In 1989, Supreme Court Justice Antonin Scalia wrote in a concurrence in Webster v. Reproductive Health Services that “the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.”
More than three decades later, Scalia has been proven to be right in many ways: Abortion is a societal norm, championed by progressives and feminists not just as a legal right but a cultural good. However, pro-life advocates have made headway both legally and culturally, disassembling abortion doorjamb by doorjamb: Several states have passed heartbeat bills that have limited abortion on the grounds of viability and personhood. A majority of people believe abortion should be at least somewhat restricted.
On Tuesday, the U.S. Court of Appeals for the Sixth Circuit’s ruling demonstrated yet another doorjamb broken down — or maybe cracked a bit. In Pre-Term Cleveland v. McCloud, the federal appeals court upheld H.B. 214, an Ohio law that bans doctors from knowingly aborting a baby with Down syndrome. The majority found that “the restrictions imposed, or burdens created, by H.B. 214 do not create a substantial obstacle to a woman’s ability to choose or obtain an abortion.”
The hopeful part of the ruling is the section where the judges call the practice of knowingly aborting a baby with Down syndrome what it is: eugenics. Judge Richard Griffin wrote separately to “emphasize Ohio’s compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics …. Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.”
Griffin follows in the footsteps of Supreme Court Justice Clarence Thomas, making good on his 2019 opinion in Box v. Planned Parenthood of Indiana and Kentucky that predicted abortion could become a “tool of eugenic manipulation.”
Diving deep into the controversial movement from the early 20th century aimed at improving society by encouraging the reproduction of certain traits, Thomas also charged that Planned Parenthood founder Margaret Sanger was once “particularly open about the fact that birth control could be used” for eugenic purposes. His opinion was “gloriously brutal,” I wrote in these pages in 2019, and it was a “multi-page history lesson” this country severely needed. Thomas wrote:
The president of the Susan B. Anthony List, Marjorie Dannenfelser, lauded Tuesday’s ruling and the boldness of the court majority to call out dissenters who wish to continue modern eugenics by aborting babies with Down syndrome and labeling it a constitutional right.
“Now that a circuit split has occurred on the issue of whether states may prohibit the eugenic practice of discrimination abortion, the Supreme Court has even more reason to weigh in on this important matter and declare these laws as constitutional,” she said in a statement. “We encourage the high court to act now that this issue has received further consideration in the lower courts. Discriminatory abortions based on sex, race and disability are no less than modern-day eugenics, and must swiftly come to an end.”
There is a long way to go in the United States to fully dismantle the mansion of abortion, and Scalia is right: Some pieces of ugly plywood will always remain. But this week’s ruling took apart a bit of a stubborn doorjamb, calling out abortion for what it often is, modern-day eugenics, and protecting babies with Down syndrome, the most vulnerable of all.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
