Clarence Thomas’ History Lesson
In May of 2019 Justice Clarence Thomas submitted a news-making concurring opinion about a case pertaining to a restrictive abortion law in Indiana. It made news because Justice Thomas dared to make a connection between “the right to choose” and America’s history of deciding who is "fit" or "unfit" to reproduce. I’ve read the twenty-one-page opinion and have found it to be an informative and factually sound essay on the history of eugenics in America as well as a clear warning against constitutionalizing eugenic-like abortion laws.
Below is my attempt at a summary of his entire opinion, which can be found here.
The case referenced is Box vs. Planned Parenthood. The state of IN asked the Supreme Court to review a lower court’s decision that Indiana’s Disability Abortion ban was unconstitutional. The Court denied certiorari, (they declined to review) and Justice Thomas concurred for now. It’s his concurring essay that caused a stir in the media.
Thomas’ main point is that it’s possible that sex selective and disability abortions could be used in the future for eugenic purposes, and therefore, States have a compelling interest to restrict these abortions legislatively.
He takes the time to first define ‘eugenics,’ which was a term coined by Francis Galton as “the science of improving stock” so that the “suitable” would eventually overcome the “less suitable.” Eugenics is basically engineered social Darwinism.
Next, he states this little-known fact: eugenics became quite the rage in the U.S. around the 1920’s, and intellectual elites at Harvard were some of the movement's biggest promoters. Harvard eugenicists wrote articles, published textbooks and lobbied government to implement eugenic ideas and laws. Stanford and Yale were also involved in the movement.
[Incidentally, around this time the book, “Die Freigabe der Vernichtung Lebensunwerten Lebens” or, “Allowing the Destruction of Life Unworthy of Life,” was published. This book and the sterilization procedures learned from American eugenicists gave Hitler and his Nazi doctors the impetus behind their ideas of racial purity.]
Eugenicists used many terms and distinctions to lump the dysgenic together, but the imprecise term “feebleminded” was a favorite. So, in 1927 the Supreme Court decided in Buck vs. Bell that Carrie Buck should be involuntarily sterilized due to "feeblemindedness." Ultimately, Carrie Buck was declared normal, but the Courts decision gave new boldness to eugenicists. By 1931 twenty-eight states had sterilization laws and Carrie Buck was one of 60,000 people who were sterilized against their will.
After the concentration camps were exposed at the end of WWII, sterilization's popularity tapered off, but the eugenics movement did not, “and support for the goal of reducing undesirable populations through selective reproduction...by no means vanished,” (Thomas)
Enter Margaret Sanger. Birth control enthusiast, eugenicist, and a woman who thought that poor, ignorant blacks were "the great problem of the South," and that their "reckless spawning" would be the ruin of our civilization. She opens a birth control clinic in Harlem.
Something that's not well-known about Sanger is her disdain for abortion. She thought it too deadly a moral evil for womanhood and for "racial development," and campaigned heavily instead for birth control. However, others in her circles, like Alan Guttmacher, thought the legalization of abortion to be the perfect advancement of eugenic goals despite Sanger's views.
Decades after Roe v. Wade, with the term 'eugenics' out of favor, Sanger's company, Planned Parenthood, promotes birth control and abortion as "reproductive health services," especially among the poor. The number of abortions for every 1000 live births is 3.5 times higher among black women than it is among white women. Whatever the reason for the disparity, black people are being “exterminated” at a faster rate than any other race in America.
With regard to sex selective and disability abortions, the United States already aborts approximately 67% of its children with Down Syndrome. There are also segments of American society that mimic Asia's practice of aborting girls at a high rate. Every year 300,000 to 700,000 girls are aborted in India because they are girls, and more than half the abortions performed all over the world take place in Asia - approximately 64%.
Fast forward to 2007. The State of Indiana adopts its Sex-Selective and Disability Abortion Ban because state legislators regret Indiana’s past involvement in legally using sterilization as a eugenic tool against its citizens. At that time, the General Assembly, surprisingly, urged the public to educate themselves about the “history of the eugenics movement” and to "oppose such laws in the future." Which reveals that there are (contrary to comments of those critical of Thomas' opinion) others who see the connection between abortion law and eugenics.
Planned Parenthood quickly sues the state of IN saying a woman has a constitutional right to abort her child at any time in the first trimester and for any reason, and two lower courts agree. What was the basis for their decision? Not the Constitution, but Planned Parenthood v. Casey; which did not address eugenic abortions but addressed provisions entirely separate from race, sex, and disability. They could not consult the Constitution because as Clarence Thomas reminds us, “[t]he Constitution is silent on abortion.”
In the end, the Supreme Court declined to review this portion of Box v. Planned Parenthood until more cases like these come through other Appeals Courts. This means that the Indiana ban cannot go into effect and the injunction remains; babies can be killed in Indiana if the mother dislikes their race, sex, or if they have some disability.
In his conclusion, Justice Thomas reminds the Court that they cannot ignore these type of laws indefinitely; and that, "enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement."
Justice Clarence Thomas's main point from the beginning was that abortion, given the scope allowed it by Roe v. Wade and Planned Parenthood v. Casey, has every potential to be used as a tool for eugenic purposes. (Many would argue - and I would agree - that based on the statistics given above, abortion is already being used with eugenics in mind.) Therefore, because abortion has this potential, every state has a compelling interest in adopting abortion bans similar to Indiana's. What is the compelling interest that should support these abortion bans? Children. States should adopt abortion bans because every abortion kills an actual child; and it should not be because of sex, race, or potential disability that a child has to die.