Brett Kavanaugh's First Abortion Case Could Center Around A Law Mike Pence Championed

ByMonica Busch
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Abortion rights advocates have warned that it was only a matter of time until one of the many cases challenging abortion rights made its way through the legal system and landed on the current Supreme Court's docket. This is especially important in light of the court's newest justice, and if Indiana Attorney General Curtis Hill has his way, Brett Kavanaugh's first abortion case on the Supreme Court may be on deck sooner rather than later.

Earlier in October, Hill asked the Supreme Court to take on a lawsuit that challenged a restrictive anti-abortion law signed by former Indiana Gov. Mike Pence. Amanda Lamm, program coordinator for Indiana's All-Options Pregnancy Resource Center, tells Bustle that their group was "disappointed but not surprised to learn that Indiana wasted no time in bringing an anti-abortion law to the new Supreme Court."

Lamm describes Indiana as "a state with some of the worst abortion access, increasing rates of maternal and infant mortality, and high levels of poverty." In her view, she says, the government should be spending money on living wages, paid leave, child care, and accessible health care — not on lawsuits to limit abortion access.

The law in question extended anti-discrimination protections to fetuses, meaning that a woman could not obtain an abortion on the grounds of a fetus's sex, race, or disability, according to Rewire News. In other words, if a pregnant woman learned that her fetus had an abnormality, or could have an abnormality, she would not be able to obtain an abortion based on that information.

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The abortion law also imposed regulations for fetal remain disposal, requiring that they either be buried or cremated. This is a common requirement in many pieces of anti-abortion legislation. Such a requirement has been struck down or else blocked by federal courts in the past, including in Texas just last month.

Planned Parenthood of Indiana and Kentucky filed a suit against the law, resulting in an injunction, and then, eventually, a permanent block. However, Attorney General Hill has not given up on the legislation, and has asked the Supreme Court to review it, per The Times of Northwest Indiana.

“Nothing in the Constitution prohibits states from requiring health facilities to provide an element of basic human dignity in disposing of fetuses,” Hill said in a statement. He went on to argue that fetuses are "tiny bodies" that count as "human remains," and that pregnant women should not be able to decide "which" pregnancy they carry to term.

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It's not entirely clear how Kavanaugh, whose appointment affirmed the Supreme Court's conservative bent, would rule on an abortion-related case, though abortion rights advocates believe he would err on the side overturning or defanging Roe, if given the opportunity. This issue arose during Kavanaugh's confirmation hearings, after a leaked email obtained by The New York Times indicated that Kavanaugh didn't necessarily believe Roe v. Wade to be "settled by law of the land."

When. Sen. Dianne Feinstein asked Kavanaugh to explain what he meant, he said he was "referring to the view of legal scholars,” and described Roe v. Wade as “an important precedent” that has been “reaffirmed many times.”

The Supreme Court only takes on a tiny fraction of cases sent to it, but according to The Times of Northwest Indiana, the court hasn't heard a discrimination-based argument against abortion, nor a fetal remains argument, meaning that there's a greater chance they will take it on. If the court ultimately rules that the Indiana law may be enacted, it could lay the groundwork for other states to implement similarly restrictive regulations. Abortion rights have never been a given in the United States, and under the current Supreme Court, that's unlikely to change any time soon.