Reconsider Roe v. Wade, brief urges Supreme Court
A spotlight on Roe could come in the Supreme Court's review of a lower court opinion nullifying a state law that bars discrimination against certain classes of unborn children, such as sex, race and disability, according to a brief filed Nov. 15.
The ERLC and four other organizations, in a friend-of-the-court brief, called for the high court to grant the appeal request by the state of Indiana in defense of its 2016 law that prohibits abortion in various categories. The brief also asked the justices to contemplate whether they should overrule the 1973 Roe v. Wade decision that invalidated all state restrictions on abortion and a 1992 opinion that affirmed Roe.
The case offers the Supreme Court an early opportunity to rule on a state restriction and revisit its Roe ruling after adding a new justice who abortion rights advocates fear would be a fifth vote to reverse its controversial decision from 45 years ago. The justices could find Indiana's law is constitutional without reversing part or all of the Roe opinion.
Brett Kavanaugh -- who narrowly received Senate confirmation in October after a bitter battle -- is considered an originalist who interprets the Constitution based on its initial meaning. He replaced Anthony Kennedy, who affirmed Roe in the 1992 Planned Parenthood v. Casey opinion. Nearly all pro-life organizations have given favorable reviews to Kavanaugh's record as a federal appeals court judge.
ERLC President Russell Moore told Baptist Press he prays the high court will uphold Indiana's law.
"This country will one day shudder at the thought of a child being snuffed out in the womb simply because that child had an extra chromosome," Moore said in written comments. "The abortion industry's defense of abortions based on sex, race and disability exposes their thirst for profit."
The organizations joining the ERLC on the brief were the National Association of Evangelicals, Concerned Women for America, National Legal Foundation and Pacific Justice Institute.
The case involves a 2016 law signed by then-Gov. Mike Pence, now the nation's vice president, requiring doctors to inform their patients that Indiana does not permit an unborn child to be aborted only because of his or her "race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability."
Planned Parenthood of Indiana and Kentucky challenged the law, and a federal judge permanently blocked the state from enforcing it. In April of this year, a three-judge panel of the Seventh Circuit Court of Appeals in Chicago affirmed the ruling against the law, which also includes a section requiring humane disposal of fetal remains.
The brief filed by the ERLC addresses only the nondiscrimination provisions and urges the Supreme Court to review the Seventh Circuit decision because the justices have yet to rule on the legality of barring discrimination on the basis of sex, race and disability in abortion. States have a "compelling interest" in prohibiting discrimination in such categories, according to the brief.
The Seventh Circuit decided the Supreme Court's "abortion precedent, even though that precedent has never directly addressed the issue presented by the statute under review, holds that the abortion right overrides all others," the brief says. "That grievous error, which allows unborn children to be killed because of their sex or race or disability, should be corrected as soon as possible."
The brief points to what it describes as the irony of the Seventh Circuit's interpretation of the 14th Amendment, "which was passed in large part to stamp out racial discrimination, [being] in conflict with itself. It has ruled that the right to abort, which this Court has found springs implicitly from the [14th] Amendment, always trumps a right against racial discrimination which directly flows from it."
Regarding Roe, the brief says "the historical and logical deficiencies" of that opinion and the Casey decision that affirmed it while permitting some restrictions on abortion have long been exposed. The Indiana law "provides an appropriate vehicle to consider whether overruling them, in whole or in part, is the better course of action," according to the brief.
Rick Claybrook -- a Washington, D.C., lawyer who wrote the brief for the ERLC and the other organizations -- told BP the case offers the justices an intersection of two branches of law it has not dealt with before -- "the abortion license" as outlined by the high court and "the very strong principles with respect to nondiscrimination on the basis of categories which are inherited, that one can't do anything about."
While the justices could reverse the Seventh Circuit without touching Roe and Casey, they also could say, "[T]his law seems to be in tension with other law, so what is causing the tension? Maybe an over-expansive view of the abortion license as [we] have interpreted it," Claybrook said in a phone interview. "[The court] could fix it by cutting back on Roe or Casey."
Eight states had sex-selection abortion bans in effect as of Nov. 1, according to the Guttmacher Institute, a research organization allied with the abortion rights movement. Those states are Arizona, Arkansas, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania and South Dakota. Only Arizona has a ban on race-based abortions in effect, while North Dakota is the only state with a prohibition in effect on disability-based abortions. Courts have temporarily or permanently prevented enforcement of bans by other states.
A review published in 2012 reported an 85 percent rate of abortion after a Down syndrome diagnosis in hospital-based studies.
The case is Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky.