“The ground is shifting” on laws preventing abortionists from knowingly aborting a child because of a prenatal diagnosis of Down Syndrome

By Dave Andrusko

David Crary is a well-respected reporter for the Associated Press who writes on abortion given half a chance. Well, like all political reporters, Mr. Crary has recently been the beneficiary of several whole chances. 

First, after months of consideration, the Supreme Court Monday agreed to hear the state of Mississippi defend its abortion law against a decision by lower courts to strike it down. You can hear the hoards of pro-abortion sky-is-falling, Chicken Littles as they recycle the canned hyperbole they trot out every time the justices hear an abortion case.

Although he briefly alludes to the Supreme Court case, in this instance, Crary is writing about “Down syndrome abortion bans gain traction after court ruling” which supporters hope the Supreme Court will someday hear. 

Crary notes early on, “2021 has been a breakthrough year for legislation in several states seeking to prohibit abortions based solely on a prenatal diagnosis of Down syndrome.”

The subhead to his story is helpful and indicative of why such bills may play an outsized role in helping to re-think permissive abortion:

Governors in Arizona and South Dakota recently signed such bills into law, and similar measures are pending in North Carolina and Texas. Most significantly, a federal appellate court said Ohio could begin to implement a 2017 law that has been on hold.

To be clear, everyone including supporters, understands, as Crary makes clear, that these laws aren’t self-executing. Typically they forbid abortionists from taking the life of an unborn child whose mother wants the abortion because of a prenatal diagnosis of Down syndrome. The abortion-minded woman and the abortionist can dance around the reason for her request and the abortionist could plead that he didn’t “know” the diagnosis was the motivating factor.

But there are still many reasons to pass such laws. For example, Crary quoted Katherine Beck Johnson, a lawyer with the Family Research Council, who said 

“But even if it’s hard to enforce, it’s worth being passed,” she said. “It’s important for a state to show they’re not supporting eugenics; they want to remove the stigma of people who have Down syndrome.”

Put another way, laws are, as we all know, teachers. As one pro-life professor (quoted by Crary) suggested, “The laws could help shape public opinion, drawing attention to the high percentage of abortions in cases of a Down syndrome diagnosis.”

Later in his story, Crary gives additional details about the legal landscape:

In past years, courts routinely blocked state laws seeking to ban abortion if it was based on a diagnosis of Down syndrome or other fetal anomalies. Trump’s judicial appointments to lower-level federal courts as well as the Supreme Court has altered the legal landscape.

“It feels like the ground is shifting,” said Elizabeth Nash, who tracks state legislation for the Guttmacher Institute, a research group that supports abortion rights.

Nash noted that court rulings already have allowed enforcement of the laws in Missouri, Tennessee and Ohio.

There is much more to the story which you can read here. Unfortunately, however, Crary does not address at all the impact of Supreme Court Justice Clarence Thomas’ concurring opinion in the 2019 case of  Box v. Planned Parenthood of Indiana and Kentucky. Justice Thomas opened eyes, ears, and hearts to the eugenic implications. 

While he concurred with the High Court’s decision to deny certiorari on the question of Indiana’s “Sex Selective and Disability Abortion Ban,” Justice Thomas used his 20-page concurrence to note that laws like Indiana’s “promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

As Justice Thomas wrote,

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. She emphasized and embraced the notion that birth control “opens the way to the eugenist.”

He also noted that Planned Parenthood, the nation’s largest abortion provider, has its roots in the eugenics movement:

But Sanger’s arguments about the eugenic value of birth control in securing “the elimination of the unfit,” … apply with even greater force to abortion, making it significantly more effective as a tool of eugenics. 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. Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.

This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics. Even after World War II, future Planned Parenthood President Alan Guttmacher and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality.