The Supreme Court on Tuesday issued an order that will allow Indiana to enforce a law mandating the burial or cremation of fetal remains following an abortion.
The justices also decided they will not take up a separate part of the law banning abortion on the basis of race, sex, or disability, meaning that those restrictions won’t go into effect. Both abortion laws were signed in 2016 by Vice President Mike Pence, who was governor of Indiana at the time.
The order on the fetal remains case marks the first instance of the more conservative Supreme Court makeup challenging the parameters of Roe v. Wade, the 1973 decision that legalized abortion nationwide. The Indiana case was closely watched since the Supreme Court began discussing it in January. The justices met about it more than a dozen times.
The fetal remains order by the Supreme Court overturns an appeals court decision from the 7th Circuit that held Indiana’s stated interest in the “humane and dignified disposal of human remains” was “not … legitimate.”
The Supreme Court in its opinion said the plaintiffs hadn’t argued that the Indiana law posed “undue burden” preventing women from accessing abortion, which is the standard the court has applied since its 1992 Planned Parenthood v. Casey decision allowing states to regulate abortion to a certain extent. Justice Ruth Bader Ginsburg issued a dissent asserting she believed the law did pose an undue burden, and saying she would not have taken up the case.
Abortion rights advocates have opposed burial and cremation laws because they say they make abortions more expensive, while proponents of such laws argue that aborted fetuses should not be treated like other medical waste.
The justices said they would let lower courts continue to weigh in on the other part of the law banning abortion on the basis of race, sex, or disability.
“We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals,” the justices wrote.
The Supreme Court’s decision not to review that part of the law means that a 2016 decision by the 7th Circuit Court in Chicago ruling the law unconstitutional remains in effect. In that instance, the judges cited the Supreme Court’s Roe decision, saying the choice to have an abortion was not up to the government but was to be a decision between a woman and her doctor.
Justice Clarence Thomas wrote a concurrence in the decision in which he laid out ways that abortion could be used for eugenics, and said the high court would someday need to weigh in on the issue. He wrote about how women in Iceland abort nearly every time they learn they would otherwise give birth to a baby with Down syndrome, and about how families in China have tended to abort female fetuses as part of a population control measure.
“Although the Court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote.
