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.
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.
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SOURCE: USA Today, Richard Wolf