Published April 16, 2021
Earlier this week, the Sixth Circuit Court of Appeals in PreTerm-Cleveland v. McCloud upheld an Ohio law forbidding doctors from knowingly performing an abortion on an unborn child diagnosed with Down syndrome.
Because several of the concurrences referenced a 2019 concurrence by Justice Clarence Thomas in Box v. Planned Parenthood — in which he illustrated the link between the logic of selective abortion and the history of eugenics — the Sixth Circuit decision has occasioned commentary from abortion proponents who argue that abortions chosen because of a Down-syndrome diagnosis are not eugenic in nature.
Writing in Slate, Mark Joseph Stern alleges that the Sixth Circuit ruling exemplifies an effort by conservative judges to “manipulat[e] the history of eugenics” to overturn Roe v. Wade. Stern interviews New York University law professor Melissa Murray, who asserts, among several other inaccurate claims, that it is pro-lifers, not proponents of abortion, who historically have been motivated by discrimination: “Abortion restrictions were fueled by the fear that white women were using abortion and, as a consequence, were not having as many children, and the white race was about to be overwhelmed by African Americans and immigrants.”
In fact, something close to the opposite is true. As I wrote in response to Harvard law professor Laurence Tribe last year, it is the abortion-rights movement, not the pro-life movement, that finds its origins in the U.S. population-control and eugenics movement. Far from opposing abortion, the eugenics movement considered it an essential part of preventing, whether via birth control, sterilization, or abortion, “undesirable” populations such as minorities and low-income individuals from reproducing.
Statistically speaking, our regime of legal abortion has performed how these white supremacists might have hoped. Today, an African-American woman is nearly three times as likely as a white woman to have an abortion, according to the pro-choice Guttmacher Institute. Centers for Disease Control data show that African Americans accounted for 36 percent of abortions in 2015, despite being only 13 percent of the population.
Meanwhile, about 80 percent of Planned Parenthood’s abortion facilities are located within walking distance of neighborhoods occupied predominantly by black and Hispanic residents. Surely that is no coincidence. That these women choose abortion at such a disproportionately higher rate than wealthy white women is hardly a sign of liberation or progress.
Murray goes on to argue that “there’s a real difference between a state sterilizing the ‘feeble-minded’ in Buck v. Bell and an individual woman’s decision to terminate a pregnancy because of a fetal anomaly or diagnosis.”
Murray is correct, to be sure, that there are important distinctions between a state-sponsored regime to target “unfit” populations and a woman choosing abortion after receiving a prenatal Down-syndrome diagnosis. But the concurrences in Preterm-Cleveland v. McCloud never assert that these situations are exactly alike. Rather, they argue that the core belief behind these situations is precisely the same: that some human lives are of lesser value and that, as a result, other human beings must be given the power to exterminate them at will.
A similar argument appeared today on the legal blog Dorf on Law, in an article by Sherry F. Colb, a Cornell University law professor. Colb argues that, because eugenics is defined as “a movement . . . aimed at improving the genetic composition of the human race,” it is inapt to call selective abortions “eugenic,” because a woman who chooses abortion after a Down-syndrome diagnosis “understands that she is thereby doing virtually nothing to alter the human genome.”
But Colb ignores another meaning of the adjective “eugenic”: “relating to or fitted for the production of good offspring.” Though the term “eugenics” undoubtedly evokes a program of controlled, selective breeding to reshape a population, it is entirely accurate to describe as “eugenic” an individual choice to eliminate a child deemed “unfit,” even in just one instance.
Colb concludes with this argument:
What if everyone pregnant with a DS fetus terminates? What then? Do we want to live in a world in which DS people are extinct? No. There is no question but that people with DS, like people with all sorts of other challenges, enrich our world and teach us to tolerate those who differ from ourselves. It would indeed be sad if the world contained no one with DS. But just because we want a group of people in the world does not entitle us to conscript individuals to create such people in their wombs.
But of course, forbidding abortions chosen on the basis of disability cannot rightly be described as “conscripting individuals to create such people in their wombs.” When a pregnant mother receives a prenatal Down-syndrome diagnosis, she has already created a human being who might have Down syndrome (though such tests have been known to be wrong). Forbidding a woman from actively killing her unborn child based on its disability is not the same thing as conscripting her into creating that child.
That defenders of legal abortion are reduced to such arguments is telling. In the end, it doesn’t matter much whether we can rightly label certain abortions “eugenic” or whether one side of the debate has the most accurate history of racial discrimination and population control.
What matters is that, in Ohio, lawmakers have laid down a marker establishing that it is wrong and therefore that it is now illegal to end the life of an unborn human being simply because he or she is diagnosed with a chromosomal abnormality. Supporters of abortion refuse to respond to this argument, because to do so would expose the logic of all abortion, which, regardless of disabilities, grants some human beings the power to declare the lives of others not worth living.
Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.