“I do think that the argument can be made that the case law establishes that there is one and only one reason that must be the reason for there to be a constitutional right to an abortion (other than to protect her own life or health): The woman must actually believe that what she is destroying is not a person.”
—-Blogger/retired law professor Ann Althouse, commenting on today’s SCOTUS decision in Box v. Planned Parenthood of Indiana and Kentucky.
The Supreme Court rendered a split decision on Indiana’s contested abortion law. The Justices upheld part of Indiana’s 2016 law placing restrictions on the disposal of fetal remains after an abortion, but left the part of the law overturned that would have prohibited women from choosing the procedure after of a diagnosis or “potential diagnosis” of Down syndrome, “any other disability,” or because of the fetus’s gender or race.
Justice Thomas wrote a dissent taking issue with the latter, writing in part,
“Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.”
Thomas’ point makes no sense ethically. If the fetus is not a person or human being, then it shouldn’t matter why the woman chooses to end her pregnancy. If it is a person or human being and deserves legal protection, then ending its life for any reason is equally wrong.
Ann’s statement, however, is extremely provocative. How many women who want an abortion give honest, unbiased consideration to whether or not the unborn child is “a person”? The entire pro-abortion movement is built on the necessary assumption that fetuses/embryos/unborn babies are not human beings, and it is an assumption that was arrived at in order to allow abortions and make them guilt free. Abortions are not legal because the unborn are not individual human beings; the unborn are not individual human beings so that abortions can be legal.
This why Ann’s framing is fascinating. The unborn is a person or it isn’t; what the potential mother “actually believes” shouldn’t change anything. Do I think that many, many women “actually believe” their unborn child is a person but accept the official pro-abortion cant that it is not in order to justify an abortion?
Yes.
It is a form of contrived ignorance.
[The diagram above comes from The Ethical Skeptic. It’s an interesting site.]
Ethics Alarms 
Legal abortion, just like legal slavery, makes for many bizarre contrivances.
Imagine wanting a child, getting to the point where you discover that the child has Down’s Syndrome, killing the child because you don’t want a child with Down’s Syndrome, and believing that the thing you killed was not a child.
What was the nature of that thing with Down’s Syndrome that you killed?
RBG also said that a woman having an abortion is not a mother. So I guess we can toss out those ‘protection of the mother’s health’ exemptions.
Yes, every now and then we are reminded that RBG is a zealot.
But boy, she looked hot when she was younger, almost like…Felicity Jones?
Disclaimer: have not read the Supreme Court decision. Nonetheless:
I think your issue with Thomas is problematic.
First, I must preface my remark with my favorite quote from the Wisconsin courts: “A dissent is what the law is not.” His dissent is not what the law is.
However, his dissent may not make sense. But, if the prevailing opinion makes no sense, a dissent will have difficulties being sensible. It is almost a reductio ad absurdum. His logical extension of the majority opinion may lead to an absurdity, but that makes a criticism of his dissent non-sensical. If his logical extension of what the majority says leads to silly results, that is an indictment of the majority, not the dissent.
The question is not: does his position make sense?
The question is: does his argument follow from the holding of the majority?
-Jut
Yeah, I think that’s a good point, Jut. A Bizarro World dissent.
I agree with others that have stated here and elsewhere that we don’t need new laws placing more restriction or removing restrictions on abortions. What we need if for society needs to properly define when a fetuses/embryos/unborn baby in the womb becomes a human being and if that means it has to argued in front of the Supreme Court of the United States then we somehow need to make that happen. After that “it’s now a human” definition is complete, existing laws regarding the treatment of human beings will dictate when an abortion is legal and when it is not.
I have lost all willingness to act or speak as though there is even one person anywhere who needs such a definition. There is no basis in reason or empirical investigation for any assertion to the fact that life begins at any point after conception – after all, we can all agree that the lump of cells is living and can die. Furthermore, the idea that such a lump isn’t human is beyond parody, as though we’re in any way unsure whether said lump will develop into a giraffe or kumquat. The matter of ‘personhood’ regarding living humans introduced into the law for the purposes of abortion but not (ever!) slavery is special pleading. Pushing the matter to certain physical or cognitive measurements is a sophistry anchoring quiddity to essential form in a reverse-logical fashion, as though I can lose my personhood while even retaining my life after sustaining sufficient blunt-force trauma.
I will not agree that such an argument needs to be put before a court. I reject the idea that such an argument could convince anyone at this point. The ideas in question haven’t been open questions at any time within my lifetime. The willingness to treat them otherwise is the problem per se. A society which doesn’t discriminate deliberately against known lies is doomed.
Actually, Thomas’ argument makes more sense when describing an proposed Democratic amendment to Ohio’s ‘Heartbeat Bill’. It would have allowed abortions up to 20 weeks for black babies, but only 6 weeks for other babies.
Of course, the author of the amendment likened not being able to abort black babies to slavery.
Actually, Thomas’ dissent IS ethically logical. In his dissent, I’m assuming that Thomas did not reach the point of whether abortion was constitutional or not. The law prohibited women from choosing to abort fetuses on the basis of sex, gender, and disability so it is the LAW itself that is assuming fetuses are instantiated human beings and not hypothetical human beings (which is an obvious and undisputed fact here btw). If you allow abortions in order to kill off certain genders, sexes, disabilities as a constitutional right then you are, IN FACT, enshrining eugenics in the constitution. Thomas was correct. If his dissent means that the United States laws regarding abortion are contrary to the constitution and in all kinds of confused disarray, it’s because they are. I don’t think Thomas is going to argue with you on that point.
Okay, first of all, Thomas did not write a dissent at all. He wrote a concurrence. However, he chose to write separately to highlight what he sees as a problem the court will need to address in the future — the concept that eugenics may be used as a justification for abortions.
Now, Jack, to your point that Thomas’ concurrence, especially the remark you quoted were ethically senseless, I have to disagree with you. I think you analyzed it a) misunderstanding what it was, and b) without the context of the rest of his remarks.
The Indiana law would have forbidden abortions for eugenics reasons by placing certain classes of fetuses outside the protected practice of abortion. The court declined to take that up, and Thomas wrote:
I think Thomas is rightly concerned that if the eugenics component cannot be lawfully removed from legal abortion, there is no room for “personhood” left in the definition for the affected classes. After all, if the greater interests of the human race is at stake, may not even putative “persons” be sacrificed toward the ultimate goal of improving the human condition, especially if the births would otherwise contaminate the gene pool?
Thomas concludes:
The original decision in Roe and its follow-on in Casey acknowledged “viability” and implicit in it, the concept that abortion may be restricted at some point during development. No matter where that point lies, Thomas fears that if the courts don’t weigh in on the possibility of using abortion as a eugenics tool, it will be an exception to any qualification of viability.
I think there is a legitimate ethics concern there. Granted, if a fetus is not a “person” in any stage of development, then even the viability argument is potentially moot, never mind the eugenics argument. But I don’t think even an abortionists wet dream envisions that. Thomas is laying a marker of concern for the future, where a eugenics argument might be used as an exception to viability.
I still don’t get it. Arguing that abortions for any reason should be prohibited (like eugenics)is an admission that there should be no right to abortion at all, just as arguing that some abortions should be permitted (as with rape and incest) is a concession that it should be legal to take an innocent life. They are two sides of the same hypocritical coin. That was my point, and Ann’s. Either it is a life, and no potential mother should be able to kill it for any reason, or it isn’t a life, so it doesn’t matter why a mother wants it killed. By no logical path do we reach a position that endorses eugenics. Thomas is expressing fear of an illogical position, not an immoral one.
Jack, I think your premise and Thomas’ are at cross purposes. The binary “It’s either life or it isn’t” has been rejected implicitly by SCOTUS, or at least modified to imply that human life =/= personhood, and that a fetus isn’t a “person” at least at some point in development, perhaps even from gate to wire. After all, the Constitution does not apply to “human life,” it applies to “persons.” The court has basically said that the two are not the same thing in a constitutional sense.
Morally, I am not suggesting you’re wrong, I even agree with you — a human life is life, and there is no question whatever that the genetic makeup of a fertilized ova is a living, genetic human whether gotten by marital bliss, extra-marital lust, rape, incest, or any other process. It is equally human whether or not afflicted with Downs syndrome, white male syndrome, or whatever.
The question that the court has had to address since Roe is not whether an embryo or fetus is a human life — rather, it it a “person” within the meaning of the constitution, and at what point does it become a “person?”
That’s the backdrop of Thomas’ argument, and understood this way, it makes perfect sense. His fear is that even “persons” may be destroyed for eugenics reasons, much as they would be allowed to be destroyed for reasons of rape and incest under even many of the restrictive abortion laws.
About that diagram on Cultivation of Ignorance, a critique:
The circle farthest to the right, “Media,” should say, “who are not informed, but are expert at weaponizing disinformation and enabling bias.”