Editor’s note. We’ve already run multiple posts on the Supreme Court’s handling of a 2016 Indiana law in which the Justices overruled the 7th Circuit and said the part of the law requiring humane disposal of aborted babies was permissible but chose not to address another part of the law which banned eugenic abortions. The following is an introduction to Justice Thomas’s decision that appeared at Mercatornet. It’s followed by a link to Justice Thomas’s 20 page concurrence.
We will run two other posts today as well.
On Tuesday the U.S. Supreme Court touched the third rail – abortion – and lived. In a relatively modest decision, Box v. Planned Parenthood of Indiana and Kentucky, the Court voted 7-2 to uphold a provision in an Indiana law which requires abortion providers to bury or cremate foetal remains. It refused to review another section in the same law which prohibits abortion on the basis of the sex, race, or disability of a foetus.
Justice Clarence Thomas used the opportunity to write a fascinating 7000-word history of abortion’s links with racism and the eugenics movement.
Most journalists ignored it or ridiculed it.
Mark Joseph Stern at Slate said that Thomas had attacked women who have abortions as “callous and monstrous child-killers” – a slander which Stern made up out of thin air.
Charles P. Pierce, at Esquire, wrote that Thomas had gone “bananas”. Garrett Eps, in The Atlantic, said that Thomas was part of “the far-right wing of African American conservatism.”
Adam Liptak, at the New York Times, barely mentioned it.
But Thomas was making an important point. The last time the Supreme Court addressed the issue of eugenics was in 1927 in Buck v. Bell – and it enthusiastically endorsed it. SCOTUS all-star Oliver Wendell Holmes Jr wrote for the majority: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
This appalling decision has never explicitly been overturned. Ninety-two years later, a correction is long overdue.
Justice Thomas’s impassioned essay is a first draft of a SCOTUS apology for Buck v. Bell. He highlights “the fact that abortion is an act rife with the potential for ‘eugenic manipulation’” and argues that “Having created the constitutional right to an abortion, this Court is duty bound to address its scope.”
[The full decision, most of which is Thomas’s concurrence, can be read here– https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf].