So what are we to make of the Court’s actions today on Indiana’s petition for certiorari in Box v. Planned Parenthood?
Let’s first review what the Court did.
The Box petition sought review on two questions: (1) whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
On the first question, the Court summarily reversed the Seventh Circuit’s determination that the Indiana law failed rational-basis review. In a brief per curiam opinion for seven justices, the Court explained that those challenging the law had never argued that it should be subject to review more demanding than deferential rational-basis review. The Seventh Circuit erred, the Court concluded, in failing to recognize precedent holding that a state has a legitimate interest in proper disposal of fetal remains. And with no explanation, the Court simply stated that Indiana’s law was rationally related to that state interest.
On the second question, the Court denied review. In the same per curiam opinion, the seven justices noted that no other court of appeals “has thus far addressed this kind of law” and that they would “follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
On this anti-eugenics question, Justice Thomas wrote a compelling 20-page concurring opinion. In that opinion, Thomas explains that the Indiana law “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” and he discusses at length how some leading abortion advocates have “endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality.”
In a brief opinion, Justice Ginsburg explains why she would have denied Indiana’s petition entirely. (For understandable reasons—see point 2 here—Ginsburg did not see fit to challenge Thomas’s account of eugenics-based support for abortion.) Justice Sotomayor likewise voted to deny on both questions.
1. The Court’s dual actions appear to be some sort of compromise between the five conservative justices, on the one hand, and Justices Breyer and Kagan, on the other. Or perhaps between some of the conservative justices, on the one hand, and the other conservative justices, along with Breyer and Kagan, on the other.
2. Whether this was a sensible compromise depends on what would have happened absent the compromise.
I would have hoped that there would have been at least four votes to grant certiorari on both questions and five votes to reverse. If so, a grant, especially on the anti-eugenics question, would have enabled the Court to make some significant incremental progress in reining in, or scaling back, Roe—and to do so in a context that strikes me as politically appealing. So I am disappointed that the Court did not grant review on that second question.
Even worse, the failure to grant review on the anti-eugenics question might signal that there weren’t five votes to reverse—or at least that some of the conservative justices deciding whether to vote to review the question were very concerned that there might not be five votes to reverse.
3. As I see it, Breyer and Kagan struck a great deal. They gave up essentially nothing, as it remains open to those challenging disposal-of-fetal-remains laws to argue that a standard more restrictive than rational-basis review ought to apply to such laws. In return, they prevented a grant of review on a question that might have begun the process of dismantling Roe.
4. Insofar as some conservative justices might, for whatever reason, find it appealing to avoid having an abortion case on the Court’s docket soon, the deal they apparently struck won’t achieve that. It’s a virtual certainty that the four liberal justices will vote to grant review of the Fifth Circuit decision (in Gee v. June Medical Services) that, but for the Court’s 5-4 vote granting an emergency stay, would have allowed a Louisiana law on hospital admitting privileges to take effect. I don’t see why it is better to have that case as the sole or lead abortion case on the court’s docket (even if the justices also grant, as I hope they do, the state of Louisiana’s conditional cross-petition on the question of third-party standing) rather than having it along with the questions that the Box petition posed.