On September 22, 2017, U.S. District Judge Tanya Walton Pratt, in Planned Parenthood of Indiana and Kentucky et al. v. Indiana State Health Department Commissioner et al., permanently enjoined enforcement of a 2016 Indiana law regulating abortion (www.courthousenews.com/wp-content/uploads/2017/09/IndianaAbortion.pdf ).
The two key provisions of the law declared unconstitutional were 1) a prohibition on abortions for reason of sex selection or due to disability of the unborn child and 2) a requirement of burial or cremation of fetal remains. (A third provision, also invalidated, related to informing women about Indiana’s non-discrimination provisions.)
Abortions performed because the child is the “wrong” sex disproportionately target females because of a preference for males (particularly in firstborn children) among certain ethnic groups. Although not without error, modern diagnostic techniques allow the identification of disabilities like Down’s syndrome well before birth. As is already evident in some European countries, the elimination of disability is being achieved by the prenatal elimination of the disabled.
Now, normally for the Left, discrimination based on sex—especially against women—or disability is prohibited in thought, word, and deed. Outward acts of discrimination are outlawed. Inward thoughts of discrimination can be considered aggravating factors for hate crimes. Expressing discriminatory ideas incurs social censure and, increasingly, the censorship of political correctness.
But all that goes out the window when it comes to the uber-right: abortion.
To admit that sex-selective or disability-motivated abortions discriminate suggests the unborn child is human—someone who can be discriminated against—and that thought is forbidden. Indeed, Judge Pratt, an Obama-appointee, relentlessly insists that Roe and Casey both establish an absolute right to pre-viability abortion, regardless of motivation. Indiana’s invitation to the court to examine how modern technology provides information that may lead women to seek abortion for reasons not envisioned at the time of Roe was dismissed out-of-hand: There is a priori no specific cause exception to “a woman’s right to choose an abortion . . . which . . . leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice” (p. 11, emphasis original).
A state trying to operate within Roe’s Potemkin Village of “interest in potential life” is always doomed to failure because, prior to viability, “‘the State’s interests are not strong enough to support a prohibition of abortion’” (p. 12, quoting Casey). For Judge Pratt, no claim of discriminatory intent, based on sex or disability, could ever prevail because we must put faith in Roe’s fiction about not knowing when life begins.
If the state has no “interests” in “potential” life before the courts admit that life is actually there—that is, not until viability—neither can the state have an interest in any “potential” death. The Indiana law imposed strict requirements on abortuaries’ disposal of fetal remains, stipulating they must be buried or cremated. State policy, the law’s defenders said, was to treat “fetal remains the same as other human remains” and, specifically, that they not be incinerated like “infectious and pathological waste.”
That was too much for plaintiff Planned Parenthood, for two reasons. First, to treat “fetal remains the same as other human remains” implies that those remains are human, which is heresy against Roe’s dogmatic agnosticism concerning life. Second, “thar’s gold in them there livers and spleens and tissues,” just waiting to be sold to the highest bidder—preferably over a good Merlot and Caesar salad (www.lifenews.com/2015/07/14/shock-video-catches-planned-parenthoods-top-doctor-selling-body-parts-of-aborted-babies/ ).
Although Judge Pratt admits the burden of proof lay on plaintiffs, and that Indiana needed only to assert a rational purpose for its policy, she then proceeded to swat down the Hoosier State’s case. Indiana could not demand that fetal remains be treated like human remains because fetuses are not persons. Roe may say it doesn’t know when life begins but the same opinion also says unborn children are not legal persons. Countering Indiana’s claim that “it is a ‘biological fact’ that embryonic fetal tissue is a ‘human being,’” (p. 18, scare quotes original), Pratt insists the “Supreme Court . . . has not reached the same conclusion. Whether or not an individual views fetal tissue as essentially the same as human remains is each person’s own personal and moral decision” (ibid., emphasis original).
Even as minimal an assertion as Indiana’s, that fetal remains are “like” human remains, is denied. The state’s concessions are used against it. Indiana imposed its disposal requirements on abortuaries but not on individual pregnant women (presumably because most women do not drop their dead fetuses in the nearest trash bin). That distinction, and the fact that the rules allow for collective fetal cremation (but only by exception for collective cremation of adults) are interpreted by the court as reasons why fetal remains are not like other human remains. Finally, if there is any doubt, apply Roe’s meaningless “State interest in potential life” principle: “any legitimate interest the State has in a potential life during a pregnancy is no longer present once the pre-viability pregnancy is terminated; and thus, it does not have a legitimate State interest in treating fetal tissue similarly to human remains” (p. 19).
It’s not enough that the unborn child is dead: Nothing, no special treatment of the remains, must be allowed, even post-mortem, to suggest he or she was ever alive.
Relax, Planned Parenthood: Your lucrative supply of body parts won’t be disrupted, especially if, whenever the subject of fetal trafficking comes up, you manage to refocus attention on (quoting Judge Pratt) your “preventive primary-care services” (p. 2).