SCOTUS Chips Away at Abortion, Thomas Rants About Eugenics


In a surprise move, the Supreme issued a split decision on an abortion case Tuesday, allowing to require facilities to cremate or fetal remains, but striking down a on abortions performed because of the , , or of the fetus.

The decision was surprising because the case, Box v. , was only up for by the Court. Instead of taking the case for , , the Court issued its final ruling.

Because of that, the ruling was a short, unsigned, and mostly unanimous that confined itself to the legal questions at hand.

, the fetal remains provision was, in part, decided on a technicality. Planned Parenthood did not argue that the provision placed an undue burden on seeking abortions, which is the standard the Court has for 27 years, and which is at the heart of the recent six-week abortion bans passed in , , , and .

In those cases, the courtsand almost certainly the Supreme Courtwill evaluate the bans based on how much burden is placed on women seeking to their .

, however, the lower court was only asked whether was a rational for the fetal cremation requirement, a much looser standard. And there is: as far back as 1983, the Court held that the has an interest in the proper disposal of fetal remains, just like it has an interest in the proper disposal of remains.

Moreover, the Indiana has a deliberate loophole: the cremation requirement applies to facilities, not to individuals. If a woman really does not want the fetal remains to be cremated or buried, she can receive them herself, and dispose of them in whatever way she wants.

In practice, hardly anyone actually do this. But in theory, because it preserves the womans right to determine how the remains are disposed of, her constitutional rights are protected.

Thats the legal theory, anyway. Politically, the fetal remains provision is far more . Declaring fetal remains to be similar to human remains is another toward declaring a fetus to be a legal and moral person. And thats been a central part of the pro- political and legal campaign for decades: that a fetus, even a clump of cells smaller than a quarter, must be regarded as a human being with its own right to lifeeven at the expense of the mothers rights to her own body. We dont kill , after , so if the fetus is a person, its right to life is paramount, the goes.

From the perspective, however, that decision is not one the government should make. Whether a fetus is a person or not is controversial, and so the decision is left to the mother to make. Its her body, her life, her rights, and her . She decides, with her own moral conscience and moral agency.

Requiring the cremation of fetal remains is another step toward the government making that decision for her.

The second provision of the Indiana law would have banned care providers from performing abortions when they know that the for the has to do with the sex, race, or disability of the fetus.

The Seventh struck down that provision, holding that it placed an undue burden on women seeking abortions. Today, the Supreme Court let that decision stand. The ban is overturned.

Once again, the reason was a legal technicality. This case was the first this issue had been presented to the Court, and the Court has a of not taking cases in that position. Instead, its is to let multiple appeals courts consider the issue, and only take up the case when those courts disagree. This saves Court resources and allows the judicial process to take its course.

So, since this is the first time a law of this kind has been proposed for review, the Court chose to wait. It explicitly did not rule on the merits of the law. Instead, the opinion held, we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.

That decision led to the most surprisingindeed, shockingaspect of Tuesdays disposition: a blistering opinion from Justice Clarence Thomas.

This is an . It totally negates the moral agency (or even existence) of women, depicting them as inanimate puppets of eugenicist .

This law and laws like it promote a States compelling interest in preventing abortion from becoming a of -day , Justice wrote, proceeding to teach a 15-page lesson on the movement, which extended Darwinism to the human species and led to decades of hideous programs of forced sterilization, social Darwinism and justifications for .

Since Justice Thomas agreed that further percolation assist our review of this issue of first impression, his opinion is judicially meaninglesswhat call dicta.

But what dicta it is! Explicitly linking the pro-choice cause with racism, quotas (an ironic citation, given Thomas for Donald Trumps immigration policies), forced sterilization, and the Supreme Courts own shameful of eugenics in the ’20s and ’30s.

This is straight out of the pro-life playbook.

Its how pro-lifers routinely compare abortion to the Holocaustnot just because millions of innocent people are being slaughtered, but because they are being slaughtered in the name of eugenics and social-. Its the movements favorite thing to point out about , a of Planned Parenthoodthat she, like many elites of her day, fell under the spell of eugenics (even though, as Thomas notes, she associated it more with control than with abortion).

And, with shades of , its how anti-abortion activists depict the terrifying future of abortion, in which abort fetuses because theyd prefer a boy, or a blonde, or a gifted with a talent for piano.

Only, it has little to do with reality.

In , there is simply no evidence of large numbers of women terminating pregnancies because of race or sex. And of course, when disability is part of a mothers consideration in whether to carry a child, it is part of a difficult, personal decision that, once again, is hers, not the states, to make. Who dares to put themselves in the of a mother facing such an agonizing choice? And worsewho dares to put the state in her place, making such a difficult decision for her?

Perhaps worst of all, Thomas accuses the pro-choice movement of racial eugenics, suggesting that was a pretext to have fewer black around.

[I]nsofar as abortion is viewed as a method of , black people do indeed tak[e] the brunt of the , he writes, taking a state health report entirely out of context, and continuing, Some believe that the is already experiencing the eugenic effects of abortion.

This is an outrage. It totally negates the moral agency (or even existence) of black women, depicting them as inanimate puppets of eugenicist social engineering. It imputes the absolute worst of human motivations to women who make their own decisions about their own lives, and those who fight to protect their rights. It is the most shocking slice of paranoid to appear in a Supreme Court opinion this century.

Todays Supreme Court decision on abortion comes as womens rights to their own bodily integrity are threatened as never before: an outright ban in Alabama, extreme limitations in several other states and a potential majority in the Court that could overturn Roe v. Wade.

The legal impact of the decision is limited. But politically, as it affirmed one further abortion and merely postponed review of another, it is yet another drop in the drip-drip-drip of reproductive rights in .

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