Thomas, Ginsburg draw battle lines for future abortion cases

Aidan De Stefano /ACLU

Aidan De Stefano /ACLU

The Supreme Court, though, will wait for other lower-court rulings before weighing in on the fetal characteristics provision.

"This Court has already acknowledged that a State has a 'legitimate interest in proper disposal of fetal remains, '" and the "Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana's disposition law", the order explained.

The court's action on Tuesday keeps it out of an election-year review of the IN law amid a flurry of new state laws that go the very heart of abortion rights.

"Abortion advocates were sometimes candid about abortion's eugenic possibilities", Thomas wrote, quoting Planned Parenthood president Alan Guttmacher as writing in 1959 that the "quality of the parents must be taken into account", including "f$3 eeble-mindedness".

Thomas gave the awful history of the relationship between abortion and eugenics during the early 20th century.

Notably, Thomas at times also implied that he viewed birth control as similarly tied to eugenics.

"Abortion is an act rife with the potential for eugenic manipulation", he warned.

"As a means of reducing the "ever increasing, unceasingly spawning class of human beings who never should have been born at all, ' [Planned Parenthood founder Margaret] Sanger argued that 'Birth Control...is really the greatest and most truly eugenic method" of 'human generation, '" Thomas wrote.

He pointed specifically to the relatively higher abortion rates among African American communities.

"Whatever the reasons for these disparities, they suggest that, insofar as abortion is viewed as a method of 'family planning, ' black people do indeed 'tak [e] the brunt of the 'planning, '" the justice added. The law has yet to take effect and is being challenged in court as unconstitutional. Alabama, Georgia, Missouri, Mississippi and other states have passed restrictive abortion laws in recent months.

The more feasible outcome is that the Supreme Court will continue to tinker with Roe by reviewing laws that arguably impose an "undue burden" on women's right to decide for themselves whether to terminate a pregnancy.

As Easterbrook powerfully opined last June in dissenting from the Seventh Circuit's decision not to rehear the case in front of the full court, "None of the [Supreme] Court's abortion decisions holds that states are powerless to prevent abortions created to choose the sex, race, and other attributes of children".

Justice Clarence Thomas wrote a long concurrence on that issue, warning that the Court can not ignore it forever.

The justices instead threw out a ruling by the New Orleans-based 5th US Circuit Court of Appeals that had barred the lawsuit and asked the lower court to reconsider the matter.

Or the Court could strike down the heartbeat laws and draw the constitutional line somewhere else-perhaps at the middle of the second trimester, where Utah and Arkansas would now ban the procedure. Where else could they turn? "The Constitution itself is silent on abortion".

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