By David G. Savage
Los Angeles Times
WASHINGTON — The Supreme Court on Tuesday upheld part of an unusual Indiana abortion law that requires clinics to bury or cremate the remains of a fetus. The justices in a short opinion said the law did not violate a woman's right to choose abortion.
But in doing so, the court sidestepped a much larger issue: The justices decided not to consider Indiana's effort to revive a law that could have made it illegal for women to end a pregnancy because of the race or gender of the fetus or if they received a diagnosis of Down syndrome.
The outcome, after weeks of internal debate, suggests the justices are inclined to move slowly and cautiously on the abortion issue and that Chief Justice John G. Roberts Jr. and his fellow conservatives are not ready to directly confront abortion rights, at least during a presidential election year. Had the high court agreed to hear the Indiana case, it would have been argued in the fall and decided by June 2020.
The justices were unanimous in agreeing to uphold lower court rulings that blocked the major part of Indiana's law from taking effect. That provides further evidence that they will not be eager to consider the even more sweeping abortion bans recently adopted by Alabama and other conservative states.
Since early January, the justices had debated the appeal in Box vs. Planned Parenthood during their weekly conferences.
The justices voted 7-2 to uphold the fetal remains part of Indiana's law, an issue they had not previously ruled on. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
In upholding that portion of the law, the justices in the majority said that states can legitimately regulate the burial of fetal remains. But they noted that their ruling did not alter previous decisions on whether state efforts to limit abortion itself amount to an "undue burden" on a woman's right to choose to end a pregnancy.
The case "does not implicate our cases applying the undue burden test to abortion regulations," they wrote.
Lower courts had struck down Indiana's law as unconstitutional under Roe vs. Wade. Under that 1973 decision, a woman and her doctor, not the state, have the right to choose whether to end an early or midterm pregnancy.
The law, adopted in 2016 and signed by then-Gov. Mike Pence, sought to prohibit abortions entirely in some situations.
Its "non-discrimination" provision said "Indiana does not allow a fetus to be aborted solely because of the fetus's race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability."
The law had a narrow exemption for a lethal condition which "will with reasonable certainty result in the death of the child not more than three months after the child's birth."
A federal judge in Indiana and the 7th U.S. Circuit Court of Appeals in Chicago blocked the entire law from taking effect and ruled it was unconstitutional, saying that the "nondiscrimination" provision violated Roe vs. Wade and that the fetal remains part of the law had no legitimate purpose.
Last year, the 7th Circuit split 4-4 on whether to reconsider that ruling. The dissenters included Judges Amy Coney Barrett from Indiana and Diane Sykes from Wisconsin, both of whom were considered by President Trump for a Supreme Court nomination.
Indiana appealed to the Supreme Court in October, a week after Justice Brett M. Kavanaugh was sworn in, strengthening the high court's conservative bloc.
In siding with the lower courts on the main part of the law, the justices wrote that the decision not to hear Indiana's appeal "expresses no view on the merits" of the issue, "whether Indiana may prohibit the knowing provision of sex-, race- and disability-selective abortions by abortion providers."
That issue has so far only been considered by one appellate court, the 7th Circuit, and the justices said they would wait until other appeals courts have looked at similar laws before jumping in to consider it.
Justice Clarence Thomas, writing for himself, said in a 20-page opinion that the court "will soon need to confront the constitutionality of a law like Indiana's" because of "the potential for abortion to become a tool of eugenic manipulation."
"From the beginning, birth control and abortion were promoted as a means of effectuating eugenics," he wrote.
The justices are still likely to consider some aspects of abortion law in the next year.
They are likely to take up a Louisiana law that would require abortion facilities to have a doctor on their staff who has admitting privileges at a nearby hospital. In February, the court, with Chief Justice Roberts in the majority, issued a 5-4 order to block that law from taking effect while the high court weighs an appeal.
The justices seem likely not to grant review of that case, June Medical Services v. Gee, until the fall. That, in turn, means a decision would probably not come before June 2020.
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