Supreme Court Weighs In On Indiana Case Concerning Abortion
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We do not yet know how the Supreme Court might rule on state laws passed to restrict abortion this year. We now do know how the court addressed an abortion law passed a few years ago in the state of Indiana. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The renewed storm over abortion struck this week with repeated force. Today in Missouri, Planned Parenthood is in court over a standoff with state regulators that threatens to close down the only remaining clinic in the state that performs abortions. Yesterday, the Supreme Court, by a 7-2 vote, upheld part of an Indiana statute signed into law by Vice President Pence when he was governor. It mandates that aborted fetal remains be buried or cremated.
In contrast, the court let stand a lower court ruling that struck down a different provision that banned abortions for reasons of fetal abnormality or disability as well as abortions based on race, gender or ancestry. In an unsigned opinion, the court said it would wait for other lower court rulings before weighing in on fetal characteristic provisions. The decision appeared to be a compromise between some of the court's conservative and liberal justices.
Law professor Leah Litman of the University of California, Irvine.
LEAH LITMAN: That has a solitary benefit of keeping abortion out of the court's docket in an election year and, in that respect, makes the court look less political.
TOTENBERG: But keeping abortion cases off the docket will be difficult, as illustrated yesterday by the fire-breathing, 20-page opinion written by Justice Clarence Thomas that leveled a broadside attack against Planned Parenthood, alleging that the group's founders had been enthusiastic supporters of eugenics. He said, quote, "this case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics," close quote.
While yesterday's opinion allows the court to tread water on abortion for now, still sitting on the court's docket is a lower court ruling temporarily blocked by the Supreme Court earlier this term. At issue is a Louisiana law that's nearly identical to a Texas statute struck down by the court just three years ago. The law requires doctors who perform abortions at clinics to have admitting privileges at a nearby hospital. In 2016, the Supreme Court said that same kind of provision in Texas did nothing to promote the health of women seeking abortions but did impose barriers to abortion by imposing needless requirements on abortion providers.
In any event, legal experts on the left and right see Roe v. Wade on the chopping block. With five conservative justices on the court now, all with outspoken views opposed to Roe, it would seem the only question is whether the landmark decision will be hollowed out so that abortions are, for all practical purposes, unavailable in a dozen or more states, or whether the court will actually reverse Roe entirely, handing the abortion question completely back to the states.
George Mason University law professor Helen Alvare.
HELEN ALVARE: All of the smart money, from what I've been hearing, is that the court would prefer an orderly and bit-by-bit giving back to states more of the authority to legislate on abortion restrictions.
TOTENBERG: Professor Litman maintains that hollowing out Roe versus outright reversing it is, in practical terms, a distinction without a difference. But hollowing out Roe is better optics.
LITMAN: I think it allows the court to kind of get off easy because it doesn't create the same kind of public rallying cry and issue around which to kind of motivate voters who care about this issue to go to the polls and make some changes.
TOTENBERG: Don Verrilli, who served as the government's chief advocate in the Supreme Court under President Obama, however, predicts a direct ruling to overturn Roe in the next three to five years. He draws an analogy to the court's desire to go slow on gay marriage.
DON VERRILLI: You know, there was a sense in 2013, well, this is going to be a while because the court isn't ready to address this issue yet. But then boom - it was there two years later, and I think that's because events forced the court's hand. And I think something parallel is likely to happen here too.
TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.