The justices declined to take on an issue closer to the core of abortion rights, rejecting a state’s appeal of a lower court ruling that blocked a ban on abortion based on gender, race or disability, while upholding an Indiana law supported by abortion opponents that regulates the disposal of fetal remains.
The decisions come as Republican-led state legislatures have approved a series of laws in recent months aimed at getting the high court’s conservative majority to potentially overturn the Roe v. Wade decision.
Justice Clarence Thomas, however, warned it would not be able to put off the inevitable for much longer. He agreed with the Supreme Court’s decision to let lower courts decide first on a part of the Indiana law stopping abortions based on the fetus’s sex, gender or disability. But he said the court will have to take up abortion laws in the near future, writing that he was concerned about the possibility of abortions being used for “eugenics.”
“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.”
Vice President Pence, who signed the legislation into law as Indiana’s governor in 2014, tweeted that allowing the fetal remains law to stay in place was “a victory for life,” adding that he hopes the Supreme Court “will recognize the same protections for the unborn” with respect to discrimination on the basis of sex, race and disability.
The court’s action keeps it from an election-year review of the Indiana law amid a flurry of new state laws that go to the very heart of abortion rights. Alabama Gov. Kay Ivey this month signed a law that would ban virtually all abortions, even in cases of incest and rape and subject doctors who perform them to criminal prosecution. That law has yet to take effect and is being challenged in court. Other states have passed laws that would outlaw abortion once a fetal heartbeat has been detected, typically around six weeks of gestation.