On Tuesday, the Supreme Court upheld part of a controversial Indiana abortion law, but only part. The court upheld treating aborted fetal remains the same as adult deceased bodies. The law mandates burial or cremation. But it declined to address the same law’s ban on sex, race or disability based abortions. This left the Seventh Circuit Court of Appeals’ decision in place, which struck down that part of the law.

The decision from Box v. Planned Parenthood of Indiana and Kentucky on fetal remains was mostly unanimous. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have declined to hear it. The opinion was only three pages long.

The court said that the state had a legitimate interest in preventing the inhumane disposal of aborted fetuses. Even Planned Parenthood did not argue that it would prevent women from receiving abortions. Since the law does not involve a “fundamental right” it only needs rational basis review. The law is “rationally related to the State’s interest in proper disposal of fetal remains.” Opponents had argued it put an undue burden on women.

Thomas’s Powerful Concurrence

Justice Clarence Thomas wrote a long, powerful concurring opinion addressing the court’s failure to decide the other aspect of the law. He argued that the State has a compelling interest in stopping eugenics. Thomas cited Planned Parenthood founder Margaret Sanger’s interest in eugenics. He traced the history of eugenics in the U.S.

“Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates,” he concluded, “would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. … Although the Court declines to wade into these issues today, we cannot avoid them forever.”

The court indicated that it might take up the other part of the law if other appeals courts issue decisions. A lower court split makes it more likely the Supreme Court will hear a case. Thomas warned in his opinion that the court will eventually have to decide the issue.

Planned Parenthood no doubt objected to the fetal remains law because the law treats unborn babies as human beings with human rights. It does not treat them as organic matter that can be disposed of as trash or refuse, as did the previous state law. This ruling affirms the basic humanity of unborn babies. Even after they are dead.

It presents an interesting dilemma. If unborn babies are entitled to burial similar to born human beings, what does that say about their humanity in the womb? While the decision did not go so far as addressing Roe v. Wade, it could be seen as chipping away at it. Even the left-leaning Daily Beast admitted the decision chipped away at abortion.

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