Tuesday morning, the Supreme court issued two orders on pro-life laws in Indiana.
First, the court upheld a Hoosier State requirement that the remains of aborted children be buried or cremated with dignity — rather than disposed of alongside hazardous medical waste.
But on the question of whether or not states can outlaw the practice of aborting children based on sex, race, or disability, the court decided to wait.
“Our opinion likewise expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability selective abortions by abortion providers,” the court’s opinion reads. “We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
One of the factors determining whether or not the Supreme Court will take up a case is “ripeness,” or whether or not the legal questions of a case have fully developed into a controversy needing resolution by the court.
Indiana’s legal code makes it illegal for a person to perform an abortion “if the person knows that the pregnant woman is seeking the abortion solely because of the race, color, national origin, or ancestry of the fetus.” State law also prevents abortions motivated by selecting the baby’s sex, a Down syndrome diagnosis, or a diagnosis of “any other disability.” Currently, the statute has only been ruled on by one federal appeals court.
But while he agreed with his colleagues’ decision to not hear the case for the time being, Justice Clarence Thomas did not mince words in his description of what will be at stake when the court eventually does.
“The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below,” Thomas explains at the beginning of his concurrence. “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.”
Thomas gave the horrible history of the relationship between abortion and eugenics during the early 20th century.
“The use of abortion to achieve eugenic goals is not merely hypothetical,” the concurrence says. “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.”
Thomas then mentioned party to the case Planned Parenthood and its founder — Margaret Sanger — by name.
“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 explained that her ideas laid the intellectual foundation for other eugenic-minded abortion supporters.
“Whereas Sanger believed that birth control could prevent ‘unfit’ people from reproducing, abortion can prevent them from being born in the first place,” Thomas explained. “Many eugenicists therefore supported legalizing abortion, and abortion advocates — including future Planned Parenthood President Alan Guttmacher — endorsed the use of abortion for eugenic reasons.”
Thomas’ sources are listed in the footnotes of the opinion.
“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,” Thomas concluded. “But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.”