Pence and fetal funerals, all sturm, no drang

“Thinking” about personhood.

personhood-explainedMother Jones: Pence Signed a Law Requiring Burial or Cremation for Aborted Fetuses

Pence, whom Donald Trump announced as his vice presidential running mate on Friday, signed the law that made Indiana the second state ever, after North Dakota, to pass a ban on abortions carried out for certain reasons. The law also imposed liability for wrongful death on doctors that perform an abortion motivated by one of the prohibited reasons. And, as Mother Jones reported in March, the law also required that health care facilities inter or cremate the remains of an aborted fetus, and prohibited fetal tissue donation.

It is true that Gov. Pence signed this law. As such, this law is a good indicator of Gov. Pence’s philosophy and faith in this matter. As assessed at The Atlantic, at the end of the day, it’s about personhood.

“The most important impact of this law is taking another step toward recognizing fetuses as humans,” Marsh said. “That’s a philosophical goal of the law. It doesn’t have to do anything else except sit on the books and start to impact the way people think about it.”

Judge Tanya Walton Pratt, of the U.S. District Court, Southern District of Indiana appears to agree rather forcefully in the preliminary injunction granted to the plaintiffs in PPINK v. the State [of Indiana] (my apologies for poor notation as I’m no paralegal). Whatever the other considerations may be, Judge Pratt makes it clear that the State’s assertion of legitimate interest in matters of the disposal of fetal remains are undermined by begging the question of personhood prior to viability. Since miscarried, stillborn, and aborted fetuses are, by definition, no longer viable and have no potentiality at the time of the disposal of remains, there is no basis for treating the remains as though they are the remains of persons. The Court is itself enjoined by Roe v. Wade from making the decision that these remains are those of persons, for if the Supreme Court has not decided on personhood, it precludes the states from making that decision in its stead.

The Court’s analysis begins and ends with whether the State’s asserted interest is legitimate. The State provides multiple formulations of the interest furthered by the fetal tissue dispositions provisions: (1) “to treat fetal remains with the same dignity as other human remains, (2) “promoting respect for human life by ensuring proper disposal of fetal remains,” and (3) ensuring “that fetal remains be treated with humane dignity.”


As an initial matter, the Court must reject as legitimate, the State’s first formulation of its asserted interest. As the Seventh Circuit has noted, the Supreme Court and the cases that follow have unequivocally held that for purposes of the Fourteenth Amendment, a fetus is not a “person.” … As such, the Court can find no legal basis for the State to treat fetal remains with “the same” dignity as human remains. Stated otherwise, if the law does not recognize a fetus as a person, there can be no legitimate state interest in treating an aborted fetus the same as a deceased human.

For similar reasons, the State’s other two formulations of its asserted interest ultimately fare no better. Although these formulations are not premised on a fetus being the same as a person, they are premised on the related principle that fetal tissue is entitled to a more respectful, dignified, or humane disposition because it, like human remains, in some sense represents life. However, the State does not cite any legal authority that recognizes this premise as a legitimate state interest. Although the State points to Supreme Court cases that have recognized that State has a legitimate interest in promoting respect for potential life, these precedents do not extend to situations such as this where the potentiality for human life no longer is present.

Basically, this horse never had legs. And here his precious law sits, stymied by an injunction an appellate court is most unlikely to overturn, and thus this legalistic and failed attempt at begging the question is unlikely to go forward in any meaningful way other than, as The Atlantic put it, “to impact the way people think about” personhood.

Cross-posted @ Caustic

1 reply »

  1. well, not being either right or left but somewhere in between. until q person is born they are really just pert of their mother. if a person wants an abortion it should be her right. making someone go through pregnancy is a kin to taking someones freedom away. not allowing the use of the remains is counter productive. i am for freedom, the right to make my own decisions. why, i am the one that has to live with my mistakes not you. my freedom goes both ways right and left. when i die i will not care what happens to my body, they could shove a pole up my backside and mount me for display. now for the right, i have the right to own a gun for protection or whatever. my right my choice. to take someones ability away to protect themselves is nothing more then criminal. the people that are hurt the most are the poor or small in stature. those that expect the government to take care of them or protect them are living in OZ a fictional place.the governments job is to get more powerful and get more money for you to support their power. that is not good if you expect something from them. we need to take back a lot of freedoms we have lost not give up more. decentralize government. put it closer to the people. the government is the most inefficient form of business they have no reason to be anything else. it is just a good way to waste money for those that work in that environment