Supreme Court Justice Clarence Thomas issued a stinging concurrence Tuesday, in the case of a comprehensive Indiana law greatly restricting the reasons a woman can obtain an abortion and requiring that all aborted babies be either cremated or buried.
Thomas agreed with the Court's 7-2 ruling that Indiana was free to require medical facilities to provide a dignified burial or cremation for children aborted under their watch, but dissented from the Supreme Court's decision not to rule on the part of the Indiana law that banned abortions done on the basis of gender, race, or disability.
Thomas cautioned that if the Court side-stepped the issue permanently, it could open the door for abortion to be used as a tool of racists and eugenicists, in line with the wishes of Planned Parenthood founder Margaret Sanger and other early, prominent abortion activists.
Thomas agreed that "because further percolation may assist our review of this issue of first impression," the Court was smart to pass on ruling on the Indiana law, The Hill reports, but the Court can't ignore the issue forever.
"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. “So long as the Supreme Court forces a policy of unfettered elective abortion on the entire country, it ought to at least allow for states to protect babies from unjust discrimination."
“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 dutybound to address its scope,” he added.
The Indiana law is targeted largely at preventing the selective abortion of babies diagnosed with Down Syndrome, but it is based on model law that could move forward in more than just a single state.
"Indiana does not allow a fetus to be aborted solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability," the law reads.
Babies diagnosed with Down syndrome already face a staggering 60% - 80% abortion rate, based on a study from Planned Parenthood's former statistics arm, the Guttmacher Institute. In some European countries, Down syndrome has been all but "eradicated," not through cures, but through selective abortion.
Unborn girls are also at risk of sex-selective abortion. In countries like China and India, early gender detection has led to the widespread practice of aborting female fetuses, leaving both countries with heavily lopsided demographics. The UNFPA believes that as many as 160 million girls are "missing" because of sex-selective abortion and population control programs abroad.
Thomas referenced genetic screening in his concurrence, noting that a baby's gender can be determined by an elective blood test given between 7 and 10 weeks, and that disabilities like Down syndrome can be detected before the end of the first trimester. Pairing these tools with unfettered abortion access paves the way for “modern-day eugenics,” Thomas says, and states should have the right to protect unborn children from such abject discrimination.
“So long as the Supreme Court forces a policy of unfettered elective abortion on the entire country, it ought to at least allow for states to protect babies from unjust discrimination," Thomas wrote.
Such practices aren't foreign even to the nation's foremost abortion provider, Planned Parenthood. As The Federalist points out, Margaret Sanger, the group's founder, was an avid fan of eugenics — and particularly birth control and abortion programs that directly affected minority communities.
Such discrimination runs counter to America's constitutional guarantees of civil rights, Thomas said.
“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. “In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.”