Supreme Court Associate Justice Clarence Thomas talks with Chief Justice John Roberts in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

In an opinion released this week, Justice Clarence Thomas wrote that an Indiana law forbidding abortion based on an unborn child’s race, sex, or disability furthers “a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

Thomas has come under some criticism for his argument — or really for a caricature of it. Ed Whelan ably defends Thomas here, here, and here. I’ll just make one additional point about the common criticism that abortions based on Down syndrome don’t amount to “eugenics” because there is no government policy that singles out unborn children with it for destruction. To the extent that unborn children with Down syndrome are being eliminated in our society, runs this criticism, it’s the result of many private decisions.


I concede that eugenics is likely to be much more dangerous when directed by the government. But it’s simply question-begging to claim, as this argument implicitly does, that the only thing objectionable about the historic practice of eugenics was that it was directed by governments. I don’t believe that’s true, and there’s no constitutional reason the state of Indiana should have to believe it either.