Tuesday, May 28, 2019

Clarence Thomas's Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case

by Michael C. Dorf

In a per curiam opinion in Box v. Planned Parenthood of Indiana and Kentucky, the Supreme Court: (a) reversed the Seventh Circuit opinion that had found Indiana's fetal remains disposal law unconstitutional under the rational basis test; and (b) denied review of that same court's invalidation of Indiana's law forbidding abortions based on the race, sex, or disability of the fetus. The big-picture takeaway here should be that the Court as a whole is not eager to dive into abortion jurisprudence. That means that the wave of restrictive state abortion laws we are seeing will not likely force the Roberts Court's hand. The Chief Justice apparently has enough allies among the other conservative justices who will be willing to let stand lower court rulings striking down such laws under existing precedents.

To be sure, "not likely" does not mean impossible. In denying cert with respect to the selective abortion provision, the Court specifically invoked the novelty of the issue and thus the appropriateness of percolation among the lower courts before diving back in. It is relatively easy to imagine a couple of the justices who were willing to sign onto that approach in Box taking a more aggressive stance when faced with an issue that is less novel -- such as the application of the undue burden test to Louisiana's admitting privileges requirement for abortion providers, at issue in the pending cert petition in the June Medical Services case. Accordingly, if Box means that the Court is unlikely to outright overrule Roe/Casey in the very short term, it says less about the likelihood of imminent further chipping away.

Meanwhile, the fireworks in Box could be found mostly in Justice Thomas's concurrence. Partly this was a matter of tendentious language. He refers to the abortion of a "child," without distinguishing early from late abortions. He also refers to patients who wish to have abortions as "mothers," prompting an objection from Justice Ginsburg (in a footnote). And most provocatively, Thomas writes at length about what he sees as the strong connection between abortion and eugenics.

The Indiana provision in question forbids abortions sought "solely" based on sex, race, color, national origin, ancestry, or disability of the fetus. Let's set aside the fact that human beings rarely do anything "solely" for any one reason. No doubt what the Indiana legislature had in mind was that a woman who otherwise would not have an abortion has one because of the status of the fetus along one of the forbidden dimensions.

There is little evidence of abortions being performed in Indiana (or elsewhere) based on the race, color, national origin, or ancestry of a fetus. True, sex-selection abortion is common in some parts of the world, but as my colleague Professor Sital Kalantry explains in a 2017 book, when women come to the United States from cultures that practice sex-selection abortion, they do not bring the practice with them. Accordingly, much of the Indiana law targets a non-problem.

Another issue both for the law and for Justice Thomas's categorization of it as serving an interest in eugenics is the generic inclusion of disability. The statute specifically forbids abortion based solely on Down syndrome, but it also refers to "any other disability." Presumably that includes quite severe disabilities of the sort that mean that a baby born alive will lead a very short pain-filled life and then die. Women who choose to abort in such circumstances do not appear to be engaged in "eugenics" in any known sense of the term.

To be sure, Justice Thomas quotes various 100-year-old statements by Planned Parenthood founder Margaret Sanger praising birth control on what she calls "eugenist" grounds. But the quotations are doubly misplaced.

First, eugenics cannot be an individual project. Sanger thought that legalizing birth control would promote eugenics by its effects in the aggregate. Justice Thomas inadvertently concedes as much. He notes that eugenics was originally (and still is) defined as "improving stock" in the human species. Yet an individual decision by an individual woman to have one abortion (or even twenty abortions) can have no more than a marginal impact on the composition of the overall human gene pool. And if one thinks the law ought to forbid individual reproductive choices based on criteria such as race, then it would seem that Indiana's law is grossly underinclusive. By Justice Thomas's reasoning, a woman who rejects a mate based on his race (as a great many still do) is not just expressing a problematic private prejudice but is engaged in eugenics. That is another misuse of the term.

Second, as Justice Thomas acknowledges, Sanger opposed abortion. Thomas's argument thus goes like this: Sanger favored birth control on grounds of eugenics; she also opposed abortion; but the eugenics-based arguments she used in favor of legal birth control apply "with even greater force to abortion"; therefore, abortion is a form of eugenics. This has all the logic of the syllogism in Love and Death that culminates in the conclusion that "all men are Socrates." If some people could or did make arguments for legal abortion based on eugenics, we should reject those arguments, but we still need to evaluate other, untainted, arguments.

Hold on, you say. Justice Thomas doesn't contend that the association with eugenics undercuts the right to any abortion; he's only saying it undercuts a right to have an abortion based on the illicit criteria listed in the Indiana statute. Right?

Wrong. Justice Thomas starts and ends there, but in between he works himself into a lather about abortion in general. His argument really does appear to be one of guilt by association. Justice Thomas argues that because some people once favored a legal right to abortion for a bad reason, it should be banned today. To Clarence Thomas, all fetuses are Socrates.


Joe said...

Thanks for the book citation.

This piece on Margaret Sanger also is appropriate: https://rewire.news/article/2015/08/20/false-narratives-margaret-sanger-used-shame-black-women/

Shag from Brookline said...

I just noted a post at the Legal Theory Blog of the abstract of an article with the title "Virtual Briefing & the Supreme Court" on the digital age that might be influencing Supreme Court Justices and their clerks, including legal blogs. Larry Solum gives this article his "Highly Recommended, Download it White It's Hot!" The SSRN site indicates the article runs 62 pages, quite long for my eyesight issues, but I just may take the time to read it There are a lot of legal blogs and other digital sources providing quick expressions of views of legal academics on SCOTUS opinions. Quite a bit of time may be involved if one had the time to check out all these views. I don't have a "day job" in my retirement but aging issues limit the time I can devote to such "Virtual Briefing." SCOTUS Justices and their clerks have "day jobs" that require reviewing formal briefing in cases before the Court, including the increasing number of formal Amici briefs filed in the digital age. I understand that a SCOTUS opinion may sometimes refer to "Virtual Briefing" at a legal blog, which may - or may not - be considered an honor to the blogger. To the extent that the Court is considered to be political, perhaps the digital "Virtual Briefing" community reflects political views. Is this a good thing for justice and respect for the law? Might this result in the Court taking even fewer cases every year, but taking more cases that reflect the digital "Virtual Briefing" of the digital legal community?

This is not a criticism of this post or of this Blog. Rather, I am concerned with Justices and their clerks extending beyond Court rules regarding formal briefing on cases before the Court and potential impacts upon SCOTUS opinions. I am aware of the concept of "judicial notice" which I do not believe recognizes such "Virtual Briefing." To the extent the Court is considered to be political, perhaps an article might be in order addressing the impact of presidential "Virtual Briefing" via tweets and other digital venues on issues before the Court.

Joe said...
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Joe said...

The author of the blog post I linked said on Twitter that she believes Thomas' clerk read it when writing his abortion opinion.

From Twitter regarding "Virtual Briefing":

[law professor]: so this means I can submit blog posts to the promotion & tenure committee right?

(quotes another law professor praising the article: "Fascinating article about "virtual briefing": #SCOTUS clerks follow blogs & podcasts re pending cases. And although SCOTUS not bound by federal judge #ethics rules, lots of room to worry about ex party contact, bias & facts outside record)

Eric Segall replies: "If I had anything to say about it, yes."

There is a page on the SCOTUS website that provides permanent captures of Internet material linked in opinions: https://www.supremecourt.gov/opinions/cited_urls/18

Note there are two links to websites about Margaret Sanger.

Coyote said...

I want to clarify something--by Thomas's logic, wouldn't it likewise be eugenics for, say, a person who wants to reproduce with the help of a sperm or egg donor being allowed to know the race (or national origin, or genetic propensity for diseases, et cetera) of their donor? If so, this could mean that if one accepts this logic, one should also support making it illegal for people who want to reproduce with the help of a donor to find out certain information about this donor (again, such as race or national origin or genetic propensity for diseases). Are pro-lifers actually going to advocate in favor of this?

Also, as a side note, eugenics could certainly be an individual endeavor. For instance, aborting a Down's syndrome fetus for this reason could certainly be considered eugenics. If only one person does this, then it's not going to have much of an effect on the gene pool, but if a lot of people will do this, then the aggregate effect of their individual decisions could have a significant effect on the gene pool.

Note: This does not mean that all eugenics is bad. Non-coercive eugenics--such as the example above if one considers abortion to be morally justifiable--should be perfectly acceptable and in some cases (such as selecting for higher intelligence) even be encouraged. What I do dislike is people wanting to ban, say, the selection of embryos for various traits (for embryos conceived through IVF--as in, to choose the embryo with the best genes for these traits (such as for intelligence) and then implant this embryo) on the grounds that this is eugenics (albeit non-coercive eugenics) while at the same time having no problem with other forms of non-coercive eugenics such as aborting Down's syndrome fetuses (something that could be avoided if it was illegal for pregnant women to test their fetuses for Down's syndrome during their pregnancies) and allowing people to choose a sperm or egg donor to reproduce with based on certain traits (such as the donor's intelligence, race, national origin, propensity for genetic diseases, personality traits, et cetera). It does seem like if one is going to support non-coercive eugenics in certain cases, then one should support non-coercive eugenics in all cases.

Finally, as a side note, I would be absolutely delighted if, for instance, as a result of embryo selection for intelligence (for embryos conceived through IVF), humanity will eventually evolve to the point that the world's average IQ would be comparable to that of, say, John von Neumann or Albert Einstein. In such a scenario, the world would be a much more prosperous and more inventive place than it is right now. (This would be due to the fact that a world with an average IQ of 160 would have much more geniuses as well as much higher productivity--which (together with a country's average IQ) makes a huge difference for national GDP per capita according to Garett Jones's work).

Shag from Brookline said...

Query: Would that side note's "embryo selection for intelligence" be expected to be made on a color/disability/blind basis?

Joe said...

F4 of his compares the errors of eugenics to disparate impact liability claims.

He cites a book on Buck v. Bell. The author called him out:


"I don’t want to appear ungrateful: It’s an honor to be relied on by the highest court in the land, and these days, nonfiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion."

It overlaps with the argument here.

Shag from Brookline said...

In my 9:54 AM off-topic comment, I suggested the Court might be political. The Legal History Blog has a 5/29/19 post on a new book, "Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present" by political scientist Keith E. Whittington (Princeton University). The book description posted presents the author's view as a political scientist that in such matters the Court is political. There is included in the post some other things of interest that Whittington has written. (I follow the author because he is is a major academic on the New Originalism.)

Coyote said...


"Query: Would that side note's "embryo selection for intelligence" be expected to be made on a color/disability/blind basis?"

Are you asking if everyone should have access to this technology and if this technology should be affordable to everyone? If so, then Yes on both counts. I think that such technology should be subsidized (through the government and/or through insurance) for people who are going to be unable to afford it. Else, it would allow the rich to get ahead of the rest of us even further while the rest of us aren't actually going to be able to do anything about this.

If you are asking whether one should be able to select embryos for traits other than intelligence, then Yes, one probably should. As to whether the government and/or insurance should pay for such screening, it should probably depend on the relevant trait. If it's screening embryos for genetic disorders, then Yes, the government and/or insurance should pay for it. If it's screening embryos for, say, skin color or hair color or eye color, then No, I don't think that the government and/or insurance should pay for it; rather, for such traits, if you want to screen for them, you should be prepared to pay for this using your own money.

Shag from Brookline said...

Coyote, this is a scary subject, as noted at"


with studies underway, including at Harvard Medical School. I'm already off-topic on this post with reference to "Virtual Briefing" and thus reluctant to respond any further on embryo selection for intelligence by editing or otherwise. A Nobel laureate some years back proposed a sperm bank banked with the sperm of Nobel laureates. Off hand, that didn't work out well. Gene editing gets more effective results, which could be scary.

Unknown said...

You have left out the a very key part of his argument linking eugenics and abortion -- his statistics on the massive disparity of poor black women getting abortions in the US.
Thus, we have Sanger's eugenics goal -- have undesirable women use birth control so they don't reproduce leading directly to the current-day result of a significantly disproportionate number of the very people Sanger thought were "undesirable" getting abortions.

You also leave out the statistics from China and India, where collectively 200 million more girl babies have been aborted. And the 100 percent rate of abortion for babies with Downs in Iceland, etc.

So while one person's actions will not have a eugenic effect, collectively there is such an effect.

Coyote said...

@Shag: I was talking more about using IVF and then selecting the embryo with the best genes out of the ones that were created. Gene editing opens up another can of worms. I mean, editing one's genes for intelligence could be really beneficial, but it's a slippery slope because one could then edit one's genes for other traits--something that could theoretically be exploited by authoritarian governments in some parts of the world in order to create a more pliable and obedient population.

So, I'm a fan of selecting the embryo with the best genes for embryos that are conceived through IVF, but I am a bit more squeamish about gene editing--at least for certain traits.

Joe said...

we have Sanger's eugenics goal -- have undesirable women use birth control so they don't reproduce leading directly to the current-day result of a significantly disproportionate number of the very people Sanger thought were "undesirable" getting abortions."

Imani Gandy in her piece notes that said "goal" was supported by leading black voices of the day such as W. E. B. Du Bois.*

Anyway, birth control now is regularly used across the board. So, it is unclear how much her goals "directly led" to poor black women getting abortions. Sanger was not just concerned about specific "undesirables." She supported birth control in general, including for well off white women like herself. Perhaps, the "direct" path is more hazy, including that black women are more likely to be poor and the poor have more abortions since having a child is and always was harder for them to handle?

You also leave out the statistics from China and India, where collectively 200 million more girl babies have been aborted. And the 100 percent rate of abortion for babies with Downs in Iceland, etc.

He cites a book arguing that sex-specific abortion practices in other countries do not translate to this country even when the people there move here. He specifically grants the first part. How did he "leave" it out, exactly, except by not providing a specific number?

What the Iceland number tells us (why that one country? how accurate is it**) is unclear. As the piece notes, that isn't the only condition covered. Anyway, 'eugenics' historically was a problem particularly because institutions and governments mandated it.


* "In her seminal book Killing the Black Body, Dorothy Roberts points out that leaders in the Black community actually welcomed Sanger’s birth control agenda in the 1930s, and even criticized it for not going far enough to serve Black people."

** https://icelandmag.is/article/fact-check-no-iceland-not-systematically-eradicating-down-syndrome

Peter G said...

I think your logic is a bit faulty on what would constitute "eugenic" reasoning by the prospective parent(s) of a fetus diagnosed with Down Syndrome or some other disability. If the reasoning is "I don't want to impose the burdens of disability on my future child," or "I don't want to bear the burden of having a disabled child," or "I cannot afford to pay to cost, or cannot afford to devote the time, required to give a disabled child a happy life," or "I want my children only to be high-functioning, or high-achieving, or conventionally attractive (or something like that)," then the decision to have an abortion may be based on the disability but not "eugenic" in its reasoning. Not because aborting this pregnancy would have only a negligible effect on the whole population, but because the reason is not, "Bringing another disabled child into this world is degrading to the overall quality of the human race."

Shag from Brookline said...

For those interested, here's a link:


to a NYTimes book review on the Nobel prize sperm bank. It provides a reminder to the importance nurture in raising children.

Michael A Livingston said...

I don't have a dog in this fight, so to speak, except to say that the notion that liberal birth control and abortion laws are racist in effect is not really new. I think Dick Gregory, the comedian turned Presidential candidate, made a similar argument in the 1960s. Whether these arguments have legal force is another matter, but I don't think it's absurd to suggest that part of the enthusiasm for liberal abortion laws is the sense that they will restrict the growth of undesirable populations, I suspect that even some minority supporters of these laws are suspicious of whites’ motives in supporting them.