Supreme Court upholds Indiana law on fetal remains, avoids major abortion ruling for now

by Jacqueline Thomsen - 05/28/19 9:48 AM ET

The Supreme Court on Tuesday reversed a lower court’s decision invalidating part of Indiana’s abortion law on the disposal of fetal remains, allowing it to go into effect.

But the court declined to take up a challenge to a provision blocking abortions on the basis of sex, race or disability, avoiding a major ruling on abortion for the time being.

The fetal remains law — signed by then-Gov. Mike Pence (R) — required that the remains from abortions or miscarriages be buried or cremated. The court reversed a ruling from the 7th Circuit Court of Appeals that found the law unconstitutional.

{mosads}”We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” the court’s order reads.

The court’s order also means that the 7th Circuit Court of Appeals ruling that blocked the second Indiana abortion law stands. That law stopped abortions on the basis of the fetuses’ sex, gender or disability. The court stated that it will let lower courts continue to weigh in on that provision

The justices’s rulings Tuesday allows the high court to effectively sidestep the issue of abortion for now, a high-profile and politically charged topic that the Supreme Court generally seeks to avoid.

Justice Ruth Bader Ginsburg wrote in a separate opinion that while she agreed with the court’s decision to not review the law restricting abortions, she felt that the justices should have reviewed the fetal remains law instead of issuing a summary judgement.

“I would not summarily reverse a judgement when application of the proper standard would likely” lead to upholding the lower court ruling rejecting the law, Ginsburg wrote.

Tuesday’s order also noted that Justice Sonia Sotomayor would have rejected the appeals for both laws, upholding the lower court rulings.

Justice Clarence Thomas wrote in a lengthy opinion that he “would have thought it could go without saying that nothing in the Constitution or any decision of this court prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains.”

But he said that the court will eventually have to take up abortion laws in the near future, writing that he was concerned of the possibility of abortions being used for “eugenics.”

“Given the potential for abortion to soon become a tool of eugenic manipulation, the court will soon need to confront the constitutionality of laws like Indiana’s,” Thomas 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.”

A flurry of conservative state legislatures have passed new abortion restrictions in recent months, with the apparent goal of getting the laws up to the Supreme Court.

Some hope that the conservative majority on the Supreme Court could use the opportunity to overturn Roe v. Wade, although legal experts doubt that it will happen in the near future.

Updated at 10:51 a.m.

Tags Abortion Clarence Thomas Mike Pence Ruth Bader Ginsburg Sonia Sotomayor state law Supreme Court