An important legal case involving abortion and the right to life of preborn babies diagnosed with Down syndrome has reached the U.S. Supreme Court. Arkansas passed a law in 2019 prohibiting abortionists from killing babies based on a prenatal diagnosis of Down syndrome. After some abortion clinics in the state sued, a federal district court issued an order blocking the law, and the 8th U.S. Circuit Court of Appeals agreed with that order.

The state of Arkansas recently asked the Supreme Court to take up their appeal on behalf of the law. Its petition to the high court has a bevy of high-powered supporters, including 22 state attorneys general and 68 members of Congress, who have filed briefs with the justices urging them to take the case and reverse the lower courts.

If the Supreme Court were to do so, it would be a powerful statement against the use of abortion as a eugenics tool to eliminate persons with Down syndrome.

Family Council, a Focus on the Family ally in Arkansas, is excited about the possibility of the justices taking up this case about their state’s law.

“Many people are closely watching this court case, because it has the potential to reshape how federal judges treat state abortion laws,” Family Council wrote on its website. “It could give the U.S. Supreme Court an opportunity to reverse or amend past rulings like Planned Parenthood v. Casey or June Medical Services v. Russo.

“This is an opportunity for Arkansas Attorney General Rutledge and her team to win a big, pro-life victory in court that could help save the lives of unborn children in Arkansas and across the nation.”

Planned Parenthood v. Casey is the 1992 Supreme Court ruling that reaffirmed Roe v. Wade’s basic holding that a woman has a constitutional right to obtain an abortion without the state placing an “undue burden” on the exercise of that right. June Medical, decided by the high court last year, upheld the continued application of the “undue burden” standard.

In a press release, Mississippi Attorney General Lynn Fitch gave eight reasons why states like Arkansas have a compelling interest in passing such laws:

  • Protecting the entire class of persons with Down syndrome from being targeted for elimination solely because of disability;
  • Eradicating historical animus and bias against persons with Down syndrome;
  • Safeguarding the integrity of the medical profession by preventing doctors from abandoning their traditional role as healers to become the killers of disabled populations;
  • Drawing a clear boundary against additional eugenic practices targeted at disabled persons and others;
  • Countering the stigma that eugenic abortion currently imposes on persons with disabilities;
  • Ensuring that the existing Down syndrome community does not become starved of resources for research and care for individuals with Down syndrome;
  • Protecting against the devaluation of all human life inherent in any decision to target a person for elimination based on an immutable characteristic; and
  • Fostering the diversity of society and protecting society from the incalculable loss that would occur if people with Down syndrome were eliminated.

The 18 U.S. senators and 50 members of the U.S. House who submitted a “friend of the court” brief in support of the Arkansas law argued that the United States has a “national policy of protecting and respecting people with disabilities.” It points out that, there is “an unfortunate history of using abortion to target children based on race, gender, and disabilities.” Finally, it offers the compelling argument that Arkansas’ interest in eradicating such discrimination ought to be constitutionally justified, and that the Supreme Court’s abortion cases are flawed because they don’t address that state interest.

The brief from the 22 state attorneys general touches most of the same arguments as the brief from the members of Congress, and argues that the Arkansas law is constitutional even under the Casey “undue burden” standard.

This case ought to find at least one supporter on the high court – Justice Clarence Thomas.

In 2019, in rejecting a case from Indiana with the same prohibition, Thomas wrote a concurring opinion that highlighted the eugenics aspect of abortion. Although he joined the full court in denying Indiana’s law its day in court, he wrote that the issue would have to be addressed at some point.

“[A]lthough the Court declines to wade into these issues today, we cannot avoid them forever,” Thomas wrote in the Indiana case.

Arkansas and pro-life supporters across the nation hope that now is the time when the Supreme Court will take up the eugenics issue it postponed in the 2019 case. Please pray that the high court will accept the appeal and hear the argument in favor of protecting one of the nation’s most vulnerable minorities – the disabled.

The case is Rutledge v. Little Rock Family Planning Services.


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