Justice Clarence Thomas has written the first Supreme Court opinion in history which documents at length the eugenicist origins of abortion in America. What does this matter, and what does it mean for the future? There are simpler and more complex answers to those questions.
The simple reason is that while the Court upheld a part of the Indiana law that requires respectful burial or cremation of human remains, it turned down an appeal to reinstate another part of the law that would ban abortions sought for reasons of sex-selection or disability.
Thomas was rightly dismissive of Planned Parenthood’s disregard for fetal remains, writing in his Concurring Opinion: “I would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains.” But Justice Thomas was determined to interpret the Court’s decision to turn down the appeal which would have banned sex-selective abortions.
The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. 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. In other contexts, the Court has been zealous in vindicating the rights of people even potentially [editorial emphasis] subjected to race, sex, and disability discrimination.
Justice Thomas raises the stakes considerably here, making it very clear that while declining to take up the sex-selective abortion bans, the Court is not going to endlessly defer this question, not only because it relates to race, sex, and ableist eugenicism (even potentially) but also because more cases like these will be heard, and they’ll be heard on grounds of discrimination law. Indeed, Justice Thomas insists that the Court has a duty to address the invention of a constitutional right that nowhere appears in the Constitution. He writes:
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. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
Silent it is. Justice Thomas gives us twelve pages on abortion and the eugenics movement for a complex set of reasons. It is not simply a history lesson about how abortion targets race, sex and disability. Justice Thomas finally ties abortion with anti-discrimination law in a compelling way that will necessarily re-frame the dispute. In doing so, he sets a new bar for getting the Court out of the abortion business. Justice Thomas takes the accepted premise of what the Court affirms, that fetal remains deserve to be treated with respect because they’re human, and draws the proper conclusion that the legal protections against discrimination should therefore be extended to human life in the womb.
C C Pecknold is Associate Professor of Theology, and a Fellow of the Institute for Human Ecology, at The Catholic University of America in Washington, DC