Supreme Court allows Indiana to require burial of fetal remains, but not ban certain abortions

The court let stand a ruling invalidating abortion ban based on disability.

May 28, 2019, 6:53 PM

The Supreme Court on Tuesday let stand a lower court ruling invalidating an Indiana ban on abortions solely on the basis of sex, race or disability. But a majority of the justices also said the state's requirement that fetal remains be buried or cremated after an abortion should be allowed to take effect.

The split decision, issued without hearing oral arguments, keeps abortion off the court's docket for now, even as several states pursue new restrictions on the procedure with the express goal of a Supreme Court review.

The justices make clear in the per curiam opinion they are not taking a position on the merits of Indiana's ban, but rather declining to consider the matter because of "our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional courts of appeals."

The 7th Circuit Court of Appeals ruled that Indiana's ban on "selective" abortions imposed an "undue burden" on women. That part of the state law, which was signed by then-Gov. Mike Pence in 2016, remains blocked.

PHOTO: Associate Justice Ruth Bader Ginsburg during an official group photo at the Supreme Court on Nov. 30, 2018 in Washington.
Associate Justice Ruth Bader Ginsburg during an official group photo at the Supreme Court on Nov. 30, 2018 in Washington.
Washington Post via Getty Images, FILE

"The court is sort of continuing its very piecemeal effort to chip away at abortion rights and to make it easier for the states to make abortion inaccessible without actually overruling Roe v Wade," said New York University constitutional law professor Melissa Murray on ABC News' "The Briefing Room."

Abortion rights advocates say Indiana's fetal remains requirements will drive up costs for abortion clinics and in turn for patients seeking abortion care.

"Laws like Indiana's are part of an nationwide strategy to stigmatize abortion and push it out of reach," said Jennifer Davlin, Director of the ACLU Reproductive Freedom Project, on ABC News Live.

Opponents of abortion rights welcomed the ruling.

"We thank the Court for affirming today that nothing in the Constitution or precedents of the Court prohibits states from requiring that the remains of human children be treated better than medical waste," Susan B. Anthony List, an anti-abortion advocacy group, said in a statement. "This is a straightforward issue of whether states may regulate the proper and dignified disposal of human remains."

Justice Clarence Thomas, in a 20-page concurring opinion, wrote that "further percolation" on the issue of Indiana's selective abortion ban was necessary, but he made clear that he would be inclined to uphold measure. His writings offer a rare glimpse into the mind of a key member of the court's new conservative majority at a time when abortion opponents are imploring it to reconsider Roe v. Wade.

While several states rush to enact strict, blanket bans on the procedure, Thomas seems to suggest that more modest restrictions to the types and circumstances of abortions might have a greater likelihood of succeeding if challenged.

"Abortion is an act rife with the potential for eugenic manipulation," Thomas writes, detailing what he says are the discriminatory and immoral underpinnings of the procedure, first heavily promoted by Planned Parenthood founder Margaret Sanger.

The court has recognized a woman's categorical "right to terminate her pregnancy prior to viability," he says, but "it did not decide whether the Constitution requires states to allow eugenic abortions."

"The court has been zealous in vindicating the rights of people even potentially subjected to race, sex and disability discrimination," Thomas writes. "Having created the constitutional right to an abortion, this Court is dutybound to address its scope."

Susan B. Anthony List celebrated Thomas' analysis urging the court to "at least allow for states to protect babies from unjust discrimination" if the opportunity arises in future cases.

"There’s certainly a laying of breadcrumbs by Justice Thomas," said constitutional law professor Murray. "This is not the last we’ll see of this issue."

The court's review of Indiana's abortion law was a split decision.

The justices concluded 7-2 that the state of Indiana has a "legitimate interest in the proper disposal of fetal remains" and that a requirement to bury or cremate an aborted fetus does not impose an "undue burden" on access to abortion.

PHOTO: Supreme Court Justice Clarence Thomas is seen in his chambers at the U.S. Supreme Court building in Washington, U.S. June 6, 2016.
Supreme Court Justice Clarence Thomas is seen in his chambers at the U.S. Supreme Court building in Washington, U.S. June 6, 2016.
Jonathan Ernst/Reuters, FILE

Justices Ruth Bader Ginsburg and Sonia Sotomayor both would have let stand a lower court ruling blocking the provision. In a dissent, Ginsburg argues that disposition of fetal remains "implicates" the right of a woman to access an abortion "without undue interference from the state."

“Today the Court let another unwarranted restriction on abortion stand. While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatize and drive abortion care out of reach," Davlin said in a statement.

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