Justice Thomas: SCOTUS Can’t Duck Issue of Sex-, Race-, Disabilty-Selective Abortion Indefinitely

By Patrick Goodenough | May 30, 2019 | 4:59 AM EDT

U.S. Supreme Court Justice Clarence Thomas. (Photo by Chip Somodevilla/Getty Images)

(CNSNews.com) – Justice Clarence Thomas argued on Tuesday that the Supreme Court cannot put off indefinitely a decision on whether abortions based solely on race, sex or disability of an unborn child are constitutional.

“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 wrote.

“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 duty bound to address its scope.”

Thomas was writing in a concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Inc. The court ruled Tuesday in favor of an Indiana law requiring medical facilities to bury or cremate the remains of aborted babies, but declined to review another provision of the legislation outlawing sex-, race- and disability-selective abortions.

The Seventh U.S. Circuit Court of Appeals had earlier ruled both provisions unlawful.

The Supreme Court overturned the Seventh Circuit’s judgment on the “fetal remains” provision, but on the other one it denied the review petition in line with its practice to first allow multiple appeals courts to consider a particular issue.

(“Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”)

Thomas in his concurring opinion said he agreed with the decision “to allow further percolation.”

But he expressed concern about the potential for abortion to be used deliberately to prevent the birth of babies on the basis of specific traits.

“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 wrote.

Planned Parenthood supporters demonstrate in New York City in February 2019. (Photo by Spencer Platt/Getty Images)

In his 20-page concurring opinion Thomas discussed in some detail about the early birth control movement in the U.S., including the eugenics views of Planned Parenthood founder Margaret Sanger – albeit in her case as applicable to contraception, not abortion.

Sanger, he wrote, “was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics.”

Thomas said that Alan Guttmacher – who succeeded Sanger as Planned Parenthood president in 1962 – “and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality.”

Thomas said today’s prenatal screening tests and other technologies allow for abortion to be easily used “to eliminate children with unwanted characteristics.”

“Indeed, the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child.”

Sex

Thomas pointed to the prevalence of sex-selective abortions in China and India, where a partiality for boy children and (in China’s case) birth-limitation practices have given rise to severely skewed gender ratios.

“And recent evidence suggests that sex-selective abortions of girls are common among certain populations in the United States as well,” he said, citing academic studies examining census and other data from 2010 and again from 2010-2013 that found evidence of sex-selection in favor of boys in Chinese and Indian families in the U.S.

Race

Thomas argued that in the U.S., abortion is “marked by a considerable racial disparity.”

“The reported nationwide abortion ratio – the number of abortions per 1,000 live births – among black women is nearly 3.5 times the ratio for white women,” he said, citing Centers for Disease Control and Prevention statistics released last November.

“And there are areas of New York City in which black children are more likely to be aborted than they are to be born alive – and are up to eight times more likely to be aborted than white children in the same area.”

Disability

Thomas also referred to the high rate of abortion of babies with Down syndrome, especially in parts of Europe – nearing 100 percent in Iceland – but also in the U.S., where he said the rate was approximately two-thirds.

Sanger died in 1966. Planned Parenthood does not deny its founder’s associations with eugenics, which a fact sheet characterizes as “popular ideas of her own time that are out of keeping with our thinking today.”

But it charges that critics exaggerate Sanger’s opinions or take them out of context to discredit the organization. It also says that she “uniformly repudiated the racist exploitation of eugenics principles,” while acknowledging that she agreed with some views that Planned Parenthood finds “objectionable and outmoded.”

(See PP factsheet and a more recent document entitled “Opposition claims about Margaret Sanger.”)

Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow

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