Supreme Court Upholds Portion of Indiana Abortion Law on Fetal Remains

May 28, 2019 by Dan McCue

The U.S. Supreme Court on Tuesday upheld the portion of an Indiana law signed by Vice President Mike Pence during his tenure as governor that requires fetal remains from abortions be buried or cremated.

The ruling partially reversed an earlier decision by the Seventh Circuit that had prevented the provision from going into effect.

“This Court has already acknowledged that a State has a ‘legitimate interest in proper disposal of fetal remains,” the 7-2 majority says in an unsigned opinion. “The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law.”

However, the justices chose to not to make a decision on a broader, and more controversial provision that was also being appealed after being blocked by the Seventh Circuit. This provision would have made it illegal for an abortion provider to do the procedure  in Indiana if they knew the woman seeking the abortion was doing so solely because of the child’s race, sex, diagnosis of Down syndrome, or disability.

“We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” the opinion said. “This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.”

But Justices Ruth Bader Ginsburg and Sonia Sotomayor disagreed.

Sotomayor did so by simply noting her dissent and commenting no further.

In a brief opinion of her own, Ginsburg said while she agreed with the majority decision not to wade into the second question, she would have denied Indiana’s petition in its entirety and would not “summarily reverse” the Seventh Circuit’s ruling.

“In the District Court and on appeal to the Seventh Circuit, Planned Parenthood of Indiana and Kentucky urged that Indiana’s law on the disposition of fetal remains should not pass even rational-basis review.

“It is ‘a waste of th[e] [C]ourt’s resources’ to take up a case simply to say we are bound by a party’s ‘strategic litigation choice’ to invoke rational-basis review alone, but ‘everything might be different’ under the close review instructed by the Court’s precedent,” Ginsburg wrote.

She went on to note in a footnote that “One may wonder how, if respect for the humanity of fetal remains after a miscarriage or abortion is the [S]tate’s goal, [Indiana’s] statute rationally achieves that goal when it simultaneously allows any form of disposal whatsoever if the [woman] elects to handle the remains herself.”

Pence signed the bill into law in 2016. Since then a number of states have passed laws that greatly curtail women’s right to make their own reproductive decisions, including Georgia, which has outlawed abortions once a fetal heartbeat has been detected, typically around six weeks of gestation and Missouri, which has banned most abortions at eight weeks of pregnancy.

In one state, Ohio, the proposed law included a surgical alternative to abortions that stem from ectopic pregnancies. However, lawmakers there later learned the procedure described in the bill does not exist.

And in Alabama a law signed by Alabama Governor Kay Ivey earlier this month would ban virtually all abortions, even in cases of incest and rape, and subject doctors who perform them to criminal prosecution and up to 99 years in prison.

None of the laws have gone into effect, and each is the subject of at least one legal challenge.

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 right.

While the justices in the majority 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, the high court’s most vocal advocate for overturning the Roe v. Wade decision that first declared women have a constitutional right to an abortion, wrote a 20-page opinion in which he said, “Indiana law prohibits abortion providers from treating the bodies of aborted children as ‘infectious waste’ and incinerating them alongside used needles, laboratory-animal carcasses, and surgical byproducts.

“A panel of the Seventh Circuit held that this fetal-remains law was irrational, and thus unconstitutional, under the doctrine of “substantive due process.” That decision was manifestly inconsistent with our precedent, as the Court holds,” Thomas continued, but he added that he believes the court was not to take up the second provision, which he said promotes “a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

No other justice joined Thomas’s opinion, which also hinted at how bitter a future debate over Roe v. Wade will be.

In a footnote, Thomas lashed out at Ginsburg’s two-paragraph dissent, saying it “makes little sense.”

“She adopts … [the] suggestion that regulating the disposition of an aborted child’s body might impose an ‘undue burden’ on the mother’s right to abort that (already aborted) child. This argument is difficult to understand, to say the least,” Thomas said.

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