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In recent weeks, news has proliferated about individual states such as Alabama and Georgia, passing highly restrictive abortion laws. On May 28th, the Supreme Court issued a ruling on an abortion-related law in Indiana, another traditionally red state, while entirely avoiding judgment on another abortion-related law in the state.
The court, on which the two Trump-appointed judges Brett Kavanaugh and Neil Gorsuch sit, ruled that an Indiana law requiring the burial or cremation of fetal remains is fully legal and constitutional. However, the court also declined to weigh on the state’s law banning abortions performed due to the fetus’ sex, race, or disability. Because lower courts have already ruled the latter law unconstitutional, the law, which has the backing of Indiana’s Republican legislators, is, for now, not allowed to go back into effect.
In the official Supreme Court ruling, the court stated that it has previously ruled in favor of states having a legitimate interest in the proper disposal of fetal remains. The ruling also pointed out that Planned Parenthood, the organization challenging the law, at no point argued that the law interferes with a person’s ability to receive an abortion. However, two of the court’s liberal justices, Ruth Bader Ginsburg and Sonia Sotomayor, publicly disagreed with the court’s ruling in regards to this law.
Longtime conservative justice Clarence Thomas, on the other hand, not only issued an opinion agreeing with this ruling but also expressed his view that the other abortion-related law be reinstated. Although the court entirely sidestepped ruling on this law, in Thomas’ view, such laws pave the way for abortion to be used for eugenics. Thomas reiterated that he does agree that the court should not yet weigh in on this law, but he also stated that it will need to eventually, as abortion could “soon become a tool of eugenic manipulation.”
Prior to the fetal remains law’s arrival at the Supreme Court, U.S. District Judge Tanya Walton Pratt issued a permanent injunction against the law. Walton argued that the law did not meet the constitutional privacy rights guaranteed in the landmark 1973 Roe v. Wade ruling. Thereafter, the Chicago-based 7th U.S. Circuit Court of Appeals upheld Walton’s injunction (courts have also previously reversed a similar fetal remains law in Texas and upheld one in Minnesota). The Supreme Court reversed Walton’s injunction, all while not remarking on the Indiana law regarding sex, race, and disability-based abortions. Although the Supreme Court, in theory, has the final say on U.S. legal matters, by declining to weigh on this matter, it leaves the final decision on this law to the lower courts.
As the many state abortion laws currently being passed prepare the Supreme Court for an onslaught of legal challenges, Chief Justice John Roberts and his colleagues have indicated an interest in avoiding judgment on abortion-related topics. Both laws on which the Supreme Court weighed on Tuesday were signed into Indiana law in 2016, when the state’s governor was Mike Pence, who now serves as Donald Trump’s vice president.