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 Both provisions were part of a Republican-backed 2016 law signed by
Vice President Mike Pence when he was Indiana's governor. The action
by the justices comes at a time when numerous Republican-governed
states including Alabama are approving restrictive abortion laws
that the Supreme Court may be called upon to rule on in the future.
In an unsigned ruling, with two liberal justices dissenting, the
Supreme Court decided that a lower court was wrong to conclude that
Indiana's fetal burial provision, which imposed new requirements on
abortion clinics, had no legitimate purpose. The court has a 5-4
conservative majority.
While that provision was not a direct challenge to the 1973 Roe v.
Wade decision that legalized abortion nationwide, the ruling gave
anti-abortion proponents a victory at the Supreme Court, which soon
may have to decide whether various state laws violate the rights
recognized in that landmark ruling.
But the court also indicated a reluctance to directly tackle the
abortion issue at least for now, rejecting Indiana's separate
attempt to reinstate its ban on abortions performed because of fetal
disability or the sex or race of the fetus. The court left in place
the part of an appeals court ruling that struck down the provision.
Alyssa Farah, a Pence spokeswoman, said he "commends the Supreme
Court for upholding a portion of Indiana law that safeguards the
sanctity of human life by requiring that remains of aborted babies
be treated with respect and dignity."
"We remain hopeful that at a later date the Supreme Court will
review one of numerous state laws across the U.S. that bar abortion
based on sex, race or disability," Farah added.
The court's ruling on the fetal burial issue noted that in
challenging the measure the American Civil Liberties Union and
women's healthcare and abortion provider Planned Parenthood did not
allege that the provision implicated the right of women to obtain an
abortion.
"This case, as litigated, therefore does not implicate our cases
applying the undue burden test to abortion regulations," the ruling
said.
Planned Parenthood said in a statement the fetal burial provision
was an abortion restriction "intended to shame and stigmatize women
and families."
"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. Whether it's a total ban or a law designed to shut down
clinics, politicians are lining up to decimate access to abortion,"
added Jennifer Dalven, an American Civil Liberties Union lawyer.
A TEST FOR THE COURT
The case was one of the court's first major tests in the abortion
context following last year's retirement of Justice Anthony Kennedy,
who was pivotal in defending abortion rights.
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Anti-abortion activists hope the high court will greatly narrow or
even overturn the Roe ruling following Kennedy's departure.
President Donald Trump replaced Kennedy with conservative Justice
Brett Kavanaugh.
Liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor said they
disagreed with the Supreme Court's decision to reinstate Indiana's
fetal remains provision.
Conservative Justice Clarence Thomas wrote in a concurring opinion
accompanying the ruling that the court will need to weigh in on
whether states can ban abortions based on disability, race and
gender. Indiana's law promotes "a state's compelling interest in
preventing abortion from becoming a tool of modern-day eugenics,"
Thomas wrote.
Alabama, Georgia, Missouri, Mississippi and other states have passed
restrictive abortion laws in recent months.
The Chicago-based 7th U.S. Circuit Court of Appeals upheld a 2017
permanent injunction issued by U.S. District Judge Tanya Walton
Pratt against both provisions of Indiana's law. She found the
measure violated the constitutional privacy rights recognized in the
1973 abortion ruling.
The law forbade women from obtaining an abortion if the decision to
terminate the pregnancy was based on a diagnosis or "potential
diagnosis" of fetal abnormality such as Down syndrome or "any other
disability" or due to the race, color, national origin ancestry or
sex of the fetus. Indiana said the state has an interest in barring
discrimination against fetuses and in protecting the "dignity of
fetal remains."
"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. These tiny bodies are, after all, human
remains," Indiana's Republican Attorney General, Curtis Hill, said.
A similar fetal burial law from Minnesota was upheld by a federal
appeals court in 1990 but the Indiana law and another like it in
Texas, enacted in 2016, have been struck down by the courts.
Several other abortion cases are heading toward the high court,
including Indiana's appeal seeking to revive another law that
requires women to undergo an ultrasound at least 18 hours before
they undergo an abortion.
For a Reuters graphic on abortion laws in the United States, click
https://tmsnrt.rs/2WZuiVP
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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