For decades, pro-lifers have tried to find ways to highlight and respect the human dignity of prenatal children using methods which challenge current law, yes, but also in ways which work within the confines of current law.

In recent months, some states have been trying to ensure that all such children at least receive a proper burial. This seems to respect a woman’s current legal right to abortion, but on Thursday a federal judge granted a preliminary injunction against an Indiana law, the first such law to be passed.

To help unpack what is going on here, I thought it would be helpful to speak with Justin Menno, one of the few people in the world researching these topics.

A doctoral candidate in theology at the University of Dayton, and a teacher at Catholic Central High School in Grand Rapids, Michigan, his current research is on the uses and abuses of concepts like personhood and humanity in American law.

Before I came across your work, if I’m honest, I’ve never thought about burying prenatal children. Is this really a thing? Where is it done? Who is doing it?

It is. The burial of prenatal children killed by abortion has been practiced for decades.

But for the most part, it has been practiced in the wake of particular children being discovered in trash bins outside of abortion clinics. Thus, it’s been irregular. In most cases, these children have been buried in diocesan cemeteries close to where their remains were discovered.

And though the Catholic Church has not been the only organization involved in the burial of these children, it has been the most active.

Is the practice supported or mandated by law anywhere?

Yes. Last year, Indiana became the first state to pass legislation ensuring that all prenatal children killed by surgical abortion are given a dignified burial or cremation. And similar legislation is now moving forward toward passage in Ohio, South Carolina, and Mississippi.

Several other states are likely to follow suit.

Moreover, in a 1985 court case dealing with the disposition of over 16,000 aborted children who were discovered in a rental locker in Los Angeles, the Supreme Court upheld that burial laws are the province of states. Thus, it recognized that States are the final arbiters of extending burial laws to all classes of human beings.

Or to put it another way, it recognized that states are free, in principle, to treat all human remains as human remains.

But the Indiana law has been challenged. By whom? What were their arguments?

The usual suspects in the eugenic elite. To be exact, the ACLU of Indiana and Planned Parenthood. The plaintiffs argued that the remains of aborted children should be treated not as human remains, but as pathological remains.

In fact, one lawyer for the plaintiffs argued that the dismembered remains of these children should be treated just like amputated limbs.

But there are glaring problems with this argument. It implausibly conflates amputations and abortions. Amputations are surgeries intended to preserve the life of a human being. Abortions are not.

More importantly, it confuses the remains of a human organism and pathological waste. Whatever one thinks about abortion law, very basic biological and medical facts ought not to be so badly confused.

How did the court react to their arguments?

The Seventh Circuit Federal Appeals Court issued a preliminary injunction on June 30th.  Moreover, the presiding judge in her order basically said that human remains could only be considered human remains if they came from a human who has been legally recognized as a “person.”

But laws about burial of human remains have nothing to do with philosophical arguments about which human beings count as persons. They’re about whether or not the remains are the bodies of human organisms.

And it remains a stubborn, if inconvenient, fact that the remains after an abortion are those of a human organism.

Some might think, at least at first, that this is a very “insider baseball” issue. Why should any of us care who aren’t directly involved in these kinds of situations?

Four reasons. First, basic human decency. One of the very least things a culture can do is to ensure that all human beings receive a dignified burial.

Second, truthfulness in law. If a court can say remains of a human organism are not remains of a human organism, I’m not sure that it has much authority to say anything worth respecting or obeying.

Third, the witness of history. The refusal to give certain classes of human beings a dignified burial has come from broader cultural discrimination against certain classes of human beings.

The practice of refusing to bury certain human beings precisely because they don’t count as “legal persons” has a history. It is important to remember, for instance, that African-American slaves had no legal right to a dignified burial upon their deaths.

Fourth and finally, resistance to our “throwaway culture.” We must make sure that no one is literally thrown away either in life or in death. To bury aborted children, and to ensure that they are given this least dignity, is an important way not just to resist this culture, but to overcome it through mercy.