On May 28, 2019, the U.S. Supreme Court decided Box v. Planned Parenthood, No. 18-483, holding that government has a legitimate interest in the proper disposal of fetal remains, and this interest is rationally served by prohibiting abortion providers from disposing of such remains as surgical waste.
Indiana law “excluded fetal remains from the definition of infectious and pathological waste, thereby preventing incineration of fetal remains along with surgical byproducts.” The law allowed “simultaneous cremation of [multiple] fetal remains, which Indiana does not generally allow for human remains.” The law addressed only “the manner in which abortion providers may dispose of fetal remains,” and “did not affect a woman’s right under existing law to determine the final disposition of the aborted fetus” if she wished to do so.
Planned Parenthood of Indiana and Kentucky sued to enjoin the law. Planned Parenthood did not argue that the “law creates an undue burden on a woman’s right to obtain an abortion,” but contended that it failed rational-basis review. The Seventh Circuit agreed, holding “that Indiana’s stated interest in the humane and dignified disposal of human remains was not legitimate,” and in any event was not served by the statute “because the law preserves a woman’s right to dispose of fetal remains however she wishes and allows for simultaneous cremation.”
The Supreme Court reversed, stating that it “has already acknowledged that a State has a legitimate interest in proper disposal of fetal remains,” and that “Indiana’s law is rationally related to” that interest, “even if it is not perfectly tailored to that end.” The Court declined to review the validity of a second provision of the Indiana law, which prohibited “the knowing provision of sex-, race,- and disability-selective abortions.” The Court stated that its opinion “does not implicate our cases applying the undue burden test to abortion regulations,” and “expresses no view on the merits of” challenges to similar fetal-remains laws “under the undue burden standard.”
The opinion of the court was per curiam. Justice Thomas issued a concurring opinion. Justice Ginsburg issued an opinion dissenting from the Court’s grant of certiorari to review the fetal-remains provision. Justice Sotomayor dissented without opinion from the grant of certiorari.