The U.S. Supreme Court on Tuesday upheld Indiana's law imposing new requirements on the disposal of aborted or miscarried fetal remains, but the justices left in place the invalidation of restrictions on the ability of women to terminate previability abortions.

Under the two provisions before the justices, abortion clinics and other facilities were required to dispose of aborted or miscarried fetuses through cremation or interment. The law also would prevent women from choosing “discriminatory” abortions based on the sex, race or disability of the fetus. The only exception is for a “fetal condition that … will with reasonable certainty result in the death of the child not more than three months after the child's birth.”

In its opinion, the Supreme Court reversed a decision by the U.S. Court of Appeals for the Seventh Circuit, which had ruled that the state's interest in the “humane and dignified” disposal of human remains was “not legitimate” and even if it were legitimate, there was no rational relationship between that interest and the law as written.

The Supreme Court has acknowledged a state's interest in proper disposal of fetal remains, the justices said. “The only remaining question 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 court said in its per curiam order.

The justices said that in challenging the Indiana fetal remains provision, the plaintiffs never argued the law imposed an undue burden on a woman's right to obtain an abortion. Other courts have analyzed similar provisions under that standard, but the high court said, “Our opinion expresses no view on the merits of those challenges.”

On the second issue before the high court—the “discriminatory” abortions restriction—the justices denied review, also without expressing a view on the merits. The court said: “Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

Clarence Thomas Justice Clarence Thomas (2015). Credit: Diego M. Radzinschi/ ALM

Justice Clarence Thomas, in a 20-page concurring opinion, addressed what he described as a law that would check “discriminatory preferences.” He wrote, “this law and others like it promote a state's compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” He said the case “highlights the fact that abortion is an act rife with the potential for eugenic manipulation.” He warned that the court “cannot avoid” these issues forever.

Justice Ruth Bader Ginsburg concurred and dissented in part. She agreed with the court's denial of review of the “discriminatory” abortion restriction, but wrote that she would not have summarily reversed the Seventh Circuit on the fetal remains provision of the law.

“This case implicates 'the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State,” wrote Ginsburg, quoting from the 1992 decision in Planned Parenthood v. Casey. It is a waste of the court's resources, she said, to take up a case “simply to say we are bound by a party's 'strategic litigation choice' to invoke rational-basis review alone, but 'everything might be different' under the close review instructed by the court's precedent. I would therefore deny Indiana's petition in its entirety.”

Federal trial and appellate judges had imposed injunctions stopping the measures from taking effect. Planned Parenthood of Indiana and Kentucky sued to block the laws, signed in 2016 by then-Indiana governor, now Vice President Mike Pence.

The abortion debate has exploded once again across the country in the wake of two of the most restrictive abortion laws enacted in recent years. The  Alabama and Missouri laws appeared designed to trigger a direct challenge to the Supreme Court's landmark 1973 decision, Roe v. Wade, recognizing a woman's right to choose an abortion.

The high court's action Monday comes after the justices, dividing 5-4, recently blocked a Louisiana abortion law from temporarily taking effect.

The Louisiana law requires abortion providers to have hospital admitting privileges within 30 miles of abortion clinics. Justice Brett Kavanaugh wrote a dissent, arguing that the law should be allowed to go into effect to determine how much of a burden it created on women seeking abortions. Justices Thomas, Samuel Alito Jr. and Neil Gorsuch also dissented.

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The Supreme Court's ruling in Box v. Planned Parenthood is posted below:

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