The Supreme Court again has aborted its responsibility to provide more clarity on abortion-related legal issues. In doing so, the court continues its troubling tendency under Chief Justice John Roberts to avoid politically controversial issues, split any difference that can be split, and push off until a distant tomorrow what should be done today. The Roberts court is thus creating more confusion where certainty should reign.

The case at hand, Box v. Planned Parenthood of Indiana, involved an Indiana law that would protect disabled babies or babies of an unwanted race or sex from elective abortion on the grounds of those characteristics. Against a stirring dissent from Judge Frank Easterbrook, the U.S. 7th Circuit Court of Appeals ruled the Indiana law invalid. The Supreme Court declined to review the case, thus for now letting the 7th Circuit’s decision stand for the three states over which the circuit has jurisdiction.

The court’s excuse was that it has a supposedly “ordinary practice” of accepting cases only when two or more appeals courts have reached differing conclusions on the same legal issues. It’s a weak excuse. The same “Rule 10” of the Supreme Court that lists conflicting lower court rulings as one reason for granting review on an issue also says the justices likewise may take cases in which “a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.”

As I wrote in an earlier column on this case, and as the Wall Street Journal noted in an editorial, this latter consideration is especially relevant when the lower court has overturned a state’s duly instituted law. It is one thing to let stand a state law when the only appeals court that reviewed it ruled it OK. It’s a more pregnant question if a court and a legislature are in conflict….
… Here, the issue is of pressing importance as a matter of both law and civilization. As I wrote in January, “sex-selective abortion, or race-selective abortion, or abortion chosen as a means of rejecting the disabled, are forms of eugenics — the deliberate attempt to control hereditary qualities by nonnatural means.”…

 

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