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Supreme Court declines to hear challenge to Indiana fetal burial law

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The Supreme Court on Tuesday reversed a 2017 appeals court ruling blocking a portion of an Indiana law requiring fetal remains to be buried or cremated, allowing the law to stand.

The court denied to grant a writ of certiorari to the case, Box vs. Planned Parenthood of Indiana and Kentucky, in which the plaintiffs challenged two provisions of a 2016 Indiana law, HB 1337, signed into law by then-governor and current Vice President Mike Pence.

The first provision of the law challenged by the plaintiffs, who were represented by the ACLU, mandated that healthcare facilities, such as hospitals and abortion clinics, either bury or cremate fetal remains from abortions and miscarriages instead of disposing of fetal tissue along with other surgical tissue.

The Court also declined to hear a challenge to a second provision of the law, which outlaws abortions on the basis of the sex, race, or disability of the fetus. In a lengthy concurring opinion, Justice Clarence Thomas passionately defended Indiana’s anti-discrimination provision, arguing that abortion is a “tool for eugenic manipulation.”

The US Court of Appeals for the Seventh Circuit struck down the law in 2018, causing Indiana to appeal the case to the Supreme Court, which reversed the Seventh Circuit’s ruling and let the law stand.

Read more: Abortion bans are popping up all around the country. Here are the states that have passed new laws to challenge Roe v. Wade in 2019

A representative for Planned Parenthood of Indiana and Kentucky, who challenged the law, did not immediately respond to INSIDER’s request for comment.

In denying to hear the appeal, Justice Sonia Sotomayor noted that the plaintiffs did not challenge the law under the standard set by the Court in the 1992 case Casey vs. Planned Parenthood. That standard determined individual states cannot place an “undue burden” on a patient’s ability to obtain an abortion.

Because the plaintiffs’ challenge did not rest on that standard, the Court applied the rational basis standard, which requires a law to be “rationally related to legitimate government interests.”

Citing previous precedent in which the Supreme Court held that states have “a legitimate interest in the proper disposal of fetal remains,” Sotomayor reversed the Seventh Circuit’s ruling and allowed Indiana’s law to remain intact.

“We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” Sotomayor’s opinion said. “This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.”

Read more: Here’s the latest point in pregnancy you can get an abortion in all 50 states

Justices Thomas and Ruth Bader Ginsburg concurred, with Ginsburg arguing that rational basis review was “not the proper standard” under which to review the law, and application of the undue burden standard “would likely yield restoration of the judgment.”

The Court letting Indiana’s law stand comes after the governors of Ohio, Georgia, Mississippi, Kentucky, and Alabama signed highly restrictive bans on abortions after six weeks. In Alabama’s case, the procedure was banned altogether, with the intent of bringing a case before the Supreme Court that could result in the court overturning Roe v. Wade.

None of those laws, however, have gone into effect, and are currently being challenged in court by organizations including the American Civil Liberties Union, Planned Parenthood, and the Center for Reproductive Rights.

Justice Sotomayor anticipated that the Court denying to hear the appeal wouldn’t have significant implications for potential challenges to other abortion bans or restrictions on the basis they present an undue burden. But attorneys advocating for abortion access are concerned that this ruling contributes to a broader pattern of states limiting access to abortion, and stigmatizing the procedure.

“While this ruling is limited, the law is part of a larger trend of state laws designed to stigmatize and drive abortion care out of reach,” ACLU Reproductive Freedom Project director Jennifer Dalven said in a Tuesday statement to INSIDER.

Read more:Roe v. Wade makes the state bans against abortions unenforceable. Here’s how conservative activists plan to overturn it.

In the past few years, at least five states have introduced and passed laws requiring fetal remains resulting from abortions, miscarriages, or stillbirths be either cremated or buried — regardless of the patient’s wishes, and at the patient’s expense in some cases.

Federal appeals courts have blocked similar fetal burial laws passed in Texas and Arkansas. In September 2018, a federal judge ruled that Texas’ law requiring burial or cremation of fetal remains presented an unjustifiable burden, on healthcare providers and patients, writing that “viable options for disposing of embryonic and fetal tissue remains in compliance with the challenged laws do not exist,” according to The New York Times.

The states that have imposed these laws have claimed they are necessary to preserve the “dignity” of the fetus, a need Justice Thomas cited in his concurring opinion, but abortion-rights advocates say they are simply another way of shaming and imposing additional burdens on patients who choose abortion.

Rachel Morrison, a litigator with the pro-life legal organization Americans United for Life, told INSIDER in a statement that she was “delighted” the Court had let Indiana’s fetal burial law stand. She views the Court’s ruling as legal fodder to support fetal personhood laws, which treat fetuses the same way as people under the law, affording them the same legal protections.

States including Alabama have introduced fetal personhood provisions via ballot amendment, with an Alabama judge granting the estate of an aborted fetus standing to sue an abortion clinic for wrongful death earlier this year in a suit filed by the embryo’s would-be father.

And while Georgia’s abortion ban hasn’t yet gone into effect, it establishes a fetus at any stage of development as a person, and allows fetuses to be claimed as dependents for tax purposes and counted in official population surveys.

Morrison said that by granting fetuses the right to be buried and extending anti-discrimination protections, “Indiana’s law recognizes the simple biological fact that human fetuses are human beings and, as such, should be treated with humanity and dignity whether in life or in death,” she said.

Read more: Republicans across the country are launching a coordinated attack on Roe v. Wade

Denise Burke, also a pro-life litigator with the conservative Alliance Defending Freedom, celebrated the Court letting the anti-discrimination provision stand as a step towards fetuses gaining more legal protections, telling INSIDER, “Indiana’s law also sends a clear message that all victims of discrimination—born and unborn—are worthy of protection.”

Read more:

Before Roe v. Wade, desperate women used coat hangers, Coke bottles, Clorox, and sticks in attempted abortions

24 celebrities who have opened up about having abortions

This is what could happen if Roe v. Wade fell

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