The Supreme Court on Tuesday agreed to a compromise on a restrictive Indiana abortion law that keeps the issue off its docket for now.
The court said a part of the law dealing with disposal of the “remains” of an abortion could go into effect. But it did not take up a part of the law stricken by lower courts that prohibited abortions because tests revealed an abnormality.
The court indicated it would wait for other courts to weigh in before taking up that issue.
The Indiana law at question was signed by Vice President Pence when he was governor of the state.
The decision not to schedule a review of the opinion of the U.S. Court of Appeals for the 7th Circuit came just after Alabama passed a law virtually outlawing abortion in that state. Legislators say they hope the unprecedented restrictions would lead to a Supreme Court showdown over the right to abortion the court established in Roe v. Wade.
But the compromise over the Indiana law indicated the court might proceed slowly. It has been considering whether to review the law since January, and Tuesday’s decision indicated that coming to agreement took some time.
Justices Ruth Bader Ginsburg and Sonia Sotomayor would have upheld the 7th Circuit’s decision keeping all of the law from going into effect.
The portion 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 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. Abortion rights proponents argued that because the Indiana law allowed the woman to dispose of the “tissue” as she chose, the real purpose of the position was to impose a burden on the woman.
The other provision would prohibit doctors from performing an abortion if the woman is choosing the procedure because of the sex or race of the fetus, or because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability.” It requires doctors to inform the woman of the prohibitions.
The court said 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 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.”
Justice Clarence Thomas, in a 20-page statement, said the court will eventually have to decide the question of what he called “eugenic abortions.”
“The Court’s decision to allow further percolation should not be interpreted as agreement” with the 7th Circuit, Thomas wrote. He included a long history of the birth-control movement.
“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.” No other justice joined Thomas.
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 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.”
Judge Frank Easterbrook, an influential conservative on the circuit court, was skeptical, saying the Supreme Court “did not consider the validity of an anti-eugenics law.” He said judges “ought not impute to the justices decisions they have not made about problems they have not faced,” concluding that “only the Supreme Court can determine the answer.”