Thomas cites eugenics, says Supreme Court will have to address abortion 'soon'

Justice Clarence ThomasClarence ThomasKavanaugh to deliver major speech to conservative Federalist Society Five landmark moments of testimony to Congress Katie Hill calls out a 'double standard' in final floor speech MORE on Tuesday said that while he agrees with the Supreme Court's decision to not take up a challenge to an Indiana abortion law at this moment, he believes the court will have to take up the issue in the near future. 

The Supreme Court ruled to uphold an Indiana law on the disposal of fetal remains but declined to review a lower court's ruling blocking an Indiana law banning abortions on the basis of the fetus's sex, disability or ethnicity.

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Thomas wrote in a lengthy concurring opinion that he agreed that the court should not address the issue now "because further percolation may assist our review of this issue of first impression."

"Given the potential for abortion to become a tool of eugenic manipulation," he added, "the court will soon need to confront the constitutionality of laws like Indiana's."

Thomas, the only African American member of the court, noted the racial discrimination involved in the history of eugenics.

"From the beginning, birth control and abortion were promoted as means of effectuating eugenics," he wrote.

Thomas pointed to comments from Planned Parenthood founder Margaret Sanger in the 1920s that promoted eugenics as fueling his concerns surrounding abortion.

The promotion of eugenics has largely died out of the mainstream narrative over the past century, and Planned Parenthood provides a number of services beyond birth control and abortion.

Thomas's argument largely centers on Sanger's century-old comments, but also cites newer technology that would help determine if a fetus has any disabilities or genetic defects as having "only heightened the eugenic potential for abortion."

"Indeed, the individualized nature of abortion gives it even more eugenic potential than birth control, which simply reduces the chance of conceiving any child," the justice wrote. 

Thomas said that the court's decision to not take up the law for full review "should not be interpreted as agreement" with the lower court's findings. 

"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," the justice said.

Abortion rights groups have argued that the procedures do not center around eugenics, but are rather guarded under a woman's right to choose as to whether to carry out her pregnancy. They say that mothers whose fetuses would not survive in the womb or after birth, or whose pregnancy would risk their own health, should have the right to terminate a pregnancy.

Thomas made the remarks as several state legislatures have passed restrictive abortion laws in recent months, including one in Alabama that bans all abortions as soon as pregnancy is detected.

Some authors of those bills hope the laws will make their way up to the Supreme Court, with an eye on the court's conservative majority overturning the landmark 1972 Roe v. Wade decision.

However, the justices' decision Tuesday to not take the abortion cases under full consideration could signal the court's wariness in taking up a potential Roe reversal.