The Supreme Court on Tuesday decided in favor of a provision in a 2016 Indiana law that mandates the remains of an aborted fetus must be cremated or buried, overturning a lower court’s decision objecting to the provision.
“We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion,” the Supreme Court wrote.
Then-Governor Mike Pence signed the law.
“A society can be judged by how it deals with its most vulnerable — the aged, the infirm, the disabled and the unborn,” Pence said at the time.
“I would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains,” Justice Clarence Thomas wrote in support of the provision.
The Court did, however, uphold the Seventh Circuit’s injunction against the law’s prohibition of abortions sought on the basis of the sex, race, or disability of the unborn child, drawing a rebuke from Thomas.
“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. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.”