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Why Supreme Court ruling on Ind. abortion law reflects deep division

The legal fight over abortion rights in the U.S. took a turn at the Supreme Court Tuesday. Justices ruled on an Indiana law stipulating how abortion providers dispose of fetal remains and prohibiting abortions performed on the basis of the gender, disability or race of the fetus. Lisa Desjardins talks to the National Law Journal’s Marcia Coyle about what the ruling might mean.

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  • Judy Woodruff:

    But first: new developments today in the legal fight over abortion rights in the United States and how it took a surprise turn today at the U.S. Supreme Court.

    Lisa Desjardins has that.

  • Lisa Desjardins:

    For all of the recent attention on this issue, there is one key question that looms over the debate over abortion rights and access: What will the Supreme Court do?

    Today, new clues, maybe. The justices resolved a legal dispute over abortion restrictions in Indiana today.

    And Marcia Coyle of "The National Law Journal," as always, is here with us to break it all down.

    Marcia, a fascinating ruling here today. The justices broke this law into two parts. Let's do that here as well to help our viewers out.

  • Marcia Coyle:

    OK.

  • Lisa Desjardins:

    First, let's start with what the justices concluded on the aspect of the law that dealt with disposing of fetal tissue from abortions.

  • Marcia Coyle:

    OK. This is the Indiana law that was signed by then-Governor Mike Pence in 2016.

    The part we're talking about said that abortion clinics have to dispose of fetal remains either by cremation or burial. And the court today said that it had earlier said in other opinions that states have a legitimate interest in the proper disposal of fetal remains.

    The lower court in this case, according to the justices, erred in failing to recognize that legitimate interest. And the only question that was left for the Supreme Court, the justices said, was whether the law was rationally related to the state's interests. The justices found, yes, it was, and they upheld that part of the law.

  • Lisa Desjardins:

    So, going forward, in the state of Indiana now, abortion clinics will be required to dispose, according to their law.

  • Marcia Coyle:

    That's correct.

  • Lisa Desjardins:

    The justices ruled the other way on the rest of the Indiana law.

    And that dealt with, Indiana was attempting to ban any abortions that were based on the gender, disability, or race of the fetus.

  • Marcia Coyle:

    That's correct. The law made it illegal for an abortion provider to knowingly perform an abortion on those bases.

    And here the court really didn't do the opposite. What the court did was, it said it wasn't going to decide, because only one court, the court in this particular case, had considered that issue as to whether that kind of a prohibition was constitutional.

    And the Supreme Court said its ordinary practice is to wait until a number of additional courts consider the issue. The justices like these issues to percolate in the lower courts, so they have the benefit of the analysis of the lower courts before they actually jump in.

  • Lisa Desjardins:

    So, then the effect of that decision to not rule essentially on that aspect is that the Indiana law in this regard is overturned, doesn't go into place, is that right?

  • Marcia Coyle:

    That's right. That part of the law has been blocked by an injunction by the lower court, and the injunction will still stand as to that part.

  • Lisa Desjardins:

    So much interesting language in this. And notably Justice Thomas wrote a 20-page concurring opinion.

    I want to read some of that here. He spoke at length, he wrote at length about eugenics. He's concerned about eugenics and abortion.

  • He wrote:

    "Although the court declines to wade into these issues today, we cannot avoid them forever . Having created the constitutional right to an abortion, this court is duty-bound to address its scope."

    Noted, he says having created that constitutional right. Can you talk about his language and also that of Justice Ginsburg in response?

  • Marcia Coyle:

    Right. OK.

    You're right. It was a 20-page concurring opinion. The actual opinion of the court was only three pages. And he used his concurrence to trace — basically, he tied together birth control, abortion, and eugenics, and he said that abortion in particular was rife, his words, with the potential for eugenic manipulation.

    He used the term supposed constitutional right to abortion in part of his opinion. Justice Ginsburg, she would have turned away Indiana's appeal in its entirety, and she used constitutionally protected right of a woman to have an abortion.

    And she also called out Justice Thomas in a footnote. He had spoken about the mother's right to terminate her pregnancy. Justice Ginsburg said, a woman who terminates — who exercises her constitutionally protected right to terminate her pregnancy is not a mother.

    So there is this battle over the language, and it does reflect how they view the constitutional right.

  • Lisa Desjardins:

    Finally, what does this tell us about where the court is on this very large issue?

  • Marcia Coyle:

    Well, I think it shows once again that they are divided, that there are justices like Justice Ginsburg — and Justice Sotomayor also would have turned away Indiana's appeal in its entirety — who view these type of restrictions as an undue burden on a woman's right to an abortion.

    Justice Ginsburg used that term. That is the current test for whether state restrictions violate the constitutional right to an abortion. On the other hand, you have someone like Justice Thomas, who obviously feels just as deeply that the right to an abortion is made up, that it doesn't have a constitutional basis. It was made up by the Supreme Court.

    So we have a divided Supreme Court, and we will all have to wait until more cases come. We know they're coming. In fact, there are right now at the Supreme Court three additional abortion-related cases. Any one of them could possibly bring up Roe v. Wade if the justices are so inclined.

    And also in the pipeline, there is the Alabama and the Missouri recent bans. They will take a while to get to the Supreme Court, but they will come one way or another.

  • Lisa Desjardins:

    When we hear about those cases, you will be here to talk to us about them. And we're glad.

  • Marcia Coyle:

    I hope so.

  • Lisa Desjardins:

    Marcia Coyle of "The National Law Journal," thank you.

  • Marcia Coyle:

    My pleasure, Lisa.

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