On March 24, 2016, Governor Mike Pence of Indiana (now Vice President of the United States) signed into law Indiana House Enrolled Act No. 1337 (HEA 1337), comprehensively amending the state’s abortion laws.[1] On April 7, 2016, Planned Parenthood of Indiana and Kentucky filed a federal lawsuit against the Commissioner of the Indiana State Department of Health, the prosecutors of three counties, and members of the Indiana Medical Licensing Board, seeking to strike down three Code provisions:

 

(1) the new “Sex Selective and Disability Abortion Ban,”outlawing discriminatory abortions by prohibiting a person from performing an abortion if he knows the woman is seeking an abortion solely due to the child’s sex, race, color, national origin, ancestry, or diagnosis or potential diagnosis of Down syndrome or other disability;[2]

 

(2) an addition to the informed consent process, instructing those performing abortions to inform women of these non-discrimination provisions;[3] and

 

(3) amendments to existing provisions governing the disposal of aborted children, requiring that human fetal remains be buried or cremated just like other human remains rather than being classified as “infectious waste” and incinerated along with used needles, laboratory- animal carcasses, and surgical byproducts.[4]

 

The district court entered a preliminary injunction against the provisions on June 30, 2016,[5] and on September 22, 2017, the court granted Planned Parenthood’s motion for summary judgment, declaring all three challenged provisions of HEA 1337 unconstitutional and permanently enjoining the State from enforcing them.[6]

 

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court 2–1 on the fetal remains statute and 3–0 on the anti-discrimination statute on April 19, 2018, holding that the non-discrimination provisions violated Supreme Court precedent banning any prohibition of a woman’s right to terminate her pregnancy prior to viability, and that the provisions ensuring humane disposition of aborted children violated substantive due process because they had no rational relationship to a legitimate state interest.[7] Judge Daniel Manion of the Seventh Circuit, in partial dissent, would have held the law concerning the humane disposition of fetal remains to be constitutional.

 

Because the Seventh Circuit’s panel opinion created a circuit split on the question of fetal remains, on June 8, 2018, the state of Indiana asked for an en banc rehearing, which the Seventh Circuit granted. Just two weeks later, however, Judge Michael Scudder, who had favored the en banc rehearing, recused himself, leaving the court evenly divided. Thus, the court vacated rehearing and reinstated the original panel’s opinion.

 

On October 12, 2018, Indiana petitioned the U.S. Supreme Court to decide “whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation,” and “whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.”

 

On May 28, 2019, the Supreme Court issued an unusual per curium decision without hearing arguments in the case. The Court declined the opportunity to determine the constitutionality of the law prohibiting the abortion of children on the basis of their sex, race, or disability, but granted Indiana’s petition as to the humane disposition of fetal remains provision, agreeing that the Constitution does not prohibit states from requiring the humane and dignified disposition of human fetal remains and reversing the judgment of the Seventh Circuit because it “clearly erred,” since the Court “has already acknowledged that a State has a ‘legitimate interest in proper disposal of fetal remains.’”

 

Justice Clarence Thomas wrote a separate concurrence in which he points the way toward finally eradicating one of the most radical forms of discrimination in modern-day America: ending the lives of children in the womb simply because they are girls, or boys, or their skin is the “wrong” color, or a doctor has said that they might be born with Down syndrome.

 

First, Justice Thomas agreed with the Supreme Court’s per curium opinion upholding the Indiana law ensuring that children who have been aborted are treated with human dignity after death, at least, by mandating that their remains are buried or cremated just like other human remains. Without laws like Indiana’s fetal remains law, medical facilities are free to dispose of human fetal remains by incinerating them with medical waste, dumping them in landfills, or even burning the remains to generate energy. As Americans United for Life argued in its amicus brief in support of Indiana, this law, like other similar laws around our nation, recognizes the simple biological fact that human fetuses are human beings and, as such, should be treated with humanity and dignity whether in life or in death. That brief detailed the medical and scientific evidence that human fetuses are human beings, and explained that as such, it was constitutional for Indiana to require the humane and dignified disposition of human fetal remains—especially in light of reports of an Indiana waste company dumping human fetal remains in landfills.

 

As Justice Thomas writes, the Seventh Circuit decision holding that “this fetal-remains law was irrational, and thus unconstitutional, under the doctrine of ‘substantive due process’ . . .  was manifestly inconsistent with our precedent . . . .” And indeed, as the per curium opinion notes, the Court had already acknowledged that a State has a “legitimate interest in proper disposal of fetal remains.”[8] The Court reiterates that under rational basis review, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.”[9] Thus, the Justices write, “[t]he Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law. . . . The only remaining question, then, is whether Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains. We conclude that it is . . . .” As Justice Thomas adds in his concurrence, “I would have thought it could go without saying that 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.”

 

Yet Justice Thomas was compelled to write separately on the challenge to Indiana’s law prohibiting discrimination against children in the womb on the basis of race, sex, diagnosis of Down syndrome, disability, or related characteristics.[10] He highlights that while the provision at issue requires that the mother be informed of the restriction on these forms of discriminatory abortion and provided with information about financial assistance and adoption alternatives, only the doctor performing the abortion is subject to liability.[11] And he employs the full force of his position of authority on the highest court in our land to reaffirm, “[T]his law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics” – preventing “immutable characteristics . . . from becoming the sole criterion for deciding whether the child will live or die.”  Justice Thomas powerfully reminds us, “The use of abortion to achieve eugenic goals in not merely hypothetical.” Indeed, he takes this opportunity to educate attorneys, pundits, and the American public about the shameful, sordid history of eugenics right here in America, and that offensive movement’s ties to abortion.

 

Justice Thomas begins by detailing the history of eugenics and eugenic abortion in the United States, from the origins of the term “eugenics” – of relatively recent provenance, being coined in 1883 – and the foothold the modern eugenics movement gained among, as he put it, the nation’s “progressives, professionals, and intellectual elites,” with Harvard University positioned as its epicenter. One can only imagine what Justice Thomas was thinking as he wrote, from the bench of the highest Court, “Other eugenicists similarly concluded that ‘the Negro . . . is in the large eugenically inferior to the white’ based on ‘the relative achievements of the race’ and statistical disparities in educational outcomes and life expectancy in North America, among other factors.” Marking the racial and other various discriminatory targets for eugenics, including the “feeble-minded,” “insane,” “criminalistic,” “de- formed,” “crippled,” “epileptic,” “inebriate,” “diseased,” “blind,” “deaf,” and “dependent (including orphans and paupers),” noting fears of the “prodigious” nonwhite birth rate.

 

Justice Thomas emphasizes that this year is not the first time the Supreme Court has considered the matter of eugenics. Famously, in the 1927 case Buck v. Bell,[12] the Court considered a Virginia law, similar to those in many of the states at the time, allowing for forced eugenic sterilization. Justice Thomas surveys the tactics employed by eugenicists, and indeed, in the early twentieth century, eugenicists were broadly targeting people they considered inferior for whatever reason for disparate treatment, including bans on marriage, birth control, sterilization, prevention from immigration, and community segregation, in order to prevent their procreation and/or participation in society. In most states, the legislature would pass a eugenic sterilization law and procedures would commence. However, in Virginia, attorney Aubrey Strode, who drafted and defended the sterilization bill, pushed the state to verify constitutionality prior to performing any involuntary sterilization, and so it was agreed that the state would set up a test case: Carrie Buck.[13] Buck, a young woman from Charlottesville who had been involuntarily committed to a state facility near Lynchburg, was selected to be the first person involuntarily sterilized under the Virginia regime. She sued to prevent the procedure and appealed to the U.S. Supreme Court.

 

The Court, considering whether the Virginia statute that authorized sterilization denied Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment, upheld the law, 8-1. Justice Oliver Wendell Holmes wrote for the Court, stating that it would be “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,” and concluding, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.” In the 50 years that the law was in effect, approximately 8,000 more Virginians were compulsorily sterilized, and between 60,000 and 70,000 people nationwide, many of whom – including Buck herself – it was later demonstrated had no “hereditary defects” to begin with, and many of whom were never told even what was being done to them. At the Nuremberg trials of Nazi war criminals, the doctors who had performed 375,000 forced eugenic sterilizations cited Buck v. Bell as part of their defense.

 

Justice Thomas then turns to the rise of the movement for birth control in the early 1900s, when the “foundations for legalizing abortion in America were laid,” deftly tying the eugenics movement together with the birth control movement with reference to Margaret Sanger, founder of Planned Parenthood. He exposes her strict adherence to  eugenic beliefs and her focus “‘upon stopping not only the reproduction of the unfit but upon stopping all reproduction when there are not economic means of providing proper care for those who are born in health.’” Sanger believed that even forced sterilization did “not go to the bottom of the matter” because it did not “touc[h] the great problem of unlimited reproduction” of “those great masses.” Justice Thomas writes, “In her view, birth-control advocates and eugenicists were ‘seeking a single end’—‘to assist the race toward the elimination of the unfit.’”

 

Justice Thomas examines Sanger’s rhetoric honestly, noting both that “[i]t is true that Sanger was not referring to abortion when she made these statements, at least not directly. She recognized a moral difference between ‘contraceptives’ and other, more ‘extreme’ ways for ‘women to limit their families,’ such as “the horrors of abortion and infanticide,’” and likewise that “Sanger’s arguments about the eugenic value of birth control in securing ‘the elimination of the unfit’ apply with even greater force to abortion, making it significantly more effective as a tool of eugenics. Whereas Sanger believed that birth control could prevent ‘unfit’ people from reproducing, abortion can prevent them from being born in the first place.”[14] But Sanger went so far as to call abortion a “horror[],” “sordid, abnormal,” and a “disgrace to civilization.” On the other hand, Justice Thomas reveals that many prominent eugenicists, including future Planned Parenthood President Alan Guttmacher, supported both legalized abortion and the use of abortion for specifically eugenic reasons, and finds that “some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics,” in some cases quite openly.

 

After laying that foundation, Justice Thomas returns to the present day, and respondent Planned Parenthood’s promotion of “both birth control and abortion as ‘reproductive health services’ that can be used for family planning.” According to Justice Thomas, “with today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics. Indeed, the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child.” He highlights the devastating percentage of children diagnosed with Down syndrome in uterine who are aborted, the astronomical sex disparity in Asia due to sex-selective abortions and data suggesting that that practice is present in the United States as well, and the evidence of a racial disparity in abortions in America.

 

And so, the Indiana legislature took steps to protect the most vulnerable among us, children in the womb who, moreover, are members of traditionally disenfranchised communities. Planned Parenthood objected as Justice Thomas put it succinctly, “arguing that the Constitution categorically protects a woman’s right to abort her child based solely on the child’s race, sex, or disability.” But as Justice Thomas reminds us, citing Judge Easterbrook‘s opinion dissenting from the Court of Appeals’ denial of rehearing en banc in the case, “‘Casey did not consider the validity of an anti-eugenics law’ and . . . judicial opinions, unlike statutes, ‘resolve only the situations presented for decision.’” In fact, in Casey, Pennsylvania’s prohibition on sex-selective abortions was expressly not challenged, and “[i]n light of the Court’s denial of certiorari today, the constitutionality of other laws like Indiana’s thus remains an open question.”

 

Buck v. Bell was a shameful decision from the supposed arbiters of American justice, in the line of Dred Scott v. Sandford (holding that no person of African descent could claim U.S. citizenship and that Scott and his family were “property,” even after they had lived in slavery-free jurisdictions for years prior to the decision),  Plessy v. Ferguson (establishing the discriminatory “separate but equal” doctrine allowing for school segregation), and Korematsu v. United States (upholding the internment of Japanese-Americans during World War II) – the last a discriminatory decision finally condemned just last year in an opinion penned by Chief Justice John Roberts, in which the Court declared, “The dissent’s reference to Korematsu . . . affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — ‘has no place in law under the Constitution.’”[15]The Court went on to cite from the vigorous Korematsu dissent written by Justice Robert Jackson, who would go on to serve as a chief prosecutor for the U.S. in the Nuremberg trials: “‘The principle [created by a Supreme Court opinion justifying and validating racial discrimination] then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.’”[16]

 

Likewise does eugenics lack any place in law under the Constitution, and likewise, do its principles threaten to take hold once more as some agitate for death over disability. While the Supreme Court has never overturned Buck v. Bell[17] and has not yet acted to prevent the scourge of eugenics from darkening our nation’s history. As Erwin Chemerinsky, Dean of the University of California at Berkeley School of Law, wrote, “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.”[18] And so, as Justice Thomas emphasized, “Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.” Yet he noted, “because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.”

 

The ancient Babylonian Code of Hammurabi emphasized its goal to “bring about the rule of righteousness in the land . . . so that the strong should not harm the weak.” More than 3,500 years later, bringing that aspiration of justice to fruition sometimes seems as far away as ever. Yet Justice Thomas cautions, “The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. 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.” The Supreme Court, as the per curium opinion explains, is awaiting a circuit court split: “Only the Seventh Circuit has thus far addressed this kind of [prenatal nondiscrimination] law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

 

Justice Thomas believes that the Supreme Court will return to the issue of eugenics, and specifically eugenic abortion:

 

Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.

 

And with that, he joins the opinion of the Court but points to the future, inspiring hope that soon the most vulnerable among us may finally achieve true equality.

 

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[1] See generally Ind. Code §§16−34−2−1.1(a)(1)(K), 16−34−3−4(a), 16−34− 4−4, 16−34−4−5, 16−34−4−6, 16−34−4−7, 16−34− 4−8, 16−41−16−4(d), 16−41−16−5 (2018).

[2] Ind. Code § 16-34-4 (2016).

[3] Ind. Code § 16-34-2-1.1(a)(1)(K).

[4] Ind. Code §§ 16-34-3-4(a); 16-41-16-4(d); 16-41-16-5; 16-41-16-7.6.

[5] Planned Parenthood of Ind. & Kent., Inc. v. Comm'r, Ind. State Dep't of Health, 194 F. Supp. 3d 818 (S.D. Ind. 2016).

[6] Planned Parenthood of Ind. & Kent., Inc. v. Comm'r, Ind. State Dep't of Health, 265 F.Supp.3d 859 (S.D. Ind. 2017).

[7] Planned Parenthood of Ind. & Kent., Inc. v. Comm'r, Ind. State Dep't of Health, 888 F.3d 300 (7th Cir. 2018).

[8] Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 452, n. 45 (1983).

[9] Armour v. Indianapolis, 566 U. S. 673, 685 (2012).

[10] Ind. Code §§16–34–4–1 to 16–34–4–8.

[11] See Ind. Code §§16–34–2– 1.1(a)(1)(K), (2)(A)–(C), 16–34–4–9.

[12] 274 U.S. 200 (1927).

[13] Adam Cohen, Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (2016).

[14] Internal citations omitted.

[15] Trump v. Hawaii, 585 U.S. ___ (2018).

[16] Id.

[17] The closest the Court has come is in Skinner v. Oklahoma, 316 U.S. 535 (1942), which found that compulsory sterilization of criminals is unconstitutional if the relevant law provides for different treatments for similar crimes, but the Court declined there to overturn Buck, even in part.

[18] Erwin Chemerinsky, The Case Against the Supreme Court (2014).

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