With its recent decision in Box v. Planned Parenthood of Indiana and Kentucky, “the Supreme Court has definitively signaled its willingness” to address state laws regarding abortion, writes Denise Burke, legal counsel for Alliance Defending Freedom.
Although the justices ultimately passed on reviewing abortion in Box, Justice Clarence Thomas has finally decided that the court needs to address it “soon.” “Given the potential for abortion to become a tool of genetic manipulation, the Court will soon need to confront the constitutionality” of discriminatory abortion bans, Thomas wrote in his concurring opinion.
And as anti-abortion legislation continues to be passed and then legally challenged in various states, it is inevitable that more disputes will be brought before the court sooner than later.
Discriminatory abortion bans
In Box, the court was asked to review an Indiana law that prohibited abortions based on the unborn child’s race, sex, disability, or genetic makeup. Such abortions are a form of eugenics since they are being used to eliminate undesired characteristics.
Although the Supreme Court denied review of this law, similar laws have been passed in Kentucky, Louisiana, and Ohio, and it is all but certain that they will make it up to the high court at some point.
Eugenics concerns
This being the case, Justice Thomas offered some thoughts on such abortion bans.
In his concurring opinion, he defended the Indiana law with a “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” “Enshrining the 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 wrote.
Thomas referenced Margaret Sanger, the founder of Planned Parenthood, who explicitly wrote about using birth control as a form of eugenics, or as a way to reduce the “ever-increasing, unceasingly spawning class of human beings that never should have been born at all,” as she put it.
Her stance was expanded on by Alan Guttmacher, the former president of Planned Parenthood, who promoted the use of abortion as a form of eugenics following World War II, writing that “it should be permissible to abort any pregnancy . . . in which there is a strong probability of an abnormal or malformed infant.”
Such “arguments,” said Thomas, “about the eugenic value of birth control in securing ‘the elimination of the unfit’ … apply with even greater force with abortion, making it a significantly more effective tool for eugenics.”
To be decided
With this as the background, it now appears almost certain that the Supreme Court will have to take up abortion in the future. Thomas already has made his opinion known. But will the other conservatives, particularly newcomers Neil Gorsuch and Brett Kavanaugh, side with him?
We’ll have to wait and see. But I suspect that abortion supporters are going to have a hard time with this one.
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