In a surprise move, the Supreme Court has issued a pair of decisions on an Indiana law restricting abortions, offering clues on how the nine-member court – with two new justices appointed by Donald Trump – could view the contentious issue in the days and years ahead.
The court’s actions were a mixed bag for those on both sides of the abortion debate.
In an unsigned opinion, the justices upheld a state requirement that all foetal remains – whether the product of a miscarriage or an abortion – be either buried or cremated.
Anti-abortion activists viewed the provision as a step toward recognising foetal tissue not as medical waste but as human remains deserving dignified treatment.
Abortion rights groups countered that the Supreme Court precedent does not consider a foetus to be human. The purpose of the Indiana law, Planned Parenthood wrote in a statement, is to “shame and stigmatise” women seeking abortions.
A majority of the justices sided with Indiana, holding that the burial provision didn’t place an “undue burden” on a woman’s right to an abortion and it advanced a legitimate interest of the state, even if the law wasn’t “perfectly tailored” to address foetal remains in all circumstances.
The second portion of the Indiana law at issue was where the real fireworks could have erupted – but didn’t. The justices declined to reverse, or even review, a lower court’s ruling invalidating the portion of the Indiana law that prohibited elective abortions performed because of the race, gender or “disability” of the foetus.
While there is little evidence of abortions performed because of race or gender in the US, physicians regularly test for foetal abnormalities, presenting parents with the decision of whether to terminate the pregnancy.