U.S. Supreme Court

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On Tuesday, the U.S. Supreme Court upheld an Indiana law that bars abortion providers from incinerating fetal remains with infectious waste.

The Indiana law allowed abortion providers to cremate or bury the remains, according to SCOTUSblog, the National Law Journal, USA Today and the Washington Post. Vice President Mike Pence, then the governor of Indiana, had signed the provision into law in 2016.

The high court agreed to hear the challenge Tuesday and summarily reversed a decision striking down the fetal-remains provision by the 7th U.S. Circuit Court of Appeals at Chicago.

Justices Ruth Bader Ginsburg and Sonia Sotomayor would not have granted cert, which would have allowed the 7th Circuit decision striking down the provision to remain in effect.

In its per curiam opinion, the court said challengers to the fetal-remains provision had not argued that it imposed an undue burden on a woman’s right to abortion. Because of that litigation stance, a rational basis review must be used to evaluate the law, the court said. Using that test, the law passes muster, the court said.

Other courts have used the undue burden standard to evaluate fetal-remains laws. “Our opinion expresses no view on the merits of those challenges,” the court said.

The Supreme Court did not grant cert on a second provision of the law that bars abortion providers from knowingly performing abortions being obtained because of sex, race or disability. That leaves intact a 7th Circuit decision striking down the ban on such abortions.

The high court noted that the 7th Circuit is the only appeals court to address such a law. The Supreme Court said it would follow its usual procedure of denying cert petitions to await decisions by more federal appeals courts.

In a concurring opinion, Justice Clarence Thomas agreed that it’s too soon to consider a challenge to the ban on abortions based on sex, race or disability. But he wanted to stress that “the use of abortion to achieve eugenic goals is not merely hypothetical.”

“Abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics,” Thomas wrote. “The reported nationwide abortion ratio—the number of abortions per 1,000 live births—among black women is nearly 3.5 times the ratio for white women. … And there are areas of New York City in which black children are more likely to be aborted than they are to be born alive.”

Thomas said Planned Parenthood founder Margaret Sanger “recognized the eugenic potential” of birth control. “Sanger’s arguments about the eugenic value of birth control in securing ‘the elimination of the unfit,’ Racial Betterment 11, apply with even greater force to abortion, making it significantly more effective as a tool of eugenics,” Thomas said.

The case is Box v. Planned Parenthood of Indiana and Kentucky Inc.

See also:

ABAJournal.com: “May 9, 1960: FDA approves first birth control pill”

ABAJournal.com: “There’s no due process right to perform abortions, says en banc 6th Circuit in funding case”

ABA Journal: “Dutch doctor’s abortion-drug prescription service faces legal landmines”

ABAJournal.com: “Founder of online abortion-pill service says she won’t turn anyone away, despite FDA warning”

ABAJournal.com: “Alabama governor signs abortion ban; which cases are headed to the Supreme Court?”

ABAJournal.com: “Kansas Supreme Court rules state constitution guarantees abortion rights, even if Roe is overturned”

ABAJournal.com: “Will Supreme Court allow restrictive abortion law to take effect? Some look for clue to Roe viability”

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