The US Supreme Court upheld Indiana’s law requiring the remains of abortion victims be interred or cremated on May 28, in a decision that hints at the Court’s future thinking about abortion. The decision could also be seen as a victory for advocates of foetal personhood legislation, as it implicitly concedes that the remains are human.
The unsigned opinion itself was a mixed bag, upholding the fetal burial provisions of the Indiana law, while declining to review the portion banning sex- or race-selective abortion – or a diagnosis of Down’s syndrome – and letting stand a lower court ruling that blocked the ban. The Atlantic described the decision as a “dodge” on abortion. Garrett Epps added later in the piece that “the Court is playing its abortion cards very close to the vest.”
“They tiptoed into this area by reinstating the foetal remains law, which is sort of abortion-related, but they’re not moving fast,” the New York Times’ Supreme Court reporter Adam Liptak said. “They’re taking their time in teeing up a major abortion case.”
This case could have been an opportunity to strike down Roe – assuming that the court has any intention of doing so. If there is a majority against Roe (something which is much debated), then that majority wants to take its time before such a controversial move. If they had heard Indiana’s appeal, the ruling would have come in 2020, an election year. Moreover, the Indiana governor who signed the bill into law is Mike Pence, who is now vice president.
“It’s entirely possible that the conservative wing of the court is staying silent for now because of bad timing,” wrote Robin Marty, a pro-abortion writer, at NBC.
Justice Clarence Thomas (pictured) prompted a great deal of hand-wringing among abortion advocates for invoking the legacy of eugenics in a concurring opinion. “Given the potential for abortion to become a tool of eugenic manipulation,” Thomas wrote, “the Court will soon need to confront the constitutionality of laws like Indiana’s.”
Thomas’s opinion went on for 15 pages, covering the entwined histories of the eugenics and pro-abortion movement, a history that implicates Margaret Sanger, who founded the organisations that evolved into the Planned Parenthood Federation of America. Sanger once gave a lecture on birth control to the women’s branch of the Ku Klux Klan in Silver Lake, New Jersey. She was also closely associated with the white supremacist author Lothrop Stoddard.
“This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation,” Thomas wrote. “From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes.”
Carol Tobias, of National Right to Life, said in a statement: “We … applaud Justice Clarence Thomas for using this opportunity to expose Planned Parenthood’s eugenic legacy and for highlighting the need to protect unborn children from being exterminated based on their race, sex, or level of disability.”
But abortion advocates quickly pounced on Thomas’s remarks, with one columnist at Newsweek accusing him of using the case as “a springboard to author a treatise replete with false equivalences and historical distortions related to eugenics.”
Adam Cohen, author of a book that Thomas cited in his opinion, blasted the Supreme Court justice in a piece for The Atlantic, with the headline “Clarence Thomas Knows Nothing Of My Work”, writing that “Thomas’s concurring opinion is an example of a common form of argumentation: the false analogy to a universally acknowledged historical atrocity.”
Cohen’s piece mostly avoided the history Thomas described in his opinion, instead disputing that voluntary abortion could ever become a “tool of eugenic manipulation.” Yet the fact that the vast majority of children with Down’s syndrome are never born suggests that there might be a pattern of eugenic thinking across the wide sweep of American abortions.
Apart from Thomas’s opinion, other pro-abortion writers took issue with the court upholding the foetal remains provisions of the Indiana law.
“Some witnesses were patients who explained that such a law would make them feel that they were being forced to regard the embryo or fetus as a person,” wrote Jane Maienschein at Slate, who was herself an expert witness in the case. “They did not believe that the tissue at early developmental stages was a person, and they did not want to be forced to treat it as such. … Its being buried or cremated for later burial gave the dead tissue a status they did not feel it deserved.”
That, pro-life advocates would say, is the point: that human remains should be treated with respect regardless of the circumstances of death. And for pro-lifers, the humanity of the unborn is reason enough to strike down Roe. But the latest ruling shows there may be some way to go.