Planned Parenthood Ind. & Ky., Inc. v. Comm'r of the Ind. State Dep't of Health

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-3163
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC., et al.,
Plaintiffs-Appellees,
v.
COMMISSIONER OF THE INDIANA STATE
DEPARTMENT OF HEALTH, et al.,
Defendants-Appellants.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-00763-TWP-DML — Tanya Walton Pratt, Judge.
ARGUED FEBRUARY 15, 2018 — DECIDED APRIL 19, 2018
Before BAUER, FLAUM, and MANION, Circuit Judges.
BAUER, Circuit Judge. On March 24, 2016, the Governor of
Indiana signed into law House Enrolled Act No. 1337 (HEA
1337), which created new provisions and amended others
that regulate abortion procedures within Indiana. Shortly
2 No. 17-3163
thereafter, Planned Parenthood of Indiana and Kentucky
(“PPINK”) filed a lawsuit against the Commissioner of the
Indiana State Department of Health, the prosecutors of Marion,
Lake, Monroe and Tippecanoe Counties, and members of the
Medical Licensing Board of Indiana (collectively, “the State”).
PPINK sought declaratory and injunctive relief from three
particular parts of the law: (1) the new provisions titled “Sex
Selective and Disability Abortion Ban,” Ind. Code § 16-34-4
(2016), which prohibit a person from performing an abortion
if the person knows the woman is seeking an abortion solely
for one of the enumerated reasons (collectively, “the non-
discrimination provisions”); (2) an added provision to the
informed consent process, instructing those performing
abortions to inform women of the non-discrimination provi-
sions, § 16-34-2-1.1(a)(1)(K); and (3) numerous amendments to
the provisions dealing with the disposal of aborted fetuses,
§§ 16-34-3-4(a); 16-41-16-4(d); 16-41-16-5; 16-41-16-7.6 (collec-
tively, “the fetal disposition provisions”).
The district court initially entered a preliminary injunction
on June 30, 2016, and both parties subsequently filed motions
for summary judgment. The court granted PPINK’s motion for
summary judgment on September 22, 2017, declaring the three
parts of HEA 1337 unconstitutional and permanently enjoining
the State from enforcing them.
We affirm. The non-discrimination provisions clearly
violate well-established Supreme Court precedent holding that
a woman may terminate her pregnancy prior to viability, and
that the State may not prohibit a woman from exercising that
right for any reason. Because the non-discrimination provi-
sions are unconstitutional, so too is the provision that a woman
be informed of them. Additionally, the amended fetal disposi-
No. 17-3163 3
tion provisions violate substantive due process because they
have no rational relationship to a legitimate state interest.
I. BACKGROUND
PPINK provides reproductive health services and educa-
tion to thousands of women throughout Indiana and Ken-
tucky. At its Bloomington, Indianapolis and Merrillville
centers, PPINK performs surgical abortions through the first
trimester of pregnancy (approximately 14 weeks). At these
three centers, as well as the Lafayette center, PPINK also
performs non-surgical, or medication, abortions.
A. The Non-Discrimination and Informed Consent
Provisions
HEA 1337 creates Indiana Code chapter 16-34-4, entitled
“Sex Selective and Disability Abortion Ban.” The various
provisions of this chapter prohibit abortions at any time,
including prior to viability, if the abortion is sought for a
particular purpose. Specifically, the non-discrimination
provisions state that “[a] person may not intentionally perform
or attempt to perform an abortion before the earlier of viability
of the fetus or twenty (20) weeks of postfertilization age if the
person knows that the pregnant woman is seeking” an abor-
tion: (1) “solely because of the sex of the fetus,” Ind. Code
§§ 16-34-4-4, 16-34-4-5; (2) “solely because the fetus has been
diagnosed with Down syndrome or has a potential diagnosis
of Down syndrome,” or has been diagnosed or has a potential
diagnosis of “any other disability,” §§ 16-34-4-6, 16-34-4-7; or
(3) “solely because of the race, color, national origin, or
ancestry of the fetus.” § 16-34-4-8. The term “potential diagno-
sis” means “the presence of some risk factors that indicate that
a health problem may occur,” § 16-34-4-3, and “any other
disability” is defined as “any disease, defect, or disorder that
4 No. 17-3163
is genetically inherited,” including both physical and mental
disabilities. § 16-34-4-1.
Under Indiana law, it is a felony to knowingly and inten-
tionally perform an abortion that is prohibited by law. See § 16-
34-2-7(a). Moreover, a person who knowingly and intentionally
provides an unlawful abortion is subject to (1) “disciplinary
sanctions,” and (2) “civil liability for wrongful death.” § 16-34-
4-9(a).
Indiana law requires that certain information be provided
to a woman at least 18 hours prior to the abortion as part of the
voluntary and informed consent process. See § 16-34-2-1.1(a).
HEA 1337 adds a new provision requiring the abortion
provider to inform a woman “[t]hat Indiana does not allow a
fetus to be aborted solely because of the fetus’s race, color,
national origin, ancestry, sex, or diagnosis or potential diagno-
sis of the fetus having Down syndrome or any other disabil-
ity.” § 16-34-2-1.1(a)(1)(K).
According to the State, the non-discrimination provisions
were prompted by the medical advances of non-invasive
genetic testing which allow for the detection of disabilities at
an early stage in the pregnancy. In particular, cell-free DNA
testing, which screens for several genetic disabilities such as
Down syndrome, can occur as early as 10 weeks into the
pregnancy. PPINK does not provide genetic testing, but is
aware that it performs abortions for women solely because of
the diagnosis or potential diagnosis of Down syndrome and
other disabilities. PPINK and the State agree that the rate of
women seeking an abortion due to the diagnosis or potential
diagnosis of a genetic disability will likely increase as these
tests become more widespread.
No. 17-3163 5
B. The Fetal Disposition Provisions
HEA 1337 also changes the manner in which abortion
providers must dispose of aborted fetuses. HEA 1337 did not
alter the provision of the Indiana Code that gives a woman
“the right to determine the final disposition of the aborted
fetus.” § 16-34-3-2(a). Prior to the enactment of HEA 1337, if a
woman decided to let the abortion facility dispose of the fetus,
Indiana regulations state that the facility must either bury or
cremate the fetus. See 410 Ind. Admin. Code § 35-2-1(a). Those
regulations specify that cremation means “incineration by a
crematory, or incineration as authorized for infectious and
pathological waste” under Indiana law. 410 Ind. Admin. Code
§ 35-1-3. Infectious waste includes pathological waste, Ind.
Code § 16-41-16-4(b)(1), and pathological waste is defined as
“(1) tissue; (2) organs; (3) body parts; and (4) blood or body
fluids in liquid or semiliquid form; that are removed during
surgery, biopsy, or autopsy.” § 16-41-16-5.
Thus, prior to the enactment of HEA 1337, a woman might
decide to dispose of the aborted fetus herself; or the facility
that provided the abortion might dispose of the fetus through
incineration along with other surgical byproducts. PPINK has
utilized a contractor who periodically incinerates aborted
fetuses along with other surgical byproducts.
HEA 1337 alters the manner in which an abortion provider
must dispose of an aborted fetus if the woman elects not to
dispose of it herself. Specifically, the new law states that “[a]n
abortion clinic or health care facility having possession of an
aborted fetus shall provide for the final disposition of the
aborted fetus. The burial transmit permit requirements of
[Indiana Code] 16-37-3 apply to the final disposition of an
aborted fetus, which must be interred or cremated.” § 16-34-3-
6 No. 17-3163
4(a). A “burial transmit permit” is a “permit for the transporta-
tion and disposition of a dead human body” as required under
Indiana law. § 23-14-31-5. The amended provisions also state
that “[a]borted fetuses may be cremated by simultaneous
cremation.” § 16-34-3-4(a).
Moreover, HEA 1337 changed the definitions of both
infectious and pathological waste, stating that these terms
“do[] not include an aborted fetus or a miscarried fetus.” §§ 16-
41-16-4(d), 16-41-16-5. Thus, abortion providers like PPINK
will no longer be able to contract with third parties to inciner-
ate aborted fetuses with other surgical byproducts. Rather, the
law will require PPINK to bury, cremate, or entombed the
aborted fetuses, although the fetuses may be cremated simulta-
neously.
C. Procedural History
On April 7, 2016, two weeks after the Indiana Governor
signed HEA 1337, PPINK filed a complaint in the Southern
District of Indiana seeking declaratory and injunctive relief
from the non-discrimination and fetal disposition provisions,
which it alleged were unconstitutional. HEA 1337 was to go
into effect on July 1, 2016. After extensive briefing and oral
argument, the district court determined on June 30, 2016, that
PPINK was likely to succeed on the merits, and granted a
preliminary injunction barring the State from implementing
and enforcing these provisions.
Both PPINK and the State moved for summary judgment.
On September 22, 2017, the district court granted PPINK’s
motion for summary judgment and entered a permanent
injunction declaring the non-discrimination and fetal disposi-
tion provisions unconstitutional. Planned Parenthood of Ind. &
Kent., Inc. v. Comm'r, Ind. State Dep't of Health, 265 F. Supp. 3d
No. 17-3163 7
859 (S.D. Ind. 2017). The court found that the non-discrimina-
tion provisions clearly violate Supreme Court precedent that
a woman has the right to terminate her pregnancy prior to
viability without undue interference from the State. Id. at
865–69. Having found those provisions unconstitutional, the
court also held that the informed consent provision on the non-
discrimination provisions was unconstitutional. Id. at 869.
Finally, the court held that although the fetal disposition
provisions do not implicate a fundamental right, they violate
substantive due process because they lack a rational relation-
ship to a legitimate governmental interest. Id. at 869–72.
II. DISCUSSION
We review a grant of summary judgment de novo, constru-
ing all factual disputes and reasonable inferences in favor of
the non-moving party. Golla v. Office of Chief Judge of Cook Cty.,
Ill., 875 F.3d 404, 407 (7th Cir. 2017). The moving party is
entitled to summary judgment as a matter of law if they have
shown there is “no genuine dispute as to any material fact.”
Fed. R. Civ. P. 56(a).
A. The Non-Discrimination Provisions Violate a
Woman’s Fourteenth Amendment Right to Terminate
Her Pregnancy Prior to Viability
Forty-five years ago, the Supreme Court recognized that the
right to privacy, as rooted in the Due Process Clause of the
Fourteenth Amendment’s concept of liberty, “is broad enough
to encompass a woman’s decision whether or not to terminate
her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). The
Court in Roe recognized that “this right is not unqualified,”
and that it must be balanced “against important state interests
in regulation.” Id. at 154. Roe developed a rigid trimester
8 No. 17-3163
framework by which to balance the competing interests. Id. at
164–65.
Although the Supreme Court abandoned the trimester
framework when it revisited Roe’s holding nearly twenty years
later in Planned Parenthood of Southeastern Pennsylvania v. Casey,
it reaffirmed what it labeled as Roe’s “essential holding:”
First is a recognition of the right of the woman
to choose to have an abortion before viability
and to obtain it without undue interference from
the State. Before viability, the State's interests are
not strong enough to support a prohibition of
abortion or the imposition of a substantial
obstacle to the woman's effective right to elect
the procedure. Second is a confirmation of the
State's power to restrict abortions after fetal
viability, if the law contains exceptions for
pregnancies which endanger the woman's life or
health. And third is the principle that the State
has legitimate interests from the outset of the
pregnancy in protecting the health of the
woman and the life of the fetus that may become
a child. These principles do not contradict one
another; and we adhere to each.
505 U.S. 833, 846 (1992) (plurality opinion).
The Court in Casey drew the line between a woman’s
privacy right and the State’s interest in protecting the potential
life of a fetus at viability. Id. at 870. Importantly, Casey’s
holding that a woman has the right to terminate her pregnancy
prior to viability is categorical: “a State may not prohibit any
woman from making the ultimate decision to terminate her
pregnancy before viability.” Id. at 879 (emphasis added). Since
No. 17-3163 9
Casey, this unambiguous holding has continued to be recog-
nized as controlling precedent by the Supreme Court and this
Court. See Gonzales v. Carhart, 550 U.S. 124, 146 (2007); Stenberg
v. Carhart, 530 U.S. 914, 921 (2000); Planned Parenthood of Ind.,
Inc. v. Comm'r of Ind. State Dep't Health, 699 F.3d 962, 987 (7th
Cir. 2012).
Casey, like Roe, also noted that this right was not absolute.
Casey, 505 U.S. at 875–76. “The very notion that the State has a
substantial interest in potential life leads to the conclusion that
not all regulations must be deemed unwarranted.” Id. at 876.
Accordingly, Casey introduced the undue burden standard: a
state regulation creates an undue burden on a women’s right
to terminate her pregnancy if it “has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus.” Id. at 877. The Court in Casey
elaborated that these sort of regulations prior to viability “must
be calculated to inform the women’s free choice, not hinder it.”
Id. (emphasis added). Thus, while the State may enact mea-
sures to inform a woman’s choice to terminate her pregnancy,
the State may not prohibit the woman from making “the
ultimate decision.” Id. at 878–79.
The non-discrimination provisions clearly violate this well-
established Supreme Court precedent, and are therefore,
unconstitutional. The provisions prohibit abortions prior to
viability if the abortion is sought for a particular purpose.
These provisions are far greater than a substantial obstacle;
they are absolute prohibitions on abortions prior to viability
which the Supreme Court has clearly held cannot be imposed
by the State. Id. at 879 (“a State may not prohibit any woman
from making the ultimate decision to terminate her pregnancy
before viability.”) (emphasis added). We are bound to follow
that Supreme Court precedent. See Karlin v. Foust, 188 F.3d 446,
10 No. 17-3163
495 (7th Cir. 1999). Unsurprisingly, other circuits who have
dealt with prohibitions prior to viability have had no trouble
striking them down. See, e.g., MKB Mgmt. Corp. v. Stenehjem,
795 F.3d 768, 773 (8th Cir. 2015) (statute prohibiting pre-viable
abortions where the fetus has a detectable heartbeat);
McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015)
(statute prohibiting pre-viable abortions where fetus is at least
20 weeks gestational age); Edwards v. Beck, 786 F.3d 1113, 1117
(8th Cir. 2015) (statute prohibiting pre-viable abortions after
twelve weeks where the fetus has a detectable heartbeat).
The State knows we cannot overturn Supreme Court
precedent; rather, it argues that the non-discrimination
provisions are reconcilable with this precedent. The State
creatively suggests that Casey only reaffirmed a woman’s
“binary choice” of whether or not to have a child prior to
viability. See Casey, 505 U.S. at 851 (“Our cases recognize ‘the
right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so funda-
mentally affecting a person as the decision whether to bear or
beget a child.’”) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453
(1972)). In other words, according to the State, Casey only
recognized a privacy right in the binary decision of whether to
bear or beget a child, but that right is not extended to the
decision to terminate a particular child.
Neither Casey, nor any other case, supports this “binary
choice” theory. Under this theory, a woman may terminate her
pregnancy if she decides before becoming pregnant that she
does not want to bear a child at all, but she has no right to
terminate the pregnancy if she determines after becoming
pregnant that she does not want a particular child. Nothing in
Roe, Casey, or any other case from the Supreme Court can be
read to limit a woman’s right in this way. Moreover, no court,
No. 17-3163 11
let alone the Supreme Court, has recognized such a limitation.
Rather, Casey held that the State may not prohibit a woman
from making the “ultimate decision” to terminate her preg-
nancy prior to viability, and the State’s power, prior to viabil-
ity, is limited to informing the woman’s choice. Id. at 877–79.
Moreover, such a “binary choice” theory runs contrary to
the fact that a woman’s right to terminate her pregnancy prior
to viability is rooted in the Fourteenth Amendment’s right to
privacy. It is entirely inconsistent to hold that a woman’s right
of privacy to terminate a pregnancy exists if a woman decides
before she becomes pregnant that she does not want to bear a
child, but that the State can eliminate this privacy right if a
woman later decides she wants to terminate her pregnancy for
a particular purpose. Nothing in the Fourteenth Amendment
or Supreme Court precedent allows the State to invade this
privacy realm to examine the underlying basis for a woman’s
decision to terminate her pregnancy prior to viability.
The State urges that the non-discrimination provisions
represent a “qualitatively new type of abortion regulation,”
and that it has compelling interests in prohibiting discrimina-
tion of particular fetuses in light of technological advances in
genetic screening. Indeed, as we have noted, the State “has
legitimate interests from the outset of the pregnancy in
protecting the health of the woman and life of the fetus that
may become a child.” Id. at 846. But the Supreme Court has
already weighed the State’s interests against a woman’s
privacy right to terminate her pregnancy prior to viability:
“Before viability, the State’s interests are not strong enough to
support a prohibition of abortion or the imposition of a substantial
obstacle to the woman’s effective right to elect the procedure.”
12 No. 17-3163
Id. (emphasis added).1 We cannot reweigh a woman’s privacy
right against the State’s interest. The Supreme Court has been
clear: the State may inform a woman’s decision before viability,
but it cannot prohibit it.
The State concedes that if we conclude the non-discrimina-
tion provisions are unconstitutional, the provision requiring
abortion providers to inform women of the non-discrimination
provisions is also unconstitutional. Since we conclude that the
non-discrimination provisions found in the “Sex Selective and
Disability Abortion Ban,” Ind. Code § 16-34-4, violate a
woman’s Fourteenth Amendment right to privacy, § 16-34-2-
1.1(a)(1)(K) of the informed consent provisions is unconstitu-
tional, as well.
B. The Fetal Disposition Provisions Violate Substantive
Due Process
PPINK contends that the fetal disposition provisions violate
both substantive due process and equal protection principles.
Since we conclude that the fetal disposition provisions violate
due process, we need not address whether the provisions
suffer from any equal protection problems.
1
Wisconsin and other states, as amici curiae, maintain that Casey only
addressed the state interests “actually urged before the Supreme Court, such
as the State’s general interest in unborn life and the health of the mother.”
They thus contend that “[i]t is wrong to understand the Supreme Court’s
language as holding that pre-viability abortion is such an absolute right that
every conceivable state interest must always yield to that right.” This
argument is not persuasive because it ignores that Court’s rationale for
providing the right to an abortion prior to viability in the first place; the
woman’s right to privacy protected by the liberty interest guaranteed by the
Fourteenth Amendment. In short, the Court’s decision to draw the line at
viability was more about the woman’s liberty interest than the State’s
competing interest.
No. 17-3163 13
PPINK agrees that no fundamental right is at stake. When
a fundamental right is not implicated, substantive due process
only “prohibits arbitrary deprivations of liberty by the govern-
ment.” Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743
F.3d 569, 576 (7th Cir. 2014). Accordingly, we apply rational-
basis review, meaning the fetal disposition provisions must “be
rationally related to legitimate government interests.” Washing-
ton v. Glucksberg, 521 U.S. 702, 728 (1997). It is incumbent upon
PPINK to demonstrate that the provisions violate substantive
due process, and PPINK carries a high burden: “So long as
there is any conceivable state of facts that supports the policy,
it passes muster under the due process clause; put another
way, only if the policy is patently arbitrary would it fail.”
Hayden, 743 F.3d at 576.
The fetal disposition provisions essentially require abortion
providers to dispose of aborted fetuses in the same manner as
human remains, as required under Indiana law. According to
the State, the provisions further the State’s legitimate interest
in “the humane and dignified disposal of human remains.”
Such a position inherently requires a recognition that aborted
fetuses are human beings, distinct from other surgical byprod-
ucts, such as tissue or organs. Indeed, in its brief, Indiana
maintained that it “validly exercised its police power by
making a moral and scientific judgment that a fetus is a human
being who should be given a dignified and respectful burial
and cremation.” (emphasis added).
However, the Supreme Court has concluded that “the word
‘person,’ as used in the Fourteenth Amendment, does not
include the unborn.” Roe, 410 U.S. at 158. In reaching this
conclusion, the Court in Roe noted that “[w]hen those trained
in the respective disciplines of medicine, philosophy, and
theology are unable to arrive at any consensus, the judiciary,
14 No. 17-3163
at this point in the development of man's knowledge, is not in
a position to speculate as to the answer.” Id. at 159. While this
question may continue to be disputed among those respective
disciplines, it is not disputed in the law. See Coe v. Cty. of Cook,
162 F.3d 491, 495 (7th Cir. 1998) (“[T]he courts have decided
that a fetus is not a person within the meaning of these
clauses.”).
Simply put, the law does not recognize that an aborted
fetus is a person. “This conclusion follows inevitably from the
decision to grant women a right to abort. If even a [non-viable]
fetus is a person, surely the state would be allowed to protect
[the fetus] from being killed.” Id. As such, the State’s interest in
requiring abortion providers to dispose of aborted fetuses in
the same manner as human remains is not legitimate.
The State asks us to infer a legitimate interest by pointing
to state and federal fetal homicide statutes, as well as state
wrongful death statutes that treat non-viable fetuses as human
beings. But these statutes seek to address a valid state interest
in promoting respect for potential life. The fetal disposition
provisions differ because there is no potential life at stake. The
State also argues that the Supreme Court in Gonzales v. Carhart
recognized the State’s interest in fetal human dignity. 550 U.S.
at 163 (noting “the State’s interest in promoting respect for
human life at all stages of the pregnancy”). However, Gonzales
involved a “ban on abortions that involve partial delivery of a
living fetus.” Id. at 158 (emphasis added). Gonzales did not
extend the State’s interest beyond protecting potential fetal life
that was reaffirmed in Casey. Id. (“[T]he State, from the
inception of pregnancy, maintains its own regulatory interest
in protecting the life of the fetus that may become a child.”).
No. 17-3163 15
The State also relies on an Eighth Circuit decision uphold-
ing, on vagueness and substantive due process challenges, a
Minnesota fetal disposition statute, which provided that
fetuses of a certain age be disposed of “by cremation, interment
by burial, or in a manner directed by the commissioner of
health.” Planned Parenthood of Minn. v. State of Minn., 910 F.2d
479, 481 n.2 (8th Cir. 1990). As that court noted, the Supreme
Court has recognized that the State has a legitimate interest “in
regulating the disposal of fetal remains.” Id. at 481; see also City
of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 452
n.45 (1983), overruled on other grounds by Casey, 505 U.S. at
881–85 (noting that a state or municipality has a “legitimate
interest in proper disposal of fetal remains”).
First, in Planned Parenthood of Minnesota, “Planned Parent-
hood concede[d] the state ha[d] a legitimate interest in protect-
ing public sensibilities.” 910 F.2d at 488. Therefore, the Eighth
Circuit’s discussion about the nature of the state interest was
mere dicta. Second, the State’s interest here in the humane and
dignified disposal of an aborted fetus is meaningfully different.
The Minnesota statute’s stated purpose was “to protect the
public health and welfare by providing for the dignified and
sanitary disposition of the remains of aborted or miscarried
fetuses in a uniform manner.” Id. at 481 n.2. The Eighth Circuit
reiterated that the “Minnesota’s legislature's overriding
concern was protection of the public's sensibilities by ensuring
that fetal remains be disposed of in a specified manner.” Id. at
488. Thus, while Minnesota focused on the interest of the
public, Indiana focuses on the interest of the fetus. Indeed, the
State’s interest here goes well beyond the sanitary or unitary
disposal of aborted fetuses, interests which are already being
carried out under current Indiana law and health regulations
prior to HEA 1337. Instead, the humane and dignified disposal
16 No. 17-3163
of aborted fetuses requires recognizing that the fetus is legally
equivalent to a human. Since the law does not recognize the
fetus as a person, that is simply not a legitimate interest.
Even if we were to conclude that the State’s interest is
legitimate, it is not rationally related to that interest for two
reasons. First, the fetal disposition provisions did not amend
Indiana law that gives a woman “the right to determine the
final disposition of the aborted fetus.” Ind. Code § 16-34-3-2(a).
Thus, a woman may take possession of the aborted fetus and
dispose of it in whatever manner she wishes, without restric-
tion. No such provision under Indiana law allows for people to
dispose of human remains in whatever manner they wish.
Rather, Indiana law is exhaustive in its requirements for the
disposition of human remains. See § 16-37-3-1, et. seq. (regulat-
ing disposition of dead bodies); § 23-14-54-1, et seq. (setting
forth the disposition of dead human bodies at crematories);
§ 25-15-2-7 (defining disposition of human remains as inter-
ment at cemetery or mausoleum; disposal of cremated remains
on property, public land, or water; or burial at sea, among
other definitions).
Second, the fetal disposition provisions also allow for
simultaneous cremation of aborted fetuses. § 16-34-3-4(a).
Indiana law only permits simultaneous cremation of human
remains if there is prior written consent by authorizing agents.
§ 23-14-31-39(a). By allowing simultaneous cremation, the fetal
disposition provisions do not treat aborted fetuses the same as
human remains. In fact, PPINK essentially employs simulta-
neous cremation under the current law; HEA 1337 would
simply prevent PPINK from using third parties for mass
cremation with other surgical byproducts.
No. 17-3163 17
Thus, we cannot identify a rational relationship between
the State’s interest in “the humane and dignified disposal of
human remains” and the law as written, given that it allows a
woman full liberty to dispose of the fetus without restriction,
and continues to allow for mass cremation of fetuses. Accord-
ingly, the fetal disposition provisions violate substantive due
process and are also unconstitutional.
III. CONCLUSION
Because we conclude that the non-discrimination provi-
sions and the fetal disposition provisions are unconstitutional,
we AFFIRM the district court’s grant of summary judgment in
favor of PPINK, and the court’s permanent injunction barring
the enforcement of these provisions.
18 No. 17-3163
MANION, Circuit Judge, concurring in the judgment in part
and dissenting in part. To put it mildly, this is an unfortunate
case. Yet I must agree with the court that Supreme Court prec-
edent compels us to invalidate Indiana’s attempt to protect
unborn children 1 from being aborted solely because of their
race, sex, or disability. That a narrowly drawn statute meant
to protect especially vulnerable unborn children cannot sur-
vive scrutiny under Planned Parenthood of Southeastern Pennsyl-
vania v. Casey, 505 U.S. 833 (1992), is regrettable. But the fact
remains that under the Casey regime, the purported right to
have a pre-viability abortion is more ironclad even than the
rights enumerated in the Bill of Rights. Only a majority of the
Supreme Court or a constitutional amendment can permit the
States to place some limits on abortion.
The court then goes further than Casey requires, distin-
guishing an Eighth Circuit case and invalidating Indiana’s re-
quirement that abortion clinics bury or cremate fetal remains.
I cannot agree. This is but the latest example of the legal mis-
direction that occurs in abortion cases. See Hill v. Colorado, 530
U.S. 703, 741–42 (2000) (Scalia, J., dissenting). Under tradi-
tional rational basis review, if state action doesn’t infringe
upon a fundamental right or affect a protected class, we will
uphold it so long as it is rationally related to a legitimate state
1 The term “unborn child” is disfavored by some pro-choice advo-
cates, but it is also used in Supreme Court opinions. See Gonzales v. Car-
hart, 550 U.S. 124, 134 (2007) (“Abortion methods vary depending to some
extent on the preferences of the physician and, of course, on the term of
the pregnancy and the resulting stage of the unborn child's develop-
ment.”). I use it throughout this dissent to refer to the living fetus devel-
oping during the course of a pregnancy.
No. 17-3163 19
interest. The fetal remains provision easily satisfies that ex-
tremely deferential standard. That part of Indiana’s law ra-
tionally advances Indiana’s interests in protecting public sen-
sibilities and recognizing the dignity and humanity of the un-
born.
For the reasons that follow, I concur only in the court’s
judgment invalidating the nondiscrimination and disclosure
provisions. I dissent from the portion of the judgment invali-
dating the fetal remains provision.
I. The Nondiscrimination Provisions
House Enrolled Act 1337 prohibits the performance of an
abortion when the doctor knows that the woman seeks an
abortion solely because of the race, sex, or disability of the un-
born child. The provisions apply at any point in the preg-
nancy, so they directly implicate the right devised in Casey
and Roe v. Wade, 410 U.S. 173 (1973). Casey’s controlling joint
opinion held that any regulation on abortion is invalid if it
“has the purpose or effect of placing a substantial obstacle in
the path of a woman seeking an abortion of a nonviable fe-
tus.” Casey, 505 U.S. at 877 (plurality opinion). The nondis-
crimination provisions have both the purpose and effect of
prohibiting some women—those who want sex-, race-, or dis-
ability-selective abortions—from obtaining an abortion. Thus,
they erect a substantial obstacle for those women. See Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016) (“the
relevant denominator is ‘those [women] for whom [the provi-
sion] is an actual rather than an irrelevant restriction.’” (quot-
ing Casey, 505 U.S. at 895)).
Indiana and the amici States persuasively argue that the
right identified in Roe and Casey is only the right to decide
20 No. 17-3163
whether to have a child, not the right to decide which child to
have. This argument makes sense. After all, the women for
whom the nondiscrimination provisions present an obstacle
have already determined that they want a child. The nondis-
crimination provisions simply prohibit those women from
targeting their unborn child because of later-discovered im-
mutable human characteristics. Indiana and the amici States
have made a noble effort to defend a statute that should need
no defense. But the fact remains that Casey has plainly estab-
lished an absolute right to have an abortion before viability.
The joint opinion says that nothing can stand between a
woman and her choice of abortion before viability. See, e.g.,
Casey, 505 U.S. at 870 (“We conclude the line should be drawn
at viability, so that before that time the woman has a right to
choose to terminate her pregnancy.”); id. at 874 (“[T]he right
protects the woman from unduly burdensome interference
with her freedom to decide whether to terminate her preg-
nancy.”); id. at 877 (“What is at stake is the woman’s right to
make the ultimate decision, not a right to be insulated from
all others in doing so.”). While States may legislate to encour-
age informed consent or maternal health, legislation that does
too well at convincing women to choose life has been held in-
valid. See id. at 992 (Scalia, J., concurring in the judgment in
part and dissenting in part).
As an intermediate appellate court, we are bound to fol-
low Casey, and so I must agree with the court that the nondis-
crimination provisions are invalid. Yet this case reveals two
major flaws of the Casey analysis that combine to produce
such an absurd result—absurd even relative to other abortion
cases. First, Casey treats abortion as a super-right, more sacro-
sanct even than the enumerated rights in the Bill of Rights.
And second, while Casey jettisoned Roe’s strict-scrutiny test
No. 17-3163 21
for all first-trimester abortion regulation, it replaced strict
scrutiny with an effects-based test that is actually more difficult
to satisfy in many cases.
Further, if we applied strict scrutiny in this case, Indiana
could prevail. The nondiscrimination provisions are narrowly
tailored to target invidious discrimination against people
whom nobody would deny would be members of protected
classes were they allowed to be born. Surely, Indiana has a
compelling interest in attempting to prevent this type of pri-
vate eugenics. And the prohibitions would not affect the vast
majority of women who choose to have an abortion without
respect to the race, sex, or disability of the unborn child.
A. Abortion is a “Super-Right” Immune Even to Strict
Scrutiny
Ranking member of the Senate Judiciary Committee Di-
anne Feinstein has often referred to Roe as “super-prece-
dent.” 2 Of course, there’s no such thing as “super-prece-
dent”—any case may be overruled by five Supreme Court Jus-
tices. But while Roe isn’t super-precedent, it did spawn a body
of jurisprudence that has made abortion the only true “super-
right” protected by the federal courts today. The purported
right to an abortion before viability is the only one that may
2 For further criticism of “super-precedent,” see David French’s com-
mentary in National Review on Senator Feinstein’s questioning of then-
Judge Neil Gorsuch at his Supreme Court confirmation hearing. David
French, No, Senator Feinstein, Roe v. Wade is Not a ‘Superprecedent’, Na-
tional Review, Mar. 21, 2017, https://www.nationalre-
view.com/2017/03/dianne-feinstein-roe-v-wade-neil-gorsuch-superprece-
dent-lie/.
22 No. 17-3163
not be infringed even for the very best reason. For an unenu-
merated right judicially created just 45 years ago, that is
astounding.
The typical tiers-of-scrutiny analysis courts conduct in
constitutional cases is a means-ends analysis. See United States
v. Williams, 616 F.3d 685, 691 (7th Cir. 2010) (If a claim falls
within the scope of the Second Amendment, courts “apply
some level of ‘means-ends’ scrutiny to establish whether the
regulation passes constitutional muster.”). Strict scrutiny re-
quires both a compelling end and a tight fit between means
and ends; the government must “prove that the restriction
furthers a compelling interest and is narrowly tailored to
achieve that interest.” Reed v. Town of Gilbert, 135 S. Ct. 2218,
2231 (2015) (quoting Ariz. Free Enterprise Club’s Freedom PAC
v. Bennett, 564 U.S. 721, 734 (2011)). That’s a hard standard to
meet, but the Supreme Court has in recent years held that re-
strictions on fundamental rights like freedom of speech and
the right to be free from racial discrimination satisfied strict
scrutiny. See, e.g., Williams-Yulee v. Florida Bar, 135 S. Ct. 1656
(2015) (upholding Florida judicial conduct rule prohibiting ju-
dicial candidates from personally soliciting campaign funds);
Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) (uphold-
ing racially discriminatory college admissions program on the
ground that it is narrowly tailored to satisfy the university’s
interest in attaining diverse student body). This isn’t surpris-
ing in its own right. After all, “even the fundamental rights of
the Bill of Rights are not absolute.” Kovacs v. Cooper, 336 U.S.
77, 85 (1949). But when contrasted against the absolute nature
of the putative right to pre-viability abortion, we see that
abortion is now a more untouchable right than even the free-
dom of speech.
No. 17-3163 23
The doctrinal reason for this is that Casey’s “undue bur-
den” standard is not a means-ends test, but a pure effects test.
The key quote from the Casey joint opinion reveals this: a reg-
ulation of abortion is invalid if it “has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus.” Casey, 505 U.S. at 877 (em-
phasis added). This means that even a regulation narrowly
tailored to serve a compelling state interest is invalid if it pro-
hibits any abortions before viability. After all, a prohibition is
not just a substantial obstacle, but a complete obstacle. As one
commentator supportive of abortion rights explained, “un-
due burden wholly lacks such a nexus inquiry: under Casey,
courts must analyze a statute’s purpose and its effects, but
need not assess the relationship between the two.” Emma
Freeman, Note, Giving Casey its Bite Back: The Role of Rational
Basis Review in Undue Burden Analysis, 48 Harv. C.R.-C.L. L.
Rev. 279, 279–80 (2013).
The “purpose or effect” formulation will inevitably bar
every attempt to limit the incidence of abortion, even those
that don’t prohibit particular abortions. As Justice Scalia cor-
rectly observed, Casey permits Indiana to try to persuade
women to choose life “only so long as it is not too successful.”
Casey, 505 U.S. at 992 (Scalia, J., concurring in the judgment in
part and dissenting in part). 3 Since courts cannot consider the
3 Justice Scalia’s quote brings to mind another issue that looms over
most abortion cases. Planned Parenthood and other supporters of abortion
rights say that they are “pro-choice.” Yet they often challenge legislation
simply intended to inform a woman’s choice. For example, the plaintiff in
this case also obtained a preliminary injunction prohibiting Indiana from
enforcing its requirement that a woman view an ultrasound at least 18
hours before an abortion is performed unless she elects in writing not to
do so. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of
24 No. 17-3163
weight of the State’s interest in a particular case, all that mat-
ters is how effective the statute will be at limiting abortion. If
we applied this standard to other constitutional claims, no
plaintiff would ever lose. After all, state action prohibiting a
plaintiff’s speech would certainly erect a “substantial obsta-
cle” to that speech, and state action prohibiting particular
people from possessing firearms would be a “substantial ob-
stacle” to the exercise of those individuals’ Second Amend-
ment rights. But that’s not how it works. Instead, States may
even prohibit political speech. See Williams-Yulee, 135 S. Ct. at
1682–83 (Kennedy, J., dissenting) (“The individual speech
here is political speech. The process is a fair election. These
Health, 273 F. Supp. 3d 2013 (S.D. Ind. 2017), appeal filed No. 17-1883 (7th
Cir.). Planned Parenthood knows that the ultrasound is an “invaluable
tool in revealing the personhood of unborn children.” National Institute
of Family and Life Advocates, A Comprehensive Medical Conversion Pro-
gram, https://nifla.org/life-choice-project-tlc/ (last visited April 6, 2018).
That’s why it denigrates pro-life pregnancy centers that seek to show ul-
trasounds to women considering abortion. See Brief for Planned
Parenthood Affiliates of California, et al., in Nat’l Inst. of Family & Life Ad-
vocates v. Becerra at 29–30, No. 16-1140 (Sup. Ct. 2018).
Indeed, Planned Parenthood and its allies have gone as far as to sup-
port California’s effort to force pro-life pregnancy centers to advertise for
abortion. See Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823
(9th Cir. 2016), cert. granted sub nom. Nat’l Inst. of Family & Life Advocates
v. Becerra, 138 S. Ct. 464 (2017). One need not wonder what Planned
Parenthood’s reaction would be if a State were to require its clinics to ad-
vertise for free ultrasounds and counselors at pro-life pregnancy centers.
If Planned Parenthood were really pro-choice (and not just pro-abortion),
it would encourage a client who had initially been happy to be pregnant
to seek counseling elsewhere when she discovered that her unborn child
had Down syndrome or another disability. Such counseling with an in-
formed advocate for the living fetus would benefit both the woman and
her unborn child.
No. 17-3163 25
realms ought to be the last place, not the first, for the Court to
allow unprecedented content-based restrictions on speech.”).
And the federal government can withdraw Second Amend-
ment rights from significant groups of people based on prior
conduct. United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en
banc) (upholding the constitutionality of 18 U.S.C. § 922(g)(9),
which prohibits those convicted of misdemeanor domestic vi-
olence from possessing firearms). While these fundamental
rights are subject to significant limitations under heightened
scrutiny, the purported right to an abortion before viability is
absolute because of Casey’s purpose or effect test.
That today’s outcome is compelled begs for the Supreme
Court to reconsider Roe and Casey. But assuming the Court is
not prepared to overrule those cases, it is at least time to
downgrade abortion to the same status as actual constitu-
tional rights. The Court can start by permitting the States to
assert their legitimate interests in defense of abortion laws.
Since Casey disavowed universal application of strict scrutiny
in abortion cases, the question remains how to determine the
proper means-ends test to apply. Fortunately, one already ex-
ists that would give courts flexibility to adjust the level of
scrutiny based on the severity of the “burden” on the putative
abortion right: the Anderson-Burdick sliding scale the Court
uses to evaluate election regulations.
Anderson-Burdick is a sliding scale of means-ends scrutiny.
Libertarian Party of New Hampshire v. Gardner, 638 F.3d 6, 14
(1st Cir. 2011). If an election law imposes a severe burden on
speech and association rights, it must satisfy strict scrutiny.
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citing Norman v.
Reed, 502 U.S. 279, 289 (1992)). But if the law is “reasonable”
and “nondiscriminatory,” then rational basis review is proper
26 No. 17-3163
and “‘the State’s important regulatory interests are generally
sufficient to justify’ the restrictions.” Id. (quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983)); see also Crawford v. Marion
Cty. Election Bd., 553 U.S. 181, 189–91 (2008) (plurality opin-
ion) (“However slight that burden may appear ... it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.’” (quoting Norman, 502 U.S.
at 288–89)). In this context, Anderson-Burdick would require a
plaintiff challenging a restrictive abortion law to make a
threshold showing that the regulation was a “severe” burden
on the right. If the plaintiff could manage that, then the State
would have to satisfy strict scrutiny. If not, then courts would
uphold [the regulation] so long as it was rationally related to
a legitimate government interest.
Replacing Casey’s “purpose or effect” test with Anderson-
Burdick’s sliding scale (or any other means-ends test) would
at least give Indiana a chance to defend its ban on discrimina-
tory abortions. As it is, the State loses before it can even say a
word. That disparate treatment of abortion cases is not only
unfair, but lacks any basis in text, structure, or tradition. It is
an aberration that should be corrected. I continue to agree
with the dissenting justices in Roe and Casey. But if we are
stuck with those landmark decisions, the abortion rights those
cases created should at least be on a level playing field with
the rest of the Constitution. The Casey abortion-specific test
should be replaced with traditional means-ends scrutiny. This
would go a long way towards normalizing the federal courts’
abortion jurisprudence.
No. 17-3163 27
B. Indiana Might Prevail Under Strict Scrutiny
If the Court were to agree to apply strict scrutiny to the
nondiscrimination provisions, what would happen? Admit-
tedly, this is a difficult question, because Casey has not per-
mitted means-ends scrutiny of abortion laws for decades. In-
diana appears to be the first State that has attempted to protect
particular unborn children from abortion based on their hu-
man characteristics. 4 Nevertheless, the analysis should not be
all that difficult. Nobody would dispute that Indiana has a
compelling interest in protecting mixed-race children,
women, and disabled individuals from discrimination. That
the developing human lives Indiana seeks to protect are pre-
born shouldn’t change that.
4 Other states have followed Indiana’s lead, so this particular issue is
not going away. An Ohio district court recently granted a preliminary in-
junction prohibiting enforcement of a similar Ohio law. Preterm-Cleveland
v. Himes, No. 1:18-cv-109, _ F. Supp. 3d _, 2018 WL 1315019 (S.D. Ohio Mar.
14, 2018). And the Utah House of Representatives recently passed a simi-
lar bill by a 54-17 vote this past February. Ben Lockhart, Committee Likely
to Prevent Senate Hearing on Bill Barring Down Syndrome Abortions, Sponsor
Says, Deseret News, Mar. 7, 2018, https://www.deseretnews.com/arti-
cle/900012362/committee-likely-to-prevent-senate-hearing-on-bill-bar-
ring-down-syndrome-abortions-sponsor-says.html.
28 No. 17-3163
Race, sex, and disability-selective abortions are obviously
all problematic, 5 but I will focus here on the particular prob-
lem of abortion due to a diagnosis of Down syndrome. 6 Per-
mitting women who otherwise want to bear a child to choose
5Opposing sex-selective abortions, for instance, used to be uncontro-
versial. As recently as 2007, the Ethics Committee of the American College
of Obstetricians and Gynecologists “oppose[d] meeting requests for sex
selection for personal and family reasons, including family balancing, be-
cause of the concern that such requests may ultimately support sexist
practices.” American College of Obstetricians and Gynecologists Commit-
tee on Ethics, Sex Selection, No. 360, p. 3 (Feb. 2007), available at
https://www.nzord.org.nz/news/news-and-press-releases?a=4239. The
Committee “share[d] the concern expressed by the United Nations and
the International Federation of Gynecology and Obstetrics that sex selec-
tion can be motivated by and reinforce the devaluation of women.” Id. at
2. Research backs up this position, particularly noting the disastrous ef-
fects of widespread sex-selective abortion in Asia. See Hesketh, Lu, &
Xing, The Consequences of Son Preference and Sex-Selective Abortion in China
and other Asian Countries, 183 Canadian Med. Ass’n. J. 1374 (2011). Yet
Planned Parenthood, which claims to be a women’s rights organization,
has still challenged a State ban on sex-selective abortion.
6Indiana’s law and this litigation have provoked a public debate
about abortion of unborn children with Down syndrome. Nationally syn-
dicated columnists Marc Thiessen and George Will have weighed in
strongly opposing the practice. Marc A. Thiessen, When Will We Stop Kill-
ing Humans with Down Syndrome, Wash. Post, Mar. 8, 2018,
https://www.washingtonpost.com/opinions/when-will-we-stop-killing-
humans-with-down-syndrome/2018/03/08/244c9eba-2306-11e8-badd-
7c9f29a55815_story.html?utm_term=.57852865480a; George F. Will, The
Real Down Syndrome Problem: Accepting Genocide, Wash. Post, Mar. 14, 2018,
https://www.washingtonpost.com/opinions/whats-the-real-down-syn-
drome-problem-the-genocide/2018/03/14/3c4f8ab8-26ee-11e8-b79d-
f3d931db7f68_story.html?utm_term=.2ed16d15c40b. Ruth Marcus of the
Washington Post has defended it. Ruth Marcus, I Would’ve Aborted a Fetus
with Down Syndrome. Women Need That Right, Wash. Post, Mar. 9, 2018,
https://www.washingtonpost.com/opinions/i-wouldve-aborted-a-fetus-
No. 17-3163 29
abortion because the child has Down syndrome perpetuates
the odious view that some lives are worth more than others
and increases the “stigma associated with having a genetic
disorder.” Peter A. Benn & Audrey R. Chapman, Practical and
Ethical Considerations of Noninvasive Prenatal Diagnosis, 301 J.
Am. Med. Ass’n 2154, 2155 (2009). Weren’t we done with that
when society repudiated the disgraceful language in Buck v.
Bell, 274 U.S. 200, 207 (1927), that “[t]hree generations of im-
beciles are enough”? Yet some countries are now celebrating
the “eradication” of Down syndrome through abortion. Alex-
andra DeSanctis, Iceland Eradicates People with Down Syndrome,
National Review, Aug. 16, 2017, https://www.nationalre-
view.com/2017/08/down-syndrome-iceland-cbs-news-dis-
turbing-report/. That not only devalues the lives of those liv-
ing with Down syndrome, but it dis-incentivizes research that
might help them in the future.
What is more, studies show that people with Down syn-
drome and their parents and siblings are quite happy and lead
fulfilling lives. A 2011 Harvard study found that “[a]mong
those surveyed, nearly 99% of people with DS indicated that
they were happy with their lives, 97% liked who they are, and
96% liked how they look. Nearly 99% of people with DS ex-
pressed love for their families, and 97% liked their brothers
and sisters.” Skotko, Levine, & Goldstein, Self-Perceptions
From People With Down Syndrome, 2011 Am. J. Med. Genetics
2360, 2360, 2364. In the same year, Boston Children’s Hospital
found that 99 percent of parents or guardians of Down syn-
drome children loved their child and 79 percent “felt their
outlook on life was more positive because of their child.”
with-down-syndrome-women-need-that-right/2018/03/09/3aaac364-
23d6-11e8-94da-ebf9d112159c_story.html?utm_term=.8bcb5841a660.
30 No. 17-3163
http://www.childrenshospital.org/news-and-
events/2011/september-2011/parents-sibilings-and-people-
with-down-syndrome-report-positive-experiences. (last vis-
ited April 19, 2018 Ninety-four percent of siblings 12 and
older reported that they were proud of their Down syndrome
brother or sister, and 88 percent said that they were better
people because of their sibling. Id. Children with Down syn-
drome bring joy to everyone around them. And despite their
limitations, they can go on to achieve great things. People like
Karen Gaffney, who leads a non-profit foundation dedicated
to advocating for those with Down syndrome, prove that
point all the time. Gaffney has swam across Boston Harbor,
completed a relay across the English Channel, and competed
in the Escape from Alcatraz triathlon in the course of her ad-
vocacy. Down Syndrome International, Karen Gaffney Braves
the Elements to Complete Boston Harbour Swim, https://ds-
int.org/news/karen-gaffney-braves-elements-complete-bos-
ton-harbour-swim-down-syndrome-international-13.(last
visited April 19, 2018). 7
Even though Indiana cannot stop all abortions, it has a
compelling interest in prohibiting those performed simply be-
cause the unborn child is of the wrong sex the wrong race or
has a genetic disability. And it is hard to imagine legislation
7 To be clear, Indiana’s compelling interest in prohibiting abortions
sought because of the unborn child’s disability stems primarily from the
intrinsic value and dignity of all humans, before and after birth, regardless
of their utilitarian worth. But the statistics show that, contrary to the belief
of some, a diagnosis of Down syndrome is not a sentence to a life of mis-
ery. Instead, those with Down syndrome lead fulfilling lives and bring joy
to everyone around them.
No. 17-3163 31
more narrowly tailored to promote this interest than the non-
discrimination provisions. The challenged sections only pro-
hibit abortions performed solely because of the race, sex, or
disability of the unborn child. The doctor also must know that
the woman has sought the abortion solely for that purpose.
These are provisions that apply only to very specific situa-
tions and carefully avoid targeting the purported general
right to pre-viability abortion. They will not affect the vast
majority of women who choose to have an abortion without
considering the characteristics of the child. Indeed, they will
not even affect women who consider the protected character-
istics along with other considerations. If it is at all possible to
narrowly tailor abortion regulations, Indiana has done so. 8
Because the nondiscrimination provisions are narrowly
tailored to further a compelling state interest, they seem likely
to satisfy strict scrutiny. This case thus highlights the problem
with Casey’s “purpose or effect” test. While Casey purported
to reject prior cases that gave short shrift to the State’s interest
in protecting unborn life, its abandonment of means-ends
scrutiny can produce absurd results. One of those is that Indi-
ana has lost the ability to defend its abortion restrictions, even
under “the most demanding level of judicial review.” Smith v.
Shalala, 5 F.3d 235, 238 (7th Cir. 1993).
8 For comparison, the similar Ohio statute struck down in Preterm-
Cleveland (referenced in footnote 4) is not as narrowly tailored as Indiana’s
law. The Ohio law prohibits the performance an abortion if the doctor “has
knowledge that the pregnant woman is seeking the abortion, in whole or in
part, because of” a fetal diagnosis of Down syndrome. Ohio Rev. Code §
2919.10(B) (emphasis added). Because the Ohio statute prohibits abortions
performed due in part to a diagnosis of Down syndrome, it prohibits more
abortions than the law challenged here.
32 No. 17-3163
I would prefer to sustain the nondiscrimination provi-
sions. Because I have no choice but to follow Supreme Court
precedent, I reluctantly concur in the court’s judgment inval-
idating them. 9
II. The Fetal Remains Provision
The court also invalidates Indiana’s requirement that
abortion clinics bury or cremate the remains of the unborn
child if the woman chooses to leave the remains with the
clinic. I cannot agree.
The parties and the court agree that the fetal remains pro-
vision is subject only to rational basis review. “Legislation in
question is presumed to be rational.” Peterson v. Lindner, 765
F.2d 698, 705 (7th Cir. 1985). That is, the mere fact that this
legislation passed both Houses of the Indiana General Assem-
bly and was signed by the Governor endows it with a pre-
sumption of rationality. 10 Indeed, it is hard to overstate how
deferential our review is in rational basis cases under the
Equal Protection and Due Process Clauses. In an equal pro-
9As the court explains, the disclosure provision falls with the nondis-
crimination provisions. If the nondiscrimination provisions are invalid, it
follows that Indiana cannot require physicians to tell women that Indiana
law prohibits abortions performed because of the race, sex, or disability of
the unborn child. Therefore, I also join the court’s judgment invalidating
this provision.
10 House Enrolled Act 1337 easily passed both Houses of the General
Assembly. After amendments, the Senate voted 37-13 in favor and the
House concurred in the Senate amendments by a vote of 60-40. Indiana
General Assembly, 2016 Session, Actions for House Bill 1337,
https://iga.in.gov/legislative/2016/bills/house/1337#document-51b52d50
(last visited April 9, 2018).
No. 17-3163 33
tection case, we’ve said that “the burden is upon the challeng-
ing party to eliminate any reasonably conceivable state of
facts that could provide a rational basis for the classification.”
Smith v. City of Chicago, 457 F.3d 643, 652 (7th Cir. 2006). And
in a due process case, we’ve emphasized that review is
“highly deferential” to the point where government action
“must be ‘utterly lacking in rational justification.’” Brown v.
City of Michigan City, 462 F.3d 720, 733 (7th Cir. 2006) (quoting
Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000)). “Under
rational basis review, the plaintiff almost invariably loses.”
Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham
L. Rev. 887, 889 (2012).
The court errs in several respects. First, it draws a distinc-
tion from the Eighth Circuit, which has upheld a substantially
similar Minnesota law. Then, the court adopts Planned
Parenthood’s red herring argument that Indiana cannot re-
quire fetal remains be disposed with dignity because unborn
children are not persons under the Fourteenth Amendment.
And finally, the court departs from traditional rational basis
review and requires far too close a fit between means and
ends. Combined, these errors produce a result that would
never happen in any context but abortion.
A. Distinction from the Eighth Circuit
In City of Akron v. Akron Center for Reproductive Health, Inc.,
462 U.S. 416, 451–52 (1983)—a decision overruled by Casey be-
cause it undervalued the State’s interest in unborn life—the Su-
preme Court invalidated on vagueness grounds an Akron or-
dinance that required doctors performing abortions to “in-
sure that the remains of the unborn child are disposed of in a
humane and sanitary manner.” But while the Court held that
34 No. 17-3163
the ordinance failed to give doctors fair notice of what con-
duct would be criminalized, it was careful to explain that its
decision wouldn’t prevent Akron from enacting another ordi-
nance with more definite terms. Indeed, the Court recognized
in a footnote that States have a “legitimate interest in the
proper disposal of fetal remains.” Id. at 452. The problem with
the ordinance wasn’t that Akron could never regulate the dis-
position of fetal remains, but that its ordinance was not spe-
cific enough. Akron at least hinted that States may require that
abortion doctors respect the dignity of the unborn child when
disposing of her remains. What other interest could the Court
have meant by the “proper disposal of fetal remains”? (empha-
sis added).
The Eighth Circuit then confronted a more definite statute
in Planned Parenthood of Minnesota v. Minnesota, 910 F.2d 479
(8th Cir. 1990). The challenged Minnesota law required that
fetal remains be disposed of “by cremation, interment by bur-
ial, or in a manner directed by the commissioner of health.”
Minn. Stat. § 145.1621(4). The court held the law was not
vague because it specifically described the ways in which re-
mains must be disposed. Planned Parenthood, 910 F.2d at 482–
83. Having avoided the Akron problem, the court went on to
conclude that the requirement was rationally related to Min-
nesota’s legitimate interest in protecting “public sensibili-
ties.” Id. at 488.
This case is very similar to the Eighth Circuit’s decision.
The Indiana Administrative Code provision here says that
each abortion clinic “shall provide for the disposition of an
aborted fetus by any of the following methods: (1) In the earth
in an established cemetery pursuant to Ind. Code § 23-14-34.
(2) Cremation.” 410 Ind. Admin. Code § 35-2-1(a). And similar
No. 17-3163 35
to the Minnesota law, Indiana’s law does not apply to women
who choose to take the remains of their unborn children home
rather than leave them at the clinic. See Planned Parenthood,
910 F.2d at 488 (holding that “given the privacy concerns im-
plicit in activity in one’s home,” the State could regulate clin-
ics and not individual women disposing remains at home);
Ind. Code § 16-34-3-2(a) (“A pregnant woman who has an
abortion under this article has the right to determine the final
disposition of the aborted fetus.”). The Indiana and Minne-
sota laws are substantially similar in every material respect.
The court tries to distinguish Planned Parenthood of Minne-
sota, noting that the Eighth Circuit said the overriding pur-
pose of the Minnesota law was “protection of the public’s sen-
sibilities by ensuring that fetal remains be disposed of in a
specified manner.” Planned Parenthood, 910 F.2d at 488. Indi-
ana’s law, the court says, “goes well beyond the sanitary or
unitary disposal of aborted fetuses, interests which are al-
ready being carried out under current Indiana law and health
regulations prior to HEA 1337.” Maj. Op. at 15–16. But, while
the Eighth Circuit termed Minnesota’s interest “protecting
public sensibilities,” in reality the same state interest is in-
volved in both cases; the dignified and humane disposal of
the remains of unborn children. Why else would both laws
dictate two methods of disposal typical for humans, but not
typical for medical waste? Whether you call it “public sensi-
bilities,” “morality,” or “human dignity,” the state interest is
the same. That interest is sufficient to justify the fetal remains
provision. 11
11 Indeed, an argument can be made that circulation under Circuit
Rule 40(e) is appropriate here because the panel’s decision creates a circuit
split. See United States v. Sinclair, 770 F.3d 1148, 1158 n.2 (7th Cir. 2014).
36 No. 17-3163
B. Fourteenth Amendment Personhood
That leads me to the next point. The court says it cannot
accept Indiana’s purported interests in dignified and humane
disposition of fetal remains because that would “require[] rec-
ognizing that the fetus is legally equivalent to a human.” Maj.
Op. at 16. According to the court, because unborn children are
not recognized as persons under the Fourteenth Amendment,
Indiana may not require they be treated as such. But this is a
red herring. The Supreme Court’s judgment that the Four-
teenth Amendment does not protect the unborn certainly
means that the States cannot interfere with the purported
right to abortion. It also means that Indiana isn’t required to
treat fetal remains the same as other human remains, as it
might be if the unborn had legal personhood. But it doesn’t
follow that the States can’t—within the confines of Roe and
Casey—recognize the dignity and humanity of the unborn. In-
deed, a supermajority of the States already do just that by en-
forcing fetal homicide laws, the constitutionality of which has
never been doubted. See Brief of Wisconsin, et al., as Amicus
Curiae at 16; Coleman v. DeWitt, 282 F.3d 908, 912–13 (6th Cir.
2002) (rejecting a manslaughter defendant’s argument that
Ohio’s fetal homicide statute was unconstitutional as applied
to unborn children before viability).
Fetal homicide laws are different, the court says, because
they “seek to address a valid state interest in promoting re-
spect for potential life.” Maj. Op. at 14. That misses the point.
The court argues that States cannot treat unborn children as
persons, but fetal homicide statutes, as well as wrongful death
The panel avoids this problem by distinguishing Planned Parenthood of
Minnesota from this case.
No. 17-3163 37
statutes treating non-viable fetuses as human beings, do just
that. Even the term “fetal homicide” presumes that the un-
born child is a person, at least for the purposes of those stat-
utes, as “homicide” is “[t]he killing of one person by another.”
Black’s Law Dictionary 802 (9th ed. 2009). It makes no sense
to say that States may value the dignity of an unborn child in
some instances, but not if the pregnant woman wants to abort
her. Simply put, the fact that the unborn are not persons un-
der the Fourteenth Amendment does not prohibit States from
recognizing their inherent dignity and humanity.
C. Fit between Means and Ends
Not content with devaluing the importance of Indiana’s
interests, the court proceeds to require far too tight a fit be-
tween those interests and the disposition requirements. The
court says that Indiana isn’t really treating aborted children as
human beings because it still permits women to take fetal re-
mains home from the abortion clinic and still allows for sim-
ultaneous cremation. So while the court’s initial objection was
that Indiana treats unborn children as too human, it then ob-
jects that the provision is irrational because it doesn’t treat un-
born children as human enough. That is not how rational ba-
sis review works.
The court’s objections amount to claims that the fetal re-
mains provision is underinclusive. But even where a law is
“simultaneously overinclusive and underinclusive” it still
may “easily” withstand rational basis review “because ‘per-
fection is by no means required’ and [a] ‘provision does not
offend the Constitution simply because the classification is
not made with mathematical nicety.’” Wis. Educ. Ass’n Council
v. Walker, 705 F.3d 640, 656 (7th Cir. 2013) (quoting Vance v.
38 No. 17-3163
Bradley, 440 U.S. 93, 108 (1979)). “[N]o legislation pursues its
purposes at all costs.” Rodriguez v. United States, 480 U.S. 522,
525–26 (1987). The Indiana General Assembly might ration-
ally have decided that “given the privacy concerns implicit in
activity in one’s home,” it did not want to regulate the con-
duct of women in their own homes. Planned Parenthood, 910
F.2d at 488. It could have also rationally concluded that it
would be too costly to require individual cremation, or even
that the law wouldn’t have passed with such a requirement.
These line-drawing questions are quintessentially legislative.
Simply put, “the Constitution does not require [Indiana] to
draw the perfect line nor even to draw a line superior to some
other line it might have drawn. It requires only that the line
actually drawn be a rational line.” Armour v. City of Indianap-
olis, 566 U.S. 673, 685 (2012). The General Assembly acted ra-
tionally, so we lack the power to disturb its judgment.
***
Like the Eighth Circuit, I would conclude that Indiana’s
fetal remains provision is rationally related to the State’s in-
terest in protecting public sensibilities. I would add that Indi-
ana has a significant interest in recognizing the dignity and
humanity of the unborn child. “The traditional police power
of the States is defined as the authority to provide for the pub-
lic health, safety, and morals.” Tagami v. City of Chicago, 875
F.3d 375, 379 (7th Cir. 2017) (quoting Barnes v. Glen Theatre,
501 U.S. 560, 568–69 (1991)). The People of Indiana have spo-
ken. If we must permit abortion, they say, the victims of that
procedure should at least be entitled to be treated better than
medical waste. That judgment is not irrational.
No. 17-3163 39
I would reverse the judgment of the district court with re-
spect to the fetal remains provision and remand with instruc-
tions to enter judgment for the State.
III. Conclusion
Indiana made a noble attempt to protect the most vulner-
able members of an already vulnerable group. That it must
fail is not due to lack of effort either by the legislators who
drafted it or the Solicitor General who ably argued before us.
The Supreme Court’s abortion jurisprudence proved an in-
surmountable obstacle despite their best efforts. More than
anything, this case illustrates the extent to which abortion has
become the most favored right in American law. Without a
significant recalibration, the States sadly cannot protect even
unborn children targeted because of their race, sex, or a diag-
nosis of Down syndrome. But this court is powerless to
change that state of affairs. Only the Supreme Court or a con-
stitutional amendment can do that.
Until that time comes, there may be a workable standard
that would preserve the putative general right to pre-viability
abortion while permitting the States to prohibit certain abor-
tions provided the prohibitions are narrowly drawn to further
a compelling state interest. Prohibiting the targeting of partic-
ular unborn children who were originally welcomed but later
targeted based on their immutable characteristics would meet
that standard. If States cannot at least do this, abortion will
remain the most sacred constitutional right. Still, even with
the high wall that Roe and Casey have erected, it may be pos-
sible to ensure that States can place some meaningful limits
40 No. 17-3163
on abortion. Scrapping Casey’s “purpose or effect” test in fa-
vor of traditional means-ends scrutiny would be a good place
to start.
As it is, I am compelled to concur in the court’s judgment
invalidating the nondiscrimination provisions and the disclo-
sure provision. With respect to the fetal remains provision,
however, I am not so constrained. I would hold that it is a le-
gitimate exercise of Indiana’s police power. Therefore, I re-
spectfully dissent from that portion of the court’s opinion.