Federal Court Blocks Anti-Discrimination Abortion Ban


Geoffrey Surtees

July 1, 2016

7 min read

Pro Life



Yesterday, a federal court prohibited the State of Indiana from enforcing its “Sex Selective and Disability Abortion Ban” while the case continues through litigation in that court.

As its title suggests, the law prohibits a person from performing an abortion if the person knows that woman is seeking the abortion because of the unborn child’s sex, race, or disability, including Down’s Syndrome.

The court’s disheartening decision is based principally on the Supreme Court’s tragic 1992 decision in Planned Parenthood v. Casey.  While the Supreme Court in that case upheld a number of abortion-related restrictions (including parental consent), the Court nonetheless held that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

The district court read Casey to mean that because the state may not interfere with a woman’s choice to have an abortion prior to viability, it is irrelevant why she is seeking the abortion.  In other words, a woman who decides at 19 weeks that she would have rather have a girl instead of a boy has a “right” to abort her unborn son for that very reason alone.  A woman who learns through an ultrasound that her unborn child might be missing a little toe can abort her despite the inconsequential nature of that “defect.”  Unborn children with Down’s Syndrome have no rights to life or liberty, but mothers of those children have a “right” to end their lives.

There is something tragically wrong with this picture.

As I wrote earlier this week — and as anyone who reads the Constitution can see for themselves — the Constitution is wholly silent on the subject of abortion.  Nowhere in the Bill of Rights, the Fourteenth Amendment, or any other constitutional provision is a woman bestowed with the right to kill her unborn progeny.  The Constitution leaves that controversial subject precisely where it leaves most areas of human and cultural concern: We the People.

According to Justice Byron White, dissenting from the infamous decision of Roe v. Wade and its companion case, Doe v. Bolton, the so-called right to abortion was premised on nothing more than an “improvident and extravagant exercise of the power of judicial review.”  He wrote that he could “find nothing in the language or history of the Constitution to support the Court’s judgment.”

Justice White, of course, was not alone in denouncing Roe’s rationale.  In fact, numerous academics and writers who favor legalized abortion have said much the same thing.

John Hart Ely of Yale, one of the most famous legal scholars of the 20th Century, wrote that Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”

Laurence Tribe, author of a once widely-read treatise on constitutional law, stated the year Roe was decided: “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Columnist Michael Kinsley — a dyed in the wool liberal — wrote “Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching.”

In Casey, the Supreme Court moved from the sloppy reasoning of Roe to the paltry reasoning of pseudo-philosophical cant.  In what has become known as the notorious “mystery passage,” a plurality of the Court opined:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.  At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.  Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Such language, bereft of any constitutional grounding, should have no place in adjudicating a case of fundamental import to society, where human lives are at stake.  Sadly, however, it is that woefully incorrect understanding of the human person — amounting to little more than rank solipsism — that stands behind the core holding of Casey, and thus behind yesterday’s unfortunate decision.

The State of Indiana did not thumb its nose at Roe and Casey by banning all abortions.  Rather, it only took measured steps to ensure that abortions are not carried out with a discriminatory intent to eradicate unborn children based on human features beyond anyone’s control.

As Governor Mike Pence of Indiana eloquently put it when he signed the bill into law:

I believe that a society can be judged by how it deals with its most vulnerable --the aged, the infirm, the disabled and the unborn . . . .

Some of my most precious moments as Governor have been with families of children with disabilities, especially those raising children with Down syndrome. These Hoosiers never fail to inspire me with their compassion and these special children never fail to move me with their love and joy.

By enacting this legislation, we take an important step in protecting the unborn, while still providing an exception for the life of the mother. I sign this legislation with a prayer that God would continue to bless these precious children, mothers and families.

Pro-abortion groups are undoubtedly gleeful over yesterday’s decision.  Betty Cockrum, CEO of Planned Parenthood of Indiana and Kentucky, said of yesterday’s decision, “Happy Independence Day to the women of the state of Indiana. We get to celebrate our freedoms.” 

The court’s decision, however, does nothing for the advancement of women.  In fact, as noted above, the now enjoined statute bans abortions if chosen because the unborn child is female.  By prohibiting Indiana from enforcing its pro-life law, the district court has given the green light for the most vulnerable to be discriminated against — in the most egregious manner possible.

Yesterday’s decision is no “Independence Day” for the victims of abortion, killed in the womb for no other reason than their sex, race, or disability.

Ms. Cockrum and Planned Parenthood should stop and consider what true advocates for women of the past have said about the tragedy of abortion.

Susan B. Anthony, who played a critical role in the women’s suffrage movement, referred to abortion as “child murder.”  Victoria Woodhull, the first woman to run for U.S. President, wrote that “the rights of children as individuals begin while yet they remain the foetus.”  These pioneers of the women’s rights movement recognized that the dignity of women is not advanced or honored by aborting one’s child. To the contrary, in the words of Alice Paul, the author of the original equal rights amendment of 1923, “Abortion is the ultimate exploitation of women.”

The United Nations Population Fund, certainly no bastion of pro-life values, has noted:

Today, more than 117 million women across Asia are “missing”, and many others are missing in Eastern European and Caucasus countries as well – largely the result of gender-biased sex selection, a form of discrimination.

Since the 1990s, some areas have seen up to 25 per cent more male births than female births. The rise in sex selection is alarming as it reflects the persistent low status of women and girls. The resulting gender imbalance also has a damaging effect on societies. Instances of increased sexual violence and trafficking have already been linked to the phenomenon.

Indiana should have the right to ensure that its state does not walk down that same path.

We will keep you posted as this case moves forward, including our own efforts regarding this critical issue.