The Supreme Court Dodges an Abortion Case

“There’s a fundamental principle of law that derives from Sherlock Holmes,” Justice Samuel Alito mused from the bench last November, “which is the dog that didn’t bark.”

Alito was referring to “The Adventure of Silver Blaze,” in which a watchdog at a stable did not bark at an intruder because, as Holmes deduced, “the midnight visitor was someone whom the dog knew well.” There are, however, other reasons that a watchdog might not bark. The dog might be asleep, or well fed and torpid, or muzzled. Or perhaps the dog might have muzzled itself.

Self-muzzling seems to be what the Supreme Court has done so far this term in the contentious area of abortion, now boiling over in the states. In February, the Court granted a temporary stay of a Louisiana abortion law that would have put five of the state’s six abortion providers out of business. But Chief Justice John Roberts, who cast the deciding vote, gave no hint of how he would vote on the law when the Court gave the case full consideration. And on Tuesday, the Court dodged the validity of an Indiana statute that required abortion clinics to dispose of an aborted fetus in much the same manner as the body of a dead person, and, second, required doctors to tell women seeking abortion that state law forbade choosing abortion “solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability.”

Michael Wear: The abortion debate is no longer about policy

In a remarkable feat of procedural legerdemain, the Court made the issues disappear. It decided that the “fetal remains” provision could take effect because the court below had used the wrong standard to decide the issue, and continued an injunction on the “non-discrimination” law—while claiming to express no view on its validity.

The law at issue in Box v. Planned Parenthood of Indiana and Kentucky was passed in 2016 and signed by then-Governor Mike Pence, who said at the time that it would “ensure the dignified final treatment of the unborn and prohibit[] abortions that are based only on the unborn child’s sex, race, color, national origin, ancestry or disability, including Down syndrome.” Soon after, a panel of the Seventh Circuit struck down both provisions. The “non-discrimination” provision, it reasoned, contravenes 1992’s Planned Parenthood v. Casey, which held that state laws may not impose an “undue burden” on a woman’s choice. The Casey Court explained that, under that standard, abortion before viability is the pregnant woman’s decision alone; the state does not get to evaluate her reasons.

“The [non-discrimination] provisions prohibit abortions prior to viability if the abortion is sought for a particular purpose,” the Seventh Circuit panel majority wrote. Thus, they “are far greater than a substantial obstacle; they are absolute prohibitions on abortions prior to viability which the Supreme Court has clearly held cannot be imposed by the State.”

As for the “fetal remains” provision, the panel majority said, there was no need to apply the Casey standard, because the law was irrational. Until its passage, abortion clinics had been allowed to incinerate fetal remains along with other human tissue, such as organs removed during surgery. Under the new law, fetal remains, unlike cadavers, could receive “simultaneous cremation” rather than individual disposal—but they could not be removed from the facility without a “permit for the transportation and disposition of a dead human body.” The woman who obtained the abortion could also take the remains herself and dispose of them as she chose.

Read: A pastor’s case for the morality of abortion

Indiana argued that the “fetal remains” provision embodied the state’s “moral and scientific judgment that a fetus is a human being.” But since Roe v. Wade, the panel majority noted, Supreme Court precedent has held that states cannot impose this doctrine of “fetal personhood” on women seeking abortion. “Simply put, the law does not recognize that an aborted fetus is a person,” the panel wrote.

Indiana petitioned the Supreme Court for review, arguing that:

The fetal disposition provision expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus. The non-discrimination provision, on the other hand, is a qualitatively new type of abortion statute that responds to new technological developments allowing women to make a choice not contemplated at the time of Roe v. Wade: the choice of which child to bear.

On Tuesday, the Court—for now — reversed the “fetal remains” decision, allowing that part of the law to take effect. A 1983 Supreme Court case had said that states do have a “legitimate interest” in “dignified disposal of human remains.” Thus, the Court reasoned, the finding of irrationality was an error. The Court implied that the “fetal remains” provision should in fact have been judged under the Casey standard.

Instead of saying anything of substance, the majority said it would wait for cases under way in other circuits that do seek to apply that standard: “Our opinion expresses no view on those challenges.” The Court also said it would not decide the “discrimination” issue, since “only the Seventh Circuit has thus far addressed this kind of law,” and the justices wanted to hear from other circuits before wading in. The opinion “expresse[d] no view on the merits” of this issue either.

In theory, the “undue burden” standard should be harder, not easier, for a “fetal remains” law to pass than the “rational basis” standard (which in essence asks only, “Is this law crazy?”). But in the past three years, the very meaning of “undue burden,” never crystalline in the first place, has become blurred beyond recognition, and no one knows what the post-Kennedy Court will do with it. Thus, as draconian abortion bans hurtle toward its inbox, the Court has managed to deal with this earlier contentious case by not really dealing with it at all.

Read: State-mandated mourning for aborted fetuses

Justice Clarence Thomas, by contrast, is always eager to share his opinion. His separate opinion is remarkably broad: It suggests that states should be able to ban—and indeed should ban—not only abortion but birth control as well.

The reason, Thomas argues, is that both birth control and abortion were embraced in the early 20th century by the eugenics movement. The most extreme form of this movement believed that government policy should be aimed at ensuring that the fittest human stock reproduced itself, while the unfit—those with congenital medical conditions, or the unintelligent, “feeble-minded,” and insane—should be put on the road to extinction by birth control, abortion, or sterilization. Some parts of the movement were solidly racist, and indeed provided inspiration for the genocidal ideology of National Socialism in Germany.

Margaret Sanger, a pioneer of birth control and a founder of Planned Parenthood, was, Thomas argued, not only a eugenicist, but a racist who aimed at limiting or even eliminating the African American population. The claim stems in part from a 1939 letter in which Sanger wrote that birth-control advocates should reach out to black ministers to explain the goals of the movement: “We do not want word to go out that we want to exterminate the Negro population, and the minister is the man who can straighten out that idea if it ever occurs to any of their more rebellious members.”

Sanger’s words, in context, seem to me pretty clearly to indicate that she was afraid that black Americans would wrongly come to believe that birth control was a white plot. Nonetheless, the pro-genocide reading has already been embraced by Secretary of Housing and Urban Development Ben Carson and the former presidential candidate Herman Cain. With Thomas’s embrace, it has now achieved a trifecta among the far-right wing of African American conservatism.

Citing Sanger in the abortion context is odd, however: Sanger was, in fact, never in favor of legal abortion; even Thomas admits, more or less under his breath, that she vocally opposed “the horrors of abortion and infanticide.” Thus, though Thomas does not say so, the genocide-related arguments he is making must apply with at least equal force to birth control itself. Thomas seems to be hinting that, once abortion is outlawed, the movement will have another objective—ending birth control as well.

Remarkably, in the 20 pages of Thomas’s opinion, not one word or phrase ever describes the choice of abortion as a decision made by a woman for reasons of her own. “There are,” he reports, “areas of New York city in which black children are more likely to be aborted than they are to be born alive—and up to eight times more likely to be aborted than white children in the same area. Whatever the reason 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.’” If black women are choosing to abort, in other words, they could not be making this most personal of decisions independently; sinister unseen forces must be imposing it on them.

If there is any comfort in this decision for advocates of reproductive rights, it is that not even Thomas’s ideological soul mate, Justice Neil Gorsuch, was willing to join such a flamboyant opinion. That’s not much, but it’s all I can see. Overall, the Court is playing its abortion cards very close to the vest. If it is going to continue to be a watchdog of abortion rights, it seems likely to be a very quiet one indeed.