Such intrusive “reason bans,” which have been enacted around the country, are controversial — and almost immediately challenged — because they prohibit abortion before fetal viability. Most courts have applied the Supreme Court’s long-standing precedents to strike down such bans.
But the 9-to-7 ruling, by the full U.S. Court of Appeals for the 6th Circuit, found that “there is no absolute or per se right to an abortion based on the stage of the pregnancy.” That conclusion, at odds with the court’s decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, directly conflicts with that of other federal appeals courts — raising the likelihood that the issue will soon be before the justices again.
If so, one issue — referenced by the 6th Circuit majority and concurring opinions — will be Justice Clarence Thomas’s concurrence in a 2019 case involving an Indiana law that prohibited abortion because of Down syndrome or race- or sex-selection. The full court put off deciding the issue, but Thomas cast the ban as the state’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics.” In Thomas’s telling, the disproportionate incidence of abortion among Black women today is the contemporary residue of the early eugenic movement’s efforts to target the Black community.
No other justice joined Thomas’s opinion, but his arguments have flourished among conservative judges in the lower federal courts. They have relied on it to support the newfound view that neither Roe nor Casey contemplated the prospect of “eugenic abortions,” and have begun to credit reason bans as measures aimed at preventing discrimination on the basis of race, sex and disability.
The effort to link abortion with eugenics and deracination is part of a longer-range strategy to destabilize and eventually overrule Roe. Under the court’s practice, a precedent cannot be overruled simply because a majority of the current court disagrees. Instead, a “special justification” is required. Thomas’s linking of abortion to a racist history of eugenics, although misleading, lays the foundation for concluding that racial injustice provides that “special justification” for overruling Roe.
This would be an ugly perversion of that well-grounded exception. In Brown v. Board of Education, the court famously overruled Plessy v. Ferguson on the grounds that the earlier court failed to appreciate the psychological damage of segregation on Black children. Just last year, in Ramos v. Louisiana, the court overruled a 1972 decision that allowed criminal convictions based on non-unanimous jury verdicts, concluding that the earlier ruling failed to grapple with “the racist origins” of non-unanimous jury laws.
The Louisiana case shows how Roe could be similarly revisited. For years, those opposed to abortion have argued that Roe lacks a foundation in constitutional text, was improperly reasoned and has proved unworkable over time. Nevertheless, the right has survived. Thomas’s racialized critique of abortion furnishes a new justification for reconsidering this embattled decision, a superficially appealing historical narrative steeped in race and racial animus.
But the historical foundations on which this eugenic narrative rests are incomplete. Thomas conflates the history of birth control with that of abortion. Although abortion and contraception have converged under the rubric of reproductive rights, they have distinct histories. Margaret Sanger spearheaded the birth control movement and, in the 1920s and 1930s, cited eugenics theory to expand contraceptive access. However, Sanger did not favor abortion, which she viewed as distasteful.
Indeed, as much as the campaign to expand birth control relied on eugenics, the 19th-century effort to criminalize and regulate abortion took a different tack, trading on nativist fears that abortion was suppressing the White birthrate and threatening the nation’s racial character. Thomas’s Box concurrence overlooks these important distinctions, relying on a selective history to build the case against Roe.
We need look no further than the events of the past year, with the spate of police killings of Black people and protests about systemic racism, to understand the potential power of Thomas’s racialized critique of abortion rights. The interest in racial justice has never been more urgent.
And that is likely the point. Roe’s resilience lies in its commitment to gender justice — the notion that a woman’s liberty and equality are inextricably intertwined with her right to decide whether to bear a child. The association of abortion with eugenics and genocide offers a superficially compelling counter-narrative, one that undermines the appeal to women’s rights by making the case that this landmark decision rests on a foundation supposedly rooted in and tainted by racial injustice.
Whether this cynical new twist on Black Lives Matter will succeed remains to be seen. But in the words of Justice Harry A. Blackmun, who authored Roe, “the signs are evident and very ominous, and a chill wind blows.”