WASHINGTON (AP) -
The Supreme Court on Tuesday upheld an Indiana law that requires abortion
providers to dispose of aborted fetuses in the same way as human remains, a
sign that the conservative court is more open to abortion restrictions.
But the justices
rejected the state’s appeal of a lower court ruling blocking a separate
provision that would prevent a woman in Indiana from having an abortion
based on gender, race or disability.
The high court,
with two liberal justices dissenting, thus found a way perhaps to signal a
greater receptivity to state restrictions in the area of abortion without
yet welcoming a more direct challenge to abortion rights.
The court split 7-2
in allowing Indiana to enforce the requirement that clinics either bury or
cremate fetal remains, reversing a ruling by a federal appeals court that
had blocked it. The justices said in an unsigned opinion that the case does
not involve limits on abortion rights.
Justices Ruth Bader
Ginsburg and Sonia Sotomayor dissented. Ginsburg said in a short solo
opinion that she believes that the issue does implicate a woman’s right to
have an abortion “without undue interference from the state.”
The 7th U.S.
Circuit Court of Appeals in Chicago had blocked both provisions of a law
signed by Vice President Mike Pence in 2016 when he was Indiana’s governor.
The Supreme Court’s
action Tuesday keeps it out of an election-year review of the Indiana law
amid a flurry of new state laws that go to the very heart of abortion
rights.
Alabama Gov. Kay
Ivey this month signed a law that would ban virtually all abortions, even in
cases of incest and rape, and subject doctors who perform them to criminal
prosecution. That law has yet to take effect and is being challenged in
court.
Other states have
passed laws that would outlaw abortion once a fetal heartbeat has been
detected, typically around six weeks of gestation.
Still, the high
court is expected to hear at least one abortion-related case in its term
that begins in October and ends in June 2020. In February, the justices
blocked a Louisiana law that regulates abortion clinics, pending a full
review.
The Indiana measure
that would have prevented a woman from having an abortion for reasons
related to race, gender or disability gets closer to the core abortion
rights. While the justices declined to hear the state’s appeal of that
blocked provision Tuesday, they indicated that their decision “expresses no
view on the merits.”
Justice Clarence
Thomas, who supports overturning the Roe v. Wade decision that first
declared abortion rights, wrote a 20-page opinion in which he said the
Indiana provision promotes “a state’s compelling interest in preventing
abortion from becoming a tool of modern-day eugenics.” No other justice
joined the opinion.
Thomas and Ginsburg
also engaged in a brief battle of dueling footnotes in which Thomas said
Ginsburg’s dissent “makes little sense.” Ginsburg wrote that Thomas’
footnote “displays more heat than light,” including Thomas’ calling a woman
who has an abortion a mother. “A woman who exercises her constitutionally
protected right to terminate a pregnancy is a not a ‘mother,’” she wrote.
One other
noteworthy aspect of the court’s action Tuesday was the silence of liberal
Justices Stephen Breyer and Elena Kagan, who vote regularly to uphold
abortion rights. By not joining their liberal colleagues in dissent, Breyer
and Kagan helped Roberts in his desire to avoid, where possible,
controversial outcomes that split the five conservatives and four liberals.
The two also may have preserved their ability to negotiate with, if not
influence, Roberts in other cases.
The court upheld
the fetal remains provision under the least stringent standard of review
courts employ. The legislation only needed to be rationally related to the
state’s interest in the proper disposal of the remains, the court said.
Indiana met that burden, it said.
The court said it
is leaving open court challenges to similar laws under a higher legal
standard.
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