FARGO — Judge Ralph Erickson did something unusual in ruling that two new abortion restrictions in Arkansas are illegal — he invited the U.S. Supreme Court to overturn the decision and give states the authority to ban abortions.
And his plea in an opinion filed Jan. 5 cited his concerns of the potential of a new eugenics movement aimed at creating a “master race” by aborting unborn children who do not match an idealized notion of humanity.
Erickson, who is seated in Fargo and serves on the 8th Circuit U.S. Court of Appeals, took the unusual step of urging the Supreme Court to revisit abortion law, which is legal throughout the country but subject to restrictions imposed by states.
The twist came in the case of Little Rock Family Planning v. Rutledge. A panel of federal appeals judges, including Erickson, upheld a U.S. District Court ruling striking down two abortion restrictions enacted in 2019, a ban of abortions after 18 weeks and a ban on abortions stemming from a prenatal diagnosis of Down syndrome, a genetic defect that occurs in one of every 700 births in the United States.
Erickson joined another judge on the 8th Circuit, Bobby Shepherd, in bemoaning the fact that Supreme Court precedent left them no choice but to block the Arkansas restrictions, finding they were unconstitutional.
Both judges then called upon the Supreme Court to overturn an important 1992 case that provides the legal precedent to strike down the bans. The decision established the standard of viability — allowing abortions as long as the fetus would not be viable outside the mother’s body.
That standard is inadequate and fails to consider legitimate state interests in banning certain abortions, including those of unborn children who carry the genetic marker for Down syndrome, Erickson wrote.
“The great glory of humanity is in its diversity,” Erickson wrote in his concurring opinion. “We are as a species remarkably variant in our talents, abilities, appearances, strengths, and weaknesses. … And each human being is priceless beyond measure. Children with Down syndrome share in each of these fundamental attributes of humanity.”
Erickson wrote that the abortion of unborn children with Down syndrome is reminiscent of the 20th century eugenics movement that employed genocide and forced sterilization to develop a “master race,” causing the deaths of millions of innocents.
He added: “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.”
North Dakota Right to Life, a group that opposes abortion, agrees with Erickson’s concerns about the dangers of aborting fetuses with Down syndrome, which a spokeswoman said is an example of abortions for so-called “quality of life reasons.”
“We reject the argument on quality of life because that implies that some life might not be worth living,” said Sierra Heitkamp, executive director of North Dakota Right to Life.
The practice of aborting unborn children with Down syndrome is becoming increasingly common in Europe, she said. Erickson noted that as well in his opinion. Denmark now routinely screens for Down syndrome. As a result, Erickson wrote, last year only seven Down syndrome children among those tested were born. Advocates of screening for Down syndrome have argued that just because a woman doesn’t want to take on the responsibility of caring for a child with the genetic defect doesn’t mean she is motivated by eugenics ideology.
North Dakota law prohibits abortions based on gender selection or genetic defects, Heitkamp said. But as genetic screening becomes increasingly common, there is a danger that aborting unborn children who have some defect could become more accepted, she said.
“That always is a worry,” she said.
Planned Parenthood of North Central States, which includes North Dakota, opposes any erosion of abortion rights, said Katie Christensen, North Dakota state director for external affairs for Planned Parenthood, which does not perform abortions in the state but does in some of its clinics in other states.
“There’s a growing movement to chip away at abortion in multiple ways,” Christensen said, including laws that prohibit abortion for sex selection or genetic defects.
Kristi Noem, the governor of South Dakota, has announced that she will have a bill introduced to outlaw abortion of fetuses with Down syndrome, part of an “orchestrated attempt” to further restrict access to abortion, Christensen said.
“The risk is higher now than it was previously,” Christensen said. “This has been a legitimate concern throughout the Trump administration.”
Besides appointing three Supreme Court justices, giving conservatives a 6-3 majority, Trump has appointed 197 other federal judges, including his appointment of Erickson to the appeals court bench in 2017.
In North Dakota, legislation has been introduced that would make it a felony to perform an abortion or to “aid and abet” an abortion, an example of the latest attacks on abortion rights, Christensen said.
“They’re upfront about it,” she said, noting that the sponsor of the bill hopes it will be appealed to the Supreme Court if the bill becomes law and is challenged in court. “I don’t think it’s a secret.”