The Supreme Court avoided making a major ruling on abortion Tuesday, even as conservative Justice Clarence Thomas warned it would not be able to put off the inevitable for much longer.
The court handed down a pair of rulings on an Indiana abortion law — letting stand one part of the statute that requires remains from an abortion or miscarriage be buried, but keeping in place a lower court ruling that struck down the ban on abortions based on the fetus’s gender, race or disabilities.
{mosads}The decisions come as Republican-led state legislatures have approved a series of laws in recent months aimed at getting the high court’s conservative majority to potentially overturn the Roe v. Wade decision now that Justices Neil Gorsuch and Brett Kavanaugh, both nominated by President Trump, are on the bench.
The rightward shift has abortion-rights supporters nervous and abortion opponents hoping the court will hand down a ruling that severely restricts the procedure or makes it illegal.
Thomas, in an opinion already being touted by prominent conservatives, agreed with the Supreme Court’s decision to let lower courts decide first on a part of the Indiana law stopping abortions based on the fetus’s sex, gender or disability. But he said the court will have to take up abortion laws in the near future, writing that he was concerned about the possibility of abortions being used for “eugenics.”
“Although the court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote. “Having created the constitutional right to an abortion, this court is dutybound to address its scope.”
The court gave a partial win to conservatives by allowing the provision on the disposal of fetal remains to stand.
Vice President Pence, who signed the legislation into law as Indiana’s governor in 2014, tweeted that allowing the fetal remains law to stay in place was “a victory for life!”
He added he was “hopeful” that in the future the Supreme Court “will recognize the same protections for the unborn” when it comes to shielding against discrimination on the basis of sex, race and disability.
By issuing the opinion on the fetal remains, the court avoids having to hear oral arguments on the Indiana abortion law during its upcoming term and delve even deeper into the topic. The next term begins in October.
But the justices weren’t unanimous in their decision: Justices Sonia Sotomayor and Ruth Bader Ginsburg publicly stated that they would have allowed the lower court rulings against both provisions of the law to stand. It was not clear how most of the other justices would have ruled.
Ginsburg wrote in a separate opinion that while she agreed with the decision to not take up the case involving one aspect of the Indiana law, she felt that the fetal remains provision should have had further review by the court, as she believed it invoked Supreme Court precedent on abortion.
“This case implicates ‘the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the state,’ so heightened review is in order,” she wrote.
However, Thomas’s lengthy opinion made the argument that lower appeals courts should make further rulings on abortion laws before the Supreme Court addresses the issue.
He made clear he would prefer that happen sooner rather than later, arguing there is “the potential for abortion to become a tool of eugenic manipulation.”
Anti-abortion groups were quick to celebrate Thomas’s opinion, which heavily featured statements by Planned Parenthood founder Margaret Sanger that promoted eugenics.
Sanger, who died in 1966, did make comments in favor of eugenics on the basis of disability, but Planned Parenthood has since denounced that viewpoint. The abortion-rights group was behind the legal challenge to that aspect of the Indiana law.
{mossecondads}“No one deserves to lose her life just because she was born with Down syndrome or because of the color of her skin,” Jeanne Mancini, the president for March for Life, said in a statement. “As Justice Thomas commented in his concurring opinion, laws like this that bar such discrimination ‘promote a State’s compelling interest in preventing abortion from becoming a tool of modern day eugenics.’ ”
Rachel Morrison, litigation counsel for Americans United for Life, told The Hill that while the justices didn’t take up the abortion law, Thomas’s concurring opinion is a signal to lower courts that “their hands are not tied on this issue.”
Thomas wrote in his opinion that a 1992 Supreme Court ruling that upheld Roe v. Wade “did not decide whether the Constitution requires states to allow eugenic abortions” — a statement that Morrison said could be cited by judges when they are faced with abortion restrictions similar to the one struck down in Indiana.
“It’s going to have a big impact as far as how these laws are viewed both by individuals who want to prohibit this kind of discrimination, and then also by judges who … are trying to uphold Supreme Court precedent and apply the law faithfully,” Morrison said.
Tuesday’s decision comes as federal courts across the U.S. are bracing for legal challenges to recently passed abortion measures. Laws in Alabama and Ohio are already the subject of lawsuits, and a federal judge in Mississippi last week blocked that state’s ban on abortions upon detection of a fetal heartbeat.
Some of the conservative authors behind those restrictive laws hope to take them all the way to the Supreme Court, with their eye on a potential reversal of Roe v. Wade. But legal experts are doubtful that justices would want to wade into such a controversial topic at this time, particularly with the 2020 elections on the horizon.
Morrison, however, said that waiting too long to take up an abortion case could backfire and cause the justices to appear more political.
“It starts looking very political pretty quickly if you start not taking any abortion-related cases,” Morrison said.
Carol Sanger, a law professor at Columbia University, said that if the court had decided to take up the Indiana abortion law next term, it would have required them to implicitly make a ruling on Roe v. Wade, as it related to under which circumstances a woman can obtain an abortion.
The precedent set by Roe protects women’s rights to abortions for the initial part of their pregnancy without giving specific reasons.
Sanger said that by allowing the fetal remains law to stay in place, the court was giving a smaller victory to conservatives without having to dive into the broader issue, as the disposal of fetal remains takes place after a woman has already had an abortion.
However, she said the justices’s decision to not fully take up the Indiana abortion law is a strong signal that they aren’t quite prepared to take on measures that fall under the scope of Roe v. Wade.
“I would say that the court clearly doesn’t seem to be in a rush to do this. They had material before them today where they could have done it,” Sanger said. “And they chose not to.”