Supreme Court Sidesteps Abortion Question in Ruling on Indiana Law

WASHINGTON — The Supreme Court on Tuesday upheld an Indiana state law that required fetal remains to be buried or cremated. But it sidestepped a larger abortion question, turning down an effort to reinstate the law’s strict abortion limits.

The court’s decision, issued without briefing on the merits or oral arguments, was unsigned and just three pages long. It stressed that its decision upholding the part of the law concerning the disposal of fetal remains “does not implicate our cases applying the undue burden test to abortion regulations.”

Indiana, the court said, has a “legitimate interest in proper disposal of fetal remains,” quoting an earlier decision.

In the second part of the case, an appellate court had struck down a provision of the law that banned abortions being sought solely because of a fetal characteristic like sex or disability.

Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have denied review of both issues in the case.

The case, Box v. Planned Parenthood of Indiana and Kentucky, No. 18-483, had been closely watched because it could have given the Supreme Court its first chance to consider the constitutionality of a state law restricting abortion since Justice Brett M. Kavanaugh replaced Justice Anthony M. Kennedy last year.

Justice Kennedy had been a cautious supporter of abortion rights, while Justice Kavanaugh’s limited record on the subject as an appeals court judge suggested some skepticism.

The modest move on Tuesday left for another day the consideration of state laws limiting abortion that were enacted, at least partly, to test the court’s commitment to the constitutional right to abortion, as established in 1973 in Roe v. Wade.

The Indiana law was enacted in 2016 and signed by Gov. Mike Pence, now the vice president. It prohibited all abortions, at any time during a pregnancy, solely sought based on the fetus’s sex, or because it had been diagnosed with Down syndrome or another disability, or because of characteristics like race or national origin.

The state law also imposed restrictions on the disposal of fetal remains, saying that abortion providers had to bury or cremate them. The law allowed mass cremations and did not impose any restrictions on women who disposed of the remains themselves.

A three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, unanimously struck down the provision limiting permissible reasons for having an abortion, though one judge said he did so reluctantly and only because he was bound by Supreme Court precedent.

In 1992, in Planned Parenthood v. Casey, the Supreme Court ruled that states may not prohibit abortions or place substantial obstacles in the way of women seeking them before fetal viability. Judge William J. Bauer, writing for the majority on the Seventh Circuit, said that ruling doomed the law’s restrictions.

“These provisions are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability, which the Supreme Court has clearly held cannot be imposed by the state,” he wrote in the decision issued by the appeals panel.

Judge Daniel A. Manion voted with the majority in that case, but did not adopt its reasoning. “Indiana has a compelling interest in attempting to prevent this type of private eugenics,” he wrote. “But the fact remains that Casey has plainly established an absolute right to have an abortion before viability.”

“That today’s outcome is compelled begs for the Supreme Court to reconsider Roe and Casey,” he wrote.

The appeals panel divided 2 to 1 on the part of the law concerning fetal remains. Judge Bauer, writing for the majority in that decision, said the distinctions in the law were not rational, noting that it allowed women to dispose of remains as they saw fit but required abortion providers to treat them largely as they did other human remains.

In dissent, Judge Manion wrote that Indiana was entitled to insist on “the dignified and humane disposal of the remains of unborn children.”

The full Seventh Circuit initially agreed to rehear the panel’s ruling on the fetal remains provision but later announced that it had deadlocked after a judge recused himself.

Dissenting from the full court’s decision not to rehear the case, Judge Frank H. Easterbrook, joined by three other judges, wrote that both parts of the panel’s decision were misguided.

“Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child,” he wrote of the provision on permissible reasons. “But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life.’”

As for the fetal remains law, Judge Easterbrook wrote that “the panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”

In urging the Supreme Court to hear the case, lawyers for the state said fetal remains were worthy of respectful treatment.

“The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus,” the state’s brief said. It added that advances in genetic testing and concerns about sex-selective abortions justified the provision restricting permissible reasons for the procedure.

Lawyers for Planned Parenthood said the provision governing fetal remains was not rational.

“Indiana claimed that it sought to treat embryonic and fetal tissue like human remains,” the group’s brief said. “But the challenged statute permits a woman to dispose of the tissue in whatever way she chooses, so long as she takes it from the medical facility when she departs.”

Planned Parenthood said the restrictions on permissible reasons also made no sense. “Indiana’s view would lead to perverse results,” the group’s brief said. “It would mean that even though states cannot compel a woman to continue a healthy pregnancy, it could compel her against her will to continue a pregnancy where it is virtually certain that the child will die in infancy.”

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