The Good News/Bad News on the Supreme Court Ruling on Indiana's Abortion Law

The Supreme Court today upheld a provision in an Indiana abortion law requiring that fetal remains be buried or cremated, which is gross and dumb and horrible. SCOTUS reversed a 7th Circuit ruling stating that these requirements weren’t necessary because a fetus is not a person, and therefore does not need to be buried or cremated. That’s the bad news, as the law was clearly designed to create a sort of psychological impediment to an abortion by treating the aborted remains as “human.”

SCOTUS upheld the provision with two of the three women on the Court, Ruth Bader Ginsberg and Sonia Sotomayor, dissenting. I understand why the two liberal justices voted to uphold the provision, and why two other liberal justices dissented. The dissenting judges likely felt as the 7th Circuit did, which is to say: This is a dumb requirement because a fetus is not a person, and therefore does not require a “respectful” burial. The two liberal justices who voted to uphold, however, were probably thinking, “This is not technically prohibited by Roe v. Wade; therefore this is outside our jurisdiction, so to speak, so the state can do what it wants.”

And that’s the upside to this decision: It doesn’t affect Roe v. Wade. In fact, SCOTUS decided to allow the 7th Court’s ruling on the other provision of that law to stand. Indiana attempted to make it illegal for a woman to have an abortion based on the gender of the child or fetal abnormalities, like Down’s Syndrome Planned Parenthood vs. Casey basically stated that a state could not pass a law creating obstacles or “undue burdens” on obtaining an abortion.” This provision would have created an “undue burden,” and the fact that SCOTUS allowed the 7th Circuit’s decision to stand suggests that the Supreme Court is not ready to overturn Roe v. Wade. Yet. The court probably will not take up Roe again until after the election (many suggest that striking down Roe during an election year would actually backfire on Trump, but that’s not the sort of backlash any of us want).

In short: The good news is, the Court still seems to believe that states cannot pass laws creating an “undue burden” on obtaining an abortion. The bad news is, red states are now going to probably try and apply more post-abortion requirements because they don’t technically affect a woman’s ability to get an abortion. So, if Montana wants to pass a law saying a woman has to say three Hail Marys and visit a maternity ward to see how cute newborns are after she obtains an abortion, under the Court’s reasoning that may be allowed because it doesn’t technically affect her ability to get an abortion.

Reminder, also, that as of this moment, abortion is still legal in all 50 states, as the Alabama and Georgia laws have not yet gone into effect and will almost certainly face legal challenges. The Court of Appeals will almost certainly strike them down based on Roe v. Wade, and this Indiana ruling suggests — at this moment, anyway — that SCOTUS would likely strike them down as well (or at least, allow the Court of Appeals’ decisions to stand).

In other words, this is bad, but it is not dire. Yet.