In a partial win for unborn babies, the U.S. Supreme Court ruled last week in favor of an Indiana law requiring abortion facilities to bury or cremate aborted babies’ bodies. But the justices let stand a lower court ruling that a Indiana law protecting babies from abortion on the basis of sex, race, or disability was unconstitutional.
Indiana and several other states have passed laws requiring the humane disposal of aborted babies since pro-life activist David Daleiden published videos in 2015 showing abortionists talking about selling aborted baby body parts and the difficulty of disposing of them. Most of the time, abortion facilities contract with medical waste companies that either send the bodies to an incineration plant or steam cook them and dump them in a landfill.
Indiana appealed to the Supreme Court last year after the 7th U.S. Circuit Court of Appeals ruled against both the 2016 discrimination abortion law and the baby bodies burial and cremation provision. The justices reversed the latter ruling on Tuesday, saying that the states have a “legitimate interest in in proper disposal of fetal remains.”
Mike Fichter, president of Indiana Right to Life, said in a statement that the ruling was a victory for pro-lifers but created a “troubling dichotomy.”
“On one hand we recognize aborted children have dignity and are not garbage,” Fichter said. “On the other hand, the court refuses the inherent, God-given dignity of each unborn child.”
Justice Clarence Thomas, in a 20-page concurring opinion, detailed the history of the 20th century eugenics movement and its strong influence on legalized abortion. He stated that just because the court did not take up the case of abortion due to a baby’s sex, race, or disability does not mean it necessarily agrees with the appellate court’s ruling.
“Although the court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote. “Having created the constitutional right to an abortion, this court is duty bound to address its scope.”
The decision supporting the dignified disposal of fetal remains could affect other states with similar laws, including Texas and Arkansas. A federal judge struck down a Texas law on fetal cremation and burial in September 2018, and the 5th Circuit will hear oral arguments in the case next week.
Joe Pojman, director of Texas Alliance for Life, told me he thinks the Supreme Court’s decision bodes well for the Texas law. “We think we had a very good case before the Supreme Court ruled on Indiana’s law, and we think this case is even stronger now,” he said.
Americans United for Life senior counsel Clarke Forsythe told me he sees the high court’s decision as “incremental momentum” and is watching which cases the justices decide to hear next.
Three abortion cases remain before the Supreme Court: Another from Indiana about showing mothers ultrasounds before an abortion, one from Alabama on its dismemberment abortion law, and one from Louisiana over its law requiring abortionists to have hospital admitting privileges.
In the meantime, Forsythe said the win for Indiana “was a good one and an important one. I hope to see a series of cases like that and expect the court to be selectively picking issues that it can uphold … and cut back on its abortion doctrine, this year, next year, [and] in 2021.”