Welcome to the Trump Bench, a series in which Slate analyzes a Trump judge’s recent work. At an unusually rapid clip, Donald Trump successfully appointed three Supreme Court justices, 54 appeals court judges, and 174 district court judges during his presidency. Trump judges tend to be different than appointees by past presidents of both parties. Many are quite young, some are openly partisan, others are patently unqualified. While Trump’s tenure is drawing to a close, his judges will ensure that the dead hand of the Trump administration governs the nation for decades to come.
The sixth installment is about Ralph Erickson, who is considered one of Trump’s more moderate picks. On Tuesday, he accused women of participating in “the neo-eugenics movement” when they terminate a pregnancy because of Down syndrome.
The Judge: Ralph R. Erickson of the U.S. Court of Appeals for the 8th Circuit.
The Senate confirmed Erickson to the 8th Circuit on Sept. 28, 2017, by a vote of 95–1. He received the most votes of any of Trump’s appeals court nominees. Erickson previously served on the U.S. District Court for the District of North Dakota, to which George W. Bush appointed him in 2003.
The Decision: On Tuesday, Erickson joined an opinion blocking two abortion restrictions that Arkansas enacted in 2019: one that banned abortions after 18 weeks, and another that banned abortions obtained because of a prenatal diagnosis of Down syndrome. In a separate concurrence, however, Erickson expressed his extreme displeasure with the decision, urging the Supreme Court to overturn key pro-choice precedents and authorize states to outlaw abortion once again.
Little Rock Family Planning Services v. Rutledge, Tuesday’s case, is fairly straightforward. In 1992’s Planned Parenthood v. Casey, the Supreme Court held that states may not place an “undue burden” on the constitutional right to abortion access before viability, meaning the point at which a fetus can survive on its own. Both Arkansas laws plainly violate this rule. A fetus is not viable at 18 weeks, so the state cannot forbid abortions at 18 weeks. Moreover, Arkansas’ Down syndrome law is not just an undue burden but an outright ban on a category of pre-viability abortions—which Casey flatly prohibits.
Erickson begrudgingly acknowledged the reality that Supreme Court precedent renders both laws unconstitutional. But he also joined a rueful concurring opinion by Judge Bobby Shepherd, another George W. Bush nominee. Shepherd called upon the Supreme Court to overturn Casey, arguing that its standard “fails to adequately consider the substantial interest of the state in protecting the lives of unborn children,” particularly those with an “unwanted immutable characteristic.” He then approvingly cited an opinion by Justice Clarence Thomas that alleged that women who terminate pregnancies because of fetal abnormalities are modern-day eugenicists.
Not to be outdone, Erickson penned his own concurring opinion taking aim at Casey. The Casey standard, he wrote, “is overly simplistic and overlooks harms that go beyond the state’s interest in a nascent life alone.” Specifically, Erickson asserted that Casey ignored “circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.” He continued:
One of the great curses of the 20th century was [the] rise of the eugenics movement. It gave a patina of acceptability to such horrors as genocide, forced sterilization, the development of a master race, and the death of millions of innocents.
The new eugenics movement is more subtle, but a state could nonetheless conclude that it poses a great and grave risk to its citizens. A core value of eugenics is the notion that diversity in the human population should be reduced to maximize and eventually realize the “ideal” of a more “perfect person.” Inherent in this concept is the goal of controlling genetic diversity of a population in order to create a super race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The creation of such a cadre of people would undoubtedly lead to greater discrimination against people who are deemed to be “inferior,” resulting in a broad attack on diversity of the human population.
Erickson concluded that Arkansas “could decide that addressing social inequalities and disparities is a far more appropriate response to marginalized populations than embracing the neo-eugenics movement.” He closed by pointing out that very few babies with Down syndrome are being born in some Western European countries with universal prenatal testing. The Supreme Court, he wrote, should let states outlaw the termination of pregnancies because of Down syndrome to prevent “this kind of eugenics.”
It is worth noting that the eugenics theory promoted by Erickson, Shepherd, and Thomas is both illogical and totally detached from reality. Eugenics is the systematic elimination of specific people to alter the human gene pool. When a woman terminates a pregnancy because she feels she cannot tend to the significant, lifelong needs of a child with Down syndrome, she is not participating in eugenics but making a personal decision about her own life. There is no evidence that Americans who terminate pregnancies due to Down syndrome are seeking to systematically eliminate those with the condition from the face of the planet. Further, while Thomas alleged that abortion is closely linked to the eugenics movement, his claim has been debunked by the very expert he himself cited.
The Precedent: The actual holding in Little Rock Family Planning Services respects precedent, allowing Arkansas residents to continue terminating pregnancies before viability for any reason. But the two concurrences may transform the case into an attractive vehicle for Supreme Court justices eager to roll back Casey. Five conservative justices already began to chip away at pro-choice precedent in 2020, and Thomas has explicitly endorsed bans on abortions for fetal abnormalities. With the confirmation of Justice Amy Coney Barrett, there are probably six votes to erode Casey and eventually abolish the right to abortion altogether.
The conservative justices might seize upon Little Rock Family Planning Services to begin this process. Like Erickson and Shepherd, several other Republican-appointed judges have encouraged SCOTUS to weaken abortion rights by letting states force women to carry pregnancies to term after a Down syndrome diagnosis. These judges frame such laws as mere exceptions to Casey, creating a blueprint for the Supreme Court to uphold them. If SCOTUS wants to undermine the right to abortion without declaring an all-out war on Casey, it could uphold restrictions like Arkansas’ on the theory that they are necessary to combat eugenics. Once the court has upheld a complete ban on one category of abortions, it will inevitably approve more and more limitations until it has rendered Casey a nullity.
The Record: Erickson consistently sides with his fellow Trump nominees on the 8th Circuit, which currently has just one active judge appointed by a Democratic president. He has voted to let Arkansas temporarily ban abortions due to COVID-19 and stop Missouri from forcing a lobbyist to register with the government. Erickson routinely grants qualified immunity to law enforcement officers accused of brutality, preventing their alleged victims from suing them in federal court. He has voted to throw out lawsuits from employees who claim they faced illegal retaliation because they complained about discrimination and safety violations. Finally, Erickson has voted to allow the deportation of immigrants, including one who faced torture at home and another who had held a green card for 18 years. His concurrence in Little Rock Family Planning Services is the most significant opinion of his tenure on the 8th Circuit so far.
The Vote: The Senate confirmed Erickson by a vote of 95–1 after the Senate Judiciary Committee unanimously sent his nomination to the floor. Only Sen. Elizabeth Warren, a Democrat, voted no. No other appeals court judge nominated by Trump received as many votes in their favor.