An Eighth Circuit Court of Appeals judge issued a powerful opinion Tuesday urging the U.S. Supreme Court to recognize that “each human being is priceless beyond measure,” including unborn babies with disabilities.
National Review highlighted Judge Ralph Erickson’s opinion about two Arkansas pro-life laws before the Eighth Circuit. The case is Little Rock Family Planning Services v. Rutledge. One law prohibits abortions after 18 weeks gestation, and the other bans discriminatory abortions on unborn babies with Down syndrome.
In their unanimous ruling Tuesday, a three-judge panel said U.S. Supreme Court precedent requires them to rule against both laws, according to the report. However, in their opinions, the judges also emphasized that they believe the precedent is wrong and the Supreme Court should change it.
Erickson’s concurring opinion was particularly strong. He emphasized that every human life has value, including unborn babies with disabilities who frequently are targeted for abortions.
“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.”
He went on to describe the rise of the eugenics movement as “one of the greatest curses of the 20th century.” Margaret Sanger, the founder of Planned Parenthood, the largest abortion group in America, was a well-known eugenicist as was Nazi leader Adolf Hitler. At the root of eugenics is the belief that some human beings are more valuable than others.
“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,” Erickson wrote.
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Today, eugenics is not a popular belief publicly, but it still is practiced subtly through abortion. Unborn babies diagnosed with Down syndrome are aborted at an alarming rate, and in some countries, it’s nearly 100 percent.
In late December, The Telegraph reported about a new study that found 90 percent of unborn babies who test positive for Down syndrome in the United Kingdom are aborted. The study, published in the European Journal of Human Genetics, found that the problem is getting worse with the increased availability of non-invasive prenatal screening tests, or NIPS.
Erickson said American states should be allowed to protect their citizens from this “great and grave risk.” He continued:
“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.
Erickson said the Supreme Court failed when it focused on “viability alone” in its ruling Planned Parenthood v. Casey. The 1992 abortion ruling allows states to limit abortions once unborn babies are viable outside the womb. Prior to viability, however, the high court’s rulings still force states to allow abortion on demand.
Erickson said this is wrong, writing, “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.”
Eighth Circuit Judge Bobby Shepherd joined Erickson’s opinion and also wrote one himself urging the high court to allow states to protect unborn babies. Erickson also joined Shepherd’s opinion.
“… 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,’” Shepherd wrote, citing a 2019 opinion by Supreme Court Justice Clarence Thomas in the case Box v. Planned Parenthood. “The viability standard does not and cannot contemplate abortions based on an unwanted immutable characteristic of the unborn child.”
Within the past 10 years, a number of states have passed laws to protect unborn babies from discriminatory abortions based on their sex, race or a disability diagnosis such as Down syndrome. They include Arkansas, Kentucky, Ohio, North Dakota, Missouri, Indiana, Utah and Tennessee. However, most are not being enforced because of legal challenges.
Recent reports in The Atlantic and CBS News have explored the eugenic trend. They found that nearly 100 percent of unborn babies who test positive for Down syndrome are aborted in Iceland, 95 percent in Denmark and 77 percent in France.
The abortion rate is approximately 67 percent for unborn babies with Down syndrome in the U.S. – though data is scarce and the number likely is higher.
The problem is pervasive, and some of the discrimination comes from the medical community. Parents frequently report feeling pressured to abort unborn babies with Down syndrome and other disabilities. One mom recently told the BBC that she was pressured to abort her unborn daughter 15 times, including right up to the moment of her baby’s birth. Another mother from Brooklyn, New York said doctors tried to convince her to abort her unborn son for weeks before they took no for an answer.
A recent study highlighted in Scientific American showed evidence that families of children with Down syndrome often face negative, biased counseling and pressure to have abortions.
Arkansas Attorney General Leslie Rutledge is a strong pro-life advocate. She likely will appeal the case to the U.S. Supreme Court.