Supreme Court upholds Indiana abortion law requiring fetal remains be buried or cremated

The justices left lower court rulings intact that invalidated a broader measure that would prevent a woman from having an abortion based on gender, race or disability.
Image: Gracie Burke
Gracie Burke, 19, center, a student at American University, joins others in a protest against abortion bans on May 21, 2019, outside the Supreme Court in Washington.Jacquelyn Martin / AP

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By Pete Williams

WASHINGTON — The Supreme Court on Tuesday upheld Indiana's law requiring abortion providers to bury or cremate fetal remains, but left lower court rulings intact that invalidated a broader measure that would prevent a woman from having an abortion based on a fetus's gender, race or genetic disorder.

Passed in 2016 and signed by then-Gov. Mike Pence, the law prohibited what the state called discriminatory abortions — those sought because of characteristics of the fetus, including gender, race or a diagnosis of Down syndrome or other congenital condition. Supporters of the measure said the law responded to medical developments that were not contemplated at the time of Roe v. Wade.

Lower courts blocked that discriminatory provision, and the Supreme Court left those rulings intact, which means the state cannot enforce that part of the law.

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The court's brief order Tuesday said it "expresses no view on the merits" of that issue. But because only one federal appeals court has ruled on the question, "we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals."

Curtis Hill Jr., Indiana's attorney general, said the state Legislature passed that provision of the law in response to "the alarming trend of disability-selective abortions" and with the goal of "protecting children with Down syndrome and other disfavored characteristics from invidious discrimination."

Planned Parenthood challenged it as an unconstitutional restriction on abortion rights, and lower courts agreed, preventing the law from taking effect. The Supreme Court left those rulings in place that invalided that part of the law.

But the Supreme Court allowed Indiana to enforce another provision of the law that requires fetal remains to be disposed of by burial or cremation rather than as medical waste. A total of 18 states had urged the Supreme Court to hear Indiana's appeal.

In its unsigned order, the court said opponents had never argued that the disposal provision created an undue burden on a woman's right to obtain an abortion. Indiana's appeal "does not implicate our cases applying the undue burden test to abortion regulation."

In previous cases, the order said, the court acknowledged that the states have a legitimate interest in proper disposal of fetal remains. Indiana's law, the court said, is rationally related to that interest, "even if it is not perfectly tailored to that end."

Pence, now the vice president, said he was proud to have signed the laws and cheered the court's order regarding the disposal of fetal remains as a "victory for life!"

In a separate concurring opinion, Justice Clarence Thomas said nothing in the Constitution or the court's prior rulings "prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains."

Justice Ruth Bader Ginsburg was the only member of the court to note a dissent, saying the court applied the wrong standard in upholding that part of the Indiana law. "The case implicates the right of a woman to have an abortion before viability and to obtain it without undue interference from the state."