The Supreme Court made clear on Tuesday that it’s not ready to take big strides quickly on abortion and the future of Roe v. Wade. But justices also revealed that the far right and the far left side of the bench are drawing their battle lines, in anticipation of other cases concerning more restrictive laws currently hurtling toward the court.
In an unsigned opinion, the justices let stand a lower court opinion that invalidated part of an Indiana law that said the state can ban abortions solely motivated by the race, sex or disability of the fetus. The court did allow a provision requiring clinics to bury or cremate fetal remains to take effect.
The move will keep the Indiana law off the docket during an election year and allowed both sides of the debate to take away a partial victory.
But it’s clear the court won’t be able to hold off too much longer. The Indiana law is only the first of many the justices will be asked to consider in the weeks and months to come, and state legislatures continue to promote more restrictive abortion access laws.
Justice Clarence Thomas warned his colleagues that they will have to deal with some of the issues soon.
“The Constitution itself is silent on abortion,” Thomas wrote in a concurring opinion that also spent 15 pages discussing the history of eugenics.
“Enshrining a constitutional right to an abortion based solely on the race, sex or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th Century eugenic movement,” Thomas wrote.
“This law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” Thomas wrote, later adding that Planned Parenthood founder Margaret Sanger was “particularly open about the fact that birth control could be used for eugenic purposes.”
Thomas acknowledged that the Supreme Court might benefit from having that issue percolate more in the courts below, but also wrote in detail why he believes such a law might be necessary and he pointedly said that just because the justices allowed the lower court opinion to stand, it should not be interpreted “as an agreement with the decisions below.”
No other justice, including Thomas’s four fellow conservatives who are seen as backing more restrictive access to abortions, joined him, noted Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“It’s quite possible that Thomas’s opinion is therefore less a prediction of where the court is likely to go than an aspiration,” Vladeck said. “At least for now, the rest of the conservatives don’t seem eager to jump into this sensitive political thicket.”
On the left, liberal justices Ruth Bader Ginsburg and Sonia Sotomayor staked out their ground, saying that they would have blocked the entire Indiana law.
Ginsburg suggested that the lower court might have used the wrong standard to review the provision. “This case implicates the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the state,” she wrote.
In a footnote, Ginsburg referred to the “undue burden” language in the 1992 Casey v. Planned Parenthood case that upheld Roe v. Wade. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’; the cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden,” she wrote.
The footnotes also revealed some of the frustrations both sides are feeling.
“Justice Ginsburg’s dissent from this holding makes little sense,” Thomas wrote in one footnote.
“Justice Thomas’ footnote … displays more heat than light,” Ginsburg wrote.
More to come
By moving gingerly on Tuesday, the court dealt with one law, but it is only the first of many the justices will be asked to consider in the weeks and months to come.
For instance, they are already looking at still another Indiana law that requires an ultrasound at least 18 hours before the procedure. That too was struck by the lower courts who emphasized that it would put a particular burden on low-income women unable to make more than one trip to a clinic many miles from their home.
In addition the court will consider a Louisiana law that requires doctors to have admitting privileges in local hospitals.
On top of that, Republican states emboldened by President Donald Trump are introducing laws that would be a near total ban on abortion.
Just last week a federal judge in Mississippi issued a preliminary injunction against a law that would ban abortions once a fetal heart beat is dedicated – as early as six weeks of pregnancy.
Only six months ago the same judge struck a similar state law that banned abortion at 15 weeks.
“Here we go again,” Judge Carlton Reeves of the US District Court for the Southern District of Mississippi said in blocking the new law. “The Supreme Court has repeatedly held that women have the right to choose an abortion prior to viability.”
More than a dozen other states have introduced similar laws based on gestational age.