In 2016, then-Indiana Gov. Mike Pence signed into law an omnibus pro-life bill that had two particularly noteworthy provisions. First, the law required that unborn children who die via miscarriage or abortion be either cremated or buried — and not incinerated along with other medical byproducts. Second, as described by Rewire News, the Indiana law banned “someone from obtaining a pre-viability abortion if [the] decision [to abort] is based on the race or sex of the fetus or concerns that the fetus has a diagnosis or ‘potential diagnosis’ of Down syndrome or ‘any other disability.'”
Last year, the U.S. Court of Appeals for the Seventh Circuit, which has appellate jurisdiction over Indiana, upheld the ruling of a lower district court judge that halted enforcement of the provisions for alleged unconstitutionality. Notably, the Seventh Circuit panel included a stinging rebuke from a dissenting Judge Daniel Manion, who objected that the Indiana law’s fetal remains provision ought to be easily upheld under federal courts’ highly deferential “rational basis” standard of review. “Under traditional rational basis review, if state action doesn’t infringe upon a fundamental right or affect a protected class, we will uphold it so long as it is rationally related to a legitimate state interest,” Manion wrote. “The fetal remains provision easily satisfies that extremely deferential standard.”
On Tuesday, in an unsigned Per Curiam opinion, the U.S. Supreme Court vindicated Judge Manion and reinstated Indiana’s fetal remains disposal law. Notably, seven justices of the Court signed onto the reinstatement — with only far-left Justices Ruth Bader Ginsburg and Sonia Sotomayor refusing to join.
The Per Curiam majority clarified that the fetal remains disposal law did not implicate the “undue burden” constitutional standard fabricated in the Court’s landmark 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, but instead relied solely on “rational basis” review.
The Court also upheld the Seventh Circuit’s invalidation of Indiana’s race/sex/”abnormality”-selective abortion ban — a ban that the Seventh Circuit’s prominent Judge Frank Easterbook previously described as a “eugenics statute.” As Easterbrook powerfully opined last June in dissenting from the Seventh Circuit’s decision not to rehear the case in front of the full court, “None of the [Supreme] Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
Today, in a lengthy concurrence that will surely be discussed in abortion litigation for years to come, originalist stalwart Justice Clarence Thomas took pains to outline the history of the 20th-century eugenics movement in America and to connect it to the Indiana law at issue. Here were some highlights:
The use of abortion to achieve eugenic goals is not merely hypothetical. The foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement. That movement developed alongside the American eugenics movement. And significantly, Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control “opens the way to the eugenist.” …
Whereas Sanger believed that birth control could prevent “unfit” people from reproducing, abortion can prevent them from being born in the first place. Many eugenicists therefore supported legalizing abortion, and abortion advocates — including future Planned Parenthood President Alan Guttmacher — endorsed the use of abortion for eugenic reasons. Technological advances have only heightened the eugenic potential for abortion …
Abortion advocates were sometimes candid about abortion’s eugenic possibilities. In 1959, for example, Guttmacher explicitly endorsed eugenic reasons for abortion. …
Judge Easterbrook was correct. Whatever else might be said about Casey, it did not decide whether the Constitution requires States to allow eugenic abortions. …
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.