US Supreme Court avoids abortion question, upholds foetal burial measure

Abortion rights activists rally in front of the US Supreme Court in Washington, DC. PHOTO: AFP

WASHINGTON (REUTERS) - The US Supreme Court on Tuesday (May 28) sent a mixed message on abortion, refusing to consider reinstating Indiana's ban on abortions performed because of foetal disability or the sex or race of the foetus while upholding the state's requirement that fetal remains be buried or cremated after the procedure is done.

Both provisions were part of a Republican-backed 2016 law signed by Vice-President Mike Pence when he was Indiana's governor.

The action by the justices comes at a time when numerous Republican-governed states including Alabama are approving restrictive abortion laws that the Supreme Court may be called upon to rule on in the future.

In an unsigned ruling, with two liberal justices dissenting, the Supreme Court decided that a lower court was wrong to conclude that Indiana's foetal burial provision, which imposed new requirements on abortion clinics, had no legitimate purpose.

The court has a 5-4 conservative majority.

While that provision was not a direct challenge to the 1973 Roe versus Wade decision that legalised abortion nationwide, the ruling gave anti-abortion proponents a victory at the Supreme Court, which soon may have to decide whether various state laws violate the rights recognised in that landmark ruling.

But the court also indicated a reluctance to directly tackle the abortion issue at least for now, rejecting Indiana's separate attempt to reinstate its ban on abortions performed because of foetal disability or the sex or race of the foetus.

The court left in place the part of an appeals court ruling that struck down the provision.

Alyssa Farah, a Pence spokeswoman, said he "commends the Supreme Court for upholding a portion of Indiana law that safeguards the sanctity of human life by requiring that remains of aborted babies be treated with respect and dignity."

"We remain hopeful that at a later date the Supreme Court will review one of numerous state laws across the US that bar abortion based on sex, race or disability," Farah added.

The court's ruling on the fetal burial issue noted that in challenging the measure the American Civil Liberties Union and women's health-care and abortion provider Planned Parenthood did not allege that the provision implicated the right of women to obtain an abortion.

"This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations," the ruling said.

Planned Parenthood said in a statement the foetal burial provision was an abortion restriction "intended to shame and stigmatise women and families."

"While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatise and drive abortion care out of reach. Whether it's a total ban or a law designed to shut down clinics, politicians are lining up to decimate access to abortion," added Jennifer Dalven, an American Civil Liberties Union lawyer.


The case was one of the court's first major tests in the abortion context following last year's retirement of Justice Anthony Kennedy, who was pivotal in defending abortion rights.

Anti-abortion activists hope the high court will greatly narrow or even overturn the Roe ruling following Kennedy's departure. President Donald Trump replaced Kennedy with conservative Justice Brett Kavanaugh.

Liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor said they disagreed with the Supreme Court's decision to reinstate Indiana's foetal remains provision.

Conservative Justice Clarence Thomas wrote in a concurring opinion accompanying the ruling that the court will need to weigh in on whether states can ban abortions based on disability, race and gender. Indiana's law promotes "a state's compelling interest in preventing abortion from becoming a tool of modern-day eugenics," Thomas wrote.

Alabama, Georgia, Missouri, Mississippi and other states have passed restrictive abortion laws in recent months.

The Chicago-based 7th US Circuit Court of Appeals upheld a 2017 permanent injunction issued by US District Judge Tanya Walton Pratt against both provisions of Indiana's law. She found the measure violated the constitutional privacy rights recognised in the 1973 abortion ruling.

The law forbade women from obtaining an abortion if the decision to terminate the pregnancy was based on a diagnosis or"potential diagnosis" of foetal abnormality such as Down syndrome or "any other disability" or due to the race, colour, national origin ancestry or sex of the foetus.

Indiana said the state has an interest in barring discrimination against fetuses and in protecting the "dignity of foetal remains."

"The highest court in the land has now affirmed that nothing in the Constitution prohibits states from requiring abortion clinics to provide an element of basic human dignity in disposing of the foetuses they abort. These tiny bodies are, after all, human remains," Indiana's Republican Attorney-General, Curtis Hill, said.

A similar foetal burial law from Minnesota was upheld by a federal appeals court in 1990 but the Indiana law and another like it in Texas, enacted in 2016, have been struck down by the courts.

Several other abortion cases are heading toward the high court, including Indiana's appeal seeking to revive another law that requires women to undergo an ultrasound at least 18 hours before they undergo an abortion.

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