The Supreme Court on Tuesday avoided hearing a lawsuit about two Indiana abortion regulations, one of which prompted a lengthy attack on eugenic abortion from Justice Clarence Thomas.
The case in question was Box v. Planned Parenthood of Indiana and Kentucky, first brought before the court by the state of Indiana last October. It concerned two requirements of HEA 1337, which mandated that "fetal remains" be disposed of as one would other human remains (instead of medical waste), and prohibited abortions solely on the basis of the child's sex, race, or disability status.
The Indiana-area Planned Parenthood affiliate sued, claiming that the two laws violated a woman's right to an abortion under current precedent. The Seventh Circuit Court of Appeals agreed, but Indiana appealed to the Supreme Court, perhaps hoping for a now more-conservative bench's first ruling on abortion.
These hopes were to be dashed. In its Tuesday per curiam (i.e., unanimous or mostly unanimous) decision, the court summarily reversed the Seventh Circuit on the question of fetal remains, but neatly dodged having to grapple with whether or not such laws infringe on a woman's right to an abortion.
Under current precedent, the right to an abortion is protected from any "undue burden" prior to the point of viability. However, Planned Parenthood did not argue during previous hearings that the fetal remains law represented an undue burden, instead claiming that the law was not rationally related to government interests. Because the Supreme Court had previously ruled that a state has a "legitimate interest in proper disposal of fetal remains," this argument was summarily rejected.
The eugenic abortion legislation, meanwhile, was not yet ready for hearing by the Supreme Court because the, opinion said, there is no disagreement between federal circuits on the issue of such laws. Supreme Court rules for granting a hearing mean that the court generally looks for a "circuit split" before taking up a question.
Justices Sonia Sotomayor and Ruth Bader Ginsburg both agreed with the refusal to hear the eugenic abortion question, but dissented from the decision to uphold the fetal remains law. Ginsburg, in a brief concurrence/dissent, argued that rational basis was not the appropriate review standard in this circumstance, and that given the undue burden requirement, Indiana's appeal should have been rejected out of hand.
Whereas most of Tuesday's ruling artfully dodged the question of abortion, Thomas took it as an opportunity to sound off on eugenic abortion in particular. In his concurrence, Thomas agreed with the decision to avoid taking up the law absent a circuit split, but wrote separately to outline "a State's compelling interest in preventing abortion from becoming a tool of modern-day eugenics."
In his concurrence, Thomas examined the history of eugenics in America, and its connection to the push for legalized abortion. Popular from the early 20th century up through World War II, eugenics—the conscious direction of breeding to try to cull "undesirable" genes—was considered a mainstream idea throughout the so-called Progressive era. Indeed, the Supreme Court itself upheld the movement's principles in 1927's Buck v. Bell, which found that Carrie Buck's forcible sterilization on account of her attested "imbecility" did not violate her 14th Amendment rights.
Thomas links this moment in history to Planned Parenthood founder Margaret Sanger, whose advocacy for widespread birth control was explicitly eugenic in character. This included seeking to reduce the number of children African Americans had, as Sanger pushed to expand birth control access into black communities for explicitly eugenic purposes.
Although Sanger did not endorse abortion as a eugenic tool, preferring birth control instead, Thomas emphasizes that arguments for the latter eugenic practice lead naturally to the former. He notes that, even as the revelations of the Nazis' horrific eugenic regime led to a decline in eugenics' popularity 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."
"Abortion advocates were sometimes candid about abortion's eugenic possibilities. In 1959, for example, Guttmacher explicitly endorsed eugenic reasons for abortion," Thomas wrote. "He explained that ‘the quality of the parents must be taken into account,' including ‘[f]eeblemindedness,' and believed that ‘it should be permissible to abort any pregnancy . . . in which there is a strong probability of an abnormal or malformed infant.'"
In Thomas's view, this practice continues today, with the aid of respondent Planned Parenthood's promotion of abortion as a "reproductive health service." "Today's prenatal screening tests and other technologies," Thomas writes, make the abortion of a child with "unwanted characteristics" ever easier.
The results are profound. In the United States, roughly two in three mothers choose to abort upon learning that their child has Down Syndrome. In Europe, the figure is higher than 90 percent, and approaches 100 percent in some countries, a reality that columnist George Will termed a "genocide."
In Asia, meanwhile, sex-selective abortion has led to an estimated 160 million "missing" women. Race inevitably comes into play as well: in ultra-abortion-friendly New York, the abortion rate is five times higher for black children than non-Hispanic white children.
Once a circuit split inevitably emerges, a case considering the constitutionality of eugenic-abortion bans will inevitably make its way before the Supreme Court. This, Thomas wrote, represents the potential for grave harm.
"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," he concluded. "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 dutybound to address its scope."