SCOTUS may hear appeal of Indiana law that directly challenges Roe

This is an issue that may be taken up by the Supreme Court that hasn't gotten a lot of national attention. It involves an Indiana law, referred to as the "Eguenics Statute," passed in 2016 that makes it  illegal for women to have an abortion on the basis of race or sex or because they learn they will otherwise give birth to a baby with Down syndrome.

The law was declared unconstitutional in the lower courts, but Indiana has appealed to the Supreme Court. The court privately reviewed the case this past Friday and will decide as early as next week whether to hear arguments.

What makes this particular case so significant is that it will be the first major abortion case to come before the court since Brett Kavanaugh was confirmed.

Washington Examiner:

State lawmakers in Indiana appealed the case about a week after Kavanaugh was sworn in, arguing that “technological advances have improved ... prenatal testing that screens for Down syndrome and other fetal abnormalities,” which results in most women choosing abortion when they receive a diagnosis.

The latest available data, from 1995-2011, show that 67 percent of pregnancies that test positive for Down syndrome end in abortion. Pregnant women can screen for Trisomy 21, a chromosomal abnormality, through a blood sample.

The Indiana abortion ban was signed by Vice President Mike Pence, who was governor of the state at the time. It contains exemptions for conditions that "with reasonable certainty result in the death of the child not more than three months after the child’s birth.”

In 2016, a federal judge blocked the Indiana law from going into effect, and a 3-0 ruling in the 7th Circuit Court in Chicago ruled it unconstitutional. They pointed to the Supreme Court's Roedecision, saying the choice to have an abortion was not up to the government but was to be a decision between a woman and her doctor. In June, a dissenting opinion urged the appeals court to reconsider its ruling, with one of the judges saying that the Supreme Court had not ruled on what he termed a "eugenics statute."

Kavanaugh gave little clue during his Senate testimony as to where he might stand on challenging Roe v Wade:

The question over whether Kavanaugh would cast a deciding vote to overrule or weaken Roe featured prominently in Democratic attacks early during his confirmation hearings. Later, the messaging centered primarily on sexual assault allegations from Christine Blasey Ford, who said he touched her inappropriately and covered her mouth while he was drunk and they were both in high school.

When asked by senators about abortion, Kavanaugh cited Roe and Planned Parenthood v. Casey, decisions that legalized the procedure nationwide up until fetal viability, generally understood as up to 24 weeks. Casey allowed states to regulate abortion but prohibited them from placing an "undue burden" on women who seek an abortion.

Kavanaugh did not say during the hearings how he would rule on abortion or whether he believed women had a right to abortion, stressing instead that Casey created a " precedent on precedent."

If the court took the case, they may be inclined to rule narrowly on the issue, confirming or striking down the law, without really dealing with the underlying problem of abortion on demand.

An elective abortion cannot be justified as medically necessary, meaning that other reasons not related to the health of the woman are used to justify it. If you can abort a child based on the fact that it will be a burden to its parents because of some condition they are born with, why not have the right to abort a girl baby because you wanted a boy? It's a slippery slope that the Indiana law seeks to address. If confirmed by the high court, the law could become the basis for severely restricting the reasons a woman can have a legal abortion.

Activists know this, of course, which is why they are fighting the law tooth and nail. While no one can guess where Justice Kavanaugh might stand on the issue, he could support a ruling that would keep Roe intact, but make it much harder to get an abortion. That would maintain both the Roe and Casey precedents while carving out new restrictions on abortion.

This is an issue that may be taken up by the Supreme Court that hasn't gotten a lot of national attention. It involves an Indiana law, referred to as the "Eguenics Statute," passed in 2016 that makes it  illegal for women to have an abortion on the basis of race or sex or because they learn they will otherwise give birth to a baby with Down syndrome.

The law was declared unconstitutional in the lower courts, but Indiana has appealed to the Supreme Court. The court privately reviewed the case this past Friday and will decide as early as next week whether to hear arguments.

What makes this particular case so significant is that it will be the first major abortion case to come before the court since Brett Kavanaugh was confirmed.

Washington Examiner:

State lawmakers in Indiana appealed the case about a week after Kavanaugh was sworn in, arguing that “technological advances have improved ... prenatal testing that screens for Down syndrome and other fetal abnormalities,” which results in most women choosing abortion when they receive a diagnosis.

The latest available data, from 1995-2011, show that 67 percent of pregnancies that test positive for Down syndrome end in abortion. Pregnant women can screen for Trisomy 21, a chromosomal abnormality, through a blood sample.

The Indiana abortion ban was signed by Vice President Mike Pence, who was governor of the state at the time. It contains exemptions for conditions that "with reasonable certainty result in the death of the child not more than three months after the child’s birth.”

In 2016, a federal judge blocked the Indiana law from going into effect, and a 3-0 ruling in the 7th Circuit Court in Chicago ruled it unconstitutional. They pointed to the Supreme Court's Roedecision, saying the choice to have an abortion was not up to the government but was to be a decision between a woman and her doctor. In June, a dissenting opinion urged the appeals court to reconsider its ruling, with one of the judges saying that the Supreme Court had not ruled on what he termed a "eugenics statute."

Kavanaugh gave little clue during his Senate testimony as to where he might stand on challenging Roe v Wade:

The question over whether Kavanaugh would cast a deciding vote to overrule or weaken Roe featured prominently in Democratic attacks early during his confirmation hearings. Later, the messaging centered primarily on sexual assault allegations from Christine Blasey Ford, who said he touched her inappropriately and covered her mouth while he was drunk and they were both in high school.

When asked by senators about abortion, Kavanaugh cited Roe and Planned Parenthood v. Casey, decisions that legalized the procedure nationwide up until fetal viability, generally understood as up to 24 weeks. Casey allowed states to regulate abortion but prohibited them from placing an "undue burden" on women who seek an abortion.

Kavanaugh did not say during the hearings how he would rule on abortion or whether he believed women had a right to abortion, stressing instead that Casey created a " precedent on precedent."

If the court took the case, they may be inclined to rule narrowly on the issue, confirming or striking down the law, without really dealing with the underlying problem of abortion on demand.

An elective abortion cannot be justified as medically necessary, meaning that other reasons not related to the health of the woman are used to justify it. If you can abort a child based on the fact that it will be a burden to its parents because of some condition they are born with, why not have the right to abort a girl baby because you wanted a boy? It's a slippery slope that the Indiana law seeks to address. If confirmed by the high court, the law could become the basis for severely restricting the reasons a woman can have a legal abortion.

Activists know this, of course, which is why they are fighting the law tooth and nail. While no one can guess where Justice Kavanaugh might stand on the issue, he could support a ruling that would keep Roe intact, but make it much harder to get an abortion. That would maintain both the Roe and Casey precedents while carving out new restrictions on abortion.