Last week the U.S. Supreme Court delivered what many have characterized as a compromise ruling on Indiana’s abortion law. On one hand, the justices upheld part of the statute that placed new restrictions on the disposal of fetal remains after an abortion. But the majority also let stand a lower court ruling invalidating a provision that prohibited abortion if a woman chose the procedure because of “a diagnosis” or “potential diagnosis” of Down syndrome or “any other disability,” or because of the race or gender of the fetus.
The Court’s opinion was a brief Per Curiam — giving short treatment to the facts. I was surprised, though, by the particulars of the Indiana law — signed by then-Governor Mike Pence — which appeared in the decision of the court below. The law makes it a crime to perform an abortion because of a diagnosis of “any disability.” Disability is defined as a “defect, disease or disorder genetically inherited.” The only exception allowed is if the disability will, with reasonable medical certainty, result in the death of the child within three months. So the law categorically bans abortion if a discovered disability is likely to cause death in early childhood, but not within the first three months of life. The litigants challenging the law identified an array of such tragic abnormalities.
Vice-President Pence explained he signed the Indiana law with great pride. I’ll admit constitutional abortion determinations can be excruciating. But I can’t get my arms around expressing pride and enthusiasm for the use of government power to override a woman’s choice to terminate a pregnancy when her doctors explain, or estimate, the child will die very early, but can’t say, with certainty, it’ll be within three months. As a husband and a dad, I’m not saying I even know what I’d want my wife to do if she faced such a crushing choice. I don’t know what that’s like. But if I thought that Pence and a state legislature were removing the decision from my wife and my family, well, I won’t say. Even at a distance, the arrogance enrages.
And, of course, we have it at home a well. Judge William Osteen, a few months back, invalidated North Carolina’s law prohibiting abortions after 20 weeks. Prior to 2016, North Carolina law permitted an abortion, even after 20 weeks’ duration, when there was a “substantial risk that the continuance of the pregnancy would threaten the life or gravely impair the health of the woman.” Three years ago, our General Assembly decided to allow an exception only if an “immediate abortion” is necessary “to avert (a woman’s) death” or “serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”
“Major bodily function.” “Irreversible.” Another provision makes clear this is not to include a woman’s likely suicide. Is it possible to imagine having such a determination dictated by the government? By the Republican caucus of the North Carolina General Assembly.
In the famed Casey decision, Republican Justice Sandra Day O’Connor wrote that abortion decisions “involve the most intimate and personal choices a person may make in a lifetime, choices central to (human) dignity and autonomy — (choices that include) the right to define one’s concept of existence, of meaning, of the mystery of human life.” A “woman’s suffering”, she continued, “is too intimate and personal for the State to insist upon its own vision of the woman’s role, however dominant that vision has been in the course of our history.” Amen.
Contributing columnist Gene Nichol is the Boyd Tinsley Distinguished Professor of Law at the University of North Carolina.