We just got the first Supreme Court abortion opinion of the Kavanaugh era

The court turned aside America's trolliest anti-abortion law in an epic punt.

CREDIT: Jabin Botsford - Pool/Getty Images
CREDIT: Jabin Botsford - Pool/Getty Images

In 2016, while serving as the governor of Indiana, Vice President Mike Pence signed an anti-abortion law that appears designed to troll liberals and give late night fodder to Fox News.

Among other things, the law banned abortions if the doctor “knows that the pregnant woman is seeking” an abortion “solely” because of the fetus’ sex, race, disability or a handful of other protected traits. As a federal appeals court explained, this law violates “well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.” Nevertheless, it’s easy to see how a Supreme Court fight over this law could have launched a thousand bad faith attacks accusing abortion supporters of racial genocide.

That fight will not come. On Tuesday, the Supreme Court handed down a brief, unsigned opinion in Box v. Planned Parenthood, which announced that the court will not hear the challenge to Indiana’s ban on selective abortions. The practical effect of this decision is that the lower court’s decision striking down that ban will remain untouched.

The Supreme Court upheld a minor provision of Pence’s trolly law, but it did so on exceedingly narrow grounds. That provision “altered the manner in which abortion providers may dispose of fetal remains” to prevent “incineration of fetal remains along with surgical byproducts.”


As the court explains in its unsigned opinion, the parties challenging the Indiana fetal disposal provision “have never argued that Indiana’s law creates an undue burden on a woman’s right to obtain an abortion.” Thus, because they never invoked the test the courts typically use to weigh anti-abortion laws, their challenge to the fetal remains provision falters.

The Box opinion is accompanied by two separate writings. A concurring opinion by Justice Clarence Thomas claims that the “use of abortion to achieve eugenic goals is not merely hypothetical.” And a partial dissent by Justice Ruth Bader Ginsburg would have left in place the lower court’s decision striking the fetal remains provision.

But it’s hard to read the majority opinion as anything less than a punt. The court avoided the most contentious issue in Box, and it disposed of the other issue on narrow grounds.

For the time being, in other words, the court does not appear eager to weigh into the abortion wars — at least with respect to this trolly law.