Yesterday's important 6th Circuit en banc decision (see prior posting) upholding Ohio's statute barring doctors from knowingly performing Down-syndrome motivated abortions includes interesting debates among the various judges on the relevance of the historic eugenics movement. This focus builds on a 2019 concurring opinion in the U.S. Supreme Court by Justice Thomas in Box v. Planned Parenthood (See prior posting.) Here is an example of the exchanges between the 6th Circuit judges in yesterday's opinions:
Judge Griffin concurring (at pg. 36):
I write separately to emphasize Ohio’s compelling state interest in prohibiting its physicians from knowingly engaging in the practice of eugenics....
Many think that eugenics ended with the horrors of the Holocaust. Unfortunately, it did not. The philosophy and the pure evil that motivated Hitler and Nazi Germany to murder millions of innocent lives continues today. Eugenics was the root of the Holocaust and is a motivation for many of the selective abortions that occur today.
Judge Donald dissenting (at pg. 108):
... Ohio’s and the various concurrences’ invocations of the term “eugenics” fail to acknowledge the difference between (1) the purpose with which a woman may decide to have an abortion after a Down-syndrome diagnosis, and (2) the goals of eugenics as a means of “improving stock” .... Put simply, the use of the term “eugenics” ignores the difference between a private choice and a social movement. I find it exceedingly, if not undeniably, unlikely that a woman choosing an abortion because of a prenatal Down syndrome diagnosis is doing so with any intention of improving the quality of humankind.... Rather, she likely makes the decision based on a multitude of deeply personal factors, including her financial and emotional ability to commit to raising a child with Down syndrome.... The state legislature now commandeers that personal decision-making, which interferes not only in a profoundly private personal decision, but also does violence to the ethical norm of patient autonomy, likely leading to doctors withholding information from patients and patients concealing information from their doctors....
