Editor’s Note: Carliss Chatman is an assistant professor of law at Washington and Lee University School of Law and writes about corporate personhood, corporate governance, and ethics. Follow her on Twitter @carlissc. The opinions expressed in this commentary are solely her own. View more opinion articles on CNN.
The Supreme Court provided a strong illustration Tuesday of the approach the majority of the court may take when it comes to the abortion issue: avoid making a decision unless it is absolutely necessary.
The court decided 7-2 to uphold an Indiana law specifying requirements for disposing of fetal remains by abortion providers. But it also declined to consider the portion of the law that bars abortion providers from terminating pregnancies because of fetal characteristics, like gender, race or disability. In doing so, the justices are signaling that the recent draconian abortion laws will not succeed in overturning settled law on a woman’s right to abortion.
The unsigned majority opinion in the case, Box v. Planned Parenthood of Indiana and Kentucky, is concise. It does not wade into the political or social implications of the statute, and instead relies purely on precedent and the procedural posture in the lower court. Notably, two of the court’s four pro-choice justices, Stephen Breyer and Elena Kagan, declined to dissent with Justices Ruth Bader Ginsburg and Sonia Sotomayor, while also declining to sign the majority opinion. Six justices chose to hide behind the anonymity of an unsigned opinion.
While there is little to gain from reading the majority opinion, the concurrence and dissent are another story: each signal what we may expect from future decisions on abortion rights. Justice Clarence Thomas’s concurrence provides a new approach to the anti-abortion argument by focusing on eugenics. “This law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics,” he wrote.
Justice Ruth Bader Ginsburg’s dissent relies on battle-tested legal principles: precedence and procedure. She and Justice Sonia Sotomayor said they would have blocked the entire Indiana law. “This case implicates the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the state,” Ginsburg wrote.
When Thomas speaks, it is usually to coach those who share his extreme beliefs on how to structure future challenges. At other times, his decisions serve as a warning to conservative radicals. In his 25 years of service on the court, he has taken this approach with the First Amendment, same-sex marriage, and the right to bear arms.
Justice Thomas’ concurrence, totaling 20 pages, tells a one-sided and out of context story about the history of birth control and reproductive rights in America by primarily – and misleadingly – citing statements by Planned Parenthood founder Margaret Sanger.
Thomas does this to advocate for his position that states have a compelling interest in prohibiting eugenics in abortion. Eugenics is the pseudo-science of improving the human population through controlled and selective breeding. The practice drew widespread revulsion and condemnation after it was adopted by Nazi Germany as a justification for genocide.
Thomas’ argument is that because abortion and birth control could be manipulated for this purpose, the state’s compelling interest to prevent eugenics should supersede an individual woman’s right to access an abortion.
In his calculation, this state interest is so compelling that it should be allowed to impose an undue burden on a woman in direct contradiction to both the 2016 Whole Woman’s Health v. Hellerstedt decision – which found that some regulations on abortion providers pose an undue burden on women seeking abortions – and 1992’s Planned Parenthood v. Casey decision, which upheld a right to an abortion and established the undue burden standard.
Notably, instead of using these arguments to overturn Buck v. Bell, a 1927 decision that explicitly holds that a state statute requiring sterilization of the “unfit” for the “protection of the state” does not violate the Due Process Clause of the Fourteenth Amendment, he uses it to advocate for additional state interference with the rights of individuals to make their own decisions about reproduction.
In Thomas’ world, apparently, the state can sterilize the incompetent, while denying other women the right to access abortion because they may be doing so for the same reason a state chooses to sterilize.
Thomas brings eugenics into the discussion as a clear signal to the anti-choice movement that more extreme arguments will be needed to persuade the court to consider overturning abortion en masse.
At the same time, Ginsburg’s dissent reminds both us and her colleagues that Casey and Hellerstedt are the law of the land. As such, whenever a statute interferes with a woman’s abortion rights, the court should determine if it imposes an undue burden.
The battle between Thomas and Ginsburg in the footnotes illustrates the fervor each side brings to the abortion debate. Thomas writes that “Justice Ginsburg’s dissent from this holding makes little sense.” Ginsburg writes that Thomas’ concurrence “displays more heat than light…” and “overlooks many things…”
In this battle we see a concurrence and dissent that provide the strongest legal arguments for their respective positions. Thomas signals to state legislators that a broader human rights appeal is necessary to bring the other conservative members of the court over to his side. Ginsburg makes it clear that any successful challenge will need to give even the conservatives on the court a reason to disregard the constitutional right to access abortion and the undue-burden standard of review found in Roe, Casey, and Hellerstedt.
Both Thomas and Ginsburg appear to be indicating that abortion laws will fail in overturning Roe or Casey. For any law to survive without discussion, the restrictions must be written in a way to convince even the more liberal justices that they – like Indiana’s requirements for the proper disposal of fetal remains – are not an undue burden on women’s rights.
For a total ban to succeed, even Thomas, the only justice currently persuaded by a naked “pro-life” argument, needs something stronger to disregard the precedent.