“The use of abortion to achieve eugenic goals is not merely hypothetical,” Thomas wrote in the concurring opinion released Tuesday.
Not a single other justice wrote an opinion even mentioning the word “eugenics,” nor was it a part of the case that Thomas was commenting on. And yet he wrote 20 pages with a sole focus on it. The case was also not about birth control. However, Thomas mentioned birth control over 30 times.
The case was Box v. Planned Parenthood of Indiana and Kentucky. The court had two questions to consider: (1) If it should uphold Indiana’s law that fetal remains from an abortion must be buried or cremated and (2) if the state can ban abortions if the motivation for abortion is based on the fetus’s sex or disability.
SCOTUS decided to uphold Indiana’s fetal remains law, reversing a lower court’s decision. It decided to make no opinion on the second question.
The second question, although not a focus of the court’s decision, was where Thomas stemmed his eugenics argument from. Thomas wrote that the Indiana law “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”
But Thomas spoke about both abortion and birth control, implying they were brought forward by Planned Parenthood’s early-1900s founders to control “undesirable populations” such as people with severe disabilities and people of color.
Thomas argued that this still exists today, pointing to the fact that women in the United States who are black have higher rates of abortion than women who are white. This is true, but Thomas refused to delve in the social implications of why this could be possible and instead related it the Nazi-science of race-based eugenics.
“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,” he wrote.
Planned Parenthood has recognized the racial divide in abortion rates and has offered up a societal reason to explain the disparity.
“High rates of abortion are related to poverty and lack of access to prevention services,” its website reads:
“Planned Parenthood health centers have provided health care in the United States for over 100 years and know that a disproportionate number of Black women face multiple barriers to accessing quality, affordable health care, which leads to higher rates of both unintended pregnancy and abortion.”
Thomas argued that the court will need to address the ties of abortion and eugenics in the near future, an opinion no other justice openly shared.
Adding birth control in the eugenics argument
“From the beginning, birth control and abortion were promoted as means of effectuating eugenics,” Thomas wrote.
By “beginning,” Thomas is referring to abortions and birth control provided by places such as Planned Parenthood in the United States in the early 20th century. Thomas seemed to ignore the broader history of abortion and birth control and painted a picture that it is a new American phenomenon. In reality, the “beginning” of abortion and birth control goes back much further and has existed across continents and cultures for over 3,000 years.
He continued on to argue that birth control has “eugenic potential” along with abortion, repeating that point multiple times throughout the concurring opinion.
“Although the Court declines to wade into these issues today, we cannot avoid them forever,” he concluded.
The source of Thomas’ argument fights back
Since the opinion was released Tuesday, many have pointed out the inaccuracies presented in Thomas’ argument.
The justice heavily cites the book “Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck” by Adam Cohen when recalling eugenics history.
Cohen published an article in The Atlantic on Wednesday that slammed Thomas’ use of his work.
“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,” Cohen wrote. “But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion.”
Cohen argued that Thomas’ argument “falls apart” if you consider that the eugenics history he cited wasn’t about abortion at all but rather about forced sterilization.
“Between eugenic sterilization and abortion lie two crucial differences: who is making the decision, and why they are making it,” Cohen wrote.
“In eugenic sterilization, the state decides who may not reproduce, and acts with the goal of ‘improving’ the population. In abortion, a woman decides not to reproduce, for personal reasons related to a specific pregnancy,” he added.
Despite criticism from the source of Thomas’ argument, the opinion is in writing and is now a part of the Supreme Court’s record. As some Republican lawmakers have admitted, the recent extreme restrictions on abortion sweeping through red states have a bigger purpose of getting the issue of the legality of abortion in front of the Supreme Court in an effort to overturn Roe v. Wade.
If that increasingly likely hypothetical does happen, the nation now knows that at least one Supreme Court justice has an extreme view on abortion and birth control and equates it to a large effort to control populations rather than a choice an individual makes.
Please note: This is a commentary piece. The views and opinions expressed within it are those of the author only and do not necessarily reflect the editorial opinion of IJR.