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Clarence Thomas Tries and Fails to Start a Climactic Abortion Fight

Clarence Thomas Tries and Fails to Start a Climactic Abortion Fight

(Bloomberg Opinion) -- Abortion rights aren’t appreciably more in danger after Tuesday’s U.S. Supreme Court ruling on two Indiana laws than they were before. But it’s clear that the drums are beating — and judicial war over abortion is coming, like it or not.

The court upheld an Indiana law that says fetal remains can’t be “incinerated” with other medical waste but may be simultaneously “cremated.” Seven of the nine justices agreed with this judgment, signaling that the court’s liberals (except Justice Ruth Bader Ginsburg) didn’t want a fight over the law. Avoidance was made easier by the fact that abortion-rights activists did not claim the law unduly burdened a woman’s right to choose.

At the same time, the Supreme Court refused to reconsider a court of appeals decision that struck down Indiana’s law banning abortion providers from knowingly aborting a fetus for reasons of its race, sex or disability. That means the law will never take effect, and selective abortions will remain legal in Indiana.

The justices specified that they weren’t taking a position on whether the law was unconstitutional, just refusing to hear the case because they are waiting for other courts of appeal to rule on similar laws from other states. There seems little doubt that the court will eventually consider this issue.

Justice Clarence Thomas agreed with the delay, but he wrote a separate opinion highlighting his strategy for when the time comes for him to vote to uphold selective abortion bans: He correlated abortion with the eugenics movement of the late 19th and early 20th century.

The fetal-remains decision was important mostly because it showed that the court’s liberals are in cautious, compromise mode. The U.S. Court of Appeals for the 7th Circuit had rejected the fetal-remains law on two grounds. First, it had held that Indiana lacked a legitimate interest in the disposal of fetal remains, because under Roe v. Wade, a fetus is not a person.

The Supreme Court summarily reversed that holding, quoting a statement in a 1983 case that said the government does have “a legitimate interest in proper disposal of fetal remains.” The liberal justices weren’t interested in exploring the lower court’s efforts to explain away the 1983 case in service of a more liberal ruling.

The second argument by the court of appeals was that the Indiana fetal-remains law lacked a rational basis because the law didn’t do much of anything: It gave the woman having the abortion ultimate control over the disposal of fetal remains, and allowed simultaneous cremation while only banning incineration.

The Supreme Court said there was a conceivable justification for the law nonetheless. (It didn’t say what that was, to be sure — but presumably the justification was some symbolic difference between fetal remains and other medical waste.)

Ginsburg wrote separately to say that she thought the appeals court should have asked not whether the fetal-remains law was rational but whether it burdened a woman’s right to choose — which in her opinion it would. Put a little differently, she thought that the Supreme Court’s pro-choice jurisprudence could and should have been used to strike down the law.

The other liberals didn’t join her  — because they want to avoid any cases in which the conservatives have the chance to revisit the “undue burden” standard that currently prevails. Their caution was shared by Planned Parenthood, which in challenging the law had studiously avoided saying it created an undue burden on abortion.

As for Indiana’s selective abortion law, the primary importance of Tuesday’s decision was that it gave Thomas the opportunity to write a draft of the opinion he will write when the court takes on the question directly.

In it, he went to great lengths to try to tar the right to abortion with the brush of eugenics. That undertaking is tricky.

On the one hand, Margaret Sanger, the famous birth control advocate who founded the ancestor organizations of Planned Parenthood, was a confirmed eugenicist. So were the great majority of educated, elite American public figures of the late 19th and early 20th centuries.

Thomas didn’t spare them either, and gave special attention to Justice Oliver Wendell Holmes’s repulsive eugenicism in the 1927 decision of Buck v. Bell,  in which he infamously said that “three generations of imbeciles are enough.”

On the other hand, as Thomas was forced to acknowledge, Sanger didn’t support abortion rights. Indeed, Planned Parenthood itself didn’t call for the abolition of all anti-abortion laws until 1969.

So it’s not that easy to blame eugenics for abortion rights.

Nevertheless, that’s Thomas’s strategy. He named Sanger 38 times in his 20-page opinion. And he asserted that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.”

Of course, Thomas doesn’t need the history of eugenics to reach the conclusion that Roe should be overturned. But his efforts are a strong sign that he’s readying himself for some big battles on abortion.

The public should be ready, too.

Sotomayor didn’t join Ginsburg’s opinion but said without comment that she would have declined to decide the case.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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