The U.S. Supreme Court edged closer to restricting abortion in a Tuesday, striking down part of a disputed Indiana law, but upholding another part. The main part of the law—prohibiting so-called "discriminatory" abortions—was invalidated by a lower court, and the Supreme Court is letting that decision stand. The other part, that the Supreme Court upheld, requires abortion providers bury or cremate fetal remains.
The state had banned abortions based on the gender, race, or disability of the fetus such as Downs Syndrome. In arguing the case, the state's attorney general said that law was passed in response to "the alarming trend of disability-selective abortions" and with the goal of "protecting children with Down syndrome and other disfavored characteristics from invidious discrimination." Planned Parenthood challenged that as an unconstitutional restriction on abortion rights, and the lower court agreed. The Supreme Court upheld that ruling with a short order saying it "expresses no view on the merits" of that issue, but left the door open for another challenge saying "we follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals." In other words, there wasn't a split between circuit courts on the issue, with only one having decided. That invites another challenge from another state in another circuit.
In a ranting commentary on the decision, Justice Clarence Thomas gave those future states ammunition, equating abortion rights with eugenics and saying that the court would eventually have to "confront" these supposed discriminatory abortions. Thomas defended Indiana's ban and others like it saying they would "promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics." He went on to say that the "use of abortion to achieve eugenic goals is not merely hypothetical."
He went even further to imply that he believes birth control is also tied to eugenics. "This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation," he wrote. "From the beginning, birth control and abortion were promoted as means of effectuating eugenics," he argued. "Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes," and "a growing body of evidence suggests that eugenic goals are already being realized through abortion."
And of course he went on. "Whatever the reasons for these disparities, they suggest that, insofar as abortion is viewed as a method of 'family planning,' black people do indeed "tak[e] the brunt of the "planning."' Never mind the evidence that the U.S. already has a high rate of maternal mortality, particularly high for black women, and abortion (and birth control) bans would only make it worse.
The other, scary part of the ruling is letting stand the part of the Indiana law that requires abortion providers to treat aborted tissue as if it were a person—it has to be buried or cremated. That essentially conveys "personhood" on fetal tissue, something forced birthers have been after for years. It also complicates the already fraught effort for researchers to use fetal tissue. It is a nod to the bogus effort by Republicans to smear Planned Parenthood as in the business of selling "baby parts" and ignores the fact that all providers adhere to state laws in disposing with fetal tissue as what it is—medical waste. It's one more dangerous step on the slippery slope to an abortion ban.
