The US supreme court is upholding an Indiana law that requires abortion providers to dispose of aborted embryos and fetuses in the same way as human remains. But the justices are staying out of the debate over a broader provision that would prevent a woman in Indiana from having an abortion based on gender, race or disability.
The court is splitting 7-2 in allowing Indiana to enforce the fetal remains measure that had been blocked by a federal appeals court.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
Ginsburg said in a short opinion that she believes that the issue does implicate a woman’s right to an abortion "without undue interference from the state".
The seventh US circuit court of appeals in Chicago had blocked both provisions of a law signed by Mike Pence in 2016 when he was Indiana’s governor.
The court’s action on 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.
Governor Kay Ivey of Alabama this month signed a law that would ban virtually all abortions in that state from the time of conception, even in cases of incest and rape, and subject doctors who perform them to criminal prosecution. The law has yet to take effect and is being challenged in court as unconstitutional.
Other states have passed extreme laws that would outlaw abortions around six weeks of gestation.
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 declined to hear the state’s appeal of that blocked provision on Tuesday, they indicated that their decision “expresses no view on the merits”.
Justice Clarence Thomas, who supports overturning the 1973 Roe v Wade decision that first declared abortion rights, wrote a 20-page opinion in which he said the 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 also wrote: "The court will soon need to confront the constitutionality of laws like Indiana’s."
Repercussion
Alyssa Farah, a Pence spokeswoman, said he “commends the Supreme Court for upholding a portion of Indiana law that safeguards the sanctity of human life by requiring that remains of aborted babies be treated with respect and dignity.”
"We remain hopeful that at a later date the Supreme Court will review one of numerous state laws across the U.S. that bar abortion based on sex, race or disability," Farah added.
The court’s ruling on the fetal burial issue noted that in challenging the measure the American Civil Liberties Union and women’s healthcare and abortion provider Planned Parenthood did not allege that the provision implicated the right of women to obtain an abortion.
"This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations," the ruling said.
Planned Parenthood said in a statement the fetal burial provision was an abortion restriction “intended to shame and stigmatize women and families.”
"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. Whether it’s a total ban or a law designed to shut down clinics, politicians are lining up to decimate access to abortion," added Jennifer Dalven, an American Civil Liberties Union lawyer.
A test for the Court
The case was one of the court’s first major tests in the abortion context following last year’s retirement of Justice Anthony Kennedy, who was pivotal in defending abortion rights.
Anti-abortion activists hope the high court will greatly narrow or even overturn the Roe ruling following Kennedy’s departure. President Donald Trump replaced Kennedy with conservative Justice Brett Kavanaugh.
Liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor said they disagreed with the Supreme Court’s decision to reinstate Indiana’s fetal remains provision.
Conservative Justice Clarence Thomas wrote in a concurring opinion accompanying the ruling that the court will need to weigh in on whether states can ban abortions based on disability, race and gender. Indiana’s law promotes “a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” Thomas wrote.
Alabama, Georgia, Missouri, Mississippi and other states have passed restrictive abortion laws in recent months.
The Chicago-based 7th U.S. Circuit Court of Appeals upheld a 2017 permanent injunction issued by U.S. District Judge Tanya Walton Pratt against both provisions of Indiana’s law. She found the measure violated the constitutional privacy rights recognized in the 1973 abortion ruling.
The law forbade women from obtaining an abortion if the decision to terminate the pregnancy was based on a diagnosis or "potential diagnosis" of fetal abnormality such as Down syndrome or "any other disability" or due to the race, color, national origin ancestry or sex of the fetus. Indiana said the state has an interest in barring discrimination against fetuses and in protecting the "dignity of fetal remains."
"The highest court in the land has now affirmed that nothing in the Constitution prohibits states from requiring abortion clinics to provide an element of basic human dignity in disposing of the fetuses they abort. These tiny bodies are, after all, human remains," Indiana’s Republican Attorney General, Curtis Hill, said.
A similar fetal burial law from Minnesota was upheld by a federal appeals court in 1990 but the Indiana law and another like it in Texas, enacted in 2016, have been struck down by the courts.
Several other abortion cases are heading toward the high court, including Indiana’s appeal seeking to revive another law that requires women to undergo an ultrasound at least 18 hours before they undergo an abortion.
(Published by AP and Reuters May 28, 2019)
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