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Box v. Planned Parenthood of Indiana And Kentucky, Inc.

United States Supreme Court

May 28, 2019



          PER CURIAM.

         Indiana's 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.


         The 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).

         Respondents 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).

         The 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 cremation. Ibid.

         We now 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.


         Our 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.

         In sum, 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.

         It is so ordered.

          Justice Sotomayor would deny the petition for a writ of certiorari as to both questions presented.

          Justice Thomas, concurring.

         Indiana 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.[1] 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 remains.

         I write 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.[2]

         The use 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.

         It is 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.

         Given 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 ...

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