Supreme Court Could Take on Fetal Burial Abortion Case

A conservative-leaning Supreme Court may decide to take on an anti-abortion law with implications for Roe v. Wade.
January 11, 2019, 4:19pm
Supreme Court Justice Brett Kavanaugh
Jabin Botsford/Pool

As soon as Friday, a conservative-leaning Supreme Court could decide to take on its first abortion-related case, giving justices the opportunity to rule on Roe v. Wade.

Justices are currently considering whether to hear a challenge to legislation Vice President Mike Pence signed into law as governor, which requires abortion providers to bury fetal remains and forbids doctors from administering abortions if they believe their patient is terminating a pregnancy on the basis of the fetus' sex, race, or ability.


In 2017, Indiana District Court Judge Tanya Walton Pratt ruled the law was unconstitutional, and this past October, a federal judge on the Seventh Circuit Court of Appeals upheld her ruling, deeming the law a clear violation of women's right to abortion.

"The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason," Judge William J. Bauer wrote in his decision at the time.

A week after Justice Brett Kavanaugh's confirmation, the State of Indiana filed a petition with the Supreme Court.

Around the same time, Supreme Court justices declined to hear a different case with implications for Roe v. Wade, one that would have allowed them to rule on states' rights to withhold Medicaid funds from Planned Parenthood clinics.

Since Kavanaugh took the bench in October, advocates on both sides of the abortion debate have anticipated—either with exhilaration or with great anxiety—the moment a Supreme Court with two Trump-appointed justices choose to weigh in on the landmark abortion rights decision. "We urge the court to grant the people of Indiana a hearing on these landmark pro-life laws,” Marjorie Dannenfelser, the president of anti-abortion group Susan B. Anthony List, told the Washington Post this week. “The cruelty of abortion runs contrary to who we are as Americans.”


But should Supreme Court justices turn down this latest opportunity, there will be plenty more to come: A September report from Planned Parenthood found that as many as 13 abortion-related cases could come across Kavanaugh's desk in the first year of his tenure alone, providing the court with ample opportunity to make good on President Donald Trump's campaign promise to overturn Roe v. Wade, if they so choose.

The conservative bent of the court could soon become more pronounced. After Justice Ruth Bader Ginsburg missed oral arguments this week—for the first time ever in her 25-year career on the court—due to flagging health, the White House reportedly began reaching out to conservative activist groups to suggest possible replacements. Another vacancy on the Supreme Court would mean a chance for Trump to appoint the third justice of his presidency, forever shaping the court for decades to come.

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Reproductive rights activists know well what's at stake, both in terms of the Indiana case and the potential abortion-related cases the Supreme Court may hear in the near future.

“The State of Indiana’s attempt to take this case all the way to the Supreme Court is part of the continued assault on women’s constitutional rights being waged across the country," Jane Henegar, executive director of ACLU of Indiana said in October, when the state filed its appeal. "Deeply personal decisions about abortion should be made by women in consultation with their loved ones and health care professionals—not by politicians."