“Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child,” he wrote of the provision on permissible reasons. “But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life.’”
As for the fetal remains law, Judge Easterbrook wrote that “the panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”
In urging the Supreme Court to hear the case, lawyers for the state said fetal remains were worthy of respectful treatment.
“The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus,” the state’s brief said. It added that advances in genetic testing and concerns about sex-selective abortions justified the provision restricting permissible reasons for the procedure.
Lawyers for Planned Parenthood said the provision governing fetal remains was not rational.
“Indiana claimed that it sought to treat embryonic and fetal tissue like human remains,” the group’s brief said. “But the challenged statute permits a woman to dispose of the tissue in whatever way she chooses, so long as she takes it from the medical facility when she departs.”
In a 20-page concurring opinion on Tuesday, Justice Clarence Thomas echoed and amplified Judge Easterbrook’s dissent. The Indiana law, Justice Thomas wrote, furthered the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
“Whatever else might be said about Casey,” Justice Thomas wrote, “it did not decide whether the Constitution requires states to allow eugenic abortions.”
In its brief opposing Supreme Court review, Planned Parenthood said the restrictions on permissible reasons also made no sense. “Indiana’s view would lead to perverse results,” the group’s brief said. “It would mean that even though states cannot compel a woman to continue a healthy pregnancy, it could compel her against her will to continue a pregnancy where it is virtually certain that the child will die in infancy.”