The US supreme court is upholding an Indiana law that requires abortion providers to dispose of aborted embryos and fetuses in the same way as human remains. But the justices are staying out of the debate over a broader provision that would prevent a woman in Indiana from having an abortion based on gender, race or disability.
The court is splitting 7-2 in allowing Indiana to enforce the fetal remains measure that had been blocked by a federal appeals court.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
Ginsburg said in a short opinion that she believes that the issue does implicate a woman’s right to an abortion “without undue interference from the state”.
The seventh US circuit court of appeals in Chicago had blocked both provisions of a law signed by Mike Pence in 2016 when he was Indiana’s governor.
The court’s action on Tuesday keeps it out of an election-year review of the Indiana law amid a flurry of new state laws that go the very heart of abortion rights.
Governor Kay Ivey of Alabama this month signed a law that would ban virtually all abortions in that state from the time of conception, even in cases of incest and rape, and subject doctors who perform them to criminal prosecution. The law has yet to take effect and is being challenged in court as unconstitutional.
Other states have passed extreme laws that would outlaw abortions around six weeks of gestation.
The Indiana measure that would have prevented a woman from having an abortion for reasons related to race, gender or disability gets closer to the core abortion right. While the justices declined to hear the state’s appeal of that blocked provision on Tuesday, they indicated that their decision “expresses no view on the merits”.
Justice Clarence Thomas, who supports overturning the 1973 Roe v Wade decision that first declared abortion rights, wrote a 20-page opinion in which he said the provision promotes “a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics”. No other justice joined the opinion.
Thomas also wrote: “The court will soon need to confront the constitutionality of laws like Indiana’s.”
The court also agreed to take up a case on whether border patrol agents can be sued in US federal court over the killing of Mexican citizens on the southern border.
The case stems from the cross-border shooting of a 15-year-old boy who was playing a game that involved running over the US-Mexico border.
The justices will hear arguments next term in the case, involving an agent who fired shots across the border, which killed 15-year-old Sergio Adrián Hernández Guereca. The shooting occurred in 2010 on the border between El Paso, Texas, and Ciudad Juárez.
The agent says he fired his gun because he was being attacked by people throwing rocks on the Mexican side of the border.
Meanwhile, it was also announced on Tuesday that the court will not take up a challenge to a Pennsylvania school district’s policy allowing transgender students to use bathrooms and locker rooms that correspond with their sexual identity. The justices rejected an appeal from some students who argued that allowing trans students to use facilities in that way violated their right to privacy.
The court’s order leaves in place a federal appeals court ruling that held that the Boyertown school district, about 45 miles north-east of Philadelphia, could continue to allow trans students the choice of what facilities to use.
The students in the case are represented by the conservative Christian law firm Alliance Defending Freedom.
