Tuesday morning, the U.S. Supreme Court handed down a mixed judgment on one of the most controversial abortion laws to reach the court since it heard Hellerstedt v. Texas in 2016. Indiana's rule that all aborted fetuses in the state must be buried or cremated is back in effect, thanks to an unsigned three-page decision. Another rule, which would ban selective abortions based on disability or several other factors, remains blocked based on a lower court ruling, with the Supreme Court having declined to hear the case because there isn't yet a lower-court conflict over the law.
The Texas Legislature passed a law similar to the Indiana rule in 2017 requiring that any tissue obtained from an abortion be buried or cremated. The law, part of a raft of anti-abortion legislation known as Senate Bill 8, has never gone into effect, having been repeatedly blocked by the federal courts.
While the Texas and Indiana laws have the same end — requiring that fetuses be buried or cremated — it isn't a sure thing that the Supreme Court ruling in favor of the Indiana rule means that the Texas law is constitutional.
"The Indiana law upheld by the Supreme Court today is part of a nationwide strategy to stigmatize and increase the burdens on people seeking abortion care," Anjali Salvador, a staff attorney focused on reproductive rights for the American Civil Liberties Union of Texas, told the Observer on Tuesday. "Challengers to the Texas law have been successful in arguing that it imposes an undue burden on every person’s constitutional right to access abortion care, which is a different argument than the one considered by the Supreme Court. We are hopeful that the Court of Appeals will agree that the Texas law is unconstitutional on that basis."
The Supreme Court allowed the Indiana law to go into effect because, it decided, the plaintiffs suing to stop the law did not prove that it created a substantial barrier, or "undue burden," to women seeking an abortion in the state. In Planned Parenthood v. Casey, the legal successor to Roe v. Wade, the court ruled in an opinion written by retired Justice Anthony Kennedy that regulating an abortion was a legitimate state interest, but that those regulations couldn't create an undue burden for women.
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In Texas, those fighting the fetal burial law successfully argued at the U.S. District Court for the Western District of Texas that the requirement did create an undue burden, in part because there simply aren't facilities in the state willing to take fetal remains for burial or cremation.
"The implementation of this law, as I have pointed out, would cause and, if allowed to go into effect, would be a violation of a woman's right to obtain a legal abortion under the law as it stands today," U.S. District Judge David Alan Ezra said, according to reporters in his courtroom last September.
Texas Attorney General Ken Paxton lauded the Supreme Court's ruling, saying Tuesday that his office is ready to fight Ezra's decision at the 5th U.S. Circuit Court of Appeals.
“The U.S. Supreme Court has repeatedly recognized that states have an interest in the lives of the unborn. This latest ruling honors the dignity of the unborn and prevents fetal remains from being treated as medical waste,” Paxton said. “My office is awaiting oral argument in our state’s own fetal remains case. We look forward to demonstrating that Texas’ law is constitutional and does not impact the abortion procedure or the availability of abortion in Texas.”