Clarence
Thomas Speaks the Truth for SCOTUS on Abortion, by Mario Diaz, 5/29/19.
In today's concurring opinion in Box v. Planned Parenthood of
Indiana and Kentucky, Justice Clarence Thomas dared speak the truth about the abortion
industry in an area of law and policy infested with euphemisms, deception, and
distortion. That "the Constitution itself is silent on
abortion," for example, is a most obvious observation that anyone old
enough to read can confirm. But to write it plainly in a Supreme
Court opinion, as he did, is nothing short of an act of courage in today's day
and age, when the darkness of abortion has such a firm grip on our political,
legal, and cultural environments.
The case dealt with an Indiana law that contained two
provisions. The first dealt with the "disposition of fetal
remains by abortion providers," and the second barred "sex-, race-,
or disability-selective abortions by abortion providers." In
a Per
Curiam opinion
(meaning it comes from the Court as a whole and not signed by any particular
justice) the Court granted cert. on the first question and reversed the lower-court ruling
that had invalidated the law. But it denied hearing on the second
question, leaving in place the lower court's ruling that invalidated it.
On the first question, dealing with the disposition of fetal
remains, the Court said, "The Seventh Circuit clearly erred" in
saying the state's interest in the proper disposal of fetal remains is not
legitimate. Justice Thomas said the lower court's decision was
"manifestly inconsistent with our precedent." He is
right. The Court had already said in Akron v. Akron Center for
Reproductive Health that "a State has a 'legitimate interest in proper
disposal of fetal remains.'"
The only question, the Court said, is if Indiana's new law is
"rationally related" to that clearly legitimate
interest. This is the lowest standard possible; it just needs to be
rational. Yet the lower courts insisted on toeing the abortion
preservation line at all cost. Justice Thomas was just as
dumbfounded as the rest of us. "I would have thought it could
go without saying," he wrote, "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."
It was an easy decision to make, as evidenced by the fact that the
Court did not even need oral arguments to decide it. But as Justice
Kennedy acknowledged in the Gonzalez v. Carhart decision, "longstanding maxim[s] of statutory
interpretation fall by the wayside when the Court confronted a statute
regulating abortion. The Court at times employed an antagonistic
'canon of construction under which in cases involving abortion, a permissible
reading of a statute [was] to be avoided at all costs.'"
Even the denial of cert. for the second question in this case reeks of political
calculations. It too is not a difficult decision to
make. The Court should have addressed it.
Deciding not to do so, the pro-life community should be thankful
that Justice Thomas nevertheless took the time to discuss the question in his
concurring opinion, and he did not mince words. "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," he
concluded.
He wrote separately to address that second part dealing with sex-,
race-, or disability-selective abortions. He meticulously goes
through the sordid history of abortion and eugenics, proving that it "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."
Justice Thomas notes, "Many eugenicists therefore supported
legalizing abortion, and abortion advocates including future Planned Parenthood
president Alan Guttmacher endorsed the use of abortion for eugenic
reasons." He reminds us of the legitimacy of the eugenics
movement among intellectuals, noting, "Leaders in the eugenics movement
held prominent positions at Harvard, Stanford, and Yale, among other schools,
and eugenics was taught at 376 universities and colleges. Harvard was 'more
central to American eugenics than any other university."
After delineating the close connection between eugenics and
racism, Justice Thomas highlights the Supreme Court's own troubling past with
assisting in its spread. "This Court threw its prestige behind
the eugenics movement in its 1927 decision upholding the constitutionality of
Virginia's forced-sterilization law." Justice Oliver Wendell
Holmes, Jr., writing for the Court: "It is better for all the world, if
instead of waiting to execute degenerate offspring for crime, or to let them starve
for their imbecility, society can prevent those who are manifestly unfit from
continuing their kind."
In that sense, the Court shares this distorted view of the value
of human life with the eugenic sympathies of Planned Parenthood's founder,
Margaret Sanger. After discussing Sanger's "Negro
Project," an effort to promote population control among black Americans,
it is understandable why Justice Thomas concludes that this case
"highlights the fact that abortion is an act rife with the potential for eugenic
manipulation." Should it surprise us that it is Planned
Parenthood, still today, standing as party before the Supreme Court objecting
to a law that prohibits the targeting of babies because of their race, sex, or
disability?
Eugenics is the stuff of nightmares. As we pointed out
in our brief, which the Court noticed,
"abortion has proven to be a disturbingly effective tool for implementing
the discriminatory preferences that undergird eugenics." In
Iceland, babies with Down syndrome are being systematically
exterminated. In Asia, sex-selective abortions are
commonplace. Where are the feminists on that? "As
many as 160 million 'missing' women more than the entire female population of
the United States," notes Justice Thomas, have been targeted through
abortion because of the mere fact of being female.
It is against this putrid backdrop that this Indiana law stepped in
to humbly uphold the value of every human life. It was promptly
challenged by none other than Planned Parenthood.
To their shame, the District Court and the Seventh Circuit went
right along with "Big Abortion" without any precedent compelling
them to do so, whatever legal, mental gymnastics they tried to do to justify
their unjust rulings. They pointed to the Casey decision, but as Justice
Thomas forcefully said, "Whatever else might be said about Casey, it did not decide whether
the Constitution requires States to allow eugenic
abortions." That "remains an open
question." And Justice Thomas was quick to point out that
"the Court's decision to allow further percolation should not be
interpreted as agreement with the decision below."
We can only hope that the Court takes up the question in the not
too distant future and ends once and for all this prolonged nightmare of the
targeting of children because of their race, sex, or disability.
Norb Leahy, Dunwoody
GA Tea Party Leader
