//  5/30/19  //  Commentary

Cross-posted from Dorf on Law

In a per curiam opinion in Box v. Planned Parenthood of Indiana and Kentuckythe Supreme Court: (a) reversed the Seventh Circuit opinion that had found Indiana's fetal remains disposal law unconstitutional under the rational basis test; and (b) denied review of that same court's invalidation of Indiana's law forbidding abortions based on the race, sex, or disability of the fetus. The big-picture takeaway here should be that the Court as a whole is not eager to dive into abortion jurisprudence. That means that the wave of restrictive state abortion laws we are seeing will not likely force the Roberts Court's hand. The Chief Justice apparently has enough allies among the other conservative justices who will be willing to let stand lower court rulings striking down such laws under existing precedents.

To be sure, "not likely" does not mean impossible. In denying cert with respect to the selective abortion provision, the Court specifically invoked the novelty of the issue and thus the appropriateness of percolation among the lower courts before diving back in. It is relatively easy to imagine a couple of the justices who were willing to sign onto that approach in Box taking a more aggressive stance when faced with an issue that is less novel -- such as the application of the undue burden test to Louisiana's admitting privileges requirement for abortion providers, at issue in the pending cert petition in the June Medical Services case. Accordingly, if Box means that the Court is unlikely to outright overrule Roe/Casey in the very short term, it says less about the likelihood of imminent further chipping away.

Meanwhile, the fireworks in Box could be found mostly in Justice Thomas's concurrence. Partly this was a matter of tendentious language. He refers to the abortion of a "child," without distinguishing early from late abortions. He also refers to patients who wish to have abortions as "mothers," prompting an objection from Justice Ginsburg (in a footnote). And most provocatively, Thomas writes at length about what he sees as the strong connection between abortion and eugenics.

The Indiana provision in question forbids abortions sought "solely" based on sex, race, color, national origin, ancestry, or disability of the fetus. Let's set aside the fact that human beings rarely do anything "solely" for any one reason. No doubt what the Indiana legislature had in mind was that a woman who otherwise would not have an abortion has one because of the status of the fetus along one of the forbidden dimensions.

There is little evidence of abortions being performed in Indiana (or elsewhere) based on the race, color, national origin, or ancestry of a fetus. True, sex-selection abortion is common in some parts of the world, but as my colleague Professor Sital Kalantry explains in a 2017 book, when women come to the United States from cultures that practice sex-selection abortion, they do not bring the practice with them. Accordingly, much of the Indiana law targets a non-problem.

Another issue both for the law and for Justice Thomas's categorization of it as serving an interest in eugenics is the generic inclusion of disability. The statute specifically forbids abortion based solely on Down syndrome, but it also refers to "any other disability." Presumably that includes quite severe disabilities of the sort that mean that a baby born alive will lead a very short pain-filled life and then die. Women who choose to abort in such circumstances do not appear to be engaged in "eugenics" in any known sense of the term.

To be sure, Justice Thomas quotes various 100-year-old statements by Planned Parenthood founder Margaret Sanger praising birth control on what she calls "eugenist" grounds. But the quotations are doubly misplaced.

First, eugenics cannot be an individual project. Sanger thought that legalizing birth control would promote eugenics by its effects in the aggregate. Justice Thomas inadvertently concedes as much. He notes that eugenics was originally (and still is) defined as "improving stock" in the human species. Yet an individual decision by an individual woman to have one abortion (or even twenty abortions) can have no more than a marginal impact on the composition of the overall human gene pool. And if one thinks the law ought to forbid individual reproductive choices based on criteria such as race, then it would seem that Indiana's law is grossly underinclusive. By Justice Thomas's reasoning, a woman who rejects a mate based on his race (as a great many still do) is not just expressing a problematic private prejudice but is engaged in eugenics. That is another misuse of the term.

Second, as Justice Thomas acknowledges, Sanger opposed abortion. Thomas's argument thus goes like this: Sanger favored birth control on grounds of eugenics; she also opposed abortion; but the eugenics-based arguments she used in favor of legal birth control apply "with even greater force to abortion"; therefore, abortion is a form of eugenics. This has all the logic of the syllogism in Love and Death that culminates in the conclusion that "all men are Socrates." If some people could or did make arguments for legal abortion based on eugenics, we should reject those arguments, but we still need to evaluate other, untainted, arguments.

Hold on, you say. Justice Thomas doesn't contend that the association with eugenics undercuts the right to any abortion; he's only saying it undercuts a right to have an abortion based on the illicit criteria listed in the Indiana statute. Right?

Wrong. Justice Thomas starts and ends there, but in between he works himself into a lather about abortion in general. His argument really does appear to be one of guilt by association. Justice Thomas argues that because some people once favored a legal right to abortion for a bad reason, it should be banned today. To Clarence Thomas, all fetuses are Socrates.


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Charlie Gerstein

Civil Rights Corps