The Supreme Court confronted a restrictive Indiana abortion law on Tuesday by upholding one portion of it and punting another.
The portion it upheld, which was previously barred by the the U.S. Court of Appeals for the 7th Circuit, requires fetal remains be buried or cremated. “This Court has already acknowledged that a State has a ‘legitimate interest in proper disposal of fetal remains,'” it wrote in an unsigned ruling, citing a 1983 case.
But the bench declined to weigh in on the portion that prohibits women from terminating pregnancies on the basis of a fetus’s sex, race or disability diagnosis. The portion of the law in question prevents a fetal abnormality from being the only reason a woman can undergo an abortion in the state. It allows one exception—for fetuses that would die within three months of birth.
In a 20-page concurring opinion to the ruling, which stated the court didn’t take a side because other Courts of Appeals had not yet considered it, Justice Clarence Thomas compared abortions prompted by fetal abnormalities to eugenics — the practice of selective breeding intended to improve a population’s genetics.
“This law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” Thomas wrote.
Thomas wrote in his opinion that medical advancements in maternal healthcare are making the topic more pressing.
“Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability,” he wrote. “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. 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.”
In reference to the portion of the law that pertained to a woman’s reason for seeking an abortion, the 7th Circuit panel indicated that “nothing in the Fourteenth Amendment or Supreme Court precedent allows the State to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy prior to viability.”
The Supreme Court’s ruling comes shortly after Alabama passed a law that effectively bans the vast majority of abortions, and several other states passed laws that restrict abortion access after as early as six-weeks gestation. As advocates begin to sue states for these controversial laws, experts anticipate the Supreme Court might review a broader abortion rights case soon.
Vice President Mike Pence signed the Indiana law in question when he was governor of the state.