By Katie Franklin
Pro-life Hoosiers have a reason to be hopeful, thanks to a recent move by the 6th Circuit Court of Appeals.
Just before Thanksgiving, the court determined that part of a Tennessee law prohibiting abortion because of the child’s sex, race, or diagnosis of Down syndrome, can take effect.
This decision is not the final ruling from the 6th Circuit, as the court still needs to review the full case, but it certainly sends a positive signal to Tennesseans that the court is weighing the law’s constitutionality seriously.
So what does this ruling have to do with Indiana, which is not in the 6th Circuit?
Indiana was, in fact, the first state to pass a law prohibiting such discriminatory abortions. In 2016, then-Governor Mike Pence signed Indiana Right to Life’s House Enrolled Act 1337, banning abortion, under civil rights code, for the sole reason of race, gender, national origin of the mother, Down syndrome or other disability.
“HEA 1337 will ensure the dignified final treatment of the unborn and prohibits abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry, or disability, including Down syndrome,” Governor Pence said in a statement at the time. “Some of my most precious moments as Governor have been with families of children with disabilities, especially those raising children with Down syndrome.”
HEA 1337 was a landmark policy that set the stage for pro-life lawmakers in other states to follow.
But predictably, Planned Parenthood of Indiana and Kentucky sued the state of Indiana in an effort to take down our anti-discrimination law and protect their eugenic legacy.
Consequently, in 2018, the 7th Circuit Court of Appeals struck down Indiana’s law as unconstitutional. The state of Indiana appealed that decision to the Supreme Court and last spring, the Court delivered another disappointment when it declined to hear the case.
However, the Court left a door open. As Justice Clarence Thomas explained, a split in circuit decisions is required for the Supreme Court to weigh in. So far, only one circuit has ruled on a law like ours. Another circuit court would have to rule favorably regarding a similar law for the Supreme Court to settle the matter.
He also explained that prohibiting eugenic abortions presents an issue of “first impression” since the Court has not ruled on a state’s right to restrict eugenic abortions before.
“The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below,” Thomas added. “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.”
As Thomas Messner, a Senior Fellow in Legal Policy at the Charlotte Lozier Institute, explained at the time, the Court’s decision not to hear the case was the second-best outcome pro-lifers could have asked for. By leaving the door open for other states to continue passing prenatal anti-discrimination laws, the Court has left open for itself the opportunity to rule on the issue somewhere down the line.
Indeed, over the last four years, other states have attempted similar pro-life protections for highly vulnerable unborn babies. Ohio passed a law prohibiting abortion for the reason of a Down syndrome diagnosis, and Tennessee passed one that mirrored Indiana’s other protections, as well.
Both are working their way through the 6th Circuit, and the recent decision regarding the Tennessee law gives hope for split circuits and the chance for the Supreme Court to revisit the issue originally posed by Indiana.