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Supreme Court: You Can Abort a Baby Because She's a Girl -- For Now

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

A mother and father in Indianapolis have only one child, a little girl who is 2 years old. The mother becomes pregnant with another.

She and her husband have decided they want only two children -- and they want the second to be a boy.


Eighteen weeks into pregnancy, the mother undergoes a screening that determines her unborn child is a girl. With the full support of her husband, she decides to abort this little girl so they can have another try at conceiving a boy.

Whose side will the Supreme Court take on the question of whether the mother has a constitutional right to kill this unborn child because she is a girl? The mother's side, or the little girl's?

Which side will Planned Parenthood take?

The mother gets pregnant again. This time, when she undergoes a screening, they discover the unborn child is a boy.

But then they discover this unborn boy has Down syndrome.

Once again, the mother -- supported by the father -- decides to abort this unborn child.

Whose side will the court and Planned Parenthood take?

The married couple cited here is hypothetical. But the mother's decision to abort one baby because she is a girl and another because he has Down syndrome goes to the core of a real question the Supreme Court refused to answer this week. It let stand a decision handed down by the 7th U.S. Circuit Court of Appeals that said it is unconstitutional for Indiana to ban abortions that a mother seeks solely because she is displeased with certain attributes of her unborn child, including the child's sex, race or disability.

At the same time, the court summarily reversed the appeals court's decision that had overturned another part of this same Indiana law that had required abortion providers to bury or cremate the remains of aborted babies.


Then-Gov. Mike Pence of Indiana signed this law in 2016. In its opinion declaring the law unconstitutional, the appeals court summarized the law's "Sex Selective and Disability Abortion Ban," stating that it prohibited abortions where "'the pregnant woman is seeking' an abortion 'solely because of the sex of the fetus' ... 'solely because the fetus has been diagnosed with Down syndrome or has a potential diagnoses of Down syndrome,' or has been diagnosed with or has a potential diagnosis of 'any other disability' ... or 'solely because of the race, color, national origin, or ancestry of the fetus.'"

Planned Parenthood of Indiana and Kentucky sued Indiana to stop this law. In 2017, a U.S. district court declared the law unconstitutional. The appeals court upheld that decision -- citing the Supreme Court's decisions in Roe v. Wade and Planned Parenthood v. Casey.

"The non-discrimination provisions clearly violate this well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason," the appeals court concluded.

Tellingly, while addressing the law's requirement that aborted babies be buried or cremated, the appeals court felt compelled to critique Indiana's scientific conclusion that an unborn human child is a "human being."


"According to the State," the court said, "the provisions further the State's legitimate interest in 'the humane and dignified disposal of human remains.' 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," the court continued, "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."

"However," said the appeals court, "the Supreme Court has concluded that 'the word "person," as used in the Fourteenth Amendment, does not include the unborn.'"

"Simply put," the appeals court concludes, "the law does not recognize that an aborted fetus is a person. 'This conclusion follows inevitably from the decision to grant women a right to abort. If even a (non-viable) fetus is a person, surely the state would be allowed to protect (the fetus) from being killed.'"

Should it not also be allowed to protect an unborn human being from being killed?

Not in the view of this appeals court, which ruled that a state may not even stop an abortionist from killing an unborn child because the mother has decided she does not want a girl.


The Supreme Court did not see this as a pressing question.

"Our opinion likewise expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers," said the court in its unsigned per curiam decision.

"Only the Seventh Circuit has thus far addressed this kind of law," the court said. "We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals."

So Americans will need to wait -- and abortionists will continue to kill unborn babies -- as the Supreme Court seeks what it deems a timelier moment to decide whether all humans have a right to life.

Terence P. Jeffrey is the editor in chief of CNSnews.com.

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