Many laws prohibit the abortion of children who are capable of suffering the pain of being torn apart. Similarly, abortions that dismember alive unborn children must be banned. A rising number of states have passed similar legislation.

Thanks to pro-life state legislatures and Supreme Court Justice Clarence Thomas’s perceptive writings, the good news is that the hiatus in public awareness is beginning to fade.

In his opinion, Thomas believes that the subject of “selective” abortion bans requires “further percolation” in lower courts. However, he warns that the Supreme Court may soon have to decide whether legislation like Indiana’s are constitutional, given the “potential for abortion to become a tool of eugenic manipulation.” He seemed to be indicating that he would support such legislation.

Much of Thomas’s viewpoint is an attack on the current birth control campaign, which he claims has unsettling ties to the eugenics movement of the 20th century. He is particularly harsh on Margaret Sanger, a proponent of birth control who believes it “opens the way to the eugenist.”

Thomas’s use of Sanger to oppose “eugenic” abortion is hampered by the fact that, as Thomas concedes, Sanger talked about birth control, not abortion. (Both abortion and infanticide were labeled as “horrors” by her.)

But it is worth skipping through Thomas’ smear of Sanger to consider the legal argument he makes in his opinion: a right to abortion for any reason doesn’t always mean a right to abortion for a bad cause such as reducing the number of black or disabled children.

The Supreme Court’s 1992 decision in Planned Parenthood vs. Casey, which affirmed Roe vs. Wade’s “essential holding,” In Thomas’s opinion, the case “did not decide whether the Constitution requires states to allow eugenic abortions.”

He quotes an opinion by Frank Easterbrook, a judge on the United States Seventh Circuit Court of Appeals who dissents with the court’s decision not to rehear the Indiana case in 2018.

Easterbrook wrote: “Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life.’”

There are some legal parallels to the idea that a general right to abortion might not include a right to have an abortion for a specific cause makes this argument intriguing.

In his 11-page opinion, Judge Sachs also wrote:

“The most challenging and novel of the issues, in this case, is the state’s attempt to prohibit all abortions for special reasons that are deemed contrary to public policy. … For present purposes, I assume that almost everyone in our culture would be appalled by a pregnant woman’s abortion of a fetus identified as female because the woman or the family prefers that she give birth to a boy. The legal issue is whether the public, through legislation, has a right to intervene and prohibit such a discriminatory or ‘selective’ abortion” before viability.”

Judge Sachs referred to Justice Thomas’ intelligent concurrence in a similar case in 2019 (which the justices declined to address), saying:

“Justice Thomas demonstrated great interest in the ultimate question of a State’s authority, in his phrasing, to prevent ‘abortion from becoming a tool of modern-day eugenics.’” He cited the recent State laws seeking to prevent abortions motivated by race, sex, genetic abnormality, and Down Syndrome.

More recently, the 6th and 8th circuits disagreed over Ohio and Arkansas laws that (as Ohio’s Down Syndrome Non-Discrimination Act, H.B. 214 states) “prohibits a doctor from performing an abortion if the doctor knows that the woman’s reason for having the abortion is that she does not want a child with Down syndrome,” as explained by Judge Alice M. Batchelder in her majority opinion.

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