Enacted in 2016, House Bill 1337 contains two provisions at issue in the current case. One provision requires health facilities disposing of fetal remains to treat them with the same dignity accorded other human remains by either burying or cremating them. (Unlike health facilities, parents who choose to take possession of fetal remains after an abortion or miscarriage have no such requirements imposed on them.) The other provision prohibits abortion performed solely because of the disability, race or sex of the unborn child.
The Seventh Circuit U.S. Court of Appeals has held that both of these provisions violate the U.S. Constitution.
In the case of the fetal-remains provision, the Seventh Circuit panel contradicted an earlier decision in the Eighth Circuit upholding as constitutional a virtually identical law enacted in Minnesota.
“The result is that Minnesota can require burial or cremation of fetal remains while Indiana cannot,” Attorney General Hill writes in today’s filing. Only the U.S. Supreme Court, he notes, “can decide which of these positions is correct.”
While the anti-discrimination provision involves no such conflict between circuits, it raises issues of national importance that the Court should address, Attorney General Hill said.
“Other states are adopting laws similar to ours,” he said. “Internationally, there is attention focused on whether it’s ethical to abort babies because, for example, they have Down Syndrome, which is a very prevalent reason given for abortions. So we’re hoping that the significance of the issue will justify Supreme Court review.”