Among a number of recent developments in the federal appeals courts regarding abortion jurisprudence, one of the most notable is their discussion of eugenics. Though the history of infamous characters like Margaret Sanger and the link between eugenics and abortion has been known for some time, it didn’t make its way into court opinions until Justice Thomas wrote a lengthy concurrence in Box v. Planned Parenthood explaining the history of abortion being used as a tool to achieve eugenic objectives.

In an attempt to curtail eugenics, Ohio passed a law, H.B. 214, which prohibits any person from purposefully inducing an abortion if the person has knowledge that the pregnant woman is seeking the abortion in whole, or in part, because the unborn child has Down syndrome. A federal district court issued a preliminary injunction which stopped the law from going into effect, and a divided panel of the Sixth Circuit affirmed that ruling. On December 13, the en banc Sixth Circuit vacated the panel’s ruling and agreed to hear the case before the entire court.

Dissenting from the earlier Sixth Circuit panel’s opinion, Judge Batchelder noted how Ohio’s law promotes a compelling interest in preventing abortion from becoming a modern day eugenics tool. She said, “Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down [s]yndrome babies would undermine the principle that the Down [s]yndrome population is equal in value and dignity to the rest of Ohio’s population, and would do deep damage to the integrity of the medical profession.”

Judge Batchelder is not the only judge to follow Justice Thomas’s lead and talk about the link between abortion and eugenics. Recently, the Fifth Circuit struck down Mississippi’s 15-week abortion ban. While he stated he was bound by Supreme Court precedent to reach this result, Judge Ho, a President Trump appointee, wrote a concurrence in which he noted that abortion is found nowhere in the Constitution, and that “the district court’s claim that it is racist to believe in the sanctity of life is particularly noxious, considering the racial history of abortion advocacy as a tool of the eugenics movement.”

It is encouraging to see appellate judges proclaim the history between abortion and eugenics. This could lead to a more clearly recognized state interest in stopping eugenics in this context, one which could eventually become compelling enough to outweigh a woman’s “right” to privacy. In the interim, we appreciate these judges exposing the history and modern-day link between eugenics and abortion.