In a 7-2 decision last week, the Supreme Court reversed a permanent injunction imposed by the Court of Appeals for the Seventh Circuit on a portion of an Indiana Law enacted in March 2016, signed by then-Governor Pence, which placed restrictions on abortions in Indiana.
House Enrolled Act No. 1337 contains two provisions of note: a provision regulating how the state disposes of fetal remains and a provision prohibiting abortions sought for discriminatory reasons or because the fetus was diagnosed with the likelihood of having Down Syndrome or any other potential disability.
Final Disposition of Remains
Indiana law allows for parents of a miscarried or aborted fetus to determine the final disposition of the fetal remains. The fetal disposal provision of the new law maintains this right but, if the parents decide not to take possession of the remains, the health care facility would be required to cremate or inter them. The provision, which has been blocked since before the new law could have taken effect due to the lawsuit filed by Planned Parenthood of Indiana (“PPINK”), will now be enforced in the state.
The Seventh Circuit decision stated, “PPINK agrees that no fundamental right is at stake. When a fundamental right is not implicated, substantive due process only ‘prohibits arbitrary deprivations of liberty by the government.’ Accordingly… the fetal disposition provisions must ‘be rationally related to legitimate government interests.’” The Seventh Circuit then reasoned that a dignified burial or cremation of the remains of fetal tissue after an abortion had no rational basis and was thus unconstitutional. Justice Thomas, however, along with 6 other justices, disagreed.
Justice Ginsburg took issue with the rational basis argument and insisted that the proper standard of review was the “undue burden” test established under Planned Parenthood v. Casey in 1992. Ginsburg wrote that “[t]his case implicates ‘the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State.’”
The more contentious, and still invalid, part of the law was a total ban on sex, race, and disability-based abortions. The Court declined to rule on this issue until it can “percolate,” according to Justice Thomas, who said that the Court never considers petitions for cases when the issues involved have been decided only by a single circuit.
This provision of the Indiana law would have made it a felony for a provider to perform an abortion if they had knowledge that a mother was seeking the abortion to terminate a pregnancy due to sex, race or disability, according to the lower court ruling. And it would have subjected the provider to potential disciplinary sanctions as well as civil liability for wrongful death.
The Specter of Eugenics
Justice Thomas wrote a 20-page concurring opinion decrying what he sees as a connection between abortion and the eugenics movement. Thomas cited the arguments of Planned Parenthood’s earliest advocate, Margaret Sanger, and lamented that abortion could be a powerful tool for eugenics.
“Abortion is an act rife with the potential for eugenic manipulation.”– Justice Clarence Thomas
The Washington Post recently criticized Thomas’s recounting of eugenics and its relation to abortion. In a report citing historians of the eugenics movement, the Post said:
“[H]istorians say that Thomas’s 20-page opinion distorts history in the service of ideology. The Washington Post spoke to seven scholars of the eugenics movement; all of them said that Thomas’s use of this history was deeply flawed.”
Pro-life advocates, however, are still concerned that the early 20th-century eugenics movement may have paved the way for the elimination of “people we don’t want to have too many of,” to quote Justice Ginsburg’s 2009 New York Times interview where she discussed her change-of-heart on concerns of the potential for the discriminatory impact of abortion. In the interview, Ginsburg said:
“Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious…So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”
With state after state taking action against genetic-based abortions, pro-life advocates are hopeful that the United States will buck the trend of other developed countries, where prenatal genetic testing has enabled a near total elimination of children with Down Syndrome prior to viability. The quad screen test, given during the second trimester of pregnancy, has enabled widespread genetic-based abortion in places like Australia, the UK, and much of Europe. While the data suggests up to 90% of children with a prenatal diagnosis of Down Syndrome are aborted in the UK, the rate is around 67% in the United States.
Conservatives in the US seem to be actively pushing for a revival of what they view as an issue of disability rights, specifically by banning genetic-based abortions at the state level, despite the constitutional challenges involved. Advocates worry that while children born with Down Syndrome were once systematically abused within the medical system, today they are systematically eliminated in the womb. According to the Global Down Syndrome Foundation’s civil rights timeline, which argues that the targeting of children with Down Syndrome has continued to be documented in the United States as recently as the 1990s, this abuse historically included lying to mothers and claiming that their children had been stillborn when in fact they were being diagnosed at birth with Down Syndrome and placed in institutions where they were abused through starvation, sterilization, and vaccine experiments. This abuse also included the designation of feeding the children as a “life-saving procedure” which doctors would then withhold.
Pro-choice advocates, on the other hand, are concerned with the effects tightened restrictions on abortion more broadly will have on genetic-based abortion. With widespread abortion bans or restrictions after viability, not only are genetic-based abortions more likely to take place prematurely, they argue, but the possibility of misdiagnosis of Down Syndrome would certainly result in mistaken, unwanted elective abortions as well.
In further criticizing genetic-based abortions, pro-life advocates also evoke eugenics practices in Nazi Germani, highlighting the fact that under the 1939-1945 “Aktion-T4” program, Hitler’s first targets for elimination were over 275,000 people with various intellectual and physical disabilities, including many with Down Syndrome, who were “involuntarily euthanized” inside psychiatric hospitals.
The pro-choice movement, however, sees modern genetic-based abortions as worlds apart from now-maligned policies mandating eugenics. A Princeton historian told the Washington Post that “[e]ugenics was about state control of human breeding . . . A platoon of scientific experts would decide what’s best for the human genome. Today it’s very different. We leave the decision to parents and medical professionals, and that makes all the difference.”
Framing the Issue for Future Legal Challenges
Justice Thomas’s concurring opinion detailed the background of eventually-overturned eugenics decisions by the US Supreme Court. He also discussed sex and race-based abortions and touched on the statistic that New York City has fewer black children born alive than black fetuses aborted each year.
While pro-choice advocates argue that these claims of sex and race-based abortions do not reflect reality, Justice Thomas is very likely signaling to pro-life advocates which arguments he wants to hear in future challenges to abortion. It seems that these anti-eugenics arguments in the political challenge to Roe v. Wade aren’t going anywhere any time soon.
 A paper titled “Prenatal diagnosis of Down syndrome: a systematic review of termination rates (1995–2011)” by Natoli et al, stated that, “The weighted mean termination rate was 67% (range: 61%–93%) among seven population-based studies, 85% (range: 60%–90%) among nine hospital-based studies, and 50% (range: 0%–100%) among eight anomaly-based studies. Available at (https://obgyn.onlinelibrary.wiley.com/doi/full/10.1002/pd.2910).