This Wednesday, the U.S. Court of Appeals for the Sixth Circuit upheld an Ohio law prohibiting abortions if doctors know the reason is because the fetus has been diagnosed with Down Syndrome. According to the court's conservative judges, the law is justified because it seeks to combat eugenics by protecting disabled fetuses.
"To get around precedent, the Sixth Circuit drew heavily from Justice Clarence Thomas' 2019 solo opinion in Box v. Planned Parenthood, which decried abortion as a 'tool of modern-day eugenics.' A lower court's heavily reliance on a lone concurring opinion may seem odd. But, in an article published in the Harvard Law Review just two days before the Sixth Circuit's ruling, New York University Law Professor Melissa Murray presciently anticipated Thomas' impact on anti-abortion jurisprudence. By tethering abortion to the eugenics movement, Murray wrote, Thomas had not just provided a justification for 'trait-selection laws,' but laid the groundwork for overruling Roe and Casey on the grounds that they are tainted by discrimination," writes Slate's Mark Joseph Stein.
Stein interviewed Melissa Murray about the case, which may allow the Supreme Court to revisit abortion.
Murray said, "may truly provide a vehicle for getting a case to the court. And once it gets to the court, it opens up a larger question about whether Roe continues to be good law. And if you have this narrative that's been raised repeatedly in those concurrences in the Sixth Circuit that abortion has eugenic potential. Once you've credited that idea, you can begin to line up the arguments against Roe. In light of Ramos, I think there's an opening to think about whether Roe is rooted in this earlier history of eugenics and the possibility of deracination and is part of a genocidal plot. And suddenly you're in business."