Justice Clarence Thomas: States need to pass PreNDA

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Last week, Supreme Court Justice Clarence Thomas outlined the eugenic history of the abortion industry of America.  His concurrence further highlighted the need for states to eliminate abortions targeting society’s most vulnerable based on their race, sex, or disability.  Moreover, such a law would prudently erode the legal foundation of Roe v. Wade.  Unfortunately, the Texas Legislature failed to accomplish this worthy goal when the Texas House refused to set the Preborn Nondiscrimination Act (PreNDA) for a floor vote.

On Tuesday, the Supreme Court of the United States (SCOTUS) declined to review a similar Indiana law that bans abortion on the basis of race, sex, or disability.  The case, Box v. Planned Parenthood, had been pending before SCOTUS for several months.  The Court’s decision not to take up the case is frustrating for many Pro-Lifers, who were yearning for the Court to examine this strategic and dynamic legal question: can states prohibit abortions they find particularly unethical, such as those that target preborn children for discriminatory reasons?

The lack of a circuit court split prompted SCOTUS to make this decision.  A circuit split occurs when two circuit courts arrive at differing conclusions on the same legal question.  Because SCOTUS denied to take up the case, the injunction placed on the life-saving law by the United States Court of Appeals for the Seventh Circuit stands.  Although Thomas agreed with the majority’s opinion not to review that section of the Indiana law at this time, he wrote a separate opinion to make clear that he views the issue of discriminatory abortions as a vitally important legal question and an issue of grave injustice for the preborn.

Thomas wrote, “Given the potential for abortion to become a tool of eugenic manipulation, the Court will soon need to confront the constitutionality of laws like Indiana’s.”  He added, “But because further percolation may assist our review of this issue of first impression, I join the Court in declining to take up the issue now.”

The further “percolation” needed before the Court may take up the issue seems to be conflicting opinions in lower courts.  If another circuit court determines a similar Pro-Life law is constitutional, SCOTUS would have no choice but to examine the case.  Texas’ version of PreNDA is the ideal law to create the split. PreNDA would have ended the remaining late-term abortions in Texas, and would have also prohibited discriminatory abortions.  Challenges to Texas laws fall within the jurisdiction of the United States Court of Appeals for the Fifth Circuit, one of the most favorable circuit courts for Pro-Life laws in the nation. If the Texas House had listened to the grassroots by supporting this Pro-Life priority, Texas would have joined Indiana in protecting preborn babies from discriminatory abortions, likely leading to a circuit split and forcing SCOTUS to take up the case eventually.

Thomas brilliantly illuminated the present need for enacting protections against discriminatory abortions.  He noted that using abortion for eugenics was “not merely hypothetical.” Margaret Sanger, founder of what is now Planned Parenthood, the largest abortion business in America, was once “particularly open about the fact that birth control could be used” for eugenic purposes.

Thomas grants that Sanger mostly spoke of birth control and rather than abortion, but he argues that her claims about the ways to use birth control to eliminate “unfit” populations apply even more eminently to abortion.  He wrote, “Whereas Sanger believe that birth control could prevent ‘unfit’ people from reproducing, abortion can prevent them from being born in the first place.”

As Thomas outlines, this violent and discriminatory use of abortion is already evident.  In Iceland, anti-Life forces have succeeded in killing almost every single child with Down syndrome in an abortion following the widespread use of prenatal screening.  

Additionally, sex-selective abortions have led to millions of “missing” girls in certain parts of the world.  Thomas also noted that in New York City, more black babies are killed in abortion than are born alive.  As Justice Thomas powerfully illustrates, we do not have to imagine a distant future when abortion is used to target and kill innocent human beings deemed unfit or undesirable: we are already living in that world.

In a note of hope, Thomas points the way to restoring justice.  He writes, “In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.”  In this, Thomas affirms that the path forward for the Pro-Life movement is for Pro-Life states like Texas to protect preborn children with legislation like PreNDA. Because the Texas Legislature refused to directly stop abortions this session, Texas will have to wait until 2021 to answer the call.

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