KRISTINA BOX, COMMISSIONER, INDIANA DEPARTMENT OF HEALTH, ET AL.
PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
petition for certiorari argues that the Court of Appeals for
the Seventh Circuit incorrectly invalidated two new
provisions of Indiana law: the first relating to the
disposition of fetal remains by abortion providers; and the
second barring the knowing provision of sex-, race-, or
disability-selective abortions by abortion providers. See
Ind. Code §§16-34-2-1.1(a)(1)(K), 16-34-3-4(a),
16-34-4-4, 16-34-4-5, 16-34-4-6, 16-34-4-7, 16-34-4-8,
16-41-16-4(d), 16-41-16-5 (2018). We reverse the judgment of
the Seventh Circuit with respect to the first question
presented, and we deny the petition with respect to the
second question presented.
first challenged provision altered the manner in which
abortion providers may dispose of fetal remains. Among other
changes, it excluded fetal remains from the definition of
infectious and pathological waste, §§16-41-16-4(d),
16-41-16-5, thereby preventing incineration of fetal remains
along with surgical byproducts. It also authorized
simultaneous cremation of fetal remains, §16-34-3-4(a),
which Indiana does not generally allow for human remains,
§23-14-31-39(a). The law did not affect a woman's
right under existing law "to determine the final
disposition of the aborted fetus." §16-34-3-2(a).
have never argued that Indiana's law creates an undue
burden on a woman's right to obtain an abortion. Cf.
Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 874 (1992) (plurality opinion). Respondents have
instead litigated this case on the assumption that the law
does not implicate a fundamental right and is therefore
subject only to ordinary rational basis review. See
Planned Parenthood of Indiana and Kentucky,
Inc. v. Commissioner of Indiana State Dept.
of Health, 888 F.3d 300, 307 (2018). To survive
under that standard, a state law need only be
"rationally related to legitimate government
interests." Washington v. Glucks-berg, 521 U.S.
702, 728 (1997).
Seventh Circuit found Indiana's disposition law invalid
even under this deferential test. It first held that
Indiana's stated interest in "the 'humane and
dignified disposal of human remains'" was "not
. . . legitimate." 888 F.3d, at 309. It went on to hold
that even if Indiana's stated interest were legitimate,
"it [could not] identify a rational relationship"
between that interest and "the law as written,"
because the law preserves a woman's right to dispose of
fetal remains however she wishes and allows for simultaneous
reverse that determination. This Court has already
acknowledged that a State has a "legitimate interest in
proper disposal of fetal remains." Akron v. Akron
Center for Reproductive Health, Inc., 462 U.S.
416, 452, n. 45 (1983). The Seventh Circuit clearly erred in
failing to recognize that interest as a permissible basis for
Indiana's disposition law. See Armour v.
Indianapolis, 566 U.S. 673, 685 (2012) (on rational
basis review, "the burden is on the one attacking the
legislative arrangement to negative every conceivable basis
which might support it"). The only remaining question,
then, is whether Indiana's law is rationally related to
the State's interest in proper disposal of fetal remains.
We conclude that it is, even if it is not perfectly tailored
to that end. See ibid. (the State need not have
drawn "the perfect line," as long as "the line
actually drawn [is] a rational" one). We therefore
uphold Indiana's law under rational basis review. We
reiterate that, in challenging this provision, respondents
have never argued that Indiana's law imposes an undue
burden on a woman's right to obtain an abortion. This
case, as litigated, therefore does not implicate our cases
applying the undue burden test to abortion regulations. Other
courts have analyzed challenges to similar disposition laws
under the undue burden standard. See Planned Parenthood
of Indiana and Kentucky, Inc. v.
Commissioner of Indiana State Dept. of
Health, 2018 WL 3655854, *2-*3 (CA7, June 25, 2018)
(Wood, C. J., concurring in denial of rehearing en banc). Our
opinion expresses no view on the merits of those challenges.
opinion likewise expresses no view on the merits of the
second question presented, i.e., whether Indiana may
prohibit the knowing provision of sex-, race-, and
disability-selective abortions by abortion providers. Only
the Seventh Circuit has thus far addressed this kind of law.
We follow our ordinary practice of denying petitions insofar
as they raise legal issues that have not been considered by
additional Courts of Appeals. See this Court's Rule 10.
we grant certiorari with respect to the first question
presented in the petition and reverse the judgment of the
Court of Appeals with respect to that question. We deny
certiorari with respect to the second question presented.
is so ordered.
Justice Sotomayor would deny the petition for a writ of
certiorari as to both questions presented.
Justice Thomas, concurring.
law prohibits abortion providers from treating the bodies of
aborted children as "infectious waste" and
incinerating them alongside used needles, laboratory-animal
carcasses, and surgical byproducts. Ind. Code
§16-41-16-4(d) (2019); see §§16-41-16-2,
16-41-16-4, 16-41-16-5; Ind. Admin. Code, tit. 410,
§§35-1-3, 35-2- 1(a)(2) (2019). A panel of the
Seventh Circuit held that this fetal-remains law was
irrational, and thus unconstitutional, under the doctrine of
"substantive due process." That decision was
manifestly inconsistent with our precedent, as the Court
holds. I would have thought it could go without
saying that nothing in the Constitution or any decision of
this Court prevents a State from requiring abortion
facilities to provide for the respectful treatment of human
separately to address the other aspect of Indiana law at
issue here-the "Sex Selective and Disability Abortion
Ban." Ind. Code §16-34-4-1 et seq. This
statute makes it illegal for an abortion provider to perform
an abortion in Indiana when the provider knows that the
mother is seeking the abortion solely because of the
child's race, sex, diagnosis of Down syndrome,
disability, or related characteristics. §§16-34-4-1
to 16-34-4-8; see §16-34- 4-1(b) (excluding "lethal
fetal anomal[ies]" from the definition of disability).
The law requires that the mother be advised of this
restriction and given information about financial assistance
and adoption alternatives, but it imposes liability only on
the provider. See §§16-34-2- 1.1(a)(1)(K),
(2)(A)-(C), 16-34-4-9. Each of the immutable characteristics
protected by this law can be known relatively early in a
pregnancy, and the law prevents them from becoming the sole
criterion for deciding whether the child will live or die.
Put differently, this law and other laws like it promote a
State's compelling interest in preventing abortion from
becoming a tool of modern-day eugenics.
of abortion to achieve eugenic goals is not merely
hypothetical. The foundations for legalizing abortion in
America were laid during the early 20th-century birth-
control movement. That movement developed alongside the
American eugenics movement. And significantly, Planned
Parenthood founder Margaret Sanger recognized the eugenic
potential of her cause. She emphasized and embraced the
notion that birth control "opens the way to the
eugenist." Sanger, Birth Control and Racial Betterment,
Birth Control Rev., Feb. 1919, p. 12 (Racial Betterment). As
a means of reducing the "ever increasing, unceasingly
spawning class of human beings who never should have been
born at all," Sanger argued that "Birth Control . .
. is really the greatest and most truly eugenic method"
of "human generation." M. Sanger, Pivot of
Civilization 187, 189 (1922) (Pivot of Civilization). In her
view, birth control had been "accepted by the most clear
thinking and far seeing of the Eugenists themselves as the
most constructive and necessary of the means to racial
health." Id., at 189.
true that Sanger was not referring to abortion when she made
these statements, at least not directly. She recognized a
moral difference between "contraceptives" and
other, more "extreme" ways for "women to limit
their families," such as "the horrors of abortion
and infanticide." M. Sanger, Woman and the New Race 25,
5 (1920) (Woman and the New Race). But Sanger's arguments
about the eugenic value of birth control in securing
"the elimination of the unfit," Racial Betterment
11, apply with even greater force to abortion, making it
significantly more effective as a tool of eugenics. Whereas
Sanger believed that birth control could prevent
"unfit" people from reproducing, abortion can
prevent them from being born in the first place. Many
eugenicists therefore supported legalizing abortion, and
abortion advocates-including future Planned Parenthood
President Alan Guttmacher- endorsed the use of abortion for
eugenic reasons. Technological advances have only heightened
the eugenic potential for abortion, as abortion can now be
used to eliminate children with unwanted characteristics,
such as a particular sex or disability.
the potential for abortion to become a tool of eugenic
manipulation, the Court will soon need to confront the
constitutionality of laws like Indiana's. But because
further percolation may assist our review of this issue of