The Supreme Court will decide Friday whether to review the case of an Indiana law banning abortions performed solely because the unborn child has Down Syndrome or another disability.
In October, the Indiana Department of Health filed a request to the Supreme Court to hear the case of Commissioner of Indiana Department of Health v. Planned Parenthood of Indiana, to rule whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
An Indiana judge ruled in September 2017 for abortion giant Planned Parenthood in a suit brought against HEA 1337, a state law banning gender-selective abortions and those based on a prenatal diagnosis of disabilities such as Down syndrome.
U.S. District Court Judge Tanya Walton Pratt, an Obama appointee, issued a permanent injunction against Indiana’s “Sex Selective and Disability Abortion Ban,” which was signed into law in 2016 by Governor and now Vice President Mike Pence.
The law prohibited abortions based on the sex or race of the child or a prenatal diagnosis of “Down syndrome or any other disability.” The law also required that the remains of aborted babies be disposed of in a dignified fashion proper to human remains, rather than merely thrown out in the trash.
Two Notre Dame scholars published an essay in the journal Public Discourse Wednesday arguing that it is time for the Supreme Court to provide some much-needed clarity to the “vexed jurisprudence of abortion,” especially by “confirming the modest proposition that the Fourteenth Amendment of the US Constitution—originally aimed at advancing the cause of equality among people—does not forbid states from acting to prevent invidious and lethal forms of discrimination against the disabled.”
In their essay, O. Carter Snead and Mary O’Callahan note that Indiana law HEA 1337 “mirrors those passed by Ohio, Louisiana, and North Dakota” and that several other states have introduced analogous bills.
“Like other states, Indiana lawmakers wished to curtail the use of prenatal technologies to screen unborn children, which are used to target those with disabilities for termination in a modern-day form of eugenics,” the authors observed.
While in recent years Iceland and Denmark have aborted virtually all unborn children prenatally diagnosed with Down Syndrome, the United States “does not lag far behind,” they state, “with rates hovering around 67 percent.”
The present state of affairs has induced advocates and scholars to begin “acknowledging the negative message that these selective abortions send about the value and equality of individuals with disabilities already living and working in the world,” the article states.
Indiana’s legislation sought to combat discrimination against people with disabilities or perceived defects targeted by selective abortions.
“Moreover, these anti-discrimination laws are strongly aligned with much-admired federal laws, such as the Americans with Disabilities Act of 1990, which aims to provide a ‘clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,’” the authors observe.
“Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics,” the authors conclude.
“The stakes associated with the Court’s silence are too high, and it therefore has a duty to correct this error with all haste,” the state.
If the Court decides to hear the case, it will be the first on the issue of abortion since the confirmation of Supreme Court Justice Brett Kavanaugh.
The case is Box v. Planned Parenthood of Indiana and Kentucky Inc., docket number 18-483 of the U.S. Supreme Court.
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