Abortion, the Supreme Court, and the Limits of Personal Freedom

| June 17, 2019

Abortion, the Supreme Court, and the Limits of Personal FreedomThe last substantive decision from the Supreme Court concerning abortion was Whole Woman’s Health v. Hellerstedt, decided in June, 2016. There the Court found unconstitutional a Texas law requiring that (i) abortion facilities had to meet the safety standards of outpatient surgical centers, and (ii) that doctors at an abortion center had to have admitting privileges at a hospital not more than 30 miles away. The vote was 5 -3, there being only eight justices due to the death of Justice Scalia.

Now, there are two new justices on the Court, appointed by President Trump. These are Neil Gorsuch (who replaced Justice Scalia) and Brett Kavanaugh (who replaced Justice Kennedy). Justice Kennedy was one of the five votes in the majority of Whole Woman’s Health.

Washington, the talk show circuits, and state legislatures are now full of anticipation as to whether the Court will dramatically change its direction on abortion, and perhaps even overturn Roe v. Wade.

Some states have passed laws intended to present the Supreme Court with that opportunity.  Kentucky, Mississippi, Ohio, and Georgia have passed bills that ban abortion once a fetal heartbeat is detected, around six weeks of pregnancy. Alabama has passed the strictest abortion laws in the country, banning the procedure with few exceptions.

Other states (most notably New York, Vermont, and Illinois) have gone the other way, expanding the abortion alternatives to even the last days before delivery.

And so, there was great interest in the Court’s decision in Box v. Planned Parenthood of Indiana and Kentucky, Inc., announced on May 28, 2019.  Those looking for clues as to how the Court might rule on the new challenges to Roe v. Wade were disappointed.  Those taking the time read the opinions were reminded anew of just how difficult the legal issues really are.


Roe v. Wade was decided in 1973 where the Supreme Court held that the right to “liberty” under the Fourteenth Amendment “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” – but that “this right is not unqualified” and must be balanced “against important state interests in regulation.” Since then, legislatures and courts have been trying to define that balancing point.

In 1999 was decided Planned Parenthood of Southeastern Pennsylvania v. Casey, which set out what is still today the best statement of that balance. There are three basic principles:

  1. Before viability (the ability of the unborn child to survive outside of the womb), no law can prohibit abortion or impose a “substantial obstacle” to a woman’s effective right to elect abortion.
  2. After viability, State law can restrict abortion, if it contains exceptions for pregnancies which endanger the woman’s life or health.
  3. At all times in pregnancy, State law can pass laws protecting a woman’s health and the life of the unborn that may become a child.

“These principles do not contradict one another; and we adhere to each” concluded the Court in Planned Parenthood v. Casey.  Since 1999, every abortion case has essentially analyzed the law in question on one these three questions: (i) does it impose “a substantial obstacle” to abortion before viability; (ii) is the exception for life and health of the woman extensive enough; and (iii) is the law really about a woman’s health or is it a veiled attempt to restrict abortion?

This is what makes the statutes from Kentucky, Mississippi, Ohio, and Georgia so different – they are not written to restrict abortion within the structure of present constitutional jurisprudence, but to directly challenge and change it.

This is why the decision in Box v. Planned Parenthood was so scrutinized, looking for clues as to whether the three justices in the dissent of Whole Woman’s Health v. Hellerstedt (Roberts, Thomas, and Alito) would signal a willingness to abandon the current legal structure, and whether Justices Gorsuch and Kavanaugh would join them.


Box v. Planned Parenthood concerned an Indiana statute, signed into law by then Governor Mike Pence.  The law had two parts.  First, it required that the remains of an aborted fetus be buried or cremated (as decided by the woman), and not incinerated or treated as surgical waste.  Second, it outlawed abortion if it was being done “solely because of the sex of the fetus” or “solely because the fetus had been diagnosed with Down syndrome” or “any other disability” or “solely because of the race, color, national origin or ancestry of the fetus.”

The law was challenged in Federal Court and both parts were found unconstitutional by the Southern District of Indiana.  A unanimous panel of the Seventh Circuit affirmed.   The State of Indiana filed for a Writ of Certiorari to the United States Supreme Court, meaning that it asked the Supreme Court to take the case.


The Supreme Court issued its opinion on May 28, 2019.  It was a “Per Curiam” opinion, meaning that it was issued by the Court without attribution to a particular judge writing the opinion.  Per Curiam decisions tend to be very short, very straightforward, and not requiring in depth analysis.

As to the first part of the Indiana law (regarding the disposal of the aborted remains), the Supreme Court granted certiorari, summarily reversed the Seventh Circuit, and declared the law constitutional.  It did so without briefing and without oral argument, essentially declaring that the issue was not difficult, not controversial, and not even close.

The Per Curiam decision stated that the Court’s prior decisions “already acknowledged that a State has a ‘legitimate interest in the proper disposal of fetal remains.’”  The Court found the Indiana law “not perfectly tailored” but rationally related to this legitimate interest and clearly constitutional.  The opinion also stated (and restated) that this decision was not about a right to an abortion and therefore “does not implicate our cases applying the undue burden test to abortion regulations.”  In other words: don’t draw any conclusions about what we might be saying about retaining the Planned Parenthood v. Casey standards, because the only thing we are saying is that we are not saying anything.

Justices Ginsburg and Sotomayor dissented from this first part of the opinion, and would have let the decision of the Seventh Circuit stand.  Presumably, the vote was 7 – 2.

The Supreme Court’s opinion then turned to the second part of the law, which outlawed abortion done “solely” because of the sex, race, color, national origin, ancestry, or disability of the expected child.    It denied the writ of certiorari and will not review the case.  It is the first case of its type, and the Court followed “our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”


There was no dissent to the denial of certiorari, but attached to the Per Curiam was a concurring opinion by Justice Thomas, with an extensive discussion of a chilling and very difficult question: is abortion “becoming a tool of modern-day eugenics”?

Eugenics is the science of improving a human population by controlled breeding to increase the occurrence of desirable heritable characteristics.  In practice, it is the applied science of “improving” the human population by manipulating birth rates among different population groups, usually by race.

Justice Thomas reviews the history, of how eugenics became “a full-fledged intellectual craze” in Europe and in America in the 1920s, even to the point of being endorsed by the United States Supreme Court in upholding Virginia’s forced sterilization law.  He quotes the famous (or infamous) decision in Buck v. Bell: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve from their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

We recoil from such thoughts today — forgetting that by 1931, 28 States had adopted eugenic sterilization laws.  Justice Thomas raised the specter that eugenics may be a veiled motivation of those who advance abortion, saying that “abortion is an act rife with the potential for eugenic manipulation” and that “a growing body of evidence suggests that eugenic goals are already being realized through abortion.”  He extensively cites Margaret Sanger, the founder of Planned Parenthood, that birth control could be used for eugenic purposes.  He also notes that Ms. Sanger was very opposed to abortion in all forms, calling abortion “a disgrace to civilization.”

The Indiana law, therefore, was a direct challenge to whether “abortion can easily be used to eliminate children with unwanted characteristics.” It was passed with direct reference to (and with stated regret for) Indiana’s 1907 sterilization law.  It was designed to prevent abortions for reasons of the race or sex or disability of the expected child.


The questions raised go to the heart of very hard legal and moral choices.  Must a woman carry to term a child who will be born with extreme disabilities?  Does restriction on abortion because of race require a woman raped by a man of another race to carry the child to term?  Does restriction on abortion for “ancestry” forbid abortion in the event of incest?

There are many people for whom the moral question of abortion is easy.  To some, abortion is never right; to others it is always right.  But many find the moral questions very hard. And if the moral questions are hard, the legal questions are harder.  Where does individual liberty end, and when (and why) can society enforce legislatively determined values?

These legal questions cannot be answered by slogans and political posturing.  They will require careful consideration.  Justice Thomas wrote that he joined the decision to deny certiorari so as “to allow further percolation” of the issue before it is considered by the Supreme Court.  But, he added that “although the Court declines to wade into these issues today, we cannot avoid them forever.”

The opinions of the Supreme Court, including the concurring opinion of Justice Thomas can be read here.  It is altogether about a 30 minute read, and very much worth the time.

Category: Law

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Email | Website | Thomas Schetelich is a founding principal in the law firm of Ferguson, Schetelich & Ballew in Baltimore, Maryland, and a member of the United States Supreme Court Bar. He heads both the firm’s corporate/ business law practice and its personal legal services department. He is an AV rated attorney awarded for highest standards of professional skill and ethical practice. Mr. Schetelich devotes much of his practice to assisting charitable and religious organizations, and is the President of The Christian Professional Network. He is a frequent speaker on Biblical and legal matters throughout the United States.