WASHINGTON – The Supreme Court upheld an Indiana law Tuesday that requires the burial or cremation of fetal remains following an abortion, but the justices refused to consider the state's effort to ban abortions based on sex, race or disability.
Both parts of the abortion law, hailed by Gov. Mike Pence in 2016 before he became vice president as a "comprehensive pro-life measure that affirms the value of all human life," had been challenged successfully in federal appeals court by Planned Parenthood.
The Indiana law is among many challenging the timing, methods and providers of abortion that are headed toward the high court at a time when Chief Justice John Roberts and his colleagues are seeking a lower profile.
The justices sidestepped hearing Indiana's appeal by issuing a split decision on the law without holding oral argument. The vote appeared to be 7-2 for the unsigned opinion, with Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor saying they would have denied the fetal remains provision as well.
Associate Justice Clarence Thomas agreed with the split decision but decried what he called a trend toward using abortion as "a tool of modern-day eugenics."
"The court will soon need to confront the constitutionality of laws like Indiana's," Thomas wrote in a 20-page concurrence. "Enshrining a constitutional right to an abortion based solely on the race, sex or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement."
Pence heralded the ruling on fetal remains but echoed Thomas' lament that the court did not ban abortions chosen for specific reasons. Noting that the justices have barred discrimination based on sex, race and disability, the vice president tweeted: "Hopeful someday soon SCOTUS will recognize the same protections for the unborn."
By disposing of both parts of the law, the justices avoided the need to hear Indiana's appeal next fall or winter. But other abortion cases may not be as easy to sidestep.
In February, the court temporarily blocked abortion restrictions in Louisiana that critics complained were virtually identical to Texas limits struck down by the justices in 2016. Roberts sided with four liberal justices in taking that action, but it's likely the court will hear the state's appeal in the fall or early next year.
The Supreme Court agreed to consider yet another case on abortion rights. (Photo: JIM LO SCALZO, EPA-EFE)
Less likely to win the justices' consideration are laws passed recently in Alabama, Georgia, Ohio, Missouri, Kentucky and Mississippi that ban most abortions. Those laws are likely to be struck down by lower courts as imposing an undue burden on abortion rights.
In the Indiana case, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit last year struck down the law based on individual privacy rights.
"Nothing in the 14th Amendment or Supreme Court precedent allows the state to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy,” the court said.
In its petition to the Supreme Court, the state argued that the provisions "protect the inherent dignity of every human being, born and unborn, before and after death, without infringing on a woman’s constitutional right to decide whether to bear or beget a child.
"The fetal disposition provision only requires the cremation or burial of aborted or miscarried fetal remains and does not prevent a single woman from having an abortion," state Solicitor General Thomas Fisher argued.
The law requires that women pay for the burial or cremation if they choose to go outside the health care facility where they had the abortion.
The Supreme Court said the fetal remains provision "does not implicate our cases applying the undue burden test to abortion regulations."
On the provision barring abortions because of a fetus's sex, race or disability, the justices went out of their way to say the court was expressing "no view on the merits." Rather, it denied Indiana's attempt to revive the case because there was no conflict among appeals courts.
Lurking in lower courts are more restrictive state laws banning abortions after only a few weeks, as well as others banning the most common method of second-trimester abortions. And another Indiana law requiring ultrasound tests at least 18 hours before an abortion awaits possible Supreme Court review.
Abortion rights groups have been winning more than losing cases in state and federal courts, which have struck down efforts by Republican state legislatures to limit when and where women can get abortions.
The last major case involving abortion procedures was decided in 2007, when the justices upheld a federal law banning "partial birth" abortions. The key vote came from then-new Associate Justice Samuel Alito, whose predecessor, Sandra Day O'Connor, had voted to strike down a similar law seven years earlier.
Associate Justice Brett Kavanaugh's replacement of retired Associate Justice Anthony Kennedy could have the same effect on the court's 2016 ruling striking down a Texas law that required abortion clinics to meet surgical-center operating standards and doctors to have admitting privileges at nearby hospitals. Kavanaugh was among four
conservative justices who would have allowed the Louisiana law to take effect.
Efforts to restrict abortion thus far don't extend to overturning Roe v. Wade, the landmark ruling that made abortion legal nationwide in 1973. Many experts believe that decision won't be overruled with a narrow 5-4 conservative majority on the court.
On the other hand, President Donald Trump said during the 2016 campaign that he would choose "pro-life justices" and, if he named enough of them, overturning Roe would "happen automatically."