Last Gasps of Abortion at the Supreme Court

This article first appeared on Catholic Stand on June 28, 2019.

Yes, he did it. In a majority legal opinion issued in May, U.S. Supreme Court Justice Clarence Thomas put a stick in the middle of the pro-abortion beehive, and advocates for abortion rights are buzzing madly.

What did he do? Thomas wrote a 20-page, well-researched document that tied abortion to eugenics, which is the effort to eliminate or prevent the birth of persons who have genetic characteristics deemed unwanted. Eugenics was responsible for the forcible sterilization (removal or mutilation of sex organs) of 60,000 Americans during the 1920s through the 1970s, and it was the basis for Nazi German atrocities in the mid-20th century. Eugenics is still with us through abortion, voluntary sterilization, and the fast-developing technologies for genetic engineering. Some instances of forced sterilization continue, as with 144 California inmates in 2005-2012, and the Supreme Court’s ruling that made it legal still stands.

Eugenics By Any Other Name

Justice Thomas wrote that eugenics was a well-supported ideology in the 1920s, including its advocacy by the early proponents of birth control (especially sterilization) like Margaret Sanger, founder of Planned Parenthood. Sanger spouted many blatantly eugenic statements, such as:

“… these two words [birth control] sum up our whole philosophy… It means the release and cultivation of the better elements in our society, and the gradual suppression, elimination and eventual extinction, of defective stocks — those human weeds which threaten the blooming of the finest flowers of American civilization.” (Margaret Sanger, “High Lights in the History of Birth Control,” 1923.)

Progressives desperate to undermine Thomas’ credibility and defend Planned Parenthood marshalled a small army of similar-minded historians to rebut Thomas. For example, progressive author Paul Lombardo declared in the Washington Post that “I’ve been studying this stuff for 40 years, and I’ve never been able to find a leader of the eugenics movement that came out and said they supported abortion.” Lombardo’s claim, however, is pretty difficult to believe, for Justice Thomas laid out a substantial list, with citations, of such leaders (see the excerpt at the bottom of this post).

A Blind Backlash

The widespread assault on Justice Thomas in the media has been filled with hyperbole and misleading concepts. One problem has been the narrow definition applied to eugenics as a purely government-led effort. As I explained in an article in American Thinker:

This minimizes the core point of eugenics, which is not to empower the state, but to use any means necessary for eliminating inherited characteristics that are unwanted. It ignores the vast cultural impact of “fitter families” contests at early 20th century popular events, the intellectual impact of college eugenics courses for 20,000 students in 1928 alone, and the enthusiastic involvement of physicians in Nazi euthanasia programs as well as American infanticide, dramatized in the wildly popular film The Black Stork.

The use of abortion in a eugenics effort has also been enacted for the most part by individuals. Mothers are influenced heavily by many factors when deciding to abort their unborn children, not least the all-too-common, cruel myth that disabled persons and their parents are guaranteed a miserable existence. Studies indicate that around 85 percent of unborn children with Down syndrome are aborted in the United States. In a meta-analysis, 45 percent of women who chose to abort a child diagnosed with Down syndrome indicated that their decision was due to society’s very low respect for persons with this condition. Similar statistics apply to such conditions as spina bifida, anencephaly, Turner syndrome, and Klinefelter syndrome.

Genetic Death Sentences

I also reported in an article in the National Catholic Bioethics Quarterly (Summer 2018) that genetic testing and physicians are culpable in promoting abortions of persons with Down syndrome. In one study, 23 to 33 percent of nonpregnant women said they would abort their fetus if he or she tested positive for Down syndrome, yet 89 to 97 percent of women chose abortion when the tests came back positive. Medical professionals’ attitudes have a dramatic effect; maternal-fetal medical specialists, for example, are much more likely than fetal care pediatric specialists to support parents’ decisions for abortion, and the actual termination rates by their patients are consequently 2 ½ times higher.

The issue of eugenics in the 21st century should not, however, center on any particular means of eugenics such as abortion. Another means is genetic engineering. The technology for genetic engineering of human embryos is developing rapidly, and botched edits of embryos’ DNA have already resulted in live births. Scholars who are often grouped under the label “liberal eugenics” — including Nicholas Agar, Jonathan Glover, Jeff McMahan, Ronald Green, and Allen Buchanan — are boldly promoting such genetic engineering procedures not only to reduce the presence of inherited diseases and abnormalities, but to provide the moral warrant that will be used by commercial entities and parents alike to dramatically increase new persons’ physical and mental capabilities. Many of the liberal eugenics advocates argue that we not only have the right, but also the obligation to genetically enhance our children. Such obligations should spark fear in the hearts of liberty-loving Americans, particularly when Allen Buchanan and colleagues promote a detailed plan for a new international authority called the Global Institute for Justice in Innovation, which could, among other things, engage in international pressure toward certain genetic enhancement preferences.

The Science of Hatred

At its core, eugenics is really all about hatred: hatred of limitations imposed by the natural body and mind, hatred of a God who allows the human condition of suffering and shame, and hatred of any person who has the audacity to live with the unwanted afflictions. Justice Thomas’ “rant” is therefore a rare and important example of the kind of skilled resistance necessary to achieve the more loving culture so essential to human fulfillment in 21st century America.

Abortion is also about hatred of limitations. Catholic teaching is clear that abortion is never morally licit. Pope John Paul II explained this beautifully and forcefully in Evangelium Vitae:

Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Romans 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being to have this primary good respected to the highest degree. Upon the recognition of this right, every human community and the political community itself are founded.

Catholics have also resisted eugenics since its beginnings. Catholic World magazine published articles condemning eugenics as far back as 1870. In her book An Image of God: The Catholic Struggle with Eugenics, Sharon Leon states that, “asserting their rights as citizens to participate in the public debate about the importance of environment and heredity and about the proper role of the state and the responsibility of the individual, Catholics transformed public discourse.” Pope Pius XI condemned eugenics in his 1930 encyclical Casti Connubii.

A New Defense of Life

Although he also condemns abortion and eugenics on an equal basis, Justice Thomas’ legal opinion was not founded on all of the same principles. The Catholic Church opposes abortion because unborn children are dignified persons from conception, and therefore abortion is always murder. Thomas needed to apply a different standard, one for which the linking of abortion and eugenics is crucial. Legalized abortion is therefore a legal problem because the Supreme Court has repeatedly defended the rights of the disabled, racial minorities, and genders who are threatened by abortions enacted specifically to eliminate such persons. Thomas wrote: “The Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. Although the Court declines to wade into these issues today, we cannot avoid them forever.”

Such a tactic for undermining abortion “rights” is a new approach, one that is likely to be very effective. A number of states (six to date) have passed laws that prohibit abortions that are intended to kill unborn children with Down syndrome. Given the American courts’ knee-jerk rulings against any laws that restrict freedom of abortion, it is highly likely that the state laws will be denied and subsequently appealed; the Ohio law is currently under review by a federal appeals court. The Supreme Court will have to rule on at least one of these state laws. Justice Thomas is preparing the Court for just such a decision. He also brought race into the picture, citing statistics that demonstrate that the black American population growth rate has been hit hard and disproportionately by access to abortion services.

In 1973, a minority of states had made abortion legal, only in some circumstances, yet the Supreme Court accepted their arguments and imposed legalization of abortion on the entire country. Getting the Court to step back from its consistent support of abortion rights is not a prospect that has many similar precedents. With the new tactic of linking abortion and eugenics, however, the Court will have to choose between its support for abortion and its own defense of the vulnerable minorities in our society.

Justice Thomas is famous for not speaking or asking questions during Supreme Court hearings, but he finally spoke up in March to the defense of black persons. He has now expressed, in writing, his willingness to defend all of those oppressed by the abortion-saturated culture of death. We’ll be looking forward to hearing from him again.

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Excerpt from Justice Thomas’ legal opinion (p.13-14), regarding persons who supported both eugenics and abortion:

Indeed, some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics. See Harris, Abortion in Soviet Russia: Has the Time Come To Legalize It Elsewhere? 25 Eugenics Rev. 22 (1933) (“[W]e are being increasingly compelled to consider legalized abortion as well as birth control and sterilization as possible means of influencing the fitness and happiness and quality of the race”); Aims and Objects of the Eugenics Society, 26 Eugenics Rev. 135 (1934) (“The Society advocates the provision of legalized facilities for voluntarily terminating pregnancy in cases of persons for whom sterilization is regarded as appropriate”). Support for abortion can therefore be found throughout the literature on eugenics. E.g., Population Control: Dr. Binnie Dunlop’s Address to the Eugenics Society, 25 Eugenics Rev. 251 (1934) (lamenting “the relatively high birth-rate of the poorest third of the population” and “the serious rate of racial deterioration which it implied,” and arguing that “this birth-rate . . . would fall rapidly if artificial abortion were made legal”); Williams, The Legalization of Medical Abortion, 56 Eugenics Rev. 24–25 (1964) (“I need hardly stress the eugenic argument for extending family planning”— including “voluntary sterilization” and “abortion”—to “all groups, not merely to those who are the most intelligent and socially responsible”). Abortion advocates were sometimes candid about abortion’s eugenic possibilities. In 1959, for example, Guttmacher explicitly endorsed eugenic reasons for abortion. A. Guttmacher, Babies by Choice or by Chance 186– 188 (1959).