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Indiana Abortion Law Blocked, Except for Burial of Fetal Remains

The United States Supreme Court; copy space.
By William Vogeler, Esq. on May 29, 2019 6:00 AM

The Supreme Court let stand a lower court ruling that invalidated Indiana's ban on abortions, but upheld the law requiring burial of fetal remains.

The decision not to review the case divided advocates on both sides of the abortion debate, as each claimed victory and defeat. Some called the decision a compromise that keeps abortion off the court docket.

Justice Clarence Thomas stood out, writing separately from the unsigned opinion that denied Indiana's appeal. Sooner or later, he said, the Supreme Court will have to confront "eugenic abortions."

Fetal Remains

By denying review, the justices stopped short of deciding the legality of Indiana's ban on abortion for women who choose the procedure based on the sex, race, or disability of the fetus. The U.S. Seventh Circuit Court of Appeals had blocked the abortion law. The High Court took no position on the issue, saying it ordinarily denies petitions when they raise issues not considered by more than one court of appeals. However, the jurists upheld by  7-2 Indiana's law requiring burial or cremation of fetal remains.

"This court has already acknowledged that a state has a 'legitimate interest in proper disposal of fetal remains,'" the majority said. "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." Justices Ruth Bader Ginsburg and Sonia Sotomayor disagreed. In a dissent, Ginsburg said the disposition of fetal remains implicates the right of a woman to access an abortion "without undue influence" from the state. In his opinion, Thomas warned that abortions could be used for eugenics -- practices to exclude genetic groups from human population. He said Indiana's law promote a state's "compelling interest in preventing abortion from become a tool of modern-day eugenics."

"Eugenic Abortions'

He said abortion is "rife with the potential for eugenic manipulation," arguing that it is based on discriminatory and immoral reasons. "Although the court declines to wade into these issues today, we cannot avoid them forever," he said. "Having created the constitutional right to an abortion, this court is dutybound to address its scope." Steve Vladeck, a professor at the University of Texas School of Law, said Thomas spoke only for himself on the court. He noted that none of the other justices joined him.

Jennifer Dalven, director of the ACLU Reproductive Freedom Project, said the court let "another unwarranted restriction on abortion stand." She said it was part of a trend in state laws to stigmatize abortion care.

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