planned Parenthood and the American Civil Liberties Union challenged it.

A court order, upheld by the Seventh Circuit Court of Appeals in 2018, prohibits Indiana from enforcing the law, but the state appealed to the Supreme Court.

Indiana leaders, along with attorneys general in 19 other states, asked the high court to hear the case. In an amicus brief filed in November, the attorneys general argued that states should have the right to prohibit discrimination against all human beings, including those not yet born, the News and Sentinel reports.

Several pro-life and disability rights groups also filed friend-of-the-court briefs in support of the law.

However, Ken Falk, legal director of the ACLU Indiana chapter, claimed a woman alone should be allowed to decide whether to abort an unborn baby, and her reasons for the abortion should not matter.

“[The law] ignores long-settled precedent from the Supreme Court that a woman, not the Legislature, gets to decide whether an abortion is the right decision for her and her family,” Falk said, previously. “The state’s request (for Supreme Court review) is yet another attempt by Indiana elected officials to take that decision out of a woman’s hands.”

Pro-life advocates had hoped the high court would agree to hear the case, with five Republican-nominated justices now making up the majority.

Unborn babies with Down syndrome and other disabilities are discriminated against at alarming rates. Parents whose unborn babies have disabilities frequently report feeling pressured to abort them by doctors and genetic counselors.

The rate of unborn babies who are aborted after a Down syndrome diagnosis is about 67 percent in the U.S., according to CBS News. Some put the rate as high as 90 percent, but it is difficult to determine the number because the government does not keep detailed statistics about abortion.

One of the groups supporting the law, the American Center for Law and Justice, urged the high court to hear the case on behalf of 44 families of children with disabilities.

“Indiana’s law protects children like theirs and recognizes that unborn children deserve protection from invidious discrimination,” the legal group wrote in its brief. “Though many of these families ultimately lost their children, these parents do not consider that to have diminished the importance of the children’s lives.”

Calling the law a ban on eugenic abortions, ACLJ pointed out that many vulnerable parents are pressured into the “irreversible decision” to abort unborn babies with disabilities.

Indiana was the second state to establish a safeguard to protect unborn children with Down syndrome and other disabilities. Eight states also prohibit sex-selection abortions prior to viability.