Justice Thomas offers powerful criticism of eugenic abortions
By Dave Andrusko
Pro and anti-life groups had waited for months for the Supreme Court to address two provisions of a 2016 Indiana abortion law. This morning the Justices punted 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” while overturning 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.
Regarding the former, in denying certiorari, the High Court wrote, “Our opinion likewise expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
Generally speaking, the justices will take up cases [“grant certiorari”] when more than one circuit court takes up an issue and there is a disagreement among the circuits.
Of the humane disposal requirement, Justice Thomas observed
“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 added, “We reiterate that, in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion.”
In the abortion context, “undue burden” is the functional equivalent of “Open Sesame.” No law will stand if a court finds it exerts an “undue burden” on her right to abort.
As National Right to Life observed earlier today, Justice Thomas wrote a 20 page concurrence in which he waxed eloquent that law’s such as Indiana’s HEA 1337 “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Here are a few samples which begin on page 13 which is the second page of Justice Thomas’ concurrence:
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. Put differently, this law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.
Then the key transition on which most of the concurrence elaborates:
The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause.
{By the way, as we have discussed dozens of times, the “best” people were fervid eugenicists.}
Another key point. Justice Thomas observes
Whereas Sanger believed that birth control could prevent “unfit” people from reproducing, abortion can prevent them from being born in the first place. Many eugenicists therefore supported legalizing abortion, and abortion advocates—including future Planned Parenthood President Alan Guttmacher— endorsed the use of abortion for eugenic reasons. Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.
After a probing overview of eugenics in the United States, Justice Thomas concludes
The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize 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 the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey [the 1992 Supreme Court case] to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
NRL News Today is reposting a story from last December which gives a detailed background to how the laws made their way to the Supreme Court.