Arkansas case shows path forward for banning Down Syndrome abortions


A novel argument for chipping away at legalised abortion in the United States is catching on amongst the judiciary: abortion should not be used for eugenic purposes.

Earlier this month the US Court of Appeals for the Eighth Circuit struck down Arkansas Acts 493 and 619. The first attempted to ban abortions after 18 weeks because it is possible that some foetuses are viable at that stage. The second would have forbidden abortions of a foetus with Down Syndrome. Little Rock Family Planning Services sued.

The court found that it had no choice but to uphold the US Supreme Court which had ruled in Planned Parenthood of Southeastern Pennsylvania. v. Casey (1992) that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” The Arkansas abortion lobby won the case. However, that is not the end of the story.

In 2019, US Supreme Court Justice Clarence Thomas penned an eloquent dissent in Box v. Planned Parenthood of Indiana and Kentucky in which he declared that the Court needed to examine whether abortion for eugenic reasons is constitutional. “Whatever else might be said about Casey,” he wrote, “it did not decide whether the Constitution requires States to allow eugenic abortions.”

In the Arkansas case, Judge Ralph R. Erickson, bound by precedents established by the Supreme Court, concurred in striking down Acts 493 and 619. However, like other judges, he discerned a gap in current jurisprudence on abortion with respect to Down Syndrome and other birth defects. This was expressed by Judge Easterbrook in his dissent in Box.

Casey and other decisions hold that, until a fetus is viable, a woman is entitled to decide whether to bear a child. But there is a difference between “I don’t want a child” and “I want a child, but only a male” or “I want only children whose genes predict success in life”. Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered.

With this in mind, Judge Erickson wrote his own dissent calling upon the Supreme Court to revisit the issue. It is worthwhile quoting, despite its length:

 

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The great glory of humanity is its diversity. We are, as a species, remarkably variant in our talents, abilities, appearances, strengths, and weaknesses. The human person has immense creative powers, a range of emotional responses that astound the observant, and a capacity to love and be loved that is at the core of human existence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity.

While the state’s interest in nascent life has been recognized to give way to the right of a woman to be free from “unduly burdensome interference with her freedom to decide whether to terminate her pregnancy”, it is apparent that the right is not, and should not be, absolute. By focusing on viability alone, the Court fails to consider circumstances that strike at the core of humanity and pose such a significant threat that the State of Arkansas might rightfully place that threat above the right of a woman to choose to terminate a pregnancy.

… eugenics pose a question that is different in both degree and kind from the interest of the state in nascent life. One of the great curses of the 20th century was the rise of the eugenics movement. It gave a patina of acceptability to such horrors as genocide, forced sterilization, the development of a master race, and the death of millions of innocents.

The new eugenics movement is more subtle, but a state could nonetheless conclude that it poses a great and grave risk to its citizens. A core value of eugenics is the notion that diversity in the human population should be reduced to maximize and eventually realize the “ideal” of a more “perfect person.” Inherent in this concept is the goal of controlling genetic diversity of a population in order to create a super race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The creation of such a cadre of people would undoubtedly lead to greater discrimination against people who are deemed to be “inferior,” resulting in a broad attack on diversity of the human population.

Recent history demonstrates biases broadly prevalent in the society related to race, gender, sexual orientation, and medical or intellectual infirmities that could in the not-too-distant future be the subject of genetic manipulation, either in the laboratory or by termination of pregnancies. The State of Arkansas could decide that the risk posed by such practices presents a greater risk to humanity than a burden placed on a woman’s right to choose to terminate her pregnancy — but such a decision is foreclosed by our current precedent based on viability alone. The state of Arkansas could decide that addressing social inequalities and disparities is a far more appropriate response to marginalised populations than embracing the neo-eugenics movement.

In Western society, there is currently no more threatened population than children with Down syndrome. While there are still 6,000 children born annually in the United States with Down syndrome, the same is not the case in other western democracies. For example, since Denmark adopted universal prenatal screening for Down syndrome, the number of parents who chose to continue a pregnancy after a diagnosis of Down syndrome has ranged from 0–13. Last year, in 2019, only seven pregnancies proceeded to term after diagnosis of Down syndrome and another 11 infants undiagnosed by the testing were born. That is a total of 18 infants with Down syndrome being born in all of Denmark. The State of Arkansas could decide that this kind of eugenics is dangerous and poses a threat to its citizens.

I deeply regret that precedent forecloses a balancing of the state’s actual interest against the woman’s right to choose in enacting Act 619.

 

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The key sentence is: “The State of Arkansas could decide that the risk posed by such practices presents a greater risk to humanity than a burden placed on a woman’s right to choose to terminate her pregnancy but such a decision is foreclosed by our current precedent based on viability alone.” In other words, abortion law, like all law, has to serve the advancement of humanity. Currently it privileges a woman’s right to choose. But what if the state recognized that there are higher issues than the right to choose — like the danger of creating a radically unequal society divided between people who are gene rich and people who are gene poor?

The legal reporter for Slate, Mark Joseph Stern, launched a ferocious attack on Erickson’s dissent. Aborting Down Syndrome babies was not eugenics, he declared. That notion is “both illogical and totally detached from reality”.

This assumes that eugenics is only possible under authoritarian governments like the Nazis and not in a market economy. But philosopher and bioethicist Julian Savulescu, who has studied the issue for years, openly advocates the elimination of Down Syndrome children and calls it eugenics.

It is eugenics. But it’s a different kind of eugenics, and it is already practiced. It’s sometimes called “liberal eugenics,” when people make decisions about the sorts of children they have. Genetic testing during pregnancy is eugenics. Testing for Down syndrome, cystic fibrosis those are sorts of eugenics.

This is an argument to watch. But Judge Erickson’s dissent suggests that judges may be very sympathetic to protecting people with Down Syndrome against abortion.

Michael Cook is editor of BioEdge




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