Supreme Court

What to Make of the Supreme Court's Latest Abortion Case

SCOTUS sidesteps the hard questions in Box v. Planned Parenthood of Indiana and Kentucky.

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This week the U.S. Supreme Court found a way to sidestep the bitter debate over abortion. On Tuesday the Court issued an unsigned opinion in the case of Box v. Planned Parenthood of Indiana and Kentucky. At issue was a ruling by the U.S. Court of Appeals for the 7th Circuit which invalidated two Indiana provisions related to abortion. The first provision regulated how abortion providers must dispose of fetal remains. The second provision outlawed sex-, race-, and disability-selective abortions. Indiana appealed this loss to SCOTUS.

The Supreme Court, which skipped the usual oral argument stage, directly overturned the 7th Circuit's decision to strike down the fetal remains law. At the same time, the Court declined to take up Indiana's appeal of its loss on the selective abortion law. The upshot is that the first law was upheld by the Supreme Court while the second law remains invalidated by the 7th Circuit.

Also notable is the fact that the fetal remains law was upheld in a mostly non-contentious way, which is not what you would normally expect in a case that deals with such a hot-button topic. But as the Court explained in its per curiam opinion, Planned Parenthood "never argued that Indiana's law creates an undue burden on a woman's right to obtain an abortion." Instead, the organization "litigated this case on the assumption that the law does not implicate a fundamental right and is therefore subject only to rational basis review."

Because rational basis review is the Court's most deferential standard—indeed, the rational-basis test is often likened to a rubber stamp in favor of the government—the law passed muster. Case closed.

What the Court did not say was whether the outcome might have been different if Planned Parenthood had pursued a different litigation strategy under a different precedent that requires a more exacting standard of judicial scrutiny—namely, the precedent set in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which says that the government may not impose an "undue burden" on a woman's right to obtain an abortion.

Put differently, the Supreme Court avoided the thorniest questions surrounding the case and found a way to settle the matter without provoking a broader showdown over its own abortion precedents. That fight was effectively postponed until an unknown future date.

Not every member of the Court was entirely satisfied with this compromise. Justice Sonia Sotomayor wrote briefly to say that she thought the Court should not have taken up any part of the case. Justice Ruth Bader Ginsburg also wrote separately to express that same disapproving view, arguing that "it is 'a waste of th[e] [C]ourt's resources' to take up a case simply to say we are bound by a party's 'strategic litigation choice' to invoke rational-basis review alone." Ginsburg also suggested that both Indiana laws deserved to be struck down. On the other side of the bench, Justice Clarence Thomas wrote a concurring opinion which compared abortion to eugenics. The other six justices apparently supported the Court's unsigned compromise opinion.

Earlier this month I wrote a column titled, "The Supreme Court Probably Won't Kill Roe Yet." I think I'll stick with that prediction.

NEXT: Review: Centuries of Sound

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  1. On what basis did Ginsburg think the fetal remains law should be overturned? Apparently Planned Parenthood’s freedom of action is sacrosanct in a way no other corporation would be in Ginsburg’s mind.

    1. As far as I can make out (her dissent is very short), her explanation is entirely procedural. She thought that SCOTUS should not have taken the case for review, because the trial court applied the wrong standard, and it was a waste of SCOTUS’s resources to decide the appeal without making the trial court apply the (in her view) correct standard. That’s what I think she meant, anyway.

  2. What exactly ***IS*** this “rational basis” upon which Government Almighty predicates that “fetal remains” must be given respectful burials in a properly licensed grave site, etc.? Is is perhaps that Earthly Governments Almighty have coordinated with Government Almighty in the beyond-the-beyond, and determined that the souls of the Dearly Departed fetal remain’s souls can NOT be allowed to pass the Pearly Gates w/o the “proper papers please”? And the “proper papers please” can ONLY be issued after a respectful burial?

    Inquiring minds want to KNOW, dammit!!!

    1. It’s not exactly ‘respectful burial’.

      It’s respectful burial OR cremation.

      And cremation is the fate of pretty much all human tissue waste.

      Unless someone can sell it.

      The law was aimed at the practice of selling fetal parts.

      Selling fetal parts without providing payment to the person who made them.

      1. The laws regarding cremation of bodies are different than those regarding incineration of tissue waste. Cremation is generally a more expensive process

      2. Persons

  3. Also I do have to wonder, HOW will Government Almighty mandate that clumps of 1, 2, 4, 16, 32 or so cells be captured and given respectful burials, when “abortion drugs” are used? Are we the taxpayers going to have to “pony up”, in the style of the Manhattan Project, for hundreds of billions (or more) of new-tech development? So that the R-U-Aborted-Yet pill can be accompanied by a swarm of nanobots to go and “capture the flag”, flag being said-sad clump of cells? And then somehow transport the clump of cells to the outside of the body, so that it may be properly given a respectful burial? All to avoid possibly being consigned to Hell (for lack of a properly respectful burial) by the punitive Government Almighty of the beyond-the-beyond?

    If’n ye think that perhaps this calls for a possible policy change in the beyond-the-beyond, then the ONLY perhaps-valid contact point I have for you to send your protest to is as follows:

    Satan J. Trump
    1600 Pennsylvania Avenue NW.
    Washington, D.C. 20500”

    1. That is a herring of incredibly vivid red hue.

    2. Now perhaps you are wondering, what specific, concrete policy change could we suggest to Satan J. Trump, to get Heaven-Purgatory-Hell-Yada-Yada to come around on this issue?

      Well, see https://reason.com/2019/05/31/trump-announces-escalating-tariff-up-to-25-percent-on-mexican-goods/ for reference… Mexico isn’t coming to heel, so we tax American consumers of Mexican goods to punish Mexico!

      Now I am on thin ice here, theology-wise, because I am not sure exactly where the sunshine comes from. But I’m sure it’s gotta be in there somewhere; Heaven-Purgatory-Hell-Yada-Yada…

      So then, until Heaven-Purgatory-Hell-Yada-Yada comes around, here, we can suggest to Satan J. Trump, that we should tariff-tax the incoming sunshine that illuminates the USA!!! THAT will show them!!!

  4. I am getting continually annoyed at the Supremes. They need to not sidestep these cases and stop kicking the can down the road.

    1. Why are you annoyed with the Court. They have spoken in cases after case supporting the basic argument of Roe vs Wade. They have allowed restrictions and have set precedent. It seems like your frustration is that they have not repealed Roe vs. Wade and as the authors writes they seem unlike to make that change, So why not be annoyed with lawmakers, primarily male, who will not accept the Court’s opinion?

      1. You know who petitioned to overrule the *Roe* decision? A woman by the name of Norma McCorvey – the “Roe” in Roe v. Wade.

        http://www.cnn.com/2004/LAW/09/14/roe.v.wade/

      2. M4E. If that is what they wish to do, then they should do it. Same with the baker case. They are being asked to set clear precedent, and they are refusing.

        They are ignoring the hard decisions by making their rulings on relatively unimportant procedural matters and leaving the actual questions being asked unanswered.

    2. Be patient. Assuming they’re going to reverse Roe, the majority knows there are better cases coming down the pike for doing that. Plus, by the time those cases get to SCOTUS, Trump may have made his third SCOTUS appointment.

      1. Replacing either Ginsberg or Roberts would probably do the trick.

        1. My money’s on Ginsberg, for obvious reasons.

  5. I don’t get why Republicans are so eager for a bunch of poor women to start pumping out more unwanted babies. To further strain the welfare state?

    1. The notion that women should be allowed to murder children because they’re unwanted is proof of moral failure and part of the reason why banning abortion is going to be the 21st century equivalent of abolitionism.

      1. Uh huh.

        So women who get abortions must be prosecuted for first-degree murder and punished accordingly?

        Or tell me why not.

        1. Tony, I would rather start by prosecuting and executing you.

          How would that be?

          1. You’d have to catch me first. And I never go out without buttering myself.

        2. If you believe a fetus is a full human being, then yes, the Supreme court has declared first degree murder of a child is punishable by execution. It’s internally consistent.

          I have come to the conclusion that most Pro-Choice people are willfully ignorant of the actual reasons that Pro-Lifers feel the way they do. Seriously, I agree with you, but you are so stupid.

          The argument “If a child isn’t wanted, you should kill it” is so horrible that that it was the motivation of the VILLAINS in Hanzel and Gretel half a millennium ago. Seriously, listen to yourself. Would you allow a person to shoot their preschooler because they lost their job? That’s not internally consistent.

          I suggest you stick to arguing that it’s just a batch of cells. At least it is an argument that doesn’t make you look outright evil.

          1. Well, at least tell us, what should be the punishment for killing a clump of 1, 2, 4, 16, or 32 cells? PLEASE tell us?

            1. Nothing, because “killing” isn’t necessarily the same as “murdering”. We care about the later, obviously. Whether its 32 cells or 32 million cells, its still human.

              The punishment should fit the crime.

    2. http://freakonomics.com/2005/05/15/abortion-and-crime-who-should-you-believe/

      Abortion and crime: who should you believe?

      OK then… My hypothesis would be that many conservatives get “war boners” and “punishment boners” when contemplating shooting up armies of raiding zombies… Or unwanted, abused children who have grown up to become resentful, violent criminals. They all make good targets for shooting practice! And for feelings of justified violence. Violence is bad, we all know… Except for righteous super-heroes who use violence against the bad guys. Even HollyWeird liberals know THAT, when it comes to making movies!

      So, short answer, conservatives dislike abortion, because is reduces the number of targets for their self-righteous violence!

      1. People don’t get that legal abortion is one of the most socailly beneficial innovations of modern civilization. And fat white Republican men will never stop procuring them for their mistresses, even if they have to send them to Mexico.

        So your theory is as good as any I can come up with.

      2. Nope, conservatives dislike abortions because we believe its murder. Simple as that.

  6. “The second provision outlawed sex-, race-, and disability-selective abortions. Indiana appealed this loss to SCOTUS.”

    I am intrigued by this provision and wondering how much thought went into the formation of the law. First race is not a scientific concept but rather a social construct. So how do you determine the race of a fetus? I don’t know of any test and I not sure where this law would apply. In the case of sex selective abortions there can be a very good reason. A couple with a family history of severe sex linked conditions (such as hemophilia) may choose to have only female children. I don’t think it is difficult to support their choice. As for other reasons for sex selection, yes it might be reprehensible, but how are you going to prove it. You get one doctor to test the fetus’ sex and another to do the abortion. Again the law seems poorly designed. Finally disability selective, again I can see cases where I support the women’s/couple’s choice and other I would not. So I think it is best left to the people closest to the decision the women/couple, their doctor, and other support people. I think supporting families with disabled children will do more than this law.

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