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Supreme Court upholds one part of 2016 Indiana law, waits for another day to address second

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Justice Thomas offers powerful critique of eugenic abortion

Pro-life and anti-abortion groups had been awaiting the Supreme Court’s decision on two provisions of the 2016 Indiana abortion law for several months. This morning, the Justices avoided a decision on a law that banned abortions (in Justice Clarence Thomas’s words) “when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics”. In contrast, they overturned a decision by a three-panel of the U.S. Seventh Circuit which blocked Indiana’s law requiring the humane disposal of the bodies of aborted babies from taking effect.

With regard to the aforementioned issue, the High Court’s decision to deny certiorari indicates that it does not express an opinion on the merits of the second question presented, namely whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers. To date, only the Seventh Circuit has addressed this kind of law. In accordance with our established practice, we decline to consider petitions that raise legal issues that have not been previously addressed by additional Courts of Appeals.

In general, the Supreme Court will accept cases for review when there is a disagreement among the circuits on a particular issue. This is known as the grant of certiorari.

In his observations on the humane disposal requirement, Justice Thomas noted that

“Indiana law prohibits abortion providers from treating the bodies of aborted children as ‘infectious waste’ and incinerating them alongside used needles, laboratory-animal carcasses, and surgical byproducts. …I 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.”

The order further stated that respondents had never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion.

In the context of abortion, the term “undue burden” is functionally equivalent to the phrase “Open Sesame.” In the event that a court determines that a law exerts an “undue burden” on a woman’s right to abortion, that law will be deemed invalid.

As observed by National Right to Life earlier today, Justice Thomas wrote a 20-page concurrence in which he expounded at length on the view that laws such as Indiana’s HEA 1337 “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” The following samples, which begin on page 13, the second page of Justice Thomas’ concurrence, illustrate the points he makes.

Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die. In other words, this law and others like it advance the state’s compelling interest in preventing abortion from becoming a tool of modern eugenics.

Then there is the key transition on which most of the consensus is based:

The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for the legalisation of abortion in America were laid during the birth control movement of the early 20th century. This movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognised the eugenic potential of her cause.

{By the way, as we have discussed dozens of times, the “best” people were fervent eugenicists.}

Another key point. Justice Thomas observes

While Sanger believed that birth control could prevent “unfit” people from reproducing, abortion could prevent them from being born in the first place. Many eugenicists therefore supported the legalisation of abortion, and abortion advocates – including future Planned Parenthood president Alan Guttmacher – supported the use of abortion on eugenic grounds. Technological advances have only increased the eugenic potential of abortion, as abortion can now be used to eliminate children with undesirable characteristics, such as a particular gender or disability.

After a comprehensive examination of eugenics in the United States, Justice Thomas reaches the following conclusion

The Court’s decision to allow the case to proceed should not be interpreted as an endorsement of the decisions below. Establishing a constitutional right to abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalise the views of the 20th century eugenics movement. … Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created a constitutional right to abortion, the Court is obliged to address its scope. In this context, it is easy to understand why the District Court and the Seventh Circuit looked to Casey [the 1992 Supreme Court case] to resolve an issue that it did not address. Where else could they turn? The Constitution itself is silent on abortion.


Daniel Miller is responsible for nearly all of National Right to Life News' political writing.

With the election of Donald Trump to the U.S. presidency, Daniel Miller developed a deep obsession with U.S. politics that has never let go of the political scientist. Whether it's the election of Joe Biden, the midterm elections in Congress, the abortion rights debate in the Supreme Court or the mudslinging in the primaries - Daniel Miller is happy to stay up late for you.

Daniel was born and raised in New York. After living in China, working for a news agency and another stint at a major news network, he now lives in Arizona with his two daughters.

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