The Supreme Court on Tuesday upheld an Indiana law that requires abortion providers to dispose of aborted fetuses in the same way as human remains, a sign that the conservative court is more open to abortion restrictions.
But the justices rejected the state’s appeal of a lower court ruling blocking a separate provision that would prevent a woman in Indiana from having an abortion based on gender, race or disability.
The high court, with two liberal justices dissenting, thus found a way perhaps to signal a greater receptivity to state restrictions in the area of abortion without yet welcoming a more direct challenge to abortion rights.
The court split 7-2 in allowing Indiana to enforce the requirement that clinics either bury or cremate fetal remains, reversing a ruling by a federal appeals court that had blocked it. The justices said in an unsigned opinion that the case does not involve limits on abortion rights.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Ginsburg said in a short solo opinion that she believes that the issue does implicate a woman’s right to have an abortion “without undue interference from the state.”
The 7th U.S. Circuit Court of Appeals in Chicago had blocked both provisions of a law signed by Vice President Mike Pence in 2016 when he was Indiana’s governor.
The Supreme Court’s action Tuesday keeps it out of an election-year review of the Indiana law amid a flurry of new state laws that go the very heart of abortion rights. Alabama Gov. Kay Ivey this month signed a law that would ban virtually all abortions, even in cases of incest and rape, and subject doctors who perform them to criminal prosecution. That law has yet to take effect and is being challenged in court.
Other states have passed laws that would outlaw abortion once a fetal heartbeat has been detected, typically around six weeks of gestation.
Still, the high court is expected to hear at least one abortion-related case in its term that begins in October and ends in June 2020. In February, the justices blocked a Louisiana law that regulates abortion clinics, pending a full review.
The Indiana measure that would have prevented a woman from having an abortion for reasons related to race, gender or disability gets closer to the core abortion rights. While the justices declined to hear the state’s appeal of that blocked provision Tuesday, they indicated that their decision “expresses no view on the merits.”
Justice Clarence Thomas, who supports overturning the Roe v. Wade decision that first declared abortion rights, wrote a 20-page opinion in which he said the Indiana provision promotes “a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” No other justice joined the opinion.
Thomas and Ginsburg also engaged in a brief battle of dueling footnotes in which Thomas said Ginsburg’s dissent “makes little sense.” Ginsburg wrote that Thomas’ footnote “displays more heat than light,” including Thomas’ calling a woman who has an abortion a mother. “A woman who exercises her constitutionally protected right to terminate a pregnancy is a not a ‘mother,'” she wrote.
One other noteworthy aspect of the court’s action Tuesday was the silence of liberal Justices Stephen Breyer and Elena Kagan, who vote regularly to uphold abortion rights. By not joining their liberal colleagues in dissent, Breyer and Kagan helped Roberts in his desire to avoid, where possible, controversial outcomes that split the five conservatives and four liberals. The two also may have preserved their ability to negotiate with, if not influence, Roberts in other cases.
The court upheld the fetal remains provision under the least stringent standard of review courts employ. The legislation only needed to be rationally related to the state’s interest in the proper disposal of the remains, the court said. Indiana met that burden, it said.
The court said it is leaving open court challenges to similar laws under a higher legal standard.