CHECKING THE BOX-ES: ATTEMPTING TO SUBVERT ROE KATHLEEN CONN* & BRIANNA KOVIT** ABSTRACT This Article analyzes the issue of a woman’s right to legalized abortion and state attempts to circumvent the precedential U.S. Supreme Court decisions recognizing a woman’s right to bodily autonomy, using the state of Indiana as a persistent example of such attempts. A woman’s right to legal abortion is a public health concern. Protection of legal abortion is found through the right to privacy, a right inferred from several amendments to the United States Bill of Rights. The Supreme Court’s inaction in the Indiana litigation and more recently, in the Texas case, leaves many women who seek abortions with no recourse. I. INTRODUCTION Ever since the Trump administration began the appointment of Supreme Court Justices with reputations for conservative views, both legal and social commentators began predicting the High Court’s imminent repudiation of Roe v. Wade.1 The tragic death of Justice Ruth Bader Ginsburg intensified the speculation. However, the attempts to overturn Roe were in the works decades earlier, with over twenty state legislatures passing laws or putting laws on the books that restricted pre- and post-viability abortions, chipping away bit by bit at Roe in subtle and not-so-subtle ways under the guise of “safeguarding women’s health.”2 The women who stood to be affected by these restrictions included adults, both married and single, as well as school-aged minors whose educations would, in many cases, be terminated by pregnancy. One of the more vigorous and persistent anti-Roe campaigns was waged by the state legislature of Indiana. This commentary will examine the three latest attempts by Indiana to force the Court to abandon both Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey.3 Part I will describe and analyze two different litigation forays recently mounted by Indiana which were vacated and remanded by the High Court in light of June Medical Services v. Russo,4 as well as how one court responded to the remand. Part II will examine perhaps the most dangerous anti-Roe arguments of the Indiana legislature, the * Ph.D., J.D., LL.M.; Of Counsel at the law firm of King, Spry, Herman, Freund & Faul, LLC, in Bethlehem, Pennsylvania, and an Adjunct Professor at Muhlenberg College, Public Health Department. ** Student at Muhlenberg College, Allentown, Pennsylvania, in the Public Health Department. 1. See Roe v. Wade, 410 U.S. 113 (1973). 2. Abortion Policy in the Absence of Roe, GUTTMACHER INST., https://www.guttmacher.org/ state-policy/explore/abortion-policy-absence-roe [https://perma.cc/A5QC-BQQE] (last updated Jan. 13, 2022). 3. See Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992). 4. See June Med. Services LLC. v. Russo (June Med. 1), 140 S. Ct. 2103 (2020). 330 INDIANA HEALTH LAW REVIEW [Vol. 19:329 revised statute for disposal of aborted fetal remains and the ban on voluntary selective abortions. Part III will examine the possible relevance of the ban on voluntary selective abortions to the eugenics movement and the High Court’s limited reaction to the ban. Part IV will analyze whether Indiana’s attempts to restrict abortions pose a true challenge to Roe and its progeny and attempt to dust off the proverbial crystal ball. II. INDIANA’S EFFORTS TO RESTRICT WOMEN’S ACCESS TO ABORTIONS AND JUNE MEDICAL A. The Eighteen-Hour Waiting Time Since 1995, according to the Seventh Circuit Court of Appeals,5 the state of Indiana law required that, at least eighteen hours before a woman had an abortion, the state would provide the woman information about the abortion procedure, fetal life and development, and alternatives to abortion. The state legislature freely admitted that it provided this information in an attempt to convince the woman to forego the abortion and, by doing so, advance the state’s interest in preserving fetal life. At that time, in addition to providing the information, the state also required that a woman submit to an ultrasound of her fetus and hear the fetal heartbeat, but she could decline either or both, and 75% of women did in fact decline. At this time, the ultrasound was usually performed just before the abortion procedure. However, in July 2016, the Indiana House Enrolled Act 1337 (“HEA 1337”) amended the law and added a “timing” mandate, that a woman seeking an abortion have an ultrasound performed at least eighteen hours before the actual abortion procedure, with no opt-out opportunity.6 Virtually all abortions in Indiana in 2016 occurred at four of the seventeen Planned Parenthood of Indiana and Kentucky (“PPINK”) health centers, and these centers also had ultrasound facilities. The woman could refuse to view the ultrasound image but had to affirmatively decline to do so on an official state form.7 The PPINK centers with ultrasound capability were not open for abortions every day, some only one or three days per week. The eighteen-hour requirement between ultrasound and abortion procedure meant that two visits to one of the centers were necessary, and many women had to travel significant distances, often 100 miles or more, to get to the center, and stay at least overnight in accommodations near the facility.8 Most of the women seeking abortions at 5. Planned Parenthood of Ind. and Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, et al. (Planned Parenthood of Ind. & Ky., Inc. 1), 896 F.3d 809, 812 (7th Cir. 2018), reh’g and reh’g en banc denied, Oct. 5, 2018. 6. IND. CODE § 16-34-2-1.1 (2021). 7. Planned Parenthood of Ind. & Ky., Inc. 1, 896 F.3d at 812. 8. Id. at 815. The Seventh Circuit reported, “For example, women in the second largest city in Indiana, Fort Wayne, must now travel approximately 400 miles over two days to obtain an abortion, as the closest ultrasound machine is 87 miles away in Mishawaka (174 miles round trip) 2022] CHECKING THE BOX-ES 331 PPINK centers were poor, with approximately over half of the women with incomes at or below 200% of the Federal Poverty Line.9 The district court had concluded that the burdens on women seeking abortions were clearly undue when compared to the state’s goals of promoting fetal life and women’s health, and granted PPINK’s request for a preliminary injunction.10 The Seventh Circuit agreed, citing Casey11 and Whole Woman’s Health,12 and stated that the eighteen-hour ultrasound requirement before the abortion procedure created an impediment to the women’s access to abortion services, and the lengthy travel necessitated by the time requirement was itself the origin of the burden. The eighteen-hour requirement was, therefore, unconstitutional.13 The Seventh Circuit then formulated a balancing test where the relevant comparators were the burdens and benefits deriving from the eighteen-hour time required between ultrasound and abortion services in HEA 1337. The appellate court listed the burdens involved in the newly enforced waiting period, particularly for poor women seeking abortions, as added travel expenses, childcare costs, loss of wages, risk of job loss, and potential danger from an abusive partner.14 The corresponding benefits, the potential of a woman’s having and/or viewing an ultrasound and reflecting on her decision to proceed with abortion, according to the Seventh Circuit majority, were “very small.”15 The court concluded that the state presented almost no evidence that the eighteen-hour time requirement produced any discernable effect on advancing the state’s asserted goal of promoting the life of the fetus.16 The Commissioner subsequently petitioned for rehearing and rehearing en banc, both of which were denied on October 5, 2018. A petition for certiorari followed on February 4, 2019.17 Approximately two months later, on April 23, the case was scheduled for conference on May 9, 2019, but was rescheduled six times before the Supreme Court granted certiorari. On July 2, 2020, the High Court simply vacated the Seventh Circuit’s decision and remanded the case to the and the nearest abortion providing health center is 115 miles away in Lafayette (230 miles round trip).” Id. at 819. 9. Id. at 815. 10. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health (Planned Parenthood of Ind. & Ky., Inc. 2), 273 F. Supp. 3d 1013, 1043 (S.D. Ind. 2017). 11. Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992) (the Seventh Circuit noted at 817-18 that Casey defined undue burden as “placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus,” citing Casey, 505 U.S. at 876-77). 12. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2324 (2016) (citing Casey, 505 U.S. at 877). 13. Planned Parenthood of Ind. & Ky., Inc. 1, 896 F.3d at 819, 827. 14. Id. at 827. 15. Id. 16. Id. at 830. 17. See Brief for Petitioner, Box v. Planned Parenthood of Ind. & Ky., Inc., 2019 WL 446533 (U.S. 2019) (No. 18-1019). 332 INDIANA HEALTH LAW REVIEW [Vol. 19:329 Seventh Circuit for further consideration in light of the High Court’s decision in June Medical.18 On September 30, 2020, the parties jointly requested the case be remanded to the district court.19 B. The Relevance of June Medical Services, LLC v. Russo On June 29, 2020, the Supreme Court decided June Medical Services, LLC. v. Russo, in which the members of the Court considered a Louisiana statute, Louisiana Act 620, providing that doctors who performed abortions at clinics in Louisiana must have active admitting privileges at hospitals within thirty miles of their abortion facilities. This requirement was the mirror image of the Texas requirement in Whole Woman’s Health, previously declared unconstitutional by the High Court in 2016. Five abortion clinics and four abortion providers mounted a pre-enforcement facial challenge to June Medical, asking for a temporary restraining order (“TRO”) and preliminary injunction (“PI”) to block enforcement of the statute. They argued that, under the Casey standard of undue burden, the Louisiana statute was also unconstitutional.20 Before the district court, the state urged the court to move forward, agreeing that the plaintiffs had standing, even for a pre-enforcement facial challenge.21 The district court examined the similarity of the Louisiana and Texas statutes and ruled that Act 620 was unconstitutional and enjoined its enforcement. The district court later granted a permanent injunction because the law provided no significant health benefits for women.22 A divided court of appeals reversed the district court ruling, stating that the Louisiana statute would have “dramatically less impact than the Texas statute” previously declared unconstitutional.23 A similarly divided court of appeals then denied a rehearing en banc,24 but left intact the district court’s injunction25 while both parties petitioned for certiorari, which the Supreme Court granted.26 Justice Breyer wrote the Supreme Court decision, joined by Justices 18. See June Med. 1, 140 S. Ct. 2103 (2020). 19. See Joint Request to Remand, Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. Dep’t of Health, 823 Fed. Appx. 440 (7th Cir. 2020) (Mem) (No. 17-1883) (remanded). 20. June Med. 1, 140 S. Ct. at 2112. 21. Id. at 2114 (where the state asserted that “there was ‘no question that the plaintiffs had standing to contest the law’”). 22. Id. at 2115. 23. Id. at 2116 (citing June Med. Services, LLC v. Gee, 905 F.3d 787 (5th Cir. 2018)). Rebekah Gee was Secretary of the Louisiana Department of Health and Hospitals. Stephen Russo, Interim Secretary of the Louisiana Department of Health and Hospitals, was substituted for Gee as Defendant. 24. See June Med. Services, LLC v. Gee (June Med. 2), 913 F.3d 573 (5th Cir. 2019) (per curiam). 25. June Med. 1, 140 S. Ct. at 2117. 26. June Med. Services, LLC v. Gee (June Med. 3), 139 S. Ct. 663 (2019). 2022] CHECKING THE BOX-ES 333 Ginsburg, Kagan, and Sotomayor. The standing issue arose again in the state’s arguments, but the Court noted that the state had waived that argument five years prior in the district court, and did not countenance the issue.27 The plurality of the High Court members looked to the factual findings of the district court, and found those findings “not clearly erroneous,” and therefore, controlling.28 The plurality concluded that, “in light of the record, that the District Court’s significant findings, both as to burdens and benefits, have ample evidentiary support.”29 Therefore, the Supreme Court found Louisiana Act 360 to be unconstitutional.30 Chief Justice Roberts wrote a concurrence that for many commentators and legal scholars confused the issue of whether the decision should be called a plurality or a majority opinion.31 Roberts agreed that Whole Woman’s Health was controlling precedent,32 and, therefore, Louisiana’s Act 620 must be unconstitutional, but disagreed that any part of Casey required the balancing of benefits and burdens of a statute seeking to restrict abortions. The High Court interpreted Roberts’ concurrence as rejecting the premise that Casey and Whole Women’s Health applied the same standard in deciding whether a law restricting access to abortion was constitutional.33 However, Roberts’ concurrence did state: Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous. For that reason, I concur with the judgment of the Court that the Louisiana law is unconstitutional.34 This statement in Roberts’ concurrence served as the basis of the plurality’s claim to a 5-4 decision in the June Medical case. Justices Alito, Gorsuch, Kavanaugh, and Thomas filed dissenting opinions, with several Justices signing on in agreement with dissenting colleagues. In his lengthy dissent, Justice Alito argued that Whole Woman’s Health was a post- 27. June Med. 1, 140 S. Ct. at 2118. 28. Id. at 2120. 29. Id. at 2131. 30. Id. 31. See, e.g., Rachel Rebouche, Abortion Restrictions After June Medical Services, REGUL. REV. (Aug. 4, 2020), https://www.theregreview.org/2020/08/04/rebouche-abortion-restrictions- june-medical/ [https://perma.cc/HS8N-YXDN]. See also Benjamin M. Parks, Burdens, Benefits, or Both? The Impact of Chief Justice Roberts’s June Medical Concurrence on Courts’ Analyses of Abortion Regulations, LA. L. REV., https://lawreview.law.lsu.edu/2021/03/12/burdens-benefits-or- both-the-impact-of-chief-justice-robertss-june-medical-concurrence-on-courts-analyses-of-abortion- regulations/ [https://perma.cc/R76H-6P9S] (last visited Mar. 12, 2021). 32. June Med. 1, 140 S. Ct. at 2142. 33. Id. at 2180-81. 34. Id. at 2142. 334 INDIANA HEALTH LAW REVIEW [Vol. 19:329 enforcement decision, whereas June Medical is a pre-enforcement decision.35 He repeated the charge of lack of standing for Planned Parenthood, accused the district court of portraying faulty facts, and contended that the plaintiff doctors in the suit sought to secure admitting privilege in bad faith.36 Alito concluded by stating that the plurality “twists the law.”37 Justice Gorsuch, on the other hand, pointed to a “catalog of horribles,” examples of numerous instances of safety and ethical violations in the Planned Parenthood abortion facilities.38 He dubbed the balancing of benefits and burdens analysis “little more than the judicial version of a hunter’s stew.”39 Gorsuch accused the court of taking a static view of the current market,40 and concluded that additional fact-finding was necessary to evaluate the Louisiana law.41 Justice Kavanaugh’s relatively short dissent agreed with Gorsuch’s analysis and emphasized the possibility that the plaintiff doctors might still obtain admitting privileges and clinics may not have to close.42 Justice Thomas began his dissent with a succinct summary of his position, stating, “a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction.”43 He challenged the plurality’s decision to waive the state’s argument that the plaintiff doctors did not have Article III standing, and argued that, indeed, all of the abortion precedents were created “without a shred of support from the Constitution’s text.”44 Despite the dissents’ panoply of contradictions to the plurality’s decision, Chief Justice Roberts’ concurrence allowed the High Court to claim a majority decision in June Medical. C. Parental Notification Requirement for Minors Seeking Abortion On July 2, 2020, the Supreme Court also remanded a second PPINK lawsuit in order to examine the Court’s decision in June Medical Services.45 That lawsuit challenged Indiana’s amended requirement for parental notification of minors seeking an abortion.46 35. Id. at 2158. 36. Id. at 2160. 37. Id. at 2170. 38. Id. at 2173. 39. Id. at 2179-80. 40. Id. at 2177. 41. Id. at 2182. 42. Id. 43. Id. at 2142. 44. Id. 45. See Box, Comm’r, Ind. State Dep’t of Health v. Planned Parenthood of Ind. & Ky., Inc. (Planned Parenthood of Ind. & Ky., Inc. 3), 141 S. Ct. 187 (2020). Kristina M. Box was Commissioner of the Indiana State Department of Health from October 16, 2017 to the present day. 46. See Planned Parenthood of Ind. & Ky., Inc. v. Adams, Comm’r, Ind. State Dep’t of 2022] CHECKING THE BOX-ES 335 The majority in the Seventh Circuit began by explaining that Indiana statutes had long provided a speedy and confidential bypass procedure to allow that small fraction of pregnant, unemancipated minors seeking an abortion to obtain such without the consent or notification of parents, guardians, or custodians.47 However, in 2017 the Indiana General Assembly passed Senate Enrolled Act 404 (“SEA 404”)48 which added a parental notification requirement to the judicial bypass.49 PPINK sued to enjoin enforcement of the new provision, and the district court granted a preliminary injunction.50 Appeal to the Seventh Circuit followed, challenging the provision of the new law that required that, even if a judge concludes that the parents need not consent to the abortion because either (1) the unemancipated minor is mature enough to make her own decision about abortion, or (2) the abortion is in the minor’s best interest, parents must still be given prior notice of the planned abortion unless the judge finds the notification is not in the minor’s best interest.51 Therefore, under the amended law, the judicial bypass of consent may be based on either the minor’s maturity or best interests, but the judicial bypass of notification must be based solely on “best interests.” However, the parental notification is triggered only if the judge authorizes the abortion.52 In addition to the significant change in language about judicial bypass of notification, the Seventh Circuit further noted the delay in obtaining the abortion because of the statute’s provision that the minor’s attorney shall serve the notice to the parents by certified mail or personal service prior to the abortion.53 The new law also required that the physician who would perform the abortion must not only obtain written parental consent, but require government-issued evidence of the parent’s, legal guardian’s, or custodian’s identity, and execute an affidavit of that reliable evidence of identity. Criminal penalties were also provided in the new statute, for both physicians and Planned Parenthood health centers.54 The Seventh Circuit majority noted that the district court had enjoined the new law because the notice requirement was likely to cause an “undue burden for the large fraction of mature, abortion-seeking minors in Indiana.”55 The state Health (Planned Parenthood of Ind. & Ky., Inc. 4), 937 F.3d 973 (7th Cir. 2019), reh’g and reh’g en banc denied Oct. 30, 2019. Jerome M. Adams was Commissioner of the Indiana State Department of Health from October 14, 2014 to September 1, 2017, the time period during which this appellate decision originated in the Southern District of Indiana. 47. Id. at 974. 48. S.E.A. 404, 120th Gen. Assemb., First Reg. Sess. (2017). 49. Planned Parenthood of Ind. & Ky., Inc. 4, 937 F.3d. at 975. 50. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health (Planned Parenthood of Ind. & Ky., Inc. 5), 258 F. Supp. 3d 929 (S.D. Ind. 2017). 51. Planned Parenthood of Ind. & Ky., Inc. 4, 937 F.3d at 975-76. 52. Id. 53. Id. at 976-77. 54. Id. 55. Id. at 978. 336 INDIANA HEALTH LAW REVIEW [Vol. 19:329 argued unsuccessfully that a pre-enforcement facial challenge to the new law was contrary to Seventh Circuit precedent, but the appellate court instead relied on the High Court’s decision in Whole Women’s Health, also a pre-enforcement challenge, which confirmed the Casey undue burden standard.56 In explaining the undue burden imposed by SEA 404, the majority noted that between October 2011 and September 2017, approximately sixty minors, mostly seventeen-year-olds, sought judicial bypasses.57 The young women had not told their parents they were pregnant because they feared being “kicked out of their homes . . . being abused or punished,” or that their parents would try to block an abortion.58 Examining the standards for a preliminary injunction, the Seventh Circuit concluded that PPINK demonstrated a likelihood of success on the merits because (1) the new Indiana statute “creates a substantial risk of a practical veto over a mature minor’s right to an abortion, and “[u]nder Casey, a statute that will have the practical effect of giving someone else a veto over a woman’s abortion decision is an undue burden,”59 (2) factual evidence showed that most judicial bypasses for minors’ abortions were granted on the basis of the minor’s maturity,60 (3) balancing the benefits and the burdens of the new statute demonstrates that the burdens for minors seeking abortions outweigh the state’s interest in helping parents care for their daughters,61 and (4) a notice requirement can operate as a consent requirement because of a minor’s fear of abuse, parental obstruction, triggering dangerous self-help abortions, or foregoing abortion altogether.62 The Seventh Circuit concluded that the district court did not abuse its discretion in issuing the preliminary injunction, and affirmed the district court decision.63 Circuit Judge Kanne issued a lengthy dissent, arguing that precedent in other circuit courts, including the Casey decision, confirmed that both parental consent and notification laws were constitutional.64 Kanne noted that the state “possesses ‘important’ and ‘reasonable’ interests in requiring parental consultation before a minor makes such an irrevocable and profoundly consequential decision.”65 The State of Indiana appealed from the district court decision, requesting a rehearing and a rehearing en banc.66 Both were denied by a divided en banc court, and Indiana petitioned for certiorari to the Supreme Court. In a per curiam 56. Id. at 979-80. 57. Id. at 977. 58. Id. 59. Id. at 981. 60. Id. at 982. 61. Id. at 983-84. 62. Id. at 986-87. 63. Id. at 990-91. 64. Id. at 991. 65. Id. at 992 (quoting Bellotti v. Baird, 443 U.S. 622, 640-41 (1979)). 66. See Planned Parenthood of Ind. & Ky., Inc. v. Box, Comm’r, Ind. State Dep’t Health (Planned Parenthood of Ind. & Ky., Inc. 6), 949 F.3d 997 (7th Cir. 2019). 2022] CHECKING THE BOX-ES 337 opinion, the High Court granted the petition for certiorari and on July 2, 2020 vacated the judgment below and remanded the case to the Seventh Circuit for reconsideration in light of June Medical.67 On March 12, 2021, the Seventh Circuit responded at length to the High Court’s remand.68 Applying the doctrine of the “narrowest ground” rule69 to interpret the fractured decision in June Medical, the Seventh Circuit reaffirmed its earlier preliminary injunction. The appellate court noted that Chief Justice Roberts, in his concurrence, agreed that Whole Woman’s Health was applicable as stare decisis in June Medical, even as he disagreed with portions of the plurality opinion, stating “[t]he opinions in June Medical show that constitutional standards for state regulations affecting a woman’s right to choose to terminate a pregnancy are not stable, but they have not been changed, at least not yet, in any way that would change the outcome here.”70 The Court noted that the Louisiana law in June Medical “tracked nearly word-for-word” the Texas law struck down in Whole Woman’s Health.71 In his concurrence, Roberts’ emphasis on downplaying the value of balancing benefits and burdens prompted the High Court to question whether a true majority opinion could be cobbled together in June Medical. The High Court questioned whether Roberts’ concurrence fit more squarely with the opinions of the other dissenters, Justices Alito, Gorsuch, and Thomas. However, under the Marks rationale, dissents are excepted from consideration in plurality opinions. That rationale settled the decision for the Seventh Circuit.72 The State of Indiana filed a second petition for certiorari on March 29, 2021, and a decision on that petition is pending. On June 8, 2021, the Court scheduled a June 24 conference to consider a grant of certiorari. The High Court had yet to announce a decision at the end of the 2020 Term.73 67. See Box, Comm’r, Ind. State Dep’t of Health v. Planned Parenthood of Ind. & Ky., Inc. (Planned Parenthood of Ind. & Ky., Inc. 7), 141 S. Ct. 187 (2020) (Mem.). 68. Planned Parenthood of Ind. & Ky., Inc. v. Box, Comm’r, Ind. State Dep’t of Health (Planned Parenthood of Ind. & Ky., Inc. 8), 991 F.3d 740 (7th Cir. 2021). 69. The “narrowest ground” rule from Marks v. United States, states that when assessing which precedential decisions apply in plurality decisions, the court must look for the common ground expressed by the plurality and the concurrence(s). 430 U.S. 188, 193 (1977). King v. Palmer states that the narrowest ground rule means that “when, for example, ‘the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own broader position,” the plurality can claim to be a majority opinion which then has precedential value. Planned Parenthood of Ind. & Ky., Inc. 8, 991 F.3d at 745-46 (quoting 950 F.2d 771, 782 (D.C. Cir. 1991) (en banc)). 70. Planned Parenthood of Ind. & Ky., Inc. 8, 991 F.3d at 741. 71. Id. at 742. 72. Id. at 745. 73. Box. v. Planned Parenthood of Indiana and Kentucky, SCOTUSBLOG, https://www. scotusblog.com/case-files/cases/box-v-planned-parenthood-of-indiana-and-kentucky-inc-4/ [https://perma.cc/2WF4-E2MF] (last visited Jan. 15, 2022). 338 INDIANA HEALTH LAW REVIEW [Vol. 19:329 III. INDIANA’S ATTEMPT TO REVISE DISPOSAL OF FETAL REMAINS AND BAN SELECTIVE ABORTIONS Indiana’s General Assembly attempted to delay a pregnant woman’s attempt to proceed with an abortion by mandating an eighteen-hour waiting period. They also tried to place a parental notification requirement to restrict a minor’s access to abortion. Next, they attempted to revise the process for the disposal of fetal remains. Finally, they tried to ban all voluntary selective abortions based on discernible fetal characteristics. The Supreme Court ultimately weighed in on the litigation. However, it was only in a partial and unsatisfactory way for Justice Sotomayor.74 The Governor of Indiana signed House Enrolled Act 1337 (“HEA 1337”) into law on March 24, 2016.75 The Act included three challenged provisions, the first being the “Sex Selective and Disability Abortion Ban,” prohibiting a person from performing a pre-fetal viability abortion if the person knows the woman is seeking an abortion solely for reasons of: (1) the sex of the fetus, (2) fetal diagnosis of Down’s syndrome or “any other disability,” genetically inherited, either physical or mental, or (3) because of the race, color, national origin, or ancestry of the fetus.76 Violating this provision of law would be a felony under Indiana’s existing statutes, and the abortionist would be subject to disciplinary sanctions and civil liability for wrongful death.77 The second provision would have required the abortion provider to advise the woman of the new prohibition on discriminatory abortion.78 The third prohibition concerned the disposal of fetal remains after abortion. While preserving the right of a woman to dispose of the fetal remains herself, HEA 1337 provided that fetal remains be disposed of in the same way as Indiana law requires for a dead human body, interred or cremated after receipt of a “burial transmit permit.”79 Aborted fetuses could no longer be incinerated with other surgical byproducts, infectious or pathological waste.80 A. The Seventh Circuit Decisions Shortly after the enactment of HEA 1337, PPINK filed an action in Indiana district court seeking a preliminary injunction barring the state from enforcing the new provisions.81 The district court granted the preliminary injunction and, upon 74. See Box, Comm’r Ind. Dep’t Pub. Health v. Planned Parenthood of Ind. & Ky., Inc. (Planned Parenthood of Ind. & Ky., Inc. 9), 139 S. Ct. 1780 (2019). 75. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r Ind. State Dep’t Health (Planned Parenthood of Ind. & Ky., Inc. 10), 888 F.3d 300, 302 (7th Cir. 2018). 76. Id. at 302-03. 77. Id. at 303. 78. Id. 79. Id. at 304. Indiana law requires a “burial transmit permit” for transport and disposition of a dead human body. 80. Id. 81. Id. 2022] CHECKING THE BOX-ES 339 PPINK’s subsequent motion for summary judgment, granted a permanent injunction.82 The Seventh Circuit referenced the continuing viability of the Roe decision and Casey’s reaffirmation of Roe’s “essential holding” that a woman may “choose to have an abortion before viability and to obtain it without undue interference from the state.”83 The court characterized the woman’s right as “categorical,” reiterating that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” [emphasis in the original].84 Acknowledging that both Roe and Casey provided that not all regulations are unwarranted, because the state has a substantial interest in potential life, the court nevertheless ruled that the ban on discriminatory abortions violated “well-established Supreme Court precedent[s]” and was, therefore, unconstitutional.85 The Seventh Circuit, on the other hand, noted, “[s]imply put, the law does not recognize an aborted fetus as a person.”86 In addition, the court recognized that, under the new fetal disposal provisions, (1) the woman retained the right to dispose of the aborted fetus, and (2) aborted fetuses could be cremated together without prior authorization, which is not the same treatment reserved for human remains.87 Therefore, under rational basis review, the court found no rational basis for the state’s interest in disposing of “human remains” humanely and with dignity.88 The court declared the fetal remains provision of HEA 1337 to be unconstitutional.89 Circuit Judge Manion concurred in the decision about the unconstitutionality of the ban on selective abortions but disagreed with the court’s decision about the disposal of fetal remains. His partial concurrence, however, was critical of the court’s reliance on Roe as some kind of “super-precedent.”90 Manion went on to state, “[t]hat today’s outcome is compelled begs for the Supreme Court to reconsider Roe and Casey.”91 Manion also argued for recognizing the dignity of an aborted fetus. Stating that if “[s]tates may value the dignity of an unborn child,” states may still recognize the inherent dignity and humanity of the aborted child.92 He proposed 82. Planned Parenthood of Ind. & Ky., Inc. v. Comm’r Ind. State Dep’t of Health (Planned Parenthood of Ind. & Ky., Inc. 11), 265 F. Supp. 3d 859, 861 (S.D. Ind. 2017). 83. Planned Parenthood of Ind. & Ky., Inc. 10, 888 F.3d at 305. 84. Id. (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (1992)). 85. Id. at 306. This reliance on precedent to establish unconstitutionality, challenged in the dissent, may be significant for future developments. 86. Id. at 308. 87. Id. at 309. 88. Id. at 309-10. 89. Id. at 310. 90. Id. at 311-12 (quoting Senate Judiciary Committee member Dianne Feinstein’s characterization of Roe v. Wade). 91. Id. at 313. 92. Id. at 319. 340 INDIANA HEALTH LAW REVIEW [Vol. 19:329 that the fetal remains provision was within the police power of Indiana.93 PPINK motioned for, and was initially granted, rehearing en banc on the district court decision on the fetal remains provision, and the decision of the Seventh Circuit was vacated.94 However, one of the judges who voted for the rehearing subsequently recused himself, and the rehearing en banc was reversed, and the prior order vacated.95 Chief Judge Wood, joined by Judges Rovner and Hamilton, concurred, in order to explain, first, why the request for a rehearing concentrated only on the fetal remains issue. Wood explained that, because of the Seventh Circuit’s dependence on the precedent of Casey in its decision, PPINK recognized that a rehearing on the issue of the selective abortion ban would have been futile: only the Supreme Court would have had the power to overturn Casey.96 Wood explained, however, that rehearing en banc on the fetal remains decision would have been “distorted” by the Seventh Circuit’s incorrect reliance on the rational basis standard of review of the fetal remains part of the statute. Wood explained that the Seventh Circuit had not presented any evidence that the fetal remains provision could or could not present an undue burden to the woman who desired to abort, either pre- or post-abortion, either raising the cost of fetal disposal or creating psychological trauma that would make a woman forego an abortion.97 Wood, therefore, stated that it would have been useless for the court to rehear the decision on the fetal remains provision if all the en banc court were able to say was that the incorrect standard of review was binding on them, but that things could have been different if the standard from Casey and Whole Woman’s Health had been applied.98 Judge Easterbrook, joined by Sykes, Barrett, and Brennan, dissented from the denial of rehearing en banc.99 Although PPINK did not request rehearing for the selective abortion provision of the Indiana statute, Easterbrook peremptorily characterized that provision of the law as the “eugenics statute.”100 He stated that Casey did not consider an anti-eugenics law. Although irrelevant to the question presented, Easterbrook continued, stating that “[u]sing abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes.”101 Easterbrook finally turned to the provision of the statute at hand, stating that because “X” is not a person, does not mean that “X” is beyond regulatory 93. Id. at 321. 94. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r Ind. State Dep’t Health (Planned Parenthood of Ind. & Ky., Inc. 12), 727 Fed. Appx. 208 (7th Cir. 2018) (Mem.). 95. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r Ind. State Dep’t Health (Planned Parenthood of Ind. & Ky., Inc. 13), 917 F.3d 532 (7th Cir. 2018). 96. Id. at 535. 97. Id. at 535-36. 98. Id. at 536. 99. Id. 100. Id. 101. Id. 2022] CHECKING THE BOX-ES 341 authority, and gave examples of animal welfare statutory authority, specifically mentioning laws for humane treatment of dogs, cats, and gerbils.102 He supported the Seventh Circuit panel’s application of rational basis review to support their decision on the disposal of fetal remains. In the end, he accused the majority of the en banc court of “[k]icking the can down the road” when “we have reached the road’s end.”103 Kristina Box, then Commissioner of the Indiana Department of Health, filed a petition for certiorari to the Supreme Court on October12, 2018. The petition was originally scheduled for conference on December 19, 2018, but was rescheduled fourteen times until the petition was granted on May 28, 2019, but only for the provision of the Indiana law on disposal of fetal remains.104 B. The Supreme Court Decision The Supreme Court bifurcated the petition for certiorari and ruled only on the second question in the petition: whether the Seventh Circuit decision on disposal of fetal remains was invalid, even under the deferential standard of rational basis review.105 The High Court reviewed the Seventh Circuit’s rationale in deciding to declare the fetal remains provision in HEA 1337 unconstitutional. However, the Court noted that prior decisions of the Court had acknowledged that the state has a legitimate interest in regulating disposal of aborted fetuses,106 and therefore upheld the disposal of fetal remains provision in the Indiana law. The Court also noted that the Seventh Circuit never held that the disposal regulations posed an undue burden on a woman seeking an abortion.107 The brief opinion of the Court noted that the Court expressed no opinion on the merits of the selective abortion question because the Seventh Circuit was the first circuit court to address this issue. The “ordinary practice” of the High Court, the majority noted, was to defer judgment until additional courts of appeal consider the same question.108 Justice Sotomayor expressed her opinion that she would have denied the petition for certiorari as to both questions in the initial petition but provided no 102. Id. at 537-38. 103. Id. at 538. These kinds of comments by Judge Easterbrook are of the kind that caused Pamela Karlan to call Easterbrook a “loose cannon” in her oral arguments in the Bostock case. See Transcript of Oral Arguments, Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020) (No. 17-1618, No. 17-1623). 104. Box v. Planned Parenthood of Indiana and Kentucky Inc., SCOTUSblog, https://www. scotusblog.com/case-files/cases/box-v-planned-parenthood-of-indiana-and-kentucky-inc/ [https://perma.cc/8T2H-WAYB] (last visited Jan. 13, 2022). 105. Planned Parenthood of Ind. & Ky., Inc. 9, 139 S. Ct. 1780, 1780 (2019). 106. Id. at 1782, (citing Akron v. Akron Ctr. Reproductive Health, 462 U.S. 416, 452 n. 45 (1983)). 107. Id. 108. Id. 342 INDIANA HEALTH LAW REVIEW [Vol. 19:329 explanation.109 Justice Ginsburg concurred in part but dissented in part.110 Ginsburg disagreed with the basis for the Court’s reversal, the rational basis standard of review of the fetal disposal provision, stating that a correct standard of review may have restored the appellate court’s judgment. Ginsburg would have applied a heightened standard of review involving an undue burden analysis. Ginsburg reiterated the opinion of Chief Judge Woods in denying the rehearing en banc, agreeing with Wood that simply taking a case to say the court is bound by a former standard of review, but that “everything might be different” under a new standard would be futile.111 In typical Scalia fashion, Ginsburg stated she would have denied Indiana’s petition in its entirety.112 Only Justice Thomas, perhaps prompted by Easterbrook’s comments in the petition for rehearing en banc, in his concurrence dealt at length with the part of the Indiana law that the majority ignored: the selective abortion issue.113 Thomas’s concurrence has prompted such a great deal of commentary that his observations and comments are treated separately below. The decision of the Supreme Court after grant of certiorari did not end the case for PPINK. PPINK, as prevailing party even if only in the most partial sense, returned to Indiana district court to request attorneys’ fees and costs.114 After some discussion of reducing the grant of fees by 50% for the partial nature of PPINK’s successful ruling, the court awarded “reasonable” attorneys’ fees and costs as requested, $182,499.73. IV. RELEVANCE OF SELECTIVE ABORTIONS TO THE EUGENICS MOVEMENT A. Justice Thomas’s Concurrence Beginning his concurrence, Justice Thomas lauded Indiana’s ban on selective abortion as promoting the state’s compelling interest in “preventing abortion from becoming a tool of modern-day eugenics.”115 Thomas’s narrative continued with what he presented as the origin story of the fight for legal abortion, the birth-control movement of the early twentieth century.116 In particular, he focused on the work of Planned Parenthood founder Margaret Sanger, whom, he asserted, recognized the eugenic potential of her cause and argued that, “‘birth control . . . is really the greatest and most truly eugenic method’ of ‘human generation.’”117 Thomas conceded that Sanger was not referring to abortion in her comments, “at least not directly,” but stated that “Sanger’s arguments about the eugenic 109. Id. 110. Id. at 1793. 111. Id. 112. Id. 113. Id. at 1783. 114. Id. at 1780. 115. Id. 116. Id. 117. Id. at 1783-84. 2022] CHECKING THE BOX-ES 343 value of birth control . . . apply with even greater force to abortion.”118 Thomas, therefore, reasoned that the motives of those who still support legal abortions may lay in eugenics.119 Thomas’s conclusion, expressed early in his concurrence was that “given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.”120 He catalogued the rise of the eugenics movement in America. By the 1920s, according to Thomas, eugenics became an “intellectual craze,” and found support among progressive, professionals, and the intellectual elite, especially at prominent universities, notably Harvard.121 Eugenics, Thomas continued, rapidly coalesced with those who supported the theory of White intellectual superiority to that of the Negro race. That coalescence, he contended, helped to precipitate the Immigration Act of 1924, which reduced immigration from outside Western and northern Europe, and led to race consciousness in marriage and reproductive decisions, including anti- miscegenation laws.122 Thomas also noted how the Court supported forced sterilization of misfits and the “feeble-minded,” as in the Buck v. Bell decision, where Oliver Wendell Holmes notoriously asserted that “[t]hree generations of imbeciles are enough.”123 However, Thomas noted, the rise of Naziism in the 1940s somewhat lessened America’s craze with the eugenics movement, but Thomas, nevertheless, pressed his argument that abortion is an “act rife with the potential for eugenic manipulation.”124 In fact, later in his concurrence, Thomas posited that with the rise and reliability of prenatal screening tests and other technologies, “the individualized nature of abortion gives it more eugenic potential than birth control.”125 Abortions for fetuses identified with Down syndrome occur at very high rates, as do abortions of female children, and the abortion rate among Black women is 3.5 times that of White women.126 Thomas says Easterbrook was correct in his urging for en banc review in opposition to the Seventh Circuit’s denial: “Casey did not decide whether the Constitution requires states to allow eugenic abortions.”127 Thomas’s conclusion was that the Court’s denial of certiorari to the part of the Indiana law banning selective abortions leaves the issue an open question, but that the denial should 118. Id. at 1784. 119. Id. This logic, however, failed to recognize the complex context in which Sanger existed within the eugenics movement. 120. Id. 121. Id. at 1785-86. 122. Id. 123. Id. at 1786 (citing 274 U.S. 200, 208 (1927)). 124. Id. at 1786-87. 125. Id. at 1790. 126. Id. at 1790-91. 127. Id. at 1792. 344 INDIANA HEALTH LAW REVIEW [Vol. 19:329 not be interpreted as agreement with the decisions below.128 Thomas concluded his concurrence with this assessment: Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope. In that regard, it is easy to understand why the district court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion. With these observations, I join the opinion of the Court.129 B. Critiquing Thomas’s Concurrence Thomas’s concurrence was met with severe and widespread criticism for what commentators charged was a distortion of history.130 Disability rights advocates also linked Thomas’s concurrence with Justice Kavanaugh’s former comments on supporting abortions for people with intellectual disabilities.131 As previously noted, in the early 1920s, eugenic sterilization laws received great support. In contrast, Sanger’s birth-control movement struggled for support. Therefore, championing eugenics “made sense for a movement lacking popularity, powerful political allies, or elite intellectual credentials.”132 As seen through the support of eugenics by such powerful leaders as Teddy Roosevelt — he called on Anglo-Saxon women to stop “race suicide” by having more children — eugenics was a cause with widespread support at the time.133 As such, Sanger’s view merely reflected the time and to identify her support as anything more than strategic was an oversimplification on Thomas’s part. Thomas also attempted to connect the eugenics movement to the population control movement of the 1950s to 1970s, and thus, connect both back to the modern abortion rights movement. According to Mary Ziegler, Thomas argued that eugenics “. . . lost popularity because of opposition to the Nazi movement (which openly endorsed compulsory sterilization) and because of the obvious problems with the science underlying eugenicists work. Population-control 128. Id. 129. Id. at 1793. 130. Eli Rosenberg, Clarence Thomas Tried to Link Abortion to Eugenics. Seven Historians Told the Post He’s Wrong, WASH. POST (May 30, 2019), https://www.washingtonpost.com/history/ 2019/05/31/clarence-thomas-tried-link-abortion-eugenics-seven-historians-told-post-hes-wrong/ [https://perma.cc/455B-7MQR]. 131. See Samuel R. Bagenstos, Disability and Reproductive Justice, 14 HARV. L. & POL’Y REV. 273 (2020). Bagenstos reported that during Kavanaugh’s nomination for the Supreme Court, disability advocates drew attention to then-Judge Kavanaugh’s support for government decisions requiring intellectually disabled individuals to have abortions. Id. at 275. 132. Mary Ziegler, Bad Effects: The Misuses of History in Box v. Planned Parenthood, 105 CORNELL L. REV. 165, 198 (2020). 133. Id. at 198. 2022] CHECKING THE BOX-ES 345 arguments in his telling, simply replaced eugenic rhetoric that had become taboo.”134 Like the origin of the eugenics movement, though, the motivations for the population control movement were far more nuanced. While some who joined the movement harbored eugenic intentions, such as Dixie Cup Company founder Hugh Moore,135 others joined for a variety of reasons. For example, Representative George H.W. Bush of Texas viewed the movement as an extension of Cold War politics and concluded that population control would stop the growth of Communism.136 Indeed, on college campuses, groups of Zero Population Growth Inc. formed which framed population control as a method for environmental advocacy or advancing women’s liberation.137 Equating eugenics in the United States with such topics is an oversimplification. In Roe the High Court’s narrative asserted women-protective health reasons to show that previous nineteenth-century abortion bans were no longer substantial.138 The Roe court affirmed that physicians had previously led campaigns to criminalize abortion out of fear of the safety of the procedure.139 Because of this, throughout the 1970s, medical organizations weakened or abandoned their abortion opposition. This included the American Medical Association and American Public Health Association.140 However, Ziegler noted, Thomas argued that “motives darker than we believed” underlaid the Court’s decision on abortion.141 V. WHETHER INDIANA’S ABORTION RESTRICTIONS CHALLENGE ROE AND ITS PROGENY Prenatal genetic screening makes it possible to diagnose many diseases in the earliest stages of pregnancy.142 Thousands of human diseases have genetic components which may be detected. Depending on the condition, this may range from a defect in a single gene to many genes. Receiving results that an unborn child has a condition can be a deeply personal and heartbreaking experience for a mother. Thomas’s argument oversimplified the idea of genetic testing to say that “with today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics.”143 134. Id. 135. Id. 136. Id. at 199. 137. Id. 138. Roe v. Wade, 410 U.S. 113, 150 (1973). 139. Id. at 146-49. 140. Ziegler, supra note 132, at 169. 141. Id. at 201. 142. Prenatal Genetic Screening Tests: Frequently Asked Questions, AM. C. OBSTETRICIANS & GYNECOLOGISTS, https://www.acog.org/womens-health/faqs/prenatal-genetic-screening-tests [https://perma.cc/74VN-NHVN] (last updated Oct. 2020). 143. Planned Parenthood of Ind. & Ky., Inc. 9, 139 S. Ct. 1780, 1790 (2019). 346 INDIANA HEALTH LAW REVIEW [Vol. 19:329 Abortion is intimately and inescapably tied to the concept of a woman’s bodily privacy. Even the Roe decision itself mentioned the strict constructionist problem inherent in the concept of privacy, stating “[t]he Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”144 In Eisenstadt v. Baird, the Court decided that the right to privacy extended to procreative decision making by the married and unmarried.145 In this case, William Baird gave a female student a contraceptive following a lecture on birth control.146 Massachusetts charged Baird with a felony under a law which was designed to prevent premarital sex.147 The law banned distribution of contraceptives to unmarried men and women; only married couples could obtain contraceptives and only from doctors or pharmacists.148 The Court decided that the Fourteenth Amendment right to equal protection applied to both married and unmarried individuals’ ability to access contraceptives.149 As such, individuals have the constitutional right to privacy in decisions regarding their procreative choice and contraception.150 The Roe majority asserted the right to privacy “under the Due Process Clause of the Fourteenth Amendment’s concept of liberty,” stating that such clause “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”151 The Seventh Circuit added that “[n]othing 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.”152 Eugenics strives to better the entire human race.153 As John Harding wrote a generation ago, “[t]he promise of genetic science, particularly human genetic engineering, appeals to that in humans which strives for perfection – perfection in oneself, one’s life, one’s children154. . .[w]ith each new discovery of genetic links to disease, however, the likelihood increases that more eugenic programs will be implemented.”155 Eugenics is a population concept. Thomas’s concurrence discussing Indiana’s selective abortion statute overlooks the fact that every state which permits race, 144. Roe, 410 U.S. at 152 (citations omitted). 145. See Eisenstadt v. Baird, 405 U.S. 438 (1972). 146. Id. 147. Id. 148. Id. 149. Id. 150. Id. 151. Roe v. Wade, 410 U.S. 113, 153 (1973). 152. Planned Parenthood of Ind. & Ky., Inc. 10, 888 F.3d 300, 307 (7th Cir. 2018). 153. See John R. Harding, Jr., Beyond Abortion: Human Genetics and the New Eugenics, 18 PEPP. L. REV. 471 (1991). 154. Id. at 471. 155. Id. at 485. 2022] CHECKING THE BOX-ES 347 or disability selective abortion, also leaves prospective parent(s) with the ability to select offspring traits of their choice.156 Individuals are free to discard embryos that test positive for disease or even to set aside sperm and egg donations of different ethnicity. If the selective abortion provision of the disputed Indiana law sought to “control the population and improve its quality,”157 as Thomas implies, then genetic screening should not allow non-eugenic-related choices. Indeed, the ultimate ability of choice distinguishes genetic testing from any connection to eugenic acts. The Supreme Court declined to grant certiorari to the major question in Planned Parenthood v. Commissioner of the Indiana State Department of Health, the selective abortion based on race, sex, and disability provision in HEA 1337.158 The Court explained that at the time of their consideration of the provision, no other circuit courts had considered the issue.159 While the Seventh Circuit permanently enjoined the ban on selective abortion, the fact that the Court did not decide on the constitutionality of the ban leaves opportunity for such a ban to reappear in other jurisdictions. And, indeed, it already has. According to the Charlotte Lozier Institute, at least fifteen states have enacted bans on performance of abortions based on the sex, race, and/or the presence of a genetic abnormality of the unborn child.160 The Lozier Institute reported that since the Supreme Court declined to rule on the Indiana selective abortion ban, the Sixth Circuit has affirmed a lower court’s injunction of an Ohio ban on abortions of fetuses screened positive for Down syndrome. Further, an injunction against an Ohio law banning abortions based on sex, race, or Down syndrome is on appeal.161 Selective abortion bans have also been contested in the Eighth Circuit for bans enacted by Arkansas and Missouri.162 Indiana case law points out the persistence of the factions that would diminish women’s rights to abortion and completely overturn Roe. And Indiana’s efforts are not exhausted. The grant of certiorari for considering Indiana’s law requiring the parental notification for minors seeking an abortion – the second petition, after remand – is still pending. The Court scheduled a conference for June 24, 2021 but announced no action after that date. Similarly, in the “no action” category, the failure of the Court to consider and rule on the selective abortion provision of HEA 1337 gives little information on 156. See Planned Parenthood of Ind. & Ky., Inc. 9, 139 S. Ct. 1780, 1783 (2019) (Thomas, J., concurring). 157. Id. at 1787. 158. See Planned Parenthood of Ind. & Ky., Inc. 10, 888 F.3d. 300 (7th Cir. 2018). 159. Id. 160. Mary E. Harned, Abortion Cases in the Higher Federal Courts, CHARLOTTE LOZIER INST. 1, 4 (July 2019), https://s27589.pcdn.co/wp-content/uploads/2019/07/Abortion-Cases-in-the- Higher-Federal-Courts-On-Point-33_2.pdf [https://perma.cc/9J3T-MYS3]. 161. Id. at 5-6. 162. Id. at 4-5. 348 INDIANA HEALTH LAW REVIEW [Vol. 19:329 the leaning of the Court.163 However, whether the ban on selective and discriminatory abortions is, or is not, fatal for Roe and Casey is untested. In his commentary, Michael Stokes Paulsen uses the example of workplace laws for hiring and firing.164 Hiring and firing are both legal, but not for all reasons.165 In a similar way, Paulsen argues, a ban on selective abortions is not a ban (or even an “undue burden” as in Casey) on all abortions, but only on abortions for specific reasons.166 Therefore, Roe and Casey can survive the ban. Another “save” for Roe and Casey, according to Paulsen, is to ban selective abortions for their social utility.167 Selective abortions of females are hard to countenance when the purpose of making abortions legal is to further female gender equality.168 The state has a compelling interest in eliminating sex bias in society by preventing the abortion of a fetus simply because the fetus is female; and likewise has a similar compelling interest in promoting racial equality.169 These arguments, according to Paulsen, allow a ban on selective abortions to co- exist with the precedents of Roe and Casey.170 However, an even greater challenge to the continued viability of the Roe and Casey decisions is the Fifth Circuit’s Jackson Women’s Health Organization v. Dobbs, decided by the Fifth Circuit,171 for which the Supreme High Court granted the petition for certiorari on May 17, 2021. The question presented in the Fifth Circuit was, “Is Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age unconstitutional?”172 The question for certiorari was translated to, “Whether all pre-viability prohibitions on elective abortions are unconstitutional?”173 Contrary to the Indiana statutory implications, this phrasing of the question for the Court is a frontal assault on Roe and its progeny. While the frontal attack in Dobbs may be gaining the most attention, another controversy is even more insidious, and demonstrates the inaction of the Supreme Court most vividly.174 On May 26, 2021, Texas adopted S.B. 8, and Governor 163. See Planned Parenthood of Ind. & Ky., Inc. 10, 888 F.3d. at 300. 164. Michael Stokes Paulsen, Abortion as an Instrument of Eugenics, 134 HARV. L. REV. 415, 428 (2021). 165. Id. 166. Id. at 428-29. 167. Id. 168. Id. 169. Id. at 429-30. 170. Id. 171. See Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019). 172. Id. 173. Dobbs v. Jackson Women’s Health Organization, SCOTUSBLOG, https://www. scotusblog.com/case-files/cases /dobbs -v-jackson -w om en s-h ea lth -organizat ion [https://perma.cc/DFK5-EK2F] (last visited Jan. 16, 2022). The petition for certiorari was filed on June 15, 2020. The case was distributed for conference on September 2, 2020 but rescheduled for conference twenty-one times before grant of certiorari. Id. 174. Mary Ziegler, Supreme Indifference: What the Texas Case Signals About the Court’s Treatment of Abortion, SCOTUSBLOG (Sept. 1, 2021, 3:28 PM), https://www.scotusblog.com/ 2022] CHECKING THE BOX-ES 349 Greg Abbott signed the bill into law.175 The law bans all abortions, even those due to rape, incest, or the mother’s health, after a fetal heartbeat is detectable, usually at about the sixth week of pregnancy, a time at which many women might not even know they were pregnant. The new law criminalized abortion providers who violated the law but removed the responsibility of the state to enforce the law.176 Private individuals were tasked with responsibility to sue the abortion providers, with the incentive of raking in at least $10,000 for each conviction.177 Texas abortion providers sought to block the law from taking effect by an emergency application to the Supreme Court to act. The Supreme Court allowed the emergency application to expire, and on the day following the expiration, September 1, 2021, the Court issued a brief order denying the application.178 The Court, with one exception, reacted along party lines in a 5-4 decision, with Chief Justice Roberts joining Justices Breyer, Kagan, and Sotomayor in dissent. Roberts emphasized that the action of the Court did not mean that S.B. 8 was constitutional, but that reassurance was surely little relief in the immediate present.179 What the High Court will rule in the Fifth Circuit’s Jackson Women’s Health Organization v. Dobbs case remains to be seen. However, issues of standing and other procedural concerns may be effective in S.B. 8 litigation, whatever the impact for or against the existing Supreme Court precedents. The nine individuals now sitting in the “High Chairs” of the Supreme Court must make some difficult decisions, and, hopefully, those decisions will be made not along party lines, but according to the Constitution and existing precedent. 2021/09/supreme-indifference-what-the-texas-case-signals-about-the-courts-treatment-of-abortion/ [https://perma.cc/5VHB-UWDY]. 175. Letter from Gregory S. Davidson, Exec. Clerk Gov., Tex. Gov. Greg Abbot, to Hon. John B. Scott, Sec. State (Nov. 8, 2021), https://gov.texas.gov/uploads/files/press/TRANSMITTAL_ 2021-11-08_legislation_LETTER_IMAGE.pdf [https://perma.cc/Q2TW-3KHH]. 176. Amy Howe, Supreme Court Leaves Texas Abortion Ban in Place, SCOTUSBLOG (Sept. 2, 2021, 2:26 AM), https://www.scotusblog.com/2021/09/supreme-court-leaves-texas-abortion-ban- in-place/ [https://perma.cc/NF3G-24HH]. 177. Id. 178. Katie Buehler, Supreme Court Doesn’t Stop Texas “Heartbeat” Abortion Bill, LAW 360 (Sept. 1, 2021, 1:00 AM), https://www.law360.com/articles/1417596/supreme-court-doesn-t-stop- texas-heartbeat-abortion-bill [https://perma.cc/6MWT-B9J2]. 179. Id.