As near-total abortion bans sweep the country, one question runs underneath all public debate on the issue: When is the Supreme Court going to weigh in?
On Tuesday, the Court gave an answer: not yet.
In a case involving an Indiana abortion law, the justices gave a kind of compromise ruling, according to the Washington Post. They allowed one portion of the law, which requires that fetal remains be buried or cremated, to stand. But they declined to take up another portion of the law, which bans abortions based on the fetus’s sex, race, or diagnosis of a disability. As a result, a lower court’s decision to strike that portion of the law will stand, and the ban will not go into effect.
The decision was hotly anticipated because if the Court had decided to hear the case, it could have been an opportunity for the justices to revisit Roe v. Wade, the landmark 1973 case that established Americans’ right to an abortion. Abortion opponents around the country are eager to see the Court overturn the decision, but previous moves have suggested that the justices aren’t ready to weigh in yet. Tuesday’s decision was more of the same.
But in a concurring statement, Justice Clarence Thomas wrote that the Court would need to make a decision soon on laws like Indiana’s. His words were a reminder that while a Supreme Court battle over abortion isn’t happening today, it might not be far in the future.
The Supreme Court’s decision allows one Indiana abortion restriction, but blocks another
In 2016, then-Indiana Gov. Mike Pence signed into law a bill imposing several new restrictions on abortion. Among them were a requirement that fetal remains from an abortion or miscarriage be buried or cremated (previously, fetal remains were typically disposed of as medical waste in Indiana, according to the Atlantic). Another provision banned abortion based solely on the fetus’s sex, race, or diagnosis of disability. The provision had an exception for lethal fetal abnormalities.
Both provisions were controversial. Lawyers for the state of Indiana argue that the requirement involving fetal remains is necessary because “an aborted or miscarried fetus is nothing less than the remains of a partially gestated human and should be treated with the same dignity,” according to the Post. But abortion rights supporters said the requirement was intended to stigmatize abortion.
Supporters of the second provision cast it as necessary to prevent abortions for racist or sexist reasons, and to protect disability rights. “Some of my most precious moments as Governor have been with families of children with disabilities, especially those raising children with Down syndrome,” Pence said in a statement on the law in 2016.
The question of how many people choose abortion after a diagnosis of fetal disability is a complex one. While some anti-abortion campaigns have made the claim that 90 percent of fetuses with Down syndrome are aborted, the claim is somewhat misleading — one British study found that about 90 percent of fetuses diagnosed with the condition prenatally were aborted, but not every fetus is tested or diagnosed prenatally. And some advocates for people with Down syndrome say the rate of abortions after a diagnosis is falling.
Meanwhile, reproductive rights advocates say there is no evidence that abortions based on race or sex are happening in the United States. “There’s no data that points to people seeking abortion care based on race and sex,” Ashley Gray, a state advocacy adviser for the Center for Reproductive Rights, told Vox earlier this month.
Because of objections like these, the Indiana law was soon challenged in court, and last year, the Seventh US Circuit Court of Appeals struck down both provisions. The state of Indiana appealed, and the case made it to the Supreme Court.
On Tuesday, the Supreme Court reversed the Seventh Circuit’s decision regarding the fetal remains provision, allowing the Indiana law to stand. But in the case of the ban on abortions based on sex, race, or disability, the Court declined to review the lower court’s decision, allowing it to stand. That means the ban will not go into effect.
The Court’s decision signals its intention to wait on the abortion issue — for a while
In addition to its impact on Indiana law, the decision signals that the Supreme Court may want to move slowly when it comes to the abortion issue.
Many of the abortion bans passed around the country in recent months — most notably an Alabama ban on abortions at any stage of pregnancy — have been designed to encourage the Court to revisit Roe v. Wade. But the Court doesn’t need a near-total ban on abortion to revisit Roe; nearly any case involving abortion rights could provide an opportunity for the justices to reconsider, and potentially overturn, the landmark abortion decision.
The Indiana abortion law, for instance, was in conflict with Roe because it prohibited some abortions — specifically, those performed because of sex, race, or fetal diagnosis — before a fetus can survive outside the womb. If the Court had decided to hear it, the justices could have chosen to overturn the entire Roe decision.
Advocates on both sides of the issue see Justice Brett Kavanaugh as a potential deciding vote to overturn Roe. But since the battle over his confirmation, including Christine Blasey Ford’s testimony that he sexually assaulted her when they were in high school, the Court has shown an unwillingness to take up the issue just yet.
Last December, for instance, the justices declined to hear two cases that could have allowed states to strip funding from Planned Parenthood. Though the cases did not involve abortion directly, many saw the decision as a signal that the Court wanted to wait before wading into the issue of reproductive rights.
Tuesday’s ruling is a sign that they’re still waiting.
But at least one justice doesn’t want to wait forever. In a concurrence with the ruling, Justice Clarence Thomas wrote that by banning abortion on the basis of certain fetal characteristics, the Indiana law and others like it “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
“Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s,” he continued. “But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.”
Essentially, as Robert Barnes reports at the Washington Post, Thomas is saying that he wants to wait until other lower courts have weighed in on the issue of abortions on the basis of sex, race, and disability before the Supreme Court issues a ruling.
He may not have to wait long, as a number of states have passed laws similar to Indiana’s. A law signed by Missouri Gov. Mike Parson last Friday, for instance, also bans abortions on the basis of sex, race, or diagnosis of Down syndrome.
Meanwhile, more than a dozen other cases involving abortion are one step away from the Supreme Court. The Court may want to delay on the abortion issue, but Thomas’s words are a hint that they may not delay forever.