Courts strike down pro-life laws in Indiana, Ohio

Federal courts ruled against pro-life laws in Indiana and Ohio last week, dealing another blow to pro-life efforts and setting the stage for possible U.S. Supreme Court battles.

On Thursday, the 7th U.S. Circuit Court of Appeals ruled unconstitutional an Indiana law protecting unborn children from abortion for reasons of sex, race, or a disability diagnosis, and the neighboring 6th Circuit upheld a lower court ruling against an Ohio law that defunded the nation’s largest abortion provider.

Planned Parenthood of Indiana and Kentucky filed suit against Indiana’s law in 2016, saying it interfered with a woman’s right to an abortion. The 7th Circuit agreed: “The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the state may not prohibit a woman from exercising that right for any reason.”

In a dissenting opinion, Judge Daniel Manion noted the ruling regrettably makes abortion a “super right” that is “now a more untouchable right than even the freedom of speech.” But, he added, the ruling “begs for the Supreme Court to reconsider Roe and Casey,” the two major cases that established the legal right to abortion pre-viability.

Planned Parenthood also challenged the Indiana law’s fetal disposition clause that requires abortion facilities to treat fetal remains separately from other medical waste and to get transfer permits for their burial. The court ruled that based on Supreme Court precedent, aborted babies aren’t people and don’t need to be handled with the same respect.

Americans United for Life attorney Clarke Forsythe told me that a portion of the ruling could make its way to the Supreme Court. He pointed to a 1983 ruling by the 8th Circuit upholding a Minnesota fetal disposition statute.

“The Supreme Court may be more inclined to take cases in which there is a conflict between one circuit and another,” he noted.

The attempt to protect unborn babies diagnosed with Down syndrome has a less certain future at the Supreme Court. Ohio and North Dakota have similar disability-related measures, and Louisiana recently enacted a law forbidding state literature from promoting abortion for a prenatal Down syndrome diagnosis. Pennsylvania and Utah also have proposed legislation protecting unborn babies diagnosed with Down syndrome. But a judge recently blocked Ohio’s law, and Forsythe doesn’t see that portion of Indiana’s law making headway at the high court.

“I think there would be high risk involved with taking it up to the Supreme Court now with this court, with what I call the Hellerstedt five, meaning the five who are in the majority now on the Supreme Court,” he said, referring to Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Those five struck down a Texas law requiring abortionists to have hospital admitting privileges and abortion centers to meet ambulatory surgical center requirements in the 2016 case Whole Woman’s Health v. Hellerstedt.

The 6th Circuit ruling against Ohio’s defunding law didn’t come as a surprise, but pro-lifers still believe the measure should pass constitutional muster. Ohio is one of 16 states that have directed funds away from Planned Parenthood and other abortion providers, though courts have blocked more than half a dozen of those laws.

Planned Parenthood of Greater Ohio and Planned Parenthood Southwest Ohio Region filed suit last year, saying the law violated their First Amendment rights, as well as their due process and equal protection rights by refusing them state money on the basis of their promotion of and involvement in abortions.

But the 6th Circuit decision in Planned Parenthood’s favor isn’t well founded in case law, Ohio Right to Life president Mike Gonidakis told me.

“Roe v. Wade and all the cases that followed Roe v. Wade—Carhart and Casey—they said the states can restrict abortion post-viability, and they can do what they want as long as it didn’t interfere with a woman’s right to choose pre-viability,” he said. “Nowhere in those decisions and the precedents following them did it say, ‘Oh, and by the way, Planned Parenthood has a constitutional right to money.’”

Ohio Attorney General Mike DeWine plans to appeal to the Supreme Court, and Gonidakis hopes the justices will decide to weigh in: “We believe the states’ rights are more important than making sure our private companies’ pocketbooks are lined with our tax dollars.”

Legislative updates

Federal abortion promotion for illegal minors?

Government officials must distribute literature or post signs telling unaccompanied minors in federal custody that they can get help to have an abortion, U.S. District Judge Tanya Chutkan ruled. The notice reads, “If you are pregnant, you have the right to decide whether to have the baby or to have an abortion. No one who works for the government or the shelter can force your decision either way. No one who works for the government or the shelter can tell anyone about your pregnancy or decision to have an abortion if you don’t want them to do so.” The notice includes a phone number and an email address for a lawyer at the American Civil Liberties Union. —S.G.

Alfie Evans’ parents lose final bid to save him

The European Court of Human Rights refused to hear an emergency appeal from the parents of Alfie Evans, a disabled 23-month-old on life support at Alder Hey Children’s Hospital in Liverpool. Tom Evans and Kate James have been fighting the hospital in courts to keep their son on life support and transfer him to an Italian hospital willing to treat him. A group of about 200 supporters rallied outside the hospital Monday, prompting police to form a line blocking the entrance. The U.K. Supreme Court has approved the hospital’s plan to remove Alfie’s life support, an action doctors could take at any time. —S.G.