U.S. Supreme Court Reinstates Indiana Abortion Fetal-Burial Law

(Bloomberg) -- The U.S. Supreme Court’s strengthened conservative majority made its first move toward giving states more power to regulate abortion, as the justices upheld an Indiana law requiring clinics to bury or cremate fetal remains.

The justices ruled Tuesday that a federal appeals court was wrong to strike down the measure as unconstitutional. Only two justices -- Ruth Bader Ginsburg and Sonia Sotomayor -- indicated publicly that they disagreed with the ruling. The court ruled without hearing arguments in the case.

The court, however, also said it won’t hear Indiana’s effort to revive a separate provision that would bar abortions based on the fetus’s race or gender or the risk of a genetic disorder, such as Down syndrome.

The three-page opinion, issued by the court as a whole, said the state has a legitimate interest in ensuring the proper disposal of fetal remains. The court said opponents never argued that the measure put an unconstitutional "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 court said.

In a dissenting opinion, Ginsburg said the 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."

Pence Signed

Indiana argued that its law on disposal of fetal remains is consistent with the Supreme Court’s 1992 Planned Parenthood v. Casey decision, which upheld the fundamental right to abortion but said states have an interest in protecting fetal life after viability.

The measure -- signed into law in 2016 by then-Governor Mike Pence, now the vice president -- applies only to abortion clinics and doesn’t bar a woman from disposing of the tissue herself. The law lets clinics cremate or bury fetuses from multiple abortions together.

Planned Parenthood of Indiana and Kentucky, which challenged the measure, argued that those provisions undercut Indiana’s asserted goals.

In declining to take up the selective-abortion issue, the justices said no other federal appeals court had considered the matter. The high court didn’t express any views on the legality of the provision.

"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 Supreme Court said.

Eugenics Movement

In a separate opinion, Justice Clarence Thomas said abortion and birth control have historically been promoted to advance the goals of eugenics.

"This law and other laws like it promote a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics," Thomas wrote. He said the court will eventually need to decide the issue.

Pence is hopeful the court will eventually take up the selective-abortion issue, according to in an emailed statement from his press secretary, Alyssa Farah.

"Countries across the globe prohibit selective abortion, and the United States should do the same,” Farah said.

Abortion opponents have been trying to take advantage of the high court’s beefed up conservative majority now that Justice Brett Kavanaugh has succeeded the retired Justice Anthony Kennedy.

At least until now, the court had been reluctant to move too quickly. On Feb. 7 it temporarily blocked a Louisiana law that would force doctors to get hospital admitting privileges. In December the court refused to let two states cut off Medicaid payments to Planned Parenthood.

Ultrasound Requirement

The court could agree to take up the Louisiana case in the fall. It is also scheduled to act in the coming weeks on a separate Indiana appeal over the state’s requirement of an ultrasound at least 18 hours before a woman can end her pregnancy.

The high court action came on the same day that Planned Parenthood said it might have to close Missouri’s only abortion clinic because the state is threatening not to renew the facility’s license.

Jennifer Dalven, a lawyer with the American Civil Liberties Union who represented Planned Parenthood in the Indiana case, said abortion rights are under assault.

“Today the court let another unwarranted restriction on abortion stand," Dalven said in an emailed statement. "While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatize and drive abortion care out of reach."

Indiana Attorney General Curtis Hill hailed the court’s decision to uphold the fetal-disposal provision.

“The highest court in the land has now affirmed that nothing in the Constitution prohibits states from requiring abortion clinics to provide an element of basic human dignity in disposing of the fetuses they abort,” Hill said in an emailed statement.

The case is Box v. Planned Parenthood of Indiana and Kentucky, 18-483.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net, Laurie Asséo, Max Berley

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