WASHINGTON (BP) — The U.S. Supreme Court upheld Tuesday (May 28) an Indiana law that requires the humane disposal of aborted babies but refused to weigh in on the same state’s ban on abortions based solely on ethnicity, sex or disability.
The high court’s refusal to review Indiana’s appeal regarding its 2016 prohibition on abortions of certain classes of unborn children left standing a Seventh Circuit Court of Appeals decision that invalidated the measure. The action also rejected requests by some organizations that the justices reconsider their 1973 Roe v. Wade opinion that struck down all state restrictions on abortion and legalized the procedure throughout the country.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) — joined by four other organizations — asked the Supreme Court in a November brief to grant review of the Seventh Circuit ruling on the abortion ban and to contemplate whether it should overrule Roe and a 1992 opinion that affirmed it.
“We are disappointed the court is not going to take up this case,” said Travis Wussow, the ERLC’s general counsel and vice president for public policy, of the refusal to review the ban on discriminatory abortions. “As Justice Thomas wrote in his dissent, sooner or later the court will have to take up these issues and reckon with the relationship between the abortion industry and the American eugenics movement.”
Other pro-life organizations also expressed disappointment in the high court’s failure to review the lower court opinion on the prohibition but applauded the high court’s support of the fetal remains provision.
Denise Burke, senior counsel for Alliance Defending Freedom, said unborn babies “shouldn’t be disposed of as ‘medical waste’ when they die before birth, regardless of whether their deaths are spontaneous, accidental, or induced.”
“It should be unthinkable for an expectant mother to face pressure to abort her baby simply because she is a girl, or because she may have a genetic abnormality like Down syndrome,” Burke said in a written release. “No sensible person believes that aborting a baby for these reasons is legitimate, but Indiana’s law — which prohibits such death sentences for babies simply because of who they are — is entirely legitimate.”
Rachel Morrison, litigation counsel for Americans United for Life, said in a written statement, “Without laws like Indiana’s fetal remains law, medical providers are free to dispose of human fetal remains by incineration with medical waste, by dumping in landfills, and even by burning the remains to generate energy. Indiana’s law recognizes the simple biological fact that human fetuses are human beings and, as such, should be treated with humanity and dignity whether in life or in death.”
The Supreme Court issued its three-page ruling as an unsigned opinion, but Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would deny review in both cases.
Associate Justice Clarence Thomas wrote a 20-page concurring opinion in which he said the decision not to review the Seventh Circuit’s rejection of Indiana’s ban on discriminatory abortions did not signal the high court’s agreement with the lower court’s ruling.
“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,” Thomas wrote.
“Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope.”
In declining to review the prohibition on discriminatory abortions, the Supreme Court said it was not expressing an opinion on the merits of the law. The justices said they were following their normal practice of denying petitions on issues considered by only one court of appeals.
Regarding the fetal remains provision, the high court granted review and ruled on the appeal without holding oral arguments in the case. The justices relied on a 1983 opinion in saying the Seventh Circuit erred in its decision. The Supreme Court had “already acknowledged” a state has a “legitimate interest in proper disposal of fetal remains,” the justices wrote. They also ruled the state had a rational basis for its requirement.
The organizations joining the ERLC on its November brief were the National Association of Evangelicals, Concerned Women for America, National Legal Foundation and Pacific Justice Institute.
Planned Parenthood of Indiana and Kentucky challenged the law signed by then-Gov. Mike Pence, who is now vice president. A federal judge permanently blocked the state from enforcing it. In April 2018, a three-judge panel of the Seventh Circuit affirmed that ruling.
The case is Box v. Planned Parenthood of Indiana and Kentucky.