The Supreme Court on Tuesday blocked an Indiana law barring abortions based on a fetus’ sex, race or disability, while allowing a separate state measure requiring fetal remains to be buried or cremated to take effect.
The justices declined to review a lower court’s decision overturning a law restricting when and why an abortion could be performed. Vice President Mike Pence signed the measure into law in 2016 when he was Indiana governor, and it was blocked by the 7th Circuit Court of Appeals last year.
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That case is the latest abortion challenge the Supreme Court’s new conservative majority has passed up. However, it doesn’t indicate whether the court will eventually take up a challenge to Roe v. Wade, as a spate of conservative states including Alabama, Georgia and Missouri approve laws meant to directly challenge the 1973 ruling legalizing abortion nationwide.
In an unsigned opinion, the justices wrote that the state has a “legitimate interest” in the disposal of fetal remains. They reversed the 7th Circuit decision blocking that provision, reinstating Indiana’s measure without first holding a hearing.
Indiana argued the prevalence of prenatal screening has led many women to opt for abortion when fetal abnormalities like Down syndrome are detected. Supporters of abortion rights said the law was unconstitutionally intrusive, defying Supreme Court precedent protecting a woman’s right for an abortion until the fetus is viable outside of the womb, generally considered to be around 24 weeks.
“A woman, not the legislature, gets to decide whether an abortion is the right decision for her and her family,” said Ken Falk, legal director with the ACLU of Indiana, who represented Planned Parenthood of Indiana and Kentucky in the case.
A spokesperson for Pence, while commending the court’s decision over fetal remains, said the administration remained “hopeful” that the high court would one day take up a legal challenge addressing state bans on abortion that are based on sex, race or disability.
“Countries across the globe prohibit selective abortion — and the United States should do the same,” Alyssa Farah, press secretary for the vice president, said in a statement.
Although Justice Clarence Thomas agreed with the court’s decision to refuse the case, he wrote in a fiery concurring opinion that the justices may eventually consider the constitutionality of similar laws.
“Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s,” he wrote. “But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.”
Justice Sonia Sotomayor said she would have declined to take up both parts of the Indiana case. Justice Ruth Bader Ginsburg, in a dissenting opinion, disagreed with the majority’s ruling on the fetal remains question.
The Supreme Court internally wrangled over the Indiana case for an unusually long time. The case, Box v. Planned Parenthood of Indiana and Kentucky, was first listed on the justices’ docket in January.
Reaction to the court’s decision from groups opposing abortion was mixed, given the split decision over different parts of the Indiana law.
The anti-abortion group Susan B. Anthony List and its research arm Charlotte Lozier Institute thanked the court “for affirming today that nothing in the Constitution or precedents of this Court prohibits states from requiring that the remains of human children be treated better than medical waste.” However, they said it was “gravely disappointing” that the court did not take up the ban on abortion based on sex, race or disability.
The groups’ statement also praised Pence for his long history of shaping anti-abortion policies that are now considered mainstream in the Republican party.
Abortion rights advocates criticized the court for upholding the fetal remains provision.
“Today the Court let another unwarranted restriction on abortion stand,” Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said in a statement. “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.”
The high court has declined to hear two other abortion challenges in the current term, the first since Justice Brett Kavanaugh joined the bench. A divided Supreme Court in February temporarily blocked a Louisiana law requiring abortion providers to have admitting privileges at local hospitals. However, the court may take up the Louisiana case for a full review later this year.
Justices in December declined abortion rights case concerning whether states can cut Planned Parenthood and other abortion providers from their Medicaid programs.