Explaining the Supreme Court Ruling on Indiana’s Abortion Law

https://www.nytimes.com/2019/05/28/us/supreme-court-indiana-abortion-law.html

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On Tuesday, the Supreme Court turned down an appeal by the State of Indiana to reinstate a strict abortion law that outlawed the procedure based on so-called fetal characteristics like race, sex or disability.

It did, however, uphold the part of the law that required abortion providers to bury or cremate fetal remains.

But what does that actually mean?

I asked Adam Liptak, the Supreme Court reporter for The New York Times, to help me break down the issue.

[READ MORE: Supreme Court Sidesteps Abortion Question in Ruling on Indiana Law]

Enacted in 2016 and signed by Gov. Mike Pence, now the vice president, the Indiana law prohibited abortions, at any time during a pregnancy, because a mother objected to the fetus’s race or sex or to a disability like Down syndrome.

The law also imposed restrictions on the disposal of fetal remains, saying that abortion providers had to bury or cremate them, though a woman could still dispose of the remains herself outside of the clinic. The law allowed mass cremations.

Liptak called the fetal characteristics provision “quite radical” because it prohibited all abortions if they were being done for one of those stated reasons. “It runs squarely into Roe,” he said.

By comparison, the fetal remains provision is “quite mild,” Liptak said.

Neither part of the law had been enforced before, as they both were blocked by lower courts before they became effective, Liptak said. But with the Supreme Court’s decision, the fetal remains provision will most likely be enforced in a matter of weeks.

By sidestepping the fetal characteristics provision of the two-part law, the justices punted what could have been a test of the future of Roe v. Wade.

The justices are taking “incremental steps,” said Liptak, who covered the ruling.

“They tiptoed into this area by reinstating the fetal remains law, which is sort of abortion related, but they’re not moving fast,” he said. “They’re taking their time in teeing up a major abortion case.”

The case was also the first test of such an issue since Justice Brett M. Kavanaugh succeeded Justice Anthony M. Kennedy last year. Justice Kennedy had been a cautious supporter of abortion rights, according to Liptak, while Justice Kavanaugh’s limited record on the subject suggested some skepticism.

The ruling keeps abortion off the Supreme Court’s docket for now, and the compromise indicates that the court may be biding its time to tackle a major abortion case, even as multiple bills aiming to restrict abortion access have made their way through statehouses.

The part of the law about how to dispose of fetal remains was struck down by lower courts on the grounds that it wasn’t rational — women were allowed to dispose of the fetus as they wished, while abortion providers had to cremate or bury. The decision had nothing to do with whether or not a fetus was considered a person, Liptak said.

In urging the justices to reinstate that part of the law, which they did, lawyers argued that fetal remains were worthy of respectful treatment.

“The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus,” the state said.

Arkansas and Georgia have similar burial and cremation regulations in place. And Ohio, Mississippi and South Carolina have all considered such requirements in recent years.

In March, South Dakota made it illegal to use aborted fetal tissue in research, and in April, Alabama and Idaho made it illegal to buy, sell, donate or experiment on these remains.

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Here are five articles from The Times you might have missed.

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“It was a response to the proliferation of war memorials to men.” The Women in Military Service for America Memorial is constantly scrambling to stay afloat. [Read the story]

“I can’t hate my body if I love hers.” Karina Manta, the first openly gay American ice dancer, writes about coming to terms with her body-image issues through her love and appreciation of her girlfriend’s body. [Read the story]

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Baby Jane Dexter, a fixture of the New York cabaret scene who, after a long hiatus in the 1980s to deal with depression, returned with performances that transformed her tribulations into teaching moments, died last week at age 72.

In performances and in workshops for women, Dexter recounted a violent date rape, which she immortalized in “15 Ugly Minutes,” one of her signature songs.

In the song, the victim has a chance to confront her assailant in court. Ms. Dexter never got that chance herself; her attacker died of a heart attack at 26. (“I was fine with that,” she said.) But recounting her ordeal helped.

“I have found that by talking about it with other women, who then reveal things in turn, the negativity of my own experience went away,” she said in 2001. “The terror found its place in my history and became oddly purposeful.”

Read Dexter’s New York Times obituary here.

Read past In Her Words articles here.