“It’s wrong, but it’s wrong in an interesting way.”
I can’t remember which professor of mine said that (or what book, article or judicial opinion was being critiqued), but that comment came back to me when I read Justice Clarence Thomas’ opinion this week in an Indiana abortion case.
Thomas joined his colleagues in deciding not to review a federal appeals court decision invalidating a provision of an Indiana abortion law. That section of the law made it illegal for an abortion provider to perform the procedure if the provider knew “that the mother is seeking the abortion solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” (The high court upheld another part of the Indiana law requiring clinics to bury or cremate fetal remains.)
Thomas suggests in his opinion that the issue of bans on “selective” abortion calls for “further percolation” in lower courts. But he warns that the Supreme Court someday soon will have to wrestle with whether laws such as Indiana’s are constitutional, given “the potential for abortion to become a tool of eugenic manipulation.” He seems to signal that he would look with favor on such laws.
Thomas’ use of Sanger to oppose “eugenic” abortion suffers from the inconvenient fact that, as Thomas concedes, Sanger was referring to birth control, not abortion. (She actually described both abortion and infanticide as “horrors.”)
But it’s worth reading past Thomas’ attack on Sanger to take in the legal argument floated in his opinion: that a right to abortion for any reason doesn’t necessarily mean a right to abortion for a malign purpose such as keeping down the number of black or disabled children.
This is where “wrong but in an interesting way” comes in.
Thomas suggests in his opinion that the Supreme Court’s 1992 decision in Planned Parenthood vs. Casey, which upheld the “essential holding” of Roe vs. Wade, “did not decide whether the Constitution requires states to allow eugenic abortions.” He cites an opinion by Frank Easterbrook, a judge on the U.S. 7th Circuit Court of Appeals who dissented from that court’s decision last year not to rehear the Indiana case.
Easterbrook wrote: “Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between ‘I don’t want a child’ and ‘I want a child, but only a male’ or ‘I want only children whose genes predict success in life.’ ”
What makes this argument interesting is that there are some parallels in the law to the idea that a general right to abortion might not include a right to have an abortion for a specific reason.
The other analogy is to jury selection. In empaneling a jury, attorneys are able to lodge what are called peremptory challenges to strike prospective jurors about whom they have qualms. These are challenges for “no reason.”
Yet in its 1986 decision in Batson vs. Kentucky, the Supreme Court ruled that prosecutors couldn’t use peremptory challenges to exclude prospective jurors “solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.”
Again, “no reason” is permissible; “this reason” is not.
These analogies make Thomas’ argument interesting. But here’s why it’s wrong.
Like it or not (and Thomas doesn’t like it), the Supreme Court has declared that the Constitution bestows a right to abortion. As the 7th Circuit persuasively put it in invalidating Indiana’s ban on “selective” abortions, such restrictions violate the court’s holding in Casey that "a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Unless Casey and Roe are overruled, a woman’s right to have an abortion can’t reasonably be compared to an employer’s ability to fire workers or a prosecutor’s prerogative to challenge prospective jurors. So, interesting as Thomas’ legal argument may be, it’s ultimately unpersuasive.
Still, there is more than a legal argument in Thomas’ opinion. He also laments the fact that large numbers of abortions are motivated by a notion that some sorts of offspring are more desirable than others. He cites the high percentage of abortions related to Down syndrome and complains that in Asia, “widespread sex-selective abortions have led to as many as 160 million ‘missing’ women — more than the entire female population of the United States.”