Justice Thomas Confirms that Down Syndrome Issue Presents Question of “First Impression”

Thomas M. Messner, J.D.  

On May 28, 2019 the U.S. Supreme Court issued a long-anticipated ruling in an abortion case from Indiana involving disposition of fetal remains and whether a state may prohibit abortions performed because of the child’s race, sex, or diagnosis of Down syndrome or other disability.

 

The lower courts had struck down both policies. The Supreme Court reversed the lower court and upheld Indiana’s fetal remains law but declined to rule on the Down syndrome issue at this time.

 

Supreme Court upholds Indiana’s fetal remains law

 

As to the fetal remains policy, the Supreme Court wrote that it had already acknowledged that a State has a “legitimate interest in proper disposal of fetal remains” (internal quotes omitted) and the “Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law.” The Supreme Court concluded that “Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains.”

 

Justice Thomas, in a concurring opinion, put an even finer point on the issue, writing that the Indiana law “prohibits abortion providers from treating the bodies of aborted children as ‘infectious waste’ and incinerating them alongside used needles, laboratory animal carcasses, and surgical byproducts.”

 

In the words of Justice Thomas, “I would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains.”

 

The Court limited its holding to whether the fetal remains policy survived rational basis review and offered no opinion on whether the policy would survive review under the “undue burden” test set out in Planned Parenthood v. Casey.

 

Supreme Court declines to review Down syndrome issue at this time

 

As to the prenatal antidiscrimination policies, the Supreme Court declined to affirm or reverse, instead taking a pass for now.

 

In declining to consider the Down syndrome and related issues at this time, the Supreme Court expressly noted that it was following its “ordinary practice” of denying petitions that raise legal issues not yet considered by additional Courts of Appeals.

 

As the Supreme Court explained, “Only the Seventh Circuit has thus far addressed this kind of law.”

 

The U.S. Court of Appeals for the Sixth Circuit has heard arguments in a case involving Ohio’s Down syndrome protection law but hasn’t issued a ruling yet.

 

Justice Thomas confirms what SBA List had argued – that prohibiting the eugenic practice of Down syndrome discrimination abortion presents an issue of “first impression”

 

SBA List submitted an amicus brief in this case last November. Attorneys Ryan C. Berry and Ryan C. Bradel of the Washington, D.C. law firm Ward & Berry represented SBA List on the amicus brief. I also appeared on the brief.

 

In its brief, SBA List informed the Court that, to date, “12 federal judges in two circuits have split eight to four on whether this Court’s abortion precedents protect the eugenic practice of Down syndrome discrimination abortion.

 

“Eight judges,” SBA List explained, “have adopted or endorsed the view that the rule of viability set out in Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), categorically excludes any previability abortion restriction.”

 

“On the other side of the split,” SBA List continued, “Circuit Judge Frank H. Easterbrook, Circuit Judge Diane S. Sykes, Circuit Judge Amy Coney Barrett, and Circuit Judge Michael B. Brennan have endorsed the view that whether government may prohibit the eugenic practice of Down syndrome discrimination abortion presents a question of first impression under the abortion precedents of this Court.”

 

“As Circuit Judges Easterbrook, Sykes, Barrett, and Brennan persuasively argue,” SBA List contended, Supreme Court “abortion precedents do not address much less settle the question whether government may prohibit the eugenic practice of Down syndrome discrimination abortion.”

 

SBA List Amicus explained that it “strongly support[ed]” a grant of review in this case. At the same time, SBA List argued that, “if the Court denies review of the Down syndrome protections at issue in this case, lower courts and future litigants would nevertheless greatly benefit from an accompanying statement clarifying that whether the U.S. Constitution bars such protections presents a question of first impression under the abortion precedents of this Court.”

 

Justice Thomas, in his concurring opinion, provided precisely the clarification that SBA List recommended in its amicus brief.  He emphasized that whether states may prohibit the eugenic practice of Down syndrome discrimination abortion presents an “issue of first impression” and “remains an open question” in the light of the Court’s denial of review in the Indiana case.

 

In Justice Thomas’s view, “further percolation may assist our review of this issue of first impression.”

 

“Whatever else might be said about [the Court’s 1992 decision in] Casey,” Justice Thomas wrote, “it did not decide whether the Constitution requires States to allow eugenic abortions. It addressed the constitutionality of only ‘five provisions of the Pennsylvania Abortion Control Act of 1982’ that were said to burden the supposed constitutional right to an abortion (citation omitted). None of those provisions,” Justice Thomas continues, “prohibited abortions based solely on race, sex, or disability,” as does the Indiana law in this case.

 

Pro-life impact of Court’s ruling and Justice Thomas’s opinion

 

Although it would have been preferable for the Court to take the case and reverse the Seventh Circuit, thus upholding Indiana’s protections for children with Down syndrome, the next best outcome was a ruling declining to consider the issue at this time and clarifying that the issue remains an open question. Between the Court’s ruling and Justice Thomas’s concurring opinion, that’s exactly what we got.

 

The Court’s ruling leaves the door open for more states to enact laws protecting unborn children from the eugenic practice of Down syndrome discrimination abortion. As Justice Thomas writes, “The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. 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.”

 

Further, Justice Thomas’s concurring opinion will provide clarity and support to lower courts confronting the issue, making it possible for those courts to uphold antidiscrimination protections in accordance with their independent view of the controlling legal principles. For example, on the same day the Court ruled in Indiana’s case, the State of Ohio filed notice informing the Sixth Circuit of the Supreme Court’s ruling and Justice Thomas’s concurring opinion. The Sixth Circuit has heard arguments in a case involving Ohio’s Down syndrome protection law but hasn’t issued an opinion yet. Justice Thomas’s clarification that Down Syndrome protections present an issue of “first impression” and remain an “open question” following the Supreme Court’s decision not to hear the Indiana case could make an important impact on the Sixth Circuit case.

 

With more states passing such prenatal antidiscrimination laws and with lower courts free to consider the issue as one of first impression, the odds increase of a split in the federal circuits, meaning the Supreme Court is more likely to rule on the issue itself at some point in the future. As Justice Thomas wrote in his concurring opinion, “Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”

 

Thomas M. Messner, J.D. serves as Senior Fellow in Legal Policy at the Charlotte Lozier Institute, the educational arm of the Susan B. Anthony List.

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