This week, the U.S. Supreme Court decided Box v. Planned Parenthood, ruling 7-2 that Indiana’s human fetal remains law is constitutional. Americans United for Life had filed a brief in support of Indiana’s law, which went to the U.S. Supreme Court because the Seventh Circuit had struck it down as unconstitutional:

Americans United for Life filed a “friend of the court” brief in support of Indiana on behalf of AUL and the Charlotte Lozier Institute, asking the Supreme Court to take the case to address this nationally important question. The brief explains that human fetuses are human beings, and as such, it was constitutional for Indiana to require the humane and dignified disposition of human fetal remains—especially in light of reports of an Indiana waste company dumping human fetal remains in landfills. 

“AUL is delighted that the Court agreed to address this important issue,” said AUL’s Litigation Counsel Rachel Morrison. “Without laws like Indiana’s fetal remains law, medical providers are free to dispose of human fetal remains by incineration with medical waste, by dumping in landfills, and even by burning the remains to generate energy. Indiana’s law recognizes the simple biological fact that human fetuses are human beings and, as such, should be treated with humanity and dignity whether in life or in death.”

Box v. Planned Parenthood is a major victory for life-affirming law and policy, because it is a de facto acknowledgement by the U.S. Supreme Court of the basic humanity of those once-living human beings whose lives were terminated through abortion. Where do human fetal remains comes from, but from human beings?

Justice Clarence Thomas’s concurrence is highly significant, because he uses Box v. Planned Parenthood to speak authoritatively on an aspect of the case that the Supreme Court has punted on, namely whether eugenic abortions (abortions for reasons of race, gender, disability, etc.) are permissible. Thomas writes powerfully on the history of eugenics and abortion, and concludes by getting to the heart of the matter, which is that abortion will continue to haunt the Supreme Court because it is the Supreme Court itself created the right to abortion and therefore will need to continue to legislate its boundaries so long as it continues to promote abortion as a legitimate human practice:

“This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics. Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics. …

Today, nonwithstanding Sanger’s views on abortion, respondent Planned Parenthood promotes both birth control and abortion as ‘reproductive health services’ that can be used for family planning. And with today’s prenatal screening tests and other technologies, abortion can easily be used to eliminate children with unwanted characteristics.

“Indiana’s Legislature, on the 100th anniversary of its 1907 sterilization law, adopted a concurrent resolution formally ‘express[ing] its regret over Indiana’s role in the eugenics movement in this country and the injustices done under eugenic laws.’ Recognizing that laws implementing eugenic goals ‘targeted the most vulnerable among us, including the poor and racial minorities, … for the claimed purpose of public health and the good of the people,’ the General Assembly ‘urge[d] the citizens of Indiana to become familiar with the history of the eugenics movement’ and ‘repudiate the many laws passed in the name of eugenics and reject any such laws in the future.’

“In March 2016, the Indiana Legislature passed by wide margins the Sex-Selective and Disability Abortion Ban at issue here. Respondent Planned Parenthood promptly filed a lawsuit to block the law from going into effect, arguing that the Constitution categorically protects a woman’s right to abort her child based solely on the child’s race, sex, or disability. The District Court agreed, granting a preliminary injunction on the eve of the law’s effective date, followed by a permanent injunction. A panel of the Seventh Circuit affirmed. …

“Enshrining a constitutional right to an abortion based solely on race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the vies of the 20th-century eugenics movement. In other contexts, the [U.S. Supreme] Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. … 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. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.”

I want to highlight something from a footnote from Justice Ginsburg in Box v. Planned Parenthood, because it’s something that will only look worse with time. In responding to Justice Thomas’s concurrence, Justice Ginsburg asserts that pregnant women who choose to abort their children are not mothers: “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’”. While this might be causally accurate—in the sense that women whose children have died are no longer mothers—it’s neither intellectually nor scientifically coherent. Despite his rejection of her, Steve Jobs was the father of his daughter Lisa from the very first moment of her existence—and it’s no different for mothers, despite Justice Ginsburg’s tortured philosophy.