Indiana Fetal Burial Rule Reinstated by High Court

WASHINGTON (CN) – Reinstating Indiana rules that require aborted fetuses to either be buried or cremated, the Supreme Court chided the Seventh Circuit on Tuesday for failing to recognize the state’s legitimate interest. 

Indiana had also sought to reinstate its ban on abortions motivated by a disability diagnosis or several other factors including race and gender, but the Supreme Court declined to wade into this issue as no other appeals court has addressed it other than the Seventh Circuit.

Though Justice Ruth Bader Ginsburg complained in a partial dissent that the case represented “a waste of the court’s resources,” Justice Clarence Thomas devoted 20 pages to Indiana’s “Sex Selective and Disability Abortion Ban.”

“Given the potential for abortion to become a tool of eugenic manipulation, the court will soon need to confront the constitutionality of laws like Indiana’s,” Thomas wrote. “But because further percolation may assist our review of this issue of first impression, I join the court in declining to take up the issue now.”

Championing the fetal-burial rules, Thomas noted that the law “prohibits abortion providers from treating the bodies of aborted children as ‘infectious waste’ and incinerating them alongside used needles, laboratory animal carcasses, and surgical byproducts.”

The court’s main ruling today is unsigned and just 3 pages. 

It emphasizes as to the fetal-burial provision that the challengers, led by Planned Parenthood of Indiana and Kentucky, “have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion.”

“This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations,” the ruling states. “Other courts have analyzed challenges to similar disposition laws under the undue burden standard.”

Indiana Attorney General Curtis Hill thanked the justices this afternoon for affirming that nothing in the Constitution prohibits states from requiring abortion clinics to dispose of fetuses with “basic human dignity.”

“These tiny bodies are, after all, human remains,” Hill said in a statement.

Jennifer Dalven, director of the ACLU Reproductive Freedom Project, noted Tuesday that Indiana’s efforts are not unique.

“While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatize and drive abortion care out of reach,” Dalven said in statement. “Whether it’s a total ban or a law designed to shut down clinics, politicians are lining up to decimate access to abortion.”

The American Civil Liberties Union sued Alabama just this past Friday over its recently passed ban on abortions once a fetal heartbeat is detected, usually at about six weeks along, Missouri’s Republican Governor Mike Parson signed a law banning abortions at eight weeks of pregnancy.

Raising the alarm over what he called unprecedented rollbacks of reproductive rights in recent months, CEO at Planned Parenthood of Indiana and Kentucky Chris Charbonneau said patients are entitled to seek lifesaving care without fear or judgment.

“The anti-reproductive health politicians who created these laws to shame patients have no place in the exam room,” Charbonneau said.

Vice President Mike Pence, who enacted the law in 2016 as governor of Indiana, said at the time that restrictions were necessary to prevent women from aborting fetuses anticipated to be born with Down syndrome or other disabilities. That same year, the Planned Parenthood of Indiana and Kentucky teamed up with the ACLU of Indiana to challenge the law as unconstitutional.

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