If you’re a prolifer, you should be concerned. Today, the Supreme Court chose to punt on an Indiana abortion law that prohibits “eugenics abortions” in which a doctor believes the mother is aborting her baby because of race, sex, genetic challenges, or a handful of other protected reasons. This is a law that should be a no-brainer, one in which the Supreme Court should have overturned the lower court ruling to strike the law.
They didn’t. Instead, they punted, saying they will allow the issue to be appealed in lower courts before considering it.
But what does this really mean for those who want the Supreme Court to overturn Roe v. Wade? Is it an indicator that they won’t overturn it when given a chance, as is likely the case with the Alabama and other abortion bills that will work their way up to the Supreme Court eventually? Will they punt on those? Do they lack the courage to take on such a monumental and controversial case? If they punted now, will the punt again?
It would seem like that could be the case, which means we need more originalists on the bench in a hurry.
There was a minor win. They overturned the portion of the lower court’s ruling against the law’s provision that the remains of aborted fetuses must be buried or cremated. This does seem to lend credence to the concept of fetal personhood. On a practical level, it also makes abortions more expensive, which predictably brought the argument from pro-abortion activists that the law reduced access for low income women.
Still, it’s disturbing that the portion of the law that was most important was somehow deemed not fully adjudicated by lower appeals courts but the fetal remains issue of the same law had been adjudicated enough for them to overturn the lower court decision. That makes no sense, as our EIC noted:
The Supreme Court lied today. They claimed the fetal remains portion of the Indiana law should be allowed but the eugenics portion hasn't been fully adjudicated by lower courts.
It's one law. If they needed more opinions, they need them for the whole thing. It's a fake punt.
— JD Rucker (@JDRucker) May 28, 2019
Justice Clarence Thomas wrote a solo concurrence in which he called out the obvious: that this law opposed eugenics and thereby should have been taken up now. As he said in his 20-page commentary, “Although the Court declines to wade into these issues today, we cannot avoid them forever.”
I’m not so sure that’s the case.
WOW. Thomas concurrence today: "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.” https://t.co/UOK4ejUM8m
— Josh Hammer (@josh_hammer) May 28, 2019
"Eight decades after Sanger’s 'Negro Project,' abortion in the United States is also marked by a considerable racial disparity. The reported nationwide abortion ratio— the number of abortions per 1,000 live births—among black women is nearly 3.5 times the ratio for white women."
— Josh Hammer (@josh_hammer) May 28, 2019
If we’re going to tackle abortion on the legal front, we need a Supreme Court that’s willing to acknowledge the humanity of the preborn child. That doesn’t seem to be the case following their decision to punt on eugenics.
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