Justice Clarence Thomas and Eugenics in Abortion
As states around the US throw their hat in the ring to enact laws that would restrict or prohibit abortion, a battle is also being played out in our nation’s highest court. In late May of this year, the Supreme Court chose not to hear a case regarding an Indiana law that would have made provisions for proper disposal of fetal remains from aborted children, and made it illegal for an abortion provider to knowingly perform an abortion based on sex, race, or disability. These laws at issue were overturned by lower courts, and the State of Indiana requested the Supreme Court examine the issues. Justice Thomas sided with the majority of the court in choosing not to take up the case, noting that:
“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. 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.”
You can read his entire decision here.
In his thorough and lengthy concurrence, Justice Thomas walks readers through the history of the birth control movement and the origins of 20th century eugenics. He references to Margret Sanger, the founder of Planned Parenthood, who was noted for speaking at KKK rallies and set up clinics in inner Harlem with the purpose of getting minorities in the door. Thomas later points out that members of the eugenics movement were not quiet about how abortion could be used to remove individuals deemed “unfit” from society. Alan Guttmacher became president of Planned Parenthood after Sanger, and Justice Thomas cites him as saying “He [Guttmacher] explained that “the quality of the parents must be taken into account,” including “[f]eeblemindedness,” and believed that “it should be permissible to abort any pregnancy . . . in which there is a strong probability of an abnormal or malformed infant.””
Justice Thomas concludes his remarks by saying that “The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. 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.” Justice Thomas shows that because there is the possibility of discrimination, the court will most likely have to take up this issue in the future. Why? Because historically the Supreme Court has seen it as a duty to protect against bias or discrimination in instances where there is no implied discrimination, but only the possibility that discrimination can exist.
Even though it has chosen not to take up this case, the Supreme Court has acknowledged that it must address the growing sentiments against abortion. Justice Thomas seems glad for a deferment, knowing that it will only make the issue more pressing, and give weight to opening the door for a challenge to Roe v. Wade. Please consider this article for further reading.