SCOTUS Punts On Indiana Abortion Law

By Frances Langum — May 28, 2019

Indiana had decided that they wanted government right there in the doctor's office, indeed, right in the brain of the pregnant woman. The law said that couples could not receive abortion services if they had decided to terminate a pregnancy based on the race, gender, or health condition of the fetus.

It's a nonsense law on the face of it. Rights are rights regardless of "why" a person decides to exercise them.

This law would make certain abortions illegal based on what a doctor knows about a woman’s thoughts. As a retired ob/gyn, I know what a chilling effect this would have on doctor-patient relationships and trust in confidentiality.

— Susan Cushman (@cushguate) May 28, 2019

The Seventh Circuit said no, and today SCOTUS let the Seventh Circuit's decision stand, while allowing Indiana to legislate the disposal of fetal tissue.

But Justice Ginsburg noted that Indiana had different rules if the WOMAN decided to dispose of the fetal tissue themselves. This is a "rights based on sentimentality" ruling, and the Notorious RBG called it right out:

Ginsburg dissented, saying the case did implicate a woman's right to choose to have an abortion, so the standard of review should be higher. She questioned the state's motive, since it had different provisions for if a woman handled disposing of the remains vs. the provider pic.twitter.com/w9xFUy5sov

— Zoe Tillman (@ZoeTillman) May 28, 2019

Good for Justice Ginsburg to succinctly call out Justice Thomas's misuse of nomenclature: "A woman who exercises her constitutionally protected right to terminate a pregnancy is not a 'mother.'”

— Marty Lederman (@marty_lederman) May 28, 2019

As Jeffrey Toobin said, this is a "relatively pro-choice decision," but the fight for women's right to self-determination in healthcare and reproduction is just beginning:

JEFFREY TOOBIN: This is all the fallout of Brett Kavanaugh being confirmed to replace Anthony Kennedy. Anthony Kennedy was a firm vote to support a woman's right to choose abortion. Brett Kavanaugh, we don't know his views exactly, although we do know that President Trump said he would appoint people to the bench who will vote to overturn Roe v. Wade. So in state after state, in more conservative states, they have passed laws restricting the right to abortion. Indiana is one of them. The most extreme came from Alabama just a couple of weeks ago. But there are many of these -- these laws that are now working their way through the courts. The court here decided not to engage with the Indiana law. It decided to let stand a ruling that overturned part of it. A relatively pro-choice ruling. But the question that hovers over all of this is when and whether the Supreme Court will take on to decide on the merits of one of these abortion cases because there are going to be at least a dozen of them working their way through the courts in the next year.

What if Kavanaugh & Co just refuse to hear any abortion cases when the lower courts uphold women's civil rights?

That possibility seemed to make Justice Thomas squirm.

But note this comment from Justice Thomas: “Having created the constitutional right to an abortion, this Court is dutybound to address its scope.” https://t.co/7AsP4lMM1N

— Jim Sciutto (@jimsciutto) May 28, 2019

The Supreme Court is not "duty-bound" to do squat, Clarence, except to uphold the constitutional rights of everyone including women.