Clarence Thomas Speaks the Truth for SCOTUS on Abortion

In today's concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Justice Clarence Thomas dared speak the truth about the abortion industry in an area of law and policy infested with euphemisms, deception, and distortion.  That "the Constitution itself is silent on abortion," for example, is a most obvious observation that anyone old enough to read can confirm.  But to write it plainly in a Supreme Court opinion, as he did, is nothing short of an act of courage in today's day and age, when the darkness of abortion has such a firm grip on our political, legal, and cultural environments.

The case dealt with an Indiana law that contained two provisions.  The first dealt with the "disposition of fetal remains by abortion providers," and the second barred "sex-, race-, or disability-selective abortions by abortion providers."  In a Per Curiam opinion (meaning it comes from the Court as a whole and not signed by any particular justice) the Court granted cert. on the first question and reversed the lower-court ruling that had invalidated the law.  But it denied hearing on the second question, leaving in place the lower court's ruling that invalidated it.

On the first question, dealing with the disposition of fetal remains, the Court said, "The Seventh Circuit clearly erred" in saying the state's interest in the proper disposal of fetal remains is not legitimate.  Justice Thomas said the lower court's decision was "manifestly inconsistent with our precedent."  He is right.  The Court had already said in Akron v. Akron Center for Reproductive Health that "a State has a 'legitimate interest in proper disposal of fetal remains.'"

The only question, the Court said, is if Indiana's new law is "rationally related" to that clearly legitimate interest.  This is the lowest standard possible; it just needs to be rational.  Yet the lower courts insisted on toeing the abortion preservation line at all cost.  Justice Thomas was just as dumbfounded as the rest of us.  "I would have thought it could go without saying," he wrote, "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."

It was an easy decision to make, as evidenced by the fact that the Court did not even need oral arguments to decide it.  But as Justice Kennedy acknowledged in the Gonzalez v. Carhart decision, "longstanding maxim[s] of statutory interpretation ... [fall] by the wayside when the Court confronted a statute regulating abortion.  The Court at times employed an antagonistic 'canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.'"

Even the denial of cert. for the second question in this case reeks of political calculations.  It too is not a difficult decision to make.  The Court should have addressed it.

Deciding not to do so, the pro-life community should be thankful that Justice Thomas nevertheless took the time to discuss the question in his concurring opinion, and he did not mince words.  "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.

He wrote separately to address that second part dealing with sex-, race-, or disability-selective abortions.  He meticulously goes through the sordid history of abortion and eugenics, proving that it "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."

Justice Thomas notes, "Many eugenicists therefore supported legalizing abortion, and abortion advocates — including future Planned Parenthood president Alan Guttmacher — endorsed the use of abortion for eugenic reasons."  He reminds us of the legitimacy of the eugenics movement among intellectuals, noting, "Leaders in the eugenics movement held prominent positions at Harvard, Stanford, and Yale, among other schools, and eugenics was taught at 376 universities and colleges[.] ... Harvard was 'more central to American eugenics than any other university[.]'"

After delineating the close connection between eugenics and racism, Justice Thomas highlights the Supreme Court's own troubling past with assisting in its spread.  "This Court threw its prestige behind the eugenics movement in its 1927 decision upholding the constitutionality of Virginia's forced-sterilization law."  Justice Oliver Wendell Holmes, Jr., writing for the Court: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."

In that sense, the Court shares this distorted view of the value of human life with the eugenic sympathies of Planned Parenthood's founder, Margaret Sanger.  After discussing Sanger's "Negro Project," an effort to promote population control among black Americans, it is understandable why Justice Thomas concludes that this case "highlights the fact that abortion is an act rife with the potential for eugenic manipulation."  Should it surprise us that it is Planned Parenthood, still today, standing as party before the Supreme Court objecting to a law that prohibits the targeting of babies because of their race, sex, or disability?

Eugenics is the stuff of nightmares.  As we pointed out in our brief, which the Court noticed, "abortion has proven to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics."  In Iceland, babies with Down syndrome are being systematically exterminated.  In Asia, sex-selective abortions are commonplace.  Where are the feminists on that?  "[A]s many as 160 million 'missing' women — more than the entire female population of the United States," notes Justice Thomas, have been targeted through abortion because of the mere fact of being female.

It is against this putrid backdrop that this Indiana law stepped in to humbly uphold the value of every human life.  It was promptly challenged by none other than Planned Parenthood. 

To their shame, the District Court and the Seventh Circuit went right along with "Big Abortion" without any precedent compelling them to do so, whatever legal, mental gymnastics they tried to do to justify their unjust rulings.  They pointed to the Casey decision, but as Justice Thomas forcefully said, "Whatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions."  That "remains an open question."  And Justice Thomas was quick to point out that "[t]he Court's decision to allow further percolation should not be interpreted as agreement with the decision below."

We can only hope that the Court takes up the question in the not too distant future and ends once and for all this prolonged nightmare of the targeting of children because of their race, sex, or disability.

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