The doom of Roe v. Wade appears almost inevitable. The accession to the Supreme Court of Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh, who both passed a conservative vetting process with flying colors, makes it virtually certain that the 1973 decision will be modified or reversed. But when the counterrevolution will happen is unclear. Republican-controlled state legislatures are challenging precedents left and right, culminating in Alabama’s recent law banning almost all abortions from the moment of conception.
As though determined to keep the suspense level high, the Supreme Court dealt with abortion policy for the first time in its current configuration and avoided any precedent-setting or -shattering actions. The Court had repeatedly put off a decision on efforts by the state of Indiana to seek relief from a Seventh Circuit judgment striking down a law regulating disposal of fetal remains after an abortion, and banning abortions altogether when a provider has reason to believe the woman requesting the service was motivated by eugenics — i.e., unhappiness with the gender, race, or disability of the fetus.
Today the Court took the unusual step of summarily — without oral arguments or briefs, in an unsigned order — reversing the Seventh Circuit’s ruling on the fetal-remains portion of the Indiana law, and declining to review the abortion-motive provisions of the same law. In doing so, SCOTUS sidestepped an opportunity to review its reproductive rights precedents, though in concurring with the decision, the most outspokenly anti-Roe justice, Clarence Thomas, warned that the Court would have to weigh in on such questions sooner or later. Justices Ginsburg and Sotomayor dissented from the summary reinstatement of Indiana’s fetal-remains burial or cremation requirements, with Ginsburg writing that they touched on protected reproductive rights and thus required strict scrutiny. The Court’s stated rationale for dodging the abortion-motive restriction was that no other Circuit had ruled on the subject, making a SCOTUS review discretionary. That was a very deliberate dodge, and could indicate serious divisions among the justices — particularly within the five-justice conservative bloc — about how to proceed in this area.
Though the decision sent few signals, there were some smoldering expressions of judicial tension in the concurring opinions. Justice Thomas chose to write up an inflammatory history of pro-eugenics thinking in the modern reproductive rights movement. And there was atypical sniping between Thomas and Ginsburg in their footnotes:
The range of abortion restrictions many states are now enacting gives SCOTUS conservatives a wide range of opportunities to chip away at reproductive rights; a Louisiana law placing debilitating restrictions on abortion providers could be their next test.