The majority has managed to deal with a contentious issue by not really dealing with it at all.
“There’s a fundamental principle of law that derives from Sherlock Holmes,” Justice Samuel Alito mused from the bench last November, “which is the dog that didn’t bark.”
Alito was referring to “The Adventure of Silver Blaze,” in which a watchdog at a stable did not bark at an intruder because, as Holmes deduced, “the midnight visitor was someone whom the dog knew well.” There are, however, other reasons why a watchdog might not bark. The dog might be asleep, or well fed and torpid, or muzzled. Or perhaps the dog might have muzzled itself.
Self-muzzling seems to be what the Supreme Court has done so far this term in the contentious area of abortion, now boiling over in the states. In February the Court granted a temporary stay of a Louisiana abortion law that would have put five of the state’s six abortion providers out of business. But Chief Justice John Roberts, who cast the deciding vote, gave no hint of how he would vote on the law when the Court gave the case full consideration. And on Monday, the Court dodged the validity of an Indiana statute that required abortion clinics to dispose of an aborted fetus in much the same manner as the body of a dead person; and, second, required doctors to tell women seeking abortion that state law forbade choosing abortion “solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.”
Michael Wear: The abortion debate is no longer about policy
In a remarkable feat of procedural legerdemain, the Court made the issues disappear. It decided that the “fetal remains” provision could take effect because the court below had used the wrong standard to decide the issue, and continued an injunction on the “non-discrimination” law—while claiming to express no view on its validity.
The law at issue in Box v. Planned Parenthood of Indiana and Kentucky was passed in 2016 and signed by then-Governor Mike Pence, who said at the time that it would “ensure the dignified final treatment of the unborn and prohibit[] abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability, including Down syndrome.” Soon after, a panel of the Seventh Circuit struck down both provisions. The “non-discrimination” provision, it reasoned, contravenes 1992’s Planned Parenthood v. Casey, which held that state laws may not impose an “undue burden” on a woman’s choice. The Casey Court explained that, under that standard, abortion before viability is the pregnant woman’s decision alone; the state does not get to evaluate her reasons.
“The [non-discrimination] provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose,” the Seventh Circuit panel majority wrote. Thus, they “are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.
