THE UNDESIRABLES: THE TRANSFORMATION OF AMERICAN EUGENICS FROM STERILIZATION TO ABORTION.

• Author: Schultz, Darrin

INTRODUCTION

"For you formed my inward parts, you knitted me together in my mother's womb. I praise you, for I am wondrously made." - Psalm 139:13-14

In 2019, the United States Supreme Court upheld the constitutionality of an Indiana law prohibiting aborted children from being treated like "infectious waste." (1) Surprisingly, what drew most attention to the case was not the question answered by the Court, but rather, the question left unanswered. Justice Clarence Thomas, in a concurring opinion, took time "separately to address the other aspect of Indiana law at issue," (2) which restricted selective abortions on the basis of race, sex, disability, or related characteristics. (3) In his concurrence, Justice Thomas sought to highlight the eugenic ethos behind the selective abortions prohibited by the challenged Indiana law. (4) It did not take long for Justice Thomas to receive criticism for connecting abortion to eugenics. (5) The principle criticism opposing his opinion is that the link between eugenics and abortion is severed due to the apparent incongruity of equating a state action (eugenics) with a private action (abortion). (6) The American eugenics movement, indeed, climaxed as a state-sponsored compulsory sterilization initiative imposed on men and women. (7) However, when exploring the motives of eugenics alongside the practice of selective abortions on the basis of race, sex, or disability, the soundness of Thomas's argument rests on the discovery that the end goal of eugenics has not died away, but the means have merely transformed. (8)

Part I of this Note will briefly survey the history of the American eugenics movement, while specifically highlighting the Supreme Court case that propelled eugenics. Part II will examine Box v. Planned Parenthood of Indiana & Kentucky, where Justice Thomas addressed Indiana's Sex Selective and Disability Abortion Ban. Part III will highlight the current undue burden standard applied to abortion restrictions that originated in Planned Parenthood of Southeastern Pennsylvania v. Casey. Part IV will assess whether the Casey standard should apply to anti-eugenic abortion laws by looking at two lower court opinions (9) issued in 2021 that dealt with state laws designed to prevent eugenics by outlawing selective abortions on the basis of a diagnosis of Down syndrome.

As one scholar suggests, the intellectual and medical ethics that advanced American eugenics have persisted, (10) and that there exists "laissez-faire eugenics" (11) to this day. Soon, prospective parents may be overtly urged "to bow to social attitudes by aborting their genetically inferior children." (12) This Note will emphasize, supported by lower court commentary, that the sociological and legal premises that render eugenics intolerable, are the same premises that ought to render selective abortions intolerable. (13) As may be discovered, "[t]here is an inherent connection between things foul." (14)

1. THE EUGENICS MOVEMENT

   1. Eugenics Overview

      Eugenics has been defined as the study of how to arrange reproduction within a human population to increase the occurrence of heritable characteristics regarded as desirable. (15) In Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, author Adam Cohen explains that the American eugenics movement is largely forgotten. (16) Perhaps a natural "repugnance" (17) in the public conscience to a "cruel procedure" (18) makes it more comforting to forget eugenics than to remember it at all.

      "Eugenics" was a term "coined in 1883 by Francis Galton, a British statistician and half-cousin of Charles Darwin." (19) Galton used the term "eugenics" to describe his theories of genetic engineering through intentional breeding. (20) Galton seemingly adapted "Darwin's theories of natural selection" into a systematic program to fashion man as Galton--and other eugenicists--preferred. (21) Eugenicists believed they could fashion the human race as they saw fit without objective standards to direct them. (22) As revealed over the following decades, under the guise of social, medical, and genetic "progress," eugenics and genetic engineering grew into a campaign waged against individuals essentially classified as undesirable, perpetrated by those who happened to be in positions of power. (23) As C.S. Lewis presciently penned in reference to the evolving European and American eugenics:

      [W]hat we call Man's power over Nature turns out to be a power exercised by some men over other men with Nature as its instrument. (24) . . . The final stage is come when Man by eugenics, by pre-natal conditioning, and by an education and propaganda based on a perfect applied psychology, has obtained full control over himself. Human nature will be the last part of Nature to surrender to Man. (25) . . . For the power of Man to make himself what he pleases means, as we have seen, the power of some men to make other men what they please. (26) . . . Man's final conquest has proved to be the abolition of Man. (27) The pervasive capability of eugenics as an ideology is evidenced by its widespread dissemination and popularity in the early 20th century. It appears difficult to overstate the level of interdisciplinary and cultural prevalence the eugenics ethos achieved in the early 1900s. (28) Eugenics received considerable fuel from academia and the media of the day, which helped move eugenic ideology from minds of the "elites" to the minds of the common man. (29) By the 1920s, with eugenics at peak popularity, "[c]ourses in eugenics were taught in more than 350 American universities and colleges, leading to the widespread popular acceptance of its tenets." (30) Moreover, eugenics "was endorsed in more than 90 percent of high school biology textbooks." (31) Eugenics even hit the silver screen. (32)

      While the eugenic ethos was increasing in force throughout the culture, at least within the United States, it was unsettled how exactly the eugenicists would stop reproduction of the undesirables. (33) With elusive end goals, several tactics were tried and proved unsuccessful, including forced castration, marriage prohibitions, as well as institutional separation. (34) Castration, understandably so, was deemed too "barbaric." (35) Marriage prohibitions were ineffective, because paper laws would not prevent childbirth among the people the eugenicists despised. (36) Institutional segregation was too inefficient. (37) These failed tactics left the eugenicists without a clear path forward, until they received corporate funding. (38) Not long after, as one author notes, "[e]ugenics was taught in some of the world's most prestigious universities, and most eugenics societies 'were dominated by professionals such as professors, social workers, lawyers, doctors, teachers, and ministers.'" (39) Eventually, genetic engineers settled on sterilization--"their favored solution." (40) Sterilization, as it was viewed, "was completely effective, and it could be carried out on a mass scale." (41)

   2. The American Eugenics Movement

      Eugenics and the notion of sterilizing the undesirables on a mass scale gained momentum in America in the early 20th century. (42) America's eugenic history is largely forgotten, and the medical and sociological ideology that sprung eugenics into being seemingly went dormant. However, it would be a mistake to hide the reality of the eugenics movement in the public conscience. (43) For example, if it remains possible that a eugenic ethos persists today, it seems unwise to conceal the fact that "as many as 70,000 Americans were forcibly sterilized during the 20th century . . . [as] victims of statemandated sterilization" laws. (44)

      A new eugenics momentum is arguably metastasizing under the mask of allegedly victimless reproductive choice. (45) As Professor D. Brian Scarnecchia explains: "All rhetoric about individual liberty aside, the real beneficiaries of reproductive technology are . . . a technologically elite sect: social engineers, medical professionals together with accommodating bioethicists, and jurists who aim at a society better planned by them." (46) If true, the connection between eugenics of old and today's bioethics is closer than one may initially think. (47) The repulsive atrocities perpetrated by Nazi Germany during the Second World War exposed to the world what happens when a eugenics movement is left unchecked and allowed to advance to its predictable end. Nevertheless, was the eugenics ethos--whereby elites seek to make man in their preferred image with unnatural selection--ever extinguished? (48) While open support of state-sponsored sterilization waned after World War II, have eugenicists merely altered the means to achieve their desired ends under the guise of "reproductive choice"? (49)

      Author Wesley J. Smith states that an investigation into the ideology of eugenics "and the horrors that flowed from its acceptance . . . is highly relevant to an exploration of modern bioethic[al]" issues. (50) From a sociological, legal, medical, and moral perspective, Smith advanced three significant reasons to study the history of eugenics that are relevant for our discussion of selective abortions on the basis of sex, race, disability, or related characteristics. Smith's reasons to understand eugenics include:

      First, its history shows the inhuman consequences that invariably follow when the equality of human life is disregarded in science, medicine, law, and society at large. Second, striking and disturbing parallels exist between the manner in which eugenic theories were developed and put into practice, and the way in which bioethics ideology is coming to dominate the ethics of medicine. Third, modern bioethics, like eugenics before it, creates hierarchies of human worth intended to justify medical discrimination. Now, after decades of quiescence, eugenics itself is making something of a comeback under the cover of new genetic technologies. (51) When the...