Supreme Court upholds Indiana abortion law requiring fetal remains be buried or cremated

WASHINGTON — The Supreme Court on Tuesday upheld Indiana's law requiring abortion providers to bury or cremate fetal remains, but left lower court rulings intact that invalidated a broader measure that would prevent a woman from having an abortion based on a fetus's gender, race or genetic disorder.

Passed in 2016 and signed by then-Gov. Mike Pence, the law prohibited what the state called discriminatory abortions — those sought because of characteristics of the fetus, including gender, race or a diagnosis of Down syndrome or other congenital condition. Supporters of the measure said the law responded to medical developments that were not contemplated at the time of Roe v. Wade.

Lower courts blocked that discriminatory provision, and the Supreme Court left those rulings intact, which means the state cannot enforce that part of the law.

The court's brief order Tuesday said it "expresses no view on the merits" of that issue. But because only one federal appeals court has ruled on the question, "we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals."

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President Donald Trump greets his daughter Ivanka Trump at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
President Donald Trump and press secretary Sarah Huckabee Sanders listen as White House senior adviser Kellyanne Conway speaks at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
Supporters wait for the arrival of U.S. President Donald Trump for a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Indiana, U.S., November 5, 2018. REUTERS/Carlos Barria  
President Donald Trump greets former Notre Dame football coach Lou Holtz at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
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President Donald Trump arrives to speak at a rally at Allen County War Memorial Coliseum, Monday, Nov. 5, 2018, in Fort Wayne, Ind. (AP Photo/Carolyn Kaster)
White House senior adviser Kellyanne Conway speaks at a campaign rally featuring President Donald Trump at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
President Donald Trump greets Senate candidate Mike Braun at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
President Donald Trump and White House senior adviser Kellyanne Conway listen as press secretary Sarah Huckabee Sanders speaks at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
President Donald Trump listens as his daughter Ivanka Trump speaks at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
President Donald Trump and press secretary Sarah Huckabee Sanders listen to a speech at a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
Signs are shown during a campaign rally featuring President Donald Trump at the Allen County War Memorial Coliseum in Fort Wayne, Ind., Monday, Nov. 5, 2018. (AP Photo/Michael Conroy)
James Crockett, 10, holds a mask of President Donald Trump as another supporter holds a mask of first lady Melania Trump as President Donald Trump speaks at a rally at Allen County War Memorial Coliseum, Monday, Nov. 5, 2018, in Fort Wayne, Ind.. (AP Photo/Carolyn Kaster)
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FORT WAYNE, IN - NOVEMBER 05: U.S. President Donald Trump arrives at a campaign rally for Republican Senate candidate Mike Braun at the County War Memorial Coliseum November 5, 2018 in Fort Wayne, Indiana. Braun is facing first-term Sen. Joe Donnelly (D-IN) in tomorrow's midterm election. Trump is campaigning nationwide in an effort to bolster GOP prospects. (Photo by Aaron P. Bernstein/Getty Images)
FORT WAYNE, IN - NOVEMBER 05: U.S. President Donald Trump speaks during a campaign rally for Republican Senate candidate Mike Braun at the County War Memorial Coliseum November 5, 2018 in Fort Wayne, Indiana. Braun is facing first-term Sen. Joe Donnelly (D-IN) in tomorrow's midterm election. Trump is campaigning nationwide in an effort to bolster GOP prospects. (Photo by Aaron P. Bernstein/Getty Images)
US President Donald Trump (L) looks on as White House Press Sarah Huckabee Sanders speaks and Kellyanne Conway cheers at a Make America Great Again rally in Fort Wayne, Indiana on November 5, 2018. (Photo by Jim WATSON / AFP) (Photo credit should read JIM WATSON/AFP/Getty Images)
Supporters cheer as US President Donald Trump delivers remarks at a Make America Great Again rally in Fort Wayne, Indiana on November 5, 2018. (Photo by Jim WATSON / AFP) (Photo credit should read JIM WATSON/AFP/Getty Images)
Press Secretary Sarah Huckabee Sanders speaks during a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Indiana, U.S., November 5, 2018. REUTERS/Carlos Barria  
Press Secretary Sarah Huckabee Sanders speaks as White House counselor Kellyanne Conway looks on during a campaign rally at the Allen County War Memorial Coliseum in Fort Wayne, Indiana, U.S., November 5, 2018. REUTERS/Carlos Barria  
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Curtis Hill Jr., Indiana's attorney general, said the state legislature passed that provision of the law in response to "the alarming trend of disability-selective abortions" and with the goal of "protecting children with Down syndrome and other disfavored characteristics from invidious discrimination."

Planned Parenthood challenged it as an unconstitutional restriction on abortion rights, and lower courts agreed, preventing the law from taking effect. The Supreme Court left those rulings in place that invalided that part of the law.

But the Supreme Court allowed Indiana to enforce another provision of the law that requires fetal remains to be disposed of by burial or cremation rather than as medical waste. A total of 18 states had urged the Supreme Court to hear Indiana's appeal.

In its unsigned order, the court said opponents had never argued that the disposal provision created an undue burden on a woman's right to obtain an abortion. Indiana's appeal "does not implicate our cases applying the undue burden test to abortion regulation."

In previous cases, the order said, the court acknowledged that the states have a legitimate interest in proper disposal of fetal remains. Indiana's law, the court said, is rationally related to that interest, "even if it is not perfectly tailored to that end."

In a separate concurring opinion, Justice Clarence Thomas said nothing in the Constitution or the court's prior rulings "prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains."

Justice Ruth Bader Ginsburg was the only member of the court to note a dissent, saying the court applied the wrong standard in upholding that part of the Indiana law. "The case implicates the right of a woman to have an abortion before viability and to obtain it without undue interference from the state."

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