Conservative Judges Are Manipulating the History of Eugenics to Overturn Roe v. Wade

On Wednesday, the U.S. Court of Appeals for the 6^th Circuit upheld an Ohio law that prohibits doctors from performing an abortion if they know the reason is because the fetus has been diagnosed with Down syndrome. The 9–7 decision seems to defy the Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, which found a constitutional right to terminate a pregnancy before viability. Yet the court’s conservative judges claimed that those precedents did not necessarily apply here, because Ohio was not simply regulating abortion; the state claimed to be combatting eugenics by protecting disabled fetuses from discrimination. The Supreme Court has never squarely confronted these “trait-selection” laws, which often forbid abortions because of race or sex as well; while these bans have cropped up around the country in recent years, courts have consistently ruled that they are foreclosed by precedent. The 6^th Circuit’s conservative majority, by contrast, made a bet that today’s SCOTUS will weaken or overturn Roe and Casey to uphold Ohio’s statute—and, perhaps, overturn the constitutional right to abortion in the...