The Supreme Court upheld an Indiana law that requires aborted fetuses to be buried, and experts say it's a dark sign for abortion rights

  • The Supreme Court on Tuesday reversed a 2017 appeals court ruling blocking an Indiana law requiring fetal remains to be buried or cremated, allowing the law to stand.
  • The first provision of the law mandates that healthcare facilities, such as hospitals and abortion clinics, either bury or cremate fetal remains from abortions and miscarriages.
  • The Court also denied to hear a challenge to a second provision of the law, which outlaws abortions on the basis of the sex, race, or disability of the foetus, upholding a lower court’s previous blocking of the provision.
  • The Court allowing Indiana’s law to stand contributes to a broader trend of fetuses gaining more legal rights and protections.
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The Supreme Court on Tuesday reversed a 2017 appeals court ruling blocking a portion of an Indiana law requiring fetal remains to be buried or cremated, allowing the law to stand.

In the case, Box vs. Planned Parenthood of Indiana and Kentucky, the plaintiffs challenged two provisions of a 2016 Indiana law, HB 1337, signed into law by then-governor and current Vice President Mike Pence.

The first provision of the law challenged by the plaintiffs, who were represented by the ACLU, mandated that healthcare facilities, such as hospitals and abortion clinics, either bury or cremate fetal remains from abortions and miscarriages instead of disposing of fetal tissue along with other surgical tissue.

The Court declined to hear a challenge to a second provision of the law, which outlaws abortions on the basis of the sex, race, or disability of the foetus, affirming the lower court’s decision to block it in 2017.

In a lengthy concurring opinion, Justice Clarence Thomas passionately defended Indiana’s anti-discrimination provision, arguing that abortion is a “tool for eugenic manipulation.”

The US Court of Appeals for the Seventh Circuit struck down both provisions of the law in 2018, causing Indiana to appeal the case to the Supreme Court, which reversed the Seventh Circuit’s ruling with regards to the fetal burial law and allowed the provision to stand.

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In a Tuesday tweet, Pence called the decision “a victory for life,” adding that he was “was proud to sign a law that requires remains of aborted babies be treated w/dignity & respect” and hoped that the Court would extend anti-discrimination protections to fetuses “when they rule on future appeals of pro-life legislation.”

A representative for Planned Parenthood of Indiana and Kentucky, who challenged the law, did not immediately respond to INSIDER’s request for comment.

The Justices’ ruling focused on the standard under which the plaintiffs challenged the law

In reversing the lower court’s decision, Justice Sonia Sotomayor noted that the plaintiffs did not challenge the law under the standard set by the Court in the 1992 case Casey vs. Planned Parenthood. That standard determined individual states cannot place an “undue burden” on a patient’s ability to obtain an abortion.

Because the plaintiffs’ challenge did not rest on that standard, the Court applied the rational basis standard, which requires a law to be “rationally related to legitimate government interests.”

Citing previous precedent in which the Supreme Court held that states have “a legitimate interest in the proper disposal of fetal remains,” Sotomayor overturned the Seventh Circuit’s ruling and allowed Indiana’s law to remain intact.

“We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” Sotomayor’s opinion said. “This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.”

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Justices Thomas and Ruth Bader Ginsburg concurred, with Ginsburg arguing that rational basis review was “not the proper standard” under which to review the law, and application of the undue burden standard “would likely yield restoration of the judgment.”

The Court letting Indiana’s fetal burial law stand comes after the governors of Ohio, Georgia, Mississippi, Kentucky, and Alabama signed highly restrictive bans on abortions after six weeks. In Alabama’s case, the procedure was essentially banned altogether, with the intent of bringing a case before the Supreme Court that could result in the court overturning Roe v. Wade.

None of those laws, however, have gone into effect, and are currently being challenged in court by organisations including the American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights.

Reproductive rights advocates are concerned about the ruling’s implications

Justice Sotomayor anticipated that the Court denying to hear the appeal wouldn’t have significant implications for potential challenges to other abortion bans or restrictions on the basis they present an undue burden. But attorneys advocating for abortion access are concerned that this ruling contributes to a broader pattern of states limiting access to abortion, and stigmatizing the procedure.

“While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatised and drive abortion care out of reach,” ACLU Reproductive Freedom Project director Jennifer Dalven said in a Tuesday statement to INSIDER.

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In the past few years, at least five states have introduced and passed laws requiring fetal remains resulting from abortions, miscarriages, or stillbirths be either cremated or buried – regardless of the patient’s wishes, and at the patient’s expense in some cases.

Federal appeals courts have blocked similar fetal burial laws passed in Texas and Arkansas. In September 2018, a federal judge ruled that Texas’ law requiring burial or cremation of fetal remains presented an unjustifiable burden, on healthcare providers and patients, writing that “viable options for disposing of embryonic and fetal tissue remains in compliance with the challenged laws do not exist,” according to The New York Times.

The states that have imposed these laws have claimed they are necessary to preserve the “dignity” of the foetus, a need Justice Thomas cited in his concurring opinion, but abortion-rights advocates say they are simply another way of shaming and imposing additional burdens on patients who choose abortion.

Pro-life lawyers celebrated the ruling for furthering a trend of states extending legal protections to fetuses

Rachel Morrison, a litigator with the pro-life legal organisation Americans United for Life, told INSIDER in a statement that she was “delighted” the Court had let Indiana’s fetal burial law stand. She views the Court’s ruling as legal fodder to support fetal personhood laws, which treat fetuses the same way as people under the law, affording them the same legal protections.

States including Alabama have introduced fetal personhood provisions via ballot amendment, with an Alabama judge granting the estate of an aborted foetus standing to sue an abortion clinic for wrongful death earlier this year in a suit filed by the embryo’s would-be father.

And while Georgia’s abortion ban hasn’t yet gone into effect, it establishes a foetus at any stage of development as a person, and allows fetuses to be claimed as dependents for tax purposes and counted in official population surveys.

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Morrison said that by granting fetuses the right to be buried and extending anti-discrimination protections, “Indiana’s law recognises 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,” she said.

Denise Burke, also a pro-life litigator with the conservative Alliance Defending Freedom, was disappointed that the court did not also reverse the Seventh Circuit’ decision to block the second anti-discrimination provision, but saw still saw it as a step towards fetuses gaining more legal protections, telling INSIDER, “Indiana’s law…sends a clear message that all victims of discrimination-born and unborn-are worthy of protection.”

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