The Seventh Circuit Court of Appeals, the federal appellate court sitting in Chicago, heard oral argument on Thursday in an important pro-life case out of Indiana. The case deals with a new type of anti-abortion law, titled House Enrolled Act 1337, that Indiana passed in 2016.
The law does two things: First, it prohibits any medical professional from performing an abortion if the woman seeking the abortion is doing so solely because of the sex, race, or disability diagnosis of the unborn child. Second, it requires abortion providers like Planned Parenthood to respectfully dispose of the remains of the unborn children they abort, either by burial or cremation, instead of their current practice of treating the remains like medical waste.
Planned Parenthood challenged both provisions of the law in federal district court, and that court declared both unconstitutional—a decision Indiana has now appealed. The anti-discrimination provision is vitally important, but it’s the respectful-disposition provision that I’d like to defend here, given that it has generally received less attention.
(Full disclosure, as a lawyer for Wisconsin, I assisted with defending this law by helping to write an amicus brief in federal appellate court, as explained more below. The views expressed here are my own.)
PP’s Argument Against Treating Bodies with Respect
To recount well-known history, in Roe v. Wade the Supreme Court held that the Constitution’s Fourteenth Amendment protects a woman’s right to obtain an abortion. The court essentially affirmed that decision in Planned Parenthood v. Casey and, more recently, in Whole Woman’s Health v. Hellerstedt.
In its challenge to the respectful-disposition provision of Act 1337, however, Planned Parenthood did not claim this law infringed Roe’s right to abortion. Since this portion of Act 1337 is a post-abortion regulation, the question of whether a mother had the right to terminate the unborn child in the first place is not at issue. Instead, Planned Parenthood relied on a different Fourteenth Amendment principle, that all laws must (at a minimum) further a legitimate governmental interest in a rational way.
This low hurdle is called “the rational-basis test,” and it is our Constitution’s recognition of the fundamental principle that truly arbitrary and irrational governmental action is not law. It is usually easy for a law to pass the rational-basis test. For example, speed limits pass since traffic safety is a legitimate interest, furthered by keeping cars at manageable speeds; the minimum wage passes since prohibiting worker exploitation is a legitimate interest, furthered by mandating a socially acceptable minimum payment; and so forth. Indeed, the test’s weak bite should come as no surprise, given the proliferation of U.S. laws managing even our most mundane affairs.
In arguing that Act 1337’s respectful-disposition provision fails the rational-basis test, Planned Parenthood claimed the state lacks even a legitimate interest in ensuring that the remains of unborn children that abortion providers possess are buried or cremated. It claimed that mandating this modicum of respect was irrational (arbitrary, baseless, and wholly unfounded) because unborn children are not persons, so their remains are not the remains of persons.
We know unborn children lack personhood status, Planned Parenthood explained, because Roe said as much for purposes of the Fourteenth Amendment. (That is why the Constitution doesn’t protect them from abortion.) So with fetal personhood off-limits, Act 1337’s treatment of nonpersons as persons flunks rational basis. The district court agreed. Indiana didn’t—and neither did 20 other states, led by the Wisconsin attorney general, which filed an amicus brief in support of Indiana’s appeal.
Roe Allows Treating Human Remains With Respect
Planned Parenthood’s case against Act 1337’s respectful-disposition provision rests upon a fundamental misunderstanding of the scope of Roe v. Wade.
Since time immemorial, affording the deceased a respectful disposition has been a moral imperative. Thus the wrath of Achilles was tempered by Priam’s efforts to bury his son, the slain hero Hector. Antigone defied a royal decree at the price of her life to bury her brother because “there are honors due all the dead.” Christianity teaches that “burying the dead” is a corporal work of mercy, on the same moral plane as feeding the hungry.
State laws already enshrine this universal principle. It is unlawful, for example, to simply incinerate a corpse along with common medical waste. Those laws easily pass rational basis, since protecting society’s morals is no less a legitimate state interest than traffic safety or preventing worker exploitation.
More controversially, an unborn child certainly seems like a person, so should also receive the dignity of a respectful disposition. Like the born child, an unborn child is a unique member of the human species who directs her own development toward her own distinct end. She of course requires nourishment from her mother to live, but so too the born child. From this first-principles perspective, then, Act 1337 treating deceased unborn children like deceased persons, by mandating the respectful disposition of their remains, also easily clears rational basis.
Roe doesn’t dictate a contrary result. While that case does hold that unborn children are not persons under the Fourteenth Amendment, that was only in the course of concluding that states may not enforce their abortion laws in a manner that interferes with the abortion right recognized in Roe itself. Roe does not prevent the state from treating unborn children as persons under state law outside of the abortion context.
This explains why the majority of states have laws prohibiting fetal homicide (which add additional penalties onto existing assault or homicide statutes when criminals attack pregnant women) and laws allowing unborn children to inherit property before their birth. Both types of laws are premised on fetal personhood outside the abortion context, and neither has been struck down under Roe.
Act 1337 Would Still Be Constitutional If PP Were Correct
But let’s say Planned Parenthood read Roe correctly—states may not treat the unborn child as a person for any purpose. That still would not invalidate Act 1337 under the rational-basis test. In many contexts, the government mandates that we respect nonperson things.
For example, the law appropriately requires respect for animals—prohibiting their cruel treatment, extending protections for pets, and taking costly measures to preserve endangered species. For the environment too, the law requires a level of respect even beyond what is needed for resource preservation. Thus federal law recognizes “the critical importance of restoring and maintaining environmental quality,” laments “the profound impact of man’s activity on the . . . natural environment,” and “declares that it is the continuing policy of the Federal Government . . . to create and maintain conditions under which man and nature can exist in productive harmony.”
Indeed, federal law states that “each person has a responsibility to contribute to the preservation and enhancement of the environment.” So if the law can mandate respect for these nonperson entities, surely it could also do so for the remains of the unborn child.
At bottom, Planned Parenthood’s disagreement with Indiana’s Act 1337 is a policy dispute, not a constitutional one. It simply does not want to be forced to provide for a respectful disposition of the remains of unborn children, either because it costs too much (about $12 per person) or for some other reason.
That dispute belongs in the Indiana legislature, not in federal court, just like disputes over speed limits, the value of the minimum wage, and most other issues of the day. Or, perhaps the best course is to follow the (slightly paraphrased) advice Pope Benedict XVI once gave: “respect for what others hold as a sacred reality should restrain you” from “insult[ing]” those realities. Perhaps Planned Parenthood’s dispute over Act 1337 belongs nowhere at all.