The U.S. Supreme Court on Tuesday upheld part of a controversial Indiana law that requires abortion clinics to bury or cremate fetal remains.
Vice President Mike Pence signed the law—which faced legal challenges from the ACLU and Planned Parenthood of Indiana and Kentucky—as governor of Indiana in 2016. It was blocked last year in the 7th Circuit Court of Appeals, with Judge William Bauer arguing that barring people from receiving abortion care in certain cases would be a violation of their constitutional rights.
The law also banned people from receiving abortions solely because of fetal characteristics, including sex and disability. But the Supreme Court struck down an appeal to reinstate that part of the restrictive law.
In its three-page opinion, the court as a whole argued the law’s fetal-remains provision “does not implicate our cases applying the undue burden test to abortion regulations.” The court added that Indiana has a “legitimate interest in proper disposal of fetal remains,” which have long been disposed of as medical waste.
While some people find comfort in fetal burial programs, forcing everyone who terminates a pregnancy or miscarries to bury or cremate fetal remains can be invasive and traumatizing, Rewire reported in 2017.
But then-Governor Pence saw the measure as a way to grant “personhood” to a fetus. Pence said the law would “ensure the dignified final treatment of the unborn.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor both publicly disagreed with the high court’s ruling. Ginsburg wrote in a dissenting opinion that the case would implicate a person’s right “to choose to have an abortion before viability and to obtain it without undue interference from the state.”
On the other hand, one of the court’s more conservative judges, Clarence Thomas argued in writing that abortions based on fetal characteristics could turn the procedure into a “tool of eugenic manipulation.”
But abortion rights advocates say a person’s reasons for choosing to have an abortion are personal and should not be of concern to anyone besides the patient.
Anti-abortion activists have been pushing an aggressive ground game this year, following conservative judge Brett Kavanaugh’s appointment to the Supreme Court.
Conservative lawmakers have introduced and signed into law a number of restrictive, anti-abortion bills in recent months. The efforts are part of a broader strategy to get a case before the Supreme Court that would challenge the landmark Roe v. Wade decision, which legalized abortion in 1973.
With Tuesday’s ruling, the high court—which split, 7-2, in its mixed decision on Indiana’s abortion law—might have signaled to individual states that it’s receptive to further state-level restrictions. But the Supreme Court has not yet heard a direct challenge to abortion rights at the federal level.
The American Civil Liberties Union noted that, with these measures, “politicians are lining up to decimate access to abortion” whether they are introducing total bans on the procedure or laws designed to shut down clinics and criminalize providers.
“We will continue our fight to ensure that every person who needs an abortion can get one—without shame, stigma, or unnecessary obstacles,” the ACLU said.
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