Tuesday, May 28, 2019

Abortion and eugenics

Justice Clarence Thomas today (pdf), responding to the Court's decision not to consider an appeals court ruling overturning an Indiana abortion law (I have removed references):
I write separately to address the other aspect of Indiana law at issue here—the "Sex Selective and Disability Abortion Ban." This statute makes it illegal for an abortion provider to perform an abortion in Indiana when the provider knows that the mother is seeking the abortion solely because of the child's race, sex, diagnosis of Down syndrome, disability, or related characteristics. (excluding "lethal fetal anomal[ies]" from the definition of disability). The law requires that the mother be advised of this restriction and given information about financial assistance and adoption alternatives, but it imposes liability only on the provider. Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die. Put differently, this law and other laws like it promote a State's compelling interest in preventing abortion from becoming a tool of modern-day eugenics.

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." Sanger, "Birth Control and Racial Betterment." As a means of reducing the "ever increasing, unceasingly spawning class of human beings who never should have been born at all," Sanger argued that "Birth Control...is really the greatest and most truly eugenic method" of "human generation." In her view, birth control had been "accepted by the most clear thinking and far seeing of the Eugenists themselves as the most constructive and necessary of the means to racial health."

It is true that Sanger was not referring to abortion when she made these statements, at least not directly. She recognized a moral difference between "contraceptives" and other, more "extreme" ways for "women to limit their families," such as "the horrors of abortion and infanticide." But Sanger's arguments about the eugenic value of birth control in securing "the elimination of the unfit," apply with even greater force to abortion, making it significantly more effective as a tool of eugenics. 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, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability.

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. (more, pdf)

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