The Supreme Court again has aborted its responsibility to provide more clarity on abortion-related legal issues. In doing so, the court continues its troubling tendency under Chief Justice John Roberts to avoid politically controversial issues, split any difference that can be split, and push off until a distant tomorrow what should be done today. The Roberts court is thus creating more confusion where certainty should reign.
The case at hand, Box v. Planned Parenthood of Indiana, involved an Indiana law that would protect disabled babies or babies of an unwanted race or sex from elective abortion on the grounds of those characteristics. Against a stirring dissent from Judge Frank Easterbrook, the U.S. 7th Circuit Court of Appeals ruled the Indiana law invalid. The Supreme Court declined to review the case, thus for now letting the 7th Circuit’s decision stand for the three states over which the circuit has jurisdiction.
The court’s excuse was that it has a supposedly “ordinary practice” of accepting cases only when two or more appeals courts have reached differing conclusions on the same legal issues. It’s a weak excuse. The same “Rule 10” of the Supreme Court that lists conflicting lower court rulings as one reason for granting review on an issue also says the justices likewise may take cases in which “a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.”
As I wrote in an earlier column on this case, and as the Wall Street Journal noted in an editorial, this latter consideration is especially relevant when the lower court has overturned a state’s duly instituted law. It is one thing to let stand a state law when the only appeals court that reviewed it ruled it OK. It’s a more pregnant question if a court and a legislature are in conflict.
If lower courts think the Supreme Court won’t review their decisions overruling legislative action as long as other appeals courts haven’t already considered the same question, then, as the Journal wrote, it “encourages judges to act like politicians and undermines public confidence in the judiciary’s independence. The Chief has to send a message of discipline and restraint to willful lower-court judges.”
Here, the issue is of pressing importance as a matter of both law and civilization. As I wrote in January, “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 nonnatural means. … Eugenics historically has been seen as a particularly nasty business. If mandated by governments [such as it was under Nazi Germany], it is monstrous.” Indeed, one of the most acclaimed foreign films of 2018, “Never Look Away,” is a thinly fictionalized account of the true story wherein German painter Gerhard Richter’s schizophrenic aunt was sterilized and then murdered by Nazis, originally under the auspices of the doctor who later became Richter’s father-in-law. It’s a movie well worth seeing.
At least one justice had the gumption to address the eugenics issue. While not formally dissenting from the court’s decision not to grant review in the Box case, Clarence Thomas devoted a 20-page opinion to explaining why, from a constitutional and moral standpoint, eugenics is so fraught with horrific and quite literally dehumanizing implications.
Most American advocates of eugenics, when it was popular in the 1920s and 1930s, openly advocated it as an effort to keep black Americans from reproducing. As late as the 1950s, Thomas noted, a leading legal scholar who would be cited favorably by the Supreme Court in later decades argued not just for eugenic abortions but for infanticide: “An eugenic killing by a mother, exactly paralleled by the bitch that kills her misshapen puppies, cannot confidently be pronounced immoral.”
This is sick stuff. It was exactly to guard against such horrors that the Indiana legislature acted to stop specifically (and only) those abortions which “targeted the most vulnerable among us, including the poor and racial minorities.” Surely, reasoned Thomas, this legislative goal meets the test of having a constitutionally “rational basis.”
After all, he wrote, “In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.” So, why not vindicate those rights when they involve life itself?
“Although the Court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote. “Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”
He’s right. It’s time the court stopped cowering.
