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In a three-page, unsigned opinion issued May 28, justices wrote that Indiana has a legitimate interest in proper disposition of fetal remains and that the state’s burial/cremation mandate is rational. However, justices said they would not take up the second part of the law regarding abortions based on race, sex, or disability because not enough appeals courts have decided the issue. The court emphasized it was not expressing any view on the merits of the second question.
The opinion stems from an antiabortion measure signed into law by then–Indiana Governor Mike Pence (R) in 2016. According to the law, the health facility where an abortion occurred is required to dispose of fetal remains either by cremation or internment unless the woman or an associated party take possession of the remains. The measure allows the woman or associated party to choose a location of final disposition provided that the parties pay the costs for such arrangements. The second part of the law prohibits an abortion from being performed solely because of the fetus’s expected race, sex, diagnosis, or disability.
Planned Parenthood of Indiana and Kentucky sued over the law, arguing that the measure was unconstitutional. Indiana officials countered the disposal requirements provided fetuses dignity in death and that the law’s abortion restrictions prevented discrimination of particular fetuses in light of technological advances in genetic screening. In 2018, a three-judge panel of the Court of Appeals for the 7th Circuit struck down the entire law. The panel wrote that well-established Supreme Court precedent allows a woman to terminate her pregnancy for any reason and that the Indiana law invaded a woman’s privacy by examining the underlying basis of her decision for an abortion.
In the Supreme Court’s May 28 filing, Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor wrote separately, each stating they would have upheld the lower court’s ban of the entire law. Justice Clarence Thomas, meanwhile, wrote a lengthy separate opinion, agreeing with the court’s decision, but expressing concern over the use of abortion as a “tool of modern-day eugenics.”
“The court will soon need to confront the constitutionality of laws like Indiana’s,” Justice Thomas wrote. “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.”
The Supreme Court’s decision on the Indiana law comes just weeks after two other stringent state abortion measures were signed into law. On May 7, 2019, Georgia Gov. Brian Kemp (R) signed into law a statute that bars physicians from performing an abortion after a heartbeat is detected – usually at about 6 weeks of pregnancy. On May 15, Alabama Gov. Kay Ivey (R) signed a law that would ban abortion at every pregnancy stage and penalize physicians with a Class A felony for performing an abortion and charge them with a Class C felony for attempting to perform an abortion.
Analysts say the Alabama law, in particular, could land in front of the Supreme Court as a direct challenge to Roe v. Wade. Abortion critics have been encouraged by the Supreme Court appointment of right-leaning Justice Brett M. Kavanaugh and hope the Alabama measure will drive the Supreme Court to reconsider its central holding in Roe, court watchers said.