A three-judge panel of the 8th U.S. Circuit Court of Appeals has ruled that existing precedents don’t allow states to ban abortions based on the age of the unborn or on a Down syndrome diagnosis.
However, in a separate opinion, Judge Ralph Erickson said the Supreme Court must review its abortion standards because of a “new eugenics” agenda.
“One of the great curses of the 20th century was the rise of the eugenics movement. It gave a patina of acceptability to such horrors as genocide, forced sterilization, the development of a master race, and the death of millions of innocents,” wrote Erickson, who was appointed by President Trump.
“The new eugenics movement is more subtle, but a state could nonetheless conclude that it poses a great and grave risk to its citizens,” he wrote. “A core value of eugenics is the nation that diversity in the human population should be reduced to maximize the eventually realize the ‘ideal’ of a more ‘perfect person.’ Inherent in this concept is the goal of controlling genetic diversity of a population in order to create a super race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The creation of such a cadre of people would undoubtedly lead to greater discrimination against people who are deemed to be ‘inferior,’ resulting in a broad attack on diversity of the human population.
“Recent history demonstrates biases broadly prevalent in the society related to race, gender, sexual orientation, and medical or intellectual infirmities that could in the not-too-distant future be the subject of genetic manipulation, either in the laboratory or by termination of pregnancies. The state of Arkansas could decide that the risk posed by such practices presents a greater risk to humanity than a burden placed on a woman’s right to choose to terminate her pregnancy – but such a decision is foreclosed by our current precedent…”
Erickson said the state of Arkansas “could decide that addressing social inequalities and disparities is a far more appropriate response to marginalized populations than embracing the neo-eugenics movement.”
National Review reported the laws that were overturned would have barred a doctor from performing an abortion when the probable age of the unborn is greater than 18 weeks. Also allowed now are abortions when the abortionist knows the mother is aborting her child “solely” on the basis of a Down syndrome diagnosis.
Judge Bobby Shepherd added: “Today’s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state’s ‘compelling interest in preventing abortion from becoming a tool of modern-day eugenics.’ … The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child.”
Erickson also noted: “The great glory of humanity is its diversity. We are, as a species, remarkably variant in our talents, abilities, appearances, strengths, and weaknesses. The human person has immense creative powers, a range of emotional responses that astound the observant, and a capacity to love and be loved that is at the core of human existence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity…”
In fact, on these issues, U.S. Supreme Court Justice Clarence Thomas, when that high court refused to consider one such dispute, warned, “Although the court declines to wade into these issues today, we cannot avoid them forever.”
The issue was a ban on abortions on the basis of sex, race or disability, which had been struck down by lower courts.
Thomas said such laws “promote a state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
Another decision, from the 7th Circuit, found that precedents “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.’ Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay” existing precedent.”
Margaret Sanger, the founder of abortion industry giant Planned Parenthood, was a well-known eugenicist.
Arkansas officials may appeal the case to the Supreme Court, which would give the justices an opportunity for review of its precedents, as the 8th Circuit suggested.
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