The Supreme Court upheld one abortion restriction and punted on another in a mixed decision Tuesday morning that once again revealed deep divisions over the future of Roe v. Wade. First, seven justices joined together to uphold an Indiana statute compelling abortion providers to bury or cremate fetal remains. Then the court unanimously refused to review an Indiana statute that prohibits women from terminating their pregnancies on the basis of a fetus’s sex, race, or disability. The latter move prompted Justice Clarence Thomas to pen a 20-page screed attacking many women who obtain abortions as callous and bigoted child-killers. These punts kept an abortion blockbuster off the court’s docket for now, but the court’s compromises won’t hold much longer.
Tuesday’s Roe fracas revolve around an Indiana law signed by then-Gov. Mike Pence in 2016. One provision of the statute compels abortion providers to bury or cremate fetal remains rather than disposing of them like other medical waste, typically through incineration. Another provision bars women from obtaining an abortion on the basis of a fetus’s sex or race, as well as “any disease, defect or disorder.” The only exception is for disabilities that will result in the death of a child within three months of birth.
Planned Parenthood of Indiana and Kentucky filed suit, alleging a violation of Roe and its progeny. The organization pointed out that, under Planned Parenthood v. Casey, states may not impose an “undue burden” on a woman’s right to terminate a fetus pre-viability. Yet Indiana’s nondiscrimination rule placed an absolute ban on a woman’s ability to terminate pre-viable fetuses due to certain characteristics, so it cannot pass constitutional muster. Oddly enough, however, Planned Parenthood did not allege that the fetal remains provision imposed an undue burden on women seeking an abortion. Instead, it argued that the provision flunked a more lenient test, rational basis review, which merely asks if a law is rationally related to a legitimate government interest.
A federal district and appeals court agreed with Planned Parenthood on both counts, blocking the entire law. But on Tuesday, the Supreme Court upheld the fetal remains provision under the rational basis test and not the stricter test of Roe and Casey. SCOTUS has already said that states have a “legitimate interest in proper disposal of fetal remains.” The majority then asserted, without explaining why, that the Indiana law is “rationally related” to this interest. And it reiterated that it had not decided whether such a law would impose an unconstitutional “undue burden” on a woman’s right to choose since Planned Parenthood failed to raise that argument.
The decision, then, is something of a punt, exploiting Planned Parenthood’s questionable litigation tactic. A future plaintiff can still argue that a burial-or-cremation rule violates the undue burden standard—and should argue that because it does. While it’s difficult to gauge the precise cost of the rule, experts estimate that it could add hundreds of dollars to each abortion, expenses that will be passed onto patients. Moreover, it provides no medical benefit to women, rendering it a quintessential undue burden. Justice Ruth Bader Ginsburg wrote separately to make this point, noting that “application of the proper standard would likely yield restoration of the judgment.” Both she and Justice Sonia Sotomayor would’ve let the appeals court’s ruling stand.
Reading between the lines, then, Justices Stephen Breyer and Elena Kagan joined with the court’s conservatives to manufacture this punt. The moderate liberals likely reached a compromise by which the court upheld the fetal remains provision while turning away the nondiscrimination rule. This probable trade-off allowed SCOTUS’ conservatives to give anti-abortion advocates a qualified win without inflicting too much damage on Roe.
But Justice Clarence Thomas wasn’t willing to let Indiana’s nondiscrimination rule die a quiet death. Instead, he wrote an astonishing 20-page concurring opinion declaring that the rule is clearly constitutional—and, in the process, condemning many women who obtain abortions as willing participants in eugenicide. (Because Thomas says he wanted to “allow further percolation” of this issue in the lower courts before settling it, he joined his colleagues in refusing to review the case.)
Thomas began by insisting that the “foundations for legalizing abortion in America were laid during the early 20th-century birth-control movement,” which “developed alongside the American eugenics movement.” That’s not actually true: Abortion was legal at the founding, and states only began criminalizing abortion around the 1860s. Thomas is pushing a pro-life narrative that seeks to intertwine abortion and eugenics while ignoring history. To that end, he added that “Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause. She emphasized and embraced the notion that birth control ‘opens the way to the eugenist.’ ”
The justice then embarked on a lengthy excursion into the sordid history of the eugenics movement, which was, indeed, a dark period in American history. But he repeatedly elides the fact that most eugenicists promoted contraception, not abortion, as a vital tool of “population control.” To conflate the two, Thomas simply proclaimed that “the eugenic arguments that [Sanger] made in support of birth control apply with even greater force to abortion.” In effect, the justice condemned all reproductive rights—not just abortion, but all forms of contraception—as byproducts of the eugenics movement and scorned them as morally reprehensible. (Bizarrely, he also tossed in an off-the-wall footnote comparing disparate impact liability, which limits ostensibly neutral practices that disproportionately burden minorities, with eugenics.)
These wild tangents are a prelude to the meat of Thomas’ opinion: his belief that women who terminate their pregnancies due to a fetus’ “unwanted characteristics” are callous and monstrous child-killers who should be forced by the state to carry these fetuses to term. Abortion, he wrote, “is an act rife with the potential for eugenic manipulation.” Thanks to “today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children” due to some trait or abnormality. Indeed, Thomas wrote, abortion is a “disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” He cited the high abortion rate for fetuses with Down syndrome and the “widespread sex-selective abortions” in Asia as evidence. And he noted that the nationwide abortion rate “among black women is nearly 3.5 times the ratio for white women.”
Notably, Thomas does not claim that women are being tricked into obtaining discriminatory abortions by sex partners or preyed upon by unethical doctors. Instead, his opinion is a rhetorical assault against women who terminate their pregnancies due to a fetal abnormality. (There is virtually no evidence that American women get abortions on the basis of a fetus’ race or sex; that part of the law seems designed to troll liberals.) He accuses these women of seeking “eugenic abortions,” of wishing to “eliminate” an “unborn child” for “discriminatory” reasons. There is none of the usual patronizing pro-life hand-waving here about how women are really the victims of abortion. To Thomas, women who undergo abortions are villains who must be stopped by the state.
The justice closed his opinion by urging the court, in a future case, to rule that states may criminalize abortions on the basis of a fetal characteristics. Anything less, he wrote, “would constitutionalize the views of the 20th-century eugenics movement.”
It may not be a coincidence that Thomas dropped the façade of disgust solely with abortion providers, and not women themselves, just as a state prepares to prosecute women who undergo abortions. A new Georgia law permits the imprisonment of women who terminate their pregnancies, elevating fetuses to full personhood. Any pretense of protecting women has vanished; the law now expressly elevates the interests of the fetus over the interest of the woman. Now that Roe is in mortal danger, abortion foes in state legislatures and federal courts alike can unleash their ire at women themselves. They no longer need to appease Justice Anthony Kennedy.
For now, Roe has lived to see another day. But this holding pattern cannot last forever. The conservative justices will only make so many compromises before they begin to cut away at the foundations of the constitutional right to choose. Thomas is itching for his colleagues to join him in his anti-abortion crusade. It may only be a matter of time before the conservative majority upholds a law that forces women to carry and birth fetuses they do not want under the perverse rationale of promoting equality.