The Supreme Court has the chance, and the duty, to accept a case to decide if states can protect disabled babies, or babies of an unwanted race or sex, from elective abortion. Here’s hoping the court finds the minimal courage and the decency not to duck the issues.
Under Chief Justice John Roberts, the court in recent years often has punted on contentious issues, either by refusing to accept key cases for review or by severely narrowing the scope of its rulings. Conservatives were particularly disappointed that Roberts and new Justice Brett Kavanaugh joined the court’s four Democratic appointees last month in declining review of a case involving abortion-mill organization Planned Parenthood. Justice Clarence Thomas wrote in dissent that the two Republican establishmentarians were “abdicating our judicial duty” specifically by avoiding any cases remotely affecting the “politically fraught issue” of abortion.
But that case was only tangentially related to abortion. Tomorrow, the high court will decide whether to accept review of a case in which an appeals court ruled Indiana may not outlaw abortions motivated only by the race, sex, or disability of the child. (The court also invalidated Indiana’s statute mandating that fetal remains be disposed of only by burial or cremation, which are the same rules applying to other human remains.)
Both questions present the Supreme Court with important legal issues, clearing up holes or lack of clarity in the court’s earlier abortion rulings. These are exactly the sorts of constitutional questions the high court ought to, and usually does, review — especially because the fetal-tissue decision from Indiana conflicts with the decision of a different appeals court.
When two federal appeals courts reach different conclusions on the same question, the justices almost always feel obligated to answer the question. Otherwise, different constitutional standards will apply in different parts of the country. Such situations clearly violate the principle of equal justice under the law.
Meanwhile, sex-selective abortion, or race-selective abortion, or abortion chosen as a means of rejecting the disabled, are forms of eugenics — the deliberate attempt to control hereditary qualities by non-natural means. As Judge Frank Easterbrook wrote in dissent from the Seventh Circuit Court of Appeals decision, the Supreme Court has never directly considered the “morally and prudentially debatable” considerations involved in this case.
Pro-life activists are viewing Friday’s Supreme Court conference as a test of whether all their work to confirm Kavanaugh was worth the effort. They have a good point, but the question is larger than that. The bigger question is whether Kavanaugh will continue backing Roberts’ unfortunate tendencies.
Yes, it is a good thing the chief justice wants the high court not to push its way into issues best left to government’s elected branches. Yet Roberts seems to go beyond that. He seems to reject his court’s responsibility to resolve questions arising when lower courts intervene to block legislative action. He thus worsens the problem he is trying to avoid. As the Wall Street Journal editorialized a week ago, Roberts’ “failing to stop usurpations by lower courts encourages [lower-court] judges to act like politicians.”
Eugenics historically has been seen as a particularly nasty business. If mandated by governments, it is monstrous. The question is whether the Constitution allows its sovereign states to keep private individuals from practicing the nasty business. If invidious discrimination is not allowed at lunch counters, why should it be allowed in the maternity ward?
Surely the Supreme Court should not leave this question subject to the interpretive whims of panels of judges in 12 different geographic divisions of this one country under God.
