This morning the Supreme Court issued orders from the justices’ private conference last week. After considering the case at 15 consecutive conferences, the justices finally acted on a petition by Indiana, which had asked the court to review a decision by the U.S. Court of Appeals for the 7th Circuit striking down a law regulating abortions in that state. Today the justices handed the state a partial victory, reversing the lower court’s decision with respect to one provision of the law but leaving it in place with respect to another.

The case, Box v. Planned Parenthood, was a challenge to two provisions of an Indiana law regulating abortion that was signed by now-Vice President Mike Pence while he was still governor of Indiana. The first provision, the state explained, was based on the idea that fetal remains are “nothing less than the remains of a partially gestated fetus and should be treated with the same dignity”: Passed after the discovery that a medical-waste firm had been accepting and disposing of fetal tissue, the law requires fetal remains to be either buried or cremated. The second provision, sometimes referred to as the “nondiscrimination” provision, bars abortions based on the disability (such as Down syndrome), sex or race of the fetus.

Planned Parenthood went to federal court in Indiana, seeking to have the law declared unconstitutional. The district court agreed and blocked the state from enforcing the law. It ruled that the state did not have a valid interest in requiring fetal remains to be treated like other human remains because the Supreme Court has held that the fetus is not a person. The district court also struck down the “nondiscrimination” provision, reasoning that the state cannot prevent a woman from ending her pregnancy before the fetus is viable, regardless of the reason.

After the U.S. Court of Appeals for the 7th Circuit upheld the district court’s ruling, Indiana urged the Supreme Court to take up the case, telling the justices that the fetal-remains provision “expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus.” And the nondiscrimination provision, the state explained, is a response to new technology that allows “women to make a choice not contemplated at the time of Roe v. Wade”: “the choice of which child to bear.”

In a per curiam opinion, an opinion by the court as a whole that does not identify any particular justice as the author, the Supreme Court today reversed the 7th Circuit’s holding on the provision governing the disposition of fetal remains. The court stressed that Planned Parenthood had never suggested that the state’s law “creates an undue burden on a woman’s right to obtain an abortion.” Instead, the court explained, the only question was whether there was a rational basis for the law. Although the 7th Circuit had concluded that there was not, the justices disagreed: The Supreme Court, they reasoned, had already acknowledged that states have an interest in the proper disposal of fetal remains, and this law “is rationally related to” that interest.

The justices declined to weigh in on the part of the 7th Circuit’s decision that struck down the ban on abortions based on race, sex or disability of the fetus – which means that the state will not be able to enforce that part of the law. The justices emphasized that their opinion “expresses no view on the merits of” that question and that, in denying review, they were following their “ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

Justice Sonia Sotomayor indicated that she would have denied the state’s petition for review in its entirety – that is, she would have allowed the 7th Circuit’s ruling striking down both provisions to stay in place.

Justice Clarence Thomas filed a 20-page concurring opinion, which he began by noting that he “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.” Thomas devoted most of his opinion, however, to a history of the eugenics movement in the United States. He concluded by stressing that the Supreme Court’s decision not to weigh in right now on the constitutionality of Indiana’s ban on abortions based on the race, sex or disability of the fetus “should not be interpreted as agreement with the decisions” striking down the ban. “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would,” Thomas suggested, “constitutionalize the views of the 20th-century eugenics movement.” And even if the Supreme Court is not taking up such issues now, he continued, “we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”

Justice Ruth Bader Ginsburg filed her own opinion in which she agreed with the court’s decision to deny review of the question dealing with the ban on abortions based on race, sex or disability. But, like Sotomayor, she would have also denied review of the first question, dealing with fetal remains. Ginsburg explained that the Supreme Court should not have reversed the 7th Circuit without briefing or oral argument when Planned Parenthood would likely prevail under the correct test – which, in her view, is a tougher one than the “rational basis” test that the 7th Circuit and the Supreme Court used in this case. Ginsburg also pushed back against Thomas’ criticism that her dissent made “little sense,” countering that Thomas “displays more heat than light.”

For the second time, the justices will hear oral argument in a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the death of their 15-year-old son. Jesus Mesa, the agent, was on the U.S. side of the U.S.-Mexico border when he shot and killed Sergio Hernandez, who was on the Mexican side of the border. Two years ago, the court sent the case back to the U.S. Court of Appeals for the 5th Circuit for it to take another look at the case in light of another decision the Supreme Court issued that term. When the case went back to the 5th Circuit, the court of appeals ruled that the family cannot rely on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 decision by the Supreme Court allowing a lawsuit seeking damages from federal officials for violating the Constitution to go forward, to bring their case. In response to a request for its views from the Supreme Court last fall, the federal government recommended that the court grant review, which it did today.

The justices also denied review in a challenge to a Pennsylvania school district’s policy that allows transgender students to use locker rooms and restrooms that match their gender identity. The U.S. Court of Appeals for the 3rd Circuit had upheld the policy, rejecting a challenge by students who objected to the policy, and the Supreme Court had rescheduled the students’ petition 10 times before finally considering it at last week’s conference.

The justices are scheduled to meet again for another conference on Thursday, May 30. We expect orders from that conference on Monday, June 3, at 9:30 a.m.

This post was originally published at Howe on the Court.

Posted in Hernandez v. Mesa, Box v. Planned Parenthood of Indiana and Kentucky Inc., Doe v. Boyertown Area School District, Featured, What's Happening Now

Recommended Citation: Amy Howe, Justices reverse in part on Indiana abortion law, SCOTUSblog (May. 28, 2019, 12:19 PM), https://www.scotusblog.com/2019/05/justices-reverse-in-part-on-indiana-abortion-law/