Supreme Court leaves intact block on Indiana abortion restriction, but allows fetal burial to go

Court also allows fetal burial to go into effect

By Ariane de Vogue, CNN Supreme Court Reporter
Nicky J Sims/Getty Images

(CNN) - The Supreme Court said Tuesday that a provision of an Indiana law which said the state may prohibit abortions motivated solely by race, sex or disability should remain blocked.

The court, however, did say it would allow part of the law that requires clinics to bury or cremate fetal remains to take effect.

The fact that the court decided not to take up the more controversial provision of the Indiana law suggests that there is not a current appetite on the court to move aggressively to question the court's core abortion precedents of Roe v. Wade and Casey v. Planned Parenthood. Still, supporters of abortion rights will be disappointed and worried that the justices allowed the fetal tissue provision to go into effect.

The law was signed in March 2016 by then-Indiana Gov. Mike Pence. It was blocked last year from going into effect by the 7th US Circuit Court of Appeals.

Pence's office did not respond to CNN's request for comment on Tuesday. In a pair of tweets, the vice president defended his signing of the law three years ago, saying in one tweet that he was "proud" to support the measure and calling the high court's decision "a victory for life!"

"Today, Justice Thomas wrote: SCOTUS has been zealous in the past in barring discrimination based on sex, race, & disability. Hopeful someday soon SCOTUS will recognize the same protections for the unborn when they rule on future appeals of pro-life legislation," Pence added in a second tweet.

In his decision last year, Judge William Bauer wrote that provisions in the law that bar women from seeking abortions in certain cases "clearly violate" what he described as "well-established Supreme Court precedent, and are therefore, unconstitutional."

Justice Clarence Thomas agreed that the court was right not to take up the provision at this time, but said justices "soon need to confront" the issue.

"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 duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion."

Thomas also spent 15 pages discussing the history of eugenics.

"Enshrining a constitutional right to an abortion based solely on the race, sex or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th Century eugenic movement," Thomas wrote.

"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, later adding that Planned Parenthood founder Margaret Sanger was "particularly open about the fact that birth control could be used for eugenic purposes."

No other justice, including Thomas's four fellow conservatives who are seen as backing more restrictive access to abortions, joined him.

But Thomas's writing doesn't mean the court will immediately take up the large issue, said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

"Although Justice Thomas argues that the court will soon have to take up the issue it ducked today, I think it's telling that none of the other conservative justices -- John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh -- joined his separate opinion," Vladeck said.

"It's quite possible that Thomas's opinion is therefore less a prediction of where the court is likely to go than an aspiration," Vladeck added. "At least for now, the rest of the conservatives don't seem eager to jump into this sensitive political thicket."

Fetal remains

Thomas also wrote to express his support for the provision of the law that requires fetal remains be buried or cremated.

"I would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains," he wrote.

Indiana's law requires that fetal remains be disposed of the same way as other human remains (i.e. burial and cremation). A separate provision says that the state can prohibit abortion that is solely motivated by the race, sex, or disability of the fetus.

The law has been blocked from going into effect by lower courts.

In court papers, Curtis Hill Jr., Indiana's attorney general, said the language "expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus."

CNN's Maegan Vazquez and Devan Cole contributed to this report.

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