By Dave Andrusko
Over the years in frequent conversations at the annual National Right to Life convention [this year’s begins June 25!], one topic friends and I have often mulled over is what are the issues about which the anti-life crowd is either most sensitive or feels most vulnerable (they are not necessarily the same).
There are many, including laws that ban aborting children who are capable of experiencing the horrific pain of being torn apart. Likewise for stopping abortions that dismember living unborn children. Those laws have passed in a growing number of states.
Another that has yet to become a “face” of the abortion debate is the blatant sexism of aborting babies because they are the “wrong” sex—females—or because the unborn baby has the audacity to have a genetic anomaly, most often Down syndrome.
One pro-life legislator aptly described these as “discrimination-motivated abortions.”
The good news, however, is that thanks to pro-life state legislatures and the insightful writing of Supreme Court Justice Clarence Thomas, that lull in public awareness is beginning to come to an end.
Judges wholly unsympathetic as well as those more disposed to our position are made hugely uncomfortable by what are, plainly, eugenic abortions. An older example, from a couple of years ago, is reliably pro-abortion U.S. District Judge Howard F. Sachs who had prevented most of Missouri’s strong pro-life legislation, HB 126, from going into effect.
The most high visibility component Judge Sachs invalidated was a ban on abortions performed at or after eight weeks of pregnancy. But, intriguingly, at first Judge Sachs did not ban enforcement of Missouri’s ban on abortions for the reasons of race, sex, or that the unborn child may have Down syndrome.
In his 11-page opinion, Judge Sachs wrote
The most challenging and novel of the issues in this case is the state’s attempt to prohibit all abortions for special reasons that are deemed contrary to public policy. … For present purposes I assume that almost everyone in our culture would be appalled by a pregnant woman’s abortion of a fetus identified as female because the woman or the family prefers that she give birth to a boy. The legal issue is whether the public, through legislation, has a right to intervene and prohibit such a discriminatory or ‘selective’ abortion” before viability.” [My underlining.]
Alluding to Justice Thomas very thoughtful concurrence in a similar case in 2019 (which the justices declined to address), Judge Sachs observed,
“Justice Thomas demonstrated great interest in the ultimate question of a State’s authority, in his phrasing, to prevent ‘abortion from becoming a tool of modern-day eugenics,’ citing the recent State laws seeking to prevent abortions motivated by race, sex, genetic abnormality, and Down Syndrome.”
Eventually, Judge Sachs bailed, but clearly he understood something dreadful was amiss.
More recently, the 6th and 8th circuits split over Ohio and Arkansas laws that (as Ohio’s Down Syndrome Non-Discrimination Act. H.B. 214 reads) “prohibits a doctor from performing an abortion if that doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome,” as explained by Judge Alice M. Batchelder in her majority opinion.
Could this represent a wedge—or a lever—to force a discussion of whether it really should be permissible to kill a child specifically because the baby is a she and not a he; is not Caucasian; or might have Down syndrome”?
We have good reason to believe it might!