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The Supreme Court on Tuesday sidestepped part of a major abortion case, a new sign that the court is not yet moving aggressively to test the constitutional right to abortion established in Roe v. Wade. In an apparent compromise in a case from Indiana, the justices turned down an appeal that asked the court to reinstate a state law banning abortions sought solely because of the sex or disability of a fetus. But the court upheld part of the same law requiring abortion providers to bury or cremate fetal remains. (Liptak, 5/28)

The court’s unsigned opinion appeared the product of a delicate compromise over perhaps the most divisive issue on the docket—one that has resonated more loudly since the majority’s position on abortion fell into question following the retirement last year of Justice Anthony Kennedy, a conservative who had joined liberals to reaffirm women’s constitutional right to end their pregnancies. With President Trump’s appointment of Brett Kavanaugh to the Kennedy seat, opponents of abortion rights have accelerated efforts to restrict the procedure, with some hoping the court may be ready to overrule Roe v. Wade, the 1973 decision recognizing abortion rights. (Bravin, 5/28)

Tuesday's unsigned opinion in the Indiana case appeared to be a compromise that allows the court to tread water on abortion for now. It preserves the status quo and, indeed, even allows for a possible challenge to the burial and cremation provision of the law on different grounds in the future. Justices Ruth Bader Ginsburg and Sonia Sotomayor would have struck down both provisions of the law. (Totenberg and Montanaro, 5/28)

Tuesday’s outcome, after weeks of internal debate, suggests that the justices are inclined to move slowly and cautiously on the abortion issue and that Chief Justice John G. Roberts Jr. and his fellow conservatives are not ready to directly confront abortion rights, at least during a presidential election year. Had the high court agreed to hear the Indiana case, it would have been argued in the fall and decided by June 2020. The decision not to hear Indiana’s appeal provides further evidence that the justices will not be eager to consider the even more sweeping abortion bans recently adopted by Alabama and other conservative states. (Savage, 5/28)

Tuesday's order also noted that Justice Sonia Sotomayor would have rejected the appeals for both laws, upholding the lower court rulings. Justice Clarence Thomas wrote in a lengthy opinion that he "would have thought it could go without saying that nothing in the Constitution or any decision of this court prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains." (Thomsen, 5/28)

Ginsberg, who concurred in part and dissented in part, wrote that the fetal remains language goes against prior precedent. “This case implicates ‘the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State,’” she wrote, referring to Planned Parenthood of Southeastern Pa. v. Casey, a 1992 abortion case. (Raman, 5/28)

Senate Majority Leader Mitch McConnell said on Tuesday that Republicans would fill an opening on the Supreme Court if there were a vacancy next year — in contrast with 2016, when he stated his fierce opposition to confirming a justice in the last year of a president’s term. At a Paducah (Kentucky) Area Chamber of Commerce lunch, McConnell was asked about how he would handle an opening if a justice were to die in 2020, when President Donald Trump is up for reelection. McConnell confidently replied, “Oh, we’d fill it.” (Choi, 5/28)