Supreme Court Upholds Law Allowing for Burial of Unborn, Punts on Sex-Selection Abortions

The bodies of unborn children are typically disposed of in the same manner as “infectious waste.” Indiana lawmakers wanted to address that issue in 2016, and then-Gov. Mike Pence signed a law providing for disposing of the remains of the unborn by either cremation or burial. The Indiana statute also prohibited a woman’s aborting an unborn baby solely because of that child’s race, sex, or disability.

Planned Parenthood immediately sued, and after a federal trial court weighed in, the case went to the U.S. Court of Appeals for the Seventh Circuit. The Chicago-based appellate court held that the dignified-disposal provision was unconstitutional because it was literally “irrational,” and further held that the selective-abortion ban violated the right to abortion declared by the Supreme Court in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey.

Indiana Solicitor General Tom Fisher, who had defended the law in the trial court and on appeal, petitioned the Supreme Court to take the case. On Monday, the justices issued a split decision.

First, the Supreme Court summarily reversed the Seventh Circuit without requiring any oral argument or briefing on the fetal-remains provision, in a 7-2 decision where liberal Justices Stephen Breyer and Elena Kagan joined the majority.