WASHINGTON – The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favoring a cautious and incremental path in confronting one of the nation’s enduring controversies.
On one hand, the court upheld a part of Indiana’s 2016 law that requires new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.
But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chooses the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’ gender or race.
The Indiana law was closely watched because it was the first time the conservative court, reinforced by the addition of President Donald Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protection found in Roe v. Wade and Planned Parenthood v. Casey. The latter reaffirmed Roe and said state restrictions on abortion could not impose an “undue burden” on a woman’s right to the procedure.
The court almost surely will consider during the term that begins in October a Louisiana law that imposes restrictions on doctors who perform abortions there. A challenge to a separate Indiana law imposing a waiting period for an abortion after a woman has a sonogram is awaiting action at the court, as is a restriction on a commonly used procedure in second-trimester abortions.
Even more restrictive laws, such as the Alabama law that would virtually outlaw abortion there, are unlikely to reach the Supreme Court anytime soon.
The court has been considering since January whether to review the challenged parts of the 2016 Indiana law – signed by Vice President Mike Pence when he was the state’s governor – and Tuesday’s decision indicated that coming to agreement took some time.
The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor say they would have let the lower court’s rejections stay in place; fellow liberals Stephen Breyer and Elena Kagan were silent.
But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early-20th centuries. He added in a footnote that Ginsburg’s objection to the fetal remains portion of the law “makes little sense.”
She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.
The portion of the Indiana law the court allowed to go into effect requires that the “remains” of abortion or miscarriage be buried or cremated, as required of other human remains.
“This court has already acknowledged that a state has a ‘legitimate interest in proper disposal of fetal remains,’ ” the court wrote in the unsigned opinion, citing a 1983 decision. “The only remaining question, then, is whether Indiana’s law is rationally related to the state’s interest in proper disposal of fetal remains. We conclude that it is, even if it is not perfectly tailored to that end.”
The opinion was careful to “reiterate” that challengers to the law “have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion. This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.”
The premise of the “Fetal Disposition Provision,” Indiana’s lawyers told the Supreme Court, “is that an aborted or miscarried fetus is nothing less than the remains of a partially gestated human and should be treated with the same dignity.”
But the federal courts reviewing the provision said it was unreasonable in light of the Supreme Court’s past decisions finding that a fetus is not a person for constitutional purposes. Ginsburg said it should have been evaluated for whether it imposed an undue burden on the woman.
The law’s other provision, prohibiting abortion if the woman’s choice involves the fetus’ race or gender, or a disability diagnosis,requires doctors to inform their patients of the prohibitions.
The court’s opinion was careful to say it was taking no position on “whether Indiana may prohibit the knowing provision of sex-, race-, and disability selective abortions by abortion providers.” It said that since the U.S. Court of Appeals for the 7th Circuit is the only appeals court to have considered the issue, “we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional courts of appeals.”
Indiana said the provision prohibiting “discriminatory abortions” was a response by the Indiana legislature “to the alarming trend of disability-selective abortions” made possible by advances in genetic testing in pregnancies.
It requires doctors to inform women that “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.”
It exempts cases of “lethal fetal abnormalities,” but that is defined as a condition that is reasonably thought to mean death within three months of birth. Abortion rights proponents say that would rule out a number of conditions that result in infant deaths outside of that three-month window.
The 7th Circuit panel said the provision could not stand, because “nothing in the Fourteenth Amendment [of the Constitution] or Supreme Court precedent allows the state to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability.”
Thomas said he agreed with his colleagues’ decision not to take up the provision at this time. But he also made clear where he stood.
“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,” he wrote.
He said that the reasons Indiana cites for forbidding an abortion “promote a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Thomas took particular aim at Planned Parenthood founder Margaret Sanger’s endorsement of birth control as a means of controlling the population (although he noted her opposition to abortion).
And he noted how the Supreme Court “threw its prestige behind the eugenics movement in its 1927 decision upholding the constitutionality of Virginia’s forced-sterilization law, Buck v. Bell. The decision is known for Justice Oliver Wendell Holmes Jr.’s statement: “Three generations of imbeciles are enough.”
Thomas concluded: “Although the court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this court is dutybound to address its scope.”
No other justice joined Thomas, but Pence did. “Countries across the globe prohibit selective abortion – and the United States should do the same” said Alyssa Farah, the vice president’s press secretary.