In a surprise move, the Supreme Court issued a split decision on an abortion case Tuesday, allowing Indiana to require medical facilities to cremate or bury fetal remains, but striking down a ban on abortions performed because of the sex, race, or disability of the fetus.
The decision was surprising because the case, Box v. Planned Parenthood, was only up for review by the Court. Instead of taking the case for review, however, the Court issued its final ruling.
Because of that, the ruling was a short, unsigned, and mostly unanimous opinion that confined itself to the legal questions at hand.
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First, the fetal remains provision was, in part, decided on a technicality. Planned Parenthood did not argue that the provision placed an “undue burden” on women seeking abortions, which is the standard the Court has applied for 27 years, and which is at the heart of the recent six-week abortion bans passed in Georgia, Mississippi, Ohio, and Missouri.
In those cases, the courts–and almost certainly the Supreme Court–will evaluate the bans based on how much burden is placed on women seeking to exercise their rights.
Here, however, the lower court was only asked whether there was a “rational basis” for the fetal cremation requirement, a much looser standard. And there is: as far back as 1983, the Court held that the government has an interest in the “proper disposal of fetal remains,” just like it has an interest in the proper disposal of human remains.
Moreover, the Indiana law has a deliberate loophole: the cremation requirement applies to health care facilities, not to individuals. If a woman really does not want the fetal remains to be cremated or buried, she can receive them herself, and dispose of them in whatever way she wants.
In practice, hardly anyone will actually do this. But in theory, because it preserves the woman’s right to determine how the remains are disposed of, her constitutional rights are protected.
That’s the legal theory, anyway. Politically, the fetal remains provision is far more important. Declaring fetal remains to be similar to human remains is another step toward declaring a fetus to be a legal and moral “person.” And that’s been a central part of the pro-life political and legal campaign for decades: that a fetus, even a tiny clump of cells smaller than a quarter, must be regarded as a human being with its own right to life—even at the expense of the mother’s rights to her own body. We don’t let people kill people, after all, so if the fetus is a person, its right to life is paramount, the thinking goes.
From the pro-choice perspective, however, that decision is not one the government should make. Whether a fetus is a person or not is controversial, and so the decision is left to the mother to make. It’s her body, her life, her rights, and her pregnancy. She decides, with her own moral conscience and moral agency.
Requiring the cremation of fetal remains is another step toward the government making that decision for her.
The second provision of the Indiana law would have banned health care providers from performing abortions when they know that the reason for the abortion has to do with the sex, race, or disability status of the fetus.
The Seventh Circuit Court of Appeals struck down that provision, holding that it placed an undue burden on women seeking abortions. Today, the Supreme Court let that decision stand. The ban is overturned.
Once again, the reason was a legal technicality. This case was the first time this issue had been presented to the Court, and the Court has a policy of not taking cases in that position. Instead, its policy is to let multiple appeals courts consider the issue, and only take up the case when those courts disagree. This saves Court resources and allows the judicial process to take its course.
So, since this is the first time a law of this kind has been proposed for review, the Court chose to wait. It explicitly did not rule on the merits of the law. Instead, the opinion held, “we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”
That decision led to the most surprising–indeed, shocking–aspect of Tuesday’s disposition: a blistering opinion from Justice Clarence Thomas.
“This law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” Justice Thomas wrote, proceeding to teach a 15-page lesson on the movement, which extended Darwinism to the human species and led to decades of hideous programs of forced sterilization, “social Darwinism” and justifications for racism.
Since Justice Thomas agreed that “further percolation may assist our review of this issue of first impression,” his opinion is judicially meaningless–what lawyers call “dicta.”
But what dicta it is! Explicitly linking the pro-choice cause with racism, immigration quotas (an ironic citation, given Thomas’ support for Donald Trump’s immigration policies), forced sterilization, and the Supreme Court’s own shameful endorsement of eugenics in the '20s and '30s.
This argument is straight out of the pro-life playbook.
It’s how pro-lifers routinely compare abortion to the Holocaust—not just because millions of innocent people are being slaughtered, but because they are being slaughtered in the name of eugenics and social-genetic engineering. It’s the movement’s favorite thing to point out about Margaret Sanger, a founder of Planned Parenthood—that she, “like many elites of her day,” fell under the spell of eugenics (even though, as Thomas notes, she associated it more with birth control than with abortion).
And, with shades of science fiction dystopia, it’s how anti-abortion activists depict the terrifying future of abortion, in which parents abort fetuses because they’d prefer a boy, or a blonde, or a gifted child with a talent for piano.
Only, it has little to do with reality.
In fact, there is simply no evidence of large numbers of women terminating pregnancies because of race or sex. And of course, when disability is part of a mother’s consideration in whether to carry a child, it is part of a difficult, personal decision that, once again, is hers, not the state’s, to make. Who dares to put themselves in the shoes of a mother facing such an agonizing choice? And worse–who dares to put the state in her place, making such a difficult decision for her?
Perhaps worst of all, Thomas accuses the pro-choice movement of racial eugenics, suggesting that Roe v. Wade was a pretext to have fewer black babies around.
“[I]nsofar as abortion is viewed as a method of ‘family planning,’ black people do indeed ‘tak[e] the brunt of the ‘planning,’” he writes, taking a New York state health report entirely out of context, and continuing, “Some believe that the United States is already experiencing the eugenic effects of abortion.”
This is an outrage. It totally negates the moral agency (or even existence) of black women, depicting them as inanimate puppets of eugenicist social engineering. It imputes the absolute worst of human motivations to women who make their own decisions about their own lives, and those who fight to protect their rights. It is the most shocking slice of paranoid propaganda to appear in a Supreme Court opinion this century.
Today’s Supreme Court decision on abortion comes as women’s rights to their own bodily integrity are threatened as never before: an outright ban in Alabama, extreme limitations in several other states and a potential conservative majority in the Court that could finally overturn Roe v. Wade.
The legal impact of the decision is limited. But politically, as it affirmed one further abortion regulation and merely postponed review of another, it is yet another drop in the drip-drip-drip erosion of reproductive rights in America.
