WASHINGTON — The name Ulrich Klopfer doesn’t mean much to most Americans. But congressional Republicans are hoping to change that.
Klopfer was an abortion provider in Indiana. When he died last month, more than 2,200 medically preserved fetuses were discovered at his home across the border in Illinois, quickly making Klopfer a villain of the anti-abortion movement.
Now, Republicans are latching onto that villainy in a push to pass a federal law that experts say could advance the fetal personhood argument and maybe even move toward a repeal of Roe. v. Wade.
“This was heinous,” said Rep. Jackie Walorski, a Republican who represents an Indiana district where Klopfer once operated a clinic. “When these babies died during abortions, what happens to their bodies?”
Walorski is leading Republicans’ effort to leverage Klopfer’s story, which made national headlines. Last week, she and 66 of her colleagues sent a letter to Attorney General Bill Barr asking that the Department of Justice assist Indiana and Illinois in their investigation into Klopfer.
But the letter also makes a bigger ask: to review state laws that govern the disposal of aborted fetuses. According to the letter, a federal review would help Congress decide whether to push for a federal law to mandate that fetal remains are always buried or cremated.
In truth, conservatives have already decided a federal “fetal burial” law is the next front in the fight against abortion. A state law already exists in Indiana. States like Arkansas and Georgia have similar laws on the books, and others are still in the process of moving legislation.
Last month, after the grisly discovery on Klopfer’s property in Will County, Illinois, Indiana Sens. Mike Braun and Todd Young, both Republicans, introduced a federal version in the U.S. Senate including a federal reporting requirement for clinics and fines or even jail time for failure to comply.
“I think it's right on with where Indiana's law is: cremation or some kind of burial. I think it's a dignity issue,” Walorski said. “It goes to the issue of oversight. I think it goes to the issue that this kind of stuff can happen, does happen. And I think we should make sure it never happens again.”
Walorski presented the issue to her colleagues two weeks ago at a private meeting of the Republican Study Committee, the largest group of Republicans in the House. Still, the bill has little chance of gaining traction in a Democrat-controlled House, and Congress and the Justice Department may be tied up with the impeachment inquiry for the foreseeable future.
But Republicans are probably playing the long game, said Mary Ziegler, a Florida State University law professor and expert in abortion law.
The shocking nature of the discovery of so many fetal remains preserved in bags could make the public sympathetic to the idea of common standards for disposal, she said.
In advocating solely for burial or cremation, proponents of the law are making a deeper argument: A fetus deserves the same treatment as a fully formed human being. That reignites the debate about fetal personhood — creating a legal definition of a fetus as a living being — which could undercut Roe v. Wade. That decision established a woman’s right to choose to have an abortion, but if more states, or even the federal government, pass laws that treat fetuses like people, advocates could build a case that a fetus’ rights counterbalance the rights of a woman.
“This is just an example of how this issue is so sharply polarized that you can’t have a sensible conversation to agree on both sides that this was a bad thing and shouldn’t have happened,” Ziegler said of the Klopfer case. “It becomes a brick in the wall to get rid of Roe.”
Ziegler added that laws regulating disposal could be designed to create an added cost or hurdle for abortion clinics — even those operating aboveboard.
“Abortion providers may face much higher expenses for dealing with fetal remains,” she said. “The cost of a cremation or burial is obviously going to be higher than whatever contract they have with medical waste disposal facilities.”
Americans United for Life, the influential anti-abortion group, has drawn up model legislation dealing with the disposal of fetal remains. The group’s senior counsel, Clarke Forsythe, insisted that the issue is not about personhood, but also said his group would not be satisfied if laws mandate that fetal remains were dealt with as medical waste rather than buried or cremated.
“It doesn’t matter if you technically establish personhood,” he said, adding, “These are human remains. They should not be thrown out. … They shouldn’t be treated like medical waste.”
Earlier this year, the Supreme Court refused to hear a challenge to the Indiana law but upheld the right of the state to mandate burial or cremation. A similar Texas law was struck down by a federal court last year. Forsythe said even just an attempt at federal legislation could create another opportunity for the judiciary to weigh in.
“I think having some congressional attention to this is a good idea,” he said. “But it could likely spark a test case in the courts about this specific application of congressional authority and whether Congress has the authority to legislate in this area.”
Cover: This September 2014 file photo shows Dr. Ulrich Klopfer, who performed abortions for decades in Indiana, and allegedly preserved 2,200 fetal remains in his office and home. Klopfer died earlier this year. (South Bend Tribune via AP, File)