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Five Takeaways from Tuesday’s Supreme Court decisions on abortion

by | May 29, 2019

By Dave Andrusko

We posted two stories yesterday explaining just a portion of the Supreme Court’s Box v. Planned Parenthood of Indiana and Kentucky decision in which the Justices voted to uphold one part of a 2016 Indiana abortion law while laying over for another day the second part.

I’d like to revisit in depth what transpired Tuesday in which the Justices took a pass on a law that banned abortions (in Justice Clarence Thomas’s words) “when the provider knows that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics” while overturning a decision by a divided three-panel of the U.S. Seventh Circuit which blocked Indiana’s law requiring the humane disposal of the bodies of aborted babies from taking effect.

Here are 5 considerations although, honesty, I could list twenty.

1. Justice Ruth Bader Ginsburg politely blasted Justice Thomas’s concurrence in which the High Court upheld Indiana’s law requiring that the bodies of aborted babies be disposed of in a humane fashion. In a footnote, Justice Thomas responded (internal citations omitted):

JUSTICE GINSBURG does not even attempt to argue that the decision below was correct. Instead, she adopts Chief Judge Wood’s alternative suggestion that regulating the disposition of an aborted child’s body might impose an “undue burden” on the mother’s right to abort that (already aborted) child. This argument is difficult to understand, to say the least—which may explain why even respondent Planned Parenthood did not make it. The argument also lacks evidentiary support. (Underlining added.)

2. “”The Supreme Court gave the pro-life movement a major victory by upholding Indiana’s fetal remains law,” said Mike Fichter, President and CEO of Indiana Right to Life. “The court sided with Indiana that unborn human remains must receive dignified disposal. Humane disposal takes us one step closer to recognizing the dignity of unborn children. Aborted children may no longer be treated as medical waste or garbage. Instead, these precious lives will be required by law to receive a burial or cremation.

This, of course, is why Justice Ginsburg was so troubled. Not that the requirement posed an “undue burden” (I can’t imagine even Ginsburg believes that) but that the decision “takes us one step closer to recognizing the dignity of unborn children.”

The law was passed, as Amy Howe reminds us, “after the discovery that a medical-waste firm had been accepting and disposing of fetal tissue…”

3. In the same vein, columnist Christine Flowers observed on Facebook

The highest court in the land agreed that Indiana’s law, respectful and cognizant of the humanity of the aborted child, was constitutional. This is not a small thing. This is everything.

Our battle lies in highlighting the humanity of the unborn child. Every victory, every step forward is premised on this solemn obligation.

So today, we moved one step further away from the abyss. The constitution recognizes the humanity of the aborted child. And on this we can build to the point where it recognizes the humanity of the living, breathing, child.

Step by step. This was a big one.

4. Unless you’ve had a chance to read Justice Thomas over the years, you might be tempted to buy into the [hostile] media narrative that he really adds little-to-nothing because Justice Thomas rarely speaks from the bench. That was always silly and his 20-page concurrence which begins on page 13, is more proof he is a first-rate thinker. It is a dazzling explication of how eugenics was embedded in Margaret Sanger’s misbegotten view of people she considered riff-raff.

*”This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger 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. Even after World War II, future Planned Parenthood President Alan Guttmacher and other abortion advocates endorsed abortion for eugenic reasons and promoted it as a means of controlling the population and improving its quality. As explained below, a growing body of evidence suggests that eugenic goals are already being realized through abortion.”

*“Eight decades after Sanger’s ‘Negro Project,’ abortion in the United States is also 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. 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. Whatever the reasons for these disparities, they suggest that, insofar as abortion is viewed as a method of ‘family planning,’ black people do indeed ‘tak[e] the brunt of the ‘planning.’”

*[This is crucial] “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 twentieth-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. Although the Court declines to wade into these issues today, we cannot avoid them forever.”

Very much worth noting is that Ginsburg does not challenge Thomas’ account of eugenics in America, then and now.

5. “Here we now have a troubling dichotomy that cannot stand,” wrote Mike Fichter, President of Indiana Right to Life. “On one hand we recognize aborted children have dignity and are not garbage, on the other hand the court refuses the inherent, God-given dignity of each unborn child by recognizing their civil rights. This once again places Roe on a collision course with itself. Rest assured, Indiana will continue leading the charge in the effort to protect life.”

The “collision course with itself” allusion, of course, is to Justice O’Connor’s famous dissent in the 1983 case of Akron v. Akron Center for Reproductive Health, referring to Roe v. Wade’s trimester framework. Roe never made any sense, as even many pro-choice legal scholars readily conceded. (Justice Harry Blackmun’s Roe and Doe v. Bolton decisions were grab bags, a potpourri of bad reasoning and politically motivated abortion history.)

We don’t know the Supreme Court’s inner workings, but it is encouraging that, according to Justice Thomas, the Court’s decision not to address at this time the Indiana law banning eugenic abortions

should not be interpreted as agreement with the decisions below. …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. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey [the 1992 Supreme Court case] to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.

Categories: Supreme Court
Tags: abortion