Amicus Curiae Brief — Kristina Box, Commissioner, Indiana Department of Health, et al., Petitioners v. Planned Parenthood of Indiana and Kentucky, Inc., et al.

No. 18-483

In the

Supreme Court of the United States

_________________________

KRISTINA B OX, COMMISSIONER, I NDIANA DEPARTMENT

OF HEALTH, ET AL .,

Petitioners

v.

PLANNED PARENTHOOD OF I NDIANA AND KENTUCKY,

I NC., ET AL.,

Respondents

_________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh

Circuit

_________________________

BRIEF OF AMICUS CURIAE PROLIFE

CENTER AT THE UNIVERSITY OF

ST. THOMAS IN SUPPORT OF PETITIONERS

_____________________

Teresa Stanton Collett

Counsel of Record

University of St. Thomas School of Law

1000 LaSalle Avenue, MSL 400

Minneapolis, MN 55403-2015

(651) 271-2958

tscollett@stthomas.edu

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS................................................. i

TABLE OF AUTHORITIES .........................................ii

INTEREST OF AMICUS .............................................. 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT .................................................................... 3

I.

The Court Should Grant Certiorari Because

the Circuits Are in Conflict over Whether

Laws Directing the Disposition of Fetal

Remains

Impermissibly

Attribute

Constitutional Personhood to

Human

Fetuses. ................................................................. 3

II.

Public Officials Need Guidance on Whether

Accommodation of the Ancient Common Law

Right of Sepulcher Renders a Fetal

Disposition Law Unconstitutional. ................. 9

CONCLUSION ..............................................................12

ii

TABLE OF AUTHORITIES

Page

Cases

Gonzales v. Carhart, 550 U.S. 124 (2007) ...............8

Hamilton v. City of New Albany,

30 Ind. 482 (1868). .............................................. 9

Marsh v. Cty of San Diego, 680 F.3d 1148 (9th Cir.

2012) ....................................................................10

Nat’l Archives and Records Admin. v. Favish, 541

U.S. 157, 158 (2004) .......................................... 9.

Planned Parenthood of Ind. & Ky. v. Comm’r, Ind.

State Dep’t of Health, 888 F.3d 300 (7th Cir.

2018) .......................................................1, 2, 3

Planned Parenthood of Minn. v. State of Minn., 910

F.2d 479 (8th Cir. 1990)............................ 5, 6, 7

Roe v. Wade, 410 U.S. 113 (1973) ................................ 3

Statutes

Ind. Code § 16-34-3-2(a) .........................................10

Ind. Code § 16-34-3-4...................................................... 3

Ind. Code § 16-34-3-4(a) ...........................................4

iii

Ind. Code § 16-34-3-4(a)(1).......................................5

Ind. Code § 16-34-3-4(b) ...........................................5

Ind. Code §16-34-3-4(c) .................................................. 4

Ind. Code § 23-14-31-26 ...........................................4

Ind. Code § 23-14-55-2 .............................................4

Ind. Code § 25-15-9-15 .............................................4

Ind. Code § 29-2-19-17............................................. 4

Minn. Stat. § 145.1621 (1988)..............................6, 7

Other Authorities

500 Fetuses Found by Storage Company in

Repossessed Crate, N.Y. Times, Feb. 8, 1982,

at A14...................................................................10

173 Fetuses Found in Field Doctor Owned, Wash.

Post, Apr. 16, 1992, at A16 .............................10

Joy Blackburn, Report Finds Luis Hospital’s

Mistakes Range from the Potentially Deadly to

Bureaucratic, V.I. Daily News (Sept. 22,

2014),https://advance.lexis.com/api/permalin

iv

k/4a1d2884-1091-49a5-ab1628162a897e1b/?context=1000516 ..................10

B.D. Colen, Hospital Got Cash for Fetuses, Wash.

Post, Feb. 29, 1976, at 25 ................................10

25A C.J.S. Dead Bodies § 13. ....................................... 9

Tony Cook, Indiana Medical Waste Firm Fined for

Handling Fetal Tissue, Indianapolis Star,

Feb. 17, 2016, https://bit.ly/2OnYkCJ. .........11

Dignity, Black’s Law Dictionary (10th ed. 2014) ..... 7

Fetus Parts Found in Abortion Clinic Trash, N.Y.

Times, July 18, 1993, at A30 ..........................10

Fetuses Found in Calif. Field, Wash. Post, Mar. 16,

1997, at A13........................................................10

Sarah Hoye, Medical examiner had to thaw fetal

remains in Philly abortion doctor case, CNN,

Apr. 16, 2013, https://www.cnn.com/2013/04

/16/us/pennsylvania-abortiondoctor/index.html ..............................................11

David Rohde, A Store Owner Pleads Guilty to

Transporting Fetuses Illegally, N.Y. Times, Mar. 27,

1998, at B8 .....................................................................10

1

INTEREST OF AMICUS1

The Prolife Center at the University of St.

Thomas seeks to promote effective legal protection

for human life from the moment of fertilization to

natural death through scholarly research,

curriculum development, and legal initiatives.

Faculty associated with the Center have provided

significant pro bono representation to government

officials, organizations and individuals supporting

regulation and the eventual elimination of the

practice of induced abortion.

As an academic center located in Minnesota, the

Prolife Center has studied incidents resulting in

passage of fetal disposition statutes similar to those

at issue in Planned Parenthood of Indiana and

Kentucky, Inc. v. Commissioner of the Indiana State

Department of Health (“PPINK”), 888 F.3d 300 (7th

Cir. 2018), as well as the state interests advanced by

such statutes. The Prolife Center submits this brief

1 As required

by Rule 37.2(a), counsel of record for each party

counsel of record for each party received notice of the intent to

file this amicus brief on November 9 and has consented to the

filing of this amicus brief. Pursuant to Rule 37.6, amicus states

that no counsel for a party authored this brief in whole or in

part, and no person other than the amicus and its counsel

made any monetary contribution intended to fund the

preparation or submission of this brief.

2

to provide this Court with greater insight into how

fetal disposition laws advance the right of States to

recognize and promote the dignity of fetal human

life, and promote public health and safety.

SUMMARY OF THE ARGUMENT

Review is warranted in this case for at least two

reasons. First, the Seventh Circuit’s decision in

PPINK creates a circuit conflict with the Eighth

Circuit on an issue of whether statutes directing

abortion clinics and medical facilities to dispose of

human fetal remains by cremation or internment

should be interpreted to attribute constitutional

personhood,

rendering

all

such

statutes

unconstitutional under Roe v. Wade, 410 U.S. 113

(1973). Second, the Seventh Circuit’s decision

creates a circuit conflict with the Eighth Circuit by

requiring fetal disposition laws to override state

laws recognizing a woman’s right to sepulcher, the

right to possess or control the disposition of fetal

remains, in order to respond to a persistent problem

of improper disposition of fetal remains by abortion

clinics and others.

3

ARGUMENT

I.

The Court Should Grant Certiorari

Because the Circuits Are in Conflict over

Whether Laws Directing the Disposition

of

Fetal

Remains

Impermissibly

Attribute Constitutional Personhood to

Human Fetuses.

A majority of the court below ruled that Indiana’s

fetal disposition law, Ind. Code §16-34-3-4, is

unconstitutional under this Court’s abortion

jurisprudence

because the

state’s interest

undergirding the statute, “the humane and dignified

disposal of human remains”, creates an irrebutable

presumption

that

aborted

fetuses

enjoy

constitutional personhood. PPINK, 888 F.3d at 308.

Such a position inherently requires a

recognition that aborted fetuses are human

beings, distinct from other surgical

byproducts, 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).

...

4

Simply put, the law does not recognize that

an aborted fetus is a person. . . . 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.

Id.

The reasoning of the majority is undercut both by

its substitution of “person” for the state’s use of the

“human being” in its defense of the statute, and

more importantly by the actual language of the

Indiana statute.

Ind. Code §16-34-3-4(a) provides “[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 phrase “aborted fetus” is

consistently used to identify the dead biological

entity that is the subject of the law.

The phrase “human being” is entirely absent

from the statue, while the word “human” appears

only as an adjective modifying the word “remains” in

subsection (c). “IC 23-14-31-26, IC 23-14-55-2, IC 2515-9-18, and IC 29-2-19-17 concerning the

authorization of disposition of human remains apply

to this section.” Ind. Code §16-34-3-4(c).

5

While it is true the word “person” appears in the

statute twice, it is used only to designate the

individual arranging for the disposition of the

“aborted fetus.” Ind. Code §16-34-3-4(a)(1) provides

“a person is not required to designate a name for the

aborted fetus on the burial transit permit and the

space for a name may remain blank”, and Ind. Code

§16-34-3-4(b) states “[t]he local health officer shall

issue a permit for the disposition of the aborted fetus

to the person in charge of interment for the

interment of the aborted fetus.”

This analysis of the statutory language reveals

the linguistic leaps required to render the lower

court’s ruling of unconstitutionality. That the ruling

is a result in search of a rationale becomes even

more apparent when compared with the language of

the Minnesota statute upheld in Planned

Parenthood of Minn. v. State of Minn., 910 F.2d 479

(8th Cir. 1990).

In that case, Planned Parenthood of Minnesota

sought to enjoin the enforcement of a fetal

disposition law on the bases that the statute was

vague and violated the substantive due process

rights of women seeking abortions.

Unlike the Indiana statute at issue in this case,

which does not use the phrase “human being,” the

Minnesota statute forthrightly declares that fetal

6

remains are “the remains of the dead offspring of a

human being . . .” 910 F.2d at 481 (providing text of

Minn. Stat. § 145.1621 (1988) (emphasis added).2

Planned Parenthood of Minnesota, as part of its

substantive due process claim, argued that the

statute implicitly equated abortion with murder,

thereby creating a psychological burden for women

obtaining abortions. The appellate court summarily

dismissed this claim and ultimately upheld the

constitutionality of the statute. 910 F.2d at 487-88.

The Seventh Circuit opinion below distinguishes

the Minnesota case as vindicating only those fetal

disposition laws that are passed for the protection of

public sensibilities, while the court characterizes the

Indiana statute as focusing on the fetus. 888 F.3d at

309. Unlike the Minnesota statute, the Indiana

statute has no purpose provision so it is difficult to

determine the basis of the lower court’s conclusion

that the Indiana statute is unconcerned with

protection of public sensibilities.

It is equally difficult to discern why the Seventh

Circuit majority characterizes the Minnesota

statute as exclusively supported by the state’s

Like the Indiana statute, the word “person” appears in the

Minnesota statute but only in a context that logically precludes

the word including the aborted fetus. 910 F.2d at 481 (quoting

Minn. Stat. § 145.1621(subd. 5) (1988).

2

7

interest in public sensibilities. While protection of

public sensibilities was one of the state’s interests

identified in the statute, other interests are

identified as well. The stated object of the statute

was to require “the dignified and sanitary

disposition of the remains of aborted or miscarried

human fetuses . . .” 910 F.2d at 481 (quoting Minn.

Stat. § 145.1621(subd. 1). By requiring the

disposition be dignified, the Minnesota law appears

to be focusing on the fetus, as much as the public.

Black’s Law Dictionary defines dignity as “[t]he

quality, state, or condition of being noble; the

quality, state, or condition of being dignified.”

Dignity, Black’s Law Dictionary (10th ed. 2014).

Applying the Seventh Circuit’s linguistic

analysis to the Minnesota statute, the opinion would

read something like this:

The statute identifies remains of a human

fetus as the “remains of the dead offspring of

a human beings”, distinct from other

surgical byproducts, such as tissue or

organs. Indeed, in the stated purpose of the

statute, Minnesota requires that aborted

human fetuses be provided dignified

disposition. Doing so imputes worth to the

human fetus. Yet under Supreme Court

jurisprudence the law does not recognize

that an aborted fetus is a person. . . . As

8

such, the State’s interest in requiring

abortion providers to dispose of the remains

aborted fetuses in the same manner as the

remains of human persons is not legitimate.

Such a ruling would ignore this Court’s repeated

recognition of a state’s right to “use its voice and its

regulatory authority to show its profound respect for

the life within the woman.” Gonzales v. Carhart, 550

U.S. 124, 157 (2007).

Assuming the Seventh Circuit had utilized an

updated version of the constitutional analysis

employed by the Eighth Circuit, the result would be

that of Judge Manion’s dissenting opinion below.

“Like the Eighth Circuit, I would conclude that

Indiana’s fetal remains provision is rationally

related to the State’s interest in protecting public

sensibilities. I would add that Indiana has a

significant interest in recognizing the dignity and

humanity of the unborn child.” 888 F.3d at 320.

It is simply impossible to reconcile the rulings of

the Seventh and Eighth Circuits based on the

language of the statutes and derive a coherent

constitutional rule by which to assess fetal

disposition laws. Legislators and other public

officials need this Court’s guidance on the proper

legal standard governing fetal disposition laws to

9

ensure their performance

constitutional mandates.

is

within

their

II. Public Officials Need Guidance on Whether

Accommodation of the Ancient Common

Law Right of Sepulcher Renders a Fetal

Disposition Law Unconstitutional.

The Seventh Circuit opinion imposes a

substantial, if not insurmountable, barrier to

regulating abortion clinics’ or health care facilities’

disposition of fetal remains, while continuing to

respect a woman’s right of sepulcher as it exists in

many states. The right of sepulcher is a family

member’s right to “immediate possession of a

decedent’s body for preservation and burial.” 25A

C.J.S. Dead Bodies § 13. Indiana law has recognized

such a right for 150 years. Hamilton v. City of New

Albany, 30 Ind. 482 (1868). This right has also been

recognized by federal courts.

Just fourteen years ago, this Court noted in a

unanimous opinion, “[t]he well-established cultural

tradition of acknowledging a family's control over

the body and the deceased's death images has long

been recognized at common law.” Nat’l Archives and

Records Admin. v. Favish, 541 U.S. 157, 158 (2004).

This right has such deep historical roots and is of

such import that the Ninth Circuit has

10

characterized a parent’s right to choose how to

dispose of a child’s body as an aspect of substantive

due process. Marsh v. Cty of San Diego, 680 F.3d

1148, 1154 (9th Cir. 2012).

The opinion below evidences no consideration of

this right, instead characterizing the state statute

giving a woman “the right to determine the final

disposition of the aborted fetus,” Ind. Code § 16-343-2(a), as a constitutional flaw in Indiana’s

dispositional provisions. If allowed to stand, the

decision requires state legislators to elect between

respect for the rights of the family or regulation

responding to a persistent problem of improper, if

not indecent, disposition of fetal remains by abortion

clinics and others.

The persistence of this problem is evidenced by

repeated news reports of gruesome discoveries. E.g.

B.D. Colen, Hospital Got Cash for Fetuses, Wash.

Post, Feb. 29, 1976, at 25; 500 Fetuses Found by

Storage Company in Repossessed Crate, N.Y. Times,

Feb. 8, 1982, at A14; 173 Fetuses Found in Field

Doctor Owned, Wash. Post, Apr. 16, 1992, at A16;

Fetus Parts Found in Abortion Clinic Trash, N.Y.

Times, July 18, 1993, at A30; Fetuses Found in Calif.

Field, Wash. Post, Mar. 16, 1997, at A13; David

Rohde, A Store Owner Pleads Guilty to Transporting

Fetuses Illegally, N.Y. Times, Mar. 27, 1998, at B8.

Joy Blackburn, Report Finds Luis Hospital’s

11

Mistakes Range from the Potentially Deadly to

Bureaucratic, V.I. Daily News (Sept. 22,

2014),https://advance.lexis.com/api/permalink/4a1d

2884-1091-49a5-ab1628162a897e1b/?context=1000516;

Tony

Cook,

Company Fined for Accepting Fetal Tissue,

Indianapolis Star, Feb. 17, 2016, at A12; and Donna

Halvorsen, Appeals Court Upholds State Law

Requiring ‘Dignified’ Fetus Burial, Star Trib., Aug.

3, 1990, at 1A.

Perhaps the most notorious case involving

bizarre and gruesome disposition of fetal remains is

the case of Philadelphia abortionist, Kermit Gosnell.

“The remains of aborted fetuses were stored in water

jugs, pet food containers and a freezer at a West

Philadelphia abortion clinic, the city's chief medical

examiner testified in the murder trial of the doctor

who ran the facility.” Sarah Hoye, Medical examiner

had to thaw fetal remains in Philly abortion doctor

case,

CNN,

Apr.

16,

2013,

https://www.cnn.com/2013/04/16/us/pennsylvaniaabortion-doctor/index.html.

Statutes like those of Indiana and Minnesota are

rational attempts to address such abuses, yet lower

courts have failed to adopt a consistent method of

evaluating fetal disposition laws. For this reason, it

is vital that this Court accept certiorari in this case

and provide guidance to legislators on the question

of whether the constitution requires laws regulating

12

the conduct of abortion clinics and medical facilities

require denial of the common law right of sepulcher.

CONCLUSION

For the reasons set forth above, this Court should

grant Indiana’s petition for a writ of certiorari.

Respectfully submitted,

Teresa Stanton Collett

Counsel of Record

University of St. Thomas School of Law

1000 LaSalle Avenue, MSL 400

Minneapolis, MN 55403-2015

(651) 271-2958

tscollett@stthomas.edu

Counsel for Amicus Curiae

November 15, 2018