Abortion and Social Justice was the title of a book edited almost 50 years ago by Thomas Hilgers and Dennis Horan. The title is instructive, because the editors wanted to situate discussion of abortion not as part of sexual ethics or even bioethics but as a social justice question. Nine years ago, ex-priest Thomas Williams returned to the same question, writing about “Abortion as a Social Justice Issue” and detailing the baneful consequences flowing from the fact that “de facto abortion is excluded presently from the realm of Catholic social teaching.”

Fifty years ago, abortion was increasingly recognized as a social justice issue, both in terms of the treatment of the unborn and of the conditions and situations that made women believe they needed to resort to abortion. One should remember that back then social liberals — including liberal Democrats — not only voted against abortion but co-sponsored a constitutional amendment to overturn Roe. William Proxmire, Thomas Eagleton, Harold Hughes and Mark Hatfield were card-carrying liberals. Eagleton was George McGovern’s first running mate. (His replacement, Sargent Shriver, was equally pro-life.) Harold Hughes opposed the death penalty in the early 1960s, when opposition to capital punishment was a minority view. Mark Hatfield was half of the Hatfield-McGovern Amendment, an appropriations rider that tried in 1970 to end funding for the Vietnam War. Only Eagleton and Shriver were Catholics. They opposed abortion as a social justice issue.

I underscore the social justice nature of the abortion issue for two reasons. One is that pro-abortionists have sought to capture it for themselves. While the primary defense of “abortion rights” illustrates what Mary Ann Glendon calls “rights talk” — the rechristening of a policy preference as a “right,” thereby immunizing its discussion as a normal policy choice and instead elevating it to quasi-sacral status (and demonizing its opponents) — some abortionists (Loretta Ross, Kimberly Mutcherson, Laura Salamanca) want to recast abortion as a matter of “reproductive justice,” with a whole panoply of “rights” (state subsidy of abortion, no state indications of disapproval of abortion, etc.) following.

My purpose today in recalling abortion as a “social justice” issue is bound up with an interesting phenomenon: “liberal eugenics.”

Although the mainstream use of “liberal eugenics” (as coined by bioethicist Nicholas Agar and promoted by Julian Savulescu et al.) is positive, I want to explore its pejorative understanding. Catalina Devandas-Aguilar has recently noted (no. 21):

Contrary to the eugenics movement, liberal eugenics aims to expand reproductive choices for individuals, including the possibility of genetic enhancement. While there may be no State-sponsored coercive eugenics programmes, in a context of widespread prejudice and discrimination against persons with disabilities, the aggregate effect of many individual choices are likely to produce eugenic outcomes. Indeed, ableist social norms and market pressures make it imperative to have the “best possible child” with the best possible chances at life. Some utilitarian bioethicists have further argued that genetic enhancement is a moral obligation and that it is ethical to give parents the option to euthanize their newborns with disabilities.

Eugenics writ large tries to use tools to achieved desired biological outcomes. Eugenics got a bad name from Germany because of its coercive nature, e.g., killing the disabled, kidnapping blue-eyed blond Slavic kids for “Aryanization,” etc. The ill-repute that the Nazis gave eugenics even temporarily put into eclipse its Anglo-American antecedents (vigorously promoted by Planned Parenthood founder Margaret Sanger who, compared to other racists, curiously is still celebrated. We forgot that, in 1935, 28 states had sterilization laws on the books and legislation was introduced in another seven.

Legislation of abortion and, especially, advances in reproductive technologies since the 1970s have led to a eugenic renaissance. Our society is generally too polite to discuss such things openly, but procedures such as artificial insemination and in vitro fertilization (especially when involving donor gametes) and genetic surrogacy can and often do clearly entail eugenic and socio-economic considerations. How else does one explain that, when looking for egg donors, top dollar goes to Ivy League college co-eds, but when seeking gestational surrogates, poorer, even foreign women or Army wives, looking to supplement family incomes, will do?

One of the fundamental shifts in modern ethics is what can be called “proceduralism.” Because utilitarian and Kantian ethics eschew normative moral judgments (“X is wrong because it’s wrong), preferring moral relativism (“X is wrong for me”), they instead focus on “procedure” or “format.” Have the relevant factors been disclosed? Has informed consent been obtained? If yes, then it’s OK. If you don’t think proceduralism is the driving force in the ethics of medicine, just think of the number of forms you had to initial the last time you visited a doctor, affirming you were told what your treatment involved, you agree to it, you know your privacy rights, your medical information cannot be disclosed but under these conditions, etc. The point is: there is no content here, just procedure. Check the procedural checklist, and you’re good to go. Consent validates everything.

That obviously has implications for bioethics.

Is eugenics wrong because it’s wrong, or is it wrong because it is forced? Was Hitler’s crime killing, euthanizing, or sterilizing people or killings, euthanizing, or sterilizing them without their consent? And if — in some bizarre world — he had gotten their approval, would it have made it right?

This is not a theoretical question. It is very much at the heart of “liberal eugenics.”

Consider the question of states that try to restrict abortion for eugenic reasons. Indiana was in the U.S. Supreme Court last year over a state law that banned abortion when sought because of the fetus’ sex or disability. Modern prenatal techniques allow early identification of what sex a baby is and whether the child suffers from any genetic diseases. Note my word: I said “identification,” not “diagnosis.”

Why do I make this point? Well, there is no such thing as the “wrong” sex. (Most politically correct people would not admit it publicly, even if they thought it). So we don’t “diagnose” the baby’s sex. But it is a motive – a substantial motive in some “son-centric” cultures (India, China, especially under state-enforced child limits) – to obtain abortions. And the primary victims of gender-specific abortion are girls because, tidal waves of feminism notwithstanding, residual “I want a son” biases still exist. Sex-specific abortion cause most pro-abortionists to tie themselves in intellectual knots: how does one defend a procedure that primarily eliminates female unborn children in the name of “feminine empowerment?”

I also made a point out of “identification” versus “diagnosis,” because rarely does an identification of genetic abnormality in an unborn child result in therapeutic intervention, even where possible. The default position in our reification of reproduction has become: “defective product, let’s eliminate it.” Down syndrome, for example, is declining not because it is rarer, but because we abort unborn children identified with it. Some countries will soon be Behindertfrei, “disability free” because of such abortions.

“Liberal” thinkers (i.e., those who advocate a permissive procedural ethic) have to face a conundrum: are they abetting eugenics? They manage to evade the question by hewing to law’s unscientific position that an unborn child is not a person possessing rights. But it does not relieve the question of the motives of persons seeking such abortions. “I want this abortion because the fetus is a girl” inherently involves a sexist assumption that, somehow, girls are less valuable than boys. To claim that “choice” sanitizes the bias is false: in no other case would we say that a preference of a boy over a girl or vice versa is justified exclusively because I prefer it. Why here?

The same problems arise about abortions because of disability. U.S. law prohibits discrimination against persons because they are disabled. Abortionists evade the issue by denying the personhood of the unborn, but they cannot evade the problem of the underlying motivation: that a disabled person is less worthy of life. That is lethal discrimination. That is what Indiana sought to stop.

In Box v. Planned Parenthood of Indiana the Supreme Court was faced with a case that would have stricken at the central theology of Roe — that abortion can entail more than a mother’s choice — and the Court punted. The Seventh Circuit Court of Appeals struck down Indiana’s ban, Indiana appealed, and the Supreme Court refused to take the appeal, leaving the appeals court ruling intact without comment.

Except for Justice Clarence Thomas. He filed a 21-page opinion, in which he sketched out the lurid history of eugenics in America (including the Supreme Court’s infamous and yet unreversed 1927 precedent in Buck v. Bell, upholding Virginia’s mandatory sterilization law). He closed by insisting that “although the Court declines to wade into these issues today, we cannot avoid them forever.”

Thomas’ opinion (which is worth reading) cited Adam Cohen’s book, Imbeciles: The Supreme Court, Eugenics, and the Sterilization of Carrie Buck. Most scholars would be tickled to have their work used by the Supreme Court but, within days, Cohen churned out an article claiming Thomas had misrepresented his work, precisely for the procedural question raised above. Virginia’s offense was in compulsorily sterilizing Carrie Buck against her family’s will; Indiana’s offense was in not giving parents of a disabled unborn child the choice to abort that child. Note the point: neither eugenically-driven abortion nor sterilization in itself is morally wrong. What is wrong is whether you have a choice about it.

And that’s the “liberal eugenics” Devandas-Aguilar criticizes. The eugenic motives are the same. The eugenic outcomes (elimination of the undesired) are the same. The only difference is whether a “choice” was involved.

Is it permissible to make eugenic, even discriminatorily motivated choices as long as you can legally pretend their impact is upon a “non-person?” Does that “non-personhood” immunize those eugenic, even discriminatorily motivated choices from moral scrutiny? Is eugenics only bad when not a choice?