Bench Memos

Law & the Courts

Eighth Circuit Judges Call for Supreme Court to Reconsider Viability Standard for Eugenic Abortions

In a unanimous ruling today (in Little Rock Family Planning Services v. Rutledge), an Eighth Circuit panel ruled that Supreme Court precedent required it to invalidate two Arkansas statutes governing abortion: one that bars a doctor from performing an abortion when the “probable age” of the unborn child is “determined to be greater than eighteen weeks’ gestation, and one that bars a doctor from performing an abortion when the doctor knows that the mother is seeking the abortion “solely on the basis” of a belief that her child has Down syndrome. (Both statutes have exceptions for medical emergencies and for pregnancies resulting from rape or incest.)

The 18-week ban was ruled invalid under Planned Parenthood v. Casey because there is no generally accepted medical evidence that “viability”—the ability of the unborn child to survive outside the womb—is attained so early. The panel likewise concluded that under Casey the ban on Down syndrome abortions could not be applied to pre-viability abortions. (Several Seventh Circuit judges, including then-Judge Amy Coney Barrett, have questioned whether Casey in fact speaks to this question, and the matter is now under consideration by the en banc Sixth Circuit.)

Judge James Loken wrote the panel opinion, which Judge Bobby Shepherd and Judge Ralph Erickson joined. (All three are appointees of Republican presidents. The Eighth Circuit has 10 appointees of Republican presidents and only one appointee of a Democratic president.)

The concurring opinions of Judge Shepherd and Judge Erickson (with each joining the other’s) are particularly noteworthy.

Judge Shepherd restates his view that the Supreme Court should reconsider Casey’s viability standard. In particular:

Today’s opinion is another stark reminder that the viability standard fails to adequately consider the substantial interest of the state in protecting the lives of unborn children as well as the state’s “compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Box [v. Planned Parenthood (2019)] (Thomas, J., concurring). The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child.

Judge Erickson likewise laments that the viability standard “is overly simplistic and overlooks harms that go beyond the state’s interest in a nascent life alone”:

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….

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….

One of the great curses of the 20th century was 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.



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